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    Wisconsin Lawyer
    April 12, 2021

    Battle for the Ballot Box

    For many Wisconsinites, 2020 felt like a lengthy primer on election law. Here's how it all unfolded, and what we can expect to see in the future.

    Leslie Anne Freehill

    Wisconsin state flag

    In 2020, the COVID-19 pandemic and a hotly contested presidential race focused lawyers and voters alike on a myriad of election laws formerly confined to the dusty recesses of the statutes rarely reviewed other than by city and county clerks. Election litigation began shortly before the April 7, 2020, primary and continued in state and federal courts well into early 2021.

    April 7 Election and Presidential Primary: The Courts Confront COVID-19

    The first indication that 2020 would be no ordinary election year in Wisconsin came with the state’s first reported case of COVID-19, announced in early February after a person appeared with symptoms at a health clinic on Jan. 30, 2020. The state saw its first deaths by mid-March.1 Wisconsin’s spring elections were among the first in the United States to be held during the pandemic. With many voters seeking to avoid exposure to the virus, voters and organizations turned to the courts to modify  requirements for absentee and in-person voting, including the date of the election.

    In Democratic National Committee v. Bostelmann, which consolidated three cases against the Wisconsin Elections Commissioners and staff (WEC), plaintiffs2 sought an injunction to postpone the election or, in the alternative, extend the dates for requesting, returning, and counting absentee ballots. They also sought to enjoin the absentee-ballot witness-signature requirement, arguing that the health risks of in-person voting unreasonably burdened voters.3 The Wisconsin Legislature and the Republican Party of Wisconsin (RPW) intervened and opposed all relief requested, arguing the plaintiffs had not presented enough evidence to demonstrate irreparable harm without an injunction, among other things.4

    Five days before the primary, Judge William Conley of the U.S. District Court for the Western District of Wisconsin granted a preliminary injunction:

    1. extending the Wis. Stat. section 6.87(6) deadline for receipt of absentee ballots from April 7 to April 13, 2020;

    2. extending the Wis. Stat. section 6.86(1)(b) deadline to request absentee ballots from April 2 to April 3; and

    3. enjoining enforcement of the Wis. Stat. section 6.87(2) witness-signature requirements for absentee voters who affirmed they were unable to safely obtain a witness signature.5

    In granting relief, the court was persuaded in part by testimony that election officials would need additional time to get an “avalanche” of timely filed absentee ballot requests fulfilled before April 7.6 However, the court stopped short of granting more sweeping relief requested by some plaintiffs, including postponing the April 7 primary.7

    Leslie FreehillLeslie Freehill, U.W. 2015, Pines Bach LLP, Madison, practices in environmental and land use law, employment law, and civil litigation and appeals. She is experienced in representing clients in state and federal courts, before administrative agencies, and in private arbitration proceedings. She and her colleagues at Pines Bach represented individuals and groups in the 2020 election cases as noted in this article.

    The legislature and the RPW sought a stay of the preliminary injunction from the Seventh Circuit Court of Appeals, which declined to stay the injunction as to the deadline extensions for making absentee ballot requests and returning them to municipal clerks but stayed it as to lifting the witness-signature requirement.8 The U.S. Supreme Court heard an additional stay request. On a 5-4 vote, on the eve of the election, the Supreme Court granted a partial stay but allowed the counting of absentee ballots received after April 7 but by April 13 at 4 p.m., provided that the ballots arriving after April 7 were postmarked on or before that date.9

    The lead-up to the primary also included a petition for original action to the Wisconsin Supreme Court concerning who may claim “indefinitely confined” status on absentee ballots, which enables the voter to avoid certain identification requirements. In Jefferson v. Dane County, the RPW obtained a temporary injunction against the Dane County clerk, who had published a social media post suggesting all voters could claim indefinitely confined status in reliance on Gov. Tony Evers’ most recent Stay at Home Order.10 In its later ruling on the merits, the court concluded neither COVID-19 nor the governor’s order in and of itself rendered a voter indefinitely confined; instead, each individual voter must self-determine qualification for the status.11

    After the primary, the WEC reported that election officials fulfilled a record 1,303,985 absentee ballot requests.12 Of the 1,159,800 returned and counted, 79,054 were postmarked on or before April 7 but received between April 8 and April 13. Absent the injunction, those votes would not have been counted.

