Supreme Court rules Wisconsin mail-in ballots must be received by Nov. 3

Patrick Marley
| Milwaukee Journal Sentinel

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Supreme Court opens new term, honors Ginsburg

The Supreme Court began its new term Monday with a remembrance of “a dear friend and a treasured colleague,” the late Justice Ruth Bader Ginsburg. (Oct. 5)

MADISON – The Supreme Court upheld Wisconsin’s voting laws Monday, rejecting an effort to require the counting of absentee ballots that are sent back to election officials on or just before Election Day.   

The court’s 5-3 ruling means that absentee ballots will be counted only if they are in the hands of municipal clerks by the time polls close Nov. 3. 

Democrats, their allies and nonpartisan groups argued the state law requiring absentee ballots to be returned by Election Day should be loosened because of the coronavirus pandemic and a slowing of mail. They wanted ballots that are postmarked on or before Election Day to be counted. 

Republicans fought the rules, arguing the courts shouldn’t change election rules even in the face of a pandemic that is keeping many people in their homes.

U.S. District Judge William Conley in Madison agreed last month with those who sued, but a panel of the U.S. Court of Appeals for the 7th Circuit in Chicago reversed Conley’s decision in a 2-1 ruling this month.

The high court, which is shorthanded because of the recent death of Associate Justice Ruth Bader Ginsburg, upheld the appeals panel’s ruling Monday. The court’s three liberals — Associate Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — dissented.

The decision is the end of the road for the case and means voters will have to adhere to long-standing rules in an election that is expected to have a record level of mail voting. 

Conley’s ruling also would have given people more time to use an online portal to register to vote and allowed poll workers to serve in any community, not just ones in the counties where they reside. But the Supreme Court, like the appeals panel, rejected those changes to election rules as well. 

Democrats had hoped the justices might have seen the case differently because they allowed absentee ballots that were postmarked by Election Day to be counted in Wisconsin’s April election for state Supreme Court. 

Hundreds of election lawsuits have been filed around the country, mostly because of the pandemic and the expansion of mail voting. Cases are headed to the Supreme Court over how absentee ballots are distributed, delivered and counted as President Donald Trump rails against the practice.

Both sides were awaiting the decision anxiously because Wisconsin is a battleground in the presidential campaign. Trump won the state narrowly in 2016 but has consistently trailed Democratic nominee Joe Biden in polls this fall. 

In this month’s ruling, the majority on the appeals panel concluded it was too close to the election to change the voting rules. Changes to election rules near an election should be made only in emergency circumstances, but for this election “it is not possible to describe COVID-19 as a last-minute event,” the judges in the majority wrote.

The dissenter in that case, Judge Ilana Rovner, maintained that extending deadlines was reasonable for a once-in-a-century pandemic. 

“Good luck and G-d bless, Wisconsin. You are going to need it,” she wrote, following a tradition among some Jews of not spelling out a holy name.

The case started when several lawsuits were filed this spring over how the April election would be conducted just as the pandemic emerged. TheSupreme Court approved of changing the rules for absentee ballots for that election so that more of them would be counted. 

About 80,000 additional votes were counted for that election because absentee ballots postmarked by election day were counted, rather than just those received by election day. 

Richard Wolf of USA TODAY contributed to this report.

Contact Patrick Marley at Follow him on Twitter at @patrickdmarley.


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