Wisconsin State Legislature v. Marge Bostelmann

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2835 & 20-2844
DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs-Appellees,
v.
MARGE BOSTELMANN, SECRETARY OF THE WISCONSIN
ELECTIONS COMMISSION, et al.,
Defendants,
and
WISCONSIN STATE LEGISLATURE, REPUBLICAN NATIONAL
COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 20-cv-249-wmc, et al. — William M. Conley, Judge.
____________________
SUBMITTED OCTOBER 6, 2020 — DECIDED OCTOBER 8, 2020
____________________
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
PER CURIAM. On September 29, 2020, we issued an order
denying the motions for a stay in these appeals, because we
2 Nos. 20-2835 & 20-2844
concluded that Wisconsin’s legislative branch has not been
authorized to represent the state’s interest in defending its
statutes. On October 2, in response to a request for reconsid-
eration, we certified to the Supreme Court of Wisconsin the
question “whether, under Wis. Stat. §803.09(2m), the State
Legislature has the authority to represent the State of Wis-
consin’s interest in the validity of state laws.” That court ac-
cepted the certification and replied that the State Legislature
indeed has that authority. Democratic National Committee v.
Bostelmann, 2020 WI 80 (Oct. 6, 2020). In light of that conclu-
sion, we grant the petition for reconsideration and now ad-
dress the Legislature’s motion on the merits. (The other in-
tervenors have not sought reconsideration.)
As we explained last week, a district judge held that
many provisions in the state’s elections code may be used
during the SARS-CoV-2 pandemic but that some deadlines
must be extended, additional online options must be added,
and two smaller changes made. 2020 U.S. Dist. LEXIS 172330
(W.D. Wis. Sept. 21, 2020). In particular, the court extended
the deadline for online and mail-in registration from October
14 (see Wis. Stat. §6.28(1)) to October 21, 2020; enjoined for
one week (October 22 to October 29) enforcement of the re-
quirement that the clerk mail all ballots, but only for those
voters who timely requested an absentee ballot but did not
receive one, and authorized online delivery during this time;
and extended the deadline for the receipt of mailed ballots
from November 3 (Election Day) to November 9, provided
that the ballots are postmarked on or before November 3.
Two other provisions of the injunction (2020 U.S. Dist. LEXIS
172330 at *98) need not be described.
Nos. 20-2835 & 20-2844 3
The State Legislature offers two principal arguments in
support of a stay: first, that a federal court should not change
the rules so close to an election; second, that political rather
than judicial officials are entitled to decide when a pandemic
justifies changes to rules that are otherwise valid. See Luft v.
Evers, 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin’s
rules after reviewing the elections code as a whole). We
agree with both of those arguments, which means that a stay
is appropriate under the factors discussed in Nken v. Holder,
556 U.S. 418, 434 (2009).
For many years the Supreme Court has insisted that fed-
eral courts not change electoral rules close to an election
date. One recent instance came in an earlier phase of this
case. After the district judge directed Wisconsin to change
some of its rules close to the April 2020 election, the Supreme
Court granted a stay (to the extent one had been requested)
and observed that the change had come too late. Republican
National Committee v. Democratic National Committee, 140 S. Ct.
1205, 1207 (2020). One of the decisions cited in that opinion
is another from Wisconsin: Frank v. Walker, 574 U.S. 929
(2014). In Frank this court had permitted Wisconsin to put its
photo-ID law into effect, staying a district court’s injunction.
But the Supreme Court deemed that change (two months
before the election) too late, even though it came at the
state’s behest. (Frank did not give reasons, but Republican Na-
tional Committee treated Frank as an example of a change
made too late.) Here the district court entered its injunction
on September 21, only six weeks before the election and less
than four weeks before October 14, the first of the deadlines
that the district court altered. If the orders of last April, and
in Frank, were too late, so is the district court’s September
4 Nos. 20-2835 & 20-2844
order in this case. See also Purcell v. Gonzalez, 549 U.S. 1
(2006).
The Justices have deprecated but not forbidden all
change close to an election. A last-minute event may require
a last-minute reaction. But it is not possible to describe
COVID-19 as a last-minute event. The World Health Organi-
zation declared a pandemic seven months ago, the State of
Wisconsin closed many businesses and required social dis-
tancing last March, and the state has conducted two elec-
tions (April and August) during the pandemic. If the judge
had issued an order in May based on April’s experience, it
could not be called untimely. By waiting until September,
however, the district court acted too close to the election.
The district judge also assumed that the design of ad-
justments during a pandemic is a judicial task. This is doubt-
ful, as Justice Kavanaugh observed in connection with the
Supreme Court’s recent stay of another injunction issued
close to the upcoming election. Andino v. Middleton, No.
20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The
Supreme Court has held that the design of electoral proce-
dures is a legislative task. See, e.g., Rucho v. Common Cause,
139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).
Voters have had many months since March to register or
obtain absentee ballots; reading the Constitution to extend
deadlines near the election is difficult to justify when the
voters have had a long time to cast ballots while preserving
social distancing. The pandemic has had consequences (and
appropriate governmental responses) that change with time,
but the fundamental proposition that social distancing is
necessary has not changed since March. The district court
did not find that any person who wants to avoid voting in
Nos. 20-2835 & 20-2844 5
person on Election Day would be unable to cast a ballot in
Wisconsin by planning ahead and taking advantage of the
opportunities allowed by state law. The problem that con-
cerned the district judge, rather, was the difficulty that could
be encountered by voters who do not plan ahead and wait
until the last day that state law allows for certain steps. Yet,
as the Supreme Court observed last April in this very case,
voters who wait until the last minute face problems with or
without a pandemic.
The Court has consistently stayed orders by which feder-
al judges have used COVID-19 as a reason to displace the
decisions of the policymaking branches of government. It
has stayed judicial orders about elections, prison manage-
ment, and the closure of businesses. We have already men-
tioned Andino and Republican National Committee. See also
Clarno v. People Not Politicians Oregon, No. 20A21 (U.S. Aug.
11, 2020) (staying an injunction that had altered a state’s sig-
nature and deadline requirements for placing initiatives on
the ballot during the pandemic); Merrill v. People First of Ala-
bama, No. 19A1063 (U.S. July 2, 2020) (staying an injunction
that had suspended some state anti-fraud rules for absentee
voting during the pandemic); Barnes v. Ahlman, 140 S. Ct.
