Democratic National Committee v. Wisconsin State Legislature ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A66
_________________
DEMOCRATIC NATIONAL COMMITTEE, ET AL. v.
WISCONSIN STATE LEGISLATURE, ET AL.
ON APPLICATION TO VACATE STAY
[October 26, 2020]
The application to vacate stay presented to JUSTICE
KAVANAUGH and by him referred to the Court is denied.
CHIEF JUSTICE ROBERTS, concurring in denial of applica-
tion to vacate stay.
In this case, as in several this Court has recently ad-
dressed, a District Court intervened in the thick of election
season to enjoin enforcement of a State’s laws. Because I
believe this intervention was improper, I agree with the de-
cision of the Seventh Circuit to stay the injunction pending
appeal. I write separately to note that this case presents
different issues than the applications this Court recently
denied in Scarnati v. Boockvar, ante, at ___, and Republican
Party of Pennsylvania v. Boockvar, ante, at ___. While the
Pennsylvania applications implicated the authority of state
courts to apply their own constitutions to election regula-
tions, this case involves federal intrusion on state lawmak-
ing processes. Different bodies of law and different prece-
dents govern these two situations and require, in these
particular circumstances, that we allow the modification of
election rules in Pennsylvania but not Wisconsin.
Cite as: 592 U. S. ____ (2020) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A66
_________________
DEMOCRATIC NATIONAL COMMITTEE, ET AL. v.
WISCONSIN STATE LEGISLATURE, ET AL.
ON APPLICATION TO VACATE STAY
[October 26, 2020]
JUSTICE GORSUCH, with whom JUSTICE KAVANAUGH
joins, concurring in denial of application to vacate stay.
Weeks before a national election, a Federal District Judge
decreed that Wisconsin law violates the Constitution by re-
quiring absentee voters to return their ballots no later than
election day. The court issued its ruling even though over
30 States have long enforced the very same absentee voting
deadline—and for understandable reasons: Elections must
end sometime, a single deadline supplies clear notice, and
requiring ballots be in by election day puts all voters on the
same footing. “Common sense, as well as constitutional
law, compels the conclusion that government must play an
active role in structuring elections,” and States have always
required voters “to act in a timely fashion if they wish to
express their views in the voting booth.” Burdick v. Taku-
shi, 504 U.S. 428, 433, 438 (1992).
Why did the district court seek to scuttle such a long-set-
tled tradition in this area? COVID. Because of the current
pandemic, the court suggested, it was free to substitute its
own election deadline for the State’s. Never mind that, in
response to the pandemic, the Wisconsin Elections Commis-
sion decided to mail registered voters an absentee ballot ap-
plication and return envelope over the summer, so no one
had to ask for one. Never mind that voters have also been
free to seek and return absentee ballots since September.
Never mind that voters may return their ballots not only by
2 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
GORSUCH, J., concurring
mail but also by bringing them to a county clerk’s office, or
various “no touch” drop boxes staged locally, or certain poll-
ing places on election day. Never mind that those unable to
vote on election day have still other options in Wisconsin,
like voting in-person during a 2-week voting period before
election day. And never mind that the court itself found the
pandemic posed an insufficient threat to the health and
safety of voters to justify revamping the State’s in-person
election procedures.
So it’s indisputable that Wisconsin has made considera-
ble efforts to accommodate early voting and respond to
COVID. The district court’s only possible complaint is that
the State hasn’t done enough. But how much is enough? If
Wisconsin’s statutory absentee voting deadline can be dis-
carded on the strength of the State’s status as a COVID
“hotspot,” what about the identical deadlines in 30 other
States? How much of a “hotspot” must a State (or maybe
some sliver of it) be before judges get to improvise? Then
there’s the question what these new ad hoc deadlines
should be. The judge in this case tacked 6 days onto the
State’s election deadline, but what about 3 or 7 or 10, and
what’s to stop different judges choosing (as they surely
would) different deadlines in different jurisdictions? A
widely shared state policy seeking to make election day real
would give way to a Babel of decrees. And what’s to stop
courts from tinkering with in-person voting rules too? This
judge declined to go that far, but the plaintiffs thought he
should have, and it’s not hard to imagine other judges ac-
cepting invitations to unfurl the precinct maps and decide
whether States should add polling places, revise their
hours, rearrange the voting booths within them, or maybe
even supplement existing social distancing, hand washing,
and ventilation protocols.
The Constitution dictates a different approach to these
how-much-is-enough questions. The Constitution provides
that state legislatures—not federal judges, not state judges,
Cite as: 592 U. S. ____ (2020) 3
GORSUCH, J., concurring
not state governors, not other state officials—bear primary
responsibility for setting election rules. Art. I, §4, cl. 1. And
the Constitution provides a second layer of protection too.
If state rules need revision, Congress is free to alter them.
Ibid. (“The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress may
at any time by Law make or alter such Regulations . . . ”).
Nothing in our founding document contemplates the kind
of judicial intervention that took place here, nor is there
precedent for it in 230 years of this Court’s decisions.
Understandably so. Legislators can be held accountable
by the people for the rules they write or fail to write; typi-
cally, judges cannot. Legislatures make policy and bring to
bear the collective wisdom of the whole people when they
do, while courts dispense the judgment of only a single per-
son or a handful. Legislatures enjoy far greater resources
for research and factfinding on questions of science and
safety than usually can be mustered in litigation between
discrete parties before a single judge. In reaching their de-
cisions, legislators must compromise to achieve the broad
social consensus necessary to enact new laws, something
not easily replicated in courtrooms where typically one side
must win and the other lose.
Of course, democratic processes can prove frustrating.
Because they cannot easily act without a broad social con-
sensus, legislatures are often slow to respond and tepid
when they do. The clamor for judges to sweep in and ad-
dress emergent problems, and the temptation for individual
judges to fill the void of perceived inaction, can be great.
But what sometimes seems like a fault in the constitutional
design was a feature to the framers, a means of ensuring
that any changes to the status quo will not be made hastily,
without careful deliberation, extensive consultation, and
social consensus.
Nor may we undo this arrangement just because we
4 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
GORSUCH, J., concurring
might be frustrated. Our oath to uphold the Constitution
is tested by hard times, not easy ones. And succumbing to
the temptation to sidestep the usual constitutional rules is
never costless. It does damage to faith in the written Con-
stitution as law, to the power of the people to oversee their
own government, and to the authority of legislatures, for
the more we assume their duties the less incentive they
have to discharge them. Last-minute changes to longstand-
ing election rules risk other problems too, inviting confusion
and chaos and eroding public confidence in electoral out-
comes. No one doubts that conducting a national election
amid a pandemic poses serious challenges. But none of that
means individual judges may improvise with their own
election rules in place of those the people’s representatives
have adopted.
Cite as: 592 U. S. ____ (2020) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A66
_________________
DEMOCRATIC NATIONAL COMMITTEE, ET AL. v.
WISCONSIN STATE LEGISLATURE, ET AL.
ON APPLICATION TO VACATE STAY
[October 26, 2020]
JUSTICE KAVANAUGH, concurring in denial of application
to vacate stay.
Approximately 30 States, including Wisconsin, require
that absentee ballots be received by election day in order to
be counted. Like most States, Wisconsin has retained that
deadline for the November 2020 election, notwithstanding
the COVID–19 pandemic. In advance of the November elec-
tion, however, a Federal District Court in Wisconsin unilat-
erally changed the State’s deadline for receipt of absentee
ballots. Citing the pandemic, the court extended the dead-
line for receipt of absentee ballots by six days—from elec-
tion day, November 3, to November 9, so long as the ballots
are postmarked on or before election day, November 3.
