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Judge Blasts Wisconsin Governor, Republican-Controlled Legislature For Holding Primary During Pandemic

Update: April 5, 2020 – Governor Tony Evers called a special session on Saturday to postpone the primary, but Republicans quickly adjourned and did not consider the proposal. 

A federal judge in Wisconsin declined to order the postponement of a primary that is scheduled for April 7 but blasted Democratic Governor Tony Evers and the Republican-controlled state legislature for seeking to hold an election during a coronavirus pandemic.

“This is a public health crisis that the state legislature and the governor have refused to accept as severe enough to stop this statewide election,” Judge William Conley said, according to Laurel White, a state capitol reporter for Wisconsin Public Radio.

During closing arguments, Conley suggested residents could die from the coronavirus. “That may be something that happens that would be outside my jurisdiction, but it will be on the hands of the legislature and the governor.”

But Conley insisted it was not his place to say whether the steps taken by the state, or the lack of steps taken, would infringe upon anyone’s right to vote.

There was no decision issued by the judge, but it seemed he would not provide a check on the state’s plans because they’re well within their authority to push onward with election day. But he made it clear

The Democratic National Committee, the state’s Democratic Party, and multiple groups that typically engage in get-out-the-vote campaigns for Democrats, like SEIU Wisconsin, Voces de la Frontera, and Souls To The Polls, filed lawsuits.

By the afternoon on April 1, they all endorsed calls to postpone in-person voting until a stay-at-home order expires. They urged the court to extend the deadline for mail-in ballots to June 2.

Former Vice President Joe Biden, a Democratic presidential candidate, did not join Democrats in their calls to postpone the primary. However, Senator Bernie Sanders, who is still in the Democratic presidential race, backed moving the date.

“People shouldn’t have to put their lives on the line to vote,” Sanders declared. “Wisconsin should join the 15 states delaying elections, delay Tuesday’s vote, extend early voting, and work to send every voter a ballot by mail. While we wait for a decision, we urge our supporters to vote-by-mail.”

Prior to the afternoon hearing, local news outlets reported Evers will deploy the National Guard to staff “undermanned polling sites.” Around 60 percent of municipalities have staff that are afraid they may contract the coronavirus so they refuse to show up. Plus, over 100 polling locations lack enough staff to run even one polling site.

Sam Levine, a voting rights reporter, noted Conley seemed “unmoved that senior citizens living alone” would be disenfranchised “because they can’t get a witness for their absentee ballots.” “People who are true shut ins, who have no one, are probably not voting anyway,” Conley said.

For people who are immuno-compromised, Conley minimized COVID-19, saying the virus was “just one more obstacle they face.” (According to Levine, Conley “screamed” at a lawyer for one of the plaintiffs toward the end of the hearing.)

A defiant Evers reiterated his opposition to postponing the primary and claimed encouraging Wisconsin residents to vote by mail all week, as well as expanding mail-in voting, would be “effective.”

This is the largest absentee ballot we’ve had for a primary in the history of Wisconsin,” Evers said. “So we believe that those will be counted.”

However, Wisconsin is not like Colorado, Hawaii, Oregon, Washington and Utah. They do not have all-mail elections, which means offices working to process absentee ballot requests and count returned absentee ballots are entirely overwhelmed.

The clerk’s office in Madison, the second-largest city in Wisconsin, shared, “The city of Madison has issued 79,818 absentees, 28,340 of which are returned to be counted. That includes 3,993 cast in-person/curbside. At this point, 35.5 percent of absentees have been returned. In April 2016, 92.3 percent were returned. Our email backlog is 839 tonight.”

As outlined in the lawsuit filed by Souls To The Polls and other groups, “The combination of the volume of requests for absentee ballots, the ever-increasing backlog the city [of Madison] has, and the fact that it may take about a week to send voters an absentee ballot means that a very large number of absentee ballots from lawful voters will not arrive until after election day.”

One local Fox affiliate in Wisconsin reported on March 31 that 30,000 voters were waiting to receive their mail ballots. “Another 604,000 already have one but have not sent it back.”

Half of the Wisconsin Elections Commission believe, “with so many ballots still out, election integrity is at risk.”

“Under normal circumstances, the process of mailing absentee ballots to voters and receiving them back in the mail can take up to two weeks,” the same lawsuit acknowledged. “This time period is likely to be even larger under the current circumstances.”

Since 2008, it is estimated that about ten to fifteen percent of all registrations occur at a polling place on election day. There undoubtedly tens of thousands of people who are not registered but would like to vote.

Evers has spoken about the “severity of the disease” as it impacts the African American population in Milwaukee. Now, the same community must be concerned about voter disenfranchisement while they struggle to survive a pandemic.

“The ability to request an absentee ballot is mainly internet-based. During the COVID-19 crisis, it is almost entirely internet-based,” the lawsuit stated. “If Milwaukee conducted an election where ballot access was regulated by who accessed their ballot electronically, the ‘digital divide’ [would] inflict its greatest impact on voters residing in low-income and impoverished communities.”

The lawsuit continued, “And in Milwaukee, communities in poverty are disproportionately represented by African American and Hispanic residents.”

It is expected that turnout in Milwaukee may be down nearly 44 percent. African Americans and Hispanics would make up many of the voters who are disenfranchised on April 7, if the primary is held.

Wisconsin is the only state with a scheduled primary in April that has not rescheduled voting. In fact, West Virginia Republican Governor Jim Justice, a coal baron, moved the state’s primary from May 12 to June 9 because he wants senior citizens to vote. He also wants this primary to have the “biggest turnout of all time.”

Evers and state officials can find an off-ramp and chart a course that does not involve holding a primary during a global pandemic. The state would be much better served by keeping resources focused on adequately supporting the field hospitals erected to prepare for the surge in deaths that will come over the next few weeks.

But appeals to reason have not persuaded Evers or Republicans that voters should not have to choose between protecting their health and exercising their right to vote. Nor has it helped them realize that holding election day during an outbreak means numerous Wisconsin residents will find it difficult to vote and be unable to participate in the primary.

Additional Analysis

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."