The Supreme Court on Oct. 26 refused to reinstate a lower court order that called for counting mailed ballots in Wisconsin even if they are received up to six days after Election Day.
The 5-3 ruling is a victory for Republicans, who argued that there are plenty of ways to cast a vote by Nov. 3 and that a court should not modify a rule adopted by a state’s elected representatives so close to an election.
An appeals court had already put the lower court order on hold.
The court issued the order just before the Senate voted to confirm Amy Coney Barrett to the Supreme Court.
The court last week was deadlocked on a challenge to the absentee ballot deadline in Pennsylvania. In that case, Chief Justice John Roberts voted with the three liberals on the bench. The 4-4 tie left the deadline in place.
“Different 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,” Roberts wrote in the Wisconsin opinion (pdf).
The three liberal justices dissented from the order, concurring with the Democratic National Committee, which argued that the extension was needed to address the flood of mail ballots and challenges posed by the pandemic of the Chinese Communist Party (CCP) virus, commonly known as the coronavirus.
“As the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters,” Justice Elena Kagan wrote in a dissent.
Kagan noted that Wisconsin allowed the six-day extension for primary voting in April, when roughly 80,000 ballots were received after the day of the primary election.
Justice Neil Gorsuch acknowledged complications that the pandemic has added to voting but defended the court’s action.
“No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted,” Gorsuch wrote.
Wisconsin Democratic Party Chairman Ben Wikler responded to the ruling by pledging that Democrats would be “dialing up a huge voter education campaign” to prod roughly 360,000 people who hadn’t yet returned absentee ballots to hand-deliver them by 8 p.m. on Election Day, or to vote in person.
State Republican Party Chairman Andrew Hitt praised the ruling.
“Absentee voting in Wisconsin is extremely easy and hundreds of thousands of people have done it already—last-minute attempts to change election laws only cause more voter confusion and erode the integrity of our elections,” he said in a statement.
The Associated Press contributed to this report.