On April 6, 2020, the Supreme Court filed a per curiam order in a case related to Wisconsin’s spring elections scheduled for the following day, April 7, 2020. In that order, the Court granted a stay requested by the Republican National Committee, the state and national Republican parties, and the Wisconsin state legislature (collectively the Republican entities), and prohibited Wisconsin from counting absentee ballots postmarked after the April 7, 2020 election. Republican National Committee v. Democratic National Committee, No. 19A1016.
The case arose on an emergency motion filed by the Republican entities the day before Wisconsin’s spring election, scheduled for April 7, 2020. At issue in that election are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions.
Several weeks before the spring election, several Wisconsin voters, community organizations, and the state and national Democratic parties (collectively, Plaintiffs) filed three lawsuits against members of the Wisconsin Elections Commission in the U.S. District Court for the Western District of Wisconsin. Generally, Plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID–19 pandemic on the spring election. In particular, Plaintiffs sought a preliminary injunction that would (1) extend the deadline for voters to request absentee ballots from April 2 to April 3, (2) extend the deadline for election officials to receive absentee ballots, from April 7 to April 13, and (3) enjoin the members of the Elections Commission from releasing any report of polling results before April 13. The Wisconsin Elections Commission did not oppose the relief, but the Republican entities did so they intervened and opposed the injunction.
The District Court granted the injunction, and the Republican entities applied to the U.S. Court of Appeals for the Seventh Circuit for a partial stay, challenging only the extension of the deadline for returning absentee ballots. The sole issue on appeal was narrowed to whether Wisconsin voters could mail ballots after the date of the election, or whether state law required them to be postmarked by April 7, the date of the election. The Seventh Circuit declined to modify the stay in an order dated April 3.
In a per curiam order issued the evening of April 6, the Supreme Court granted the stay that the Republican entities had requested. Its four-page order addressed only the “narrow, technical question” before the Court: whether absentee ballots must be mailed and postmarked by election day, April 7, or whether instead they could be mailed after election day as long as they were received by April 13.
The Court granted the stay, prohibiting Wisconsin from counting any absentee ballots received after April 7, for several reasons. First, a “critical point” was that Plaintiffs had not asked in their written papers for absentee ballots mailed after April 7 but received by April 13 to be counted; they had only asked for that orally in the hearing on the preliminary injunction. Second, extending the deadline for mailing absentee ballots would “fundamentally alter the nature of the election,” which the Court does not ordinarily do on the “eve of an election.” Third, the District Court’s order had enjoined non-parties to the lawsuit — Wisconsin Elections officials — from reporting the results of the election until April 13, which was “highly questionable,” and if it did not work, would “gravely affect the integrity of the election process.”
Finally, the Court rejected several arguments put forth by the Plaintiffs and four justices in dissent. For example, the Court did not believe that voters who had requested absentee ballots but had not received them in time to postmark them by April 7 had put forth sufficient evidence to warrant an injunction, because they had introduced “no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections.” In concluding, the Court stressed that its decision on the “narrow question” before it “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.”
The unsigned decision was issued per curiam. Justice Ginsburg filed a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan.