Breaking and Analysis: 7th Circuit, on 2-1 Vote, Rejects District Court Extension of Wisconsin Deadline for Receipt of Absentee Ballots, Relying Heavily on Supreme Court’s Earlier Ruling in South Carolina Case

As I noted in this Slate piece earlier this week, “Generally, though, the Republican side may be far more successful in blocking lower court orders sought by Democrats and voting rights groups seeking to expand voting by mail. Although Democrats in particular have crowed about some of their (sometimes partial) victories, things are far from over.” And the South Carolina ruling from earlier this week, sent an unmistakable signal from the Supreme Court to roll back federal district court orders easing voting burdens during the pandemic.

Today’s ruling from the 7th Circuit illustrates perfectly what’s going on.

From the majority opinion:

The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the,Supreme Court’s recent stay of another injunction issued close to the upcoming election. Andino v. Middleton, No. 20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).

Voters have had many months since March to register or  obtain absentee ballots; reading the Constitution to extend  deadlines near the election is difficult to justify when the  voters have had a long time to cast ballots while preserving  social distancing. The pandemic has had consequences (and  appropriate governmental responses) that change with time,  but the fundamental proposition that social distancing is  necessary has not changed since March. The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in  Wisconsin by planning ahead and taking advantage of the  opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could  be encountered by voters who do not plan ahead and wait  until the last day that state law allows for certain steps. Yet,  as the Supreme Court observed last April in this very case,  voters who wait until the last minute face problems with or  without a pandemic. ..

From Judge Rovner’s dissent:

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. It does so on two grounds: (1) the Supreme Court’s Purcell doctrine, as exemplified by the Court’s recent shadow-docket rulings, in the majority’s view all but forbids alterations to election rules in the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale justifies a stay of the district court’s careful, thorough, and well-grounded injunction. At a time when judicial intervention is most needed to protect the fundamental right of Wisconsin citizens to choose their elected representatives, the court declares itself powerless to do anything. This is inconsistent both with the stated rationale of Purcell and with the Anderson-Burdick framework, which recognizes that courts can and must intervene to address unacceptable burdens on the fundamental right to vote. The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it.


This is a travesty.

Judge Rovner’s dissent concludes:

Given the great care that the district court took in issuing its preliminary injunction and the ample factual record supporting its decision, I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages. The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing the number of voters who may be denied the right to vote. Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.


Good luck and G-d bless, Wisconsin. You are going to need it.

Correction: The original version of this post said it was a party line vote. This was in error.

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