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Law & the Courts

Wisconsin Mail-In Ballots Must be Received by Election Day, Supreme Court Rules

A person drops off a ballot at a ballot drop box while people wait in line to cast their ballots, as early voting for the upcoming presidential election begins in Green Bay, Wisc., October 20, 2020. (Gabriela Bhaskar/Reuters)

Wisconsin will not be allowed to count mail-in ballots received after Election Day, the Supreme Court ruled on Monday.

In a 5-3 decision, the justices chose not to reinstate a lower court order that allowed mail-in ballots to be counted if they are received up to six days after the November 3 election. A federal appeals court had put that order on hold.

The three liberal justices dissented while Chief Justice John Roberts, who last week sided with the liberals to allow Pennsylvania to extend its absentee ballot deadline, voted to do the opposite in Wisconsin.

“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” Roberts wrote.

Wisconsin is one of a number of states where a battle between Democrats and Republicans has ensued over mail-in ballots. While Democrats have said mail-in ballots will help to mitigate the spread of the coronavirus and have worked to make mail voting widely accessible, Republicans have argued that mail-in voting could lead to widespread voter fraud and have fought against extensions for receiving ballots.

Republicans in Wisconsin said voters would have reasonable opportunity to cast their ballots by the end of Election Day and that rules should not be changed just before the election.

In a dissent, Justice Elena Kagan said the Court had “failed to adequately protect the Nation’s voters” during the pandemic and pointed out that the state had allowed the extension for primary voting in April, allowing 80,000 ballots received after the day of the election to be counted.

“No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted,” Justice Neil Gorsuch wrote.

State Republican Party Chairman Andrew Hitt celebrated the ruling in a statement: “Absentee voting in Wisconsin is extremely easy and hundreds of thousands of people have done it already — last-minute attempts to change election laws only cause more voter confusion and erode the integrity of our elections.”

Meanwhile, Wisconsin Democratic Party Chairman Ben Wikler said Democrats would be “dialing up a huge voter education campaign” to encourage roughly 360,000 people who have not returned absentee ballots to hand-deliver them by 8 p.m. on Election Day or vote in person.

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