    Nov. 3 General Election: The Legal Ins and Outs

    The nascent pandemic of early April was full-blown by the fall, with Wisconsin experiencing the third-worst outbreak in the nation by mid-October. Several of the plaintiffs seeking relief during the April primary sought a similar preliminary injunction applicable to the Nov. 3 general election, again suing the WEC. The Wisconsin Legislature and the RPW again intervened.

    Following an evidentiary hearing, Judge Conley issued an injunction on Sept. 21, 2020, that 1) extended the Wis. Stat. section 6.28(1) deadline for online and mail-in voter registration from Oct. 14 to Oct. 21, 2020; 2) extended the receipt deadline for absentee ballots under Wis. Stat. section 6.87(6) to Nov. 9, 2020, so long as the ballots were mailed and postmarked on or before election day, Nov. 3, 2020; and 3) temporarily enjoined Wis. Stat. section 7.30(2), which requires that poll workers be electors of the counties in which they act as poll workers.13 The judge relied in part on the facts reported by the WEC following the April primary, when he had issued similar relief, and on COVID-19 public health projections into November, which he found would present similar challenges to Nov. 3 in-person voting.14

    The legislature and the RPW, but not the WEC, asked the Seventh Circuit to stay the injunction. On Sept. 29, 2020, that court declined on the grounds that the legislature was not authorized to represent the state’s interests in defending its election statutes.15 Upon request for reconsideration by the legislature, the Seventh Circuit certified the question to the Wisconsin Supreme Court, which concluded that the legislature could intervene.16

    The Seventh Circuit later stayed the injunction, holding that federal election laws should not be changed close to an election as established by the Purcell principle,17 and that political – not judicial – officials should decide whether a pandemic warrants modification of election laws. It explained that although federal courts have “deprecated but not forbidden” changes close to an election, the months-old pandemic was no longer a “last-minute event” requiring a “last-minute reaction.”18 The court further concluded that electoral procedures are a matter of legislative, not judicial, design.19

    Two sets of plaintiffs filed emergency applications to the U.S. Supreme Court to vacate the Seventh Circuit’s stay.20 On Oct. 26, however, the Court upheld the stay, with separate concurrences authored by Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch, and a dissent by Justice Kagan, joined by Justice Breyer and Justice Sotomayor.21 While there was no separate majority opinion, the concurrences of Justice Kavanaugh and Justice Gorsuch made clear that the Court views election law changes as falling squarely within the province of state legislatures, not federal courts, and that the Purcell principle will defeat future challenges to election laws whenever those elections are “close at hand.”22

    Other action took place outside federal court in the months leading up to November. In one instance, Robin Vos (Wisconsin State Assembly speaker) and Scott Fitzgerald (then Wisconsin State Senate majority leader) issued a cease and desist letter to Madison’s city clerk, warning that “Democracy in the Park” events organized by the clerk’s office were an “ad hoc, unsecure, and unlawful approach” to absentee ballot collection, carrying a “grave risk that all ballots … will be challenged in court and ultimately invalidated.”23 Several voters then filed a declaratory judgment action in Dane County, asking the court to declare the events valid, but Vos and Fitzgerald declined to intervene and the court ultimately dismissed the case for lack of justiciability.24

    Meanwhile, in Milwaukee, the RPW issued a similar letter to the city’s Election Commission, warning that any appearances by Milwaukee Brewers or Milwaukee Bucks players or mascots at in-person absentee voting in Miller Park and Fiserv Forum would violate the state’s prohibition on voting site electioneering.25 No such appearances came to fruition.

