GOP appeals ruling that extended time to count Wisconsin absentee ballots

MADISON – Republicans who control the state Legislature appealed a court decision Wednesday to try to make sure absentee ballots aren’t counted if clerks receive them after election day. 

The filing with the 7th Circuit Court of Appeals came two days after U.S. District Judge William Conley ruled absentee ballots should be counted if they are postmarked by Nov. 3 — election day — and received by clerks by Nov. 9. 

Ordinarily, absentee ballots in Wisconsin are counted only if they are in clerks’ hands by election day. Conley provided the extension because of the coronavirus pandemic, a surge in mail voting and recent problems with delivering mail on time. 

There is precedent for his decision. The U.S. Supreme Court in April allowed ballots to be counted that were postmarked by election day in the race for state Supreme Court.

The case is being watched closely because Wisconsin is a battleground in the race between Republican President Donald Trump and Democratic nominee Joe Biden. Trump won Wisconsin in 2016 by less than a percentage point.

In his Monday ruling, Conley also pushed back by a week the deadline for using the state’s online portal to register to vote and said voters who hadn’t received absentee ballots they requested could get replacement ballots emailed to them. He also made it easier for election officials to hire poll workers by saying they could serve in any community, not just municipalities in the county where they reside. 

Anticipating an appeal, Conley stayed his own ruling until at least next week. That means it hasn’t gone into effect yet — and might not, depending on how the appeals court rules. 

Conley, who was appointed to the bench in 2010 by President Barack Obama, issued his ruling in response to four lawsuits brought by Democrats, liberal groups and nonpartisan entities.

Some of the lawsuits are extensions of ones initially brought in the spring. Conley extended deadlines for the April election, ruling that absentee ballots that arrived in clerks’ offices late should be counted even if they weren’t sent to clerks until after election day.

The U.S. Supreme Court scaled back his decision a day before the April election, ruling that absentee ballots that arrived after election day could be counted only if they had been postmarked by then. 

Conley nodded to that high court decision in his latest ruling, saying absentee ballots that showed up late in November must have postmarks. 

The ruling creates a potential issue this fall because sometimes mail isn’t given a postmark or is given a postmark that isn’t legible. Municipal clerks would have to decide what to do in such situations and clerks from different areas could treat similar ballots in different ways. 

The appeal will be heard by a three-judge panel of the 7th Circuit Court of Appeals in Chicago.

That court includes Judge Amy Coney Barrett, one of the top candidates Trump is considering to replace Justice Ruth Bader Ginsburg, who died last week. It’s unknown whether Barrett will wind up on the panel that hears the Wisconsin voting case.

Trump said Wednesday he thought the Supreme Court would decide this fall’s election and it was essential to confirm his nominee before then to prevent a 4-4 tie, according to Bloomberg News. Trump plans to announce his pick for the court on Saturday.

Molly Beck of the Journal Sentinel staff contributed to this report.

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