Badger State Shame: What Actually Happened in Wisconsin

Wisconsin, voting, coronavirus
Voters stand in a long line in the pouring rain outside Marshall High School in Milwaukee, WI, on April 7, 2020. Poll workers passed out garbage bags for people to use for protection from the storm. Photo credit: Wisconsin Center for Investigative Journalism / Flickr (CC BY-NC-ND 2.0)
Reading Time: 16 minutes

While some people are happy with the outcome of Wisconsin’s primary, the ongoing litigation is a reminder that what happened there on April 7 is an omen of bad things to come as the coronavirus pandemic meets electoral politics. 

In this week’s WhoWhatWhy podcast, we listen to a conversation between Emily Levy, founder and director of the nonprofit election integrity project Scrutineers.org, and Summer Murshid, a lawyer and election integrity activist who works on the ground in Wisconsin.  

Murshid details the step-by-step legal efforts to cancel the election, the conflicting actions of the courts, and how it all led to some citizens standing in line for six hours in the pouring rain, wearing masks, social distancing, and risking their lives in order to exercise their right to vote. It’s a cautionary tale with deadly serious implications far beyond Wisconsin.

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Jeff Schechtman: Welcome to a special WhoWhatWhy podcast. I’m your host, Jeff Schechtman.

Hundreds of thousands of words have been written about the world during and after COVID, but one thing is clear. It will impact how we conduct elections and not always for the better. The travesty that was the Wisconsin primary last week certainly brought that into bold relief, and we’re going to take a look at that election with a special guest host today, Emily Levy. Emily is the founder of scrutineers.org, an online community with the goal of mobilizing thousands to protect the elections this year and beyond. She’s been a leader in the movement for fair and transparent elections since 2004, working on investigations, organizing, and advocacy. It is my pleasure to present Emily Levy who will introduce our guests today. Emily.

