Supreme Court refuses to extend absentee voting in Wisconsin despite pandemic
Coronavirus affects primary voting and catapults Joe Biden ahead, with voters saying they trust him over Bernie Sanders in a crisis. USA TODAY
WASHINGTON – The Supreme Court denied its support Monday for the growing consensus that voting in the midst of a pandemic may be best done by mail.
Refusing to depart from its opposition to last-minute changes that can confuse voters, the justices blocked a federal court order that voters in Wisconsin should be able to vote absentee for six days beyond Tuesday's primary election.
"Extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled election day fundamentally alters the nature of the election," the court said in an unsigned opinion.
"The court’s decision ... should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough."
The vote broke down on ideological lines, with the four liberal justices dissenting.
"The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic," Associate Justice Ruth Bader Ginsburg wrote. Under the court's decision, "either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own."
"While I do not doubt the good faith of my colleagues, the court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received."
The high court's decision was overshadowed for much of the day by events in Wisconsin, where Gov. Tony Evers ordered the primary election stopped altogether, Republicans challenged him in state court, and the state's Supreme Court reversed him.
But it gave a boost to Republicans, both in Wisconsin and nationally, who have argued the coronavirus pandemic doesn't call for increased use of voting by mail this year, including in November.
More than a dozen states have delayed their primaries or canceled in-person voting in favor of mail ballots. But Wisconsin refused to move its April 7 primary date despite the closing of many polling places and a last-minute clamor for absentee ballots. The coronavirus has infected more than 2,000 people there.
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Federal Judge William Conley criticized state officials last week for not delaying the election and said voters should be allowed to mail in absentee votes for six more days. As it stands, ballots need to be postmarked by April 7.
The Democratic presidential primary is the marquee race on the ballot, but elections also are scheduled for state Supreme Court and offices across the state, including Milwaukee mayor and Milwaukee County executive.
After a federal appeals court refused to intercede, the Republican National Committee and the state's GOP-controlled legislature asked the U.S. Supreme Court to block Conley's order from being implemented.
"Requiring a state to permit unlimited absentee voting for almost a week after election day presents significant dangers to election integrity, voter confidence and the orderly administration of an election that already has strained state resources, due to the difficult circumstances associated with COVID-19," attorney Patrick Strawbridge argued.
Democrats responded that without additional time for voters to make their choices, some who would prefer to stay indoors instead would venture out to the polls, risking their health.
"If voters are not confident their absentee ballots will be counted, this will drive more people to vote in person on election day, thereby increasing the risks of community spread through polling places in cities and towns throughout Wisconsin," attorney Marc Elias responded.
The skirmish represents a microcosm of the broader battle leading up to this fall's presidential election, in which the coronavirus could drastically affect turnout.
Democrats have used the surge in coronavirus illnesses and deaths to push for funding that would help states move toward greater absentee and mail-in voting. They believe such changes would give voters greater access and protect poll workers from COVID-19.
Republicans have pushed back on those proposals. President Donald Trump last week acknowledged that could lead to "levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”