Judge won’t take Wisconsin’s swing-state status into account as he considers voting rights

MADISON – A federal judge said Wednesday he would decide whether to alter election laws this fall purely on the basis of how the coronavirus pandemic will affect voting rights — and not on Wisconsin’s swing-state status. 

U.S. District Judge William Conley told attorneys the state’s crucial role in the presidential election was “the elephant in the room.”

“It is the parties’ elephant. It is not the court’s,” he said at the outset of a daylong telephone hearing. 

“It is not something that I intend to discuss and I do not expect the parties to tell me about it,” he said. “The questions here are purely ones of whether or not COVID-19 is impacting the ability of election officials to conduct this election and vindicate the rights of voters.”

Democrats and others have asked Conley to extend voting and registration deadlines because of the coronavirus pandemic, as he did for the April election for state Supreme Court. He offered hints Wednesday that he would.

Those bringing the four lawsuits against the state also want Conley to order the state to hire more poll workers, set up secure drop boxes for absentee ballots in every community and notify voters if their absentee ballots won’t be counted so they have time to fix any problems. They also want the state to expand drive-up voting opportunities and lift the photo ID and witness requirements for immunocompromised people who vote absentee.

GOP lawmakers, the Republican National Committee and the state Republican Party have intervened in the cases to try to prevent changes to the state’s voting rules. 

Any decision will affect the Nov. 3 presidential election — but not Tuesday’s primary for congressional and legislative seats. Conley is expected to rule by the end of the month. 

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Conley raised serious concerns during the hearing about Wisconsin’s absentee deadlines. Voters are allowed to request absentee ballots up until the Thursday before the election.

But Conley said voters who requested absentee ballots a week before that deadline probably would not receive them in time to return them to clerks in time for them to be counted. He signaled that he believed voters should have an opportunity to vote if they meet the deadlines set in state law, noting that requesting an absentee ballot just before the deadline was “a virtual guarantee it isn’t going to get there on time.”

“An unsophisticated voter, a reasonable voter, would assume the state would have set the deadline because it makes sense,” he told an attorney for GOP lawmakers after hearing six hours of arguments.

RELATED:How to register to vote and get an absentee ballot in Wisconsin

The lawsuits — some of which are continuations of litigation that began over the April election — are aimed at avoiding some of the problems the state faced in the spring. Then, voters in Milwaukee and Green Bay had to wait in line for hours because so many polling places were closed. 

Voters turned to mail voting in record numbers, which prevented even worse lines but overwhelmed clerks who had never before received such a flood of absentee ballots. Many voters complained they did not receive their ballots or received them too late to cast them. Problems with the postal service also prevented some ballots from being counted.  

Health officials warned the spring election could cause a spike in coronavirus cases, but the Centers for Disease Control and Prevention recently determined that did not happen in Milwaukee.

Conley called the April election a “mixed bag.”

He said deciding what to do for November is difficult because no one knows how rampant COVID-19 will be at that point. Courts can’t change voting rules without sufficient evidence that there are problems with an election, but they are also generally barred from adjusting them close to election day.

“We are all struggling with the question as to whether there is sufficient evidence to do some things without endangering the overall election or disrupting the processing of the election,” Conley said. 

One of the problems that dogged the spring election was a shortage of poll workers. More than 100 communities initially said they did not have enough poll workers to open any voting precincts, but the state was able to mitigate the situation by using National Guard members as poll workers. 

For next week’s primary, the state is short about 900 poll workers. Democratic Gov. Tony Evers on Wednesday said he would send the Guard to help at the polls Tuesday, but has not said if he would do the same in November.

Any decision by Conley is likely to be appealed to the 7th Circuit Court of Appeals in Chicago and possibly the U.S. Supreme Court.

The nation’s high court allowed absentee ballots that arrived after election day in April to be counted — but only if they were postmarked by election day. Normally, ballots must be in clerks’ hands by the time polls close on election day. 

Conley would have allowed the ballots to be counted even without a postmark. In some instances, the post office does not put postmarks on ballots or uses ones that do not include the day of the month.

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