Voters in the battleground state of Wisconsin whose absentee ballots fail to arrive by Election Day should have the option to cast provisional ballots in person to make sure their votes are counted — that’s the argument at the heart of a lawsuit filed Friday.
The legal action arrives as anxiety mounts over whether the U.S. Postal Service can deliver ballots quickly enough before the November midterm elections. The stakes are high, with control of Congress on the line and Wisconsin residents also set to choose a new governor and decide the makeup of their state Legislature.
The bipartisan Wisconsin Elections Commission had already sounded the alarm in May, sending a warning to the U.S. postmaster general that mail delays could strip citizens of their fundamental right to vote. Back in January, a group made up largely of Democratic U.S. senators sent a separate letter to the postal service, expressing concern that a change in how mail gets postmarked could cause many mail-in ballots to be thrown out.
The lawsuit follows a troubling outcome in California’s June primary, where nearly 150,000 mail-in ballots were rejected — the overwhelming majority due to late postmarks — even as the state had worked to count every eligible vote.
Wisconsin itself has seen the problem firsthand. Based on a survey of election clerks conducted by the elections commission, at least several hundred ballots were not counted during the April election because they arrived after the deadline. Milwaukee alone had more than 300 ballots rejected for being too late, while Fond du Lac saw more than 100 tossed for the same reason.
The lawsuit was brought in Dane County circuit court by Law Forward, a liberal firm based in Madison, and the Washington, D.C.-based Fair Elections Center. It was filed on behalf of an individual voter and the League of Women Voters of Wisconsin. A spokesperson for the elections commission declined to comment immediately.
Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, addressed the issue directly in a statement: “Every voter in Wisconsin that puts an accurately requested absentee ballot in the mail on time expects their vote will be counted. Delays in mail delivery prevent that. It is time to have a remedy for these eligible voters.”
Under current Wisconsin law, voters are not permitted to show up at the polls on Election Day and cast a provisional ballot. The lawsuit is asking a judge to change that — specifically, to allow a voter whose absentee ballot hasn’t been received to vote provisionally in person. Since Wisconsin allows absentee voters to track their ballot’s status online, voters would be able to check on Election Day whether their mail-in ballot had been received.
Provisional ballots would be held separately by election officials and only counted if the voter’s absentee ballot does not arrive by the deadline. If the absentee ballot does come in on time, the provisional ballot would simply not be counted. In Wisconsin, all ballots must reach the clerk’s office by the time polls close on Election Day to be valid.
