SCOTUS Rejects VBM Extension in WI

In a 5-3 decision, the U.S. Supreme Court declined to reinstate the Wisconsin absentee ballot deadline extension ordered by a lower court earlier this year and kept the deadline established by Wisconsin law in place. As a result, absentee ballots must be received by election day to be counted. This is another victory for the integrity of November's election.

Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh all penned concurring opinions accompanying the Court's decision. Chief Justice Roberts wrote:

In this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws. Because I believe this intervention was improper, I agree with the decision of the Seventh Circuit to stay the injunction pending appeal. I write separately to note that this case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. 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.

Justice Gorsuch (joined by Justice Kavanaugh) wrote:

Our oath to uphold the Constitution is tested by hard times, not easy ones. And succumbing to the temptation to sidestep the usual constitutional rules is never costless. It does damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures, for the more we assume their duties the less incentive they have to discharge them. Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral outcomes. 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.

Justice Kavanaugh cited 3 separate reasons for the ruling:

First, the District Court changed Wisconsin’s election rules too close to the election, in contravention of this Court’s precedents. . . 

Second, even apart from the late timing, the District Court misapprehended the limited role of the federal courts in COVID-19 cases. . . 

Third, the District Court did not sufficiently appreciate the significance of election deadlines.

With only one week left until Election Day, there are still several election cases pending, including before the Supreme Court. However, Democrats are taking issue with the idea of newly-sworn in Justice Amy Coney Barrett participating in cases surrounding the election:

A Pennsylvania county is asking newly sworn-in Supreme Court Justice Amy Coney Barrett to recuse herself from a controversial case weighing whether or not to grant an extension for counting mail-in ballots after Election Day.

The Luzerne County Board of Elections, in filing the motion on Tuesday, wrote specifically that President Trump's rhetoric surrounding Barrett's nomination and her swift confirmation to the Supreme Court just a week before the presidential elections are worrisome when pivotal rulings in voting issues could affect the outcome of the race. 

In that case, Republicans have asked the Court to weigh in Pennsylvania's mail-in ballot deadline extension on the merits of the case. Prior to Justice Barrett's confirmation, the Court declined to put a stay on the extension in a 4-4 decision.

There is no precedent for Supreme Court justices recusing from cases involving the president who nominated them.  Indeed, it is worth remembering that Justice Kagan actually worked for then-Senator Biden at the Senate Judiciary Committee and worked on ACA litigation strategy in the Obama Justice Department.  Correctly, no one is suggesting that she recuse herself from ACA cases or any cases involving the presidential election, but the reasons for her recusal would be stronger than Justice Barrett’s.