    Post-election Litigation: Unusual Challenges Shot Down

    Wisconsin reported its election results on Nov. 3, with Joe Biden carrying the state by approximately 21,000 votes – a 0.62 percent margin, within the one-percent statutory margin for requesting a recount.26 On Nov. 18, then President Trump petitioned the WEC for recounts in Milwaukee and Dane counties only, alleging various illegal actions by Wisconsin election officials pertaining to absentee ballots and obstructing access for observation of polling places and vote tabulation. Milwaukee and Dane counties concluded their recounts on Nov. 29, with their respective boards of canvassers certifying net results of 132 votes for Biden in Milwaukee County and of 45 votes for Trump in Dane County. The WEC chairperson confirmed the results of the recount on Nov. 29, and Gov. Evers certified the presidential election results on Nov. 30.27 A stream of challenges promptly followed.

    The Trump campaign filed a petition for original action with the Wisconsin Supreme Court on Dec. 1, requesting that more than 200,000 votes be stricken for allegedly violating statutory requirements, including 170,140 in-person absentee ballots allegedly issued without written applications; 5,517 absentee ballots with witness addresses inserted by election officials; 28,395 absentee ballots issued to indefinitely confined voters without photo identification; and 17,271 absentee ballots returned to polling officials at “Democracy in the Park” events in Madison between Sept. 26 and Oct. 3.28

    The Wisconsin Supreme Court denied the petition on Dec. 3, directing the plaintiffs to the circuit court as the appropriate venue for appeals of the county and WEC determinations pursuant to Wis. Stat. section 9.01(6). Justice Hagedorn separately concurred, highlighting numerous factual disputes best resolved by a circuit court. Justice Roggensack and Justice Grassl Bradley authored dissents. Justice Roggensack opined that original action was appropriate because “time is of the essence” and factual findings could be referred out from the supreme court to a circuit court, while Justice Grassl Bradley declared the majority’s ruling “a death blow to democracy.”29

    Petitioners swiftly refiled their petitions in Milwaukee and Dane County circuit courts. Chief Justice Roggensack consolidated the petitions in Milwaukee County and appointed reserve Judge Stephen Simanek to hear them, a procedure provided by Wis. Stat. section 9.01(6)(b). In a Dec. 11 oral ruling, the circuit court denied the petitions, finding “no credible evidence of misconduct or wide-scale fraud.” The supreme court held oral arguments the next day, bypassing the court of appeals.

    On Dec. 14, the supreme court dismissed the challenge to absentee ballots issued without voter identification to voters claiming “indefinitely confined” status as “meritless” and held the challenges to the remaining three types of ballots were barred by laches.30 Writing for the majority, Justice Hagedorn explained that while the law “allow[s] the challenge flag to be thrown” regarding the conduct of elections, the petitioners had challenged “the rulebook adopted before the season began” – “long after the last play or even the last game.”31

    Although the majority did not review the merits of the claims barred by laches, Justice Hagedorn separately opined that the challenges to in-person absentee ballots issued allegedly without written applications and to those collected at Democracy in the Park events lacked merit, while the practice of municipal clerks adding missing witness addresses to absentee ballot envelopes merited some clarification by the WEC.32 Separate dissents by Justice Roggensack, Justice Grassl Bradley, and Justice Ziegler accused the majority of throwing “the cloak of laches”33 over election issues likely to recur and indicated that those members of the court might have invalidated at least some of the challenged ballots on the merits.34

    Various Trump supporters pursued their own state and federal lawsuits challenging the election results. The most notable of these in state court was a petition for original action filed in the Wisconsin Supreme Court by the Wisconsin Voters Alliance asking the court to nullify the state’s election results and direct Gov. Evers to certify electors hand-chosen by the Legislature instead, based in part on allegations of wrongdoing by the cities of Racine, Kenosha, Green Bay, Madison, and Milwaukee in accepting “liberal-backed” private foundation funds to facilitate absentee voting in each city.35 The Wisconsin Supreme Court denied the petition in a 4-3 decision, with Justice Hagedorn expressing shock at the request to invalidate the entire election,36 while Justice Roggensack, Justice Grassl Bradley, and Justice Ziegler again urged review of the merits, declaring “it is critical … that the public also perceives voting as having been fairly conducted.”37

