Election Rule Changes Debated in Wisconsin Federal Court

Advocacy groups and voters claiming they were disenfranchised sued in reaction to April’s messy primary, asking for adjustments to election protocols to mitigate the dangers presented by Covid-19.

Voters wait in line to cast ballots at Riverside University High School in Milwaukee, Wis., on April 7, 2020. (Courthouse News photo/Joe Kelly)

MADISON, Wis. (CN) — Parties from Wisconsin to Washington argued in Madison federal court Wednesday over proposed changes to deadlines and rules for the November general election, as the fight over how to hold fair elections in the midst of an ongoing pandemic reignited from the safety of a videoconference.

With the Nov. 3 presidential election 90 days out, U.S. District Judge William Conley refereed a Zoom hearing expected to take all day to address calls for a preliminary injunction to postpone certain absentee voting deadlines and loosen other election rules in four consolidated federal actions, some dating back five months.

The litigants range from the Democratic National Committee and Democratic Party of Wisconsin to local advocacy groups like Disability Rights Wisconsin and Black Leaders Organizing for Communities, to average voters claiming they were disenfranchised during Wisconsin’s controversial April primary, when voters braved the polls in masks and gloves to vote in-person as ostensible canaries in the coal mine during the surging pandemic’s early weeks.

Voters went to the polls on April 7 in violation of social distancing guidelines, now considered commonplace for civic life, after a flurry of eleventh-hour court rulings and partisan political gamesmanship, including a U.S. Supreme Court decision barring an extension to absentee voting Conley ordered and the conservative-majority Wisconsin Supreme Court overruling Democratic Governor Tony Evers’ attempt to postpone the primary the night before Election Day.

Advocacy groups and allegedly disenfranchised voters sued in reaction to the messy primary in May, and eventually state and national Democrats renewed their fight in tandem to adjust election protocols to mitigate the dangers presented by Covid-19 after first suing three weeks before the April primary.

The Seventh Circuit also handed down its two cents on Wisconsin election law in late June in an entirely separate raft of lawsuits over the state’s voter ID laws, early voting procedures and other election policies. That mixed decision was largely seen as a win for state conservatives, although liberals did get some concessions they were after.

Although the six members of the bipartisan Wisconsin Elections Commission, or WEC, are nominally defendants in the four lawsuits at hand Wednesday, the intervening GOP-controlled Wisconsin Legislature, Republican National Committee and Republican Party of Wisconsin were the ones arguing against the requested changes Wednesday, making the legal gymnastics over how to carry out safe pandemic elections yet another debate rendered purely partisan in the Badger State and the country at large.

The sprawling and consequential nature of the battle over Wisconsin elections was fresh in Conley’s mind Wednesday morning. He called the April primary “a mixed bag” in his opening statements but warned against hyperbolic generalizations about the success or failure of that election. The Centers for Disease Control and Prevention issued a report last Friday stating there was no significant spike in coronavirus cases as a result of the April primary.

Voters wait in line in Milwaukee on April 7, 2020. (Courthouse News photo/Joe Kelly)

Conley also warned parties not to argue in terms of Wisconsin’s critical importance as a swing state this November, which the Barack Obama appointee referred to as “the elephant in the room.”

“It is not something that I intend to discuss and I do not expect the parties to tell me about it,” Conley said, outlining that the consolidated cases are about “whether or not Covid-19 is impacting the ability of election officials to conduct this election and vindicate the rights of the voters.”

John Devaney, counsel for the DNC with the Washington office of international firm Perkins Coie, jousted with Conley during opening arguments over whether the current state of what Devaney called “a lethal, once-in-a-century pandemic” and the theoretical state of the virus three months from now justifies the changes the plaintiffs have asked for.

The plaintiffs are requesting, in part, that the WEC ensure that adequate numbers of polling locations and poll workers are guaranteed for the November election, waive rules requiring witness signatures for absentee ballots and requiring photo ID for immunocompromised and disabled voters, and alter absentee ballot receipt and voter registration deadlines so as many voters as possible can vote absentee either by mail or in-person.

However, Conley put forth to Devaney that given the amount of time before the election and the more nuanced contemporary understanding of the coronavirus, he is “more in an area of uncertainty of the impact of Covid-19 by the time the election arrives” and that he is “not sure the current status of Covid-19 gets you there.”

Conceding that he did not have a crystal ball to understand what the pandemic will look like three months from now, Devaney maintained that he believes “there is a duty on the part of all who have the ability to influence this election to prepare for the virus still being a factor.”

