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Mail-In Ballots During COVID-19

by Kayla Dieker | May 15, 2020

On April 7, 2020—amidst a global pandemic—Wisconsin held its primary election.  In a time where the CDC has recommended cancelling events for groups of ten or more people,  “[l]ong lines of voters. . . wearing face masks, stretched for blocks through Milwaukee.” Eric Bradner, ‘This is ridiculous’: Wisconsin holds its primary election in the middle of a pandemic, CNN (Apr. 7, 2020),  Wisconsin has not been immune to the COVID-19 pandemic, as of April 10, 2020 there have been 3,068 confirmed positive cases of COVID-19, with 904 hospitalizations and 128 deaths. Outbreaks in Wisconsin, Wisconsin Dept. of Health Services (last revised Apr. 10, 2020),  This is an increase of almost 500 cases since the April 7th primary election. COVID-19: Wisconsin’s Model, Wisconsin Dept. of Health Services (last updated Apr. 10, 2020),  Wisconsin is the only state with an April election that had not postponed or shifted to mail-in only—though it’s not for lack of trying. Eric Bradner, ‘This is ridiculous’: Wisconsin holds its primary election in the middle of a pandemic,CNN (Apr. 7, 2020),

Eleven days before the election, the Governor of Wisconsin asked the legislature to send voters a ballot by mail. Id. When that proposal was rejected, he signed an executive order delaying the election until June. Id. The Wisconsin Supreme Court blocked the order. Id. As a result, 1.3 million people requested an absentee ballot which, in order to be valid, had to be postmarked by April 7th and delivered by April 13th. Id. To account for the thousands of voters who would not receive their ballots in time to for their votes to count, the Governor extended the postmark deadline to April 13th. Id.  The Supreme Court of the United States held this extension unconstitutional. Republican Nat’l Comm. v. Democratic Nat'l Comm., 589 U.S. ____.

Republican National Committee, et al., v. Democratic National Committee, et al.

The United States Supreme Court heard the “narrow, technical question about the absentee ballot process” on April 6th. Id. The question before the Court was whether Wisconsin can constitutionally extend the deadline for postmarked, mail-in ballots to beyond election day. Id. The Court stresses that its decision “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.” Id.

Offering little analysis, the majority focuses on the district court ordering that ballots postmarked after election day count—despite plaintiffs not asking for such relief. Id.  Additionally, the majority points out “this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the rules on the eve of an election.” Id. (citing Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam)). Ultimately, in a 5-4 decision along party lines, the Court said the extension was “extraordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional days after the election” and issued a preliminary injunction. Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. ____ (2020).


Unlike the majority, Justice Ginsburg, writing for the dissent, focuses on the human impact of the COVID-19 pandemic. Id. (Ginsburg, J., dissenting).  There were roughly one million additional requests for mail-in ballots compared to the 2016 spring primary.  Id. This caused “a severe backlog of ballots requested but not promptly mailed to voters.” Id.  The dissent focuses on this fact—arguing that it is impossible for a voter to postmark and send a ballot they have not yet received. Id. This would result in tens of thousands of mail-in ballots, which were timely requested, not counting. Id. On the day before the election, 12,000 ballots had still not been mailed out, and thousands more had been but would not make it to voters in time. Id. 

Looking to the same case relied upon by the majority, Purcell v. Gonzalez, the dissent argues that the Supreme Court interfering in the election so close to the election date was ill-advised. Id. Officials in Wisconsin had already spent days informing voters of the changes, and the Supreme Court stepping in would only unnecessarily confuse that process. Id. In fact, the dissent admonishes the majority’s reliance on Purcell, saying “[i]f proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.” Id.

Finally, the dissent disagrees that the question before the Court is a “narrow, technical question.” Id. Instead, Justice Ginsburg says “[t]he question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.” Id.  Justice Ginsburg compares the extension of the deadline to people who are still in line to vote after polls have closed—“why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?”


This case serves as an unfortunate example of what not to do in the coming months.  While many states make plans to reopen non-essential businesses and get back to a semblance of ‘normal life,’ experts warn of the likelihood of a second wave of COVID-19 transmission. Lena H. Sun, CDC director warns second wave of coronavirus is likely to be even more devastating, Wash. Post (Apr. 21, 2019),  It is becoming more and more likely that the country will see a similar outbreak in the fall—perhaps with higher infection rates and more fatalities than the first one. Id. The onus is now on states to create a contingency plan for the upcoming November presidential election before a problem arises. Should in-person voting fail to be safe in the fall, states should already have a system in place for mass dissemination and collection of mail-in ballots. States need to be prepared for an influx of mail-in ballot requests.  Additionally, there are currently seventeen states that require voters to provide an excuse for why they are requesting an absentee ballot. Absentee Ballot Rules,, (last visited Apr. 26, 2020). The states with these rules need to make it clear to voters that the COVID-19 pandemic is an acceptable excuse for requesting a mail-in ballot. Massachusetts has already made a similar announcement. Voting & COVID-19,, (last visited Apr. 26, 2020).

The Supreme Court has made clear that mail-in ballots must be post-marked by election day.  Republican Nat’l Comm. v. Democratic Nat'l Comm., 589 U.S. ___.  To best ensure constitutional compliance, this process needs to be determined by the states’ election commissions sooner rather than later.  In doing so, states can avoid making the same mistakes as Wisconsin while simultaneously providing people with the opportunity to safely exercise their right to vote.

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