Here’s a headline you never want to read less than one week before a state election: “Gov. Tony Evers to use National Guard members to work the polls amid massive shortage of workers.”
Wisconsin is planning to hold an election next Tuesday, April 7, which will include the state’s Democratic presidential primary race and an election for a seat on the state Supreme Court. It plans to hold this election despite the fact that Evers, a Democrat, issued a stay-at-home order a week ago to help slow the spread of the coronavirus pandemic.
The state anticipated a huge shortage of poll workers prior to Evers’s decision to call up the National Guard. In Milwaukee, which typically has 180 polling places open on an election day, city officials expected that they would only have enough workers to keep 10 to 12 sites open. More than 100 of the state’s municipalities reported that they lacked enough regular poll workers to staff even one polling place.
Even with the National Guard working the polls, the state’s attorney general’s office predicts that “the assistance of the National Guard will not satisfy all of the current staffing needs.”
Meanwhile, election officials face a crush of absentee ballot requests. As a federal court noted in an order extending the deadline for voters to register online, “with more than two weeks until the April 2 deadline for requesting absentee ballots, the number of requests already exceeds three out of the four most recent Spring elections.” That was two weeks ago, when the state had received only 173,000 applications for absentee ballots. As of Wednesday morning, there are 1,053,556 absentee ballot applications.
Moreover, unlike many states where absentee ballots need only be postmarked by Election Day in order to be counted, Wisconsin requires such ballots to arrive at the designated polling place by 8 pm on Election Day. That means that voters could potentially be disenfranchised for arbitrary reasons, such as a delay in the mail.
Voters could also be disenfranchised because the state may not be able to mail out more than a million ballots fast enough for voters to return them before the deadline. Evers asked the legislature to enact a law ensuring that every voter will automatically receive a ballot in the mail, but this request hit a wall in the Republican-controlled legislature.
And, of course, litigation has proliferated — with many lawsuits pitting the Democratic Party against the GOP. The state Supreme Court backed Republicans’ preferred reading of a state law requiring voters to provide a copy of their photo ID in order to receive an absentee ballot, though many voters may not have the right technology to make such a copy while they are confined in their homes.
Another lawsuit asks a federal court to block the requirement that ballots arrive by Election Day. A third challenges a requirement that absentee ballots be signed by a witness — a difficult requirement for voters who live alone to comply with. A fourth straight-up seeks to postpone the election.
In a word, it’s all a clusterfuck. And the election hasn’t even happened yet.
Wisconsin’s democratic system was already in rough shape
In a functioning democracy, a state might be able to adapt to the unique problems presented by an election in the middle of a pandemic. Wisconsin could have, for example, replaced the deadline for submitting ballots with a more manageable requirement that ballots be postmarked by Election Day. It also could have appropriated additional funds to hire workers who could deal with the crush of absentee ballots.
But Wisconsin is not really a functioning democracy. In 2018, 54 percent of voters chose a Democratic candidate for the state Assembly. But Republicans have so completely gerrymandered the state that they prevailed in 63 of the state’s 99 Assembly races.
Armed with their anti-democratic majorities, Republican leaders have dismissed Evers’s proposals with scorn and contempt. In response to Evers’s suggestion that the state implement automatic vote-by-mail, for example, Republican State Senate Majority Leader Scott Fitzgerald accused Evers of “lying directly to Wisconsinites about this even being remotely possible” and dismissed his plan as a “hoax.”
Many Democrats, meanwhile, attribute the worse possible motives to Republicans. On Twitter, voting rights attorney and former Obama White House lawyer Daniel Jacobson accused Republicans of refusing “to delay the primary” and to provide for “more mail voting, seemingly on the calculus that COVID will more likely affect voting in heavily Dem areas,” skewing Tuesday’s state supreme court race towards the conservative incumbent.
(Both Republican lawmakers and Evers have resisted delaying the election altogether, although Evers has proposed automatic vote-by-mail as an accommodation for voters stuck at home.)
Without any plausible path to legislative solutions, the task of pulling this election out of the flames has fallen to the courts.
The courts have already stepped in once
Chief Judge William Conley is hardly a household name in Wisconsin, but he could prove to be the single most important decision-maker shaping whether the state holds a free and fair election on Tuesday.
An Obama appointee to the United States District Court for the Western District of Wisconsin, Conley’s faced the unenviable task of sorting through the wave of briefs, motions, and emergency requests filed by various parties hoping to shape how Tuesday’s election is conducted. It was Conley who ordered the state to extend its deadline for online voter registration from March 18 to March 30.
Conley is currently hearing at least three lawsuits concerning Tuesday’s election. The first, Democratic National Committee v. Bostelmann, produced the order extending the registration deadline. Democrats have also asked Conley to lift the requirement that absentee ballots arrive by Election Day, arguing that “Wisconsin voters are at a high risk of not receiving their ballots with sufficient time to mail it into the municipal clerk’s office so that it is received prior to the Election Day Receipt Deadline.
That later request is still pending before Conley.
A second lawsuit, Gear v. Knudson, challenges a state law requiring absentee ballots to be “signed by the voter and also signed by a witness who is an adult U.S. citizen” — a requirement that could potentially disenfranchise any voter who lives alone during a period of social distancing.
Yet another lawsuit, Lewis v. Knudson, seeks an order directing the state to “postpone the current April 7, 2020 election to a date no earlier than the expiration of” Evers’s stay-at-home order, and to “extend from April 7, 2020 to June 2, 2020 the deadline by which municipal clerks must have counted all returned mailed ballots for the Wisconsin spring election.”
However, Conley believes that these cases should be resolved, moreover, his decisions may be appealed to the United States Court of Appeals for the Seventh Circuit, which is dominated by Republicans. And any decision by the Seventh Circuit may be reviewed by a GOP-dominated Supreme Court that is typically unsympathetic to voting rights plaintiffs.
It is far from clear, in other words, whether the election will happen on Tuesday, how that election will be run, or who will get to decide how the election is run.