Wisconsin Presidential Election Litigation: DNC et al. v. Bostelmann et al.

Ahead of the 2020 presidential election, and in the midst of the COVID-19 pandemic, election-related lawsuits were filed across the nation attempting to prevent states from enforcing local elections laws. One such set of cases, collectively known as Democratic National Committee et al. v. Bostelmann et al., attempted to stop the state of Wisconsin from enforcing election laws regulating voter registration, absentee voting, and poll workers in the November 2020 election.

In anticipation of the November election, the Democratic National Committee and a group of individuals sought relief from the challenged laws, which they viewed as an unconstitutional burden on an individual’s right to vote because of the pandemic.[1] The procedural posture of these cases is complicated. But after winding its way through the federal judiciary, with a brief detour at the Wisconsin Supreme Court, the United States Supreme Court ruled just over a week before the election to keep the contested laws in place.

This article examines the winding path this challenge took.

I. The Western District of Wisconsin

In early July, plaintiffs sought a preliminary injunction[2] to stop the enforcement of several provisions of Wisconsin election law during the November election. The plaintiffs challenged these provisions arguing they were unconstitutional under the First and Fourteenth Amendments and, taken as a whole, unconstitutionally burden a person’s right to vote because of the extraordinary pressures placed on the election system due to COVID-19.[3]

To determine when an election law unconstitutionally burdens a person’s right to vote, “a court must weigh ‘the character and magnitude of the asserted injury to the rights’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule.’”[4] The Seventh Circuit recently elaborated on this test, cautioning, “that the burden of a specifically challenged election provision must be considered against ‘the state’s election code as a whole.’”[5]

On September 21, Judge William Conley of the U.S. District Court for the Western District of Wisconsin issued an order where he enjoined and modified the following statutory provisions:[6]

• Extended the receipt deadline for absentee ballots until November 9, 2020 provided the ballots were mailed and postmarked on or before election day on November 3.[7]
• Extended the deadline for online and mail-in voter registration from October 14 to October 21, 2020.[8]
• Enjoined the requirement that absentee ballots be delivered by mail only and allowed voters who requested an absentee ballot between the days of October 22-29, and had their request approved and the ballot mailed, to receive a replacement ballot online if one does not come in the mail in time for the individual to vote.[9]
• Enjoined the requirement that election officials work in the county where they are an elector.[10]

For all four provisions, Conley found that the plaintiffs were likely to succeed on the merits and that, in light of the pandemic, the burden the provisions placed on an individual’s right to vote outweighed the state’s various interests in keeping the provisions in place.[11]

Conley’s rationale for this relief centered on Wisconsin voters’ experiences in the April election. He cited increased absentee voter turnout in the April election,[12] the likelihood of increased absentee voting in the November election,[13] how COVID-19 infections could continue to increase during coming weeks leading up to the November election, and how that increase could strain the Wisconsin elections system.[14] Conley went on to write that, absent similar relief granted by this court during the April election, “tens of thousands of Wisconsin voters would have been disenfranchised…” and that, “absent similar relief, [voters] will be again in November.”[15]

Conley explained how he believes his injunctive relief aligns with recent federal case law regarding judicial intervention in elections. He noted each of the plaintiffs’ requests for relief were examined against Wisconsin’s election system as a whole by considering, “the interplay between the [Wisconsin Election Commission’s], local officials’ and voters’ expressed preference for absentee voting by mail in this election compared to the historic, overwhelming preference for in-person voting.”[16] He further stated that by issuing the order six weeks before the election gives the Wisconsin Election Commission and local election officials enough time to react to avoid voter confusion.[17]

Judge Conley stayed his order for one week to allow the defendants and intervening defendants, including the Wisconsin state legislature, to seek an emergency appeal at the Seventh Circuit.[18]

II. The Seventh Circuit

The intervening defendants-appellants—the Republican National Committee, the Republican Party of Wisconsin, and Wisconsin legislature—quickly appealed to the Seventh Circuit seeking a stay of Conley’s injunction. An interim stay was issued pending review of the case. A panel comprised of Judges Easterbrook, Rovner, and St. Eve issued a unanimous per curiam opinion stating that none of the defendants-appellants had standing to appeal because none of the three appellants has a legal interest in the outcome of this litigation.”[19] The interim stay was vacated and motion for a stay denied.

