Part Two: VOTING AGAINST A PANDEMIC STORM: Wisconsin’s Approach to COVID-19

by Jacques C. Condon

Part two, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.


PART TWO: Voting Against A Pandemic Storm



The Wisconsin electorate’s overarching right to vote can be found in two places, one is the State’s Constitution that outlines the right of suffrage — “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”– and the 26th Amendment to the Constitution of the United States:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Most have probably heard about voter ID issues in Wisconsin, as the question of requiring voter identification has been the subject of great-debate over the last few years.

In the case of League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302, the Wisconsin Supreme Court determined that it was within the legislature’s province to require any person offering to vote to furnish such proof as it deems requisite that he or she is a qualified elector. Per that case, and the law from which it arose, it was deemed that requiring a potential voter to identify himself or herself as a qualified elector through acceptable photo identification does not impose an elector qualification in addition to those set out in Article III, Section 1 of the Wisconsin Constitution.


Of course, the current state of the state has been cast in flux, perhaps a colossal understatement, with the State’s electorate, the country as a whole, and in much of the world, people (and governments) in the midst of what has been identified as a worldwide coronavirus pandemic, Covid-19. In part one of this blog I identified Wisconsin’s latest action, which included Governor Evers’s directive to stay at home, “Emergency Order #12 Safer At Home Order”.

That Governor’s Shut Down Order does not mention voting. Anywhere.

The Governor’s Shut Down Order was accompanied by the Governor’s FAQ sheet. This too fails to mention voting. Anywhere.

The Governor’s Shut Down Order does address open meetings, in part, by directing government bodies to follow the Wisconsin Department of Justice’s Office of Open Government guidance regarding holding government meetings — and consult with the Wisconsin Department of Justice’s Office of Open Government. But voting, at least on the face of the Order, is missing.

Other States, in dealing with their pandemic issues, have postponed elections. Wisconsin has not. As of now. And you need to ask why, or if it should, and what you can or should do.


Fundamentally, much time and money goes into each election and, even more fundamentally, voting is one of the most-American (err, democratic) acts that a citizen of this republic undertakes. Not only have people risked their lives, and lost, for the freedom to vote, it was one of the great debates during the Constitutional Convention of 1787 and is why we, as a nation, have the rights and freedoms that define who we are.

NOTE: If you want other debates, including the first part of my multi-series on election law, it begins with “How Many Years Does It Take to Bake a Constitution?”, found at: to the adoption of the Constitution itself

Wisconsin has an election on April 7 where, among other contested races, a seat on the Wisconsin Supreme Court is up for vote.

While this State, and the Wisconsin State Bar, has taken steps to de-politicize elections, many court-position elections have been postured as a vote between candidates that are either left or right of center, favoring one party, Democrat or Republican, over the other.

This Supreme Court race is no exception.

But what are we to make of the current state-of-flux? Let’s assume that traveling to your local voting place is a permitted activity, per the Order — I am assuming it is because the Order allows for travel for essential government functions and we have this thing called the Constitution, but there is no particular directive one way or another (at the time of this writing).

There are issues, however. The first is whether you want to go, or not. Once again, freely choosing elected positions amongst the populace is one of the very items by which we define our culture, our laws, and our rights.

Likewise, choosing not to vote comes with the right to vote.

The second is you may not feel safe in going given Covid-19, and this is true whether grounded in fact, opinion, actual infection or a psychosomatic anxiety over your wellbeing and that of others.

Yesterday I was at my local grocery vendor (looking for toilet paper — we’re almost out at my house, and the vendor of course had none) and there was no line, so I had a brief discussion with the clerk. I asked if people were still “crazy” over the virus-stuff. The clerk responded, somewhat emotionally (which was a surprise), that it was, and hadn’t let up. He added that this was a terrible place to work. The workers touch every product, they see people constantly, and “the number of infected cases continues to go up and is going to spike”. He expected to get sick and thought it would be better to just shut the whole thing down.

This is one example. Emphasizing at a local level the anxiety by which the government — and it would say the pandemic — has inflicted on folks.

Now consider your local polling place, often manned by retirees, and the same retirees that have been singled out (rightly or wrongly) as the most vulnerable to COVID-19. Indeed, a pandemic is defined by not only its unique strain (for which people as a whole may have no immunities) but its ability to transfer from person to person. For COVID-19, national and local guidelines have been almost parrot-like in reciting the same lines that people should keep those most vulnerable in mind in staying at home and not exposing them to you.

Conversely, take the Governor’s Order. Per that Order, it identifies itself as necessary (without specifics, mind you, which will be the subject of a future post): (1) because “[p]ublic health officials estimate that the actual number of Wisconsinites infected with COVID-19 is significantly higher and likely present in every county in the state”; (2) that “the current growth in the number of people infected, the number of people needing medical care due to COVID-19 will significantly exceed the amount of available healthcare resources”; and (3) the “entire State of Wisconsin – including residents, businesses, community organizations, and government – need to take all possible actions to reduce further spread of COVID-19 to save lives.”

If this is actually true (and we assume it is, based on information that has not been shared), the election is placing a number of the most vulnerable generation — indeed it could be any poll worker, not just one of an octogenarian distinction — exposed to hundreds of thousands of citizens on a single day, and contrary to the direction of government officials at all levels.

Of course, presumably, if you followed guidelines to the letter, acts such as social distancing, hand-washing, etc. should eliminate or greatly reduce the spread even if those among us are sick, yet, if this is also true, then why is there the need for such drastic measures such as orders to stay at home, get off the playground, and don’t gather with anyone outside your family (the subject of more future posts).

If we can be trusted to social distance at a polling place, why cannot we also be trusted to social distance with our neighbor, or a relative, or really anyone, sick or not?

Conspiracy theorists abound as to why the election is proceeding full-steam-ahead despite torpedoes in the water.

I’m not necessarily buying the theory, but here it is.

The theory is that polling places, controlled at a local level, opened early last week in what are deemed as heavily Democrat-based districts, Milwaukee and Dane Counties. Other counties, particularly in areas that the electorate would be largely Republican, did not, or at least not as early. And this voting took place before the Order by the Governor, a Democrat, and before the higher level of paranoia — see my story above — took hold. The theory is that the Democrat vote was in such a large number that it would overcome the Republican vote, particularly with a low turnout on Election Day.

That’s the theory. Probably difficult to prove.

Regardless of theory, the electorate has options.


Enter the lawyers. Last week, a federal court judge granted the request of the Democratic National Committee and state Democratic Party to extend absentee voting and give people more time to use the state’s online portal to register to vote.

Likewise, now pending is a federal court lawsuit, this one filed by the City of Green Bay, asking that the state postpone the April 7 election and mail ballots to all registered voters. Green Bay’s lawsuit is expected to be joined by other communities and groups, and will be opposed, according the Green Bay Press Gazette, by State officials on both sides of the aisle — they want the election to go forward.

And if it does go forward, Joe-Voter will have to decide if he will venture to the polls and cast a vote.

Or vote absentee.

Until March 30 — this coming MONDAY — a voter can request an absentee ballot. Here’s the link:

The registration is done online. You will need to take a picture of your license (or whatever proof complies with voter ID) and include it in the online registration. The ballot is then mailed to you. Here’s the catch:

Your completed absentee ballot must be delivered no later than 8 p.m. on Election Day. The U.S. Postal Service recommends absentee ballots be mailed one week before Election Day to arrive in time.

You cannot sit on it. The election is 12 days away. There is still time to vote absentee, or wait to see what the court’s do, or go to the polls.

And read my next blog entry, coming soon.


Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.

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Jacques C. Condon