The United States Supreme Court has upheld Wisconsin law requiring that absentee and mail-in ballots be received by Election Day. The Court rejected lower court attempts to extend the deadline for receive. The decision came in an Order denying a motion to vacate a prior 7th Circuit stay of lower court injunction.

The Order with all dissenting and concurring opinions is here.

Chief Justice Roberts, trying to distinguish his failure in the Pennsylvania case, wrote in concurrence:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.

Justice Gorsuch, joined by Kavanaugh, mocked the argument that the 6-day extension was necessary on the facts:

Why did the district court seek to scuttle such a long-set-tled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commis-sion decided to mail registered voters an absentee ballot ap-plication and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September. Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain poll-ing places on election day. Never mind that those unable to vote on election day have still other options in Wisconsin, like voting in-person during a 2-week voting period before election day. And never mind that the court itself found the pandemic posed an insufficient threat to the health and safety of voters to justify revamping the State’s in-person election procedures.

So it’s indisputable that Wisconsin has made considerable efforts to accommodate early voting and respond to COVID. The district court’s only possible complaint is that the State hasn’t done enough. But how much is enough?

Gorsuch also rejected the extension on constitutional grounds:

The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.

Kavanaugh wrote his own concurring opinion:

In sum, the District Court’s injunction was unwarranted for three alternative and independent reasons: The District Court changed the state election laws too close to the elec-tion. It misapprehended the limited role of federal courts in COVID–19 cases. And it did not sufficiently appreciate the significance of election deadlines.

Kagan wrote the dissent, joined by Breyer and Sotomayor:

I respectfully dissent because the Court’s decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.

* * *

The facts, as found by the district court, are clear: Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day. Without the district court’s order, they must opt between “brav[ing] the polls,” with all the risk that entails, and “los[ing] their right to vote.” Repub-lican National Committee, 589 U. S., at ___ (Ginsburg, J., dissenting) (slip op., at 6). The voters of Wisconsin deserve a better choice.


From a reader: Now that we have 9 justices (thank God) can the 4-4 Robert’s “failure” be reviewed by the SC?

Answer: Yes, they filed on Friday, asking for an expedited ruling on the merits (the prior ruling was on a request for an emergency injunction). I wouldn’t get your hopes up, however, given the timing.


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