2620 (2020) (staying an order that overrode a prison war-
den’s decision about how to cope with the pandemic); Little
v. Reclaim Idaho, 140 S. Ct. 2616 (2020) (staying an injunction
that changed the rules for ballot initiatives during the pan-
demic); South Bay United Pentecostal Church v. Newsom, 140 S.
Ct. 1613 (2020) (declining to suspend state rules limiting
public gatherings during the pandemic).
Deciding how best to cope with difficulties caused by
disease is principally a task for the elected branches of gov-
6 Nos. 20-2835 & 20-2844
ernment. This is one implication of Jacobson v. Massachusetts,
197 U.S. 11 (1905), and has been central to our own decisions
that have addressed requests for the Judicial Branch to su-
persede political officials’ choices about how to deal with the
pandemic. See, e.g., Tully v. Okeson, No. 20-2605 (7th Cir. Oct.
6, 2020) (rejecting a contention that the Constitution entitles
everyone to vote by mail during a pandemic); Illinois Repub-
lican Party v. Pritzker, No. 20-2175 (7th Cir. Sept. 3, 2020) (re-
jecting a constitutional challenge to limits on the size of po-
litical gatherings during the pandemic); Peterson v. Barr, 965
F.3d 549 (7th Cir. 2020) (reversing an injunction that had al-
tered procedures for executions during the pandemic); Mor-
gan v. White, 964 F.3d 649 (7th Cir. 2020) (social distancing
during a pandemic does not require, as a constitutional
matter, a change in the rules for qualifying referenda for the
ballot); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d
341 (7th Cir. 2020) (rejecting a constitutional challenge to
limits on the size of religious gatherings during the pandem-
ic). Cf. Mays v. Dart, No. 20-1792 (7th Cir. Sept. 8, 2020) (re-
versing, for legal errors, an injunction that specified how
prisons must be managed during the pandemic).
The injunction issued by the district court is stayed pend-
ing final disposition of these appeals.
Nos. 20-2835 & 20-2844 7
ROVNER, Circuit Judge, dissenting. In the United States of
America, a beacon of liberty founded on the right of the peo-
ple to rule themselves, no citizen should have to choose be-
tween her health and her right to vote. An election system de-
signed for in-person voting, coupled with an uncontrolled
pandemic that is unprecedented in our lifetimes, confronts
Wisconsin voters with that very choice. In the April 2020 elec-
tion, Wisconsin voters sought overwhelmingly to protect
themselves by voting absentee. Yet at least 100,000 of them,
despite timely requests, did not receive their ballots in time to
return them by election day, as the Wisconsin election code
requires. Only as a result of judicial intervention in the April
2020 election were some 80,000 absentee ballots, their return
delayed by an overwhelmed election apparatus and Postal
Service, rescued from the trash bin. Thousands of additional
voters who never received their ballots were forced to stand
in line for hours on election day waiting to vote in person,
risking their well-being by doing so.
For purposes of the upcoming November election, the dis-
trict court ordered a limited, reasonable set of modifications
to Wisconsin’s election rules designed to address the very
problems that manifested in the April election and to preserve
the precious right of each Wisconsin citizen to vote. Its two
most important provisions are comparable to those this very
court sustained six months ago. The Wisconsin Election Com-
mission, whose members are appointed by the Legislature
and the Governor and are charged with administering the
State’s elections, has acceded to that injunction. It is not here
complaining of any undue burden imposed by the district
court’s decision or any risk of voter confusion. Only the Wis-
consin Legislature, which has chosen to make no accommo-
dations in the election rules to account for the burdens created
8 Nos. 20-2835 & 20-2844
by the pandemic, seeks a stay of the injunction in furtherance
of its own power.
Today, by granting that stay, the court adopts a hands-off
approach to election governance that elevates legislative pre-
rogative over a citizen’s fundamental right to vote. It does so
on two grounds: (1) the Supreme Court’s Purcell doctrine, as
exemplified by the Court’s recent shadow-docket rulings, in
the majority’s view all but forbids alterations to election rules
in the run-up to an election; and (2) in times of pandemic, re-
visions to election rules are the province of elected state offi-
cials rather than the judiciary. With respect, I am not con-
vinced that either rationale justifies a stay of the district
court’s careful, thorough, and well-grounded injunction. At a
time when judicial intervention is most needed to protect the
fundamental right of Wisconsin citizens to choose their
elected representatives, the court declares itself powerless to
do anything. This is inconsistent both with the stated rationale
of Purcell and with the Anderson-Burdick framework, which
recognizes that courts can and must intervene to address un-
acceptable burdens on the fundamental right to vote. The in-
evitable result of the court’s decision today will be that many
thousands of Wisconsin citizens will lose their right to vote
despite doing everything they reasonably can to exercise it.
This is a travesty.
On the facts of the case, I see no deviation from Purcell. In
all of two sentences, Purcell articulated not a rule but a cau-
tion: take care with last-minute changes to a state’s election
rules, lest voters become confused and discouraged from vot-
ing. Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S. Ct. 5, 7 (2006)
Nos. 20-2835 & 20-2844 9
(per curiam).1 In a series of stay rulings on its shadow docket
since that decision, the Supreme Court has evinced a pro-
nounced skepticism of judicial intervention in the weeks prior
to an election, e.g. Andino v. Middleton, — S. Ct. —, 2020 WL
5887393 (U.S. Oct. 5, 2020), but has put little meat on the bones
of what has become known as the Purcell doctrine. See Nicho-
las Stephanopoulos, Freeing Purcell from the Shadows, Election
Law Blog (Sept. 27, 2020) (hereinafter, “Freeing Purcell”)
(“[d]espite all of this activity, the Purcell principle remains re-
markably opaque”)2. Perhaps we can say at this point that
Purcell and its progeny establish a presumption against judi-
cial intervention close in time to an election. See id. (“This is
the reading most consistent with Purcell’s actual language.”).
But how near? As to what types of changes? Overcome by
what showing? These and other questions remain unan-
swered.
The Supreme Court’s stay decision in this case regarding
the April 2020 election did little to clear things up. This court
had denied a stay as to two changes the district court ordered
for purposes of that spring election: extending the deadline
for requesting an absentee ballot, and extending the deadline
for receipt of completed absentee ballots. Dem. Nat’l Com. v.
