MADISON – A divided federal appeals court Thursday reinstated a Wisconsin law that allows absentee ballots to be counted only if they are returned by Election Day.
The 2-1 decision reverses a ruling from last month that would have allowed more time for receiving and counting ballots because of the coronavirus pandemic. Under the earlier order, absentee ballots would have been counted for up to a week after Election Day if they were postmarked on or before Election Day.
The appeals court also put back in place other election rules, including one that limits where poll workers can serve.
Democrats, their allies and nonpartisan groups had sought the changes to make it easier to vote when many people are trying to limit contact during the pandemic and mail has slowed down. Republicans fought the September ruling and a panel of judges from the 7th Circuit Court of Appeals agreed with them Thursday.
Last week, the same appeals judges determined Republican lawmakers didn’t have the authority to pursue their appeal. But they changed their minds about that after the state Supreme Court issued a ruling this week that said they did.
The majority in Thursday’s decision contended the Nov. 3 presidential election is too near to change the rules now. It noted federal courts are only willing to change rules close to an election in very limited circumstances.
“A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event,” Judges Frank Easterbrook and Amy St. Eve wrote, noting the public has been dealing with the pandemic since spring.
In dissent, Judge Ilana Rovner wrote that extending deadlines was a reasonable way to help voters in the face of a once-in-a-century pandemic.
“Good luck and G-d bless, Wisconsin. You are going to need it,” she wrote, following a tradition among some Jews not to spell out a holy name.
Rovner, like those in the majority, was put on the appeals court by a Republican president. Easterbrook was nominated by President Ronald Reagan, St. Eve by President Donald Trump and Rovner by President George H.W. Bush.
Those who brought the lawsuit could appeal the decision to the full 11-member appeals court or the U.S. Supreme Court.
The appeals court includes Judge Amy Coney Barrett, Trump’s pick to replace deceased Justice Ruth Badger Ginsburg on the Supreme Court. But if the plaintiffs take the case to the full appeals court, Barrett won’t participate in the case because she is not taking on new cases while she awaits confirmation to the Supreme Court.
Regardless of what happens with further appeals, Wisconsinites are going to vote in large numbers, predicted the Rev. Greg Lewis of the group Souls to the Polls.
“No court ruling will stop Wisconsinites from turning out in historic numbers, even in the middle of a pandemic,” said a statement from Lewis, whose group is among those that have challenged Wisconsin’s voting laws.
State Senate Majority Leader Scott Fitzgerald praised the ruling, calling it “a huge win for preserving the integrity of our election process in Wisconsin.”
“Elections are decided on Election Day, period. Having ballots flow into clerks’ offices all over the state for days following Election Day is a preposterous setup that would completely undermine confidence in our state’s election processes,” the Juneau Republican said in a statement.
Fitzgerald, who is running for Congress, did not mention the U.S. Supreme Court allowed absentee ballots that arrived after Election Day in Wisconsin’s April election to be counted as long as they were postmarked by then.
Trump won Wisconsin 2016 by less than 1 percentage point and the voting lawsuit is being watched closely because of that narrow margin. Democrat Joe Biden has led Trump in recent polls of the state.
The case started before the April election for state Supreme Court, when the pandemic began to crest for the first time. The courts softened some rules for that election and the case continued as local and state officials prepared for a fall election that is expected to have a record level of mail voting.
U.S. District Judge William Conley in September ordered several changes to the voting rules. The most significant part of his decision said that absentee ballots that clerks received between Nov. 4 and Nov. 9 would be counted if they were postmarked on or before Election Day, Nov. 3.
Ordinarily, absentee ballots in Wisconsin can be counted only if they are in clerks’ hands by the time polls close.
Conley also gave people an extra week to register to vote through the mail or through the state’s myvote.wi.gov website. That would have extended the deadline from Oct. 14 to Oct. 21, but the appeals court’s ruling put the earlier deadline back in place.
Conley’s ruling also would have allowed poll workers to serve in any community, not just the ones in the county where they live.
That would have made it easier for election officials to staff polling sites, which has been difficult during the pandemic. Under the appeals court’s decision, those officials will have to continue to find poll workers within their own communities.
Conley’s decision would have allowed voters to get replacement absentee ballots by email if the ones they requested through the mail were not delivered on time. Now that opportunity won’t be available and voters who don’t receive absentee ballots in time to return them may have no option other than voting in person.
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