Democratic Nat'l Comm. v. Bostelmann

• Decision Date: 21 September 2020
• Docket Number: 20-cv-459-wmc,20-cv-278-wmc,20-cv-249-wmc,20-cv-340-wmc
• Citation: 488 F.Supp.3d 776
• Parties: DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v. Marge BOSTELMANN, et al., Defendants, and Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants. Sylvia Gear, et al., Plaintiffs, v. Marge Bostelmann, et al., Defendants, and Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants. Chrystal Edwards, et al., Plaintiffs, v. Robin Vos, et al., Defendants, and Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants. Jill Swenson, et al., Plaintiffs, v. Marge Bostelmann, et al., Defendants, and Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants.
• Court: U.S. District Court — Western District of Wisconsin

488 F.Supp.3d 776

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs,

v.Marge BOSTELMANN, et al., Defendants,andWisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants.

Sylvia Gear, et al., Plaintiffs,

v.Marge Bostelmann, et al., Defendants,andWisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants.

Chrystal Edwards, et al., Plaintiffs,

v.Robin Vos, et al., Defendants,andRepublican National Committee, and Republican Party of Wisconsin, Intervening-Defendants.

Jill Swenson, et al., Plaintiffs,

v.Marge Bostelmann, et al., Defendants,andWisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin, Intervening-Defendants.

20-cv-249-wmc

20-cv-278-wmc

20-cv-340-wmc

20-cv-459-wmc

United States District Court, W.D. Wisconsin.

Signed September 21, 2020

Anton Metlitsky, Rachel Goodman, Protect Democracy, Yaira Dubin, Leah Godesky, O'Melveny & Myers LLP, New York, NY, Douglas Maynard Poland, Jeffrey Adam Mandell, Stafford Rosenbaum LLP, Madison, WI, Jonathan Matthew Manes, Roderick & Solange MacArthur Justice Center, Chicago, IL, Rachel F. Homer, Cameron Oatman Kistler, Farbod Kaycee Faraji, Protect Democracy, Washington, DC, Sara Chimene-Weiss, Protect Democracy Project, Phoenix, AZ, Jamila Benkato, Protect Democracy, Wyoming, MI, Jason Zarrow, Katherine Takakjian, Kurt C. Brown, Molly Manning Lens, O'Melveny & Myers LLP, Los Angeles, CA, Laurence Michael Schwartztol, c/o Protect Democracy Project, Inc., Watertown, MA, for Plaintiffs.

Daniel P. Bach, Lawton & Cates, S.C., Jefferson, WI, Daniel Spector Lenz, Dixon R. Gahnz, Terrence M. Polich, Lawton & Cates, S.C., Madison, WI, for Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe.

Bryan Weir, Cameron Thomas Norris, Consovoy McCarthy PLLC, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy Park, Boston, MA, for Intervening-Defendants Republican National Committee, Republican Party of Wisconsin.

Kevin Michael LeRoy, Sean Dutton, Misha Tseytlin, Troutman Pepper Hamilton Sanders LLP, Robert Edward Browne, Jr., Troutman Sanders, Chicago, IL, for Intervenor Defendant The Wisconsin Legislature.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge In these four, consolidated lawsuits, various organizations and individuals have moved for preliminary injunctive relief concerning the conduct of the Wisconsin general election on November 3, 2020. While the Commissioners and Administrator of the Wisconsin Election Commission ("WEC") oppose the motions only to the extent the requested relief would exceed the WEC's statutory authority, the Wisconsin Legislature, the Republican National Committee and the Republican Party of Wisconsin have intervened to offer a more robust opposition to those motions.¹ In addition to these pending motions for preliminary injunction, defendants and intervening defendants have also moved to dismiss three of the four cases.

For the reasons that follow, the court will largely reject defendants’ grounds to dismiss. As for the requests for preliminary relief, election workers’ and voters’ experiences during Wisconsin's primary election in April, which took place at the outset of the COVID-19 crisis, have convinced the court that some, limited relief from statutory deadlines for mail-in registration and absentee voting is again necessary to avoid an untenable impingement on Wisconsin citizens’ right to vote, including the near certainty of disenfranchising tens of thousands of voters relying on the state's absentee ballot process. Indeed, any objective view of the record before this court leads to the inevitable conclusion that: (1) an unprecedented number of absentee ballots, which turned the predominance of in-person voting on its head in April, will again overwhelm the WEC and local officials despite their best efforts to prepare; (2) but for an extension of the deadlines for registering to vote electronically and for receipt of absentee ballots, tens of thousands of Wisconsin voters would have been disenfranchised in April; and (3) absent similar relief, will be again in November. Consistent with the fully briefed motions, evidence presented, and the hearing held on August 5, 2020, therefore, the court will grant in part and deny in part the parties’ motions for reasons more fully explained below, including entering a preliminary injunction providing the following relief:

