Wisconsin Supreme Court Delays Absentee Ballots

A party-line vote may scuttle mail-in voting in a crucial swing state.

Milwaukee Journal Sentinel (“Wisconsin Supreme Court says mailing of absentee ballots should be halted while Green Party lawsuit is considered“):

The state Supreme Court told election officials Thursday that absentee ballots should not be mailed for now so the justices can determine whether they should include the Green Party’s presidential ticket.

So, on the one hand, we have a reasonable case in controversy. If the Green Party should rightfully be included on the ballot, mailing out some ballots without their inclusion will have irreparable harm. On the other hand, it’s mid-September and the election is just over seven weeks away.

The 4-3 order left open the possibility of reprinting 2.3 million ballots and delaying the printing of others — moves that election officials said would cause them to miss deadlines set by state law.

One would think that, if state law sets a deadline for mailing ballots, it would set deadlines for such things as resolving disputes as to who gets on the ballot.

The order fell along ideological lines, with the conservatives in the majority and the liberals in dissent.

I confess to not being that familiar with Wisconsin politics but I’m going to go out on a limb and challenge that framing, anyway. It almost surely fell along partisan lines with the Republicans in the majority and the Democrats in dissent. Indeed, were it to have fallen along ideological lines, one would expect the opposite result: conservatives saying that it’s too bad for the Greens but they should have challenged sooner and the law’s the law and liberals ruling that ballot access is paramount.

In response to the order, the state Elections Commission submitted a report late Thursday that suggested as many as 378,000 ballots have already been sent to voters. But the head of the commission said there was no way to know for certain how many ballots have been sent because that duty falls to municipal clerks, not the commission.

Adding candidates to the ballots after some have been sent would be complicated. Voters who have already been sent a ballot would need to get a second one and clerks would have to make sure no one voted twice.

So, it’s already too late.

County officials expressed frustration with the court handling the case so near the deadline for sending ballots to voters. Those concerns were noted in a spreadsheet they filled out for the commission that was later provided to the court.

“We feel this is almost impossible at this point,” Monroe County told the commission.

Milwaukee County noted it has 475 different ballots. 

“If Milwaukee County is forced to stop printing, and begin designing, testing, and printing a new ballot, we will not be able to meet the state and federal deadlines,” Milwaukee County reported. 

In its order, the court told the commission to advise municipal clerks that they should not mail any absentee ballots until further order of the court.

Most ballots have already been printed and requiring them to be reprinted with the names of more candidates could cause significant delays, according to election officials. Those delays could make it harder for some voters to cast ballots, particularly those who live overseas or are serving in the military.

From a practical standpoint, then, the ruling makes no sense. We’re too far along in the process to change the ballots and, even if we weren’t, it would be very expensive and cumbersome to do so. And for what? Adding a vanity party that has no chance of winning—but some chance of siphoning off crucial votes from Democrats—to the ballot.

State law—which the court has the power to waive—requires ballots be mailed by September 17. Federal law—over which the court has no power—requires that ballots be mailed to overseas military personnel by September 19. It would be impossible to meet those deadlines if the ballots had to be reprinted. And even moreso since the court isn’t even planning on ruling until after the election commission provides information they don’t have.

As to the merits:

The Green Party case centers on whether presidential nominee Howie Hawkins and vice presidential nominee Angela Walker should be on the ballot.

The Elections Commission didn’t include the Green Party on the ballot after it deadlocked last month on the issue. Walker, a Milwaukee native, provided two different addresses on her campaign filings, and the three Democrats on the commission said that should keep the Green Party off the ballot. The commission’s three Republicans wanted the Green Party on the ballot.

So, here too, the decision was along party lines and self-interested. Again, ideologically speaking, Republicans should be arguing that making a technical mistake on the filing was disqualifying and Democrats should be arguing that democracy is a higher value. Elections commissions appointed along partisan lines are, quite naturally, incapable of being neutral.

Alas:

Unspoken at last month’s commission meeting was how the Green Party could affect the presidential election. Democrats fear the liberal party could take votes away from Democratic nominee Joe Biden and Republicans hope such a situation will help GOP President Donald Trump. 

Trump won Wisconsin four years ago by less than 1 percentage point. The Green Party candidate in 2016, Jill Stein, received more votes than Trump’s margin of victory.

Again, I have little knowledge of Wisconsin election law and thus have no opinion on whether the Green Party is entitled to be on the ballot. But the decision should certainly have been made by now.

FILED UNDER: Campaign 2020, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    I wonder where the Green Party gets most of their funding from.

    12
  2. Kathy says:

    If the Green Party should rightfully be included on the ballot, mailing out some ballots without their inclusion will have irreparable harm.

    they’ll get an even smaller share of the infinitesimal vote they were expecting in a small state?

    The horror.

    3
  3. Bob@Youngstown says:

    Voting is a right that every eligible voter is encouraged to exercise. This I believe is a bedrock principle of the democratic process.

    But If I choose to exercise that right by jotting a handwritten note on a table napkin that properly identifies myself as an eligible voter and declares that I cast my vote for Joe Clark for mayor of my town, “I wanna vote for Joe Clark for mayor”. I’m confident that vote (and the napkin) would be discarded. And properly so.

    There are laws and regulations that govern the exercise of individual’s right to vote. If a person chooses not to comply with those laws and regulations, the otherwise eligible voter relinquishes his capacity to vote.

    If a prospective candidate fails to comply with the requirements set out to have their name or party presented on a ballot, the fault is on that candidate.

