MADISON, Wis. (AP) — A federal appeals court on Tuesday upheld a six-day extension for counting absentee ballots in Wisconsin’s presidential election, handing Democrats a victory in their fight to deliver the key battleground state for Joe Biden in November.
The decision, if it stands, means that ballots postmarked on or before Nov. 3 will be counted as long as they are received by Nov. 9. That could mean the winner in Wisconsin won’t be known for days after the polls close. Republicans could appeal the case to the U.S. Supreme Court.
The decision came just two days after the appeals court put the lower court’s ruling granting the extension on hold. The appeals court vacated that ruling, saying Republicans who sued did not have standing. The court gave Republicans one week to argue why the case should not be dismissed.
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WILMINGTON, DELAWARE – JUNE 30: Democratic presidential candidate former Vice President Joe Biden speaks during a campaign event June 30, 2020 at Alexis I. Dupont High School in Wilmington, Delaware. Biden discussed the Trump Administration’s handling of the COVID-19 pandemic. (Photo by Alex Wong/Getty Images)
WILMINGTON, DELAWARE – JUNE 30: Democratic presidential candidate former Vice President Joe Biden speaks during a campaign event June 30, 2020 at Alexis I. Dupont High School in Wilmington, Delaware. Biden discussed the Trump Administration’s handling of the COVID-19 pandemic. (Photo by Alex Wong/Getty Images)
US Democratic presidential candidate Joe Biden answers questions after speaking about the coronavirus pandemic and the economy on June 30, 2020, in Wilmington, Delaware. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
US Democratic presidential candidate Joe Biden leaves after speaking about the coronavirus pandemic and the economy on June 30, 2020, in Wilmington, Delaware. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
US Democratic presidential candidate Joe Biden answers questions after speaking about the coronavirus pandemic and the economy on June 30, 2020, in Wilmington, Delaware. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
TOPSHOT – US Democratic presidential candidate Joe Biden speaks about the coronavirus pandemic and the economy on June 30, 2020, in Wilmington, Delaware. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
LANCASTER, PA – JUNE 25: Democratic presidential candidate former Vice President Joe Biden arrives to speak to families who have benefited from the Affordable Care Act during an event at the Lancaster Recreation Center on June 25, 2020 in Lancaster, Pennsylvania. Biden met with families who have benefited from the Affordable Care Act and made remarks on his plan for affordable health care. (Photo by Joshua Roberts/Getty Images)
LANCASTER, PA – JUNE 25: Democratic presidential candidate former Vice President Joe Biden speaks to families who have benefited from the Affordable Care Act during an event at the Lancaster Recreation Center on June 25, 2020 in Lancaster, Pennsylvania. Biden met with families who have benefited from the Affordable Care Act and made remarks on his plan for affordable health care. (Photo by Joshua Roberts/Getty Images)
LANCASTER, PA – JUNE 25: Democratic presidential candidate former Vice President Joe Biden speaks to Amy Raslevich (C) and her daughter Laura about how they have benefited from the Affordable Care Act during an event at the Lancaster Recreation Center on June 25, 2020 in Lancaster, Pennsylvania. Biden met with families who have benefited from the Affordable Care Act and made remarks on his plan for affordable healthcare. (Photo by Joshua Roberts/Getty Images)
LANCASTER, PA – JUNE 25: Democratic presidential candidate former Vice President Joe Biden speaks during an event about affordable healthcare at the Lancaster Recreation Center on June 25, 2020 in Lancaster, Pennsylvania. Biden met with families who have benefited from the Affordable Care Act and made remarks on his plan for affordable healthcare. (Photo by Joshua Roberts/Getty Images)
Democratic presidential candidate Joe Biden delivers remarks after meeting with Pennsylvania families who have benefited from the Affordable Care Act on June 25, 2020 in Lancaster,Pennsylvania. – Biden has largely remained off the campaign trail and in his Delaware home since mid-March due to the pandemic, although he has begun participating in small-scale events. