A split U.S. Supreme Court ruled late Monday that absentee ballots must be postmarked by Tuesday in order to be counted in Wisconsin’s spring election, adding yet another legal twist as voters decide the presidential primary, a Supreme Court race and hundreds of local offices.
The decision came just hours after the Wisconsin Supreme Court overturned Gov. Tony Evers’ attempt to delay the election until June.
A federal district judge and the 7th Circuit Court of Appeals had signed off on allowing the record number of absentee ballots requested for the spring election amid the COVID-19 pandemic to be counted so long as they were received by 4 p.m. April 13.
The Supreme Court’s 5-4 ruling keeps the April 13 deadline for ballots to be received. But it instead requires them to be postmarked by Election Day or hand-delivered to local clerks by 8 p.m. Tuesday.
Typically, absentee ballots must be received by 8 p.m. on Election Day to count.
The state and national Republican parties appealed the lower court rulings on the deadline, and Wisconsin Chair Andrew Hitt praised the ruling, saying changing or circumventing laws in a time of crisis “can quickly lead us down a slippery slope that erodes our democracy.”
“The confusion and time wasted as a result of these multiple lawsuits when we should have all been solely focused on preparing for a challenging election is truly sad and unfortunate,” Hitt said.
The state and national Dem parties filed one of the original federal suits seeking changes to the April election amid the health emergency. Those pushing for changes argued they were needed to avoid forcing voters to show up at the polls in person, risking exposing themselves or poll workers to the disease.
“The Supreme Court of the United States legislated from the bench today, following Trump team’s orders and writing a new election law to disenfranchise untold thousands of Wisconsin voters and consign an unknown number of Wisconsinites to their deaths,” said state Dem Chair Ben Wikler.
The 5-4 conservative majority on the U.S. Supreme Court noted the plaintiff hadn’t asked a district court judge to allow absentee ballots mailed after Election Day to still count. What’s more, it found U.S. Judge Willam Conley had erred in changing the rules of the election so close to the beginning of in-person voting.
The majority ruled extending the date ballots may be cast an additional six days “after the scheduled election day fundamentally alters the nature of the election.”
“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the majority ruled.
Wisconsin elected officials in recent weeks have encouraged voters worried about going to the polls amid the COVID-19 pandemic to request absentee ballots. That has produced a record 1.3 million absentee ballot requests, as of Monday morning, with 56.8 percent of them returned.
At the same time, 11,090 hadn’t yet been mailed.
The majority argued those voters who had waited until late in the process to request an absentee ballot were no different than those who did the same in a typical election, arguing they will usually receive their ballots the day before or day of the election.
Justice Ruth Badger Ginsburg, writing for the liberal justices who dissented, wrote that thinking “boggles the mind.” Ginsburg mocked the idea of voters being required to postmark ballots by Tuesday if they hadn’t even received them, calling it “a novel requirement.” She feared the court’s order would lead to “massive disenfranchisement.”
“A voter cannot deliver for postmarking a ballot she has not received,” she wrote.
Read the ruling here.