MADISON, Wis. (CBS/AP) — A federal appeals court has ruled absentee ballots in Wisconsin must be delivered to election clerks by Election Day in order to be counted, throwing out a lower court’s ruling extending the deadline by six days.
The ruling by a three-judge panel of the the U.S. 7th Circuit Court of Appeals is a win for Republicans, who have been fighting efforts to expand voting by mail across the nation, but Democrats most certainly will appeal the decision either to the full 7th Circuit or the U.S. Supreme Court. Attorneys for the plaintiffs in the lawsuit didn’t immediately respond to requests for comment.
If the ruling survives an appeal, absentee ballots in Wisconsin will have to arrive at election clerks’ offices by 8 p.m. on Nov. 3 if they are to be counted. That makes it more likely results of the presidential race in a key battleground state will be known within hours of polls closing.
Under state law, absentee ballots are due in local clerks’ offices by 8 p.m. on election night. But Democrats and allied groups sued to extend the 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. Wisconsin, like much of the rest of the country, is already seeing massive absentee voting for November and the state expects as many as 2 million people to vote absentee.
U.S. District Judge William Conley ruled last month that any ballots that arrive in clerk’s offices by Nov. 9 will be counted, as long as they are postmarked by Nov. 3. In that ruling, Conley noted the heavy absentee load and the possibility it could overwhelm election officials and the postal service.
The 7th Circuit Court judges initially upheld Conley’s ruling on Sept. 29, rejecting the Republicans’ standing to intervene. After the Wisconsin Supreme Court affirmed that standing, the same three-judge panel delivered Thursday’s ruling.
Justices Frank Easterbrook and Amy St. Eve voted to stay the order and Ilana Rovner opposed.
“The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid,” the majority wrote. “We agree with both of those arguments.”
Rovner, in a blistering dissent, highlighted the coronavirus threat to citizens in Wisconsin, currently one of the nation’s worst hot spots. Conley came up with a “limited, reasonable set of modifications” to election rules to preserve “the precious right of each Wisconsin citizen to vote,” she wrote.
“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” she wrote. “Good luck and G-d bless, Wisconsin. You are going to need it.”
Easterbrook was appointed by Ronald Reagan, St. Eve was appointed a district judge by George W. Bush and an appeals judge by Donald Trump. Rovner was appointed as a district judge by Reagan, and an appeals judge by George H.W. Bush.
Senate Majority Leader Scott Fitzgerald, part of the Republican leadership that successfully pressed the appeal of Conley’s ruling, called the reversal “a huge win for preserving the integrity of our election process in Wisconsin.” He called an extended counting period “a preposterous setup” that would undermine confidence in the election.
The Rev. Greg Lewis, whose Souls to the Polls group is among the plaintiffs, reacted by urging people to vote.
“Our votes matter,” Lewis said. “This is precisely why Republicans are trying so hard to keep us from voting.”
A state Democratic Party spokeswoman and an attorney for Democrats didn’t immediately respond to messages seeking comment.
President Donald Trump won Wisconsin by less than 1 percentage point — fewer than 23,000 votes — in 2016. Polls show Democratic challenger Joe Biden with a slight lead in the state, but both sides expect a tight race.
(© Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. The Associated Press contributed to this report.)