Lena Taylor, Tory Lowe, & Justice Wis., Inc. v. Milwaukee Election Comm'n

• Decision Date: 06 April 2020
• Docket Number: Case No. 20-cv-545-pp
• Citation: 452 F.Supp.3d 818
• Parties: Lena TAYLOR, Tory Lowe, and Justice Wisconsin, Inc., Plaintiffs, v. The MILWAUKEE ELECTION COMMISSION, Neil Albrect, Theresa R. Gabriel, Stephanie D. Findly, Carmen C. Cabrera, Jess Ripp, The Wisconsin Election Commission, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark Thomsen, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

452 F.Supp.3d 818

Lena TAYLOR, Tory Lowe, and Justice Wisconsin, Inc., Plaintiffs,

v.The MILWAUKEE ELECTION COMMISSION, Neil Albrect, Theresa R. Gabriel, Stephanie D. Findly, Carmen C. Cabrera, Jess Ripp, The Wisconsin Election Commission, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark Thomsen, Defendants.

Case No. 20-cv-545-pp

United States District Court, E.D. Wisconsin.

Signed April 6, 2020

Taylor Lena, Milwaukee, WI, pro se.

Tory Lowe, Milwaukee, WI, pro se.

Justice Wisconsin, Milwaukee, WI, pro se.

ORDER DENYING THE PLAINTIFFS' EMERGENCY MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 11)

HON. PAMELA PEPPER, Chief United States District Judge

Plaintiff Lena Taylor currently is a Wisconsin state senator representing the 4th District, which includes the 53206 zip code, a predominantly African American neighborhood. Dkt. No. 1 at 3. Plaintiff Taylor is African American and lives in Milwaukee; she is running for mayor in Wisconsin's April 7, 2020 primary. Id. Plaintiff Tory Lowe is running for alderman in the City of Milwaukee's 6th aldermanic district, which also includes the 53206 zip code. Id. Plaintiff Lowe also is African American and a citizen of Milwaukee. Id. Plaintiff Justice Wisconsin Inc. "is a non-for-profit organized under the laws of the State of Wisconsin with a primary office in Milwaukee and whose primary purpose is to better the lives of residents in the inner city and elsewhere and it has a significant interest as a civil rights organization in a free and unrestricted election;" it was founded by plaintiff Lowe. Id. at 4.

One and a half business days before the scheduled start of the April 7, 2020 election, the plaintiffs filed in the district court for the Eastern District of Wisconsin a "Verified Complaint for Declaratory Relief and Injunctive Relief." Dkt. No. 1. The complaint sues the Milwaukee Election Commission and its five members (in their official capacities) and the Wisconsin Election Commission and its six members (in their official capacities). Id. at 1. The complaint alleges that the defendants violated the plaintiffs' civil rights under 42 U.S.C. § 1983 (particularly, that the defendants violated their rights under the First, Fourteenth, Fifteenth, Sixteenth and Twenty-Sixth Amendments to the Constitution) and violated 28 U.S.C. §§ 2201 and 2202. Id. at 18-21. It also alleges that the defendants abridged the plaintiffs' voting rights in violation of 52 U.S.C. § 10301. Id. at 22. The suit seeks injunctive relief in the form of a temporary restraining order and a preliminary injunction under Fed. R. Civ. P. 65. Id. at 25-26. Among the forms of injunctive relieve the plaintiffs seek is a court order that the election scheduled to take place on April 7, 2020—again, one and a half business days after they filed their motion—be postponed until September 2020, due to the impact of the COVID-19 crisis.

I. Procedural History

The plaintiffs attached documents to the complaint: a memo from someone at the Wisconsin Legislative Reference Bureau, answering plaintiff Taylor's questions about early voting (dkt. no. 1-1); a September 12, 2019 article from the Brookings Institution called "Setting the record straight on Black voter turnout" (dkt. no. 1-2); a March 27, 2020 article from Wisconsin Public Radio's web site titled "COVID-19 Deaths Concentrated in Milwaukee's African American Community" (dkt. no. 1-3); minutes of a March 18, 2020 meeting of the Wisconsin Elections Commission (dkt. no. 1-4); a March 12, 2020 memo from Meagan Wolfe, the administrator of the Wisconsin Elections Commission, regarding election procedures and the COVID-19 public health emergency (dkt. no. 1-5); a March 13, 2020 memo from Wolfe, regarding "COVID-19 Frequently Asked Questions (FAQ's) and Guidance on Procedural Changes for Care Facility Absentee Voting and Polling Place Relocation" (dkt. no. 1-6); a March 22, 2020 article from the WTMJ-4 web site titled "Milwaukee early voting sites closed over COVID-19 exposure concerns" (dkt. no. 1-7); a March 22, 2020 article from the Fox6Now.com web site titled "Milwaukee's 3 early voting sites shut down ‘due to increased COVID-19 exposure risk’ " (Dkt. No. 1-8); a printout from https://censusreporter.org/profiles showing a profile for zip code 53206 (dkt. no. 1-9); a document that appears to be a printout from the Milwaukee Public Library's web site, showing that fifteen public libraries are temporarily closed (this document is not dated) (dkt. no. 1-10); a March 25, 2020 article from JSonline titled "Absentee voters in Milwaukee, Dane counties can say they're ‘indefinitely confined’ and skip photo ID, clerks say" (dkt. no. 1-11); a white paper by Marc V. Levine of the University of Wisconsin-Milwaukee, posted on the UWM Digital Commons, titled "Milwaukee 53206: The Anatomy of Concentrated Disadvantage in an Inner City Neighborhood, 2000-2017" (dkt. no. 1-12); a December 6, 2018 article from the Appleton Post-Crescent titled "Census data: Minnesota beats Wisconsin on high-speed internet access, too" (dkt. no. 1-13); and the executive summary of the Levine white paper, published by the University of Wisconsin-Milwaukee's Center for Economic Development (dkt. no. 1-14).

