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On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history. The court will nullify the votes of citizens who mailed in their ballots late—not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic. As Justice Ruth Bader Ginsburg wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19. Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two. Gov. Tony Evers asked the Republican-controlled Legislature to postpone the election, but it refused. So he tried to delay it himself with an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.
Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests. As a result, a large number of voters—at least tens of thousands—won’t get their ballots until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.
Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count because the Legislature didn’t challenge that extension.) In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief—which, as Ginsburg notes in her dissent, is simply false.
Ginsburg’s dissent, joined by her three liberal colleagues, shredded every other aspect of the majority opinion as well. “If proximity to the election counseled hesitation when the District Court acted several days ago,” she wrote, “this Court’s intervention today—even closer to the election—is all the more inappropriate.” Ginsburg also pointed out that there is nothing unusual about extending voting beyond the deadline to protect citizens’ constitutional rights. “If a voter already in line by the poll’s closing time can still vote,” she asked, “why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?”
Shockingly, the majority alleged that voters who receive late ballots are not “in a substantially different position from late-requesting voters in other Wisconsin elections.” This contention, Ginsburg wrote, “boggles the mind.” She elaborated:
Rising concern about the COVID–19 pandemic has caused a late surge in absentee-ballot requests. … Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate. The surge in absentee ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out. It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemic-induced mail delays. It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain.
Ginsburg closed with a dire warning about the threat to democracy manufactured by the majority:
The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.
Unfortunately for the nation, Wisconsin Republicans decided that they would prefer to exploit the pandemic to suppress Democratic votes. Their state Supreme Court, dominated by partisan Republicans, allowed them to do so. And now the U.S. Supreme Court has overturned the only protection in place to ensure that voters could still safely cast ballots even if the state fails to provide them expediently. This election looks increasingly like a sham tainted by partisan manipulation. And now the most powerful court in the nation has approved these tactics. An election that forces voters to choose between protecting their health and casting a ballot is not a free and fair election. Nor should its results be treated as indisputably legitimate. The courts may have permitted Republicans to rig this election, but Wisconsinites are under no obligation to pretend that its outcome reflects the will of the people.