Wisconsin's chaotic primary may just be the beginning. Both major parties are preparing for a monthslong, state-by-state legal fight over how citizens can safely cast their ballots should the coronavirus outbreak persist through November's election.
The outcome of the court battles — expected to litigate mail-in voting rules, voter identification requirements and safe access to polls — may have a significant impact on how many people turn out to vote in hundreds of elections across the country, including the White House race. It will likely play out in presidential battlegrounds amid an already roiling debate over voting rights and protecting access to the ballot.
“We have already seen more litigation, even before COVID, than ever before in 2020,” said Marc Elias, a prominent attorney who represents the Democratic Party on voting issues. “What COVID has done is added fuel to that fire.”
Elias said he expects to file lawsuits within the coming weeks against states that Democrats argue haven't taken adequate steps to protect voters and poll workers during the outbreak. The party is pushing steps to make it simpler to request and return mail-in ballots.
Republicans are ready to fight back. President Donald Trump has already tried to portray voting by mail as suspicious and warned that it could lead to so many people voting that “you'd never have a Republican elected in this country again.” The Republican National Committee will spend some of the $10 million it set aside for presidential year election-related litigation to fight back against Democratic lawsuits over the virus.
Tuesday’s presidential primary in Wisconsin was a preview of confusion the court fights can cause. After Democratic Gov. Tony Evers tried to delay the election at the last minute, a court initially postponed and tweaked the rules for the contest, only to have the U.S. Supreme Court on Monday night reinstate many of the original rules and the election.
The election went on as planned — although Milwaukee opened just five of its 180 in-person polling places after hundreds of poll workers declined to show up. Voters cast ballots while wearing protective masks and stood in long lines, trying to keep a safe distance in a state where the virus has killed 92 people.
Only five states send ballots to all voters to be returned through the mail. Roughly one-third of states require a formal excuse to procure an absentee ballot that can be sent in remotely, including the swing state of New Hampshire, which has yet to designate the pandemic as a legitimate reason to get a mail ballot. Other states crucial to the presidential contest, like Wisconsin and North Carolina, require a witness to sign an application for a mail ballot — a requirement that can be difficult to meet for voters in quarantine.