Case: 3:20-cv-00249 Document #: 1 Filed: 03/18/20 Page 1 of 16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Civil Action No. 3:20-cv-249

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN file this Complaint for Declaratory and Injunctive Relief against Defendants MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners, and allege as follows:
NATURE OF THE CASE 1. The United States is in the throes of an unprecedented crisis. COVID-19 is spreading throughout the country, infecting thousands of citizens in communities across the nation, including Wisconsin, which has at least 72 reported cases of the COVID-19 coronavirus and counting. As a result, Americans⸺including Wisconsinites⸺are forced to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, with no clear end in sight. Indeed, the latest projections indicate that this crisis may persist for 14 to 18 months.

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2. As Wisconsin citizens continue to distance themselves to ensure their safety, many will be unwilling and unable to risk their safety and the safety of others by waiting in line to register to vote and cast their vote on election day. Many Wisconsin citizens also will be unwilling and unable to take on the safety risks of leaving their homes to obtain documents and to copy documents that are required under Wisconsin law to register to vote and to obtain an absentee ballot. In addition, it appears increasingly likely that the federal and local governments may start issuing mandatory shelter-in-place directives. Thus, even if potential voters were inclined to act against the strong and unanimous advice of the nation’s health authorities, they may no longer be able to do so.
3. Given these extraordinary circumstances, it is not surprising that Wisconsinites⸺ faced with this unconscionable choice between their safety and potentially endangering the lives of others and exercising their fundamental right to vote⸺are relying on absentee voting at an unprecedented level. The Wisconsin Elections Commission reports that “Wisconsin voters are [already] requesting absentee ballots at a record pace with concerns about Coronavirus COVID19.”1 As of yesterday, more than 173,000 absentee applications had been received by Wisconsin municipal clerks, exceeding total requests for three of the last four Spring elections. And it is all but certain that this number will continue to increase.
4. In this unprecedented situation, multiple provisions of law that establish requirements for registering to vote and absentee voting are now posing direct and severe obstacles to voting. These provisions are: (1) the current electronic and by-mail registration deadline, Wisc. Stat. § 6.28(1); (2) requirement that copies of proof of residence accompany electronic and by-
1 Wisconsin Elections Comm., Absentee Ballot Requests for April 7 Already Exceed Last Three Spring Election Absentee Number Due to COVID-19, March 17, 2020, https://elections.wi.gov/node/6731.
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mail voter registration, id. § 6.34; (3) requirement that copies or scans of photo identification accompany absentee ballot applications, id. § 6.86; and (4) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted (“Election Day Receipt Deadline”), id. § 6.87 (collectively, the “Challenged Provisions”).
5. Each of these provisions, on its own, poses significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election (or any election that occurs while this crisis continues); collectively, these provisions will ensure that many Wisconsin citizens will be unable to vote or will have their ballots discarded. Based on information and belief, without emergency intervention from this Court, thousands of Wisconsin voters will be disenfranchised.
6. Under Wis. Stat. § 6.28(1), electronic and by mail voter registration is scheduled to end today, March 18, 2020. Historically, Wisconsin voters have registered to vote in person in large numbers, relying heavily on same day registration⸺i.e., registering during in-person absentee voting or on election day. As a result, thousands of Wisconsin voters typically do not register before election day. That is the case again this year, as many Wisconsin citizens have not yet registered for the April 7, 2020 presidential primary election since they anticipated being able to register on election day. Because of the effects of COVID-19 on the ability of voters to register and vote in person, combined with today’s deadlines to request absentee ballots, thousands of potential voters who reasonably anticipated registering in person on election day will be without an option after today. Absent intervention by the Court, the electronic and by-mail registration deadline of today will pass, and the safety risks of COVID-19 will prevent countless eligible Wisconsinites from registering and voting altogether.
7. Wis. Stat. § 6.34 will have a similar effect. This provision requires new voters to provide a copy of their proof of residence to register. But as voters are directed by the federal and
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state government to stay home and as commercial businesses and public buildings continue to close, many would-be electronic or by-mail registrants are now without access to the scanners and printers needed to generate copies of the documents required to register to vote. That is because the scanners and printers are often located at places of work, libraries, and commercial establishments (e.g., UPS locations) that are now closed or are unsafe to go to. As a result, many Wisconsin citizens will be unable to obtain the copies they need to complete their voter registration applications and will be prevented from registering.
8. For the same reasons, Wis. Stat. §§ 6.86 and 6.87, requiring a copy of a voter’s photo identification to accompany a request for an absentee ballot, will render voters unable to make such a request.
9. Finally, even if a voter is able to overcome the obstacles to registering to vote and requesting an absentee ballot described above, the April 7 election is a mere two-and-a-half weeks away, and the deadline to request an absentee ballot is even sooner⸺April 2, 2020. This means that the thousands of voters who are now realizing that they must request an absentee ballot to vote safely have just a week-and-a half to request a ballot. Municipal clerks will have scant time to process these requests⸺which are coming in at unprecedented levels and to offices that are likely to be understaffed as people self-quarantine dur to potential exposure to the virus⸺and to mail ballots to voters. Voters receiving those ballots will have, at most, mere days to mail them, with a significant risk that they will not arrive by the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6)⸺and thus, those votes will not be counted. In fact, based on information and belief, Wisconsin’s mail system has already started to slow because of the effects of the coronavirus. As a result, it is highly likely that many absentee ballots will arrive after the Election Day Receipt
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Deadline⸺due to no fault of the voters. These same impediments to voting will continue for any election that occurs while this crisis persists.
10. Accordingly, Plaintiffs file this suit to ensure that Wisconsin voters⸺many of whom are their members and constituents⸺are able to fully exercise their right to vote in the midst of this unprecedented crisis. Plaintiffs seek an emergency injunction from this Court, extending the March 18, 2020 deadline for electronic and by mail voter registration to April 3, the deadline for in-person registration; suspending the requirements that copies of documents be included with voter registration and absentee ballot applications; and enjoining the Election Day Receipt Deadline, while allowing all ballots postmarked on or before election day but received within a minimum of 10 days thereafter to be counted.2
JURISDICTION AND VENUE 11. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of a right secured by the United States Constitution. 12. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 13. This Court has personal jurisdiction over the Defendants, the Commissioners of the Wisconsin Elections Commission, who are sued in their official capacities only. 14. Venue is proper in the U.S. District Court in the Western District of Wisconsin pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred there.
2 The term “postmark” is used to reference any type of marking applied by the USPS including bar codes or other tracking marks indicating that a ballot was mailed on or before election day. If there is no postmark on the ballot, it should be presumed to have been mailed by Election Day.
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15. This Court has the authority to enter a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 16. Plaintiff the Democratic National Committee (“DNC”) is a national committee, as that term is defined by and used in 52 U.S.C. § 30101, dedicated to electing local, state, and national candidates of the Democratic Party to public office throughout the United States. In particular, the DNC is charged with facilitating the Democratic presidential nominating process, which culminates in the 2020 Convention that will take place in Milwaukee, Wisconsin in July. The April 7, 2020 presidential primary election is part of the presidential nominating process, and Democratic voters in that election will make their selections for the Democratic presidential nominee. Moreover, the DNC has members and constituents across the United States, including eligible voters in Wisconsin whose rights to vote will be severely burdened and denied outright by the Challenged Provisions during the current Coronavirus crisis. 17. Plaintiff the Democratic Party of Wisconsin is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public office throughout the State of Wisconsin. The Democratic Party of Wisconsin has members and constituents from across Wisconsin, including many voters whose rights to vote will be severely burdened and denied outright by the Challenged Provisions during the current Coronavirus crisis. 18. As part of their missions, both Plaintiffs work to ensure that their members and constituents are able to effectively exercise their right to vote for their chosen presidential nominee. Plaintiffs are directly harmed by the Challenged Provisions, which by making it more difficult for Plaintiffs’ members and constituents to vote, will require Plaintiffs to expend additional resources to assist their members and constituents to overcome these burdens to exercise their right to vote.
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These are resources that the Plaintiffs otherwise could spend educating voters about core issues and preparing for the general election. See, e.g., Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (political party had standing because of its diversion of resources “to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”), aff’d, 553 U.S. 181, 189 n.7 (2008); One Wisconsin Institute v. Thomsen, 198 F. Supp. 3d 896, 908-10 (W.D. Wis. 2016).
19. Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen are the six Commissioners of the Wisconsin Elections Commission and are named as Defendants in their official capacities. Together, they comprise the Wisconsin Elections Commission, the body that administers and enforces Wisconsin’s election laws, including Wis. Stats. §§ 6.28(1), 6.34, 6.86, and 6.87. See Wis. Stat. § 5.05. Defendants have acted under color of state law at all times relevant to this action.
STATEMENT OF FACTS AND LAW A. Wisconsin Registration and Absentee Laws
20. Wisconsin law provides that registration by mail and electronic registration closes on the third Wednesday preceding an election. Wis. Stat. § 6.28 (1)(a). Thus, for the April 7, 2020 primary election, to use these forms of registration voters must register by today, March 18, 2020.
21. Individuals registering by mail or electronically must provide a copy of an “identifying document that establishes proof of residence.” Wis. Stat. § 6.34(2). The only exception to this rule is for individuals registering electronically who do not have to provide such documentation if they provide “the number of a current and valid operator’s license [or] identification card.” Id. (2m).
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22. Typically, individuals wishing to register after the mail and electronic registration deadline can only do so by registering in-person when they apply for an in-person absentee ballot or on Election Day at a polling place. Id.
23. And, historically, Wisconsin voters rely heavily on same day registration. Since 2008, between 10 to 15% of all registrations have taken place on election day.3
24. Wisconsin also provides a process for absentee voting for all registered absentee voters, allowing them to request an absentee ballot by mail, in person at the municipal clerk’s office, by signing a statement and requesting to receive an absentee ballot, via an agent, special voting deputy, or by e-mail or fax. Wis. Stat. § 6.86(1)(a).
25. All voters are required to present a copy of their proof of identification with their absentee application. Id. (1)(ac).
26. Once a voter has received and completed their ballot, he or she must return it so that “it is delivered to the polling place no later than 8 p.m. on election day.” Wis. Stat. § 6.87(6). B. Coronavirus and the April 7, 2020 Election
27. Over the course of the last few weeks, and with dramatically increased intensity over just the last week, COVID-19 has been spreading throughout the United States, infecting thousands of citizens in communities across the nation, including in Wisconsin. Each day more Wisconsinites are infected and, as more is learned about the virus and its potential reach, citizens and state and local governments are forced to take increasingly unprecedented steps to ensure their safety.
3 Wisconsin Elections Commission, Elections and Voting Statistics, https://elections.wi.gov/elections-voting/statistics?q=elections-voting/statistics&page=2 (last visited, March 18, 2020).
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28. Indeed, just yesterday, Governor Evers ordered a statewide ban on gatherings of more than 10 people. Public and private schools have been closed indefinitely. And bars, restaurants, and other commercial centers are closing.
29. Wisconsinites are now forced to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, with no end in sight.
30. As a result, many Wisconsin citizens are also unable or unwilling to risk their safety and the safety of others by waiting in line to register to vote and cast their vote on election day, or to leave their homes to obtain documents and to copy documents that are required under Wisconsin law to register to vote and to obtain an absentee ballot.
31. Moreover, Wisconsin citizens who are infected cannot leave their homes, even if they are otherwise willing to venture out to exercise their right to vote.
32. Thus, it is not surprising that Wisconsinites are relying on absentee voting at an unprecedented level. The Wisconsin Elections Commission reports that “Wisconsin voters are [already] requesting absentee ballots at a record pace with concerns about Coronavirus COVID19.”4 As of yesterday, more than 173,00 absentee applications had been received by Wisconsin municipal clerks, exceeding total requests for three of the last four Spring elections. And it is all but certain that this number will continue to increase.
33. In this unprecedented situation, the regulatory scheme described above has become hostile to voting rights and, as a direct result, thousands of Wisconsin voters are likely to be disenfranchised.
4 Wisconsin Elections Comm., Absentee Ballot Requests for April 7 Already Exceed Last Three Spring Election Absentee Number Due to COVID-19, March 17, 2020, https://elections.wi.gov/node/6731.
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34. For example, as discussed, thousands of Wisconsin voters typically register in person, relying on same day registration to register and vote. As a result, thousands of Wisconsin voters typically do not register before election day. This year is no different. Many Wisconsin citizens have not yet registered for the April 7, 2020 presidential primary election since they anticipated being able to register on election day. Because of the effects of the Coronavirus on the ability of voters to register and vote in person, these voters will now be without any registration option after today.
35. Similarly, Wisconsin’s requirements that voters provide a copy of their proof of residence to register also burden voters during the current crisis. The scanners and printers that many would-be electronic or by-mail registrants and absentee voters would typically use are often located at places of work, libraries, and commercial establishments (e.g., UPS locations) that are now closed or unsafe to go to. As a result, many Wisconsin citizens will be unable to obtain the copies they need to complete their voter registration applications and will be prevented from registering.
36. The same burdens face voters attempting to comply with Wisconsin’s requirement that they must provide a copy or scan of their voter ID when applying for an absentee ballot. As a result, many voters will be unable to obtain the copies or scans they need to complete their absentee applications and will be prevented from voting.
37. Finally, even if a voter is able to overcome the obstacles to registering and voting described above, the April 7 election is a mere two-and-a-half weeks away, and the deadline to request an absentee ballot is even sooner⸺April 2, 2020. This means that the thousands of voters who are now realizing that they must request an absentee ballot to vote safely have just a week-
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and-a half to request a ballot. Municipal clerks will have just hours or days to process these requests and mail ballots.
38. Accordingly, voters receiving those ballots will have, at most, mere days to mail them, with a significant risk that they will not arrive by the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6) and thus will not be counted. Indeed, there is significant risk that municipal clerks inundated with absentee ballot requests at the April 2 deadline may not even be able to process all such requests by Election Day, much less mail the ballots with sufficient time for voters to return them by Election Day.
39. In fact, based on information and belief, Wisconsin’s mail system has already started to slow because of the effects of the Coronavirus. As a result, it is highly likely that many absentee ballots will arrive after the Election Day Receipt Deadline⸺due to no fault of the voters.
40. Each of these provisions, on its own, poses significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election; collectively, the existence of these provisions means that many Wisconsin citizens will be unable to vote or will have their ballots discarded.
41. Without action from this Court, these laws will continue to burden Wisconsin voters’ right to vote, disenfranching them in the upcoming April 7, 2020, as well as other elections taking place during the COVID-19 crisis.
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CLAIMS FOR RELIEF
COUNT I First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202 Undue Burden on the Right to Vote 42. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 43. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 44. Unless Plaintiffs are granted the relief requested herein thousands of Wisconsin voters’ right to vote, including Plaintiffs’ members and constituents, will be severely burdened (if not wholly eliminated) in the upcoming April 7, 2020 primary election. 45. Because of COVID-19 and the unprecedented social distancing measures that Wisconsin citizens have to take to slow the spread of the virus and to ensure their safety as well as the safety of their friends, families, and neighbors, many Wisconsin voters who would have registered to vote in-person between the March 18, 2020 electronic and by-mail registration cutoff and/or on Election Day will no long be able to register to vote. Similarly, Wisconsin voters are less able and, in some cases, wholly unable to copy and scan documents required to complete their
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electronic and by-mail registration and absentee ballot applications. And, as absentee balloting becomes the only safe way to vote, Wisconsin voters are at a high risk of not receiving their ballots with sufficient time to mail it into the municipal clerk’s office so that it is received prior to the Election Day Receipt Deadline. This too will lead to disenfranchisement.
46. The State cannot provide any colorable justification as to why the March 18, 2020 deadline should not be extended and why ballots received after the Election Day Receipt Deadline should not be counted in light of this unprecedented crisis.
47. In short, the challenged laws are not supported by a state interest that is sufficient to justify the resulting burdens on the right to vote, and thus, these laws violate the First and Fourteenth Amendments.
COUNT II Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process 48. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 49. The Due Process Clause of the United States Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. CONST. amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the government’s action as well as the “degree of potential deprivation that may be created” by existing procedures. Nozzi, 806 F. 3d at 1192–93. Second, “courts must consider the ‘fairness and reliability’ of the existing procedures and the
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‘probable value, if any, of additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally, courts must consider “the public interest, which ‘includes the administrative burden and other societal costs that would be associated with’ additional or substitute procedures. Id. (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, (quotation and citation omitted).
50. Wisconsin’s procedures for registering to vote and absentee voting must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting by mail]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
51. “When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995)).
52. Under the current circumstances, there is little question that Wisconsin’s election process is fundamentally unfair. The nature of the interest at stake in this case⸺the right to vote and to have that vote count⸺is the most precious liberty interest of all because it is preservative of all other basic civil and political rights.
53. But the challenged laws threaten to deprive Wisconsin voters of this right in the
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upcoming election. Given the unprecedented situation at hand, Wisconsin must establish adequate procedures to ensure that voters have a reliable, fair, effective and safe method to cast their ballots in the April 7, 2020 election. Because the challenged laws are markedly inadequate in all of these respects, and substitute procedures are readily available to protect voters’ rights with minimal burden to the State, the challenged laws violate Wisconsin voters’ procedural due process rights.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that in the context of the current Coronavirus crisis, Wisconsin’s current electronic and by-mail registration deadline, Wisc. Stat. § 6.28(1); requirements that copies of proof of residence and voter ID accompany electronic and by-mail voter registration and absentee applications, id. § 6.34, 6.86, respectively; and the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87, are unconstitutional in violation of the First and Fourteenth Amendments; B. Ordering Defendants to extend Wisconsin’s electronic and by-mail registration deadline to the deadline for in-person registration, April 3, 2020; C. Enjoining the enforcement of Wis. Stat. § 6.34’s proof of residency requirement for voter registrations until the COVID-19 crisis is over; D. Enjoining the enforcement of Wis. Stat. §§ 6.86 - 87’s photo identification requirements until the COVID-19 crisis is over; E. Enjoining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office within a minimum of ten days after Election Day; Ballots that do not have a postmark or other marking
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from the USPS shall be presumed to have been mailed by Election Day; F. Awarding Plaintiff its costs, expenses, and reasonable attorneys’ fees pursuant to,
inter alia, 42 U.S.C. § 1988 and other applicable laws; and G. Granting such other relief as the Court deems just and proper.

Dated this 18th day of March, 2020.

Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary Newkirk* PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com acallais@perkinscoie.com scommand@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for the Plaintiffs *Motions for Admission Forthcoming

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN

Civil Action No. 3:20-cv-00249

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs DEMOCRATIC NATIONAL COMMITTEE (“DNC”) and DEMOCRATIC PARTY OF WISCONSIN, by and through their attorneys, respectfully move the Court pursuant to Rule 65 of the Federal Rules of Civil Procedure for a temporary restraining order and, after further proceedings, a preliminary injunction restraining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing (1) the current on-line and mail-in registration deadline, Wisc. Stat. § 6.28(1); (2) requirements that copies of proof of residence and voter ID accompany electronic and by-mail voter registration, id. § 6.34; (3) requirements that copies of photo identification accompany absentee ballot applications, id. §§ 6.86, 6.87; and (4) the requirement that polling places receive absentee ballots by 8:00 p.m. on Election Day to be counted (“Election Day Receipt Deadline”), id. § 6.87 (collectively, the “Challenged Provisions”).
Plaintiffs are entitled to a temporary restraining order and a preliminary injunction because they are substantially likely to succeed on the merits of their claim that the Challenged Provisions

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severely burden the rights of Wisconsin voters and deprive them of a liberty interest. The United States is in the throes of an unprecedented crisis and, as COVID-19 spreads throughout the country, Americans⸺including Wisconsinites⸺are forced to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, with no clear end in sight.1 Wisconsin voters⸺including thousands of Plaintiffs’ members and constituents⸺should not also be forced to make the untenable choice between their safety and potentially endangering the lives of others and exercising their fundamental right to vote. Yet, the Challenged Provisions do just that, forcing voters to resort to in-person registration or to leaving their homes to copy documents. Moreover, they impose arbitrary deadlines that simply cannot be met in the current crisis. If the Challenged Provisions are not enjoined during this unprecedented crisis, they will individually and collectively pose significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election and in any election held while the crisis persists. Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief, and traditional legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and Wisconsin voters outweighs any putative harm to the State, and the relief Plaintiffs seek is in the public interest. In order to maintain the status quo pending determination of their motion for preliminary injunction, Plaintiffs seek an immediate temporary restraining order to prevent these immediate and irreparable injuries to Wisconsin voters’ rights.
For the foregoing reasons, and as set forth in the accompanying Brief in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, the DNC and
1 Just yesterday, in fact, Wisconsin Governor Tony Evers banned public gatherings of more than 10 people effective at 5:00 p.m. on March 17, 2020. Sarah Seifert, Evers bans gatherings of 10 people or more, LEADER-TELEGRAM (Mar. 17, 2020), https://www.leadertelegram.com/covid-19/evers-bans-gatherings-of-people-or-more/article_b9d9d9b3d3a3-5725-a278-5562b2c18ace.html. The latest estimates indicate that the current crisis and social distancing efforts could persist for the next 14 to 18 months.
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Democratic Party of Wisconsin respectfully request that this Court grant an immediate Temporary
Restraining Order and, after further proceedings, a Preliminary Injunction enjoining (1)
enforcement of the March 18 electronic and by-mail voter registration deadline and extending it
to April 3; (2) the requirement that new voter registrations include copies of proof of residency,
(3) the requirement that absentee voters include a copy of voter identification with absentee ballot
requests, and (4) the rejection of ballots that are postmarked on or before Election Day and arrive
at a polling place or municipal clerk’s office within, at a minimum, ten days of Election Day and
ballots that do not have a postmark or other marking from the United States Postal Service are
presumed to have been mailed on or before Election Day.
Dated this 18th day of March, 2020.
Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk* PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com acallais@perkinscoie.com scommand@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460
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Case: 3:20-cv-00249-jdp Document #: 2 Filed: 03/18/20 Page 4 of 4 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs *Motion for Pro Hac Vice Forthcoming
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 Case: 3:20-cv-00249-wmc Document #: 3 Filed: 03/18/20 Page 1 of 16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Civil Action No. 3:20-cv-00249

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. NATURE OF THE CASE

Plaintiffs, the Democratic National Committee and the Democratic Party of Wisconsin,

bring this emergency motion for a temporary restraining order and a preliminary injunction to

address the immediate and severe effects the coronavirus pandemic is having on the Wisconsin

primary election scheduled for April 7. Plaintiffs are requesting that the Court grant emergency

relief today because a Wisconsin statutory provision, Wis. Stat. § 6.28(1), establishes that today

is the last day for Wisconsin citizens to register to vote electronically or by-mail. After today and

absent intervention by the Court, Wisconsinites will only be able to register to vote in-person,

which will effectively prevent potentially thousands of citizens from participating in the primary.

With the directives from the federal and state government for people throughout the country,

including in Wisconsin, to shelter in place and stay in their homes, registering in person is simply

not feasible. The citizens of Wisconsin should not be forced to violate government directives and

risk their health and that of their families in order to exercise their constitutional right to vote.

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Accordingly, Plaintiffs respectfully request that the Court stay application of Wis. Stat. § 6.28(1) and extend the period for electronic and by-mail registration until at least April 3, 2020.
The extraordinary circumstances created by the coronavirus pandemic also require additional relief—relief beyond staying Wis. Stat. § 6.28(1)—to ensure that there is not widespread disenfranchisement of Wisconsin voters. Because of the government “shelter-inplace” directives and the very real health risks of voting in person, Wisconsin will almost certainly have a dramatic increase in voting by-mail in the primary election and, in all likelihood, in the November general election. This inevitable reality gives rise to a direct clash with a requirement of Wisconsin law—set forth in Wis. Stat. § 6.87(6)—that mail-in ballots must arrive at municipal clerks’ offices by 8:00 p.m. on Election Day in order to be counted, even if ballots were mailed and postmarked before or on Election Day. With the impending surge in mail-in ballots and the strains that the coronavirus pandemic is already placing on the mail system and postal workers, there is a strong likelihood that large numbers of mail-in ballots lawfully cast by Wisconsin citizens—potentially thousands of ballots—will arrive after the 8:00 p.m. deadline on April 7. Absent relief from the Court, those ballots will be thrown away and potentially thousands of citizens will be disenfranchised. There is no legitimate reason for the State to continue to impose this Election Day receipt deadline and certainly not the type of extremely compelling state interest that the State must show given the potential widespread disenfranchisement of Wisconsin voters. Accordingly, Plaintiffs request that the Court stay the application of Wis. Stat. § 6.87(6) and order that the State accept mail-in ballots postmarked on or before Election Day until at least ten days after Election Day.
The final voting provisions that trigger an immediate need for relief are the requirements that: (1) copies of proof of residence accompany electronic and by-mail voter registration
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applications, Wis. Stat. § 6.34; and (2) copies of photo identification accompany absentee ballot applications, id. § 6.86, 6.87. Relief from the documentary requirements is needed because of the severe logistical obstacles that Wisconsin voters face in attempting to generate copies of documents needed to prove residency and identity. With the widespread, government-mandated closings of commercial businesses, libraries, and places of work, voters do not have access to the copiers and scanners needed to generate copies of these documents, and they would put their health at risk by leaving their homes in search of this type of equipment. There are other existing requirements that protect the integrity of ballots that are cast. For instance, a voter must already sign a comprehensive certificate on absentee ballots stating she is a resident of the locality from where she is voting. Wis. Stat. § 6.87(2). This certificate is subject to penalties for false statements. Id. Accordingly, Plaintiffs request that the Court stay the documentary requirements of Wis. Stats. §§ 6.34, 6.86, and 6.87.
In sum, this is a case about an unprecedented public health crisis testing the exercise of fundamental rights. The provisions of Wisconsin law at issue (the “Challenged Provisions”) are forcing voters to choose between risking their health—and the health of others—and casting a ballot or preserving their health and not exercising the right to vote. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Immediate relief is required to protect this basic right for thousands of Wisconsin citizens, including the constituents and members of the Plaintiff organizations.
II. STATEMENT OF FACTS The Democratic presidential primary election is currently scheduled for April 7, 2020. Today, March 18, is the last day for Wisconsinites to submit voter registrations electronically or
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by-mail. Wis. Stat. § 6.28(1). After today, individuals may still register to vote in-person, either at a municipal clerk’s office or at a polling place on Election Day. Id. (citing Wis. Stat. §§ 6.29, 6.55(2)). To register, a voter must include proof of residency. See Wis. Stat. § 6.34. To apply for an absentee ballot, a voter must include a proof of identification with the application. See Wis. Stat. §§ 6.86, 6.87. A voter seeking to vote by-mail absentee must submit an application no later than April 2, 2020, Wis. Stat. § 6.86(6)(b), and the voter must mail his or her absentee ballot so that it arrives at the municipal clerk’s office by 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6). If the absentee ballot arrives after 8:00 p.m. on Election Day—even if cast long before Election Day—it is rejected and the voter is disenfranchised. Id.
Voters must navigate these requirements in the midst of an unprecedented public health crisis enveloping the world. Wisconsin is not exempt from the coronavirus or COVID-19. As of March 17, 72 people in the State had tested positively for the illness. Ex. 4. And, effective 5:00 p.m. on March 17, Governor Tony Evers ordered “a statewide moratorium on mass gatherings of 10 people or more to mitigate the spread of COVID-19.” Ex. 1. Restaurants, bars, indoor shopping malls, and all public and private schools have been ordered closed. Id. Libraries, too, are shuttering across the state, including those in Madison. Ex. 2.
In past elections, same-day voter registration has been a popular option. In the 2016 general election, for example, 12.7% of voters registered on Election Day. Ex. 5. In the 2014 general election, 11.12% of voters participated in same-day registration. Id.
Meanwhile, requests for absentee ballots are “pouring in,” according to the Wisconsin Elections Commission. Ex. 3. Between last Friday, March 13, and Monday, March 16, 64,000 requests have come in. Id. On Monday alone, 39,000 requests for absentee ballots were recorded. As of March 17, 173,773 applications for absentee ballots have been received. Id. This means
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that approximately 22% of all absentee ballot requests through March 16 came on March 16. As the coronavirus and its effects continue to spread, there is little reason to expect these numbers to abate.
As of March 17, elections officials have sent out nearly 129,000 absentee ballots and just over 6,000 completed absentee ballots have been received.1 Ex. 6. But not all these absentee ballots will be counted—even if they are cast on or before Election Day. Many of them will arrive after 8:00 p.m. on Election Day and, as Wisconsin law dictates, they will be rejected. In the 2018 general election, for instance, 1,445 absentee ballots arrived after the Election Day deadline and were therefore not counted, according to data from the Election Assistance Commission.
III. LEGAL STANDARD Under Federal Rule of Civil Procedure 65(b), a court may issue a temporary restraining order without notice to Defendants if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b). “Where the adverse party has received notice of a motion for a temporary restraining order and a hearing has been held on the motion, it is proper for the court to consider the motion as one for a preliminary injunction.” Milwaukee Cty. Pavers Ass’n v. Fielder, 707 F. Supp. 1016, 1018 n.3 (W.D. Wis. 1989); see also Planned Parenthood of Wis., Inc. v. Van Hollen, 963 F. Supp. 2d 858, 865 (W.D. Wis. 2013). “[T]he same showing is required to obtain either” a temporary restraining order or a preliminary injunction. Van Hollen, 963 F. Supp. 2d at 865 (citing Winnig v. Sellen, 731 F. Supp. 2d 855, 857 (W.D. Wis. 2011)). “‘To win a preliminary injunction, a party must show that it has
1 Wis. Elections Comm’n, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (Mar. 17, 2020), available at https://elections.wi.gov/node/6730.
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(1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.’” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011)). “If the moving party makes this threshold showing, the court ‘weighs the factors against one another, assessing whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.’” Id. (quoting Ezell, 651 F.3d at 694). This Court “applies a sliding scale in weighing whether preliminary relief is warranted.” Van Hollen, 963 F. Supp. 2d at 864. “[T]he more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009).
IV. ARGUMENT A. Plaintiff is likely to succeed on the merits.
The Challenged Provisions disenfranchise valid voters during an unprecedented public health crisis and deprive Wisconsinites of their liberty interest in voting without due process of the law. Plaintiffs are therefore highly likely to succeed on the merits of their claims.
a. Plaintiffs are likely to succeed on their right-to-vote claim. The Challenged Provisions severely restrict Wisconsin voters’ right to vote by forcing them to venture out in public during a public health crisis—contrary to governmental guidance, see, e.g., 1–2, 4—or else not vote. Under the Anderson/Burdick balancing test, the Supreme Court requires courts to “weigh ‘the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’” considering “‘the extent to which those
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interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983)). This inquiry is highly fact-specific and may not be undertaken by rote. Rather, the court applies a “flexible standard.” Id. When voting rights are severely restricted, a law “must be narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 280 (1992). But even less severe burdens remain subject to balancing: “[h]owever slight” the burden on voting rights may appear, “it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (controlling op.) (quoting Norman, 502 U.S. at 288–89). In evaluating the burden a law imposes, a court must focus on both the burden on the general electorate and the effect on the actual individuals affected by the law. Id. at 201; see also One Wis. Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896, 930 (W.D. Wis. 2016).
Courts have repeatedly recognized that disenfranchisement severely burdens the right to vote—and that even disenfranchising a small number of voters can give rise to a severe burden. See, e.g., League of Women Voters of N.C. (“LOWV”) v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014); see also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”); Ne. Ohio Coal. for the Homeless (“NEOCH”) v. Husted, 696 F.3d 580, 597 (6th Cir. 2012).
Here, the Challenged Provisions operate to disenfranchise thousands of voters by forcing them to venture out in public during a global pandemic and risk contracting an ailment that has killed thousands globally—or else not vote. Today’s voter registration deadline means that individuals wishing to register to vote can only do so in-person. See Wis. Stat. § 6.28(1) (citing
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Wis. Stat. §§ 6.29, 6.55(2)). Currently, individuals are being urged, if not ordered, to avoid public spaces. Ex. 1. Understandably, many individuals will abide by these precautions and will not leave their homes to go to the municipal clerk’s office or a polling place on election day or during the early vote period. Thus, they will remain unregistered and unable to exercise their fundamental right to vote.
This is similar to a case decided in the wake of the devastating Hurricane Matthew. In Florida, a federal court explained that the state imposed a “severe burden on the right to vote” when the hurricane and subsequent evacuations prevented eligible voters from registering to vote. Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016). If the state enforced its deadline, that court explained, it “would categorically deny the right to vote” to thousands of individual and it would be “nonsensical to prioritize those deadlines over the right to vote.” Id. at 1258. In fact, courts have regularly held election deadlines must give way for voters to have their votes cast and counted. See id.; see also Ga. Coal. for the Peoples’ Agenda, Inc., v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016) (granting preliminary injunction to extend voter-registration deadline due to a hurricane and observing that “an individual’s loss of the right to vote is clearly an irreparable injury that outweighs any damage caused by extending the deadline”).
Additionally, the Challenged Provisions require individuals registering to vote or voters applying for an absentee ballot to provide copies of documentation—proof of residency for registrants and voter identification for absentee ballot applicants. See §§ 6.34, 6.86, 6.87. But to provide these documents means a voter must locate a copier, scanner, computer, and/or printer. These are machines not every individual or household has access to, particularly among lessaffluent populations, the elderly (a population specifically at risk in this pandemic), and college
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students, among others. Even more, libraries (which likely have public access to copiers, scanners, and printers) are closing throughout the state. See, e.g., Ex. 2. Therefore, among large swaths of Wisconsin’s population, to provide the required documentation means leaving the house, locating a copier, scanner, and/or printer (a task increasingly more difficult as locations with those machines shutter), and being exposed to the coronavirus. Again, individuals will understandably decline to risk their health and the health of the public to scan a document. Thus, these requirements also severely burden individuals’ voting rights because it unnecessarily risks their exposure to a deadly virus and results in disenfranchisement.
Finally, the Challenged Provisions require that absentee ballots be received by election offices no later than 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6). If an absentee ballot arrives after 8:00 p.m. on Election Day, it is not counted. Id. As more and more people request absentee ballots to avoid venturing out into crowded spaces during a global pandemic, these deadlines operate with suppressive effect. They inundate local elections officials and risk preventing them from processing the voluminous requests for absentee ballots. Moreover, the Election Day deadline prevents having ballots counted even if they are sent on or before Election Day.
In a situation analogous for its lack of foreseeability, one court allowed ballots cast on or before Election Day—but received after Election Day—to be counted due to the anthrax attacks of 2002. In re Holmes, 788 A.2d 291 (N.J. Sup. Ct. 2002). The court held that “rigid application of the rule that all ballots be received by the board by 8:00 P.M. of Election Day would unfairly deprive absentee voters of their franchise as a result of exceptional circumstances neither within their control nor which, in light of human experience, might reasonably be expected.” Id. at 295. The same must result here. In similar contexts, courts have held that deadlines must give way when voting rights are at stake. See Doe v. Walker, 746 F. Supp. 2d 667, 677 (D. Md. 2010)
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(extending deadline to count votes after UOCAVA challenge); United States v. Cunningham, No. 3:08-cv-709, 2009 WL 3350028, at *4 (E.D. Va. Oct. 15, 2009) (same).
No “precise interest” Wisconsin articulates can justify the burdens the Challenged Provisions inflicts on its voters. Anderson, 460 U.S. at 789. First, while the State has an interest in identifying a deadline for voter registrations, it has no precise interest in limiting voter registrations after today to only in-person registrations. In fact, the State offers same-day voter registration, in-person voter registration at municipal clerks’ offices through April 3, Wis. Stat. 6.29(2)(a), and is equipped to process registrations as late as Election Day. This limitation to only in-person registrations is all the more puzzling when the state itself has issued a press release identifying near record-breaking levels of absentee ballot requests—indicating that the electorate justifiably fears in-person interactions at the polling place or city hall. Ex. 3.
Second, while Wisconsin has interests in preventing voter fraud and ensuring electoral integrity, these interests do not justify the severe burden of requiring registrants and voters to seek out scanners, copiers, and printers during a global pandemic. The state’s interests can be solved by far less risky means. For instance, a voter must already sign a comprehensive certificate on absentee ballots stating she is a resident of the locality from where she is voting. Wis. Stat. § 6.87(2). This certificate is subject to penalties for false statements. Id.
Finally, while the state has an interest in ensuring the finality of elections, rejecting validly cast ballots that happen to arrive after 8:00 p.m. on Election Day does not serve that interest. In fact, this purported state interest is undercut by Wisconsin’s own processes. Ballots are still being processed long after Election Day. For instance, voters who cast provisional ballots have until 4:00 p.m. on the Friday after Election Day to cure them, while local boards of canvassers have until 9:00 a.m. on the Monday following Election Day to record and count the
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cured ballots. See Wis. Stat. § 6.97(3)–(4). County clerks need not deliver the election’s results to the State Election Commission until “no later than 9 days after each primary.” Wis. Stat. § 7.60(5). Even more, Wisconsin does not need to complete the canvassing following the “spring election” at issue here until May 15—more than five weeks after Election Day. Wis. Stat. § 7.70(3)(a). There is, then, ample time to accept and count validly cast absentee ballots that are postmarked by Election Day but arrive at some point thereafter. Doing so would not violate Wisconsin’s interest in finality of elections.
b. Plaintiff is likely to succeed on their Procedural Due Process claim. Plaintiff is also likely to succeed on its procedural due process claim. Wisconsin cannot deprive any person of liberty without “due process of law,” U.S. Const. amend. XIV, § 1. In the current environment of self-quarantines, the shuttering of significant portions of the national and global economies, and social distancing amidst an extraordinary global pandemic, the Challenged Provisions do just that because they operate to deprive voters’ liberty interest in voting without process. Courts must first consider “‘private interest that will be affected by the official action.’” Boyd v. Owen, 481 F.3d 520, 525 (7th Cir. 2007) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Next, courts must consider the “fairness and reliability” of the existing procedures and the “probable value, if any, of additional procedural safeguards.” Mathews, 424 U.S. at 343. Finally, courts assess the public interest, “includ[ing] the administrative burden and other societal costs that would be associated with” additional or substitute procedures. Id. at 347. Each of these factors weighs heavily in Plaintiff’s favor here. First, the right to vote is unquestionably a liberty interest and cannot be “confiscated without due process.” Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990). This liberty interest extends to by-mail voting in Wisconsin. See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d
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202, 215 (D.N.H. 2018) (“voter has a sufficient liberty interest once ‘the State permits voters to vote absentee.’”) (quoting Zessar v. Helander, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006)).
Second, the degree of deprivation resulting from the Challenged Provisions is extraordinarily high. This deprivation is neither hypothetical nor speculative; it is happening each day that the coronavirus spreads, governments respond to the growing threat, and individuals opt to take extraordinary precautions to avoid the pandemic in the form of physical isolation. Already, Wisconsin voters have requested—and continue to request—record levels of absentee voting. See Ex. 6.
Third, the Challenged Provisions are neither fair nor reliable in the context of a growing global pandemic. The administrative burden on Wisconsin in waiving the proof of residency requirement and extending the deadline for electronic and by-mail voter registrations, waiving the photo identification requirement for absentee ballot applications, and extending time in which a likely avalanche of absentee ballots may be received and counted is marginal compared to the deprived liberty interest. Mathews, 424 U.S. at 335.
B. An injunction is necessary to avoid irreparable harm. The Challenged Provisions operate to inflict two irreparable harms on Wisconsin voters.
First, it results in disenfranchisement. Disenfranchisement constitutes irreparable injury. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); LOWV, 769 F.3d at 247 (“Courts routinely deem restrictions on fundamental voting rights irreparable injury.”) (citations omitted); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (explaining that the loss of constitutional “freedoms . . . unquestionably constitutes irreparable injury”). Once the election comes and goes, “there can be no do-over and no redress.” LOWV, 769 F.3d at 247. The Seventh Circuit has recognized that once a constitutional violation has been demonstrated, no further showing of irreparable injury is
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necessary. Ezell, 651 F.3d at 699 (infringement on constitutional rights caused irreparable harm); see also Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”).
Second, the Challenged Provisions contribute to public health risks. They operate to encourage determined registrants and voters to venture out into the world and interact face-toface with people—despite what numerous governmental entities are warning against doing. At worst, the Challenged Provisions risk exposing Wisconsinites to an ailment that has already claimed thousands of lives internationally. Cf. Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (affirming preliminary injunction barring county from closing hospital because doing so would cause irreparable harm to patients and cause “exacerbation of the current overcrowded situation and additional suffering . . . avoided” by enjoining closure). The Seventh Circuit has recognized that “the denial of injunctive relief after a district court has found a risk of imminent and substantial danger to public health or to the environment should be rare.” LAJIM, LLC v. Gen. Electric Co., 917 F.3d 933, 942 (7th Cir. 2019). Plaintiffs’ attachments show that the risk of substantial danger to the public health is substantial, imminent, and ongoing. See Exs. 1–2, 4.
C. Traditional legal remedies will not adequately protect Plaintiffs’ rights. Because members and constituents of Plaintiffs face the inability to register and vote
without exposing themselves to the coronavirus and negatively impacting the public health, traditional legal remedies are inadequate. The Seventh Circuit has presumed that money damages cannot adequately remedy a constitutional violation. Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (reversing denial of preliminary injunction on complaint alleging First Amendment claims). More specifically, money damages cannot cure disenfranchisement post hoc. Cf. Frank v. Walker, 196 F. Supp. 3d 893, 904 (E.D. Wis. 2016) (finding, where plaintiffs
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faced violations of their voting rights in elections that might occur before the resolution of their claims, “traditional legal remedies, such as monetary damages, would be inadequate”). Given the close proximity of the primary election, it is certain than an election will occur, necessitating action from this Court to ensure that Plaintiffs’ voters’ and constituents’ rights are not violated.
D. The balance of hardships weighs in favor of an injunction. The balance of the equities favors Plaintiff. On the one hand, an injunction would protect
the health of the public. An injunction would also prevent disenfranchisement by removing barriers to voting during a time of an unprecedented public health crisis. On the other hand, the state will have a handful more administrative tasks. But mild inconvenience is outweighed by the vindication of constitutional rights. See Taylor v. Louisiana., 419 U.S. 522, 535 (1975) (holding “administrative convenience” cannot justify practices that impinge upon fundamental rights); see also Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018) (holding increased administrative burden of “disseminating information” and “training poll managers. . . is minimal compared to the potential loss of a right to vote”); United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012) (“[t]he potential hardships that Georgia might experience are minor when balanced against the right to vote, a right that is essential to an effective democracy.”); Fla. Democratic Party, 2016 WL 6090943, at *26 (“Any potential hardship [to the state] imposed by providing the same opportunity . . . for [] voters pales in comparison to that imposed by unconstitutionally depriving those voters of their right to vote and to have their votes counted.”).
Here, Wisconsin law does not require counties begin their canvass until one week after Election Day. Wis. Stat. § 7.60(3). The law also provides that county clerks must deliver the results to the state election commission “no later than 9 days after each primary . . .” Wis. Stat. § 7.60(5). Even more, the state need not complete its canvass until May 15. See Wis. Stat. §
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7.70(3)(a). There is, in short, ample time for the modest administrative tasks that an injunction would require—tasks far outweighed by the protection of voting rights and to benefit public health.
E. An injunction is in the public interest. Without question, an injunction that is aimed to protect the public from more exposure to
the coronavirus and avoid disenfranchisement is in the public interest. “[I]njunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y, 453 F.3d at 859. “The vindication of constitutional rights . . . serve[s] the public interest almost by definition,” including specifically when the right at issue is the right to vote. League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012). This is because the public has a “strong interest in exercising the fundamental political right to vote.” Purcell, 549 U.S. at 4. In sum, “[t]he public interest . . . favors permitting as many qualified voters to vote as possible.” Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012). Enjoining the Challenged Provisions here would do precisely do—allow as many qualified Wisconsinites as possible to safely vote.
V. CONCLUSION For the reasons stated, Plaintiffs respectfully request that the Court issue a temporary restraining order and a preliminary injunction that: (1) requires defendants to extend Wisconsin’s electronic and by-mail registration deadline at least from March 18, 2020 up to and including April 3, 2020); (2) enjoins the enforcement of Wis. Stat. § 6.34’s proof of residency requirement for voter registrations; (3) enjoins the enforcement of Wis. Stat. §§ 6.86 - 87 photo identification requirements for absentee ballot requests until the COVID-19 crisis is over; and (4) prohibits
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defendants from rejecting ballots that are postmarked before or on Election Day that arrive within ten days of Election Day.
Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk* PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com acallais@perkinscoie.com scommand@perkinscoie.com Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs *Motion for Admission Forthcoming
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 Case: 3:20-cv-00249-wmc Document #: 21 Filed: 03/20/20 Page 1 of 12

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Case No. 3:20-cv-249-wmc

THE WISCONSIN LEGISLATURE’S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO INTERVENE

INTRODUCTION The Wisconsin Legislature moves to intervene under Federal Rule of Civil Procedure 24, to defend the State of Wisconsin’s interest in the enforcement of several of Wisconsin’s election laws, including during an ongoing election. Plaintiffs1 have sought a temporary restraining order and a preliminary injunction against the Commissioners of the Wisconsin Elections Commission,2 blocking several duly enacted election laws—Wis. Stat. §§ 6.28(1), 6.34(2), 6.86(1), and 6.87—on constitutional grounds. When Wisconsin laws are challenged on constitutional

1 Democratic National Committee and Democratic Party of Wisconsin (collectively, “Plaintiffs”).
2 This Memorandum collectively refers to Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, all sued in their official capacities as officials with the Wisconsin Elections Commission, as “the Commissioners,” unless context requires otherwise.

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grounds in court, the State of Wisconsin has recognized, under Sections 13.365 and 803.09(2m) of the Wisconsin Statutes, that the Legislature can vindicate the State’s interests in the constitutionality of those laws.
The Legislature is entitled to intervene in this action, as a matter of right, if the Attorney General declines to defend fully any of the laws at issue. The Legislature’s intervention motion is timely, the Legislature has a state-law recognized right under Sections 13.365 and 803.09(2m) to vindicate the State’s interests in the constitutionality of the election laws challenged here, and this lawsuit plainly threatens that interest. And, depending on his approach to this case, the Attorney General may well not adequately represent that interest. According to public press reports, the Commissioners two days ago divided over the appropriate approach to several of the issues in this case, and it is thus uncertain whether this disagreement among the defendants here will permit the Attorney General to vigorously defend all of the challenged laws.
At a minimum, more limited permissive intervention is warranted. Plaintiffs have challenged several state election laws during an ongoing election, which laws further the State’s compelling interest in the orderly administration of that election and in election integrity. The Legislature should, at minimum, be heard to defend the important state interests that these laws embody without burdening the Court in any way. To take one important option, this Court could permit the Legislature to submit the attached proposed briefing, in a way no different than an amicus brief, but also give the Legislature intervention status for the extremely limited purposes
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of filing an appeal from any adverse order blocking any of the challenged laws, especially any order impacting Wisconsin’s photo ID and proof-of-residency requirements. That would create no burden on either this Court or the parties, while ensuring that the Seventh Circuit can review any order blocking any election law, such as photo ID and proof-of-residency requirements, without delay or needless complications resulting from arguing about intervention status on appeal. After all, as the Seventh Circuit recently explained when discussing legislative intervention: “No matter how many people can appeal a judgment on behalf of a state, there would still be only a single appeal . . . that prejudices no one and causes no unjustified strain on the courts.” Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 802–03 (7th Cir. 2019).
INTEREST OF PROPOSED INTERVENOR The Wisconsin Legislature is made up of two Houses, the State Assembly and the State Senate. See Wis. Const. art. IV, § 1. Wisconsin law recognizes that the Legislature—the body “vested” with the “legislative power”—has an interest in defending the State’s own sovereign interest in the constitutionality of state law in court. Id. Specifically, Section 803.09(2m) of the Wisconsin Statutes states that “[w]hen a party to an action challenges in state or federal court the constitutionality of a statute . . . the legislature may intervene as set forth under [Section] 13.365.” Section 13.365(3), in turn, provides that “[t]he joint committee on legislative organization may intervene at any time in the action on behalf of the legislature” and authorizes the hiring of counsel other than the Attorney General. Wis. Stat.
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§ 13.365(3). These are the same statutes that made the Seventh Circuit “comfortable adopting [this Court’s] assumption” that the Legislature has “standing as an agent of the State of Wisconsin” in defense of the constitutionality of state law. Planned Parenthood, 942 F.3d at 798; accord Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019).
ARGUMENT I. The Legislature Is Entitled To Intervene As A Matter Of Right Under
Rule 24(a)(2) If The Attorney General Chooses To Decline To Vigorously Defend Any Of The Election Laws Challenged Here
Federal Rule of Civil Procedure 24(a)(2) provides that “[o]n timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” There are four elements for intervention as of right under Rule 24(a)(2): “(1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action.” Planned Parenthood, 942 F.3d at 797 (citation omitted). The Legislature satisfies each of these elements here.
1. This intervention application is timely. “[F]our factors” govern “whether a motion to intervene is timely: (1) the length of time the intervenor knew or should have known of his interest in the case; (2) the prejudice caused to the original parties by the delay; (3) the prejudice to the intervenor if the motion is denied; [and] (4) any
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other unusual circumstances.” Lopez-Aguilar v. Marion Cty. Sheriff’s Dep’t, 924 F.3d 375, 388 (7th Cir. 2019) (second brackets in original; citation omitted). The “most important consideration in deciding whether a motion for intervention is untimely is whether the delay in moving for intervention will prejudice the existing parties to the case.” Id. at 389–90 (citation omitted).
There is no question that this Motion to Intervene is timely, as the Legislature has filed less than two days after Plaintiffs filed their Complaint, at a time consistent with this Court’s oral instructions. Accordingly, there could be no plausible assertion of prejudice to either Plaintiffs or the Commissioners, the original parties to this case. Meanwhile, the prejudice to the Legislature from the Court’s denial of intervention would be substantial, as it would potentially result in the entry of a federal-court injunction against state election laws without full adversarial presentation of the relevant issues.
2. The Legislature has an interest in the enforcement of Wisconsin’s election laws. An interest under Rule 24(a)(2) must “be direct, significant, and legally protectable,” but the Seventh Circuit has “interpreted statements of the Supreme Court as encouraging liberality in the definition of an interest.” Id. at 391–92 (citations omitted).
The Legislature has a state-law-recognized interest in defending against this lawsuit, which challenges the constitutionality of multiple election laws, including during the ongoing April 7 election. Like all States, Wisconsin has the sovereign “cognizable interest” in the “continued enforceability of its laws,” including the
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election laws at issue here. Hollingsworth v. Perry, 570 U.S. 693, 709–10 (2013) (citation omitted); Lopez-Aguilar, 924 F.3d at 392. By adopting Sections 13.365 and 803.09(2m), Wisconsin has made the sovereign choice that the Legislature may speak for the State in court, as a party, in cases where plaintiffs seek orders blocking the enforcement of state law on constitutional grounds. Specifically, under Section 803.09(2m), “[w]hen a party to an action challenges in state or federal court the constitutionality of a statute . . . the legislature may intervene as set forth under [Section] 13.365.” Id. As the Seventh Circuit recently recognized when discussing how Rule 24(a)(2)’s interest element interacts with Sections 13.365 and 803.09(2m), the court was “comfortable adopting the . . . assumption that [Wis. Stat.] § 803.09(2m) gives the Legislature standing as an agent of the State of Wisconsin” in defense of state law. Planned Parenthood, 942 F.3d at 798; see Bethune-Hill, 139 S. Ct. at 1951.
While the Legislature can speak on behalf of Wisconsin’s interest in defense of any law that the Legislature has enacted, see Planned Parenthood, 942 F.3d at 798, election laws like Sections 6.28(1), 6.34(2), 6.86(1), and 6.87 especially deserve a vigorous defense. A “State indisputably has a compelling interest in preserving the integrity of its election process,” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989), in the “orderly administration” of its elections, and in “carefully identifying all voters [who may] participat[e] in the election process,” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008) (controlling plurality of Stevens, J.). The election laws at issue here further these crucial state interests, as explained in the Legislature’s simultaneously filed Memorandum.
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3. This lawsuit plainly impairs the Legislature’s interest. As explained above, Wisconsin has a sovereign interest in defending the constitutionality of duly enacted state election laws. Further, the State has bestowed upon the Legislature, the branch that enacted those election laws, the authority to defend this interest on behalf of the State in federal court. See Wis. Stat. §§ 13.365, 803.09(2m). Plaintiffs’ lawsuit here, if successful, would directly impair that interest, prohibiting the enforcement of these election laws, including during the April 7 election. Accordingly, the Legislature’s interest is squarely at issue here. See Wis. Stat. §§ 13.365, 803.09(2m); Planned Parenthood, 942 F.3d at 798; accord Lopez-Aguilar, 924 F.3d at 385.
4. The Commissioners, speaking through the Attorney General, cannot adequately represent the Legislature’s interest. Rule 24(a)(2) imposes different adequate-representation standards for proposed intervenors, depending on whether “the prospective intervenor and the named party have the same goal” and whether “the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors.” Planned Parenthood, 942 F.3d at 799 (citations omitted). When the proposed intervenor does not share the “same goal” with the named party, the proposed intervenor need only make a “‘minimal’ showing,” WEAC, 705 F.3d at 659 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)), that the “representation of his interest ‘may be’ inadequate,” Planned Parenthood, 942 F.3d at 799 (quoting Trbovich, 404 U.S. at 538 n.10). However, when they do share the “same goal,” and the named party “is [the Attorney General] charged by law with protecting the interests of the proposed intervenors,” the
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proposed intervenor must make “a concrete showing of the Attorney General’s bad faith or gross negligence.” Id. at 799, 801.
Here, the Legislature may well satisfy this inadequacy prong in two respects, depending on the approach that the Attorney General takes to this case.
First, and independently sufficient to satisfy this prong of the intervention analysis, the Legislature and the Attorney General may not share the “same goal,” id. at 799, since the Commissioners here have apparently divided over the appropriate resolution of several of the issues in this case. Two days ago, the Commissioners met in a special meeting, where they agreed on a number of actions, like requesting additional funding for absentee-ballot supplies. See Declaration of Misha Tseytlin (“Tseytlin Decl.”) Ex. 7 (Wis. Elec. Comm’n, Special Teleconference Meeting COVID-19 (Mar. 18, 2020)). According to public press reports, however, the Commissioners divided over whether to request that the Governor and the Legislature convene a special session to give the Commissioners more authority to modify current election laws and procedures in light of COVID-19, including as to several of the specific issues Plaintiffs raise here. See Tseytlin Decl. Ex. 6. It is unclear how the Attorney General will seek to navigate this apparent disagreement among the defendants here. In particular, it is unclear whether this disagreement among the Commissioners will cause the Attorney General to decline to defend some or all of the laws challenged here, or cause him to put forward a less-than-vigorous defense as a compromise among his clients. If that were to occur, then the Legislature would clearly make the “‘minimal’ showing,” WEAC, 705 F.3d at 659 (citation
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omitted), needed to demonstrate that the Attorney General’s representation “‘may be’ inadequate,” Planned Parenthood, 942 F.3d at 799, since its interest is in the full, vigorous enforcement of each of these election-law provisions.
Second, if the Attorney General chooses not to defend fully the constitutionality of any of the laws here, the Legislature would also plainly satisfy the inadequacy prong’s “bad faith or gross negligence” standard, if that standard is held to apply. Id. at 799, 801. The Attorney General failing to defend challenged state law is the paradigmatic example of when this standard has been met. Id.
All that said, if the Attorney General does vigorously defend the election laws at issue here, including as against Plaintiffs’ request for emergency relief, the Legislature would respectfully take a back seat to the Attorney General in leading the defense of the challenged laws. However, the Legislature would still ask to permissively intervene under that circumstance, as discussed immediately below, especially for purposes of filing any needed emergency appeals against any order blocking Wisconsin’s photo ID and proof-of-residency requirements. II. Alternatively, This Court Should Afford The Legislature Permissive
Intervention Under Rule 24(b)(1)(B) If the Court were to conclude that the Legislature has not made the required showings for intervention as of right, then the Legislature respectfully requests that the Court grant it permissive intervention under Rule 24(b)(1)(B), consistent with “the needs of federal-state comity.” Planned Parenthood, 942 F.3d at 803. The Legislature satisfies the only two requirements for permissive intervention: the intervenor “timely” files and “has a claim or defense that shares
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with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). Here, the Legislature’s motion is timely, described above. Supra, pp. 4–5. And the Legislature has filed an attached proposed Motion to Dismiss and supporting Memorandum, raising defenses to the claims in Plaintiffs’ Complaint, and so “shares a question of law with the main action.” Planned Parenthood, 942 F.3d at 803.
Moving to the other permissible intervention factors, the Seventh Circuit in Planned Parenthood explained that Rule 24(b)(1)(B) “allows the district court to consider a wide variety of factors” when deciding whether to grant permissive intervention, including whether intervention would “overwhelm” the Court and whether intervention would serve “the needs of federal-state comity.” See 942 F.3d at 802–03. Here, the Legislature’s intervention may well be necessary for the Court to receive full adversarial briefing against an injunction blocking multiple election laws in the middle of an election. As noted, the Commissioners named as defendants here are apparently divided over several of the issues in this lawsuit, making it unclear whether the Attorney General can make a full, adversarial presentation. See supra pp. 8–9. The election laws challenged here, moreover, further the Legislature’s “compelling interest” in the “integrity of its election process,” Eu, 489 U.S. at 231, so intervention clearly comports with “the needs of federal-state comity,” Planned Parenthood, 942 F.3d at 803. And allowing the Legislature to intervene would pose no practical difficulties, but would, instead, merely allow for full adversarial litigation in this significant case.
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If, however, this Court is concerned about any practical difficulties that may arise with the Legislature’s intervention, the Seventh Circuit has held that a court should stand “ready” to grant permissive intervention to the Legislature if it “is willing to accept conditions” on its participation “that would reduce any disruption to levels the court will tolerate.” Id. at 804. One important option is to accept the Legislature’s simultaneously filed Memorandum in the same way that this Court would accept the brief of an amicus, but to give the Legislature intervention status for the extremely limited purposes of filing any needed emergency appeal from an order blocking any of the challenged laws, especially any of Wisconsin’s photo ID and proof-of-residency requirements. That would raise none of the practical issues that troubled this Court and the Seventh Circuit in Planned Parenthood, while clearing away needless complications—like the need to argue about intervention status during an emergency appeal—from an immediate appeal impacting an ongoing election. “No matter how many people can appeal a judgment on behalf of a state, there would still be only a single appeal . . . that prejudices no one and causes no unjustified strain on the courts.” Id. at 802–03.
CONCLUSION This Court should grant the Legislature’s Motion to Intervene.
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Dated this 20th day of March, 2020. Respectfully submitted,
/s/Misha Tseytlin Misha Tseytlin (State Bar No. 1102199) Kevin M. LeRoy (State Bar No. 1105053) TROUTMAN SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com Eric M. McLeod (State Bar No. 1021730) Lane E. Ruhland (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com Lisa M. Lawless (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com Attorneys for the Wisconsin Legislature
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 Case: 3:20-cv-00249-wmc Document #: 23 Filed: 03/20/20 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Case No. 3:20-cv-249-wmc

