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Supreme Court quashes Wisconsin court order that said absentee ballots could be counted up to 6 days after Election Day

Legal expert on ballot ruling & Justice Barrett
Supreme Court rules on Wisconsin ballots, as it adds Amy Coney Barrett to bench 13:38

The Supreme Court on Monday night voted against reinstating an order by a Wisconsin federal court judge that said absentee ballots could be counted if received within six days after the election as long as they were postmarked by Election Day. The final vote was 5-3.

The ruling came down as the Senate voted to confirm Amy Coney Barrett as the newest justice to the Supreme Court, solidifying the conservative majority to 6-3. 

Wisconsin is one of about 30 states that require absentee ballots be received by Election Day to be counted. A federal district judge previously concluded the deadline violated Wisconsin voters' rights in light of the coronavirus pandemic, and agreed to extend it by six days, until November 9.

A Chicago-based federal appeals court then blocked the judge's order, saying it violated Supreme Court precedent by changing state election rules too close to an election and usurping state legislative authority to change the state's rules.

An election worker drops a voter's completed ballot into a ballot box inside City Hall on the first day of in-person early voting for the November 3rd elections in Kenosha, Wisconsin, on October 20, 2020. KAMIL KRZACZYNSKI/AFP via Getty Images

In Monday's order, a majority of the justices agreed with the appeals court, with John Roberts, Neil Gorsuch and Brett Kavanaugh writing separately to emphasize that federal courts should not be making last-minute changes to state election rules.

Monday's decision is in line with previous Supreme Court orders during the pandemic. The conservatives generally reject efforts by lower court judges to change election rules or extend deadlines in the run up to the election, saying such decisions are for state election officials and legislatures.

The Wisconsin decision comes one week after the Supreme Court allowed Pennsylvania to accept mail ballots that are received up to three days after Election Day. In that case, Roberts sided with the liberal justices to keep the extension in place.

"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," Roberts wrote in a concurring opinion Monday. "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."

Kavanaugh said the federal judge changed the rules too close to Election Day and wrote in his concurring opinion that the Supreme Court has "repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to the election." 

Justice Elena Kagan wrote the dissent, joined by Justices Stephen Breyer and Sonia Sotomayor, arguing the Court's decision will disenfranchise large numbers of voters in the midst of a pandemic. This is also a familiar position in these cases — the liberal justices generally agree that federal judges should be free to impose changes to state election rules if they believe it's necessary to protect the fundamental right to vote.

Democrats and other challengers argued that the extended deadline was necessary due to the massive increase in absentee voting during the COVID-19 pandemic. They also argued even if voters follow the state's deadlines for requesting a ballot, they still may not be able to return it by the time polls close on Election Day. Republicans opposed the extension, arguing that there were plenty of options for voters to cast ballots ahead of Election Day. 

Ahead of Wisconsin's April election, the Supreme Court did allow for absentee ballots to arrive up to six days after polls closed. A report from the Wisconsin Elections Commission (WEC) issued in May found that 79,054 ballots arrived during that time period and were counted as a result of the extension. 

Kagan pointed to the number of ballots that arrived during the extended window in April in her dissent.

"The Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions," Kagan wrote. "As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters."

In a statement, Democratic Party of Wisconsin Chair Ben Wikler criticized the Court's decision and said Democrats will "double down on making sure that every Wisconsin voter knows how to exercise their sacred right to vote in the final eight days of this election." 

Wisconsin Republican Party Chair Andrew Hitt praised the decision, saying in a statement, "last minute attempts to change election laws only cause more voter confusion and erode the integrity of our elections." 

Wisconsin has already seen a record number of absentee ballots cast in the general election. More than 1.4 million Wisconsinites have requested mail ballots for the election and only 1 million have been returned. The deadline to request a mail absentee ballot is Thursday, but WEC administrator Meagan Wolfe warned voters not to wait. 

"Please do not wait for the legal deadline – which is 5 p.m. on Thursday, October 29 – for your clerk to receive your request for an absentee ballot by mail," Wolfe said in a statement. "If you wait until the deadline, you risk not getting your ballot in time to vote it and return it by 8 p.m. on Election Day."

It can take up to seven days for a ballot to travel through the United States Postal Service, but voters can also hand deliver their completed ballots to a local clerk's office or drop box before Election Day..

The latest CBS News Battleground Tracker poll in Wisconsin shows Democratic nominee Joe Biden leading President Trump 51% to 46% among likely voters. President Trump won Wisconsin in 2016 by 22,748 votes. 

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