Federal judge says he can’t move the election

But he criticizes the Legislature and governor for failing to act

'Respect our vote' Capitol protest motion copy (Creative Commons 2.0)
'Respect our vote' Capitol protest motion copy (Creative Commons 2.0)

U.S. District Judge William Conley lamented the terrible choice elections officials are faced with, as poll workers drop out and municipalities consolidate polling locations to try to allow Wisconsin voters to cast ballots on April 7, even though having more people come to fewer locations, Conley noted, will likely increase the risk of spreading COVID-19.

In a four-hour hearing on Wednesday, Conley indicated that he was not likely to decide to move the date of the upcoming election, as the Democratic Party and voting-rights groups are asking him to do. 

“We really won’t know until Election Day” if large numbers of voters are not able to vote, he said. 

If he could make the decision to close the polls as a matter of public health, on the grounds that voting in person on April 7 is unsafe, Conley said he would. But that is not the issue he has been asked to rule on.

“As a matter of public health is this election a good idea?” he asked, and then answered his own question: “No.”

“Wisconsin is right on the edge of the exponential explosion of COVID-19 disease,” he added.

The case before him — that thousands will be disenfranchised because of the pandemic — is less clear.

There isn’t sufficient information to show mass disenfranchisement, he said: “You won’t have that until Election Day.”

Conley did allow that it might be reasonable to extend the deadlines for absentee ballots, allowing them to arrive later than the April 7 cut-off date, something he seemed inclined to do when he issues his decision soon.

Lawyers for the Democratic National Committee, Souls to the Polls and the League of Women Voters of Wisconsin pointed to a record number of absentee ballots requested throughout the state — now totaling more than a million — many of which might not even reach voters until after Election Day. Local elections officials are already dealing with a backlog of those ballots, they pointed out.

But, Conley said, as the Wisconsin Elections Commission continues to issue guidance to those officials, it’s not yet clear how big an issue the backlog will be.

Gov. Tony Evers has announced that he is calling out the National Guard to help at the polls as 111 municipalities report a “critical need” for poll workers. The Elections Commission stands ready to train new poll workers, Meagan Wolfe, who heads the commission, told the court, although there is no plan in place for that training at this moment.

Asking questions of Wolfe, the lawyers for the Democratic Party and voting-rights groups dwelled upon the cumbersome guidance the commission has offered for obtaining witness signatures by people who have COVID and are shut in their houses alone (they can use video chat, so the witness can observe them voting, and then mail their ballots to the witness, and have the witness sign and mail it back, before they turn it in, Wolfe suggested, in a series of answers that highlighted the byzantine nature of the process). 

The lawyer for the DNC, John Devaney, focused on Wolfe’s recitation of a U.S. Postal Service warning that first class mail, while it generally only takes a couple of days, might take as long as a week to deliver absentee ballots. Those ballots can be requested through April 2 — less than a week before they are due back by return post. 

Some municipalities have set up dropbox locations, including library book returns and tax return slots, Wolfe noted, and local officials are advising voters that “the closer they get to the deadline, it may be advisable to use a dropbox rather than the postal system.”

Conley asked Wolfe what would happen if he were to order the April 7 election consolidated with the special election in the 7th Congressional district on May 12.

Wolfe pointed out the difficulties of moving it onto the date of another election, already in progress, noting that “526 municipalities would run two elections concurrently.” Those municipalities would have to purchase new equipment, and maintain two sets of polling books, she said. 

“I hear you saying that if I move it, you’d prefer I move it to a different date than May 12,” Conley said.

But Wolfe pointed out that there are elections scheduled throughout the year. “No matter what day you choose, there’s going to be a different set of issues to consider,” she said.

Devaney, the DNC lawyer pressed Wolfe on the question of whether thousands of absentee voters are likely to see their ballots arrive too late to be counted under the current rules, which require that the ballots arrive by the end of the day on April 7. “Yes, I think it’s accurate that will occur for some,” she said.

Doug Poland, the lawyer representing Souls to the Polls pressed Wolfe to admit that people with internet access will have an easier time voting, and that extending the deadline would allow more absentee ballots to be counted, which she acknowledged was true.

Patrick Strawbridge, the lawyer for the Republican Party of Wisconsin and the Republican National Committee pointed out that absentee ballots have been available to Wisconsinites for the last 47 days, that clerks process the ballots in the order they are received, that guidance on postal delays hasn’t changed over the last few years, and that the cumbersome process for getting a witness signature on an absentee ballot only applies to people in quarantine, not people who live with someone who could be a witness.

Not only that, but no jurisdiction had cancelled in-person voting on Election Day as of April 1, Wolfe said in answer to Strawbridge’s question.

The judge, however, did not agree that things are OK.

Toward the end of the hearing, he sounded upset, raising his voice as he criticized the Legislature and the governor for rolling forward with in-person voting in the midst of the pandemic.

“You expect the state of Wisconsin to realize this was a hurricane and for them to stop it for public health reasons,” he exclaimed. “But you don’t get to go to a federal judge and say, ‘it’s infringing on voting rights,’ so you get to stop a statewide election.”

“This is a public health crisis that the state Legislature and the governor have refused to accept as severe enough to stop this statewide election. And that’s where the remedy is under case law and under the U.S. Constitution,” Conley added. “And you may have a remedy after the fact if voters rationally decide not to go get absentee ballots and not show up in person at the polls. But I don’t see a basis on which I stop, albeit, a very risky decision by the state of Wisconsin.”