Ed and John touched on the hot mess that is Wisconsin’s spring election, focusing on the Democrat presidential primary. That is not exactly the most-important, or even the second-most-important, item on the ballot. The latest evidence of that is a Marquette Law School poll taken in late-March that had Joe Biden leading Bernie Sanders 62%-34%.
Rather, the big prize is a seat on the Wisconsin Supreme Court, with a constitutional amendment giving victims of crime expanded rights on the statewide undercard. Supreme Court justice Dan Kelly is facing a challenge from Dane County Circuit judge Jill Karofsky. The two advanced from the February primary, with Kelly getting just over 50% of the vote. While the balance of the court, currently 5-2 in favor of judicial conservatives, would not flip if Karofsky won, a win by Karofsky would bring judicial liberals a step closer to gaining control. Also on the ballot are a third of the seats on the lower courts, as well as various municipal, school district, and non-partisan county offices.
Before Gov. Tony Evers issued his ban on gatherings of 50 or more people and Ohio’s governor had dared the courts to try to stop him from postponing his state’s election, Milwaukee and Madison had already begun in-person early voting on March 16, while they and every other municipality had already begun mailing absentee ballots. At that early time, both Evers and the Republican leaders of the legislature were urging voters to vote early, preferably by mail-in absentee ballot, but pledging to hold to the April 7 general election as there was, and is, no authority for any suspension of an election in Wisconsin.
At the same time, the first of three lawsuits to alter various rules of the election landed in the Western District courtroom of federal judge William Conley. While he did initially order that online voter registration be extended from May 18 until May 30, he didn’t grant any of the other immediate reliefs asked for by the plaintiffs.
Meanwhile, any cooperation between Evers and the Republican legislative leadership, as well as between the Democrat and Republican members of the Wisconsin Elections Commission, faded as Evers and his fellow Democrats began their attempts to change the rules mid-election. Twice Evers attempted to sneak a “temporary” suspension of voter ID and a mandatory mailing of absentee ballots to all 3.3 million registrations into a coronavirus relief bill he sent over to the Legislature. The first time, he also attempted to sneak in a “temporary” suspension of proof of residency for voter registration, while the second time, he attempted to allow for late-arriving absentee ballots that had a postmark of no later than election day. In neither case, nor after his March 27 social media cry to make the election mail-in only, did he take the step to call the legislature into a special session.
On the federal court end, there was little sense of urgency in Conley’s courtroom as he combined the three lawsuits before him. The city of Green Bay sued in the Eastern District to get the election delayed until June, but that was summarily dismissed.
Then came April, and a lot of action from Conley’s court. First came his outburst on Wednesday. On Thursday, he ordered the extension of the arrival time of absentee ballots to 4 pm April 13, including those lacking any substantive evidence the ballot was filled out before the normal election deadline of 8 pm April 7, an acceptance of a statement of inability to get a witness signature, and a 1-day extension of the deadline to request an absentee ballot to April 3. On Friday, based on the appeal to the 7th Circuit appeals court by the Republican Party, he ordered clerks to not report any results until after the extended absentee ballot deadline instead of obeying the normal state requirement that reporting begin at 8 pm April 7. Late Friday night, the 7th Circuit denied the request to reinstate the April 7 deadline for absentee ballots, but did reinstate the witness requirement.
That is, legally, where the state of the election in Wisconsin was as of the end of the day Friday.
That last ruling from Conley is when Evers stepped in to order the legislature into special session Saturday at 4 pm Central to extend the election. His terms, taken from the executive order, read like a how-to manual on how to steal an election. A summary of each bullet point, in italic, and my commentary follow:
- Extend the election to May 19 and mail every registration an absentee ballot. As of Friday morning, nearly 1.2 million absentee ballots have been requested, almost as many were already out the clerks’ doors, and over 560,000 were already back in the clerks’ offices. The total turnout for the last several spring general elections involving a supreme court seat and/or a presidential primary has been between 1 million and 1.5 million. Sending out a ballot to every registration would leave somewhere over 1.5 million excess ballots circulating about. Further, Evers’ current “safer-at-home” lockdown order only goes until April 24, and the underlying health emergency declaration statutorily expires on May 9 unless extended by the legislature.
- Except for a limited in-person voting period for the disabled and those unable to understand English, ban all further in-person voting through May 19. As noted above, even clerks that had attempted to halt in-person voting on their own were prodded into finding some accommodation.
- Eliminate the witness requirement for absentee ballots through May 26. Not only does that go farther than Conley’s order, but said order was struck down by the 7th Circuit.
- Allow absentee ballots to show up by any means through May 26 with no requirement to prove it was completed before 8 pm May 19. It was just a week ago that Evers wanted at least a postmark to prove that the ballot was completed before the election “ended”. I’ll come back to this in a bit, but you can probably see where this is going.
- Allow municipalities to canvass all ballots at a central location regardless of whether it already has an ordinance allowing this. This is understandable given the circumstances.
- Allow municipalities to begin counting ballots once all of the absentee ballots have been sent out (as opposed to current law that requires counting to begin only on election day), and allow reporting to begin at 8 pm May 19. Where do I begin, the implicit invitation to stuff the ballot box early or the explicit invitation to stuff the ballot box late? The reason why ballots are not counted early is to remove the temptation to leak the results to political operatives who can then stuff the ballot box. As for the reporting while unsecured ballots are out in the wild, almost any margin is able to be made up when less than half the ballots are legitimately requested and cast. Even Conley belatedly recognized that open invitation for fraud on a massive scale is a bad thing.
- The terms of the expiring local offices would be extended until 3 days after the certification of the election at that level of government. The only fortunate thing is that the terms of the judges and the justice up for election do not expire until August 1. I’m sure Evers would love to have been able to declare all of those offices vacant and thus be able to appoint a slew of judges.
- This would also apply to the special general election in the 7th Congressional District, currently scheduled to be held on May 12. This is the first time any action would affect that election. I’m sure Nancy Pelosi would appreciate that seat being moved back to her column by hook or by crook.
As for the political why, there really has not been any public polling in the supreme court race. However, there are some indications that race is not going well for Karofsky. Bear in mind that Brian Hagedorn beat Lisa Neubauer in 2019 to grow the conservative majority to 5-2.