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Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after voting day were counted, thanks to court decisions

The Washington Post logo The Washington Post 5/3/2020 Amy Gardner, Dan Simmons, Robert Barnes
a man and a woman sitting at a table: Claire Woodall-Vogg carries a tray of voting materials as Election Commission workers in Milwaukee process absentee ballots on April 13. © Mike DeSisti/Milwaukee Journal Sentinel/AP Claire Woodall-Vogg carries a tray of voting materials as Election Commission workers in Milwaukee process absentee ballots on April 13.

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 alone, the state’s two largest cities, more than 10 percent of all votes counted, nearly 21,000 ballots, arrived by mail after April 7, according to data provided by local election officials. 

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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 alone, 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 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 percent 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 percent of all votes cast in those cities. In Brookfield, a western suburb of Milwaukee in conservative Waukesha County, the figure was closer to 15 percent.

Together, those cities are home to less than a quarter of Wisconsin’s 3.4 million registered voters. The Wisconsin Election Commission has not yet released the statewide number, which will probably be substantially larger.

The switch of an obscure election regulation may not have made a difference in the marquee race that day — a state Supreme Court contest in which liberal challenger Jill Karofsky defeated conservative incumbent Daniel Kelly with a margin of more than 160,000 votes.

But a similar rule change could sway a closer election. Trump won in Wisconsin four years ago by fewer than 23,000 votes. In 2018, Republicans won contests in Florida for governor and the U.S. Senate by less than one percentage point.

The Supreme Court’s order also led officials to reject ballots that would have been counted if the rules had not changed.

In 13 cities where the data was available, at least 4,500 ballots were thrown out that would have been tallied under the lower court judge’s ruling, The Post found.

“Part of what made it difficult was constant flux of what was and was not going to be permissible,” said Thomas Montgomery, a high school history teacher in Brookfield who said he mailed his ballot on April 7 but still had his vote thrown out. “It’s something I found alarming throughout the process.”

a group of people walking down the street: A woman distributes surgical masks to people waiting to vote at Riverside High School in Milwaukee. © Sara Stathas/for The Washington Post A woman distributes surgical masks to people waiting to vote at Riverside High School in Milwaukee.

Massive surge

The Post’s survey of ballot data in the state’s 24 largest cities found that Wisconsinites overwhelmingly chose to vote by mail rather than risk infection by casting a ballot in person.

In Milwaukee, Madison, Janesville and La Crosse, upward of 70 percent of voters cast ballots by mail, according to the data. In Waukesha and Brookfield, more than 85 percent did so. That’s a dramatic jump from the spring elections of 2016, when fewer than 10 percent of Wisconsin voters cast absentee ballots.

In the days preceding the vote, local election officials struggled to retain poll workers and announced the closure of hundreds of polling locations. On the eve of the election, Gov. Tony Evers (D) ordered the postponement of in-person voting, but Republican lawmakers successfully blocked the move in state court.

Thousands of people still opted to stand in hours-long lines on April 7. By the end of last week, state health officials said 52 Wisconsinites who voted or worked at the polls had tested positive for coronavirus.

Wisconsin provided a potential preview of the November presidential election, when millions of Americans are expected to vote by mail — a method state officials are working to make easier because of the virus.

The stakes are high: research has found that rules such as strict voting-day receipt of ballots disproportionately affect young and minority voters, who in turn vote heavily for Democratic candidates. And the rejection rates vary widely from place to place — meaning that inconsistent election administration is the likelier culprit than voter error, said Dan Smith, a political science professor at the University of Florida who has written several studies on the topic.

“That is as strong evidence as you can get that this is not an individual problem exclusively,” Smith said. “Local election officials have incredible discretion.”

The Post analysis found that ballots in Wisconsin were rejected for multiple reasons, revealing the particular challenges state and local election officials elsewhere may face as they try to meet demand for expanded mail balloting.

For instance, thousands of ballots with missing voter signatures, witness signatures or witness addresses were rejected across the state, which legally requires such information.

It’s a sign of the barriers facing voters who are unaccustomed to voting by mail — and of the particular challenge that witness requirements present during a pandemic, especially for those who live alone and are unwilling to seek out contact with another person.

Pat Haukohl, who served 18 years on the Waukesha County Board, voted absentee for the first time this year. She learned from a reporter that her ballot was rejected because there was no witness address.

“My husband apparently did not add it after signing his name,” she said. “His ballot was accepted, so I must have put our address on that one. Rather unsettling, because I was sure we followed all the instructions. Next time I am voting in person!”

