Says it’s illegal to hold an absentee-only election or mail ballots to every registered voter

Wisconsin’s pandemic election had some residents and officials searching for an alternative to in-person voting to mitigate the spread of the coronavirus.

A popular option: Mail-in voting.

Gov. Tony Evers called the Republican-controlled legislature into a special session days before the April 7, 2020 election in an effort to convert it to mail only. Local leaders, including Milwaukee Mayor Tom Barrett and Green Bay Mayor Eric Genrich echoed that request.

As we know, it never happened, and in-person voting occurred despite public health concerns. But Wisconsin will hold two more statewide elections this year, plus a special election for the 7th Congressional District seat on May 12. 

Could we do it then?

State Sen. Chris Kapenga, R-Delafield, broached the subject in an April 6, 2020, email to a constituent who wanted lawmakers to postpone the election and move it to mail. The constituent shared the email exchange with PolitiFact Wisconsin, wondering if it was true.

“Some have advocated for moving to an absentee only election or mailing every registered voter in the state a ballot,” Kapenga wrote. “Currently, this is illegal.”

Is it? Let’s see how Kapenga’s claim rates.

Wisconsin election law

When asked for evidence to support Kapenga’s claim, the senator’s office provided an analysis of state statute from the Wisconsin Legislative Council.

What does the law say?

Wisconsin currently requires elections to be held at polling places — generally a public building — which means those sites need to be open for voting to some extent. Any voter can choose instead to request an absentee ballot and vote by mail, an option more than 1 million voters took advantage of on April 7. 

A vote-by-mail election would also be at odds with Wisconsin’s longstanding policy of allowing same-day voter registration at the polls.

But conducting an election entirely by mail would require a change to state statute. Even states like Washington that are billed as vote by mail still operate voting centers for people to cast ballots before and on Election Day. 

“Some people with disabilities need to use accessible voting equipment,” noted Reid Magney, spokesman for the Wisconsin Elections Commission.

State law also says that local clerks must receive a written application from a voter to issue an absentee ballot, so they can’t simply send them to everyone. They can, however, legally mail ballot applications to voters. 

The City of Milwaukee took advantage of that allowance and is establishing a program for the fall elections that will mail applications and postage-paid return envelopes to voters, in an effort to prevent lines at polling places. 

So, the law is clear: Wisconsin can’t hold an election entirely by mail or send ballots to registered voters. 

But whether that remains true for August and November remains to be seen. Democrats have introduced legislation that would move them primarily to mail, though some polling locations would be open for voters who have a disability or struggle to read, write or understand English. 

Our ruling

Kapenga told a constituent that it’s currently illegal to hold an absentee-only election or mail ballots to every registered voter.

State statute does prohibit both measures as currently written. Lawmakers could change that, but it’s unclear if or when that will happen.

We rate Kapenga’s claim True.