    I visualize what happened at the Wisconsin Election Commission meeting: A motion is made and seconded to include Walker on the ballot. The a vote is taken and the motion fails, due to a tie. Sounds to me like a proper procedure.

    So when will the Wisc Supreme court begin to require that my ‘napkin submitted vote’ be counted because Joe Clark is ideologically aligned with the majority of the justices?

    Our country really is discarding the notion that we are a land governed by laws.

    4
  4. Michael Cain says:

    @Kathy:

    they’ll get an even smaller share of the infinitesimal vote they were expecting in a small state? The horror.

    I don’t know Wisconsin law, but it is possible that failing to make the ballot this year may cost them perks as a party in future years. For example, instead of just filing paperwork next time, they might have to spend time and money collecting large numbers of signatures from all over the state. Some states make it really tough on the non-major parties.

    2
  5. Michael Reynolds says:

    The Greens never stop being idiots, and the Republicans never stop being crooks.

    6
  6. Not the IT Dept. says:

    Just FYI, I believe the word in the subheading should be “may”. It makes a different kind of sense right now.

    1
  7. James Joyner says:

    @Kathy: Obviously, the Greens aren’t going to win the presidency. I don’t know if they’re on any down-ballot races in Wisconsin but they’re not likely to win those, either. But, if they’re eligible to be on the ballot and are denied, they get fewer votes than they otherwise would and that harms their chances of getting on the ballot in the future.

    3
  8. Sleeping Dog says:

    @James Joyner:

    The only ballot successes of the US Green Party, have been city council seats and maybe one or two mayoral elections in several cities. They may also have taken a few state rep seats. Unlike the Greens in Germany and several other countries they are a joke.

    1
  9. CSK says:

    @OzarkHillbilly:
    My guess is that the Green Party gets funded by a Republican pac, since the Republicans benefit from having them on the ballot.

    6
  10. gVOR08 says:

    @Michael Cain:

    For example, instead of just filing paperwork next time, they might have to spend time and money collecting large numbers of signatures from all over the state. Some states make it really tough on the non-major parties.

    You say that like it would be a bad thing.

  11. gVOR08 says:

    @OzarkHillbilly:

    I wonder where the Green Party gets most of their funding from.

    I recall seeing video of a GOP election lawyer hauling petitions for Kanye West to the election commission office, I think in Madison WI. Why do I suspect you’re right to wonder about their funding?

    1
  12. Sleeping Dog says:

    Relevant to the conversation analysis at Reason the other day.

    https://reason.com/2020/09/09/the-incredible-shrinking-3rd-party-voter/

  13. Gustopher says:

    @James Joyner: Is that irreparable harm though? If they are found to have been improperly denied, then their ballot access can be maintained. So, all consequences would be the same (Greens don’t win, stay on ballot in the future if they actually file their paperwork correctly)

    And, voters can still write in the Green Party candidates.

    1
  14. I’ve lived in Wisconsin since the mid-90s, and I can tell you that this state is a testing ground for the kind of naked partisan insanity we’re starting to see at the federal level. There are two wisconsins: Milwaukee and Madison, decried by the Republicans, and the rest of rural Wisconsin labled “real Wisconsin” by conservatives. Never mind the fact that those two population centers contain far more voters, most of the states economy, and fund the rest of the state.

    4
  15. Slugger says:

    Wisconsin is not interested in people having equitable access to the ballot.
    https://www.pbs.org/wgbh/frontline/article/voter-suppression-wisconsin-election-missing-ballots-lines-coronavirus-covid-19/
    Their next governor will be named Lukashenko.

    1
  16. Matt says:

    @Political Biker:

    Never mind the fact that those two population centers contain far more voters, most of the states economy, and fund the rest of the state.

    Oh so basically like Illinois and Chicago…

  17. Kathy says:

    @Michael Cain:
    @James Joyner:

    Fair points. But delaying sending ballots when the USPS is hellbent on becoming a shadow of its former self, and maybe forcing determined voters to risk contagion during a pandemic, is a bit much to protect the prerogatives of a minor party in a small state.

  18. Mu Yixiao says:

    @Political Biker:

    I’ve lived in Wisconsin since the 60’s.

    If you think Madison and Milwaukee are the only places that drive the economy, you might want to talk to:

    * Green Bay, Neenah, Sun Prairie, De Pere, and Nekoosa–who produce most of the paper products you use.
    * Door County–which will be building a large portion of the new US Navy fleet
    * All those “other places” that produce 14% of the dairy for the country, more cheese than any other state, more “commercial packed” (#10 cans of) peas and corn than any other state, and a whole host of other industries.

    But… sure. Madison and Milwaukee are the only important places in the state. ( /s)

    There’s a great scene in Irresistible where Steve Carrel sits down in a diner and tries to chat with a local.

    Local: You ever been to Wisconsin before?
    Carrel: I’ve been to Madison several times.
    Local: So you’ve never been to Wisconsin.

  19. Mu Yixiao says:

    @Kathy:

    when the USPS is hellbent on becoming a shadow of its former self

    Do not attribute the failings of the general to those in the trenches.

    This week at work, one of the mail bins we got from the local post office had a tag in it. It’s a big green tag that says “BALLOTS ONLY”. The Post Office–in the trenches–is taking measures to assure that ballots get special (priority) handling.

    Today I got a postcard from the USPS that tells me how to make sure that I receive my mail-in ballot, and how to make sure it gets delivered on time (including very generous margins of error).

    I think the USPS is doing everything it can (given the political shackles) to make sure that they nail this.