The Seventh Circuit briefly explained neither the Republican National Committee or Republican Party of Wisconsin had standing because the district court’s order does not affect any of their legal interests and they do not suffer any injury.[20]

The Wisconsin legislature’s lack of standing was addressed separately. While the Seventh Circuit acknowledged state legislatures have standing to litigate in federal court under certain circumstances, they found that none of those circumstances applied in this case. Court precedent allows state legislatures to litigate in federal court “to vindicate a uniquely legislative interest.”[21] The Seventh Circuit determined the interest in this case was not a “unique legislative interest,” not the power to legislate, but rather the constitutional validity of a law, which “a state legislature is not entitled to litigate.”[22]

The Seventh Circuit also rejected the argument that a Wisconsin statute, Wis. Stat. § 803.09(2m)[23], gave the legislature the ability to represent “the state’s interest in the validity of enacted legislation.”[24] In an earlier phase of this litigation that challenged the constitutionality of various election laws in Wisconsin’s April 2020 election, the Seventh Circuit found Wis. Stat. § 803.09(2m) gave the legislature the ability to represent the state itself.[25] However, they determined that in the intervening period the Wisconsin Supreme Court held such an interpretation of Wis. Stat. § 803.09(2m) would violate the Wisconsin Constitution.[26] Therefore, the legislature did not have standing under state statute either. The Seventh Circuit vacated its interim stay of the district court’s decision.

III. Seeking Clarification from the Wisconsin Supreme Court

The legislature filed a petition for reconsideration and asked the Seventh Circuit to seek clarification on the interpretation of Wis. Stat. § 803.09(2m) from the Wisconsin Supreme Court. On October 2nd, the Seventh Circuit certified the following question of law, “[w]hether, under Wis. Stat. § 803.09(2m), the State Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws?” to the Wisconsin Supreme Court and held the petition for reconsideration under advisement.[27] That same day, the Wisconsin Supreme Court granted the certification, accepting the appeal.[28]

Four days later, writing for the majority, Justice Brian Hagedorn (joined by Chief Justice Roggensack and Justices Ziegler and R. Bradley) answered the Seventh Circuit’s question in the affirmative, writing, “the Legislature has the authority to represent the State of Wisconsin's interest in the validity of state laws under § 803.09(2m).”[29] Hagedorn stated that in SEIU v. Vos their holding was limited, and that the Wisconsin Supreme Court did not hold that the institutional interests discussed in that case were the only reasons the legislature could represent the state consistent with the Wisconsin Constitution. [30]

The opinion went on to explain that by enacting Wis. Stat. § 803.09(2m) the legislature created a public policy that gives the body a set of litigation interests, including “when a party challenges in state or federal court the constitutionality of a statute.”[31] Therefore, the legislature’s interests extend beyond its interests as a body and gives it the right to participate as a party “in litigation defending the state’s interest in the validity of its laws” such as the laws enjoined by the district court.[32]

IV. Reconsideration: Back at the Seventh Circuit

In light of the Wisconsin Supreme Court’s opinion, the Seventh Circuit granted the legislature’s petition for reconsideration and on October 8, ruled on the merits. Arguing for a stay, the legislature made two primary points: that a federal court should not change laws regulating elections so close to the date of the election, and also that political officials, rather than the judiciary, are entitled to decide when a pandemic justifies changes to laws that are otherwise valid.[33] In a per curiam opinion, Judges Easterbrook and St. Eve agreed with both arguments, issuing a stay of the district court’s order.

First, the Seventh Circuit explained that the U.S. Supreme Court has held that federal courts should not change electoral rules too close to an election in order to avoid voter confusion. The Seventh Circuit, pointed to two recent Wisconsin-based examples where the U.S. Supreme Court had done so. One, in an earlier phase of this case, the U.S. Supreme Court granted a stay, “to the extent one had been requested,” after the district court modified Wisconsin statutes regulating elections approximately two weeks before the April 2020 election.[34] In the other case, Frank v. Walker, the U.S. Supreme Court prevented a district court from making changes to election statutes two months prior to an election as it was too close to election day.[35] Here, the district court altered election laws less than six weeks before election day (after absentee voters already started voting).[36] The Seventh Circuit explained that while last minute changes were not forbidden in all circumstances, and that when the unexpected happens the judiciary can take those circumstances into account, the COVID-19 pandemic, already in its seventh month, does not justify the changes made by the district court.

