Seventh Circuit Halts Expansion of Wisconsin Absentee Voting

The majority found that making changes to election law is the task of elected officials, not the courts, while a dissenting judge slammed the ruling as a “travesty.”

Robert Forrestal, left, wears a full face chemical shield to protect against the spread of coronavirus as he votes in Janesville, Wis., on April 7, 2020. (Angela Major/The Janesville Gazette via AP)

CHICAGO (CN) — The Seventh Circuit on Thursday rolled back changes a Wisconsin federal judge made to the state’s general election deadlines and rules as a coronavirus precaution, delivering a win for conservatives fighting tooth and nail against any alterations to election law ahead of the Nov. 3 election.

Litigants ranging from the Democratic National Committee and Democratic Party of Wisconsin to local advocacy groups like Black Leaders Organizing for Communities have been pushing hard in court to ease election rules ever since Wisconsin’s controversial April primary, when voters donned masks and gloves to brave the polls in person during the early weeks of the Covid-19 pandemic. Some in cities like Milwaukee waited hours in long, congested lines to cast their ballot while risking exposure to the deadly virus.

Four federal lawsuits—some brought by voters claiming they were disenfranchised during April’s chaotic primary—were eventually consolidated in Madison federal court under U.S. District Judge William Conley, who tried to extend absentee voting for the April primary but was blocked by the U.S. Supreme Court.

The six members of the bipartisan Wisconsin Elections Commission have nominally been the defendants in those four lawsuits, but the intervening GOP-controlled Wisconsin Legislature, Republican National Committee and Republican Party of Wisconsin have been the ones resisting the requested changes from the start, mostly in the name of protecting the integrity of the ballot box.

After the parties argued anew in Madison in early August, Conley issued a decision last month that eased certain election rules and pushed back some voter registration and absentee ballot deadlines, positing that the changes were necessary to avoid overwhelming election clerks with an unprecedented number of absentee ballots and potentially disenfranchising tens of thousands of voters.

Most importantly, Conley’s decision extended the deadline for online and mail-in voter registration from Oct. 14 to Oct. 21 and extended the receipt deadline for absentee ballots, which would have allowed clerks to count the ballots until Nov. 9 as long as they were postmarked by Election Day.

The district court opinion also made it easier for certain voters to access their ballot online if they did not receive it in the mail in time and allowed election clerks to work in any Wisconsin county, not just the county where they live.

The Wisconsin Legislature promptly appealed to the Seventh Circuit in Chicago, but the appeals court did not bite at first, finding that the legislature had not suffered injuries to its own interests and did not have standing to appeal because it is up to Wisconsin’s executive branch to defend the state’s interests in court.

But after the Wisconsin Supreme Court was asked whether the legislature has the authority to represent the state’s interest in the validity of state laws, the state’s high court came back in the legislature’s favor 4-3 and found that current law grants it such authority.

The legislature gets that authority, the state supreme court’s conservative wing said, under a decision issued in June in one of multiple suits over lame duck laws passed in late 2018 to limit the executive powers of Wisconsin Governor Tony Evers and Attorney General Josh Kaul, both Democrats.

Taking the high court’s answer to the certified question in mind, a Seventh Circuit panel reversed course on Thursday and ruled 2-1 that the standing election laws in Wisconsin should be reinstated and followed by the book for the general election.

The panel’s majority ultimately found that Conley had been too late to make changes to election law and that making those adjustments is the task of a state’s elected officials, not the courts.

While the majority acknowledged that the U.S. Supreme Court does permit last-minute changes in limited circumstances, they said “it is not possible to describe Covid-19 as a last-minute event” since voters have had months since the messy April primary to register to vote and obtain absentee ballots and the pandemic is not a new event.

“The World Health Organization declared a pandemic seven months ago, the state of Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections…during the pandemic,” the per curiam opinion states. “If [Judge Conley] had issued an order in May based on April’s experience, it could not be called untimely. By waiting until September, however, the district court acted too close to the election.”

The three-judge panel’s majority consisted of U.S. Circuit Judges Frank Easterbrook and Amy St. Eve, appointees of Ronald Reagan and Donald Trump, respectively.

In a searing dissent, U.S. Circuit Judge Ilana Rovner laced into the majority for overturning Conley’s “limited, reasonable set of modifications to Wisconsin’s election rules,” saying that “no citizen should have to choose between her health and her right to vote.”

Arguing that judicial intervention ahead of Wisconsin’s April primary was the only thing that kept 80,000 or so legitimate ballots from going uncounted, Rovner accused her colleagues of taking “a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote,” which falsely feigns powerlessness to make reasonable changes to election law in the face of unprecedented challenges brought about by Covid-19 and defers to a state legislature that “sits on its hands while a pandemic rages.”

“This is a travesty,” Rovner lamented.

The George H.W. Bush appointee expressed she was “dismayed to be dissenting,” considering that “it is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on Election Day.”

“Good luck and G-d bless, Wisconsin. You are going to need it,” she wrote.

The Democratic National Committee and attorneys who represented liberals in the suit could not be immediately reached for reaction to the Seventh Circuit’s decision Thursday.

Andrew Hitt, chair of the Republican Party of Wisconsin, tweeted kudos to the appeals court for its ruling a little more than an hour after its release.

“The law is the law and Wisconsin Republicans will continue to make sure it is followed to ensure the integrity of this election,” Hitt said.

While the Seventh Circuit’s decision does reinstate current Wisconsin election laws, on a procedural level it only puts Conley’s injunction on hold while the appeals court comes to a final conclusion.

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