A 7th Circuit Court of Appeals panel dealt a major setback for voting rights advocates on Thursday when it overturned a lower court judge’s decision that would have extended Wisconsin’s absentee ballot receipt deadline by six days.
Activists and the Democratic Party spearheaded the lawsuit to extend the deadline, meant to ensure ballots postmarked by Election Day would still be counted even if they arrived in the days after. Given an influx in mail-in voting and U.S. Postal Service delays, these extensions are considered vital for ensuring votes are counted.
But Wisconsin Republicans, President Donald Trump and the Republican National Committee have fought these efforts, and some courts are now siding with them. The appeals court ruling means that ballots sent through the mail now must arrive by the close of polls on Nov. 3. Any ballots, even those postmarked on or before Election Day, that arrive later, through no fault of the voter, will now no longer count.
This reversal follows, and directly cites, the Supreme Court’s Monday ruling striking down a lower court decision that had suspended South Carolina’s absentee ballot witness requirement on account of the pandemic. It is likely, experts argue, that other court rulings easing absentee ballot requirements during the pandemic could be overturned by more conservative appeals courts and the Supreme Court before the election.
The Supreme Court’s decision in South Carolina follows a pattern of cases that has emerged during the pandemic. The court’s conservative majority has repeatedly overturned lower court rulings easing absentee voting rules by citing a principle that the rules of elections should not be changed close to an election by any governmental body other than an elected legislature or the governor.
“The Supreme Court has held that the design of electoral procedures is a legislative task,” the appeals court’s majority opinion, signed by Frank Easterbrook, a Ronald Reagan appointee, and Amy St. Eve, a Donald Trump appointee, agreed.
Voters have more than enough time to adjust their voting plans to conform with the risk of contracting COVID-19, Easterbrook and St. Eve write. And judges should not change the rules just to accommodate voters who do not plan and cast their ballot too close to the election for it to count, they added.
The decision also references a Supreme Court decision ahead of Wisconsin’s April 7 primary that struck down most of a lower court’s ruling that had extended both the absentee ballot receipt deadline and allowed ballots cast after the election to count. In that decision, the Supreme Court ruled that a judge could not change the date of the election, which the allowance of ballots to cast after Election Day effectively did, but upheld an extension of the ballot receipt deadline by three days for those postmarked on or before Election Day. This latter determination helped save 80,000 ballots from being invalidated solely due to mail delivery delays.
Ilana Rovner, a George H.W. Bush appointee to the 7th Circuit, mentions this part of the Supreme Court’s April ruling in her dissent, where she refers to the majority opinion as “a travesty.”
“Today, by granting that stay, the court adopts a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote,” Rovner writes.
The decision could be appealed further to a full hearing of the 7th Circuit or to the Supreme Court. The Supreme Court, however, has been mostly unkind to judicial rulings loosening absentee ballot requirements this year. There’s little reason to think the conservatives there would change their opinion now.