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Democrats urge justices to stay out of Wisconsin primary dispute (UPDATED)

UPDATE: On Monday afternoon, April 6, Wisconsin Governor Tony Evers issued an executive order that suspended the in-person voting scheduled for Tuesday, April 7, until June 9, unless the state’s legislature passes (and Evers approves) a different date. Evers also ordered the legislature to return for a special session tomorrow afternoon to consider setting a new in-person date. In a statement, Republican leaders in the state’s legislature criticized Evers’ order as a “constitutional overreach” and indicated that they would challenge the order in state court immediately.

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One day after Wisconsin Republicans asked the Supreme Court to block a lower-court ruling that extended the deadline for voters to submit absentee ballots in the state’s primary election, Wisconsin Democrats urged the justices to stay out of the dispute and allow that ruling to stay in place for now. Blocking the district court’s order, they warned, “could exacerbate the unfolding COVID-19 public health disaster.”

The dispute now before the justices began last month, when some of the plaintiffs – which include the Democratic National Committee, the Democratic Party of Wisconsin and groups such as the League of Women Voters – asked a federal judge to postpone the state’s April 7 primary because of the COVID-19 crisis. Allowing the election to go forward as scheduled, they argued, would “disenfranchise hundreds of thousands or more Wisconsin voters.” They reasoned that Wisconsin residents would face “the extreme burden of literally risking their health and lives in order to cast a vote,” and even if voters tried to go to the polls to vote in person, many polling places would either be closed or have long lines because poll workers would refuse to come to work. U.S. District Judge William Conley rejected the request to postpone the election, but last Thursday he extended the deadline for the state to receive absentee ballots. The U.S. Court of Appeals for the 7th Circuit refused to freeze Conley’s order, setting up yesterday’s appeal to the Supreme Court by Wisconsin Republicans.

In their 20-page filing today, Wisconsin Democrats began by noting that Wisconsin, “unlike nearly a dozen other States, has decided to proceed with its April 7, 2020 election in the midst of the worst national health emergency since at least the Great Influenza of 1918-20.” They stressed that their Republican opponents “have now agreed with the initial relief” that Democrats had sought – “counting any ballot that is postmarked on or before election day, even if received later.” But they argued that the additional relief that the district court order provided — extending the deadline for the receipt of absentee ballots —  “is essential, because thousands will be disenfranchised without it.”

Wisconsin Democrats urged the justices to leave the district court’s order in effect and allow voters to return their absentee ballots through April 13. “If voters are not confident their absentee ballots will be counted,” the Democrats told the justices, “this will drive more people to vote in-person on election day, thereby increasing the risks of community spread through polling places in cities and towns throughout Wisconsin.” In contrast, they continued, the “narrow” order issued by the district court “dramatically reduces the need for person-to-person contact.”

Wisconsin Republicans have asked the Supreme Court to act on their request for a stay by tomorrow, April 6.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Democrats urge justices to stay out of Wisconsin primary dispute (UPDATED), SCOTUSblog (Apr. 5, 2020, 3:29 PM),