Wisconsin voters whose absentee ballots are late could still vote under lawsuit

MADISON, Wis. (AP) — Voters in swing state Wisconsin whose absentee ballots don’t arrive by Election Day should be allowed to cast provisional ballots at the polls to ensure their votes are counted, a lawsuit filed Friday argues.

The lawsuit comes amid growing concerns about how quickly the United States Postal Service will be able to deliver ballots ahead of the November midterms. Control of Congress is at stake, and Wisconsin voters will be electing a new governor as well as determining control of the Legislature.

The bipartisan Wisconsin Elections Commission warned the U.S. postmaster general in May that any delay could deprive citizens of their fundamental right to vote. In January, a group of mostly Democratic U.S. senators also wrote the postal service, raising concerns that a change in how it postmarks mail could invalidate many mail-in ballots.

The lawsuit comes after the mail-in ballots of nearly 150,000 California voters were rejected, the vast majority of them because of late postmarks, despite the state’s efforts to count every valid vote in the June primary.

In Wisconsin, at least hundreds of ballots were not counted in the April election because they arrived late, based on an elections commission survey of election clerks. More than 300 ballots in Milwaukee and more than 100 in Fond du Lac were rejected for arriving too late.

The lawsuit was filed in Dane County circuit court by the liberal Madison-based Law Forward firm and Washington, D.C.-based Fair Elections Center on behalf of a voter and the League of Women Voters of Wisconsin.

A spokesperson for the elections commission had no immediate comment.

“Every voter in Wisconsin that puts an accurately requested absentee ballot in the mail on time expects their vote will be counted,” said Debra Cronmiller, executive director of League of Women Voters of Wisconsin, in a statement. “Delays in mail delivery prevent that. It is time to have a remedy for these eligible voters.”

Currently in Wisconsin, voters are prohibited from casting a provisional ballot in person on Election Day. The lawsuit is asking a judge to rule that if a voter’s absentee ballot has not arrived, they can then cast a provisional ballot. Absentee voters in the state can track the status of their ballots, so they would know on Election Day whether it has been received.

Provisional ballots are set aside by election officials and only counted if a voter’s absentee ballot is not delivered on time. If the absentee ballot does arrive on time, the provisional ballot would not be counted.

In Wisconsin, ballots must arrive at the clerk’s office by the end of voting on Election Day in order to be counted.