Bostelmann, 2020 WL 3619499, at *1 (7th Cir. April 3, 2020). The
Wisconsin Legislature appealed only the ballot-receipt dead-
line. Although the Court had critical things to say about the
1“Court orders affecting elections, especially conflicting orders, can them-
selves result in voter confusion and consequent incentive to remain away
from the polls. As an election draws closer, that risk will increase.” Purcell,
549 U.S. at 4–5, 127 S. Ct. at 7.
2 Available at https://electionlawblog.org/?p=115834.
10 Nos. 20-2835 & 20-2844
last-minute change in rules ordered by the district court’s in-
junction (in part because the district court had ordered relief
beyond what the plaintiffs themselves had requested), it then
proceeded to impose one of its own, ordering that absentee
ballots must either be delivered or postmarked on or before
election day in order to be counted. Repub. Nat’l Com. v. Dem.
Nat’l Com., 140 S. Ct. 1205, 1207, 1208 (2020). The Court was
also at pains to emphasize that it was reserving judgment as
to “whether other reforms or modifications in election proce-
dures in light of COVID-19 are appropriate.” Id. at 1208. Apart
from that, the Supreme Court’s pattern of staying similar sorts
of injunctions in recent months is long on signaling but short
on concrete principles that lower courts can apply to the spe-
cific facts before them.
Until the Supreme Court gives us more guidance than Pur-
cell and an occasional sentence or two in its stay rulings have
provided, all that lower courts can do—and, I submit, must
do—is carefully evaluate emergent circumstances that
threaten to interfere with the right to vote and conscientiously
evaluate all of the factors that bear on the propriety of judicial
intervention to address those circumstances, including in par-
ticular the possibility of voter confusion.
A variety of factors should inform a court’s decision
whether or not to modify election rules. See Freeing Purcell. On
balance, these factors support rather than undermine the dis-
trict court’s decision here.
The first consideration is whether the proposed modifica-
tions might confuse voters. That risk is minimal here. Only
two of the five modifications that Judge Conley ordered alter
what is expected of voters: the extension of the deadline to
register online or by mail, and the extension of the deadline
Nos. 20-2835 & 20-2844 11
for receipt of absentee ballots. Both of these modifications re-
dound to the benefit of voters, and certainly do not lay a trap
for the unwary. We upheld (i.e., denied a stay as to) compa-
rable changes for the April election, and the Supreme Court
modified the latter only to the extent of requiring that an
absentee ballot be delivered or postmarked on or before
election day.3 Neither we nor our superiors would have done
so had there been a substantial risk of confusing voters. The
other three changes are directed to election officials and what
they must do. By their nature, these changes will not impact
voter decisions.
A second consideration is whether the changes to election
rules will burden election officials and increase the odds that
they make mistakes. Judge Conley gave careful attention to
whether state election officials would have the time and abil-
ity to implement the changes he ordered. The Wisconsin Elec-
tion Commission signaled a preparedness and ability to com-
ply with these modifications (more on these points below),
and the State Executive is not here to contend otherwise.
We must consider, third, the likelihood that voter disen-
franchisement will ensue from the changes Judge Conley or-
dered. The answer here is straightforward: it will not. On the
contrary, his directives are aimed at preventing disenfran-
chisement. And as detailed below, the results of the April
3 In its April decision, this court denied a stay as to an extension of the
deadline to request an absentee ballot and the deadline for receipt of a
completed absentee ballot. Bostelmann, 2020 WL 3619499, at *1. The district
court had also ordered an extension of the deadline to register online for
the April election, see Dem. Nat’l Com. v. Bostelmann, 447 F. Supp. 3d 757,
765–67 (W.D. Wis. Mar. 20, 2020), but a stay was not sought as to that ex-
tension.
12 Nos. 20-2835 & 20-2844
election in Wisconsin demonstrate that only in the absence of
judicial intervention will voters be disenfranchised.
Fourth, there has been no lack of diligence on the part of
the plaintiffs in seeking relief. They sought relief in advance
of the April election, as the pandemic was heating up, suc-
ceeded in part as to that election, and promptly renewed their
pursuit of relief in the immediate aftermath of that election.
After they defeated the Legislature’s attempt to dismiss their
claims, see Dem. Nat’l Com. v. Bostelmann, 2020 WL 3077047
(W.D. Wis. June 10, 2020), they proceeded with discovery,
presented their case at an evidentiary hearing in August, and
obtained a favorable ruling in September. There has been no
dallying on the plaintiffs’ part. For its part, the district judge
responded with both alacrity and attention to detail. But ac-
cording to this court, which has retroactively announced a
May deadline for any changes to election rules, it was all for
naught—their work was over before it began.
Fifth and finally, although the election is drawing close,
the district judge issued his injunction six weeks prior to the
election, leaving ample time for Wisconsin election officials to
alter election practices as ordered and communicate the
changes to the public, and for his judgment to be reviewed by
this court and, if necessary, by the Supreme Court.4 This is a
4 As the Gear plaintiffs point out, other circuit courts have upheld injunc-
tions modifying state election procedures in the immediate run-up to elec-
tions when the courts deemed the modifications necessary to prevent
voter disenfranchisement. E.g., League of Women Voters of the U.S. v. Newby,
838 F.3d 1, 12–15 (D.C. Cir. 2016) (2-1 decision) (six weeks before election);
Obama for Am. v. Husted, 697 F.3d 423, 436–37 (6th Cir. 2012) (one month
before election); U.S. Student Ass’n Fdn. v. Land, 546 F.3d 373, 387–89 (6th
Cir. 2008) (2-1 decision) (six days before election).
Nos. 20-2835 & 20-2844 13
far cry from April, when the court’s injunction was issued just
eighteen days prior to the election and was modified to grant
additional relief just five days prior to the election. The Covid-
19 pandemic is no longer new but neither is it a static phe-
nomenon; infection rates have ebbed and surged in multiple
waves around the country and it is only now that Wisconsin
is facing crisis-level conditions. I suppose that the district
court could have issued a preliminary injunction in May
based on the experience with the April election, as my col-
leagues suggest, but the defendants no doubt would have ar-
gued that it was premature to deem modifications to the elec-
tion code warranted so far in advance of the election,5 and
there is a fair chance that this court might have agreed with
them. Wisconsin infection rates in early May were less than
one quarter of what they are now. Nothing in Purcell or its
progeny forecloses modifications of the kind the district court
ordered in the worsening circumstances that confront Wis-
consin as the election draws nigh. Otherwise, courts would
never be able to order relief addressing late-developing cir-
cumstances that threaten interference with the right to vote.6
5In fact, the defendants did argue precisely that in moving to dismiss the
DNC’s complaint shortly after the April election took place. See Dem. Nat’l
Com. v. Bostelmann, 2020 WL 3077047 (W.D. Wis. June 9, 2020).
