While Wisconsin’s spring election is still on track to more-or-less conclude with in-person voting tomorrow and an additional 6 days of late-arriving absentee ballots, there may be another major plot twist or two today. First, it turns out that the special session on Governor Tony Evers’ attempt to rig…er…delay the election that was a gavel-in-gavel-out affair Saturday in both the Assembly and the Senate, with barely any members of the Legislature present, was not adjourned. Only 2 back-bench Democratic Senators (out of 14 in their caucus and 33 total) and a handful of Assembly members, including the Republican Speaker Pro Tempore, showed up, meaning neither house could actually conduct any business.
Both houses left open the possibility of convening today, even with no sign as of Sunday afternoon that would happen. If the Legislature were somehow able to pass something and Evers were to sign it, it still would take an extraordinary effort to make it effective before in-person election-day voting begins at 7 am Central tomorrow.
Meanwhile, several mayors, mostly from Democrat strongholds and some up for re-election, pleaded with Health Secretary-designee Andrea Palm Sunday to use her emergency powers to halt in-person voting. Federal judge William Conley, who issued orders Thursday and Friday altering the conduct of the election, including extending the time allowed for absentee ballots to be returned regardless of whether said ballot was completed by the end of in-person voting at 8 pm, noted that he did not have the power to delay or cancel in-person voting. All of the elected officials, as well as at least half of the members of the Wisconsin Elections Commission, also have stated that they do not have the power to do that.
Yet another possible source of a change, though a more-limited one, is the United States Supreme Court. On Saturday night, the Republicans filed an emergency appeal of the 7th Circuit’s decision to uphold Conley’s order that any ballot that makes its way back to the various municipal clerks between 8 pm April 7 (the current, and official, end of the election) and 4 pm April 13 regardless of when the ballot was actually completed. Amy Howe at SCOTUSblog notes that Justice Brett Kavanaugh, who hears emergency appeals from the 7th Circuit, instructed the plaintiffs to file their response by 2 pm Eastern Sunday.
In their appeal, the Republicans note that nobody argued that there be no proof a ballot was actually completed by April 7, and the only group that made arguments related to the late arrival of absentee ballots asked that the ballots either arrive on time or have a postmark of no later than April 7. Indeed, that is the relief that the Republicans are asking for. The Democrats, for their part, are claiming that they asked Conley to (quoting from their response to the Supreme Court) “not worry about the postmark”.
As part of that appeal, the Republicans outlined the potential for vote fraud if ballots that cannot be proven to have been completed by April 7 are allowed to be counted, even with Conley’s belated prohibition on releasing election results until April 13 (emphasis in the original):
Additionally, the district court’s order encourages absentee voters to hold their absentee ballots beyond the April 7 Election Day, evaluate reports (authorized or otherwise) about exit polling and in-person voting, and then cast their votes days after in-person voting has concluded…. This information gap creates a fundamental unfairness that undermines the integrity of the election. Absentee voting should not be a procedure that gives some voters dramatically different incentives and information than others, permits advocacy groups to strategically chase down ballots that were not cast on election day, and otherwise disrupts Wisconsin statutes that aim to separate cleanly the time for ballot casting and ballot counting.
There are a couple of items of note related to how many (or few) in-person voters are expected tomorrow in a column by State Elections Commission chairman, and one of 3 Republican members of the 6-member commission, Dean Knudson at RightWisconsin in response to a call from RightWisconsin to delay the election. Knudson estimates that, instead of the typical 80% of ballots cast being cast the day of the election, only 20% might be cast based on the very high number of absentee ballots requested. As of Sunday morning, with the caveats that the tracking system is lagging behind and that the city of Milwaukee was still conducting its last day of drive-through absentee voting Sunday, nearly 1.27 million absentee ballots had been requested, nearly 1.26 million had been sent out, and over 700,000 had already been returned or voted in-person. A typical spring election with a supreme court race and a less-than-competitive presidential primary
Knudson revealed that Milwaukee election officials expect 20,000 people to show up at the 5 polling places, all at large public high schools that are otherwise closed. In normal times, while the 4,000 per polling place average is far greater than what Milwaukee poll workers are used to, there have been elections in Wisconsin where the busiest polling places saw close to 5,000 voters show up at a single polling place. Unfortunately, these are not normal times, and the weather forecast is not wholly conducive to waiting outside if the buildings cannot hold everybody while maintaining 6 feet of separation. While it will be warm for this time of year, with predicted high temperatures in the mid-60s, there is rain and a chance for thunderstorms predicted for mainly the afternoon.