The Seventh Circuit stayed the District Court’s injunc-
tion, ruling that the District Court had violated this Court’s
precedents in two fundamental ways: first, by changing
state election rules too close to an election; and second, by
usurping the state legislature’s authority to either keep or
make changes to state election rules in light of the pan-
demic.
Applicants here ask that we vacate the Seventh Circuit’s
stay and reinstate the District Court’s order extending the
deadline for absentee ballots to be received in Wisconsin.
The Court today denies the applications and maintains the
Seventh Circuit’s stay of the District Court’s order. I agree
with the Court’s decision to deny the applications, and I
write separately to explain why.
2 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
I
For three alternative and independent reasons, I con-
clude that the District Court’s injunction was unwarranted.
First, the District Court changed Wisconsin’s election
rules too close to the election, in contravention of this
Court’s precedents. This Court has repeatedly emphasized
that federal courts ordinarily should not alter state election
laws in the period close to an election—a principle often re-
ferred to as the Purcell principle. See Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam); see also Merrill v. People
First of Ala., ante, p. ___, (Merrill II); Andino v. Middleton,
ante, p. ___; Merrill v. People First of Ala., 591 U. S. ___
(2020) (Merrill I); Clarno v. People Not Politicians, 591 U. S.
___ (2020); Little v. Reclaim Idaho, 591 U. S. ___ (2020); Re-
publican National Committee v. Democratic National Com-
mittee, 589 U. S. ___ (2020) (per curiam) (RNC).
The Court’s precedents recognize a basic tenet of election
law: When an election is close at hand, the rules of the road
should be clear and settled. That is because running a
statewide election is a complicated endeavor. Lawmakers
initially must make a host of difficult decisions about how
best to structure and conduct the election. Then, thousands
of state and local officials and volunteers must participate
in a massive coordinated effort to implement the lawmak-
ers’ policy choices on the ground before and during the elec-
tion, and again in counting the votes afterwards. And at
every step, state and local officials must communicate to
voters how, when, and where they may cast their ballots
through in-person voting on election day, absentee voting,
or early voting.
Even seemingly innocuous late-in-the-day judicial alter-
ations to state election laws can interfere with administra-
tion of an election and cause unanticipated consequences.
If a court alters election laws near an election, election ad-
ministrators must first understand the court’s injunction,
Cite as: 592 U. S. ____ (2020) 3
KAVANAUGH, J., concurring
then devise plans to implement that late-breaking injunc-
tion, and then determine as necessary how best to inform
voters, as well as state and local election officials and vol-
unteers, about those last-minute changes. It is one thing
for state legislatures to alter their own election rules in the
late innings and to bear the responsibility for any unin-
tended consequences. It is quite another thing for a federal
district court to swoop in and alter carefully considered and
democratically enacted state election rules when an elec-
tion is imminent.
That important principle of judicial restraint not only
prevents voter confusion but also prevents election admin-
istrator confusion—and thereby protects the State’s inter-
est in running an orderly, efficient election and in giving
citizens (including the losing candidates and their support-
ers) confidence in the fairness of the election. See Purcell,
549 U.S., at 4–5; Crawford v. Marion County Election Bd.,
553 U.S. 181, 197 (2008) (plurality opinion). The principle
also discourages last-minute litigation and instead encour-
ages litigants to bring any substantial challenges to election
rules ahead of time, in the ordinary litigation process. For
those reasons, among others, this Court has regularly cau-
tioned that a federal court’s last-minute interference with
state election laws is ordinarily inappropriate.
In this case, however, just six weeks before the November
election and after absentee voting had already begun, the
District Court ordered several changes to Wisconsin’s elec-
tion laws, including a change to Wisconsin’s deadline for re-
ceipt of absentee ballots. Although the District Court’s or-
der was well intentioned and thorough, it nonetheless
contravened this Court’s longstanding precedents by usurp-
ing the proper role of the state legislature and rewriting
state election laws in the period close to an election.
Applicants retort that the Purcell principle precludes an
appellate court—such as the Seventh Circuit here—from
overturning a district court’s injunction of a state election
4 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
rule in the period close to an election. That argument defies
common sense and would turn Purcell on its head. Correct-
ing an erroneous lower court injunction of a state election
rule cannot itself constitute a Purcell problem. Otherwise,
appellate courts could never correct a late-breaking lower
court injunction of a state election rule. That obviously is
not the law. To be sure, it would be preferable if federal
district courts did not contravene the Purcell principle by
rewriting state election laws close to an election. But when
they do, appellate courts must step in. See, e.g., Andino,
ante, p. ___; RNC, 589 U. S., at ___ (slip op., at 3).
Second, even apart from the late timing, the District
Court misapprehended the limited role of the federal courts
in COVID–19 cases. This Court has consistently stated
that the Constitution principally entrusts politically ac-
countable state legislatures, not unelected federal judges,
with the responsibility to address the health and safety of
the people during the COVID–19 pandemic.
The COVID–19 pandemic has caused the deaths of more
than 200,000 Americans, and it remains a serious threat,
including in Wisconsin. The virus poses a particular risk to
the elderly and to those with certain pre-existing condi-
tions. But federal judges do not possess special expertise or
competence about how best to balance the costs and bene-
fits of potential policy responses to the pandemic, including
with respect to elections. For that reason, this Court’s cases
during the pandemic have adhered to a basic jurispruden-
tial principle: When state and local officials “ ‘undertake[ ]
to act in areas fraught with medical and scientific uncer-
tainties,’ their latitude ‘must be especially broad.’ ” Andino,
ante, at 2 (KAVANAUGH, J., concurring in grant of applica-
tion for stay). It follows “that a State legislature’s decision
either to keep or to make changes to election rules to ad-
dress COVID–19 ordinarily ‘should not be subject to second-
guessing by an unelected federal judiciary, which lacks the
background, competence, and expertise to assess public
Cite as: 592 U. S. ____ (2020) 5
KAVANAUGH, J., concurring
health and is not accountable to the people.’ ” Ibid. (some
internal quotation marks omitted). As the Seventh Circuit
rightly explained, “the design of electoral procedures is a
legislative task,” including during the pandemic. Demo-
cratic National Committee v. Bostelmann, ___ F. 3d ___, ___
(Oct. 8, 2020).
Over the last seven months, this Court has stayed numer-
ous federal district court injunctions that second-guessed
state legislative judgments about whether to keep or make
changes to election rules during the pandemic. See Merrill
II, ante, p. ___; Andino, ante, p. ___; Merrill I, 591 U. S. ___;
Clarno, 591 U. S. ___; Little, 591 U. S. ___; RNC, 589 U. S.
___.
To be sure, in light of the pandemic, some state legisla-
tures have exercised their Article I, §4, authority over elec-
tions and have changed their election rules for the Novem-
ber 2020 election. Of particular relevance here, a few
States such as Mississippi no longer require that absentee
ballots be received before election day. See, e.g., Miss. Code
Ann. §23–15–637 (2020). Other States such as Vermont, by
contrast, have decided not to make changes to their ordi-
nary election rules, including to the election-day deadline
for receipt of absentee ballots. See, e.g., Vt. Stat. Ann., Tit.
