Category: U.S. Supreme Court

After Court Rulings, In-Person Voting Proceeds in Supreme Court Election

Posted on by Hamilton

After rulings from the Supreme Court of the United States and the Wisconsin Supreme Court the night before election day upheld the April 7 date and absentee voting requirements, Wisconsin’s election for state Supreme Court proceeded with few changes. In-person voting was held, and absentee voter requirements were largely the same (though at record high numbers). Wisconsin’s spring elections included the race between incumbent state Supreme Court Justice Daniel Kelly and Judge Jill Karofsky, as well as the Democratic primary for president and many local offices. Results will not be released until April 13, the deadline for clerks to receive absentee ballots.

 

Background

As COVID-19 began spreading throughout the state, Wisconsin Gov. Tony Evers had initially maintained – and legislative leadership agreed – that the April 7 election in Wisconsin should not be moved. Instead, the Governor and other state and local officials encouraged voters to request absentee ballots. The Governor’s Office was also working with the Wisconsin Elections Commission and local election officials on obtaining sanitizing supplies to keep polling sites clean, obtaining more absentee ballots, recruiting poll workers, and addressing other issues related to the unusual circumstances of these elections.

As the election date came closer, local governments began putting pressure on the Evers administration to make changes to keep poll workers and voters safe. On March 22, a large group of local officials sent Gov. Evers and legislative leadership a letter asking for options to make holding elections easier on municipalities and voters in the midst of COVID-19.

On March 27, Gov. Evers called on the Legislature via Twitter to send absentee ballots to all Wisconsin voters. Legislative leadership said this would not be logistically feasible in time for the April 7 election. (Senate Majority Leader Fitzgerald statement. Assembly GOP statement.)

On April 3, Gov. Evers called for a special session of the legislature to make changes for the April 7 election, including: making the election mail-in only, sending ballots to all registered voters who have not yet requested one, and extending the time for ballots to be received to May 26. The Legislature gaveled in and out of the session without taking up any legislation.

 

State Lawsuit on Changing the Election Date

Despite stating multiple times that he could not and did not want to move the election date, on April 6, the night before the election, Gov. Evers issued Executive Order #74, moving the spring election date to June 9, 2020 and calling the Legislature into special session to address the election date. Under the order, voters could continue to request absentee ballots until then and ballots already submitted would be counted. Local elected office terms would be extended until the results of the June date were finalized.

Legislative leaders immediately filed an emergency petition for original action and motion for temporary injunction with the Wisconsin Supreme Court to block the Governor from moving the election (memo in support of the filings). Later the same day, the Supreme Court approved the Legislature’s motion, reinstating in person voting for April 7.

The 4-2 decision (split between the conservative and liberal justices) said the Governor does not have the constitutional or statutory authority to suspend the elections statutes. According to the court, the Governor’s emergency powers in Wis. Stat. § 323.12(4)(b) give him the power to suspend administrative rules, not statutes, in the name of public safety. The Legislature would have to give the Governor explicit authority to change statutes in the event of an emergency.

A dissent from Justices Walsh Bradley and Dallet argued that Wisconsin statutes do provide the Governor and the Department of Health Services the authority to implement emergency measures, including moving elections, during a public health emergency (see Wis. Stat. § § 252.02 and 323.12(4)(b). The dissent said the court should have upheld the executive order for the safety of Wisconsin voters.

Justice Daniel Kelly, who is on the April 7 ballot, did not participate.

 

Federal Lawsuit on Election Date & Absentee Voting Requirements

Also the night before the election, a major case in federal court regarding Wisconsin’s April election was resolved by the U.S. Supreme Court.

Three cases seeking changes to absentee voting for the April 7 election had been consolidated by a federal judge. 

  1. The Democratic National Committee sought to move the mail-in registration deadline and waive voter ID requirements during the pandemic. (A federal judge had already extended the deadline to request a mail-in ballot to April 2.)
  2. The League of Women Voters sought to waive the witness signature requirement on absentee ballots during the pandemic.
  3. Another lawsuitfiled by Souls to the Polls, Voces de la Frontera and Black Leaders Organizing for Communities argued that minority voters will be disenfranchised if the Wisconsin Elections Commission does not move the April 7 election date.

The state Department of Justice, representing Gov. Evers, had submitted a brief asking that the court again extend the deadline for requesting an absentee ballot and relax witness signature requirements, among other recommendations, while still keeping in person voting on April 7.

On April 2 the judge ruled there would be no change to the election date, but absentee ballots could be received until April 13. Ballots postmarked after April 7 could still be counted, contrary to current law. The judge’s amended order noted that election results could not be made public until April 13. The judge declined to waive voter ID requirements.

The district court judge also waived the requirement for absentee voters to have their ballot signed by a witness, but this provision was overturned by the 7th Circuit Court of Appeals.

Republicans ultimately appealed to the U.S. Supreme Court. The night before the election, the U.S. Supreme Court overturned the district judge’s ruling. The decision says absentee ballots must be postmarked by April 7 and received by April 13. Ballots delivered in person must be delivered on April 7.

