Dane County Clerk Scott McDonell on Wednesday gave all Dane County voters the go-ahead to indicate they are indefinitely confined to avoid having to upload their voter ID when requesting an absentee ballot due to the COVID-19 pandemic.
The recommendation, which he said is legal, comes as some older voters have complained they aren’t able to upload their photo IDs electronically, which is a general requirement to request an absentee ballot.
It’s not clear whether McDonell’s recommendation is actually legal, however. Wisconsin law says people can certify they are indefinitely confined due to “age, illness, infirmity or disability.”
According to the Wisconsin Elections Commission, the law does not require any voter to meet a threshold for qualification and indefinitely confined status does not have to be permanent. The commission does not condone abuse of the option, but said “voters of a certain age or in at-risk populations may meet that standard of indefinitely confined until the crisis abates.”
In an email to clerks, McDonell said voters are confined due to the pandemic, and when Gov. Tony Evers’ stay-at-home order is lifted, the voter can change their designation back by contacting their clerk or updating their information on myvote.wi.gov.
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said McDonell is “trying to create an exception in the law that doesn’t exist.” He said McDonell, as Dane County clerk, does not have the authority to create such an exception.
“Ironically, the clerk may be disenfranchising these people,” Esenberg said. “They’re going to be improperly registered to vote or improperly cast an absentee ballot and if somebody challenges that ballot down the line, they’re probably going to win.”
Still, because there is no evidence voters need to provide to show they are indefinitely confined, such a challenge may be impractical.
McDonell later clarified that voters who do not need to be indefinitely confined shouldn’t use the indefinitely confined option.
Voter ID has been a politically contentious issue since Republicans passed it in 2011 to address a minuscule amount of voter fraud. Its implementation was delayed until 2015 as it faced legal challenges, and Democrats say it has discouraged low-income and minority voters from participating in elections.
Complaints over providing voter ID to vote absentee come as state officials are urging voters to vote by mail if at all possible to reduce crowding on Election Day, which could increase the risk of poll workers and voters contracting the COVID-19 coronavirus.
Local clerks had issued 595,195 absentee ballots as of Wednesday morning, a spring election record, according to the Wisconsin Elections Commission.
“People are reluctant to check the box that says they are indefinitely confined, but this is a pandemic,” McDonell said in an email to local clerks. “This feature in our law is here to help preserve everyone’s right to vote.”
McDonell said voters can visit myvote.wi.gov to request an absentee ballot, where they should check the box that reads, “I certify that I am indefinitely confined due to age, illness, infirmity or disability and request ballots be sent to me for every election until I am no longer confined or fail to return a ballot.”
Once that box is checked, a voter can skip the step of uploading an ID in order to receive a ballot for the April 7 election.
Identifying as “indefinitely confined” is only an option for those who are already registered to vote. Eligible voters may register to vote online or by mail until March 30 due to a recent federal court order, but registering online still requires a valid, unexpired Wisconsin driver’s license or Wisconsin state ID card.
The address, name, date of birth, and driver’s license number used to register must match the information the Department of Motor Vehicles has on file. Voters can update their address with DMV online. Registering to vote by mail, in-person or with a special registration deputy also requires proof of residence.
The Dane County voter ID pronouncement adds another wrinkle to an already legally fraught election landscape.
Green Bay filed a federal lawsuit Tuesday alleging that local governments are finding it “functionally impossible” to administer the election and maintain social distancing. The lawsuit states that 90% of the city’s 278 poll workers are at least 60 years old, making them especially vulnerable to the virus. Only 54 of the 278 workers had agreed to work the election as of Friday, the lawsuit said.
The city wants a judge to cancel in-person voting, allow the city to send absentee ballots to all registered voters, extend the deadline for registering online or by mail to May 1 and give the city until June 2 to count ballots.
River Falls City Administrator Scot Simpson and Mayor Dan Toland said in a statement Wednesday that they want to express their “frustration with the Governor’s Office regarding in-person absentee and Election Day voting.”
Madison and Middleton have reported half of their election day poll workers have quit because of concerns about COVID-19.