Federal judge likely to rule quickly on whether to extend absentee voting in Wisconsin

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MADISON – A federal judge signaled Thursday he would issue a quick ruling on whether to extend absentee voting during the coronavirus outbreak as Wisconsin Republicans sought to halt the effort. 

“I feel as though I’m going to need to act one way or the other under fairly strict timelines,” U.S. District Judge William Conley said during an hourlong telephone hearing.  

He gave attorneys for the state Elections Commission and Republican-led Legislature until Friday to file briefs on whether he should change rules for the April 7 presidential primary because of the pandemic spanning the globe.

The Democratic National Committee and the state Democratic Party brought their suit Wednesday to ask the court to allow absentee ballots to be counted if they arrive after election day, allow people to vote absentee without providing a photo ID and give people more time to use an online portal to register to vote.

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The changes are needed because the global pandemic will make it difficult for people to vote in person, the lawsuit argues.

In addition to the presidential primary, the April 7 ballot includes a seat on the state Supreme Court and local offices across the state, including Milwaukee mayor and Milwaukee County executive.   

Misha Tseytlin, an attorney for GOP lawmakers, told the judge he would file paperwork Friday seeking to allow the Legislature to join the case and argue it should be thrown out. He said the election should be run following the rules that are already in place. 

Assistant Attorney General Brian Keenan, who represents the Elections Commission, raised concerns about the Democrats’ request to reinstate online voter registration. Technical hurdles would make that difficult, he said. 

Keenan raised the possibility during the hearing that Democratic Gov. Tony Evers could issue an executive order using powers he has during emergencies to change aspects of how the election is conducted.

“We know that the governor is considering an executive order,” Keenan said. 

Evers spokeswoman Melissa Baldauff downplayed that possibility, saying Keenan does not represent Evers or speak for him. 

The Democrats bringing the lawsuit want voters to be able to receive absentee ballots without having to provide a photo ID, and they want clerks to count absentee ballots that arrive by April 17 if they’re postmarked by election day.

RELATED: How to get an absentee ballot in Wisconsin during the coronavirus outbreak

Ordinarily, absentee ballots must be received by the time polls close at 8 p.m. on election day.  

The Democrats are also asking the court to allow people to register to vote without having to provide a photo ID or proof of residence. They argue providing those documents is too burdensome when many libraries, copy shops and other businesses that have scanners and copiers are closed. 

The state stopped allowing people to go online to register to vote on Wednesday because of a deadline included in state law. The Democrats are asking the court to reinstate online voter registration and allow it to continue until April 3.

Also Thursday, two Democrats on the Elections Commission urged Evers and legislative leaders to hold a special legislative session to make changes to voting laws, including ones in line with what the lawsuit seeks.

Commissioners Ann Jacobs and Mark Thomsen asked Evers and the others to allow absentee ballots to be counted as long as they are received by April 10. They also asked to extend by-mail voter registration until April 2 and in-person voter registration until April 5. 

“We cannot emphasize enough that right now we do not have the ability to conduct safe and fair elections statewide,” they wrote in a letter to the officials. 

The commission consists of three Democrats and three Republicans. The commissioners have agreed on many aspects of how to conduct the election during the health emergency but have split on some matters.

Republicans face legal obstacle

GOP lawmakers may have difficulty persuading Conley to let them participate in the case. 

He refused last year to let them intervene in a lawsuit over the state’s abortion laws, saying Democratic Attorney General Josh Kaul’s office was doing a sufficient job of defending the state. An appeals court upheld the decision to keep lawmakers out of that case, ruling that it would create an “intractable procedural mess” to have the attorney general and lawmakers both defending state laws.

The Democrats initially sought to have the absentee voting case assigned to Judge James Peterson because he handled a wide-ranging challenge to Wisconsin’s voting laws four years ago. 

Peterson on Thursday determined the two cases were not related and the absentee voting case was then randomly assigned to Conley. 

Kaul has walled himself off from the absentee voting case because he participated in the earlier challenge to voting laws before he was attorney general. The Democrats in the absentee voting case are represented by Perkins Coie, the firm where Kaul worked before he was elected.

Top decisions in the absentee voting case will be made by Deputy Attorney General Eric Wilson, according to the Department of Justice.

Absentee ballot requests rising

While online voter registration has ended, people can still register to vote in clerk’s offices until April 3 and at the polls on election day. Democrats say that is impractical for many people because health officials are telling people to stay home as much as possible.

Under the law, voters have until April 2 to request absentee ballots online. They can do that in their clerk’s office, by mail or at myvote.wi.gov.

Clerks are urging people to request absentee ballots as soon as possible to help them keep up with a surge of requests.

Wisconsin allows people to vote absentee for any reason. They don’t have to be out of town or give an excuse for voting absentee.   

As of Thursday, more than 315,000 people had requested absentee ballots. That’s more than all absentee ballots that were cast in the 2016 presidential primary.

Louisiana, Georgia and Ohio over the last week postponed their presidential primaries because of the pandemic. Evers has not supported doing that in part because the terms for many local offices begin later in April. 

Delaying the election would be difficult and could mean leaving many local offices vacant at a critical time, the governor has said.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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