A judge’s order to allow for an election day postmark is tossed on appeal, so the deadline stays at 8 p.m. when the polls close.
Mailed ballots in Wisconsin must be received by elections officials by election day, Nov. 3, to be counted, a federal appeals court ruled Thursday in a reversal of a previous decision that would have given extra time for ballots to be counted through Nov. 9 so long as they were postmarked by Nov. 3.
The latest ruling in the case, which may well be challenged at the US Supreme Court, means the deadline for absentee ballots to arrive remains at 8 p.m. on election day as is spelled out under state law. Judge William Conley, a federal judge in Wisconsin’s Western District, initially extended to Nov. 9 the deadline for ballots to arrive at local election clerks’ offices to account for an expected surge in mail-in ballots due to the coronavirus pandemic and anticipated mail service slowdowns caused in part by President Donald Trump and Postmaster Louis DeJoy’s intentional throttling of the US Postal Service ahead of the election.
Judges Frank Easterbrook and Amy St. Eve of the 7th District Court of Appeals, in their decision to overrule Conley’s ruling, said the additional time is unnecessary because voters should be well aware of the COVID-19 pandemic and should have made plans to vote in the time since the virus reached the state.
“A last-minute event may require a last-minute reaction,” the judges wrote. “But it is not possible to describe COVID-19 as a last-minute event. The World Health Organization declared a pandemic seven months ago, the State of Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic.”
Easterbrook and St. Eve continued: “Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing.”
Easterbrook was a Ronald Reagan appointee, while St. Eve was confirmed to the court under George W. Bush.
Judge Ilana Rovner, a George H. W. Bush appointee, wrote a dissenting opinion in which she highlighted issues with absentee ballots in Wisconsin during the chaotic April 7 primary election. Thousands of voters across the state never received their requested ballots.
“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,” Rovner wrote. “This is a travesty.”
Rovner also took to task the Wisconsin Legislature, led by Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau). Vos and Fitzgerald, who have gone six months without convening the Assembly or Senate, initially filed the challenge to Conley’s ruling.
“Only the Wisconsin Legislature, which has chosen to make no accommodations in the election rules to account for the burdens created by the pandemic, seeks a stay of the injunction in furtherance of its own power,” Rovner wrote.
It is a common thought that increased mail-in voting benefits Democrats—and Trump has openly admitted to wanting fewer people to vote, positing that Republicans lose when there is more civic participation—but there is no evidence it provides a partisan advantage.
In the grand scheme of things, the deadline likely won’t matter much as long as voters return their ballots early. USPS employees told UpNorthNews last month that they do not anticipate massive delays as some people have feared, but they urged voters to mail their ballots back as soon as they receive them and to allow for up to a week for return.
Voters can also take their absentee ballots—sealed inside a properly signed and witnessed envelope—directly to their local clerk’s office during normal business hours, or a drop box in municipalities where available, or directly to their local polling place on Nov. 3 before the polls close at 8 p.m.
Voters in Wisconsin can request absentee ballots until Oct. 29 at myvote.wi.gov or by contacting their local clerk. So-called early voting, done in person at local clerks’ offices will also be available from Oct. 20 to Nov. 1. On Election Day the polls will be open 7 a.m. to 8 p.m.
For more coverage designed to help you cast a ballot this fall, see our special page on the election: Your Vote Matters