Wisconsin Update: What to Expect Today and Tomorrow. NOW UPDATED with Governor Evers Cancelling in Person Voting, Another Special Legislative Session, and Likely Litigation

The Wisconsin legislature ended the special session without taking action to postpone tomorrow’s primary. There will be in-person voting tomorrow, but it is not clear how badly turnout will be down. Last I heard, all but 5 of 180 polling places in Milwaukee will be closed.

There are still about 10,000 absentee ballot requests that the state has not yet processed, meaning that if the Supreme Court reverses the lower court order, those people will almost certainly have to vote in person or be disenfranchised. (The district court order would allow absentee ballots received by April 13 to count in the election; if the Supreme Court reverses they will have to be postmarked tomorrow.)

The Supreme Court could act any time on the Republicans’ request to go back to the April 7 date. The Court almost certainly will act today, so those people without ballots (and election officials) will know what the rules are for tomorrow. It is hard to game out what the Court will do. I think that ordinarily the conservatives would bristle at a last-minute court ordered change to extend the time for receipt of ballots. But these are not ordinary times, and the Purcell Principle seems to have a different application when a federal court is responding to an unforeseen natural disaster like this.

UPDATE (10:55 am Pacific time): Governor Evers has just issued a proclamation delaying in person voting until June 9 and extending the time to request an absentee ballot. He has also scheduled another special session of the Legislature for 2 pm on April 7 (corrected).

I’m not an expert in Wisconsin state law. I do not know whether Governor Evers has the ability to do this unilaterally or not, but I do know he has changed his position at the last minute on whether or not he has this power (much like Gov. DeWine did in Ohio last month). As sympathetic as I am to the idea that you should not both tell people to stay at home as much as possible for health reasons and tell them in-person voting is open (despite health officials advising not to vote), it is awful that the governor waited until the last minute to do this. This does not make the legislature blameless. There is plenty of blame to go around.

State legislative leaders might try to go to the state Supreme Court to reverse this, where they will face a Republican-dominated state supreme court. This presents a state law question, meaning that an appeal to the US Supreme Court on whether Evers has this power to delay is unlikely.

And what of the pending U.S. Supreme Court decision on the delay on the receipt of absentee ballots? It is moot for the moment but not if the state Supreme Court reverses Evers’ order. Perhaps SCOTUS holds onto it and wait to see if there is state case coming that could keep this issue moot.

To echo Justice Stevens in his Bush v. Gore dissent, we don’t know who the winners are of all of these machinations, but we know the losers: the voters of Wisconsin, who should have expected more of their elected officials, both Democrat and Republican, to work this out and not create this chaos.

(UPDATE 11:15 am PT): Republicans are going to the state supreme court to reverse the order.

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