 

Other Lawsuits

The City of Green Bay filed a lawsuit against the Wisconsin Elections Commission, Gov. Evers, and Department of Health Services Secretary Andrea Palm, seeking to move the election date and switch to mail-in voting only. A federal judge dismissed the case on March 27.

The Republican Party of Wisconsin asked the Wisconsin Supreme Court to intervene in Milwaukee and Dane counties, where clerks have said voters may note their status as “indefinitely confined” to avoid voter ID requirements. A Supreme Court order barred election officials from giving such advice.

 

Election Day

With the lawsuits resolved, Wisconsin’s election day proceeded largely as planned. Gov. Evers deployed the National Guard to help where there are shortages of poll workers, and many local clerks took creative safety precautions to protect poll workers and voters.

On the ballot for Supreme Court was incumbent conservative Justice Daniel Kelly and liberal Dane County Circuit Court Judge Jill Karofsky. Read more about the candidates. Results will be available April 13.

 

 

 

Federal Extraordinary Session Case Dismissed

Posted on by Hamilton

The U.S. District Court for the Western District of Wisconsin recently dismissed DPW v. Vos, the federal case challenging the 2018 extraordinary session laws. The Democratic Party of Wisconsin (DPW) had filed a complaint in February seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. DPW alleged that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause (a clause assuring States shall have a republican form of government).

The district court opinion states that it is not federal courts’ role to intervene in how states allocate power among their branches of government. Any remedy to the plaintiffs’ alleged harms would have to occur in state courts. The Wisconsin Supreme Court ruled this summer in League of Women Voters v. Evers that the Legislature’s extraordinary session was held constitutionally. The state Supreme Court is hearing oral arguments this month in SEIU v. Vos, which will litigate the policies contained in the legislation passed during the extraordinary session.

The district court further held that the plaintiffs lacked standing because they had not identified any concrete harms from the extraordinary session laws. The district court cited the recent U.S. Supreme Court decision Gill v. Whitford, the Wisconsin redistricting case, holding that plaintiffs must have “concrete and particularized” injuries and that voters do not have legally protected interests in advancing particular policies. The court found that the extraordinary session laws did not prohibit or require any actions by the plaintiffs. Instead, the laws were directed at the governor and attorney general, so plaintiffs had no standing to file the lawsuit.

Read more about this and other extraordinary session litigation at https://www.wisciviljusticecouncil.org/2019/04/10/extraordinary-session-litigation-update/

Wisconsin Redistricting Case Dismissed Following U.S. Supreme Court Decision

Posted on by Hamilton

The U.S. Supreme Court recently held in Rucho v. Common Cause that partisan gerrymandering claims are nonjusticiable political questions. As a result, plaintiffs and defendants agreed to dismiss the redistricting case Gill v. Whitford, which challenged Wisconsin’s state legislative district maps.

The 5-4 Supreme Court decision dismissed the plaintiffs’ arguments that redistricting maps in North Carolina and Maryland violated the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I § 2 of the U.S. Constitution. The Court held that the Constitution does not prohibit partisan intent in redistricting. Furthermore, the court could not determine any judicially enforceable limits on partisan motivation in districting maps and instead left the option for reforms to redistricting processes to Congress and state legislatures.

In 2018, after the Supreme Court initially ruled they lacked standing, Wisconsin plaintiffs in Gill refiled their federal redistricting case against the 2010 map drawn by Assembly Republicans. The plaintiffs, all Democratic voters from Wisconsin, argued similarly to the Rucho plaintiffs that the map violated their rights to association and equal protection because it unfairly diminished their chances to achieve a majority and resultant legislative outcomes.

While the Supreme Court’s initial Gill decision addressed standing, the Rucho decision addressed whether the merits of partisan gerrymandering claims are justiciable questions. After the Rucho court declared partisan gerrymandering claims nonjusticiable, the Wisconsin plaintiffs and defendants in the Gill both agreed to dismiss the refiled case without deciding the merits.

As a result of the Rucho decision, any reforms to redistricting processes in Wisconsin must come from the legislature. Wisconsin Democrats have introduced a bill that would authorize the nonpartisan Legislative Reference Bureau to draw redistricting maps. However, the bill is unlikely to move in the Republican-controlled Legislature.

Conversation with Former Judge Kavanaugh Clerk Rebecca Taibleson

Posted on by Hamilton

On Aug. 3, the Madison chapter of the Federalist Society hosted a discussion with Rebecca Taibleson, former clerk to U.S. Supreme Court nominee Judge Brett Kavanaugh. Taibleson discussed her time clerking for Kavanaugh, compared it with her experience as clerk to current U.S. Supreme Court Justice Antonin Scalia, and reflected on Kavanaugh’s judicial philosophy. Taibleson answered questions about where Kavanaugh, if confirmed, might fall on Supreme Court issues such as the second amendment and Chevron deference.

Click here for the full conversation, moderated by Wisconsin Chief Deputy Solicitor General Ryan Walsh.