Democratic Nat'l Comm. v. Bostelmann, 20-cv-249-wmc

CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin
Writing for the CourtWILLIAM M. CONLEY, District Judge
Citation466 F.Supp.3d 957
Decision Date09 June 2020
Docket Number20-cv-249-wmc
Parties DEMOCRATIC NATIONAL COMMITTEE and Democratic Party of Wisconsin, Plaintiffs, v. Marge BOSTELMANN, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr. and Mark L. Thomsen, Defendants, and Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening Defendants.

466 F.Supp.3d 957

DEMOCRATIC NATIONAL COMMITTEE and Democratic Party of Wisconsin, Plaintiffs,
Marge BOSTELMANN, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr. and Mark L. Thomsen, Defendants,
Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening Defendants.


United States District Court, W.D. Wisconsin.

Signed June 9, 2020
Filed June 10, 2020

466 F.Supp.3d 960

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

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

Bryan Weir, Jeffrey Matthew Harris, Consovoy McCarthy Park PLLC, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy Park, Boston, MA, for Intervening Defendants.


WILLIAM M. CONLEY, District Judge

466 F.Supp.3d 961

Within a few weeks of Wisconsin's April 2020 election, the Democratic National Committee and the Democratic Party of Wisconsin (jointly, "the DNC/DPW") filed this lawsuit, seeking a preliminary injunction against the enforcement of certain election laws on federal constitutional grounds due to the impacts of the unfolding COVID-19 health crisis. With lightening speed, the case made it to the United States Supreme Court and back. See Republican Nat'l Comm. v. Democratic Nat'l Comm. , 589 U.S. ––––, 140 S.Ct. 1205, 206 L.Ed.2d 452 (2020) (per curiam). Now that the April election has come and gone, intervening defendant, the Wisconsin Legislature, has moved to dismiss this case (dkt. #197), while plaintiffs have moved to file a second amended complaint (dkt. #198), seeking to update their claims in light of the alleged impacts of COVID-19 on the ability to obtain and count a record number of absentee ballots during that election and similar, other challenges facing the Wisconsin Election Commission ("WEC") in the impending August and November elections.1 For the reasons discussed below, the court will grant plaintiffs’ motion and deny intervening-defendant's motion as moot.


Shortly after the emergence of the COVID-19 health crisis in Wisconsin, the DNC/DPW filed this lawsuit, a temporary restraining order, and a preliminary injunction, seeking to enjoin enforcement of various provisions of Wisconsin's elections laws before Wisconsin's April 7, 2020, primary election. This court granted narrow injunctive relief a few weeks before the April election, and this injunctive relief was further narrowed on appeal to the Seventh Circuit and the United States Supreme Court.

The Wisconsin Legislature has now moved to dismiss the DNC/DPW's complaint, arguing primarily that the claims became moot after the passage of the April election. While the DNC/DPW maintain that their original claims were not mooted, plaintiffs also seek to "fine-tune[ ]" their claims in an amended complaint "to take account of the rulings over the past two months by this court, the Seventh Circuit, and the Supreme Court." (Pls.’ Reply (dkt. #203) 2.) The DNC/DPW's proposed second amended complaint also seeks relief with respect to the August 2020 primary election and November 2020 general elections. Specifically, plaintiffs again request that, "in the context of the current coronavirus crisis," the court declare unconstitutional and enjoin in part the following statutory provisions ("the challenged provisions"): (1) the current

466 F.Supp.3d 962

by-mail and electronic registration deadlines, Wis. Stat. § 6.28(1) ; (2) the requirements that copies of proof of residence and voter photo ID accompany electronic and by-mail voter registration and absentee applications, Wis. Stat. §§ 6.34, 6.86, respectively; (3) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, Wis. Stat. § 6.87 ; and (4) the requirement that an absentee voter obtain the signature of a witness attesting to the accuracy of personal information on an absentee ballot, Wis. Stat. § 6.87(2). (Proposed Second Am. Compl. ("Proposed SAC") (dkt. #198-1) 38-39.) Plaintiffs also seek to "ensure safe and sufficient in-person registration and voting facilities for all voters throughout the State." (Id. ¶ 83.) These requests are brought under the First and Fourteenth Amendment's guarantee against undue burdens on the right to vote, the Fourteenth Amendment's procedural due process clause, and the Fourteenth Amendment's equal protection clause. (Id. at 31-38.)

