Liberal groups and Democrats from Wisconsin have asked the Supreme Court in a series of emergency applications to reinstate pandemic-related changes to election rules, including extending the deadline for the receipt of absentee ballots six days beyond Election Day.
While a federal district court judge had ordered these changes, they were stayed by an appeals court.
Wisconsin is an important battleground state that President Donald Trump, a Republican, narrowly won in 2016. In that election, Trump won 47.2 percent of the state’s popular vote, beating Democrat Hillary Clinton, who won 46.5 percent. Wisconsin has 10 of the 270 electoral votes needed to win the presidency.
The Supreme Court bench has only eight members instead of the usual nine because of the death of Justice Ruth Bader Ginsburg on Sept. 18. Confirmation hearings in the Senate Judiciary Committee for Judge Amy Coney Barrett of the 7th Circuit Court of Appeals, whom President Donald Trump nominated to succeed her, wrapped up this week. The committee is scheduled to vote on the nomination on Oct. 22.
The emergency applications, which are opposed by the state legislature and Republican leaders, are in the hands of Justice Brett Kavanaugh, who may dispose of them by himself or refer them to the full court.
Citing the socially disruptive effect of the CCP virus, which causes the disease COVID-19, U.S. District Judge William Conley, who was appointed by then-President Barack Obama, ordered Sept. 21 that election officials accept absentee ballots so long as they are postmarked by Election Day and received within six days after that.
Conley also suspended a law requiring local election officials to reside in the county where they work and ordered the state’s election commission to provide electronic delivery of mail-in ballots for voters who fail to receive their ballots in the mail in time.
The 7th Circuit stayed Conley’s order Oct. 8 by a vote of 2 to 1, faulting Conley’s reasoning.
“The district judge also assumed that the design of adjustments during a pandemic is a judicial task,” which is “doubtful.” The Supreme Court “has held that the design of electoral procedures is a legislative task.”
“Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing,” the majority wrote.
“Deciding how best to cope with difficulties caused by disease is principally a task for the elected branches of government.”
The dissenting judge, Ilana Rovner, argued that the voting rules should be loosened because in the United States, “a beacon of liberty founded on the right of the people to rule themselves, no citizen should have to choose between her health and her right to vote.”
Under the panel’s stay, “many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.”
Three Wisconsin voters, two groups, Black Leaders Organizing for Communities, and Disability Rights Wisconsin, and the Democratic National Committee filed requests with the Supreme Court asking it to stay the 7th Circuit’s ruling.
In the main application filed with the high court Oct. 13, cited as Swenson v. Bostelmann, the petitioners argue that Conley’s order protected the right of Wisconsin voters.
Voters are unlikely to be confused if Conley’s ruling is restored, they say in a brief.
“The district court’s extension of the ballot receipt deadline cannot cause voter confusion or disenfranchisement because it has no effect on the deadlines applicable to voters—the district court found as a factual matter that the ballots of a substantial number of voters who follow all of Wisconsin’s rules will arrive after the current receipt deadline because of conditions caused by the pandemic, and the district court’s relief will allow timely cast ballots slowed down by these substantial pandemic-related delays to be counted.”
In the Swenson application, petitioners argue that Supreme Court precedent doesn’t require “absolute deference to the Legislature on matters of election administration.”
In papers filed with the Supreme Court on Oct. 14, the Democratic National Committee and Wisconsin Democrats argue the 7th Circuit’s order should be put on hold because Wisconsin is now a “red zone” for COVID-19, with “high levels of community transmission” in half of its counties, Amy Howe writes at SCOTUSblog.
Separately, a group of Wisconsin voters filed a complaint with the Wisconsin Election Commission against an activist group funded by Facebook founder Mark Zuckerberg, claiming that election-assistance grants it gave to Democrat-dominated cities violate state law and attempt to unfairly influence the outcome of the November election, The Epoch Times reported last month.
The voters say the grants issued by the Center for Tech and Civic Life, a left-leaning election reform nonprofit based in Chicago, favor Democrats because they went to the electoral apparatus in five Wisconsin cities—Green Bay, Kenosha, Madison, Milwaukee, and Racine—which, past data show, vote overwhelmingly for Democrats.