People For the American Way

Trump Justices Cast Deciding Votes to Uphold Blocking of Order to Allow Wisconsin Absentee Ballots Received After Election Day to be Counted: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Justices Cast Deciding Votes to Uphold Blocking of Order to Allow Wisconsin Absentee Ballots Received After Election Day to be Counted: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Justices Neil Gorsuch and Brett Kavanaugh cast deciding votes in a 5-3 order to uphold a stay of a district court ruling that authorized counting of absentee ballots in Wisconsin that are postmarked by Election Day but received up to six days thereafter, precisely the same relief that was ordered in the April primary elections due to problems associated with the COVID-19 pandemic. The Court’s October 26 2020 decision was in Democratic National Committee v. Wisconsin State Legislature.

Because of the serious problems and delays concerning voting caused by the pandemic and unprecedented postal delays, a federal district court ordered that absentee ballots postmarked by the election but received up to six days thereafter could be counted in the April primaries. After hearing extensive and undisputed evidence, the judge ordered similar relief in September for the November election. Although the Wisconsin election commission did not object to the order and was preparing to comply with it, the Republican state legislature objected and sought a stay from the Seventh Circuit. As a result of the deciding vote of Trump judge Amy St. Eve, the stay was granted. The case then went to the Supreme Court.

In a 5-3 order in which Trump Justices Gorsuch and Kavanaugh cast deciding votes, the Court affirmed the blocking of the district court order. Although there was no majority opinion, several justices wrote concurring opinions. Chief Justice John Roberts explained this was unlike the recent 4-4 Pennsylvania case where he voted against staying a state supreme court order making it easier to vote absentee, because the Wisconsin case involved “federal intrusion” into “state lawmaking processes” concerning absentee ballots.

Trump Justice Neil Gorsuch went further, in an opinion also joined by Trump Justice Brett Kavanaugh. He pointed out that many other states also require absentee ballots to be received by Election Day, and it was improper for the federal court to “substitute its own election deadline for the state’s.” He noted that the legislature had made “considerable” efforts to “respond” to COVID-19 and that voters could use alternatives like early in-person voting, drop boxes, and mailing their ballots earlier.

Trump Justice Kavanaugh went even further in what one commentator has called a “radical and brazenly partisan” concurrence. Kavanugh argued that the court should “respect” the decisions by the Republican state legislature and that “destabilizing consequences” would result if “unelected federal judges” could countermand such determinations. Based on his reading of previous precedents, the state’s actions did not even raise “federal constitutional issues.” Citing a concurring opinion in the infamous decision in Bush v. Gore, which even the majority in that case suggested courts should not rely on in the future, Kavanaugh argued that the intent of a state legislature “must prevail,” so that a federal court can overrule even a state supreme court decision, as he and others voted to do in the Pennsylvania case. Kavanaugh also echoed the troubling political arguments of President Trump that absentee ballots arriving after Election Day could “flip the results of an election” and cause “chaos and suspicions.”

Justice Elena Kagan vigorously dissented, joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan began by emphasizing the factual findings of the district court, which noted that when it ordered literally the “same relief” in April, the result was to count 80,000 properly cast ballots, some 5% of the total, which would otherwise have been rejected. With COVID-19 even worse in Wisconsin than in April and with 1.7 million absentee ballot requests in the state already, she explained, the burden on state election officials and the need for such relief was even greater now. Blocking the district court order, she went on, would disqualify “as many as 100,000” ballots and “disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.” The claim that the legislature had already taken steps to help people vote absentee, Kagan noted, “fails” to give the appropriate “respect” to the district court’s findings that notwithstanding those actions, many “thousands of timely requested and postmarked votes” will “not be counted without a short extension of the ballot receipt deadline.”

Justice Kagan went on to explain what was wrong with the concurring opinions’ legal arguments. Contrary to the Kavanaugh view, she continued, even the court of appeals had not disagreed with the conclusion that the significant  “disenfranchisement” that is all too likely in Wisconsin “imposes a severe burden on the right to vote” and thus clearly raises constitutional issues. The claim that September was too late for the district court’s order, Kagan wrote, misreads the Court’s precedents and improperly suggests that there is a “moratorium on the Constitution as the cold weather approaches.”

Justice Kagan was particularly critical of Kavanagh’s arguments. His claim about “flipping” the election, she pointed out, ignores the fact that “there are no results to ‘flip’ until all valid ballots are counted;” indeed, 18 states already allow some absentee ballots to arrive after Election Day. And his argument that federal courts should sometimes overturn “state court decisions” on the right to vote under state law, she continued, clearly contradicted his assertion that federal courts  should not act to vindicate voting rights in elections, as the district court did in this case.”[N}either the text” of the Constitution “nor our precedent interpreting it,” she explained, can justify Kavanaugh’s “inconsistent approach.”

Justice Kagan concluded that the “clear” facts demonstrate that “through no fault of their own,” tens of thousands of Wisconsin voters “may receive their mail ballots too late to return them by Election Day.” Quoting Justice Ginsburg in an earlier case, she lamented that these voters will thus be forced to choose between “’brav[ing] the polls,’ with all the risk that entails, and ‘los[ing] their right to vote.’” Even worse, if new Justice Barrett joins the radical views of Kavanaugh and Gorsuch in election cases concerning Pennsylvania and other states, Mark Joseph Stern has concluded that “this election may end with a Bush v. Gore–like disaster for American democracy, but even worse than the original.”


Brett Kavanaugh, Confirmed Judges Confirmed Fears, Neil Gorsuch, Supreme Court