Wisconsin Supreme Court says mailing of absentee ballots should be halted while Green Party lawsuit is considered

MADISON – The state Supreme Court told election officials Thursday that absentee ballots should not be mailed for now while the court determines whether they should include the Green Party’s presidential ticket.

The 4-3 order fell along ideological lines, with the conservatives in the majority and the liberals in dissent. 

The central question of the moment for the court is how many absentee ballots may have already been mailed to voters.

More than 300,000 absentee ballots have been prepared for mailing, and some of those likely have already been put in the mail, according to the state Elections Commission.

But the commission has been unable to say for certain whether any have been mailed and, if so, how many. That’s because the mailings are sent by municipal clerks, not the commission.

In its order Thursday, the court said the commission must tell it by 5 p.m. Thursday whether absentee ballots have been mailed — and provide it specific information if so. The justices want to know the names and addresses of everyone who has been mailed an absentee ballot, as well the dates the ballots were mailed. 

In addition, the court ordered the commission to provide it with the names of any officials who requested that ballots be printed and the date and time they made the requests.

The court told the commission to advise municipal clerks that they should not mail any absentee ballots until further order of the court. 

Most ballots have already been printed and requiring them to be reprinted with the names of more candidates could cause significant delays, according to election officials. Those delays could make it harder for some voters to cast ballots, particularly those who live overseas or are serving in the military. 

The majority wrote that it was issuing the order because it needed “definite factual information about whether and when absentee ballots have, in fact, been printed, requested and mailed.”

The order was unsigned but issued by the court’s conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler. 

In dissent were the liberals, Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.

“Given the breadth of the information requested and the minimal time allotted to obtain it, I fear that the majority of this court is asking the impossible of our approximately 1,850 municipal clerks throughout the state,” Ann Walsh Bradley wrote for the dissenters. 

Meagan Wolfe, the executive director of the Elections Commission, told reporters just before the order was issued that some absentee ballots likely have gone out but she didn’t know how many. Clerks in smaller jurisdictions are the ones most likely to have already sent some absentee ballots, she said. 

Clerks in larger communities had been planning to mail their ballots in the coming days, she said. Those cities need to send their ballots out in batches over a few days because they have so many of them.

Clerks need to start soon because of a state law that requires them to mail them by Sept. 17, Wolfe said. Nearly a million Wisconsin voters have requested absentee ballots so far and mail voting this year is expected to hit a record because of the coronavirus pandemic.

Having to add names to the ballots after some have been mailed would create confusion and logistical headaches, Wolfe said.

“It would be incredibly challenging to manage that process,” she said. 

Voters who have already been mailed a ballot would need to be sent a second one with the names of additional candidates. Clerks would put in place a time-consuming process to make sure no more than one ballot was counted from each voter, she said. 

Regardless of whether ballots have gone out, requiring them to be reprinted now would cause major delays, according to Wolfe. Only a small number of vendors can print ballots, which must be printed on special paper with markings that can be read by optical scanners, she said in court filings this week. 

Those vendors are in high demand during election season and Wisconsin clerks would go to the back of the line if they ordered new ballots now, she said. 

The case centers on whether Green Party presidential nominee Howie Hawkins and vice-presidential nominee Angela Walker should be on the ballot.

The Elections Commission didn’t include the Green Party on the ballot after it deadlocked last month on the issue. Walker provided two different addresses on her campaign filings, and the three Democrats on the commission said that should keep the Green Party off the ballot. The commission’s three Republicans wanted the Green Party on the ballot.

Unspoken at last month’s commission meeting was how the Green Party could affect the presidential election. Democrats fear the liberal party could take votes away from Democratic nominee Joe Biden, and Republicans hope such a situation will help GOP President Donald Trump. 

Trump won Wisconsin four years ago by less than 1 percentage point. The Green Party candidate in 2016, Jill Stein, received more votes than Trump’s margin of victory.

A separate case is pending in Brown County Circuit Court over whether to add rapper Kanye West to the ballot. The commission rejected West 5-1 after finding his team was seconds or minutes late in filing his paperwork last month. 

Judge John Zakowski said Wednesday he was likely to rule in that case by next week. He expressed some concerns about the deadlines for mailing ballots but also said the state could send a second ballot to voters if he later determines West’s name should be added to the ballot. 

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