EMERGENCY DOCKET

Supreme Court leaves RFK, Jr., on ballots in Wisconsin, Michigan

The Supreme Court on Tuesday declined to order the removal of Robert F. Kennedy, Jr.’s name from ballots in Wisconsin and Michigan. Kennedy suspended his campaign in August and endorsed former President Donald Trump. But election officials in Wisconsin and Michigan rebuffed Kennedy’s request to withdraw his name from the ballot. That led to litigation in both battleground states, where Trump and Vice President Kamala Harris are locked in extremely tight races.

There were no public dissents from the decision to deny Kennedy’s request in the Wisconsin case. Justice Neil Gorsuch dissented from the denial of relief in the Michigan case.

Kennedy announced his bid for president – first as a Democrat, then as an independent – in 2023. On Aug. 6, 2024, he submitted nomination papers and declared his candidacy to Wisconsin’s election commission.

Less than three weeks later, on Aug. 23, Kennedy announced that he was suspending his campaign and attempted to withdraw his name from the ballots in Wisconsin and Michigan.

On Aug. 27, the Wisconsin Election Commission voted to deny Kennedy’s request. It cited a state law providing that anyone who “files nomination papers and qualifies to appear on the ballot may not decline nomination. The name of that person shall appear upon the ballot except in case of death.”

After a state trial court rejected Kennedy’s request for an order that would compel the state’s election commission to remove his name from the ballot, Kennedy went to the Wisconsin Supreme Court, which upheld the lower court’s ruling on Sept. 27. 

Jocelyn Benson, Michigan’s secretary of state, also rejected Kennedy’s effort to withdraw his name from the ballot. Kennedy went first to state court, where a divided Michigan Supreme Court ultimately ruled that Kennedy had not identified a specific law that gave him a clear right to require Benson to remove him from the ballot.

Kennedy next went to federal court, where he alleged that his constitutional rights had been violated and again sought an order barring Benson from putting his name on the ballot. U.S. District Judge Denise Page Hood turned down his request on Sept. 13.

On Sept. 27 the U.S. Court of Appeals for the 6th Circuit upheld that denial, emphasizing that Kennedy’s claims were barred because he had already litigated them or could have litigated them in state court. “At bottom,” Judge Eric Clay – a Clinton appointee – wrote in an opinion joined by Judge Rachel Bloomekatz, a Biden appointee, Kennedy’s “current lawsuit is a re-run of his first.”

Clay also questioned Kennedy’s contention that his supporters would be “confused and angry” with him if his name remains on the Michigan ballot. He noted that Kennedy had sought (but failed) to remain on the ballot in New York.

The full 6th Circuit declined to reconsider Kennedy’s appeal.  

Kennedy came to the Supreme Court last week, seeking emergency orders that would keep his name off the ballot in both states. He argued that forcing him to remain on the ballot against his will violated the First Amendment by compelling him to speak.

In Wisconsin, Kennedy suggested, his name can easily be removed from the ballot by placing a sticker over it – a solution specifically “contemplated by state law and provided for in practice.”

But the Wisconsin Election Commission countered that with just roughly a week to go before the election, “it is not possible to affix tiny stickers to the ballots remaining with clerks, and hundreds of thousands of ballots have been sent to voters, with many already returned.” Trying to do, the commission told the justices, would lead to the kind of “chaos and confusion” that the Purcell principle – the idea that courts should not change election rules just before an election – “warns federal courts to avoid.”

Benson echoed the commission’s concerns, contending that it “is simply no longer possible” to remove Kennedy’s name from the ballot. Ballots were printed by late September, she emphasized, and more than 1.75 million Michigan voters have now already voted.

Benson added that Kennedy had waited too long to come to the Supreme Court. He could have immediately appealed the Michigan Supreme Court’s decision to the Supreme Court, she observed, but instead “made the baffling decision” to go to federal court. 

In a pair of brief unsigned orders late Tuesday afternoon, the justices denied Kennedy’s request to be removed from the Wisconsin and Michigan ballots. Consistent with their normal practice, they did not provide any explanation for their decisions.

Gorsuch dissented from the decision to leave Kennedy on the ballot in Michigan. In a short paragraph, he indicated that he largely agreed with the three conservative judges in the 6th Circuit who would have ordered Benson to remove Kennedy from the ballot.

This article was originally published at Howe on the Court.