5-3 Scotus bars Wisconsin mail ballots postmarked by but received after election day

The Supreme Court by 5-3 vote has refused to vacate a stay of a District Judge's order that mailed ballots postmarked before but received after election day be counted.  Neil Gorsuch and Brett Kavanaugh are derisively dismissive of Justice Kagan's concerns about maximizing the vote during the health emergency. 

Remarkably, as I discussed in April, the Supreme Court majority in the Wisconsin primary had itself entered a sua sponte order that ballots postmarked by election day be counted. 

- GWC

 DNC v. Wisconsin Legislature | Powered by Box

Elena Kagan, dissenting: 

Wisconsin is one of the hottest of all COVID hotspots in the Nation.  So rather than vote in person, many Wisconsinites will  again  choose  to  vote  by  mail.    State  election  officials  report that 1.7 million people—about 50 percent of Wiscon-sin’s voters—have already asked for mail ballots.  And more are expected to do so, because state law gives voters until October 29, five days before Election Day, to make that re-quest.        To ensure that these mail ballots are counted, the district court  ordered  in  September  the  same  relief  afforded  in  April:  a  six-day  extension  of  the  receipt  deadline  for  mail  ballots postmarked by Election Day.  The court supported that order with specific facts and figures about how COVID would affect the electoral process in Wisconsin.  See Democratic National Committee v. Bostelmann, 2020  WL  5627186 (WD  Wis.,  Sept.  21,  2020).   

The  district court  found  that  the  surge  in  requests  for  mail  ballots  would  overwhelm  state officials in the weeks leading up to the October 29 ballot-application deadline.  And it discovered unusual delays in the United States Postal Service’s delivery of mail in the State.  The combination of those factors meant, as a high-ranking  elections  official  testified,  that  a  typical  ballot  would take a full two weeks “to make its way through the mail from a clerk’s office to a voter and back again”—even when  the  voter  instantly  turns  the  ballot  around. 

Based on the April election experience, the court determined that many voters would not even receive mail ballots by Election Day, making it impossible to vote in that way.  And as many as 100,000 citizens  would  not  have  their  votes  counted—even  though  timely requested and postmarked—without the six-day ex-tension.  (To put that number in perspective, a grand total of 284 Wisconsin mail ballots were not counted in the 2016 election.1)    In  the  court’s  view,  the  discarding  of  so  many  properly  cast  ballots  would  severely  burden  the  constitutional right to vote.  The fit remedy was to create a six-day grace period, to allow those ballots a little extra time to ar-rive in the face of unprecedented administrative and delivery delays.     But  a  court  of  appeals  halted  the  district  court’s  order,  and today this Court leaves that stay in place.  

I respectfully dissent because  the  Court’s  decision  will  disenfranchise  large numbers of responsible voters in the midst of hazardous pandemic conditions.