MADISON – A federal judge Thursday kept next week’s presidential primary on track but allowed more time to count absentee ballots after excoriating Wisconsin officials for not doing more to protect voters during the coronavirus pandemic.
The ruling — which was immediately appealed — will allow absentee ballots to be counted if they arrive by April 13, six days after election day. U.S. District Judge William Conley also gave people until Friday to request absentee ballots and loosened a rule requiring absentee voters to get the signature of a witness.
But Conley did not go as far as Democrats and voter mobilization groups wanted and declined to postpone Tuesday’s election. On the ballot is the presidential primary and elections for state Supreme Court and local offices around the state.
Delaying the election would protect the public’s health but doing so is up to Democratic Gov. Tony Evers and Republicans who control the Legislature, not Conley, the judge wrote.
“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,” he wrote.
“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.”
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Two hours after the judge issued his order, the Republican National Committee and state Republican Party filed an appeal.
Conley issued his decision a day after holding a four-hour hearing by video conference in which he maintained Evers and lawmakers were derelict by not putting off the election.
In his ruling, Conley warned the election would likely feature abysmal voter turnout, cause the dramatic spread of coronavirus, or both.
State law requires absentee ballots to be returned by the time polls close on election day to be counted. Conley set that requirement aside for this election and said absentee ballots could be counted if they arrived by 4 p.m. on April 13.
He did not require that absentee ballots be postmarked by election day. So those who request absentee ballots before the election will be able to put them in the mail after election day.
Allowing the late return of absentee ballots is essential because tens of thousands of voters likely will not receive their absentee ballots until after election day, Conley wrote.
He also relaxed the requirement that those voting absentee have a witness sign a certificate. He ruled that voters could avoid that requirement if they provided a statement with their absentee ballot saying they could not safely obtain a witness’ signature despite reasonable efforts to do so.
But Conley kept in place the witness requirement for other voters, despite a request from those bringing the legal challenge to sideline it completely for this election. Conley also declined to suspend the state’s voter ID law for absentee voters.
The governor, Senate Majority Leader Scott Fitzgerald of Juneau and Assembly Speaker Robin Vos of Rochester have said they don’t want to move the election.
Evers has sought to waive the voter ID law and soften other voting rules, but the Republican lawmakers declined to do that. Last week he proposed mailing absentee ballots to all registered voters, but legislators called the idea logistically preposterous given how near the election is.
“It’s great news that Wisconsinites will have more time to request and submit a ballot and that clerks will have more time to count ballots,” Evers said in a statement.
Evers has said he doesn’t have the authority to make other changes to election laws on his own. Some legal experts agree with him, but others believe he could alter voting rules or halt the election under emergency powers he has during a health crisis. Such actions would all but guarantee new legal challenges.
Madison Mayor Satya Rhodes-Conway said the judge’s decision improved the situation, but she wanted the governor’s administration to invoke emergency powers to put off the election.
“I remain completely baffled why the state is not acting,” she said. “I do think the time to act was several weeks ago, but it is still not too late to act.”
Conley issued his ruling Thursday, which was to be the last day to request absentee ballots. He gave voters one more day to make those requests, until 5 p.m. Friday.
Those requests can be made by mail, fax or email. It will be up to the Wisconsin Elections Commission to decide whether to keep its online portal for requesting ballots, myvote.wi.gov, available on Friday.
The commission is holding an emergency meeting at 8 p.m. Thursday to discuss the decision.
Voters have requested more than 1.1 million absentee ballots and clerks have struggled to keep up with the record number of requests.
Local leaders and election officials have warned people could get ill if they go to the polls. This week Milwaukee Mayor Tom Barrett, who is on Tuesday’s ballot, said everyone should vote absentee because it will be too dangerous to vote in person.
“It’s bound to be that someone who has the virus is going to show up (at the polls),” said Democratic state Rep. David Bowen, who recently recovered from coronavirus.
Communities are facing a severe shortage of poll workers, with more than 100 municipalites saying they will have no poll workers at all. The state’s elections chief, Meagan Wolfe, testified in court that some people might have to go to another town to vote in person.
The governor has said he will deploy the Wisconsin Army National Guard to help at the polls but cautioned the move won’t be enough to fix the problem entirely.
Because of the poll worker shortage, municipalities are greatly reducing the number of polling locations they will have. Milwaukee, for instance, will likely have fewer than a dozen polling stations instead of the usual 180.
That means far more voters will be assigned to each polling location even though health experts say people should stay away from one another as much as possible. Clerks plan to keep people 6 feet apart from one another in line and limit the number of people who can be inside a polling place at once.
“There is no doubt that the rapidly approaching election date in the midst of the COVID-19 pandemic means that citizens will face serious, and arguably unprecedented, burdens in exercising their right to vote in person,” the judge wrote. “An alarming number of poll workers have, understandably, canceled their shifts, which is almost certain to lead to some degree of dysfunction on election day.”
Conley, who was put on the bench by President Barack Obama, told those who tried to stop the election they could raise their challenges anew before him if they conclude Tuesday’s election results in large groups of voters being disenfranchised.
He issued his decision in response to three legal challenges he combined into one case. One was brought by Souls to the Polls and other voter mobilization groups, one by the Democratic National Committee and one by the League of Women Voters of Wisconsin.
Last month Conley issued a preliminary ruling in the case brought by Democrats that extended online voter registration for more than an extra week. Online voter registration ended Monday under Conley’s order.
A separate lawsuit to postpone the election brought by Green Bay’s city clerk was thrown out last week by U.S. District Judge William Griesbach.
Molly Beck of the Journal Sentinel staff contributed to this report.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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