No, Wisconsin votes don’t have to be counted by 8 p.m. on Nov. 3

As President Donald Trump continues to demand an early call of a winner on election night, a new Facebook post making the rounds suggests he got his wish -- at least in Wisconsin.

The Sept. 28, 2020, Facebook post reads: "A federal judge just ordered Wisconsin must have all ballots counted by 8 p.m. on the day of the election."

In the comments on the post, many offer thanks for sharing the information. Some call for the same order to be given for other states.

One problem: The post is completely fictitious.

In fact, a ruling from a federal judge -- upheld by an appeals panel -- actually does the opposite. It extends the period for which absentee ballots can be counted by nearly a week.

This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook).

Let's look at this more closely.

The first problem is that results have never been tallied by 8 p.m. on Election Day.

That’s when polls close.

And, by state law, anyone in line by 8 p.m. is entitled to vote. That alone might take hours in a high turnout election. So, as a practical matter, there is no way to count all of the votes by 8 p.m. 

Even in pre-pandemic election years, when many fewer absentee ballots are involved, it can take hours to run all of the ballots through machines and get final numbers. That’s because Wisconsin is among a few states that do not allow election clerks to begin that process until Election Day.

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Derrick Van Orden

stated on April 1, 2024 in X, formerly Twitter

You can vote in-person absentee at your clerk’s office on Monday before Election Day.

Clerks -- Republican and Democrat alike -- have long asked for the Legislature to change this. Republican U.S. Sen. Ron Johnson recently called for it as well, but the GOP-controlled Legislature has refused to act.

The Facebook post says a judge issued this ruling but provides no name.

That’s because there is no such ruling.

Historically, state law has held that only absentee ballots received by Election Day can be tabulated. Those that come in later, even if mailed on time, are discarded.

On Sept. 21, 2020, a federal judge ordered a number of changes to procedures. Notably, for our purposes here, he gave Wisconsin voters more time to get their absentee ballots in. As long as the ballots are postmarked by Nov. 3, they can be accepted and counted by clerks through Nov. 9, nearly one week later.

That judge, William Conley, initially put that ruling on hold, so it could be appealed. On Sept 29, a panel of appeals court judges upheld the ruling, putting the extended deadline in place.

That ruling, which was unanimous, came from a three-judge panel of the 7th Circuit Court of Appeals in Chicago, all of whom were appointed by Republican presidents.

The decision was a victory for Democrats, who asked to loosen election rules during the coronavirus pandemic and a setback for Republicans who tried to prevent changes to the timeline of Election Day. 

The ruling, which could be appealed again, also gave voters extra time to register to vote, extending the deadline from Oct. 14 to Oct. 21. 

The Facebook post claims that a judge ruled all ballots in Wisconsin must be counted by 8 p.m. on Election Day.

But the post gets it completely wrong. First, voters in line at 8 p.m. on Election Day can legally cast their vote. No judge made this ruling. 

An earlier ruling from a federal judge -- since upheld by an appeals panel -- actually did the opposite, allowing any absentee ballots returned by Nov. 9 to be counted, as long as they were postmarked by Election Day.

We rate the claim Pants on Fire.