The Seventh Circuit Court of Appeals has blocked a lower court ruling that would have pushed back Wisconsin’s voter registration deadline and required the state to count all absentee ballots postmarked by Election Day as long as they were received by November 9.
The voter registration deadline would have been pushed from October 14 to October 21. The Democratic National Committee and Wisconsin Democratic Party initially sued the state legislature and secretary of the elections commission back in March. The case is expected to be appealed to the U.S. Supreme Court, though the DNC and Wisconsin Democratic Party did not immediately answer TPM’s questions about their next moves.
In a 2 to 1 decision, the court sided with the Republican-led legislature’s arguments that a federal court should not change the rules of an election so close to Election Day, and that political rather than judicial officials should get to decide when a pandemic justifies voting changes.
On the timing question, the judges faulted the lower court for waiting to issue a decision until September. And to that district judge’s concern that last-minute voters would struggle to have their vote counted, they said, essentially, not our problem.
“The problem that concerned the district judge, rather, was the difficulty that could be encountered by voters who do not plan ahead and wait until the last day that state law allows for certain steps,” they wrote. “Yet, as the Supreme Court observed last April in this very case, voters who wait until the last minute face problems with or without a pandemic.”
The dissenting member of the panel, Judge Ilana Rovner, retorted with a scorching opinion clocking in at more than three times the length of the majority’s.
“The inevitable result of the court’s decision today will be that many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it,” wrote Rovner, a George H.W. Bush appointee. “This is a travesty.”
She took particular aim at the majority’s assertion that the changes would be put into place too near to Election Day, and that the plaintiffs had had all pandemic long to wrangle the changes into place.
“The Covid-19 pandemic is no longer new but neither is it a static phenomenon; infection rates have ebbed and surged in multiple waves around the country and it is only now that Wisconsin is facing crisis-level conditions,” she wrote.
Crisis-level is no exaggeration. Wisconsin has become a raging hotspot, its cases jumping by 50 percent in the past two weeks, with 33,403 new infections. Governor Tony Evers (D) has been forced to activate a field hospital at fairgrounds near Milwaukee, as the state’s hospital system has been pushed to the brink of collapse from the influx in cases. The number of patients hospitalized currently — 873, according to the COVID Tracking Project — is the highest Wisconsin has seen during the whole pandemic.
Experts have attributed the spike to the reopening of K-12 schools, and lack of adherence to best practices like mask-wearing. Evers, while trying to fend off challenges from the Republican legislature, has enacted through his health secretary a ban on indoor gatherings of more than 10 people.
Nothing in the case law, Rovner argued, “forecloses modifications of the kind the district court ordered in the worsening circumstances that confront Wisconsin as the election draws nigh.”
“We cannot turn a blind eye to the present circumstances and treat this as an ordinary election,” she concluded. “Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages.”
“Good luck and G-d bless, Wisconsin. You are going to need it.”
Read the decision here: