Democratic Nat'l Comm. v. Bostelmann

• Decision Date: 08 October 2020
• Docket Number: 20-2844,Nos. 20-2835,s. 20-2835
• Citation: 977 F.3d 639
• Parties: DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs-Appellees, v. Marge BOSTELMANN, Secretary of the Wisconsin Elections Commission, et al., Defendants, and Wisconsin State Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

977 F.3d 639

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs-Appellees,

v. Marge BOSTELMANN, Secretary of the Wisconsin Elections Commission, et al., Defendants,andWisconsin State Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening Defendants-Appellants.

Nos. 20-2835

20-2844

United States Court of Appeals, Seventh Circuit.

Submitted October 6, 2020

Decided October 8, 2020

Amanda Callais, John Devaney, Marc Erik Elias, Zachary Newkirk, Bruce Van Spiva, Perkins Coie LLP, Washington, DC, Charles Grant Curtis, Jr., Brandon Michael Lewis, Sopen Bharat Shah, Michelle Marie Umberger, Perkins Coie LLP, Madison, WI, for Plaintiff Democratic National Committee

Daniel P. Bach, Dixon R. Gahnz, Lawton & Cates, S.C., Jefferson, WI, Dixon R. Gahnz, Daniel Spector Lenz, Terrence M. Polich, Lawton & Cates, S.C., Madison, WI, Brian P. Keenan, Wisconsin Department of Justice, Madison, WI, Sean Michael Murphy, HCP Consumer Law, LLC, Madison, WI, Jody J. Schmelzer, State of Wisconsin Department of Justice, Madison, WI, for Defendants.

Steven Carl Brist, Michael P. May, City of Madison, Madison, WI, for City of Madison, Wisconsin Amicus Curiae.

William E. Fischer Davis & Kuelthau, SC, Oshkosh, WI, Andrew Thomas Phillips, Matthew Jeffrey Thome, von Briesen & Roper, S.C., Milwaukee, WI, for Washington County Amicus Curiae.

David Gault Dane County Corporation Counsel, Madison, WI, for Dane County Amicus Curiae.

Grant F. LangLey, Adam Boyd Stephens, Milwaukee City Attorney, Milwaukee, WI, for City Of Milwaukee, Wisconsin Amicus Curiae.

Karyn L. Rotker, ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, for American Civil Liberties Union Of Wisconsin, Disability Rights Wisconsin, Inc., Wisconsin Conservation Voices Amicus Curiae.

Dean Arthur, Strang StrangBradley, LLC, Madison, WI, for Common Cause Wisconsin Amicus Curiae.

Arn Huong Tran, City of Racine City Attorney's office, Racine, WI, for City of Racine Amicus Curiae.

Jason Brett Torchinsky, Holtzman Vogel Josefiak PLLC, for Honest Elections Project Amicus Curiae.

Before Easterbrook, Rovner, and St. Eve, Circuit Judges.

Per Curiam.

On September 29, 2020, we issued an order denying the motions for a stay in these appeals, because we concluded that Wisconsin's legislative branch has not been authorized to represent the state's interest in defending its statutes. On October 2, in response to a request for reconsideration, we certified to the Supreme Court of Wisconsin the question "whether, 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." That court accepted the certification and replied that the State Legislature indeed has that authority. Democratic National Committee v. Bostelmann , 2020 WI 80, 949 N.W.2d 423 (Oct. 6, 2020). In light of that conclusion, we grant the petition for reconsideration and now address the Legislature's motion on the merits. (The other intervenors have not sought reconsideration.)

