WASHINGTON — The Supreme Court on Monday issued its first ruling in a case arising from the coronavirus pandemic, refusing to extend the deadline for absentee voting in Tuesday’s elections in Wisconsin by six days.
The vote was 5 to 4, with the court’s more conservative members in the majority. The split, with all of the justices appointed by Republicans endorsing the result sought by Republicans and all of the Democratic appointees in dissent, suggested that the court may struggle to maintain an image of nonpartisanship as it is called on to resolve what will almost certainly be a parade of election disputes this year.
The justices in the majority, in an unsigned opinion, said the wisdom of proceeding with an election in the midst of a health crisis was not before them.
“The court’s decision on the narrow question before the court 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 opinion said. “That point cannot be stressed enough.”
The question for the court was, the majority wrote, a technical one: Was a federal judge entitled to change a state’s absentee-voting procedures just days before an election? The answer, the majority said, was no.
“Extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled Election Day fundamentally alters the nature of the election,” the opinion said.
In dissent, Justice Ruth Bader Ginsburg wrote that “the court’s order, I fear, will result in massive disenfranchisement.”
“Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters — at the encouragement of public officials — have turned to voting absentee,” she wrote. “About one million more voters have requested absentee ballots in this election than in 2016. Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.”
That justified a brief extension of the deadline for submitting absentee ballots, Justice Ginsburg wrote.
“The majority of this court declares that this case presents a ‘narrow, technical question,’” she wrote. “That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.”
She said the majority had put voters in Wisconsin to an unacceptable choice.
“Either they will have to brave the polls, endangering their own and others’ safety,” Justice Ginsburg wrote. “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.”
The Supreme Court’s ruling addressed a relatively narrow issue even as broader ones arose . Earlier on Monday, Gov. Tony Evers, a Democrat, issued an executive order delaying in-person voting and extending the deadline for the receipt of absentee ballots to June 9. Mr. Evers acted after the State Legislature, controlled by Republicans, refused to postpone the election.
Within hours, the Wisconsin Supreme Court blocked Mr. Evers’s order.
The case before the U.S. Supreme Court arose from a separate lawsuit that sought to delay the elections, which include both presidential primaries, a statewide Supreme Court race and local contests. A federal judge, despite expressing misgivings about the wisdom of proceeding with elections in a health crisis, said it was beyond his power to order a delay.
But the judge, William M. Conley of the Federal District Court in Madison, did require a six-day extension, to April 13, of the deadline to submit absentee ballots. The federal appeals court in Chicago let the extension stand.
Republican groups and the State Legislature, which is controlled by Republicans, asked the Supreme Court to undo Judge Conley’s ruling, calling it “a deeply consequential and disruptive change.”
“It will inevitably sow confusion over when voters need to submit their absentee ballots,” their brief said. “A last-minute change to a voter deadline carries an increased risk that voters will not appreciate when votes actually must be cast.”
The brief added that the new procedures could encourage voters to try to game the system by waiting to hear which candidates were ahead on Election Day and only then cast ballots.
“Absentee voting should not be a procedure that gives some voters dramatically different incentives and information than others, permits advocacy groups to strategically chase down ballots that were not cast on Election Day and otherwise disrupts Wisconsin statutes that aim to separate cleanly the time for ballot casting and ballot counting,” the brief said.
Anticipating the possibility of strategic behavior by voters, Judge Conley ordered officials not to release election results until April 13. The brief filed by Republican groups and lawmakers responded that Judge Conley was powerless to instruct officials not to make election returns public until the new deadline passed.
In any event, they wrote, “it is doubtful and unrealistic for any court order to prevent widespread leaks about the progress of a controversial and hotly contested state election.”
In response, Democratic groups, individual voters and a labor union urged the justices to allow voters to have the extra time in light of the dangers posed by in-person voting, the volume of requests for absentee ballots and slowdowns in mail delivery.
“A minimum of tens of thousands of voters who have requested absentee ballots will probably not receive those ballots in time to mail them back on or before Election Day,” the brief said.
Failing to extend the deadline will put lives at risk, the brief said. “If voters are not confident their absentee ballots will be counted, this will drive more people to vote in person on Election Day,” the brief said, “thereby increasing the risks of community spread through polling places in cities and towns throughout Wisconsin.”
The brief said Judge Conley had the power to tell officials to withhold election results and dismissed the possibility of leaks as speculation. “Applicants simply have no evidence that absentee voters will know which candidate is ahead or behind in the period between April 7 and 13,” the brief said.