However, Conley did point out that the WEC has made it pretty clear that election officials are not going to be able to handle the huge volume of absentee ballots and accomplish a timely turnaround as things stand now, particularly given recent operational strife at the United States Postal Service.

“I don’t think there’s any reason to think the situation has improved since April,” the judge said.

Jason Zarrow, counsel for allegedly disenfranchised voters from the Los Angeles branch of international firm O’Melveny Myers, put forth that one solution could be to allow election clerks to start processing absentee ballots before Election Day in order to give them more time to count ballots, reduce errors and get the public the results sooner.

“Essentially you put the ballot in the machine but don’t press the button that spits out the election results,” Zarrow said, a notion Conley did not seem to entirely buy on the grounds that it could compromise the integrity of the results.

Appearing on behalf of the Wisconsin Legislature was Misha Tseytlin, an attorney with the Chicago office of Troutman Sanders who has represented the legislature numerous times in recent years. Tseytlin argued that the uncertainty over what the pandemic will look like in November is actually a reason for the court to slow its roll and let the election play out according to current law.

Aside from highlighting that “there is grievous uncertainty over what [the pandemic’s] status will be in November,” Tseytlin opined that the current rules are already adequate to facilitate voting by a reasonably diligent voter.

Conley bucked against that, questioning whether he should just tell voters who get their ducks in a row too late that their ballots simply do not count, to which Tseytlin responded that for a voter who knows they do not want to vote in-person on Election Day, “a reasonably diligent effort does not involve waiting until the last minute.”

“We are not in a position where the pandemic has blindsided any voter,” the attorney said.

The morning’s proceedings ended with brief testimony from WEC Administrator Meagan Wolfe, who said without equivocating that “the thing I worry about the most heading into November is, will we have enough poll workers?”

The WEC put out a press release Monday saying Wisconsin still needs at least 900 poll workers for the state’s primary coming up on Aug. 11, and another a day earlier saying 330,000 absentee ballots have already been returned for that election. None of the proposed changes argued on Wednesday will effect Tuesday’s primary.

As the afternoon pressed on, the parties more specifically unpacked the limitations presented by voting requirements like witness signatures, photo ID and proof of residence, as well as unique challenges presented by slow delivery of requested absentee ballots and barriers to voting Covid-19 puts in the way of disabled voters.

All parties involved acknowledged that relief from witness certification and absentee voting deadlines are somewhat limited by a decision from the Seventh Circuit in early April, which upheld extensions to absentee voting deadlines Conley ordered but found he went too far with his changes to witness signature requirements, as such changes are the purview of the WEC.

On the point of witness signatures and other changes the plaintiffs requested, Tseytlin repeatedly pointed out that there is nowhere near ample proof in the record, including in the form of official declarations, showing that there are voters who will not be able to comply with the letter of election laws over the next three months before Election Day.

Conley flatly responded that, given recent developments, “we know that [the WEC] is not going to do anything” about changing signature requirements, “so your real position is that nothing can be done” to facilitate safe voting for those who for one reason or another cannot secure a witness to sign their absentee ballot, even if their numbers may be theoretical based on the record.

Tseytlin also noted that the witness signature requirement is currently before the Wisconsin Supreme Court in a dispute stemming from when a Dane County clerk allowed voters to cast ballots in the April primary without presenting photo ID because they were “indefinitely confined” by the pandemic.

Wisconsin’s highest court also currently has on its docket a closely watched fight over whether to purge 130,000 registrations from the state’s voter rolls on the basis that the voters may have moved. Both cases are scheduled for oral arguments on Sept. 29, making it unlikely that either will be decided ahead of the November election.

At closing arguments, Devaney reiterated that the state is staring down “a train wreck of disenfranchisement” due to the pandemic causing absentee voting to skyrocket, issues with the postal service and understaffed polls, among other problems.

Conley and Tseytlin crossed swords at closing over whether the relief the plaintiffs are requesting is necessary given the totality of the circumstances surrounding the election, with the judge bluntly saying that “the current design guarantees tens of thousands of absentee ballots are not going to arrive by Election Day.”

Tseytlin continued to posit that an objectively reasonable voter will be able to vote under the current rules with proper preparation and that claims of massive disenfranchisement are overblown.

Conley countered by asking whether it is “unreasonable” for a voter afraid to vote in person to vote absentee according to statutory deadlines that may be inadequate to have their vote counted, which would essentially result in their disenfranchisement despite the fact that they tried to follow the law as best as they could, something he referred to as “traps for the unwary.”

Despite noting that he is “aware of the need for a decision sooner rather than later,” Conley did not offer a specific timeline for his decision at the end of Wednesday’s marathon hearing.

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