Emily Levy: Thank you, Jeff, and you’re welcome. I’m thrilled to be here today and to have the opportunity to bring on an expert who is on the ground in Wisconsin to help us understand what’s going on there. We have with us today Summer Murshid who is an attorney in Wisconsin. She’s been doing election protection work for the last 20 years and before that, was part of Rock the Vote starting when she was 18 years old. She’s a part of the Election Protection Legal Coordinating Committee and as a member of a bunch of other organizations as well, really knows her stuff and she’s been on the ground in Wisconsin trying to help people make sense of the absurd situation the state has found itself in. Welcome, Summer. I’m so glad you’re here. Thank you for being with us.
Summer Murshid: Thank you so much for having me. I appreciate it and I just appreciate the time that we’re going to be able to spend to talk about what’s going on here because it’s not like anything I’ve ever seen before.
Emily Levy: Tell us what’s different from what you’ve seen before.
Summer Murshid: Yeah.
Emily Levy: Paint the picture for us.
Summer Murshid: Sure. So Wisconsin is obviously in the same crisis that the entire world is in with COVID-19, and going into primary season here, most of us who do election work just kind of assumed that the primary on April 7th would not go forward. The governor of Wisconsin issued his safer-at-home order at the end of March and Wisconsinites have been pretty good about staying home. Schools were canceled. We sort of all just buttoned up and did what we were asked to do so that we could save lives. I’ll be honest and say that really it never occurred to me I think when everything started that we might actually have an election on April 7th.
Emily Levy: And then you didn’t have very much notice that that was indeed going to happen, did you?
Summer Murshid: That’s right. So I’ll set the stage a little bit. I’m sure most of your listeners probably know, but I’ll just kind of give the view from 30,000 feet background here. Our election was scheduled for April 7th. Prior to that, there had been some significant efforts on the part of Governor Evers to work with our Republican-led legislature to try and come up with a plan. Those efforts were largely unsuccessful and so we ended up in sort of a political situation where nobody who had the power to do anything could agree on what should be done. So as is often the case, litigation was filed in federal court and there were a number of lawsuits filed at the end of March that were consolidated before the Western District Court of Wisconsin, Judge Conley. These were a number of different groups. Souls to the Polls was one. The Democratic Party was another. There were [inaudible] Frontera. A Lot of these groups that do voter advocacy and get out the vote efforts filed this lawsuit requesting a number of different remedies from extending the absentee ballot deadline to delay any election to June.
Summer Murshid: All of the cases were consolidated before Judge Conley and in early April, he issued an order essentially saying that the federal court didn’t have the power to stop the election, but it could still do some things to try and help ease the burden on the constitutional rights of voters. The big one was that absentee ballots were going to be accepted later than they normally would would be in Wisconsin. This was primarily because people had been told request an absentee ballot so you can vote from home, which makes sense in the context of a pandemic. So after Judge Conley’s order was issued, the election was back on and we kind of got into gear. The election commission got into gear and absentee ballot requests went through the roof. At that point, Governor Evers issued his executive order which then stopped the election. It was subsequently appealed and both-
Emily Levy: Postponed the election is what you’re saying.
Summer Murshid: Yeah.
Emily Levy: Okay.
Summer Murshid: I’m sorry. Governor Evers’ order canceled or postpone the April 7th election to a later date.
Emily Levy: And at that point when Governor Evers issued that order, some absentee ballots had already been turned in.
Summer Murshid: Correct, because this was late, this was last week.
Emily Levy: Okay.
Summer Murshid: So absentee ballots had already been requested. So for example, I had requested and already returned my absentee ballot.
Emily Levy: So that’s Friday, April 3rd.
Summer Murshid: That’s correct.
Emily Levy: Okay.
Summer Murshid: That’s also the time when we realize the election, we had an extension from Judge Conley on when absentee ballots could be returned. So effectively as we understood it at the end of last week, we were going into the election, people were going to be able to vote in person, but the absentee ballot deadline was extended. So that was going to give a lot of people the opportunity to still request their absentee ballots and then be able to vote from the safety of their own home.
Emily Levy: And were public education programs undertaken to inform voters of that?
Summer Murshid: I think so. I mean it was a lot of information for voters who are already digesting an incredible amount of information with regard to the COVID-19 pandemic. So the election commissioners and municipalities did their best to try and advocate. It obviously varied from sort of locale to locale. Some of the neighborhoods around where I live sent out an email to everybody in their sort of village email saying, “You haven’t requested your absentee ballot. Here’s how you do it. Here’s how we can help you.” The larger cities obviously were behind and so it wasn’t perfect coming into Tuesday, but with the extension of the absentee ballot deadline, there was a little bit of light, right? We thought, “Okay. Folks are at least going to get a little bit of extra time to receive their ballots and then return them.”
