No tallies until April 13
By Robert Cloud
Citizens who voted Tuesday, April 7, must wait until Monday, April 13, to learn the outcome of the election.
Two federal court decisions – unrelated to the state Supreme Court’s decision to block Gov. Tony Evers’ executive order to suspend in-person voting on April 7 – are responsible for the delay.
On Thursday, April 2, U.S. District Judge William Conley ordered Wisconsin to extend absentee voting in the April 7 election.
He gave voters until 5 p.m. Friday, April 3, to request an absentee ballot.
Conley also required poll workers to count all absentee ballots received by 5 p.m. Monday, April 13.
Normally, absentee ballots must be received by 8 p.m. the day of the election,
He did not order that in-person voting be delayed.
However, Conley recognized concerns regarding the COVID-19 pandemic had caused a spike in absentee ballot requests and significant delays in mailing the ballots to voters in time for them to meet the deadline.
“Without doubt, the April 7 election day will create unprecedented burdens not just for aspiring voters, but also for poll workers, clerks and indeed the state. As much as the court would prefer that the Wisconsin Legislature and Governor consider the public health ahead of any political considerations, that does not appear in the cards,” Conley wrote in his April 2 opinion.
“Nor is it appropriate for a federal district court to act as the state’s chief health official by taking that step for them,” he added.
In addition to extending the deadline for absentee ballots, Conley also ordered that election results not be released until April 13.
Supreme Court’s decision
On Monday, April 6, the U.S. Supreme Court blocked Conley’s order and ruled that only absentee ballots postmarked by April 7 could be counted.
The unsigned majority opinion described the case as “a narrow, technical question about the absentee ballot process.”
“Extending the date by which ballots may be cast by voters – not just received by the municipal clerks but cast by voters – for an additional six days after the scheduled election day fundamentally alters the nature of the election,” the justices argued in their decision.
“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Justice Ruth Ginsberg wrote in her dissent that “The Court’s order, I fear, will result in massive disenfranchisement.”
She noted election officials were overwhelmed by an unprecedented surge in requests for absentee ballots.
Although 150,000 ballots had been processed by April 2, at least 12,000 had not been mailed as of April 5.
“A voter cannot deliver for postmarking a ballot she has not received,” Ginsburg wrote. “Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline.”
Ginsburg disagreed with the majority’s view that the case presented a “narrow, technical question.”
“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” she wrote. “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”
Wisconsin Elections Commission
In a message to county and municipal clerks, the Wisconsin Elections Commission noted the U.S. Supreme Court overturned Conley’s order to extend the deadline for mailing absentee ballots but not the delay in reporting election results.
“In order to ensure consistent compliance with that order, the number of ballots will be counted on Election Night but votes will not be counted until April 13,” the WEC said.