Intervening defendants the Republic National Committee and the Republican Party of Wisconsin (jointly, "the RNC/RPW") have since joined in the Wisconsin Legislature's opposition to plaintiffs’ motion for leave to amend their complaint (dkt. #201), although the originally-named defendants, the Commissioners of the Wisconsin Election Commission ("WEC"), do not appear to oppose plaintiffs’ motion, and neither the Commissioners nor the RNC/RPW have joined in the Legislature's motion to dismiss.


The Federal Rules of Civil Procedure provide that leave to amend a complaint should be "freely give[n] ... when justice so requires." Fed. R. Civ. P. 15(a)(2). A court may, however, "deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile." Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC , 870 F.3d 682, 693 (7th Cir. 2017) (quoting Arreola v. Godinez , 546 F.3d 788, 796 (7th Cir. 2008) ). "In the face of that uncertainty, applying the liberal standard for amending pleadings, especially in the early stages of a lawsuit, is the best way to ensure that cases will be decided justly and on their merits." Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana , 786 F.3d 510, 520 (7th Cir. 2015).

The Legislature opposes plaintiffs’ motion to amend on grounds of futility.2 Specifically, the Legislature contends that: (1) plaintiffs’ new claims are not yet ripe; (2) plaintiffs have alleged no claim upon which relief can be granted; and (3) all of plaintiffs’ claims should be dismissed under the Burford abstention doctrine.3 Unsurprisingly, the DNC/DPW responds by emphasizing the liberal standard generally applicable to requests for leave to amend and argue that their new claims are not futile.

At this point, the court is unable to conclude that the entirety of plaintiffs’ proposed amended complaint is futile and,

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having been presented with no other reason to deny leave to amend, the court will grant plaintiffs’ motion. Because plaintiffs’ second amended complaint is now the operative pleading, the Legislature's motion to dismiss plaintiffs’ first amended complaint is rendered moot and, therefore, will be denied. See Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.) ("[I]f the first complaint is considered superseded by the amendment, the court is not required to dismiss the suit when a motion points up the weaknesses of the earlier pleading."). Inevitably, however, the court addresses The Legislature's arguments for dismissal in considering its opposition to plaintiffs’ motion for leave to amend on futility grounds.

I. Ripeness

The Legislature first argues that plaintiffs’ motion to amend is futile because their new claims are not yet ripe. Ripeness is a justiciability concern regarding the appropriate timing of judicial intervention.4 Renne v. Geary , 501 U.S. 312, 320, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). The rationale behind this doctrine is to avoid premature adjudication and prevent courts from "entangling themselves in abstract disagreements." Abbott Labs. v. Gardner , 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Because ripeness affects justiciability, courts have held that affidavits and other evidence may be considered in determining whether or not a claim is ripe. See, e.g. , Taylor Inv., Ltd. v. Upper Darby Tp. , 983 F.2d 1285, 1290 & n.7 (3d Cir. 1993) ; St. Clair v. City of Chico , 880 F.2d 199, 201-02 (9th Cir. 1989).

Courts have traditionally considered two factors in determining ripeness: (1) "the fitness of the issues for judicial decision" and (2) "the hardship to the parties of withholding court consideration." Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n , 461 U.S. 190, 201, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) (quoting Abbott Labs. , 387 U.S. at 149, 87 S.Ct. 1507 ). A claim is not fit for judicial review if "the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts." Hinrichs v. Whitburn , 975 F.2d 1329, 1333 (7th Cir. 1992). In evaluating a claim of hardship, courts consider whether "irremediably adverse consequences" would flow from requiring a later challenge. Toilet Goods Ass'n v. Gardner , 387 U.S. 158, 164, 87 S.Ct. 1520, 18...

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