    Meanwhile, back in federal court, Trump sued the WEC and various state and municipal officials under 42 U.S.C. § 1983, asserting violations of the Electors Clause of the U.S. Constitution and asking the U.S. District Court for the Eastern District of Wisconsin to overturn the election results.38 The Electors Clause directs the states to select presidential electors “in such Manner as the Legislature thereof may direct.”39 Trump alleged, among other things, improper policies and guidance issued by the WEC regarding absentee-voting procedures.

    In a Dec. 12 opinion, the district court dismissed the claims on their merits, finding the claims “are not challenges to the ‘Manner’ of Wisconsin’s appointment of Presidential Electors; they are disagreements over election administration” and conflating the two “would risk turning every Presidential election into a federal court lawsuit over the Electors Clause.”40 Furthermore, the court found, the WEC had administered the election as directed by the legislature when it established the WEC just five years before.41 The Seventh Circuit affirmed, declaring that then President Trump had unreasonably delayed in bringing his claims (“[t[he timing of election litigation matters”) but that, even on the merits, those claims would fail.42

    Wisconsin also saw one of the sensational “Kraken” lawsuits brought by former Trump campaign attorney Sidney Powell in four key states, alleging widespread ballot fraud and international conspiracy. Judge Pepper of the Eastern District dismissed on standing and mootness grounds the plaintiff’s request that the court direct Gov. Evers to declare Trump as winner of the election, opining “[f]ederal judges do not appoint the president in this country. One wonders why the plaintiffs came to federal court and asked a federal judge to do so.”43

    While these cases were enough to take center stage in the weeks leading up to and following Nov. 3, the summary does not even include them all. For example, Kanye West filed an unsuccessful lawsuit to secure his name on Wisconsin’s ballot,44 Green Party candidate Howie Hawkins filed an unsuccessful lawsuit to do the same,45 and the state of Texas brought a novel federal lawsuit seeking to invalidate election results in Wisconsin and three other swing states, which the U.S. Supreme Court denied for lack of Article III standing.46 In short, the maze of 2020 election litigation was nothing short of extraordinary, punctuated by a Congressional certification day certain to reverberate for years to come.

    Implications for the Future

    Now that the highest state and federal courts have weighed in, what might the future hold?

    First, the ins and outs of state election statutes will no longer be an esoteric area of interest for municipal clerks and their staffs and niche attorneys. Public interest in enforcing or modifying those laws continues to grow. This is especially true if voter preference for absentee early voting continues after the pandemic. In April and November 2020, for the first time on record, the majority of total ballots cast in Wisconsin were absentee ballots.47

    Although the WEC declared the 2020 elections an overwhelming success, it acknowledged the massive shift to absentee voting “revealed public confusion about the process and differing opinions about previously obscure statutory provisions.”48 Given the Wisconsin Supreme Court’s careful examination of election officials’ communications to voters in cases such as Jefferson v. Dane County, the guidance and communications of election officials are likely to receive continued scrutiny going forward.

    Second, Wisconsinites will see proposed legislation affecting many of the state laws challenged in 2020. On Dec. 11, 2020, just weeks after the general election, the Wisconsin Assembly Committee on Campaigns and Elections and the Wisconsin Senate Committee on Elections, Ethics, and Rural Issues convened a joint public hearing to review alleged irregularities in election administration. The Assembly later resolved to “place the redress to these and other election law violations and failed administrative procedures as its highest priority” and to “take up legislation crafted to ensure civil officers follow the laws as written.”49

    Numerous proposals from Republican lawmakers have followed, including 2021 Senate Bill 61, which would elect the state’s presidential electors by Congressional district rather than on a statewide basis, and a set of 10 Senate bills taking aim at the steps voters must take to obtain absentee ballots, how clerks must process those ballots, and whether and how clerks may address omissions on ballot envelopes, as well as the lawful use of special voting deputies and absentee-ballot collection sites, among other things.50

    Third, the courts will continue to carefully scrutinize the timing of challenges to election laws. The U.S. Supreme Court has now declared its reluctance to step in when an election is imminent, regardless of whether state legislatures have acted or failed to act in the interim. The Wisconsin Supreme Court, for its part, has cast a critical eye on post-election procedural challenges that could have been settled well in advance of Election Day. For these reasons, Wisconsinites may see election litigation take on greater life between future election cycles, rather than just at election time.

