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Federal Judge in Wisconsin: Ballots Postmarked on Election Day Shall Be Counted Up to Six Days Later

A federal judge in Wisconsin ruled on Monday that absentee ballots postmarked as mailed on Nov. 3—namely, Election Day—shall be counted up to six days later. U.S. District Judge William Conley issued a series of election-related orders that favored the Democratic National Committee plaintiffs while allowing the Commissioners of the Wisconsin Election Commission and Republican-appointed Secretary Marge Bostelmann time to appeal before the ruling goes into effect.

Judge Conley, a Barack Obama appointee, paused the ruling from going into effect for seven days in order to allow the state defendants time to pursue an appeal. Conley, among other things, extended a deadline to register for online and mail-in voting until Oct. 21 and extended a deadline for counting mail-in ballots until Nov. 9:

IT IS ORDERED that defendants the Commissioners of the Wisconsin Election Commission and its Administrator are:

a) Enjoined from enforcing the deadline under Wisconsin Statute § 6.28(1), for online and mail-in registration. The deadline is extended to October 21, 2020.
b) Directed to include on the MyVote and WisVote websites (and on any additional materials that may be printed explaining the “indefinitely confined” option) the language provided in their March 2020 guidance, which explains that the indefinitely confined exception “does not require permanent or total inability to travel outside of the residence.”
c) Enjoined from enforcing the deadline for receipt of absentee ballots under Wisconsin Statute § 6.87(6), and the deadline is extended until November 9, 2020, for all ballots mailed and postmarked on or before election day, November 3, 2020.
d) Enjoined from enforcing Wisconsin Statute § 6.87(3)(a)’s ban on delivery of absentee ballots to mail only for domestic civilian voters, with that lifted to allow online access to replacement absentee ballots or emailing replacement ballots, for the period from October 22 to October 29, 2020, provided that those voters who timely requested an absentee ballot, the request was approved, and the ballot was mailed, but the voter did not receive the ballot.
e) Enjoined from enforcing Wisconsin Statute § 7.30(2), to the extend individuals need not be a resident of the county in which the municipality is located to serve as election officials for the November 3, 2020, election.

Conley said that plaintiffs showed a likelihood of success in arguing that “disenfranchisement of thousands of Wisconsin voters” could occur if the counting deadline was not extended.

“Thus, on this record, the court concludes that plaintiffs have shown a likelihood of success in demonstrating the risk of disenfranchisement of thousands of Wisconsin voters due to the election day receipt deadline outweighs any state interest during this pandemic,” Conley said. “Accordingly, the court will grant this request, extending the receipt deadline for absentee ballots until November 9, 2020, but requiring that the ballots be mailed and postmarked on or before election day, November 3, 2020.”

The Wisconsin statute 6.87(6), which defines absent voting procedure, normally mandates that in order to be counted a ballot must “be returned so it is delivered to the polling place no later than 8 p.m. on election day.”

In 2016, President Donald Trump won Wisconsin by 0.77 percent.

[Image via LOGAN CYRUS/AFP via Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.