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The Wisconsin Primary Decisions: A Legal Explanation of What Happened

Voting amid COVID-19
By Maddy Teka, Esq. on April 09, 2020 2:03 PM

Primaries in Wisconsin were held as scheduled on April 7 after the Supreme Court declined to extend the deadline for submitting absentee ballots. This is the Supreme Court's first case that relates to the COVID-19 pandemic.

While it has affected voters in Wisconsin, this decision may have even broader implications for the general elections in November.

COVID-19 and Elections

The Coronavirus is not only affecting the public health, but it is also disturbing many aspects of daily life, including the economy, employment, and elections.

Several states have issued a stay-at-home order to slow down the spread of this deadly virus, encouraging everyone to stay home and practice social distancing. Wisconsin's stay-at-home order went into effect on March 25 and will stay in place until April 24, 2020.

These measures are making it difficult for states to hold in-person elections. Many states have taken measures to postpone their primaries to allow Americans to vote safely. Alaska and Hawaii, for instance, have canceled in-person voting and stated that voting would be conducted through mail-in ballots. Other states like Georgia and Delaware postponed their primaries to a later date.

Wisconsin's Approach to Extend the Election

Wisconsin tried to postpone the primary election date. But these attempts were met with legal battles that went up to the Supreme Court.

Here's what happened:

1. The Governor Issued an Executive Order Extending Elections

Following the stay at home order, Wisconsin's governor issued an executive order postponing in-person voting and extending the deadline for absentee ballots to June. Wisconsin law allows its residents to vote by absentee ballot at their local municipal clerk's office or through the mail.

Typically, in Wisconsin, if you want to vote absentee, the clerk must receive your application no later than 5 p.m. on the Thursday before the election.

2. The Lower Courts Agreed to Extend the Deadline to Submit Absentee Ballots

The Wisconsin Supreme Court later blocked the governor's order after Republican leaders objected.

Another lawsuit requesting a delay in the elections was also brought to the district court. The judge declined to grant the request stating it is not within his power to order a delay of the election. The federal judge, however, extended the deadline to submit absentee ballots to April 13 regardless of the postmarked date.

The federal appeals court in the 7th Circuit upheld the order. The state legislature, the Republican National Committee, and the Republican Party of Wisconsin appealed this decision to the Supreme Court.

3. The Supreme Court Reversed the Decision to Extend the Absentee Voting Deadline

The Supreme Court, by a 5-4 majority vote, reversed the lower court's ruling, stating a federal judge does not have the authority to change absentee voting procedures days before an election is expected to take place.

In Republican National Committee, et al. v. Democratic National Committee, et al., the Court took a very narrow approach by only analyzing the technical question: Can a judge delay absentee voting procedures? The court also said that this was not a question about the current COVID-19 crisis. The majority opinion specifically stated:

“The court's decision on the narrow question before the court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate."

The Majority Ruling

The majority used the following rationale to reverse the lower courts' rulings:

  • Granting a six-day extension after Election Day for voters to cast their vote "fundamentally alters the nature of the election." Here, although the district court prohibited any disclosure of election results before all ballots were received, the Court stated: “it is highly questionable that this attempt to suppress disclosure of the election results for six days after Election Day would work."
  • Federal courts should not change a state's election rules on the eve of an election.
  • Absentee voters in Wisconsin are not in a "substantially different position" because of the COVID-19 pandemic.

The Dissent

The dissent stressed the issue is much broader. Specifically, Justice Ginsburg stated:

  • The question before the court is rather “whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic."
  • Tens of thousands of voters did not receive their ballots by Election Day because the district court extended the deadline to April 13. The majority ruling requires them to vote by Election Day even if they did not yet receive their ballots. This will result in a "massive disenfranchisement."
  • “The Court's suggestion that the current situation is not substantially different from an ordinary election boggles the mind." She explained that "voters simply cannot deliver for postmarking a ballot they have not yet received."

What Does This Mean to Wisconsin Voters?

This ruling means voters had to drop off their ballots by 8 p.m. on Election Day or have them postmarked by that time. Those who had requested absentee ballots, but had not received them, had to either go to the polls or not exercise their right to vote.

According to Wisconsin's Election Commission, the state received 1,282,762 absentee ballot applications. Of those, only 864,750 ballots had been returned. As of April 7, the state had sent 1,273,374 absentee ballots to voters.

What Does the Supreme Court's Decision Mean For the Elections in November?

This decision could impact the November elections, especially if the COVID-19 pandemic is still a public health threat by then. For instance, if states do not allow voting by mail or absentee voting, courts may not have the authority to intervene to ensure citizens don't have to choose between risking their lives and exercising their right to vote.

States have made a number of changes to voting in the primaries. Any change that will come for the general elections in November is yet to be seen.

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