17, §2543 (2020). The variation in state responses reflects
our constitutional system of federalism. Different state leg-
islatures may make different choices. Assessing the com-
plicated tradeoffs involved in changing or retaining election
deadlines, or other election rules, in light of public health
conditions in a particular State is primarily the responsibil-
ity of state legislatures and falls outside the competence of
federal courts.
Applicants respond that this principle of deference to
state legislatures applies only when a state legislature has
affirmatively made some changes, but not others, to the
election code in light of COVID–19. And they say that Wis-
6 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
consin’s legislature has not done so, unlike the South Caro-
lina legislature in Andino, for example. But the Wisconsin
State Legislature’s decision not to modify its election rules
in light of the pandemic is itself a policy judgment worthy
of the same judicial deference that this Court afforded the
South Carolina legislature in Andino, ante, p. ___. In short,
state legislatures, not federal courts, primarily decide
whether and how to adjust election rules in light of the pan-
demic.
Third, the District Court did not sufficiently appreciate
the significance of election deadlines. This Court has long
recognized that a State’s reasonable deadlines for register-
ing to vote, requesting absentee ballots, submitting absen-
tee ballots, and voting in person generally raise no federal
constitutional issues under the traditional Anderson-Bur-
dick balancing test. See Anderson v. Celebrezze, 460 U.S.
780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).
To state the obvious, a State cannot conduct an election
without deadlines. It follows that the right to vote is not
substantially burdened by a requirement that voters “act in
a timely fashion if they wish to express their views in the
voting booth.” Burdick, 504 U.S., at 438. For the same
reason, the right to vote is not substantially burdened by a
requirement that voters act in a timely fashion if they wish
to cast an absentee ballot. Either way, voters need to vote
on time. A deadline is not unconstitutional merely because
of voters’ “own failure to take timely steps” to ensure their
franchise. Rosario v. Rockefeller, 410 U.S. 752, 758 (1973).
Voters who, for example, show up to vote at midnight after
the polls close on election night do not have a right to de-
mand that the State nonetheless count their votes. Voters
who submit their absentee ballots after the State’s deadline
similarly do not have a right to demand that the State count
their votes.
For important reasons, most States, including Wisconsin,
require absentee ballots to be received by election day, not
Cite as: 592 U. S. ____ (2020) 7
KAVANAUGH, J., concurring
just mailed by election day. Those States want to avoid the
chaos and suspicions of impropriety that can ensue if thou-
sands of absentee ballots flow in after election day and po-
tentially flip the results of an election. And those States
also want to be able to definitively announce the results of
the election on election night, or as soon as possible there-
after. Moreover, particularly in a Presidential election,
counting all the votes quickly can help the State promptly
resolve any disputes, address any need for recounts, and
begin the process of canvassing and certifying the election
results in an expeditious manner. See 3 U.S. C. §5. The
States are aware of the risks described by Professor Pildes:
“[L]ate-arriving ballots open up one of the greatest risks of
what might, in our era of hyperpolarized political parties
and existential politics, destabilize the election result. If
the apparent winner the morning after the election ends up
losing due to late-arriving ballots, charges of a rigged elec-
tion could explode.” Pildes, How to Accommodate a Massive
Surge in Absentee Voting, U. Chi. L. Rev. Online (June 26,
2020) (online source archived at www.supremecourt.gov).
The “longer after Election Day any significant changes in
vote totals take place, the greater the risk that the losing
side will cry that the election has been stolen.” Ibid.
One may disagree with a State’s policy choice to require
that absentee ballots be received by election day. Indeed,
some States require only that absentee ballots be mailed by
election day. See, e.g., W. Va. Code Ann. §3–3–5(g)(2)
(Lexis 2020). But the States requiring that absentee ballots
be received by election day do so for weighty reasons that
warrant judicial respect. Federal courts have no business
disregarding those state interests simply because the fed-
eral courts believe that later deadlines would be better.
That constitutional analysis of election deadlines still ap-
plies in the pandemic. After all, during the pandemic, a
State still cannot conduct an election without deadlines.
And the States that require absentee ballots to be received
8 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
by election day still have strong interests in avoiding suspi-
cions of impropriety and announcing final results on or
close to election night.
To be sure, more people are voting absentee during the
pandemic. But the State of Wisconsin has repeatedly in-
structed voters to request and mail their ballots well ahead
of time, and the State has taken numerous steps to accom-
modate the increased number of absentee ballots. Moreo-
ver, the State now has some experience to draw upon when
administering an election during the pandemic. Wisconsin
conducted primary elections in April and August, and has
incorporated the lessons from those experiences into its ex-
tensive planning for the November election. See Wisconsin
Elections Commission, April 7, 2020 Absentee Voting Re-
port 24 (May 15, 2020) (online source archived at www.su-
premecourt.gov). And that planning has paid off so far: For
the November election, more than a million Wisconsin vot-
ers have already voted by absentee ballot.
In attempting to justify the District Court’s injunction,
Applicants also rely on this Court’s decision in April regard-
ing the Wisconsin primary election. They claim that the
Court there approved the District Court’s change of the
deadline for receipt of absentee ballots in the primary elec-
tion, so long as the ballots were postmarked by election day.
RNC, 589 U. S. ___. That assertion is incorrect. In that
case, this Court explicitly stated that the District Court’s
last-minute extension of the deadline for receipt of absentee
ballots was “not challenged in this Court.” Id., at ___ (slip
op., at 1).
In sum, the District Court’s injunction was unwarranted
for three alternative and independent reasons: The District
Court changed the state election laws too close to the elec-
tion. It misapprehended the limited role of federal courts
in COVID–19 cases. And it did not sufficiently appreciate
Cite as: 592 U. S. ____ (2020) 9
KAVANAUGH, J., concurring
the significance of election deadlines. 1
II
The dissent rejects all three of the above conclusions and
applies the ordinary Anderson-Burdick balancing test for
analyzing state election rules. In the dissent’s view, the
District Court permissibly concluded that the benefits of
the State’s deadline for receipt of absentee ballots are out-
weighed by the burdens of the deadline on voters. In light
of the three alternative and independent conclusions out-
lined above, I do not think that we may conduct that kind
——————
1 A federal court’s alteration of state election laws such as Wisconsin’s
differs in some respects from a state court’s (or state agency’s) alteration
of state election laws. That said, under the U. S. Constitution, the state
courts do not have a blank check to rewrite state election laws for federal
elections. Article II expressly provides that the rules for Presidential
elections are established by the States “in such Manner as the Legisla-
ture thereof may direct.” §1, cl. 2 (emphasis added). The text of Article
II means that “the clearly expressed intent of the legislature must pre-
vail” and that a state court may not depart from the state election code
enacted by the legislature. Bush v. Gore, 531 U.S. 98, 120 (2000)
(Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvass-
ing Bd., 531 U.S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker,
146 U.S. 1, 25 (1892). In a Presidential election, in other words, a state
court’s “significant departure from the legislative scheme for appointing
Presidential electors presents a federal constitutional question.” Bush v.
Gore, 531 U.S., at 113 (Rehnquist, C. J., concurring). As Chief Justice
Rehnquist explained in Bush v. Gore, the important federal judicial role
in reviewing state-court decisions about state law in a federal Presiden-
tial election “does not imply a disrespect for state courts but rather a
respect for the constitutionally prescribed role of state legislatures. To
attach definitive weight to the pronouncement of a state court, when the
very question at issue is whether the court has actually departed from
the statutory meaning, would be to abdicate our responsibility to enforce
the explicit requirements of Article II.” Id., at 115.
