Wisconsin’s 2020 Primary in the Wake of the Coronavirus

Lawfare is partnering with the Stanford-MIT Healthy Elections Project to produce a series on election integrity in the midst of the coronavirus crisis. The Healthy Elections Project aims to assist election officials and the public as the nation confronts the challenges that the coronavirus pandemic poses for election administration. Through student-driven research, tool development, and direct services to jurisdictions, the project focuses on confronting the logistical challenges faced by states as they make rapid transitions to mail balloting and the creation of safe polling places. Read other installments in the series here.

Mere days after Wisconsin issued a statewide “Safer-at-Home” order in response to the coronavirus outbreak, state officials wrestled to administer one of the first U.S. elections carried out in the pandemic. Several of Wisconsin’s election laws, such as those providing for early voting and no-excuse vote by mail, should have made the state better equipped than most to administer the April 7 presidential primary during a pandemic.

But sharp political divides and legal disputes severely hindered the state’s ability to adapt to pandemic conditions and administer a safe, orderly and fair election. Voters and election officials faced almost-daily changes to election procedures—even on the date of the election itself. Election officials also faced logistical challenges, such as shortages of poll workers and safety supplies as well as an overwhelming influx of absentee ballot applications. Despite efforts by the Wisconsin Elections Commission and local election officials, many voters were stuck standing in long lines outside of a limited number of polling facilities or waiting for absentee ballots that would never arrive.

In its upcoming Aug. 11 primary (for non-presidential races) and the November elections, Wisconsin’s highly decentralized election system faces the logistical challenge of rapidly expanding its absentee ballot infrastructure. It also faces legal challenges presented by a state legislature and state supreme court that remain sharply divided on the question of appropriate election accommodations as coronavirus infections soar across the state.

Voter turnout in Wisconsin’s April 7th elections was surprisingly high given the circumstances. Roughly 34 percent of the Wisconsin electorate voted in the April 7 election, the highest primary turnout since 1984. Nevertheless, given the political and legal disorder that preceded the Wisconsin primary and the Election Day conditions which may have resulted in some voters contracting the coronavirus, Wisconsin has become the object lesson for what state election administrators should seek to avoid in November.

Preliminaries

Wisconsin’s surge of COVID-19 cases in late March and early April left the state’s Democratic governor and the Republican-controlled state legislature at odds regarding how to adapt to pandemic conditions for the April 7 elections. Governor Tony Evers urged delaying the elections, while the legislature wanted to keep the election on schedule. On March 24, 2020, Evers directed state health officials to issue a statewide stay-at-home order. Then, on March 26, Evers proposed legislation to make voting more accessible and safer in the pandemic by suspending voter identification requirements, extending the deadline for online voter registration, accepting absentee ballots postmarked by Election Day and increasing absentee ballot printing. Republicans in the state legislature dismissed the proposed legislation as logistically infeasible, however. A week later, on April 4, Evers called for a special session of the state legislature on the question of an all-mail election. In turn, the State Assembly and Senate thwarted Evers’ efforts by gaveling in and out within seconds and recessing until the following Monday—the day before the election.

In response to the legislature’s failure to act, Evers signed Executive Order 74 on April 6, postponing in-person elections until June 9. State Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald immediately released a joint statement indicating that they would challenge the order—and just hours later, the Wisconsin Supreme Court struck it down. The primary election took place on April 7, as originally scheduled.

Some sources report that in-person voting, crowds and a dearth of essential supplies, staffing and safety measures caused a spike in post-election cases of COVID-19. Following the election, the Department of Health Services identified 71 poll workers, national guard members and voters who tested positive for COVID-19. But there are conflicting conclusions from research that assessed whether in-person voting was the catalyst of transmission. A study by researchers at UW-Oshkosh and Ball State University, using location data from mobile devices collected by San Francisco-based SafeGraph, found that counties with more in-person voters per voting location had significantly higher rates of COVID-19 transmission after the election than counties with lower in-person voter density. A study by researchers at the University of Hong Kong and Stanford University, on the other hand, found no link between in-person voting on April 7 and an increased spread of COVID-19 in Wisconsin.

