Judge Extends Absentee Voting in Wisconsin But Won’t Delay Primary

Paid volunteers help sort absentee ballots to be opened on election day in Brookfield, Wis., on Tuesday. (Rick Wood/Milwaukee Journal-Sentinel via AP)

MADISON, Wis. (CN) — A Wisconsin federal judge on Thursday extended absentee voting deadlines for the state’s primary next Tuesday but found federal courts lack the power to delay the election altogether, despite making it clear he believed it should have been postponed due to the Covid-19 pandemic.

U.S. District Judge William Conley’s consequential 53-page decision extends the deadlines for clerks to count and voters to request absentee ballots, in addition to barring enforcement of a rule that would discard absentee ballots without witness signatures, provided that the ballot includes written affirmation of the voter’s inability to get a witness due to the outbreak and is otherwise valid.

The deadline for receipt of absentee ballots is extended to 4 p.m. on April 13 and the deadline to request an absentee ballot is extended until 5 p.m. on Friday under Conley’s order.

This past weekend, Conley, a Barack Obama appointee, consolidated three of five total lawsuits filed over Wisconsin’s April 7 primary election. The claims from multiple advocacy organizations, unions, concerned voters and voter mobilization groups seek at least to loosen deadlines and rules for the election, and at best to delay the primary whole cloth in light of historic disruptions and danger caused by the spread of the novel coronavirus.

The Democratic National Committee and Wisconsin Democratic Party filed the first suit in Madison federal court on March 18, seeking to suspend certain election rules and deadlines due to the coronavirus. Conley reopened online voter registration until March 30, but declined to consider the rest of their claims until Thursday’s order.

One of the two other Madison federal suits, brought by two unions and voter-mobilization group Souls to the Polls among others called for the April primary to be delayed and conducted entirely by mail. The other, filed by the Wisconsin Alliance for Retired Americans, wanted the court to waive the requirement that an adult witness sign a voter’s absentee ballot, which the group claimed was impractical or impossible given social-distancing guidelines and other emergency measures to combat the coronavirus.

Another legal action filed by the Wisconsin Republican Party asked the Wisconsin Supreme Court to block the Dane County clerk from advising voters that they did not have to present photo ID to cast an absentee ballot. The Supreme Court did so on Tuesday and later laid out a briefing schedule for the suit that extends into May.

Conley’s order harshly criticized Democratic Governor Tony Evers and the GOP-controlled Wisconsin Legislature for ignoring safety imperatives and refusing to delay the primary like multiple states have done as Covid-19 snarls governments and volatile markets and upends civic life across the globe.

Both Evers and the Legislature have mostly been in consensus, resistant to bending or breaking election law, disenfranchising voters and potentially leaving important offices vacant by postponing the primary. The six-member bipartisan Wisconsin Elections Commission (WEC) also did not favor the idea of delaying the election outright.

Conley blasted state officials for ignoring the possibilities of a huge shortfall of in-person voters on election day and cavalierly risking the spread of the coronavirus by allowing crowds to gather at polling places.

“Nevertheless,” Conley wrote, “the Wisconsin state Legislature and governor apparently are hoping for a fourth possibility: that the efforts of the WEC 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.”

Despite his stern misgivings, Conley acknowledged “the only role of a federal district court is to take steps that help avoid the impingement on citizens’ rights to exercise their voting franchise.” He conceded he did not have the power state officials have to call off the election.

“Without doubt, the April 7 election day will create unprecedented burdens not just for aspiring voters, but also for poll workers, clerks, and indeed the state,” Conley warned.

“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.”

Evers’ office, Wisconsin legislative leaders and municipalities did not immediately answer requests for reaction to Conley’s order Thursday afternoon. However, the Legislature, the Republican Party of Wisconsin and the Republican National Committee had already filed notices of appeal Thursday evening.

Although Conley expressed grave apprehension about conducting in-person voting as usual and understood the plaintiffs’ concerns, he did not grant their requests to loosen photo ID and proof of residence requirements for voters as the requirements are reasonable.

Thursday’s order comes as Wisconsin frantically tries to both execute a legitimate primary election and mitigate the public health crisis caused by Covid-19 amid a chorus of voices, including Vermont Senator Bernie Sanders and Madison Mayor Satya Rhodes-Conway, pleading for the primary to be delayed.

As of Thursday afternoon, Wisconsin has tallied roughly 1,700 confirmed cases of the coronavirus and at least 38 deaths.

Election officials and clerks around Wisconsin—particularly the three largest urban areas of Milwaukee, Madison and Green Bay—have said they are severely understaffed and lack the necessary provisions to effectively and safely carry out a traditional election.

Milwaukee election officials have repeatedly reiterated they have only around 400 of a usual 1,400 polling station workers for election day, and have said that there could potentially be less than 12 polling places open Tuesday instead of the usual 180 for the city of nearly 600,000.

Green Bay, home of the NFL’s Packers, and its city clerk sued in Green Bay federal court to delay the election. But U.S. District Court Judge William Griesbach, a George W. Bush appointee, dismissed the action Monday because the plaintiffs lacked standing to sue in their official capacities.

The few poll workers face a massive surge in absentee voting, with over 1 million ballots requested as of Wednesday. Less than half of those ballots have been reported as returned, leaving some half a million absentee ballots currently in the wind.

Governor Evers pledged in an amicus brief filed in Conley’s court Tuesday that he will deploy the Wisconsin Army National Guard to help at the polls. How many members of the National Guard and how they will be spread around the state has not been clarified, but municipalities are already saying it will not be enough and stressing they are woefully short on staff and basic necessities like hand sanitizer.

DNC Chair Tom Perez welcomed Conley’s order Thursday, saying, “We are glad that the court came to the right decision today.”

“Expanding access to absentee voting is critical in the wake of the Covid-19 pandemic and we continue to encourage all states to pursue vote-by-mail and no-excuse absentee voting to ensure that all eligible voters who want to cast a ballot have the means and ability to do so,” Perez said.

Conley’s order came as the party announced the Democratic National Convention, originally scheduled for July 13-16 in Milwaukee, would be delayed until mid-August due to the coronavirus.

Wisconsin’s pivotal April 7 primary has the whole nation watching, with multiple important races on the national and state level. The ballot features the presidential primary in addition to a hotly contested race for a seat on the state high court between incumbent conservative Justice Daniel Kelly and liberal Dane County Circuit Court Judge Jill Karofsky, as well as races for Milwaukee’s mayor and county executive.

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