The flurry of court decisions added to the confusion.

On April 2, the Thursday before voting day, U.S. District Judge William M. Conley rejected an effort by voting rights advocates and national Democrats to postpone in-person voting, saying the decision fell to the legislature.

But, in a nod to the barriers facing voters, he extended the deadline for completed ballots to be received by local election officials to April 13. He also ordered election officials to waive the witness rule if voters enclosed in their ballot envelope an explanation of why they were unable to obtain one.

Two days later, a federal appeals panel affirmed his decision extending the mail ballot deadline but reversed the witness rule.

Tom Huber, 68, an Air Force veteran who lives alone in a senior community in Brookfield, said he was worried about seeking a witness signature from his neighbors until he read about Conley’s decision online.

Concluding that he was safe to forgo a witness, Huber attached a note to his ballot and dropped it in the mail at the local Pick ’n Save grocery store. It arrived in plenty of time but ultimately was tossed, according to a list of rejected ballots that election officials provided to The Post.

“I’m disappointed,” said Huber, when informed of the rejection by a reporter. “It’s a pride issue, in terms of trying to participate in things.”

Madison, the only city that tracked the number of voters who enclosed similar notes of explanation, counted 142 such ballots — and discarded them.

Thousands of ballots were rejected because of postmark issues, The Post’s examination found. Hundreds were rejected because of a late postmark, but many hundreds more showed no postmark or an illegible one. In Milwaukee, that number was 390, and city election officials chose to count those ballots anyway. Most other localities discarded such ballots, even though many may have been posted on time.

Several election officials said some post offices do not use postmarks with dates, but that their hands were tied by the high court’s ruling.

In a statement, the U.S. Postal Service said its inspector general is conducting an investigation “regarding potential issues with absentee ballots in Wisconsin.”

a man and a woman sitting at a table with a cake: Election Commission workers in Milwaukee process absentee ballots. © Mark Hoffman/Milwaukee Journal Sentinel/AP Election Commission workers in Milwaukee process absentee ballots.

Unforeseen outcomes

Wisconsin is one of 36 states with laws on the books requiring ballots to be received by voting day.

When Republicans appealed the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

The unsigned Supreme Court order said the district court judge had in essence added six days of additional voting by not requiring that ballots be postmarked by voting day.

That “fundamentally alters the nature of the election,” said the order, which reflected the positions of Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh, the justice responsible for emergency requests from the 7th Circuit.

The justices said a postmark was something “state law would necessarily require.”

The Supreme Court was considering the lower courts’ actions against the backdrop of a long-standing precedent, the 2006 case Purcell v. Gonzalez, which said courts should be extremely reticent to change the rules close to voting day.

“This court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the order said.

But Justice Ruth Bader Ginsburg, in a dissent joined by liberal colleagues Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, said the majority was doing exactly what the Purcell principle forbids. “Election officials have spent the past few days establishing procedures and informing voters in accordance with the district court’s deadline. For this court to upend the process — a day before the April 7 postmark deadline — is sure to confound election officials and voters.”

Now, Democrats are citing the majority opinion in their latest round of litigation.

In addition to seeking postmarked-by standards, Democrats are aiming to secure free postage for ballots, ballot mailings to all registered voters and the right for third parties to collect ballots from voters, a controversial practice often called ballot harvesting.

“We’re saying, essentially, let’s take into account the pandemic. Let’s keep everybody safe,” said Eric H. Holder Jr., who served as attorney general in the Obama administration and heads a group that is financing new lawsuits in Texas and North Carolina.

Republicans, meanwhile, are pushing for limits. In an opinion column published on the conservative website townhall.com, three lawyers for Trump’s campaign argued for maintaining strict ballot rules to prevent fraud. Among their positions: voters should have to request an absentee ballot application rather than be sent one automatically; ballots must be received by voting day to be counted; and security measures such as photo ID and signature-matching rules must be maintained even during the pandemic.

“Receiving ballots after election day allows losing candidates to ‘go find’ enough late votes to change the outcome,” wrote lawyers Justin Clark, Jenna Ellis and Matthew E. Morgan.

“Moreover, any system that allows late-arriving ballots is ripe for prolonged litigation and almost always undermines election legitimacy,” they wrote, “because reporting delays can last for days and sometimes weeks after the election.”

Simmons reported from Milwaukee. Alice Crites contributed to this report.

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