The Supreme Court said Wisconsin can’t count ballots that arrive after Election Day. Similar cases are coming in key battleground states like North Carolina and Pennsylvania.
The Supreme Court ruling that stopped Wisconsin from extending an absentee ballot deadline isn’t just a problem for the thousands of mail-in votes from the state that could be left uncounted next week. It also could also signal similar decisions to come from the nation’s highest court in key battleground states like Pennsylvania and North Carolina.
And given how close the presidential race was in 2016, those decisions could have an effect on whether Democratic nominee Joe Biden or President Donald Trump wins the White House this year.
Last night, just before a ceremonial swearing in for Justice Amy Coney Barrett at the White House, the Supreme Court ruled in a 5 to 3 vote that Wisconsin could not extend its absentee ballot deadline six days after the election.
That would have allowed local officials to count votes that had been slowed down in the mail or mailed on Election Day itself more time to arrive and get counted. Wisconsin is one of 30 states that requires absentee ballots to be received by Election Day to be counted.
Justice Brett Kavanaugh was a potential moderate vote on the issue, but instead issued an extreme opinion that erroneously said legitimate ballots mailed in by Election Day that end up changing who is in the lead could give voters the impression that the election “has been stolen.” In truth, mail-in ballots received after Election Day are the norm in dozens of states, which often don’t certify the results of an election until days or sometimes weeks after the election.
The ruling means thousands of votes will potentially go uncounted in Wisconsin, and could set a precedent for other voting-related cases on the Supreme Court’s docket in battleground states like Pennsylvania and North Carolina.
The Supreme Court is expected to consider a case before Nov. 3 from North Carolina, where Republicans are similarly challenging mail-in ballots that are postmarked by Election Day but received afterward. And Pennsylvania Republicans have asked the Supreme Court for a second time to overturn an extension on when ballots are received. The court ruled 4 to 4 last week that ballots received after Election Day could be counted if postmarked by Election Day. But with Barrett now on the court and the balance shifted 6 to 3 in favor of conservatives, a future decision could go against the state’s Democratic party.
This issue is particularly important due to the coronavirus pandemic and the fact that the US Postal Office has experienced some slowdowns in their mail delivery in recent months. And these states–Wisconsin, Pennsylvania, and North Carolina–are important battleground states that could end up determining who wins the presidential election.
In an explanation of his individual decision Justice John Robertts noted that the two cases were different so the court’s ruling is also different.
“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,” he wrote.
The three justices that voted to allow the extension in Wisconsin explained that the Supreme Court’s decision would mean that many votes in the state would not be counted.
“The Court’s decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions,” Justice Elena Kagan wrote. “As the COVID pandemic rages, the Court has failed to adequately protect the Nation’s voters.”