Voting Rules Constantly Changing Ahead of Tomorrow’s Election

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Joe Block & Matt Geiger

In an April 2 ruling to allow a week-long delay in accepting absentee ballots, Federal judge William M. Conley of the Western District of Wisconsin criticized the State Legislature, Gov. Tony Evers and the Wisconsin Elections Commission. The ruling extended the deadline for absentee ballots to 4 p.m., April 13 and extended the deadline for requesting absentee ballots to 4 p.m. on April 3. But an executive order issued by Evers on April 6 could change dates again.

Conley wrote that the Legislature and Governor “apparently are hoping … that the efforts of the WEC [Wisconsin Election Commission] Administrator, her staff, the municipalities and poll workers, as well as voters willing to ignore the obvious risk to themselves and others of proceeding with in-person voting, will thread the needle to produce a reasonable voter turnout and no increase in the dissemination of COVID-19.” 

He then said this outcome would be “ill-advised” in terms of the “public health risks and the likelihood of a successful election.”

Conley said that as a Federal District Judge, there are several things he cannot do. 

“[T]he only role of a federal district court is to take steps that help avoid the impingement on citizens’ rights to exercise their voting franchise as protected by the United States Constitution and federal statutes,” he wrote. Conley continued, “...a consequence of these measures may be to further the public health crisis in this State. Unfortunately, that is beyond the power of this court to control.”

Conley said of the push to vote absentee, “Ironically, while encouraging voting by absentee ballot, the options for in-person voting, either before the election day by absentee ballot or on election day are at risk of being eliminated or have been eliminated.”

This push has led to “an unprecedented number of requests for absentee ballots,” according to Madison City Clerk Maribeth Witzel-Behl. Milwaukee City Clerk Neil Albrecht estimated that absentee ballot requests were “ten times the normal number.”

Witzel-Behl said the “ever increasing volume of request for absentee ballots is threatening to overwhelm the staff available.”

Despite the Wisconsin Elections Commission maintaining that it “is not clear that the timely processing of requests for absentee ballots is impossible,” Wietz-Behl said, “the 8 p.m. election day deadline for receipt of absentee ballots is completely unworkable.”

Both Madison and Milwaukee clerks said, “[t]here is no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request ... will have the time to receive, vote and return their ballot by Election Day.”

“At the center of this maelstrom is the WEC [Wisconsin Elections Commission],” wrote Conley. “The WEC’s Administrator Meagan Wolfe has been expressly charged with the near impossible task of accomplishing a viable and safe election through a combination of processing an unprecedented number of absentee ballots and an in-person election.”

“If there is a hero to this story, it is the Administrator, her staff and municipal workers, all of whom continue to improvise election practices,” he continued. 

As for the bipartisan Commission itself, which is divided equally between Democrats and Republicans, Conley said:

“Because the only direction from an equally split group of Commissioners to the Administrator and her staff is to do the best they can in conducting a safe, in-person election, it appears that no medical expert has been retained by the Commission to advise as to whether an in-person election can be conducted safely under any circumstances.”

He later continued, “nor even more remarkably does it appear that medical experts at SEOC [State Emergency Operations Center] have been asked to opine on this subject, despite the obvious risks of further dissemination of the coronavirus on election day, including the handling of recently submitted absentee ballots.”

“The [Wisconsin Election Commission] Administrator and her staff, as well as local municipalities and others are to be commended for their remarkable efforts to accomplish an in-person election that may well be unwise, not just for poll workers,” Conley wrote, “but for voters and the general public given the crucial moment this state seems to be confronting in the COVID-19 growth curve."

As for delaying the election, Conley maintained  it was not in his power to do so, and said: “As much as the court would prefer that the Wisconsin Legislature and governor consider the public health ahead of any political considerations, that does not appear in the cards. Nor is it appropriate for a federal district court to act as the state’s chief health official by taking that step for them.”

Coley held that the original deadlines for absentee ballots restricted voters’ fundamental right to vote and would cause “irreparable harm.” He then extended the deadline by a week. 

On April 6, Evers enacted an executive order moving in person voting to June 9. The governor issued the order after legislators failed to show up for a special session he had called on April 4.

In the order, Evers said that holding the election Tuesday would have put every voter, and thousands of poll workers, at risk during a global pandemic. 

“Today, I signed an executive order suspending in-person voting for tomorrow’s election. Frankly, there’s no good answer to this problem—I wish it were easy. I have been asking everyone to do their part to help keep our families, our neighbors, and our communities safe, and I had hoped that the Legislature would do its part—just as the rest of us are—to help keep people healthy and safe,” said Evers. “But as municipalities are consolidating polling locations, and absent legislative or court action, I cannot in good conscience stand by and do nothing. The bottom line is that I have an obligation to keep people safe, and that’s why I signed this executive order today.”

All ballots already cast in the 2020 Spring election will remain valid and will be tallied in conjunction with the new in-person voting date.

Evers’ resolution states that as of Sunday, 2,267 Wisconsinites had tested positive for COVID-19, 624 Wisconsinites have been hospitalized due to COVID-19 and 68 Wisconsinites had died as a result of the virus. A total of 241,703 individuals in the United States had tested positive for COVID-19, and 5,854 had passed away as a result of COVID- 19, and, worldwide, more than 1 million people have tested positive for COVID-19, and more than 62,000 people have passed away as a result of COVID-19.

The Spring 2020 election, whenever it is finally done, includes a broad variety of ballot issues including presidential preference primaries for both major national political parties; a state-wide referendum on a proposed amendment to the Wisconsin Constitution; 132 county, school district, and local referenda; an election for a seat as a justice of the Wisconsin Supreme Court; elections for 3 seats as judges of the Wisconsin Court of Appeals; elections for 34 seats as judges of county circuit courts; elections for 102 seats as judges of municipal courts; elections for 1,596 county supervisors and officers; elections for 763 alders, mayors, and other city offices; elections for 464 village board trustees, board members, and other offices; elections for 291 town supervisors, clerks, and other offices; elections for 565 seats on the boards of common, union, and unified school districts; and elections for 12 seats as supervisors on the boards of sanitary districts.

Wisconsin’s elections are overseen by the Wisconsin Elections Commission and are administered by 1,850 municipal clerks or election commissions and 72 county clerks. 

The governor previously signed an order calling the Legislature to meet in a special session to send a ballot to every registered voter, allow an all-mail election, and extend the time for those ballots to be received and counted. The Legislature did not take up these changes in special session.

If the new in-person date stands, voters will also be able to obtain an absentee ballot up to five days before the June 20, in person election.

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