Wisconsin Elections Commission Advises that Prohibition on Disclosing Unofficial Election Results Remains in Effect

In our previous Legal Update, we explained the flurry of legal actions and court decisions that occurred in the last few days before today’s Spring Election. As discussed in the earlier Legal Update, the United States Supreme Court (the “Supreme Court”) overruled the injunction issued by the United States District Court for the Western District of Wisconsin (the “District Court”) and ordered that absentee ballots must be hand-delivered or postmarked by April 7, 2020, to be counted in the Spring Election.

The Supreme Court’s decision also discussed the District Court’s injunction against the Wisconsin Elections Commission (the “WEC”) and all election officials from disclosing unofficial election results before the deadline to receive absentee ballots (4:00 p.m., on April 13, 2020). The Supreme Court noted that the injunction was necessary to protect the integrity of the election process if voters could cast ballots after in-person voting ended.

The Supreme Court’s decision did not explicitly overturn the injunction prohibiting the disclosure of unofficial election results, but the decision removed the underlying justification for the injunction. Releasing unofficial election results no longer jeopardized the integrity of the election since all absentee ballots must be hand-delivered or mailed on or before April 7, 2020.

Nevertheless, the WEC has advised municipal clerks that the District Court’s order prohibiting disclosure of unofficial election results before 4:00 p.m., on April 13, 2020, remains in effect. To comply with the District Court’s order, the WEC directed municipal clerks to count the number of ballots cast on Election Night, but not to count votes until April 13, 2020. As a result, unofficial election results will not be known and available until April 13, 2020.

The WEC’s decision to delay counting votes will further impact and delay municipal and school district canvassing of the election results. It is improbable that municipalities will be able to count all votes and complete the municipal canvass by the statutory deadline of April 13, 2020. As a result, it is also unlikely that school districts will receive the necessary materials from each municipality to complete the school district’s canvass on or before April 14, 2020.

School districts should contact the municipalities within their jurisdiction to determine when they anticipate completing the municipal canvass and providing the necessary materials to complete the school district’s canvass. School districts should plan to complete their canvass as soon as possible once municipalities provide the necessary materials.

School District Board of Canvassers meetings are subject to Wisconsin’s Open Meetings law. Thus, a school district must provide public notice of the meeting at least twenty-four (24) hours in advance.

School District Board of Canvassers meetings are an essential governmental function. Thus, they are exempt from the current “Safer at Home” order. Boards of Canvassers may meet in person to conduct the canvass. However, the school district will need to take precautions to allow the canvassers and members of the public who wish to observe the canvass to observe social distancing.

Conversely, canvassers may meet remotely if they can do so and still review the necessary materials. Similar to other governmental meetings held remotely during the public health emergency, school districts will also need to address how to provide public access to the remote meeting through video or audio conferencing.