Earlier this week the U.S. Supreme Court reinstated South Carolina’s witness requirement for absentee ballots, after a federal district court judge effectively rewrote election law due to the pandemic.

While the Supreme Court issued no opinion, and ordered the case to proceed to the appeals court, Justice Kavanaugh wrote a concurring opinion which was a road map to opposing such judicial action: focus on the primary responsibility of the legislature for voting rules, and the close proximity of election day with the risk of confusion from a late change.

The SCOTUS decision, which had no dissents, may signal how the Supreme Court will deal with other judicially-ordered ballot changes both before the election, and attempts to change the rules after the election as non-compliant mail-in ballots are counted.

The 7th Circuit Court of Appeals just rolled back a district court order extending the time within which absentee-ballots would be received and counted. AP reports:

A federal appeals court on Thursday blocked a decision to extend the deadline for counting absentee ballots by six days in battleground Wisconsin, in a win for Republicans who have fought attempts to expand voting across the country.

If the ruling stands, absentee ballots will have to be delivered to Wisconsin election clerks by 8 p.m. on Election Day if they are to be counted. The ruling makes it more likely that results of the presidential race in the pivotal swing state will be known within hours of poll closing.

Democrats almost certainly will appeal the decision to the U.S. Supreme Court. A spokesman and an attorney didn’t immediately respond to requests for comment.

Under state law, absentee ballots are due in local clerks’ offices by 8 p.m. on election night. But Democrats and allied groups sued to extend the deadline after the April presidential primary saw long lines, fewer polling places, a shortage of poll workers and thousands of ballots mailed days after the election. Wisconsin, like much of the rest of the country, is already seeing massive absentee voting for November and the state expects as many as 2 million people to vote absentee.

U.S. District Judge William Conley ruled last month that any ballots that arrive in clerk’s offices by Nov. 9 will be counted, as long as they are postmarked by Nov. 3. In that ruling, Conley noted the heavy absentee load and the possibility it could overwhelm election officials and the postal service.

The 7th Circuit Court judges initially upheld Conley’s ruling on Sept. 29, rejecting the Republicans’ standing to intervene. After the Wisconsin Supreme Court affirmed that standing, the same three-judge panel delivered Thursday’s ruling.

Justices Frank Easterbrook and Amy St. Eve voted to stay the order and Ilana Rovner opposed.

The Opinion (pdf.) followed Kavanaugh’s reasoning, without citing it.

The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid. See Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin’s rules after reviewing the elections code as a whole). We agree with both of those arguments, which means that a stay is appropriate under the factors discussed in Nken v. Holder, 556 U.S. 418, 434 (2009).

If Democrats appeal to the Supreme Court, it seems unlikely they will succeed. This is another in a series of decisions rolling back Democrat-demanded and lower-court-ordered changes to election laws to accommodate Democrats’ electoral strategy of promoting mail-in voting.

That strategy of heavy reliance on mail-in voting may backfire on Democrats, as they are now realizing.


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