The dissent here questions why the federal courts would have a role in
that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to
that question, as the unanimous Court stated in Bush v. Palm Beach
County Canvassing Bd., and as Chief Justice Rehnquist persuasively ex-
plained in Bush v. Gore, is that the text of the Constitution requires fed-
eral courts to ensure that state courts do not rewrite state election laws.
10 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
of open-ended balancing test in this case. But even on its
own terms, the dissent’s balancing analysis is faulty, in my
respectful view.
Start by considering the implications of the dissent’s
analysis. In reinstating the District Court’s order extend-
ing Wisconsin’s deadline for receipt of absentee ballots, the
dissent’s approach would necessarily invalidate (or at least
call into question) the laws of approximately 30 States for
the upcoming election and compel all of those States to ac-
cept absentee ballots received after election day. The dis-
sent’s de facto green light to federal courts to rewrite dozens
of state election laws around the country over the next two
weeks seems to be rooted in a belief that federal judges
know better than state legislators about how to run elec-
tions during a pandemic. But over the last several months,
this Court has consistently rejected that federal-judges-
know-best vision of election administration.
The dissent does not fully come to grips with the destabi-
lizing consequences of its analysis, saying that the facts
may differ in other States. But the key facts underlying the
District Court’s injunction are similar in other States: the
existence of the virus and its effects on election workers,
voters, mail systems, and in-person voting. The dissent’s
claim that its reasoning would not necessarily invalidate
the absentee-ballot deadlines of approximately 30 other
States therefore rings hollow.
Turning to the dissent’s balancing analysis, the dissent
does not sufficiently appreciate the necessity of deadlines
in elections, and does not sufficiently account for all the
steps that Wisconsin has already taken to help voters meet
those deadlines.
The dissent claims that the State’s election-day deadline
for receipt of absentee ballots will “disenfranchise” some
Wisconsin voters. But that is not what a reasonable elec-
tion deadline does. This Court has long explained that a
State’s election deadline does not disenfranchise voters who
Cite as: 592 U. S. ____ (2020) 11
KAVANAUGH, J., concurring
are capable of meeting the deadline but fail to do so. See
Rosario, 410 U.S., at 757–758. In other words, reasonable
election deadlines do not “disenfranchise” anyone under
any legitimate understanding of that term. And the dissent
cannot plausibly argue that the absentee-ballot deadline
imposed—and still in place as of today—in most of the
States is not a reasonable one. Those voters who disregard
the deadlines or who fail to take the state-prescribed steps
for meeting the deadlines may have to vote in person. But
no one is disenfranchised by Wisconsin’s reasonable and
commonplace deadline for receiving absentee ballots. In-
deed, more than one million Wisconsin voters have already
requested, received, and returned their absentee ballots.
To help voters meet the deadlines, Wisconsin makes it
easy to vote absentee and has taken several extraordinary
steps this year to inform voters that they should request
and return absentee ballots well before election day.
For starters, as the Seventh Circuit aptly noted, Wiscon-
sin has “lots of rules” that “make voting easier than do the
rules of many other states.” Luft v. Evers, 963 F.3d 665,
672 (2020). Wisconsin law allows voters to vote absentee
without an excuse, no questions asked. Wis. Stat. §6.85
(2017–2018). Registered voters may request an absentee
ballot by mail, e-mail, online, or fax. Wisconsin Elections
Commission, Absentee Voting, https://elections.wi.gov/
voters/absentee.
Since August, moreover, the Wisconsin Elections Com-
mission has been regularly reminding voters of the need to
act early so as to avoid backlogs and potential mail delays.
See, e.g., Wisconsin Elections Commission, Wisconsin Vot-
ing Deadlines and Facts for November 2020 (Aug. 20, 2020),
http://elections.wi.gov/node/7039. In August and Septem-
ber, for example, Wisconsin’s chief elections official explic-
itly urged voters not to wait to request a ballot: “It takes
time for Wisconsin clerks to process your request. Then it
may take up to seven days for you to receive your ballot in
12 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
the mail. It can then take another seven days for your bal-
lot to be returned by mail.” Wisconsin Elections Commis-
sion, Wisconsin Mails Voting Information to Registered
Voters (Sept. 3, 2020), http://elections.wi.gov/node/7077.
Perhaps most importantly, in early September, Wiscon-
sin decided to leave little to chance and mailed every regis-
tered voter in the State who had not already requested an
absentee ballot (2.6 million of Wisconsin’s registered voters)
an absentee ballot application, as well as information about
how to vote absentee. Ibid.
Returning an absentee ballot in Wisconsin is also easy.
To begin with, voters can return their completed absentee
ballots by mail. But absentee voters who do not want to
rely on the mail have several other options. Until election
day, voters may, for example, hand-deliver their absentee
ballots to the municipal clerk’s office or other designated
site, or they may place their absentee ballots in a secure
absentee ballot drop box. Some absentee ballot drop boxes
are located outdoors, either for drive-through or walk-up ac-
cess, and some are indoors at a location like a municipal
clerk’s office. Memorandum from M. Wolfe, Administrator
of the Wisconsin Elections Commission, et al. to All Wiscon-
sin Election Officials (Aug. 19, 2020) (online source ar-
chived at www.supremecourt.gov). The Wisconsin Elec-
tions Commission has made federal grant money available
to local municipalities to purchase additional absentee bal-
lot drop boxes to accommodate expanded absentee voting.
Alternatively, absentee voters may vote “in-person ab-
sentee” beginning two weeks before election day. Wis. Stat.
§6.86(1)(b). A Wisconsin voter who votes “in-person absen-
tee” fills out an absentee ballot in person at a municipal
clerk’s office or other designated location before election
day. Some municipalities have created drive-up absentee
voting sites to allow voters to vote “in-person absentee”
without leaving their cars. See, e.g., City of Madison Clerk’s
Office, In-Person Absentee Voting Hours and Locations
Cite as: 592 U. S. ____ (2020) 13
KAVANAUGH, J., concurring
(online source archived at www.supremecourt.gov).
Finally, on election day, a voter may drop off an absentee
ballot at a polling place until 8:00 p.m. Memorandum from
M. Wolfe, Administrator of the Wisconsin Elections Com-
mission, to Wisconsin Municipal Clerks (Mar. 31, 2020)
(online source archived at www.supremecourt.gov).
In sum, as the Governor of Wisconsin correctly said back
in March as the COVID–19 crisis broke: “The good news is
that absentee voting in Wisconsin is really easy.” Marley,
The Deadline to Request an Absentee Ballot in Wisconsin
Is Friday. Here’s How You Do It., Milwaukee Journal Sen-
tinel, Mar. 13, 2020 (online source archived at www.su-
premecourt.gov).
The current statistics for the November election bear out
the Governor’s statement that absentee voting in Wisconsin
is “really easy.” In huge and unprecedented numbers, Wis-
consin voters have already taken advantage of the State’s
generous absentee voting procedures for the November
election. As of October 26, 2020, the Wisconsin Elections
Commission has mailed 1,706,771 absentee ballots to Wis-
consin voters. And it has already received back from voters
1,344,535 completed absentee ballots. Wisconsin Elections
Commission, Absentee Ballot Report—November 3, 2020
General Election (Oct. 26, 2020), https://elec-
tions.wi.gov/node/7207.
As those statistics suggest, the dissent’s charge that Wis-
consin has disenfranchised absentee voters is not tenable.
As the Seventh Circuit explained, 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 opportuni-
ties allowed by state law.” Bostelmann, ___ F. 3d, at ___.