As we explained last week, a district judge held that many provisions in the state's elections code may be used during the SARS-CoV-2 pandemic but that some deadlines must be extended, additional online options must be added, and two smaller changes made. ––– Wis.2d ––––, ––– N.W.2d ––––, 2020 WL 5627186, 2020 U.S. Dist. LEXIS 172330 (W.D. Wis. Sept. 21, 2020). In particular, the court extended the deadline for online and mail-in registration from October 14 (see Wis. Stat. § 6.28(1) ) to October 21, 2020; enjoined for one week (October 22 to October 29) enforcement of the requirement that the clerk mail all ballots, but only for those voters who timely requested an absentee ballot but did not receive one, and authorized online delivery during this time; and extended the deadline for the receipt of mailed ballots from November 3 (Election Day) to November 9, provided that the ballots are postmarked on or before November 3. Two other provisions of the injunction ( ––– Wis.2d ––––, ––––, ––– N.W.2d ––––, 2020 WL 5627186 at *29–30, 2020 U.S. Dist. LEXIS 172330 at *98 ) need not be described.

The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid. See Luft v. Evers , 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin's rules after reviewing the elections code as a whole). We agree with both of those arguments, which means that a stay is appropriate under the factors discussed in Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

For many years the Supreme Court has insisted that federal courts not change electoral rules close to an election date. One recent instance came in an earlier phase of this case. After the district judge directed Wisconsin to change some of its rules close to the April 2020 election, the Supreme Court granted a stay (to the extent one had been requested) and observed that the change had come too late. Republican National Committee v. Democratic National Committee , ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020). One of the decisions cited in that opinion is another from Wisconsin: Frank v. Walker , 574 U.S. 929, 135 S.Ct. 7, 190 L.Ed.2d 245 (2014). In Frank this court had permitted Wisconsin to put its photo-ID law into effect, staying a district court's injunction. But the Supreme Court deemed that change (two months before the election) too late, even though it came at the state's behest. ( Frank did not give reasons, but Republican National Committee treated Frank as an example of a change made too late.) Here the district court entered its injunction on September 21, only six weeks before the election and less than four weeks before October 14, the first of the deadlines that the district court altered. If the orders of last April, and in Frank , were too late, so is the district court's September order in this case. See also Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006).

The Justices have deprecated but not forbidden all change close to an election. A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event. The World Health Organization declared a pandemic seven months ago, the State of Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic. If the judge had issued an order in May based on April's experience, it could not be called untimely. By waiting until September, however, the district court acted too close to the election.

The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the Supreme Court's recent stay of another injunction issued close to the upcoming election. Andino v. Middleton , No. 20A55, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 5887393 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019) ; Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).

Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing. The pandemic has had consequences (and appropriate governmental responses) that change with time, but the fundamental proposition that social distancing is necessary has not changed since March. The district court did not find that any person who wants to avoid voting in person on Election Day would be unable to cast a ballot in Wisconsin by planning ahead and taking advantage of the opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could be encountered by voters who do not plan ahead and wait until the last day that state law allows for certain steps. Yet, as the Supreme Court observed last April in this very case, voters who wait until the last minute face problems with or without a pandemic.

The 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. It has stayed judicial orders about elections, prison management, and the closure of businesses. We have already mentioned Andino and Republican National Committee . See also Clarno v. People Not Politicians Oregon , No. 20A21, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 4589742 (U.S. Aug. 11, 2020) (staying an injunction that had altered a state's signature and deadline requirements for placing initiatives on the ballot during the pandemic); Merrill v. People First of Alabama , No. 19A1063, ––– U.S. ––––, S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 3604049 (U.S. July 2, 2020) (staying an injunction that had suspended some state anti-fraud rules for absentee voting during the pandemic); Barnes v. Ahlman , ––– U.S. ––––, 140 S. Ct. 2620, ––– L.Ed.2d –––– (2020) (staying an order that overrode a prison warden's decision about how to cope with the pandemic); Little v. Reclaim Idaho , ––– U.S. ––––, 140 S. Ct. 2616, ––– L.Ed.2d –––– (2020) (staying an injunction that changed the rules for ballot initiatives during the pandemic); South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (declining to suspend state rules limiting public gatherings during the pandemic).

Deciding how best to cope with difficulties caused by disease is principally a task for the elected branches of...