_________________

_________________ 1 Cite as: 589 U. S. ____ (2020)

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press.


## SUPREME COURT OF THE UNITED STATES

No. 19A1016

REPUBLICAN NATIONAL COMMITTEE, ET AL

. v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL

.

ON APPLICATION FOR STAY

[April 6, 2020]

P ER C URIAM

. The application for stay presented to J USTICE
K

AVANAUGH and by him referred to the Court is granted. The District Court’s order granting a preliminary injunc

tion is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020. Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absen

tee ballot process. In this Co urt, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has af

forded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and post

marked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary in

junction motions, the plaintiffs did not ask that the District2 REPUBLICAN NATIONAL COMMITTEE v. DEMOCRATIC NATIONAL COMMITTEE

Per Curiam

Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee bal

lots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extend

ing the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters— for an additional six days afte r the scheduled election day fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction moti ons. Our point is not that the argument is necessarily forfeited, but is that the plain

tiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District
Court contravened this Court’s precedents and erred by or

dering such relief. This Court has repeatedly emphasized
that lower federal courts sh ould ordinarily not alter the
election rules on the eve of an election. See Purcell v. Gon

zalez , 549 U. S. 1 (2006) ( per curiam ); Frank v. Walker , 574
U. S. 929 (2014); Veasey v. Perry , 574 U. S. __ (2014). The unusual nature of the District Court’s order allowing ballots to be mailed and postma rked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any election results fo r six days after election day.In doing so, the District Court in essence enjoined nonparties to this lawsuit. It is highly questionable, moreover, that this attempt to suppress disclosure of the election re

sults for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process. The Dis

trict Court’s order suppressing di sclosure of election results
showcases the unusual nature of the District Court’s order3 Cite as: 589 U. S. ____ (2020)

Per Curiam

allowing absentee ballots ma iled and postmarked after election day to be counted. And all of that further under

scores the wisdom of the Purcell principle, which seeks to avoid this kind of judicially created confusion. The dissent is quite wrong on several points. First, the dissent entirely disregards th e critical point that the plain

tiffs themselves did not ask for this additional relief in their preliminary injunction motions. Second, the dissent con

tends that this Court should not intervene at this late date. The Court would prefer not to do so, but when a lower court

intervenes and alters the election rules so close to the elec

tion date, our precedents indicate that this Court, as appro

priate, should correct that error. Third, the dissent refers to voters who have not yet received their absentee ballots. But even in an ordinary election, voters who request an ab

sentee ballot at the deadline for requesting ballots (which was this past Friday in this case) will usually receive their ballots on the day before or day of the election, which in this case would be today or tomorro w. The plaintiffs put for

ward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee bal

lots. In that regard, it bears mention that absentee voting has been underway for many weeks, and 1.2 million Wis

consin voters have requested and have been sent their ab

sentee ballots, which is about five times the number of ab

sentee ballots requested in the 2016 spring election. Fourth, the dissent’s rhetoric is entirely misplaced and com

pletely overlooks the fact that the deadline for receiving bal

lots was already extended to accommodate Wisconsin vot

ers, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wiscon

sin can cast their ballots and have their votes count. That4 REPUBLICAN NATIONAL COMMITTEE v. DEMOCRATIC NATIONAL COMMITTEE

Per Curiam

is the relief that the plaintiffs actually requested in their preliminary injunction motions. The District Court on its own ordered yet an additional extension, which would allow
voters to mail their ballots afte r election day, which is ex

traordinary relief and would fundamentally alter the na

ture of the election by allowi ng voting for six additional days after the election. Therefore, subject to any further alterations that the State may make to state law, in order to be counted in this election a voter’s absentee ballot must be either (i) post

marked by election day, April 7, 2020, and received by April 13, 2020, at 4:00 p.m., or (ii) hand-delivered as provided un

der state law by April 7, 2020, at 8:00 p.m. The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough. The stay is granted pending final disposition of the ap

peal by the United States Court of Appeals for the Seventh Circuit and the timely filing and disposition of a petition for
a writ of certiorari. Should th e petition for a writ of certio

rari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judg

ment of this Court.

It is so ordered._________________

_________________ 1 Cite as: 589 U. S. ____ (20 20 )

G INSBURG

, J. , dissenting



## SUPREME COURT OF THE UNITED STATES

No. 1 9A1016

REPUBLICAN NATIONAL COMMITTEE, ET AL

. v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL

.

