Federal Injunction Did Not Delay Spring Election but Will Impact School Districts’ Post-Election Activities

From the beginning of the public health emergency caused by COVID-19, it seemed likely it would impact the April 7, 2020, Spring Election.  After the Department of Health Services (the “DHS”) closed schools effective March 18, 2020, the Wisconsin Elections Commission (the “WEC”) authorized municipal clerks to change/consolidate polling places to address closed locations such as schools and public libraries. 

As DHS added further restrictions on public gatherings, culminating in the “Safer at Home” order, Governor Tony Evers and members of the Legislature encouraged voters to request absentee ballots for the election.  As a result, voters have requested and returned a record number of absentee ballots. 

Governor Evers and the Legislature sparred over rescheduling the election and requiring mail-in ballots.  In a final attempt to delay the election, Governor Evers issued Emergency Order #74 on the morning of April 6, 2020, ordering the Spring Election rescheduled to June 9, 2020.  Republican legislators immediately vowed to challenge the order at the Wisconsin Supreme Court as a violation of the Wisconsin Constitution.  That same day, the Wisconsin Supreme Court overturned Governor Evers’ order, allowing the Spring Election to proceed as originally scheduled.

At the federal level, several groups seeking to delay the Spring Election or modify election procedures filed several lawsuits against members of the WEC.  Three such lawsuits were consolidated in the United States District Court for the Western District of Wisconsin (with District Court Judge William Conley presiding).

On April 2, 2020, Judge Conley issued a preliminary injunction enjoining the WEC from enforcing the requirement that absentee ballots must be received by the close of polls on Election Day.  The preliminary injunction extended the deadline to receive absentee ballots until 4:00 p.m., on April 13, 2020, regardless of when the voter mailed the ballot.  Judge Conley amended the preliminary injunction on April 3, 2020, to prohibit the WEC and all election inspectors (more commonly referred to as election officials) from releasing any unofficial election results until 4:00 p.m., on April 13, 2020, or as soon as votes are counted afterward. 

The WEC filed an emergency appeal to the Seventh Circuit Court of Appeals (the “Seventh Circuit”) requesting a stay of Judge Conley’s initial order.  The Seventh Circuit granted a partial stay of the injunction, but denied the stay related to extending the deadline for municipalities to receive absentee ballots.  The Seventh Circuit’s order did not directly address the injunction regarding the disclosure of unofficial election results. 

The Republican National Committee immediately appealed the Seventh Circuit’s decision asking the United States Supreme Court to stay the order related to extending absentee ballot voting.  The Democratic National Committee responded to the appeal asking the United States Supreme Court to uphold the District Court’s order. 

The United States Supreme Court issued a 5-4 decision on April 6, 2020, approximately twelve (12) hours before polls opened on election day, granting the stay.  The United States Supreme Court ruled that absentee ballots must be postmarked or hand-delivered to the municipal clerk no later than April 7, 2020.  The United States Supreme Court further ruled that absentee ballots postmarked by April 7, 2020, could be counted if the municipal clerk received them no later than April 13, 2020. 

The United States Supreme Court reasoned that the District Court’s order allowing voters to cast absentee ballots after Election Day would fundamentally alter the nature of the election.  The United States Supreme Court also expressed doubt that the order’s prohibition on disclosing unofficial election results until April 13, 2020, would be effective.  Thus, the United States Supreme Court concluded that the District Court’s order impermissibly altered the election rules.

The Wisconsin Supreme Court and United States Supreme Court decisions on April 6, 2020, mean that the Spring Election will proceed as originally planned.  However, the extended period for municipal clerks to receive absentee ballots will likely delay the required election canvassing to certify the election results. 

Each municipality is required to canvass the election to certify election results.  As a result of the United States Supreme Court’s decision, municipal boards of canvassers must convene no later than 9:00 a.m., on April 13, 2020, and complete the canvass no later than 4:00 p.m., on April 13, 2020.  Thus, municipal boards of canvassers will have to wait until April 13, 2020, to complete the canvass. 

School districts are also required to convene a board of canvassers to certify election results for school board positions and referendum questions.  The school district’s board of canvassers must convene no later than 9:00 a.m., on April 14, 2020, and complete its canvass no later than 4:00 p.m., on April 14, 2020.

Additionally, school districts that have a referendum question on the ballot for the Spring Election will have less time to report the results to the Department of Public Instruction (the “DPI”).  School districts must report the referendum results to the DPI within ten (10) days of Election Day.  Wis. Stat. § 121.91(3)(a)1.  For the Spring Election, the deadline for reporting the referendum results is April 17, 2020.

Typically, the DPI asks school districts to report preliminary results of the election within one (1) or two (2) days before results are certified.  School districts then must provide the board of canvasser’s certificate of election by the ten (10) day deadline.  Delays in completing the school district’s canvass will also delay entering the results into the School Finance portal on the DPI’s website, and forwarding the certificate of election to the DPI by electronic-mail.

The legal battles over holding the Spring Election in Wisconsin have been unique, but the election will proceed as scheduled for in-person voting.  Extending the deadline for municipalities to receive absentee ballots will impact some post-election requirements, but not as significantly as Governor Evers’ Emergency Order or the District Court’s preliminary injunction.