Wisconsin Suit Seeks Sweeping Changes to 2020 Election Procedures

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) — Three disenfranchised Wisconsin voters and two local advocacy groups brought a federal lawsuit against the state elections commission Monday, seeking proactive changes to election procedures for the state’s remaining 2020 elections to ensure people can safely and effectively vote during the ongoing coronavirus pandemic.

The 70-page complaint filed in Madison federal court seeks to ensure that every registered voter in Wisconsin has safe and ample opportunities to vote either in person or via absentee ballot for the state’s August primary and the November general election in line with ongoing restrictions caused by the Covid-19 pandemic.

Disability Rights Wisconsin and Black Leaders Organizing for Communities named the six members of the bipartisan Wisconsin Elections Commission and the commission’s administrator as defendants in their complaint, which was also brought by two voters from Appleton and one from Milwaukee.

The groups and the voters are the latest to bring legal challenges in reaction to Wisconsin’s controversial April 7 presidential primary election, which saw voters suit up in masks and gloves to break social distancing guidelines and vote in person at a greatly diminished number of polling places statewide after a flurry of eleventh-hour court rulings and partisan political gamesmanship.

“As a result,” Monday’s complaint says, “voters were forced to choose between forgoing their constitutional rights to participate in their democracy or risking the health of themselves and their loved ones in order to vote.”

Wisconsin was the only state not to cancel or postpone its April primary in light of the deadly coronavirus pandemic, which by early April had convulsed global markets and brought daily civic life to a standstill as businesses closed, lockdown orders keeping people at home were enacted, and confirmed infections and deaths climbed exponentially.

The buildup to Wisconsin’s April primary was a chaotic whirlwind resulting in two consequential legal decisions issued the night before Election Day, putting the national spotlight on the Badger State as a guinea pig for how to carry out elections during the pandemic.

The first ruling was a 4-2 party-line decision from the conservative-majority Wisconsin Supreme Court enjoining Democratic Governor Tony Evers’ executive order calling off in-person voting altogether, which arrived hours after the executive order was issued. The second decision from the U.S. Supreme Court, which barred an extension to absentee voting ordered by a federal judge, came not long after that on April 6.

So Wisconsin carried on with its primary, which included well over 1 million absentee ballots requested by Election Day amid critical shortages of protective equipment, personnel and polling places. Election officials statewide scrambled, including in Milwaukee where only five out of a usual 180 polling places were open for the entire city, resulting in huge lines of voters in masks and gloves attempting to maintain social distancing at crowded polling places on Election Day.

“What ensued has been described by one election law expert as the biggest election failure since the Voting Rights Act was enacted in 1965,” Monday’s lawsuit states.

In order to avoid a repeat of the April primary, and given that public health experts are largely in agreement that the coronavirus pandemic will affect daily life one way or another well into next year, the complaint asks the Wisconsin Elections Commission to ensure that adequate numbers of polling locations and poll workers are guaranteed for 2020’s remaining elections and that there are ample opportunities for voters to safely and securely vote absentee, including by sending an absentee ballot request form to every registered voter in the state ahead of Election Day.

“Absent intervention by this court…the same electoral process breakdown and resulting violation of plaintiffs’ rights under federal law is likely to recur during the impending August partisan primary and November general election,” the lawsuit claims, invoking the Voting Rights Act, the First and 14th Amendments of the U.S. Constitution and the Americans with Disabilities Act.

A spokesman for the Wisconsin Elections Commission declined to comment on the pending litigation Monday.

A man wears a full face chemical shield to protect against the spread of coronavirus as he votes in Janesville, Wis., on April 7, 2020. (Angela Major/The Janesville Gazette via AP)

The plaintiffs are represented by attorneys with the New York and Los Angeles offices of O’Melveny & Myers, Madison-based attorneys with Rathje Woodward and Stafford Rosenbaum, and multiple lawyers with the Protect Democracy Project, a nonpartisan nonprofit founded by two former Barack Obama aides based in Washington, D.C.

