top of page

All votes due by 8 p.m. on election day


WASHINGTON, D.C. -[ The United States Supreme Court is not going to change how absentee ballots are counted in Wisconsin. 

The October 27 decision keeps in place Wisconsin’s absentee ballot deadline deadline of 8 p.m. on Election Day. The court ruled 5-3 that a Madison-based federal judge should not have extended the vote-count on his own. 

Justice Neil Gorsuch wrote one of the opinions.

“Last-minute changes to long-standing election rules risk other problems; inviting confusion and chaos and eroding public confidence in electoral outcomes,” Gorsuch wrote. “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.”

The ruling overturns a decision from Madison-based federal Judge William Conley who ordered back in September that local election managers count ballots submitted as late as six days after Election Day. 

Justice Gorsuch disagreed strongly.

“Because of the current pandemic, [Judge Conley]  suggested, [he] was free to substitute [his] own election deadline....” Gorsuch wrote. “Never mind that, in response to the pandemic, the Wisconsin Elections Commission decided to mail registered voters an absentee ballot application and a 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 mail but also by bringing them to a county clerk’s office, or various “no touch” drop boxes staged locally, or certain polling 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 two-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.”

Gorsuch added one more sentence to make his ruling clear. 

“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote. 

The high court’s ruling means absentee ballots received after Election Day will not be counted this year. 

That is disappointing news to Justice Elana Kagan, who wrote the dissent for the court’s three liberal justices. 

“Based on the April election experience, the [judge] 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 extension,” Kagan explained. “This decision ‘will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions’.”

The head of the Wisconsin Elections Commission on Monday said voters should get their absentee ballots in as soon as possible.

The U.S. Postal Service on Monday said it is “confident” that the Milwaukee hub can handle a flood of absentee ballots. But officials suggested that voters get those ballots in the mail by the end of the day Tuesday if possible. 


Recent Posts

See All


bottom of page