Update: The Wisconsin Supreme Court on Monday evening struck down Gov. Tony Evers’ executive order postponing Tuesday’s election.
Just hours before polls in Wisconsin were scheduled to open, Gov. Tony Evers (D) issued an executive order Monday afternoon suspending in-person voting in response to the coronavirus outbreak.
Per the order, the in-person voting would be pushed to June 9 unless the legislature passes a new date that Evers approves. Voters would be able to vote absentee in the meantime. Evers also called for another special session of the legislature on Tuesday to consider the new date.
The move brought an almost instantaneous challenge from the state Republican congressional leadership:
— Speaker Robin Vos (@SpeakerVos) April 6, 2020
Evers doesn’t even seem to know himself if he has the power to make the order. As recently as Friday, he said that his “hands are tied” when it comes to delaying the election unilaterally.
Evers’ long shot executive order is just the last in a chaotic flurry of attempts to delay the primary, as Wisconsin was left with the unenviable distinction of being the last holdout state plowing ahead with in-person voting in the month of April.
Most states have delayed their elections in the hopes of skirting the worst of the coronavirus pandemic. On March 15, the CDC issued guidance that gatherings of over 50 people should be cancelled for the next eight weeks.
Democrats’ last-ditch attempts to delay the election, joined by Evers after his previous opposition to pushing back the date, were stymied this weekend by the Republican legislature.
After his change of heart, Evers signed an executive order forcing the legislature to hold a special session last Saturday to hash out pushing back the election. Rep. Tyler August (R) opened and adjourned the session in 17 seconds, refusing to take any action.
The GOP’s resistance is likely related to a desire to keep turnout low for a crucial state supreme court race slated for Tuesday. Republicans think lower turnout benefits their candidate, incumbent Justice Daniel Kelly, who’s trying to fend off liberal challenger Jill Karofsky for a 10-year term on the bench.
Evers had initially balked at the idea of moving the presidential primary, which is also the day of major state and local general elections. Some of those terms were slated to begin April 20. In his executive order, Evers granted an extension to the current officeholders to continue serving until the new elections take place.
Evers was also opposed to the delay because he may need legislative support to make it happen, a flat-out nonstarter with the Republican-majority chambers. He reversed his position in recent days after hearing from local officials, calling the election a “very unnecessary health risk.”
Meanwhile, outside of the legislature, parallel battles have been playing out in the courts.
On Thursday, Judge William Conley of the western district court of Wisconsin wrote in a biting decision that he did not have the authority to delay the election, but extended the deadline for absentee voting to April 13 and waived the need for a witness’ signature.
“Without doubt, the April 7 election day will create unprecedented burdens not just for aspiring voters, but also for poll workers, clerks, and indeed the state,” he wrote. “As much as the court would prefer that the Wisconsin Legislature and Governor consider the public health ahead of any political considerations, that does not appear in the cards. Nor is it appropriate for a federal district court to act as the state’s chief health official by taking that step for them.”
He also issued a followup order allowing an extra week for election officials to report the results of the vote.
Wisconsin Republicans immediately appealed Conley’s decisions, sending the case to an appeals court.
On Friday, the 7th Circuit Court of Appeals split the baby: it upheld the extended timeline for absentee ballots to be sent in, but struck down Conley’s waiver of the need for a witness signature on absentee ballots.
Per the Wisconsin Elections Commission, even voters who sent in absentee ballots without a witness signature while Conley’s order stood will currently not see their ballots counted. To correct the ballot, they must either haul a witness to the clerk’s office or polling place on the day of the election, or get the ballot mailed back and add the missing information.
On top of the legislative and legal chaos, it is not clear that the state is anywhere near logistically equipped to deal with executing the election amid the outbreak.
According to the Wisconsin Elections Commission, 60 percent of the state’s municipalities report a shortage in poll workers. Over 100 jurisdictions are categorized as having “critical” shortages, or lacking the personnel to staff even one polling place.
And that’s just anticipated absences – in a letter to the members of the Commission, administrator Meagan Wolfe cited an additional concern about further, unexpected absences from election workers who are either ill or in fear of becoming so.
That scarcity is leading to “consolidation” of polling places, especially in the larger municipalities. Per the Milwaukee Journal Sentinel, this means that Milwaukee will have 10 to 12 polling places on election day — down from its usual 180.
At the same time, election workers are being drowned in an avalanche of absentee ballots. As of Monday, 1,275,154 absentee ballots had been requested — more than the total number of votes cast, in-person and absentee, in the 2016 Democratic primary.
In a letter to municipal and county clerks, Wolfe made a plea to prepare for a Tuesday election despite the last-minute chaos.
“I know too much has already been asked of you, but we ask you to proceed with your Election Day preparations as we do not know the outcome of any possible litigation,” she said, “and we need to be prepared if the election is held tomorrow.”