THE WISCONSIN LEGISLATURE’S MEMORANDUM IN SUPPORT OF ITS PROPOSED MOTION TO DISMISS THE COMPLAINT AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION Plaintiffs ask this Court to take the extraordinary step of changing the rules of an election while voting is already taking place, but offer no meaningful evidence that voters will suffer substantial burdens absent relief. The entirety of Plaintiffs’ evidentiary support consists of: (1) the Wisconsin Department of Health Services’ (“DHS”) prohibition on mass gatherings; (2) evidence that Wisconsin absentee ballot requests have increased; (3) a statement that certain libraries have closed; and (4) a statement as to the number of COVID-19 results in Wisconsin. Plaintiffs have not submitted a single declaration from any voter suggesting a burden from the operation of Wisconsin’s preexisting election laws, let alone the type of broad-based evidence of

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burden necessary for the capacious relief that Plaintiffs seek. To take just the most obvious example, Plaintiffs ask this Court to block portions of Wisconsin’s photo ID and proof-of-residency laws—which laws Plaintiffs have long politically opposed—on the sole, irrelevant evidentiary basis that certain libraries have closed, without submitting any evidence that any voter relies upon these libraries for this purpose, let alone presenting the type of broad evidence of unreasonable burden required by controlling caselaw.
This Court should also deny Plaintiffs’ TRO/injunction motion, as well as dismiss their Complaint, under the Burford abstention doctrine, which instructs federal courts not to enter orders that would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial concern.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (citation omitted) (“NOPSI”). States, including Wisconsin, are grappling with the difficult challenge of ensuring that democracy can continue in the face of the COVID-19 public-health crisis, consistent with guidance from the Centers for Disease Control and Prevention (“CDC”). On Monday of this week, the CDC issued revised guidance that “[d]uring the next 15 days (March 16–20, 2020), individuals and organizations should cancel or postpone in-person events that consist of 10 people or more throughout the U.S.”1 On the very next day, March 17, three politically diverse States—Illinois, Florida, and
1 Declaration of Misha Tseytlin (“Tseytlin Decl.”) Ex. 1 at 1 (Centers for Disease Control and Prevention, Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19) at 1 (rev. Mar. 16, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/Mass-Gatherings-Document_FINAL.pdf (all websites last accessed Mar. 20, 2020).
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Arizona—held in-person voting.2 Ohio, on the other hand, responded by cancelling its in-person primary. Tseytlin Decl. Ex. 8. As more citizens vote in the coming weeks and months, elected officials and their politically accountable appointees will need to make similar choices. Indeed, Defendants in this case are actively engaged on these very issues, including apparently being divided on some of the issues in this case. This is precisely the type of case that calls out for federal courts to stay their hand.
ARGUMENT I. This Court Should Deny Plaintiffs’ Motion Because Plaintiffs Have Not
Carried Their Heavy Evidentiary Burden A. To Obtain A TRO/Preliminary Injunction Against Duly Enacted Laws,
Plaintiffs Must Carry A Heavy Evidentiary Burden 1. “A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted) (emphasis in original). The court conducts a two-phase inquiry to determine whether a temporary restraining order or a preliminary injunction is warranted, with the plaintiff bearing a heavy burden. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of Am., Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008); Planned Parenthood of Wis., Inc. v. Van Hollen, 963 F. Supp. 2d 858, 865 (W.D. Wis. 2013) (explaining that
2 Tseytlin Decl. Exs. 2 (Illinois State Board of Elections, Illinois Primary Election Will Go on March 17 as Schedule (March 16, 2020)); 3 (Cook County Clerk’s Office, Unofficial Election Results (March 17, 2020)); 4 (Arizona Secretary of State, State of Arizona’s 2020 Presidential Preference Election Results (rev. March 17, 2020)); 5 (State of Florida Division of Elections, Elections Watch (rev. March 17, 2020)).
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“the same showing is required” to obtain a temporary restraining order or a preliminary injunction). At the threshold phase, the plaintiff bears the burden of showing that: “(1) without such relief, it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of success on the merits.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018) (citations omitted). If the plaintiff satisfies each of the threshold requirements, the court conducts the second phase of its inquiry, where the court “weigh[s] the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Courthouse News Serv., 908 F.3d at 1068. “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Id. (quoting Girl Scouts of Manitou Council, 549 F.3d at 1086). Finally, the court considers “whether the preliminary injunction is in the public interest, which entails taking into account any effects on non-parties.” Id. Ultimately, the plaintiff “bear[s] the burden of showing that a preliminary injunction is warranted.” Id.
2. The claims that Plaintiffs have filed in this case also require them to make a substantial evidentiary showing on the merits.
For the Anderson/Burdick claim, Dkt.3 at 6–11; see Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983), the challenger bears a heavy burden, as part of a two-step inquiry. The first step test requires the plaintiff to establish a burden on the right to vote, including that burden’s severity. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). The second step requires
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the plaintiff to show that the burden outweighs the state’s interest. “If the burden on the plaintiffs’ constitutional rights is ‘severe,’ a state’s regulation must be narrowly drawn to advance a compelling state interest,” sufficient to satisfy strict scrutiny. Stone v. Bd. of Election Comm’rs, 750 F.3d 678, 681 (7th Cir. 2014) (citation omitted). “If the burden is merely ‘reasonable’ and ‘nondiscriminatory,’ by contrast, the government’s legitimate regulatory interests will generally carry the day.” Id. The sufficiency of a State’s justification is generally a “legislative fact,” accepted if reasonable. Frank v. Walker, 768 F.3d 744, 750 (7th Cir. 2014) (“Frank I”); see, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194–97 (2008) (controlling plurality of Stevens, J.).
Where the claim involves a broad-based challenge to an election law’s operation to all impacted voters—not merely relief for a narrow category of especially burdened voters—the plaintiff “bear[s] a heavy burden of persuasion” to obtain such broad relief. Crawford, 553 U.S. at 200 (controlling plurality of Stevens, J.). As the Seventh Circuit made clear in Frank II, “the burden some voters face[ ]” under a challenged law “[can]not prevent the state from applying the law generally,” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”) (emphasis added). Thus, a challenge to an election law based on the burdens it places on individual voters must usually be on an as-applied basis, after an evidentiary showing by the plaintiff as to those specific voters. Frank II, 819 F.3d at 386–87.
For Plaintiffs’ abbreviated procedural-due-process claim, Dkt.3 at 11–12, they must also carry a significant burden. For Plaintiffs to succeed, they must establish
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that they possess a protected liberty/property interest and then, under the controlling standard in Mathews v. Eldridge, 424 U.S. 319 (1976), demonstrate that the process afforded by the State is insufficient in light of: (1) the plaintiff’s “private interest” at stake; (2) “the risk of an erroneous deprivation,” which requires consideration of the current process that the State affords, together with the “probable value” of any additional procedural safeguards; and (3) the “Government’s interest.” Id. at 335. Each of these showings requires Plaintiffs to “present [ ] evidence concerning the process” that they claim is “required under the Mathews balancing test to protect [their] alleged liberty interest.” Colon v. Schneider, 899 F.2d 660, 670 (7th Cir. 1990) (emphasis added). Without such “evidence . . . in the record,” there is nothing that would “warrant” a court “upsetting [the Legislature’s] judgment” that these election laws are the appropriate “manner in which it wishes” to conduct its elections. Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 334 (1985) (citing Schweiker v. McClure, 456 U.S. 188, 200 (1982); Mathews, 424 U.S., at 344); see also U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 721–26 (1990).
B. Plaintiffs Have Not Attempted To Carry Their Evidentiary Burden Plaintiffs have not even attempted to put forward competent evidence that satisfies their heavy burden here, whether as to likelihood of success, irreparable harm, or the public interest. Indeed, the only evidence that Plaintiffs have supplied in support of their equitable request is: (1) the DHS emergency order prohibiting mass gatherings of 10 or more people, which implements the CDC’s guidance, Dkt.31, Decl. of Bruce V. Spiva (“Spiva Decl.”) Ex.1; (2) a press release from the Elections Commission stating that Wisconsin absentee ballot requests have increased over
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prior years, Spiva Decl. Ex.2; (3) a statement from the Madison Public Library that it has closed in light of COVID-19, Spiva Decl. Ex.3; and (4) statistics from the DHS as to the number of COVID-19 results in Wisconsin, Spiva Decl. Ex.5. As explained below, Plaintiffs’ complete lack of competent, relevant evidence dooms their requests for extraordinary relief against these laws, during an ongoing election. Indeed, under controlling law, the broad relief that Plaintiffs request requires them to bring forward broad evidence of widespread, unreasonable burdens on voters, and yet Plaintiffs have not submitted evidence of burden as to any voter.
1. Plaintiffs Have No Likelihood Of Success On The Merits Because They Submitted No Competent Evidence To Support Any Of Their Constitutional Claims
Plaintiffs challenge the constitutionality of several election laws enacted by the Legislature, specifically Wis. Stat. §§ 6.28(1), 6.34(2), 6.86(1), and 6.87. Each of these laws directly further Wisconsin’s “indisputably [ ] compelling interest in preserving the integrity of its election process,” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989), including the “orderly administration” of its elections, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.)—and several have already withstood constitutional challenge, see Crawford, 553 U.S. 181; Frank I, 768 F.3d at 751. The Legislature below explains each of the challenged electionlaw provisions and how Plaintiffs failed to substantiate their constitutional claims with actual, competent evidence. The Legislature especially underscores that Plaintiffs’ effort to sweep into this case Wisconsin’s photo ID and proof-of-residency requirements—based entirely upon evidence showing the closure of some public
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libraries—is particularly unjustified, and is, instead, an unsupported effort to use this crisis to attack laws that Plaintiffs have long politically opposed.
a. Section 6.34(2). Section 6.34(2) provides that “upon completion of a [voter] registration form,” each voter “shall provide an identifying document that establishes proof of residence,” subject to some exceptions. Wis. Stat. § 6.34(2). Registering to vote in Wisconsin is “easy.” Frank I, 768 F.3d at 748. This easy-to-satisfy requirement promotes election integrity, since the State has an important interest in the “orderly administration and accurate recordkeeping . . . for carefully identifying all voters [who may] participat[e] in the election process,” which ensures that the State counts “only the votes of eligible voters.” Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.).
Plaintiffs claim that Section 6.34(2) burdens voting rights and infringes procedural-due-process rights because voters now face “severe logistical obstacles . . . to generate copies of documents needed to provide residency.” Dkt.3 at 3; compare infra pp. 10–11 (making same arguments as to photo ID requirements). According to Plaintiffs, with the “widespread, government-mandated closings” of public facilities, many voters “do not have access to the copiers and scanners needed to generate copies of these documents,” and, regardless, these voters “would put their health at risk by leaving their homes in search of this type of equipment.” Dkt.3 at 3.
Plaintiffs have provided no competent evidence that Section 6.34(2)’s proof-ofresidence requirements burdens voters in this speculative manner. The only evidence that Plaintiffs have submitted in this respect is a statement from the Madison Public
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Library announcing that its locations were closing due to COVID-19. Spiva Decl. Ex.3 at 2–3; see Dkt.3 at 9. Yet, if availability of scanning technology is even relevant—which it is generally not, as explained immediately below—publicly available information readily demonstrates that numerous other facilities offering scanning services to the public remain open. For example, The UPS Store has informed customers that its “retail locations are designated as essential and remain open. This means that we remain open to provide essential services such as mail and package receiving, shipping, printing and notary.” Tseytlin Decl. Ex. 10 (emphasis added).3 Further, to address health concerns, The UPS Store has “strongly encouraged” its franchisees to “[p]ractice social distancing and limit[ ] the number of customers in the store,” Tseytlin Decl. Ex. 10, just like the CDC has recommended and DHS has mandated, supra pp. 1–2. This directly contradicts Plaintiffs’ assertion that commercial locations, such as “UPS locations,” are now closed or unsafe to visit for voters needing scanning or copying services, see Dkt.1 ¶¶ 7, 35; Dkt.3 at 3, 9.
Even more importantly, Section 6.34(2) does not even impose the hurdle that Plaintiffs have claimed, without regard to any library closures or the status of copying stores. Municipal clerks accept proofs-of-residence documents in electronic format, allowing citizens to use their smart phones to prove residency, without needing to find a scanner, copier, or printer. See Tseytlin Decl. Exs. 11 (Wisconsin Elections Commission, Proof of Residence Guide (rev. February 19, 2019))4 (explaining that
3 https://www.theupsstore.com/important-update (rev. March 18, 2020). 4https://elections.wi.gov/sites/elections.wi.gov/files/2019-01/27-28%20Proof%20of%20Residence% 202019.pdf
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citizens registering to vote may present their Proof of Residence document as “an electronic document on your smartphone, tablet, or computer”); 12 (Wisconsin Elections Commission, “I want to vote absentee” publication) (explaining that voters may request absentee ballots by email or by clicking “Vote Absentee” on www.myvote.wi.gov.).5 Given that “vast majority of Americans—96%—now own a cellphone of some kind,” with “81%” of Americans owning “smartphones,” this avenue of complying with Section 6.34(2) is readily available to Wisconsin voters. Tseytlin Decl. Ex. 13 (Pew Research Center, Mobile Fact Sheet (June 12, 2019)).6 And, notably, Plaintiffs did not attempt to submit evidence or tailor their request, under Frank II, to just voters lacking such phones or other readily available means for sending over their proof-of-residency information. Frank II, 819 F.3d at 386–87.
b. Sections 6.87(1) & 6.86(1). Section 6.87(1) states that an “absent elector shall enclose a copy of his or her proof of identification or any authorized substitute document with his or her application” for an absentee ballot. Wis. Stat. § 6.87(1). Section 6.86(1)(ar), in turn, states that a voter who “applies for an absentee ballot in person at the clerk’s office” must “present[ ] proof of identification” to the clerk. Wis. Stat. § 6.86(1)(ar). Here again, these photo ID provisions allow the State to “carefully identify[ ] all voters [who may] participat[e] in the election process,” Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.), which promotes the State’s compelling interest in election integrity. That is precisely why such photo ID laws
5 https://elections.wi.gov/voters/absentee. 6 https://www.pewresearch.org/internet/fact-sheet/mobile/.
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have withstood constitutional scrutiny time and again, including in Wisconsin. See, e.g., Crawford, 553 U.S. 181; Frank I, 768 F.3d at 751.
Plaintiffs claim that these provisions impose the same burdens as Section 6.34(2)’s proof-of-residency requirements, see Dkt.3 at 4, 8, and offer the same insubstantial evidence as support: the single statement from the Madison Public Library announcing that its locations were closing due to COVID-19, Spiva Decl. Ex.3 at 2–3; see Dkt.3 at 9. As with Section 6.34(2), Plaintiffs have not met their obligation to demonstrate an actual burden with competent evidence. Numerous facilities that offer scanning and printing services remain open to the public to copy photo ID, and the public may use those facilities in a consistent with health directives from the CDC and DHS. Supra pp. 1–2. And, of course, voters may request an absentee ballot by email or on the Commission’s website, which then allows them to present an electronic copy of their photo ID document, thus removing whatever burden that may come from accessing a scanner or copier. Tseytlin Decl. Ex. 12. Under this option, voters just use their photo to take a photo of their photo ID, and do not need other equipment. Tseytlin Decl. Ex. 12. Given that the Supreme Court and the Seventh Circuit have each upheld standard photo ID laws, including Wisconsin’s, see Crawford, 553 U.S. 181; Frank I, 768 F.3d at 751, and Plaintiffs surely must carry a far heavier burden than noting that some libraries have closed to obtain a judicial order blocking such a standard law in any respect.
c. Section 6.28(1). Section 6.28(1), as relevant here, states that “[r]egistrations made by mail [for an election]” and “[e]lectronic registration . . . for an election” must
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be submitted by “the 3rd Wednesday preceding the election.” Wis. Stat. § 6.28(1) (5 p.m. by mail, 11:59 p.m. by electronic registration). This provides a clear deadline for registration in advance of the election, enabling the Commission to verify residency status and the accuracy of voter-registration information entered into the Commission’s databases. See Tseytlin Decl. Ex. 9 at 2 (Administrator Meagan Wolfe, Update Regarding COVID-19 Election Planning (March 18, 2020) (“Administrator Memo”)). Ensuring this accuracy is critical because, among other reasons, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (citation omitted).
Plaintiffs claim that Section 6.28(1) unduly burdens Wisconsinites’ voting rights because, after the March 18 deadline for electronic and by-mail registration, see Wis. Stat. § 6.28(1), “individuals wishing to register to vote can only do so inperson,” Dkt. 3 at 7; id. at 1 (claiming that this will “effectively prevent potentially thousands of citizens” from registering). This, Plaintiffs claim, would “force [them] to violate government directives”—including “shelter in place” orders in Wisconsin— and “risk their health.” Dkt.3 at 1.
None of these alleged burdens finds any support in the evidence that Plaintiffs have submitted to this Court. To begin, Plaintiffs have put forward no evidence establishing that any portion of the State has issued a shelter-in-place order. And even if the State did issue such an order in the future, any such order may well exempt traveling in public to register to vote and cast a ballot. Indeed, the DHS mass-
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gathering order exempts “facilities for voting” and “[l]ibraries when operating as polling places.” Spiva Decl. Ex.1 at 3 (capitalization altered). Plaintiffs likewise fail to offer evidentiary support for their claims that in-person registration would cause a risk to health. Again, the DHS mass-gathering order exempts facilities for voting, and “social distancing” measures may still be used at such facilities. Spiva Decl. Ex.1 at 2–3. This explains why Illinois, Florida, and Arizona held in-person voting this past week, one day after the CDC recommended avoiding gatherings of more than 10 people. Supra pp. 2–3. Plaintiffs offer no evidence that these three States violated the CDC’s guidance by holding in-person elections, nor any basis to conclude that Wisconsin could not safely and legally hold in-person elections, as well.
d. Section 6.87(6). Section 6.87(6) provides that absentee ballots must be “delivered to the polling place serving the elector’s residence before 8 p.m,” while “[a]ny ballot not mailed or delivered as provided . . . may not be counted.” Wis. Stat. § 6.87(6). Like the above-described provisions, Section 6.87(6) ensures the “orderly administration” of the State’s elections, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.), by, among other things, allowing for adequate time to canvass the election results, Tseytlin Decl. Ex. 9 (Administrator Memo 2). These statutes advance the State’s compelling interest in “preserving the integrity of its election process,” Eu, 489 U.S. at 231, and have a “plainly legitimate sweep,” Crawford, 553 U.S. at 202 (controlling plurality of Stevens, J.) (citation omitted).
Plaintiffs claim that Section 6.87(6) violates constitutional voting rights and procedural due-process rights because, due to the claimed “impending surge in mail-
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in ballots” and the “strains” on the U.S. Postal Service from COVID-19, many mailin absentee ballots will not arrive at the polling place by the 8:00 p.m. deadline. Dkt.3 at 2. That is, as the number of absentee-ballot requests rises, the U.S. Postal Service will apparently be unable to deliver the mail in a timely manner. Dkt.3 at 9. But Plaintiffs offer no evidence supporting their claim that absentee ballots will overload the Post Office. Plaintiffs only put forward a press release from the Commission stating the number of absentee-ballot requests as of March 17. Spiva Decl. Ex.3; Dkt.3 at 4, 10. Although this release states that the 173,773 absentee-ballot requests as of that date “exceed[ ] total requests for three of the last four Spring Elections,” the press release further provides that this number is far smaller than the “819,316 absentee ballots cast in the November 2016 Presidential Election.” Spiva Decl. Ex.3.
2. Plaintiffs Submitted No Competent Evidence To Support Their Assertion That They Will Suffer Irreparable Harm
Plaintiffs have the burden of demonstrating that “irreparable injury is likely in the absence of an injunction,” not just a mere “possibility.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008). Further, “[a]bstract injury is not enough. The plaintiff must show that [it has] sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (quotations omitted).
Plaintiffs have not provided any evidence that they will suffer irreparable harm absent preliminary injunctive relief. They have not cited any evidence that Democratic Party voters will be unable to provide copies of proof-of-residency
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document under Section 6.34(2). See supra Part II.B.1.b. They have pointed to no evidence of Democratic Party voters being unable to provide photo ID documents under Sections 6.87(1) and 6.86(1). See supra Part II.B.1.c. They cannot show any Democratic Party voter who, having missed Section 6.28(1)’s deadline for online and by-mail registration, cannot utilize same-day registration at the polls. See supra Part II.B.1.a. And they submitted no evidence that there will be Democratic Party voters whose absentee ballots would be delivered past Section 6.87(6)’s Election Day deadline, despite the U.S. Postal Service’s operation during this time. See Part II.B.1.d.
3. Plaintiffs Submitted No Competent Evidence To Support Their Claim That The Public Interest Favors Their Requested Relief
The multiple election laws challenged here are part of Wisconsin’s efforts to “orderly administ[er]” its elections, including forwarding the critical functions of protecting election integrity, safeguarding the public’s belief that integrity, and setting predictable, date-certain deadlines for election administration. Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.); accord Eu, 489 U.S. at 231; see supra pp. 7–8. Disabling these laws will harm these interests, and Plaintiffs have not submitted any evidence to support their assertion that their requested relief will benefit voters. See supra Part 1.B.1. At minimum, given that the enforcement of duly enacted laws is otherwise presumed to be in the public interest, accord Abbott v. Perez, 138 S. Ct. 2305, 2324 & n.17 (2018); F.T.C. v. Elders Grain, Inc., 868 F.2d 901, 904 (7th Cir. 1989), Plaintiffs’ absence of proof means that they cannot obtain injunctive relief.
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The public interest further disfavors Plaintiffs’ requested relief pursuant to the Purcell principle, under which courts should not change election rules in the middle of an ongoing election, as such changes “can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam). “[A]s an election draws closer, that risk will increase.” Id.
Here, with the April 7 election in full swing, Plaintiffs request that this Court upend Wisconsin’s election scheme—including by suspending critical portions of voter registration, photo ID, as well as legally established statutory deadlines. Consider the many election-related events that have already occurred, are underway, or are imminent. The deadlines for electronic registration and registration by mail have passed, Wis. Stat. § 6.28(1), and the essential verification of those registrations is ongoing, Tseytlin Decl. Ex. 9 (Administrator Memo 2). The Commission began publicly urging electors to request absentee ballots on March 13, 2020, Tseytlin Decl. 14 (Wisconsin Elections Commission, Wisconsin Elections Commission Responds to Coronavirus COVID-19, Urges Absentee Voting (March 13 2020)), nearly a week before the Plaintiffs’ filing, and the public has until April 2 to make such requests. All forms of absentee voting are well underway. The numerous clerks across the State will soon “create and print” the official “poll lists” for Election Day, given that relevant deadlines have now passed. Tseytlin Decl. Ex. 9 (Administrator Memo 2). And, of course, the State has not postponed the April 7 election, Tseytlin Decl. Ex. 9 (Administrator Memo 6), so in-person registration and voting will move forward in less than three weeks, with Wisconsin’s election-integrity measures like the proof-of-
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residency and photo ID requirements in place. Under the Purcell principle, this Court should not disturb these ongoing election operations, especially given Plaintiffs’ nonexistent evidentiary showing.
4. The State And The Legislature Will Suffers Irreparable Harm As A Matter Of Law From The Relief That Plaintiffs Have Requested
Any time a State is enjoined by a court from effectuating statutes enacted by the representatives of its people—as Plaintiffs request here—it suffers a form of irreparable injury. Abbott v. Perez, 138 S. Ct. at 2324 & n.17. Further, given that the “State indisputably has a compelling interest in preserving the integrity of its election process,” Eu, 489 U.S. at 231, and in the “orderly administration” of its elections, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.), the irreparable harm to the State and the public is particularly grave here. Each of the challenged election laws here furthers those compelling interests by setting clear registration deadlines to facilitate registration verification and election-day readiness, Wis. Stat. § 6.28(1), by ensuring that only residents entitled to vote cast a ballot, Wis. Stat. § 6.34(2), by combating voter fraud, Wis. Stat. §§ 6.86(1)(ar); 6.87(1), and by ensuring accurate and timely canvassing of results, Wis. Stat. § 6.87(6). Plaintiffs would have this Court block these duly enacted provisions, thereby sowing election confusion and deeply disrespecting Wisconsin’s sovereign judgments. That would inflict grave harm on the State of Wisconsin, its Legislature, and its citizens. II. This Court Should Dismiss This Case Under Buford Abstention, Or, At
Minimum, Deny Plaintiffs’ Motion On That Basis And Stay The Case A. Under Burford abstention, a district court should dismiss or, at minimum, stay a case, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); E & E Hauling v. Forest
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Preserve District of DuPage Cty., 821 F.2d 433 (7th Cir. 1987), where, as relevant here, there are state-law remedies and “the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial concern.” NOPSI, 491 U.S. at 361 (citation omitted).
The fast-moving, complex nature of the response that all States—including Wisconsin—are undertaking to balance the present public health crisis with the orderly functioning of the democratic process presents a uniquely appropriate circumstance for Burford abstention. In Wisconsin, the Commission is the body charged with “the responsibility for the administration of . . . laws relating to elections,” consistent with the laws that the Legislature has enacted. Wis. Stat. § 5.05(1). The rules and decisions made by the Commission are subject to judicial review in Wisconsin courts. See e.g., Wis. Stat. § 227.52. On the very same day that Plaintiffs filed their Complaint, the Commission gathered to decide what action to take in response to the current public health situation. The Commission came to several important conclusions, while it divided on the wisdom of taking other measures, including ones similar to those that Plaintiffs have requested. Tseytlin Decl. Exs. 7 (Wisconsin Election Commission, Special Teleconference Meeting regarding COVID-19 (Mar. 18, 2020)); 6 (WisPolitics.com THU AM Update—19 March 2020). Plaintiffs ask this Court to usurp the Commission’s decision-making process by requiring Plaintiffs’ preferred method for administering this election. That would be deeply “disruptive of state efforts to establish a coherent policy with
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respect to a matter of substantial concern,” such as the critical balance between the needs of public health and democracy. NOPSI, 491 U.S. at 361.
Involving the courts in the difficult, sensitive balance is particularly inappropriate in light of the consequences of courts taking similar actions in “similar cases.” Id. As this past Tuesday demonstrates, different States are taking different approaches to the difficult, fast-changing challenge. The States of Illinois, Florida and Arizona decided to hold primary elections on Tuesday, including substantial inperson voting. Tseytlin Decl. Exs. 2–5. The State of Ohio, on the other hand, made a different choice and moved its primary election to June. Tseytlin Decl. Ex. 8. In the coming weeks and months, numerous other States will have to make these same difficult, sensitive choices, with the guidance of the CDC and state officials. It would set a poor precedent, to put it mildly, if each of these decision—in each State—is to be second-guessed in federal court under the open-ended constitutional inquiry that governs the claims that Plaintiffs have brought. The far better approach is to permit each State to sort these difficult issues out for itself, with any appropriate review occurring in state courts, just as the Burford abstention doctrine envisions.
CONCLUSION This Court should dismiss this case and/or deny Plaintiffs’ motion.
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Dated this 20th day of March, 2020.
Respectfully submitted,
/s/Misha Tseytlin Misha Tseytlin (State Bar No. 1102199) Kevin M. LeRoy (State Bar No. 1105053) TROUTMAN SANDERS LLP 1 N. Wacker Drive, Ste. 2905 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Eric M. McLeod (State Bar No. 1021730) Lane E. Ruhland (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
Lisa M. Lawless (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Attorneys for the Wisconsin Legislature
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 Case: 3:20-cv-00249-wmc Document #: 26 Filed: 03/20/20 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., AND MARK L. THOMSEN, IN THEIR OFFICIAL CAPACITIES AS WISCONSIN ELECTIONS COMMISSIONERS,
Defendants.

Case No. 20-CV-0249

DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Defendants Marge Bostelmann, Julie M. Glancey, Ann. S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, by their attorneys, Eric J. Wilson, Deputy Attorney General, and Brian P. Keenan, S. Michael Murphy, and Jody J. Schmelzer, Assistant Attorneys General, submit this response in opposition to Plaintiffs’ motion for temporary restraining order and preliminary injunction.
INTRODUCTION As the Court recognized at yesterday’s hearing, this case is not really about deficiencies in Wisconsin’s systems for voter registration or requesting

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absentee ballots. Instead, the plaintiffs challenge that those systems have become unconstitutional because voting on election day—and thus election-day registration—is more burdensome than normal due to the COVID-19 virus. While the virus is of great public concern, and has required significant protective measures, most Wisconsin voters can still vote absentee if they no longer wish to go to the polls. The burdens the plaintiffs allege apply to subsets of the voting population, and they have not shown the number of voters affected or the specific burdens those voters face. Given the risks of changing election law within weeks of the election—voter confusion and inability to ensure these changes are effectuated statewide—the Court should deny the plaintiffs’ motion.
RELEVANT FACTS WEC administers and enforces Wisconsin elections law. (Wolfe Decl. ¶ 3.)1 In administering elections, WEC works with the State’s county and municipal clerks. (Id.) In Wisconsin, there are 72 county clerks and 1,850 municipal clerks. Over 60 percent of the State’s municipal clerks are part-time. (Id.)
1 WEC is and administrative agency that does not have the authority to delay, cancel or reschedule our upcoming April 7 election, nor does it have the authority to make changes to existing laws and regulations. (Wolfe Decl. ¶ 4.)
2

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While the WEC is tasked with the enforcement of chapters 5 to 10, and 12, Wis. Stats., due to the decentralized nature of election administration in Wisconsin, voter registration, absentee balloting and administering the photo ID law are all done by local election officials. (Id.) For example, the WEC issues clerk communications, training materials and forms for local clerks, but ultimately local clerks are tasked with implementing any changes in policy or the law in their community. (Id.)
In Wisconsin, the presidential preference primary and spring election is on April 7, 2020. (Wolfe Decl. ¶ 5.) In addition to the presidential primary, there is an election for a Justice of the Wisconsin Supreme Court and elections for many local offices including mayors and members of local governing bodies in each of the state’s municipalities. (Id.)
In general, implementation of any changes to the rules for the April 7 election would be complicated due to Wisconsin’s decentralized election administration structure discussed above. (Wolfe Decl. ¶ 6.) Approximately two-thirds of the municipal clerks in Wisconsin municipalities responsible for conducting elections are employed part-time. (Wolfe Decl. ¶ 7.) Communicating significant changes to those clerks, making necessary modifications to IT applications and ensuring consistent implementation across the state would pose a significant challenge under the compressed timeline available. (Id.)
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I. Changes to the March 18 online and by-mail registration deadline. There are several different ways to register to vote in Wisconsin. (Wolfe
Decl. ¶ 8.) Prior to Election Day, voters can register in three different ways: (1) electronic registration through https://myvote.wi.gov (MyVote), which is the voter facing web application that is the public’s interface with election systems; (2) by mailing the registration form and proof of residence document to the appropriate local election official; or (3) in person at the office of the municipal clerk, the municipal board of elections, or at another location authorized by the municipality. (Id. ¶ 9.)
Under current law, the deadline for online and by-mail voter registration is 20 days prior to the election. Wis. Stat. §6.28(1)(a). For the April 7 election, that was the end of the day on Wednesday, March 18. (Id. ¶ 10.)
A. Reactivation of the online voter registration system. Because the deadline for online voter registration has now passed, the online system would have to be reactivated to accept new voter registrations. (Wolfe Decl. ¶ 11.) From a technical standpoint, the reactivation of the online registration process is possible, but not without significant risk. (Id.) There are essentially three steps required that could be completed in approximately 48–72 hours: Step 1: Modifying code in MyVote. This would effectively reset the “clock” that tells MyVote to stop accepting on-line registration requests.
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A software developer would have to set a new deadline, if ordered by the Court.
Step 2: Testing of the new code. This step is more critical and requires more time to complete correctly. Moving on from this step should be based on meeting appropriate testing standards and not based on passage of time. Testing evaluates the proper function of code changes to validate correct operation and the absence of errors or other defects. Because the registration process includes an interface (API) with the Department of Transportation (DOT) (see Paragraph 23, below), testing may require collaboration with DOT. If necessary, debugging would occur before testing is complete. This step also includes testing of the statewide voter registration system to ensure that the voter registration is entered into the system with the correct status and that information is mapped correctly to the pollbook.
Step 3: Deployment. The final step is to release and activate the new code, making it accessible to the public. This process would also include the deployment of public notices on both MyVote and the WEC website indicating the system changes
(Id.)
There is significant risk involved in deploying software changes to the
election systems that function as the backbone of election management in the
state in the weeks preceding a statewide election. (Wolfe Decl. ¶ 12.) Such a
change would violate a statewide enterprise level change freeze enacted to
protect critical elections operations from unintentional disruption. (Id.) During
a change freeze, all state agencies are prohibited from making changes to any
state agency information technology services and servers in order to mitigate
the risk that errors or security vulnerabilities are introduced to state election
systems. (Id.) Deployment of any software changes can produce unanticipated
consequences. The changes freeze guards against that possibility. (Id.)
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When the system is functioning properly, online registrations are processed immediately and would ordinarily be completed with little discernable delay. (Wolfe Decl. ¶ 13.) But reactivation of online registration capabilities would have various impacts on local election officials and voters. (Id.) The most significant effect for clerks and other election would be on municipal poll books. (Wolfe Decl. ¶ 14.) Most large municipalities, and many counties, send their poll books to publishers for printing immediately after the online registration deadline passes. (Id.) In these jurisdictions, this means that any voter who registered after March 18 would not appear in these poll books. (Id.) Instead, voters registering after March 18 would appear in either the supplemental or post-supplemental poll book. (Id.) In communities using electronic pollbooks, the voter file needs to be uploaded at least a week prior to the election so that it can be tested. (Id.)
The reactivation of on-line registration would also produce more registration list alerts for clerks. (Wolfe Decl. ¶ 15.) These electronic notices require clerks to validate, and sometimes process, changes to voter records in their jurisdictions. (Id.) Processing these alerts ensures the correct voters appear on the poll list. (Id.)
For voters, the risk of confusion would likely present the greatest challenge to reactivation of the electronic database. (Wolfe Decl. ¶ 16.) The registration deadline is referenced in dozens of documents, forms, and web
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pages. (Id.) Locating and changing all the existing language would be impractical and introduce problems for future elections, including the May 12, 2020 election in Congressional District 7. (Id.)
An extended deadline for online and by-mail voter registration would likely impact municipal clerk’s opportunity to cure defects. (Wolfe Decl. ¶ 19.) By-mail applications are more likely to be missing information than online applications. (Id.) When applications are received weeks ahead of the election, clerks have time to contact voters and obtain missing information. (Id.) But busy clerks in the days immediately prior to an election may be unable to contact voters to correct defects, or voters may lack adequate time to respond to clerk inquiries. (Id.) Voters appearing at a polling location expecting to be registered but not appearing on any poll list due to a defect that was not cured, is a real issue that could affect voter’s confidence in the entire process, not to mention the possibility that the voter may not be able to cast a ballot if they are unable to register at the polls. (Id.)
Lastly, communicating changes to the online and by-mail registration deadlines to 1,850 municipal clerks and 72 county clerks and to voters would be challenging, as would attaining consistent application throughout the state. (Wolfe Decl. ¶ 20.)
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B. Processing online and by-mail voter registrations if the deadline was extended.
The process for by-mail voter registrations would not change significantly if deadlines were extended to April 3. (Wolfe Decl. ¶ 17.) As with online registrations, these voters could appear on supplemental or postsupplemental poll books. (Id.)
The primary election administration concern would be practical implementation of a new deadline imposed by the Court. (Id. ¶ 18.) The problem is that a mailing-date based deadline does not account for mail delays. (Id.) Poll books need to be final at some point before the election, and it is impossible to know whether a timely-sent registration with a later deadline is still in the mail at the time of poll book finalization. (Id.) Currently, mailed registrations must be postmarked by March 18. (Id.) A postmark-based deadline, however, may not work for an extended deadline. (Id.) This is because mailed registration forms that arrive after April 3 would risk that the voter does not appear in the poll book on April 7. (Id.) Clerks would need to process these registration forms and, with the April 7 election approaching, registration forms received after April 3 may not be able to be processed. (Id.) Instead, a new deadline for by-mail registrations would need to be defined by the arrival date or, alternatively, be set so early as to effectively eliminate the risk that by-mail registrations would arrive after April 3. (Id.) Further, given
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that this lawsuit assumes that these new registrants would be requesting absentee ballots, applications received very close to the election would likely not allow time for the ballot to be sent to and returned by the voter. (Id.)
There is no way to establish a uniform “drop dead” cutoff date for new by-mail voter registrations, because what works for one municipality may not work for all 1,850 municipalities. (Wolfe Decl. ¶ 21.) For example, the City of Milwaukee will soon start printing poll books. (Id.) II. The proof of residency requirement for new voter registrations.
In registering to vote, an elector needs to fill out a form containing information showing that he or she meets the qualifications for voting in Wis. Stat. § 6.02 and submit proof of the elector’s residence per Wis. Stat. § 6.34. (Wolfe Decl. ¶ 22.) There are many acceptable forms of proof of residency, including common documents like a gas, electric, or telephone service statement (utility bill) for the period commencing no earlier than 90 days before Election Day or a bank or credit card statement. (Id. ¶ 23.) Voters may present a proof of residency document as a hard copy, paper document or an electronic document on your smartphone, tablet, or computer. (Id. ¶ 24.)
Voters registering at the polls on election day do not need to make a photocopy of their proof of residency document. (Id. ¶ 25.) They only need to show the proof of residency document to the poll worker. (Id.)
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Only voters with a valid, unexpired Wisconsin driver license or Wisconsin state ID card may register to vote online. (Wolfe Decl. ¶ 26.) To register online, the address at which the voter is registering must match the voters’ address with DOT. (Id.) When the website is active, these voters can complete their online registration immediately. (Id.) If the address at which the voter wishes to register is different from that with the DOT, then the voter needs to update their address with DOT before registering online. (Id.) A person can change their address with DOT online. (Id.) For those that attempt to register but whose voting addresses or other data do not match information in the DOT database, the website directs them to the DOT website. (Id.) When the online registration system is running, the DOT address change occurs quickly, and the voter can then proceed complete their online voter registration. (Id.) For these individuals, no proof of residency is needed because the DMV matching with the voter’s name, date of birth, address, and driver license number provided for voting purposes serves as the voter’s proof of residency. (Id.)
People unable to register online, because they do not have a Wisconsin driver license or state ID card or because their DMV product is invalid or cannot match, can fill out the voter registration form online, then print it, sign it and mail or deliver it to their municipal clerk’s office along with a copy of a proof of residence document. (Wolfe Decl. ¶ 27.) Voters can send an original of any proof of residency document if they no longer need the document. (Id.)
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Voters may also deliver the registration form (with proof of residence) to their municipal clerk’s office by the Friday before the election, or they may bring it to their polling place on election day. (Wolfe Decl. ¶ 28.) For either of these options, the voter need only show the document to the municipal clerk or poll worker and does not need a copy of the proof of residency document. (Id.)
Once an individual is registered to vote, that registration is valid until they move, change their name or otherwise no longer meet the qualifications of an elector under Wis. Stat. § 6.02, or become disqualified under Wis. Stat. § 6.03. (Wolfe Decl. ¶ 29.) If an individual were permitted to register to vote without submitting the required proof of residency document, that requirement would essentially be waived for as long as their registration is valid, unless a court order or legislation required submission of such documentation at a later date. (Id.) III. Voter ID requirements for absentee ballots.
Individuals must be registered to vote to request an absentee ballot. (Wolfe Decl. ¶ 30.) The deadline for registered voters to request an absentee ballot be mailed to them is the Thursday before the election, which is April 2 for the upcoming April 7 spring election. (Id.)
There are several ways registered voters can request absentee ballots. (Wolfe Decl. ¶ 31.) The easiest way is to sign up at MyVote website. (Id.) If the elector has a photo ID on file with their clerk’s office due to a previous absentee
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by-mail request, they do not need to upload or mail a copy of their ID to get an absentee ballot. (Id.) If the elector does not already have a photo ID on file with their clerk’s office, they must upload a copy. (Id.) The elector can take a picture and upload it on the MyVote website with the same device used to access the website. (Id.) Devices such as a computer, tablet, or phone can take a picture and upload it. (Id.) The entire process of requesting a ballot, taking a picture of an ID, and uploading the picture can be done with a smart phone. (Id.)
Voters can also request absentee ballots by mailing, emailing or faxing their municipal clerk’s office. (Wolfe Decl. ¶ 32.) See also Wis. Stat. § 6.86(a)1, (ac). Voters can find their clerk’s contact information on MyVote. (Id.) Just as with online requests, if voters already have a photo ID on file from previous absentee requests under their current registration, they will not need to provide it again. (Id.) If voters do not have a photo on file, their request must be accompanied by a copy of their photo ID. (Id.)
Voters who are indefinitely confined, meaning they may have difficulty getting to the polls for reason of age, illness, infirmity, or disability are not required to provide a photo ID. (Wolfe Decl. ¶ 33.) Voters in care facilities can have a representative of the facility confirm the resident's identity instead of providing a photo ID. (Id.)
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IV. Relevant deadlines after the April 7 election. After the polls close on April 7, 2020, election inspectors tabulate the
votes received at the polling place, municipal clerks report the returns within two hours after tabulation, and the county clerks post the results within two hours after receiving the returns. (Wolfe Decl. ¶ 34.) See Wis. Stat. §§ 7.51(1), (4), 7.60(1). Municipalities have two ways to count absentee ballots. (Id.) In some municipalities, absentee ballots are counted at the polling places. (Id.) See Wis. Stat. §§ 6.88, 7.51. In other municipalities, a municipal board of absentee ballot canvassers counts all absentee ballots in the jurisdiction. (Id.) See Wis. Stat. § 7.52. The official results of the elections are not determined until each official board of canvassers (for the municipality, county, state, school district, or other special purpose district) has met and completed the official canvass of their respective offices. (Id. ¶ 35.)
After the April 7, 2020 election, municipal boards of canvass have until April 13 to certify the results to the county. (Wolfe Decl. ¶ 36.) The municipal boards of canvass must publicly declare the results for municipal contests by the third Tuesday of April. (Id.) See Wis. Stat. § 7.53(2)(d). This is also the date that the term begins for most local offices. (Id.) County boards of canvass have 10 days to certify their election results to WEC, which is April 17, 2020. (Id.) See Wis. Stat. § 7.60(5). WEC then must publicly canvass the returns wherein it aggregates the election results. WEC has until May 15, 2020, to certify the
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election results for state and federal contests. (Id.) See Wis. Stat. § 7.70(3)(a). WEC plays no role in tabulating votes received at polling places; its role is to aggregate and certify the results. (Id. ¶ 37.)
It would be problematic to count absentee ballots received up to ten days after the election given the canvass and certification deadlines because it would have a domino effect on all the canvass processes and statutory deadlines for each unit of government. (Wolfe Decl. ¶ 38.)
PRELIMINARY INJUNCTION LEGAL STANDARD A preliminary injunction is an extraordinary and drastic remedy, and is never awarded as a matter of right. Munaf v. Geren, 553 U.S. 674, 689–90 (2008). “[A]n injunction requiring an affirmative act by the defendant” must be “cautiously viewed” and granted only “sparingly.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). “Preliminary relief is properly sought only to avert irreparable harm to the moving party.” Chi. United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006). A “moving party must show that it has ‘(1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.’” Wis. Right To Life, Inc. v. Barland, 751 F.3d 804, 830 (7th Cir. 2014) (citation omitted); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “For preliminary relief to be granted, the irreparable harm must . . . be likely. That is, there must be more
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than a mere possibility that the harm will come to pass . . . .” Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 788 (7th Cir. 2011).
Only if the moving party shows likelihood of success on the merits and a suffering of irreparable harm if the injunction does not issue, then “the court weighs the competing harms to the parties if an injunction is granted or denied and also considers the public interest.” Wis. Right To Life, 751 F.3d at 830 (citation omitted). “The equitable balancing proceeds on a sliding-scale analysis; the greater the likelihood of success on the merits, the less heavily the balance of harms must tip in the moving party’s favor.” Id. (citation omitted).
A preliminary injunction “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Granting a preliminary injunction involves the “exercise of a very far-reaching power” and is “never to be indulged in except in a case clearly demanding it.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984) (citations omitted).
ARGUMENT Plaintiffs cannot meet their burden of proving that they are entitled to the extraordinary remedy of a preliminary injunction. First, they cannot show that they will suffer irreparable harm if the injunction is not issued. That alone prevents the Court from granting their motion. Second, even if they could prove
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irreparable harm, they cannot show some likelihood of success on the merits under the Anderson/Burdick balancing test. The Court should deny Plaintiffs’ motion. V. Plaintiffs are not likely to succeed on the merits of their claims.
The plaintiffs are not likely to succeed on the merits of their four claims under the Anderson/Burdick test, and their procedural due process claim is redundant to those claims.
A. The Anderson/Burdick balancing test. The Constitution both protects the right to vote and “confers on the states broad authority to regulate the conduct of elections, including federal ones.” Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004); see also U.S. Const. art. I, § 4, cl. 1 (permitting States to prescribe “[t]he Times, Places and Manner of Holding Elections for Senators and Representatives”). “Election laws will invariably impose some burden upon individual voters.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The general “constitutional question is whether the restriction and resulting exclusion are reasonable given the interest the restriction serves.” Griffin, 385 F.3d at 1130. The question is answered by applying the Anderson-Burdick test, which has two steps. At the first step, courts identify any burden on the right to vote, weigh its character and magnitude, and measure its severity. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citation omitted). Courts
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evaluate a law’s impact not in isolation but “as a part of [the State’s] electoral scheme” as a whole. Burdick, 504 U.S. at 441. Any burdens imposed by the law are to be measured against the baseline of “the usual burdens of voting.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008) (opinion of Stevens, J.).
In the second step of the analysis, a court turns to the State’s interests. “If the burden on the plaintiffs’ constitutional rights is ‘severe,’ a state’s regulation must be narrowly drawn to advance a compelling state interest,” satisfying strict scrutiny. Stone v. Bd. of Election Comm’rs, 750 F.3d 678, 681 (7th Cir. 2014) (citation omitted). But “[i]f the burden is merely ‘reasonable’ and ‘nondiscriminatory,’ by contrast, the government’s legitimate regulatory interests will generally carry the day.” Id. (citation omitted). Under this flexible analysis, “[l]esser burdens . . . trigger less exacting review.” Timmons, 520 U.S. at 358, and “minimally burdensome and nondiscriminatory regulations” in particular “are subject to a less-searching examination closer to rational basis.” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (citations omitted). A justification’s sufficiency is generally a “legislative fact” that must be accepted if reasonable. Frank v. Walker, 768 F.3d 744 (7th Cir. 2014); see Crawford, 553 U.S. at 194–97 (opinion of Stevens, J.); see also Husted, 834 F.3d at 632.
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1. Plaintiffs’ are not likely to succeed on their request to extend the March 18 electronic and by-mail voter registration deadline.
The state has a valid interest in cutting off electronic and mail registration three weeks before the election. After that date, clerks can begin printing their poll books for use at polling locations. For example, the City of Milwaukee will begin printing its poll books in the next few days, after the online and mail registration date has closed. (Wolfe Decl. ¶¶ 14, 21.) Later registrations can be added to a supplemental pool book but, at a certain point, registration needs to close so that poll books can be finalized. Thus, Wisconsin’s voter registrations system, which in ordinary circumstances is “easy,” Frank, 768 F.3d at 748, serves legitimate state interests in the orderly administration of elections.
Plaintiffs argue that the March 18 deadline for online and by-mail voter registration is unconstitutional, during the COVID-19 pandemic, because they hypothesize that “potentially thousands of citizens” will be prevented from voting because “registering in person is simply not feasible.” (Pl. Br. 1.) Defendants recognize that some voters may face difficulties registering during this time, but many voters will not be affected. Most voters do not need to register to vote because they have already registered, and some voters were able to register before the March 18 deadline. In addition, voters can still register in person either at the clerk’s office (where they can also cast an
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absentee ballot at the same time) or at the polling place on election day. While the Governor has issued an executive order preventing gatherings of 10 or more people, the order exempts government facilities. And in-person absentee voting and registration can be accomplished under the “curbside voting” provisions of Wis. Stat. § 6.82. That process allows an elector to both register and complete a ballot without entering the municipal clerk’s office during absentee voting or the polling place on election day. There is no order preventing someone from registering at the clerk’s office. While some subset of voters may be burdened in today’s special circumstances, Plaintiffs have not established either the number of voters or the burdens those voters would face. The Seventh Circuit has made it clear that a plaintiff is not entitled to a preliminary injunction based upon speculative allegations of potential harm to the plaintiff. See Goodman v. Ill. Dep’t. of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005) (stating that a preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion”).
As a counter-vailing interest, extending the deadline could negatively impact the elections process. First, as it relates to electronic registration, changing a software program this close to the election presents significant risks in the event something goes wrong. (Wolfe Aff. ¶ 12.) This system is the backbone of election management in the state, and thus changes to the system
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risk negatively impacting the entire election. (Wolfe Aff. ¶ 12.) There is a statewide enterprise level change freeze enacted to protect critical elections operations from unintentional disruption and mitigate the risk that errors or security vulnerabilities are introduced to state election systems. (Wolfe Aff. ¶ 12.) Deployment of any software changes would violate that freeze and risks unanticipated consequences that might negatively affect the election.
Further, Defendants do not handle mail-in registrations; local clerks handle those. Given that there are 1850 municipal election clerks in Wisconsin, there is a risk that any injunction regarding mail-in ballots will not be applied in the same manner by each and every clerk. Both the communication and the implementation of such a significant change would be a challenge so close to the election given Wisconsin’s decentralized system, and would create potential confusion and increased likelihood of mistakes in other aspects of conducting the election. And mail-in applications with errors will likely result in a failure to register because clerks will not have time to help voters fix mistakes in their applications. (Wolfe Decl. ¶ 19.) The Court should consider these potential problems when ruling on this aspect of Plaintiffs’ claims.
And even if the Court were to grant some relief, it would need to set a deadline by which mail-in registrations are received—by April 3 at the latest— in order to allow clerks to process the application prior to the election and get a person’s name on a poll list. (Wolfe Decl. ¶ 18.) But given that Plaintiffs want
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late registrations for purposes of absentee voting, in order to be practical, the date would need to be sufficiently ahead of election day to allow the absentee ballot to be delivered to the voter and returned to the clerk. Plaintiffs allege that the mail is slow, (Pl. Br. 2); mail from the clerk would be delayed the same as mail from a voter. At a certain point, absentee ballots could not practically be postmarked by election day—the extended deadline Plaintiffs’ request.
2. Plaintiffs are not likely to succeed on their request for relief from the proof of residency requirement for new voter registrations.
Wisconsin has a legitimate state interest in requiring voters to prove that they live at the address at which they register to vote. Proof of residency helps “ensur[e] that voters actually reside in the municipalities where they register to vote.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 937 (W.D. Wis. 2016). That interest is especially relevant to the April 7 election, which involves elections for many local offices and the elector’s address determines which local races he may vote in. Further, this Court found that, at least in normal circumstances, the proof of residency requirements “impose only slight burdens on voters.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 935 (W.D. Wis. 2016). That same analysis would apply to voters attempting to register in person today, either at the polling place or with the clerk. Even in today’s circumstances, the burden of supplying proof of residence is slight for the vast majority of voters, and Plaintiffs have not
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established that a significant number of voters would face a burden or whether that burden would be severe.
The potential burdens are limited to those who cannot easily print or copy a proof of residence document. Plaintiffs do not offer evidence as to the number of people this may affect or the specific burdens such a person might face. Those without the ability to copy or print a proof of residence document at home may be able to secure copies at commercial establishments like FedEx stores, UPS stores, convenience stores, and any other store offering copying services. The Governor’s executive orders have not shut down all stores, and Wisconsin is not subject to a “shelter in place” directive. Plaintiffs’ only evidence of difficulty is that the Madison library has closed, (Spiva Decl. Ex. 2), but libraries are not the only source for copying services (and some libraries are still open). Thus, Plaintiffs have not proven the burdens on the narrow set of voters who cannot easily provide a proof of residence document even in today’s circumstances.
While online registration and registration by mail are no longer available, the proof of residence requirement would not be an issue should the Court grant the plaintiffs’ motion to extend those deadlines. Those who register to vote online do not need to provide a separate proof of residence document. Online registration is limited to those who have a valid Wisconsin drivers’ license or ID card. (Wolfe Decl. ¶ 26.) To register online, a person’s voter
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registration address must match the address on file with the Wisconsin Department of Transportation (DOT). (Wolfe Decl. ¶ 26.) If there is a successful match, then the voter is immediately registered to vote without providing a proof of residence document—the DOT address serves as proof of residence. (Wolfe Decl. ¶ 26.) If a person’s DOT address is outdated, they can change that address online at the DOT website. (Wolfe Decl. ¶ 26.) When the system is active, that change becomes effective in short order such that the person can then register to vote. (Wolfe Decl. ¶ 26.) Thus, the burdens for those able to register electronically are very small.
The same is true of those who register by mail. These individuals need to send in a completed registration form by mail to their clerk’s office. Wis. Stat. § 6.33; (Wolfe Decl. ¶ 27.) Many of them will print the application form, which is available online (Wolfe Decl. ¶ 27), and mail it in. If individuals can print the form, then they should also be able to print a proof of residence document. Wisconsin allows many forms of proof of residence, Wis. Stat. § 6.34(a), such as a utility bill (including electric, utility or phone bills) or a bank statement (including a credit card statement). (Wolfe Decl. ¶ 23.) Many voters would have these documents either available to print from an online source or in hard copy to send along with the application.
Lastly, this Court should consider that Plaintiffs are requesting that voters be allowed to register—which extends beyond this one election—based
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on circumstances affecting the current election. While extending voter registration for one election can be considered temporary relief because it would not apply to future elections, allowing voters to register without following the law is a form of permanent relief because it does apply to future elections. (Wolfe Decl. ¶ 28.) The low burdens on voters in normal circumstances, the large number of voters who can still provide proof of residence, and Plaintiffs’ failure to provide any evidence in support of their claims, provide additional reasons to deny Plaintiffs’ motion.
3. Plaintiffs are not likely to succeed on their request for relief from the voter ID requirement with new absentee ballot requests.
The important state interests served by a photo ID requirement for voting are well-established. The Supreme Court and Seventh Circuit have discussed these interests, including election system modernization, deterring voter fraud, and safeguarding voter confidence. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 192–97, 203 (2008) (holding that these interests were sufficient to defeat a challenge to a voter ID law) (quotations omitted). As the Seventh Circuit has described, “[t]he Supreme Court thought that a photo ID requirement has other benefits: it deters fraud (so that a low frequency stays low); it promotes accurate record keeping (so that people who have moved after the date of registration do not vote in the wrong precinct); it promotes voter confidence. Frank, 768 F.3d at 750 (citations omitted).
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Against these important interests, Plaintiffs offer nothing more than speculation, and misguided speculation at that. They first imply that all people who wish to vote by absentee ballot must include a copy of a photo ID with their request. (Pl. Br. 8.) But a copy of an ID is only required the first time you request an absentee ballot after registering. (Wolfe Decl. ¶¶ 31–32.) If the elector has a photo ID on file with their clerk’s office due to a previous absentee by-mail request, he or she does not need to submit another copy. (Wolfe Decl. ¶ 31.) Thus, the measures taken to protect against COVID-19 do not add any additional burdens to voters who have previously voted via absentee ballot and thus already have a photo ID on file.
Additionally, voters who are indefinitely confined, meaning they may have difficulty getting to the polls for reason of age, illness, infirmity, or disability are not required to provide a photo ID. Wis. Stat. § 6.86(2)(a); (Wolfe Decl. ¶ 33.) And voters in care facilities can have a representative of the facility confirm the resident’s identity instead of providing a photo ID. (Wolfe Decl. ¶ 33.) It is not the case that everyone voting absentee needs to provide a copy of an ID, and the law already makes exceptions that apply to the elderly, ill, and infirm, who are the people that Plaintiffs identify as “specifically at risk in this pandemic.” (Pl. Br. 8.)
Plaintiffs next argue that voters seeking to vote absentee “means a voter must locate a copier, scanner, computer, and/or printer.” (Pl. Br. 8.) This is
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inaccurate; requesting an absentee ballot can be accomplished entirely on a computer, tablet, or even a phone. All a voter must do is visit the MyVote Wisconsin website, https://myvote.wi.gov, and enter the request. (Wolfe Decl. ¶ 31.) A voter can satisfy the ID requirement by taking a picture of their ID with their computer, tablet, or phone, and uploading the photo to the website. (Wolfe Decl. ¶ 31.) Thus, many voters can satisfy this requirement without even leaving their homes or with assistance from a family member or friend with a smartphone. Plaintiffs do not argue, let alone demonstrate, that accessing a device such as a phone is unduly burdensome.
Thus, the burden Plaintiffs allege—but do not support with evidence from any voters—is limited to those who cannot use the website for requesting an absentee ballot. Those voters who merely choose to request an absentee ballot by fax or mail, but could use the website, are not burdened at all. Those that cannot use the website, and are not indefinitely confined, and do not already have a copy of their ID on file with the clerk, are required to submit a printed copy of their ID. But those that print out their form to mail in would have access to some printing capability, and some subset of that group would be able to also copy their ID or take a photograph and print the photograph. And those without the ability to use a copy machine or print a copy may be able to secure copies at commercial establishments like FedEx stores, UPS stores, convenience stores, and any other store offering copying services. The
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Governor’s executive orders have not shut down all stores. Plaintiffs’ only evidence of difficulty is that the Madison library has closed, (Spiva Decl. Ex. 2), but libraries are not the only source for copying services. Plaintiffs have submitted no evidence of the number of people that (1) must obtain a paper copy of their ID and (2) are not able to secure a copy.
4. Plaintiffs are not likely to succeed on their request to extend the date to accept absentee ballots.
Plaintiffs request that this Court enter an injunction that “prohibits defendants from rejecting ballots that are postmarked before or on Election Day that arrive within ten days of Election Day.” (Pl. Br. 15–16.) As an initial matter, that relief may not grant Plaintiffs what they want because it does not require that these ballots actually be counted in the first instance. WEC does not count ballots, absentee ballots or otherwise. Instead, ballot counting is done at the local level, with absentee ballots counted at polling places, Wis. Stat. § 6.88, or by a municipal board of absentee ballot canvassers, Wis. Stat. § 7.52. (Wolfe Decl. ¶ 34.) WEC is not involved in counting these votes. (Wolfe Decl. ¶ 37.) Thus, ordering WEC to accept absentee ballots received after April 7 does not require that the ballots be counted in the first instance. This could result in different treatment of ballots depending on whether those ballots are counted at the local level.
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Wisconsin has a state interest in counting ballots received on election day. Extending the deadline for counting ballots had a domino effect on canvassing and certifying election results. (Wolfe Decl. ¶ 38.) Municipal boards of canvass have until April 13 to certify the results to the county and must publicly declare the results for municipal contests by the third Tuesday of April. Wis. Stat. § 7.53(2)(d). This is also the date that the term begins for most local offices. (Wolfe Decl. ¶ 36.) County boards of canvass have 10 days to certify their election results to WEC, which is April 17, 2020. Wis. Stat. § 7.60(5). WEC then must publicly canvass the returns wherein it aggregates the election results. (Wolfe Decl. ¶ 36.) Extending the deadlines to receive absentee ballots will delay all these deadlines, including for local elections where terms start in mid-April.
Plaintiffs have not shown that there is an unconstitutional burden. Instead, they merely hypothesize that because absentee voting is likely to increase this year and “the strains that the coronavirus pandemic is already placing on the mail system and postal workers, there is a strong likelihood that large numbers of mail-in ballots” will be received after April 7. (Pl. Br. 2.) Nor do Plaintiffs explain why ballots postmarked up to election day should be counted when, even assuming no mail delays, a voter would need to mail the ballot several days before election day to have it counted. This is insufficient to show a burden on the right to vote and surely insufficient to support a
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temporary restraining order governing how ballots will be counted over two weeks from now.
Lastly, the defendants also note that Plaintiffs’ request is overbroad in asking for ballots received ten days after election day to be counted. They have submitted no evidence that any ballots, let alone a significant number, would be mailed on election day and received ten days later. And the greater the number of days for ballots to be received, the larger the impact on the state’s vote canvassing and certifying processes.
B. Plaintiffs’ procedural due process claim is duplicative and should be dismissed.
Plaintiffs’ procedural due process claim is not viable because it is redundant to their First and Fourteenth Amendment claim asserting an undue burden on the right to vote. (See Compl., Dkt. 1 ¶¶ 42–47.) Constitutional claims must be addressed under the most applicable provision. Graham v. Connor, 490 U.S. 386, 395 (1989). “When a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of substantive due process must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994). The Seventh Circuit holds that plaintiffs cannot expand their claims by attaching additional constitutional labels to them. Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). This premise applies
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equally to Plaintiffs’ procedural due process claim, which is redundant of their claim under the First and Fourteenth Amendment.
Here, Plaintiffs challenge the same election law requirements in both their First/Fourteenth Amendment claim and their procedural due process claim. Plaintiffs allege the same facts in support of both claims, and they claim the same injury—voter disenfranchisement. By inserting a procedural due process claim into the mix, Plaintiffs are advocating for the application of two different legal standards to the same set of operative facts. But the Supreme Court has held that laws imposing a burden on the fundamental right to vote are subject to the Anderson-Burdick test—not the test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). See Anderson, 460 U.S. at 788; Burdick, 504 U.S. at 434.
Plaintiffs have not indicated how their right under the First and Fourteenth Amendments are different from their procedural due process rights. Accordingly, Plaintiffs’ procedural due process claim should be dismissed because it is redundant of the rights guaranteed by the more specific First and Fourteenth Amendments governed by the Anderson-Burdick test. VI. Plaintiffs have failed to meet their burden of showing that they
will suffer irreparable harm without a preliminary injunction. A plaintiff seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at
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22. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. Without proving irreparable harm, the Court need not decide any other question. See Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 19 & n.6 (7th Cir. 1992) (plaintiff's failure to demonstrate irreparable harm “dooms a plaintiff's case and renders moot any further inquiry”).
Plaintiffs’ motion fails for the same reasons their claims are unlikely to succeed on the merits. Plaintiffs argue that they face irreparable harm if their motion for preliminary injunction is denied because (1) voters will be disenfranchised and (2) the laws will contribute to public health risks. (Pl. Br. 12–13.) As shown above, Plaintiffs have not shown a significant number of voters will be disenfranchised or will have to risk their health in order to vote. VII. There are public interest concerns with altering the election
rules within weeks of the election. Before entering an injunction, the Court must consider whether the injunction is in the public interest. In an election case, this Court must consider “in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Specifically, “[c]ourt
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orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4–5. The Court must consider the effect on the election even when an injunction is intended to eliminate an allegedly unconstitutional barrier to voting. In Purcell, the Supreme Court reversed a Ninth Circuit injunction that prohibited Arizona from enforcing a voter ID requirement.
Plaintiffs’ requests would change Wisconsin election law less than three weeks before election day. Several of the potential negative effects have been discussed above, such as the risk in changing Wisconsin’s electronic elections systems so close to the election. And given that Wisconsin elections are run in a decentralized manner through local clerks around the state, it will be challenging to ensure that last-minute changes to the law are applied equally throughout the State. While WEC can communicate any court-ordered changes to the laws to the clerks, the clerks administer the elections at the ground level. (Wolfe Decl. ¶ 4.) There is no guarantee that nearly 2000 clerks will uniformly be able to adapt quickly to these changes, particularly when they are busy preparing for the upcoming election. For example, even if this Court enjoined the proof of residency requirement, clerks who are used to ensuring a proper proof of residence document may still deny registration to a voter if they by fail to change their procedures immediately after any WEC directive to do so.
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Similarly, clerks who are busy preparing for the election may not realize they should accept a late application received by mail, or they may not have sufficient staff to handle a new task added just for this election. And all municipalities may not treat late-received absentee ballots in the same manner. There is no guarantee that an injunction could be implemented in a uniform manner statewide.
In addition, communicating these changes to voters will be difficult, and voters may be confused as to what is allowed in terms of registration and absentee ballots. The public information currently available on Defendants’ and clerks’ websites references current law, as one would expect. (Wolfe Aff. ¶ 16.) While some voters will hear about a court order, many will not. As in Purcell, a change in the law this close to an election could “result in voter confusion.” 549 U.S. at 4–5.
Defendants understand the Plaintiffs’ concerns that voting has become more difficult during the time of the COVID-19 pandemic. If this Court finds certain of the challenged laws impose burdens, it still needs to weigh the potential remedy to those burdens against the concerns about the proper functioning of the elections system as a whole, including voter confusion, statewide application of any injunction, and the risk of mistakes when the law is changed so closely to an election. Any relief must be tailored to alleviate
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burdens without causing unnecessary disruption to the elections system this close to election day.
CONCLUSION For the foregoing reasons, the Court should deny Plaintiffs’ motion for temporary restraining order and preliminary injunction. Dated this 20th day of March 2020.
Respectfully submitted, ERIC J. WILSON Deputy Attorney General of Wisconsin Electronically signed by: s/ Brian P. Keenan BRIAN P. KEENAN Assistant Attorney General State Bar #1056525 Attorneys for Defendants Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-0020 (608) 267-2223 (Fax) keenanbp@doj.state.wi.us
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Civil Action No. 3:20-cv-249-wmc

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

PLAINTIFFS’ BRIEF IN OPPOSITION TO INTERVENTION AND RESPONSES TO THE COURT’S QUESTIONS DURING THE
MARCH 19, 2020 TELEPHONE STATUS CONFERENCE

We are in the midst of the worst national health emergency since at least the Great Influenza of 1918-20. The news grows progressively more frightening by the day. There were 155

confirmed cases of COVID-19 in Wisconsin as of 2 p.m. yesterday (March 19), and growing “evidence of community spread” in Dane, Milwaukee, Kenosha, and Brown Counties.1 Governor Evers continues to “urge[] the public to stay home” and to take other actions to reduce public exposure.2 Meanwhile, there are growing reports in Wisconsin and throughout the country that

1

Wis. Dep’t of Health Servs., Outbreaks in Wisconsin,

https://www.dhs.wisconsin.gov/outbreaks/index.htm (last visited Mar. 19, 2020).

