MADISON – A federal judge on Monday gave Wisconsin voters an extra six days to get their absentee ballots back to election clerks this fall in a broad decision that also will make it easier to hire poll workers.
Anticipating an appeal was likely, U.S. District Judge William Conley immediately stayed his ruling, writing that it wouldn’t go into effect for at least a week. If higher courts uphold his decision, the nation will have to wait for a week after Election Day to get full presidential results in a crucial swing state.
Conley’s decision came four days after clerks around the state sent more than 1 million absentee ballots to voters. Absentee voting is expected to hit a record this fall because of the coronavirus pandemic.
Conley ruled that absentee ballots would be counted if they are postmarked by Nov. 3 — Election Day — and received by clerks by Nov. 9. Ordinarily, ballots must be in the hands of clerks by the time polls close on Election Day.
State law allows voters to request absentee ballots until Oct. 29, but those who request them that late “face a significant risk of being disenfranchised because their executed, mailed ballot will not be received by officials on or before the current election day deadline,” Conley wrote.
“Moreover, it is particularly unreasonable to expect undecided voters to exercise their voting franchise by absentee ballot well before the end of the presidential campaign, especially when Wisconsin’s statutory deadline is giving them a false sense of confidence in timely receipt,” he added.
Conley also gave voters until Oct. 21 to register to vote by mail or through the state’s myvote.wi.gov website, a one-week extension. Wisconsin also allows voters to register at the polls.
Those who request absentee ballots but don’t receive them in time to cast them will be able to get replacement ballots via email or through a website, Conley ruled. Usually, most voters must have absentee ballots physically delivered to them.
Conley also ruled poll workers for this election can work in any county, not just in the county where they reside. That will make it easier for clerks to find poll workers, which has been difficult during the pandemic.
Conley’s ruling was issued in response to four lawsuits brought by Democrats and groups aligned with them. Some of them were extensions of litigation this spring over the April election for state Supreme Court.
Conley agreed to extend deadlines in the spring, and he issued a similar ruling Monday for this fall.
GOP reviews appeal options
GOP lawmakers, the Republican National Committee and the state Republican Party have tried to prevent changes to the state’s voting rules. They said they were reviewing Monday’s decision to decide whether to appeal.
While his ruling provided a victory for Democrats, he declined to provide them some of what they wanted. For instance, he rejected their requests to expand early voting; lift the state’s voter ID law for some voters; mail absentee ballots to all registered voters; allow clerks to start counting absentee ballots before Election Day; and suspend the requirement that voters have a witness sign their absentee ballot envelope.
In the spring, Conley forbade election officials from reporting any election results until a week after the election, when they had received all ballots. But for this fall, he said clerks could immediately begin reporting their results, even though they will continue to receive valid ballots for six more days.
If the election is close, the public will have to wait until all the absentee ballots are in before they know who won the state.
Conley’s decision sets the election rules for a state that President Donald Trump won by less than a percentage point in 2016. Those rules could change again depending on appeals.
Conley, who was nominated to the bench in 2010 by Democratic President Barack Obama, emphasized that he was trying to ensure the election is conducted fairly and wasn’t thinking about the political dimensions of his ruling.
“In a vain effort (in both senses of that word) at forestalling the inevitable judge appointment and bias dialogue so prevalent in what remains of the independent press, among commentators and on the internet, let me stress, as I did with the parties during the August hearing, the limited relief awarded today is without regard to (or even knowledge of) who may be helped, except the average Wisconsin voter, be they party-affiliated or independent,” Conley wrote.
The lawsuits 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.
Election officials have sorted out some of those issues without intervention from the courts. Unlike in April, Milwaukee plans to have most of its polling places open in November. Green Bay intends to have 13 polling locations, up from two in the spring.
Record absentee balloting
Voters turned to absentee balloting in record numbers in April and they are expected to surpass those figures in November. Clerks had trouble keeping up with the volume of requests they received in the spring but have said they’ve been preparing so they can stay on top of an onslaught of requests this fall.
Many voters in the spring 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 in a July report determined that did not happen in Milwaukee.
An initial appeal of Conley’s decision would go to the 7th Circuit Court of Appeals in Chicago.
From there, it could go to the U.S. Supreme Court, which is shorthanded after the death Friday of Justice Ruth Bader Ginsburg. Conservatives have a 5-3 majority on the court.
The Supreme Court issued a decision the day before the April election that modified the rules for that election. The high court determined that absentee ballots for that election could be counted if they arrived after Election Day — but only if they were postmarked by Election Day.
Conley would have allowed the April ballots to be counted even without a postmark. In Monday’s ruling, he noted the post office sometimes does not put postmarks on ballots or uses ones that do not include the day of the month.
“It is this court’s view that local election officials should generally err toward counting otherwise legitimate absentee ballots lacking a definitive postmark if received by mail after election day but no later than November 9, 2020, as long as the ballot is signed and witnessed on or before November 3, 2020, unless there is some reason to believe that the ballot was actually placed in the mail after election day,” he wrote.
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.