The Supreme Court of the United States blocked a lower court ruling on Monday night that extended absentee voting in Wisconsin because of the coronavirus pandemic, granting a request from state lawmakers and the Republican National Committee to require that absentee ballots be postmarked by Tuesday in order to be counted.
The decision was five to four. Justice Ruth Bader Ginsburg led the liberal bloc in dissent, while the conservative majority issued an unsigned opinion emphasizing the unusual nature of the case and the narrow sweep of their decision.
The case is the first COVID-19 related dispute to reach the High Court. The sharp disagreement suggests the justices could struggle to maintain consensus as they navigate pointed pandemic issues on an accelerated basis. Other cases, such as challenges to virus-related restrictions on abortion, will likely reach the Court in short order.
Monday’s decision ends days of legal battles in two separate cases where Democrats sought to postpone or extend voting, while Republicans resisted. The frenzy culminated Monday afternoon when Wisconsin governor Tony Evers (D.) issued an unprecedented order postponing the election until June. Within hours, the Wisconsin Supreme Court ruled Evers's order unlawful. The Supreme Court of the United States followed on Monday evening in a different case, which only concerned absentee ballot rules.
Though many states have postponed elections given the continued threat to public health, the Wisconsin legislature refused to reschedule Tuesday’s balloting. The Democratic National Committee and its affiliates in the state asked a federal judge in Madison for various exemptions to state election rules. Among other accommodations, the judge ordered election commissioners to accept absentee ballots as late as Tuesday April 13, despite a provision of Wisconsin law requiring submission by 8 p.m. on Election Day.
The U.S. Supreme Court said the judge was wrong to change election rules so close to the balloting.
"This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election," the majority’s unsigned opinion reads.
Republicans warned that the grace period could encourage bad faith voting behavior, by which Wisconsinites wait to learn preliminary Election Day results and cast ballots strategically. That concern prompted the Madison judge to belatedly amend his order and require state officials to withhold election results until April 13.
The majority nodded to the GOP’s concerns, saying the extended absentee voter period "fundamentally alters the nature" of the race and compromises the integrity of process. It is doubtful, the majority added, that state officials could conceal election results without leaks.
The opinion elsewhere underscored that it only addressed the question whether ballots must be postmarked by Tuesday to count.
"The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate," the opinion reads. "That point cannot be stressed enough."
Election officials have struggled to manage a surge in requests for absentee ballots and cannot guarantee delivery by Tuesday due to diminished postal service. The state issued a stay-at-home order on March 25, though there is an exception for participating in Tuesday’s election.
In legal filings before the High Court, Democrats argued that thousands of voters might be disenfranchised without a grace period for absentee ballots. They also predicted that polling places could become major vectors of transmission, especially since many polling places have closed consistent with public health orders. Ginsburg sounded a similar note in dissent.
"While I do not doubt the good faith of my colleagues, the court’s order, I fear, will result in massive disenfranchisement," she wrote elsewhere. "A voter cannot deliver for postmarking a ballot she has not received."
"They will have to brave the polls, endangering their own and others’ safety," Ginsburg added. "Or they will lose their right to vote, through no fault of their own."
Voters Tuesday will cast ballots in the presidential primary and elect municipal officers like mayors and school board members. A hotly contested race for the Wisconsin Supreme Court is also at stake. Evers has mobilized the Wisconsin Army National Guard to assist with election administration.
The case is No. 19A1016 Republican National Committee v. Democratic National Committee.
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