The dissent insists, however, that “tens of thousands”
and perhaps even 100,000 votes will not be counted if we do
not reinstate the District Court’s extension of the deadline.
Post, at 3 (opinion of KAGAN, J.). The District Court arrived
14 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
at the same prediction, but it was a prediction, not a finding
of fact. Indeed, the District Court did not include this pre-
diction in the facts section of its opinion. Democratic Na-
tional Committee v. Bostelmann, ___ F. Supp. 3d ___, ___
(WD Wis., Sept. 21, 2020). For its part, the dissent makes
the same prediction by looking at the number of absentee
ballots that arrived after the primary election day in April.
But in the April primary, the received-by deadline had been
extended to allow receipt of absentee ballots after election
day. The dissent’s statistic tells us nothing about how
many voters might miss the deadline when voters know
that the ballots must be received by election day. To take
an analogy: How many people would file their taxes after
April 15 if the filing deadline were changed to April 21?
Lots. That fact tells us nothing about how many people
would file their taxes after April 15 if the deadline remained
at April 15.
The dissent also seizes on the fact that Wisconsin law al-
lows voters to request absentee ballots until October 29, five
days before election day. But the dissent does not grapple
with the good reason why the State allows such late re-
quests. The State allows those late requests for ballots be-
cause it wants to accommodate late requesters who still
want to obtain an absentee ballot so that they can drop it
off in person and avoid lines at the polls on election day. No
one thinks that voters who request absentee ballots as late
as October 29 can both receive the ballots and mail them
back in time to be received by election day. As we stated in
April, “even in an ordinary election, voters who request an
absentee ballot at the deadline for requesting ballots . . .
will usually receive their ballots on the day before or day of
the election.” RNC, 589 U. S., at ___ (slip op., at 3). Rather,
those late requesters would, after receiving the ballots, nec-
essarily have to drop their absentee ballots off in person at
one of the designated locations. In short, Wisconsin pro-
vides an option to request absentee ballots until October 29
Cite as: 592 U. S. ____ (2020) 15
KAVANAUGH, J., concurring
for voters who decide relatively late in the game that they
would prefer to avoid lines at the polls on election day.
The dissent’s October 29-based argument falls short for
another reason as well: The dissent’s approach would actu-
ally penalize Wisconsin for being too generous with its ab-
sentee voting regime. Under the dissent’s theory, if Wis-
consin had just set a more restrictive deadline for voters to
request absentee ballots—say, two weeks before election
day—there presumably would not be a constitutional prob-
lem with the State’s election-day deadline for receipt of ab-
sentee ballots. But it makes little sense to penalize Wiscon-
sin for accommodating voters and making it easier for them
to vote absentee and avoid lines on election day.
The dissent’s rhetoric of “disenfranchisement” is mis-
placed for still another reason. As the dissent uses that
term, the dissent’s own position would itself “disenfran-
chise” voters. What about voters who request an absentee
ballot after October 29? What about voters who mail their
ballots after November 3? What about voters who mail
their ballots by November 3 but whose ballots arrive after
November 9? Even if we reinstated the District Court’s or-
der as the dissent would have us do, those votes would not
count. The dissent’s position would itself therefore “disen-
franchise” some voters, at least as the dissent uses the
term. All of which simply shows that the dissent’s rhetoric
of disenfranchisement is mistaken.
The dissent responds that I am just disagreeing with the
facts found by the District Court. Not so. I do not disagree
with any of the relevant historical facts that the District
Court found and that the dissent highlights. The dissent,
for example, calls attention to the District Court’s finding
that nearly two million Wisconsin voters in this election are
likely to request mail ballots. I agree. Indeed, the Wiscon-
sin Elections Commission has already sent nearly that
number of absentee ballots to voters who have requested
16 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
them. The dissent notes that the influx of ballots has im-
posed a serious burden on some local election offices. I
agree. The dissent points out that the District Court found
that ballots can sometimes take two weeks to be sent and
returned in light of Postal Service delays. I agree. The dis-
sent highlights that the pandemic has gotten worse, not
better, in Wisconsin over the last few weeks. I agree. And
the dissent notes that the in-person voting option can pose
a health risk to elderly and ill voters. I agree; I am fully
aware of and sensitive to that reality.
Contrary to the dissent’s attempt to characterize our dis-
agreement as factual, the facts in this case are largely un-
disputed. I have zero disagreement with the dissent on the
question of whether COVID–19 is a serious problem. It is.
Instead, I disagree with some of the District Court’s and the
dissent’s speculative predictions about how the voting pro-
cess might unfold with an election-day deadline for receipt
of absentee ballots. And I disagree with the District Court’s
and the dissent’s legal analysis of whether, given the
agreed-upon facts, the State has done enough to protect the
right to vote under the Constitution and this Court’s prece-
dents, given the necessity of having election deadlines.
In short, I agree with the dissent that COVID–19 is a se-
rious problem. But you need deadlines to hold elections—
there is just no wishing away or getting around that funda-
mental point. And Wisconsin’s deadline is the same as that
in 30 other States and is a reasonable deadline given all the
circumstances.
To be clear, in every election a voter who requests an ab-
sentee ballot, particularly a voter who waits until the last
moments to request an absentee ballot, might not receive a
ballot in time to mail it back in, or in some cases may not
receive a ballot until after election day. Or in some cases, a
voter may mail a completed ballot, but it may get delayed
Cite as: 592 U. S. ____ (2020) 17
KAVANAUGH, J., concurring
and arrive too late to be counted. 2 Indeed, in 2012 and
2016, the States rejected more than 70,000 ballots in each
election because the ballots missed the deadlines. U. S.
Election Assistance Commission, 2012 Election Admin-
istration and Voting Survey 42 (2013); U. S. Election Assis-
tance Commission, 2016 Election Administration and Vot-
ing Survey 11, 25 (2017). But moving a deadline would not
prevent ballots from arriving after the newly minted dead-
line any more than moving first base would mean no more
close plays. And more to the point, the fact that some bal-
lots will be late in any system with deadlines does not make
Wisconsin’s widely used deadline facially unconstitutional.
See Crawford, 553 U.S., at 202–203.
Put another way, the relevant question is not whether
any voter would ever miss the deadlines. After all, in every
deadline case, the answer would always be yes, and no elec-
tion deadline would ever be permissible. The proper ques-
tion under the Constitution is whether the deadline is rea-
sonable under the circumstances. See Rosario, 410 U.S.,
at 760. Again, Wisconsin’s deadline is the same as that in
about 30 other States for the November election and is rea-
sonable, for the reasons I have explained.
In any event, if a Wisconsin voter does not receive an ab-
sentee ballot in time to cast it, the voter still has the option
of voting in person. And Wisconsin, like many other States,
demonstrated in the April and August primary elections
that it can run an in-person election in a way that is rea-
sonably safe for Wisconsin voters, with socially distanced
——————
2 In Wisconsin, a voter can track his or her ballot online. MyVote Wis-
consin, Track My Ballot, https://myvote.wi.gov/en-us/TrackMyBallot. If
a voter is concerned that the ballot may not be received in time, the voter
can cancel the absentee ballot and request a new one or vote in person,
as long as the voter meets the deadlines set by the municipality for doing
so, which typically fall a few days before election day. Memorandum
from M. Wolfe, Administrator of the Wisconsin Elections Commission, to
Wisconsin County Clerks et al. (Oct. 19, 2020) (online source archived at
www.supremecourt.gov).
