Democratic National Committee v. Wisconsin State Legislature

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-deadline 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 re-
sponses reflects our constitutional system of federalism.
Different state legislatures may make different choices. As-
sessing the complicated 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 responsibility 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.