Judge William Conley’s assessment was blunt.
“The state of Wisconsin’s Legislature and governor are not willing to step up and say there’s a public health crisis and make it absolutely clear that we should not be allowing poll workers and voters to congregate on April 7,” the U.S. district judge for Wisconsin’s Western District said at the end of a four-hour hearing on Wednesday.
Still, he said he was powerless to postpone the election, which is set to take place Tuesday as the coronavirus continues to spread around the country and Wisconsinites are under a stay-at-home order. On the ballot are presidential primaries for both parties and, perhaps more importantly, a state Supreme Court general election.
Conley is overseeing challenges from the Democratic Party and grassroots groups as they seek either to delay the election or expand absentee voting options. They hope to drop requirements like voter identification and witness signatures and extend deadlines for when ballots can be received.
On Thursday, Conley ruled that the election would not be postponed. He instead extended the deadline for the receipt of absentee ballots to April 13 and allowed voters who could not find a witness to send a written statement asserting that. It will be left to individual clerks to accept these excuses from the witness signature requirement, Conley said.
Multiple states have pushed back primaries or moved to all-mail elections so residents can stay home, a measure crucial to slowing the spread of the coronavirus. But Wisconsin’s Democratic governor and Republicans in the state Legislature, led by Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos, have refused to postpone next week’s election. What’s more, the GOP leaders further oppose expanding absentee voting and loosening ID and witness requirements.
“Their goal is to suppress the vote as much as possible and make barriers to voting as high as possible,” Courtney Beyer, communications director for the Democratic Party of Wisconsin, said.
The judicial race is crucial to determine the partisan tilt of the state’s highest court. Justice Daniel Kelly, endorsed by President Donald Trump and linked to state conservative groups, is up against Jill Karofsky, a state district judge who is endorsed by local progressive groups and, most recently, Sen. Bernie Sanders (I-Vt.).
Conservatives currently hold a 5-2 advantage over progressive-leaning justices in the Wisconsin Supreme Court, and they are set to rule on a case that could purge 240,000 voters from the rolls ahead of the November general election. Trump won Wisconsin in 2016 by fewer than 23,000 votes.
For the past decade, Republicans at the state and federal levels have worked to restrict voting across the country in a manner designed to hurt voter turnout among Democratic constituencies. That includes Wisconsin Republicans, who enacted a stringent voter identification requirement in 2011 and are currently seeking court approval for the massive voter roll purge.
“You’d never have a Republican elected in this country again,” Trump said of Democratic efforts to expand absentee and early voting options during the coronavirus pandemic.
“The state of Wisconsin is ignoring [public health] data and endangering its population,” Conley said during Wednesday’s hearing.
The complications of conducting an election during the pandemic are increasingly evident. Wisconsin may not be capable of meeting its constitutional obligation, “in which every eligible voter is able to participate,” according to Ned Foley, director of the election law program at Ohio State University’s Moritz College of Law.
The Democratic Party of Wisconsin, the Democratic National Committee, Sanders and many local grassroots groups have called on the state to postpone the election.
Sixty percent of Wisconsin municipalities face volunteer staffing shortages for their polling locations. Some municipalities are incapable of properly staffing even one polling station. Wisconsin Gov. Tony Evers (D) called up the National Guard to man polling stations, but that will not even fill the shortage. Reducing the number of polling sites would mean crowding more people into fewer spaces at a time when residents are told to not to congregate in groups of 10 or more.
The situation is so dire that Milwaukee Mayor Tom Barrett, who has supported an all-mail election, has called on voters not to go to the polls.
“I hope that people do not go to the polls on Tuesday,” Barrett told the Milwaukee Journal-Sentinel on Wednesday. “As much as I want them to vote, I do not want them to put their lives in jeopardy, I don’t want them to put the health and safety of our poll workers in jeopardy.”
A record-shattering 1 million-plus Wisconsinites are trying to avoid in-person voting by requesting absentee ballots from the Wisconsin Elections Commission. (Thursday at 5 p.m. Central Time is the final day to request one.) But the mailing of those ballots to voters could be delayed as the Republican-controlled state Legislature refused to appropriate extra money for the commission to process and respond to requests. Ballots are supposed to be due on election day.
“We are hearing from people all over the state who requested absentee ballots who haven’t received them yet,” Beyer said.
The results of the election will also be delayed, as the limited number of clerks counting votes do not have the resources to handle the crush of absentee ballots.
There are also requirements for verifying absentee ballots and preventing fraud made far more difficult by social-distancing requirements. Voters are required to have a witness observe their ballot and sign a statement that they did so. But that could be increasingly difficult for people who live alone and are social-distancing.
The commission issued guidelines suggesting people have a family member or friend witness through a window. The voter would then leave their ballot outside for 24 hours, so that it would become decontaminated after any potential exposure to the virus. Then the witness would sign it. For voters who may not be able to call on family or friends, the commission suggested enlisting the mail carrier or a food or app delivery worker. The commission also suggested voters FaceTime, Zoom or Skype with their mail carrier or Instacart gig worker to witness them voting.
Thousands of absentee ballots have already been deemed invalid by the commission as voters could not find a witness or included a selfie instead of a picture of their mandated voter identification.
“It’s a nightmare,” Beyer said.
The Election Will Happen
The courts are not going to postpone the election though. That’s the job of the state’s elected officials, not a federal judge, Conley said on Wednesday.
But Evers and his Republican counterparts in the Legislature insist on holding the election on April 7 despite Evers’ stay-at-home order and the rising coronavirus caseload and death toll across the country. They do not, however, see eye to eye on what the state should do to ensure the safe and valid conduct of the election.
Evers called for expanding voting options, including sending every voter an absentee ballot, changing deadlines such as the last day to request an absentee ballot, while waiving restrictions like voter identification and witness signatures.
Fitzgerald and Vos strongly oppose mailing absentee ballots to every voter in the state or the waiver of voter ID and witness signature requirements. The only change they have openly supported is allowing absentee ballots to be received after election day if they were postmarked on election day.
Republicans are now contesting the expanded absentee voting allowed by Conley. The Republican National Committee and the Republican Party of Wisconsin appealed his ruling on Thursday. The election is four days away.
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How to vote
Vote-by-mail ballot request deadline: Varies by state
For the Nov 3 election: States are making it easier for citizens to vote absentee by mail this year due to the coronavirus. Each state has its own rules for mail-in absentee voting. Visit your state election office website to find out if you can vote by mail.Get more information
In-person early voting dates: Varies by state
Sometimes circumstances make it hard or impossible for you to vote on Election Day. But your state may let you vote during a designated early voting period. You don't need an excuse to vote early. Visit your state election office website to find out whether they offer early voting.My Election Office
General Election: Nov 3, 2020
Polling hours on Election Day: Varies by state/localityMy Polling Place