2 Press Release, Gov. Evers Urges the Public to Help Keep Our Healthcare Workers Safe (Mar. 19, 2020), https://content.govdelivery.com/accounts/WIGOV/bulletins/282251a. Specifically, those who are “asymptomatic or experiencing mild symptoms” should “stay home and self-isolate.” Id. (emphasis added). The Governor yesterday also directed Department of Health Services (DHS) Secretary-designee Andrea Palm to restrict the size of all child care settings. Press Release, Gov. Evers Orders Scaling Down of all Child Care Settings (Mar. 18, 2020), https://content.govdelivery.com/accounts/WIGOV/bulletins/281de9e. “Centers may not operate with more than 10 staff present at a time and may not operate with more than 50 children present at a time.” Id.

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voting locations are “hemorrhaging” poll workers and election judges because of COVID-19 fears; that many regular voting locations are closing for safety reasons (such as assisted-living facilities); that many voters who are in higher-risk groups (or who live with people who are in higher-risk groups) are terrified of having to go to the polls in person; and whether polling places will have sufficient hand sanitizers and cleaning supplies available to prevent the potential spread of COVID-19 in polling places. See Supplemental Declaration of Bruce V. Spiva, Exs. 1-7, which is being filed with this brief.
In the face of this once-in-a-century catastrophe, the Wisconsin Elections Commission (through the Wisconsin Department of Justice) and the proposed intervenor, the Wisconsin Legislature, argue that the statutory deadlines and proof requirements challenged in this litigation should not be modified one whit for the upcoming April 7th elections. They contend that Wisconsinites should be forced to exit the safety of their homes⸺contrary to the urgings of government officials and health experts⸺to make copies, scan documents, register, and vote. It is now clear that, if this Court does not take swift action on behalf of Wisconsin’s eligible voters, no one else will. As a result, Wisconsinites will be faced with the unconscionable choice of having to risk their safety or lose their right to vote. And they will face this choice for no good reason. Not only is the relief requested by Plaintiffs limited and tailored to ensure safe registration and voting in this unprecedented time, but there is no legitimate question that it is needed.
Part I of this brief responds to the Wisconsin Legislature’s motion to intervene as of right and/or by permission in this litigation. Part II responds to several questions raised by the Court during yesterday’s telephone status conference. I. This court should deny the Wisconsin Legislature’s motion to intervene.
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The Wisconsin Legislature’s motion to intervene in this litigation is squarely barred by Planned Parenthood of Wisconsin, Inc. v. Kaul, 384 F. Supp. 2d 982 (W.D. Wis.), aff’d, 942 F.3d 793 (7th Cir. 2019). Plaintiffs will not waste the Court’s time with the usual background discussion or recitations of the obvious, given that this Court authored Planned Parenthood and was upheld in all respects by the Seventh Circuit. As in Planned Parenthood, the Legislature here has once again failed to “point to a direct, unique interest implicated by this lawsuit”; failed to demonstrate “that this lawsuit somehow threatens to impair that interest”; and failed to show that the Wisconsin Department of Justice is “inadequately represent[ing] that interest,” which requires a showing of “gross negligence or bad faith” on the Department’s part. Id. at 988.
If anything, the Legislature’s argument for intervention here is far weaker here than in Planned Parenthood. First, the Legislature does not even attempt to rely on the sort of alleged issue conflicts it claimed in Planned Parenthood. There, the Legislature argued that it should be allowed to intervene because of, inter alia, the incumbent Attorney General’s “endorsement by the political arm of Planned Parenthood during the election; his decision to join a lawsuit against the federal government challenging a regulation barring taxpayer-funded family planning clinics from referring patients to abortion providers”; and “his decision to withdraw Wisconsin from two, multistate amicus briefs defending abortion regulations unrelated to those challenged here, nor adopted by Wisconsin.” 384 F. Supp. 3d at 989 (emphasis in original). This Court held that, “[e]ven viewed collectively, this litany fails to demonstrate (or even come close to demonstrating) either gross negligence or bad faith.” Id. Here the Legislature points to no such arguable issue conflict at all. Instead, it argues in its intervention brief that a conflict between the Legislature and the Attorney General might arise in the future. And it makes many similarly “silly” arguments this Court rejected in Planned Parenthood. Id. at 988 n.5.
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Second, this Court denied permissive intervention in Planned Parenthood because, inter alia, “to allow intervention would likely infuse additional politics into an already politicallydivisive area of the law and needlessly complicate this case.” Id. at 990. So much more the case here. The state GOP Executive Director Mark Jefferson has branded this case as an attempt to “hijack a national health crisis to rig an election in [plaintiffs’] favor.” https://madison.com/ct/news/local/govt-and-politics/amid-pandemic-democrats-sue-to-easeabsentee-voting-rules-in/article_b36c8820-c6b9-5fa2-bbda-74e1d86bfeaf.html. The best answer to this false and offensive claim is to quote Judge Walker’s words in Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1258-59 (N.D. Fla. 2016), ordering an extension of deadlines due to Hurricane Matthew:
It has been suggested that the issue of extending the voter registration deadline is about politics. Poppycock. This case is about the right of aspiring eligible voters to register and to have their votes counted. Nothing could be more fundamental to our democracy. The Legislature’s intervention would only “needlessly complicate this case” and slow it down. 384 F. Supp. 3d at 990. Third, the Legislature remarkably relies heavily on Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019)―a case decided after this Court’s Planned Parenthood decision―without acknowledging that it made the same arguments about Bethune-Hill on appeal to the Seventh Circuit in Planned Parenthood or that the Seventh Circuit forcefully rejected those arguments. See 942 F.3d at 800 (“Bethune-Hill cannot bear the weight the Legislature puts on it.”). “The Supreme Court was simply not addressing a situation, like this one, in which two state entities were trying to speak on behalf of the State at the same time.” Id. (emphasis added). “In fact, every decision the Legislature cites as favorable authority involves a situation in which a legislature intervened once the governmental defendant’s default representative had dropped out
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of the case,” including Bethune-Hill. Id. (emphasis added). “The Legislature points us to no authority granting a state—or any party for that matter—the right to have two separate, independent representatives within the same suit.” Id. All of these points apply with equal force here as in Planned Parenthood. The State argues it should be allowed to intervene now because the Department of Justice might not appeal an adverse decision. The answer to this purported concern is obvious: if the Department decides not to appeal, the Legislature can then move to intervene.
Fourth, the Legislature relies heavily on Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), in which the Supreme Court cautioned that “[c]ourt orders affecting elections, …can themselves result in voter confusion and consequent incentive to remain away from the polls,” a risk that increases “[a]s an election draws closer.” The underlying purpose of this so-called “Purcell Principle” is to avoid “changing the electoral status quo just before the election,” which would cause “voter confusion and electoral chaos.” Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427, 428 (2016).
Remarkably, the Legislature does not even attempt to respond to the arguments raised by Plaintiffs’ counsel in yesterday’s conference. Nor does the Legislature explain why the Wisconsin Department of Justice is incapable of raising the Purcell defense if it finds it meritorious. Moreover, the “electoral status quo” already has been upended―not by any judicial order, but by COVID-19 and the “voter confusion and electoral chaos” it is causing. Until recent days, Wisconsin voters reasonably expected that they would be able to safely register in person until the Friday before the election, or at the polls themselves on election day. Now they can’t--not because of any court order, but because of the pandemic. And now, because of the challenged deadlines, those affected voters cannot register electronically or by-mail.
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Likewise, the Supreme Court in Purcell was concerned that pre-election judicial orders might create a “consequent incentive to remain away from the polls.” 549 U.S. at 5. Here again, the “incentive to remain away from the polls” in this case results not from federal judicial action, but by a deadly pandemic. Voter confusion and abstention from voting are “consequent” of COVID-19, not of anything this Court might do. Plaintiffs’ requested relief would get more voters to the polls and ensure their ballots will be counted, rather than threatening to keep them away. Under proposed intervenors’ reasoning, the natural disaster decisions cited by Plaintiffs would have come out the other way, because they involved changing state election procedures shortly before election day. That would be absurd and unjust―those cases (as here) involved efforts to mitigate the electoral impacts of natural disasters that interfered with voters’ reasonable expectations and threatened to keep voters from voting. See Plaintiffs’ Opening Br. at 8 (Dkt. 3). II. Responses to the Court’s questions.
During yesterday’s conference, the Court, the Department of Justice, and proposed intervenors raised several issues that may be material to the decisions the Court will soon have to make. For the sake of completeness and to aid the Court’s decision-making, Plaintiffs briefly address those issues in the following discussion.
A. The Election Day Receipt Deadline There was some question during yesterday’s conference about Wisconsin’s Election Day Receipt Deadline, and whether the Court could wait until after the election to decide the issue. To clarify, absentee ballots must be received by 8:00 p.m. on Election Day in order to be counted. Wis. Stat. § 6.87(6). If they arrive after that time, they are not counted, even if they are postmarked before Election Day. Id. This receipt-deadline system is different from systems that rely on when a ballot is sent. In such systems, ballots that are postmarked on or before Election Day
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but received after Election Day are still fully counted. That does not happen in Wisconsin. Instead, a Wisconsin voter could cast his or her ballot several days before Election Day, but, because of slower U.S. Postal Service deliveries and other pandemic-related service interruptions, the ballot may arrive after Election Day. Under these scenarios, the ballot “may not be counted” and that voter is disenfranchised. Id.
In the 2018 general election, Wisconsin reported to the Election Assistance Commission that 1,445 absentee ballots arrived after the deadline. Those votes were not counted; those voters were disenfranchised. “[T]he basic truth [is] that even one disenfranchised voter—let alone several thousand—is too many[.]” League of Women Voters of N.C. v. N.C., 769 F.3d 224, 244 (4th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015). Even more voters face disenfranchisement in the upcoming primary because of the Election Day Receipt Deadline. Circumstances are changing every day. There is no telling how many absentee ballots will be requested by the April 2 deadline, how many absentee ballots will be sent before the April 7 election, how many absentee ballots will arrive after 8:00 p.m. on April 7, or how the ongoing public health crisis will impact election workers processing absentee ballots or the U.S. Postal Service in delivering the mail.
A wait-and-see approach―holding off deciding the ballot receipt issue until closer to Election Day or even thereafter―would fail to provide sufficient relief in several respects. First, determining the eligibility of votes after an election presents due process concerns. See, e.g., Griffin v. Burns, 570 F.2d 1065, 1070 (1st Cir. 1978) (holding that Rhode Island’s “retroactive invalidation of absentee and shut-in ballots in this primary violated the voters’ rights under the fourteenth amendment”).
Second, as a practical matter, the number of late-arrived absentee ballots is not tracked in any centralized way that allows easy access on a condensed timeline. Under Wisconsin law,
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municipal clerks must keep records of voters who apply for absentee ballots and have voted absentee. Wis. Stat. § 6.89. But because late-arrived absentee ballots are not counted, see id. § 6.87(6), the number of uncounted late-arrived absentee ballots are not systematically captured and publicly reported immediately. Thus, for Plaintiffs to independently demonstrate the full scope of the Election Day Receipt Deadline’s disenfranchising effects to the Court, they must engage in a time-consuming public records requests to each municipal clerk or by waiting for the state’s report to the Election Assistance Commission. With just nine days after April 7 for each municipality to complete its canvass, this is simply not possible. Rather, to avoid widespread disenfranchisement of Wisconsinites, this Court should enjoin the Election Day Receipt Deadline before the April 7 election, and allow ballots postmarked by Election Day and arriving within ten days after Election Day to be counted.
Third, a failure to give prompt assurances that every ballot mailed or emailed by a certain date will be counted will itself increase voter confusion and provide a further disincentive to going through the challenging act of registering and voting in the midst of the pandemic. If there is not even a basic assurance that an absentee ballot will be counted―even one mailed many days in advance of the election―why bother to send a ballot that has arrived just days before the deadline and that the voter knows they likely cannot mail in time for it to arrive before 8 p.m. on election day and be counted? The Court’s order should at the very least clearly provide that voters’ timely mailed absentee ballots will be counted, even if it leaves the implementation details until closer to or even after the election.
B. Proof and judicial notice issues The principal basis for the Legislature’s motion to dismiss (Dkt. 23) is that Plaintiffs have failed to submit “competent” evidence documenting any harm to any particular voter, in the form
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of admissible declarations. Plaintiffs are in the process of gathering relevant evidence substantiating the adverse impacts caused by the challenged statutes in the wake of the coronavirus pandemic. See the accompanying declarations of Hannah Temes, Douglas Koop, Amia Bridgeford, and Linnea Stanton. These are students and older voters with health challenges, all of whom face significant obstacles to registering or voting because of the registration deadline and/or the photo ID and proof of residence document requirements. Plaintiffs are prepared to continue gathering and submitting such individualized proof if this Court deems it necessary.
But this Court need not and should not wait to take decisive action pending the submission of relevant voter declarations, a process that itself raises potential threats to human health and safety.3 Most if not all of the relevant facts are judicially noticeable as either adjudicative facts or legislative facts. A court may take judicial notice of an adjudicative fact that is “not subject to reasonable dispute” and either (1) “generally known within the territorial jurisdiction of the trial court” or (2) “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997). “Judicial notice is premised on the concept that certain facts or propositions exist which a court may accept as true without requiring additional proof from the opposing parties. It is an adjudicative device that substitutes the acceptance of a universal truth for the conventional method of introducing evidence.” Fed. R. Evid. 201 advisory
3 Because of the coronavirus, just the act of obtaining signed declarations from Wisconsin voters is challenging. Voters who do not have scanners or copiers in their homes cannot provide signed declarations from their homes. And places of work are not an option for obtaining access to scanners and printers because most work places are now closed. The Department of Justice and proposed intervenors essentially ask the Court to leave common sense at the courthouse door by not recognizing these very real and serious obstacles―obstacles that make reliance on judicial notice even more compelling. It is no answer to argue, as the proposed intervenors do here, that “most” people have a printer or a scanner in their homes, or now use a smart phone. Many people do not, especially those with limited means and resources, as well as Wisconsin’s elderly voters.
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committee’s note (1972). As Professor Thayer explained in his seminal analysis of judicial notice, which formed the backbone of Rule 201, there is a “wide principle … that courts may and should notice without proof, and assume as known by others, whatever, as the phrase is, everybody knows.” James B. Thayer, Judicial Notice and the Law of Evidence, 3 Harv. L. Rev. 285, 304-05 (1890). “The application of such a principle must … leave a great range of discretion to the courts; only in a large and general way can any one say in advance what are and what are not matters of common knowledge.” Id. at 305.
“Everybody knows” we are now in the midst of the worst pandemic in several generations, one that is likely to grow much worse between now and April 7. It is “common knowledge” that federal, state, and local officials as well as the medical community are telling us 24/7 to hunker down, take shelter, avoid leaving home as much as possible, avoid crowded places, avoid public transportation, and prepare for the situation to get much worse over the coming weeks and we provided examples of such pronouncements in our initial filing. See Exh. 1 to Initial Brief. “Everybody knows” there is widespread uncertainty, health and safety concerns, and fear of escalating catastrophe. See, e.g., United States v. Griffin, 525 F.2d 710, 711 (1st Cir. 1975) (taking judicial notice that enforced busing in the South Boston public schools received substantial publicity and aroused widespread resentment); Leatherback Sea Turtle v. Flagler Cty. Bd. of Cty. Comm’rs, 359 F. Supp. 2d 1209, 1214 n.2 (M.D. Fla. 2004) (taking judicial notice of the “current forecast that has Flagler Beach in the path of Hurricane Jeanne” given projections from the “National Hurricane Center that within the next 72 hours Hurricane Jeanne will hit Flagler Beach with winds of 115 miles an hour”).
The key facts relied upon by Plaintiffs are also “legislative” in character. “When a court, as a basis for making law, assumes or reaches a conclusion as to a broad proposition of fact, the
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court is said to have taken ‘judicial notice of legislative facts.’” 1 Jones on Evidence § 2:4 (7th ed.) (emphasis added). “Sometimes a court takes notice of such a fact, which may be far from indisputable, in a sweeping generalization,” sometimes relying on “scientific, sociological and other data which itself may be disputed.” Id.
There are no limits on “judicial access to legislative facts . . . in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level. It should, however leave open the possibility of introducing evidence through regular channels in appropriate situations.” Id.; see generally Owens v. Duncan, 781 F.3d 360, 364 (7th Cir. 2015) (Addressing appropriateness of relying on judicial notice, legislative facts, and stipulated facts, court states: ”Not every fact on which a verdict is based must be found in or inferred from evidence introduced by a party.”); Kaczmarczyk v. I.N.S., 933 F.2d 588, 593–94 (7th Cir. 1991) (quoting authority suggesting that “[t]he attitude of the country” toward prospective deportation of various types of former residents is a question of legislative fact”).4
C. State’s technology and resource arguments. Administrator Meagan Wolfe submitted a Declaration explaining some potential administrative difficulties with restarting the electronic registration system, extending the
4 The proposed intervenors’ other major argument for dismissal relies on Burford abstention, which “allows a federal court to dismiss a case only if it presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,’ or if its adjudication in a federal forum ‘would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726–27 (1996) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)) (emphasis added). This abstention doctrine only applies “in extraordinary circumstances.” Id. When a case does not involve a statelaw claim, as is the case here, “Burford did not provide proper grounds for an abstention-based dismissal.” Id.
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registration deadline and the deadline for receipt of absentee ballots. Many of the points raised by Administrator Wolfe appear to be issues that the current system can easily accommodate. The restarting of the online registration system does appear to entail some administrative burden, but based on her declaration alone, surmountable burdens. These are extraordinary times more than justifying the type of administrative burden she identifies. We briefly address the major concerns raised by Administrator Wolfe below:
 Reactivation of Online System: Administrator Wolfe explains that re-activating the online registration system requires three steps – modifying MyVote code, testing the new code, and deployment – that will take 48-72 hours. Wolfe Decl. Para. 11. But even if re-activating the online registration system takes 72 hours, that would still allow people to begin registering again online on Monday, March 23 and continue to do so through April 3. That is a substantial improvement over the current alternative of no additional days of online registration.
 Poll Books: Administrator Wolfe states in Paragraph 14 of her Declaration that the biggest effect of extending the registration deadlines would be on municipalities and counties, some of which send poll books to publishers for printing immediately after the online registration deadline passes. This does not appear to be a substantial concern. Registrations continue through April 3 at clerk’s offices and of course on Election Day, and Administrator Wolfe recognizes that there are “supplemental” and “post-supplemental” poll books, so this is something the municipalities and counties deal with under the current system. Wolfe, Decl. Para. 17.
 Confusion: Administrator Wolfe states that changing the registration deadlines risks confusion because WEC would need to get the word out to 72 county clerks and 1850 municipal clerks. But the WEC communicates with these local election officials already through clerk communications, Para. 4, and therefore can get the word to them that these deadlines have changed.
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 Mail Time: Administrator Wolfe states that they look to the postmark on by-mail registration applications to determine if they are timely, and raises the concern that clerks may not have time to mail the ballot back if they receive the registration and/or ballot application too close to the election, Decl. Para. 18. This may be so, but it does not justify disenfranchising those voters for whom there is still time to get their registration and ballot application in and returned. Moreover, this concern provides another reason for the Court to extend the Election Day receipt deadline for absentee ballots, so that those ballots mailed by Election Day will still be counted.
 Defects: Administrator Wolfe states that by-mail registration applications are more likely to contain defects that need to be cured and that there will be less time to do this. Decl., Para. 19. She notes that these applications are often missing proof of residence. This concern provides an additional basis for the Court to order that the proof of residence requirement be waived. And the fact that some registration applications may be defective is not a good reason to deny those that are not.
 Confinement: Administrator Wolfe points out that under Wisconsin law, people who are indefinitely confined, “meaning they may have difficulty getting to the polls for reason of age, infirmity, or disability are not required to provide photo ID,” with their absentee ballot applications. Decl. Para. 33. This provides an additional reason for the Court to waive the photo ID requirement, because in essence a wide swath of the Wisconsin population is confined to their homes in order to avoid catching and spreading Covid-19.
 Election Day Receipt Deadline: Administrator Wolfe states that if the Court grants Plaintiffs’ request to extend the deadline for receipt of absentee ballots to 10 days after Election Day that municipalities and counties could not make their respective April 13 and April 17 canvassing deadlines. Decl. Para. 36. This is an issue that this Court can solve while preserving
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the right of Wisconsinites to vote. The Court can extend the canvassing deadlines to permit the municipalities and counties to count the absentee votes that come in up to 10 days after Election Day. In the alternative, the Court could grant a shorter extension. But Plaintiffs submit that under these circumstances, simply allowing ballots that arrive after 8 p.m. on Election Day to be thrown out to preserve these purely administrative deadlines is inconsistent with the Constitution.
Moreover, as discussed in Plaintiffs’ opening brief, numerous federal courts have held in the context of natural disasters and other emergencies that any administrative inconveniences or additional expenses faced by the State are vastly outweighed by the vindication of the constitutionally protected right to vote, and must yield to that fundamental right. In 2016, for instance, Hurricane Matthew bore down on the Southeastern United States, causing disruption and preventing thousands of voters from registering to vote. Two federal courts extended voter registration deadlines in two states and discounted the burdens that the extensions would cause the states. While extending the voter registration deadline “would present some administrative difficulty,” “those administrative hurdles pale in comparison to the physical, emotional, and financial strain Chatham County residents faced in the aftermath of Hurricane Matthew. Extending a small degree of common courtesy by allowing impacted individuals a few extra days to register to vote seems like a rather small consolation on behalf of their government.” Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016).
In Florida, meanwhile, a federal court extended the voter registration statewide. The court explained that Florida’s deadline imposed a severe burden on individuals denied the right to vote. Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016). When weighed against administrative convenience, the court explained “it would be nonsensical to prioritize those deadlines over the right to vote, especially given the circumstances here.” Id. at 1258. The
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circumstances today in Wisconsin—and across the United States—are arguably far worse. Whereas a hurricane dissipates over the course of days, a global pandemic may last for months, if not longer.
Even when inclement weather less severe than a major destructive hurricane (or a spreading global pandemic) impacted voting, courts have not hesitated to extend deadlines or impose remedy to assist voters. During the 2008 Ohio primary, for instance, a federal court extended the hours polling places must be open by 90 minutes because of heavy rain, flooding, and election workers running out of ballots. Obama for Am. v. Cuyahoga Cty. Bd. of Elections, 1:08-cv-562-PAG, ECF No. 6 (N.D. Ohio Mar. 4, 2008). In Pennsylvania, “extreme weather conditions that caused extensive flooding, loss of electricity, heat, and water” led to multiple precincts being closed. In re General Election-1985, 109 Pa. Cmwlth. 604, 606 (1987). The Commonwealth Court affirmed the closures, explaining that election laws must “ensure fair elections, including an equal opportunity for all eligible electors to participate in the election process.” Id. at 608. But when unforeseen extreme weather prevented voters from making it to the polls, “members of the electorate could be deprived of their opportunity to participate because of circumstances beyond their control.” Id. This Court should grant Plaintiffs’ tailored and reasonable requests to further the safety of Wisconsin voters while still permitting them to exercise the most “precious” right. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). III. Conclusion
For the reasons set forth above, in Plaintiffs’ prior submissions, and in Plaintiffs’ arguments during yesterday’s scheduling conference, the Wisconsin Legislature’s motion to intervene should be denied and Plaintiffs’ motion for a TRO and preliminary injunction should be granted with dispatch.
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Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney* Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk* PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs *Motions for Pro Hac Vice Forthcoming
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 Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,
Defendants.

OPINION AND ORDER 20-cv-249-wmc

In light of the ongoing impact of the COVID-19 crisis, the Democratic National Committee (“DNC”) and the Democratic Party of Wisconsin seek a temporary restraining order and preliminary injunction barring enforcement of three requirements for the upcoming April 7, 2020, election: (1) the current electronic and mail-in voter registration deadline under Wis. Stat. § 6.28(1) of March 18, 2020; (2) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted under Wis. Stat. § 6.87; and (3) the requirements of proof of residence and voter ID for electronic and mailin registration and of photo identification for absentee ballot applications under Wis. Stat. §§ 6.34, 6.86, 6.87. (Dkt. #2.)
Yesterday, the court held a telephonic conference with counsel for the parties -plaintiffs appeared by private counsel and defendants appeared by the Department of Justice. In addition, the court allowed counsel for the Wisconsin Legislature to participate based on its expressed intent to file a motion to intervene and a motion to dismiss

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plaintiffs’ complaint. (Dkt. #8.)1 After the hearing, the court directed defendants to file a written response to plaintiffs’ motion for TRO and preliminary injunction, as well as set a deadline of noon today for the proposed intervenor to seek to intervene formally and its own response to plaintiffs’ motion.2
In light of the plaintiffs’ motion and supporting materials, defendants’ and the proposed intervenor’s respective responses, arguments by all parties during the telephonic conference, and the near certainty of increasing barriers to in person voting for the April 7, 2020, election due to the COVID-19 pandemic, the court will grant in part and deny in part plaintiffs’ motion for a temporary restraining order. Specifically, the court will grant plaintiffs’ request to extend the deadline by which an individual can register to vote electronically to March 30, 2020, and deny the motion in all other respects at this time. In denying the remaining aspects of plaintiffs’ motion for a temporary restraining order, the court expressly reserves on their request for extension of the date by which absentee ballots may be counted toward the election, which may still be taken up by motion for a preliminary injunction, either on or after April 7, or earlier if plaintiffs believe they have
1 Today, the Wisconsin Legislature filed a motion to intervene and a proposed motion to dismiss and opposition to plaintiffs’ motion for TRO. (Dkt. ##20, 22.) The court will take up these motions after considering responses from the parties, although the court has considered the Legislature’s arguments expressed during the hearing and in the proposed intervenor’s motion to dismiss and opposition to plaintiffs’ TRO motion. 2 Late today, the court also received a request from the Republican National Committee and the Republican Party of Wisconsin asking that the court delay any decision in this case for 48 hours so that they may file a motion to intervene. (Dkt. #34.) Due to the pressing circumstances surrounding this case, the court is unable to delay ruling and would simply encourage prompt filing of an intervention motion if either party continues seeks to participate going forward.
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sufficient evidence to support that request, including the submission of proper, proposed findings of fact.
FACTS A. Challenged Election Laws
Plaintiffs filed their complaint and the present motion on the afternoon of Wednesday, March 18, 2020, the third Wednesday before the April 7, 2020, election, which was also the last day for electronic and mail-in registrations for that election under Wisconsin Statute § 6.28(1). Left unchanged, individuals who still need to register to vote for the April 7 election must now either register in person (1) at the municipal clerk’s office on or before Friday, April 3, 2020, or (2) at their polling place on the date of the election, Tuesday, April 7, 2020. In past elections, between 11% and 12% of voters registered at their polling place on the date of the election. (Pl.’s Br., Ex. 5 (dkt. #3-6) (12.7% of voters registered on election day in 2016 general election; 11.2% of voters registered on election day in 2014 general election).)
Under Wisconsin Statute § 6.87(6), absentee ballots must arrive at the municipal clerks’ offices by 8:00 p.m. on election day to be counted. Under § 6.87(6)(b), individuals can request absentee ballots by submitting an application by April 2, 2020, the Thursday before the election, but must already be registered to do so online. In order to request an absentee ballot, individuals must also provide copies of photo identification pursuant to Wisconsin Statute § 6.86 and § 6.87.
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Finally, Wisconsin Statute § 6.34 requires individuals seeking to register to vote electronically or by mail to provide copies of proof of residence. Section 6.34 contemplates proof of residence besides a valid, unexpired driver’s license or Wisconsin State ID card, but practically speaking, if the same individual who is seeking to register online also wants to vote by absentee ballot, then that individuals would have to provide a picture or copy of a valid, unexpired Wisconsin driver’s license or Wisconsin State ID card.
B. COVID-19 Health Crisis As of March 19, 2020, 155 people in Wisconsin had tested positive for COVID-19,
although a substantially larger number has likely already contracted it.3 On March 17, Governor Evers had ordered “a statewide moratorium on mass gatherings of 10 people or more to mitigate the spread of COVID-19.” (Pls.’ Br., Ex. A (dkt. #3-2).) Moreover, restaurants, bars, indoor shopping malls and all public and private schools have been ordered closed. (Id.) Libraries are also closing, including those in Madison. (Id., Ex. 3 (dkt. #3-4).)
According to recent news reports, while “[e]stimates vary, . . . most public health experts believe that the U.S. is between one and two weeks behind what has befallen Italy, where a near-total lockdown has been imposed on 60 million citizens, with only
3 CDC, Cases in the U.S. (Mar. 19, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fcases-in-us.html; Wis. Dept. of Health Services, “Outbreaks in Wisconsin,” available at https://www.dhs.wisconsin.gov/outbreaks/index.htm.
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supermarkets and drug stores open to the public.”4 At best, the impacts of the coronavirus between now and election day on April 7th are uncertain, although informed predictions are not good.
Plaintiffs reason that because of existing restrictions, as well as the likelihood of even greater restrictions, voters will rely on voting by absentee ballots in significantly higher numbers than typical. Yet but individuals who have not already registered (or modified their registration to vote because of a change in address) no longer have the option to do so other than in person. As support, plaintiffs point to the relatively large number of absentee ballots already requested relative to past Spring elections. For example, as of the morning of Tuesday, March 17, the Wisconsin municipal clerks have received 173,000 absentee applications, of which 22% were received on Monday, March 16. (Pl.’s Br., Ex. 2 (dkt. #3-3).) With more than two weeks until the April 2 deadline for requesting absentee ballots, the number of requests already exceeds three out of the four most recent Spring elections. (Id.)5 Moreover, in elections held in other states this past Tuesday, March 17, 2020, “significantly fewer voters showed up in-person on Tuesday, and turnout plummeted in Illinois, amid rising health concerns and social-distancing requirements.”
4 Kim Hjelmgaard & Jim Sergent, USA Today, “USA TODAY analysis: America’s coronavirus ‘curve’ may be at its most dangerous point” (Mar. 19, 2020), available at https://www.usatoday.com/in-depth/news/2020/03/18/u-s-coronavirus-growth-rates-show-manystates-could-close-behind-new-york/5072663002/. 5 This trend is likely to hold. As of March 19, according to news reports, the number of absentee ballot requests is now more than 315,000. Stephanie Fryer, Channel 3000, “Wisconsin absentee ballots break record amid virus outbreak,” available at https://www.channel3000.com/wisconsinabsentee-ballots-break-record-amid-virus-outbreak/.
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OPINION I. Standing
As an initial matter, the threshold jurisdictional question of standing must be addressed. See Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988) (“Standing is a threshold question in every federal case . . . .”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (federal courts are obligated to consider the question of standing, regardless of whether the issue is raised by the parties). “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)).
In the voting rights context, courts have held that political parties have standing to assert the rights of its members who may face burdens to vote in upcoming elections. See, e.g., Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (“The Democratic Party . . . has standing to assert the rights of those of its members who will be prevented from voting by the new law.”); Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (political parties and labor organizations had “standing to assert, at least, the rights of their members who will vote in the [upcoming] election”); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1254 (N.D. Fla. 2016) (“[P]olitical parties have standing to assert, at least, the rights of its members
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who will vote in an upcoming election.”) (citing Fla. Democratic Party v. Hood, 342 F.Supp.2d 1073, 1078-79 (N.D. Fla. 2004)). Moreover, an organization may establish standing by asserting injury to their own rights. See Crawford, 472 F.3d at 951 (Democratic Party injured by new voting law that compelled party to “devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”); One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 909 (W.D. Wis. 2016) (organizations had standing to challenge new voting laws by establishing that they “devoted money, staff time, and other resources away from their other priorities to educate voters about the new laws”).
Here, plaintiffs are two membership organizations -- the DNC and the Democratic Party of Wisconsin. Plaintiffs claim that the challenged provisions place undue burdens on their members’ right to vote in the upcoming April 2020 election. (Compl. (dkt. #1) ¶¶ 16-17.) Additionally, they assert that the challenged provisions will require them to “expend additional resources to assist their members and constituents to overcome these burdens to exercise their right to vote.” (Id. ¶ 18.) Accordingly, plaintiffs have adequately established their standing to sue, both on behalf of their members and on behalf of themselves.
II. Standard for Relief Plaintiffs style their motion as a request for both a temporary restraining order and
a preliminary injunction. (Pls.’ Mot (dkt. #2) 1.) Both types of relief are designed to protect against irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits. See Am. Can Co. v. Mansukhani, 742 F.2d 314, 323 (7th
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Cir. 1984) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423, 440 (1974)); Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). A temporary restraining order, however, may be issued “before the adverse party can be heard in opposition,” and has strict durational limits. Fed. R. Civ. P. 65(b). See also Geneva Assurance Syndicate, Inc. v. Med. Emergency Servs. Assocs., 964 F.2d 599, 600 (7th Cir. 1992) (“The essence of a temporary restraining order is its brevity, its ex parte character, and (related to the second element) its informality.”). Moreover, the federal rules only expressly require a party making such a request to provide “specific facts in an affidavit or a verified complaint.” Fed. R. Civ. P. 65(b)(1)(A). Given the emergency nature of such relief, a relaxed evidentiary standard is appropriate. See 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2952 (3d ed.) (“There does not seem to be any case law defining the applicable standards for judging the quality and character of an affidavit offered in support of a motion under Rule 65(b). Since a temporary restraining order generally is sought on short notice, in a situation of pressing need, and Rule 65(b) expressly permits its issuance on the presentation of a verified complaint, it probably is unsound to hold affidavits to too rigorous a standard.”).
At this point, the relief sought, and the order granted, is better classified as a temporary restraining order as opposed to a preliminary injunction due to the brief duration of the lawsuit and motion, the lack of a developed record, and the limited notice and opportunity to be heard provided the defendants. See McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986) (“When determining whether to consider an order a TRO or a preliminary injunction . . . courts typically look to such factors as the duration of the
8

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order, whether it was issued after notice and a hearing, and the showing made to obtain the order.”); Connell v. Dulien Steel Prod., Inc., 240 F.2d 414, 418 (5th Cir. 1957) (“Where, as here, the duration of the order barely extends beyond 20 days and even though issued after notice (perhaps insufficient) we think it is not a temporary injunction and appealable.”).6 So while this opinion and order resolves plaintiffs’ motion for a temporary restraining order, their motion for a preliminary injunction is still pending. See Levas & Levas v. Vill. of Antioch, Ill., 684 F.2d 446, 448 (7th Cir. 1982) (“[A] party might fail to satisfy the criteria for an ex parte TRO and still be entitled to a preliminary injunction.”). If plaintiffs wish to continue to pursue that motion they must follow this court’s preliminary injunction procedures, which are available on the court’s website at https://www.wiwd.uscourts.gov/sites/default/files/Injunctive_Relief.pdf.
Regardless, as the proposed intervenor noted, the standard for determining whether either form of relief is appropriate is the same. See Van Hollen, 963 F. Supp. 2d at 865 (citing Winnig v. Sellen, 731 F. Supp. 2d 855, 857 (W.D. Wis. 2011)). Specifically, a plaintiff must first show “(1) that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action; (2) inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits.” Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017) (citing Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015)). Then, if this showing is successfully made, “the court must engage in a balancing analysis, to determine whether
6 Viewing the motion in this light, coupled with the limited nature of relief provided by the court at this time, largely addresses the concerns raised in the proposed intervenor’s opposition brief about the limited evidence in support of the motion.
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the balance of harm favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant’s interests.” Id. (citing Jones v. MarkiewiczQualkinbush, 842 F.3d 1053, 1057 (7th Cir. 2016)). A factor that the court must consider in balancing the equities in this particular case is the confusion that can result from lastminute orders affecting elections. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Such confusion can undermine confidence in our electoral processes, which itself is integral to our system of democracy. Id.
A. Likelihood of Success on the Merits The court will begin with the third prong of the initial inquiry -- likelihood of success
on the merits. Here, the merits question is whether any of the challenged provisions impose an unconstitutional burden on the right to vote. This question is governed by the framework set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Under the Anderson-Burdick framework, the court must (1) “determine the extent of the burden imposed by the challenged provision”; (2) “evaluate the interest that the state offers to justify that burden”; and (3) “judge whether the interest justifies the burden.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016) (citing Anderson, 460 U.S. 780; Burdick, 504 U.S. 428).
1. Online and By-Mail Registration Deadline First, plaintiffs argue that in light of the current public health crisis, Section 6.28(1) -- which imposed a deadline of March 18, 2020, for voters to register safely online or bymail -- creates an undue burden on a citizen’s right to vote, since the only way for an
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individual to register to vote now is to do so in person. (Pls.’ Br. (dkt. #3) 7-8.) Because individuals are being urged by the State of Wisconsin and the CDC to avoid public spaces altogether, plaintiffs further contend that “many individuals will abide by these precautions and will not leave their homes to go to the municipal clerk’s office or a polling place on election day or during the early vote period.” (Id. at 8.)
In this way, plaintiffs analogize this case to Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016), in which a federal district court extended the voter registration deadline after a hurricane hit the state. Id. at 1257-59. According to that court’s findings, the hurricane forced many citizens to evacuate the state and foreclosed in-person and by-mail registration: “[b]ecause those aspiring eligible voters could not register, they could not vote in the upcoming election.” Id. at 1257. The court concluded that the registration deadline imposed a severe burden on the right to vote, and no legitimate state interest could justify the “de minimis” burden of extending the voter registration deadline. Id. Similarly, in Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016), a district court ordered an extension of the registration deadline where a hurricane had caused the elections office to close for a week, delayed mail service, and forced citizens to evacuate or take shelter. Id. at 1345.
Here, unlike in Scott and Georgia Coalition, citizens have not yet been prevented from registering. However, the court cannot help but take judicial notice of the excruciating dilemma that will soon be faced by eligible voters who did not register by the March 18, 2020, deadline: either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote. Moreover, while the court
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recognizes the state’s interest in the orderly administration of its elections, a short extension of the registration deadline would on its face appear to impose only a minimal burden while potentially affording a great number of as yet unregistered voters the opportunity to exercise their franchise by safely voting absentee.
At the court’s request, Megan Wolfe, the Administrator of the Wisconsin Elections Committee, filed a declaration in response to plaintiffs’ motion for temporary restraining order and preliminary injunction, setting forth the possible difficulties in extending the deadline for online and mail-in voter registration. First, Wolfe explains that reactivating the online registration process requires software changes that would need to be tested, including possible collaboration with the Department of Transportation (Wolfe Decl. (dkt. #24) ¶ 11.) Wolfe further explains that there are risks associated with software changes in the weeks preceding a statewide election.7 While the court is certainly reluctant to create risks to election technology systems, reactivating a link that was in place as of two days ago should not pose a significant risk to the security of the election systems or, at least, Wolfe does not explain why such a risk should preclude such efforts. If after attempting to reactivate on-line registration, however, WEC learns of additional issues or risks, they could, of course, promptly return to the court for relief from its order.

7 Wolfe also represents that a court order requiring reactivation of online registration would violate

a “statewide enterprise level change freeze enacted to protect critical elections operations from

unintentional disruption” (Wolfe Decl. (dkt. #24) ¶ 12), but the policy Wolfe appears to reference

states that non-critical patches -- and this would appear to be a critical change -- cannot be made in

the “week prior to a major election,” and this order will not require any changes in the week before

the election. See Wisconsin Elections Commission, “Election Security Report” (Sept. 2019) pp.16-

17,

available

at

https://elections.wi.gov/sites/electionsuat.wi.gov/files/2019-

09/2019%20Elections%20Security%20Planning%20Report.pdf.

12

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 13 of 21
Second, Wolfe raises a concern about the timing of printing of municipal poll books, representing that a number of large municipalities and counties that assist with poll book printing on behalf of municipalities may have already sent their poll books to the publishers for printing. (Id. ¶ 14.) As Wolfe also explains, however, in-person registrations that occur up to April 3, 2020, and mail-in registrations that were required to be post-marked by March 18, 2020, will appear in supplemental or post-supplemental poll books. (Id. ¶¶ 14, 17.) Likewise, municipalities will be able to publish the additional online or mail-in registrations in these supplemental books. The court understands that these supplemental books may be significantly larger than normal as a result of any order extending the registration deadline, but this appears to be a reasonable downside to equitable relief that could increase both the robustness and health of the electorate, especially in light of the corresponding effect of having fewer, in-person voters to manage on election day.8
Third, Wolfe raises concerns about voter confusion in light of numerous publications informing individuals that their last day to register online was March 18, 2020. (Id. ¶ 16.) This, too, is a fair concern, but Wolfe does not explain, nor can the court conceive of any prejudice to voters caused by this confusion. While some individuals will not take advantage of the additional time to register online because they understandably believed that the opportunity had already passed, but at least some will be afforded a mechanism to vote safely, rather than be effectively denied that franchise by health restrictions, government edict or justified prudence for their safety or the safety of others.
8 The proposed notice at the end of this order is intended to both encourage online registration for those now looking to vote absentee and discourage registration if the voter still intends to appear in person, particularly on election day.
13

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 14 of 21
The court understands that this is far from a perfect solution. At minimum, however, individuals who either were not aware of the March 18, 2020, deadline or learn of this court’s extension of that deadline, will be able to register online for an extended period of time. The ideal solution under the circumstances would probably be to delay the vote itself, as some other states have already done, but as defendants point out this too has its problems, and regardless is up to the State of Wisconsin to decide. There being no such prospect on the horizon, the court has attempted to fashion what limited remedy it can to vindicate the rights of as many voters as practical.
Fourth, Wolfe expresses a number of concerns about implementing a new mail-in deadline. Specifically, she addresses the impact of extending the deadline until April 3, as plaintiffs request, which would permit mail-in registrations that are post-marked by that day and mean that registration requests may not even be received through the mail by election day. (Id. ¶ 18.) The court shares this concern, especially when coupled with the current requirement that absentee ballots be received by April 7, 2020, in order to be counted. Indeed, extending the mail-in registration deadline may act to disenfranchise certain voters, by giving them a false sense of confidence that they will be able to vote by absentee ballot in time for the April 7, 2020, election. Moreover, unlike the online or electronic registration process, the mail-in process is not centralized; instead, as Wolf explains, any change to the process would depend on implementation by 1,850 municipal clerks and 72 county clerks. In light of this dynamic, the court is concerned about the ability to manage the communication process, as well as ensuring that these clerks are not overwhelmed by mail-in registration requests during the same period in which they will be
14

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 15 of 21
preparing polling books and managing absentee applications. Accordingly, the court finds that plaintiffs have demonstrated a likelihood of success
on the merits that the March 18, 2020, online registration deadline imposes an undue burden on citizens’ right to vote, but concludes that plaintiffs have not met their burden with respect to mail-in registration. 9
2. Proof of Residence and Identification Provisions As previously litigated, plaintiffs also renew their contention that requiring individuals seeking to register to vote or applying for an absentee ballot to provide copies of documentation places a severe burden on the right to vote. As described in the fact section above, Wisconsin Statute §§ 6.34, 6.86 and 6.87 require proofs of residency for registrants and proof of voter identification for absentee ballot applicants. Plaintiffs reason that obtaining these documents may require individuals to venture out into the public to gain access to a copier, scanner, computer and/or printer, and specifically point out that the need to venture out of one’s home to access this technology will likely disproportionately impact less-affluent populations, including the elderly and college students.10 In support of this argument, plaintiffs submit proof that libraries, which may typically provide access to copiers and printers, have closed because of the COVID-19
9 As addressed below, some further relief may be sought by either side should the extension of online registration create issues with respect to receipt and processing of absentee votes timely. 10 While perhaps not a complete solution, the court notes, as defendants’ counsel suggested during the hearing, that an individual can upload a photo of his or her driver’s license or Wisconsin ID from virtually any smart phone in applying for an absentee ballot, thus eliminating the need to venture outside, although this assumes access to a smartphone.
15

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 16 of 21
outbreak. The court does not dismiss out of hand the additional burden placed on some by
the proof of residency and identification requirements in the face of the COVID-19 pandemic, either because of more limited access to public copiers, printers or scanners or because of fears in venturing out to access that technology. However, the State’s interest with respect to this requirement has been recognized by the United States Supreme Court and the Seventh Circuit Court of Appeals, and appears to be much more significant than any interest in limiting the time period for registering to vote electronically or by mail. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203 (2008) (holding that Indiana’s interests in statute requiring government issued photo identification to vote were sufficiently weighty to justify any limitation imposed on voters); Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (relying on Crawford to reject challenge to Wisconsin’s photo identification requirement).
Plaintiffs also argue that the state’s interest is adequately addressed by the requirement that a voter must “sign a comprehensive certificate on absentee ballots stating she is a resident of the locality from where she is voting” (Pl.’s Br. (dkt. #3) 10 (citing Wis. Stat. § 6.87(2))), but this was true in past lawsuits and yet not found to be sufficient to satisfy the state’s interest in requiring identification, including preventing voter fraud and safeguarding voter confidence. See Crawford, 553 U.S. at 191 (describing interests at play). On this limited record, the court cannot conclude that plaintiffs are likely to succeed in
16

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 17 of 21
this challenge.11
3. Absentee Ballot Receipt Deadline
Finally, plaintiffs request that the court extend the deadline for receipt of absentee
ballots from the current deadline of 8:00 p.m. on election day pursuant to Wis. Stat. §
6.87(6). While this request may have merit, and may be of assistance for the Elections
Commission and municipal clerks should state and local officials not fulfill their promise
to ensure sufficient staffing before and on election day, the court will not speculate about
the need for this relief on the limited record before it. Instead, as described above, the
court will allow plaintiffs to pursue additional relief in a motion for preliminary injunction,
with a more robust record, following the court’s guidelines.12
11 The court acknowledges that late today plaintiffs submitted affidavits from four potential voters averring to the difficulty in providing proof of residence and photo identification.
12 The proposed intervenor also argues that this court should deny plaintiffs’ request for relief and dismiss their complaint under the Burford abstention doctrine, pointing out that decisions as to the administration of the state’s elections laws are reserved to the Wisconsin Election Commission, which is subject to state judicial review. (Proposed Intervenor’s Br. (dkt. #23) 2, 17-20.) Any intervention by this court into the state’s election administration would, according to the proposed intervenor, “usurp” the Commission’s role and disrupt state efforts to establish a critical balance between the needs of public health and democracy. (Id.at 18-19.) Burford abstention applies when federal intervention would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (quoting New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”)). Certainly, the administration of elections during a public health emergency is a matter of substantial public concern and as proposed intervenor points out, the Commission met two days ago to “decide what action to take in response to the current public health situation” (Proposed Intervenor’s Br. (dkt. #23) 2, 18), but in a memo published that same day, the Commission specifically advised it does not have the authority to change the statutory deadlines for online and by-mail registration or for the return of absentee ballots, and that “any change may require court intervention, an act of the Legislature, or an order of the Governor.” (Tseytlin Decl., Ex. 9 (dkt. #25-9) 2-3.) Moreover, Burford abstention is only appropriate “[w]here timely and adequate state-court review is available,” NOPSI, 491 U.S. at 361, and there appears to be no time or inclination for state-court review, with the online and by-mail registration deadline having now passed and election day is fast approaching. Given the apparent lack of any state-court
17

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B. Irreparable Harm and Inadequate Remedies at Law As for the online and by-mail registration deadlines, the remaining two prongs of
the initial showing -- irreparable harm and inadequate remedies at law -- are also satisfied. Where, as here, plaintiff has demonstrated a likelihood of success on the merits as to a constitutional claim, such an injury has been held to constitute irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (where plaintiff had proven a probability of success on the merits, the threatened loss of First Amendment freedoms “unquestionably constitutes irreparable injury”); Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”). Moreover, courts have specifically held that infringement on the fundamental right to vote constitutes irreparable injury. See Obama for Am. v. Husted, 697 F.3d 423, 435 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable injury.”); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (holding that plaintiffs “would certainly suffer irreparable harm if their right to vote were impinged upon”).13
Additionally, traditional legal remedies would be inadequate, since infringement on a citizens’ constitutional right to vote cannot be redressed by money damages. See Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (“The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not
review and the narrow relief being fashioned by this court, Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”). 13 Plaintiffs also argue that exposing Wisconsin voters to the coronavirus constitutes irreparable harm (Pls.’ Br. (dkt. #3) 13), but have offered no evidence as to the efforts being made by the state to mitigate that risk or its extent.
18

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 19 of 21
adequate.”); League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no do-over and no redress.”). Accordingly, plaintiffs have made an initial showing that a temporary restraining order is warranted as to the online and by-mail registration deadline.
C. Balance of Harms Finally, the court must engage in a balancing analysis to determine whether a
temporary restraining order is warranted. Under Seventh Circuit law, a “sliding scale” approach is used for this purpose: “[t]he more likely it is that [the movant] will win its case on the merits, the less the balance of harms need weigh in its favor.” Girl Scouts, 549 F.3d at 1100. “When conducting this balancing, it is also appropriate to take into account any public interest, which includes the ramifications of granting or denying the preliminary injunction on nonparties to the litigation.” Id.
Plaintiffs argue that an injunction would protect the health of the public and prevent disenfranchisement. (Pls.’ Br. (dkt. #3) 14.) Although plaintiffs recognize that their requested relief will create more administrative tasks for the state, they contend that such an inconvenience is “outweighed by the vindication of constitutional rights.” (Id.) Certainly, the extension of the online registration deadline will impose administrative burdens on the state, but these potential hardships appear minor compared with the growing dilemma being faced by eligible, but as yet unregistered voters between now and election day: either risk your and the public’s health by venturing into public to register in person, or stay home and relinquish your voting franchise. While a modest extension of the registration deadline is not likely to relieve all or even most of that difficult choice,
19

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 20 of 21
it may do so for some. Finally, the court is sensitive to the fact that last-minute changes to election laws
may generate confusion and in turn undermine confidence in the electoral system. See Purcell, 549 U.S. at 4. Nevertheless, it is apparent that some accommodation is necessary to preserve citizens’ right to vote amidst this unprecedented public health crisis. This court’s narrow remedy attempts to find a balance between these vitally important interests.
ORDER IT IS ORDERED that plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (dkt. #2) is GRANTED IN PART AND DENIED IN PART as follows:
a) The motion is GRANTED with respect to plaintiffs’ request to extend the deadline by which individuals may register to vote electronically until March 30, 2020, subject to the following steps:
(i) Defendants shall reset the “clock” that tells the MyVote website (https://myvote.wi.gov) to stop accepting on-line registration requests until the end of the day on Monday, March 30, 2020.
(ii) Defendants shall test the necessary code changes to validate correct operation and the absence of errors or defects, including proper interface with the Department of Transportation and testing of the statewide voter registration system.
(iii) Defendants shall release and activate the new code, making it accessible to the public and post a notice as prominently as practical on the first page of both MyVote and WEC website. For review by the parties, the court proposes the following language. The parties should provide any proposed edits to this language on or before Monday, March 23, 2020, at 12:00 p.m.
20

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 21 of 21
SPECIAL NOTICE WITH RESPECT TO ONLINE REGISTRATION AND ABSENTEE BALLOTS FOR APRIL 7, 2020, ELECTION ONLY DUE TO CORONAVIRUS PANDEMIC
By order of the U.S. District Court for the Western District of Wisconsin, online registration to vote is extended until March 30, 2020, for the April 7, 2020, election ONLY, notwithstanding ANY contrary Wisconsin statute, notice on this website, other state websites or other writing or postings. HOWEVER, the purpose of this extension is to facilitate voting by absentee ballots for those who may no longer wish or be unable to vote in person at your local municipal clerk’s office by absentee ballot on or before Friday, April 3, 2020, or at your local polling place on election day, Tuesday, April 7, 2020, due to the coronavirus pandemic. If you are not currently registered to vote in the State of Wisconsin, to obtain an absentee ballot, you will not only have to complete the online registration requirements, but then also request online that an absentee ballot be mailed to you. Both steps will require that you already have a valid, unexpired Wisconsin driver’s license or Wisconsin state ID card reflecting your current address, and have the ability to post it electronically for purposes of requesting the mailing of an absentee ballot. If you are unable to do these things or still intend to appear in person to actually vote, you are STRONGLY DISCOURAGED from still registering to vote in the April 7th election online, since online voter registration during this special extended period MAY complicate your ability to vote in person.
(iv) Consistent with the above, this notice shall be promptly removed after March 30, 2020.
b) Defendants are ENJOINED from enforcing the March 18, 2020, deadline under Wisconsin Statute § 6.28(1) with respect to online registration.
c) In all other respects, the motion is DENIED, albeit without prejudice to plaintiffs renewing their request for extension of the deadline for counting absentee ballots in a motion for preliminary injunction.
Entered this 20th day of March, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
21

 
 Case: 3:20-cv-00249-wmc Document #: 20 Filed: 03/20/20 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Case No. 3:20-cv-249-wmc

THE WISCONSIN LEGISLATURE’S MOTION TO INTERVENE

Under Rule 24 of the Federal Rules of Civil Procedure, the Joint Committee on Legislative Organization, on behalf of the Wisconsin Legislature (“Legislature”), hereby moves to intervene in this action as a defendant. The Legislature has contemporaneously filed a supporting memorandum setting forth the grounds for this Motion. For the reasons set forth in its supporting memorandum, the Legislature respectfully requests that this Court grant its Motion to Intervene.

