Wisconsin primary on for Tuesday, Supreme Court rules

The Joe Biden-Bernie Sanders primary vote is set to take place in the midst of the COVID-19 pandemic.
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A man leaves the Frank P. Zeidler Municipal Building in Milwaukee after not being able to cast his ballot at the drop-off site, which had closed, on Monday, April 6, 2020.Kamil Krzaczynski / AFP via Getty Images

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By Alex Seitz-Wald

WASHINGTON — Wisconsin's controversial election is back on for Tuesday, and voters will get no extension on the deadline to return absentee ballots despite the coronavirus crisis, thanks to two top courts that sided with Republicans on Monday.

Wisconsin Gov. Tony Evers, a Democrat, issued an executive order Monday afternoon postponing the election to June 9, citing the public health risk. But the state Supreme Court hours later overturned the governor, siding with the Republican-controlled Legislature, which had challenged his order.

Later in the day, the U.S. Supreme Court ruled in favor of Wisconsin Republicans on a separate issue, voting 5-4 along ideological lines to overturn a lower federal court's decision to extend a deadline for absentee balloting.

Results will not be released until April 13, however, the Wisconsin Election Commission decided in an emergency meeting Monday, citing a part of the lower court ruling the Supreme Court did not overturn.

Election officials have faced an unprecedented crush of requests for absentee ballots from voters looking to avoid the polls during the pandemic, so a federal judge Thursday granted voters and officials an extra week to cast ballots and have them counted.

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But the U.S. Supreme Court rejected the extension, meaning that in order to be counted, absentee ballots need to be hand-delivered by 8 p.m. Tuesday or postmarked by then arrive via mail by April 13. The four dissenting justices, all on the court's liberal wing, said the decision will result in the "massive disenfranchisement" of tens of thousands of voters who do not want to show up in person because of the spread of the coronavirus but could not cast their absentee ballots in time.

"The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic," Justice Ruth Bader Ginsburg wrote for the dissenters. By cutting off the absentee ballot extension, she wrote, the court's decision forces voters to choose between endangering their safety by showing up in person or losing their right to vote.

The state Democratic Party said it will not be mobilizing in-person voting, and its chairman, Ben Wikler, warned of even graver consequences, saying the decision to force the election to proceed during the epidemic will "disenfranchise untold thousands of Wisconsin voters and consign an unknown number of Wisconsinites to their deaths."

The courts' actions, just hours after the governor postponed the election and not long before polls are to open Tuesday morning, were the latest twist in the only major election scheduled for this month after all other states postponed theirs in response to the coronavirus crisis.

Election officials had been taking elaborate preparations to protect public health while offering residents a chance to vote at polling places Tuesday, and Republican legislative leaders told them to keep going even after the governor issued his order, arguing that it would not stand up in court.

The election includes not only a primary for the Democratic presidential nomination between Bernie Sanders and Joe Biden, but also general elections for hundreds of down-ballot offices, including a seat on the state Supreme Court.

The state court is officially nonpartisan, but it breaks down into clear ideological camps. The court's two liberal justices dissented, while four conservatives joined the majority. The conservative up for re-election Tuesday abstained.

In a joint statement, state House Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, both Republicans, praised the court's ruling.

"The state's highest court as spoken: the governor can't unilaterally move the date of the election," they said.

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Wisconsin Republican Chairman Andrew Hitt said changing the election date because of the outbreak would quickly "lead us down a slippery slope that erodes our democracy."

"The confusion and time wasted as a result of these multiple lawsuits when we should have all been solely focused on preparing for a challenging election is truly sad and unfortunate," he said.

Evers, who had resisted rescheduling the election until recent days, called the decisions a "shame."

"Tomorrow in Wisconsin, thousands will wake up and have to choose between exercising their right to vote and staying healthy and safe," he said in a statement. "In this time of historic crisis, it is a shame that two branches of government in this state chose to pass the buck instead of taking responsibility for the health and safety of the people we were elected to serve."