Many late Wisconsin ballots were counted after the election
Primary pushed the limits of electoral politics
Early last month, voters in Wisconsin navigated a dizzying number of rule changes governing the state’s spring elections as officials tussled over the risks of the novel coronavirus, prompting a backlog of absentee ballot requests and fears that many would not be able to participate.
But in the end, tens of thousands of mail ballots that arrived after the April 7 primary vote were counted by local officials, a review by The Washington Post has found - the unexpected result of last-minute intervention by the U.S. Supreme Court.
In Milwaukee and Madison, the state’s two largest cities, more than 10% of votes counted, nearly 21,000 ballots, arrived by mail after April 7, according to data provided by local election officials.
The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by voting day, rather than just those received by then - underscoring the power of narrow court decisions to significantly shape which votes are counted.
What happened in Wisconsin has potentially far-reaching implications as the two parties square off in courtrooms across the country, hoping to notch legal victories that will shape the electorate in their favor before November.
Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order. In the past week, lawsuits bankrolled by Democratic committees have been filed in four states seeking similar postmark rules and citing the Wisconsin opinion to bolster their argument. More cases are expected in the coming week.
Republicans, meanwhile, say they are prepared to spend millions of dollars to oppose these efforts, arguing that extending ballot deadlines creates an opportunity for fraud. Some have also been open in their view that higher turnout could harm them politically. On March 30, President Donald Trump said that if Democratic efforts to expand mail balloting succeeded, “you’d never have a Republican elected in this country again.”
“The truth is that in competitive battleground states, both sides are fighting for inches. We’re not fighting for feet,” said Marc Elias, an election lawyer who is leading Democratic litigation efforts. “If there is a way to gain 1% of the vote, that would be among the most successful tactics that a campaign could engage in.”
In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by voting day.
The ruling followed a lower court judge’s decision to extend the mail ballot deadline by six days to accommodate a wave of last-minute ballot requests resulting from the pandemic. State and national Republicans objected, appealing first to a federal panel and then to the Supreme Court.
The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by voting day - effectively imposing a new standard.
While the right praised the decision, liberal critics denounced it at the time, saying the conservative justices had made it harder for Wisconsinites to vote.
The Post’s review found that the impact was more complicated. Fewer votes were counted than if the lower courts’ orders had remained in place. But the Supreme Court’s decision superseded the stricter existing law, expanding the universe of valid ballots compared to previous elections.
In all, The Post found that more than 30,000 votes arrived after voting day in 11 cities where that information was available, more than 10% of all votes cast in those cities. In Brookfield, a western suburb of Milwaukee in conservative Waukesha County, the figure was closer to 15%.
The Wisconsin Election Commission has not yet released the statewide number, which will probably be substantially larger.