Pre-Election Litigation in Wisconsin

One of the key issues in Wisconsin was the ballot receipt deadline, which went all the way to the U.S. Supreme Court.

Sept. 21, 2020  - U.S. District Court for the Western District of Wisconsin issues preliminary injunction extending ballot receipt deadline to Nov. 9, and extending the registration deadline.

Oct. 8, 2020 - Panel of the U.S. Court of Appeals for the Seventh Circuit issues order staying the preliminary injunction.

Oct. 14, 2020 - DNC and DPW make an emergency application to the U.S. Supreme Court to vacate the stay.

Oct. 26, 2020 - The U.S. Supreme Court has the final word, ruling against extending the ballot receipt deadline: Democratic National Committee et al. vs. Wisconsin State Legislature et al.

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REACTIONS
Protect Democracy
September 21, 2020

Federal Court Requires Wisconsin to Take Immediate Action to Ensure Safe Voting in November

Madison, WI—Today, a coalition consisting of Disability Rights Wisconsin, Black Leaders Organizing for Communities (BLOC), and three registered Wisconsin voters won a significant legal victory when a federal court ordered the Wisconsin Election Commission to ensure that voters have safe and equitable access to cast ballots during the November general election.

The Court, among other things, extended the deadline for receipt of absentee ballots until Nov. 9 for all mailed ballots postmarked on or before Nov. 3, which had been the deadline for receipt of ballots; extended the deadline for online and mail-in registration by one week, to October 21; allowed election officials to email ballots to voters who request them but don’t receive them in the mail; and allowed Wisconsinites to serve as poll workers outside of their counties of residence, to help the threat of a poll worker shortage.

The order will not go into effect for one week to allow time for any appeals; voters should not rely on these changes until they are no longer subject to any judicial stay.

“I’m glad to see the court acting to make sure every voter has a way to make her voice heard. Our democracy is stronger when we make it easier for more people to vote,” said Melody McCurtis, a Milwaukee-based community organizer and a plaintiff in the lawsuit.

Angela Lang, Executive Director of BLOC, said, “Today’s decision is a win for democracy, paving the way for thousands of legally registered Wisconsin voters to safely and securely participate in the general election. We can’t let a pandemic, or any other threat, diminish the ability of voters to participate in the most fundamental aspect of our democracy, casting a ballot.”

The plaintiffs filed the lawsuit after Wisconsin’s April 7 primary election was marred by long lines, absent poll workers, missing absentee ballots, and a shortage of health safety supplies in the midst of the COVID pandemic—leaving tens of thousands of Wisconsin voters disenfranchised. The case was consolidated with several other lawsuits, including one brought by the Democratic National Committee.

Farbod Faraji, Counsel for Protect Democracy, held the ruling up as an example of how citizens can fight back to protect our democracy: “The late hero John Lewis said, ‘The vote is precious. It is almost sacred. It is the most powerful non-violent tool we have in a democracy.’ The Court’s decision today is an affirmation of those words and the decades-long struggle for voting rights in this country. We owe a debt of gratitude to these plaintiffs for bringing the case forward.”

“This ruling is a victory for democracy. Every voter should be able to vote easily, safely, and accessibly, no matter where they live or who they are,” added Jonathan Manes, an attorney with the MacArthur Justice Center, which represented the plaintiffs alongside Protect Democracy. “Today’s decision brings us closer to that goal.”

In addition to Protect Democracy and the MacArthur Justice Center, the plaintiffs were represented by two firms: Stafford Rosenbaum LLC and O’Melveny & Myers, LLP.

Jeffrey A. Mandell and Douglas M. Poland, attorneys with Stafford Rosenbaum LLC, noted that the Court’s ruling will help ensure that the 2020 general election is safe and fair: “Having been on the front lines for the last several years of fighting to protect the right to vote in Wisconsin, we are pleased that the federal courts continue to protect the ability of Wisconsin voters to have a say in who governs them. The relief granted by the Court in this case will help avoid Wisconsin’s November election being beset by the same problems we saw in April, when thousands of Wisconsinites had to choose between exercising their right to vote and protecting themselves and others from risking infection with COVID-19. Today’s Court’s order will enhance democracy in Wisconsin.”

“Today’s victory finally clears the way for a fair and free election in Wisconsin this November,” said Yaira Dubin, counsel at O’Melveny & Myers. “We have been proud to join the fight to protect the most fundamental American freedom—the right to vote—and we applaud the voters and organizations that brought this important challenge. It has been an honor to be part of the team.”

The ruling and other filings, including the complaint, can be found here.

More information about the lawsuit is available here.


Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.

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League of Women Voters
9/21/2020

Ruling Provides Wisconsin Voters with Fail-Safe for Absentee Voting in November

MADISON, WI – In a victory for voters in Wisconsin, the United States District Court for the Western District of Wisconsin gave voters a back-up option to receive mail-in absentee ballots online or via email when they do not receive their previously-requested ballot in the mail in time for the November 3 general election. The case was brought by the League of Women Voters of Wisconsin, Wisconsin Alliance for Retired Americans, and eight individual Wisconsin voters, who were represented by Fair Elections Center and Douglas M. Poland, a partner in Stafford Rosenbaum LLP’s Madison office, and co-chair of the firm’s Election and Political Law practice group.