Case: 3:20-cv-00249-wmc Document #: 20 Filed: 03/20/20 Page 2 of 2
Dated this 20th day of March, 2020. Respectfully submitted,
/s/Misha Tseytlin Misha Tseytlin (State Bar No. 1102199) Kevin M. LeRoy (State Bar No. 1105053) TROUTMAN SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Eric M. McLeod (State Bar No. 1021730) Lane E. Ruhland (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
Lisa M. Lawless (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Attorneys for the Wisconsin Legislature
- 2 -

 
 Case: 3:20-cv-00249-wmc Document #: 22 Filed: 03/20/20 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Case No. 3:20-cv-249-wmc

THE WISCONSIN LEGISLATURE’S PROPOSED MOTION TO DISMISS THE COMPLAINT

Under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and this Court’s inherent authority to stay a case, Proposed-Intervenor Defendant the Wisconsin Legislature (“Legislature”) hereby submits this Proposed Motion to Dismiss Plaintiffs’ Complaint. The Legislature sets forth the grounds for this Motion in its Memorandum In Support Of Its Proposed Motion To Dismiss The Complaint And In Opposition To Plaintiffs’ Motion For Temporary Restraining Order And Preliminary Injunction, which it has filed contemporaneously with this Motion. For the reasons set forth in this supporting memorandum, the Legislature respectfully requests that this Court grant its Motion.

Case: 3:20-cv-00249-wmc Document #: 22 Filed: 03/20/20 Page 2 of 2
Dated this 20th day of March, 2020.
Respectfully submitted,
/s/Misha Tseytlin Misha Tseytlin (State Bar No. 1102199) Kevin M. LeRoy (State Bar No. 1105053) TROUTMAN SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Eric M. McLeod (State Bar No. 1021730) Lane E. Ruhland (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
Lisa M. Lawless (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Attorneys for the Wisconsin Legislature
- 2 -

 
 U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:20-cv-00249-wmc

Democratic National Committee et al v. Bostelmann, Marge et al Assigned to: District Judge William M. Conley Referred to: Magistrate Judge Stephen L. Crocker Related Cases: 3:20-cv-00278-wmc
3:20-cv-00340-wmc 3:20-cv-00459-wmc Case in other court: 20-01538
20-01539 20-01545 20-01546 20-02835 20-02844 Cause: 42:1983 Civil Rights Act

Date Filed: 03/18/2020 Jury Demand: None Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

Plaintiff

Democratic National Committee

represented by Amanda Callais Perkins Coie LLP 700 Thirteenth Street N.W. Suite 600 Washington, DC 20005 202-654-6396 Fax: 202-654-9995 Email: acallais@perkinscoie.com ATTORNEY TO BE NOTICED

Brandon Michael Lewis Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-294-4009 Fax: 608-663-7499 Email: blewis@perkinscoie.com ATTORNEY TO BE NOTICED

Charles Grant Curtis , Jr. Perkins Coie LLP 1 East Main Street Suite 201

Madison, WI 53703 608-663-5411 Fax: 608-663-7499 Email: ccurtis@perkinscoie.com ATTORNEY TO BE NOTICED
John Devaney Perkins Coie LLP 700 Thirteenth Street N.W. Suite 800 Washington, DC 20005 202-654-6200 x1630 Fax: 202-654-6211 Email: jdevaney@perkinscoie.com ATTORNEY TO BE NOTICED
Marc Erik Elias Perkins Coie LLP 700 Thirteenth Street N.W. Washington, DC 20005 202-654-6200 x1630 Fax: 202-654-6211 Email: melias@perkinscoie.com ATTORNEY TO BE NOTICED
Michelle Marie Umberger Perkins Coie LLP One East Main Street, Suite 201 Madison, WI 53703-5118 (608) 663-7460 Fax: 608-663-7499 Email: MUmberger@perkinscoie.com ATTORNEY TO BE NOTICED
Sopen Bharat Shah Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-663-7460 x7408 Fax: 608-663-7499 Email: SShah@perkinscoie.com ATTORNEY TO BE NOTICED
Zachary Newkirk

Plaintiff Democratic Party of Wisconsin

Perkins Coie LLP 700 Thirteenth Street N.W. Suite 800 Washington, DC 20005 202-654-6200 Fax: 202-654-6211 Email: ZNewkirk@perkinscoie.com ATTORNEY TO BE NOTICED
Bruce Van Spiva Perkins Coie LLP 700 Thirteenth Street N.W. Washington, DC 20005 202-654-6203 Fax: 202-654-6211 Email: bspiva@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Amanda Callais (See above for address) ATTORNEY TO BE NOTICED
Brandon Michael Lewis (See above for address) ATTORNEY TO BE NOTICED
Charles Grant Curtis , Jr. (See above for address) ATTORNEY TO BE NOTICED
John Devaney (See above for address) ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED
Michelle Marie Umberger (See above for address) ATTORNEY TO BE NOTICED
Sopen Bharat Shah (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Marge Bostelmann

Zachary Newkirk (See above for address) ATTORNEY TO BE NOTICED
Bruce Van Spiva (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel P. Bach Lawton & Cates, S.C. 146 E. Milwaukee Street, Suite 120 P.O. Box 399 Jefferson, WI 53549-0399 920-674-4567 Email: dbach@lawtoncates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz Lawton & Cates, S.C. 10 East Doty Street, Suite 400 P.O. Box 2965 Madison, WI 53701 608-282-6200 Fax: 608-282-6252 Email: dlenz@lawtoncates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dixon R. Gahnz Lawton & Cates, S.C. 345 W. Washington Ave. Ste. 201 Madison, WI 53703 608-282-6200 Fax: 608-282-6251 Email: dgahnz@lawtoncates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. Polich Lawton & Cates, S.C. 345 W. Washington Ave. Ste. 201

Defendant Julie M. Glancey

Madison, WI 53703 608-282-6200 Fax: 608-282-6252 Email: tpolich@lawtoncates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707 608-266-0020 Fax: 608-267-2223 Email: keenanbp@doj.state.wi.us TERMINATED: 03/30/2020
Jody J. Schmelzer State of Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857 (608) 266-3094 Fax: (608) 267-8906 Email: schmelzerjj@doj.state.wi.us TERMINATED: 03/30/2020
Sean Michael Murphy HCP Consumer Law, LLC 2858 University Ave. Suite 233 Madison, WI 53705 608-266-5457 Fax: 608-252-9243 Email: murphysm@doj.state.wi.us TERMINATED: 03/30/2020
represented by Daniel P. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz (See above for address) LEAD ATTORNEY

Defendant Ann S. Jacobs

ATTORNEY TO BE NOTICED
Dixon R. Gahnz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. Polich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan (See above for address) TERMINATED: 03/30/2020
Jody J. Schmelzer (See above for address) TERMINATED: 03/30/2020
Sean Michael Murphy (See above for address) TERMINATED: 03/30/2020
represented by Daniel P. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dixon R. Gahnz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. Polich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan

Defendant Dean Knudson
Defendant Robert F. Spindell, Jr.

(See above for address) TERMINATED: 03/30/2020
Jody J. Schmelzer (See above for address) TERMINATED: 03/30/2020
Sean Michael Murphy (See above for address) TERMINATED: 03/30/2020
represented by Daniel P. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dixon R. Gahnz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. Polich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan (See above for address) TERMINATED: 03/30/2020
Jody J. Schmelzer (See above for address) TERMINATED: 03/30/2020
Sean Michael Murphy (See above for address) TERMINATED: 03/30/2020
represented by Daniel P. Bach (See above for address)

Defendant Mark L. Thomsen

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dixon R. Gahnz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terrence M. Polich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan (See above for address) TERMINATED: 03/30/2020
Jody J. Schmelzer (See above for address) TERMINATED: 03/30/2020
Sean Michael Murphy (See above for address) TERMINATED: 03/30/2020
represented by Daniel P. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Spector Lenz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dixon R. Gahnz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Republican National Committee

Terrence M. Polich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian P. Keenan (See above for address) TERMINATED: 03/30/2020
Jody J. Schmelzer (See above for address) TERMINATED: 03/30/2020
Sean Michael Murphy (See above for address) TERMINATED: 03/30/2020
represented by Bryan Weir Consovoy McCarthy PLLC 1600 Wilson Blvd. Ste. 700 Arlington, VA 22209 703-243-9423 Email: bryan@consovoymccarthy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Matthew Harris Consovoy McCarthy Park PLLC 3033 Wilson Blvd. Suite 700 Arlington, VA 22201 202-321-4120 Email: jeff@consovoymccarthy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Strawbridge Consovoy McCarthy Park Ten Post Office Square 8th Floor PMB 706 Boston, MA 02109

Intervenor Defendant Republican Party Of Wisconsin
Amicus City Of Milwaukee, Wisconsin
Amicus City of Madison, Wisconsin

617-227-0548 Email: patrick@consovoymccarthy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Weir (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Matthew Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Strawbridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Grant F. Langley MILWAUKEE CITY ATTORNEY MILWAUKEE, WI 53202-3551 (414) 278-2601 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Boyd Stephens Milwaukee City Attorney's Office 200 West Wells Street Suite 800 Milwaukee, WI 53202 414-286-2601 Email: asteph@milwaukee.gov TERMINATED: 08/11/2020
represented by Michael P. May City of Madison City Attorney's Office 210 Martin Luther King, Jr. Blvd. Rm. 401, City-County Bldg. Madison, WI 53703-3345 608-266-4511

Amicus Honest Elections Project
Amicus City of Green Bay
Amicus Disability Rights Wisconsin, Inc.

Fax: 608-267-8715 Email: mmay@cityofmadison.com TERMINATED: 05/29/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Carl Brist City of Madison Office of the City Attorney 210 Martin Luther King, Jr. Boulevard City-County Building, Room 401 Madison, WI 53703-3345 608-266-4511 Fax: 608-267-8715 Email: sbrist@cityofmadison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason Brett Torchinsky Holtzman Vogel Josefiak PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 540-341-8808 Fax: 540-341-8809 Email: jtorchinsky@hvjlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Vanessa Chavez City of Green Bay 100 N. Jefferson St. Room 200 Green Bay, WI 54301 920-448-3080 Fax: 920-448-3081 Email: vanessach@greenbaywi.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karyn L. Rotker ACLU of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325

Amicus American Civil Liberties Union Of Wisconsin
Amicus Wisconsin Conservation Voices
Amicus City of Racine
Amicus Tony Evers Amicus Washington County

Milwaukee, WI 53202 414-272-4032 x12 Fax: 414-272-0182 Email: krotker@aclu-wi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karyn L. Rotker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arn Huong Tran City of Racine City Attorney's office City Hall, Room 204 730 Washington Ave. Racine, WI 53403 262-636-9115 Email: nhu.tran@cityofracine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Thomas Phillips von Briesen & Roper, S.C. 411 East Wisconsin Avenue, Suite 1000 Milwaukee, WI 53202 414-276-1122 Fax: 414-276-6281 Email: aphillips@vonbriesen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Jeffrey Thome von Briesen & Roper, s.c. 411 East Wisconsin Ave.

Amicus Wisconsin Counties Association
Amicus Dane County
Amicus Common Cause Wisconsin

Suite 1000 Milwaukee, WI 53202 414-287-1433 Fax: 414-238-6505 Email: mthome@vonbriesen.com ATTORNEY TO BE NOTICED
William E. Fischer Davis & Kuelthau, SC 219 Washington Ave, Ste. 200 PO Box 1278 Oshkosh, WI 54903-1278 414-962-5110 Email: wfischer@vonbriesen.com ATTORNEY TO BE NOTICED
represented by Andrew Thomas Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Jeffrey Thome (See above for address) ATTORNEY TO BE NOTICED
William E. Fischer (See above for address) ATTORNEY TO BE NOTICED
represented by David Gault Dane County Corporation Counsel 210 Martin Luther King, Jr. Blvd. Room 419 Madison, WI 53703 608-266-4355 Fax: 608-267-1556 Email: gault@countyofdane.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dean Arthur Strang StrangBradley, LLC 33 E. Main Street, Suite 400 Madison, WI 53703

V. Intervenor Wisconsin State Legislature TERMINATED: 03/28/2020

608-535-1550 Fax: 608-406-2602 Email: dean@strangbradley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. McLeod Husch Blackwell, LLP 33 East Main Street, Suite 300 Madison, WI 53701-1379 608-234-6056 Fax: 608-258-7138 Email: eric.mcleod@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Michael LeRoy Troutman Sanders LLP 1 N. Wacker Drive, Ste. 2905 Chicago, IL 60606 312-759-1920 Email: kevin.leroy@troutman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lane E Ruhland Husch Blackwell LLP 33 E. Main St. Suite 300 Madison, WI 53703 608-258-7380 Email: Lane.Ruhland@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misha Tseytlin Troutman Pepper Hamilton Sanders LLP 227 West Monroe Suite 3900 Chicago, IL 60606

312-759-5947 Email: Misha.Tseytlin@troutman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Edward Browne , Jr. Troutman Sanders One North Wacker Drive Suite 2905 Chicago, IL 60606 312-759-1920 Email: robert.browne@troutman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Dutton Troutman Sanders, LLP 227 West Monroe Suite 3900 Chicago, IL 60606 312-759-1920 x1937 Fax: 312-759-1939 Email: Sean.Dutton@troutman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katarzyna Anna Hebda Troutman Pepper Hamilton Sanders LLP 600 Peachtree Street NE Suite 3000 Atlanta, GA 30308 404-885-3665 Email: Kasia.Hebda@troutman.com ATTORNEY TO BE NOTICED
Lisa M. Lawless Husch Blackwell, LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202 414-978-5438 Fax: 414-223-5000 Email: lisa.lawless@huschblackwell.com ATTORNEY TO BE NOTICED

Intervenor Wisconsin Legislature

Scott Allen Keller Baker Botts LLP 700 K St. NW Washington, DC 20001 202-639-7837 Fax: 202-585-1023 Email: scott.keller@bakerbotts.com ATTORNEY TO BE NOTICED
represented by Misha Tseytlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/18/2020
03/18/2020 03/18/2020
03/18/2020

# Docket Text
1 COMPLAINT against Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. ( Filing fee $ 400 receipt number 0758-2647332.), filed by Democratic Party of Wisconsin, Democratic National Committee. (Attachments: # 1 JS-44 Civil Cover Sheet, # 2 Summons for Marge Bostelmann, # 3 Summons for Julie Glancey, # 4 Summons for Ann Jacobs, # 5 Summons for Dean Knudson, # 6 Summons for Robert Spindell, # 7 Summons for Mark Thomsen) (Spiva, Bruce) (Entered: 03/18/2020)
2 Emergency Motion for Temporary Restraining Order and Preliminary Injunction by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Spiva, Bruce) (Entered: 03/18/2020)
3 Brief in Support of 2 Motion for TRO by Plaintiffs Democratic National Committee, Democratic Party Of Wisconsin (Attachments: # 1 Exhibit Declaration of Bruce V. Spiva, # 2 Exhibit 1 - DHS Order, # 3 Exhibit 2 - Absentee Ballot Requests, # 4 Exhibit 3 - Madison Public Library Closing, # 5 Exhibit 4 - Number of WI COVID-19 cases, # 6 Exhibit 5 - WEC Gen. Elec. Statistics, # 7 Exhibit 6 - Wall St Journal Article) (Spiva, Bruce) (Entered: 03/18/2020)
4 Notice of Appearance filed by Amanda Callais for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Callais, Amanda) (Entered: 03/18/2020)

03/19/2020 03/19/2020 03/19/2020 03/19/2020
03/19/2020 03/19/2020 03/19/2020 03/19/2020 03/19/2020 03/19/2020
03/19/2020

Case non-randomly assigned to District Judge James D. Peterson and Magistrate Judge Stephen L. Crocker. See related case 15-cv-324-jdp. (kwf) (Entered: 03/19/2020)
Standard attachments for District Judge James D. Peterson required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement. (kwf) (Entered: 03/19/2020)
5 Summons Issued as to Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (kwf) (Entered: 03/19/2020)
6 ** TEXT ONLY ORDER ** This case was non-randomly assigned to District Judge James Peterson based on plaintiffs' representation that the case is related to One Wisconsin Institute, Inc. v. Nichol, No. 15-cv-324-jdp. A review of the complaint shows that the two cases are not related to each other, so the clerk of court is directed to randomly assign the case. Signed by District Judge James D. Peterson on 3/19/2020. (kwf) (Entered: 03/19/2020)
Judge update in case. Case randomly reassigned to District Judge William M. Conley. Case no longer assigned to District Judge James D. Peterson. (kwf) (Entered: 03/19/2020)
Standard attachments for District Judge William M. Conley required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement. (kwf) (Entered: 03/19/2020)
7 Notice of Appearance filed by Misha Tseytlin for Intervenor Wisconsin State Legislature. (Tseytlin, Misha) (Entered: 03/19/2020)
8 Notice by Prospective Intervenor Wisconsin State Legislature Letter regarding Emergency Motion for Temporary Restraining Order, Proposed Motion to Intervene, and Proposed Motion to Dismiss . (Tseytlin, Misha) Modified on 3/19/2020. (arw) (Entered: 03/19/2020)
9 Notice of Appearance filed by Marc Erik Elias for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Elias, Marc) (Entered: 03/19/2020)
10 ** TEXT ONLY ORDER ** Consistent with request of the parties and proposed intervenor the court will hold a telephone conference call at 3 pm today, plaintiff to initiate the call to the court at 608-264-5087. Signed by District Judge William M. Conley on 3/19/2020. (kwf) (Entered: 03/19/2020)
11 Notice of Appearance Charles G. Curtis, Jr. filed by Charles Grant Curtis, Jr for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Curtis, Charles) (Entered: 03/19/2020)

03/19/2020 03/19/2020 03/19/2020
03/19/2020 03/19/2020 03/19/2020 03/19/2020 03/19/2020 03/19/2020 03/20/2020 03/20/2020 03/20/2020 03/20/2020
03/20/2020

12 Notice of Appearance Sopen B. Shah filed by Sopen Bharat Shah for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Shah, Sopen) (Entered: 03/19/2020)
13 Notice of Appearance filed by Brian P. Keenan for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Keenan, Brian) (Entered: 03/19/2020)
14 Notice of Appearance filed by Sean Michael Murphy for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Murphy, Sean) (Entered: 03/19/2020)
15 Notice of Appearance filed by Jody J. Schmelzer for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Schmelzer, Jody) (Entered: 03/19/2020)
16 Notice of Appearance of Eric M McLeod filed by Eric M. McLeod for Intervenor Wisconsin State Legislature. (McLeod, Eric) (Entered: 03/19/2020)
17 Notice of Appearance of Lane Ruhland filed by Lane E Ruhland for Intervenor Wisconsin State Legislature. (Ruhland, Lane) (Entered: 03/19/2020)
18 Notice of Appearance filed by Lisa M. Lawless for Intervenor Wisconsin State Legislature. (Lawless, Lisa) (Entered: 03/19/2020)
19 Notice of Appearance filed by Kevin Michael LeRoy for Intervenor Wisconsin State Legislature. (LeRoy, Kevin) (Entered: 03/19/2020)
Minute Entry for proceedings held before District Judge William M. Conley: Telephone Status Conference held on 3/19/2020 [1:10] (Court Reporter CS.) (mfh) (Entered: 03/19/2020)
20 Motion to Intervene by Intervenor Wisconsin State Legislature. Response due 3/27/2020. (Tseytlin, Misha) (Entered: 03/20/2020)
21 Brief in Support of 20 Motion to Intervene by Intervenor Wisconsin State Legislature (Tseytlin, Misha) (Entered: 03/20/2020)
22 Proposed MOTION TO DISMISS by Intervenor Wisconsin State Legislature. (Tseytlin, Misha) Modified on 3/20/2020. (kwf) (Entered: 03/20/2020)
23 Brief in Support of 22 Motion to Dismiss and in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by Intervenor Wisconsin State Legislature (Tseytlin, Misha) (Entered: 03/20/2020)
24 Declaration of Meagan Wolfe filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: 2 Motion for TRO (Keenan, Brian) (Entered: 03/20/2020)

03/20/2020
03/20/2020 03/20/2020 03/20/2020 03/20/2020 03/20/2020 03/20/2020 03/20/2020

25 Declaration of Misha Tseytlin filed by Intervenor Wisconsin State Legislature re: 22 Motion to Dismiss (Attachments: # 1 Exhibit CDC Guidance, # 2 Exhibit Illinois Election Press Release, # 3 Exhibit Cook County, IL Election Summary, # 4 Exhibit Arizona Election Results, # 5 Exhibit Florida Election Results, # 6 Exhibit WisPolitics 19 March 2020 Update, # 7 Exhibit WEC - Special Teleconference Meeting COVID-19, # 8 Exhibit Ohio Order To Close Polling Locations, # 9 Exhibit Administrator Wolfe Memo - COVID-19 Election Planning, # 10 Exhibit The UPS Store - Note to Customers, # 11 Exhibit WEC - Proof of Residence Information, # 12 Exhibit WEC - Vote Absentee, # 13 Exhibit Pew Research Center - Mobile Fact Sheet, # 14 Exhibit WEC Absentee Voting COVID-19 Press Release) (Tseytlin, Misha) (Entered: 03/20/2020)
26 Brief in Opposition by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: 2 Motion for TRO filed by Democratic National Committee, Democratic Party of Wisconsin (Keenan, Brian) (Entered: 03/20/2020)
27 Brief in Opposition by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 20 Motion to Intervene filed by Wisconsin State Legislature (Spiva, Bruce) (Entered: 03/20/2020)
28 Declaration of Hannah Temes filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 2 Motion for TRO (Spiva, Bruce) (Entered: 03/20/2020)
29 Declaration of Amia Bridgeford filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 2 Motion for TRO (Spiva, Bruce) (Entered: 03/20/2020)
30 Declaration of Douglas Koop filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 2 Motion for TRO (Spiva, Bruce) (Entered: 03/20/2020)
31 Declaration of Katie Dickey filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 2 Motion for TRO (Spiva, Bruce) (Entered: 03/20/2020)
32 Supplemental Declaration of Bruce V. Spiva filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 2 Motion for TRO (Attachments: # 1 Exhibit 1 - Politico Article, # 2 Exhibit 2 - Tampa Bay Times Article, # 3 Exhibit 3 - Palm Beach Post Article, # 4 Exhibit 4 - Tampa Bay Times Article,

03/20/2020 03/20/2020 03/20/2020 03/20/2020
03/20/2020 03/20/2020 03/20/2020 03/20/2020 03/22/2020 03/22/2020 03/23/2020
03/23/2020

# 5 Exhibit 5 - Buzzfeed News Article, # 6 Exhibit 6 - Chicago Tribune Article, # 7 Exhibit 7 - Arizona Republic Article) (Spiva, Bruce) (Entered: 03/20/2020)
33 Notice of Appearance filed by Jeffrey Matthew Harris for Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Harris, Jeffrey) (Entered: 03/20/2020)
34 Notice by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: Forthcoming Motion to Intervene. (Harris, Jeffrey) (Entered: 03/20/2020)
35 Notice of Appearance filed by Patrick Strawbridge for Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Strawbridge, Patrick) (Entered: 03/20/2020)
36 Notice by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin of Opposition to Forthcoming Motion to Intervene by Republican National Committee and Republican Party of Wisconsin. (Spiva, Bruce) (Entered: 03/20/2020)
37 ORDER granting in part and denying in part 2 Motion for TRO and preliminary injunction. Signed by District Judge William M. Conley on 03/20/2020. (mfh) (Entered: 03/20/2020)
38 Notice of Appearance filed by Adam Boyd Stephens for Amicus City Of Milwaukee, Wisconsin. (jls) (Entered: 03/20/2020)
39 Motion in Support of Leave to File Amicus Memorandum by the Cities of Milwaukee and Madison, Wisconsin. (jls) (Entered: 03/20/2020)
40 Affidavit of Neil Albrecht filed by Amicus City Of Milwaukee, Wisconsin re: 39 Motion for Leave to File Amicus Memorandum by the Cities of Milwaukee and Madison, Wisconsin. (jls) (Entered: 03/20/2020)
41 Motion to Intervene by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Response due 3/30/2020. (Strawbridge, Patrick) (Entered: 03/22/2020)
42 Brief in Support of 41 Motion to Intervene by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin (Strawbridge, Patrick) (Entered: 03/22/2020)
43 Response re: 37 Order on Motion for TRO by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Attachments: # 1 Cover Letter Memo from WEC) (Keenan, Brian) (Entered: 03/23/2020)
44 Notice by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin of Proposed Edits to Court's Special Notice. (Spiva, Bruce) (Entered: 03/23/2020)

03/23/2020 03/24/2020 03/25/2020
03/25/2020
03/25/2020 03/26/2020 03/26/2020 03/26/2020
03/26/2020 03/26/2020 03/26/2020

Minute Entry for proceedings held before District Judge William M. Conley: Telephone Conference held on 3/23/2020 [:55] (Court Reporter JD.) (mfh) (Entered: 03/23/2020)
45 Notice by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin of Response to Motion in Support Of Leave To File Amicus Memo By the Cities Of Milwaukee And Madison. (Spiva, Bruce) (Entered: 03/24/2020)
46 Transcript of Telephonic Status Conference, held 3/23/2020 before Judge William M. Conley. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (voc) (Entered: 03/25/2020)
47 Transcript of Telephonic Status Conference, held 3/19/2020 before Judge William M. Conley. Court Reporter: CS. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (voc) (Entered: 03/25/2020)
48 Notice of Appearance /Stipulation for Substitution of Counsel filed by Dixon R. Gahnz for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Gahnz, Dixon) (Entered: 03/25/2020)
49 Notice of Appearance filed by Terrence M. Polich for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Polich, Terrence) (Entered: 03/26/2020)
50 Notice of Appearance filed by Daniel Spector Lenz for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Lenz, Daniel) (Entered: 03/26/2020)
51 Brief in Opposition by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: 20 Motion to Intervene filed by Wisconsin State Legislature, 41 Motion to Intervene filed by Republican National Committee, Republican Party Of Wisconsin (Lenz, Daniel) (Entered: 03/26/2020)
52 Brief in Opposition by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 41 Motion to Intervene filed by Republican National Committee, Republican Party Of Wisconsin (Spiva, Bruce) (Entered: 03/26/2020)
53 Disregard. Modified on 3/26/2020. (lak) (Entered: 03/26/2020)
54 Declaration of Bruce V. Spiva filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin in Support of Plaintiffs' Brief in Opposition re: 41 Motion to Intervene (Attachments: # 1 Exhibit 1 - 2020-03-20 RNC Email Requesting Consent,

03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/27/2020
03/27/2020 03/27/2020

# 2 Exhibit 2 - 2020-3-23-Governor-Evers-Senator-Scott, # 3 Exhibit 3 - Evers Safer at Home Schedule, # 4 Exhibit 4 - Outbreaks in Wisconsin _ Wisconsin Department of Health Services) (Spiva, Bruce) (Entered: 03/26/2020)
55 AMENDED COMPLAINT against Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, filed by Democratic Party of Wisconsin, Democratic National Committee. (Spiva, Bruce) (Entered: 03/26/2020)
56 Motion to Withdraw as Attorney Brian P. Keenan by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. Response due 4/2/2020. (Keenan, Brian) (Entered: 03/26/2020)
57 Motion to Withdraw as Attorney Jody J. Schmelzer by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. Response due 4/2/2020. (Schmelzer, Jody) (Entered: 03/26/2020)
58 Motion to Withdraw as Attorney S. Michael Murphy by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. Response due 4/2/2020. (Murphy, Sean) (Entered: 03/26/2020)
59 Notice of Appearance filed by Zachary Newkirk for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Newkirk, Zachary) (Entered: 03/26/2020)
60 Notice of Appearance filed by Daniel P. Bach for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. (Bach, Daniel) (Entered: 03/26/2020)
61 MOTION FOR PRELIMINARY INJUNCTION and Reconsideration of the Court's Ruling on the By-Mail Absentee Deadline and Documentation Requirements by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Spiva, Bruce) (Entered: 03/27/2020)
62 Brief in Support of 61 Motion for Preliminary Injunction, by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin (Attachments: # 1 Exhibit Statement of Facts) (Spiva, Bruce) (Entered: 03/27/2020)
63 Declaration of Bruce V. Spiva filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1 - 2020-03-26 B. Burden Expert Rpt, # 2 Exhibit 2 - Outbreaks in Wisconsin _ Wisconsin Department of Health Services, # 3 Exhibit 3 - Democratic National Committee v Bostelmann Transcript, # 4 Exhibit 4 - Health Order #12 Safer At Home,

03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020

# 5 Exhibit 5 - Article published by CNN, # 6 Exhibit 6 - Evers No plan to move April 7 election date; urges absentee voting, # 7 Exhibit 7 - Officials urge absentee voting as Wisco...ll on Local government madison, # 8 Exhibit 8 - Milwaukee officials worry about spread of coronavirus during April's election, # 9 Exhibit 9 - Governor-EversSenator-Scott-FitzgeraldRepresentativeRobin-Vos-3.23.20, # 10 Exhibit 10 - Voters Encouraged to Vote Absentee for April 7 Election - OnFocus, # 11 Exhibit 11 - Oshkosh+Voting+Flyer, # 12 Exhibit 12 - March 16 2020 Press Release, # 13 Exhibit 13 - Absentee Ballot Report - April 7, 2020.., # 14 Exhibit 14 - 914 AM March 23, 2020 tweet from Madison WI Clerk, # 15 Exhibit 15 - 2018-10-23 WEC Facebook, # 16 Exhibit 16 - Voting by mail in the April 7 Wisconsin election, explained Local government, # 17 Exhibit 17 - Emergency Guidance - Remote Notarization) (Spiva, Bruce) (Entered: 03/27/2020)
64 Declaration of Molly Callahan filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
65 Declaration of Becky Eggen filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
66 Declaration of John Keel filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
67 Declaration of Betheny Larson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
68 Declaration of Martha Love filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
69 Declaration of Peggy Roush filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
70 Declaration of Jeff Trapp filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
71 Brief in Reply by Intervenor Wisconsin State Legislature in Support of 20 Motion to Intervene (Tseytlin, Misha) (Entered: 03/27/2020)

03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020 03/28/2020 03/28/2020

72 Declaration of Judith Morse filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
73 Declaration of Neil Albrecht filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
74 Declaration of Scott McDonell filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
75 Declaration of Ben Wilson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
76 Declaration of Dean Strang filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
77 Declaration of Maribeth Witzel-Behl filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: 61 Motion for Preliminary Injunction, (Spiva, Bruce) (Entered: 03/27/2020)
78 Brief in Reply by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin in Support of 41 Motion to Intervene (Strawbridge, Patrick) (Entered: 03/27/2020)
79 Proposed ANSWER to Amended Complaint by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Strawbridge, Patrick) (Entered: 03/27/2020)
80 ** TEXT ONLY ORDER ** The court is in receipt of plaintiffs' motion for preliminary injunction and reconsideration of the court's ruling on the by-mail absentee deadline. (Dkt. # 61 .) Defendants may have until Monday, March 30, 2020, to file their response, including a response to plaintiffs' proposed findings of facts (dkt. # 61 -2). That same deadline applies for any friend of the court briefs, whether in support of or in opposition to the motion. The court will set an expedited hearing on the motion after receipt of those briefs as necessary. Signed by District Judge William M. Conley on 3/27/2020. (kwf) (Entered: 03/27/2020)
81 Notice by Intervenor Wisconsin State Legislature Letter regarding request for consolidation. (Tseytlin, Misha) (Entered: 03/27/2020)
82 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re 51 Brief in Opposition, Withdrawing Objections to Intervention. (Lenz, Daniel) (Entered: 03/28/2020)
83 Notice by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re 82 Notice (Other), 81 Notice

03/28/2020 03/28/2020 03/28/2020 03/30/2020 03/30/2020 03/30/2020
03/30/2020
03/30/2020

(Other) Letter re: Consolidation & Defendants' Changed Position on Intervention. (Strawbridge, Patrick) (Entered: 03/28/2020)
84 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re 81 Notice (Other) Stating No Opposition to Consolidation. (Lenz, Daniel) (Entered: 03/28/2020)
85 ORDER denying 20 Wisconsin Legislature's Motion to Intervene, granting 41 Republican National Committee and the Republican Party of Wisconsin's motion to intervene, and granting [ 56 , 57 , 58 ] motions to withdraw as counsel. Signed by District Judge William M. Conley on 3/28/2020.(bgw) (Entered: 03/28/2020)
86 ORDER consolidating case nos. 20-cv-249, 20-cv-278 and 20-cv-284. Signed by District Judge William M. Conley on 3/28/2020. (bgw) (Entered: 03/28/2020)
87 Notice of Appearance filed by Terrence M. Polich for Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe. Associated Cases: 3:20cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc (Polich, Terrence) (Entered: 03/30/2020)
88 Notice of Appearance filed by Scott Allen Keller for Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00278-wmc, 3:20-cv-00249wmc, 3:20-cv-00284-wmc (Keller, Scott) (Entered: 03/30/2020)
89 Motion for Motion of Wisconsin Legislature for Leave to File as Amicus Curiae Combined Amicus Brief in Opposition to the Democratic Party Plaintiffs' Motion for a Preliminary Injunction and Reconsideration of the Court's Ruling on the By-Mail Absentee Deadline and Documentation Requirements, and the Gear Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by Intervenor Wisconsin State Legislature. Response due 4/6/2020. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/30/2020)
90 Brief in Opposition by Intervenor Wisconsin State Legislature re: (89 in 3:20-cv-00249-wmc, 25 in 3:20-cv-00278-wmc, 30 in 3:20-cv-00284wmc) Motion for Miscellaneous Relief,, filed by Wisconsin State Legislature, (61 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/30/2020)
91 Notice of Appearance filed by Ryan Joseph Walsh for Intervenor Parties Wisconsin State Legislature, Wisconsin State Legislature, Wisconsin State Legislature. Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc (Walsh, Ryan) (Entered: 03/30/2020)

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92 Notice of Appearance filed by Amy Miller for Intervenor Wisconsin Legislature. Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc. (Miller, Amy) Modified on 6/12/2020: Updated party name to Wisconsin Legislature per pleading. (lak) (Entered: 03/30/2020)
93 Notice of Appearance filed by Jason Brett Torchinsky for Amicus Parties Honest Elections Project, Honest Elections Project, Honest Elections Project. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Torchinsky, Jason) (Entered: 03/30/2020)
94 Motion for Leave to File Amicus Brief by Amicus Honest Elections Project. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Torchinsky, Jason) (Entered: 03/30/2020)
95 Brief in Opposition by Amicus Honest Elections Project re: (61 in 3:20cv-00249-wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Torchinsky, Jason) (Entered: 03/30/2020)
96 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (61 in 3:20-cv-00249wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/30/2020)
97 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (61 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/30/2020)
98 Motion for Leave to File THE CITY OF MILWAUKEE'S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF by Amicus City Of Milwaukee, Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc (Stephens, Adam) (Entered: 03/30/2020)
99 Brief in Support of (39 in 3:20-cv-00284-wmc) Motion for Leave to File by Amicus City Of Milwaukee, Wisconsin Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Stephens, Adam) (Entered: 03/30/2020)
100 Brief in Support of (39 in 3:20-cv-00284-wmc) Motion for Leave to File AMICUS CURIAE BRIEF by Amicus City Of Milwaukee, Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Stephens, Adam) (Entered: 03/30/2020)
101 Declaration of Neil Albrecht IN SUPPORT OF CITY OF MILWAUKEE'S AMICUS CURIAE BRIEF Associated Cases: 3:20-cv-00249-wmc, 3:20-

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cv-00278-wmc, 3:20-cv-00284-wmc (Stephens, Adam) (Entered: 03/30/2020)
102 Notice of Appearance by Michael P. May filed by Michael P. May for Amicus City of Madison, Wisconsin. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (May, Michael) (Entered: 03/30/2020)
103 Notice of Appearance by Steven C. Brist filed by Michael P. May for Amicus City of Madison, Wisconsin. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (May, Michael) (Entered: 03/30/2020)
104 Response re: (22 in 3:20-cv-00284-wmc) Order,, Responsive Brief on Behalf of Amicus Curiae City of Madison by Amicus City of Madison, Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (May, Michael) (Entered: 03/30/2020)
105 Supplemental Declaration of Cecilia Aguilera filed by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (8 in 3:20-cv-00278-wmc) Motion for TRO, (Attachments: # 1 Exhibit Exhibit W - WEC Memorandum "Absentee Witness Signature Requirement Guidance" (Mar. 29, 2020)) Associated Cases: 3:20-cv00278-wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 03/30/2020)
106 Declaration of Meagan Wolfe filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (61 in 3:20cv-00249-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A - Uniform Instructions for Wisconsin Absentee Voters, # 2 Exhibit B - Letter from Governor Tony Evers, # 3 Exhibit C - Notice: COVID-19 Supplies and Spending Authority, # 4 Exhibit D - Notice: Absentee Witness Signature Requirement, # 5 Exhibit E - Election Day Checklist for Polling Places, # 6 Exhibit F - Poll Worker Procedures for April 7, 2020) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 03/30/2020)
107 Brief in Reply by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen in Support of (61 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-

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cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 03/30/2020)
108 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (61 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 03/30/2020)
109 Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (61 in 3:20cv-00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 03/30/2020)
110 Notice of Appearance filed by Vanessa Chavez for Amicus Parties City of Green Bay, City of Green Bay, City of Green Bay. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Chavez, Vanessa) (Entered: 03/30/2020)
111 Motion for Leave to File AMICUS CURIAE BRIEF by Amicus Parties City of Green Bay, City of Green Bay, City of Green Bay. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Chavez, Vanessa) (Entered: 03/30/2020)
112 Brief in Support of (111 in 3:20-cv-00249-wmc, 52 in 3:20-cv-00284wmc, 47 in 3:20-cv-00278-wmc) Motion for Leave to File AMICUS CURIAE BRIEF by Amicus Parties City of Green Bay, City of Green Bay, City of Green Bay Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc (Chavez, Vanessa) (Entered: 03/30/2020)
113 Affidavit of Kris Teske filed by Amicus Parties City of Green Bay, City of Green Bay, City of Green Bay re: (111 in 3:20-cv-00249-wmc, 52 in 3:20cv-00284-wmc, 47 in 3:20-cv-00278-wmc) Motion for Leave to File Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Chavez, Vanessa) (Entered: 03/30/2020)
114 Notice of Supplemental Authority by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re (96 in 3:20-cv00249-wmc, 37 in 3:20-cv-00284-wmc, 32 in 3:20-cv-00278-wmc) Brief in Opposition, . Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/30/2020)

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115 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen Not Opposing Motions for Leave to File from Amici Curiae. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 03/30/2020)
116 ** TEXT ONLY ORDER ** The court will hold a videoconference at 3:30 p.m., today, March 31, 2020, using Zoom to both test the platform and discuss setting an evidentiary hearing for tomorrow afternoon, April 1, 2020. The court will send an invite via email to all counsel of record for the parties listed on the dockets for the three election-related cases. All counsel, however, need not attend this conference; rather, it is most important that LEAD counsel who will participate in tomorrow's hearing participate in this videoconference. Signed by District Judge William M. Conley on 3/31/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (mfh) (Entered: 03/31/2020)
117 Motion to Admit John Devaney Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758-2654181.) by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Devaney, John) (Entered: 03/31/2020)
118 Motion to Intervene Renewed Motion In DNC & Motion In Gear by Intervenor Wisconsin State Legislature. Response due 4/7/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
119 ** TEXT ONLY ORDER ** ORDER granting (117) Motion to Admit John Devaney Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 3/31/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (lak) (Entered: 03/31/2020)
120 Amicus Curiae Appearance entered by Karyn L. Rotker Amicus Parties Disability Rights Wisconsin, Inc., Disability Rights Wisconsin, Inc., Disability Rights Wisconsin, Inc., American Civil Liberties Union Of Wisconsin, American Civil Liberties Union Of Wisconsin, American Civil Liberties Union Of Wisconsin, Wisconsin Conservation Voices, Wisconsin Conservation Voices, Wisconsin Conservation Voices Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Rotker, Karyn) (Entered: 03/31/2020)
121 Motion for Leave to File Amici Curiae Brief in Support of Plaintiffs in Lewis v. Knudsen by Amicus Parties American Civil Liberties Union Of

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Wisconsin, American Civil Liberties Union Of Wisconsin, Disability Rights Wisconsin, Inc., Wisconsin Conservation Voices. (Attachments: # 1 Br. of Amici Curiae Disability Rights Wis., ACLU of Wis., and Wis. Conservation Voices, # 2 Disclosure Statement, # 3 Text of Proposed Order) Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Rotker, Karyn) (Entered: 03/31/2020)
122 ** TEXT ONLY ORDER ** The court previously granted the Republican National Committee and the Republican Party of Wisconsin's motion to intervene in Case No. 20-cv249. After granting that motion, the court consolidated the '249 case with Case Nos. 20-cv-278 and 20-cv-284. Now, in the '278 and '284 cases, the RNC and Republican Party of Wisconsin have moved to intervene in an effort to clarify their status in these two cases. ('278 dkt. # 22 ; '284 dkt. # 27 .) Those motions are GRANTED. Signed by District Judge William M. Conley on 3/31/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 03/31/2020)
123 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen regarding absentee ballot counting. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Lenz, Daniel) (Entered: 03/31/2020)
124 Amicus Curiae Appearance entered by Nhu Huong Tran Amicus Parties City of Racine, City of Racine, City of Racine Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tran, Nhu) (Entered: 03/31/2020)
125 Motion for Leave to File Amicus Brief in Case Number 20-cv-284-wmc by Amicus Party Tony Evers. Associated Cases: 3:20-cv-00284-wmc, 3:20cv-00249-wmc, 3:20-cv-00278-wmc (Jurss, Hannah) Modified on 3/31/2020. (arw) (Entered: 03/31/2020)
126 Notice of Appearance filed by Matthew Jeffrey Thome for Amicus Parties Washington County, Washington County, Washington County, Wisconsin Counties Association, Wisconsin Counties Association, Wisconsin Counties Association. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc (Thome, Matthew) (Entered: 03/31/2020)
127 Notice of Appearance filed by William E. Fischer for Amicus Parties Washington County, Wisconsin Counties Association. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Fischer, William) (Entered: 03/31/2020)

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128 Notice of Appearance filed by Andrew Thomas Phillips for Amicus Parties Washington County, Wisconsin Counties Association. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Phillips, Andrew) (Entered: 03/31/2020)
129 Motion for Leave to File Amicus Brief by Amicus Parties City of Racine, City of Racine, City of Racine. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tran, Nhu) (Entered: 03/31/2020)
130 Notice of Supplemental Authority by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re (96 in 3:20-cv00249-wmc, 37 in 3:20-cv-00284-wmc, 32 in 3:20-cv-00278-wmc) Brief in Opposition, . Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/31/2020)
131 Motion for Leave to File Amicus Brief and Alternative Motion to Intervene by Amicus Parties Washington County, Wisconsin Counties Association. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Phillips, Andrew) (Entered: 03/31/2020)
132 Brief in Support of (129 in 3:20-cv-00249-wmc, 65 in 3:20-cv-00278wmc, 71 in 3:20-cv-00284-wmc) Motion for Leave to File Amicus Brief by Amicus Parties City of Racine, City of Racine, City of Racine (Attachments: # 1 Declaration of Bowersox, # 2 Declaration of Coolidge, # 3 Declaration of Mason) Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Tran, Nhu) (Entered: 03/31/2020)
133 Brief in Opposition by Amicus Parties Washington County, Wisconsin Counties Association re: (17 in 3:20-cv-00284-wmc) Motion for TRO, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO (Attachments: # 1 Appendix of County Ordinances) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Phillips, Andrew) (Entered: 03/31/2020)
134 Corporate Disclosure Statement by Amicus Parties Washington County, Wisconsin Counties Association. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Phillips, Andrew) (Entered: 03/31/2020)
Set Hearings: Evidentiary Hearing set for 4/1/2020 at 1:00 PM before District Judge William M. Conley via Zoom Video Conference. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc. (kwf) (Entered: 03/31/2020)

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135 Declaration of Neil Albrecht filed by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (8 in 3:20cv-00278-wmc) Motion for TRO, Associated Cases: 3:20-cv-00278-wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 03/31/2020)
136 Witness List DISCLOSURE OF DECLARATIONS THAT ARE DIRECT EVIDENCE FOR APRIL 1, 2020 HEARING by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Hollander, David) (Entered: 03/31/2020)
137 Motion to Intervene or for Leave to File an Amicus Brief by Intervenor Wisconsin State Legislature. Response due 4/7/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
138 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin re: (8 in 3:20-cv-00278-wmc) Motion for TRO, filed by Claire Whelan, Malekeh K. Hakami, Sylvia Gear, League of Women Voters of Wisconsin, Patricia Ginter, Wisconsin Alliance for Retired Americans, (17 in 3:20-cv-00284-wmc) Motion for TRO, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/31/2020)
139 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (8 in 3:20-cv-00278-wmc) Motion for TRO, Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 03/31/2020)
140 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (17 in 3:20-cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc (Strawbridge, Patrick) (Entered: 03/31/2020)
141 Brief in Support of (137 in 3:20-cv-00249-wmc, 73 in 3:20-cv-00278wmc, 80 in 3:20-cv-00284-wmc) Motion to Intervene or for Leave to File an Amicus Brief by Intervenor Wisconsin State Legislature Associated

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Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
142 Motion for Leave to File Proposed Motion to Dismiss by Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
143 Brief in Support of (85 in 3:20-cv-00284-wmc, 142 in 3:20-cv-00249wmc, 78 in 3:20-cv-00278-wmc) Motion for Leave to File Proposed Motion to Dismiss or as Amicus Curiae by Intervenor Wisconsin State Legislature Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
144 ORDER on April 1, 2020, video hearing. Signed by District Judge William M. Conley on 3/31/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (bgw) (Entered: 03/31/2020)
145 Proposed Response to Proposed Findings of Fact filed by Intervenor Wisconsin State Legislature re: (17 in 3:20-cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
146 Declaration of Misha Tseytlin filed by Intervenor Wisconsin State Legislature re: (85 in 3:20-cv-00284-wmc) Motion for Leave to File (Attachments: # 1 Exhibit Absentee Ballot Report - April 7, 2020 Spring Election, # 2 Exhibit Wisconsin Democracy Campaign Press Release, # 3 Exhibit Open Secrets, WI Party Transfers 2020 Cycle, # 4 Exhibit Schmidt Article, # 5 Exhibit Kenneally Article, # 6 Exhibit WEC List of Candidates on Ballot by Election, # 7 Exhibit List of Wisconsin Counties, # 8 Exhibit Wisconsin Supreme Court Order Mar. 31, 2020, # 9 Exhibit Emilee Fannon Twitter Post) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
147 Brief in Support of (59 in 3:20-cv-00284-wmc, 54 in 3:20-cv-00278-wmc, 118 in 3:20-cv-00249-wmc) Motion to Intervene Renewed Motion in DNC & Motion in Gear by Intervenor Wisconsin State Legislature Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
148 Motion for Leave to File Proposed Motion to Dismiss by Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
149 Brief in Support of (148 in 3:20-cv-00249-wmc, 91 in 3:20-cv-00284wmc, 84 in 3:20-cv-00278-wmc) Motion for Leave to File Proposed

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Motion to Dismiss by Intervenor Wisconsin State Legislature Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 03/31/2020)
150 Amicus Curiae Appearance entered by David Gault Amicus Parties Dane County, Dane County, Dane County (Attachments: # 1 Notice of Appearance, # 2 Motion of County of Dane for Leave to file Amicus, # 3 Exhibit A - Poll Worker Shortage, # 4 Exhibit B - Declaration of Scott McDonnell, # 5 Exhibit C - Memo from PHMDC dated 03-31-2020, # 6 Declaration of Scott McDonnell) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gault, David) (Entered: 03/31/2020)
151 Brief in Support of (125 in 3:20-cv-00249-wmc, 61 in 3:20-cv-00278wmc) Motion for Leave to File Amicus Brief by Amicus Tony Evers Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv00278-wmc (Jurss, Hannah) (Entered: 03/31/2020)
152 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen regarding absentee ballot counting. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Lenz, Daniel) (Entered: 03/31/2020)
153 Motion for Leave to File Reply Brief in Support of Motion for Preliminary Injunction and Reconsideration of the Court's Ruling on the By-Mail Absentee Deadline and Documentation Requirements by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Spiva, Bruce) (Entered: 03/31/2020)
154 Brief in Support of (96 in 3:20-cv-00284-wmc) Motion for Leave to File, Reply Brief in Support of Motion for Preliminary Injunction and Reconsideration of the Court's Ruling on the By-Mail Absentee Deadline and Documentation Requirements by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Spiva, Bruce) (Entered: 03/31/2020)
155 Brief in Opposition by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (17 in 3:20-cv-00284-wmc)

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Motion for TRO, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 03/31/2020)
156 Third Declaration of Meagan Wolfe filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (17 in 3:20-cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 03/31/2020)
157 Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (17 in 3:20cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 03/31/2020)
158 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (17 in 3:20-cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 03/31/2020)
159 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (8 in 3:20-cv-00278-wmc) Motion for TRO, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 03/31/2020)
160 Brief in Reply by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan,

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Wisconsin Alliance for Retired Americans in Support of (8 in 3:20-cv00278-wmc) Motion for TRO, (Attachments: # 1 Exhibit Exhibit 1 - Complaint in Florida Democratic Party v. Scott (N.D. Fla. 2016), # 2 Exhibit Exhibit 2 - Complaint in Georgia Coalition for the Peoples' Agenda, Inc. v. Deal (S.D. Ga. 2016)) Associated Cases: 3:20-cv-00278wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 03/31/2020)
161 Motion to Supplement Brief Addressing Remedies by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Hollander, David) (Entered: 03/31/2020)
162 Supplemental Brief in Reply by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera in Support of (17 in 3:20-cv-00284-wmc) Motion for TRO, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Hollander, David) (Entered: 03/31/2020)
163 ORDER denying (118, 137) renewed motions to intervene but granting motion to file amicus brief. Signed by District Judge William M. Conley on 4/1/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (bgw) (Entered: 04/01/2020)
164 Notice by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin of Counsel, Witnesses and Exhibits. Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Spiva, Bruce) (Entered: 04/01/2020)
165 Exhibit List Witness List, and Counsel Designation for April 1, 2020 Hearing on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. (Attachments: # 1 Exhibit Exhibit 51 - WEC March 29, 2020 Memorandum on Witness Requirement, # 2 Exhibit Exhibit 52 - WEC Form EL 122 - Absentee Ballot Certificate, # 3 Exhibit Exhibit 53 - Emergency Order #12, # 4 Exhibit Exhibit 54 - US Census Table 2501, American Community Survey, # 5 Exhibit Exhibit 55 - CDC Webpage: How Coronavirus Spreads) Associated Cases: 3:20-cv-00278-wmc, 3:20-cv-00249-wmc, 3:20-cv00284-wmc (Sherman, Jonathan) (Entered: 04/01/2020)

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166 Exhibit List Witness List, and Counsel Designation for April 1, 2020 Hearing on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (RE-FILED ON 20-cv-249 DOCKET) by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. (Attachments: # 1 Exhibit Exhibit 51 - WEC March 29, 2020 Memorandum on Witness Requirement, # 2 Exhibit Exhibit 52 - WEC Form EL 122 - Absentee Ballot Certificate, # 3 Exhibit Exhibit 53 - Emergency Order #12, # 4 Exhibit Exhibit 54 - US Census Table 2501, American Community Survey, # 5 Exhibit Exhibit 55 - CDC Webpage: How Coronavirus Spreads) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Sherman, Jonathan) (Entered: 04/01/2020)
167 Notice by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin re (87 in 3:20-cv-00284-wmc, 144 in 3:20-cv-00249-wmc, 80 in 3:20-cv-00278-wmc) Order Statement re: Counsel, Witnesses, Exhibits. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 04/01/2020)
168 Exhibit List Witness List and Counsel Designation for April 1, 2020 Hearing by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Gahnz, Dixon) (Entered: 04/01/2020)
169 Exhibit List For April 1, 2020 Hearing by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera. (Attachments: # 1 Exhibit Lewis Plaintiffs Exhibit 101, # 2 Exhibit Lewis Plaintiffs Exhibit 102, # 3 Exhibit Lewis Plaintiffs Exhibit 103) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Hollander, David) (Entered: 04/01/2020)
Notice to Counsel: Attorneys in a non-speaking role, members of the press, and the public may listen to today's evidentiary hearing by dialing

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888-273-3658, entering access code 2731593, and then entering security code 1122. Please Note: This is an audio feed only. Video is not available except to lead counsel for the parties. Callers MUST mute their phones. The press and the public are allowed to observe. There will be no opportunity to participate or ask questions. (arw) (Entered: 04/01/2020)
170 ORDER granting in part and denying in part (61) Motion for Preliminary Injunction in case 3:20-cv-00249-wmc Signed by District Judge William M. Conley on 04/02/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (mfh) (Entered: 04/02/2020)
171 PRELIMINARY INJUNCTION. IT IS ORDERED that defendants the Commissioners of the Wisconsin Election Commission and its Administrator are ENJOINED as follows:

a) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted. The deadline for receipt of absentee ballots is extended to 4:00 p.m. on April 13, 2020.

b) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020. The deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) is extended to 5:00 p.m. on April 3, 2020.

c) Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.

04/02/2020

Signed by District Judge William M. Conley on 4/2/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/02/2020)
172 NOTICE OF APPEAL by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin as to (113 in 3:20-cv-00284wmc, 170 in 3:20-cv-00249-wmc, 106 in 3:20-cv-00278-wmc) Order on Motion for Preliminary Injunction, (171 in 3:20-cv-00249-wmc, 114 in 3:20-cv-00284-wmc, 107 in 3:20-cv-00278-wmc) Preliminary Injunction,,,,,. Filing fee of $ 505, receipt number 26OINN7B paid. No Docketing Statement filed. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 04/02/2020)

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173 NOTICE OF APPEAL by Intervenor Parties Wisconsin State Legislature, Wisconsin State Legislature, Wisconsin State Legislature as to (113 in 3:20-cv-00284-wmc, 170 in 3:20-cv-00249-wmc, 106 in 3:20-cv-00278wmc) Order on Motion for Preliminary Injunction, (99 in 3:20-cv-00278wmc, 106 in 3:20-cv-00284-wmc, 163 in 3:20-cv-00249-wmc) Order on Motion to Intervene, (85 in 3:20-cv-00249-wmc) Order on Motion to Intervene, (171 in 3:20-cv-00249-wmc, 114 in 3:20-cv-00284-wmc, 107 in 3:20-cv-00278-wmc) Preliminary Injunction,,,,,. Filing fee of $ 505, receipt number 0758-2655933 paid. Docketing Statement filed. (Attachments: # 1 Docketing Statement, # 2 Exhibit Opinion and Order Denying Intervention, # 3 Exhibit Opinion and Order Denying Renewed Intervention and Intervention, # 4 Exhibit Opinion and Order Granting in Part Motion for Preliminary Injunction, # 5 Exhibit Preliminary Injunction Order) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 04/02/2020)
174 Motion for Clarification by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re (170 in 3:20-cv00249-wmc) Order on Motion for Preliminary Injunction Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) Modified on 4/3/2020. (lak) (Entered: 04/02/2020)
175 Appeal Information Packet. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/03/2020)
176 Transmission of Notice of Appeal, Opinion and Order, Preliminary Injunction Order and Docket Sheet to Seventh Circuit Court of Appeals re: (108 in 3:20-cv-00278-wmc, 115 in 3:20-cv-00284-wmc, 172 in 3:20-cv00249-wmc) Notice of Appeal, (Attachments: # 1 Opinion and Order, # 2 Preliminary Injunction Order, # 3 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/03/2020)
177 Transmission of Notice of Appeal, Docketing Statement, Orders and Docket Sheet to Seventh Circuit Court of Appeals re (116 in 3:20-cv00284-wmc, 173 in 3:20-cv-00249-wmc, 109 in 3:20-cv-00278-wmc) Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order No.: 85,

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# 3 Order No.: 163, # 4 Opinion and Order, # 5 Preliminary Injunction Order, # 6 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/03/2020)
USCA Case Number 20-1538 for (108 in 3:20-cv-00278-wmc, 115 in 3:20-cv-00284-wmc, 172 in 3:20-cv-00249-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc. (kwf) (Entered: 04/03/2020)
USCA Case Number 20-1539 for (116 in 3:20-cv-00284-wmc, 173 in 3:20-cv-00249-wmc, 109 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/03/2020)
178 Notice by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin re (110 in 3:20-cv-00278-wmc, 174 in 3:20-cv-00249-wmc, 117 in 3:20-cv-00284-wmc) Notice (Other),, Response to Defendants' Motion for Clarification. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 04/03/2020)
179 ORDER granting (174) Motion for Clarification. in case 3:20-cv-00249wmc; granting (117) Motion for Clarification. in case 3:20-cv-00284-wmc Signed by District Judge William M. Conley on 04/03/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (mfh) (Entered: 04/03/2020)
180 ORDER for amended preliminary injunction. Signed by District Judge William M. Conley on 04/03/2020. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (mfh) (Entered: 04/03/2020)
181 Transcript of Video Conference Evidentiary Hearing, held 4/1/2020 before District Judge William M. Conley. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/03/2020)
182 NOTICE OF APPEAL by Intervenor Wisconsin State Legislature as to (180 in 3:20-cv-00249-wmc, 123 in 3:20-cv-00284-wmc, 116 in 3:20-cv00278-wmc) Order. Filing fee of $ 505, receipt number 0758-2656636 paid. Docketing Statement filed. (Attachments: # 1 Docketing Statement, # 2 Amended Preliminary Injunction Order) Associated Cases: 3:20-cv-

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00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 04/03/2020)
183 Appeal Information Packet. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/03/2020)
184 Transmission of Notice of Appeal, Docketing Statement, Amended Preliminary Injunction Order and Docket Sheet to Seventh Circuit Court of Appeals re: (125 in 3:20-cv-00284-wmc, 182 in 3:20-cv-00249-wmc, 118 in 3:20-cv-00278-wmc) Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Amended Preliminary Injunction Order, # 3 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/03/2020)
185 NOTICE OF APPEAL by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin as to (180 in 3:20-cv-00249wmc, 123 in 3:20-cv-00284-wmc, 116 in 3:20-cv-00278-wmc) Order, (122 in 3:20-cv-00284-wmc, 179 in 3:20-cv-00249-wmc, 115 in 3:20-cv00278-wmc) Order on Motion for Clarification,. Filing fee of $ 505, receipt number 0758-2656651 paid. No Docketing Statement filed. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Strawbridge, Patrick) (Entered: 04/03/2020)
186 Motion to Intervene Renewed Motions & Request for Immediate Relief by Intervenor Wisconsin State Legislature. Response due 4/13/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Tseytlin, Misha) (Entered: 04/05/2020)
187 Appeal Information Packet. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/06/2020)
188 Transmission of Notice of Appeal, Orders and Docket Sheet to Seventh Circuit Court of Appeals re: (128 in 3:20-cv-00284-wmc, 185 in 3:20-cv00249-wmc, 121 in 3:20-cv-00278-wmc) Notice of Appeal, (Attachments: # 1 Order No.: 179, # 2 Order No.: 180, # 3 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (lak) (Entered: 04/06/2020)
USCA Case Number 20-1545 for (182 in 3:20-cv-00249-wmc, 125 in 3:20-cv-00284-wmc, 118 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/06/2020)
USCA Case Number 20-1546 for (128 in 3:20-cv-00284-wmc, 185 in 3:20-cv-00249-wmc, 121 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin.

