Democrats are likely to go to the US Supreme Court to get an extension of the election day deadline for absentee ballots.
A federal appeals court on Thursday blocked a decision to extend the deadline for counting absentee ballots by six days in battleground Wisconsin, in a win for Republicans who have fought attempts to expand voting across the United States.
If the ruling stands, absentee ballots will have to be delivered to Wisconsin election clerks by the time polls close on Election Day if they are to be counted. The ruling makes it more likely that the results of the presidential race in the pivotal swing state will be known within hours of polls closing.
Democrats almost certainly will appeal the decision to the US Supreme Court.
Under state law, absentee ballots are due in local clerks’ offices by 20:00 local time (01:00 GMT) on election night. But Democrats and allied groups sued to extend the deadline after the April presidential primary saw long lines, fewer polling places, a shortage of poll workers and thousands of ballots mailed days after the election. Wisconsin, like much of the rest of the country, is already seeing massive absentee voting for November and the state expects as many as two million people to vote absentee.
US District Judge William Conley ruled last month that any ballots that arrive in clerks’ offices by November 9 will be counted, as long as they are postmarked by November 3. In that ruling, Conley noted the heavy absentee load and the possibility it could overwhelm election officials and the US Postal Service.
The 7th Circuit Court judges initially upheld Conley’s ruling on September 29, rejecting the Republicans’ standing to intervene. After the Wisconsin Supreme Court affirmed that standing, the same three-judge panel delivered Thursday’s ruling.
Justices Frank Easterbrook and Amy St Eve voted to stay the order and Ilana Rovner opposed.
“The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid,” the majority wrote. “We agree with both of those arguments.”
Rovner, in a blistering dissent, highlighted the coronavirus threat to citizens in Wisconsin, currently one of the nation’s worst hot spots. Conley came up with a “limited, reasonable set of modifications” to election rules to preserve “the precious right of each Wisconsin citizen to vote,” she wrote.
“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” she wrote. “Good luck and G-d bless, Wisconsin. You are going to need it.”
The justices were appointed by different US presidents: Easterbrook by Ronald Reagan, St Eve by Donald Trump, and Rovner by George HW Bush.
Trump won Wisconsin by less than one percentage point — fewer than 23,000 votes — in 2016. Polls show Democratic challenger Joe Biden with a slight lead in the state, but both sides expect a tight race.