The first presidential debate descended into chaos and vitriol Tuesday night, Sept. 29, and fearfully gripped viewers nationwide for the things said and those left unsaid by Trump throughout his 90-minute tirade. And as the debate train wreck rolled on, 434 miles away a quiet legal battle was being waged in Wisconsin over absentee ballots and ballot counting timelines, as measures were put in place by local Democratic lawmakers to maintain voting and election integrity.
On Wednesday, Sept. 30, a federal appeals court declined a request by the Republican-controlled state legislature to suspend a ruling allowing absentee ballots to be counted six days after the election.
The Legislature asked the 7th U.S. Circuit Court of Appeals to keep the ruling on hold until the Wisconsin Supreme Court answers a separate question regarding whether the Legislature has legal standing to sue in this case.
Keeping the ruling on hold would be in keeping with federal court precedent to “avoid sowing ‘voter confusion’ during an impending (or, here, ongoing) election,” attorneys for the Legislature wrote.
Hours after filing their request, the court denied it without comment.
The day before, Tuesday, the federal appeals court upheld a lower court ruling, which they themselves had halted Sunday, Sept. 27, allowing the six-day extension, handing Democrats a win in their fight to ensure all votes cast before Election Day actually get counted.
If the decision is allowed to stand, pending appeals, ballots postmarked on or before Nov. 3 will be counted as long as they are received by Nov. 9—meaning the winner might not be known for days following the polls closing. Republicans wanted no ballot received after Election Day to be counted, even if it was dropped in the mail and postmarked by then. The appellate court gave Republicans one week to argue why their case should not be dismissed, after finding they did not have standing in the matter.
Coup by court: Republicans prepare legal challenges that echo 2000 fight
The Republican National Committee, the state GOP, and Wisconsin Republican legislators argued against the deadline extension, saying people have plenty of time to obtain ballots and get them back to clerks by Election Day.
“Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their members,” wrote the appeals court. “The political organizations themselves do not suffer any injury caused by the judgment.”
The appellate court essentially said that the ruling did not order the state and national Republican parties to do something or forbid them from doing anything.
“We welcome the court’s decision to expand voting in Wisconsin so that more voters have the opportunity to register and have their voices heard in this election,” said Courtney Beyer, spokeswoman for the Wisconsin Democratic Party. “We will continue to ensure Wisconsinites have the information they need to successfully cast their ballot.”
The Democratic National Committee, the state Democratic Party, and allied groups sued to extend the absentee ballot deadline after the April presidential primary saw long lines, fewer polling places, a shortage of poll workers, and thousands of ballots mailed days after the election.
Yet despite those challenging conditions, including a nationwide stay-at-home order and coronavirus social distancing guidelines, the state’s April 7 election saw robust voter turnout. This signaled that Wisconsin, along with Florida, could become the key swing states ultimately determining who will occupy the White House for the next four years.
The estimated April turnout was about 34% of the state’s electorate—a bit less than turnout for the 2016 presidential election, but greater than 2012, and identical to rates in 2008.
Overall, Wisconsin voter turnout during general elections hovers around 70%—one of the highest in the country. And after voters seated a Democratic State Supreme Court Justice in April, coupled with Republican losses during the 2018 midterm elections, the state GOP is fearful of a Biden win come Nov. 3.
Wisconsin officials currently anticipate as many as two million people will cast absentee ballots to avoid coronavirus exposure at the polls. As of Wednesday, Sept. 30, over 1.2 million absentee ballots have been requested, with over 350,000 already returned.
Taking their strategy from the Trump re-election campaign, state Republican parties and the Republican National Committee have begun a series of legal challenges to ensure their presidential candidate seizes a second term. Wisconsin is one of over a dozen states where GOP operatives have filed lawsuits over absentee voting, mail-in ballots, and attempts to expand voting.
The Republican-controlled legislature is now asking the Wisconsin Supreme Court to answer the question of whether they can appeal an injunction (temporary hold) blocking a state law. An answer from the state’s high court would provide clarity, especially for the U.S. Supreme Court, which is likely to ultimately decide the case.
This year could see the most litigated presidential election, dwarfing Election 2000’s unprecedented (at-the-time) election legal challenges.
Trump won Wisconsin by fewer than 23,000 votes, less than one percentage point, in 2016, and polls show Biden with a slight lead in the state—but both sides expect a tight race as we get closer to Election Day, making these legal entanglements all the more crucial.
ELECTION 2020: Everything you need to know to vote in your state
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