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Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc. (kwf) (Entered: 04/06/2020)
189 ORDER from USCA denying stay as to the portions of the district court's order that (1) enjoin the enforcement of the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted and extend the deadline for receipt of absentee ballots to 4:00 p.m. on April 13, 2020; and (2) enjoin the enforcement of the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020, and extend the deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) to 5:00 p.m. on April 3, 2020; granting stay as to that portion of the district court's order that enjoins the enforcement of Wis. Stat. § 6.87(2) for absentee voters who provide a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so; concluding that the Wisconsin State Legislature has standing to pursue this appeal, and that the district court erred in refusing to permit the Legislature to intervene in the case re: (108 in 3:20-cv-00278-wmc, 115 in 3:20-cv-00284-wmc, 172 in 3:20-cv00249-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin, (116 in 3:20-cv-00284-wmc, 173 in 3:20cv-00249-wmc, 109 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature, (125 in 3:20-cv-00284-wmc, 182 in 3:20-cv00249-wmc, 118 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature, (128 in 3:20-cv-00284-wmc, 185 in 3:20-cv00249-wmc, 121 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc. (kwf) (Entered: 04/06/2020)
190 Minute Entry for proceedings held before District Judge William M. Conley: Evidentiary Hearing held on 4/1/2020 via Zoom video conference. [4:00] (Court Reporter JD.) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/06/2020)
191 ** TEXT ONLY ORDER ** In light of the Seventh Circuit Court of Appeals' order, the Wisconsin Legislature has filed a renewed motion to intervene in the proceedings in this case. ('249 dkt. #186.) Although there is some question as to the scope of this court's jurisdiction over that motion pending return of the mandate, the court deems the Seventh Circuit Court of Appeals' ruling as law of the case, meaning that the Wisconsin Legislature has effectively been an intervening defendant in all three cases from the time of that decision, and they should be listed as such in each of those cases. Moreover, to the extent properly before this court, that motion is GRANTED. Signed by District Judge William M. Conley on 4/6/2020. Associated Cases: 3:20-

04/13/2020 04/14/2020 04/14/2020
04/14/2020 04/14/2020 04/16/2020 04/30/2020 05/01/2020

cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/06/2020)
192 Defendants' ANSWER to Amended Complaint in 20 CV 249, DNC et al. v. Bostelmann et al by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Lenz, Daniel) (Entered: 04/13/2020)
193 Transcript Request Form by Intervenor Wisconsin State Legislature re (116 in 3:20-cv-00284-wmc) Notice of Appeal,,,, (125 in 3:20-cv-00284wmc) Notice of Appeal, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 04/14/2020)
194 Transcript Request Form by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin re (108 in 3:20-cv-00278wmc, 115 in 3:20-cv-00284-wmc, 172 in 3:20-cv-00249-wmc) Notice of Appeal,, (128 in 3:20-cv-00284-wmc, 185 in 3:20-cv-00249-wmc, 121 in 3:20-cv-00278-wmc) Notice of Appeal,, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 04/14/2020)
195 Court Reporter Certification of Seventh Circuit Transcript Information Sheet re: (182 in 3:20-cv-00249-wmc, 118 in 3:20-cv-00278-wmc, 125 in 3:20-cv-00284-wmc) Notice of Appeal. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/14/2020)
196 Court Reporter Certification of Seventh Circuit Transcript Information Sheet re: (185 in 3:20-cv-00249-wmc, 121 in 3:20-cv-00278-wmc, 128 in 3:20-cv-00284-wmc) Notice of Appeal. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 04/14/2020)
197 MOTION TO DISMISS Amended Complaint by Intervenor Wisconsin State Legislature. Brief in Opposition due 5/7/2020. Brief in Reply due 5/18/2020. (kwf) (Entered: 04/16/2020)
198 Motion for Leave to File Second Amended Complaint by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Attachments: # 1 Exhibit Proposed Second Amended Complaint) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Devaney, John) (Entered: 04/30/2020)
Set Briefing Deadlines as to (198 in 3:20-cv-00249-wmc, 133 in 3:20-cv00278-wmc, 140 in 3:20-cv-00284-wmc) Motion for Leave to File Second Amended Complaint. Brief in Opposition due 5/11/2020. Brief in Reply

05/07/2020 05/11/2020 05/11/2020 05/18/2020 05/18/2020 05/19/2020 05/21/2020
05/21/2020

due 5/18/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (kwf/nks) (Entered: 05/01/2020)
199 Brief in Opposition by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (139 in 3:20-cv-00284-wmc) Motion to Dismiss filed by Wisconsin State Legislature Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Devaney, John) (Entered: 05/07/2020)
200 Brief in Opposition by Intervenor Wisconsin State Legislature re: (198 in 3:20-cv-00249-wmc, 133 in 3:20-cv-00278-wmc, 140 in 3:20-cv-00284wmc) Motion for Leave to File, filed by Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 05/11/2020)
201 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (198 in 3:20-cv-00249wmc, 133 in 3:20-cv-00278-wmc, 140 in 3:20-cv-00284-wmc) Motion for Leave to File, filed by Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 05/11/2020)
202 Brief in Reply by Intervenor Wisconsin State Legislature in Support of (197 in 3:20-cv-00249-wmc) Motion to Dismiss Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 05/18/2020)
203 Brief in Support of (133 in 3:20-cv-00278-wmc, 198 in 3:20-cv-00249wmc, 140 in 3:20-cv-00284-wmc) Motion for Leave to File, Second Amended Complaint by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Devaney, John) (Entered: 05/18/2020)
204 Corporate Disclosure Statement by Plaintiffs League of Women Voters of Wisconsin, Wisconsin Alliance for Retired Americans. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Poland, Douglas) (Entered: 05/19/2020)
205 Motion to Voluntarily Dismiss pursuant to Rule 41(a)(2) FRCIVP with costs, and with Plaintiffs retaining the right to seek attorneys' fees and non-taxable expenses by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera. Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc (Pines, Lester) (Entered: 05/21/2020)
Set Briefing Deadlines as to (205 in 3:20-cv-00249-wmc, 140 in 3:20-cv00278-wmc, 147 in 3:20-cv-00284-wmc) Motion to Voluntarily

05/26/2020 05/26/2020 05/27/2020 05/28/2020
05/28/2020
05/28/2020

Dismiss pursuant to Rule 41(a)(2) FRCIVP with costs, and with Plaintiffs retaining the right to seek attorneys' fees and non-taxable expenses. Brief in Opposition due 5/28/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (kwf/mfh) (Entered: 05/21/2020)
206 MOTION TO DISMISS by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe. Brief in Opposition due 6/16/2020. Brief in Reply due 6/26/2020. (kwf) (Entered: 05/26/2020)
207 Brief in Support of (141 in 3:20-cv-00278-wmc) Motion to Dismiss by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Gahnz, Dixon) (Entered: 05/26/2020)
208 Notice of Withdrawal of Counsel by Michael P. May re: Amicus City of Madison, Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc (May, Michael) (Entered: 05/27/2020)
209 Brief in Opposition by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe re: (147 in 3:20-cv-00284-wmc) Motion to Voluntarily Dismiss,, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 05/28/2020)
210 Brief in Opposition by Intervenor Wisconsin State Legislature re: (205 in 3:20-cv-00249-wmc, 140 in 3:20-cv-00278-wmc, 147 in 3:20-cv-00284wmc) Motion to Voluntarily Dismiss,, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 05/28/2020)
211 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin, Republican National Committee, Republican Party Of Wisconsin re: (205 in 3:20-cv-00249wmc, 140 in 3:20-cv-00278-wmc, 147 in 3:20-cv-00284-wmc) Motion to Voluntarily Dismiss,, filed by Black Leaders Organizing for Communities, Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis, American Federation of Teachers Local, 212, AFL-CIO Associated Cases: 3:20-cv-

05/29/2020 05/29/2020 06/02/2020 06/03/2020 06/05/2020

00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Strawbridge, Patrick) (Entered: 05/28/2020)
212 Motion for Leave to File Reply Brief on Its Rule 41(a)(2) Motion to Dismiss by Plaintiffs League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera. Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv00278-wmc (Pines, Lester) (Entered: 05/29/2020)
213 Motion to Amend (1 in 3:20-cv-00278-wmc) Complaint, by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. Brief in Opposition due 6/5/2020. Brief in Reply due 6/12/2020. (Attachments: # 1 Exhibit Exhibit A - Proposed First Amended Complaint) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 05/29/2020)
214 Proposed Brief in Reply by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera in Support of (154 in 3:20-cv-00284-wmc, 147 in 3:20-cv-00278-wmc) Motion for Leave to File, (147 in 3:20-cv-00284-wmc, 140 in 3:20-cv-00278-wmc) Motion to Voluntarily Dismiss,, Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc (Pines, Lester) (Entered: 06/02/2020)
215 Brief in Opposition by Intervenor Wisconsin State Legislature re: (212 in 3:20-cv-00249-wmc, 147 in 3:20-cv-00278-wmc, 154 in 3:20-cv-00284wmc) Motion for Leave to File, filed by Souls to the Polls, SEIU Wisconsin State Council, League of Women Voters of Wisconsin, Voces De La Frontera, Greg Lewis Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 06/03/2020)
216 USCA ORDER dismissing appeal as moot as to (108 in 3:20-cv-00278wmc, 115 in 3:20-cv-00284-wmc, 172 in 3:20-cv-00249-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin, (116 in 3:20-cv-00284-wmc, 173 in 3:20-cv-00249-wmc, 109 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature, (125 in 3:20-cv-00284-wmc, 182 in 3:20-cv-00249-wmc, 118 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Wisconsin State Legislature, (128 in 3:20-cv-00284-wmc, 185 in 3:20-cv-00249-wmc, 121 in 3:20-cv-00278-wmc) Notice of Appeal, filed by Republican National Committee, Republican Party Of Wisconsin. No record to be returned. (Attachments: # 1 Mandate) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 06/05/2020)

06/10/2020 06/10/2020 06/11/2020 06/11/2020 06/17/2020
06/18/2020

217 OPINION AND ORDER granting 198 Motion for Leave to File Second Amended Complaint; denying as moot 197 Motion to Dismiss. Signed by District Judge William M. Conley on 6/9/2020. (kwf) (Entered: 06/10/2020)
Set Hearings: Telephone Status Conference set for 6/29/2020 at 10:00 AM before District Judge William M. Conley. Counsel for Plaintiffs responsible for setting up the call to chambers at (608) 264-5087. (kwf) (Entered: 06/10/2020)
218 Notice of Appearance filed by Robert Edward Browne, Jr for Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc (Browne, Robert) (Entered: 06/11/2020)
219 Notice of Appearance filed by Sean Dutton for Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Dutton, Sean) (Entered: 06/11/2020)
220 ** TEXT ONLY ORDER ** On May 26, 2020, defendant WEC filed a motion to dismiss on mootness grounds. (Dkt. # 141 .) Plaintiffs failed to respond to that motion by yesterday's deadline, June 16, 2020. Normally, the court would grant the motion as unopposed. Here, however, plaintiffs filed a motion for leave to amend their complaint on May 29, 2020. (Dkt. # 148 .) Perhaps plaintiffs believed that their motion to amend somehow mooted defendants' motion to dismiss, although it is hard to see how since the operative pleading remains the original complaint unless their motion is granted AND the proposed amended complaint simply seeks to swap out plaintiffs, rather than amend any of the substantive allegations that might affect defendants' mootness challenge. Nonetheless, the court will provide plaintiffs one more chance to respond to the motion to dismiss before granting it by default. In an effort to keep these cases on a speedy track, plaintiffs' response is due on or before this Friday, June 19, 2020. Signed by District Judge William M. Conley on 6/17/2020. Associated Cases: 3:20cv-00278-wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc. (kwf) (Entered: 06/17/2020)
221 Brief in Opposition by Plaintiffs Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (141 in 3:20-cv-00278wmc) Motion to Dismiss filed by Dean Knudson, Marge Bostelmann, Julie M. Glancey, Mark L. Thomsen, Robert F. Spindell, Jr., Meagan Wolfe, Ann S. Jacobs, (206 in 3:20-cv-00249-wmc) Motion to Dismiss filed by Dean Knudson, Marge Bostelmann, Julie M. Glancey, Mark L. Thomsen, Robert F. Spindell, Jr., Ann S. Jacobs Associated Cases: 3:20cv-00278-wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 06/18/2020)

06/22/2020 06/22/2020 06/23/2020
06/24/2020 06/25/2020

222 Notice of Appearance filed by Michelle Marie Umberger for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Umberger, Michelle) (Entered: 06/22/2020)
223 Notice of Appearance filed by Brandon Michael Lewis for Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Lewis, Brandon) (Entered: 06/22/2020)
224 ** TEXT ONLY ORDER ** The court is in receipt of the Gear plaintiffs' late-filed opposition to the WEC defendants' motion to dismiss. (Dkt. #221.) Defendants' reply deadline is accordingly extended to June 28, 2020. In light of the Gear plaintiffs' expressed intention to continue to pursue relief for the upcoming August and November elections, they are ordered to appear by counsel at the June 29, 2020, 10 a.m. status conference scheduled in the related Democratic National Committee case. (See 20-cv-249 (dkt. #217).) Further, all parties in these consolidated cases are advised that the parties in two other related cases -- 20-cv-340 and 20cv-459 -- have also been ordered to appear at the June 29 status conference. Having given additional thought to the June 29th conference, the court now believes that it may be simpler (and safer) to hold it over Zoom, rather than telephonically. As such, the court will require counsel for each of the cases to provide an email address for no more than two attorneys who will appear and speak for their respective parties. Other attorneys or parties may watch the conference via the court's live YouTube stream. https://www.youtube.com/channel/UCIvvwLooNn3UX_g9qHQP4bQ/live. The parties should be prepared to discuss a schedule for efficiently and fairly addressing plaintiffs' requests for a relief. In addition, to the extent possible, counsel for parties with aligned interests are strongly encouraged to discuss their positions in advance and designate a lead spokesperson by issue or otherwise. Finally, counsel are encouraged to meet before the June 29 conference (virtually or otherwise) and confer to discuss the best means to efficiently resolve any disputes well in advance of upcoming elections.. Signed by District Judge William M. Conley on 6/23/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc (mfh) (Entered: 06/23/2020)
Set Hearings: Zoom Status Conference set for 6/29/2020 at 10:00 AM before District Judge William M. Conley. (kwf) (Entered: 06/24/2020)
225 ** TEXT ONLY ORDER ** The parties shall provide the emails for the attorneys who will appear at the June 29, 2020, conference no later than noon tomorrow, June 26, 2020, by emailing them to Melissa_Hardin@wiwd.uscourts.gov. As previously noted, no more than two attorneys may appear for each party. Signed by

06/25/2020
06/25/2020 06/25/2020 06/26/2020 06/26/2020

District Judge William M. Conley on 6/25/2020. (kwf) (Entered: 06/25/2020)
226 ** TEXT ONLY ORDER ** The court has received a request from counsel for at least one amicus to participate in the June 29, 2020, video status conference. Normally, this would not be allowed for what is intended to be a scheduling conference, but in an abundance of caution, all amici for plaintiffs and defendants, respectively, may designate one attorney to participate for that side. That individual will be allowed into the zoom video conference by emailing the name to Melissa_Hardin@wiwd.uscourts.gov by noon tomorrow, June 26, 2020. All other counsel for amici may view (but not participate in) the proceedings via the court's live YouTube stream. https://www.youtube.com/channel/UCIvvwLooNn3UX_g9qHQP4bQ/live. Signed by District Judge William M. Conley on 6/25/2020. (kwf) (Entered: 06/25/2020)
227 Status Report by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen (Attachments: # 1 Exhibit A - April 7 Election Summary and Next Steps, # 2 Exhibit B - April 2020 Absentee Voting Report, # 3 Exhibit C - Mailer and Absentee Request Form) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Lenz, Daniel) (Entered: 06/25/2020)
228 Motion to Admit Cameron Thomas Norris Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758-2704097.) by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc. (Norris, Cameron) Modified on 6/26/2020. (lak) (Entered: 06/25/2020)
229 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen Filing Answer and Affirmative Defenses to Second Amended Complaint of Plaintiffs Democratic National Committee and Democratic Party of Wisconsin for Declaratory and Injunctive Relief. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc (Polich, Terrence) (Entered: 06/26/2020)
230 Joint Stipulation for Pending Motions Regarding Gear Plaintiffs' Complaint and First Amended Complaint by Plaintiffs Sylvia Gear,

06/29/2020 06/30/2020 06/30/2020 06/30/2020

Patricia Ginter, Malekeh K. Hakami, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. (Attachments: # 1 Exhibit Exhibit A - Proposed First Amended Complaint, # 2 Exhibit Exhibit B - Redline Version of Proposed First Amended Complaint) Associated Cases: 3:20-cv-00278-wmc, 3:20-cv-00249-wmc, 3:20-cv-00284-wmc (Sherman, Jonathan) (Entered: 06/26/2020)
231 Minute Entry for proceedings held before District Judge William M. Conley: Status Conference Hearing held on 6/29/2020 [00:54] (Court Reporter JD.) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00284-wmc (voc) (Entered: 06/29/2020)
232 Notice by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin Joint Stipulated Scheduling Order. Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Umberger, Michelle) (Entered: 06/30/2020)
233 Notice by Intervenor Wisconsin Legislature Answer And Affirmative Defenses to the Second Amended Complaint in DNC. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc (Tseytlin, Misha) (Entered: 06/30/2020)
234 ** TEXT ONLY ORDER ** Consistent with yesterday's hearing, the parties have submitted a written joint stipulated scheduling order (20-cv-249, dkt. # 232 ), which the court GRANTS along with the following additions: On or before noon on August 3, 2020, the parties are to designate a final, joint list of all witnesses to be called to give direct testimony or tendered for crossexamination at the August 5 hearing, and a proposed list of exhibits, as well as proposals to streamline the presentation of evidence and any remaining disputes. Further, at 3 p.m. on August 3, 2020, the court will hold a Zoom conference with the parties in advance of the hearing.

06/30/2020 07/02/2020

Finally, the court previously consolidated three election-related cases, Case Nos. 20-cv-249, 20-cv-278 and 20-cv-284, two of which remain open. The court will consolidate the two more recently-filed cases, Case Nos. 20-cv-340 and 20-cv-459, with these earlier cases. Going forward, the parties should file in Case No. 20-cv-249, and the filings will be automatically spread to the other dockets. Signed by District Judge William M. Conley on 6/30/2020. (kwf) (Entered: 06/30/2020)
235 ANSWER by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Strawbridge, Patrick) (Entered: 06/30/2020)
236 Brief in Reply by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe in Support of (14 in

07/02/2020 07/02/2020 07/02/2020 07/02/2020
07/02/2020

3:20-cv-00340-wmc) Motion to Dismiss, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340wmc, 3:20-cv-00459-wmc (Bach, Daniel) (Entered: 07/02/2020)
237 Brief in Reply by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate in Support of (14 in 3:20-cv00340-wmc) Motion to Dismiss, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Tseytlin, Misha) (Entered: 07/02/2020)
238 Motion for Attorney Fees by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera. Brief in Opposition due 7/23/2020. Brief in Reply due 8/3/2020. Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Pines, Lester) (Entered: 07/02/2020)
239 Brief in Support of (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278wmc, 176 in 3:20-cv-00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20cv-00459-wmc) Motion for Attorney Fees, by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera Associated Cases: 3:20-cv-00284-wmc, 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Pines, Lester) (Entered: 07/02/2020)
240 Declaration of Lester A Pines filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, (Attachments: # 1 Exhibit A - Billing) Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Pines, Lester) (Entered: 07/02/2020)
241 Declaration of Douglas Poland filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, (Attachments: # 1 Exhibit A - Billing) Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Pines, Lester) (Entered: 07/02/2020)

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242 Declaration of Richard Saks filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, (Attachments: # 1 Exhibit A - Billing) Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Pines, Lester) (Entered: 07/02/2020)
243 Declaration of Jeff Scott Olson filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, (Attachments: # 1 Exhibit A - CV) Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Pines, Lester) (Entered: 07/02/2020)
244 Declaration of Walter F Kelly filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, (Attachments: # 1 Exhibit A - CV) Associated Cases: 3:20-cv-00284-wmc, 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Pines, Lester) (Entered: 07/02/2020)
245 Declaration of Beth Kushner filed by Plaintiffs American Federation of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera re: (38 in 3:20-cv-00340-wmc, 173 in 3:20-cv-00278-wmc, 176 in 3:20-cv00284-wmc, 238 in 3:20-cv-00249-wmc, 62 in 3:20-cv-00459-wmc) Motion for Attorney Fees, Associated Cases: 3:20-cv-00284-wmc, 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Pines, Lester) (Entered: 07/02/2020)
246 Notice of Appearance filed by Rachel F. Homer for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Homer, Rachel) (Entered: 07/07/2020)

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247 Deposition of Meagan Wolfe taken on 7/3/2020. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
248 Joint Motion for Extension of Time To File Opposition To Lewis Plaintiffs' Motion for Attorney Fees by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin State Legislature. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 7/15/2020. Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/08/2020)
249 Deposition of Robert Spindell taken on 07/07/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Umberger, Michelle) Modified on 7/9/2020: 413 is a corrected deposition. (lak) (Entered: 07/08/2020)
Set/Reset Deadlines as to 186 Joint Motion for Extension of Time To File Opposition To Lewis Plaintiffs' Motion for Attorney Fees. Response due 7/10/2020. (186 in 3:20-cv-00284-wmc, 183 in 3:20-cv-00278-wmc, 248 in 3:20-cv-00249-wmc, 48 in 3:20-cv-00340-wmc, 72 in 3:20-cv-00459wmc) (jls) (Entered: 07/08/2020)
250 Notice of Appearance as Counsel for Amicus Curiae Common Cause Wisconsin filed by Dean Arthur Strang for Amicus Parties Common Cause Wisconsin, Common Cause Wisconsin, Common Cause Wisconsin, Common Cause Wisconsin, Common Cause Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Strang, Dean) (Entered: 07/08/2020)
251 Motion for Leave to File Brief as Amicus Curiae by Amicus Common Cause Wisconsin. (Attachments: # 1 Proposed Amicus Brief) Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Strang, Dean) (Entered: 07/08/2020)
252 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
253 Declaration of Muawia Albanaweh filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

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3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
254 Declaration of Heather Anderson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
255 Declaration of Pamela Baranowski filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
256 Declaration of Robert Baranowski filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
257 Declaration of Thomas Barnum filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
258 Declaration of Sandra Barrette filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
259 Declaration of Milton Bartelme filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)

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260 Declaration of Rosalie Beck filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
261 Declaration of Anthony Berg filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
262 Declaration of Judy Lynne Bergeson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
263 Declaration of Jeannie Berry-Matos filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
264 Declaration of Thomas Binder filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
265 Declaration of Amanda Birkett filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
266 Declaration of Debra Bjugstad filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

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wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
267 Declaration of Katherine Bogdanoff filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
268 Declaration of Heather Braatz filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
269 Declaration of Emily Briggs filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
270 Declaration of Pamela Brown filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
271 Declaration of Terry Burns filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
272 Declaration of Michael Cira filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary

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Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
273 Declaration of Jesse Cook filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
274 Declaration of Preston Copeland filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
275 Declaration of Phyllis Cox filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
276 Declaration of Joann Cross filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
277 Declaration of John Cross filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
278 Declaration of Rebecca Crowder filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

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3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
279 Declaration of Brian Dahmen filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
280 Declaration of Neil Daniels filed by Plaintiff Democratic Party of Wisconsin, Amicus Disability Rights Wisconsin, Inc. re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
281 Declaration of Brian Davis filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
282 Declaration of Emily Del Suarez filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
283 Declaration of Kimberly Diaz filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
284 Declaration of Linda Duffey filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)

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285 Declaration of Curtiss Engstrom filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
286 Declaration of William Erickson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
287 Declaration of Alida Evans filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
288 Declaration of Joyce Evans-Campbell filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
289 Declaration of Lori Fares filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
290 Declaration of Diane Fergot filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
291 Declaration of Sharon Fialkowski filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

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wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
292 Declaration of Mary Flynn filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
293 Declaration of Bridget Fogerty filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
294 Declaration of Sharon Gamm filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
295 Declaration of Dolores Garm filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
296 Declaration of Joanne Glasser filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
297 Declaration of Hannah Gleeson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary

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Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
298 Declaration of Carol Graham filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
299 Declaration of Peter Hable filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
300 Declaration of Jonathan Hajny filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
301 Declaration of Keith Halverson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
302 Declaration of Sharon Harris filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
303 Declaration of Michael Hartley filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020

3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
304 Declaration of Susan Heinz filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
305 Declaration of Laura Hill filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
306 Declaration of Casey Hines filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
307 Declaration of Kristin Holodak filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
308 Declaration of Brenda Howes filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
309 Declaration of Brenna Hughes filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)

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310 Declaration of Hannah Jake filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
311 Declaration of David Johnson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
312 Declaration of Sam Kast filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
313 Declaration of Kate Kohlbeck filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
314 Declaration of Roger Kordus filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
315 Declaration of Audra Kramer filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
316 Declaration of Paula LeBouton filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

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wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
317 Declaration of Roger LeBouton filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
318 Declaration of Julie Lemanski filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
319 Declaration of Nicholas Lemin filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
320 Declaration of Fay Liberty filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
321 Declaration of Eric Lind filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
322 Declaration of Hannah Litman filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary

07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020

Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
323 Declaration of Roger Luhn filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
324 Declaration of Leah Mann filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
325 Declaration of Leroy Maxfield filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
326 Declaration of Peter Michaud filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
327 Declaration of Elizabeth Miller filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
328 Declaration of Leif Mogren filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020

3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
329 Declaration of Juan Molinamorales filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
330 Declaration of Christy Moore filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
331 Declaration of Christy Mougin filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
332 Declaration of David Mouradian filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
333 Declaration of Joseph Newman filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
334 Declaration of Quintin Nunley filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)

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335 Declaration of William ONeill filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
336 Declaration of Dexter Peterson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
337 Declaration of Keri Petrie filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
338 Declaration of Laurie Pfiffner filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
339 Declaration of Sandra Pfister filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
340 Declaration of Rich Plachinski filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
341 Declaration of Shirley Powell filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

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wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
342 Declaration of Steven Reigle filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
343 Declaration of Nathaniel Rendall filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
344 Declaration of Patricia Renner filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
345 Declaration of Julia Richards filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
346 Declaration of Cameryne Roberts filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
347 Declaration of Alexander Rossi filed by Plaintiff Democratic Party of Wisconsin, Amicus Disability Rights Wisconsin, Inc. re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for

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Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
348 Declaration of Katherine Ruh filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
349 Declaration of Sue Rukamp filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
350 Declaration of Hannah Saxman filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
351 Declaration of Susan Scaffidi filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
352 Declaration of Paul Schinner filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
353 Declaration of Patricia Sherman-Cisler filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-

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00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
354 Declaration of Lynne Simpson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
355 Declaration of Marlene Sorenson filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
356 Declaration of Elsie Thomas filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
357 Declaration of Nick Thomas filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
358 Declaration of Stephan Thomas filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
359 Declaration of Elizabeth Trogdon filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)

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360 Declaration of Michael Tucker filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
361 Declaration of Eric Vanvught filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
362 Declaration of Nicole Waltemath filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
363 Declaration of Latoya Washington filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
364 Declaration of Gretchen Weiss filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
365 Declaration of Lisa Whiteman filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
366 Declaration of Sonya Williams filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

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wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
367 Declaration of Marquisha Wortham filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
368 Declaration of Delany Zimmer filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
369 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
370 Declaration of Dr. Megan Murray filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
371 Declaration of Matthew Bernhard filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)

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372 Declaration of Katherine Kohlbeck filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
373 Declaration of Diane Fergot filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
374 Declaration of Gary Fergot filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
375 Declaration of Bonibet Bahr Olsan filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
376 Declaration of Sheila Jozwik filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

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3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
377 Declaration of Gregg Jozwik filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
378 Declaration of Claire Whelan filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
379 Declaration of Sylvia Gear filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
380 Declaration of Debra Cronmiller filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
381 Declaration of Gary Mitchell filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary

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Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
382 Declaration of Maribeth Witzel-Behl filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
383 Declaration of Tara Coolidge filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
384 Declaration of Debra Salas filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
385 Declaration of Marshall Tutor filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
386 Declaration of Barbara Keresty filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307

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in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
387 Declaration of Christopher Wood filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (304 in 3:20-cv00278-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
388 Declaration of Denine Ackerbauer filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
389 Declaration of Marina Krejci filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
390 Declaration of Michele Harrell filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
391 Declaration of Halee Newby filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in

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3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
392 Declaration of Megan Lohrenz filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
393 Declaration of Cheryl Riley filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
394 Declaration of Katherine Thompson filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249-wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Poland, Douglas) (Entered: 07/08/2020)
395 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
396 Declaration of Blair Braun filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary

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Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/08/2020)
397 Brief in Support of (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, by Plaintiff Douglas West Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
398 Declaration of Angela West filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
399 Declaration of Charles Dennert filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
400 Declaration of Chrystal Edwards filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
401 Declaration of Michelle M. Umberger filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin with Exhibits 1-50 of 101 exhibits re: (187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 190 in 3:20-cv-00284-wmc, 52 in 3:20-cv-00340-wmc, 252 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1: Foley article in Medium, # 2 Exhibit 2: The Editorial Board article in New York Times, # 3 Exhibit 3: Litman article in The Atlantic, # 4 Exhibit 4: Cheney-Rice article in New York Mag, # 5 Exhibit 5: Kilgore article in New York Mag., # 6 Exhibit 6: Fetaw article in The Daily Best, # 7 Exhibit 7: Herndon article in New York Times, # 8 Exhibit 8: Ifill article in Slate,

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# 9 Exhibit 9: Bauer article in Wisconsin State Journal, # 10 Exhibit 10: Bowen article in The Guardian, # 11 Exhibit 11: Associated Press article, # 12 Exhibit 12: WEC's blog on Turnout, # 13 Exhibit 13: Pildes article in, # 14 Exhibit 14: WEC's 2020 Ballot Status, # 15 Exhibit 15: Budryk article in The Hill, # 16 Exhibit 16: Marley article in Milwaukee Journal Sentinel, # 17 Exhibit 17: Reilly article on Madison.com, # 18 Exhibit 18: Spicuzza article in Milwaukee Journal Sentinel, # 19 Exhibit 19: Jordan article on WTMJ-TV.com, # 20 Exhibit 20: Bush article on PBS.com, # 21 Exhibit 21: Fox 11 News article on Green Bay, # 22 Exhibit 22: Cestkowski article on WKOW, # 23 Exhibit 23: Shastri article in Milwaukee Journal Sentinel, # 24 Exhibit 24: Reid article in New York Times, # 25 Exhibit 25: Dirr article in Milwaukee Journal Sentinel, # 26 Exhibit 26: Corasaniti article in New York Times, # 27 Exhibit 27: Absentee Ballot Report, # 28 Exhibit 28: Corasaniti & Saul article in New York Times, # 29 Exhibit 29: Baldwin and Johnson Letter, # 30 Exhibit 30: Chen article in Milwaukee Journal Sentinel, # 31 Exhibit 31: Cheney article in Politico, # 32 Exhibit 32: Fandos article in New York Times, # 33 Exhibit 33: Bogage article in Washington Post, # 34 Exhibit 34: USPS Report, # 35 Exhibit 35: Kowles article on WSAW.com, # 36 Exhibit 36: WEC's Absentee Witness Signature Requirement, # 37 Exhibit 37: Parks article on NPR.org, # 38 Exhibit 38: WEC's April 7, 2020 Summary Memo, # 39 Exhibit 39: Gardner article in Washington Post, # 40 Exhibit 40: Wahlberg article in Wisconsin State Journal, # 41 Exhibit 41: Brennan Center article Waiting to Vote, # 42 Exhibit 42: Brennan Center report on Waiting to Vote, # 43 Exhibit 43: Brennan Center article on Milwaukee Turnout, # 44 Exhibit 44: Chen article in Milwaukee Journal Sentinel, # 45 Exhibit 45: Cotti article on SSRN.com, # 46 Exhibit 46: Ross article on WISN, # 47 Exhibit 47: Absentee Voting Data, # 48 Exhibit 48: Baker article in New York Times, # 49 Exhibit 49: White House Briefing, # 50 Exhibit 50: Dr. R. Bright Statement) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340wmc, 3:20-cv-00459-wmc (Umberger, Michelle) (Entered: 07/08/2020)
402 Declaration of Doug West filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan

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Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
403 Declaration of Jan Graveline filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
404 Declaration of Jean Ackerman filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
405 Declaration of John Jacobson filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
406 Declaration of Katie Rowe filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
407 Declaration of Kileigh Hannah filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-

07/08/2020 07/08/2020 07/08/2020 07/08/2020 07/08/2020

00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
408 Declaration of Kristopher Rowe filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
409 Declaration of Terron Edwards filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
410 Declaration of Todd Graveline filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
411 Declaration of William Laske filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
412 Declaration of Michelle M. Umberger filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin Exhibits 51-101 of 101 Exhibits re: (187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 190 in 3:20-cv-00284-wmc, 52 in 3:20-cv-00340-wmc, 252 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 51: Kissler article in Science, # 2 Exhibit 52: Brito article on CBS News, # 3 Exhibit 53: CDC Article, # 4 Exhibit 54: Mayo Clinic article, # 5 Exhibit 55: Perez letter to DNC Members,

# 6 Exhibit 56: Glauber article in Milwaukee Journal Sentinel, # 7 Exhibit 57: WEC'S Absentee Voting Report, # 8 Exhibit 58: Bauer article in Star Tribune, # 9 Exhibit 59: League of Women Voters Report, # 10 Exhibit 60: Stewart article in Mischiefs of Faction, # 11 Exhibit 61: Absentee voter spreadsheet, # 12 Exhibit 62: WEC's Ballot Report, # 13 Exhibit 63: Wis. Dept. Health Summary Data, # 14 Exhibit 64: Branswell article in Stat News, # 15 Exhibit 65: WPR article on Stay at Home, # 16 Exhibit 66: Dane County Emergency Order, # 17 Exhibit 67: Milwaukee Order, # 18 Exhibit 68: Education Forward, # 19 Exhibit 69: Higgins-Dunn article on CNBC, # 20 Exhibit 70: Defendants' Response to DNC Plaintiffs' First Set of Interrogatories, # 21 Exhibit 71: Meagan, Wolfe Transcript, # 22 Exhibit 72: Reimann article in Forbes, # 23 Exhibit 23: Shastri article in Milwaukee Journal Sentinel, # 24 Exhibit 74: DNC Press Release, # 25 Exhibit 75: Milwaukee Press Release, # 26 Exhibit 76: Dane County Heath Servs. article, # 27 Exhibit 77: Mills article in Healthline, # 28 Exhibit 78: Reuters Graphics, # 29 Exhibit 79: WPR article on Dane County, # 30 Exhibit 80: Pyrek article in La Crosse Tribune, # 31 Exhibit 81: DMV form MV3012, # 32 Exhibit 82: Corasaniti & Saul in New York Times, # 33 Exhibit 83: Wisconsin Demographics, # 34 Exhibit 84: WEC's Absentee Witness Signature, # 35 Exhibit 85: WEC's Summary Report, # 36 Exhibit 86: Spindell Email and Advertisement, # 37 Exhibit 87: Marley article in Milwaukee Journal Sentinel, # 38 Exhibit 88: Skipped, # 39 Exhibit 89: Dean & Kaufman CNN article, # 40 Exhibit 90: Smith article in WSJ, # 41 Exhibit 91: McCarthy & Jameel article in ProPublica, # 42 Exhibit 92: Meija article in LA Times, # 43 Exhibit 93: National Association of Letter Carriers Press Release, # 44 Exhibit 94; Absentee Statistics, # 45 Exhibit 95: Schechter Twitter Posts, # 46 Exhibit 96: Braverman article in Alive, # 47 Exhibit 97: Niesse and Brasch article in the Atlanta Journal Constitution, # 48 Exhibit 98: Pa. Order, # 49 Exhibit 99; Cuomo Press Release,

07/08/2020 07/08/2020
07/08/2020

# 50 Exhibit 100: 2020 Presidential Debates, # 51 Exhibit 101: Fowler article in GPB News) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340wmc, 3:20-cv-00459-wmc (Umberger, Michelle) (Entered: 07/08/2020)
413 Corrected Deposition of Robert Spindell taken on 07/07/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Umberger, Michelle) (Entered: 07/08/2020)
414 Declaration of Reyna S. Walters-Morgan filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Devaney, John) (Entered: 07/08/2020)
415 Declaration of Joseph S. Goode filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit A - Election Data, # 2 Exhibit B - Article In Person Voting, # 3 Exhibit C - John Hopkins Map, # 4 Exhibit D - John Hopkins Map, # 5 Exhibit E - Evers Statement, # 6 Exhibit F - Executive Order #72, # 7 Exhibit G - Emergency Order #12, # 8 Exhibit H - Emergency Order #28, # 9 Exhibit I - Considerations for Community, # 10 Exhibit J - Safer at Home, # 11 Exhibit K - Mitigation Strategies, # 12 Exhibit L - Coronavirus Risk, # 13 Exhibit M - Risk Level, # 14 Exhibit N - Intensity of Outbreak, # 15 Exhibit O - Covid-19 RO, # 16 Exhibit P - Covid-19 Rate, # 17 Exhibit Q - Covid-19 Reproduction, # 18 Exhibit R - Higher Rate Deaths, # 19 Exhibit S - Communities, # 20 Exhibit T - LA Racial Breakdown, # 21 Exhibit U - Milwaukee Cases, # 22 Exhibit V - Covid-19, # 23 Exhibit W - A Perfect Storm, # 24 Exhibit X - County Data,

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# 25 Exhibit Y - African Americans in WI, # 26 Exhibit Z - Polling Locations, # 27 Exhibit AA - Election Planning, # 28 Exhibit BB - Voting in a Pandemic, # 29 Exhibit CC - Cases by County, # 30 Exhibit DD - Docket #227, # 31 Exhibit EE - Wolfe Depo, # 32 Exhibit FF - Statement by President, # 33 Exhibit GG - Voter Turnout, # 34 Exhibit HH - Voters with Disabilities, # 35 Exhibit II - People at Risk, # 36 Exhibit JJ - Vote by Mail, # 37 Exhibit KK - Cal. Executive Order, # 38 Exhibit LL - Stanford Article, # 39 Exhibit MM - Vote by Mail, # 40 Exhibit NN - Effect of Voter ID, # 41 Exhibit OO -Diagnosed with Covid, # 42 Exhibit PP - National Guard) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
416 Declaration of David Kronig filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
417 Proposed Findings of Fact filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (219 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/08/2020)
418 Declaration of Barry C. Burden filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
419 Proposed Findings of Fact filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340-

07/08/2020 07/08/2020 07/08/2020 07/08/2020

wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc, 190 in 3:20-cv-00284-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
420 Brief in Support of (52 in 3:20-cv-00340-wmc, 187 in 3:20-cv-00278wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc, 190 in 3:20cv-00284-wmc) Motion for Preliminary Injunction, (Renewed) by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/08/2020)
421 Brief in Support of (369 in 3:20-cv-00249-wmc, 193 in 3:20-cv-00459wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/08/2020)
422 Proposed Findings of Fact filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (369 in 3:20-cv-00249wmc, 193 in 3:20-cv-00459-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Gear Plaintiffs' Proposed Findings of Fact, 20-cv278 Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/08/2020)
423 Declaration of Jon Sherman filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (193 in 3:20-cv-00459wmc, 369 in 3:20-cv-00249-wmc, 304 in 3:20-cv-00278-wmc, 307 in 3:20-cv-00284-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit Wisconsin Elections Commission, April 7, 2020 Absentee Voting Report, # 2 Exhibit Transcript for the July 3, 2020 deposition of Meagan Wolfe, # 3 Exhibit Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), # 4 Exhibit Mitch Smith et al, Coronavirus in the U.S.: Latest Map and

Case Count, N.Y. TIMES, # 5 Exhibit Wisconsin Department of Health Services, COVID-19: Wisconsin Summary Data, # 6 Exhibit CDC's Coronavirus Disease 2019 (COVID-19), People of Any Age with Underlying Medical Conditions, # 7 Exhibit Coronavirus 2019 (COVID-19): How to Prepare, CTRS. FOR DISEASE CONTROL & PREVENTION, # 8 Exhibit Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Mar. 25, 2020), # 9 Exhibit H. Rept. 116-420, Authorizing Remote Voting by Proxy in the House of Representatives and Providing for Official Remote Committee Proceedings During a Public Health Emergency Due to a Novel Coronavirus, and For Other Purposes, # 10 Exhibit House Committee on Energy and Commerce, Oversight of the Trump Administration's Response to the COVID-19 Pandemic, 3:54:02, YOUTUBE, # 11 Exhibit Wisconsin Elections Commission's Absentee Ballot Report April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), # 12 Exhibit bsentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 7, 2020 at 7:30 a.m.), # 13 Exhibit Letter from Senators Tammy Baldwin and Ron Johnson to U.S. Postal Service Inspector General (Apr. 9, 2020), # 14 Exhibit Wisconsin Elections Commission, Canvass Results for 2020 Spring Election and Presidential Preference Vote, # 15 Exhibit Wisconsin Elections Commission's Voter Registration Statistics as of July 1, 2020, # 16 Exhibit Wisconsin Elections Commission's Canvass Results for the 2016 November general election, # 17 Exhibit isconsin Elections Commission's Meeting Agenda, which contains the Memorandum re: Voter Mailing Proposal with the enclosed mailer (June 10, 2020), # 18 Exhibit Wisconsin Elections Commission's Notice of Open Meeting, Wisconsin Elections Commission Special Teleconference-Only Meeting (May 27, 2020), # 19 Exhibit Wisconsin Elections Commission, MyVote Wisconsin: A Guide to the MyVote Wisconsin Website for Voters and Clerks, # 20 Exhibit Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, # 21 Exhibit Wisconsin Elections Commission, Clerk Instructions for Emailing and Faxing Ballots to Mail-in Absentee Voters, # 22 Exhibit Wisconsin Elections Commission's Form EL-131, the Wisconsin Voter Registration Application, # 23 Exhibit Wisconsin Elections Commission's Uniform Instructions for Absentee Voting,

07/09/2020 07/10/2020
07/10/2020

# 24 Exhibit Federal Write-in Absentee Ballot, # 25 Exhibit Federal Postcard Application,, # 26 Exhibit Wisconsin Elections Commission's Form EL-122, Standard Absentee Ballot Certificate, WIS. ELECTIONS COMM'N,, # 27 Exhibit U.S. Census Bureau's 2018 American Community Survey 5Year Estimates, Table S2501, Occupancy Characteristics, # 28 Exhibit Wisconsin Elections Commission, Absentee Witness Signature Requirement Guidance (Mar. 29, 2020), # 29 Exhibit If You Are Immunocompromised, Protect Yourself From COVID-19, CDC, # 30 Exhibit Coronavirus Disease 2019 (COVID-19): People of Any Age with Underlying Medical Conditions, CDC, # 31 Exhibit High Blood Pressure Symptoms and Causes, CDC) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 07/09/2020)
424 Transcript of Status Conference, held 6/29/2020 by Zoom videconference before District Judge William M. Conley. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00284-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/09/2020)
425 Emergency Motion for Hearing on Discovery Issues by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. Response due 7/17/2020. (Attachments: # 1 Exhibit Democratic National Committee and Democratic Party of WI Requests to WEC Defendants, # 2 Exhibit Swenson Plaintiffs' Requests to WEC Defendants, # 3 Exhibit Edwards Plaintiffs' Discovery Requests to WEC Defendants, # 4 Exhibit Gear Plaintiffs' Requests to WEC Defendants) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 07/10/2020)
** TEXT ONLY ORDER ** Consistent with the request received this afternoon from counsel for the WEC defendants ('249 dkt. #425), the court will hold a status conference by telephone regarding pending and future discovery requests directed to those defendants on Monday, July 13, 2020, at 11:00 a.m. Counsel for the WEC defendants shall initiate the conference call, the court may be reached at (608) 264-5087. Signed by District Judge William M. Conley

07/12/2020
07/12/2020 07/13/2020 07/13/2020 07/14/2020

on 07/10/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (mfh) (Entered: 07/10/2020)
426 Brief in Opposition by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (360 in 3:20-cv-00278-wmc, 425 in 3:20-cv-00249-wmc, 225 in 3:20-cv-00340-wmc, 249 in 3:20-cv-00459wmc) Motion for Hearing,,, filed by Dean Knudson, Marge Bostelmann, Julie M. Glancey, Mark L. Thomsen, Anne S. Jacobs, Robert F. Spindell, Jr., Meagan Wolfe, Ann S. Jacobs (Attachments: # 1 Exhibit Ex. A - Gear Plaintiffs' Revised First Set of Requests for Production to the WEC Defendants) Associated Cases: 3:20-cv-00278wmc, 3:20-cv-00249-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/12/2020)
427 Brief in Reply by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West in Support of (425 in 3:20cv-00249-wmc, 360 in 3:20-cv-00278-wmc, 225 in 3:20-cv-00340-wmc, 249 in 3:20-cv-00459-wmc) Motion for Hearing,,, Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goode, Joseph) (Entered: 07/12/2020)
428 Stipulation for Swenson Discovery Dispute by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Associated Cases: 3:20-cv-00459wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc (Lens, Molly) (Entered: 07/13/2020)
429 ORDER granting (428 in 3:20-cv-00249-wmc, 363 in 3:20-cv-00278wmc, 228 in 3:20-cv-00340-wmc, 252 in 3:20-cv-00459-wmc) Stipulation for Swenson Discovery Dispute. Signed by District Judge William M. Conley on 7/13/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/13/2020)
430 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe Answer to Plaintiffs' First Amended Complaint [Dkt. No. 37]. Associated Cases:

07/14/2020 07/15/2020 07/16/2020 07/20/2020 07/20/2020
07/20/2020
07/20/2020

3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Polich, Terrence) (Entered: 07/14/2020)
431 ANSWER to Amended Complaint by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Strawbridge, Patrick) (Entered: 07/14/2020)
432 Notice of Appearance filed by Katarzyna Anna Hebda for Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/15/2020)
433 Notice of Supplemental Authority by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin . (Attachments: # 1 Exhibit A - USPS Timeliness of Ballot Mail Report) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Devaney, John) (Entered: 07/16/2020)
434 Notice of Withdrawal of Counsel by Jamila Benkato re: Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Benkato, Jamila) (Entered: 07/20/2020)
435 Motion to Admit Kurt C. Brown Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758-2717703.) by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Brown, Kurt) (Entered: 07/20/2020)
436 Motion to Admit Katherine Takakjian Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758-2717715.) by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Takakjian, Katherine) (Entered: 07/20/2020)
437 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe re: (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 07/20/2020)

07/20/2020 07/20/2020 07/20/2020 07/20/2020 07/20/2020
07/20/2020 07/20/2020

438 Second Deposition of Meagan Wolfe taken on 07/16/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Dutton, Sean) (Entered: 07/20/2020)
439 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe re: (40 in 3:20-cv-00459wmc) Motion for Preliminary Injunction Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Lenz, Daniel) (Entered: 07/20/2020)
440 Deposition of Dr. Megan Murray taken on 07/16/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Dutton, Sean) (Entered: 07/20/2020)
441 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 07/20/2020)
442 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe Defendants' Answer to Gear, et al. v. Bostelmann, et al., Case No. 20-cv-278, Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Polich, Terrence) (Entered: 07/20/2020)
443 Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe re: (304 in 3:20-cv-00278wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Lenz, Daniel) (Entered: 07/20/2020)
444 Brief in Opposition by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe re: (252 in 3:20cv-00249-wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin, (304 in 3:20-cv00278-wmc) Motion for Preliminary Injunction, filed by Claire Whelan, Katherine Kohlbeck, Diane Fergot, Wisconsin Alliance for Retired Americans, Sheila Jozwik, Bonibet Bahr Olsan, League of Women Voters

07/20/2020 07/20/2020

of Wisconsin, Sylvia Gear, Gary Fergot, Gregg Jozwik, (195 in 3:20-cv00340-wmc) Motion for Preliminary Injunction, filed by Katie Rowe, Terron Edwards, Jean Ackerman, Angela West, Catherine Cooper, William Laske, Chrystal Edwards, Kileigh Hannah, Kristopher Rowe, Todd Graveline, John Jacobson, Douglas West, Jan Graveline, Charles Dennert, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction filed by Black Leaders Organizing for Communities, Disability Rights Wisconsin, Jill Swenson, Melody McCurtis, Maria Nelson Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 07/20/2020)
445 Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (304 in 3:20-cv00278-wmc) Motion for Preliminary Injunction, (40 in 3:20-cv-00459wmc) Motion for Preliminary Injunction Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Lenz, Daniel) (Entered: 07/20/2020)
446 Declaration of Meagan Wolfe filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Wisconsin Elections Commission, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe, Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe re: (52 in 3:20-cv-00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, (193 in 3:20-cv-00459-wmc, 369 in 3:20-cv00249-wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (395 in 3:20-cv-00249-wmc, 219 in 3:20-cv-00459-wmc, 330 in 3:20-cv-00278-wmc, 195 in 3:20-cv-00340wmc) Motion for Preliminary Injunction, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction (Attachments: # 1 Exhibit A - Status Report, # 2 Exhibit B - Appendix A - Statutory Duties of WI Elections Commission, # 3 Exhibit C - April 7 Election Summary and Next Steps, # 4 Exhibit D - April 2020 Absentee Voting Report,

07/20/2020

# 5 Exhibit E - March 29, 2020 guidance memorandum, # 6 Exhibit F - Absentee Voting Data 2016-2020, # 7 Exhibit G - WEC news release dated April 6, 2020, # 8 Exhibit H - WEC news release dated March 13, 2020, # 9 Exhibit I - WEC news release dated March 23, 2020, # 10 Exhibit J - April 11, 2020 guidance memorandum, # 11 Exhibit K - USPS Email, # 12 Exhibit L - WEC letter to USPS) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 07/20/2020)
447 Declaration of Misha Tseytlin filed by Intervenor Wisconsin State Legislature re: (193 in 3:20-cv-00459-wmc, 369 in 3:20-cv-00249-wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459wmc, 52 in 3:20-cv-00340-wmc, 252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, (395 in 3:20-cv-00249-wmc, 219 in 3:20-cv00459-wmc, 330 in 3:20-cv-00278-wmc, 195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27,

07/20/2020 07/20/2020 07/20/2020 07/20/2020

# 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
448 Notice by Intervenor Wisconsin Legislature Intervenor Defendant's Motion to Dismiss Gear v. Knudson, Case No. 20-cv-278, Plaintiffs' First Amended Complaint. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
449 Notice by Intervenor Wisconsin Legislature Intervenor Defendant's Motion to Dismiss Swenson v. Bostelmann, Case No. 20-cv-459, Plaintiffs' First Amended Complaint. Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
450 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Joint Response To DNC Plaintiffs Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
451 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction Joint Response To Swenson Plaintiffs Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc,

07/20/2020 07/20/2020 07/20/2020
07/20/2020

3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
452 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, Joint Response To Gear Plaintiffs Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
453 Response to Proposed Findings of Fact filed by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Joint Response To Edwards Plaintiffs Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
454 Brief in Opposition by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Wisconsin Legislature re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin, (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, filed by Claire Whelan, Katherine Kohlbeck, Diane Fergot, Wisconsin Alliance for Retired Americans, Sheila Jozwik, Bonibet Bahr Olsan, League of Women Voters of Wisconsin, Sylvia Gear, Gary Fergot, Gregg Jozwik, (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, filed by Katie Rowe, Terron Edwards, Jean Ackerman, Angela West, Catherine Cooper, William Laske, Chrystal Edwards, Kileigh Hannah, Kristopher Rowe, Todd Graveline, John Jacobson, Douglas West, Jan Graveline, Charles Dennert, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction filed by Black Leaders Organizing for Communities, Disability Rights Wisconsin, Jill Swenson, Melody McCurtis, Maria Nelson Wisconsin Legislature And Legislative Defendants' Omnibus Brief In Opposition To Preliminary Injunction Motions And In Support Of Motions To Dismiss Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/20/2020)
455 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (252 in 3:20-cv-00249wmc) Motion for Preliminary Injunction, filed by Democratic National Committee, Democratic Party of Wisconsin, (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, filed by Claire Whelan, Katherine Kohlbeck, Diane Fergot, Wisconsin Alliance for Retired Americans, Sheila Jozwik, Bonibet Bahr Olsan, League of Women Voters of Wisconsin, Sylvia Gear, Gary Fergot, Gregg Jozwik, (195 in 3:20-cv-

07/21/2020 07/21/2020 07/21/2020

00340-wmc) Motion for Preliminary Injunction, filed by Katie Rowe, Terron Edwards, Jean Ackerman, Angela West, Catherine Cooper, William Laske, Chrystal Edwards, Kileigh Hannah, Kristopher Rowe, Todd Graveline, John Jacobson, Douglas West, Jan Graveline, Charles Dennert, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction filed by Black Leaders Organizing for Communities, Disability Rights Wisconsin, Jill Swenson, Melody McCurtis, Maria Nelson Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Strawbridge, Patrick) (Entered: 07/20/2020)
456 ** TEXT ONLY ORDER ** ORDER granting (435) Motion to Admit Kurt C. Brown Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 7/21/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/21/2020)
457 ** TEXT ONLY ORDER ** ORDER granting (436) Motion to Admit Katherine Takakjian Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 7/21/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/21/2020)
458 Corrected Declaration of Misha Tseytlin filed by Intervenor Wisconsin State Legislature re: (193 in 3:20-cv-00459-wmc, 369 in 3:20-cv-00249wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459wmc, 52 in 3:20-cv-00340-wmc, 252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, (395 in 3:20-cv-00249-wmc, 219 in 3:20-cv00459-wmc, 330 in 3:20-cv-00278-wmc, 195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction (Attachments: # 1 Exhibit MyVote Wis. - Proof of Residence, # 2 Exhibit Wis. Elections Comm'n - Voter Registration Guide, # 3 Exhibit Wis. Elections Comm'n - I Want To Vote Absentee, # 4 Exhibit Wis. Elections Comm'n - Absentee Ballots, # 5 Exhibit Wis. Elections Comm'n - I'm A Military Voter, # 6 Exhibit Wolfe Memo - Absentee Witness Signature Requirement Guidance, # 7 Exhibit Wolfe Memo - Absentee Ballot Return Options - COVID-19, # 8 Exhibit Wis. Elections Comm'n - Uniform Instructions For Wisconsin Absentee Voters, # 9 Exhibit Wis. Elections Comm'n - Election Day Manual For Wisconsin Election Officials, # 10 Exhibit MyVote Wis. - Photo ID Required, # 11 Exhibit Wolfe Memo - Curbside Voting, Drive Through Voting And Outdoor Polling Places, # 12 Exhibit Wolfe Memo - Guidance for Indefinitely Confined Voters, # 13 Exhibit Wis. Elections Comm'n - Curbside Voting,

# 14 Exhibit Wolfe Memo - Hospitalized Electors And Public Health Guidance, # 15 Exhibit Pildes & Stewart - Washington Post Article, # 16 Exhibit Wis. Elections Comm'n - Canvass Results for 2020 Spring Election & Presidential Preference Vote, # 17 Exhibit Wis. Elections Comm'n - Unofficial Spring Election Turnout, # 18 Exhibit Leung et al. - No Detectable Surge in SARS -CoV-2 Transmission due to Wisconsin Election, # 19 Exhibit Berry et al. - Wisconsin April 2020 Election Not Associated With Increase In COVID-19, # 20 Exhibit Wahlberg - Wisconsin State Journal Article, # 21 Exhibit Wis. Elections Comm'n - April 18, 2020 Special Teleconference Meeting Notes, # 22 Exhibit City of Madison - CORRECTED Polling Place Listing for April 7, # 23 Exhibit Wis. Dep't of Health Servs. - Emergency Order #12, # 24 Exhibit Wis. Dep't of Health Servs. - Withdrawal of Scope Statement SS 040-20, # 25 Exhibit Wis. Elections Comm'n - Absentee Ballot Report - May 12, 2020 Special Election for Congressional District 7, # 26 Exhibit Wis. Elections Comm'n - May 1, 2020 Voter Registration Statistics, # 27 Exhibit Wis. Elections Comm'n - More Than 69,000 Absentee Ballots Already Returned for May 12 Special Election, # 28 Exhibit Wis. Elections Comm'n - Update on Commission Actions 5/27- COVID-19, # 29 Exhibit Wis. Elections Comm'n - WEC Prepares For Fall Elections By Approving Block Grants To Municipalities and Mailing to Voters COVID-19, # 30 Exhibit Allison Dirr - Milwaukee Journal Sentinel Article, # 31 Exhibit Dirr & Spicuzza - Milwaukee Journal Sentinel Article, # 32 Exhibit @WisDems - July 6, 2020 Tweet, # 33 Exhibit Krumholz - Fox 11 News Article, # 34 Exhibit Sylvia Gear's Responses to the Legislature's Interrogatories, # 35 Exhibit Claire Whelan's Responses to the Legislature's Interrogatories, # 36 Exhibit Bonibet Bahr Olsan's Responses to the Legislature's Interrogatories, # 37 Exhibit Jill Swenson's Responses to the Legislature's Interrogatories, # 38 Exhibit Gary Fergot's Responses to the Legislature's Interrogatories, # 39 Exhibit Melody McCurtis's Responses to the Legislature's Interrogatories, # 40 Exhibit Maria Nelson's Responses to the Legislature's Interrogatories, # 41 Exhibit Tex. Dep't of State Health Servs. - DHS COVID-19 Dashboard, # 42 Exhibit Wis. Dep't of Health Servs. - COVID-19 Activity Level By