Emily Levy: Right. And generally speaking in elections any time something changes whether it’s your polling place or the deadline for something or the method of voting or who’s on the ballot or anything, it has the effect of preventing people from voting, of decreasing either turnout or disenfranchising groups of people. Would you agree?
Summer Murshid: Sure. I mean I think that voting … I think generally, people … So for example, if you change a polling place, that matters very much to people because people who have gone there their whole lives don’t always know to look or they’re voters who don’t have access to technology to be able to look it up. So they just go to their polling place and assume that that’s where they’re going to vote. Yeah, I think anytime you change something, especially something as significant as what’s the protocol for requesting an absentee ballot or a polling place, I think that can impact voter turnout and whether people are able to vote. Sure.
Emily Levy: Okay. All right. So here we are, people. We’re at a place where … How far before the election where people think they have extra time to get their absentee ballots and to return them. And then what happens?
Summer Murshid: Right. And then what happens is Governor Evers, I believe he got some information about some additional COVID-19 deaths and cases over the weekend. He issued an executive order postponing the election which was immediately appealed by the Republican Party and the Republican National Committee.
Emily Levy: I think it looks to a lot of the country and a lot of people who pay attention to elections like those actions by the Republican Party or various representatives of the Republican Party to stop elections from being postponed are malicious in intent. Is there any other explanation for why they would want to stop the election from being postponed?
Summer Murshid: Sure. And obviously, I don’t speak on behalf of either party. Election protection work that I do is nonpartisan. I think the argument that we heard was this is going to greatly impact what we call down-ballot races. Right? And so some of these folks who were on the ballot in Wisconsin, the sort of administrative piece of them taking office, the argument was that that was going to be impacted negatively if the election was postponed.
Emily Levy: Okay. And that included a State Supreme Court seat as I understand it.
Summer Murshid: That’s correct. So Wisconsin votes for its Supreme Court justices and there was a incumbent Supreme Court justice who was running and whose name was on the ballot and he was being challenged. So Dan Kelly is the incumbent and Jill Karofsky, the challenger.
Emily Levy: Now let’s talk about what the final outcome was of all this back and forth before the election.
Summer Murshid: Sure. So at literally the 11th hour, we heard from both the Wisconsin Supreme Court and the United States Supreme Court that the election would go forward on April 7th and-
Emily Levy: Despite the order of the governor.
Summer Murshid: Correct. That effectively, Governor Evers did not have the power to postpone the election.
Emily Levy: So now we have a situation where Wisconsin voters don’t have an extension to the timetable for returning absentee ballots, many of them have not yet received their absentee ballots, it’s election day, and if they want to vote, their only option is to risk their lives, leave home despite the safer-at-home order, and go vote in person. Is that right?
Summer Murshid: Yeah, that’s exactly correct and all of this happening within the space of 24 hours. So an incredible amount of information and turn of events that nobody could have ever predicted or imagined or responded to over the course of six months, let alone a couple of hours.
Emily Levy: So tell us what you observed. Where were you observing from? What was your vantage point? What did you observe and experience on that day, on election day?
Summer Murshid: Sure. Yeah, so Wisconsin Election Protection is a nonpartisan coalition that works with a number of different groups, and there is a national hotline, 866-OURVOTE, which works with volunteers who answer hotline calls. Those phone calls are then escalated to attorneys on the ground. We have a Wisconsin Election Protection Legal Coordinating Committee that checks the information that’s provided by the 866-OURVOTE volunteers who are sort of staffed throughout the country, and then we also respond directly to questions that voters put to that hotline about what’s going on in Wisconsin. So I was in my home office because we’re under a safer-at-home order and I was on a sort of interface that was worked with 866-OURVOTE and the lawyers. The Wisconsin lawyers that were staffing, I just call it Our Vote Live, which is the name of the interface. There were eight of us which wasn’t enough-
Emily Levy: Yeah.
Summer Murshid: … for what was going on. So what happens is someone calls 866-OURVOTE and then the volunteer will take down the information, it will pop up on my screen, and I will call the voter back, find out what’s going on, and then take any number of actions depending on what’s going on. That sometimes means I call the elections commission. That sometimes means I call the clerk directly and ask what’s going on. Sometimes we’ll get in touch with a chief. So on a regular election, we would be fielding all kinds of calls like, “I’m not registered. What proof of residence do I need?” Wisconsin has same-day registration so we can answer those questions pretty easily. What became very clear on the morning of the seventh was this was going to be a really different day.