Second, the Seventh Circuit believed the district court went too far by rewriting, instead of simply enjoining, certain portions of the Wisconsin statutes, explaining the design of electoral procedures is a legislative matter.[37] The Seventh Circuit stated the Supreme Court had recently stayed orders by federal judges who have used COVID-19 as a rationale to revise the decisions of the legislative branch of government.[38]

The court of appeals stayed the injunction issued by the district court pending the final disposition of the appeals.

Judge Rovner dissented, arguing the Supreme Court’s admonition against enjoining state election laws too close to an election was a cautionary statement not a rule.[39] Rovner continued, arguing that until the Supreme Court expands upon its admonition, lower courts can and should evaluate emergent circumstances that threaten the right to vote, as the district court did in this case.[40] The dissent largely agreed with Judge Conley’s order stating he took “great care” when “issuing the injunction,” concluding, that without the injunction “it is a virtual certainty” that “many voters” will be disenfranchised.[41]

The DNC appealed to the Supreme Court applying to vacate the court of appeals’ stay and reinstate the district court’s order.

V. The United States Supreme Court

On October 26, 2020, the U.S. Supreme Court denied the application to vacate the stay.[42] Chief Justice Roberts, and Justices Gorsuch and Kavanaugh wrote concurring opinions to explain their rationale for denying the application, while Justice Kagan wrote a dissenting opinion, which Justices Breyer and Sotomayor joined.

Chief Justice Roberts’s concurrence differentiates this case from recently denied applications for stays in Scarnati v. Boockvar and Republican Party of Pennsylvania v. Boockvar, which allowed the Pennsylvania Supreme Court’s decision (requiring the state to count mail-in ballots received up to three days after election day provided they were postmarked by election day) to remain in place.[43] Those cases turned on “the authority of state courts to apply their own constitutions to election regulations,” while the present case, “involves federal intrusion on state lawmaking processes.”[44]

Justice Gorsuch’s concurrence highlights the concern of courts substituting their own election deadlines for those of the states. Far from allowing the judiciary to prescribe election laws, which would lead to “a Babel of decrees,” Gorsuch argues, the Constitution provides state legislatures with the primary responsibility for creating election rules.[45] This “tradition” of deferring to the laws state legislatures, the people’s representatives, have adopted should not be changed because of COVID-19.[46]

Justice Kavanaugh’s concurrence writes of three independent reasons for the decision to deny the application. First, the district court’s order in this case “contravened this Court’s longstanding precedents by usurping the proper role of the state legislature and rewriting state election laws in the period close to an election.”[47] Second, the district court overstepped the role the judiciary plays in responding to COVID-19. The judiciary should give significant latitude to the to the legislative branch’s response to “areas fraught with medical and scientific uncertainties.”[48] Doubly so when that response is regarding the regulation of elections, a legislative task, in a pandemic.[49] Third, the district court did not “appreciate the significance of election deadlines,” which are necessary for states to avoid accusations of impropriety or fraud, to efficiently determine the winner, quickly conduct recounts, and certify the election itself.[50] In short, “a State cannot conduct an election without deadlines.”[51]

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Kagan argued that the lower court misunderstood the Supreme Court’s precedent regarding enjoining election laws too close to an election to be about timing alone.[52] Timing is but one factor a court must weigh when determining whether to issue an injunction.[53] Other factors a court should weigh are extraordinary circumstances—such as a pandemic—the clarity of a constitutional injury, and the extent of potential voter disenfranchisement.[54] Kagan believed the district court effectively did so in this case.[55] Further, Kagan did not believe the district court’s order was untimely as the court could not have known the course the pandemic would take in Wisconsin if it had issued the order further in advance.[56] Kagan also pushed back against the Court of Appeals’ justification that the design of election rules is an “electoral task” arguing that is not the case when the rules “infringe upon the constitutionally enshrined right to vote.”[57] Finally, Kagan disagreed with Kavanaugh’s rationale, arguing that it second-guessed the facts as laid out by the district court (about the severity of the pandemic and the potential for it to disrupt the election) and also that the concern about deadlines “disenfranchises Wisconsin citizens.”[58]

Conclusion

In this case, the Supreme Court continued to protect state laws against challenges in federal courts by parties arguing normally constitutional laws are invalid as applied to areas of life affected by the COVID-19 pandemic. The Court reaffirmed its precedent in Purcell that federal courts should not modify laws too close to an election. Further, the Court reinforced that state legislatures, not federal courts, should make the determination of whether to modify state laws in reaction to the pandemic, for elections or otherwise. The Court’s denial of the application to vacate the stay effectively ended the Wisconsin litigation.