18 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAVANAUGH, J., concurring
lines, mask requirements, and sanitizing protocols. The
District Court acknowledged that in-person voting can be
done “safely” again in November “if the majority of votes
are cast in advance, sufficient poll workers, polling places,
and PPE are available, and social distancing and masking
protocols are followed.” Bostelmann, ___ F. Supp. 3d, at
___. If a voter requests a ballot at the last minute—long
after the State has told voters that they should request bal-
lots—and if that voter does not receive a ballot by election
day, the voter still has the option of voting in person. That
said, the better option, as Wisconsin has repeatedly an-
nounced, is for voters who wish to vote absentee to request
and submit their ballots well ahead of time. That is what
tens of millions of voters across America—including more
than one million voters in Wisconsin—have already done.
* * *
For those reasons, I concur in the denial of the applica-
tions to vacate the stay.
Cite as: 592 U. S. ____ (2020) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A66
_________________
DEMOCRATIC NATIONAL COMMITTEE, ET AL. v.
WISCONSIN STATE LEGISLATURE, ET AL.
ON APPLICATION TO VACATE STAY
[October 26, 2020]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
In April, residents of Wisconsin voted in presidential pri-
maries. That election was one of the first during the
COVID–19 pandemic, which has turned in-person voting
(with its often-long lines, touch screens, and enclosed
booths) into a health risk, especially for older and less
healthy Americans. Given these emergency conditions, a
district judge directed the State to accept mail ballots re-
ceived in the six days after the polls closed. That extension
of Wisconsin’s ballot-receipt deadline ensured that COVID-
related delays in the delivery and processing of mail ballots
would not disenfranchise citizens fearful of voting in per-
son. Because of the court’s ruling, state officials counted
80,000 ballots—about five percent of the total cast—that
were postmarked by Election Day but would have been dis-
carded for arriving a few days later.
Today, millions of Wisconsin citizens are preparing to
vote in the November election. But COVID is not over. In
Wisconsin, the pandemic is much worse—more than 20
times worse, by one measure—than it was in the spring:
The State’s health department now reports a weekly aver-
age of 3,879 cases per day, compared to 175 per day when
the April election took place. See Wisconsin Department of
Health Services, COVID–19: Wisconsin Cases (Oct. 26,
2020), www.dhs.wisconsin.gov/covid-19/cases.htm. Indeed,
2 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
Wisconsin is one of the hottest of all COVID hotspots in the
Nation. So rather than vote in person, many Wisconsinites
will again choose to vote by mail. State election officials
report that 1.7 million people—about 50 percent of Wiscon-
sin’s voters—have already asked for mail ballots. And more
are expected to do so, because state law gives voters until
October 29, five days before Election Day, to make that re-
quest.
To ensure that these mail ballots are counted, the district
court ordered in September the same relief afforded in
April: a six-day extension of the receipt deadline for mail
ballots postmarked by Election Day. The court supported
that order with specific facts and figures about how COVID
would affect the electoral process in Wisconsin. See Demo-
cratic National Committee v. Bostelmann, ___ F. Supp. 3d
___, ___–___, ___–___, ___, 2020 WL 5627186, *6–*7, *9–
*10, *21 (WD Wis., Sept. 21, 2020). The court found that
the surge in requests for mail ballots would overwhelm
state officials in the weeks leading up to the October 29 bal-
lot-application deadline. And it discovered unusual delays
in the United States Postal Service’s delivery of mail in the
State. The combination of those factors meant, as a high-
ranking elections official testified, that a typical ballot
would take a full two weeks “to make its way through the
mail from a clerk’s office to a voter and back again”—even
when the voter instantly turns the ballot around. Id., at
___, n. 10, 2020 WL 5627186, *5, n. 10. Based on the April
election experience, the court determined that many voters
would not even receive mail ballots by Election Day, making
it impossible to vote in that way. And as many as 100,000
citizens would not have their votes counted—even though
timely requested and postmarked—without the six-day ex-
tension. (To put that number in perspective, a grand total
of 284 Wisconsin mail ballots were not counted in the 2016
Cite as: 592 U. S. ____ (2020) 3
KAGAN, J., dissenting
election. 1) In the court’s view, the discarding of so many
properly cast ballots would severely burden the constitu-
tional right to vote. The fit remedy was to create a six-day
grace period, to allow those ballots a little extra time to ar-
rive in the face of unprecedented administrative and deliv-
ery delays.
But a court of appeals halted the district court’s order,
and today this Court leaves that stay in place. I respectfully
dissent because the Court’s decision will disenfranchise
large numbers of responsible voters in the midst of hazard-
ous pandemic conditions.
I
Start with this fact: The court of appeals did not dispute
any of the district court’s careful findings about the effect of
COVID on voting in Wisconsin. The appellate court did not
question the health risks—now increasing daily—of in-per-
son voting in the State, especially to senior citizens and
those with some pre-existing conditions. 2 It did not deny
that, because of those dangers, state election offices will be
swamped until the end of October by timely mail-ballot ap-
plications. It did not contest that backlogs in those offices,
combined with unusual delays in mail delivery, will prevent
tens of thousands of Wisconsinites—through no fault of
their own—from successfully casting a mail ballot. Nor did
the appellate court express doubt that disenfranchisement
of that kind, and on that scale, imposes a severe burden on
the right to vote. See generally Burdick v. Takushi, 504
——————
1 See U. S. Election Assistance Commission, 2016 Election Administra-
tion and Voting Survey 25.
2 See C. Cotti, B. Engelhardt, J. Foster, E. Nesson, & P. Niakamp, The
Relationship Between In-Person Voting and COVID–19: Evidence From
the Wisconsin Primary, NBER Working Paper No. 27187, p. 11 (rev. Oct.
2020) (“Across all models, we find an increase in the positive share of
COVID–19 cases in the weeks following the election in counties that had
more in-person votes per voting location, all else equal”).
4 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
U. S. 428, 434 (1992). In fact, the court never even ad-
dressed the constitutional issue.
How could that be? In the appellate court’s view, this
Court’s decision in Purcell v. Gonzalez, 549 U.S. 1 (2006)
(per curiam), prohibited the district court from modifying
Wisconsin’s election rules so close to (i.e., six weeks before)
Election Day. See Democratic National Committee v. Bos-
telmann, ___ F. 3d ___, ___–___, 2020 WL 5951359, *1–*2
(CA7, Oct. 8, 2020) (per curiam); see also ante, at 2–4
(KAVANAUGH, J., concurring). But that is a misunderstand-
ing of Purcell’s message. In fixating on timing alone, the
court of appeals went astray.
The Court in Purcell considered an appellate decision re-
versing a district court’s refusal to enjoin a voter identifica-
tion law shortly before an election. We vacated the decision
because the court of appeals—much like the one here—
failed to “give deference to [a district court’s] discretion” in
assessing the propriety of injunctive relief. 549 U.S., at 5.
In doing so, we briefly addressed how to “weigh” whether
an injunction of an election rule should issue. Id., at 4. A
court, we counseled, must balance the “harms attendant
upon issuance or nonissuance of an injunction,” together
with “considerations specific to election cases” that may af-
fect “the integrity of our electoral processes.” Ibid. Among
those election-specific factors, we continued, was the poten-
tial for a court order, especially close to Election Day, to “re-
sult in voter confusion and consequent incentive to remain
away from the polls.” Id., at 4–5.
