Democratic Nat'l Comm. v. Bostelmann, Nos. 20-2835 & 20-2844

• Decision Date: 29 September 2020
• Docket Number: Nos. 20-2835 & 20-2844
• Citation: 976 F.3d 764
• 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

976 F.3d 764

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 September 26, 2020

Decided September 29, 2020

Amanda Callais, John Devaney, Marc E. Elias, Attorneys, Perkins Coie LLP, Washington, DC, Charles G. Curtis, Jr., Sopen B. Shah, Michelle Marie Umberger, Attorneys, Perkins Coie LLP, Madison, WI, for Plaintiffs-Appellees Democratic National Committee, and Democratic Party of Wisconsin.

David P. Hollander, Attorney, Rathje Woodward LLC, Madison, WI, Jeffrey A. Mandell, Douglas Maynard Poland, Attorneys, Stafford Rosenbaum LLP, Madison, WI, Jonathan Lee Sherman, Cecilia L. Aguilera, Michelle Kanter Cohen, Attorneys, Fair Elections Center, Washington, DC, for Plaintiff-Appellee Sylvia Gear.

Joseph S. Goode, Mark Matthew Leitner, Esq., Attorneys, Laffey, Leitner & Goode, LLC, Milwaukee, WI, Stacie H. Rosenzweig, Attorney, Halling & Cayo, S.C., Milwaukee, WI, Jay A. Urban, Attorney, Urban, Taylor & Lee, Milwaukee, WI, Rebecca L. Salawdeh, Attorney, Salawdeh Law Office, LLC, Wauwatosa, WI, for Plaintiff-Appellee Chrystal Edwards.

Jeffrey A. Mandell, Douglas Maynard Poland, Attorneys, Stafford Rosenbaum LLP, Madison, WI, Anton Metlitsky, Yaira Dubin, Leah Godesky, Attorneys, O'Melveny & Myers LLP, New York, NY, Molly Lens, Attorney, O'Melveny & Myers LLP, Los Angeles, CA, Easha Anand, Attorney, Roderick & Solange MacArthur Justice Center, San Francisco, CA, Jonathan M. Manes, Attorney, Roderick & Solange MacArthur Justice Center, Chicago, IL, Sara Chimene-Weiss, Attorney, Protect Democracy, Phoenix, AZ, Farbod Faraji, Rachel F. Homer, Cameron Oatman Kistler, Attorneys, Protect Democracy, Washington, DC, Rachel Goodman, Jason Zarrow, Attorneys, Protect Democracy, New York, NY, Laurence Michael Schwartztol, Attorney, Protect Democracy, Watertown, MA, for Plaintiff-Appellee Jill Swenson.

Dixon Gahnz, Daniel P. Bach, Daniel Spector Lenz, Terrence Polich, Esq., Attorneys, Lawton & Cates SC, Madison, WI, for Defendants Marge Bostelmann, Julie M. Glancey, Dean Knudson, Mark L. Thomsen, and Robert Spindell, Jr.

Robert Edward Browne, Jr., Kevin Michael LeRoy, Misha Tseytlin, Attorneys, Troutman Pepper Hamilton Sanders LLP, Chicago, IL, for Defendant-Appellant Wisconsin State Legislature.

Jeffrey Matthew Harris, Attorney, Consovoy McCarthy PLLC, Arlington, VA, Patrick Strawbridge, Attorney, Consovoy McCarthy PLLC, Boston, MA, for Defendants Republican Party of Wisconsin, and Republican National Committee.

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

Per Curiam.

The Democratic National Committee and other plaintiffs contend in this suit that statutes affecting the registration of voters and the conduct of this November's election, although constitutional in principle, see Luft v. Evers , 963 F.3d 665 (7th Cir. 2020), will abridge some voters’ rights during the SARS-CoV-2 pandemic. The state's legislative branch, plus the Republican National Committee and the Republican Party of Wisconsin, intervened to defend the statutes’ application to this fall's election.

A district judge held that many of the contested provisions may be used but that some deadlines must be extended and two smaller changes made. 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; extended the deadline for delivery of absentee ballots by mail from October 22 (see Wis. Stat. § 6.87(3) ) by allowing for online delivery and access by October 29; 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 (2020 U.S. Dist. LEXIS 172330 at *98) need not be described. The three intervening defendants have appealed and asked us to issue a stay; the executive-branch defendants have not appealed. With the election only a few weeks away, the decision with respect to a stay will effectively decide the appeals on the merits.

We need not discuss the parties’ arguments about the constitutional rules for voting or the criteria for stays laid out in Nken v. Holder , 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), because none of the three appellants has a legal interest in the outcome of this litigation.

This conclusion is straightforward with respect to the Republican National Committee and the Republican Party of Wisconsin. The district court did not order them to do something or forbid them from doing anything. Whether the deadline for online registration (for example) is October 14 or October 21 does not affect any legal interest of either organization. Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their members. The political organizations themselves do not suffer any injury caused by the judgment. See Transamerica Insurance Co. v. South , 125 F.3d 392, 396 (7th Cir. 1997). Appeal by the state itself, or someone with rights under the contested statute, is essential to appellate review of a decision concerning the validity of a state law. See, e.g., Hollingsworth v. Perry , 570 U.S. 693, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) ; Kendall-Jackson Winery, Ltd. v. Branson , 212 F.3d 995 (7th Cir. 2000). See also 1000 Friends of Wisconsin Inc. v. Department of Transportation , 860 F.3d 480 (7th Cir. 2017) (same when the validity of an administrative decision is at stake).

That leaves the legislature. Arizona State Legislature v. Arizona Independent Redistricting Commission , 576 U.S. 787, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015), shows that a state legislature may litigate in federal court, consistent with Article III of the Constitution, when it seeks to vindicate a uniquely legislative interest. See also, e.g., Planned Parenthood of Wisconsin, Inc. v. Kaul , 942 F.3d 793, 797–98 (7th Cir. 2019). The interest at stake here, however, is not the power to legislate but the validity of rules established by legislation. All of the legislators’ votes were counted; all of the statutes they passed appear in the state's code. Constitutional validity of a law does not concern any legislative interest, which is why the Supreme Court held in Virginia House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 204 L.Ed.2d 305 (2019), that a state legislature is not entitled to litigate in federal court about the validity of a state statute, even when that statute concerns the apportionment of legislative districts. "This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law's passage." Id . at 1953. State legislatures must leave to the executive officials of the state, such as a governor or attorney general, the vindication of the state's interest in the...