In ‘Ominous’ Decision For Democracy, Supreme Court Rejects Wisconsin’s Absentee Ballot Appeal

From the Wisconsin Examiner:

By Ruth Conniff
October 27, 2020

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 in Gear v. Wisconsin State Legislature. 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.”

The Supreme Court case was brought by The League of Women Voters of Wisconsin, the Wisconsin Alliance for Retired Americans, and eight individual Wisconsin voters, with representation from Fair Elections Center and Stafford Rosenbaum LLP.

In addition to extending the deadline for counting absentee ballots, the plaintiffs were seeking a back-up option for voters who do not receive their requested absentee ballots in the mail, including additional ways for voters to receive a mail-in absentee ballot, including online access at myvote.wi.gov and email delivery.

“Today’s decision is deeply disappointing. Online ballot delivery has existed in Wisconsin for years—we weren’t asking for anything new or burdensome,” said Debra Cronmiller, executive director of the League of Women Voters of Wisconsin. “We’re talking about responsible, proactive voters who are seeking to protect themselves and others from virus transmission by voting at home. To leave these voters without vote-at-home options when their timely requested ballots fail to arrive through no fault of their own is an egregious act of neglect from our government.”

“It is shameful that the court failed to provide a fail-safe method of voting for Wisconsin seniors who did not receive the mail ballot they requested and who do not wish to vote in person due to the risk of contracting COVID-19,” said Gary Mitchell, president of the Wisconsin Alliance for Retired Americans. “No one should be forced to choose between casting a ballot and putting their health at risk.”

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.

This story was originally published by the Wisconsin Examiner. For more stories from the Wisconsin Examiner, visit WisconsinExaminer.com.