In a victory for Republicans Monday, the Supreme Court rejected a Democratic request to count mail-in ballots received after Election Day in Wisconsin.
The Court rejected the request, from a group of Democratic voters in Wisconsin, five to three, with Justice Elena Kagan leading the liberal trio in dissent. The Wisconsin Elections Commission anticipates that between 1.8 and 2 million voters will cast absentee ballots, and Democrats believe as many as 160,000 ballots will be received after the election even though they were sent on time.
The decision comes as Wisconsin officials scramble to reform a vote-tabulating system that is not designed to accommodate mail-in voting on the scale expected this year. Unlike many states that rely on a single agency, Wisconsin's decentralized system leaves election administration to dozens of county clerks and thousands of municipal officials. President Trump carried Wisconsin by 20,000 votes in 2016, presaging an anxious and potentially chaotic night for poll workers in a state that could decide the election.
U.S. District Judge William Conley on Sept. 21 ordered election officials to make a range of accommodations in light of the coronavirus pandemic: Among other things, he authorized the online delivery of mail-in or absentee ballots and pushed the Election Day deadline for mail-in ballots back six days, provided they were sent on or by Election Day. The Seventh U.S. Circuit Court of Appeals paused Conley's order on Oct. 8, citing a legal principle that judges should rarely alter election rules as the balloting nears.
The timing question is central to Monday's case and to numerous other election disputes surrounding the November election. In a 2006 Supreme Court case called Purcell v. Gonzalez, the justices said last-minute judicial amendments to voting procedures should be avoided for the good of the political process.
"Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls," Purcell reads. "As an election draws closer, that risk will increase."
Purcell has been central to the pandemic-related election cases hurtling through the courts. Much of that litigation has unfolded in battleground states, meaning the principle may be a factor in the ultimate outcome of the election.
Chief Justice John Roberts seemed to make reference to Purcell Monday, admonishing the district court for tinkering with Wisconsin's laws "in the thick of an election season." In his own opinion Monday night, Justice Brett Kavanaugh noted the Court has made this position clear half a dozen times in recent months.
Some have treated Purcell like a bright-line rule that generally forbids judges from last-minute interference with election procedures. In a recent case from South Carolina, Judge J. Harvie Wilkinson dissented when the Fourth U.S. Circuit Court of Appeals declined to stop a trial judge who suspended the state's witness signature requirement for absentee ballots. Wilkinson lamented that the court was "gumming up the works and making a hard task even harder."
"It is a challenging enough task to run an election in these trying circumstances without the uncertainty and upheaval of injunctions, stays, appeals, etc," Wilkinson wrote. "This ‘judicially created confusion' is one reason why the Supreme Court has prohibited lower courts from changing voting rules shortly before elections."
The Supreme Court ultimately reinstated South Carolina's witness signature rule.
Others, like the lawyers representing Wisconsin voters in Monday's case, say Purcell doesn't set a hard stop on judicial changes to election procedures. Rather, the principle warns that the prospect of confusion or administrative chaos might outweigh other considerations, like harm to voters. So while Purcell implies a presumption against late-breaking adjustments, it's not an absolute prohibition. That's especially true now, when the coronavirus has made in-person voting riskier.
"These are extraordinary circumstances," lawyers for the Wisconsin voters told the justices. "The world is in the midst of a once-in-a-lifetime pandemic caused by a virus that spreads most easily in the conditions in which we usually vote. As a consequence, millions of voters, at the encouragement of the state, have turned to voting by mail, even while the Postal Service is hampered by delays. Whatever the rule for ordinary circumstances, Purcell has precious little to say about the circumstances here."
Monday's case is No. 20A66 DNC v. Wisconsin State Legislature.