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Political law expert: Absentee extension ruling likely to be struck down

absentee ballot

MADISON (WKOW) -- Voters walked up to the City County Building Monday evening and dropped off envelopes containing their absentee ballots. Just a couple hours earlier, a federal judge ruled voters whose absentee ballots are postmarked by Election Day, November 3, will have their votes counted as long as their clerks receive the ballot by November 9.

The ruling was stayed for seven days, meaning it does not take effect for another week. The judge ordered the stay in anticipation of an emergency appeal.

University of Wisconsin-Madison political law professor Howard Schweber said Monday he expects both the U.S. Court of Appeals and, if challenged again, the United States Supreme Court to strike down Monday's ruling.

"What I expect to happen is this will be appealed to the Seventh Circuit (court of appeals)," Schweber said. "It's quite possible this, and other federal cases, will go to the U.S. Supreme Court and, honestly, I expect this judge to be overruled."

Schweber said that was because both the Seventh Circuit and the SCOTUS, especially following Friday's passing for Justice Ruth Bader Ginsburg, lean conservative.

"I don't mean to suggest that the outcome is simple partisanship but part of a conservative judicial philosophy is insisting that states have prerogative, state legislators, in particular, have prerogatives to make rules on these questions as they see fit," Schweber said.

Prior to Monday's ruling, Dane County Clerk Scott McDonell said he expected eight out of every 10 Dane County voters to cast an absentee ballot for the presidential election.

"There's a very high request rate in Dane County and a high return rate," McDonell said.

The Madison City Clerk's office posted on Twitter Monday a picture showing crates full of absentee ballots people had already returned.

McDonell said he encouraged voters to return their absentee ballots via the mail or via drop boxes until one week before Election Day. McDonell said once there is less than a week until November, it would be safer to drop off the ballot in-person.

"A lot of town halls and village halls already have one built into their town hall for receiving payments and I know Madison is rolling out a bunch of them," McDonell said.

McDonell added that returning an absentee ballot early gives clerks and voters more runway to correct any errors with a ballot. He said a common problem so far was with voters' paperwork and missing necessary signatures.

"One of the things that is a concern is folks not filling out their envelope all the way," McDonell said. "You gotta make sure you signed it. You gotta make sure your witness signed it. Make sure everything is filled out on the exterior of your absentee ballot."

Schweber said he expected more legal challenges ahead of the election from both progressive and conservative advocacy groups and even from the political parties themselves. While Monday's ruling would mean we wouldn't know who won the key battleground state of Wisconsin until a week after Election Day, Schweber said the public should already brace for a delayed result -- one that will follow a flurry of cases regarding the collection and tabulation of absentee ballots.

"In many ways, what's going on is less important for its effects right now than for the way it's laying groundwork for chaos to come," Schweber said. "And I think that chaos will be considerable."

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