Wisconsin Supreme Court

MADISON, Wis. (CN) – Officials from a liberal-leaning Wisconsin county accused state Republicans of playing politics Monday in response to a petition filed in the state’s highest court challenging the county clerk’s decision to waive photo ID requirements for absentee ballots in next week’s primary in light of Covid-19 disruptions.

Mark Jefferson, executive director of the Wisconsin Republican Party, asked the state supreme court on Friday to review Dane County Clerk Scott McDonnell’s decision to allow certain voters to request and cast absentee ballots without presenting a photo ID, which was made on the basis that these voters are “indefinitely confined” due to the coronavirus outbreak and the various lockdown measures enacted to slow its spread.

The Wisconsin Supreme Court room at the state Capitol building. (Photo via Royalbroil/Wikipedia)

Republicans contend that clerks have no legal authority to waive the photo ID requirement and argued in their petition that “without this court’s intervention, the upcoming election will take place under two sets of different rules—one for voters in Dane County, and one for voters in the rest of the state.”

The state GOP’s petition makes a grand total of five separate lawsuits brought in the last two weeks over how to proceed with Wisconsin’s April 7 primary election as the Covid-19 pandemic snarls governments and volatile markets and upends civic life across the globe.

As of Monday afternoon, Wisconsin reported nearly 1,200 confirmed cases of Covid-19, including 18 deaths.

Dane County’s response Monday to the GOP’s petition, filed by assistant county corporation counsel David Gault, accused Republicans of leapfrogging administrative remedies in order to “invoke an extraordinary remedy for a concocted issue that doesn’t exist.”

The county says the Republican Party did not first go to the six-member bipartisan Wisconsin Elections Commission to resolve confusion over the election rules as they should have, instead “swinging for the fence and seeking to invoke this court’s jurisdiction” to resolve the matter in its favor.

McDonnell, the Dane County clerk, posted a comment on Facebook last week encouraging infirm, ill or elderly voters who feel they cannot leave their home due to Covid-19 and cannot provide photo ID to indicate that they are indefinitely confined by the coronavirus, allowing them to bypass the requirement.

Even though that post and the alleged rule-breaking it encourages was the basis for Republicans’ petition, Monday’s response brief points out that the elections commission has already further clarified its position on the matter and that election laws were not broken in the first place.

“The petitioners disagree with the clerk’s guidance because they are trying to win an election,” the county’s filing states. “This case is about politics and not the law.”

The elections commission deadlocked 3-3 along party lines on Sunday night over investigating clerks in Dane and Milwaukee counties for bending the photo ID rule for certain absentee voters.

According to Monday’s filing, the elections commission has said waiving the photo ID requirement “is an individual decision based on the circumstances” and Dane County claims “it is entirely reasonable for a voter to conclude they are currently confined to home due to Covid-19,” pointing to Governor Tony Evers’ safer-at-home order issued last week.

Evers’ lockdown order shuttered nonessential business and requires residents to stay in their homes and limit interactions with others as much as possible through April 24.

The response from Dane County, home to the urban center and capital city of Madison, concluded “there is no legitimate legal issue regarding the clerk’s social media post regarding the designation of indefinitely confined by an absentee voter,” adding that Republicans should have brought their complaint to the elections commission as laid out in state law instead of appealing directly to the Wisconsin Supreme Court, which has a 5-2 conservative majority.

People vote in Kieler, Wis., on Nov. 6, 2018. (Nicki Kohl/Telegraph Herald via AP, File)

The Covid-19 pandemic has heaped extra tension onto a pivotal primary already fraught with partisan sniping, bureaucratic complications and a flood of last-minute litigation, which includes four federal lawsuits in addition to the GOP’s petition.

On Saturday, U.S. District Judge William Conley, a Barack Obama appointee, consolidated three of the suits in Madison federal court. The first was brought by the Democratic National Committee and the Wisconsin Democratic Party, which asked for certain election rules and deadlines to be suspended due to Covid-19. Conley reopened online voter registration until March 30 but declined to move on the Democrats’ other requests pending a more robust record.

Conley also blocked the Wisconsin Legislature from intervening in the lawsuit but chose to allow the Republican National Committee and Republican Party of Wisconsin to intervene “as they are uniquely qualified to represent the ‘mirror-image’ interests” of the Democrats that brought the suit.

One of the two other Madison federal suits, brought by two unions and voter mobilization group Souls to the Polls, among others, called for the April primary to be delayed and conducted entirely via mail. The other, brought by the Wisconsin Alliance for Retired Americans, wants to waive the requirement that an adult witness sign a voter’s absentee ballot, which the group claims is impractical or impossible given social distancing guidelines and other emergency measures to combat the coronavirus.

The fourth federal action, filed in Green Bay federal court last Tuesday and presided by U.S. District Court Judge William Griesbach, a George W. Bush appointee, was dismissed late Friday.

Green Bay, home of the NFL’s Packers, and its city clerk also wanted to delay the April primary, but Griesbach argued the political subdivision doctrine of the 14th Amendment’s equal protection clause prohibited them from bringing the litigation in their official capacities.

Amid a flurry of litigation and predictably partisan infighting, the fact remains that the Badger State’s primary is only eight days away and it is still shrouded in confusion.

Governor Evers and Milwaukee County Clerk George Christenson, both Democrats, are among a chorus of others who have asked for the entire primary to be conducted by mail in the interest of ensuring every citizen’s right to vote while keeping them safe from the easily communicable coronavirus. Republican leaders in the state have dismissed the notion of mailing and counting millions of absentee ballots before April 7 as an unfeasible fantasy.

More than half a million Wisconsin voters have requested absentee ballots for the April primary, dwarfing the number of requests from recent elections as much as tenfold, and clerks are saying they are severely backlogged and shorthanded in handling the surge of requests.

All eyes are watching too, as the primary is a crucial one on both a national and local level. In addition to the presidential primary, the election features a hotly contested race for a seat on the Wisconsin Supreme Court between current conservative Justice Daniel Kelly and liberal Dane County Circuit Court Judge Jill Karofsky, as well as races for Milwaukee’s mayor and county executive.

The state elections commission, the target of most of the recent legal actions, will meet next on Tuesday morning to discuss election day preparations and litigation strategies.