Top Wisconsin Court Sides With Republicans on ID Rules for Absentee Voters

MADISON, Wis. (CN) — A liberal-leaning county must stop advising voters that they need not present photo ID to cast absentee ballots, the Wisconsin Supreme Court ruled Tuesday — a win for state Republicans one week ahead of a primary election thrown into chaos by the Covid-19 pandemic.

Mark Jefferson, executive director of the Wisconsin Republican Party, asked the state Supreme Court on Friday to review the decision by Dane County Clerk Scott McDonnell to let certain voters request and cast absentee ballots without presenting a photo ID, which was made on the basis that these voters are “indefinitely confined” due to the coronavirus outbreak and the various lockdown measures enacted to slow its spread.

McDonnell, the clerk in one of Wisconsin’s most steadfastly liberal regions, took to Facebook on March 25, posting that infirm, ill or elderly voters who feel they cannot leave their home due to Covid-19 and cannot provide photo ID should indicate that they are indefinitely confined by the virus, thus bypassing the ID requirement.

Voters cast their ballots in Kieler, Wis., in 2018. (Nicki Kohl/Telegraph Herald via AP, File)

In response to the Covid-19 pandemic, Democratic Wisconsin Governor Tony Evers declared a public health emergency on March 12 before issuing what he called a safer-at-home order on March 24. The order shuttered nonessential businesses and requires residents to stay in their homes and limit interactions with others as much as possible through April 24.

Despite the fact that the six-member bipartisan Wisconsin Elections Commission has further clarified its position on photo ID requirements and indefinite confinement to the high court’s satisfaction, Tuesday’s three-page order plainly states that “McDonnell’s March 25, 2020, advice was legally incorrect” and that “voters may be misled to exercise their right to vote in ways that are inconsistent” with the state’s election laws because of McDonnell’s advice.

“Namely,” the judges wrote, “McDonnell appeared to assert that all voters are automatically, indefinitely confined solely due to the emergency and the safer-at-home order and that voters could therefore declare themselves to be indefinitely confined when requesting an absentee ballot, which would allow them to skip the step of presenting or uploading a valid proof of identification.”

The state Supreme Court has a 5-2 conservative majority but was unanimous Tuesday. “We do not see how the respondents could prevail with an argument that such statements in the March 25th post constitute an accurate statement of the relevant statutory provisions,” the unsigned ruling states.

The court granted Jefferson and the Wisconsin Republican Party a temporary injunction, ordering McDonell to refrain from posting voting advice that is inconsistent with the state elections commission’s guidance.

The Dane County Clerk’s office could not immediately be reached for comment on the ruling Tuesday.

Wisconsin Republicans quickly applauded the high court’s decision.

State Assembly Speaker Robin Vos, R-Rochester, said the decision is “a victory for fair elections.”

“A liberal Dane County activist clerk, who tried to break the law, had his hand slapped by a unanimous supreme court,” he said in a statement. 

Vos dressed McDonnell down, saying: “It was completely inappropriate that the Dane County clerk was trying to use the pandemic for political gain. I think we should all be thankful a unanimous court stepped in and put an end to these illegal communications.”

Wisconsin’s opposing political factions have predictably squabbled over how to proceed with the state’s upcoming April 7 primary election in light of Covid-19’s historic disruptions. The election is seven days away and is still shrouded in confusion, with federal litigation at play to determine how to safely carry out the election.

Conservative Wisconsin Supreme Court Justice Daniel Kelly did not participate in Tuesday’s order, because he is in a hotly contested race for his seat against Dane County Circuit Court Judge Jill Karofsky. The April 7 ballot also features the state’s presidential primary and races for Milwaukee’s mayor and county executive.

Over the weekend, U.S. District Judge William Conley, an Obama appointee, consolidated three federal suits over the election filed in Madison. The first was brought by the Democratic National Committee and the Wisconsin Democratic Party, which asked for certain election rules and deadlines to be suspended due to Covid-19. Conley reopened online voter registration until March 30 and declined to move on the Democrats’ other requests right away, but the judge is expected to rule on the full suit in the coming days.

Conley blocked the Republican-controlled Wisconsin Legislature from intervening in the lawsuit but chose to allow the Republican National Committee and Republican Party of Wisconsin to intervene since they are in a unique position to provide a mirror image to the interest of the Democrats that brought the action.

One of the two other 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 via mail. 

The other, brought by the Wisconsin Alliance for Retired Americans, wants to waive the requirement that an adult witness sign a voter’s absentee ballot. Wisconsin Alliance claims the rule is impractical or impossible given social-distancing guidelines and other emergency measures to combat the coronavirus.

A fourth federal action, filed in Green Bay last Thursday, was dismissed late Friday by U.S. District Judge William Griesbach, a George W. Bush appointee.

Green Bay, home of the NFL’s Packers, and its city clerk also wanted to delay the April primary, but Griesbach argued the political-subdivision doctrine of the 14th Amendment’s equal-protection clause prohibited them from bringing litigation in their official capacities.

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