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presidential candidate Joe Biden speaks about reopening the economy during a round table discussion at Carlettes Backyard Bar & Soul food Restaurant in Yeadon, Pennsylvania on June 17, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presidential candidate Joe Biden holds a roundtable meeting on reopening the economy with community leaders at the Enterprise Center in Philadelphia, Pennsylvania, on June 11, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presidential candidate Joe Biden holds a roundtable meeting on reopening the economy with community leaders at the Enterprise Center in Philadelphia, Pennsylvania, on June 11, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presidential candidate Joe Biden holds a roundtable meeting on reopening the economy with community leaders at the Enterprise Center in Philadelphia, Pennsylvania, on June 11, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presumptive presidential candidate and former Vice President Joe Biden speaks via video link as family and guests attend the funeral service for George Floyd at The Fountain of Praise Church on June 9, 2020, in Houston. – George Floyd will be laid to rest Tuesday in his Houston hometown, the culmination of a long farewell to the 46-year-old African American whose death in custody ignited global protests against police brutality and racism.Thousands of well-wishers filed past Floyd’s coffin in a public viewing a day earlier, as a court set bail at $1 million for the white officer charged with his murder last month in Minneapolis. (Photo by David J. Phillip / POOL / AFP) (Photo by DAVID J. PHILLIP/POOL/AFP via Getty Images)
TOPSHOT – Presumptive Democratic presidential nominee and former Vice President Joe Biden arrives to speak at Delaware State Universitys student center in Dover, Delaware, on June 5, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Former vice president and Democratic presidential candidate Joe Biden meets with clergy members and community activists during a visit to Bethel AME Church in Wilmington, Delaware on June 1, 2020. – Democratic presidential candidate Joe Biden visited the scene of an anti-racism protest in the state of Delaware on May 31, 2020, saying that the United States was “in pain”. “We are a nation in pain right now, but we must not allow this pain to destroy us,” Biden wrote in Twitter, posting a picture of him speaking with a black family at the cordoned-off site where a protesters had gathered on Saturday night. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Former vice president and Democratic presidential candidate Joe Biden meets with clergy members and community activists during a visit to Bethel AME Church in Wilmington, Delaware on June 1, 2020. – Democratic presidential candidate Joe Biden visited the scene of an anti-racism protest in the state of Delaware on May 31, 2020, saying that the United States was “in pain”. “We are a nation in pain right now, but we must not allow this pain to destroy us,” Biden wrote in Twitter, posting a picture of him speaking with a black family at the cordoned-off site where a protesters had gathered on Saturday night. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)
Democratic presidential candidate and former US Vice President Joe Biden (L) departs the Delaware Memorial Bridge Veteran’s Memorial Park after paying respects to fallen service members in New Castle, Delaware, May 25, 2020. – Joe Biden, the presumptive Democratic presidential nominee, emerged from more than two months of seclusion on May 25, wearing a black face mask during a visit to lay a wreath on the day the United States honors its war dead. Biden’s last public appearance was March 15 when he faced off against his former Democratic rival Bernie Sanders for a debate in a television studio held with no live audience. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
Democratic presidential candidate and former US Vice President Joe Biden arrives to pay his respects to fallen service members on Memorial Day at Delaware Memorial Bridge Veteran’s Memorial Park in Newcastle, Delaware, May 25, 2020. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
Democratic presidential candidate and former US Vice President Joe Biden and his wife Jill Biden, leave Delaware Memorial Bridge Veteran’s Memorial Park after paying their respects to fallen service members in Newcastle, Delaware, May 25, 2020. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
Democratic presidential candidate and former US Vice President Joe Biden and his wife Jill Biden, pay their respects to fallen service members on Memorial Day at Delaware Memorial Bridge Veteran’s Memorial Park in Newcastle, Delaware, May 25, 2020. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
Democratic presidential candidate and former US Vice President Joe Biden with his wife Jill Biden, pay their respects to fallen service members on Memorial Day at Delaware Memorial Bridge Veteran’s Memorial Park in Newcastle, Delaware, May 25, 2020. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
WASHINGTON, DC – APRIL 28:
Former Vice President Joe Biden speaks with Hillary Clinton during The Impact of COVID-19 on Women virtual town hall event as seen livestreaming on a laptop in Washington, DC on April 28, 2020. During the event, Hillary Clinton endorsed Joe Biden for president. (Photo by Carolyn Van Houten/The Washington Post via Getty Images)
