Ruling Provides Wisconsin Voters with Fail-Safe for Absentee Voting in November

MADISON, WI – In a victory for voters in Wisconsin, the United States District Court for the Western District of Wisconsin gave voters a back-up option to receive mail-in absentee ballots online or via email when they do not receive their previously-requested ballot in the mail in time for the November 3 general election. The case was brought by the League of Women Voters of Wisconsin, Wisconsin Alliance for Retired Americans, and eight individual Wisconsin voters, who were represented by Fair Elections Center and Douglas M. Poland, a partner in Stafford Rosenbaum LLP’s Madison office, and co-chair of the firm’s Election and Political Law practice group.

“Today’s decision is a victory that preserves voting rights for Wisconsin voters,” said Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, a plaintiff in the case. “This ruling will ensure that anyone wishing to vote via a timely requested ballot can have a fail-safe way of getting that ballot cast. This is the right move to assure voters that they can have confidence in their vote this year.”

“Wisconsin election officials are now able to email replacement absentee ballots to voters who do not receive their requested ballots in the mail. No one should lose their right to vote due to U.S. Postal Service delivery failures or health concerns,” said Jon Sherman, senior counsel at Fair Elections Center. “The Court’s order will safeguard the voting rights of thousands of Wisconsin voters during this pandemic, and we will continue to fight to ensure this significant ruling survives any appeal.”

“Eighty percent of Americans who have died from COVID-19 were over the age of 65,” said Gary Mitchell, president of the Wisconsin Alliance for Retired Americans. “Wisconsin seniors, who are at most risk from the coronavirus, should not have to choose between protecting their health and exercising their constitutional right to vote.”

The ruling, which may still be appealed, provides a fail-safe option from October 22 to 29 for voters who do not receive their requested mail-in ballots on time, including voters who are most at risk from COVID-19 and cannot vote safely in person at a polling place. During the April 7 election, thousands of Wisconsin voters did not receive their requested absentee ballots in the mail.

Judge William Conley found that “the evidence is nearly overwhelming that the pandemic does present a unique need for relief in light of: (1) the experience during the Spring election, (2) much greater projected numbers of absentee ballot requests and votes in November, and (3) ongoing concerns about the USPS’s ability to process the delivery of absentee ballot applications and ballots timely.”

State election officials have said there could be as many as 1.8 million requests for absentee mail-in ballots for the November election. The Wisconsin Elections Commission reports that nearly a million mail-in absentee ballots were requested for the August Primary election, which is a typically lower-turnout election. Prior to the April primary, the first election held during the pandemic, typically four to eight percent of Wisconsin voters voted using an absentee ballot. This spring, that number jumped to 62 percent, representing nearly a million ballots returned.

Delivery of absentee ballots to voters via email is not a new phenomenon for Wisconsin voters. Previously, the state had email delivery for everyone, including for the 2016 presidential election. During that election, the state issued nearly 10,000 ballots to voters by email, and over 7,000 were cast and returned by mail. Two federal elections and many other state and local elections were conducted using email delivery without incident, as the Court recognized.

Then, on June 29 of this year, the U.S. Court of Appeals for the Seventh Circuit issued a ruling saying that it was not unconstitutional for the state legislature to restrict email delivery to just military and overseas voters. That mandate went into effect at the end of July, so email delivery has been “switched off” for only a couple of weeks in Wisconsin. Today’s decision once again strikes down the ban for a limited time as a necessary fail-safe for voters who do not receive their absentee ballot in the mail.

Read the order here.

Read the Court's opinion here.

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PRESS CONTACT: Kayla Vix | 202-809-9668 | [email protected]