ON APPLICATION FOR STAY

[ April 6, 2020 ]

J USTICE G INSBURG , with whom J USTICE B REYER

, J USTICE S OTOMAYOR

, and J USTICE K AGAN join, dissenting.
The District Court, acting in view of the dramatically evolving COVID– 19 pandemic, entered a preliminary in

junction to safeguard the availability of absentee voting in Wisconsin’s spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely re

quested absentee ballots from casting their votes. I would not disturb the District Court’s disposition, wh ich the Sev

enth Circuit allowed to stand.

I
A
Wisconsin’s spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential pri

maries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, ov er 100 other judge

ships, over 500 school board seats, and several thousand other positions. Democratic National Committee v. Bostel

mann , ___ F. Supp. 3d ___, ___, 2020 WL 1638374, *3 (WD
Wis.

, Apr. 2, 2020). In the weeks leading up to the election, the C OVID

– 19 pandemic has become a “public health crisis.” Id.

, at ___, 2020 WL 1638374, *1. As of April 2, Wisconsin had 1,550
confirmed cases of COVID

– 19 and 24 deaths attributable to the disease, “with evidence of increasing community2 REPUBLICAN NATIONAL COMMITTEE v. DEMOCRATIC NATIONAL COMMITTEE

G INSBURG

, J. , dissenting

spread.” Id.

, at ___ , 2020 WL 1638374, *3

. On March 24, the Governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Ibid. Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin vot

ers— at the encouragement of public officials

— have turned to voting absentee. Id.

, at ___, 2020 WL 1638374, * 4. About one million more voters have requested absentee ballots in
this election than in 2016. Ibid. Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters. Id.

, at ___

–

___, 2020 WL 1638374, * 4– *5.

B
Several weeks ago, plaintiffs

— comprising individual Wisconsin voters, commun ity organizations, and the state and national Democratic parties

— filed three lawsuits against members of the Wisconsin Elections Commission in
the United States District Court for the Western District of
Wisconsin. 1 The District Court consolidated the su its on March 28. The plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID

– 19 pandemic on the upcoming election. After holding an evidentiary hearing, the District Court issued a preliminary injunction on April 2. As re levant here, the court concluded that the existing deadlines for ab

sentee voting would unconstitutionally burden Wisconsin citizens’ right to vote. See Burdick v. Takushi , 504 U. S. 428, 434 (1992); Anderson v. Celebrezze , 460 U. S. 780, 789 (1983)

. To a lleviate that burden, the court entered a two

fold remedy. First, the District Court extended the deadline for voters to request absentee ballots from April 2 to April

——————

1 T he state and national Republican parties intervene d as defendants.

T he District Court denied interve ntion by the state legislature, which

th e Seventh Circuit later allowed

.3 Cite as: 589 U. S. ____ (2020)

G INSBURG

, J. , dissenting

3

. Second, the District Court extended the deadline for elec

tion officials to receive c ompleted absentee ballots . Previ

ously, Wisconsin law required that absentee ballots be re

ceived by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Com

mission and election inspectors from releasing any report of polling results before the new absentee

- voting deadline, April 13. Although the members of the Wisconsin Elections Com

mission did not challenge the preliminary injunction, the intervening defendants applied to the Seventh Circuit for a partial stay. Of the twofold remedy just described, the stay applicants challenged onl y the second aspect, the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee

- ballot deadline. The same applicants then sought a partial stay in this Court, which the Court today grants

.
II
A
The Court’s order requires absentee voters to postmark their ballots by election day, April 7

— i.e.

, tomorrow —even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were orig

inally due back to election officials on April 7, which the District Court extended to April 13. Neither of those dead

l ines carried a postmark

- by requirement. While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchise

ment. A voter cannot deliver for postmarking a ballot she
has not received. Yet tens of thousan ds of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. Rising concern about the
COVID

– 19 pandemic has caused a late surge in absentee

-4 REPUBLICAN NATIONAL COMMITTEE v. DEMOCRATIC NATIONAL COMMITTEE

G INSBURG

, J. , dissenting

ballot requests. ___ F. Supp. 3d

, at ___– ___, 2020 WL

1638374 , * 4– *5. The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” boggles the mind. Ante , at 3. Some 150 ,000 re

quests for absentee ballots have been processed since Thursday, state records indicate. 2 The surge in absentee

ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. ___ F. Supp. 3d, at

___,

___,

___ –___, ___–___, 2020 WL 1638374, * 1, *5, *9

– *10,
*17

– *18. A s of Sunday morning, 12,000 ballots report edly had not yet been mailed out. 3 It takes days for a mailed ballot to reach its recipient

— the postal service recommends budgeting a week

— even without accounting for pandemic

induced mail delays. Id. , at ___, 2020 WL 1638374, * 5. It
is therefore likel y that ballots mailed in recent days will not reach voters by tomorrow ; for ballots not yet mailed, late
arrival is all but certain. 4 Under the District Court’s order,
an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election

——————

2 See Wisconsin Elections Commission, Absentee Ballot Report, Apr. 2, 2020, https://elections.wi.gov/node/6806 ; Wisconsin Elections Commis

sion, Absentee Ballot Report, Apr. 3, 2020, h ttps://elec

tions.wi.gov/node/6808 ; Wisconsin Elections Commission, Absentee Bal

lot Report, Apr. 4, 2020, https://elections.wi.gov/node/6814 ; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 5, 2020, https://elec

tions.wi.gov/node/6815

.

