In blow to mail voters, Wisconsin judge won’t allow provisional ballots for people fearing Postal Service delays

Wisconsinites who vote by mail will effectively be disenfranchised if the U.S. Postal Service doesn’t deliver their ballot by election night after a trial court this week declined to let them vote provisionally – a major loss less than a month before Election Day.

The League of Women Voters (LWV) of Wisconsin and a Dane County voter sued to challenge a Wisconsin Election Commission (WEC) prohibition on voters casting a provisional ballot in person on Election Day if they are concerned their mailed absentee ballots may not arrive in time to be counted.

In Wisconsin, all mail ballots must be received by 8 p.m. on Nov. 3, with no grace period for mail delays.

The LWV sought a temporary injunction against the policy, saying in their complaint it “forbid[s] Wisconsinites from exercising their right to vote.” 

At a hearing this week, the judge declined to issue the emergency relief but left open the possibility for LWV to file a motion for summary judgment to continue challenging the election rule. However, any ruling on a potential motion would likely come after the midterms.

USPS is experiencing a significant slowdown nationwide in pickup and delivery times this year because of new cost-cutting measures. A Democracy Docket analysis shows which zip codes will be most affected. 

In local elections this past April, many Wisconsin clerks reported problems with late-arriving ballots. Their comments prompted WEC to conduct its own survey, which found 67% of clerks observed issues with mail travel times. 

“Just over half of clerks reported receiving ‘negative’ or ‘mixed’ feedback from their voters about absentee ballot travel times,” the WEC said. “Only 3% of clerks reported positive feedback about mail performance.”

The LWV cited those numbers in its complaint.

In Milwaukee, the group said, 336 absentee ballots arrived the day after the spring election. All 336 votes were rejected. In Fond du Lac, more than 100 ballots arrived after Election Day and were not counted.

“The right to vote, as protected by the Wisconsin Constitution, does not countenance disenfranchisement when the voter has complied with all the requirements for voting and returning a mailed absentee ballot,” the LWV argued.

The WEC is a bipartisan commission currently chaired by a Republican.

One Republican state lawmaker running for reelection successfully intervened in the case to oppose the pro-voting group’s case.

“I got into this case to defend the law the Legislature wrote,” State Rep. Calvin Callahan said in a press release. “If you mail your absentee ballot back to your clerk, you do not get another vote at the polls. … One person, one ballot. That is a foundation of our election system, and it should not be rewritten in the middle of an election through a court action.”

Delaney Lynch contributed to this report.