6 Professor Stephanopoulos cites the Bipartisan Campaign Reform Act’s
special restrictions on campaign ads imposed within 60 days of an elec-
tion, and the Military and Overseas Voter Empowerment Act’s require-
ment that absentee ballots be sent to certain voters at least 45 days prior to
an election, as possible guideposts for determining when the eleventh
hour has arrived for judicial intervention into an election. Freeing Purcell.
Obviously, we are past both reference points here. But Stephanopoulos
himself argues that this sort of deadline (which, of course, the Supreme
14 Nos. 20-2835 & 20-2844
The court’s second rationale for granting a stay—that “the
design of adjustments during a pandemic” is a task for elected
officials rather than the judiciary—announces an ad hoc
carve-out from the Anderson-Burdick framework for the re-
view of state election rules. See Anderson v. Celebrezze, 460 U.S.
780, 103 S. Ct. 1564 (1983); Burdick v. Takushi, 504 U.S. 428, 112
S. Ct. 2059 (1992). That framework does call for deference to
state officials, depending upon the degree of restriction that
state election rules impose on the right to vote: severe re-
strictions demand strict judicial scrutiny, whereas modest,
unexceptional restrictions enjoy a presumption of validity. Id.
at 434, 112 S. Ct. at 2063–64. But what the majority proposes
is total deference to state officials in the context of pandemic,
with no degree of judicial scrutiny at all. That I cannot en-
dorse. Communicable diseases can impose real and substan-
tial obstacles to voting, and voting rules that are unobjection-
able in normal conditions may become unreasonable during
a pandemic, when leaving one’s home and joining other vot-
ers at the polls carries with it a genuine risk of becoming seri-
ously ill.
Notably, the Wisconsin Election Commission, whose
members are appointed by two sets of elected officials—the
Legislature and the Governor—was represented in the litiga-
tion below. As I noted at the outset, the Commission has ac-
ceded to the district court’s injunction and has not sought a
stay. As long as we are discussing deference to state officials,
the views of the Commission, which is charged with enforc-
ing Wisconsin’s election rules, ought to count for something.
Court has yet to adopt) should not be conclusive in assessing the propriety
of judicial intervention.
Nos. 20-2835 & 20-2844 15
Justice Kavanaugh’s concurrence in Andino posits that a
state legislature’s decision whether or not to alter voting rules
in response to the Covid-19 pandemic ordinarily should not
be second-guessed by the judiciary, which lacks the legisla-
ture’s presumed expertise in matters of public health and is
not accountable to the people. 2020 WL 5887393, at *1. But
state legislatures do not possess a monopoly on matters of
public health, see, e.g., Elim Romanian Pentecostal Church v.
Pritzker, 962 F.3d 341 (7th Cir. 2020) (reviewing Governor’s
executive order restricting size of public assemblies in light of
public health emergency), and when state government is di-
vided as it is in Wisconsin, stalemates occur. When a state
proves unwilling or unable to confront and adapt to external
forces that pose a real impediment to voting, it places into
jeopardy the most cherished right that its citizens enjoy. (The
debacle that occurred with respect to in-person voting in Wis-
consin on April 7, as I discuss below, makes that point all too
clear.) The right to vote is a right of national citizenship. Dunn
v. Blumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 999–1000 (1972).
It is essential to the vitality of our democratic republic. E.g.,
Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535 (1964)
(“No right is more precious in a free country than that of hav-
ing a voice in the election of those who make the laws under
which, as good citizens, we must live.”).7 And no citizen of
Wisconsin should be forced to risk his or her life or well-being
in order to exercise this invaluable right. Wholesale deference
7Indeed, the irony of Justice Kavanaugh’s rationale is that unchecked def-
erence to the state legislature as to voting procedures during a pandemic
may render legislators unaccountable to voters wishing to exercise their
franchise.
16 Nos. 20-2835 & 20-2844
to a state legislature in this context essentially strips the right
to vote of its constitutional protection.
I submit that our foremost duty in this case is to protect
the voting rights of Wisconsin citizens, which are seriously
endangered, rather than discretionary action (or inaction) by
one branch of state government, in the face of a pandemic. My
evaluation of the district court’s injunction proceeds on that
understanding.
A central premise of the Legislature’s request for a stay of
the changes that Judge Conley ordered to Wisconsin’s elec-
tion rules is that the ability to register and/or vote in person
remains a perfectly acceptable alternative to any Wisconsin
voter who is unable to register in advance of the election and
to return an absentee ballot prior to election day. Were these
ordinary times, I would have no difficulty agreeing with the
Legislature. But what the Legislature downplays—indeed,
barely acknowledges in its briefs—is the concrete risk that a
100-year pandemic, which at present is surging in Wisconsin,
poses to anyone who must brave long lines, possibly for
hours, in order to register and vote in person.
Historically, the vast majority of Wisconsin voters have
cast their ballots in person, and Wisconsin’s election system
has evolved against that backdrop, with provisions for absen-
tee voting having served as a courtesy for the minority of vot-
ers whose work, travel, or other individual circumstances
presented an obstacle to voting in person on election day.
D. Ct. Op. 15, 39. Absentee ballots have often constituted less
than 10 percent of ballots cast in Wisconsin, and, until this
year, never more than 20 percent. D. Ct. Op. 15. Voters have
also relied heavily on the State’s liberal provision for same-
day voting registration, with some 80 percent of all Wisconsin
Nos. 20-2835 & 20-2844 17
voter records reflecting some use of this feature. D. Ct. Op. 39
(citing R. 532 at 58.) The Covid-19 pandemic has turned this
in-person voting paradigm on its head, as Judge Conley em-
phasized. Whereas, in the April 2019 election, voters re-
quested (and were sent) a total of 167,832 absentee ballots
(D. Ct. Op. 12 n.9), one year later, that total increased nearly
eight-fold to 1,282,762 (D. Ct. Op. 12), with absentee ballots
comprising 73.8 percent of ballots counted in the April 2020
election (D. Ct. Op. 15).
The strain that the pandemic and the sudden, unprece-
dented preference for absentee voting placed on state and lo-
cal officials had predictable results in the April 2020 election.
