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Supreme Court grants request to curtail extended absentee voting in Wisconsin

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Washington — The Supreme Court on Monday blocked a lower court ruling that extended the deadline in Wisconsin for voters to submit absentee ballots, approving a request from Republicans in the state and the Republican National Committee to require ballots to be delivered or postmarked by Tuesday in order to be counted. 

The order from the high court, which divided along ideological lines, is the first related to the coronavirus pandemic, which has roiled the 2020 presidential election as governors, including Wisconsin's, issue stay-at-home orders to curb the spread of the deadly illness and asked residents to limit their social interactions.

"Extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled election day fundamentally alters the nature of the election," the court said in an unsigned opinion issued Monday evening.

Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented and said she would have left the lower court's ruling in place.

"While I do not doubt the good faith of my colleagues, the Court's order, I fear, will result in massive disenfranchisement," Ginsburg wrote. "A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court's postmark deadline."

Republicans asked the Supreme Court on Saturday to freeze a ruling from a federal judge in Madison, Wisconsin, that extended the state's deadline to return absentee ballots from April 7 to April 13 but declined to delay in-person voting. State GOP lawmakers appealed to the 7th U.S. Circuit Court of Appeals, which declined Friday to put the district court ruling on hold.

In their request to Justice Brett Kavanaugh, Republicans said the extension of absentee voting was a "deeply consequential and disruptive change."

"It will inevitably sow confusion over when voters need to submit their absentee ballot," they wrote in their filing. "A last-minute change to a voter deadline carries an increased risk that voters will not appreciate when votes actually must be cast."

Wisconsin Republicans added that the order from the district court "encourages absentee voters" to withhold their ballots until after Election Day, which "creates a fundamental unfairness that undermines the integrity of the election" as voters can evaluate exit-polling and reports about in-person voting before mailing in their ballots.

But the lower court on Friday said that results should not be released until April 13, after the deadline to turn in absentee ballots has passed. 

The Democratic National Committee urged the Supreme Court to allow the extended absentee voting, arguing it's not the lower court order that has upended the electoral status quo, but the coronavirus pandemic.

"It will be much less confusing and unfair if the district court's order — which has received substantial publicity and is in the process of being implemented by the [Wisconsin Election Commission] and election clerks throughout Wisconsin — simply remains in effect rather than being changed less than 48 hours before the election, which would lead to yet further confusion and uncertainty, as well as harm to voters who already have relied on the district court's order in planning how and when to vote," Democrats wrote in a filing to the high court.

In its opinion, the court said its decision was based on a narrow question and "should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate."

The court also noted that absentee voting has been underway for several weeks and that the state has extended the deadline for receiving absentee ballots from April 7 to April 13.

"That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count," the court said in its opinion.

But Ginsburg rejected the suggestion that the case presented a narrow question, calling it "wrong."

"The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic," she wrote. "Under the district court's order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority's stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others' safety. Or they will lose their right to vote, through no fault of their own."

"That is a matter of utmost importance — to the constitutional rights of Wisconsin's citizens, the integrity of the State's election process, and in this most extraordinary time, the health of the Nation," Ginsburg continued.

During a court hearing last week, Wisconsin Elections Commission (WEC) Administrator Meagan Wolfe said that delays from the U.S. Postal Service could cause some voters to receive their absentee ballots after Election Day. According to Wolfe, the Postal Service says First-Class Mail, which is how ballots are sent, usually takes two to three days to arrive, but can take up to seven. The deadline to request absentee ballots ended on Friday. Wolfe said roughly 5,500 voters received ballots after Election Day in the 2016 presidential primary when about 250,000 people requested absentee ballots.

Wisconsin is the only state holding in-person voting this month amid the coronavirus outbreak. Governor Tony Evers, a Democrat, issued an executive order suspending in-person voting Tuesday and postponing the election to June 9, but GOP legislative leaders swiftly challenged the order and it was blocked by the Wisconsin State Supreme Court. In addition to the presidential primary between Joe Biden and Bernie Sanders, Wisconsin ballots also include a state supreme court seat and elections for local officials around the state.

President Trump weighed in on the closely-watched Supreme Court race on Friday, tweeting his endorsement of Justice Daniel Kelly. Biden and Sanders, meanwhile, are backing Judge Jill Karofsky for the seat on the state's high court. 

Evers has urged the state legislature to make the election almost entirely vote-by-mail and extend the deadline for voting. But Wisconsin legislative leaders told Evers they did not plan to consider his proposed changes to the election and believed it should "continue as planned on Tuesday." Lawmakers took no action on his proposals when they gaveled in a special session on Saturday and adjourned the special session on Monday again without acting.

On Sunday, a group of 10 Wisconsin mayors, including the mayors of Milwaukee and Madison, sent a letter to Wisconsin Health Secretary-Designee Andrea Palm asking her to use "emergency powers" to block in-person voting on Tuesday.

"In light of the legislature's inexcusable refusal to act, you and your department now are the sole parties in the position to prevent hundreds of thousands of voters and poll workers from  potentially being exposed needlessly to this worldwide pandemic," the letter said.

Heading into election day Tuesday, Wisconsin faces a shortage of poll workers and the number of polling locations has been significantly reduced. Milwaukee, the state's largest city, will only be offering five in-person voting locations on Tuesday, compared to the usual 180.

The state has also seen a spike in the number of absentee ballot requests due to the coronavirus, which led 11 states and Puerto Rico to postpone their primaries. As of Monday morning, the WEC reported that more than 1.2 million absentee ballots were requested ahead of Tuesday's primary. About 11,000 fewer had been sent to voters and nearly 725,000 ballots have been returned.

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