Summer Murshid: The first call I took was a woman who was out of state who had requested an absentee ballot because she had gone to I think it was Minnesota to take care of her elderly parents during the COVID crisis, make sure they had what they needed, and she had requested her absentee ballot. She was in Minnesota very far away from her polling place. She had not received her absentee ballot. So she said, “What do I do?” And I said, “There is literally nothing that you can do. You don’t have an absentee ballot. If it doesn’t come today and you don’t come to your polling place to vote, you will be disenfranchised. You don’t have an opportunity to vote.” And that was basically every single call I took. Eight lawyers-
Emily Levy: Including from people who were in the state or-
Summer Murshid: Including people who are from in the state, right. So the majority of my calls were, “I don’t have an absentee ballot. I’m in Milwaukee and I don’t have an absentee ballot. I’m in Oshkosh. I’m in Appleton. I’m in Sheboygan. I’m in Hudson.” I mean the breadth and the scope of people who were having to make these choices, it was incredible, but it was exacerbated in different areas. So Milwaukee County had to consolidate its pulling places from 182 to five because they didn’t have any poll workers.
Emily Levy: And was that because the poll workers were afraid of the danger involved in being a poll worker in this time?
Summer Murshid: Right. I think something like 30% of Milwaukee County’s poll workers are over the age of 60 so they’re already an at-risk group, and then to tell them they’re going to have to go and work all day, I mean it just didn’t make any sense. So for some people who called, they could make the choice whether they wanted to go to vote in person based on their own personal circumstances, and other people couldn’t make that choice because they were out of state or they were disabled or they were positive COVID patients who had been ordered quarantined. So my vantage point was really just to take those phone calls in, record what was going on, and then figure out if there was anything we could do for some of our volunteers who were actually at the polling places getting information for us about what was going on.
Emily Levy: And what were you hearing from people who were at the polling places?
Summer Murshid: So our folks didn’t take many people to staff five polling places in Milwaukee County.
Emily Levy: That is a pretty darn thin silver lining.
Summer Murshid: Yeah. So we had a group of amazing volunteers who were out sort of rotating between those five polling places, and what we saw were lines that were three, four hours long, folks trying to social distance but struggling to stay in line that long. Green Bay consolidated to two polling places, I think, from more than 30. There was a hailstorm in Wisconsin. So people were either given the opportunity to stand outside or they were able to go into a gymnasium altogether in the middle of a pandemic. Our volunteers were sort of out getting information about how people were feeling, how long they had been in line, what was it like to be in line in the middle of a pandemic, and why did they make the choice that they made to come out and vote. It was equal parts inspiring that people would say, “Okay. I’m going to go do this,” but also horrifying that they were put in that position.
Emily Levy: I have to say that if you’ve got something like a sixth of the polling places … I don’t have the numbers that you said in my head. You might have lines that are an hour or two long in a typical presidential primary with the normal number of polling places. So that we didn’t see lines that were 24 hours long, sounds to me like it was a low turnout.
Summer Murshid: I can speak anecdotally. I spoke to several people who said, “There’s no way I’m going out.” First of all, you have people who are considered essential workers. They have to go to work. So when are they going to find time to vote? Or you have folks who are essential workers and schools are canceled. Their kids are at home. What are they supposed to do with their kids while they go wait in a six-hour line? Or you have folks who have people in their lives who are immunocompromised who they could go out, but they could bring it back. So I just think that the variation of factors, it was an incredible choice and there’s really no conclusion other than to say that a bunch of people didn’t vote and couldn’t vote.
Emily Levy: So let’s talk about now what. Are there any remedies at this point and what are they? What kind of organizing is happening in Wisconsin or elsewhere in the country that you’re aware of as a result of this disaster?
Summer Murshid: Sure. Yeah. Gosh, I hope there’s some remedies. I know that the folks who brought the case in front of Judge Conley, that case is obviously still open. Right? His decision was this question of a preliminary injunction, whether the election could be postponed, but the case is still pending and he, in his order, contemplated a post-election challenge. Right? What happens and can you show me that people were actually disenfranchised and what is that going to look like? So there’s some questions now about whether there’ll be a focus on the absentee ballot fiasco as we’re calling it, for example, and this is still all playing out. I’ll give you one example. It was recently revealed that there were three bins of absentee ballots that were never postmarked yesterday by the post office. And so what happens to those ballots? There’s evidence to suggest that some absentee ballots were never sent out although they had been requested. So there’s sort of the absentee ballot piece of the story that I think still needs to play out.