    Meet Our Contributors

    How do you recharge your batteries?

    Leslie FreehillBy disconnecting! Like so many of us throughout the pandemic, I’ve been glued to my phone and computer, and my home has become my office. Truly recharging takes much more deliberate effort while still sticking close to home.

    I have thrown myself more completely into my usual gardening obsession, adding more raised beds to our yard, re-landscaping with many native plants, and even adding a backyard chicken coop. This winter I knit my first sweater, made my first-ever batch of rhubarb wine, and whittled away at a long list of sewing projects. My husband and young sons and I also love to explore Wisconsin’s parks and natural areas, and we’ve discovered many breathtaking new ones in the last year.

    But nothing recharges me more than seeing our friends and family in person, sometimes over a Wisconsin brew, and so I’m most looking forward to recharging again that way post-pandemic.

    Leslie Freehill, Pines Bach LLP, Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email klester@wisbar.org. Check out our writing and submission guidelines.

    » Cite this article: 94 Wis. Law. 24-29 (April 2021).

    Endnotes

    1 UW Health, Feb. 5 Update: UW Health Statement on First Reported Case of 2019 Novel Coronavirus in Wisconsin;  Wis. Dep’t of Health Servs., Number of Reported Confirmed COVID-19 Cases by Date of Symptom Onset or Diagnosis: Wisconsin (last visited March 11, 2021).

    2 The author’s firm, Pines Bach LLP, represented plaintiff SEIU Wisconsin State Council in these cases.

    3 Democratic Nat’l Comm. v. Bostelmann, 451 F. Supp. 3d 952 (W.D. Wis. 2020).

    4 Id.

    5 Id. at 959.

    6 Id. at 976.

    7 Id. at 970-75.

    8 Democratic Nat’l Comm. v. Bostelmann, Nos. 20-1538, 20-1546, 20-1545, at * 3-4, 2020 WL 3619499 (7th Cir. April 3, 2020).

    9 Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020).

    10 Jefferson v. Dane Cnty., 2020 WI 90, ¶ 9, 394 Wis. 2d 602, 951 N.W.2d 556.

    11 Id. ¶ 23.

    12 Wis. Elections Comm’n, April 7, 2020 Absentee Voting Report 6 (May 15, 2020), tinyurl.com/v9697pfj.

    13 Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 5627186, at *1 (W.D. Wis. Sept. 21, 2020).

    14 Two additional provisions of the injunction directed the WEC to publish website language explaining that the indefinitely confined exception for absentee voting “does not require permanent or total inability to travel outside of the residence” and enjoined Wis. Stat. section 6.87(3)(a), which limited delivery of absentee ballots to mail only for domestic civilian voters, extending online access to replacement absentee ballots or emailing replacement ballots for the period from Oct. 22, 2020, to Oct. 29, 2020, for certain voters who timely requested an absentee ballot but did not receive it. Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 5627186, at *2 (W.D. Wis. Sept. 21, 2020).

    15 Democratic Nat’l Comm. v. Bostelmann, 976 F.3d 764 (7th Cir.), on reconsideration, 977 F.3d 639 (7th Cir. 2020).

    16 Democratic Nat’l Comm. v. Bostelmann, 2020 WI 80, ¶ 14, 394 Wis. 2d 33, 949 N.W.2d 423.

    17 See Purcell v. Gonzalez, 549 U.S. 1, 5 (2006).

    18 Democratic Nat’l Comm. v. Bostelmann, 977 F.3d 639, 642 (7th Cir. 2020).

    19 Id. at 643.

    20 The author’s firm, Pines Bach LLP, represented Gov. Tony Evers in an amicus brief to the U.S. Supreme Court opposing the stay.

