Fears are growing that Donald Trump will bid to steal the election result, fuelled by a fresh Supreme Court ruling.
Siding with Wisconsin’s Republican-led legislature, the conservative-majority US Supreme Court refused allow an extension ordered by a federal judge in the deadline for returning mail-in ballots in the state, dealing a setback to Democrats.
The 5-3 decision means current rules stay in place, meaning ballots must be in the hands of election officials by the time polls close on November 3.
Democrats had backed a change in the rules, which would allow votes to be counted as long as they were postmarked before polls closed, but arrived up to six days later.
Wisconsin is crucial to Republican President Donald Trump’s re-election chances against Democratic challenger Joe Biden.
Liberal Justice Elena Kagan wrote in a dissenting opinion that the court’s decision “will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.”
But it was Judge Brett Kavanaugh’s opinion which raised fears that it could be a preview of the fallout following next week’s election.
Polls suggest people who vote by post are more likely to vote for frontrunner Joe Biden than for President Donald Trump.
And postal votes take longer to count than in-person ballots – which means that on election night, it may appear that President Trump has more support than will be the case when all votes are counted.
In his argument, Judge Kavanaugh, who was appointed by President Trump, suggested it was more important to get an election result quickly than to ensure all votes are counted.
He wrote: “For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day.
Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially 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 thereafter.”
Quoting Professor Richard Pildes of the NYU School of Law, Judge Kavanaugh wrote: “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.””
The coronavirus pandemic is fueling an increase in voting by mail as Americans seek to avoid crowds at polling places, even as Trump makes repeated claims without evidence that such voting – long practiced in American elections – is rife with fraud.
Elections experts have called such voter fraud exceedingly rare.
Trump’s narrow victory in Wisconsin in 2016 helped him secure the presidency. A Reuters/Ipsos poll released on Monday showed Biden leading Trump by 53% to 44% in the state.
A group of Wisconsin voters and a disability rights groups, joined by state and national Democrats, sued the Republican-controlled state legislature to try to get the mail-in ballot receipt deadline extended in light of postal delays amid the pandemic.
Democrats argued that without an extension of the ballot-receipt deadline more than 100,000 voters in the state could be “disenfranchised through no fault of their own.”
In a 2-1 ruling, a three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals blocked Conley’s earlier ruling allowing a six-day extension in the ballot-receipt deadline.
The 7th Circuit agreed with Wisconsin Republicans that it was too close to Election Day to make significant changes.
Democrats in various Republican-governed states have decried what they call voter suppression efforts including opposition to measures intended to facilitate voting during the pandemic.
Other election cases are pending, which new appointee Barrett may cast crucial votes in.
Last week, the court split 4-4 in a case from Pennsylvania, handing a loss to Republicans hoping to curb the counting of mail-in ballots received after Election Day.