Rachel Goodman, counsel at Protect Democracy, issued a statement Monday saying “this lawsuit is not about a particular party or a particular city or a particular subset of voters. It’s about ensuring that our democracy really enfranchises all voters through the pandemic and beyond.”

The three voters who brought Monday’s complaint are among those claiming they were directly disenfranchised at the time of the April 7 primary.

One of the plaintiffs, Jill Swenson, is a 61-year-old Appleton resident who has early stage chronic obstructive pulmonary disease. Fearing the tremendous health risks posed by voting in person during the coronavirus pandemic, Swenson cast an absentee ballot but was unable to secure a witness to sign the ballot as required by Wisconsin law.

Five days before the election, a Madison federal judge waived the witness signature requirement for absentee ballots, claiming that it would be impossible for some voters to acquire witnesses in light of social distancing directives like Wisconsin’s safer-at-home order issued in mid-March. Swenson mailed in her ballot without the signature the next day, but later that same day the Seventh Circuit reinstated the witness rule, resulting in Swenson’s ballot not being counted.

Monday’s lawsuit asks the court to require the elections commission to waive the witness signature rule, in addition to another requiring photo ID for immunocompromised and disabled voters. The voters and advocacy groups also want to waive a rule requiring election officials to work polls in the county they are from and request that absentee ballots be counted if they arrive within a week of Election Day.

Multiple legal challenges regarding Wisconsin’s elections and voting protocols are at play in state and federal courts.

U.S. District Judge William Conley, whose absentee voting changes were struck down by the U.S. Supreme Court, currently presides over three consolidated cases filed in his court before the April 7 election, as well as a fourth suit that also came from disenfranchised voters challenging Wisconsin’s nationally watched primary.

The Wisconsin Supreme Court, which deep-sixed Wisconsin’s statewide coronavirus lockdown last Wednesday, is also currently sitting on two lawsuits related to voting and elections.

One of those suits, brought by the Republican Party of Wisconsin, challenged a Dane County election clerk’s decision to allow certain voters to cast absentee ballots for the April 7 primary without presenting photo ID as mitigation for voting hurdles caused by the pandemic. The high court quickly sided with Republicans and ordered the clerk to stop offering voting advice that is inconsistent with state law. That suit is currently awaiting a full decision.

The other suit before the high court is a highly publicized fight over Wisconsin’s voter rolls. State conservatives sued the Wisconsin Elections Commission last November in Ozaukee County Circuit Court over the commission’s refusal to deactivate over 200,000 registrations of voters who may have moved. A Seventh Circuit panel stayed two orders in conservatives’ favor from an Ozaukee County judge in January before blocking them in February, and Wisconsin’s highest court took up the case in March, where it is currently awaiting a decision that will have a potentially massive impact on voter turnout for 2020’s remaining elections.

Although Wisconsin is one of the most critical battlegrounds for the 2020 presidential election, Republicans nationwide are mobilizing to fight Democrats in courts across the country over election law ahead of November.

Ronna McDaniel, chairwoman of the Republican National Committee, said in a phone call with reporters on Monday that the RNC recently doubled its legal budget to $20 million in order to fund these ongoing court battles.

For her part, McDaniel said she does not see a problem with states mailing out absentee ballot request forms to voters, which is one of the chief provisions Monday’s suit in Wisconsin asks for, as opposed to election officials in some states mailing actual ballots to every voter on their rolls—even to voters who may have died, moved or wanted to vote in person.

“We don’t want to see an overreach by the courts or by Democrats to change what’s already done legislatively in a state,” McDaniel said Monday, arguing decisions regarding elections of this kind should be settled between lawmakers and executive officials at the state level.

Wisconsin held a special election on May 12 to fill the state’s vacant 7th Congressional District seat, the second time Wisconsinites hit the polls during the pandemic. There were no reports of the types of critical shortages or Election Day issues seen on April 7, partly due to the largely rural makeup of the 7th District and the greater amount of time election officials had to prepare.

The special election resulted in Republican State Senator Tom Tiffany, a Trump favorite, winning the district by around 15 points.

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