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Supreme Court Upholds Wisconsin Law Requiring Receipt of Mail-In Ballots By Election Day

Supreme Court Upholds Wisconsin Law Requiring Receipt of Mail-In Ballots By Election Day

Refuses to vacate 7th Circuit stay of District Court injunction extending the deadline, with the three liberal Justices dissenting.

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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notamemberofanyorganizedpolicital | October 26, 2020 at 8:25 pm

Now on to clean the clock of PA – no matter how, it must done.

MattLauersNob | October 26, 2020 at 8:36 pm

What the PA supreme court did was against PA law. It has to be revisited now we have a real jurist on the USS.

    Whether it was against PA law is not the USA Supreme Court’s business, or that of any federal court. It only becomes the federal judiciary’s business if it was against federal law.

      clayusmcret in reply to Milhouse. | October 26, 2020 at 10:59 pm

      It was against federal law. The US Constitution says legislatures control the election, not state judges.

      counsel in reply to Milhouse. | October 27, 2020 at 5:50 am

      Assuming you have been admitted to the Bar of the United States Supreme Court, you offer argument that the Court lacks jurisdiction, in a filing, before the Court. The Court often accepts Amicus Briefs.

      I’m sure your amicus brief will go a long way to setting the Court straight.

      It is fortunate that this humble blog has such a great constitutional scholar. Can you give us some references to the legal articles, briefs you have filed or books you have written?

      tphillip in reply to Milhouse. | October 27, 2020 at 8:58 am


      How quickly how “experts” forget Florida in 2000.

      I’m sure your dissertation can cover that similar incident as well.

        countrylaw in reply to tphillip. | October 27, 2020 at 9:51 am

        If John Roberts had been Chief Justice in 2000 instead of William Rehnquist the outcome of that case could have been different. Roberts is a grant fan of using procedural legerdemain to sidestep important judicial issues.

        The irony is that Roberts, a Bush nominee would then never have become Chief Justice.

      Milhous, I really have to wonder why you periodically go off on these ‘trying to excuse leftist power plays’ tangents.

MattLauersNob | October 26, 2020 at 8:36 pm


Had Roberts the intrusive powers that this court has, he wouldn’t be trying to justify himself meddling, which is not a separate issue but a singular one. Who does that but someone with a lot of insecurity and a bad case of overcompensation.

Justice Roberts is now officially anti-Trump and rooting for the doctor to kill the baby. That’s the official consequence of the PA scandal.

Every sin is accompanied by a labyrinth of unintended consequences.

How does Roberts square the circle on these two votes?

PA: late ballots, not postmarked, and against the law? Ok
WI: late ballots, regardless of postmark? Not Ok

He isn’t even pretending to have any intellectual rigor or consistency to his votes. He’s literally flipping a coin.

Thanks GB for this peach of a pick.

    drednicolson in reply to PrincetonAl. | October 26, 2020 at 9:05 pm

    There isn’t as much “skin” at stake in WI, and with Barrett coming in it’s probably at attempt to save face after the nakedly partisan decision over PA.

    Oregon Mike in reply to PrincetonAl. | October 26, 2020 at 9:50 pm

    When I was growing up in the 1950s and 1960s, I used to see all these highway billboards stating “Impeach Earl Warren.” I asked my Dad about it, and he said, “Well, he hasn’t done anything wrong ….”

    Now, I’m beginning to think the billboards had a point.

    Milhouse in reply to PrincetonAl. | October 26, 2020 at 10:51 pm

    He said explicitly how he justified it — in PA’s case it was a state court’s decision and the federal court should not interfere. In WI’s case it was a federal court interfering, which is exactly what he said in the PA case that they shouldn’t do!

    yes, we’ll be cleaning up after the Bushes for some time.

Gettysburg is in PA. Just sayin’.

Fsuci says we are perfectly safe voting in masks. It’s all about the science until science is inconvenient.
When Trump wins most of this lockdown and mask requirements goes away.

    rabidfox in reply to GKD32. | October 27, 2020 at 2:34 am

    Well, the lockdowns and mask mandates are state/local decisions. What Trump might do, however, is cut away the justifications for this nonsense.

      randian in reply to rabidfox. | October 27, 2020 at 4:20 am

      He can’t cut way the justifications until the gets rid of Fauci and Redfield. If he does the media will scream loudly about how he will be killing hundreds of thousands of people.

      And a lot of the lockdowns are nakedly state decisions based on a desire to try to get electoral benefit out of it.

Christopher B | October 26, 2020 at 9:42 pm

Roberts is a bit of a fool if he thinks this makes much difference to Trump’s reelection. If he holds all the other states he won in 2016, he only needs WI to get to 270 EVs.

Roberts is a politician, not a true jurist, which is why he is the Chief Justice.

