A Judicial ‘Shitshow’ Upends Absentee Voting in Wisconsin

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Absentee ballot envelope (Bill Clark / CQ-Roll Call, Inc. via Getty Images)

Madison, Wis.—When the right-wing judicial activists on the Wisconsin Supreme Court forced the state’s April 7 election to go forward at a peak point in the coronavirus pandemic, absentee ballots saved the day. While thousands of voters were forced to stand in line for hours to cast their ballots in person, almost 1.1 million votes were cast by mail.
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Now, with the November 3 presidential election looming, and with coronavirus numbers again spiking in this critical swing state, the same right-wing judicial activists on the same Supreme Court have blocked distribution of absentee ballots.

As municipal clerks across Wisconsin were beginning to mail roughly 1 million absentee ballots to voters on Thursday, September 10—in order to meet a legally mandated state deadline of September 17–the court ordered a halt to the process until it can review a dispute over addresses on Green Party petitions for ballot access.

In an order that shocked election officials in Wisconsin, as well as election observers nationwide, the high court’s conservative majority demanded the names of every voter who has requested an absentee ballot, details regarding ballot preparation, and information about how many ballots had already been mailed and how many are ready for mailing.

A Judicial ‘Shitshow’ Upends Absentee Voting in Wisconsin 1

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Even more concerning was the prospect that this temporary order could be followed by a court decision to require a new ballot design. That would force clerks to scrap the ballots that have already been printed—at enormous cost of resources and precious time.

“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,” wrote Justice Ann Walsh Bradley, who dissented from the 4-3 decision.

Election law expert Rick Hasen was blunter.

“The technical legal term for this is shitshow,” declared the professor of law and political science at the University of California, Irvine, who authored the book Election Meltdown.

Late Thursday evening, filings from clerks across the state indicated that as many as 378,000 requested ballots had already been sent to Wisconsin voters, and the Milwaukee Journal Sentinel reported, “If the court finds candidates need to be added to the ballot, those voters would have to be sent a second ballot. And then clerks would have to make sure no one voted twice.” Officials in Milwaukee County, a Democratic stronghold that is the state’s most populous voting base, signaled that “if Milwaukee County is forced to stop printing, and begin designing, testing, and printing a new ballot, we will not be able to meet the state and federal deadlines.”

The complicated and costly process of redesigning, reprinting, and coordinating for new ballots would further burden clerks who are already struggling to keep ahead of new absentee ballot requests—which can still be submitted—and all the challenges of organizing early voting and in-person voting on Election Day.

The conservative jurists offered no timeline for how quickly they will act to resolve a weeks-old dispute over whether the Green Party’s presidential and vice presidential candidates can be listed on the fall ballot. The Green campaign of presidential candidate Howie Hawkins and vice presidential candidate Angela Walker collected a sufficient number of signatures to qualify for the November ballot, but there was a question regarding how Walker’s address was listed on some petitions. It should have been resolved by the Wisconsin Election Commission last month, but partisan wrangling between Democrats and Republican commissioners landed the issue in the courts.

If the court does not act immediately to resolve the dispute—and, if necessary, to set a new timeline for distribution of requested ballots—the consequences could extend far beyond Wisconsin. Republican Donald Trump won this swing state by less than 23,000 votes in 2016. Electoral votes from Wisconsin, Michigan, and Pennsylvania handed Trump the presidency. This year, Republicans and Democrats are engaged in a pitched battle in the state, which has seen visits by the president, Vice President Mike Pence, and Democrats Joe Biden and Kamala Harris in recent days.

Now, with court-imposed chaos threatening an already challenging process of organizing a safe and fair election, Dane County (Madison) Clerk Scott McDonell says, “This is potentially a huge disaster. Just the delay of a decision is deeply irresponsible and jeopardizes the integrity of our election.”

There were pleas for the high court to act expeditiously. But state Representative Gordon Hintz, a Democratic legislative leader, explained, “The courts are not acting expeditiously because they are acting politically. The current Wisconsin State Supreme Court majority is a national embarrassment.”

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