“Today’s decision is a victory that preserves voting rights for Wisconsin voters,” said Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, a plaintiff in the case. “This ruling will ensure that anyone wishing to vote via a timely requested ballot can have a fail-safe way of getting that ballot cast. This is the right move to assure voters that they can have confidence in their vote this year.”

“Wisconsin election officials are now able to email replacement absentee ballots to voters who do not receive their requested ballots in the mail. No one should lose their right to vote due to U.S. Postal Service delivery failures or health concerns,” said Jon Sherman, senior counsel at Fair Elections Center. “The Court’s order will safeguard the voting rights of thousands of Wisconsin voters during this pandemic, and we will continue to fight to ensure this significant ruling survives any appeal.”

“Eighty percent of Americans who have died from COVID-19 were over the age of 65,” said Gary Mitchell, president of the Wisconsin Alliance for Retired Americans. “Wisconsin seniors, who are at most risk from the coronavirus, should not have to choose between protecting their health and exercising their constitutional right to vote.”

The ruling, which may still be appealed, provides a fail-safe option from October 22 to 29 for voters who do not receive their requested mail-in ballots on time, including voters who are most at risk from COVID-19 and cannot vote safely in person at a polling place. During the April 7 election, thousands of Wisconsin voters did not receive their requested absentee ballots in the mail.

Judge William Conley found that “the evidence is nearly overwhelming that the pandemic does present a unique need for relief in light of: (1) the experience during the Spring election, (2) much greater projected numbers of absentee ballot requests and votes in November, and (3) ongoing concerns about the USPS’s ability to process the delivery of absentee ballot applications and ballots timely.”

State election officials have said there could be as many as 1.8 million requests for absentee mail-in ballots for the November election. The Wisconsin Elections Commission reports that nearly a million mail-in absentee ballots were requested for the August Primary election, which is a typically lower-turnout election. Prior to the April primary, the first election held during the pandemic, typically four to eight percent of Wisconsin voters voted using an absentee ballot. This spring, that number jumped to 62 percent, representing nearly a million ballots returned.

Delivery of absentee ballots to voters via email is not a new phenomenon for Wisconsin voters. Previously, the state had email delivery for everyone, including for the 2016 presidential election. During that election, the state issued nearly 10,000 ballots to voters by email, and over 7,000 were cast and returned by mail. Two federal elections and many other state and local elections were conducted using email delivery without incident, as the Court recognized.

Then, on June 29 of this year, the U.S. Court of Appeals for the Seventh Circuit issued a ruling saying that it was not unconstitutional for the state legislature to restrict email delivery to just military and overseas voters. That mandate went into effect at the end of July, so email delivery has been “switched off” for only a couple of weeks in Wisconsin. Today’s decision once again strikes down the ban for a limited time as a necessary fail-safe for voters who do not receive their absentee ballot in the mail.

Read the order here.

Read the Court's opinion here.


PRESS CONTACT: Kayla Vix

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Assembly Speaker Robin Vos
October 8, 2020

Statement: 7th Circuit Court of Appeals Ruling

Speaker Robin Vos (R-Rochester) released the following statement concerning today’s ruling in the United States Court of Appeals for the Seventh Circuit:

“The decision is a victory for fair elections for all Wisconsin citizens. The court agreed the rules should not be changed so close to an election and judges are not entitled to change them.
“Once again outside, liberal interest groups have been thwarted from meddling in a Wisconsin election. Thanks to the diligence of the 7th Circuit Court of Appeals, Wisconsin elections will be held under the same state laws that have served us so well in the past.”

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Protect Democracy
October 26, 2020

Supreme Court Denies Safeguards for Wisconsin Voters

MADISON, WI—Today the United States Supreme Court denied an emergency application to vacate a stay issued by the  Seventh Circuit Court of Appeals in litigation aimed at protecting Wisconsinites’ right to vote during the pandemic. The District Court’s order in the case would have extended the absentee ballot receipt deadline and allowed Wisconsinites from anywhere in the state to fill potential poll worker shortages amid the pandemic, but the Supreme Court’s ruling upholds the Seventh Circuit’s decision to keep that relief from going into effect. The decision can be found here.

“Today’s decision simply fails to grapple with the undeniable impact of COVID-19 on the ability of Wisconsin citizens to exercise their right to vote,” said Farbod Faraji, counsel at Protect Democracy. “It is truly unfortunate that the Court will not implement even the most common-sense voter protection measures in the midst of a global pandemic.”

“The approach adopted by the Seventh Circuit, and left in place by the Supreme Court, suggests that courts in this part of the country have virtually no ability to protect voting rights if a problem arises within months of election day. That cannot possibly be the law, and we’re deeply disappointed that the courts have refused even to address the merits of Judge Conley’s tailored, fact-based order to prevent disenfranchisement,” said Jeff Mandell and Doug Poland, lawyers at Stafford Rosenbaum LLP in Madison.

In light of this ruling, it is essential that all parties and the press remind voters who are voting absentee to return their ballots to a dropbox or by mail as soon as possible so that their municipal clerk RECEIVES the absentee ballot no later than 8:00 pm CT on November 3rd (Election Day). 


Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government