3 See Wis consin Elections Commissi on, Absentee Ballot Report, Apr. 5, 2020, https://elections.wi.gov/index.php/node/6815.

4 See, e.g. , Tr. 18

– 19 (Apr. 1, 2020) (testimo ny that mail delivery “can take up to a week” or longer, threatening “the opportunity for the v oter to receive [the absentee] ballot by mail”); id. , at 35 (testimony that the “transaction time from the time the clerk puts [an absentee ballot] in the mail to the voter receiving it could take up to a week”); id. , at 40 (testi

mony agreeing that “there will be some people who request

. . . [an] ab

sentee ballot [on April 2] who will not be receiving it in time to put it in the mail by April 7th”); Brief for City of Green Bay as Amicus Curiae in

No. 3:20

– cv

– 00249 (WD Wis.), p. 5 (“ [D] elays at the post offi ce are . . . affecting the speed with which voters receive their ballots

. . . . ”).5 Cite as: 589 U. S. ____ (2020)

G INSBURG

, J. , dissenting

officials by April 13. Now, under this Court’s order, t ens of
thousands of absentee voters, unlikely to receive their bal

lots in time to cast them, will be left quite literally without

a vote. This Court’s intervention is thus ill advised , especially so
at this late hour . See Purcell v. Gonzalez , 549 U. S. 1

, 4 –5 (2006) ( per curiam ). Election officials have spent the past few days establishing procedures and informing voters in
accordance with the District Court’s deadline. For this Court to upend the process

— a day before the April 7 post

mark deadline

— is sure to confound election officials and

voters.

B
What concerns could justify consequences so grave? The Court’s order first suggests a problem of forfeiture, no ting that the plaintiffs’ written preliminary

- injunction motions did not ask that ballots postmarked after April 7 be counted. But unheeded by the Court, although initially si

lent, the plaintiffs specifically requested that remedy at the preliminary

- injun ction hearing in view of the ever

- increas

ing demand for absentee ballots. See Tr. 102

– 103 (Apr. 1, 2020). Second, the Court’s order cites Purcell , apparently skep

tical of the District Court’s intervention shortly before an
election. Nevermind that the D istrict Court was reacting to a grave, rapidly developing public health crisis. If prox

imity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention to

day —even closer to the election— is all the more i nappro

priate. Third, the Court notes that the District Court’s order al

lowed absentee voters to cast ballots after election day. If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise? According to the6 REPUBLICAN NATIONAL COMMITTEE v. DEMOCRATIC NATIONAL COMMITTEE

G INSBURG

, J. , dissenting

stay applicants, election

- distorting gamesmanship might occur if ballots could be cast after initial results are pub

lished. But obviating that harm, the District Court en

joined the publicatio n of election results before April 13, the deadline for returning absentee ballots, and the Wisconsin Elections Commission directed election officials not to pub

lish results before that date. 5 The concerns advanced by the Court and the applicants pale i n comparison to the risk that tens of thousands of vot

ers will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our
paramount concern.

* * *
The majority of this Court declares that this case pre

sents a “narrow, technical question.” Ante , at 1 . That is

wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pan

demic. Under the D istrict C ourt’s order, they would be able

to do so. Even if th ey receive their absentee ballot in the days immediately following election d ay, they could return
it. With the majority’s stay in place, that will not be possi

ble. Either they will have to brave the polls, endangering their own and others’ safety. Or t hey will lose their right to vote, through no fault of their own. That is a matter of ut

most importance

— to the constitutional rights of Wiscon

sin’s citizens, the integrity of the State’s election process,
and in this most ex traordinary time, the health of the Na

tion.

——————

5 Memorandum from M. Wolfe, Administrator of the Wiscon

sin Elections Commission, to Wisconsin Municipal Clerks et al. (Apr. 3, 2020), https://elections.wi.gov/sites/elect ions.wi. gov/files/2020

- 04/Clerk%20comm%20re.%20court%20decisions%204.3.pdf.