Election officials scrambled to keep up with the overwhelm-
ing demand for absentee ballots. Between April 3 and April 6
(the day before the election), local officials were still in the
process of mailing more than 92,000 absentee ballots, virtually
all of which were sent too late for them to be filled out and
mailed back by election day. D. Ct. Op. 13. Another 9,388 bal-
lots were timely applied for but never sent. D. Ct. Op. 13. Ap-
proximately 80,000 absentee ballots were completed and post-
marked on or before election day but were only received by
election officials in the six days after the statutory deadline for
such ballots. D. Ct. Op. 17. These ballots would not have been
counted but for the district court’s order, sustained by this
court and modified by the Supreme Court, extending the
deadline.
Notwithstanding the fact that nearly three-quarters of the
votes cast in the April 2020 election were via absentee ballots,
in-person voting in that election presented challenges of its
own. Poll workers were in short supply, as individuals who
would normally have staffed the polls (many of them
18 Nos. 20-2835 & 20-2844
seniors8) stayed away in droves, particularly in urban loca-
tions. Milwaukee, with a population of 592,025, normally op-
erates 180 polling sites. The city could manage to open only
five on April 7. D. Ct. Op. 16. Green Bay, population 104,879,
normally operates 31 polling sites. On April 7, just two were
open. D. Ct. Op. 16. Lines of voters (thousands of whom had
timely applied for absentee ballots but had not received them)
stretched for blocks and people waited hours to vote.9 Some
were masked, many were not. Some number of voters (we do
not know how many) showed up to vote in person after not
receiving an absentee ballot prior to election day and, discour-
aged by the long lines and wait times, walked away without
casting a vote. D. Ct. Op. 17 (citing voter declarations). Those
who stayed in line faced a discernible risk of becoming
8 See Michael Barthel and Galen Stocking, Older people account for large
shares of poll workers and voters in U.S. general elections, PEW RESEARCH
CENTER: FACT TANK, NEWS IN THE NUMBERS (April 6, 2020),
https://www.pewresearch.org/fact-tank /2020/04/06/older-people-ac-
count-for-large-shares-of-poll-workers-and-voters-in-u-s-general-elec-
tions/; Laurel White, ‘It’s Madness.’ Wisconsin’s election amid coronavirus
sparks anger, NPR (April 6, 2020), https://www.npr.org/2020/04/06
/827122852/it-s-madness-wisconsin-s-election-amid-coronavirus-sparks-
anger.
9 See, e.g., Astead W. Herndon and Alexander Burns, Voting in Wisconsin
During a Pandemic: Lines, Masks and Plenty of Fear, NEW YORK TIMES (April
7, 2020, updated May 12, 2020) (“The scenes that unfolded in Wisconsin
showed an electoral system stretched to the breaking point by the same
public health catastrophe that has killed thousands and brought the coun-
try’s economic and social patterns to a virtual standstill in recent weeks.”);
Benjamin Swasey & Alana Wise, Wisconsin vote ends as Trump blames gov-
ernor for long lines, NPR (April 7, 2020),
https://www.npr.org/2020/04/07/828835153/long-lines-masks -and-plexi-
glass-barriers-greet-wisconsin-voters-at-polls.
Nos. 20-2835 & 20-2844 19
infected. Although the evidence on this point is mixed, public
health officials determined that 71 individuals contracted
Covid-19 after voting in-person or working at the polls on
April 710; one analysis extrapolates from the available data to
estimate that a ten percent increase in in-person voters per
polling location is associated with an eighteen percent in-
crease in Covid-19 cases two to three weeks later.11
The district court, presented with largely undisputed evi-
dence that (1) the demand for absentee ballots in the forth-
coming general election in November will be even greater
than it was in April (as many as 2 million absentee ballot re-
quests are anticipated), (2) recent cutbacks at the U.S. Postal
Service and the resulting delays in mail delivery will present
an even greater obstacle to registering and voting by mail
than it did in the spring, and (3) persistent concerns about a
shortage of poll workers on election day again raise the spec-
ter of long lines to vote in person, ordered a set of five limited
modifications to Wisconsin election rules aimed at compen-
sating for these conditions and ensuring, consistent with pub-
lic health advice and voters’ obvious preference for absentee
voting, that voters who wish to vote by mail may do so. The
two most significant of these conditions are comparable to
10See David Wahlberg, 71 people who went to the polls on April 7 got Covid-
19; tie to election uncertain, WIS. STATE J. (May 16, 2020), https://madi-
son.com/wsj/news/local/health-med-fit/71 -people-who-went-to-the-
polls-on-april-7-got-covid-19-tie-to /article_ef5ab183-8e29-579a-a52b-
1de069c320c7.html.
11Chad Cotti, Ph.D., et al., The Relationship between In-Person Voting and
COVID-19: Evidence from the Wisconsin Primary, Nat’l Bureau of Economic
Research, Working Paper No. 27187 (May 2020, revised October 2020),
available at https:// www.nber.org/papers/w27187.
20 Nos. 20-2835 & 20-2844
those sustained by this court, as modified in one respect by
the Supreme Court, for the April election. None are opposed
here by the Wisconsin Executive, which is charged with ad-
ministering the election. See Repub. Nat’l Com. v. Common
Cause Rhode Island, — S. Ct. —, 2020 WL 4680151, at *1 (U.S.
Aug. 13, 2020) (noting, inter alia, in denying stay of judicially
ordered modifications to state election law, that “here the
state election officials support the challenged decree …”). To
the extent these modifications intrude modestly upon the
State’s ability to establish its own rules for conducting elec-
tions, they are more than justified by the present pandemic
and the unacceptable risks that in-person voting presents to
the citizens of Wisconsin.
The Legislature challenges Judge Conley’s exercise of dis-
cretion in ordering these modifications as if the Covid-19 pan-
demic presented a quotidian problem in an otherwise routine
election, where the options for voting in-person might repre-
sent an entirely adequate alternative to voting by mail. The
State’s experience with the April election and the current state
of the pandemic in Wisconsin demonstrate the fallacy in this
premise.
As I write this dissent, new infections are surging in Wis-
consin and threatening to overwhelm the State’s hospitals.
Judge Conley noted that in the weeks prior to his decision,
new infections had doubled from 1,000 to 2,000 per day.
D. Ct. Op. 20. As of Tuesday, October 6, a seven-day average
of 2,346 new cases of Covid-19 was reported.12 The Governor
12Wis. Dep’t of Health Servs., COVID-19: Wisconsin Cases (as of October
6, 2020), https://www.dhs.wisconsin.gov/covid-19/cases.htm#confirmed.