Unclear Rules and Last-Minute Rules Changes Created Challenges and Widespread Confusion

Wisconsin faced significant legal challenges in the days leading to the April 7 election, in part because the Wisconsin Statutes lacked clarity as to which political branches have the authority to modify election procedures during a pandemic. On the one hand, Section 323.12(4)(b) of the Wisconsin Statutes gives the governor authority to “issue such orders as he or she deems necessary for the security of persons and property.” Section 252.02 further gives the secretary of the Department of Health Services authority to “forbid public gatherings . . . to control outbreaks and epidemics” and to “authorize and implement all emergency measures necessary to control communicable diseases.” On the other hand, because Section 323.12(4)(d) specifically gives the governor the authority to suspend administrative rules, one possible inference is that the legislature did not intend to give the governor authority to suspend statutes, including those dictating normal election procedures. This lack of clarity led to political maneuvering in all three branches of government over the adjustment of the election date and absentee ballot rules and deadlines.

In the end, both issues were decided by the Wisconsin and U.S. Supreme Courts—entities far removed from the institutions responsible for administering elections and perhaps unaware of, or unmoved by, logistical constraints. In a 4-2 decision along party lines, the Wisconsin Supreme Court decided that Evers did not have the authority to modify election dates. The court reasoned that the governor had the authority to suspend administrative rules but not statutes, such as those dictating election dates, even during a state of emergency. Under the Wisconsin Supreme Court’s ruling, the election was set to proceed on April 7, as originally planned.

Adding to the onslaught of litigation, several stakeholders sought to bolster access to absentee voting. The Democratic National Committee, Democratic Party of Wisconsin, League of Women Voters and others filed suits in federal court requesting a variety of absentee voting accommodations, such as more time to request and submit absentee ballots and exemptions from Wisconsin’s ID and witness certification requirements. A district court judge consolidated these suits and granted a temporary injunction extending the deadline for receipt of a completed absentee ballot from April 7 to April 13, and ordering election officials to waive the witness signature requirement if voters enclosed an explanation of why they were unable to obtain one. However, in a 5-4 decision, the U.S. Supreme Court delivered an emergency ruling modifying the lower court’s order extending the deadline for receipt of absentee ballots to April 13. The Supreme Court held that to be counted, an absentee ballot must be either both postmarked by April 7 and received by April 13, or hand-delivered to a polling place by April 7.

These court decisions and appeal rulings resulted in a dizzying number of rule changes and logistical nightmares that fell into the laps of local officials on the eve of the April 7 election. Wisconsin’s decentralized election system is composed of 1,853 municipal clerks and 72 county clerks who were charged with navigating the ever-changing state and court mandates while addressing the risks of COVID-19 exposure. Despite election officials’ efforts to prepare for a safe election during the pandemic, the rapidly changing rules contributed to an election experience that has been widely criticized.

Logistical Challenges of In-Person Voting

A significant shortage in poll-workers also contributed to derailing a smooth Election Day execution. Many poll workers canceled or just didn’t show up, fearing exposure to the coronavirus—leading to a shortage of 7,000 poll workers statewide. Evers took the unprecedented action of mobilizing 2,400 members of the Wisconsin National Guard to serve as poll workers in 71 out of 72 Wisconsin counties. Even with National Guard reinforcements, the shortage forced many jurisdictions across the state to close smaller polling locations and use fewer but larger facilities that were better suited for social distancing, such as high school gymnasiums or empty department stores. The City of Oconomowoc, for example, moved its polling station to a former Kmart building with warehouse-like dimensions.

The reduction in polling places varied significantly by county, leading to unequal treatment of voters in different areas as many voters and poll workers had to travel across municipalities and wait in long lines to cast ballots. While Madison reduced its polling places from 92 to 66, Milwaukee reduced its polling places from 180 to just five. The average wait time for in-person voting in Milwaukee was between 90 minutes and two hours, with some voters waiting as long as 2.5 hours. In other districts, some voters waited in line for four hours, and some were unable to cast a vote until after midnight.