That statement, as the dissent below saw, “articulated
not a rule but a caution.” ___ F. 3d, at ___, 2020 WL
5951359, *4 (Rovner, J., dissenting). Last-minute changes
to election processes may baffle and discourage voters; and
when that is likely, a court has strong reason to stay its
hand. But not every such change poses that danger. And a
court must also take account of other matters—among
them, the presence of extraordinary circumstances (like a
Cite as: 592 U. S. ____ (2020) 5
KAGAN, J., dissenting
pandemic), the clarity of a constitutional injury, and the ex-
tent of voter disenfranchisement threatened. At its core,
Purcell tells courts to apply, not depart from, the usual
rules of equity. See, e.g., Winter v. Natural Resources De-
fense Council, Inc., 555 U.S. 7, 24 (2008) (“In each case,
courts must balance the competing claims of injury and
must consider the effect on each party of the granting or
withholding of the requested relief” (internal quotation
marks omitted)). And that means courts must consider all
relevant factors, not just the calendar. Yes, there is a dan-
ger that an autumn injunction may confuse voters and sup-
press voting. But no, there is not a moratorium on the Con-
stitution as the cold weather approaches. Remediable
incursions on the right to vote can occur in September or
October as well as in April or May.
And so the district court rightly held here. It is hard to
see how the extension of a ballot-receipt deadline could con-
fuse citizens about how to vote: At worst, a voter not in-
formed of the new deadline would (if she could) put her bal-
lot in the mail a few days earlier than needed. Nor would
that measure discourage Wisconsin citizens from exercising
their right to the franchise. To the contrary, it would pre-
vent the State from throwing away the votes of people ac-
tively participating in the democratic process. And what
will undermine the “integrity” of that process is not the
counting but instead the discarding of timely cast ballots
that, because of pandemic conditions, arrive a bit after Elec-
tion Day. Purcell, 549 U.S., at 4. 3 On the scales of both
constitutional justice and electoral accuracy, protecting the
——————
3 JUSTICE KAVANAUGH alleges that “suspicions of impropriety” will re-
sult if “absentee ballots flow in after election day and potentially flip the
results of an election.” Ante, at 7. But there are no results to “flip” until
all valid votes are counted. And nothing could be more “suspicio[us]” or
“improp[er]” than refusing to tally votes once the clock strikes 12 on elec-
tion night. To suggest otherwise, especially in these fractious times, is
to disserve the electoral process.
6 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
right to vote in a health crisis outweighs conforming to a
deadline created in safer days.
Indeed, I see no more apt time for the district court to
have issued its injunction than when it did. The court of
appeals insisted that the injunction would better have come
in May, a half-year before Election Day; then, the court
said, the order “could not be called untimely.” ___ F. 3d, at
___, 2020 WL 5951359, *2. But “untimely” can mean too
early as well as too late. And a May order could have been
premature, perhaps even foolishly so. At that time, the dis-
trict court could not have known the course COVID would
take. Cf. FDA v. American College of Obstetricians & Gy-
necologists, ante, p. ___ (instructing a district court to con-
sider whether pandemic conditions have changed enough to
warrant modifying an injunction). Nor could the court have
known about the current ability of Wisconsin election of-
fices or the Postal Service to handle increased demand for
mail ballots. (Doubts about the Postal Service’s delivery
performance, for example, did not arise until August.) In
waiting until late September, the district court resolved to
base its ruling on concrete evidence—not on unfounded
speculation.
And without Purcell, not much is left in the appellate
court’s opinion to justify its stay. That court separately ar-
gued that “the design of electoral procedures” is a solely
“legislative task.” ___ F. 3d, at ___, 2020 WL 5951359, *2;
see also ante, at 4–6 (KAVANAUGH, J., concurring). But that
is not so when those procedures infringe the constitution-
ally enshrined right to vote. See, e.g., Anderson v. Cele-
brezze, 460 U.S. 780, 786 (1983) (invalidating a state filing
deadline); Harper v. Virginia Bd. of Elections, 383 U.S. 663,
666 (1966) (invalidating a state poll tax); Reynolds v. Sims,
377 U.S. 533, 568 (1964) (invalidating state districting
maps). To be sure, deference is usually due to a legisla-
ture’s decisions about how best to manage the COVID pan-
demic. See South Bay Pentecostal Church v. Newsom, 590
Cite as: 592 U. S. ____ (2020) 7
KAGAN, J., dissenting
U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial
of application for injunctive relief) (slip op., at 2). But the
Wisconsin legislature has not for a moment considered
whether recent COVID conditions demand changes to the
State’s election rules; that body has not even met since
April. Compare Litke, Fact Check: Wisconsin Legislators
Have Gone About 6 Months Without Passing a Bill, USA
Today, Oct. 7, 2020 (online source archived at www.su-
premecourt.gov) (“Wisconsin lawmakers have been among
the least active in the country, according to a database of
all COVID-related legislation across the country main-
tained by the National Conference of State Legislatures”),
with Andino v. Middleton, ante, p. ___ (staying an order en-
joining South Carolina’s witness requirement for mail bal-
lots when that rule was part of a legislative package to ad-
just voting procedures in response to COVID). And if there
is one area where deference to legislators should not shade
into acquiescence, it is election law. For in that field politi-
cians’ incentives often conflict with voters’ interests—that
is, whenever suppressing votes benefits the lawmakers who
make the rules.
II
JUSTICE KAVANAUGH’s concurring opinion goes further
than the court of appeals. Rather than relying on Purcell
and deference alone, he also concludes that Wisconsin’s
election rules, as applied during the COVID pandemic, do
not violate the right to vote. See ante, at 6–9. That follows,
in his view, because voting by mail is “easy” in Wisconsin
and because in-person voting is “reasonably safe.” Ante, at
11, 12, 17. 4 (In another concurrence, JUSTICE GORSUCH
——————
4 Oddly, the concurrence suggests that no change in the State’s ballot-
receipt deadline is needed because Wisconsin has “incorporated the les-
sons” from April’s primary “into its extensive planning for the November
election.” Ante, at 8. But the April election was conducted under the
same extended deadline that the Court today precludes. See supra, at 1.
One might have thought the April election’s principal lesson is that a
8 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
agrees. Ante, at 1–2.)
The first problem with that reasoning is that the district
court found to the contrary. As this Court constantly states,
a district court has the greatest familiarity with the facts in
a case, because it oversees the development and presenta-
tion of evidence. See, e.g., Purcell, 549 U.S., at 5; see also
Fed. Rule Civ. Proc. 52(a). That is why the court of appeals
rightly did not question any of the lower court’s findings.
See supra, at 3. And why the concurrence is wrong to take
a different tack.
Recall that the district court’s findings include the follow-
ing. See supra, at 2–3. The COVID pandemic has been get-
ting worse and worse in Wisconsin. And as the State has
“broken numerous new case records,” in-person voting—ac-
cording to credible expert testimony—creates a “significant
[health] risk,” especially for older and sicker citizens. ___
F. Supp. 3d, at ___–___, 2020 WL 5627186, *9–*10. For
that reason, Wisconsinites have turned to the mails. Ac-
cording to the state elections commission, close to 2 million
people are likely to request mail ballots. See id., at ___,
2020 WL 5627186, *9. (That is about double the number of
already-returned ballots that the concurrence chooses to
emphasize. See ante, at 8, 11, 18.) State election offices
have not received the resources they need to deal with that
influx of applications, and severe administrative backlogs
have therefore developed. See ___ F. Supp. 3d, at ___, 2020
WL 5627186, *9. Postal Service delays, detailed by both
state and federal officials, compound the risk that voters
will be unable to return timely requested mail ballots by
Election Day. See ibid. And if a voter discovers on Election
Day that her mail ballot has not yet arrived, Wisconsin law
prevents her from voting in person—even assuming she
would undertake the risk. See Wis. Stat. §6.86(6). All these
——————
slightly altered ballot-receipt deadline can save thousands of timely cast
mail ballots from the garbage bin.