Nos. 20-2835 & 20-2844 21
has declared a public health emergency.13 A draft report from
the White House Coronavirus Task Force dated Monday of
last week described a “rapid worsening of the epidemic” in
Wisconsin and placed the State in the “red zone” for Covid-
19 cases, with the third-highest number of such cases per
100,000 population in the country and seventh-highest test
positivity rate. Nearly half of all Wisconsin counties now have
high levels of community transmission. Coronavirus Task
Force, State Report—Wisconsin, at 1 (Sept. 27, 2020).14 Hospi-
talization rates are at record highs in the State, with facilities
in northeast Wisconsin approaching capacity due to the surge
in Covid-19 cases15; the State is now proceeding with plans to
open a field hospital to address the shortage of hospital beds.16
Against this worsening backdrop, the district court credited
13Executive Order No. 90, Office of Wisconsin Governor (Sept. 22, 2020),
available at https://evers.wi.gov/Pages/Newsroom/Executive-Or-
ders.aspx.
14 Available at WASHINGTON POST website, https:// www.washing-
tonpost.com/context/white-house-coronavirus-task-force-report-warns-
of-high-wisconsin-covid-19-spread-in-wisconsin/e5f16345-fcb4-4524-
975e-8011379ef0da/.
15Mary Spicuzza, et al., Some hospitals forced to wait-list or transfer patients
as Wisconsin’s coronavirus surge continues, MILWAUKEE JOURNAL SENTINEL
(Sept. 30, 2020), https:// www.jsonline.com/story/news/2020/09/30/wis-
consin-hospitals-wait-list-patients-covid-19-surge-coronavirus-green-
bay-fox-valley-wausau/3578202001/.
16Mary Spicuzza and Molly Beck, Wisconsin to open field hospital at State
Fair Park on October 14 as surge in coronavirus patients continues in Fox Valley,
Green Bay, MILWAUKEE JOURNAL SENTINEL (October 7, 2020),
https://www.jsonline.com/ story/news/local/wisconsin/2020/10/07/wis-
consin-preparing-open-alternate-care-facility-state-fair-park-state-contin-
ues-face-surge-covid-1/5909769002/.
22 Nos. 20-2835 & 20-2844
the opinion of a nationally recognized expert in public health
surveillance, who opined that “[t]here is a significant risk to
human health associated with in-person voting during the
COVID-19 pandemic[;] [t]here will almost certainly be a sig-
nificant risk of contracting and transmitting COVID-19 in
Wisconsin on and around November 3, 2020[;] [t]he risk of
contracting or transmitting COVID-19 will deter a substantial
portion of Wisconsinites from voting in person on November
3, 2020[;] and [i]ncreasing the ease and availability of absen-
tee-ballot voting options is critical to protecting public health
during the November 3, 2020 election.” D. Ct. Op. 23; Expert
Report of Patrick Remington, M.D. at 1 (R. 44 in Case No. 3:20-
cv-00459-wmc).
Presented with the evidence as to what occurred in April
and what is happening now with respect to the pandemic,
Judge Conley reasonably concluded that (1) a substantial
number of eligible Wisconsin voters will not meet the October
14 deadline to register online or by mail, leaving them with
only in-person options to register, (2) of the 1.8 to 2 million
registered voters who are expected to timely request absentee
ballots (D. Ct. Op. 20, 47), as many as 100,000 will not be able
to return those ballots by election day through no fault of their
own (D. Ct. Op. 51), and (3) when faced with the risks associ-
ated with registering or voting in-person, and potentially hav-
ing to wait in line for hours in order to do so, some number of
voters will deem the risk too great. These conclusions explain
why he ordered modest adjustments to Wisconsin’s election
rules in order to minimize that possibility.
Of all of us, Judge Conley is the one judge who heard the
evidence first-hand and is closest to the ground in Wisconsin.
We owe deference to his judgment. He considered the
Nos. 20-2835 & 20-2844 23
Anderson-Burdick factors for constitutional challenges to state
election rules. Consistent with Luft v. Evers, 963 F.3d 665, 671
(7th Cir. 2020), he considered the Wisconsin election rules in
their totality in assessing the burdens that those rules, under
the present circumstances, impose on the right to vote. He
considered Purcell’s admonition that judicial orders modify-
ing election rules can result in voter confusion and an incen-
tive not to vote, especially as an election draws closer. 549 U.S.
at 4–5, 127 S. Ct. at 7. He considered this court’s prior ruling
in April granting a stay as to all but two of the modifications
ordered for the April election. Bostelmann, 2020 WL 3619499.
And he considered the Supreme Court’s ruling, issued one
day prior to the April election, which both chastised the dis-
trict court for altering Wisconsin’s election rules within days
of the election but also modified the extension of the ballot-
receipt deadline to require that mailed absentee ballots be de-
livered or postmarked on or before election day and accepted
the deadline change as modified. Republican Nat’l Com., 140
S. Ct. at 1207, 1208.
In view of the fact that this court allowed extensions of the
ballot-request deadline and ballot-receipt deadline to be
implemented in the April election, it is not clear to me why
the majority has decided to stay comparable modifications
(effectively nullifying them) for the November election. Yes,
the Covid-19 virus is no longer a new menace and Wisconsin
election officials have now had the experience of conducting
two elections during the pandemic. But the Wisconsin
election code remains one designed primarily for in-person
voting, whereas the surge of Covid-19 cases in Wisconsin has
only increased the risks associated with in-person voting
since April. The logistical demands posed by absentee voting
will if anything be greater for the November general election,
24 Nos. 20-2835 & 20-2844
with possibly a million additional absentee ballots to be sent
and returned by mail; and with the recently-discovered
cutbacks in Postal Service capacity,17 there is even greater
reason to be concerned about the ability of voters to both
register and vote by mail. Registering and voting in person
remain as alternatives, but no legislator, no election official,
and certainly no judge can assure Wisconsin voters that there
is no risk associated with registering and/or voting in person
as infection rates spike in their communities, especially in
high-population urban areas. Election officials may hope that
more polling places will be open in November than April, but
they cannot guarantee that enough poll workers will show up
on election day to avoid the sorts of long voter lines and waits
that made headlines then. Nor, by the way, can anyone assure
voters that they will not be waiting in line next to one or more
unmasked voters, or one who is contagious with the
coronavirus. Indeed, a lawsuit challenging the Governor’s
mask mandate is presently pending in the Wisconsin courts.18
17 See, e.g., Jacob Bogage, et al., DeJoy pushes back on criticism of changes to
Postal Service, says he won’t restore sorting machines, WASHINGTON POST
(Aug. 24, 2020), https://www.washingtonpost.com/poli-
tics/2020/08/24/dejoy-testimony-usps-house /; Elise Viebeck and Jacob
Bogage, Federal judge temporarily blocks USPS operational changes amid con-
cerns about mail slowdowns, election, WASHINGTON POST (Sept. 17, 2020),
https://www.washingtonpost.com/politics/federal-judge-iss-ues-tempo-
rary-injunction-against-usps-operational-changes-amid-concerns-about-
mail-slowdowns/2020/09/ 17/34fb85a0-f91e-11ea-a275-
1a2c2d36e1f1_story.html.
