Federal Judge: Wisconsin Absentee Ballots That Arrive Up to 6 Days Late Can Count

September 21, 2020 Updated: September 21, 2020

A federal judge on Monday extended the deadline for mail-in ballots in the upcoming election, the third such statewide ruling in five days.

District Judge William Conley sided with the Democratic National Committee, which wanted the court to block several deadlines including the requirement that polling places receive absentee ballots by 8 p.m. on election day to be counted, as they seek to make mail-in voting easier amid the COVID-19 pandemic.

Conley enjoined state election officials from enforcing the deadline for the receipt of such ballots under state law, and extended the deadline until Nov. 9 provided that the ballots are mailed and postmarked on or before Nov. 3 or election day.

The judge put the ruling on hold for seven days to give the other side a chance to seek an emergency appeal. Wisconsin Republican Party Chairman Andrew Hitt said they were reviewing the order and working with others to determine next steps.

While more than 1 million absentee ballots have been requested to date, the Wisconsin Elections Commission anticipates that as many as 2 million will eventually be cast. That would be three times more than any other previous election, which threatens to overwhelm election officials, Conley said. The U.S. Postal Service will also “undoubtedly be overwhelmed again with ballots in November, as they were in April,” Conley wrote.

There’s little doubt that tens of thousands of voters risk not being able to vote without expanding the deadlines, Conley said.

“While the Legislature would opt to disregard the voting rights of these so-called procrastinators, Wisconsin’s election system sets them up for failure in light of the near certain impacts of this ongoing pandemic,” he wrote.

Jonathan Manes, an attorney with the MacArthur Justice Center that represented the plaintiffs along with Protect Democracy, welcomed the ruling.

“Every voter should be able to vote easily, safely, and accessibly, no matter where they live or who they are. Today’s decision brings us closer to that goal,” he said.

Conley, an appointee of former President Barack Obama, also agreed with Democrats to lift the Oct. 14 deadline for by-mail and electronic voter registration. The judge has extended it until Oct. 21. Conley further ruled that poll workers can work in any county, not just in the one where they live. Clerks have reported a shortage of poll workers due to the pandemic, and loosening the residency rules could make it easier to fill slots.

A similar battle played out in Wisconsin earlier this year, going all the way to the U.S. Supreme Court.

Justices overturned a lower court order in April that had extended the absentee ballot deadline for primaries.

Wisconsin is a crucial swing state that Trump took by just 0.77 percent in 2016 over Hillary Clinton.

Deadlines in two other swing states were also extended this week.

A federal judge in Michigan on Friday said that mailed ballots that arrive up to two weeks after the election can count.

The decision was “for the avoidance of doubt,” Michigan Court of Claims Judge Cynthia Stephens wrote in her 21-page ruling.

And the Pennsylvania Democratic Party ruled last week that mail-in ballots received by Nov. 6 would count.

Justice Max Baer, writing for the majority, said the pandemic and the unprecedented number of mail-in ballots meant “near-certain delays,” meaning that a longer timeline was necessary.

Trump won Pennsylvania by a margin of 0.72 percent and Michigan by 0.23 percent.

The Associated Press contributed to this report. 

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