Whilst the confirmation of Justice Amy Coney Barrett took the headlines, her appointment to America’s top bench was not the only Supreme Court controversy on Monday night, with the court deciding by 5-3 against counting mail-in ballots that arrive after polling day.
The case before the court was whether to count postal ballots that had been cast before election day but arrived after midnight on 3rd November, or whether ballots must have arrived by election day, following a Wisconsin state ruling that said the ballots could be counted if they were cast in time.
The decision of the court was split 5-3 along partisan lines, with the three liberal justices all deciding that the ballots could be counted, and the conservative-leaning judges all deciding that they could not be.
Writing the majority opinion, Justice Brett Kavanaugh said;
“Under the US Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections […] chaos and suspicions of impropriety [could ensue if] thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
However, writing in dissent, Justice Elena Kagan argued;
“There are no results to ‘flip’ until all valid votes are counted. Nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night.”
Wisconsin is an extremely close-run state, being decided by less than 25,000 votes in 2016, with the result there likely to be indicative of whether Biden or Trump carries the election.
The Biden campaign has been encouraging Americans to vote early, with there expected to be a significant increase in postal voting. The ruling has been criticised for potentially meaning that thousands of ballots will not be counted.
This ruling will likely be a significant win for President Trump, with mail-in ballots in Wisconsin far more likely to be cast for his Democratic opponent due to the Biden campaign’s push for mail-in voter registration in communities where turnout is often lower.