In anticipation of a crush of absentee ballots, a federal judge on Monday extended the deadline for counting ballots cast in Wisconsin and sent through the mail by almost a week after Election Day.
The sweeping order by U.S. District Judge William Conley just 43 days before the election makes it likely Wisconsinites won’t know the unofficial results of the presidential election on Election Day this year, unless his ruling is reversed by the U.S. Court of Appeals or U.S. Supreme Court.
Conley immediately put his decision on hold for a week to allow for expected appeals. An appeal would likely go first to the U.S. Court of Appeals for the 7th Circuit in Chicago, and then potentially the U.S. Supreme Court, where conservatives now hold a 5-3 majority following the death on Friday of Justice Ruth Bader Ginsburg.
In his order, Conley extended the deadline for absentee ballots to be counted until Nov. 9, the Monday after Election Day, as long as the ballots are mailed and postmarked on or before Election Day.
“Election workers’ and voters’ experiences during Wisconsin’s primary election in April, which took place at the outset of the COVID-19 crisis, have convinced the court that some, limited relief from statutory deadlines for mail-in registration and absentee voting is again necessary to avoid an untenable impingement on Wisconsin citizens’ right to vote, including the near certainty of disenfranchising tens of thousands of voters relying on the state’s absentee ballot process,” Conley wrote.
Wisconsin election officials are again expecting a surge in absentee ballots for the November election, with clerks in some jurisdictions expecting 60% to 70% of voters to cast their ballots absentee. As of Monday, 1,080,071 of Wisconsin’s 3.5 million registered voters had already requested an absentee ballot for November.
The Wisconsin Elections Commission may need to provide further guidance for returned ballots that don’t have a postmark, after many ballots arrived with no postmarks, two postmarks or unclear postmarks in April.
The WEC left it up to municipalities to determine whether a ballot was timely. In Monday’s ruling, Conley said he wants clerks to lean toward counting ballots that are received without postmarks until Nov. 9 as long as they don’t show any evidence of having been mailed after Election Day.
Wisconsin’s normal deadline for absentee ballots is 8 p.m. on Election Day. A similar order from Conley in April also extended the absentee ballot deadline for the April 7 election, pushing back the counting of election results by about a week.
Conley, however, won’t prevent election officials from counting and publicizing the results they’ve already worked through on Election Day, meaning the bulk of election results could be publicized on or shortly after Election Day, with the rest trickling in during the remainder of the week. For the April election, Conley delayed clerks from counting ballots and reporting results until the week after the election.
In Wisconsin, a place where statewide elections are increasingly won on the margins, Conley’s latest order could mean the perceived winner on Election Day ends up losing the race once all late absentee ballots have been counted by Nov. 9.
Republican President Donald Trump won Wisconsin by fewer than 23,000 votes in 2016.
Conley’s order is in a slate of four lawsuits brought by the Democratic National Committee and others against the Wisconsin Elections Commission seeking election-related changes, such as the extension of voting and registration deadlines; ensuring safe in-person voting sites; and suspending the state’s photo ID requirement in response to the COVID-19 pandemic.
The Republican National Committee, state Republican lawmakers and the state Republican Party intervened as defendants in the cases.
Conley granted many of DNC’s requests but rejected others, such as the suspension of the photo ID or proof-of-residence requirements.
The state Democratic Party praised the ruling.
“We welcome the court’s decision to expand voting in Wisconsin so that more voters have the opportunity to register and have their voices heard in this election,” said DPW spokeswoman Courtney Beyer. “We will continue to ensure Wisconsinites have the information they need to successfully cast their ballot.”
Besides extending the deadline for absentee ballots to be received, Conley is also suspending state law to allow election officials to be residents of other counties within Wisconsin. The move is meant to allow more flexibility to municipal clerks to ensure there are enough poll workers, something clerks have struggled with during the COVID-19 pandemic.
To prevent another complication wrought by COVID-19 on the April 7 election, Conley is briefly suspending the state law that prevents absentee ballots from being delivered online to domestic civilian voters. Conley will allow such voters to get their ballot delivered online or by email between Oct. 22 and Oct. 29, if those voters requested a timely absentee ballot and the request was approved and mailed, but the voter didn’t receive it.
There were numerous reports of voters not receiving their absentee ballots for the April 7 election, in some cases due to mail delivery problems. The Elections Commission received reports of “three tubs” of ballots from the Appleton/Oshkosh area that had been undelivered.
In Fox Point, a bin containing 175 unopened and undelivered ballots was returned to the clerk’s office on the morning of Election Day.
Conley also extended the deadline for online and mail-in voter registration from Oct. 14 to Oct. 21 to accommodate voters.
Conley’s ruling comes as local elections officials in some of the state’s largest cities say they feel more prepared for the November election than they did during the Supreme Court election and presidential primary on April 7.
Some clerks reported purchasing new, high-capacity voting machines to handle the expected influx of absentee ballots, and others are fine-tuning their absentee ballot counting process.
While Milwaukee witnessed long voter lines in the spring election after limiting the city’s polling places to just five, the city expects at least 172 of its normal 180 polling locations to be up and running on Nov. 3.
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