US Supreme Court rejects extension of Wisconsin mail-in ballot deadline

Democratic National Committee v Wisconsin State Legislature 592 U.S. ____ (2020) 

Summary

On 26 October 2020, the Supreme Court of the United States dismissed an application by the Democratic National Committee (DNC) to extend Wisconsin's deadline for the receipt of mail-in ballots for the 2020 Presidential election by six days.

The DNC argued that the extended deadline was necessary due to postal delays and a surge in requests for mail-in ballots as a result of the COVID-19 pandemic.  However, in a 5:3 decision split along party lines, a majority of the Supreme Court held that the District Court should not have extended the deadline for Wisconsin voters to cast ballots by mail.  Justices Kagan, Breyer and Sotomayor dissented.

Facts

On 21 September 2020, the District Court made changes to Wisconsin’s procedures for the November election in response to the COVID-19 pandemic.  This included extending the deadline by which absentee ballots had to be returned, ordering election officials to count them as long as they were postmarked by 3 November and received by 9 November.  This was on the basis that relief from statutory deadlines for absentee voting was necessary “to avoid an untenable impingement on Wisconsin citizens’ right to vote, including the near certainty of disenfranchising tens of thousands of voters relying on the state’s absentee ballot process”.

That decision was overturned by the Court of Appeals for the Seventh Circuit, which accepted the arguments of the Wisconsin State Legislature that a federal court should not change the rules so close to an election, and that legislators, not the judiciary, should decide when a pandemic justifies changes to rules that are otherwise valid.  The DNC appealed to the Supreme Court.

Supreme court decision

Primary judgment

Justice Kavanaugh delivered the primary judgment, providing three reasons for concluding that the District Court’s injunction was unwarranted.

First, his Honour considered that the District Court changed the deadline for mail-in ballots too close to the election, in contravention of the “Purcell principle”.  This stems from the Supreme Court’s decision in Purcell v. Gonzalez 549 U. S. 1 (2006) (Purcell), which held that courts should be reluctant to change election rules during the period of time just prior to an election.  This is because doing so may confuse voters and create problems for those administering the election.

Second, his Honour stated that responsibility for addressing the health and safety of people during the COVID-19 pandemic sits with state legislatures, and not unelected federal judges.  As noted by his Honour, “federal judges do not possess special expertise or competence about how best to balance the costs and benefits of potential policy responses to the pandemic, including with respect to elections”.  Rather, this task should be left to elected officials.

Third, the District Court did not sufficiently recognise the importance of election deadlines.  His Honour quoted constitutional law Professor Richard Pildes, who somewhat prophetically wrote that “late-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.” His Honour held that, as long as a State's deadlines for the return of absentee ballots is reasonable, no federal constitutional issues are raised, noting that "a deadline is not unconstitutional merely because of voters’ own failure to take timely steps to ensure their franchise."

Justice Gorsuch, in a separate concurring judgment, reinforced Justice Kavanaugh's conclusion that state legislatures, not judges or other state officials, bear primary responsibility for setting election rules such as deadlines for the return of absentee ballots. His Honour also noted that the Constitution provides a second layer of protection, allowing Congress to alter state rules relating to elections if deemed necessary. While His Honour recognised the serious challenges involved in conducting a national election amid a pandemic, "none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted".

Dissenting judgment

Justice Kagan in dissent held that not extending the deadline for mail-in ballots would have the effect of disenfranchising large numbers of voters and therefore constituted an infringement on the constitutionally-enshrined right to vote.

Her Honour stated that in Purcell, the Court considered a number of factors that must be weighed when assessing the appropriateness of injunctive relief. Among those factors was the potential for a court order, especially close to election day, to result in voter confusion and consequent incentive to remain away from the polls.  According to her Honour, this articulated a caution against actions that would dissuade voters, not a rule  to avoid making orders close to an election.  In this case, it was hard to see how extending the ballot deadline would confuse citizens about how to vote because, at worst, voters not informed of the new deadline would mail their ballot a few days earlier than required.

In addition, Justice Kagan claimed that, despite not objecting to any of the District Court's factual findings as to the risks to voters posed by the pandemic, the concurrence "failed to give those findings the respect they are due". Instead, Justice Kavanaugh's opinion erroneously concluded that going to the polls was "reasonably safe" for Wisconsin's citizens, and failed to properly account for the unusual backlogs and delays in postal delivery. Her Honour argued that as many as 100,000 citizens would not have their votes counted as a result of not extending the deadline, and stated that “[o]n the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.”

In response to Justice Kavanaugh's opinion that it was for state legislatures to decide on electoral procedures, Her Honour argued that this was not the case when those procedures infringe the constitutionally enshrined right to vote. In addition, her Honour noted that the Wisconsin legislature had not met since April 2020 and had not therefore considered whether recent COVID conditions demanded changes to the state's election rules.

In her Honour's view, "if there is one area where deference to legislators should not shade into acquiescence, it is election law. For in that field politicians’ incentives often conflict with voters’ interests — that is, whenever suppressing votes benefits the lawmakers who make the rules."

Commentary

As Justice Kagan's dissenting judgment notes, laws that restrict the ability of eligible voters to cast their votes amount to disenfranchisement. Unfortunately, the 2020 Presidential election saw such laws implemented across the United States, with onerous voter ID and registration requirements, limits on the number of ballot drop boxes, unusual delays in postal delivery and, in Florida, laws prohibiting otherwise-eligible voters from voting because of their inability to pay off all fines relating to prior convictions. Voter suppression tactics disproportionately disenfranchise communities of colour, with research from the ACLU indicating that people of colour in Wisconsin would be at a higher risk of not having their vote counted than white people.

While it is not clear how many citizens did not have their vote counted as a result of the Supreme Court’s refusal to uphold the deadline extension, Democratic candidate Joe Biden nonetheless managed to flip the state of Wisconsin in the 2020 election, winning its 10 electoral votes.  Perhaps unsurprisingly, the Trump campaign has since announced that it will request a formal recount, citing unspecified “irregularities” during the vote – meaning this may not be the last the courts hear of the vote in Wisconsin.

In contrast to this decision, the Supreme Court in Republican Party of Pennsylvania v Boockvar upheld an extension of Pennsylvania’s deadline for mail-in ballots for the presidential election, which had added three days for ballots to be received as long as they were mailed by election day. This apparent inconsistency was addressed by Chief Justice Roberts, who explained that while the Pennsylvania applications concerned the authority of state courts to apply their own constitutions to election regulations, this case involved federal intrusion on state law-making processes.  His Honour stated that “[d]ifferent 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.”

The full text of the decision can be found here.

Mark Giuseppini is a Solicitor at King & Wood Mallesons.