Wisconsin court sets up possible delay in absentee mailing

The conservative-controlled Wisconsin Supreme Court on Thursday ordered a halt in the mailing of absentee ballots until it gives the go-ahead or makes any future ruling about who should be on the ballot in the critical battleground state.

The order injects a measure of confusion into the voting process in Wisconsin a week before a state’s deadline for absentee ballots to be mailed to those with requests on file and less than two months before the Nov. 3 presidential election. Polls show a tight race in the state between President Donald Trump and Democrat Joe Biden.

An unknown number of ballots have already been mailed, and local election clerks sounded the alarm about what even a temporary delay in the process would mean.

“This is potentially a huge disaster,” said Dane County Clerk Scott McDonell. “Just the delay of a decision is deeply irresponsible and jeopardizes the integrity of our election.”

In the city of Madison alone, there were 100,000 requests for absentee ballots on file and election staff planned to work all weekend on mailing them out, he said. If the court would order changes to the ballot, Dane County would have to print, package, sort and deliver 500,000 new ballots.

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The ruling came in a lawsuit filed by Green Party presidential candidate Howie Hawkins. He asked the state’s highest court to take up his challenge of a Wisconsin Elections Commission decision keeping him off the ballot.

Rapper Kanye West, in a separate case, is also trying to get on the ballot after the commission rejected him. A Brown County judge said he hoped to rule within days on West’s lawsuit, which could cause further delays in the mailing of ballots.

Whether West and Hawkins are allowed on the ballot could have a significant impact in razor-close Wisconsin. The Green Party’s 2016 presidential candidate, Jill Stein, won 31,006 votes in the state, which was more than Trump’s 22,177-vote margin of victory over Democrat Hillary Clinton in Wisconsin.

The state Supreme Court, in a 4-3 decision split along ideological lines, said no ballots can be sent for now. Municipal election clerks face a Sept. 17 deadline to mail absentee ballots to anyone who had requested one. There is also a Sept. 19 federal deadline to mail ballots to voters overseas and in the military. As of Thursday, nearly 1 million absentee ballots had been requested in Wisconsin.

While Sept. 17 is the deadline for clerks to mail absentee ballots to those who already have a request on file, anyone who makes a request later will still be mailed a ballot. Oct. 29 is the deadline for most voters to request a ballot by mail. Returned ballots must be received by the time polls close at 8 p.m. on Election Day.

Wisconsin Elections Commissioner Meagan Wolfe said Thursday, just prior to the court’s order, that some clerks may have already mailed ballots without West’s and Hawkins’ names on them. If West or Hawkins ends up getting on the ballot, the clerks would likely send voters a new ballot, Wolfe said. Voters would also likely receive instructions telling them that their first ballot would still count unless they mailed in the second one, she said.

That scenario is “incredibly problematic,” Wolfe said.

The state Supreme Court asked the elections commission to provide it by 5 p.m. Thursday with detailed information about who had requested an absentee ballot, whether any had been sent, to whom they were mailed, when they were mailed and to what address. Wolfe said she did not know how many ballots had already been sent. Ballots are mailed by local election clerks.

The court’s three liberal justices dissented, saying “given the breadth of the information requested and the minimal time allotted to obtain it (the court) is asking the impossible of our approximately 1,850 municipal clerks throughout the state."

A spokeswoman for the state Department of Justice, which was representing the elections commission, did not immediately return a message seeking comment. Hawkins’ attorney also did not immediately return a message.

But election officials, as well as the presidential candidates and political parties, have been urging voters to return their ballots as soon as possible because of concerns with slower mail delivery and the expected unprecedented number of absentee ballots. State elections officials have estimated that more than 2 million of the state’s roughly 3 million eligible voters will cast absentee ballots, largely due to concerns about the coronavirus pandemic.

There are more than 170 lawsuits nationally over election procedures, often filed by the two major parties or their allies, that have injected a new level of uncertainty into a contest already disrupted by the pandemic. There has also been litigation over attempts by third parties like the Greens or candidates like West to get on the ballot in other states such as Arizona, Pennsylvania and Virginia.