Summer Murshid: I think the other place that we’ll probably look at is whether, sort of on a ward by ward basis, minority voters had their preferred candidate, whether they were able or unable to select their preferred candidates which would be a section to the Voting Rights Act claim, and we’ll look specifically kind of ward by ward at what those numbers looked like and whether there was really a decrease in voter turnout. So I think we’re looking at a bunch of different avenues and we’ll be working diligently to analyze the numbers when we get them and figure out where we can plug that into post-election challenges and what those post-election challenges could accomplish.
Emily Levy: In North Carolina, we had the example of an actual do-over of election when fraud was found with partisan people harvesting ballots, going to door to door getting ballots from people, and saying, “We’ll turn them in,” and altering those ballots or not turning them in or basically messing with them. Do you think that’s something that’s a possibility for Wisconsin, that the election could be rerun?
Summer Murshid: I don’t know. I really don’t know. The reason I am answering it that way is because is it a possibility? I suppose. Sure. How we go about that sort of legally and procedurally I think is another question given sort of the pending litigation. I think Judge Conley was, I think he felt like he was put in a very difficult position and I obviously don’t speak for him. He’s a fantastic judge who really identified a conundrum and I think he wished he could have stopped the election. Since he couldn’t, I think he will look at whatever data is presented and whatever analysis is presented in post-election challenges. I think he’ll be very diligent about trying to come up with a remedy to address what I think were constitutional violations.
Emily Levy: Have you heard anything, murmurings from any of the local election officials about whether they might consider not certifying the elections or is that a potential?
Summer Murshid: I have not heard that. I have not heard anything from local or state officials to that effect.
Emily Levy: If listeners want to help with the situation, what would you recommend they do? Are there some ways for people to get involved helping or preventing similar things from happening in other states?
Summer Murshid: Please for the love of God go vote because that’s the only way we can really make a difference. I think the more … I think people were caught off guard because most people don’t request absentee ballots. [inaudible 00:25:04]. So to the extent that people can really be informed and call their local polling sites and municipalities and clerks and find out what are the deadlines. So some states have deadlines for requesting absentee ballots that are much earlier than people even realize. We have in Wisconsin … For example, the Wisconsin Election Commission voted to include quarantine positive COVID patients under this hospitalized voter rule that we have which would allow for an emergency absentee ballot the day of. So finding out kind of what your state has available if you are positive, if you know somebody who’s positive, if you’re in quarantine because you were in contact with somebody, that sort of being as informed as possible I think is going to make a huge difference for states who are kind of grappling with what to do moving forward.
Emily Levy: There are definitely efforts to push in the states where not everybody can vote absentee for what’s often called no excuse absentee voting so that anybody who wants to vote absentee this year should get to. If that requires advocacy, where you, the listener, are, then I really want to encourage you to advocate for that. If you’re not sure how, come join us at scrutineers.org and we’ll help you learn how because that’s part of what we’re there for. What kinds of support does Election Protection need now to do its best work?
Summer Murshid: So the best thing that can happen for us is that people know who we are and they call us. Right? 866-OURVOTE is a national hotline. Lawyers and volunteers staff every single election that happens for primaries and general elections. So that number is such a valuable piece of information. We are able to then sort of find out what’s going on on the ground and be able to work with different states and try to work with the attorneys in those states to figure out what’s going on. We share that information. We compile it in a report every year. Every state does a report after elections so that we can try to identify what’s happening. If you are in Wisconsin and you weren’t able to vote or you didn’t get your absentee ballot, we still want to hear from you.
Emily Levy: That’s so important. Say that again.
Summer Murshid: If you are in Wisconsin and you did not get to vote because you were scared, because you were quarantined, because you didn’t get your absentee ballot on time, we want to hear from you. Wisconsin Election Protection is on Facebook. We are on Instagram and Twitter. We are very responsive. We want to hear from you. I know there’s a lot of news outlets. We were contacted by folks at PBS who are trying to get the word out. I think the more information we can gather, the more information we can put into reports which can be used in litigation to try and make some positive change and see if we can’t fix the wrongs that have been committed on democracy.
Emily Levy: Thank you so much for being here and even more for the work that you and Election Protection and other organizations are doing in Wisconsin to try to sort this out, figure out what remedies there may be, and we really cannot let it be repeated in states around the country. Thank you, Summer, so much for being with us today.
Jeff Schechtman: And thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy Podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.

Related front page panorama photo credit: Adapted by WhoWhatWhy from rochelle hartman / Flickr (CC BY 2.0).

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