Jurisprudence

The Wisconsin Supreme Court Has Already Begun to Sabotage Absentee Voting

A Green Party challenge gave the conservative majority a new way to sow chaos.

A person in a full-body hazmat suit sits at a table beside a voting booth
Inspector Mary Magdalen Moser runs a polling location in Kenosha for the Wisconsin primary on April 7. Derek R. Henkle/Getty Images

On Thursday morning, it looked like Wisconsin was positioned to run a smooth election this fall. The state’s 1,850 municipal clerks had printed at least 2.3 million absentee ballots and mailed 378,482 of them. They were well positioned to beat the Sept. 17 deadline by which, under state law, ballots must go out. In April, these clerks were crushed by a last-minute surge in requests from residents who decided to vote absentee for fear of the pandemic. The resulting delays led to mass confusion and disenfranchisement. Not this time: Officials had learned their lesson and planned far head, setting the stage for the prompt and orderly mailing of millions of ballots.

Then the Wisconsin Supreme Court stepped in. On Thursday afternoon, by a 4–3 vote divided along partisan lines, the court issued a strange, cryptic order that could throw the election into chaos. The conservative majority directed the Wisconsin Elections Commission to turn over a massive amount of information it did not actually have. These justices then halted the mailing of more absentee ballots while they consider nullifying every ballot that has been printed or mailed and forcing the state to start over. Their stunning eleventh-hour intervention could force election officials into an impossible position: either comply with the court’s order or violate both state and federal law.

The latest trouble in Wisconsin centers on Green Party candidates Howie Hawkins and Angela Walker. To get on the ballot, Hawkins and Walker were required to submit 2,000 valid signatures. But the paperwork they filed had a problem: Many signature sheets included an address, a motel in South Carolina, that was different from the one that Walker listed in her sworn declaration of candidacy. Walker had an opportunity to explain this discrepancy but declined. In accordance with state law, the Wisconsin Elections Commission rejected the signatures collected under the wrong address. That left Walker with fewer than the required 2,000 signatures, so the commission declined to place the Green Party ticket on the ballot. Hawkins and Walker waited two weeks—the critical period during which clerks printed and began mailing ballots—before asking the Wisconsin Supreme Court to force their names onto the ballot anyway. (Update, 7:30 p.m. Sept. 14, 2020: On Monday, the Wisconsin Supreme Court rejected the Green Party’s request by a 4–3 vote.)

A responsible court would have rejected this challenge for two reasons: Hawkins and Walker waited an unreasonably long time to bring it, and it has no plausible legal basis. But instead of dismissing the case, the infamously irresponsible court ordered the commission to reveal who has requested absentee ballots, who has been mailed a ballot already, and when these ballots were mailed. It also demanded to know who requested the ballots to be printed, implying the existence of some conspiracy to rush them out. In the meantime, the conservative majority effectively shut down the state’s election machinery, suspending the printing of more absentee ballots. Its order suggests that four justices are seriously considering a decision in favor of the Green Party. Such a ruling would compel the state to throw out every existing ballot and begin the entire, grueling, monthslong process anew.

The court gave the Wisconsin Elections Commission just four hours to assemble all this data. The commission then scrambled to contact the 1,850 separate municipal clerks and 72 county clerks who had the information sought by the court. It could not possibly contact everyone, partly because many clerks work full-time jobs apart from their government service. But the commission gathered enough data to confirm that if the court rules in the Green Party’s favor, it will effectively force election officials to choose between compliance with a court order and compliance with the law. Wisconsin requires these officials to begin mailing absentee ballots by Sept. 17, while federal law requires them mailed to overseas and military voters by Sept. 19. Designing and printing ballots is complicated, time-consuming, and expensive. Few if any clerks could mail out new ballots featuring the Green Party ticket by these deadlines.

Indeed, in its Thursday filing, the commission included pleas from municipal clerks to the Wisconsin Supreme Court begging the justices not to sabotage their carefully laid plans. “If we do not send our file to the printer tomorrow, we will likely not be able to meet the statutory deadline,” one told them. “We are too far in the process for this to occur,” another said. A company that prints ballots for multiple municipalities said it “would never be able to meet” the legal deadline if it had to reprint ballots. “My budget cannot afford to re‐print these ballots,” a clerk pleaded. “Ballot printing takes time—preparation, printing, delivery … this can’t be done last minute and still meet the statutory guidelines,” another said. Milwaukee’s clerk explained that his county uses “475 different ballot styles” with “different color stripes on each ballot,” making for an “extremely time consuming” process. If forced to reprint these ballots, Milwaukee would blow past both the state and federal deadlines.

Even before Thursday’s order, the commission had tried—in vain, apparently—to explain to the court that it is simply too late to reprint ballots. Meagan Wolfe, the executive director of the commission, attested that “it would be catastrophic to this election if ballots were to change after being sent to some or all electors.” Municipalities would have to tell voters who’ve already received a ballot not to return it, “which could result in voters returning the wrong ballot or multiple ballots. This would create a chaotic situation for election officials in paring and counting returned ballots.”

Ann Jacobs, one of the chairs of the commission, expressed similar concerns in an interview on Friday. “I don’t yet know how we’ll handle the ballots that have already been mailed out,” she told me. “What happens if a municipality says, ‘We don’t have the money to reprint these ballots’? What do we do if there’s not enough paper? We need to be aware that a redo is an enormously costly endeavor. It’s not just the printing or paper. It’s the hours of clerk work involved in getting these out. It’s still a manual process.”

Under all this disarray lies a puzzle: Why, exactly, did the Wisconsin Supreme Court’s conservatives force the commission to turn over all this information? The court could plausibly claim to need details about balloting to determine whether it’s really too late to add names to the ballot. But why ask “who requested the ballots to be printed” when the answer is simply “state law”? The court’s order implies that the justices believe something sinister may be afoot—a conspiracy, perhaps, to rush printing in order to keep the Green Party off the ballot. In fact, the order reads like a subpoena on a fishing expedition to uncover foul play. Hawkins has accused Democrats of blocking his access to the ballot to prevent the Green Party from siphoning off votes from Democrats, thereby handing Wisconsin to Donald Trump. A majority of the court may think there’s merit in this unfounded theory.

There is no evidence of a conspiracy to marginalize the Green Party. There are, instead, 1,850 municipal clerks trying desperately to do their jobs in the face of gratuitous uncertainty. In their dissent on Thursday, the Wisconsin Supreme Court’s three liberals noted that the majority was “asking the impossible” of election officials. That’s surely true, but it’s not clear that the conservative justices care. A cynic might assume this bloc’s chief goal is to inject more chaos into the election, hoping the instability helps Trump in a closely divided state. After all, Democrats are far more likely than Republicans to vote by mail in Wisconsin this year, so they will be disproportionately affected by the mayhem that will result from a do-over.

Whatever their goal, Wisconsin’s conservative justices have already undermined election administration in the state—and voting has only just begun. The real victims are the citizens whose votes could be thrown out as a result of the tumult. Wisconsin may be the first state to experience severe strains on its efforts to conduct a safe fall election. It will not be the last.

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