In an order docketed around 2:00 p.m. on Sunday, April 5, 2020, the court denied without prejudice the plaintiffs' motion for a preliminary injunction, because they had not presented proof that they had given notice to the adverse parties as required by Fed. R. Civ. P. 65(a)(1). Dkt. No. 4. Since then, counsel has made an appearance for the Milwaukee Election Commission and its individual members (dkt. no. 5), the plaintiffs have filed a declaration and supporting documents confirming that they provided notice to the adverse parties (dkt. no. 6) and the plaintiffs have renewed their motion for a preliminary injunction (twice, in fact, due to the court's failure to see it the first time because it wasn't designated a "renewed" motion) (dkt. nos. 7, 11). The Wisconsin Legislature has filed a motion to intervene (dkt. no. 16) and a proposed motion to dismiss which also serves as its opposition to the motion for preliminary injunctive relief (dkt. no. 20). The Wisconsin Election Commission and its individual members oppose the plaintiffs' motion for injunctive relief (dkt. no. 18), as do the Milwaukee Election Commission and its individual members (dkt. no. 19).

The court gave the plaintiffs a deadline of 2:30 p.m. on April 6, 2020 to file a reply in support of their motion. Dkt. No. 15. In lieu of a brief or supporting documents, the plaintiffs' counsel filed a letter that states the following:

Dear Judge Pepper:

You had requested input from the parties as to the desirability of oral argument and other matters. As I understand it, Governor Evers has issued an order that may result in delaying the allegedly deficient election. Plaintiffs do not believe that oral argument will help to clarify the issues raised in the parties' submissions at this point. Plaintiff proposes to rely on their written submissions, including all exhibits as filed today. However, given the substantial filings raising multiple issues, I would suggest that we enter a scheduling order on the underlying complaint as well as any issues that remain. We do expect a judicial challenge to the executive order and so we ask that jurisdiction be maintained until there is a truly final order or decision.

Dkt. No. 22.

Between noon on April 6, 2020, when the court issued its deadline for the plaintiffs to file a reply, and the 2:30 deadline the court had set for them to do so, Wisconsin Governor Tony Evers issued Executive Order #74, suspending in-person voting until June 9, 2020. https://evers.wi.gov/Documents/COVID19/EO074-Suspending InPerson VotingAnd Special Session2.pdf. The Wisconsin Legislature also had challenged that order in the Wisconsin Supreme Court. Wisconsin Legislature v. Tony Evers, 2020AP000608 (Wis.), available at https://wscca.wicourts.gov/.

The court held a telephone hearing at 3:30 p.m. on April 6, 2020. Counsel for the plaintiffs, the WEC and its individual members and the MEC and its individual members participated, as did counsel for proposed intervenor the Wisconsin Legislature. In addition, a person who identified himself as Attorney Walter Hackett stated that he had been retained by two voters but had not yet filed an appearance.

During the hearing, plaintiffs' counsel told the court that the plaintiffs planned to stand on their pleadings to date; they did not intend to file additional briefs or documents in support of the motion for preliminary injunction. Counsel told the court that by asking for a "scheduling order on the underlying complaint," counsel had meant to ask that the case proceed as it otherwise would, under the "standard" scheduling order. Counsel also told the court that in asking that "jurisdiction be maintained," the plaintiffs had meant to ask the court not to sua sponte dismiss the motion for injunctive relief or the complaint based on Governor Evers's executive order.

The court indicated that as for "scheduling" orders, it already had set a briefing schedule for the plaintiffs' motion for a preliminary injunction. The defendants and the proposed intervening defendant had filed briefs, and the plaintiffs had indicated that they did not plan to file a reply. As for the complaint, the court stated that there was no need for it to issue a "scheduling order"— Fed. R. Civ. P. 4 described the service of process requirement, after which Rule 12 governed the time for the defendants to answer or otherwise respond. Finally, the court stated that Civil Local Rule 7(b) for the Eastern District of Wisconsin (https://www.wied.uscourts.gov/sites/wied/files/documents/Local% 20Rules% 202010-0201-% 20Amended% 202019-0903.3.pdf) governed the briefing schedule for the Wisconsin Legislature's motion to intervene (dkt. no. 16) and its proposed motion to dismiss¹ (dkt. no. 20); under that...