See Scott Bauer, Conservative law firm seeks to end Wisconsin mask order, AP
18
NEWS (Sept. 28, 2020), https://apnews.com/article/virus-outbreak-health-
wisconsin-public-health-270d663b9411b33a17fc45fdf8ad2720; Molly
Beck, GOP leaders go to court in support of effort to strike down Tony Evers’
mask mandate, WISCONSIN JOURNAL SENTINEL (Oct. 2, 2020),
Nos. 20-2835 & 20-2844 25
Having in mind the shortfalls with the April election and
the current public health crisis posed by the pandemic, it is
not unreasonable for Wisconsin voters to view the option of
in-person registration and voting as a form of Russian rou-
lette. For eligible voters who are unable to register by mail by
the statutory deadline (and for the April election, there were
more than 57,000 people who registered after that deadline,
thanks to the district court’s extension of that deadline,
D. Ct. Op. 17) and for voters who timely request an absentee
ballot but who either do not receive it by election day or re-
ceive it too late to return it by election day (more than 120,000
absentee ballots were not returned by election, see D. Ct. Op.
15), the risks associated with in-person registration and vot-
ing amount to a concrete and unacceptable, and in my view,
severe, restriction on the right to vote. See Luft, 963 F.3d at 672
(citing Burdick, 504 U.S. at 434, 112 S. Ct. at 2063; Anderson, 460
U.S. at 788, 103 S. Ct. at 1569–70; Acevedo v. Cook Cnty. Officers
Electoral Bd., 925 F.3d 944 (7th Cir. 2019)). This is especially
true of individuals who are 65 years of age or older (more than
900,000 people in Wisconsin19), obese (some 40 percent of Wis-
consin adults20), or suffer from chronic health conditions that
render them especially vulnerable to complications from a
https://www.jsonline.com/story/news/politics/2020/10/02/ gop-goes-
court-support-effort-strike-down-mask-mandate/ 3592966001/.
19See Wis. Dep’t of Health Servs., Demographics of Aging in Wisconsin, Am.
Community Survey Statewide & Cnty. Aging Profiles, 2014-18, State of
Wis. Profile of Persons Ages 65 & Older (Jan. 20, 2020),
https://www.dhs.wisconsin.gov/aging/demographics.htm.
20See Tala Salem, Wisconsin obesity rate higher than previous estimates, U.S.
NEWS & WORLD REPORT (June 11, 2018), https://www.us-
news.com/news/health-care-news/articles/ 2018-06-11/wisconsin-obesity-
rate-higher-than-previous-estimates.
26 Nos. 20-2835 & 20-2844
Covid-19 infection (some 45 percent of all adults nation-
wide21).
Of course it is true that voters have the ability to plan
ahead, register early if need be, and request absentee ballots
early in order to ensure that they have adequate time to com-
plete and return their ballots prior to election day.22 But voters
may also reasonably rely on the State’s own deadlines for ad-
vance registration and requesting an absentee ballot as a
guide to the amount of time necessary for their registrations
to be processed and their ballots to be issued, completed, and
returned. Voters do not run the State’s election apparatus or
the U.S. Postal Service; they have no special insight into how
quickly their timely requests to register and/or vote by mail
will be processed by election officials and how quickly the
Postal Service will deliver their ballots. It is not reasonable to
insist that voters act more quickly than state deadlines require
them to do in order to ensure that either the State or the Postal
Service does not inadvertently disenfranchise them because
they are overwhelmed with the volume of mail-in registra-
tions and absentee ballots.
21 See Mary L. Adams, et al., Population-based estimates of chronic conditions
affecting risk for complications from coronavirus disease, United States, 26
EMERGING INFECTIOUS DISEASES J. No. 8 (August 2020),
https://wwwnc.cdc.gov/eid/article/26/8/20-0679 _article.
22 Completing an absentee ballot is not a matter of simply filling it out.
Wisconsin requires absentee voters to have their ballots signed by a wit-
ness. See Wis. Stat. § 6.87(4)(b). Some 600,000 Wisconsin voters live alone
(D. Ct. Op. 21), which means they must seek out someone outside of their
household to sign their ballots. During a time of surging Covid-19 infec-
tions, that is not necessarily a simple task.
Nos. 20-2835 & 20-2844 27
It is also true that voters who receive their ballots just prior
to the election have the option of delivering their ballots to a
dropbox or to the polls on election day. But significant num-
bers of Wisconsin voters lack a driver’s license (including
roughly half of African American and Hispanic residents) and
therefore cannot drive themselves to a poll or dropbox.23 Re-
lying on public transportation, a taxi, a ride-sharing service,
or a lift from a neighbor to make the trip presents difficulties
and risks of its own, which cannot be justified if the voter has
timely complied with existing deadlines and yet cannot meet
existing deadlines through no fault of her own.
I recognize that the district court’s decision to order mod-
ifications to Wisconsin’s election practices represents an in-
trusion into the domain of state government, but in my view
it is a necessary one. We are seven months-plus into this pan-
demic. The Legislature has had ample time to make modifica-
tions of its own to the election code and has declined to do so.
The Wisconsin Elections Commission, divided 3-3 along
party lines, concluded that it lacks the authority to order such
modifications. This leaves voters at the mercy of overworked
state and local election officials, a hamstrung Postal Service,
and a merciless virus. What we must ask, as Judge Conley
did, is whether Wisconsin’s election rules, which were not
drafted for pandemic conditions, effectively restrict a Wiscon-
sin citizen’s right to vote under current conditions. The an-
swer, I submit, is yes. Based on the State’s experience with the
April election, we know it is likely that tens of thousands of
23See John Pawasarat, The Driver License Status of the Voting Age Population
in Wisconsin, Employment and Training Institute, Univ. of Wis.-Milwau-
kee (June 2005), available at https://dc.uwm.edu/eti_pubs/68/.
