Systems Change in a Crisis-Part 2: Mail the Ballots & Delay the Election

Yesterday, I posted the first in a series of the need to engage in systems change during the COVID-19 crisis, in which I called for releasing a wide variety of people from incarceration and detention. As promised, today’s post discusses the need to drastically modify our upcoming election, with a specific focus on Wisconsin’s April 7th election.

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Ten days ago, I urged Gov. Evers to order that every registered voter receive a mailed ballot. Unfortunately, to date, the Governor has merely encouraged voters to request absentee ballots, without mandating that every registered voter receive a mailed ballot. Although the campaign to encourage absentee voting has caused Wisconsin to break its record for absentee requests, that does not solve the twin problems I addressed previously, namely:

  • preserving our democracy; and
  • protecting our health.

As of yesterday, March 26th, roughly 700,000 mail-in ballots were requested. While that is impressive for a voluntary campaign, it is merely 1/3 of the number of over 2.1 million votes cast in the April 2016 election, the last election comparable to the upcoming election. Even if many more people request absentee ballots and return them in time, it clearly will come nowhere near the level of turnout that we should expect in a Presidential Primary that also has a state Supreme Court election and hundreds of local elections as well as state and local referenda on it. Thus, failing to to mandate mailing ballots to every registered voter will severely harm our democracy, by disenfranchising hundreds of thousands of voters.

Due to the huge influx of absentee ballots and the failure to mandate mailing a ballot to every registered voter earlier, we now have a second problem with the April 7th election. Local clerks simply cannot process all of these absentee ballots in a timely manner. The City of Green Bay has filed a federal lawsuit to delay the election because its clerk says it cannot comply with the processing requirements of absentee ballots due to the huge influx, while also complying with the safe distancing requirements of the Governor’s emergency order. The Mayor of Green Bay, Eric Genrich, sent me the lawsuit today, and after reviewing the City of Green Bay’s attorney’s argument to the court, she makes a very strong argument that it is an equal protection violation to require city election officials to work in a way otherwise prohibited by the Governor’s emergency order. A decision by Judge Greisbach is expected on Monday.

Since the Governor has failed to declare a public emergency to alter the election, creative clerks sought to mitigate another problem which is the requirement to upload a voter ID to request an absentee ballot, as many voters do not have the technology to scan and upload the ID. Dane County Clerk Scott McDonnell creatively encouraged voters who have this dilemma to indicate that they are indefinitely confined due to the Governor’s emergency order, which thereby waives the voter ID requirement. However, sadly, today the Legislative Reference Bureau advised that this creativity would violate the law.

While Gov. Evers continues to ponder whether to alter the election in any way, legislative leaders have suggested he cannot do so without a change in state statute, although they refuse to come into session to change state election law. These legislators are relying on a memo written by the Legislative Reference Bureau (LRB) on March 17, 2020, that argues that the Governor does not have the power to alter the election. (Note: this memo is not on the web, readers may e-mail me for a copy). With all due respect, an LRB memo has no force of law, and both the Governor and legislature routinely do things contrary to the LRB’s advice. In this case, I believe the LRB memo is incorrect and the Governor has plenary authority to modify the April 7th election.

Wisconsin Statute § 332.12(4) states that in a declared emergency, such as the one we are in now, the Governor may:

Issue such orders as he or she deems necessary for the security of persons and property.

Nowhere in Wisconsin statutes does the law limit the Governor’s powers in an emergency to modify the election in a way to protect public health. In fact, his emergency order clearly makes it impossible for election officials and voters to follow both his emergency order and cast a ballot on April 7th.

I am an election official. While I have not yet joined the over 525 poll workers who have cancelled their shifts in Madison due to the health crisis, which is over 1/2 of Madison’s poll workers, I cannot in good conscience expose myself and subsequently my wife to COVID 19 if I work the polls. While I would gladly help process absentee ballots because only 3 people are required to do that, seeing hundreds of people in a day is contrary to every current health recommendation as well as the Governor’s emergency order.

The Governor just asked the legislature to come into session to require that ballots should be mailed to all registered voters. However, this is neither required nor sufficient, and to date, the legislature has been unwilling to address the COVID-19 crisis in any way, so why would we expect it to do so now? Of course, I will applaud the legislature if it does mandate mailing ballots to every registered voter and delays the election (which the Governor has not called for), but until then, the Governor should use the authority he has and act to preserve democracy and our public health.

Some have asked if there is a postponement, how long should the election be delayed? This is an important question as seating state and local officials up for election is very important to the preservation of our democracy. Fortunately, we have a special election on May 12th to replace former Cong. Duffy who resigned. Thus, the northern half of Wisconsin is already voting on that date, and delaying the upcoming April 7th election would actually save money as well by combining the two elections.

For the sake of our public health and to preserve democracy, Gov. Evers must mandate that every registered voter receive a mailed ballot and to allow these ballots to be processed, he should delay the April 7th election to May 12th. If you agree, please contact him at this link and let him know. Your life and our democracy may depend on it.

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For more information on how I can help you accomplish progressive, effective systems change, contact Jeff Spitzer-Resnick by visiting his web site: Systems Change Consulting.

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