Citing Virus Risks, Green Bay Sues Wisconsin to Delay Primary

Downtown Green Bay, Wis., along the Fox River. (Photo via Chris Rand/Wikipedia Commons)

GREEN BAY, Wis. (CN) – Green Bay is asking Wisconsin officials to postpone the state’s April primary election in light of the Covid-19 pandemic, arguing in a federal lawsuit that the city cannot safely conduct in-person voting due to the safety risks presented by the virus.

Taking into account directives requiring social distancing and banning large groups due to the outbreak, Green Bay and City Clerk Kris Teske make the case in their 31-page complaint filed in Green Bay federal court Tuesday that “local governments are finding it functionally impossible” to comply with established voting procedures leading up to Wisconsin’s April 7 primary.

Seeking declaratory and injunctive relief under the 14th Amendment, the city asks the court to postpone the primary until June 2, call off in-person absentee voting and polling procedures, and establish the new election date as the deadline by which municipal clerks must have counted all returned mail-in ballots.

The suit names the six members of the bipartisan Wisconsin Elections Commission, Health Services Secretary Andrea Palm and Governor Tony Evers as defendants.

Reacting to the spread of the novel coronavirus, Evers declared a statewide public health emergency on March 12 before rolling out a stay-at-home order for the entire state on Tuesday, which shuttered nonessential businesses and requires residents to stay in their homes as much as possible.

As of Wednesday afternoon, the Badger State has over 500 confirmed cases of Covid-19 and six deaths, while more than 8,000 have tested negative for the virus. Brown County, where Green Bay is located, is one of at least eight counties in the state to report community spread, meaning it has had confirmed cases of the virus for which the infection’s origin is unknown.

Green Bay, represented by city attorneys, argues in its filing that it simply cannot conduct a safe, secure election as soon as early April while allowing for in-person voting and still complying with directives and mandates from the elections commission and state officials, including calls for social distancing and Evers’ stay-at-home order.

Some of those safety measures are simply not enough, according to the complaint, which lambasted memos from the Wisconsin Elections Commission suggesting fixes for issues administering the election such as shortages of absentee ballots, poll workers and hand sanitizer.

“The proffered solutions for the problems identified…are impractical and insufficient—and in some cases no solutions are offered at all,” the lawsuit states.

The elections commission declined to comment on the complaint Wednesday.

Evers, for his part, has publicly opposed changes to the election process and has stated that he does not have the authority to postpone the April 7 primary, and the lawsuit points out that his executive orders reacting to Covid-19 have all exempted changes to election operations. The governor’s office could not be immediately reached for comment Wednesday.

Part of the problem for Green Bay, home of the NFL’s Packers, is staffing shortages caused in part by the coronavirus. According to Tuesday’s suit, “only 54 of the city’s 278 poll workers have agreed to work the April 7, 2020 election as of March 20, 2020.”

The average age of those poll workers is another issue. Tuesday’s complaint states that 90% of the city’s poll workers are age 60 and older and “it is irresponsible to conduct an in-person election knowing not only that older Americans are at higher risk of mortality from Covid-19 during times of community spread, but that they also are the backbone of the election process.”

The complaint also notes that the city clerk’s office has six staff members, some from outside the department, handling a backlog of over 4,000 absentee ballots. In total, Wisconsin election officials statewide have been flooded with over half a million absentee ballot requests for the April primary, indicating voters in the state are not keen on voting in person in any case.

Green Bay’s suit makes the case that “readying an election scheduled in a matter of two weeks with only 54 of 278 confirmed poll workers, with staffing shortages, extreme backlogs of absentee ballot requests, and no additional methods or funding to carry out these directives is not only impractical, it is wholly irresponsible given that the integrity of the election will be jeopardized.”

The state elections commission currently faces a separate federal lawsuit from the Democratic National Committee and the Wisconsin Democratic Party seeking to change certain election rules in response to the pandemic. A federal judge ordered Friday that online voter registration, which ended March 18, had to be reopened until March 30.

“While a step in the right direction,” Tuesday’s suit acknowledges, “the order of the federal court only addresses registration. It is deficient as to the in-person requirements as a whole.”

Failing a moratorium on in-person voting and postponement of the election, Green Bay asks the court to declare city officials free from liability for failing to safely conduct the election in line with state directives “given the unprecedented emergency caused by Covid-19 and the unanimous opinion of those in the health care community that the pandemic will not be over before election day, but will in fact continue to get worse up and even after that time.”

Wisconsin’s April 7 election features the state’s presidential primary in addition to many important local and state contests, including a crucial race for a seat on the Wisconsin Supreme Court between current conservative Justice Daniel Kelly and liberal Dane County Circuit Court Judge Jill Karofsky.

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