By: Brianna Mashel

This election cycle has been turned on its head by safety concerns related to the COVID-19 pandemic. According to recent reporting by the Pew Research Center, about four-in-ten registered voters (39%) say they plan to cast their vote by absentee or mail-in ballot this year (or already have done so), compared with 33% who say they plan to vote in person on November 3, and 21% who have voted in person or plan to vote in person at an early voting location before Election Day. In fact, even before the onset of the pandemic, voters casting mail-in ballots increased nearly threefold between 1996 and 2016 – from 7.8% to nearly 21% – and the Census Bureau’s voter supplement data found seven-in-ten adults favor allowing any voter to vote by mail. Nonetheless, there is significant variation from one state to another on the handling of absentee and mail-in voting.  A case in point is Wisconsin, which has opted to rely on its existing absentee voting system even though it is currently one of the nation’s hot spots for COVID-19, with hospitals treating a record high number of patients with the disease.

In Wisconsin, absentee voting is relatively easy. Any registered voter is eligible to request an absentee ballot and voters do not need a reason or excuse to vote absentee. A ballot request and a copy of an acceptable photo ID with the applicant’s request must be received by the clerk no later than 5:00 p.m. on the Thursday before Election Day. The completed absentee ballot must be delivered no later than 8:00 p.m. on Election Day. This year, as many as two-thirds of all ballots, or roughly 2 million, are projected to be cast absentee. Although this process seems simple, Wisconsin voters have already experienced bumps in the road – literally.

There is a recent history of absentee ballot issues in Wisconsin. During the April presidential primary election, thousands of absentee ballots were not processed because of computer glitches and mailing problems. In Milwaukee alone, 2,693 voters were not sent absentee ballots after technical issues and, in the Appleton and Oshkosh areas, 1,600 ballots were found at a mail processing center the day after the election. In response, the Wisconsin Elections Commission published a report that concluded that “the absentee voting process in Wisconsin can be complex for some users . . . Voters and clerks would benefit from more information about the status of their absentee ballots, particularly once they enter the mail system.”  However, what the report did not address is what to do when absentee ballots are found alongside a road.

In late September, the United States Postal Service launched an investigation after absentee ballots were found along a road in Outagamie County, Wisconsin. The investigation comes as  the Postal Service faces increased scrutiny nationwide related to the 2020 presidential election. For example, a federal judge in the Ninth Circuit granted a requestfrom fourteen states to temporarily block operational changes within the Postal Service that have been linked to a mail delivery slowdown.

Because of problems with mail delivery, Wisconsin Democrats asked the Supreme Court to allow for absentee ballots that are received up to six days after the election to be counted. Democrats argue that the incoming flood of absentee ballots because of the pandemic make it necessary to extend the period in which ballots can be counted. In September, a federal judge sided with Wisconsin Democrats and said ballots postmarked by November 3 could be counted if they are received by November 9.  Predictably, the Republican National Committee, the Wisconsin Republican Party, and state Republican lawmakers fought this decision.

Initially, the Seventh Circuit Court of Appeals upheld the ruling, but then changed their decision and put the lower court’s decision on hold pending further appeals. The court’s majority wrote: “The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid. We agree with both of those arguments.” This decision was a win for Wisconsin Republicans. Wisconsin Senate Majority Leader Scott Fitzgerald, part of the Republican leadership that successfully pressed the appeal of the ruling, called the reversal “a huge win for preserving the integrity of our election process in Wisconsin.”

Wisconsin Democrats and their allies hoped to reinstate the lower court ruling that would allow absentee ballots to be counted if they arrive after Election Day as long as they are postmarked by then. However, this argument was rejected. Unlike the Pennsylvania order, the Wisconsin order concerned a ruling from a lower federal court, not a state court, and Chief Justice John Roberts said that made a difference. A divided Supreme Court held that mail-in ballots in Wisconsin could be counted only if they are received by Election Day. In her dissent, Justice Elena Kagan cautioned, “Because of the court’s ruling, state officials counted 80,000 ballots — about 5 percent of the total cast — that were postmarked by Election Day but would have been discarded for arriving a few days later.”

In 2016, President Donald Trump won Wisconsin by less than one percentage point and both sides expect another close race this year. Currently, polls show Vice President Joe Biden with a slight lead, but the polls are rapidly shifting. Three of the past five presidential elections in Wisconsin were decided by less than a percentage point, meaning absentee voting will play a crucial role in deciding this year’s winner.

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