Cite as: 589 U. S. ____ (2020)
5
GINSBURG, J., dissenting
officials by April 13. Now, under this Court’s order, tens of
thousands of absentee voters, unlikely to receive their ballots 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 postmark 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, noting
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 silent, the plaintiffs specifically requested that remedy at the
preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots. See Tr. 102–103 (Apr. 1,
2020).
Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an
election. Nevermind that the District Court was reacting
to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District
Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.
Third, the Court notes that the District Court’s order allowed 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 the