'Warning sign:' Wisconsin's messy primary shows struggles states could face in November election

WASHINGTON – Hours before polls even opened in Wisconsin, voters lined up to cast their ballots at one of five polling stations in Milwaukee, the state's largest city. 

Many wore face masks and tried to keep at least 6 feet apart as they waited in line. Typically, the city has 180 polling locations. But the reduced number meant wait times to cast ballots at some locations were several hours. Thousands of voters never even received the absentee ballots they requested. One Milwaukee voter said she requested hers almost three weeks ago, but it never came.

"I have a father dying from lung disease and I have to risk my life and his just to exercise my right to vote," Jennifer Taff said while standing outside Washington High School in Milwaukee, holding a homemade sign that said: "THIS IS RIDICULOUS."

This is what it’s like to vote during a pandemic.

Wisconsin is the first state to hold a primary when much of the country is under stay-at-home orders – including the Badger State – amid the coronavirus pandemic. Although Democratic Gov. Tony Evers tried Monday to postpone the primary at the last minute, both the Wisconsin Supreme Court and the U.S. Supreme Court stepped in, and voters headed to the polls Tuesday. Results weren't going to be released until next week.

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The state’s decisions, as well as the Supreme Court’s ruling, have again called into question how other primaries and the general election move forward amid the pandemic. Many voting rights groups have warned that a solution to avoid putting voters at risk needs to be reached soon or turnout could be dramatically affected in November.

“What happened in Wisconsin …  could be a driver for a true crisis of democracy come November, and every state needs to be thinking right now about what they're going to do to ensure free and fair elections in the fall,” said David Daley, a senior fellow at Fair Vote and author of “Unrigged: How Americans Battled Back To Save Democracy.”

States have to come up with a solution before the Nov. 3 general election, Daley stressed. It's particularly important because some health officials, including the director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, have said another coronavirus outbreak could happen in the fall.

More:Democratic convention pushed back to August in response to coronavirus pandemic

Coronavirus has upended the primary in several states

So far, more than a dozen states have delayed primary elections because of the outbreak. Although many states are still planning in-person voting, a number have also expanded absentee voting and vote-by-mail to avoid direct contact among people at polling locations.

“Delawareans have a basic, fundamental right to vote," Delaware Gov. John Carney said in a statement last month, adding that his order to move the election and expand absentee voting "will preserve that right."

Daley said one solution to the state-by-state approach is a national standard on voting by mail or absentee ballot. Without it, he warned, “we're going to have this state-by-state patchwork of often outdated and sometimes highly partisan laws.” Only 28 states have "no excuse" absentee voting, meaning voters do not need one of several official reasons to request an absentee ballot. The others allow voters to request an absentee ballot without an excuse.

But even expanded voting by mail can bring problems.

In Wisconsin, thousands of voters never received their absentee ballots before Tuesday's election despite requesting them, the Milwaukee Journal Sentinel reported. Absentee ballots also had to be postmarked Tuesday or delivered to a polling place by 8 p.m. after a previous court ruling was going to allow an extended deadline. According to official numbers from Wisconsin as of Tuesday, 1,282,762 absentee ballots were requested, but nearly 10,000 fewer – 1,273,374 – had been sent.

Kristen Clarke, president of the advocacy group Lawyers’ Committee for Civil Rights Under Law said elderly voters who feared exposure to the virus were unable to submit absentee ballots. More than 400,000 absentee ballots hadn’t been returned by Tuesday morning, suggesting many might go unused, she said.

More:Wisconsin election will move forward after state Supreme Court overturns governor's order

The U.S. Supreme Court weighs in Monday night

In addition to the state court ruling that overturned Evers' attempt to delay in-person voting in Wisconsin, the U.S. Supreme Court's ruling Monday blocked a federal court order that had extended the deadline for absentee voting six days beyond Wisconsin’s planned Tuesday primary.

"Extending the date by which ballots may be cast by voters – not just received by the municipal clerks but cast by voters –  for an additional six days after the scheduled election day fundamentally alters the nature of the election," the court said in an unsigned opinion.

"The court’s decision ... should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough,” the court said.

Daley warned that the Supreme Court’s ruling could mean another court battle ahead of the general election.

“I think it’s a warning sign that if states don’t get their act together on absentee balloting right now, then this is a dry run for the kinds of arguments we could be having in November, and that the U.S. Supreme Court is likely to rule the same way in the fall if the question of absentee ballot comes before them. It could have the potential to tip the election,” he said.

Many voting rights groups have raised similar concerns, including that Wisconsin’s primary process could further disenfranchise some voters.

Jay Heck, the Wisconsin director of Common Cause, a voting-rights advocacy group, said voters face a difficult choice between wanting to vote and protecting their health. 

“Wisconsin’s absentee ballot rules are no doubt disenfranchising voters,” Heck said.  

Heck said the governor and Legislature have seven months to correct the problem to “avoid this kind of chaos” for the November general election. 

“This has been a chaotic primary election for people across the state of Wisconsin,” said Clarke with the lawyers' group. “For many voters, they had to make the tough choice between subjecting them to a health risk today and being able to exercise their right to vote.”

Rachel Hughes, an emergency physician in Madison, Wis., told reporters on a conference call with the legal advocates that she requested an absentee ballot in early March because she knew the pandemic was coming and thought she’d be working. But she never received it.

“I didn’t think it was responsible for me to go to a poll and potentially expose lots of other people, as I’m high risk of being a carrier,” Hughes said. Eventually, she was allowed to vote curbside by having a poll worker fill out her ballot as if she were blind.

“It took a lot of cooperation from the wonderful poll workers at my local polling place,” Hughes said.

Page Gardner, founder and board chair of the Voter Participation Center, said in a statement that "this pandemic should not be an excuse to further disenfranchise voters in Wisconsin, or anywhere."

"The confusion around (Wisconsin's) primary (Tuesday) and all of the last-minute changes likely will leave historically disadvantaged voters on the sidelines," she said. "We are witnessing the weakening of America’s system of democracy."

Contributing: Bart Jansen of USA TODAY; Milwaukee Journal Sentinel