Democratic National Committee v. Bostelmann

See Swenson v. Bostelmann, Gear v. Wisconsin State Legislature and Democratic National Committee v. Wisconsin State Legislature

President Donald Trump won Wisconsin by fewer than 23,000 votes in 2016. With Wisconsin likely to be a battleground state again in 2020, some election litigation was perhaps inevitable. But concerns about the impact of the COVID-19 pandemic on the election have spawned even more litigation.

In four lawsuits, treated collectively, U.S. District Judge William Conley issued an order on Sept. 21 that made several changes to the state’s procedures for the upcoming November election in response to the pandemic. Conley extended the deadline for mail-in registration by seven days, from Oct. 14 to Oct. 21. He also extended the deadline for absentee ballots, ordering election officials to count them as long as they are postmarked by Nov. 3 and received by Nov. 9. And to address concerns about possible shortages of poll workers, Conley ordered the state to waive a law requiring local election officials to live in the county where they work.

Conley explained that his ruling was based on experiences during Wisconsin’s April elections – which, he noted, “took place at the outset of the COVID-19 crisis” – as well as the likelihood that “COVID-19 will continue to persist, and may worsen, through November.” As a result, Conley reasoned, the state will almost certainly receive an “unprecedented number of absentee ballots,” which “will again overwhelm” election officials “despite their best efforts to prepare.” Moreover, Conley noted, the absentee-ballot system “is heavily reliant” on the mail, which “continues to face its own challenges.” Conley acknowledged that Wisconsin voters should request ballots as soon as possible, so that they can receive them and then return them, but he countered that so many voters are likely to request absentee ballots that “Wisconsin’s election system sets them up for failure in light of the near certain impacts of this ongoing pandemic.”

Conley put his own order on hold for seven days to give the Wisconsin legislature and Wisconsin Republicans, who entered the case to oppose any changes to the current system, time to seek an emergency appeal. The legislature and the state GOP went to the U.S. Court of Appeals for the 7th Circuit, which on Sept. 27 froze Conley’s order “pending further order” by the 7th Circuit.

In an unsigned opinion on Sept. 29, the 7th Circuit denied the request by the Wisconsin legislature, the Republican National Committee and the Republican Party of Wisconsin to put Conley’s ruling on hold during their appeals. Acknowledging that its ruling “will effectively decide the appeals on the merits” because the election is soon soon, the court of appeals concluded that all three groups lacked a legal right to appeal. “This conclusion is straightforward” with regard to the RNC and the Wisconsin GOP, the court of appeals concluded, because the district court did not require them to do (or bar them from doing) anything. And under state law, the legislature cannot represent the state’s interest, and therefore the legislature does not have the right to appeal either.

The Wisconsin legislature on Sept. 30 asked the court of appeals to seek a ruling from the Wisconsin Supreme Court on whether the legislature has the power to defend state law. Such an opinion, the legislature told the court of appeals, “would provide clarity for citizens, the parties, and the courts (including the United States Supreme Court, which will, in all likelihood, be asked to consider this case by one side or the other … in the very near future).” The court of appeals denied that request in a one-sentence order on the same day, but subsequently granted a motion to reconsider, sending the question to the Wisconsin Supreme Court on Oct. 2.

In an unsigned order, a divided panel of the 7th Circuit put Conley’s order on hold on Oct. 8. The majority first agreed with the legislature that Conley had issued his order too close to the election. The court acknowledged that a “last-minute event may require a last-minute reaction,” but it stressed that it is “not possible to describe COVID-19 as a last-minute event.”

The majority also noted that the Supreme Court has “consistently stayed orders by which federal judges have used COVID-19 as a reason to displace the decisions of the policymaking branches of government.” The legislative and executive branches, the majority wrote, are best positioned to determine “how best to cope with difficulties caused by disease.”

Judge Ilana Rovner dissented. She contended that Conley had “merely ordered a limited, reasonable set of modifications to Wisconsin’s electoral rules” to prevent the well-documented problems that the state experienced with its April elections. By putting Conley’s order on hold, Rovner argued, the majority had adopted a “hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote.” As a result, she wrote, “many thousands of Wisconsin citizens will lose their right to vote despite doing everything they reasonably can to exercise it. This,” Rovner contended, “is a travesty.” “Good luck and G-d bless, Wisconsin. You are going to need it,” Rovner concluded.

Wisconsin voters and Democrats returned to the Supreme Court on Oct. 13 and 14, asking the justices to reinstate the election-related accommodations that Conley had ordered. Justice Brett Kavanaugh, who handles emergency appeals from the 7th Circuit, put the dispute on a fast track, calling for a response to those requests by noon on Friday, Oct. 16.