28 Nos. 20-2835 & 20-2844
voters will not meet the October 14 deadline to register online
or by mail, especially if they are relying on the mail to com-
plete that process. We know that tens of thousands of voters
likely will not be able to return their ballots by mail before
election day, through no fault of their own. We know that reg-
istering or voting in person, especially on election day, will
expose some number of voters to a concrete risk of Covid-19
infection. Collectively, these conditions pose a real and sub-
stantial impediment to the right to vote. Whether that obstacle
is viewed as modest or severe, and whether viewed through
the lens of rational basis review or strict scrutiny, it is unac-
ceptable. The State itself purports to want people to vote ab-
sentee, and yet has done nothing to alter its election rules to
make the necessary accommodations to ensure that voters are
not needlessly disenfranchised by the overwhelming shift
from in-person to absentee voting.
I conclude with a just a few words about each of the indi-
vidual modifications that the district court ordered. Individ-
ually and collectively, these modifications, in my view, repre-
sent a reasonable, proportional response to current conditions
aimed at preserving the right to vote.
Of these, the most important, and in my view, the most
essential of these modifications is the six-day extension of the
deadline for the return of absentee ballots by mail to Novem-
ber 9, 2020, so long as the ballots are postmarked on or before
election day. Of the five modifications ordered by the district
court, none is more directly aimed at protecting the right to
vote, in that it seeks to ensure that ballots that have been
timely cast by voters will be counted. The circumstances that
warranted a similar extension in April are even more serious
now: the Covid-19 pandemic makes it more imperative that
Nos. 20-2835 & 20-2844 29
as many voters as possible vote by absentee ballot; the de-
mand for absentee ballots is virtually certain to be even
greater (record-shattering) than it was in April, placing un-
precedented demands on election officials and the U.S. Postal
Service alike; and cutbacks implemented by the U.S. Postal
Service this summer (not all of which have been suspended or
reversed) threaten recurrent if not worse delays in the deliv-
ery and return of absentee ballots. The fact that some 80,000
ballots were received by mail after election day in April is all
the proof necessary that an extension of the receipt deadline
is vital as a means of protecting the voting rights of tens of
thousands of Wisconsin voters—voters who, it cannot be said
too often, will timely request and complete absentee ballots
but are unable to return them by the election day deadline by
no mistake or omission of their own. Against this, all that the
Legislature offers is a wish to have the results of the election
conclusively determined on election night. But weighed
against the constitutional right to vote, this is thin gruel.
The one-week extension of the deadline to register online
or by mail is reasonable in terms of both the worsening pan-
demic and the slowdown in mail service. As Judge Conley
pointed out, Wisconsin voters are in the habit of using the
State’s same-day registration option to register or update their
registration on election day. Only as Covid-19 infections
surge in Wisconsin may voters now realize that in-person reg-
istration on election day poses unique risks, particularly if
lines at the polls turn out to be as long as they were in April.
At the same time, voters seeking to register by mail may run
into the same problems that absentee voters encountered in
April with delays in the U.S. Mail. A brief extension of the
advance registration deadline is an appropriate response, and
the Wisconsin Election Commission conceded that the
30 Nos. 20-2835 & 20-2844
extension would still leave adequate time for election officials
to update pollbooks with registration information in time for
election day.
The directive to add language to the MyVote and WisVote
websites (along with any relevant printed materials) regard-
ing the “indefinitely confined” exception to the photo i.d. re-
quirement is an extremely limited order aimed at eliminating
voter confusion. Wisconsin law requires voters to present ap-
propriate photographic identification in order to obtain a bal-
lot, whether in-person or by mail. There is an exception to this
requirement for a voter who is “indefinitely confined” due to
age, infirmity, or disability; the signature of the voter’s wit-
ness will be deemed sufficient in lieu of proof of i.d. The Com-
mission’s March 2020 guidance on this exception makes clear
that a voter need not be permanently or totally disabled and
wholly unable to leave one’s residence in order to qualify for
this exception, but this guidance is not easily available to vot-
ers and the district court found that there was a substantial
risk of voter confusion as to the scope of the exception with-
out further guidance. This was a reasonable order.
The order to permit replacement absentee ballots to be
transmitted electronically to domestic civilian voters who
have not received their ballots by mail in the penultimate
week prior to the election (October 22–29) addresses a con-
crete problem that emerged in the April election: not all ab-
sentee ballots will reach voters in time for the election even if
they have been timely requested. Recall that tens of thousands
of ballots were still being mailed out within a few days of the
election, making it impossible for voters to return them by
mail (if they received them at all) by election day. Wisconsin
law prohibits election officials from sending ballots by
Nos. 20-2835 & 20-2844 31
electronic means to anyone but military or overseas voters.
That restriction was modified by judicial order in 2016, see
One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 946–
48 (W.D. Wis. 2016), and until our June 2020 decision in Luft
reversing that modification, election officials were making ab-
sentee ballots available online or by fax as necessary to do-
mestic civilian voters. Restoring that practice for a limited
window of time in advance of the November election makes
eminent sense as a means of protecting the right to vote by
voters who have timely requested an absentee ballot but have
not received it in the mail as the election approaches.
Finally, in view of the severe shortages of poll workers
that hobbled the April election with numerous poll closings
and massive voting delays, the order that local officials be al-
lowed to employ poll workers who are not electors in the
county where they will serve is both necessary and reasona-
ble. Adequate staffing of the polls is essential to minimizing
voter wait times and, in turn, public health risks. Allowing
poll workers (be they civilians or National Guard reservists)
to work outside of their own counties is a modest and entirely
reasonable means of achieving that end, one that poses no risk
to the integrity of the election. The Legislature has articulated
no reason why this accommodation is either unnecessary or
inappropriate.
Given the great care that the district court took in issuing
its preliminary injunction and the ample factual record sup-
porting its decision, I am dismayed to be dissenting. It is a
virtual certainty that current conditions will result in many
voters, possibly tens of thousands, being disenfranchised ab-
sent changes to an election code designed for in-person voting
on election day. We cannot turn a blind eye to the present
32 Nos. 20-2835 & 20-2844
circumstances and treat this as an ordinary election. Nor can
we blindly defer to a state legislature that sits on its hands
while a pandemic rages. The district court ordered five mod-
est changes to Wisconsin’s election rules aimed at minimizing
the number of voters who may be denied the right to vote.
Today, in the midst of a pandemic and significantly slowed
mail delivery, this court leaves voters to their own devices.
Good luck and G-d bless, Wisconsin. You are going to
need it.