Cite as: 592 U. S. ____ (2020) 9
KAGAN, J., dissenting
facts would mean, as the chair of the Wisconsin Elections
Commission testified, that many thousands of timely re-
quested and postmarked votes—potentially into the six-fig-
ure range—would not be counted without a short extension
of the ballot-receipt deadline. See ___ F. Supp. 3d, at ___,
2020 WL 5627186, *21; Electronic Case Filing in No. 3–20–
cv–459, Doc. 299 (WD Wis.), p. 9.
The concurrence fails to give those findings the respect
they are due. Of course, the concurrence says it is not com-
mitting that elementary error; according to JUSTICE
KAVANAUGH, he disputes only the district court’s “specula-
tive predictions,” not its statement of “historical facts.”
Ante, at 15–16. But the concurrence alternately rejects, ig-
nores, or accepts only pro forma the district court’s account
of the facts (just the facts). In responding to this dissent,
the concurring opinion acknowledges that in-person voting
in Wisconsin “can pose a health risk.” Ante, at 16. Yet in
condemning the injunction, it continues to insist—how else
could it reach the decision it does?—that going to the polls
is “reasonably safe” for Wisconsin’s citizens, contrary to the
expert testimony the district court relied on. Ante, at 17.
Similarly, the concurrence nods glancingly to increased bal-
lot applications, see ante, at 16, but it fails to recount (as
the district court did in detail) how that influx has created
heavy backlogs and prevented ballots from issuing in timely
fashion. And it does not discuss the evidence of unusual,
even unprecedented, delays in postal delivery service in
Wisconsin. In short, the concurrence refuses to engage with
the core of the analysis supporting the district court’s in-
junction: that a veritable tsunami (in the form of a pan-
demic) has hit Wisconsin’s election machinery, and dis-
rupted all its usual mail ballot operations. And as to the
supposedly “speculative prediction” that without the ballot-
receipt extension as many as 100,000 timely cast mail votes
would go uncounted? That estimate itself derived from the
10 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
factual findings just listed, along with the credible testi-
mony of the elections commission’s chair—all matters in-
disputably entitled to deference from an appellate tribunal.
Those findings, and not the concurrence’s substitute facts
purporting to show that voting in Wisconsin is safe and
easy, should properly ground today’s decision. 5
A related flaw in the concurring opinion is how much it
reasons from normal, pre-pandemic conditions. Cf. Repub-
lican National Committee v. Democratic National Commit-
tee, 589 U. S. ___, ___ (2020) (Ginsburg, J., dissenting) (slip
op., at 4) (“The Court’s suggestion that the current situation
is not substantially different from an ordinary election bog-
gles the mind”) (internal quotation marks omitted). A “rea-
sonable election deadline,” the concurrence says, “does not
disenfranchise voters.” Ante, at 10. I have no argument
with that statement, even though some voters may overlook
the deadline. See Rosario v. Rockefeller, 410 U.S. 752, 757–
758 (1973). But what is “reasonable” in one set of circum-
stances may become unreasonable in another. And when
that switch occurs, a constitutional problem arises. So it
matters not that Wisconsin could apply its ballot-receipt
deadline when ballots moved rapidly through the mails and
people could safely vote in person. At this time, neither con-
dition holds—again, according to the district court’s emi-
nently believable findings. Today, mail ballots often travel
at a snail’s pace, and the elderly and ill put themselves in
peril if they go to the polls. So citizens—thousands and
thousands of them—who have followed all the State’s rules
——————
5 Note as well that nothing rides on the exactness of the district court’s
estimate. Suppose that without the ballot-receipt extension, only (only?)
half as many votes would be discarded as the district court thought. The
court’s decision would have remained the same, and so too everything I
say here. But as for the concurrence? Who can know? JUSTICE
KAVANAUGH does not reveal how many uncounted votes he thinks would
violate the Constitution. Nor does he suggest how many votes short of
that level will be discarded because of the Court’s decision today.
Cite as: 592 U. S. ____ (2020) 11
KAGAN, J., dissenting
still cannot cast a successful vote. And because that is true,
the ballot-receipt deadline that once survived constitutional
review no longer does. 6
That deadline, contrary to JUSTICE KAVANAUGH’s view,
now disenfranchises Wisconsin citizens—however much he
objects to applying that term here. Far from using the word
“rhetoric[ally],” ante, at 15, I mean it precisely. During
COVID, the State’s ballot-receipt deadline and the Court’s
decision upholding it disenfranchise citizens by depriving
them of their constitutionally guaranteed right to vote. Be-
cause the Court refuses to reinstate the district court’s in-
junction, Wisconsin will throw out thousands of timely re-
quested and timely cast mail ballots. And today’s decision
does not stand alone. In other recent cases as well, the
Court has halted injunctions necessary for people to cast
ballots safely. See Merrill v. People First of Ala., ante, p.
___; Merrill v. People First of Ala., 591 U. S. ___ (2020); Re-
publican National Committee, 589 U. S. ___. 7 As the
——————
6 The concurrence is wrong to view that conclusion as casting doubt on
all similar deadlines in all other States. See ante, at 10. The district
court rested its constitutional judgment, as I would too, on a confluence
of factors: COVID conditions in Wisconsin, the scarce time between the
State’s ballot-application and ballot-receipt deadlines, evidence about in-
state mail delivery and the administrative capacity of state election of-
fices. See supra, at 2–3, 8–9. In another State with all the same facts,
the same result should obtain. But in another State with different
facts—say, a less intense outbreak of COVID, an earlier ballot-applica-
tion deadline, faster mail delivery, and better staffed and funded election
offices—the constitutional analysis should come out a different way.
7 At the same time that JUSTICE KAVANAUGH defends this stance by
decrying a “federal-judges-know-best vision of election administration,”
ante, at 10, he calls for more federal court involvement in “reviewing
state-court decisions about state [election] law,” ante, at 9, n. 1. It is hard
to know how to reconcile those two views about the federal judiciary’s
role in voting-rights cases. Contrary to JUSTICE KAVANAUGH’s attempted
explanation, neither the text of the Elections Clause nor our precedent
interpreting it leads to his inconstant approach. See Arizona State Leg-
islature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787,
817–818 (2015); Smiley v. Holm, 285 U.S. 355, 372 (1932).
12 DEMOCRATIC NATIONAL COMMITTEE v. WISCONSIN
STATE LEGISLATURE
KAGAN, J., dissenting
COVID pandemic rages, the Court has failed to adequately
protect the Nation’s voters.
* * *
For all these reasons, I would vacate the court of appeals’
stay. The facts, as found by the district court, are clear:
Tens of thousands of Wisconsinites, through no fault of
their own, may receive their mail ballots too late to return
them by Election Day. Without the district court’s order,
they must opt between “brav[ing] the polls,” with all the
risk that entails, and “los[ing] their right to vote.” Repub-
lican National Committee, 589 U. S., at ___ (Ginsburg, J.,
dissenting) (slip op., at 6). The voters of Wisconsin deserve
a better choice.