    21 Democratic Nat’l Comm. v. Wisconsin State Legis., 141 S. Ct. 28 (2020).

    22 Id. at 31 (J. Kavanaugh concurring).

    23 Available at www.wpr.org/sites/default/files/september_25_2020_letter_to_city_clerk_witzel-behl.pdf.

    24 See Judge v. Board of Canvassers, No. 2020CV002029 (Dane Cnty. Cir. Ct. Sept. 30, 2020).

    25 www.documentcloud.org/documents/7220080-2020-09-29-Milwaukee-Elections-Commission.html.

    26 Wis. Stat. § 9.01(1)(a), (5).

    27 See Certificate of Ascertainment for President, Vice-President, and Presidential Electors General Election – November 3, 2020 (Dec. 21, 2020).

    28 Trump v. Evers, No. 2020AP1971-OA (petition filed Dec. 1, 2020).

    29 Trump v. Evers, No. 2020AP1971-OA (order issued Dec. 3, 2020).

    30 Trump v. Biden, 2020 WI 91, ¶ 6, 394 Wis. 2d 629, 951 N.W.2d 568.

    31 Id. ¶ 32.

    32 Id. ¶¶ 45, 52, 57 (Hagedorn, J., concurring).

    33 Id. ¶ 63 (Roggensack, C.J., dissenting).

    34 See, e.g., id. ¶¶ 104 (Roggensack, C.J., dissenting), 148 (Grassl Bradley, J., dissenting).

    35 Wisconsin Voter All. v. Wisconsin Elections Comm’n, No. 2020AP1930-OA (order issued Dec. 4, 2020).

    36 Id. at 2-3 (“[T]he real stunner here is the sought-after remedy … while the rough and tumble world of electoral politics may be the prism through which many view this litigation, it cannot be so for us”) (Hagedorn, J., concurring).

    37 Id. at 5 (Roggensack, C.J., dissenting).

    38 Trump v. Wisconsin Elections Comm’n, No. 20-CV-1785-BHL, 2020 WL 7318940, at *12 (E.D. Wis. Dec. 12, 2020), aff’d, 983 F.3d 919 (7th Cir. 2020), cert. denied, No. 20-883, 2021 WL 850635 (March 8, 2021).

    39 U.S. Const. art. II, § 1, cl. 2.

    40 Trump, No. 20-CV-1785-BHL, 2020 WL 7318940, at *12.

    41 Id.

    42 Trump v. Wisconsin Elections Comm’n, 983 F.3d 919, 925-26 (7th Cir. 2020).

    43 Feehan v. Wisconsin Elections Comm’n, No. 20-CV-1771-PP, 2020 WL 7250219, , at *1,___ F. Supp. 3d ___ (E.D. Wis. Dec. 9, 2020) (appeal filed).

    44 See West v. Wisconsin Elections Comm’n, No. 2020CV000812 (Brown Cnty. Cir. Ct.) (Sept. 11, 2020 order).

    45 Hawkins v. Wisconsin Elections Comm’n, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877.

    46 See Texas v. Pennsylvania, No. 155, ORIG., 2020 WL 7296814 (U.S. Dec. 11, 2020).

    47 Wis. Elections Comm’n, November 3, 2020 Election Data Report 11 (Feb. 3, 2021).

    48 Id. at 3.

    49 2021 Wis. Assemb. Resol. No. 3, Wis. 105th Legis. - 2021-22 Reg. Sess. (Jan. 4, 2021).

    50 2021 S.B. 61, Wis. 105th Legis. - 2021-22 Reg. Sess. (Feb. 5, 2021); see also Molly Beck & Patrick Marley, Republican Lawmakers Seek to Overhaul Voting in Wisconsin, Including New Rules for Absentee Ballots, Milwaukee J. Sentinel (Feb. 22, 2021).




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