At polling places, election officials faced the logistical challenge of keeping voters safe in pandemic conditions. Across the state, poll workers used tape, rope, cones and more to ensure voters maintained a six-foot distance from one another in line and limited the number of voters inside the polling place at any given time. To further address safety risks, some jurisdictions introduced or expanded “curbside voting,” where poll workers retrieved ballots from voters’ cars. In some locations, drive-through polling worked. But in Milwaukee, some voters waited over two hours in car lines that “became unwieldy.” And in Beloit, a man who voted curbside reported that “people seemed confused by the whole process, on both sides of the clipboard.”

While election officials strived to implement clean and safe protocols for voters, the degree of protections provided to poll workers varied greatly by location. While some municipalities provided plexiglass barriers, COVID-19 screenings, personal protective equipment and voting machine sanitation supplies, some volunteers reported that they were not even supplied with masks.

Logistical Challenges of Scaling Vote by Mail

While absentee voting addresses the safety concerns of in-person voting, the enormous influx of absentee ballots posed another set of logistical challenges for election officials and entangled the U.S. Postal Service (USPS). Even under normal circumstances, completing the process for absentee ballot applications submitted on or near the application deadline would be a herculean task. Starting in mid-March, absentee ballot requests skyrocketed across Wisconsin. Before 2020, no more than 10 percent of Wisconsin voters voted by mail. In April 2020, the number was 70 percent. The increase in absentee ballot requests strained the vote-by-mail supply chain, as many jurisdictions did not have sufficient ballots printed, the proper paper stock or enough envelopes.

Voters struggled to meet Wisconsin’s vote-by-mail requirements in the pandemic. After a voter receives and completes his or her ballot, Wisconsin requires a witness to sign the ballot to confirm the identity of the voter. Initially, a federal district court required election officials to waive the witness signature requirement for voters who live alone if they included a note explaining why they were unable to obtain a witness signature. Just two days later, however, the U.S. Court of Appeals for the Seventh Circuit stayed that portion of the district court’s order—but the stay was not effectively communicated to all voters. Madison election officials, for example, were forced to throw out at least 142 absentee ballots in which voters had included a note, believing it would excuse them from the witness signature requirement.

Vote-by-mail deadlines also put unrealistic time pressures on voters, election officials and the postal service, resulting in many lost votes. The deadline for requesting a vote by mail ballot in the April 7 election was April 3. After receipt of a vote-by-mail request, election officials must process the applications and mail out the ballots, USPS must deliver the ballots, the voter must complete the ballot, a witness must sign the voter’s completed ballot and USPS must return the ballot to the clerk’s office. To further complicate the process, changes in the USPS infrastructure mean that mailed ballots now travel to a sorting center in Milwaukee or St. Paul before reaching their ultimate destination.

This multi-step process combined with the amplified number of mail ballots resulted in a significant portion of absentee voter applicants not receiving their ballots before the April 7 deadline. Moreover, ballot blunders further inhibited successful voting. Election officials in Oshkosh and Appleton came under fire after discovering three bins full of undelivered absentee ballots in a mail processing center after Election Day. In the weeks leading up to the election, over 100 undelivered and unopened ballots were repeatedly returned to the municipal office at Fox Point Village in USPS crates. When questioned why these ballots requested by voters were never delivered, the post office conceded there was nothing wrong with them. Preliminary data suggest that more than 12,000 applicants statewide did not receive their ballot before Election Day. Close to three million absentee ballot applications were filed before April 7, but no more than 85 percent of these applicants ultimately returned a valid ballot.

After the district court ruled that voters would have until April 13 to return their ballot, the U.S. Supreme Court’s ruling requiring ballots to be postmarked or delivered by April 7 spawned additional communication and logistical issues. Because the deadline for the return of absentee ballots was in flux up until the eve of the election, Wisconsin voters had minimal time to learn of the change and to mail their ballots by the deadline. According to the Washington Post, at least 4,500 ballots that were postmarked after April 7 and would have counted under the district court’s ruling, were thrown out. Moreover, at least 390 ballots mailed by voters were never postmarked. Election offices could not determine whether the ballots were received in time to be included in the official count. Ultimately, the Wisconsin Election Commission left the decision to count ballots without postmarks up to each election office.

