Local election clerks said the ruling is 'deeply irresponsible and jeopardizes the integrity of our election.'
The conservative-controlled Wisconsin Supreme Court on Thursday ordered a halt in the mailing of absentee ballots until it gives the go-ahead or makes any future ruling about who should be on the ballot in the critical battleground state.
The order injects confusion into voting in Wisconsin a week before the state's deadline for absentee ballots to be mailed to those with requests on file and less than two months before the Nov. 3 presidential election. Polls show a tight race in the state between Donald Trump and Democrat Joe Biden.
Local election clerks sounded the alarm about what even a temporary delay in the process would mean.
"This is potentially a huge disaster," said Dane County Clerk Scott McDonell. "Just the delay of a decision is deeply irresponsible and jeopardizes the integrity of our election."
In Madison alone, there were 100,000 requests for absentee ballots on file, and election staff planned to work all weekend on mailing them out, he said. If the court ordered changes to the ballot, Dane County would have to print, package, sort, and deliver 500,000 new ballots.
The ruling came in a lawsuit by Green Party presidential candidate Howie Hawkins, who asked the state's highest court to take up his challenge of a Wisconsin Elections Commission decision keeping him off the ballot. The commission deadlocked in August on whether Hawkins had submitted the proper paperwork.
Rapper Kanye West, in a separate case, is also trying to get on the ballot after the commission voted 5-1 that his nomination papers were too late. West argues that his papers, which were accepted minutes after the 5 p.m. deadline, meet the requirements to put him on the ballot. A Brown County judge said he hoped to rule within days on West's lawsuit, which could cause further delays in the mailing of ballots.
Whether West and Hawkins are allowed on the ballot could have a significant impact in razor-close Wisconsin. The Green Party's 2016 presidential candidate, Jill Stein, won 31,006 votes in the state, which was more than Trump's 22,177-vote margin over Hillary Clinton.
The state Supreme Court, in a 4-3 decision split along ideological lines, said no ballots can be sent for now. Municipal election clerks face a Sept. 17 deadline to mail absentee ballots to anyone who had requested one. There is also a Sept. 19 federal deadline to mail ballots to voters overseas and in the military. As of Thursday, nearly 1 million absentee ballots had been requested in Wisconsin.
While Sept. 17 is the deadline for clerks to mail absentee ballots to those who already have a request on file, anyone who makes a request later will still be mailed a ballot. Oct. 29 is the deadline for most voters to request a ballot by mail. Returned ballots must be received by the time polls close at 8 p.m. on Election Day.
Wisconsin Elections Commissioner Meagan Wolfe said Thursday, just prior to the court's order, that some clerks may have already mailed ballots without West's and Hawkins' names on them. If West or Hawkins ends up getting on the ballot, the clerks would likely send voters a new ballot, Wolfe said. Voters would also likely receive instructions telling them that their first ballot would still count unless they mailed in the second one, she said.
That scenario is "incredibly problematic," Wolfe said.
The high court asked the elections commission to provide detailed information by 5 p.m. Thursday on who had requested an absentee ballot, whether any had been sent, to whom they were mailed, when they were mailed, and to what address.
Wolfe's filing at the deadline showed local clerks have marked about 380,000 ballots as sent. She said she couldn't personally vouch that the information was accurate, however.
For example, the spreadsheet shows the city of Madison marked about 77,000 ballots as sent. City Clerk Maribeth Witzel-Behl said the city has everything ready to go but froze things after the court ruling, and hasn't yet put anything in the mail.
Commission spokesman Reid Magney said the city marked that many ballots as sent in the statewide voter registration system and the commission can't differentiate between what's marked sent and what actually goes out. He said Madison officials may have decided to mark a ballot as sent on the date they generated the mailing labels.
Wolfe said the commission got responses from 63 of 72 counties, but only 25 municipalities. She gave the court the names and addresses of about 100 voters who had requested ballots.
The court's three liberal justices dissented, saying that "given the breadth of the information requested and the minimal time allotted to obtain it (the court) is asking the impossible of our approximately 1,850 municipal clerks throughout the state."
Gillian Drummond, a spokeswoman for the state Department of Justice, which was representing the elections commission, declined to comment. Hawkins' attorney did not immediately return a message.
Elections officials have been urging voters to return their ballots as soon as possible because of concerns with slower mail delivery and the expected unprecedented number of absentee ballots. State elections officials have estimated that more than 2 million of the state's roughly 3 million eligible voters will cast absentee ballots, largely due to concerns about the coronavirus pandemic.
There are more than 170 lawsuits nationally over election procedures, often filed by the two major parties or their allies, that have injected a new level of uncertainty into a contest already disrupted by the pandemic. There has also been litigation over attempts by third parties like the Greens or candidates like West to get on the ballot in other states such as Arizona, Pennsylvania, and Virginia.