LOS ANGELES – APRIL 21: James chats with Joe Biden Melanie C from his garage on THE LATE LATE SHOW WITH JAMES CORDEN, scheduled to air Tuesday, April 21, 2020 (12:37-1:37 AM, ET/PT) on the CBS Television Network. Photo is a screen grab. (Photo by CBS via Getty Images)
UNKNOWN LOCATION – APRIL 13: In this screengrab taken from JoeBiden.com campaign website, U.S. Sen. Bernie Sanders (I-VT) endorses Democratic presidential candidate former Vice President Joe Biden during a live streaming broadcast on April 13, 2020. Sanders said, “Today, I am asking all Americans—I’m asking every Democrat, I’m asking every Independent, I’m asking a lot of Republicans—to come together in this campaign to support your candidacy.” (Photo by JoeBiden.com via Getty Images)
El exvicepresidente Joe Biden habla con los medios de comunicación y un puñado de simpatizantes en Berston Field House el 9 de marzo de 2020, en Flint, Michigan. (John J. Kim/Chicago Tribune/Tribune News Service via Getty Images)
Democratic presidential candidate, former Vice President Joe Biden arrives to speak at Alexis Dupont High School in Wilmington, Del., Tuesday, June 30, 2020. (AP Photo/Patrick Semansky)
Democratic presidential candidate, former Vice President Joe Biden speaks at Alexis Dupont High School in Wilmington, Del., Tuesday, June 30, 2020. (AP Photo/Patrick Semansky)
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All three judges who issued the ruling were appointed by Republican presidents. Amy St. Eve was appointed by President Donald Trump in 2018; Ilana Rovner by President George H.W. Bush in 1992; and Frank Easterbrook by President Ronald Reagan in 1984.
The Republican National Committee, state GOP and Wisconsin Republican legislators argued against the deadline extension, saying people have plenty of time to obtain ballots and get them back to clerks by Election Day. Their attorney, as well as GOP legislative leaders, did not immediately return messages.
The court said the ruling did not order the state and national Republican parties to do something or forbid them from doing anything.
“Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their members,” the appeals court said. “The political organizations themselves do not suffer any injury caused by the judgment.”
The Legislature does not have standing to represent a general state interest in federal court, the appeals court said.
Republicans across the country have fought attempts to expand voting, particularly in battleground states like Wisconsin. Democrats contend the move is meant to suppress the votes of people more likely to vote Democratic.
“We welcome the court’s decision to expand voting in Wisconsin so that more voters have the opportunity to register and have their voices heard in this election,” said Courtney Beyer, spokeswoman for the Wisconsin Democratic Party. “We will continue to ensure Wisconsinites have the information they need to successfully cast their ballot.”
Absentee ballots are normally due in local clerks’ offices by 8 p.m. on Election Day to count. But the Democratic National Committee, the state Democratic Party and allied groups including the League of Women Voters sued to extend the deadline after the April presidential primary saw long lines, fewer polling places, a shortage of workers and thousands of ballots mailed days after the election.
“All Wisconsin voters—regardless of their party or where they live—benefit from election procedures designed to be safe and effective during the ongoing challenges of voting during a pandemic,” said Farbod Faraji, an attorney for Protect Democracy, a liberal group involved with the lawsuit. “Today’s decision paves the way from a safer, more inclusive election in November”
U.S. District Judge William Conley ruled Sept. 21 that ballots that arrive up to six days after Election Day will count as long as they’re postmarked by Election Day. State election officials anticipate as many as 2 million people will cast absentee ballots to avoid catching the coronavirus at the polls. That would be three times more absentee ballots than any other previous election and could overwhelm both election officials and the postal service, Conley wrote.
As of Tuesday, more nearly 1.2 million absentee ballots had been requested and more than 308,000 had been returned.
Conley also extended the state’s deadline for registering by mail or electronically by seven days, from Oct. 14 to Oct. 21 and declared that poll workers can work in any county, not just where they live. Clerks have reported fears of the virus caused shortages of poll workers in both Wisconsin’s spring presidential primary and state primary in August. Loosening the residency requirements could make it easier to fill slots.
The 7th Circuit upheld both of those rulings as well.
Trump won Wisconsin by less than 1 percentage point — fewer than 23,000 votes — in 2016 and the state figures to be a key battleground again in 2020. Polls show Biden with a slight lead but both sides expect a tight race.
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