The problem with his explanation of his differing opinion in the WI and PA cases, is summed up in the concurring opinion of Justice Gorsuch. Congress exercised its authority under the US Constitution to set conditions on federal elections when it established an official election day. Election day, for the election of federal officials, is set by the US Congress as the second Tuesday in November. The states do not have the authority to change that date. Officially the election ENDS by 2359 hrs on that Tuesday. Not a day later, two days later, a week later, a month later, etc. What PA did was to change election day to a few days later for “mail-in” ballots, even if those ballots were not in the hands of the supervisor of elections by the end of election day. Even worse, PA seemingly allows these ballots to be delivered even from sources other than the USPS, as postmarks are not required. So, the federal courts did have jurisdiction in the matter of the the changes conferred by the Supreme Court of PA on the official date for election day. While Roberts may actually believe what he said, if so, this does not show much judicial acumen for a justice of the SCOTUS.

Must be he’s convinced that the Dems have Wisconsin in the bag. Pa might have been close with the cheating in Philly.

George_Kaplan | October 27, 2020 at 3:21 am

What happens if Pennsylvania deliberately debase the results by intermingling ballots with bad signatures, missing postmarks, or late arrivals, and SCOTUS provides an expedited ruling either before or just after November 3rd that states such ballots cannot and must be included in the count?

According to articles elsewhere Democrats are beating Republicans in postal returns at a rate of roughly 5:1. Letting invalid ballots be counted means aiding Democrats – and Pennsylvania’s Supreme Court leans heavily Democrat, but a SCOTUS ruling that insists only valid ballots be counted will be seen as a pro-Republican and thus biasedpoliticalpartisan ruling.

So I am going to propose a theory about Justice Roberts.

Roberts is fully aware that the CT has made some decisions that make many of us wonder about their motives. He wants the CT to be respected v derided as an institution. He wants larger votes; 6/3 v 5/4 so that decisions appear to have more support within the CT. He believes that 5/4 decisions appear controversial to the general public. He is the Chief Justice, every action or inaction during his tenure will be attributed to the ‘Roberts CT’.

    fast182 in reply to CommoChief. | October 27, 2020 at 10:38 am

    Roberts vote on PA made it a 4-4 tie that looks like a cowardly punt on a matter of critical importance. Wouldn’t a 5-3 decision been less controversial?

      CommoChief in reply to fast182. | October 27, 2020 at 11:54 am

      As a legal matter the 4/4 made no ‘decision’; as a consequence it left in place the previous ruling. So the r could and have refiled when there was a 9th Justice.

Continued from above:
In many cases he has used his ability as CJ to assign the opinion to ‘limit the damage’. He can only do so if in the majority. So he votes to create a majority, trading off his vote for influence against excess by the majority opinion.

SCOTUS now has a 9th member. That means the base split in ideology is, IMO: 5 for restraint/textual/original view, 3 for expanded/living view, and the Chief Justice as the remaining member.

Worst case he continues his history of joining the majority to retain influence on the majority opinion. Best case he joins the majority because now he can do so with larger 6/3 supported decisions v the more controversial 5/4 decisions.

I am trying to convince myself, not sure I believe my theory. How about you guys?

Gee, it’s like these laws we pass through the state legislature and get signed by the state executive mean something. Whodathunk.

with the three of the four liberal Justices dissenting

If you allow at least a month to apply, receive and mail an absentee vote, why would the state need to allow extra time after the date of the election?

The US received approx 390,000,000 packages per day in 2019. How difficult would it be for the USPS to handle the additional absentee vote volume?

    bhwms in reply to Davod1. | October 27, 2020 at 12:34 pm

    In the best of circumstances, IMHO, the USPS is incompetent. I’ve had packages returned to Amazon because they couldn’t find my address with one attempt, when I get mail every day. I’ve had first class mail take 9 days to get from one side of my small city to the other side – it should be delivered at most 2 business days later. I’ve had them excuse it by claiming that someone dumped periodicals on top of first class mail before it was sorted, only to have the same thing happen the next month. I had a 2 day Priority package sit at the local distribution center for 2 weeks. How is all that possible?

    I don’t think the problems are with the carriers. I think the problems are with upper management with their fiscal mis-management, and with local supervision/union shop stewards who don’t train for quality, but instead look for ways to antagonize each other. Add that to a ton of stupid and outdated rules.

    Having said that, with all the problems I know they have, it is amazing they are able to deliver as much mail as they do at all.

      Re-read the Gorsuch comment. You don’t have to trust the post office with your ballot. They’re due by election day, period, according to Wisconsin state law.

      (6) The ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.

        I agree. It’s up to you. If I was going to mail my ballot here, I would allow 10 days.

        But voting in person is much more secure and guaranteed, even if I have to wait in line for hours, I will do it. Last time I had to wait in a huge line it was November 2004 for Reagan – over 5 hours.

Justice Kagan self-admittedly sees bogeymen everywhere.
Good to know.