Wisconsin’s Efforts to Address Election Challenges

With COVID-19 cases on the rise, Wisconsin has implemented several measures to avoid some of the problems it faced in April. The state has dedicated $7.2 million in federal CARES Act funding to election preparedness which includes informational mailings and block grants to help municipalities pay for unbudgeted expenses like postage and envelopes.

Additionally, the Center for Tech and Civic Life agreed to fund the Wisconsin Safe Voting Plan, with a significant portion of the $6.3 million grant to be directed towards developing safer voting procedures. Specifically, about $1.8 million will help “launch poll worker recruitment, training, and safety efforts.” Mayors from Wisconsin’s five largest cities (Milwaukee, Madison, Green Bay, Racine and Kenosha) have together added an additional $6.3 million from their budgets to the Wisconsin Safe Voting Plan.

The funding has allowed election administrators to increase hazard pay for poll workers and cover sanitation expenses for property owners who allow their space to be used as a polling station. The plan will also pay for new advertising campaigns to recruit and train young Wisconsinites as poll workers. The city of Madison has set an ambitious goal of recruiting enough new volunteers so that no voter has to wait in line for longer than 15 minutes. The city of Milwaukee will have 168 polling places with added safety equipment for their Aug. 11 primary, in contrast to the five open in April, and even more for the November elections. Evers has again mobilized the Wisconsin National Guard to help staff polling places statewide on Aug. 11.

The Wisconsin Elections Commission has announced several measures to avoid lost and delayed delivery of absentee ballots. By Sept. 1, it will send informational mailings to registered voters to clarify their voting options for the general election. Additionally, it will send absentee ballot request forms and return envelopes. Finally, it will start using USPS “Intelligent Mail Barcodes”—essentially mail delivery tracking numbers—for absentee ballot envelopes.

In response to a request from four members of congress, the USPS inspector general released a report called “Timeliness of Ballot Mail in the Milwaukee Processing & Distribution Center Service Area” identifying the snags and delays in delivery of absentee ballots in the April 7 primary, and detailing very specific recommendations for addressing the issues. The USPS also intends to develop an action plan with timelines to address national issues raised in the report, such as ballot deadlines, postmarks, tracking technology and outreach to coordinate political and election mail).

Recent and forthcoming court decisions will also have a tremendous impact on upcoming elections. On May 18, Disability Rights Wisconsin and Black Leaders Organizing for Communities filed a federal lawsuit asking for various improvements to the voting system that would assist voters with disabilities and minority voters. The defendants, including the Republican National Committee, moved to dismiss the case, but their motion was denied. Separately, on April 30, a coalition of Democratic Party groups filed a federal lawsuit seeking improvements in absentee ballot regulations and safe in-person voting protocol “in the midst of this unprecedented public health crisis.”

Just recently, on June 28, 2020, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit unanimously reaffirmed voting restrictions initially challenged in 2016. The regulations upheld include a restriction limiting early voting to a two-week period, the elimination of sending absentee ballots to voters via email or fax, and the restoration of a 28-day residency requirement —instead of a 10-day residency requirement—to vote in a district.

In the end, the success of Wisconsin’s upcoming August and November elections will depend on its ability to address the many challenges of holding an election during a pandemic. Drawing on funding from CARES Act and the Center for Tech and Civic Life, the Wisconsin Election Committee will need to navigate difficult logistical hurdles that include:

• rapid expansion of its absentee ballot infrastructure
• improving public awareness of any last-minute changes to mail-in ballot rules
• recruiting a sufficient number of poll-workers and training them to address unique safety concerns
• determining the appropriate number, capacity, and location of polling places
• supplying all polling places with adequate safety and cleaning products such as PPE, masks, and sanitizer; and
• addressing the myriad issues around USPS delivery of mail ballot applications and mail ballots.