Could Wisconsin’s 2020 election turn out like Florida’s in 2000?

Protesters outside the U.S. Supreme Court in 2000
Presidential Election 2000 Disenfranchised Voters Protest at the US Supreme Court on Maryland Avenue between Maryland Avenue and East Capitol Street, NE, Washington DC on Monday, 11 December 2000 by Elvert Barnes Protest Photography (CC BY 2.0) 2.0 Generic CC BY 2.0

Hundreds of volunteers around Wisconsin are engaging in election protection work this year, says Jay Heck, executive director of the state chapter of Common Cause. “There has been an incredible outpouring of support and volunteering on the part of citizens from all over the state.”

Volunteers are working the phones, making themselves available to help voters at polling places and monitoring social media for false information. Intimidation of voters at the polls is a top concern — prompting Attorney General Josh Kaul to issue several stern warnings that people who interfere with citizens’ right to vote will be prosecuted and could spend time behind bars. 

Meanwhile, advocates are preparing for the possibility that Republicans and their allies might attempt to stop the vote count. U.S. Supreme Court Justice Brett Kavanaugh’s opinion in a case barring Wisconsin from counting absentee ballots that arrive after Election Day, even if they are postmarked before Nov. 3, “raises that specter,” says Douglas Poland of Law Forward, a progressive, nonprofit law firm which is helping to coordinate teams of lawyers around the state engaged in election protection. 

More than 70 lawyers across the state are prepared to go to court to make sure every vote counts. “Hopefully that won’t happen,” says Heck.

But, he adds, “we anticipate there will be some litigation going forward with regard to what happens here on Election Day.”

“If the race is close enough, there could be a recount,” says Jeffrey Mandell, founder of Law Forward.

Could Wisconsin turn into the 2020 version of Florida in 2000, when Republican and Democratic lawyers descended on local elections officials, and a legal battle over which votes would be counted dragged on for weeks, with the Supreme Court finally cutting off the vote count and determining the outcome of the presidential election?

Anything is possible

“In terms of stopping the count prematurely, anything is possible,” Mandell says — particularly after Kavanaugh’s opinion in the 5-3 decision stopping Wisconsin’s absentee ballot count on Election Day. In that opinion, Kavanaugh wrote that Wisconsin and other states must require ballots be received by Election Day to “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

Last April, with the late Justice Ruth Bader Ginsburg still on the bench, the Supreme Court reached the opposite conclusion, allowing Wisconsin to count absentee ballots that arrived late, as long as they were postmarked by Election Day. Thousands of votes did flow in, representing about 7% of the absentee vote total in Wisconsin’s spring primary.

Kavanaugh, echoing President Donald Trump, wrote that states “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.” 

But Wisconsin has never released official results on Election Day. State statutes lay out specific deadlines for municipalities, counties and finally the state to certify results. The whole process takes several weeks to complete.

“There is no rule that says if a ballot isn’t counted on Election Day it’s not valid,” says attorney Lester Pines. “That’s one of the most dangerous and idiotic statements the president of the United States ever made.”

Municipalities are, under Wisconsin statutes, supposed to report results to county elections boards by 4:00 on the day after Election Day. 

But “there’s no penalty associated with missing that 4:00 deadline the next day,” says Wisconsin Elections Commission spokesman Reid Magney. “There are no fines. It’s not the case that the ballots won’t count.”

Enough time to count

And there is some flexibility in that statutory deadlines. For example, voters who cast provisional ballots because they don’t have proper voter identification have until the Friday after Election Day to present I.D. at their local polling station and make their vote official.  Municipal officials add those ballots to the tally they pass on to the county elections board.

County elections officials don’t have to meet and start tallying municipalities’ ballot counts until 9 a.m. on the Tuesday after Election Day — a week after the polls close.

The statutory deadline for the Wisconsin Elections Commission to conclude its canvass and make a report is “the first day of December following a general election.”

In other words, there appears to be plenty of time to count all the votes. 

“Yeah, there is enough time,” says Magney.

The record number of absentee ballots and early in-person votes cast in this election might actually speed up the process, notes Pines.

It takes far more time for a voter to cast a ballot in person than it does for elections clerks to feed pre-marked absentee ballots into voting machines — which they do at local polling places all over Wisconsin throughout the day on Election Day.

“Slowdowns are possible, but having so many absentee votes actually relieves the pressure in the system,” Pines says. “There’s an efficiency there that people haven’t thought about.”

Certifying election results is essentially “a ministerial duty,” Pines adds.

“It’s not that complicated getting numbers from a polling place, tabulating and checking them,” says Pines. “If the tallies are correct, they send them in. It’s not like the ballots get sent to the elections commission. The tallies get sent, and they’re all certified and sworn to.”

“I don’t think there should be a problem,” counting all the ballots, Magney says. “Luckily this work is getting distributed. It’s not like it all happens in one warehouse.” Election workers in cities, towns and villages all over the state each have their own batches of ballots to count.

“Like my grandma used to say,” says Magney, “if we all help do the dishes it will only take about 10 minutes.”

Even in Outagamie County, where local elections officials appealed to the Wisconsin Supreme Court for guidance on how to handle thousands of absentee ballots that arrived with a defective barcode — only to have their request rejected by the court — the careful re-creation of all those ballots should be manageable in the time allowed, says Magney. And, he notes, Chief Justice Patience Roggensack specifically stated in her opinion that “Wisconsinites have a right to have their ballots counted.”

Mandell also believes that Roggensack’s assertion that every vote should count could turn out to be “significant.”

