A unanimous federal appeals court upheld a series of GOP-authored election laws — including restrictions on early, in-person voting — and ruled while the changes were designed to give Republicans a political advantage, they are nonetheless constitutional.
Yesterday’s decision means early voting is now limited to the two weeks before an election, roughly a third of the window that communities such as Madison and Milwaukee have offered in recent years. It also upheld other restrictions such as residency requirements and a ban on faxing an absentee ballot that Republicans approved shortly after taking full control of the state Capitol in 2011.
State Dem Chair Ben Wikler called the decision “an outrageous assault on our democracy.”
But Senate Majority Leader Scott Fitzgerald, R-Juneau, said the decision “puts municipalities in every corner of Wisconsin closer to equal footing when it comes to early in-person voting.” Republicans have repeatedly complained about heavily Dem Madison and Milwaukee offering a longer window for in-person absentee voting than GOP areas of the state.
Barring a successful appeal to the U.S. Supreme Court, the ruling also means changes to how Wisconsin’s elections are run just four months before the state is expected to play a key role in the presidential race.
“This is a win for fair elections,” Fitzgerald said.
The ruling — coming more than three years after the court heard oral arguments — was a setback for those who challenged various GOP election law changes.
Restoring the residency requirement means voters must be at a residence for at least 28 days before casting a ballot from their address. That means those who move within that window before an election must cast an absentee ballot from their old address.
Still, the three-judge panel also upheld a district judge’s ruling that college students could use an expired student ID to vote. It also ruled federal law preempts a requirement that college and university dorm lists include citizenship information. That requirement had been enjoined by U.S. District Judge James Peterson.
Republicans originally restricted early, in-person voting to 10 days before an election, set limits on the number of hours it could be offered, prohibited it on weekends and restricted municipalities to just one site where it could be offered.
But Peterson struck down the restrictions in 2016, finding they intentionally discriminated on the basis of race.
Republicans then approved a new law in the December 2018 lame-duck session that rescinded the restriction on hours and the number of sites and weekends, but sought to limit in-person absentee voting to the two weeks before an election. That law now requires it to end the Sunday before an election. But Peterson again barred enforcement of those restrictions, ruling they violated his earlier ruling.
Those rulings meant municipalities had been able to offer in-person, early voting as soon as ballots were ready, typically a little less than seven weeks before an election.
The appeals court found early, in-person voting “is not a fundamental right in itself” and restrictions on the hours and days it’s offered are constitutional so long as all voters are treated equally. The court also ruled the restrictions Republicans approved must be considered in the context of Wiscon’s other election laws, which the three-judge panel said “make it easy to vote.”
It also rejected Peterson’s ruling that the restrictions were meant to discriminate on the basis of race.
Peterson found “race and politics are correlated: black voters are likely to prefer Democratic candidates.” But the appeals court ruled the GOP-controlled Legislature made the changes “because of politics,” not because Dems voters are more likely to be Black.
“This record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences,” the panel ruled.
Wikler likened the ruling to Republicans forcing thousands to vote in-person during the April 7 election during a pandemic, saying there is “no low they aren’t willing to stoop to grab power.”
The case was decided by three GOP appointees: Frank Easterbrook, Michael Kanne and Diane Sykes, the former Wisconsin Supreme Court justice.
“As Trump and his team become increasingly nervous for November, a Republican-controlled court just made another egregious assault on voting rights in Wisconsin,” Wikler said.
The appeals court ruling involves two separate suits, one handled by Peterson in the Western District of Wisconsin, one by Judge Lynn Adelman in the Eastern District.
Both include rulings on the state’s voter ID law, particularly how to accommodate voters who have trouble obtaining a valid ID card. The court rejected both judges’ injunctions on the issue, but remanded the case back to the district court for one of them to write a new one. The ruling didn’t specify which judge should get the case.
Read the decision: