MADISON – A divided Wisconsin Supreme Court told federal judges Tuesday that Republican lawmakers have the power to pursue an appeal as they try to prevent an expanded absentee voting counting period.
The 4-3 ruling is a victory for Republicans, but they still face obstacles as they try to undo a court order that would allow the counting of absentee ballots that arrive after Election Day if they are postmarked by then.
The decision sends the case back to the U.S. 7th Circuit Court of Appeals in Chicago, which must decide whether the lawmakers can continue the appeal and, if so, whether to throw out the absentee balloting extension.
The case is closely watched because Wisconsin is a battleground in the race between Republican President Donald Trump and Democratic nominee Joe Biden. Trump narrowly won Wisconsin in 2016 but has trailed Biden in the state in recent polls.
In response to four lawsuits, U.S. District Judge William Conley last month issued his ruling allowing more absentee ballots to be counted and changing a few other election laws because of the coronavirus pandemic. Ordinarily, absentee ballots in Wisconsin can be counted only if they are in election officials’ hands by the time polls close.
Republicans appealed, but a three-judge panel from the 7th Circuit Court of Appeals unanimously concluded they didn’t have the authority to challenge Conley’s ruling because of a July ruling by the state Supreme Court.
Republicans contended the federal court had misunderstood the state Supreme Court decision and asked to let the Wisconsin justices weigh in. On Tuesday, the justices did so, finding 4-3 that Wisconsin lawmakers had the authority to continue the case over voting.
In the majority were the court’s conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler. In dissent were the liberals, Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
The Republicans can use the ruling to keep their case alive in federal court. Whether those judges agree with them on the merits remains unknown.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.