On Tuesday’s election, such as it is

Rick Esenberg:

A few observations on the election mess here in Wisconsin:

There is reason to be concerned about in-person voting but it’s not clear how much risk voting will actually present. Much of the rhetoric assumes that voters and poll workers will be facing the equivalent of a free fire zone. That’s understandable. Fear of the virus has lead all of us to feel that it is everywhere. But it’s not true. Unless the virus is largely asymptomatic or causes only mild illness, very few people are infected. There some risk in going anywhere but we’ve decided that risk is worth assuming for a variety of reasons. It’s not clear that the line must stop before voting. It is not clear that the polling places will – or have to be – more crowded than the Sendik’s grocery store I was in twice this week in which it was impossible to maintain social distancing. On the one hand, I have rarely been in a polling place for a spring election that has as many people as the typical grocery store has had during the past week. On the other hand, consolidation of polling places will presumably result in more traffic at each one. How much is unclear. Absentee ballot requests are approaching the average turnout in a typical spring election. While presidential preference primaries increase turnout, I don’t know how likely that is given that the Democrats’ race is over and there seems to be no campaign here. Having in-person voting clearly involves contact without social distancing. How much more is unclear. I guess we’ll see.
Having said that, a reasonable case could be made for a delay (although there are some problems with that case). The problem is that changing the rules in midstream is likely to disadvantage one side or the other. Republicans don’t want to go all-mail voting because they seem to believe that their voters are less likely to vote by mail and because they are concerned about voter fraud. Absentee voting creates more opportunities for fraud, particularly if not accompanied by appropriate safeguards – which the Democrats have been seeking to remove. Democrats, on the other hand, are concerned that fear of the virus is strongest in places where they are strong and that are concerned that ballot security measures discourage their voters who they believe will not or cannot navigate them. Our current election rules are a product of where the conflict between those competing views has come out. Using the virus as a way to adjust the balance that current law reflects was always going to assure that no change in the election could take place. If Democrats and Republicans wanted to delay the election, they should have agreed to do that and only that. They should have agreed that the election would be held in, say, early June without changing any other aspect of the law including the opportunity for in-person voting. Since there was apparently no appetite for that on either side – or guarantee that the situation in June would be much different, it didn’t happen.
But a delay would have presented problems. Many local offices have terms expiring in April. While the legislature could have extended the terms, it could not create incumbents to hold over where such incumbents did not exist. Legislators could hope that, for example, Chris Abele would stay on as County Executive in Milwaukee, but could not make him do it. Delaying the election was going to create vacancies during a challenging time for local government. In addition, asking local units of government to safeguard a million ballots for two months without having them misplaced, mishandled or tampered with may have been too much to expect.
The order entered by Judge Conley on Thursday accomplishes a de facto extension of the election by enjoining the requirement in state law that absentee ballots be received by 8 pm on Tuesday while not requiring that they be postmarked by election day. This extends the voting by a week, making election day April 13 for those who requested absentee ballots. While he later amended the order to prevent WEC from disclosing unofficial results, it does appear to apply to everyone who will be privy to them and, of course, will not prevent them from leaking. We are now looking at a situation where both sides will ballot harvest after voting is over and may know what they “need.” Information regarding who has returned a ballot may not be uniformly available. If the election is close, litigation – and suspicion – may break out all over.


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