The election-protection air traffic controller

“This is a crazy year, with so many different issues, including a lot of voter confusion and increased confrontation at the polls,” says Heather Ullsvik Loomans, who was hired by Law Forward to serve as Wisconsin’s first statewide facilitator of election-protection legal efforts. 

Because there are so many different election-protection issues this year, the various state and national groups involved in these efforts decided “it would be good to have someone as a hub of information on who’s doing what — to avoid duplication of efforts by like-minded nonprofits and lawyers,” says Ullsvik, who compares her role to that of an air traffic controller.

“I anticipate being on calls and message chains all day and I’m guessing through the night,” she says.

Voters who have problems at the polls can call the 866-OUR-VOTE hotline run by the national, nonpartisan Election Protection Coalition, for help. 

“My role is to understand which legal teams have the expertise to respond to issues that come up that can’t be resolved over the phone,” Ullsvik explains. “If an issue has to be litigated, I can say this firm has it, you can focus on something else.”

There are not as many legal volunteers on the ground willing to go to polling places this year, says Ullsvik, because of COVID. “I’d say it’s quite reduced.” But there are a lot of lawyers standing by remotely. 

Ullsvik has a background in consulting for nonprofits on operations, logistics, and communications. 

Among the topics voting rights advocates are most worried about, she says, are voter intimidation and confrontations at polling places, which could take the form of self-styled militias showing up, or even of people refusing to wear masks when they come inside to vote. 

Then there’s “the perception of intimidation by the use of law enforcement or federal agents,” Ullsvik says. “I say perception because at times you need law enforcement, like if a clerk calls for help, but someone in a uniform can also feel like intimidation to voters  — what if federal agents were deployed to polling places? Hopefully that doesn’t happen.”

Defending drop boxes

A big concern arising from the U.S. Supreme Court decision to cut off the absentee ballot count at 8 p.m. on Election Day  is how municipalities are handling ballots that are left in drop boxes.

“Every municipality can determine a different time to close drop boxes,” says Ullsvik. “What could ensue is part of the concern. There are so many ways this could go wrong with a really specific timeline.”  

“Heaven forbid there is an accident on the highway,”  she says, as ballots from a drop box are on their way to a polling place. Because of the traffic tie-up, they could be delivered after 8 p.m. 

Volunteers are standing by to wave people away from drop boxes toward the end of the day on Tuesday, and lawyers will be on hand to respond should ballots be blocked from arriving in clerks’ hands by 8 p.m.

It frequently happens that voting machines break down and clerks ask for an extension on voting hours to allow voting to continue at their polling places. This year, such technical glitches are potentially fraught with peril.

“It wouldn’t surprise us if they try to say, ‘No, you don’t get more time,’” says Ullsvik.

Clergy at the polls to ‘calm things down’

Wisconsin Faith Voices for Justice with the Wisconsin Council of Churches has helped to recruit volunteers, including clergy, who are prepared to go to polling places where there are reports of voter intimidation to de-escalate the situation. “They are planning to have interfaith clergy show up and help calm things,” says Ullsvik.

“We saw what happened in Kenosha with people waiting to take the law into their own hands. Organizations and municipalities have been training volunteers with de-escalation tactics,” Ullsvik says.

Among the groups participating in this work are the Lawyers Committee for Civil Rights, Wisconsin Conservation Voices, Protect Our Democracy, All Voting is Local, ACLU, Fair Elections Center, the League of Women Voters, Wisconsin Faith Voices for Justice and the NAACP.

Maybe nothing will happen

Despite all the worry, it’s possible that the election won’t be that dramatic.

As Poland puts it: “If Biden is a runaway winner with over 300 electoral votes, then what’s the point of fighting in Wisconsin over our 10 electoral votes?”

In April’s “pandemic primary,” with many polling places shut down and a confusing series of last-minute court decisions changing the rules,  Wisconsin voters delivered a dramatic rebuke to Republicans, electing liberal Supreme Court Justice Jill Karofsky by a margin of more than 10% over the conservative incumbent justice. Many saw the election as a backlash fueled by the perception that Republicans were using the threat of COVID-19 as a tool for voter suppression. 

 “If the margin is like it was for Jill Karofsky in the spring, again, what’s the point?” says Poland.

While all eyes on are the presidential election, he adds, down-ballot races might turn out to be more contentious.

“In some of the Assembly districts, you can bet [Speaker] Robin Vos will pull out all the stops to get recounts and do what he can with those,” says Poland.

Still, says Heck, “We anticipate that Wisconsin will be one of the states that comes down to the wire.” 

As tension mounted ahead of Election Day, pickup trucks flying Trump banners and American flags cruised through Madison, converging on the governor’s mansion and blowing their horns as they roared through residential neighborhoods on Sunday. 

On Monday, Ullsvik said she was already receiving reports of truck convoys intimidating voters and obstructing polling places around the state.

“If the Democrats win, there’s got to be a Voting Rights Act with granular precision,” says Pines. That would clear away all the lawsuits that arise from a patchwork of different voting laws across the country. And the Supreme Court would not be able to intervene and overturn a federal mandate. It would be the end of elections won through voter suppression, Pines says. “Congress can set the rules. Once you do that, there’s never going to be a presidential election the Republicans can win.”

Republicans from Donald Trump to Mitch McConnell have basically conceded the point that high voter turnout is bad for Republicans’ chances.

It’s one reason both sides see 2020 as such a high-stakes election.

Correction: An earlier version of this piece quoted an attorney on a possible scenario in which a lawsuit could arise if the Wisconsin Election Commission deadlocks on certifying election results from counties. But commission members do not have to vote to certify the election. Instead, under Wisconsin Statute 7.70, the chairperson of the commission canvasses the results and makes a certification. We regret the error.