In ‘ominous’ decision for democracy, Supreme Court rejects Wisconsin’s absentee ballot appeal 

WASHINGTON, DC - OCTOBER 08: U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 08, 2018 in Washington, DC. Kavanaugh was confirmed in the Senate 50-48 after a contentious process that included several women accusing Kavanaugh of sexual assault. Kavanaugh has denied the allegations. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - OCTOBER 08: U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 08, 2018 in Washington, DC. Kavanaugh was confirmed in the Senate 50-48 after a contentious process that included several women accusing Kavanaugh of sexual assault. Kavanaugh has denied the allegations. (Photo by Chip Somodevilla/Getty Images)

On Monday evening, just minutes before President Donald Trump held a Rose Garden ceremony to swear in Supreme Court Justice Amy Coney Barrett, the Court rejected an appeal to extend the deadline for counting mail-in ballots in Wisconsin. 

Ballots that are mailed before Election Day but arrive after Nov. 3 will not count, under the conservative majority’s 5-3 ruling. That’s a reversal from April, when the Court allowed election officials to count 79,054 ballots — or about 7% of all absentee ballots cast — that were postmarked by Election Day on April 7 but received between April 7 and the Court-extended deadline of April 13.

“People who follow the law to the letter will be disenfranchised. And neither the Seventh Circuit nor SCOTUS sees any problem at all,” Jeff Mandell, one of the attorneys who brought the appeal, stated.

“This happened to thousands of voters in Wisconsin in April, which is why we asked a federal district court to extend the ballot receipt deadline from Nov. 3 to Nov. 9,” concurred attorney Douglas Poland, Mandell’s partner. “The district court agreed after an evidentiary hearing, but SCOTUS took it away.”

Voting-rights advocates called the decision “ominous,” especially a concurring opinion by Justice Brett Kavanaugh citing Bush v. Gore, the decision in which the Court shut down the vote count in Florida during the 2000 election, effectively handing the presidency to George W. Bush. 

Echoing Trump, who has repeatedly stated that the election must be resolved on Election Day (although Wisconsin, among other states, never certifies official results on Election Day) Kavanaugh defended the disqualification of absentee ballots that are mailed according to the rules by claiming that “most states” want a quick resolution to the election: “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” Kavanaugh wrote. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

The Wisconsin Elections Commission noted in a report on the April 7 election that absentee voting has reached unprecedented levels in 2020 during the pandemic: “At a local level, the extraordinary volume placed enormous stress on election officials, elections systems, and the United States Postal Service.”

In April, accommodating the difficulty in managing all of those ballots required extra time.

Kavanaugh defends the power of state legislatures to set election rules against federal district courts that “swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent.”

But the part of Kavanaugh’s opinion that drew the most notice is a footnote in which he cited Chief Justice William Rehnquist’s minority opinion in Bush v. Gore as if it were precedent. As Rhenquist “persuasively explained in Bush v. Gore,” Kavanaugh wrote, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

Only three justices joined that opinion, which gives the Supreme Court extraordinary power over elections.

“The confirmation of Amy Coney Barrett almost exactly coinciding with a Supreme Court decision that failed to side with expanding voting rights,” Democratic Party chair Ben Wikler tweeted, “is a perfect encapsulation of the GOP’s view of the courts: as a weapon against democracy.”

Wisconsin voters can request an absentee ballot until October 29, 2020. Ballots must be received at election offices, not just postmarked, by Election Day in order to be counted. Voting-rights groups are encouraging voters to return completed absentee ballots to municipal clerks’ offices in person and at their polling place using the curbside voting option. For more information on voting in the Nov. 3 election, go to  VOTE411.org.

Correction: an earlier version of this article mistakenly identified the Supreme Court case discussed here as Gear v. Wisconsin State Legislature. It was DNC v. Wisconsin State Legislature. We regret the error.

Ruth Conniff
Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.