Wisconsin Supreme Court Rules Pandemic Doesn’t Exempt Voters From Proving Identity

December 14, 2020 Updated: December 15, 2020

Wisconsin’s Supreme Court ruled on Monday that public health restrictions amid the CCP virus pandemic are not valid reasons for people to vote absentee without showing an ID.

Under Wisconsin’s election law, a voter may declare him- or herself “indefinitely confined” because of age, physical illness, or infirmity—a status that allows one to submit an absentee ballot application without providing a photo ID. In a March 25 statement on his Facebook, Dane County clerk Scott McDonell encouraged “all voters who request a ballot and have trouble presenting a valid ID” to “indicate as needed that they are indefinitely confined due to illness.”

“This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times,” McDonell said, citing Gov. Tony Evers’ stay-at-home order.

The Wisconsin Republican Party promptly sued McDonell for his message, arguing that the action suggested was abuse of the indefinitely confined status as a means to bypass voter ID requirements. The Wisconsin Supreme Court justices have ordered the clerk rescinded the statement.

In its final decision (pdf) on Monday, the court sided with the state Republican Party, saying that whether to declare oneself indefinitely confined is up to individual voters, not county clerks or anyone else. The justices also ruled that the governor’s stay-at-home order doesn’t mean everyone is indefinitely confined.

“The plain language of (Wisconsin’s election law) requires that each elector make an individual assessment to determine whether he or she qualifies as indefinitely confined or disabled for an indefinite period,” Chief Justice Patience Roggensack wrote in the majority opinion. “A county clerk may not ‘declare’ that any elector is indefinitely confined due to a pandemic.”

In addition, the court ruled that votes could not count for those who falsely claimed the status of indefinitely confinement. It’s unclear whether the decision will invalidate some of the votes cast in this year’s presidential election, or if it is simply for future reference.

“If individual electors did not follow the statutory mandate and continued to vote as indefinitely confined, despite no longer meeting the statutory requirements, they would cast their votes contrary to the statute,” the majority opinion reads. “In turn, because compliance with the absentee ballot process is mandatory, their ballots would not count.”

In another ruling released on Monday, the court rejected President Donald Trump’s lawsuit seeking to throw out over 220,000 ballots cast in Dane and Milwaukee counties, including 28,000 ballots cast by voters who said they were indefinitely confined. One of the reasons for the rejection was that the case was raised too late.

Conservative-leaning Justice Brian Hagedorn, who joined three liberal justices to form a majority, also wrote in the court’s opinion, “The challenge to the indefinitely confined voter ballots is meritless on its face.”