• extending the deadline under Wisconsin Statute § 6.28(1), for online and mail-in registration from October 14, to October 21, 2020;

• directing the WEC to include on the MyVote and WisVote websites (and on any additional materials that may be printed explaining the "indefinitely confined" option) the language provided in their March 2020 guidance, which explains that the indefinitely confined exception "does not require permanent or total inability to travel outside of the residence";

• extending the receipt deadline for absentee ballots under Wisconsin Statute § 6.87(6) until November 9, 2020, but requiring that the ballots be mailed and postmarked on or before election day, November 3, 2020;

• enjoining Wisconsin Statute § 6.87(3)(a), which limits delivery of absentee ballots to mail only for domestic civilian voters, allowing online access to replacement absentee ballots or emailing replacement ballots for the period from October 22 to October 29, 2020, as to those voters who timely requested an absentee ballot, the request was approved, and the ballot was mailed, but the voter did not receive the ballot; and

• enjoining Wisconsin Statute § 7.30(2), which requires that each election official be an elector of the county in which the municipality is located, allowing election officials to be residents of other counties within Wisconsin for the upcoming November 2020 election.

In recognition of the likelihood of appellate review, however, this order is STAYED for one week, and NO voter can depend on any extension of deadlines for electronic and mail-in registration and for receipt of absentee ballots unless finally upheld on appeal. In the meantime, lest they effectively lose their right to do so by the vagaries of COVID-19, mail processing or other, unforeseen developments leading up to the November election, the court joins the WEC in urging especially new Wisconsin voters to register by mail on or before October 14, 2020, and all voters to do so by absentee ballot as soon as possible.²

FACTS

A. Election Laws in Wisconsin

1. Registering to vote

A citizen wishing to vote in Wisconsin must first register in the ward or district in which they reside. To do so, the voter must complete a registration form and provide "an identifying document that establishes proof of residence."³ Wis. Stat. § 6.34(2). The deadline for registering by mail or online is the third Wednesday preceding the election, Wis. Stat. § 6.28, which for the upcoming November 2020 election is October 14, 2020. A voter may also register in person at their local municipal clerk's office up to the Friday before the election, Wis. Stat. § 6.29(1) - (2), which for the November election is October 30. Finally, a voter may register in person on election day itself at their designated polling place. Wis. Stat. § 6.55(2).

2. Voting by mail

Absentee voting in Wisconsin is available to any registered voter who "for any reason is unable or unwilling to appear" at the polls. Wis. Stat. § 6.85. To obtain an absentee ballot, a registered voter must submit an absentee ballot request form, along with a copy of an acceptable photo ID. Wis. Stat. § 6.86.⁴ Voters who are "indefinitely confined because of age, physical illness or infirmity" are exempt from this photo ID requirement, but such a voter must still provide a signed statement by the individual who witnesses and certifies the voter's ballot "in lieu of providing proof of identification." Wis. Stat. § 6.87(4)(b)2.

On March 29, 2020, the WEC issued guidance on the proper use of indefinitely confined status, explaining that: "Designation of indefinitely confined status is for each individual voter to make based upon their current circumstances. It does not require permanent or total inability to travel outside of the residence." Wisconsin Election Commission, Guidance for Indefinitely Confined Electors COVID-19 (Mar. 29, 2020), https://elections.wi.gov/node/6788. Two days later, the Wisconsin Supreme Court issued a decision that preliminarily endorsed the WEC guidance, finding that it "provides the clarification on the purpose and proper use of the indefinitely confined status that is required at this time." Jefferson v. Dane Cty , No. 2020AP557-OA (Wis. Mar. 31, 2020).⁵

Whether submitted online, by fax or by mail, an absentee ballot application must be received no later than 5 p.m. on the fifth day immediately preceding the election, Wis. Stat. § 6.86(1)(ac), (b), which means for the November election on or before 5 p.m. on October 29, 2020. Clerks must begin to send out absentee ballots no later than the 47th day before a general election, at which point the absentee ballot itself must be mailed to a qualified voter within one business day of the receipt of an absentee ballot request. Wis. Stat. § 7.15(1)(cm).

If a clerk is "reliably informed" that the absentee requester is a military or overseas voter , the clerk may also fax or transmit an electronic copy of the ballot in lieu of mailing it. Wis. Stat. § 6.87(3)(d). Indeed, up until very recently, due to a 2016 injunction by this court, clerks had the discretion to email ballots to all voters. See One Wisconsin Inst., Inc. v. Thomsen , 198 F. Supp. 3d 896, 946-48 (W.D. Wis. 2016) (enjoining "the provision prohibiting municipal clerks from sending absentee ballots by fax or email [because it] violates the First and Fourteenth Amendments"). On June 29, 2020, however, the Seventh Circuit vacated this injunction, meaning that...