07/22/2020 07/23/2020 07/23/2020 07/24/2020 07/26/2020
07/26/2020

Region & County, # 43 Exhibit IHME - COVID-19 Projections: Wisconsin, # 44 Exhibit Carter-Baker Comm'n - Building Confidence in U.S. Elections (2005), # 45 Exhibit Wis. Elections Comm'n - Absentee Witness Signature Requirement Guidance COVID-19, # 46 Exhibit Wis. Dep't of Transp. - Wisconsin ID Card for Voting Purposes - Petition Process, # 47 Exhibit MyVote Wis. - My Municipal Clerk, # 48 Exhibit Wolfe Memo - Update Regarding COVID-19 Election Planning) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/21/2020)
459 Notice of Appearance filed by Sara Chimene-Weiss for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Chimene-Weiss, Sara) (Entered: 07/22/2020)
460 Motion to Admit Bryan Weir Pro Hac Vice ( Pro Hac Vice fee $ 100 receipt number 0758-2719601.) by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Motions referred to Magistrate Judge Stephen L. Crocker. Associated Cases: 3:20-cv-00459wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc. (Weir, Bryan) Modified on 7/23/2020. (lak) (Entered: 07/23/2020)
461 ** TEXT ONLY ORDER ** ORDER granting Motion to Admit Bryan Weir Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 7/23/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc. (lak) (Entered: 07/23/2020)
462 STIPULATION of Dismissal as to Plaintiffs Catherine Cooper and Charles Dennert Associated Cases: 3:20-cv-00340-wmc, 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/24/2020)
463 Emergency Motion to Compel Production of Documents and a Rule 30(b)(6) Deposition Against Intervening Defendants Republican National Committee and Republican Party of Wisconsin by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 8/3/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Manes, Jonathan) (Entered: 07/26/2020)
464 Declaration of Jonathan Manes filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (286 in 3:20-cv-00459-wmc)

07/27/2020 07/27/2020

Motion to Compel,, (Attachments: # 1 Exhibit A - Plaintiffs' First Set of Requests for Production of Documents to Intervening Defendants RNC and RPW, # 2 Exhibit B - Plaintiffs' Notice of Rule 30(b)(6) Deposition of Intervening Defendant Republican National Committee, # 3 Exhibit C - Plaintiffs' Notice of Rule 30(b)(6) Deposition of Intervening Defendant Republican Party of Wisconsin, # 4 Exhibit D - Plaintiffs' First Set of Interrogatories to Intervening Defendants RNC and RPW, # 5 Exhibit E - RNC and RPW Objections and Responses to Swenson Plaintiffs' First Set of Requests for Production of Documents, # 6 Exhibit F - RNC and RPW Objections and Responses to Swenson Plaintiffs' First Set of Interrogatories, # 7 Exhibit G - Email of July 22, 2020, from Swenson Plaintiffs to RNC/RPW, # 8 Exhibit H - Email of July 24, 2020, 6:10am, from RNC/RPW to Swenson Plaintiffs, # 9 Exhibit I - Email of July 24, 2020, 9:06am, from Swenson Plaintiffs to RNC/RPW, # 10 Exhibit J - Email of July 24, 2020, 11:30am, from RNC/RPW to Swenson Plaintiffs, # 11 Exhibit K - Email of July 25, 2020, Swenson Plaintiffs to RNC/RPW, # 12 Exhibit L - Email of July 26, 2020 from RNC/RPW to Swenson Plaintiffs, # 13 Exhibit M - Email of July 26, 2020 from Swenson Plaintiffs to RNC/RPW) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Manes, Jonathan) (Entered: 07/27/2020)
465 Brief in Opposition by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin re: (463 in 3:20-cv-00249wmc, 397 in 3:20-cv-00278-wmc, 262 in 3:20-cv-00340-wmc, 286 in 3:20-cv-00459-wmc) Motion to Compel,, filed by Black Leaders Organizing for Communities, Disability Rights Wisconsin, Jill Swenson, Melody McCurtis, Maria Nelson Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Strawbridge, Patrick) (Entered: 07/27/2020)
Set/Reset Deadlines as to 286 Emergency Motion to Compel Production of Documents and a Rule 30(b)(6) Deposition Against Intervening Defendants Republican National Committee and Republican Party of Wisconsin. (463 in 3:20-cv-00249-wmc, 397 in 3:20-cv-00278-wmc, 262 in 3:20-cv-00340-wmc) Telephone Motion Hearing set for 7/27/2020 at 02:30 PM before Judge William M. Conley. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264-5087. Associated Cases: 3:20-cv-00459-wmc, 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc (jls) (Entered: 07/27/2020)

07/27/2020 07/27/2020 07/27/2020
07/27/2020

466 Supplemental Declaration of Jonathan Manes filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (286 in 3:20-cv-00459wmc) Motion to Compel,, (Attachments: # 1 Exhibit 1 - Documents disclosed by Defendant WEC concerning RPW, # 2 Exhibit 2 - Documents disclosed by Defendant WEC concerning RPW) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20cv-00340-wmc, 3:20-cv-00459-wmc (Manes, Jonathan) (Entered: 07/27/2020)
Minute Entry for proceedings held before District Judge William M. Conley: Telephone Motion Hearing held on 7/27/2020 re (262 in 3:20-cv00340-wmc) Emergency Motion to Compel Production of Documents and a Rule 30(b)(6) Deposition Against Intervening Defendants Republican National Committee and Republican Party of Wisconsin filed by Black Leaders Organizing for Communities, Disability Rights Wisconsin, Jill Swenson, Melody McCurtis, Maria Nelson [:30] Associated Cases: 3:20cv-00459-wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc (mfh) (Entered: 07/27/2020)
467 ** TEXT ONLY ORDER ** The court held a telephonic hearing today on plaintiffs' motion to compel production of documents and a Rule 30(b)(6) deposition against intervening defendants the Republican National Committee and the Republican Party of Wisconsin (dkt. 286 in 3:20-cv-00459-wmc), at which the parties appeared by counsel. As explained on the record, the court GRANTED IN PART AND DENIED IN PART the motion. Specifically, the court granted the motion as to plaintiffs' request for the production of documents and responding to interrogatories (reframed as requests for admissions) but limited the scope of the interrogatories and documents to those pertinent to experiences in the State of Wisconsin. Answers to interrogatories 1-8 (reframed as requests for admissions) are due by noon on Tuesday, July 28, 2020; responsive documents (i.e., non-privileged documents that support or contradict each of the 8 narrowed requests to admit in the possession of the Republican Party of Wisconsin) are to be produced by Wednesday, July 29, 2020. The court also granted plaintiffs' request for a 30(b)(6) deposition, although limited in scope to designees for the 8 topics in the narrowed requests to admit and in time to a half day (or half hour per topic). The deposition should be completed on or before Friday, July 31, 2020. The court remains available to resolve any further disputes. Signed by District Judge William M. Conley on 7/27/2020. Associated Cases: 3:20-cv-00459-wmc, 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc. (arw) (Entered: 07/27/2020)
468 Deposition of Jill Swenson taken on July 21, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)

07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020
07/28/2020 07/28/2020

469 Deposition of Patrick Remington, MD, MPH taken on July 22, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)
470 Deposition of Neil Albrecht taken on July 23, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)
471 Deposition of Kevin J. Kennedy taken on July 24, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)
472 Deposition of Quintin Nunley taken on July 27, 2020Rough Transcript. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)
473 Deposition of Elizabeth Trogdon taken on July 27, 2020Rough Transcript. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/27/2020)
474 Motion for Leave to File Supplemental Brief in Opposition to Plaintiffs' Motions for Preliminary Injunction by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Wisconsin Legislature. (Attachments: # 1 Exhibit Wisconsin Legislature and Legislative Defendants' Proposed Supplemental Brief in Opposition to Plaintiffs' Motions for Preliminary Injunction) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 07/27/2020)
475 Deposition of Ann Jacobs taken on July 17, 2020. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goodman, Rachel) (Entered: 07/28/2020)
476 ** TEXT ONLY ORDER ** Before the court is the Wisconsin Legislature's motion for leave to file a supplemental opposition brief to plaintiffs' motions for preliminary injunction in these consolidated cases. ('249 dkt. #474; '278 dkt. #408; '340 dkt. #274; '459 dkt. #297.) The Wisconsin Legislature represents that plaintiffs do not oppose this motion. As such, the motion is GRANTED as unopposed. The court accepts the proposed supplemental brief filed as an attachment to the motion. Plaintiffs may respond to the arguments in this supplemental brief in their reply briefs due this Friday, July 31, 2020. Signed by District Judge William M. Conley on 7/28/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/28/2020)

07/28/2020
07/29/2020 07/29/2020 07/29/2020 07/30/2020 07/30/2020
07/30/2020

477 ** TEXT ONLY ORDER ** No later than July 30, 2020, the parties shall provide the email addresses for the attorneys who will appear at the August 3, 2020, zoom conference by emailing them to Melissa_Hardin@wiwd.uscourts.gov. No more than two attorneys may appear for each party, and the parties in interest are strongly encouraged to designate lead counsel for purposes of the hearing. Signed by District Judge William M. Conley on 7/28/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 07/28/2020)
478 Corrected Deposition of Quintin Nunley taken on July 27, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/29/2020)
479 Corrected Deposition of Elizabeth Trogdon taken on July 27, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Hebda, Katarzyna) (Entered: 07/29/2020)
480 Deposition of Kris Teske taken on July 28, 2020. Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goodman, Rachel) (Entered: 07/29/2020)
481 Stipulated Motion for Protective Order (Stipulated Motion to Enter Protective Order) by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Attachments: # 1 Proposed Protective Order) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lens, Molly) (Entered: 07/30/2020)
482 Deposition of Dr. Megan Murray taken on July 16, 2020. (Attachments: # 1 Exhibit Murray Deposition Exhibit 1 - Declaration of Dr. Megan Murray, # 2 Exhibit Murray Deposition Exhibit 2 - Cotti paper version 1, # 3 Exhibit Murray Deposition Exhibit 3 - Cotti paper version 2, # 4 Exhibit Murray Deposition Exhibit 4 - Open Letter to the World Health Organization, # 5 Exhibit Murray Deposition Exhibit 5 - MacIntyre review, # 6 Exhibit Murray Deposition Exhibit 6 - The Precautionary Principle and Public Health, # 7 Exhibit Murray Deposition Exhibit 7 - CDC Considerations for Election Polling Locations and Voters) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/30/2020)
483 Deposition of Robert Kehoe taken on July 28, 2020. (Attachments: # 1 Exhibit Kehoe Deposition Exhibit 1, # 2 Exhibit Kehoe Deposition Exhibit 2,

07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020

# 3 Exhibit Kehoe Deposition Exhibit 3, # 4 Exhibit Kehoe Deposition Exhibit 4, # 5 Exhibit Kehoe Deposition Exhibit 5, # 6 Exhibit Kehoe Deposition Exhibit 6, # 7 Exhibit Kehoe Deposition Exhibit 7, # 8 Exhibit Kehoe Deposition Exhibit 8, # 9 Exhibit Kehoe Deposition Exhibit 9) Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Sherman, Jonathan) (Entered: 07/30/2020)
484 Declaration of Ronald Stroman filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (52 in 3:20-cv-00340wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20cv-00249-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1. USPS Report, # 2 Exhibit 2: Stroman Resume) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Umberger, Michelle) (Entered: 07/31/2020)
485 Reply in Support of Proposed Findings of Fact by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) Modified on 7/31/2020. (arw) (Entered: 07/31/2020)
486 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/31/2020)
487 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West re: (195 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goode, Joseph) (Entered: 07/31/2020)
488 ** TEXT ONLY ORDER ** Although the clerk's office has made arrangements for the possibility of a PI Hearing via Zoom, the court has not yet decided whether it would be

07/31/2020
07/31/2020
07/31/2020 07/31/2020

preferable to have counsel present in person with witnesses testifying via video conference and will take this up with counsel during Monday's status conference via Zoom as previously scheduled. Signed by District Judge William M. Conley on 7/31/2020. Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc. (kwf) (Entered: 07/31/2020)
489 Corrected Deposition of Robert Kehoe taken on July 28, 2020. (Attachments: # 1 Exhibit 1 - WisVote and MyVote Testing Spreadsheet, # 2 Exhibit 2 - WisVote and MyVote Development Tracking Spreadsheet, # 3 Exhibit 3 - April 8, 2020 Email from Robert Kehoe, # 4 Exhibit 4 - March 18, 2020 Memorandum from Meagan Wolfe "Update Regarding COVID-19 Election Planning", # 5 Exhibit 5 - March 23, 2020 Meagan Wolfe Email, # 6 Exhibit 6 - March 25, 2020 Meagan Wolfe Letter to State Rep. Hintz, # 7 Exhibit 7 - March-April 2020 MyVote Development Calendar, # 8 Exhibit 8 - June 12, 2020 Meagan Wolfe Email, # 9 Exhibit 9 - June 2020 WEC WisVote Development Tracker) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/31/2020)
490 Supplemental Declaration of Dr. Megan Murray filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans Reply Declaration in Support of Gear Plaintiffs' Motion for Preliminary Injunction re: (193 in 3:20-cv-00459-wmc, 369 in 3:20-cv-00249-wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1 - Dr. Murray Deposition Exhibit 4 - Open Letter to World Health Organization, # 2 Exhibit 2 - Dr. Murray Deposition Exhibit 6 - Article entitled "The Precautionary Principle Also Applies to Public Health Actions") Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/31/2020)
491 Deposition of Ronald Stroman taken on July 31, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Hebda, Katarzyna) (Entered: 07/31/2020)
492 Supplemental Declaration of Kit Kerschensteiner filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (40 in 3:20-cv-00459wmc) Motion for Preliminary Injunction Associated Cases: 3:20-cv-

07/31/2020 07/31/2020 07/31/2020

00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Goodman, Rachel) (Entered: 07/31/2020)
493 Brief in Reply by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson in Support of (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction and in Opposition to Motion to Dismiss by Intervenor-Defendants (ECF No. 449 in Dkt. 20-cv-249-wmc) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goodman, Rachel) (Entered: 07/31/2020)
494 Supplemental Proposed Findings of Fact filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goodman, Rachel) (Entered: 07/31/2020)
495 Second Declaration of Rachel E. Goodman filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (40 in 3:20-cv-00459wmc) Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1 - Wis. Dep't of Health Servs., COVID-19: Wisconsin Summary Data - New Deaths, # 2 Exhibit 2 - Six emails from voters re: April 7 election, # 3 Exhibit 3 - Email from Robert Kehoe to Kimberly Bushey, # 4 Exhibit 4 - Email exchange among Robert Kehoe, Meagan Wolfe, et al., # 5 Exhibit 5 - Email from a poll worker to WEC Elections HelpDesk, # 6 Exhibit 6 - Letter from Ann Jacobs & Mark Thomsen to Gov. Evers, Speaker Vos & Leader Fitzgerald, # 7 Exhibit 7 - Webform submission from a voter to the WEC, dated Apr. 13, 2020, # 8 Exhibit 8 - Webform submission from a voter to the WEC, dated Apr. 23, 2020, # 9 Exhibit 9 - Email from Green Bay City Clerk Kris Teske to Robert Kehoe, # 10 Exhibit 10 - Email from Kim Trueblood to Robert Kehoe, # 11 Exhibit 11 - Email from WEC's Allison Coakley to Jessica Reilly, Village of Elkhart Lake, # 12 Exhibit 12 - Email from Jeffrey Harrison to Angela Joeckel, # 13 Exhibit 13 - News article re: municipal clerks fears about November election, # 14 Exhibit 14 - H.R. Rep. No. 89-439 (1965), # 15 Exhibit 15 - Hicks v. Knight, No. 15727, 10 Race Rel. L. Rep. 1504 (E.D. La. 1965), # 16 Exhibit 16 - Hearing on the U.S. Commissioner System, 189th Cong. 1300-1301 (1965),

07/31/2020 07/31/2020 07/31/2020

# 17 Exhibit 17 - USPS Office of the Inspector General Report, # 18 Exhibit 18 - Email from Tim McCumber to Robert Spindell, # 19 Exhibit 19 - Institute for Health Metrics, Wisconsin: Daily Infections and Testing, # 20 Exhibit 20 - Wis. Dep't of Health Servs., COVID-19: Wisconsin Cases, # 21 Exhibit 21- News article re: poll worker shortages for August election, # 22 Exhibit 22 - WEC FAQs: Absentee Ballot Return Options: USPS Coordination and Drop Boxes, # 23 Exhibit 23 - WEC Special Voting Deputies for the August 11, 2020 and November 3, 2020 Elections, # 24 Exhibit 24 - News article re: Florida election system, # 25 Exhibit 25 - WEC Clerk Instructions for Email and Fax Ballots, # 26 Exhibit 26 - News article re: rejected absentee ballots in April election, # 27 Exhibit 27 - Nat'l Conf. of State Legislatures, Voting Outside the Polling Place Report, # 28 Exhibit 28 - Tbl. 16 from Nat'l Conf. of State Legislatures, Voting Outside the Polling Place Report, # 29 Exhibit 29 - WEC Updated Guidance on Election Night Procedures, # 30 Exhibit 30 - WEC Defendants' Objections and Responses to Swenson Plaintiffs' Requests for Admissions, # 31 Exhibit 31 - RNC/RPW's Objections and Responses to Swenson Plaintiffs' Requests for Admissions) Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goodman, Rachel) (Entered: 07/31/2020)
496 Response to Proposed Findings of Fact filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction (Response to WEC Defendants' Proposed Findings of Fact) Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Goodman, Rachel) (Entered: 07/31/2020)
497 Brief in Reply by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin in Support of (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/31/2020)
498 Brief in Reply by Plaintiffs Jean Ackerman, Catherine Cooper, Charles Dennert, Chrystal Edwards, Terron Edwards, Jan Graveline, Todd Graveline, Kileigh Hannah, John Jacobson, William Laske, Katie Rowe, Kristopher Rowe, Angela West, Douglas West in Support of (195 in 3:20cv-00340-wmc) Motion for Preliminary Injunction, Associated Cases:

07/31/2020 07/31/2020 07/31/2020 07/31/2020 07/31/2020

3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goode, Joseph) (Entered: 07/31/2020)
499 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Plaintiffs' Reply to WEC Defendants' Response to Plaintiffs' Statement of Facts Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/31/2020)
500 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Plaintiffs' Reply to Joint Response of Intervenor-Defendants to DNC Plaintiffs' Proposed Statement of Record Facts in Support of Plaintiffs' Motion for Preliminary Injunction Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/31/2020)
501 Supplemental Proposed Findings of Fact filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (252 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, Supplemental Statement of Facts in Support of Plaintiffs' Motion for Preliminary Injunction Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/31/2020)
502 Response to Proposed Findings of Fact filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin re: (252 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, Plaintiffs' Response to WEC Defendants' Additional Proposed Findings of Facts Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 07/31/2020)
503 Second Declaration of Jon Sherman filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans Reply Declaration in Support of Gear Plaintiffs' Motion for Preliminary Injunction re: (193 in 3:20-cv-00459-wmc, 369 in 3:20-cv-00249-wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1 - USPS July 7, 2020 Office of the Inspector General Report, # 2 Exhibit 2 - Coronavirus in the U.S.: Latest Map and Case Count, # 3 Exhibit 3 - Wisconsin Department of Health Services, COVID-19: Wisconsin Summary Data, # 4 Exhibit 4 - Executive Order No. 82, # 5 Exhibit 5 - Emergency Order No. 1,

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# 6 Exhibit 6 - CDC, Coronavirus Disease 2019 (COVID-19), People with Certain Medical Conditions, # 7 Exhibit 7 - U.S. Postal Service's Mandatory Stand-up Talk (July 10, 2020), # 8 Exhibit 8 - U.S. Postal Service Office of the Inspector General, Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections, Report Number 19XG010NO000-R20 (November 4, 2019), # 9 Exhibit 9 - Postal Regulatory Comm'n, Analysis of the Postal Service's FY 2019 Annual Performance Report and FY 2020 Performance Plan, # 10 Exhibit 10 - U.S. Postal Service Provides Recommendations for Successful 2020 Election Mail Season, United States Postal Service (May 29, 2020), # 11 Exhibit 11 - June 1 Update on the Primary Election in Delaware County, Delaware County, Pa. (June 1, 2020), # 12 Exhibit 12 - Letter from Marion County Clerk Myla Eldridge to Indiana Secretary of State Connie Lawson, dated May 28, 2020, # 13 Exhibit 13 - Frederick County Ballots Mailed for June 2, 2020 Presidential Primary Election Ballot, Frederick County Board of Elections (May 13, 2020), # 14 Exhibit 14 - Jennifer Friedmann, Mohit Mookim, Michelle Ly, Cristopher Maximos, and VinhHuy Le, "The 2020 Ohio Primary." Healthyelections.org (June 16, 2020), # 15 Exhibit 15 - Nick Corasaniti & Stephanie Saul, Vote-by-Mail Ballot Requests Overwhelm New York City Elections Agency, N.Y. Times (June 19, 2020), # 16 Exhibit 16 - Monica Anderson et al., 10% of Americans don't use the internet. Who are they?, PEW RES. CTR. (Apr. 22, 2019), # 17 Exhibit 17 - COVID-19: Avoid Illness, WIS. DEPT. OF HEALTH SERVS., # 18 Exhibit 18 - Meagan Wolfe, Hospitalized Electors and Public Health Guidance, WIS. ELEC. COMM'N (March 29, 2020)) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Sherman, Jonathan) (Entered: 07/31/2020)
504 Supplemental Declaration of Michelle M. Umberger filed by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction re: (187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 52 in 3:20-cv-00340-wmc, 252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1. Scheck Wisconsin Watch article, # 2 Exhibit 2. Chen PBS Frontline article, # 3 Exhibit 3. Olorunnipa Washington Post article, # 4 Exhibit 4. VOPP Table 11, # 5 Exhibit 5. Goldmacher New York Times article, # 6 Exhibit 6. Garrison USA Today article,

07/31/2020

# 7 Exhibit 7. Toobin New Yorker article, # 8 Exhibit 8. RNC RPW Obj. to Request to Admit, # 9 Exhibit 9. Coll New Yorker article, # 10 Exhibit 10. COVID-19 Wisconsin, # 11 Exhibit 11. RNC v. DNC Emergency Stay, # 12 Exhibit 12. Merrill v. People First of Alabama Emergency Stay, # 13 Exhibit 13. Beggin Bridge article, # 14 Exhibit 14. Naylor NPR article, # 15 Exhibit 15. Herbships NPR article, # 16 Exhibit 16. Bartz Reuters article, # 17 Exhibit 17. AP article, # 18 Exhibit 18. Boucher Detroit Free Press article, # 19 Exhibit 19. Michelle Ye Hee Lee Washington Post article, # 20 Exhibit 20. Ramirez Dallas Morning News article, # 21 Exhibit 21. La Rose WDSU6 article, # 22 Exhibit 22. Wildstein New Jersey Globe article, # 23 Exhibit 23. Cautionary Note, # 24 Exhibit 24. Hanson email to Hanson, # 25 Exhibit 25. Coakley email to Knoche, # 26 Exhibit 26. Willman email to Banagan, # 27 Exhibit 27. Willman email to Baenen, # 28 Exhibit 28. Bogage Washington Post article, # 29 Exhibit 29. Gardner Washington Post article, # 30 Exhibit 30. USPS Milwaukee Processing Report, # 31 Exhibit 31. Totenberg NPR article, # 32 Exhibit 32. Hasen article, # 33 Exhibit 33. Greenhouse New York Times article, # 34 Exhibit 34. WEC's Absentee Ballot procedures, # 35 Exhibit 35. Fessler NPR article, # 36 Exhibit 36. COVID-19 US Cases, # 37 Exhibit 37. Marley Milwaukee Journal Sentinel article, # 38 Exhibit 38. 2020-07-30 Executive Order, # 39 Exhibit 39. Gee Politico Magazine article, # 40 Exhibit 40. Keller Smithsonian article, # 41 Exhibit 41. Dismissal Alabama v. Merrill) Associated Cases: 3:20cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Devaney, John) (Entered: 07/31/2020)
505 Brief in Reply by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans in Support of (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, and Brief in Opposition to IntervenorDefendants' Motion to Dismiss Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 07/31/2020)

07/31/2020
08/03/2020 08/03/2020 08/03/2020 08/03/2020 08/04/2020
08/04/2020 08/04/2020

506 Supplemental Proposed Findings of Fact filed by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans re: (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, and Notice of Joinder Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Sherman, Jonathan) (Entered: 08/01/2020)
507 Status Report JOINT STATUS REPORT IN ADVANCE OF HEARING ON PRELIMINARY INJUNCTION by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin (Attachments: # 1 Joint Exhibit List) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Strawbridge, Patrick) (Entered: 08/03/2020)
Minute Entry for proceedings held before District Judge William M. Conley: Status Conference held on 8/3/2020 [01:08] (Court Reporter JD.) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (voc) (Entered: 08/03/2020)
508 Deposition of Mark Jefferson taken on July 31, 2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Goodman, Rachel) (Entered: 08/03/2020)
509 ORDER regarding evidentiary hearing this Wednesday, August 5th. Signed by District Judge William M. Conley on 08/03/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (mfh) (Entered: 08/03/2020)
510 Response re: (443 in 3:20-cv-00278-wmc, 509 in 3:20-cv-00249-wmc, 309 in 3:20-cv-00340-wmc, 334 in 3:20-cv-00459-wmc) Order Regarding Evidentiary Hearing by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
511 Objections to Trial Exhibits by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin State Legislature. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
512 ** TEXT ONLY ORDER ** The court is in receipt of the Wisconsin Legislature and Legislative Defendants' notice regarding testimony by Robert Spindell, Jr. ('249, dkt. #510;.) Consistent with yesterday's hearing and the court's recent order ('249, dkt. #509), the court will no longer require Commissioner Spindell

08/04/2020 08/04/2020 08/04/2020
08/04/2020
08/04/2020 08/04/2020

to appear as a live witness at tomorrow's preliminary injunction hearing. Signed by District Judge William M. Conley on 8/4/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 08/04/2020)
513 Disregard. To be refiled. Modified on 8/4/2020. (lak) (Entered: 08/04/2020)
514 Deposition Designations / The Swenson Plaintiffs' Specific Designations From the July 31, 2020 Deposition of The Republican National Committee and The Republican Party of Wisconsin by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. Associated Cases: 3:20-cv-00459wmc, 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc (Lens, Molly) (Entered: 08/04/2020)
515 Objections to Trial Exhibits Plaintiffs' Responses to Intervenor Defendants' Objections to Exhibits by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin. (Attachments: # 1 Exhibit 5.Spindell Ex. 11, # 2 Exhibit 6. Spindell Ex. 8, # 3 Exhibit 8. USPS, # 4 Exhibit 9. Slate) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 08/04/2020)
516 Contested Exhibits Gear Plaintiffs' Response to Intervenor-Defendants' Objections to Exhibits by Plaintiffs Bonibet Bahr Olsan, Diane Fergot, Gary Fergot, Sylvia Gear, Patricia Ginter, Malekeh K. Hakami, Gregg Jozwik, Sheila Jozwik, Katherine Kohlbeck, League of Women Voters of Wisconsin, Claire Whelan, Wisconsin Alliance for Retired Americans. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Poland, Douglas) (Entered: 08/04/2020)
517 Notice by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson (Swenson Plaintiffs' Responses to Intervenor-Defendants' Objections to Exhibits). Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lens, Molly) (Entered: 08/04/2020)
518 Supplemental Declaration of Misha Tseytlin filed by Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, Wisconsin State Senate, Intervenor Wisconsin Legislature re: (52 in 3:20-cv-00340-wmc, 187 in 3:20-cv-00278-wmc, 76 in 3:20-cv-00459-wmc, 252 in 3:20-cv00249-wmc) Motion for Preliminary Injunction, (193 in 3:20-cv-00459wmc, 369 in 3:20-cv-00249-wmc, 304 in 3:20-cv-00278-wmc, 169 in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (395 in 3:20-cv00249-wmc, 219 in 3:20-cv-00459-wmc, 330 in 3:20-cv-00278-wmc, 195

08/04/2020 08/04/2020 08/04/2020 08/05/2020 08/05/2020 08/06/2020

in 3:20-cv-00340-wmc) Motion for Preliminary Injunction, (40 in 3:20-cv00459-wmc) Motion for Preliminary Injunction (Attachments: # 1 Exhibit CDC July 31, 2020 Article, # 2 Exhibit WEC Responses to Swenson Plaintiffs' RFAs) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
519 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, Joint Response To DNC Plaintiffs' Supplemental PFOF Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
520 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (304 in 3:20-cv-00278-wmc) Motion for Preliminary Injunction, Joint Response To Gear Plaintiffs' Supplemental PFOF Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
521 Response to Proposed Findings of Fact filed by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin, Intervenor Wisconsin Legislature re: (40 in 3:20-cv-00459-wmc) Motion for Preliminary Injunction Joint Response To Swenson Plaintiffs' Supplemental PFOF Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/04/2020)
522 Notice by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen Letter to Court with documents. (Attachments: # 1 Exhibit 1 - Mailer and Absentee Req Form, # 2 Exhibit 2 - Uniform Absentee Instructions, # 3 Exhibit 3 - Supplemental Uniform Absentee Instructions- Fax and Email) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 08/05/2020)
523 Notice of Supplemental Authority by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson . (Attachments: # 1 Exhibit A MDNC Opinion) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Zarrow, Jason) (Entered: 08/05/2020)
524 Counter Deposition Designations by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Attachments: # 1 Exhibit Highlighted transcipt) Associated Cases: 3:20-cv-00249-wmc,

08/06/2020 08/06/2020 08/06/2020 08/06/2020
08/07/2020 08/07/2020

3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Strawbridge, Patrick) (Entered: 08/06/2020)
525 Supplemental Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen, Meagan Wolfe re: (304 in 3:20cv-00278-wmc) Motion for Preliminary Injunction, Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv00459-wmc (Lenz, Daniel) (Entered: 08/06/2020)
526 Supplemental Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr, Mark L. Thomsen re: (252 in 3:20-cv-00249-wmc) Motion for Preliminary Injunction, in Response to DNC Plaintiffs Supplemental Proposed Findings of Fact Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc (Lenz, Daniel) (Entered: 08/06/2020)
527 Supplemental Response to Proposed Findings of Fact filed by Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe re: (40 in 3:20cv-00459-wmc) Motion for Preliminary Injunction in Response to Swenson Plaintiffs Supplemental Proposed Findings of Fact Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lenz, Daniel) (Entered: 08/06/2020)
528 Declaration of Molly M. Lens re (507 in 3:20-cv-00249-wmc) Status Report, by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson (Attachments: # 1 Exhibit A: RNC/RPW Responses and Objections to Swenson Plaintiff RFA's, # 2 Exhibit B: Spindell Compilation, Listed as Exhibit 43 on Joint Exhibit List, # 3 Exhibit C: Spindell Compilation, Listed as Both Exhibits 5 and 45 on Joint Exhibit List) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Lens, Molly) (Entered: 08/06/2020)
529 Minute Entry for proceedings held before District Judge William M. Conley: Evidentiary Hearing held on 8/5/2020. [5:32] (Court Reporter JD) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc. (arw) (Entered: 08/07/2020)
530 Notice by Intervenor Wisconsin Legislature re (382 in 3:20-cv-00278wmc, 271 in 3:20-cv-00459-wmc, 448 in 3:20-cv-00249-wmc, 247 in 3:20-cv-00340-wmc) Notice (Other), (383 in 3:20-cv-00278-wmc, 449 in 3:20-cv-00249-wmc, 248 in 3:20-cv-00340-wmc, 272 in 3:20-cv-00459wmc) Notice (Other), Brief In Reply In Support Of Motions To Dismiss Swenson Plaintiffs' And Gear Plaintiffs' First Amended Complaints.

08/11/2020 08/11/2020 08/12/2020 08/25/2020 08/31/2020 08/31/2020 09/21/2020
09/21/2020

Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/07/2020)
531 Notice of Withdrawal of Counsel by Adam Boyd Stephens re: Amicus City Of Milwaukee, Wisconsin. (jls) (Entered: 08/11/2020)
532 Transcript of Videoconference Injunctive Hearing, held 8/5/2020 before District Judge William M. Conley. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 08/11/2020)
533 Transcript of Videoconference Status Conference, held 8/3/2020 before District Judge William M. Conley. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 08/12/2020)
534 Notice of Supplemental Authority by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson . (Attachments: # 1 Exhibit Frederick v. Lawson) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Faraji, Farbod) (Entered: 08/25/2020)
535 Response to (467 in 3:20-cv-00278-wmc, 534 in 3:20-cv-00249-wmc, 358 in 3:20-cv-00459-wmc, 333 in 3:20-cv-00340-wmc) Notice of Supplemental Authority by Intervenor Wisconsin Legislature . Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 08/31/2020)
536 Notice of Supplemental Authority by Plaintiffs Democratic National Committee, Democratic Party of Wisconsin . (Attachments: # 1 Exhibit A - Order in New Georgia Project v. Raffensperger) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv00340-wmc, 3:20-cv-00459-wmc (Devaney, John) (Entered: 08/31/2020)
537 Notice of Supplemental Authority by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson . (Attachments: # 1 Exhibit A - Decision in The New Georgia Project v. Raffensperger, Case No. 1:20-cv-01986-ELR (N.D. Ga. Sept. 16, 2020)) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Zarrow, Jason) (Entered: 09/21/2020)
538 OPINION AND ORDER on Preliminary Injunction. Signed by District Judge William M. Conley on 9/21/2020. Associated Cases: 3:20-cv00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459wmc. (kwf) (Entered: 09/21/2020)

09/21/2020 09/23/2020
09/23/2020
09/23/2020 09/23/2020

539 PRELIMINARY INJUNCTION. Signed by District Judge William M. Conley on 9/21/2020. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 09/21/2020)
540 NOTICE OF APPEAL - INTERLOCUTORY by Defendants Wisconsin State Assembly, Wisconsin State Senate, Intervenor Parties Wisconsin State Legislature, Wisconsin Legislature, Intervenor Defendant The Wisconsin Legislature as to (538 in 3:20-cv-00249-wmc, 471 in 3:20-cv00278-wmc, 362 in 3:20-cv-00459-wmc, 337 in 3:20-cv-00340-wmc) Order, (472 in 3:20-cv-00278-wmc, 363 in 3:20-cv-00459-wmc, 338 in 3:20-cv-00340-wmc, 539 in 3:20-cv-00249-wmc) Preliminary Injunction. Filing fee of $ 505, receipt number 0758-2753096 paid. Docketing Statement filed. (Attachments: # 1 Docketing Statement Docketing Statement, # 2 Opinion And Order On Preliminary Injunction, # 3 Preliminary Injunction) Associated Cases: 3:20-cv-00249-wmc, 3:20cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Tseytlin, Misha) (Entered: 09/23/2020)
541 Transmission of Notice of Appeal - Interlocutory, Docketing Statement, Opinion and Order, Preliminary Injunction Order and Docket Sheet to Seventh Circuit Court of Appeals re: 540 in 3:20-cv-00249-wmc, 473 in 3:20-cv-00278-wmc, 339 in 3:20-cv-00340-wmc, and 364 in 3:20-cv00459-wmc Notice of Appeal. (Attachments: # 1 Docketing Statement, # 2 Opinion and Order, # 3 Preliminary Injunction Order, # 4 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (jls) (Entered: 09/23/2020)
USCA Case Number 20-2835 for (473 in 3:20-cv-00278-wmc, 364 in 3:20-cv-00459-wmc, 540 in 3:20-cv-00249-wmc, 339 in 3:20-cv-00340wmc) Notice of Appeal filed by Wisconsin Legislature, Wisconsin State Assembly, Wisconsin State Senate. Associated Cases: 3:20-cv-00249wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 09/23/2020)
542 NOTICE OF APPEAL - INTERLOCUTORY by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin as to (538 in 3:20-cv-00249-wmc, 471 in 3:20-cv-00278-wmc, 362 in 3:20-cv00459-wmc, 337 in 3:20-cv-00340-wmc) Order, (472 in 3:20-cv-00278wmc, 363 in 3:20-cv-00459-wmc, 338 in 3:20-cv-00340-wmc, 539 in 3:20-cv-00249-wmc) Preliminary Injunction. Filing fee of $ 505, receipt number 0758-2753470 paid. No Docketing Statement filed. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc (Strawbridge, Patrick) (Entered: 09/23/2020)

09/24/2020 09/24/2020

543 Transmission of Notice of Appeal, Opinion and Order, Preliminary Injunction Order, and Docket Sheet to Seventh Circuit Court of Appeals re: (341 in 3:20-cv-00340-wmc, 366 in 3:20-cv-00459-wmc, 542 in 3:20cv-00249-wmc, 475 in 3:20-cv-00278-wmc) Notice of Appeal. (Attachments: # 1 Opinion and Order, # 2 Preliminary Injunction Order, # 3 Docket Sheet) Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 09/24/2020)
USCA Case Number 20-2844 for (341 in 3:20-cv-00340-wmc, 366 in 3:20-cv-00459-wmc, 542 in 3:20-cv-00249-wmc, 475 in 3:20-cv-00278wmc) Notice of Appeal filed by Republican National Committee, Republican Party Of Wisconsin. Associated Cases: 3:20-cv-00249-wmc, 3:20-cv-00278-wmc, 3:20-cv-00340-wmc, 3:20-cv-00459-wmc. (kwf) (Entered: 09/24/2020)

 
 Case: 3:20-cv-00249-wmc Document #: 55 Filed: 03/26/20 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

Civil Action No. 3:20-cv-249-wmc

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF
WISCONSIN file this Amended Complaint for Declaratory and Injunctive Relief against Defendants MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners, and allege as follows:
NATURE OF THE CASE 1. The United States is in the throes of an unprecedented crisis. COVID-19 is spreading throughout the country, infecting thousands of citizens in communities across the nation, including Wisconsin, which has at least 587 reported cases of the COVID-19 coronavirus and counting. As a result, Americans⸺including Wisconsinites⸺are forced to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, with no clear end in sight. Indeed, the latest projections indicate that this crisis may persist for 14 to 18 months.

PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1

Case: 3:20-cv-00249-wmc Document #: 55 Filed: 03/26/20 Page 2 of 20
2. In response to the crisis, on March 24, 2020, Governor Evers issued a “Safer-atHome Order” that went into effect the morning of March 25. The Order requires “All individuals present within the State of Wisconsin . . . to stay at home or at their place of residence . . . .” With limited exceptions, the Order requires individuals in Wisconsin to stay at home through April 24, 2020. There is no exception in the Order for voters, election officials, poll workers, or others who support elections. Anyone who violates the Order is potentially subject to 30 days imprisonment or a fine up to $250.
3. As Wisconsin citizens continue to distance themselves to ensure their safety and to comply with the Safer-at-Home Order, many are unwilling to violate the law and to risk their safety and the safety of others by waiting in line to register to vote and cast their vote on election day. Indeed, the City of Milwaukee has shut down in-person registrations and in-person voting, and Madison has limited in-person voting to curbside voting at the City Clerk’s Office. Based on information and belief, other cities and towns are taking similar steps to limit in-person registration and voting. As a result, for a large number of Wisconsin citizens, voting by mail for the upcoming April 7 Spring Election (“Spring Election”) is now their only option. Likewise, registering by mail or e-mail is now the only option for many people.
4. Because of the Safer-At-Home Order and the health risks of coronavirus, many Wisconsin citizens are also unwilling and unable to take on the safety risks of leaving their homes to obtain documents and to copy documents that are required under Wisconsin law to register to vote and to obtain an absentee ballot.
5. Given these extraordinary circumstances, it is not surprising that Wisconsinites⸺ faced with this unconscionable choice between their safety and potentially endangering the lives of others and exercising their fundamental right to vote⸺are relying on absentee voting at an
PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2

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unprecedented level. The Wisconsin Elections Commission reports that “Wisconsin voters are [already] requesting absentee ballots at a record pace with concerns about Coronavirus COVID19.”1 As of yesterday, more than 626,000 absentee applications had been received by Wisconsin municipal clerks, vastly exceeding total requests for all of the last four spring elections. And it is all but certain that this number will continue to increase.
6. In this unprecedented situation, multiple provisions of law that establish requirements for registering to vote and absentee voting are now posing direct and severe obstacles to voting. These provisions are: (1) the now-expired by-mail registration deadline of March 18, 2020, Wisc. Stat. § 6.28(1); (2) the requirement that copies of proof of residence accompany electronic and by-mail voter registration, id. § 6.34; (3) the requirement that copies or scans of photo identification accompany absentee ballot applications, id. § 6.86; (4) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day for ballots to be counted (“Election Day Receipt Deadline”), id. § 6.87; and (5) the requirement that for an absentee ballot to be counted, the absentee voter must have a witness certify to the truth of the information the voter provides on the ballot. Wisc. Stat. § 6.87(2). (collectively, the “Challenged Provisions”).
7. Each of these provisions, on its own, poses significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election (or any election that occurs while this crisis continues); collectively, these provisions will ensure that many Wisconsin citizens will be unable to vote or will have their ballots discarded. Without emergency intervention from this Court, thousands of Wisconsin voters likely will be disenfranchised.
1 Wisconsin Elections Comm., Absentee Ballot Requests for April 7 Already Exceed Last Three Spring Election Absentee Number Due to COVID-19, March 17, 2020, https://elections.wi.gov/node/6731.
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8. Under Wis. Stat. § 6.28(1), by mail voter registration ended on March 18, 2020. Historically, Wisconsin voters have registered to vote in person in large numbers, relying heavily on same day registration⸺i.e., registering during in-person absentee voting or on election day. As a result, thousands of Wisconsin voters typically do not register before election day. That is the case again this year, as many Wisconsin citizens have not yet registered for the April 7, 2020 Spring Election since they anticipated being able to register on election day. Because of the effects of COVID-19 on the ability of voters to register and vote in person, combined with today’s deadlines to request absentee ballots, thousands of potential voters who reasonably anticipated registering in person on election day now cannot register by mail and have online registration as their only option. Absent intervention by the Court, the safety risks of COVID-19 will prevent countless eligible Wisconsinites from registering and voting altogether.
9. Wis. Stat. § 6.34 will have a similar effect. This provision requires new voters to provide a copy of their proof of residence to register. But as voters are directed by the federal and state government to stay home and as commercial businesses and public buildings continue to close, many would-be electronic or by-mail registrants are now without access to the scanners and printers needed to generate copies of the documents required to register to vote. That is because the scanners and printers are often located at places of work, libraries, and commercial establishments (e.g., UPS locations) that are now closed under the Governor’s Safer-At-Home Order or are unsafe to go to. As a result, many Wisconsin citizens will be unable to obtain the copies they need to complete their voter registration applications and will be prevented from registering. Indeed, under the Safer-at-Home Order, Wisconsin citizens are prohibited from going to locations where they would obtain copies of these documents and would face potential criminal prosecution and fines for even trying.
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10. For the same reasons, Wis. Stat. §§ 6.86 and 6.87, requiring a copy of a voter’s photo identification to accompany a request for an absentee ballot, will render voters unable to make such a request.
11. Finally, even if a voter is able to overcome the obstacles to registering to vote and requesting an absentee ballot described above, the April 7 election is less than two weeks away, and the deadline to request an absentee ballot is even sooner⸺April 2, 2020. This means that the thousands of voters who are now realizing that they must request an absentee ballot to vote safely have only a week to request a ballot. Municipal clerks will have scant time to process these requests⸺which are coming in at unprecedented levels and to offices that are understaffed as people self-quarantine due to the Safer At Home Order and the potential exposure to the virus⸺and to mail ballots to voters. Voters receiving those ballots will have, at most, mere days to mail them, with a significant risk that they will not arrive by the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6)⸺and thus, those votes will not be counted. In fact, based on information and belief, Wisconsin’s mail system has already started to slow because of the effects of the coronavirus. As a result, it is highly likely that many absentee ballots will arrive after the Election Day Receipt Deadline⸺due to no fault of the voters. These same impediments to voting will continue for any election that occurs while this crisis persists.
12. Accordingly, Plaintiffs file this suit to ensure that Wisconsin voters⸺many of whom are their members and constituents⸺are able to fully exercise their right to vote in the midst of this unprecedented crisis. Plaintiffs seek an emergency injunction from this Court, extending the March 18, 2020 deadline for by mail voter registration to April 3; suspending the requirements that copies of documents and photo IDs be included with voter registration and absentee ballot applications; enjoining the Election Day Receipt Deadline, while allowing all ballots postmarked
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on or before election day but received within a minimum of 10 days thereafter to be counted; and enjoining the requirement that voters submitting absentee ballots have a witness certify to the accuracy of the voter’s information on the ballot.2
JURISDICTION AND VENUE 13. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of a right secured by the United States Constitution. 14. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 15. This Court has personal jurisdiction over the Defendants, the Commissioners of the Wisconsin Elections Commission, who are sued in their official capacities only. 16. Venue is proper in the U.S. District Court in the Western District of Wisconsin pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred there. 17. This Court has the authority to enter a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
PARTIES 18. Plaintiff the Democratic National Committee (“DNC”) is a national committee, as that term is defined by and used in 52 U.S.C. § 30101, dedicated to electing local, state, and national candidates of the Democratic Party to public office throughout the United States. In particular, the DNC is charged with facilitating the Democratic presidential nominating process,
2 The term “postmark” is used to reference any type of marking applied by the USPS including bar codes or other tracking marks indicating that a ballot was mailed on or before election day. If there is no postmark on the ballot, it should be presumed to have been mailed by Election Day.
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which culminates in the 2020 Convention that will take place in Milwaukee, Wisconsin in July. The April 7, 2020 Spring Election is part of the presidential nominating process, and Democratic voters in that election will make their selections for the Democratic presidential nominee. Moreover, the DNC has members and constituents across the United States, including eligible voters in Wisconsin whose rights to vote will be severely burdened and denied outright by the Challenged Provisions during the current coronavirus crisis.
19. Plaintiff the Democratic Party of Wisconsin is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public office throughout the State of Wisconsin. The Democratic Party of Wisconsin has members and constituents from across Wisconsin, including many voters whose rights to vote will be severely burdened and denied outright by the Challenged Provisions during the current coronavirus crisis.
20. As part of their missions, both Plaintiffs work to ensure that their members and constituents are able to effectively exercise their right to vote for their chosen presidential nominee. Plaintiffs are directly harmed by the Challenged Provisions, which by making it more difficult for Plaintiffs’ members and constituents to vote, will require Plaintiffs to expend additional resources to assist their members and constituents to overcome these burdens to exercise their right to vote. These are resources that the Plaintiffs otherwise could spend educating voters about core issues and preparing for the general election. See, e.g., Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (political party had standing because of its diversion of resources “to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”), aff’d, 553 U.S. 181, 189 n.7 (2008); One Wisconsin Institute v. Thomsen, 198 F. Supp. 3d 896, 908-10 (W.D. Wis. 2016).
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21. Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen are the six Commissioners of the Wisconsin Elections Commission and are named as Defendants in their official capacities. Together, they comprise the Wisconsin Elections Commission, the body that administers and enforces Wisconsin’s election laws, including Wis. Stats. §§ 6.28(1), 6.34, 6.86, and 6.87. See Wis. Stat. § 5.05. Defendants have acted under color of state law at all times relevant to this action.
STATEMENT OF FACTS AND LAW A. Wisconsin Registration and Absentee Laws
22. Wisconsin law provides that registration by mail and electronic registration closes on the third Wednesday preceding an election. Wis. Stat. § 6.28 (1)(a). Thus, for the April 7 Spring Election, registration by mail is no longer available and, under this Court’s Order of March 20, 2020, on-line registration is available until March 30.
23. Individuals registering by mail or electronically must provide a copy of an “identifying document that establishes proof of residence.” Wis. Stat. § 6.34(2). The only exception to this rule is for individuals registering electronically who do not have to provide such documentation if they provide “the number of a current and valid operator’s license [or] identification card.” Id. (2m).
24. Typically, individuals wishing to register after the mail and electronic registration deadline can only do so by registering in-person when they apply for an in-person absentee ballot or on Election Day at a polling place. Id.
25. And, historically, Wisconsin voters rely heavily on same day registration. Since 2008, between 10 to 15% of all registrations have taken place on election day.3
3 Wisconsin Elections Commission, Elections and Voting Statistics, PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8

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26. Wisconsin also provides a process for absentee voting for all registered absentee voters, allowing them to request an absentee ballot by mail, in person at the municipal clerk’s office, by signing a statement and requesting to receive an absentee ballot, via an agent, special voting deputy, or by e-mail or fax. Wis. Stat. § 6.86(1)(a).
27. All voters are required to present a copy of their proof of identification with their absentee application. Id. (1)(ac).
28. Once a voter has received and completed their ballot, he or she must return it so that “it is delivered to the polling place no later than 8 p.m. on election day.” Wis. Stat. § 6.87(6). B. Coronavirus and the April 7, 2020 Election
29. Over the course of the last few weeks, and with dramatically increased intensity over just the last week, COVID-19 has been spreading throughout the United States, infecting thousands of citizens in communities across the nation, including in Wisconsin. Each day more Wisconsinites are infected and, as more is learned about the virus and its potential reach, citizens and state and local governments are forced to take increasingly unprecedented steps to ensure their safety.
30. Indeed, in addition to requiring individuals in Wisconsin to stay at home, the SaferAt-Home Order requires all “non-essential” businesses and operations to cease operations. And, public and private schools remain closed indefinitely.
31. Wisconsinites are now forced to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, with no end in sight.
https://elections.wi.gov/elections-voting/statistics?q=elections-voting/statistics&page=2 (last visited, March 18, 2020).
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32. As a result, many Wisconsin citizens are also unable or unwilling to risk their safety and the safety of others by waiting in line to register to vote and cast their vote on election day, or to leave their homes to obtain documents and to copy documents that are required under Wisconsin law to register to vote and to obtain an absentee ballot. In fact, the Safer-At-Home Order, by its terms, does not even allow citizens to leave their homes to vote in-person, much less to obtain copies of documents at businesses, many of which are now legally required to close.
33. Moreover, Wisconsin citizens who are infected cannot leave their homes to register and vote, even if there were no law barring them from leaving.
34. Thus, it is not surprising that Wisconsinites are relying on absentee voting at an unprecedented level. The Wisconsin Elections Commission reports that “Wisconsin voters are [already] requesting absentee ballots at a record pace with concerns about Coronavirus COVID19.”4 As of yesterday, more than 626,000 absentee applications had been received by Wisconsin municipal clerks, vastly exceeding total requests for three of the last four spring elections. And it is all but certain that this number will continue to increase.
35. In this unprecedented situation, the regulatory scheme described above has become hostile to voting rights and, as a direct result, thousands of Wisconsin voters are likely to be disenfranchised.
36. For example, as discussed, thousands of Wisconsin voters typically register in person, relying on same day registration to register and vote. As a result, thousands of Wisconsin voters typically do not register before election day. This year is no different. Many Wisconsin citizens have not yet registered for the April 7, 2020 presidential primary election since they
4 Wisconsin Elections Comm., Absentee Ballot Requests for April 7 Already Exceed Last Three Spring Election Absentee Number Due to COVID-19, March 17, 2020, https://elections.wi.gov/node/6731.
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anticipated being able to register on election day. Because of the effects of the coronavirus on the ability of voters to obtain documents, register, and vote in person, these are now left with highly constrained registration and voting options. Indeed, many voters will have no ability to register after expiration of on-line registration on March 30 because Milwaukee and other cities are no longer offering in-person registrations and in-person voting and the Safer-At-Home Order, by its express terms, prohibits people from leaving their homes. The availability of in-person registration and in-person voting is now inconsistent across the state, with a voter’s ability to register and vote in person being dependent on where he or she lives.
37. Wisconsin’s requirement that voters provide a copy of their proof of residence to register also burdens voters during the current crisis. The scanners and printers that many wouldbe electronic or by-mail registrants and absentee voters would typically use are often located at places of work, libraries, and commercial establishments (e.g., UPS locations) that are now closed or unsafe to go to. As a result, many Wisconsin citizens will be unable to obtain the copies they need to complete their voter registration applications and will be prevented from registering. Because of the requirement in the Safer-At-Home Order that all non-essential business cease operating, this obstacle to registering has increased materially since this Court issued its March 20 Order on Plaintiffs’ Motion for a Temporary Restraining Order.
38. The same burdens confront voters attempting to comply with Wisconsin’s requirement that they must provide a copy or scan of their voter ID when applying for an absentee ballot. As a result, many voters will be unable to obtain the copies or scans they need to complete their absentee applications and will be prevented from voting. Wisconsin law specifically exempts a voter from the requirement of providing a photo ID with a request for an absentee ballot if the voter is “indefinitely confined” because of age, illness, infirmity, or disability. Wis. Stat. §§
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6.86(2)(a), 6.87(4)(b)(2). This exemption recognizes that voters who are confined are unable to obtain copies of photo IDs. Because of the health risks of the coronavirus pandemic and the prohibition in the Safer-At-Home Order against people leaving their homes, all Wisconsin voters are now “indefinitely confined” and should be exempted from providing a photo ID with a request for an absentee ballot.
39. The burdens imposed by the Challenged Provisions are especially severe for voters who live alone. Specifically, Wisconsin’s requirement that absentee ballots will be accepted only if they are accompanied by a sworn certification from a witness attesting to the truthfulness of the voter’s personal information on the absentee ballot puts these voters in a completely untenable situation. With the requirements of the Safer-at-Home Order and the health and legal risks of venturing out to find a witness, many voters who live alone will not have a witness to attest to their absentee ballots and, absent intervention by the Court, simply will not be able to vote. Adding to their burden, a significant portion of this population is comprised of elderly Wisconsin citizens who are most at risk from the coronavirus and who could not interact with a witness even if they could find one.
40. Finally, even if a voter is able to overcome the obstacles to registering and voting described above, the April 7 election is less than two weeks away, and the deadline to request an absentee ballot is even sooner⸺April 2, 2020. This means that the thousands of voters who are now realizing that they must request an absentee ballot to vote safely have just a week to request a ballot. Municipal clerks will have just hours or days to process these requests and mail ballots. Many clerks already have a significant backlog of requests for absentee ballots. As a result, in some cities, it is taking clerks as much as an entire week from the receipt of a request for an
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absentee ballot until a ballot can be sent to a voter. Adding to these delays, some clerk’s offices with particularly heavy demand are running out of absentee ballot envelopes and postage.
41. Accordingly, it is highly likely that many voters--potentially thousands--will receive absentee ballots too late to have them arrive by April 7. Without intervention by the Court, those ballots will be discarded and all of those voters will be disenfranchised by the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6). Indeed, there is significant risk that municipal clerks inundated with absentee ballot requests at the April 2 deadline may not even be able to process all such requests by Election Day, much less mail the ballots with sufficient time for voters to return them by Election Day.
42. In fact, based on information and belief, Wisconsin’s mail system has already started to slow because of the effects of the coronavirus. As a result, it is highly likely that many absentee ballots will arrive after the Election Day Receipt Deadline⸺due to no fault of the voters.
43. Each of these provisions, on its own, poses significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election; collectively, the existence of these provisions means that many Wisconsin citizens will be unable to vote or will have their ballots discarded.
44. Without action from this Court, these laws will continue to burden Wisconsin voters’ right to vote, disenfranchising them in the upcoming April 7, 2020, as well as other elections taking place during the COVID-19 crisis.
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CLAIMS FOR RELIEF
COUNT I First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202 Undue Burden on the Right to Vote 45. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 46. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 47. Unless Plaintiffs are granted the relief requested herein thousands of Wisconsin voters’ right to vote, including Plaintiffs’ members and constituents, will be severely burdened (if not wholly eliminated) in the upcoming April 7, 2020 election. 48. Because of the Safer-At-Home Order and the unprecedented social distancing measures that Wisconsin citizens have to take to slow the spread of the virus and to ensure their safety as well as the safety of their friends, families, and neighbors, many Wisconsin voters who would have registered to vote in-person between the March 18, 2020 electronic and by-mail registration cut-off and/or on Election Day will no long be able to register to vote, even with the Court’s extension of electronic registration to March 30. Similarly, Wisconsin voters are less able
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and, in some cases, wholly unable to copy and scan documents and photo IDs required to complete their electronic and by-mail registration and absentee ballot applications. And, as absentee balloting becomes the only safe way to vote, Wisconsin voters are at a high risk of not receiving their ballots with sufficient time to mail it into the municipal clerk’s office so that it is received prior to the Election Day Receipt Deadline. This too will lead to disenfranchisement.
49. The State cannot provide any colorable justification as to why the March 18, 2020 deadline should not be extended for by-mail registrations and why ballots received after the Election Day Receipt Deadline should not be counted in light of this unprecedented crisis.
50. Further, the requirement that voters have witnesses attest to the truthfulness of their personal information on absentee ballots will disenfranchise many Wisconsin voters who are unable to locate witnesses for this purpose. There also is no colorable state justification for this requirement in view of the Coronavirus crisis and the Safer-At-Home Order.
51. In short, the challenged laws are not supported by a state interest that is sufficient to justify the resulting burdens on the right to vote, and thus, these laws violate the First and Fourteenth Amendments.
COUNT II Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process 52. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 53. The Due Process Clause of the United States Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. CONST. amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the
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rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the government’s action as well as the “degree of potential deprivation that may be created” by existing procedures. Nozzi, 806 F. 3d at 1192–93. Second, “courts must consider the ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally, courts must consider “the public interest, which ‘includes the administrative burden and other societal costs that would be associated with’ additional or substitute procedures. Id. (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, (quotation and citation omitted).
54. Wisconsin’s procedures for registering to vote and absentee voting must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting by mail]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
55. “When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995)).
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56. Under the current circumstances, there is little question that Wisconsin’s election process is fundamentally unfair. The nature of the interest at stake in this case⸺the right to vote and to have that vote count⸺is the most precious liberty interest of all because it is preservative of all other basic civil and political rights.
57. But the challenged laws threaten to deprive Wisconsin voters of this right in the upcoming election. Given the unprecedented situation at hand, Wisconsin must establish adequate procedures to ensure that voters have a reliable, fair, effective and safe method to cast their ballots in the April 7, 2020 election. Because the challenged laws are markedly inadequate in all of these respects, and substitute procedures are readily available to protect voters’ rights with minimal burden to the State, the challenged laws violate Wisconsin voters’ procedural due process rights.
COUNT III Equal Protection U.S. Const. Amend. XIV, 42 U.S.C. § 1983
58. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
59. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from “denying to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This constitutional provision requires that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).
60. And this applies to voting. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
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61. Because of the different actions taken by Wisconsin cities and counties in response to the coronavirus pandemic, in-person registration and voting is available to some Wisconsin citizens but not to others, depending on where a voter resides. Similarly, application of the document requirements for registering to vote and requesting an absentee ballot varies across cities and counties, resulting in some voters being subject to these requirements while others are not. Based on information and belief, this variation includes some cities and counties deeming voters “indefinitely confined” and exempt from the requirement of providing voter IDs with a request for an absentee ballot while voters in other cities and counties continue to be required to provide voter IDs.
62. Additionally, guidance on the witness requirement for absentee ballots varies by locality. Many voters, particularly those who live at home, lack access to a witness while simultaneously following public health directives to stay at home and practice social distancing. Cities and counties are giving varying advice on how voters should navigate the witness requirement. Based on information and belief, some localities have provided guidance to voters while others have not, meaning the ability to cast an absentee ballot depends on where the voter resides.
63. The inconsistent availability of in-person registration and voting, the diverging standards across cities and counties with respect to the documents required to register and vote, and the different guidance on the witness requirement for absentee ballots are depriving voters, including Plaintiffs’ constituents, of equal protection of the laws.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that in the context of the current coronavirus crisis, Wisconsin’s current
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by-mail registration deadline, Wisc. Stat. § 6.28(1); requirements that copies of proof of residence and voter photo ID accompany electronic and by-mail voter registration and absentee applications, id. § 6.34, 6.86, respectively; the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87; the requirement that an absentee voter have a witness who attests to the accuracy of personal information on an absentee ballot, id. § 6.87(2) , are unconstitutional in violation of the First and Fourteenth Amendments;
B. Ordering Defendants to extend Wisconsin’s by-mail registration deadline to the deadline for in-person registration, April 3, 2020;
C. Enjoining the enforcement of Wis. Stat. § 6.34’s proof of residency requirement for voter registrations until the COVID-19 crisis is over;
D. Enjoining the enforcement of Wis. Stat. §§ 6.86 - 87’s photo identification requirements until the COVID-19 crisis is over and also declaring that all Wisconsin voters are deemed “indefinitely confined” under these statutory provisions and thus exempt from having to provide voter IDs with requests for absentee ballots;
E. Enjoining the enforcement of the witness requirement in Wis. Stat. § 6.87(2) until the COVID-19 crisis is over;
F. Enjoining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office within a minimum of ten days after Election Day; Ballots that do not have a postmark or other marking from the USPS shall be presumed to have been mailed by Election Day;
G. Awarding Plaintiff its costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
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Dated this 26th day of March, 2020.

Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary Newkirk* PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for the Plaintiffs *Motions for Admission Forthcoming

PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20

 
 Case: 3:20-cv-00249-wmc Document #: 61 Filed: 03/27/20 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN

Civil Action No. 3:20-cv-249-wmc

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND RECONSIDERATION OF THE COURT’S RULING ON THE BY-MAIL ABSENTEE
DEADLINE AND DOCUMENTATION REQUIREMENTS Plaintiffs DEMOCRATIC NATIONAL COMMITTEE (“DNC”) and DEMOCRATIC PARTY OF WISCONSIN, by and through their attorneys, respectfully move the Court pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction restraining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing (1) the current mail-in registration deadline, Wisc. Stat. § 6.28(1); (2) the requirement that copies of proof of residence and voter ID accompany electronic and by-mail voter registration, id. § 6.34; (3) the requirement that copies of photo identification accompany absentee ballot applications, id. §§ 6.86, 6.87; (4) the requirement that absentee ballots be signed by a witness, id. § 6.87(2); and (5) the requirement that polling places receive absentee ballots by 8:00 p.m. on Election Day to be counted (“Election Day Receipt Deadline”), id. § 6.87 (collectively, the “Challenged Provisions”).

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Since Plaintiffs filed their Motion for a Temporary Restraining Order, new evidence has come to light due to the rapidly changing facts on the ground that make reconsideration of this Court’s previous order appropriate, and that support Plaintiffs’ request for a preliminary injunction of the Challenged Provisions. In particular, Plaintiffs are entitled to a preliminary injunction because they are substantially likely to succeed on the merits of their claim that the Challenged Provisions severely burden the rights of Wisconsin voters, deprive them of Equal Protection under the law, and deprive them of a liberty interest.
The United States is in the throes of an unprecedented crisis and, as COVID-19 spreads throughout the country, Wisconsinites are now subject to a “Safer-At-Home” Order, forcing them to socially distance themselves to try to slow the spread of the disease in a communal effort to save their friends, neighbors, and families, by reducing their access to commercial and public facilities, limiting their ability to leave their homes, and prohibiting most interactions with non-household members. Wisconsin voters⸺including thousands of Plaintiffs’ members and constituents⸺should not also be forced to make the untenable choice between violating a statewide order and placing their safety and others in jeopardy to exercise their fundamental right to vote. Yet, the Challenged Provisions do just that, forcing some voters but not others to resort to in-person registration⸺or depriving them of any registration option whatsoever. Likewise, voters are forced to leave their homes to copy documents or obtain witness signatures. Moreover, the Challenged Provisions impose arbitrary deadlines that simply cannot be met in the current crisis.
If the Challenged Provisions are not enjoined during this unprecedented crisis, they will individually and collectively pose significant risks to voters seeking to exercise their right to vote in the upcoming April 7, 2020 election and in any election held while the crisis persists. Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief, and traditional
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legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and Wisconsin voters outweighs any putative harm to the State, and the relief Plaintiffs seek is in the public interest.
For the foregoing reasons, and as set forth in the accompanying Brief in Support of Plaintiffs’ Motion for Preliminary Injunction and Reconsideration of the Court’s Ruling on the By-Mail Absentee Deadline and Documentation Requirements, as well as the accompanying Statement of Facts, exhibits, expert report, and declarations, the DNC and Democratic Party of Wisconsin respectfully request that this Court grant a Preliminary Injunction enjoining (1) enforcement of the March 18 by-mail voter registration deadline and extending it to April 3, (2) the requirement that new voter registrations include copies of proof of residency, (3) the requirement that absentee voters include a copy of voter identification with absentee ballot requests, (4) the requirement that absentee voters obtain a witness signature on their ballot, and (5) the rejection of ballots that are postmarked on or before Election Day and arrive at a polling place or municipal clerk’s office within, at a minimum, ten days of Election Day and ballots that do not have a postmark or other marking from the United States Postal Service are presumed to have been mailed on or before Election Day.
Dated this 27th day of March, 2020.
Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney* Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 600
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Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs *Motion for Pro Hac Vice Forthcoming
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 Case: 3:20-cv-00249-wmc Document #: 62 Filed: 03/27/20 Page 1 of 25

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Civil Action No. 3:20-cv-249-wmc

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND RECONSIDERATION OF THE COURT’S RULING ON THE BY-MAIL ABSENTEE DEADLINE AND DOCUMENTATION REQUIREMENTS

I. NATURE OF THE CASE

Since Plaintiffs filed their Motion for a Temporary Restraining Order on March 18, 2020,

the situation in Wisconsin has only grown more dire and, by all accounts, will only get worse in

the coming weeks. Wisconsin’s confirmed cases of COVID-19 now number more than 710, at

least twelve people have died from the disease, and Governor Evers has issued a “Safer-At-Home

Order,” prohibiting all “nonessential travel” and requiring Wisconsinites to stay at home unless

they work in or need to access essential businesses such as doctors’ offices, pharmacies, and

grocery stores. Nevertheless, the April 7, 2020 election remains on the calendar, and Wisconsin

voters need relief from this Court to safely and fully exercise their right to vote.

Indeed, as the COVID-19 crisis has unfolded over the last week, the evidence supporting

the need for an injunction of (1) Wisconsin’s Election Day Receipt Deadline, Wis. Stat. § 6.87(6),

as well as the requirements that (2) a copy of a photo ID be submitted with an absentee ballot, id.

§ 6.86, (3) absentee ballots be signed by a witness, id. § 6.87(2), and (4) copies of proof of

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residence be submitted with by-mail registrations, id. § 6.34, together with (5) the need for an extension of the by-mail registration deadline, § 6.28(1), (collectively, “Challenged Provisions”), have mounted. As Wisconsin Elections Commission (“WEC”) Administrator, Meagan Wolfe, explained to this Court just days ago, the ever-increasing and unprecedented numbers of Wisconsin voters who are requesting to vote absentee are causing the MyVote Wisconsin website to crash. March 27, 2020 Decl. of Bruce V. Spiva (“Spiva Decl.”), Ex. 3 at 25 - 26 (“[R]ight now clerks are entering in the statewide database all the absentees they need to mail out, and we’re also seeing unprecedented traffic for people requesting their absentee ballot.”).1 Indeed, the City of Madison is anticipating approximately 118,000 absentee ballots, while Milwaukee is expecting approximately 105,000 absentee ballots⸺many thousands more than they usually receive. Mot. from Cities (“Cities’ Motion”), ECF No. 39, at 5; see also Decl. of M. Witzel-Behl (“Witzel-Behl Decl.”) ¶ 7; Decl. of N. Albrecht (“Albrecht Decl.”) ¶ 4. This deluge⸺coupled with understaffing due to social distancing⸺has caused these cities to specifically request that this Court “reinstate the counting” of absentee ballots that arrive after Election Day. Id.; Witzel-Behl Decl. ¶ 13. Moreover, it has resulted in the closure of in-person registration and absentee voting options in parts of the State, leaving voters without DMV-issued IDs with no recourse for registration. Voters have become increasingly more isolated, and many⸺for their protection, their neighbors’ protection, and pursuant to the Governor’s latest Safer-At-Home Order⸺cannot obtain the signatures needed to complete their absentee ballot or copies of their photo IDs or proof of residency. See, e.g., Witzel-Behl Decl. ¶ 11; Decl. of S. McDonell (“McDonnel Decl.”) ¶ 6 (describing calls from voters); see also Ex. 4 (prohibiting interactions between non household
1 Unless otherwise noted, all citations to exhibits herein refer to exhibits included in the March 27, 2020 Spiva Declaration.
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members unless in keeping with social distancing criteria); Decl. of J. Keel (“Keel Decl.”) ¶ 3; Decl. of M. Love (“Love Decl.”) ¶¶ 3-5; Decl. of J. Trapp (“Trapp Decl.”) ¶ 3; Decl. of B. Larson (“Larson Decl.”) ¶ 3; Decl. of J. Morse (“Morse Decl.”) ¶ 4; Decl. of M. Callahan (“Callahan Decl.”) ¶ 4; Decl. of B. Wilson (“Wilson Decl.”) ¶¶ 4–5; see generally Decl. of D. Strang (“Strang Decl.”) ¶¶ 5, 9.
These circumstances, which have become markedly more dire since Plaintiffs filed their original Motion for a Temporary Restraining Order and Preliminary Injunction, give rise to a compelling need for relief on all the issues listed above. This relief is necessary immediately, not days from now or after the election has taken place. Setting clear deadlines, relieving voters of the document and witness requirements that simply cannot be met because of the pandemic and the Safer-At-Home Order, and judicial assurances to Wisconsin voters that their ballots will be counted are necessary to protect thousands of voters from imminent disenfranchisement, ensure consistent application of voting laws across the State, and protect Wisconsinites from exposing themselves and others to the coronavirus while attempting to comply with requirements that are now irrational and without justification in this new world order.
It is telling that not only are Plaintiffs seeking this type of relief, but the election officials who are on the front lines of handling registrations and absentee ballots are calling out for help and telling anyone who will listen that, absent immediate changes, thousands of voters in Wisconsin are at imminent risk of being disenfranchised. For example, in her declaration that accompanies this Motion, the City Clerk of Madison, Maribeth Witzel-Behl, states that Madison has a backlog of more than 12,000 requests for absentee ballots and that it is taking up to a week from receipt of a request for an absentee ballot to mailing a ballot to a voter. Witzel-Behl Decl. ¶ 9. Ms. Witzel-Behl estimates that unless the Ballot Receipt Deadline is pushed back, more than
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1,000 voters in Madison alone will be disenfranchised because their ballots will arrive after election day. Id. ¶ 13. In Hudson, Wisconsin, a small staff of three is working to process a backlog of approximately 2,000 absentee ballot requests. Decl. of B. Eggen (“Eggen Decl.”) ¶ 2. Requests there continue to pour in, sometimes averaging one every thirty seconds. Id. The Hudson City Clerk estimates at least a couple dozen ballots will arrive late and therefore not be counted. Id. ¶ 4. Past local elections indicate that even this modest margin can be outcome-determinative. Id. ¶ 5.
Equally concerning, citizens from across the State are voicing deep concerns about their ability to meet the document and witness requirements for registering and requesting and submitting an absentee ballot. Morse Decl. ¶ 5; Trapp Decl. ¶ 4; Larson Decl. ¶ 3; Keel Decl. ¶ 3; Love Decl. ¶ 4. And, if they are able to find a witness, they must jump through a series of hoops in order to minimize the risks to the health of themselves and others. See, e.g., Decl. of Peggy Roush (“Roush Decl.”) ¶ 3. Voters also are expressing concern that if they are able to cast an absentee ballot, it will not arrive in time to be counted. Strang Decl. ¶¶ 7, 10; Morse Decl. ¶¶ 6–8; Trapp Decl. ¶¶ 5–7; Larson Decl. ¶¶ 4–6; Callahan Decl. ¶¶ 5–6; Roush Decl. ¶¶ 6–7; Wilson Decl. ¶ 6; see also Keel Decl. ¶¶ 5-6 (describing how his absentee ballot, sent well before election day, arrived too late to be counted during the February 2020 election). In the short time available to prepare this Motion, Plaintiffs have collected and are submitting numerous declarations from affected voters. These represent just a small sample of the individuals impacted by the Challenged Provisions and this crisis⸺thousands of other Wisconsin citizens stand in the shoes of these declarants.
For these reasons and those set forth below, the State has no legitimate interest in continuing to impose the Election Day Receipt Deadline, the absentee photo ID and witness requirements, or the requirement for proof of documentation of residency. Nor does the State have
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a legitimate interest in limiting by-mail registration, and certainly not the type of extremely compelling state interest that the State must show given the potential widespread disenfranchisement of Wisconsin voters. Accordingly, this Court should do what state officials in Wisconsin do not believe they have the authority to do⸺and what the State Legislature has flatly refused to do⸺ensure that as many Wisconsin citizens as possible who wish to vote in the April 7, 2020 election have the ability to do so and to do so safely.
II. STATEMENT OF FACTS On Tuesday, March 24, 2020, Governor Evers issued a Safer-at-Home Order, requiring all Wisconsinites to shelter in place to slow the spread of COVID-19. Ex. 4. The order was issued as the number of positive cases, as well as the COVID-19 death toll, continues to grow⸺at last count, over 710 cases and at least twelve deaths. Ex. 2. While the coronavirus crisis mounts, Wisconsin is moving forward with the April 7, 2020 election. Ex. 5; Ex. 6; Ex. 7; Ex. 8. And officials from Governor Evers, to the WEC administrator, to the Mayor of Milwaukee are all encouraging voters to vote absentee, with Milwaukee’s mayor actually asking for the election to be converted to an all-mail election. Ex. 6 (“The most important ask is for people to vote absentee,” [Gov. Evers] said.”); Ex. 7 (“We are encouraging people across the state to avail themselves to absentee balloting or early voting. Either one of those work.”); id. (“If you are worried about getting to the polls on Election Day, make sure you are registered to vote at your current address and with your current name, and request an absentee ballot as soon as possible,” said [WEC] administrator Meagan Wolfe.”); see also Ex. 8 (“I think the real key here,” [Mayor] Barrett said at city hall Sunday afternoon, “is having more and more people voting absentee in this election. We don’t want to have a lot of people at the polls on election day.”); Ex. 9 (discussing Mayor of Milwaukee’s request for all-mail voting in April 7, 2020 election); see also, e.g., Ex. 7; Ex. 10; Ex. 11; Ex. 12.
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Wisconsinites have heeded these calls. In fact, while absentee ballot requests were already “pouring in,” at the time of Plaintiffs’ Temporary Restraining Order filing, see Br. in Support of Mot. at 4 (citing Ex. 3 to March 18, 2020 Spiva Decl. and explaining that between March 13 and March 16, 64,000 absentee ballots requests had come in); see also Ex. 12, they have since skyrocketed as the need to shelter in place and socially distance has become not only more apparent but required by law. See Ex. 4. To date, 699,431 absentee ballots have been requested statewide. Ex. 13. On March 23, 2020, WEC administrator Wolfe explained to this Court that “we’re also seeing unprecedented traffic for people requesting their absentee ballot”⸺so much so that it has caused the State’s MyVote system to crash. Ex. 3 at 25-26; Witzel-Behl Decl. ¶ 7 (discussing “unprecedented number of requests for absentee ballots” in Madison); Albrecht Decl. ¶ 5 (estimating absentee ballot requests this election are ten times the normal number); Eggen Decl. ¶ 2.
While this traffic demonstrates that Wisconsinites are taking both their health and their right to vote seriously, it also has unintended consequences that threaten the right to vote under the current laws. Specifically, Wisconsin law requires that individuals requesting an absentee ballot for the April 7 election for the first time must obtain a copy of their photo ID and return it with their request to receive a ballot. Wis. Stat. § 6.86. Similarly, all absentee voters must obtain a signature from a witness to complete their ballot. Id. § 6.87(2). All voters must also mail their absentee ballots so that they arrive at the municipal clerk’s office by 8:00 p.m. on Election Day (“Election Day Receipt Deadline”). Id. § 6.87(6). If the absentee ballot arrives after 8:00 p.m. on Election Day—even if cast long before Election Day—it is rejected, and the voter is disenfranchised. Id. Finally, as of March 18, voters without a Wisconsin DMV-issued ID no longer have any option to register in most localities, id. § 6.28(1), and, even if they could, these voters
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would be required to mail copies proof of residency, id. § 6.34. But as the City Clerks of Madison and Milwaukee, as well as Dr. Barry Burden, an expert in election administration and voting, explain, it is exceedingly difficult, and in some cases impossible, to meet these requirements given the extraordinary circumstances caused by the COVID-19 crisis and the related Safer-At-Home Order. See generally Ex. 1 (report of Dr. Burden); Witzel-Behl Decl.; Albrecht Decl.; Cities’ Mot.; McDonell Decl. (Dane County Clerk).
In particular, the City Clerk of Madison explains that “[a]ttempting to meet the extraordinary demand for absentee ballots and other requests from voters has strained the capabilities of the Clerk’s office.” . . . [and] “[t]he ever-increasing volume of requests for absentee ballots is threatening to overwhelm the staff available.” Witzel-Behl Decl. ¶¶ 6,8; see also, e.g., Ex. 9; Ex. 12; see also Albrecht Decl. ¶ 6 (identifying backlog of requests). Indeed, the influx of requests has resulted in backlogs that are causing at least a week-long delay in sending out absentee ballots in Madison, Witzel-Behl Decl. ¶ 9, and shortages of mailing labels and envelopes, id. ¶ 15. At last count, Madison still had a backlog of more than 12,000 absentee ballot requests to process. Id. ¶ 9. Moreover, poll workers⸺about 67% of whom are in the at-risk category for COVID-19 as they are over 60 years of age⸺are deciding not to work at in-person polling locations, reducing options for in-person early voting as well as election day voting and further pushing people to vote by mail. Witzel-Behl Decl. ¶ 4 (32% of Madison’s poll workers have canceled their assigned shifts); Albrecht Decl. ¶ 3 (less than 500 poll workers available out of 1,400 needed); McDonell Decl. ¶ 4. Milwaukee has reported that it no longer has sufficient staff to operate its three in-person early voting locations. Ex. 9. And Madison has limited in-person absentee voting to curbside voting, eliminating voting in its other early voting locations. Ex. 14. These challenges are not
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limited to Madison and Milwaukee but are being faced by local election administrators throughout the state. Ex. 12.
As a result, “the 8:00 p.m. election day deadline for receipt of absentee ballots is completely unworkable.” Witzel-Behl Decl. ¶ 13. “[T]here is no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request . . . will have time to receive, vote and return their ballot by Election Day.” Cities’ Mot. at 5. And, indeed, in Madison alone, the City Clerk estimates that they will “receive more than 1,000 absentee ballots” after the Election Day Receipt Deadline. Witzel-Behl Decl. ¶ 13. Milwaukee similarly estimates that “thousands” of ballots will arrive late. Cities’ Mot. at 5; see also Albrecht Decl. ¶ 9 (estimating at least 1,000 ballots will arrive after the 8:00 p.m. deadline). Further, Dr. Burden explains that even in the best of times, two to three days are necessary for a ballot to arrive on time but now, as voters encounter significant disruptions “to their personal health, work, [and] meals . . . this timeline will be costly and challenging for many individuals to meet,” Ex. 1 at 10, particularly given that ballots are certain to actually arrive at voters’ homes within that two to three day window given the delays faced by election officials on the frontend. See Witzel-Behl Decl. ¶ 13.
Similarly, due to the coronavirus outbreak and the Governor’s Safer-At-Home Order, individuals who live alone have no person to witness their ballot. Witzel-Behl Decl. ¶ 11; see also Morse Decl. ¶¶ 3–5; Trapp Decl. ¶ 4; Keel Decl. ¶ 3; Wilson Decl. ¶¶ 4–5. Dr. Burden explains that “for a person who lives alone, is immunocompromised and self-quarantining to protect their health, or who has contracted COVID-19 and is in quarantine to protect others, it may be nearly impossible to secure a witness signature in a timely fashion.” Ex. 1 at 9. This is not a hypothetical risk. The Madison Clerk’s Office is already receiving “numerous requests daily from individuals who have received an absentee ballot, but live alone and have no person to witness the ballot. . . .
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[and] are afraid to leave their homes in search of a witness.” Witzel-Behl Decl. ¶ 11; Eggen Decl. ¶ 6. And several voters have submitted declarations testifying that they face this very barrier to voting. See generally Morse Decl., Trapp Decl., Roush Decl., Wilson Decl., Keel Decl. Moreover, under the Safer-At-Home Order, there is a real question as to whether a voter is even allowed to find a witness given that interactions between non-household members are legally prohibited unless they are in keeping with social distancing’s six-feet criterion. Ex. 4.
Likewise, as all non-essential businesses are now shuttered, these same concerns apply to the requirement that first-time absentee voters⸺which, given this unprecedented crisis, will be most voters in this election⸺include a copy of a photo ID with their request for an absentee ballot. See id.; see also Ex. 1 at 5, 7. To create a copy, this requires a facility with a smart phone equipped with a camera, some other scanning or photographing equipment, or a traditional photocopy machine. Id. at 9. This is a new and foreign process for many Wisconsin voters. “Without the assistance of an election official and perhaps other friends or family who are separated physically due to ‘social distancing’ measures taken in response to the virus pandemic, this step will be an administrative and technological hurdle for some prospective voters.” Id. And, in fact, an increasing number of voters have explained this to this Court, making it clear that they will be unable to vote without the temporary lifting of this requirement for this election. Love Decl. ¶ 4; see generally McDonell Decl. ¶¶ 6-7; see also Ex. 9 (“uploading an ID is confusing and cumbersome to voters and many do not have the cell phone or internet access to facilitate the process properly. For some individuals, it would present a significant barrier to voting. Consequently, photo ID requirements should be waived for registered voters.”). These same concerns apply to voters who must submit copies of their proof of residency when registering bymail. Ex. 1 at 7-9.
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Finally, while this Court has extended the online registration deadline to March 30, that accommodation only encompasses those voters who have a DMV-issued ID. Ex. 1 at 7. Since the Court’s order, Madison has severely limited its remaining in-person registration options, Ex. 14, see also Ex. 1 at 8, and Milwaukee⸺the largest voting jurisdiction in the state⸺has eliminated all in-person registration options. Ex. 9; see also Ex 1 at 8. This means that in some parts of the state voters may have an option to register in-person if they do not have a DMV-issued ID, but in other parts of the state they will now have no option to register if they do not have a DMV-issued ID. Moreover, given that this is most likely to impact Milwaukee, the burden of not having by-mail registration will fall disproportionately on Wisconsin’s African American citizens and those with lower incomes who are more transient. Cities’ Mot. at 4; Ex. 1 at 8. Indeed, after this Court issued its order, both Madison and Milwaukee requested that the Court extend the by-mail registration deadline to April 2, 2020, so that persons requesting absentee ballots could also register to vote. Cities’ Mot. at 4.
These facts make it clear that the Challenged Provisions impose severe burdens on Wisconsinites as they navigate this unprecedented crisis and that relief is warranted.
III. ARGUMENT Plaintiffs are entitled to a preliminary injunction because (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable harm absent relief; (3) traditional legal remedies will not adequately protect their rights; (4) the harm they will suffer absent a preliminary injunction outweighs harm the State will suffer because of one; and (5) a preliminary injunction is in the public interest. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
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A. Plaintiffs are likely to succeed on the merits. a. Plaintiffs are likely to succeed on their right-to-vote claim.
The Challenged Provisions severely restrict Wisconsin voters’ right to vote by forcing them to make an unconscionable choice between disobeying government orders and risking their health or exercising their right to vote.
Under the Anderson/Burdick balancing test, the Supreme Court requires courts to “weigh ‘the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’” considering “‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983)). This inquiry is highly fact-specific and may not be undertaken by rote. Rather, the court applies a “flexible standard.” Id. When voting rights are severely restricted, a law “must be narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 280 (1992). But even less severe burdens remain subject to balancing: “[h]owever slight” the burden on voting rights may appear, “it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (controlling op.) (quoting Norman, 502 U.S. at 288–89). In evaluating the burden a law imposes, a court must focus on both the burden on the general electorate and the effect on the actual individuals affected by the law. Id. at 201; see also One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 930 (W.D. Wis. 2016).
Courts have repeatedly recognized that disenfranchisement severely burdens the right to vote—and that even disenfranchising a small number of voters can give rise to a severe burden. See, e.g., League of Women Voters of N.C. (“LOWV”) v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014); see also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“[T]he possibility that qualified
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voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”); Ne. Ohio Coal. for the Homeless (“NEOCH”) v. Husted, 696 F.3d 580, 597 (6th Cir. 2012).
Wisconsin will not count an absentee ballot that is received by election offices after 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6). Nevertheless, it is a certainty that thousands of ballots will arrive after the April 7, 2020 deadline due to no fault of the voter. Witzel-Behl Decl. ¶ 13; Albrecht Decl. ¶ 9. Cities’ Mot. at 5. Indeed, the Madison and Milwaukee clerks have explained that “there is no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request . . . will have time to receive, vote and return their ballot by Election Day.” Cities’ Mot. at 5. The reason for this is obvious. Because clerks are delayed in processing absentee requests⸺due both to the unprecedented influx and social distancing⸺the absentee ballots resulting from those requests will get sent out later, arriving to the voter’s home most likely within two to four days of the election. Under normal circumstances, the USPS estimates that it takes at least two to three days for a ballot to reach an election office. Ex. 1 at 910. Indeed, the State typically tells voters to send their ballot in at least a week before the election. Ex. 15. Thus, under these circumstances there is no way for an absentee ballot to arrive at the clerk’s office prior to election day. As a consequence, thousands of voters will be disenfranchised.
In a situation analogous for its lack of foreseeability, one court allowed ballots cast on or before Election Day—but received after Election Day—to be counted due to the anthrax attacks of 2002. In re Holmes, 788 A.2d 291 (N.J. Super. Ct. 2002). The court held that “rigid application of the rule that all ballots be received by the board by 8:00 P.M. of Election Day would unfairly deprive absentee voters of their franchise as a result of exceptional circumstances neither within their control nor which, in light of human experience, might reasonably be expected.” Id. at 295.
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The same must result here. In similar contexts, courts have held that deadlines must give way when voting rights are at stake. See Doe v. Walker, 746 F. Supp. 2d 667, 677 (D. Md. 2010) (extending deadline to count votes after UOCAVA challenge); United States v. Cunningham, No. 3:08-cv709, 2009 WL 3350028, at *4 (E.D. Va. Oct. 15, 2009) (same).
The absentee ballot witness requirement, photo ID requirement, and documentation of residency requirement disenfranchise thousands of voters by forcing them to choose between preserving their health and obeying a statewide stay at home order and exercising their right to vote. Wisconsin voters who vote absentee by-mail must obtain a witness signature to complete their ballot. Wis. Stat. § 6.87(2). But the Governor’s Safer-At-Home Order effectively prohibits individuals who live alone from doing so. Indeed, the Safer-At-Home Order restricts all interactions between non household members unless they are six feet apart. Ex. 4. However, to obtain a witness signature, a person living alone would have to interact with a non household member to secure a signature. See Ex. 1 at 9. Moreover, that interaction⸺both the witnessing and signing of the ballot⸺would require the individuals to come within six feet of each other. Thus, in these circumstances, it is extremely difficult if not impossible for a person living alone to obtain a witness signature. Id. at 9, 12; see also Morse Decl. ¶¶ 4–6; Trapp Decl. ¶¶ 4–5; Roush ¶ 3–4; Keel Decl. ¶ 3. In fact, numerous voters have already contacted the Madison’s Clerk’s Office to explain that they are afraid to leave their homes in search of a witness. Witzel-Behl Decl. ¶ 11; see also Eggen Decl. ¶ 6 (voters in Hudson contacting clerk’s office for similar reasons). And for those individuals who live alone and are immunocompromised or self-quarantining, they do not simply risk breaking the law to obtain a signature, but they face placing their health in jeopardy. Ex. 1 at 9; see also Morse Decl. ¶¶ 3–5; Wilson Decl. ¶¶ 4–5; Larson Decl. ¶ 5; Trapp Decl. ¶ 4; Keel Decl. ¶ 3. Neither of these groups of individuals can vote without obtaining a signature, however.
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Consequently, this requirement severely burdens individuals’ voting rights because, absent disobeying state law and severely compromising their health, it results in disenfranchisement.
The requirements that individuals registering to vote or voters applying for an absentee ballot provide copies of documentation—proof of residency for registrants and voter identification for absentee ballot applicants⸺are no different. Wis. Stats. §§ 6.34, 6.86, 6.87. Indeed, since the Court issued its Order on Plaintiffs’ Motion for a Temporary Restraining Order the burdens imposed by these requirements have only grown worse as Wisconsinites are now ordered to shelter in place. As noted, the Governor has since issued a Safer-At-Home Order that mandates that people stay at home, while also shutting down nonessential businesses and public libraries. Ex. 4. But to provide the required documents means a voter must locate a copier, scanner, computer, and/or printer. Ex. 1 at 9. These are machines not every individual or household has access to, particularly among less-affluent populations, the elderly (a population specifically at risk in this pandemic), and college students, among others. Id. at 8-9. Therefore, among large swaths of Wisconsin’s population, to provide the required documentation means leaving the house, locating a copier, scanner, and/or printer (a task increasingly more difficult as locations with those machines shutter). Under the Safer-At-Home Order, it is plain that voters are not supposed to venture out to find these, and it is not clear that places with printers are deemed “essential” and thus even available should a voter take the risk to venture out. Ex. 4. In the same way that statutory notarization requirements are being temporarily relaxed because of the COVID-19 pandemic, the statutory witnessing requirement must be loosened to permit absentee voting to go forward during the emergency. See Ex. 17 (“We ‘avoid statutory interpretations that lead to absurd results,’ and it would be absurd to construe those statutes to require in-person appearances in the time of a global pandemic. People’s lives are at stake.”); see also In re the Matter of the Remote Administration of
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Oaths at Depositions via Remote Audio-visual Equipment During the COVID-19 Pandemic (Wis. Mar. 25, 2020), https://www.wicourts.gov/news/docs/oaths.pdf, (court reporters need not be in the physical presence of the witness to administer an oath under Wis. Stat. §§ (Rules) 804.03 and 804.05); In re the Matter of Admission to the Bar During the COVID-19 Pandemic, (Wis. Mar. 25, 2020), https://wicourts.gov/news/docs/baradmissions.pdf (waiving requirement under Sup. Ct. R. 40.02(4) that bar applicant take the Attorney’s Oath in person). Accordingly, these requirements also severely burden individuals’ voting rights by forcing voters to the choice of unnecessarily risking their violation of an executive order or exposure to a deadly virus and results in disenfranchisement.
Finally, in the absence of expedited measures by this Court, there is a growing risk that the enforcement of the Challenged Provisions could result in widespread confusion and glaringly inconsistent enforcement throughout the State. The imposition of the March 18 by-mail registration deadline means that thousands of Wisconsin citizens are not afforded an equal opportunity to register as other similarly situated Wisconsin voters, severely burdening their right to vote. While this Court extended the online registration deadline to March 30, this extension only enables Wisconsin citizens who have DMV-issued ID to register. Ex. 1 at 7-8. And since this Court issued its Order circumstances on the ground have changed drastically. Milwaukee has eliminated all in-person early voting and registration locations, see, e.g., Ex. 9, and Madison has severely limited them, Ex. 14. Consequently, Wisconsin citizens without DMV-issued IDs in these localities⸺a disproportionate number of whom are minority or low-income individuals⸺have severely limited to no way in which to register. Ex. 1 at 8; Cities’ Mot. at 5. As a result, citizens without DMV-issued IDs in Milwaukee and Madison are being treated differently, for no fault of their own, from other similarly situated Wisconsin voters across the state and, alarmingly, now
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have no way to register to vote. This is an egregious denial of their right to vote and this Court, as other courts have done, should find that the by-mail registration deadline must give way for these potential voters to register and vote. See Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016) (granting preliminary injunction to extend voter-registration deadline due to a hurricane); Ga. Coal. for the Peoples’ Agenda, Inc., v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016) (granting preliminary injunction to extend voter-registration deadline due to a hurricane and observing that “an individual’s loss of the right to vote is clearly an irreparable injury that outweighs any damage caused by extending the deadline”).
No “precise interest” Wisconsin articulates can justify the burdens the Challenged Provisions inflict on its voters. Anderson, 460 U.S. at 789. First, while the State has an interest in ensuring the finality of elections, rejecting validly cast ballots that happen to arrive after 8:00 p.m. on Election Day does not serve that interest. In fact, this purported state interest is undercut by Wisconsin’s own processes. Ballots are still being processed long after Election Day. For instance, voters who cast provisional ballots have until 4:00 p.m. on the Friday after Election Day to cure them, while local boards of canvassers have until 9:00 a.m. on the Monday following Election Day to record and count the cured ballots. See Wis. Stat. § 6.97(3)–(4). County clerks need not deliver the election’s results to the State Election Commission until “no later than 9 days after each primary.” Wis. Stat. § 7.60(5). Even more, Wisconsin does not need to complete the canvassing following the “spring election” at issue here until May 15—more than five weeks after Election Day. Wis. Stat. § 7.70(3)(a). There is, then, ample time to accept and count validly cast absentee ballots that are postmarked by Election Day but arrive at some point thereafter. Doing so would not violate Wisconsin’s interest in finality of elections.
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Moreover, the reality is that given the current COVID-19 crisis and the resulting influx of absentee ballots and decrease in available staff, the local election clerks do not anticipate being able to complete the counting of election returns within a week after the election much less on election day. See Cities’ Mot. at 5 (discussing the practical constraints of counting thousands of absentee ballots while social distancing and noting that it could take “several days” to complete). Thus, as a practical matter, Wisconsin will not have a final election result on April 7 or anytime soon thereafter. As a result, there is simply no reason in this context to arbitrarily require that ballots arrive by 8:00 p.m. on Election Day when the only result will be the unjustified disenfranchisement of thousands of Wisconsin voters.
Second, while Wisconsin has interests in preventing voter fraud and ensuring electoral integrity, these interests do not justify the severe burden of requiring registrants and voters to disobey statewide orders to seek out witnesses, scanners, copiers, and printers during a global pandemic. The state’s interests can be solved by far less risky means. See, e.g., Ex. 17 (allowing remote notarization); see also In re the Matter of the Remote Administration of Oaths at Depositions, supra; In re the Matter of Admission to the Bar, supra. For instance, a voter must already sign a comprehensive certificate on absentee ballots stating she is a resident of the locality from where she is voting. Wis. Stat. § 6.87(2). This certificate is subject to penalties for false statements. Id. And, indeed, state law already recognizes that there may be a need for exceptions to these types of rules, finding that voters who are “indefinitely confined” due to age, illness, infirmity, or disability do not have to comply with the absentee photo ID requirements. Id. §§ 6.86(2)(a), 6.87(4)(b)(2). By virtue of the Governor’s statewide Safer-At-Home Order and COVID-19, all Wisconsin voters are effectively confined due to infirmity or illness. See McDonell Decl. ¶ 7 (explaining that, without proper testing, all citizens should assume that they and others
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they might interact with are sick). At the very least, those voters who are over 60 or in other highrisk groups are certainly “confined” due to their ages and/or infirmities. Thus, for these reasons as well, the absentee photo ID requirement should not apply to them and certainly cannot be justified by the State.
Finally, while the State has an interest in identifying a deadline for voter registrations, it has no precise interest in limiting voter registrations only to on-line registration, particularly where that form of registration is not available to citizens without a DMV-issued ID and current circumstances have eliminated in-person registration options for thousands of other individuals. In fact, under these circumstances, extending the by-mail registration deadline would ensure that the status quo⸺registration through April 2, Wis. Stat. 6.29(2)(a), remains in place for all voters in the state, not just those voters located outside of Milwaukee and Madison. Moreover, the extension of this is not only feasible administratively, but it is precisely what local clerks have requested from this Court. Cities’ Mot. at 4. Thus, the State can have no real argument against it.
b. Plaintiffs are likely to succeed on their Procedural Due Process claim. Plaintiffs are also likely to succeed on their procedural due process claim. Wisconsin cannot deprive any person of liberty without “due process of law,” U.S. Const. amend. XIV, § 1. In the current environment of mandatory stay at home orders, self-quarantines, the shuttering of significant portions of the national and global economies, and social distancing amidst an extraordinary global pandemic, the Challenged Provisions do just that because they operate to deprive voters’ liberty interest in voting without process. Courts must first consider the “‘private interest that will be affected by the official action.’” Boyd v. Owen, 481 F.3d 520, 525 (7th Cir. 2007) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Next, courts must consider the “fairness and reliability” of the existing procedures and the “probable value, if any, of additional procedural safeguards.” Mathews, 424 U.S. at 343.
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Finally, courts assess the public interest, “includ[ing] the administrative burden and other societal costs that would be associated with” additional or substitute procedures. Id. at 347.
Each of these factors weighs heavily in Plaintiffs’ favor here. First, the right to vote is unquestionably a liberty interest and cannot be “confiscated without due process.” Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990). This liberty interest extends to by-mail voting in Wisconsin. See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018) (“voter has a sufficient liberty interest once ‘the State permits voters to vote absentee.’”) (quoting Zessar v. Helander, No. 05-C-1917, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006)).
Second, the degree of deprivation resulting from the Challenged Provisions is extraordinarily high. This deprivation is neither hypothetical nor speculative; it is happening each day that the coronavirus spreads, governments respond to the growing threat, and individuals take extraordinary state mandated precautions to avoid the pandemic in the form of physical isolation. Already, Wisconsin voters have requested—and continue to request—record levels of absentee voting. See supra pp. 2, 6.
Third, the Challenged Provisions are neither fair nor reliable in the context of a growing global pandemic. The administrative burden on Wisconsin in waiving the proof of residency requirement and extending the deadline for by-mail voter registrations, waiving the photo identification requirement for absentee ballot applications, waiving the absentee witness requirement, and extending the time in which a likely avalanche of absentee ballots may be received and counted is marginal compared to the deprived liberty interest. Mathews, 424 U.S. at 335.
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c. Plaintiffs are likely to succeed on their Equal Protection claim. Plaintiffs are also likely to succeed on their equal protection claim. Wisconsin cannot deny[ ] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The requirements of equal protection in the electoral process are well known. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Among other things, this requires “specific rules designed to ensure uniform treatment” in order to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in. Id. at 106-07. There is no “emergency exemption” from this equal protection requirement. “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” Id. at 108-09; see also id. at 109 (shutting down the 2000 Florida recount because the recount process was “inconsistent with the minimum procedures necessary to protect the fundamental right of each voter”). The present emergency abounds with many risks of unfair, unequal, and disparate treatment of Wisconsin voters depending on where they live. Statutorily guaranteed in-person registration and voting are now available to some Wisconsin voters but not to others, depending on where they reside. See, e.g., Exs. 10, 12, 14; see also Cities Mot. at 2 (identifying closure of some, but not all, polling places due to COVID-19). Similarly, the application of the documentation requirements for registering to vote and requesting an absentee ballot varies broadly across cities and counties, resulting in some voters being subject to these requirements while others are not. See McDonell Decl. ¶ 7. Voters also are receiving conflicting guidance on the witness requirement for absentee ballots depending on where they live and who they call. See, e.g., Ex. 16 (quoting Madison officials suggesting FaceTime or Skype to satisfy requirement). Many voters, particularly those who live alone, lack access to a witness but are simultaneously
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being instructed by the authorities to stay at home and practice social distancing. See, e.g., Trapp Decl. ¶ 3; Wilson Decl. ¶ 4; Keel Decl. ¶ 3.
Moreover, voters are receiving radically conflicting advice on whether they are now “indefinitely confined because of age, physical illness or infirmity” within the meaning of Wis. Stat. §§ 6.86(2)(a) and 6.87(4)(b)(2), and therefore exempt from many of the absentee voting restrictions and conditions. On information and belief, election officials in some Wisconsin counties and localities are telling voters they are now “indefinitely” confined by the pandemic and emergency government orders. See McDonell Decl. ¶ 7. At the very least, voters who are over 60 and/or in one of the other high-risk groups would seem to be “indefinitely confined because of age, physical illness or infirmity.” Id. ¶ 6. So would those who are suspected of having been exposed to the COVID-19 virus and are under quarantine. Yet voters in other jurisdictions are being told this exception does not apply and that they must jump through the usual hoops, even if at risk to health and life.
In these and other respects, if this Court does not require “uniform rules” and “specific standards” in conducting the April 7 election under these emergency conditions, there will be an unacceptably high risk that Wisconsin will not satisfy “the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Bush v. Gore, 531 U.S. at 105-06. If anything, the equal protection risks are even greater here than in Bush v. Gore. There, the right to vote was at risk. Here, the risks are to the right to vote and to the right to life⸺our own and the lives of others.
B. An injunction is necessary to avoid irreparable harm. The Challenged Provisions operate to inflict two irreparable harms on Wisconsin voters.
First, they result in disenfranchisement. Disenfranchisement constitutes irreparable injury. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); LOWV, 769 F.3d at 247 (“Courts routinely
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deem restrictions on fundamental voting rights irreparable injury.”) (citations omitted); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (explaining that the loss of constitutional “freedoms . . . unquestionably constitutes irreparable injury”). Once the election comes and goes, “there can be no do-over and no redress.” LOWV, 769 F.3d at 247. The Seventh Circuit has recognized that once a constitutional violation has been demonstrated, no further showing of irreparable injury is necessary. Ezell v. City of Chi., 651 F.3d 684, 699 (7th Cir. 2011) (infringement on constitutional rights caused irreparable harm); see also Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”).
Second, the Challenged Provisions contribute to public health risks and encourage defiance of statewide orders. They operate to encourage determined registrants and voters to venture out into the world and interact face-to-face with people—despite a statewide order requiring otherwise. At worst, the Challenged Provisions risk exposing Wisconsinites to an ailment that has already claimed thousands of lives internationally. Cf. Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (affirming preliminary injunction barring county from closing hospital because doing so would cause irreparable harm to patients and “exacerbation of the current overcrowded situation and additional suffering . . . avoided” by enjoining closure). The Seventh Circuit has recognized that “the denial of injunctive relief after a district court has found a risk of imminent and substantial danger to public health or to the environment should be rare.” LAJIM, LLC v. Gen. Elec. Co., 917 F.3d 933, 942 (7th Cir. 2019). That risk of substantial danger to the public health is substantial, imminent, and ongoing.
C. Traditional legal remedies will not adequately protect Plaintiffs’ rights. Because members and constituents of Plaintiffs face the inability to register and vote
without disobeying a statewide order, exposing themselves to the coronavirus, and negatively
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impacting the public health, traditional legal remedies are inadequate. The Seventh Circuit has presumed that money damages cannot adequately remedy a constitutional violation. Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (reversing denial of preliminary injunction on complaint alleging First Amendment claims). More specifically, money damages cannot cure disenfranchisement post hoc. Cf. Frank v. Walker, 196 F. Supp. 3d 893, 904 (E.D. Wis. 2016) (finding, where plaintiffs faced violations of their voting rights in elections that might occur before the resolution of their claims, “traditional legal remedies, such as monetary damages, would be inadequate”). Given the close proximity of the primary election, it is certain than an election will occur, necessitating action from this Court to ensure that Plaintiffs’ voters’ and constituents’ rights are not violated.
D. The balance of hardships weighs in favor of an injunction. The balance of the equities favors Plaintiffs. On the one hand, an injunction would protect
the health of the public. An injunction would also prevent disenfranchisement by removing barriers to voting during a time of an unprecedented public health crisis. On the other hand, the state may have a handful more administrative tasks⸺though the declarations submitted by the local clerks indicate that, if anything, the relief Plaintiffs’ seek will actually ease administrative burdens. But even if there were limited administrative burdens, mild inconvenience is outweighed by the vindication of constitutional rights. See Taylor v. Louisiana., 419 U.S. 522, 535 (1975) (holding “administrative convenience” cannot justify practices that impinge upon fundamental rights); see also Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018) (holding increased administrative burden of “disseminating information” and “training poll managers. . . is minimal compared to the potential loss of a right to vote”); United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012) (“[t]he potential hardships that Georgia might experience are minor when balanced against the right to vote, a right that is essential to an
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effective democracy.”); Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *26 (N.D. Fla. Oct. 16, 2016) (“Any potential hardship [to the state] imposed by providing the same opportunity . . . for [] voters pales in comparison to that imposed by unconstitutionally depriving those voters of their right to vote and to have their votes counted.”).
Here, Wisconsin law does not require counties to begin their canvass until one week after Election Day. Wis. Stat. § 7.60(3). The law also provides that county clerks must deliver the results to the state election commission “no later than 9 days after each primary . . .” Wis. Stat. § 7.60(5). Even more, the state need not complete its canvass until May 15. See Wis. Stat. § 7.70(3)(a). There is, in short, ample time for the modest administrative tasks that an injunction would require—tasks far outweighed by the protection of voting rights and to benefit public health.
E. An injunction is in the public interest. Without question, an injunction that is aimed to protect the public from more exposure to
the coronavirus and avoid disenfranchisement is in the public interest. “[I]njunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y, 453 F.3d at 859. “The vindication of constitutional rights . . . serve[s] the public interest almost by definition,” including specifically when the right at issue is the right to vote. League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012). This is because the public has a “strong interest in exercising the fundamental political right to vote.” Purcell, 549 U.S. at 4. In sum, “[t]he public interest . . . favors permitting as many qualified voters to vote as possible.” Obama for Am., 697 F.3d at 437. Enjoining the Challenged Provisions here would do precisely that—allow as many qualified Wisconsinites as possible to safely vote.
IV. CONCLUSION For the reasons stated, Plaintiffs respectfully request that the Court issue a preliminary injunction that: (1) requires defendants to extend Wisconsin’s by-mail registration deadline to
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April 2, 2020; (2) enjoins the enforcement of Wis. Stat. § 6.34’s proof of residency requirement
for voter registrations; (3) enjoins the enforcement of Wis. Stat. §§ 6.86-87 photo identification
requirements for absentee ballot requests until the COVID-19 crisis is over; (4) enjoins the
enforcement of Wis. Stat. § 6.87(2) witness requirement for absentee ballots; and (5) prohibits
defendants from rejecting ballots that are postmarked before or on Election Day that arrive within
ten days of Election Day.
Dated this 27th day of March, 2020.
Respectfully submitted,
/s/ Bruce V. Spiva Marc E. Elias John Devaney* Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for the Plaintiffs *Motion for Admission Forthcoming
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 Case: 3:20-cv-00249-wmc Document #: 85 Filed: 03/28/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants

OPINION AND ORDER 20-cv-249-wmc

In this case, the Democratic National Committee and the Democratic Party of Wisconsin (jointly, “the DNC/DPW”) seek to enjoin defendants’ enforcement of certain election laws, arguing that due to the COVID-19 public health emergency these laws impose unconstitutional burdens on citizens’ right to vote in the upcoming April 7, 2020, primary election. Now, the Republican National Committee and the Republican Party of Wisconsin (jointly, “the RNC/RPW”) have joined the Wisconsin Legislature in moving to intervene to defend enforcement of the challenged laws. (Dkts. #20, 41.) Plaintiffs oppose these motions. For the reasons set forth below, the court will deny the Wisconsin Legislature’s motion, but will permit the RNC/RPW to intervene permissively. The Wisconsin Legislature and other, interested non-parties may continue to participate by filing timely amicus curiae briefs as this court attempts to resolve the difficult questions posed by this lawsuit consistent with Federal Rule of Civil Procedure 1.

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BACKGROUND On March 18, 2020, plaintiffs filed the present lawsuit, arguing that the spread of the novel coronavirus in the state of Wisconsin presents new and unprecedented problems for the upcoming April 7, 2020, election. In particular, plaintiffs point out that state and federal officials have both urged individuals to stay at home and out of public spaces as much as possible. In light of these concerns, plaintiffs requested emergency injunctive relief from this court, arguing that certain of Wisconsin’s elections laws now impose undue burdens on citizens’ right to exercise their voting franchise. Plaintiffs named the six current members of the Wisconsin Election Commission as defendants. Initially, the defendants were represented by the Attorney General of Wisconsin. Two days ago, however, the Governor appointed special counsel to represent the defendants in this case under Wis. Stat. § 14.11(2)(a), and the three assistant attorneys general originally assigned to work on this case have moved to withdraw as counsel for defendants. (See dkts. #56, 57, 58.) The day after the lawsuit was filed -- March 19, 2020 -- the Wisconsin Legislature filed a notice with the court expressing its intent to intervene. Later that afternoon, the court held a telephonic hearing with all parties, in which counsel for the Wisconsin Legislature was included as representative of a proposed intervenor. The next day, the court issued an order, granting in part plaintiffs’ request for a temporary restraining order, and denying without prejudice the remainder of their motion. Shortly before the court issued this order, the RNC/RPW informed the court that they, too, intended to move to intervene as defendants in the suit; they then formally did so two days later on March 22,
2

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2020. The court held another telephonic hearing on March 23, 2020, at which plaintiffs,
defendants, and all of the proposed intervenors were permitted to appear. At the hearing, the court set an expedited briefing schedule for both intervention motions, among other matters. Initially, both plaintiffs and defendants opposed the proposed interventions; however, defendants have since withdrawn their opposition. Having now received all briefing from the parties, the court will address both intervention motions in this opinion.
OPINION I. Motions to Withdraw as Attorneys
As an initial matter, the court will address the three motions to withdraw filed by assistant attorneys general Brian P. Kennan (dkt. #56), Jody J. Schmelzer (dkt. #57), and S. Michael Murphy (dkt. #58). The ABA Model Rules of Professional Conduct provide that an attorney may withdraw from a case if “good cause for withdrawal exists.” See Fid. Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., 310 F.3d 537, 540 (7th Cir. 2002) (citing Model Rules of Professional Conduct, Rule 1.16(b)(7)). Here, the Governor ordered that the attorneys be replaced by private counsel, which certainly constitutes “good cause.” Although the Wisconsin Legislature questions the validity of the Governor’s order under state law (see Wis. Legislature Reply (dkt. #71) 3), that issue is not before this court. Accordingly, the motions of the assistant attorneys general to withdraw as counsel will be granted.
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II. Motions to Intervene The proposed intervenors argue that they are entitled to intervene as a matter of
right under Federal Rule of Civil Procedure 24(a) or, in the alternative, that permissive
intervention under Rule 24(b) is warranted. Under the Rules of Civil Procedure, a court
must permit intervention when: “(1) the application is timely; (2) the applicant has an
‘interest’ in the property or transaction which is the subject of the action; (3) disposition
of the action as a practical matter may impede or impair the applicant’s ability to protect
that interest; and (4) no existing party adequately represents the applicant’s interest.” Sec.
Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir. 1995) (citing Fed. R.
Civ. P. 24(a)(2)).
Plaintiffs and defendants primarily argue that the proposed intervenors cannot
establish the fourth element -- adequacy of representation -- and so this court will begin its discussion there.1 As an initial matter, the applicable standard of review as to this element
must be determined. The Seventh Circuit has “recognized three standards for the
adequacy of representation under Rule 24 depending on the context of each case.” Planned
Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 799 (7th Cir. 2019).
The default rule is a liberal one: The requirement of the Rule is satisfied if the applicant shows that representation of his interest may be inadequate. Where the prospective intervenor and the named party have the same goal, however, there is a rebuttable presumption of adequate representation that requires a showing of some conflict to warrant intervention. This presumption of adequacy becomes even stronger when the
1 Plaintiffs specifically note that they do not concede that the RNC/RPW have established the other elements, but explain that their “brief, prepared in the rush of events, focuses only on the most obvious reasons to deny both intervention of right and by permission.” (Pls.’ Opp’n to RNC/RPW Mot. to Intervene (dkt. #52) 3 n.3.)
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representative party is a governmental body charged by law with protecting the interests of the proposed intervenors; in such a situation the representative party is presumed to be an adequate representative unless there is a showing of gross negligence or bad faith. Id. As an initial matter, the default liberal standard is plainly inapplicable. Defendants and proposed intervenors currently share the same goal: to uphold the constitutionality of the challenged laws. See Planned Parenthood, 942 F.3d at 799 (holding that the defendants and the proposed intervenor shared the same goal where both sought “to uphold the constitutionality of the challenged statutes”); Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640, 659 (7th Cir. 2013) (“WEAC”) (holding that defendant and proposed intervenor “share the same goal: protecting Act 10 against the Unions’ constitutional challenge”). Thus far in the litigation at least, defendants have actively defended all of the challenged laws, and they have indicated that they will continue to do so. (Defs.’ Opp’n (dkt. #51) 5-6.) The proposed intervenors’ arguments to the contrary are not persuasive. The RNC/RWP argue for the first time in their reply brief that they do not share the same goal as defendants, whose “broader interests” make them less likely to pursue an emergency appeal. (RNC/RWP Reply (dkt. #78) 4.)2 Similarly, the Legislature couches its arguments in hypotheticals, writing that the liberal standard “may well” apply “if” the defendants
2 In their initial brief, the RNC/RWP fail to even recognize the three standards applied in the Seventh Circuit, erroneously asserting instead (and concluding without citation) that they need only show that the representation “may be” inadequate. (RNC/RPW Mot. to Intervene (dkt. #42) 8.)
5

Case: 3:20-cv-00249-wmc Document #: 85 Filed: 03/28/20 Page 6 of 12
decline to defend some of the challenged laws or “if” defendants do not choose to pursue an appeal. (Wis. Legislature Br. (dkt. #21) 8.) Certainly, if defendants do fail to appeal any future decision, one or both of the proposed intervenors may well be entitled to intervene as of right. Indeed, in Flying J., Inc. v. Van Hollen, 578 F.3d 569 (7th Cir. 2009), the Seventh Circuit held that even a private association seeking to defend a challenged state statue was permitted to intervene as a matter of right where the state attorney general failed to appeal a court order enjoining enforcement of the statute. Id. at 573-74. But in that same case, the court also noted:
Had the association sought to intervene earlier, its motion would doubtless (and properly) have been denied on the ground that the state's attorney general was defending the statute and that adding another defendant would simply complicate the litigation. For there was nothing to indicate that the attorney general was planning to throw the case -- until he did so by failing to appeal. Id. at 572. So, too, here. Having concluded that the default, liberal standard is inapplicable, the next question is whether the middle “some conflict” standard or the heighted “gross negligence or bad faith” standard apply. Certainly, if the Attorney General continued to represent defendants, the Seventh Circuit’s decision in Planned Parenthood, upholding the application of the “gross negligence or bad faith” standard, would appear to control. 942 F.3d 793. There, the Wisconsin Legislature sought to intervene in a suit filed against the Attorney General and other state officials challenging the constitutionality of certain state abortion regulations. Id. at 796. The court held that, absent a showing that the Attorney General was acting with bad faith or gross negligence, the Wisconsin Legislature had not
6

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demonstrated inadequate representation and was not entitled to intervene. Id. However, the Attorney General no longer represents defendants, as the Governor
has apparently ordered him to be substituted by private counsel. This is at least arguably significant because, while the “Attorney General of Wisconsin has the duty by statute to defend the constitutionality of state statutes,” Helgeland v. Wis. Municipalities, 307 Wis.2d 1, 745 N.W.2d 1, 24 (2008), no such express statutory obligation would appear to exist for the defendants or their newly-appointed private counsel. Even so, the Wisconsin Election Commissioners are charged generally with the “administration” of election laws. See Wis. Stat. § 5.05(1). Accordingly, as members of the governmental body charged by law with administering the law that protect the interests of the proposed intervenors seek to be enforced their interests appear to be fully protected. In an abundance of caution, however, the court will not hold the proposed intervenors to this heightened “gross negligence or bad faith” standard, as even under the more lenient “some conflict” standard the propose intervenors have not demonstrated that they are entitled to intervene in this case.
Under the “some conflict” standard, a proposed intervenor must still overcome the presumption of adequate representation by showing “a concrete, substantive conflict.” Planned Parenthood, 942 F.3d at 810 (Sykes, J., concurring). Here, both proposed intervenors have failed to do so. As noted already, the Legislature argues that “if” defendants do not fully defend the constitutionality of any of the challenged laws, then it would “plainly” show inadequate representation (Wis. Legislature Br. (dkt. #21) 9), but this mere hypothetical has obviously not yet come to pass. To the contrary, defendants
7

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have and continue to actively and competently oppose plaintiffs’ challenges. If anything, in no longer objecting to intervention by either group, the Commissioners seem to have taken a more favorable position to the proposed intervenors since the Attorney General withdrew its representation.
This leaves the proposed intervenors’ joint argument that they do not share the same interests as defendants and, therefore, are inadequately represented. Specifically, the RNC/RPW note that defendants represent the “public interest,” and have to consider the expense of defending state laws, the social and political divisiveness of elections issues, their own desires to remain politically popular, and the interests of opposing parties. (RNC/RPW Br. (dkt. #42) 7-8.) They contrast this with their “particular interests,” including the election of particular candidates, the mobilization of particular voters, and the costs of both. (Id. at 8.) Similarly, the Legislature argues that the defendants only represent the views and interests of the Wisconsin Election Commission and not that of the state as a whole. (Wis. Legislature Reply (dkt. #71) 1.)
However, different political considerations held by the proposed intervenors and defendants are not sufficient by themselves to show inadequate representation. See Am. Nat. Bank & Tr. Co. of Chicago v. City of Chicago, 865 F.2d 144, 148 (7th Cir. 1989) (differing “political considerations” between City and prospective intervenor not enough to make requisite “concrete showing of inadequacy of representation”); Keith v. Daley, 764 F.2d 1265, 1270 (7th Cir. 1985) (proposed intervenor’s different political and moral justifications for defending a statute regulating abortion did not create conflict sufficient to rebut presumption of adequate representation). Thus far, the proposed intervenors have
8

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not shown that any of their divergent interests has resulted in “a concrete, substantive conflict,” as is still required to overcome the “medium” presumption of adequate representation. See Planned Parenthood, 942 F.3d at 810 (Sykes, J., concurring).
The RNC/RPW also speculates that the replacement of the Attorney General with private counsel evinces a conflict, noting that the Governor may appoint special counsel to “act instead of the attorney general in any action or proceeding, if the attorney general is . . . interested adversely to the state.” (RNC/RPW Reply (dkt. #78) 5 (citing Wis. Stat. § 14.11(2)(a)(2)). Interestingly, the Wisconsin Legislature takes the exact opposite interpretation of the Governor’s actions, arguing that the Governor “believes that the Attorney General represents the State’s sovereign interests.” (Wis. Legislature Reply (dkt. #71) 3-4.) The speculative nature of these arguments belies any possible argument that the Governor’s action evinces a concrete conflict, and they are accordingly rejected. See Clorox Co. v. S.C. Johnson & Son, Inc., 627 F. Supp. 2d 954, 962 (E.D. Wis. 2009) (speculation that a defendant’s interests “could conceivably differ” from proposed intervenor’s was insufficient to demonstrate “that any current conflict exists”). If anything, the Attorney General’s office substitution appears to be exactly what the statute requires: a recognition that it has a conflict with the position of the Commissioners, who are charged with administering the statutes as written, again the very position of the proposed
9

Case: 3:20-cv-00249-wmc Document #: 85 Filed: 03/28/20 Page 10 of 12
intervenors.3 Because neither the RNC/RPW nor the Wisconsin Legislature has demonstrated
any “concrete conflict,” they have not overcome the presumption of adequate representation, and therefore have failed to demonstrate that they are entitled to intervene as of right under Rule 24(a). However, this is not the end of the analysis, since the proposed intervenors alternatively argue that the court should allow them to intervene as a matter of discretion under Fed. R. Civ. P. 24(b), which provides that a court may permit an applicant to intervene in the exercise of its own discretion if: (1) the motion is timely and (2) the applicant “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). In exercising its discretion, “[t]he Rule requires the court to consider ‘whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights,’ Fed. R. Civ. P. 24(b)(3), but otherwise does not cabin the district court’s discretion.” Planned Parenthood, 942 F.3d at 803.
Here, given that both the RNC/RPW’s and the Wisconsin Legislature’s motions to intervene were filed within mere days of the lawsuit, the motions are certainly timely. Moreover, there is no reasonable dispute that their proposed defense of the challenged laws shares common questions of law and fact with the main action.
3 The Legislature suggests that, now that the Attorney General has withdrawn from the case, the state of Wisconsin “has the sovereign right to have at least one of its chosen representatives defend its laws.” (Wis. Legislature Reply (dkt. #71) 4-5.) However, the Seventh Circuit in Planned Parenthood specifically declined the Legislature’s request to lower its burden for it to intervene, 942 F.3d at 796, and without any compelling reason to do so here, the court will apply the standard as it would to any other party, especially since, by the Legislature’s reasoning, it would then also have to allow the Governor and Attorney General to intervene as well should they wish to express their own unique position as representatives of the “state,” only further complicating an already complicated lawsuit.
10

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Still, a court may deny permissive intervention where “adding the proposed intervenors could unnecessarily complicate and delay all stages of this case.” One Wisconsin Inst., Inc. v. Nichol, 310 F.R.D. 394, 399 (W.D. Wis. 2015); see also United States v. 36.96 Acres of Land, 754 F.2d 855, 860 (7th Cir. 1985) (upholding district court’s denial of permissive intervention “in order to avoid the likelihood of undue delay and prejudice to the rights of the original parties” and to avoid prolonging “an already lengthy and tired lawsuit”). Here, where time is of the essence, the court will deny the Wisconsin Legislature’s motion to intervene in an effort to expedite and not overly complicate the proceedings. See n.3 supra. Although the same is arguably true for the RNC/RPW, the court will nevertheless permit those entities to intervene as they are uniquely qualified to represent the “mirror-image” interests of the plaintiffs, as direct counterparts to the DNC/DPW. See Builders Ass’n of Greater Chicago v. Chicago, 170 F.R.D. 435, 441 (N.D. Ill. 1996) (permissive intervention is appropriate where “applicants’ interest in the litigation is the mirror-image” of an original party’s interest). Of course, if some new facts were to arise that established an actual conflict -- such as a decision by the current or intervening defendants not to appeal -- then the Wisconsin Legislature is welcome to renew its motion. Moreover, the court again emphasizes that the Wisconsin Legislature and other interested non-parties are free to offer their views as amici.
11

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IT IS ORDERED that:

ORDER

1) The motions of the assistant attorneys general to withdraw as counsel (dkts. # 56, 57, 58) are GRANTED;
2) The Wisconsin Legislature’s motion to intervene (dkt. #20) is DENIED; and
3) The Republican National Committee and the Republican Party of Wisconsin’s motion to intervene as defendants (dkt. #41) is GRANTED.
Entered this 28 day of March, 2020.

BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge

12

 
 Case: 3:20-cv-00249-wmc Document #: 86 Filed: 03/28/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

ORDER 20-cv-249-wmc

Defendants, and REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

Case: 3:20-cv-00249-wmc Document #: 86 Filed: 03/28/20 Page 2 of 3

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

In the three above-captioned cases, plaintiff challenge a number of election-related requirements in light of the COVID-19 health crisis and the upcoming April 7, 2020, election. Defendants in all three cases are the Commissioners of the Wisconsin Election Commission (“WEC”); the latter two cases also name the WEC Administrator, Meagan Wolfe. Plaintiffs are a number of individuals and organizations concerned about the impact of COVID-19 on the ability of Wisconsin voters to exercise their right to vote either by absentee ballot or in person.
At the suggestion of a proposed intervenor, the court will exercise its discretion under Federal Rule of Civil Procedure 42(a) and consolidate these three cases for all purposes. The three cases involve overlapping claims concerning Wisconsin election

requirements, and thus present common questions of law and fact and thus satisfy the

requirement under Rule 42. Moreover, consolidation will facilitate the court’s attempt to

resolve emergency motions pending in the ‘249 and ‘284 cases.

The court notes that counsel for the plaintiffs is the same for the latter two cases

2

Case: 3:20-cv-00249-wmc Document #: 86 Filed: 03/28/20 Page 3 of 3
but the DNC and the Democratic Party of Wisconsin (the ’249 case) have different counsel. At this point, the court will not appoint a lead plaintiff but expects plaintiffs’ counsel to coordinate responses as much as possible.
In consolidating these actions, the court maintains the briefing schedules previously set in the ’249 and ’284 cases. Defendants’ response to the motion for preliminary injunction in the ’249 case remains due March 30, 2020; defendants’ response to the motion for a temporary restraining order in the ’284 case remains due March 31, 2020. Because of the overlapping issues raised in these two motions, defendants’ response to the TRO should focus on the request to postpone the April 7 election. If necessary, the court will hold a hearing -- via videoconference, telephone, or perhaps, for a limited number of people, in person -- on Wednesday, April 1, 2020.
Accordingly, IT IS ORDERED that: 1) Case Nos. 20-cv-249, 20-cv-278 and 20-cv-284 are CONSOLIDATED for all
purposes. 2) The parties are directed to file all submissions in the ’249 case and they will
automatically be docketed in the other cases. Entered this 28th day of March, 2020.
BY THE COURT:
/s/ __________________________________ WILLIAM M. CONLEY District Judge
3

 
 Case: 3:20-cv-00249-wmc Document #: 163 Filed: 04/01/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

OPINION AND ORDER 20-cv-249-wmc

Defendants, and REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants. --------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

--------------------------------------------------------------------------------------------------------------------------

Case: 3:20-cv-00249-wmc Document #: 163 Filed: 04/01/20 Page 2 of 4

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants,
and
REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants.

20-cv-284-wmc

The court is in receipt of the Wisconsin Legislature’s renewed motions to intervene. (’249 dkt. ##118, 137.)1 As indicated during the scheduling conference earlier today, these motions will be denied.
As an initial matter, the Legislature argues only that one group of defendants -- the Commissioners of the Wisconsin Elections Commission -- no longer adequately represent their interests. (Dkt. ##137, 141.) To the extent that the Commissioners have attempted to find a middle ground with respect to the upcoming election, the Legislature ignores that its interests are now fully represented by the Republican National Committee and the Republican Party of Wisconsin (jointly, the “RNC/RPW”). (See dkt. ##85, 122 (granting

1 All docket entries are to the ’249 docket.
2

Case: 3:20-cv-00249-wmc Document #: 163 Filed: 04/01/20 Page 3 of 4

permissive intervention).) Rule 24(a) provides that intervention as of right is not appropriate where “existing parties” adequately represent the proposed intervenor’s interest. The Legislature fails to address how the RNC/RPW, as existing parties, do not adequately represent its interests. Nor could they, as the RNC/RPW has expressly incorporated the arguments made by the Legislature in both of its recent briefs. (See dkt. #96 at 2 n.1 (“To the extent that Defendants or the Legislature raise additional arguments for denying Plaintiffs’ motion, [the RNC/RPC] adopt those arguments as well.”); dkt. #138 at 1 n.* (“Intervenors [the RNC/RPW] also adopt any arguments that Defendants or the Legislature raise for denying Plaintiffs’ motions.”).)
Moreover, permissive intervention under Rule 25(b) is still inappropriate as the court’s earlier concern not to “overly complicate the proceedings” (dkt. #85 at 11) remains, and indeed is stronger than ever given the surge of briefing expected to be received this evening from the many parties in these three consolidated cases, not to mention the amici filings that have been and continue to be docketed. Indeed, the Governor has now joined the Legislature in wading in on the issues before the court by an amicus brief.
Accordingly, the court will instead grant the Legislature’s request to accept its proposed opposition to plaintiffs’ motion (dkt. #143) as an amicus brief.

IT IS ORDERED that:

ORDER

1) The Wisconsin Legislature’s renewed motions to intervene (dkt. ##118, 137) are DENIED.

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Case: 3:20-cv-00249-wmc Document #: 163 Filed: 04/01/20 Page 4 of 4 2) The Wisconsin Legislature’s motion for leave to file an amicus brief (dkt. #137)
is GRANTED. Entered this 1st day of April, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
4

 
 Case: 3:20-cv-00249-wmc Document #: 171 Filed: 04/02/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

PRELIMINARY INJUNCTION ORDER
20-cv-249-wmc

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants. -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

Case: 3:20-cv-00249-wmc Document #: 171 Filed: 04/02/20 Page 2 of 2

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

IT IS ORDERED that defendants the Commissioners of the Wisconsin Election
Commission and its Administrator are ENJOINED as follows:
a) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted. The deadline for receipt of absentee ballots is extended to 4:00 p.m. on April 13, 2020.
b) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020. The deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) is extended to 5:00 p.m. on April 3, 2020.
c) Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.
Entered this 2nd day of April, 2020.
BY THE COURT:
/s/ __________________________________ WILLIAM M. CONLEY District Judge
2

 
 Case: 3:20-cv-00249-wmc Document #: 179 Filed: 04/03/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

ORDER 20-cv-249-wmc

Defendants, and REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants. -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

Case: 3:20-cv-00249-wmc Document #: 179 Filed: 04/03/20 Page 2 of 2

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

The court is in receipt of a motion for clarification from defendants Commissioners
and Administrator Wolfe following review of the court’s opinion and order yesterday.
(Dkt. #174.) That motion is GRANTED amending the preliminary injunction as follows:
1. Defendants and any inspector appointed under Wis. Stat. § 7.30(a)(b) are ENJOINED from releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated.
2. Defendants and Wisconsin municipal clerks are ENJOINED from enforcing Wis. Stat. § 6.87(2) as to any absentee voter who, prior to their ballot being tabulated, provides a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so. Clerks should implement this injunction consistent with their ordinary practice of correcting defective absentee certificate envelopes. See Wisconsin Election Commission, Election Administration Manual, 105-06 (Oct. 2016) https://elections.wi.gov/sites/elections.wi.gov/files/publication/65/election_admi nistration_manual_october_2016_pdf_91094.pdf.
Entered this 3rd day of April, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
2

 
 Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

AMENDED PRELIMINARY

INJUNCTION ORDER

v.

20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S.

JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR.

and MARK L. THOMSEN,

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants. -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 2 of 3

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

IT IS ORDERED that defendants the Commissioners of the Wisconsin Election
Commission and its Administrator are ENJOINED as follows:
a) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted. The deadline for receipt of absentee ballots is extended to 4:00 p.m. on April 13, 2020.
b) Defendants and any inspector appointed under Wis. Stat. § 7.30(a)(b) are enjoined from releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated.
c) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020. The deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) is extended to 5:00 p.m. on April 3, 2020.

2

Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 3 of 3 d) Defendants and Wisconsin municipal clerks are enjoined from enforcing Wis.
Stat. § 6.87(2) as to any absentee voter who, prior to their ballot being tabulated, provides a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so. Entered this 3rd day of April, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
3

 
 Case: 3:20-cv-00249-wmc Document #: 189 Filed: 04/06/20 Page 1 of 4

DEMOCRATIC NATIONAL COMMITTEE,

] Appeals from the United

et al.,

] States District Court for

Plaintiffs-Appellees,

] the Western District of

] Wisconsin.

Nos. 20-1538 & 20-1546

v.

]

] Nos. 3:20-cv-00249-wmc,

MARGE BOSTELMANN, et al.,

]

3:20-cv-00278-wmc,&

Defendants

]

3:20-cv-00284-wmc

]

and

] William M. Conley,

]

Judge.

REPUBLICAN NATIONAL COMMITTEE,

]

et al.,

]

Defendants-Appellants,

]

------------------------------------]

DEMOCRATIC NATIONAL COMMITTEE,

]

et al.,

]

Plaintiffs-Appellees,

]

]

Nos. 20-1539 & 20-1545

v.

]

]

MARGE BOSTELMANN, et al.,

]

Defendants,

]

]

APPEAL OF: WISCONSIN STATE

]

LEGISLATURE

]

]

Case: 3:20-cv-00249-wmc Document #: 189 Filed: 04/06/20 Page 2 of 4

Case: 3:20-cv-00249-wmc Document #: 189 Filed: 04/06/20 Page 3 of 4

Case: 3:20-cv-00249-wmc Document #: 189 Filed: 04/06/20 Page 4 of 4

 
 Cite as: 589 U. S. ____ (2020)

1

Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19A1016
_________________
REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ON APPLICATION FOR STAY
[April 6, 2020]
PER CURIAM.
The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted. The District Court’s order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020.
Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District

2

REPUBLICAN NATIONAL COMMITTEE v.

DEMOCRATIC NATIONAL COMMITTEE

Per Curiam

Court allow ballots mailed and postmarked after election
day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee bal-
lots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extend-
ing the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters— for an additional six days after the scheduled election day
fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that
the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief.
By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District
Court contravened this Court’s precedents and erred by ordering such relief. This Court has repeatedly emphasized
that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gon-
zalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014).
The unusual nature of the District Court’s order allowing
ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District
Court had to issue a subsequent order enjoining the public release of any election results for six days after election day. In doing so, the District Court in essence enjoined non-
parties to this lawsuit. It is highly questionable, moreover, that this attempt to suppress disclosure of the election re-
sults for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process. The Dis-
trict Court’s order suppressing disclosure of election results showcases the unusual nature of the District Court’s order

Cite as: 589 U. S. ____ (2020)

3

Per Curiam
allowing absentee ballots mailed and postmarked after election day to be counted. And all of that further underscores the wisdom of the Purcell principle, which seeks to avoid this kind of judicially created confusion.
The dissent is quite wrong on several points. First, the dissent entirely disregards the critical point that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions. Second, the dissent contends that this Court should not intervene at this late date. The Court would prefer not to do so, but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error. Third, the dissent refers to voters who have not yet received their absentee ballots. But even in an ordinary election, voters who request an absentee ballot at the deadline for requesting ballots (which was this past Friday in this case) will usually receive their ballots on the day before or day of the election, which in this case would be today or tomorrow. The plaintiffs put forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots. In that regard, it bears mention that absentee voting has been underway for many weeks, and 1.2 million Wisconsin voters have requested and have been sent their absentee ballots, which is about five times the number of absentee ballots requested in the 2016 spring election. Fourth, the dissent’s rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count. That

4

REPUBLICAN NATIONAL COMMITTEE v.

DEMOCRATIC NATIONAL COMMITTEE

Per Curiam

is the relief that the plaintiffs actually requested in their
preliminary injunction motions. The District Court on its own ordered yet an additional extension, which would allow voters to mail their ballots after election day, which is ex-
traordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional
days after the election. Therefore, subject to any further alterations that the
State may make to state law, in order to be counted in this
election a voter’s absentee ballot must be either (i) postmarked by election day, April 7, 2020, and received by April 13, 2020, at 4:00 p.m., or (ii) hand-delivered as provided un-
der state law by April 7, 2020, at 8:00 p.m. The Court’s decision on the narrow question before the
Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in
light of COVID–19 are appropriate. That point cannot be stressed enough.
The stay is granted pending final disposition of the appeal by the United States Court of Appeals for the Seventh Circuit and the timely filing and disposition of a petition for
a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In
the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

It is so ordered.

Cite as: 589 U. S. ____ (2020)

1

GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19A1016
_________________
REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ON APPLICATION FOR STAY
[April 6, 2020]
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The District Court, acting in view of the dramatically evolving COVID–19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin’s spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court’s disposition, which the Seventh Circuit allowed to stand.
I A
Wisconsin’s spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions. Democratic National Committee v. Bostelmann, ___ F. Supp. 3d ___, ___, 2020 WL 1638374, *3 (WD Wis., Apr. 2, 2020).
In the weeks leading up to the election, the COVID–19 pandemic has become a “public health crisis.” Id., at ___, 2020 WL 1638374, *1. As of April 2, Wisconsin had 1,550 confirmed cases of COVID–19 and 24 deaths attributable to the disease, “with evidence of increasing community

2

REPUBLICAN NATIONAL COMMITTEE v.

DEMOCRATIC NATIONAL COMMITTEE

GINSBURG, J., dissenting

spread.” Id., at ___, 2020 WL 1638374, *3. On March 24, the Governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Ibid.
Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. Id., at ___, 2020 WL 1638374, *4. About one million more voters have requested absentee ballots in this election than in 2016. Ibid. Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters. Id., at ___–___, 2020 WL 1638374, *4–*5.

B
Several weeks ago, plaintiffs—comprising individual Wisconsin voters, community organizations, and the state and national Democratic parties—filed three lawsuits against members of the Wisconsin Elections Commission in the United States District Court for the Western District of Wisconsin.1 The District Court consolidated the suits on March 28. The plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID–19 pandemic on the upcoming election.
After holding an evidentiary hearing, the District Court issued a preliminary injunction on April 2. As relevant here, the court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote. See Burdick v. Takushi, 504 U. S. 428, 434 (1992); Anderson v. Celebrezze, 460 U. S. 780, 789 (1983). To alleviate that burden, the court entered a twofold remedy. First, the District Court extended the deadline for voters to request absentee ballots from April 2 to April
—————— 1 The state and national Republican parties intervened as defendants.
The District Court denied intervention by the state legislature, which the Seventh Circuit later allowed.

Cite as: 589 U. S. ____ (2020)

3

GINSBURG, J., dissenting
3. Second, the District Court extended the deadline for election officials to receive completed absentee ballots. Previously, Wisconsin law required that absentee ballots be received by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Commission and election inspectors from releasing any report of polling results before the new absentee-voting deadline, April 13.
Although the members of the Wisconsin Elections Commission did not challenge the preliminary injunction, the intervening defendants applied to the Seventh Circuit for a partial stay. Of the twofold remedy just described, the stay applicants challenged only the second aspect, the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee-ballot deadline. The same applicants then sought a partial stay in this Court, which the Court today grants.
II A
The Court’s order requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow—even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13. Neither of those deadlines carried a postmark-by requirement.
While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. Rising concern about the COVID–19 pandemic has caused a late surge in absentee-

4

REPUBLICAN NATIONAL COMMITTEE v.

DEMOCRATIC NATIONAL COMMITTEE

GINSBURG, J., dissenting

ballot requests. ___ F. Supp. 3d, at ___–___, 2020 WL 1638374, *4–*5. The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” boggles the mind. Ante, at 3. Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate.2 The surge in absenteeballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. ___ F. Supp. 3d, at ___, ___, ___–___, ___–___, 2020 WL 1638374, *1, *5, *9–*10, *17–*18. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out.3 It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemicinduced mail delays. Id., at ___, 2020 WL 1638374, *5. It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain.4 Under the District Court’s order, an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election

—————— 2 See Wisconsin Elections Commission, Absentee Ballot Report, Apr. 2,
2020, https://elections.wi.gov/node/6806; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 3, 2020, https://elections.wi.gov/node/6808; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 4, 2020, https://elections.wi.gov/node/6814; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 5, 2020, https://elections.wi.gov/node/6815.
3 See Wisconsin Elections Commission, Absentee Ballot Report, Apr. 5, 2020, https://elections.wi.gov/index.php/node/6815.
4 See, e.g., Tr. 18–19 (Apr. 1, 2020) (testimony that mail delivery “can take up to a week” or longer, threatening “the opportunity for the voter to receive [the absentee] ballot by mail”); id., at 35 (testimony that the “transaction time from the time the clerk puts [an absentee ballot] in the mail to the voter receiving it could take up to a week”); id., at 40 (testimony agreeing that “there will be some people who request . . . [an] absentee ballot [on April 2] who will not be receiving it in time to put it in the mail by April 7th”); Brief for City of Green Bay as Amicus Curiae in No. 3:20–cv–00249 (WD Wis.), p. 5 (“[D]elays at the post office are . . . affecting the speed with which voters receive their ballots . . . .”).

Cite as: 589 U. S. ____ (2020)

5

GINSBURG, J., dissenting
officials by April 13. Now, under this Court’s order, tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote.
This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 postmark deadline—is sure to confound election officials and voters.
B
What concerns could justify consequences so grave? The Court’s order first suggests a problem of forfeiture, noting that the plaintiffs’ written preliminary-injunction motions did not ask that ballots postmarked after April 7 be counted. But unheeded by the Court, although initially silent, the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots. See Tr. 102–103 (Apr. 1, 2020).
Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.
Third, the Court notes that the District Court’s order allowed absentee voters to cast ballots after election day. If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise? According to the

6

REPUBLICAN NATIONAL COMMITTEE v.

DEMOCRATIC NATIONAL COMMITTEE

GINSBURG, J., dissenting

stay applicants, election-distorting gamesmanship might occur if ballots could be cast after initial results are published. But obviating that harm, the District Court enjoined the publication of election results before April 13, the deadline for returning absentee ballots, and the Wisconsin Elections Commission directed election officials not to publish results before that date.5
The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.

***
The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.

——————

5 Memorandum from M. Wolfe, Administrator of the Wiscon-

sin Elections Commission, to Wisconsin Municipal Clerks et al.

(Apr.

3,

2020),

https://elections.wi.gov/sites/elections.wi.

gov/files/2020-04/Clerk%20comm%20re.%20court%20decisions%204.3.pdf.

 
 Case: 3:20-cv-00249-wmc Document #: 70 Filed: 03/27/20 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Civil Action No. 3:20-cv-249-wmc

Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants.

DECLARATION OF JEFF TRAPP IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION I, Jeff Trapp, make this declaration in support of Plaintiffs’ Motion for Preliminary Injunction. 1. I am a resident of Madison, Wisconsin. I have lived here since 1988. 2. I normally vote in-person. My polling place is only a couple blocks away from me and voting is usually convenient and easy. 3. For the April 7 election, however, I intend to vote absentee. I requested my absentee ballot about ten days ago and received it recently. I want to vote absentee because I think it is the right thing to do in light of the coronavirus. I think not voting in-person, even though it is convenient for me, abides by everyone’s efforts to practice social distancing. Voting absentee also helps out other people. I could have the virus and not show symptoms. I want to avoid infecting others as much as I want to avoid getting infected. 4. I am finding it difficult to get a witness for my absentee ballot. While I could sit on my doorstep and ask someone passing by, I really do not want to put someone else in the

Case: 3:20-cv-00249-wmc Document #: 70 Filed: 03/27/20 Page 2 of 2

position of possible contact with the virus. Exposing otherpeople to possible negative health
corsequences is not the kind of behavior that we as a society are trying to accomplish in tenns of
fighting this disease.
5. Assuming I can find a witness, I intend to put my ballot in the mail within the
next few days because I know it needs to arrive by Election Day to count. My ballot's instructions suggest to mail it four to five days before Election Day. I am not certain that is enough time because I just don't know what sorts of issues the post office is facing with possible staff shortages or having to process so many absentee ballots.
6. I recognize that mailing my ballot earlier will deprive me of any information from
the last few days before the election. I would prefer to wait as close to Election Day as possible
so I can leam as much as I can before casting my ballot, which is what I norrrally do because I
vote in-person.
7. I want my vote to count. I am concemed that, even if I mail my absentee ballot
fiumy days before Election Day, it will arrive late and must be rejected for factors outside of my
control.

Pursuant to 28 U.S.C . g 1746,I declare under penalty of perjury, under the laws of the
united States, that the foregoing is fue and correct to the best of myknowledge.

Dated this/b day of March, ZOZO.

f

a

 
 Case: 3:20-cv-00249-wmc Document #: 192 Filed: 04/13/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Plaintiffs,

Case No. 20- CV-249

v.

MARGE BOSTELMANN, et al.,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants

SYLVIA GEAR, et al.,

Plaintiffs,

Case No. 20- CV-278

v.

DEAN KNUDSON, et al

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants.

1

Case: 3:20-cv-00249-wmc Document #: 192 Filed: 04/13/20 Page 2 of 10

REVEREND GREG LEWIS, et al.,

Plaintiffs,

Case No. 20- CV-284

v.

DEAN KNUDSON, et al.,

Defendants.

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants

DEFENDANTS’ ANSWER TO THE AMENDED COMPLAINT IN 20-CV-249, DNC et al. v. BOSTELMANN et al.

Defendants Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs and Marge Bostelmann, by their undersigned counsel, answer the Amended Complaint in DNC v. Bostelmann, Case No. 20-cv-249 [Dkt. No. 55] as follows:
NATURE OF THE CASE 1. Admit that the United States and Wisconsin are in the midst of a crisis
related to COVID-19. Admit that part of the response to this crisis is social distancing. The Defendants lack sufficient information to admit or deny the rest of the allegations in this paragraph.
2

Case: 3:20-cv-00249-wmc Document #: 192 Filed: 04/13/20 Page 3 of 10
2. Admit that Governor Evers issued a “Safer-at-Home Order” on March 24. Affirmatively allege that this document speaks for itself.
3. Deny information sufficient to admit or deny the allegations in this paragraph.
4. Deny information sufficient to admit or deny the allegations in this paragraph.
5. Admit that absentee ballot requests and returns have exceeded previous records and that applications continued to increase from March 26, 2020. Deny information sufficient to admit or deny the rest of the allegations in this paragraph.
6. Deny. 7. Deny. 8. Admit that by-mail registration ended in Wisconsin on March 18, 2020
pursuant to Wis. Stat. § 6.28(1). Admit that historically many Wisconsin voters have registered on election day. Deny information sufficient to admit or deny the rest of the allegations in this paragraph. 9. Admit that Wis. Stat. § 6.34 requires new voters to provide a copy of their proof of residence to register. Deny information sufficient to admit or deny the rest of the allegations in this paragraph. 10. Admit that Wis. Stat. §§ 6.86 and 6.87 require a copy of a voter’s photo identification to accompany a request for an absentee ballot. Affirmatively
3

Case: 3:20-cv-00249-wmc Document #: 192 Filed: 04/13/20 Page 4 of 10
allege that exceptions to these provisions exist. Deny information sufficient to admit or deny the rest of the allegations in this paragraph. 11. Deny information sufficient to admit or deny the allegations in this paragraph. 12. Admit that the Plaintiffs sought the relief listed. Deny information sufficient to admit or deny the rest of the allegations in this paragraph.
JURISDICTION AND VENUE 13. Admit that Plaintiffs brought this action under 42 U.S.C. §§ 1983 and
1988. 14. Admit. 15. Admit. 16. Admit. 17. Admit.
PARTIES 18. Admit that Plaintiff the Democratic National Committee (“DNC”) is a
national committee, as that term is defined by and used in 52 U.S.C. § 30101, dedicated to electing local, state, and national candidates of the Democratic Party to public office throughout the United States. Admit that the DNC is charged with facilitating the Democratic presidential nominating process, which culminates in the 2020 Convention that will take place in Milwaukee, Wisconsin in July. Admit that the April 7, 2020 Spring Election is part of the presidential nominating process, and
4

Case: 3:20-cv-00249-wmc Document #: 192 Filed: 04/13/20 Page 5 of 10
Democratic voters in that election will make their selections for the Democratic presidential nominee. Otherwise, deny. 19. Admit that Plaintiff the Democratic Party of Wisconsin is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public office throughout the State of Wisconsin. Otherwise, deny. 20. Admit that Plaintiffs had standing. Affirmatively allege that the claims brought are moot. Otherwise, deny. 21. Admit.
STATEMENT OF FACTS AND LAW A. Wisconsin Registration and Absentee Laws 22. Admit. 23. This paragraph states a legal conclusion to which no response is required. Affirmatively allege that Wis. Stat. § 6.34 speaks for itself. 24. Admit. 25. Admit. 26. This paragraph states a legal conclusion to which no response is required. Affirmatively allege that Wis. Stat. § 6.86 (1)(a) speaks for itself. 27. This paragraph states a legal conclusion to which no response is required. Affirmatively allege that Wis. Stat. § 6.86 (1)(ac) speaks for itself. 28. This paragraph states a legal conclusion to which no response is required. Affirmatively allege that Wis. Stat. § 6.87 (6) speaks for itself. Further
5

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allege that this paragraph is subject to the Court’s Order of April 2, 2020 and is, therefore, moot. B. Coronavirus and the April 7, 2020 Election 29. Admit. 30. Affirmatively allege that the Safer-at-Home Order speaks for itself. Otherwise, deny. 31. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order speaks for itself. 32. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order speaks for itself. 33. Deny information sufficient to admit or deny the allegations in this paragraph. 34. Admit that absentee ballot requests and returns have exceeded previous records and that applications continued to increase from March 26, 2020. Admit that the quotation in this paragraph is accurate. Deny information sufficient to admit or deny the rest of the allegations in this paragraph. 35. Deny. 36. Admit that thousands of voters typically register in person on election day. Deny information sufficient to admit or deny the rest of the allegations in this paragraph.
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37. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stat. § 6.34 speak for themselves.
38. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stats. § 6.86 and 6.87 speak for themselves.
39. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stats. § 6.86 and 6.87 speak for themselves.
40. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stats. § 6.86 and 6.87 speak for themselves.
41. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stats. § 6.86 and 6.87 speak for themselves.
42. Deny information sufficient to admit or deny the allegations in this paragraph. Affirmatively allege that the Safer-at-Home Order and Wis. Stats. § 6.86 and 6.87 speak for themselves.
43. Deny. 44. Deny.
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CLAIMS FOR RELIEF COUNT I
First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. §1983, 28 U.S.C. §§2201, 2202
Undue Burden on the Right to Vote 45. Defendants reallege and incorporate by reference all prior responses of
this Answer and the responses below. 46. This paragraph states a legal conclusion to which no response is required. 47. Deny. 48. Deny. 49. Deny. 50. Deny. 51. Deny.
COUNT II Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process 52. Defendants reallege and incorporate by reference all prior responses of this Answer and the responses below. 53. This paragraph states a legal conclusion to which no response is required. 54. This paragraph states a legal conclusion to which no response is required. 55. This paragraph states a legal conclusion to which no response is required. 56. Deny. 57. Deny.
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COUNT III Equal Protection U.S. Const. Amend. XIV, 42 U.S.C. § 1983 58. Defendants reallege and incorporate by reference all prior responses of this Answer and the responses below. 59. This paragraph states a legal conclusion to which no response is required. 60. This paragraph states a legal conclusion to which no response is required. 61. Deny information sufficient to admit or deny the allegations in this paragraph. 62. Deny information sufficient to admit or deny the allegations in this paragraph. 63. Deny. PRAYER FOR RELIEF The Defendants deny that Plaintiffs are entitled to the relief requested. AFFIRMATIVE DEFENSES 1. The Amended Complaint fails to state a claim for which relief can be granted and should be dismissed. 2. The allegations and claims in the Amended Complaint and claims are moot.
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Dated: 4/13/2020

LAWTON & CATES, S.C.
Electronically signed by Daniel S. Lenz Dixon R. Gahnz, SBN: 1024367 Daniel S. Lenz, SBN: 1082058 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375
345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dlenz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com

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 Case: 3:20-cv-00249-wmc Document #: 197 Filed: 04/16/20 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants,
and
Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

Case No. 3:20-cv-249-wmc (consolidated with Case Nos. 3:20-cv-278-wmc and 3:20-cv-284-wmc)

THE WISCONSIN LEGISLATURE’S MOTION TO DISMISS THE AMENDED COMPLAINT IN DNC

Under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Intervenor-Defendant the Wisconsin Legislature (“Legislature”) hereby moves to dismiss the Amended Complaint, Dkt.55, in DNC v. Bostelmann. The Legislature moves to dismiss the Amended Complaint based on Burford abstention and mootness.
In support of the Burford abstention grounds, the Legislature incorporates the arguments it made in its previous submissions in support of its prior Proposed Motions to Dismiss in these consolidated cases. See Dkts.23 at 17–19; 149 at 2–9; see also Dkt.143 at 17–19 (Legislature’s brief in support of Proposed Motion to Dismiss the Lewis Complaint). The Legislature respectfully submits that those same

Case: 3:20-cv-00249-wmc Document #: 197 Filed: 04/16/20 Page 2 of 6
arguments are fully applicable to the Amended Complaint, requiring this Court to dismiss that complaint.
In support of the mootness grounds for dismissal, the Legislature states the following:
The Court must dismiss a case as “nonjusticiable” when it becomes “moot,” meaning that the case “no longer presents a live case or controversy.” Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). A plaintiff’s challenge to the application of election laws in a particular election, like the challenge here, often becomes moot once the “election ha[s] come and gone by,” since any postelection remedy ordered by the Court “would have no impact on the parties to th[e] suit or on the results of the [now-past] election.” Id. This rule, of course, applies to requests for injunctive relief during an upcoming election, since the passing of the election makes any “requested injunction [ ] now worthless.” Stone v. Bd. of Election Comm’rs for City of Chicago, 643 F.3d 543, 545 (7th Cir. 2011).
In some cases, “the passage of an election does not necessarily render an election-related challenge moot,” if the case falls within the mootness exception for challenges that are “capable of repetition yet evad[e] review.” Tobin for Governor, 268 F.3d at 528 (citations omitted); see also Stone, 643 F.3d at 545. However, that exception will only apply, if at all, when the plaintiff specifically challenges the continued application of a statute in future elections. See Tobin for Governor, 268 F.3d at 529 (distinguishing “one-time decision[s]” by the government). If the plaintiff has brought such a challenge, the plaintiff must then further demonstrate that:
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“(1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. Election-law challenges that “traditionally” satisfy this limited exception to mootness “involve[ ] challenges to the validity of statutory provisions that will continue to operate past the election in question and that will burden future candidates in future elections,” id. at 528–29 (emphasis added)—for example, “ballot-access cases.” Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 947 (7th Cir. 2019).
Here, the DNC Plaintiffs’ claims in their Amended Complaint are now moot, since the April 7, 2020 Spring Election “ha[s] come and gone by.” Tobin for Governor, 268 F.3d at 528. The DNC Plaintiffs’ claims in their Amended Complaint alleged constitutional violations only with respect to this Spring Election. See Dkt.55. That is, the DNC Plaintiffs’ challenged election laws establishing registration deadlines, applying voter-integrity measures, and setting absentee-ballot-casting deadlines only for this past Spring Election.
With their First and Fourteenth Amendment right-to-vote claim, the DNC Plaintiffs alleged that the “right to vote” of Wisconsinites “will be severely burdened . . . in the upcoming April 7, 2020 election” unless the Court enjoins certain election laws. Dkt.55 ¶ 47 (emphasis added). Specifically, the DNC Plaintiffs alleged that the Governor’s “Safer-At-Home Order” made voters’ compliance with certain election laws more difficult for the Spring Election only, see id. at ¶ 48, that those election laws’ operation was excessively burdensome for this election only, see id. at ¶¶ 49–
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50, and that the State could not justify those burdens in the context of the current Spring Election, see id. at ¶ 51.
Moving to their procedural-due-process claim, the DNC Plaintiffs claimed that “Wisconsin must establish adequate procedures to ensure that voters . . . [may] cast their ballots in the April 7, 2020 election.” Dkt.55 ¶ 57 (emphasis added). Here again, the DNC Plaintiffs claimed solely that, “[u]nder the current circumstances” leading up to the Spring Election, “Wisconsin’s election process is fundamentally unfair,” id. at ¶ 56, which infringed voters’ “right[s] in the upcoming election,” id. at ¶ 57 (emphasis added).
Finally, with their equal-protection claim, the DNC Plaintiffs alleged that “different actions taken by Wisconsin cities and counties in response to the coronavirus pandemic” violated equal-protection requirements. Dkt.55 ¶ 61. This too relates only to the Spring Election, given that the DNC Plaintiffs challenged city and county “actions” specific only to that election, such as: efforts to “deem[ ] [all] voters ‘indefinitely confined’” for this election, and therefore exempt from certain election-law requirements, see id.; guidance about satisfying witness-signature requirements for this election, see id. at ¶ 62; and “inconsistent availability of inperson registration and voting” for this election, see id. at ¶ 63.
The DNC Plaintiffs’ claims in their Amended Complaint do not satisfy the capable of repetition, yet evading review exception to mootness, thus that exception does not save this case from dismissal on mootness grounds.
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To begin, the DNC Plaintiffs have not specifically challenged the application of the relevant election laws here to any specific election in the future, thus the capable of repetition, yet evading review exception is categorically unavailable. See Tobin for Governor, 268 F.3d at 529. So, while Wisconsin is holding its next election on May 12, 2020—a Special Election for the 7th Congressional District—the DNC Plaintiffs made no reference to this or any other future election in their Amended Complaint. See Wis. Elections Comm’n, 7th Congressional District Special Election.*
Further, the DNC Plaintiffs cannot satisfy the additional two requirements for this mootness exception. See Tobin for Governor, 268 F.3d at 529.
First, Wisconsin elections are not “too short in duration” for the DNC Plaintiffs to litigate challenges to election laws prior to the “expiration” of any election— including challenges before the state courts or the Wisconsin Elections Commission. See id. (rejecting application of exception because “judicial review . . . is available . . . [in] the state courts”); see generally Wis. Stat. § 5.05(1) (granting the Commission the authority to administer Wisconsin’s election laws); Wis. Stat. § 227.52 (subjecting the Commission’s actions to judicial review in state court).
Second, and independently sufficient, there is no “reasonable expectation that the same complaining party will be subjected to the same action again.” See Tobin for Governor, 268 F.3d at 529. The DNC Plaintiffs themselves specifically noted that the Wisconsin Governor’s “Safer at Home” Order is set to expire on April 24, 2020, id.
* Available at https://elections.wi.gov/node/6577 (last visited Apr. 14, 2020).
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at ¶ 2, which is prior to any other election in Wisconsin, including the 7th Congressional District Special Election on May 12, 2020.

Dated this 16th day of April, 2020.

Respectfully submitted,
/s/Misha Tseytlin MISHA TSEYTLIN Counsel of Record KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Counsel for Legislature in DNC, Gear, and Lewis
ERIC M. MCLEOD LANE E. RUHLAND HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Counsel for Legislature in DNC

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 Case: 3:20-cv-00249-wmc Document #: 198 Filed: 04/30/20 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-249-wmc

SYLVIA GEAR, et. al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-278-wmc

REVEREND GREG LEWIS, et al.,

Civil Action No. 3:20-cv-284-wmc

Plaintiffs, v.
MARGE BOSTELMANN, et al.,

Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants. .

MOTION OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Plaintiffs Democratic National Committee and Democratic Party of Wisconsin, pursuant to Fed. R. Civ. P. 15(a)(2), respectfully move this Court for leave to file the accompanying Second Amended Complaint for Declaratory and Injunctive Relief against defendants Marge Bostelmann, Julie M. Glancy, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, all sued in their official capacities as members of the Wisconsin Elections Commission, and against intervening defendants Republican National Committee, Republican Party of Wisconsin, and Wisconsin Legislature. “The court should freely give leave [to amend] when justice so requires,” id., and justice so requires in this case.
BACKGROUND Plaintiffs filed their original complaint in this case just over six weeks ago, on March 18, 2020, challenging multiple provisions of Wisconsin law that are preventing Wisconsin citizens from fully exercising their constitutional right to vote in the midst of the COVID-19 pandemic. ECF No. 1. Plaintiffs also filed a motion for a temporary restraining order and preliminary injunction focused on the upcoming April 7 election, which this Court granted in part and denied in part (without prejudice) on March 20. ECF No. 37. Plaintiffs then filed an amended complaint as of right on March 26, followed by another motion for preliminary injunction on March 27, also focused on the April 7 election. ECF Nos. 55, 61. Although this Court on April 2 denied plaintiffs’ March 27 motion in some respects (without prejudice), in other respects it granted important relief that enabled tens of thousands of voters to register and cast their ballots. And although the Court’s preliminary injunction was further narrowed on appeal by the U.S. Court of Appeals for the Seventh Circuit and the Supreme Court, one of the most important parts of this Court’s injunctive relief survived intact: the Court’s order enjoining defendants “from enforcing the requirement under Wis. Stat. § 6.87(6) that
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absentee ballots must be received by 8:00 p.m. on election day to be counted,” and extending that deadline for receipt of absentee ballots by six days, provided that such ballots were mailed and postmarked on or before election day. See Democratic Nat’l Comm. v. Bostelmann, Civ. No. 20cv-249-wmc, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020), clarified, ECF No. 122 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 140 S. Ct. 1205 (2020). The defendants and intervening defendants did not challenge this extension of the ballotreceipt deadline, and the Supreme Court relied on this extension in denying “an additional extension, which would allow voters to mail their ballots after election day.” 140 S. Ct. at 1208. This Court’s order extending the ballot-receipt deadline from April 7 to April 13 appears to have resulted in over 142,000 Wisconsin citizens being able to cast their absentee ballots by election day and have those ballets counted, thereby avoiding the need to vote in-person and risk exposure to the COVID-19 virus. See Second Amended Compl. (SAC) ¶ 5 & n.11.
Despite this Court’s important relief, the way in which Wisconsin’s April 7 election was conducted has been widely condemned as a voting rights and public health fiasco, as detailed at length in the accompanying Second Amended Complaint at ¶¶ 1-3, 34-74. Thousands of Wisconsin citizens were forced to stand in long lines for hours in order to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in the midst of the worst pandemic in over a century. As of April 28, 52 in-person voters and poll workers already had tested positive for COVID-19 statewide. Id. ¶ 3 & n.10. There also were critical breakdowns in Wisconsin’s absentee-voting process, with thousands of voters never even receiving their requested ballots in time to vote by election day, thus forcing them either to go to the polls during the pandemic and risk exposure to the COVID-19 virus or be disenfranchised
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altogether. Nearly 12,000 absentee ballots that were received and returned were rejected for having “insufficient” witness certifications, and nearly 4,700 more were rejected because they were not received by election officials until after the April 13 deadline for receipt.1 One investigation “into Wisconsin’s missing ballot crisis reveals a system leaking from all sides,” including through “[i]nadequate computer systems, overwhelmed clerks and misleading ballot information [that] hampered Wisconsin’s historic―and historically troubling―spring election.”2
Now that the April 7 election has passed, intervening defendant Wisconsin Legislature (but not the defendants or other intervening defendants) has moved to dismiss plaintiffs’ amended complaint (ECF No. 55) in its entirety, arguing (1) “the DNC Plaintiffs’ claims in their Amended Complaint are now moot, since the April 7, 2020 Spring Election ‘ha[s] come and gone by,’” and (2) dismissal is required on “Burford abstention grounds,” named after Burford v. Sun Oil Co., 319 U.S. 315 (1943). ECF No. 197 at 1, 3 (citation omitted). As this Court will recall, but as the Legislature does not acknowledge, the Court already has once rejected the Legislature’s Burford abstention arguments in the leadup to the April 7 election. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1320819, at **7-8 n.12 (W.D. Wis. Mar. 20, 2020) (“Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights”).
1 J.R. Ross, 22,820 Wisconsin absentee ballots were rejected for various reasons, WISN 1130 (Apr. 18, 2020), https://newstalk1130.iheart.com/content/2020-04-18-22820-wisconsinabsentee-ballots-were-rejected-for-various-reasons/.
2 Daphne Chen et al., ‘They should have done something’: Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows, Milwaukee J. Sentinel (Apr. 21, 2020), https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueledmultiple-failures/5156825002/ The investigation was conducted by the Milwaukee Journal Sentinel, the PBS series FRONTLINE, and Columbia Journalism Investigations.
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ARGUMENT Under Rule 15(a)(2), “[t]he court should freely give leave [to amend] when justice so requires.” That means a court should “freely” allow amendment unless there is “some reason— futility, undue delay, undue prejudice, or bad faith—for denying leave to amend.” Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519, 522 (7th Cir. 2015); see also Holder v. Fraser Shipyards, Inc., 288 F. Supp. 3d 911, 933 (W.D. Wis. 2018) (“district courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile”) (citations omitted). Plaintiffs will first explain the purpose of their proposed amendments, and then demonstrate that none of these potential grounds for denying leave to amend apply in this case, which was only first filed slightly more than six weeks ago. The Legislature’s mootness argument. Although the now-infamous April 7 Spring Election has passed, several more elections will be held in Wisconsin in 2020, culminating in the November 3 General and Presidential Election. Yet the Legislature contends this case should now be dismissed in its entirety because it is moot, claiming that plaintiffs have “alleged constitutional violations only with respect to this [April 7] Spring Election,” and have “challenged election laws … only for this past Spring Election.” ECF No. 197 at 3 (emphasis in original). Put another way, the Legislature claims that plaintiffs “have not specifically challenged the application of the relevant election laws here to any specific election in the future.” Id. at 5. The Legislature’s claims are false, and the exact opposite of what the plaintiffs’ pleadings actually say. Plaintiffs’ original and amended complaints clearly and repeatedly ask for injunctive relief both with respect to the April 7 election and for “any election that occurs while this crisis continues.” ECF No. 55 ¶ 7 (emphasis added); see id. at 19, pts. C-E (asking for various injunctive
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relief to extend “until the COVID-19 crisis is over”) (emphasis added); see also id. ¶ 44 (seeking injunctive relief for “the upcoming April 7, 2020 [election], as well as other elections taking place during the COVID-19 crisis”) (emphasis added).
Although the present amended complaint (ECF No. 55) should be more than sufficient to withstand the Legislature’s contrived mootness challenge, plaintiffs’ proposed Second Amended Complaint specifies in even more unmistakable terms that plaintiffs have always sought, and continue to seek, injunctive relief applicable to any and all elections—up to and including the November 3, 2020 General and Presidential Election—that are held while the COVID-19 crisis continues in Wisconsin and until that crisis is over. See SAC ¶¶ 6, 8, 33, 45-46, 67, 90, 97. That should dispose of the Legislature’s mootness defense. Contrary to the Legislature’s argument, the “capable of repetition, yet evading review exception to mootness” (ECF No. 197 at 4) does not apply because plaintiffs are seeking prospective relief relevant to upcoming elections in Wisconsin over the next six months. Plaintiffs are not seeking to establish liability because of past elections, but to enjoin prospective harms because of how the challenged statutes are likely to impact the upcoming elections in 2020.
The Legislature appears to argue “there is no ‘reasonable expectation’” that the pandemic will affect these remaining 2020 elections, ECF No. 197 at 5 (citation omitted), which is squarely refuted by the public health evidence and in any event is a question of fact not suitable for resolution at the pleadings stage. See SAC ¶ 31 (warning by Director of Centers for Disease Control of a potential second and even deadlier wave of COVID-19 this fall). And the Legislature’s attempt to use mootness doctrine to force plaintiffs to litigate their federal constitutional voting rights claims “before the state courts or the Wisconsin Elections Commission,” ECF No. 197 at 5, is simply an attempt to cloak their Burford abstention arguments
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in mootness garb. As emphasized in the Burford discussion below, federal constitutional claims are entitled to be litigated in federal court. See infra at 9-10.3
Incorporation of new facts and law. Plaintiffs have substantially revised and expanded their previous amended complaint to account for all of the factual and legal developments since that pleading was filed on March 26, especially the April 7 Spring Election itself, the litigation surrounding it, and the many constitutional flaws regarding the conduct and consequences of that election. The intervening defendants argued in March that many of plaintiffs’ concerns were remote, speculative, and unfounded; the Second Amended Complaint demonstrates otherwise. The new pleading alleges in more specific detail how the challenged provisions operate to interfere unduly with voting. It also fine-tunes plaintiffs’ claims and requested relief to take account of the rulings over the past month by this Court, the Seventh Circuit, and the Supreme Court. Plaintiffs continue to challenge all of the same statutory provisions as before, but have amended and in some instances narrowed those challenges in light of intervening facts and judicial decisions.
Additional requested relief. Plaintiffs’ proposed Second Amended Complaint adds an additional challenge growing directly out of how the April 7 election was conducted: defendants’ failure to provide sufficient financial, personnel, and other resources to ensure an adequate number
3 The Legislature’s reliance (at ECF No. 197 at 2-3, 5) on Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517 (7th Cir. 2001), is far off base. That case involved a claim that the state elections board had violated the federal constitution in a just-concluded election by refusing to certify and place on the ballot the Libertarian Party’s slate of candidates as the result of the board’s allegedly illegal striking of thousands of signatures from the party’s nominating petition. The Seventh Circuit held that plaintiffs’ claim for “declaratory relief” was moot because it did not involve a challenge to “any statutory provision that will continue to operate past the [justconcluded] election,” but instead was a challenge to the procedural fairness of “a one-time decision” rejecting a specific nominating petition in a now-concluded election. Id. at 529. This case is just the opposite—it challenges the continuing application of specific statutes in elections to be held over the next six months, and seeks to require defendants to undertake certain actions in those upcoming elections. Tobin for Governor is a poor choice of supporting precedent.
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of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner. See SAC ¶¶ 7, 9, 83. This is not a new count, but bolsters the three existing counts (Anderson/Burdick, due process, and equal protection). Although Wisconsin has delegated its authority to “establish[]” polling places to local governing bodies, Wis. Stats. § 5.25(2), the State cannot delegate its duty to ensure safe and sufficient in-person registration and voting facilities for all voters throughout the State. The defendants bear the statutory “responsibility for the administration of” Wisconsin’s election laws, Wis. Stat. § 5.05(1), which at minimum requires defendants to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee votes and to vote in-person on election day in a safe and secure manner.
Turning to the Rule 15(a)(2) analysis, none of the reasons this Court has identified for potentially denying leave to amend—"undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile”— applies to these plaintiffs or the proposed Second Amended Complaint. Holder, 288 F. Supp. 3d at 933. This litigation is only slightly more than six weeks old, and plaintiffs are seeking leave to amend less than three weeks following the April 7 election, so there can be no credible claim here of undue delay. The Court has not yet set a trial date or pretrial schedule, and discovery has not yet even commenced, so there can be no genuine claim of undue prejudice. Nor can plaintiffs fairly be accused of bad faith, dilatory motive, or repeated failures to cure deficiencies.
That leaves the possible claim of “futility” of amendment. The only grounds for dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) that the Legislature has identified are (1) mootness, and (2) Burford abstention. See ECF No. 197. Under the Legislature’s theory that this case is
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moot because the April 7 election has passed, the Second Amended Complaint is hardly futile, but necessary to seek relief in the remaining 2020 Wisconsin elections. As shown above, plaintiffs’ challenges in their prior pleadings clearly are not moot, and the Second Amended Complaint makes that even plainer than it already was.
As for Burford, it is an entirely discretionary doctrine—in certain “narrow” and “extraordinary circumstances,” a district court has the discretion, but not the obligation, to dismiss a federal case where it unduly interferes with “complex state administrative processes.” Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 727 (1996).4 There is no way a federal claim in federal court can be deemed to be “futile” at the leave-to-amend stage simply because the Court might, after full consideration, decide to exercise its “narrow” discretion under Burford to abstain.
Moreover, this Court already has decided that “Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights.” 2020 WL 1320819, at **7-8 n.12. Far from explaining why the Court should reach a different decision this time around, the Legislature does not even acknowledge the Court’s prior rejection of Burford. In any event, this is precisely the type of case in which the “strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court” outweighs any alleged countervailing state interests. Quackenbush, 517 U.S. at 728. “[T]he federal issues in this case eclipse any state issues
4 Just because a State has an administrative process like the WEC’s regulation of elections does not suggest that federal abstention is appropriate. “While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362 (1989); see also Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (“the mere existence of a statewide regulatory regime is not sufficient” for Burford to apply).
9

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that might arise.” Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d 517, 532 (7th Cir. 2018). Where the issue is a State’s “adherence” to federal constitutional requirements regarding voting rights, “Burford abstention is inapplicable.” Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130, 1136 (7th Cir. 1981) (reapportionment claim). Courts repeatedly have held that Burford abstention is inappropriate when federal voting rights are at issue. See, e.g., Harman v. Forssenius, 380 U.S. 528, 537 (1965); Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (“voting rights cases are particularly inappropriate for abstention”); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981) (abstention inappropriate where the issue was “nothing less than the fundamental right to vote”); Bogaert v. Land, 675 F. Supp. 2d 742, 747 (W.D. Mich. 2009) (citing additional cases holding that Burford abstention is “wholly inapplicable” to federal constitutional challenges to state election laws).
CONCLUSION Because the interests of justice favor leave to amend, this Court should grant plaintiffs’ motion and order that the accompanying Second Amended Complaint be accepted for filing. Dated this 30th day of April, 2020.
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Respectfully submitted, /s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-249-wmc

SYLVIA GEAR, et. al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-278-wmc

REVEREND GREG LEWIS, et al.,

Civil Action No. 3:20-cv-284-wmc

Plaintiffs, v.
MARGE BOSTELMANN, et al.,

Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants. .

SECOND AMENDED COMPLAINT OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN FOR DECLARATORY AND INJUNCTIVE RELIEF

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Plaintiffs DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN file this Second Amended Complaint for Declaratory and Injunctive Relief against Defendants MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners, and against Intervening Defendants REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN, and the WISCONSIN LEGISLATURE, and allege as follows:
NATURE OF THE CASE 1. Wisconsin’s April 7, 2020 Spring Election was a voting rights and public health fiasco. People throughout the nation were horrified by images of thousands of Wisconsin citizens forced to stand in long lines for hours in order to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in the midst of the worst pandemic in over a century. Virtually every other jurisdiction in the United States has thus far postponed inperson voting since mid-March because of the obvious public health risks. But due to Wisconsin’s ongoing political dysfunction, the apparent desire of some to use a public health emergency to suppress the vote, and other factors, the State proceeded with the April 7 election in the face of scathing criticism from throughout the country. Equally shocking was the breakdown in Wisconsin’s absentee-voting process, with thousands of voters never even receiving their requested ballots in time to vote by election day, thus forcing them either to go to the polls during the pandemic and risk exposure to the COVID-19 virus or be disenfranchised altogether. 2. Plaintiffs support in-person voting options that can be conducted in a safe and secure manner. That did not occur in Wisconsin’s April 7 election. The decision to proceed with the election and the manner in which it was conducted have been branded a “travesty” and “an
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abomination, a civic tragedy that never should have occurred”;1 “insane”;2 “cruel”;3 “brazen”;4 “nightmarish” and “scandalous”;5 “appalling” and “terrifying”;6 “a dangerous spectacle that forced voters to choose between participating in an important election and protecting their health”;7 and “[o]ne of the most shameful chapters in American’s long history of voter suppression,” requiring voters “to make an unconscionable choice between their lives and their citizenship.”8 These harms fell disproportionately and with especially brutal impact on voters of color and economically disadvantaged voters.9 The title of one article has urged: “Never Forget Wisconsin.” Supra n.8.

1 Ned Foley, Worrying about Wisconsin, While Waiting for Its Election Returns, Medium (Apr. 12, 2020), https://medium.com/@Nedfoley/worrying-about-wisconsin-while-waiting-forits-election-returns-9dc94334c8a6.

2 The Editorial Board, You Shouldn’t Have to Risk Your Life to Vote, N.Y. Times (Apr. 3, 2020), https://www.nytimes.com/2020/04/03/opinion/wisconsin-primary-coronavirus.html.

3 Leah Litman, The Supreme Court’s Wisconsin Decision Is a Terrible Sign for remaining, The Atlantic (Apr. 7, 2020), https://www.theatlantic.com/ideas/archive/2020/04/supreme-courtshypocrisy-going-get-americanskilled/609598/?utm_source=newsletter&utm_medium=email&utm_campaign=atlantic-dailynewsletter&utm_content=20200407&silverid-ref=MzEwMTU3MjAxODkzS0.

4 Zak Cheney-Rice, Wisconsin Supreme Court Justices Voted Absentee Before Making Everyone Else Vote in Person, New York Magazine (Apr. 14, 2020), https://nymag.com/intelligencer/2020/04/wisconsin-voters-braved-covid-while-justices-votedabsentee.html.

5 Ed Gilgore, After Its Disturbing Election Day, What Happens Next in Wisconsin?, New York Magazine (Apr. 8, 2020), https://nymag.com/intelligencer/2020/04/after-a-disturbingelection-day-now-what-in-wisconsin.html.

6 Miela Fetaw, ‘I Could Get the Virus If I Vote’: Wisconsin’s Terrifying Election Day, The Daily Beast (Apr. 7, 2020), https://www.thedailybeast.com/people-are-going-to-die-in-thiselection-wisconsin-votes-amid-coronavirus-pandemic-1.

7 Astead W. Herndon & Alexander Burns, Voting in Wisconsin During a Pandemic: Lines, Masks and Plenty of Fear, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/politics/wisconsin-election-coronavirus.html.

8 Sherrilyn Ifill, Never Forget Wisconsin, Slate (Apr. 8, 2020, 6:46 PM), https://slate.com/news-and-politics/2020/04/never-forget-wisconsin.html.

9 See Fetaw, supra n.6; Scott Bauer, Milwaukee’s black community hit hard by COVID-

19

pandemic,

Wisconsin

State

Journal

(Mar.

28,

2020),

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3. On April 28, three weeks after the election, the Wisconsin Department of Health Services reported that 52 people who voted in person or worked the polls on April 7 have tested positive for COVID-19 thus far. These numbers may grow.10
4. Plaintiffs filed this suit on March 18, 2020 in an effort to avoid this calamity and ensure that Wisconsin voters—many of whom are their members and constituents—would be able to fully exercise their constitutional right to vote in the midst of this unprecedented public health crisis. Although this Court denied plaintiffs’ preliminary injunction motion in some respects (without prejudice), in other respects it granted important relief that enabled tens of thousands of voters to register and cast their ballots. And although the Court’s preliminary injunction was further narrowed on appeal by the U.S. Court of Appeals for the Seventh Circuit and the Supreme Court, one of the most important parts of this Court’s injunctive relief survived intact: the Court’s order enjoining defendants “from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted,” and extending that deadline for receipt of absentee ballots by six days, provided that such ballots were mailed and postmarked on or before election day. See Democratic Nat’l Comm. v. Bostelmann, Civ. No. 20cv-249-wmc, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020), clarified, ECF No. 122 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm.,
https://madison.com/wsj/news/local/health-med-fit/milwaukees-black-community-hit-hard-bycovid-19-pandemic/article_8cf82962-0e17-5044-aba9-ecdd9b54b65a.html; David Bowen, Wisconsin’s primary subjected people of color to yet another Covid-19 disadvantage, The Guardian (Apr. 8, 2020), https://www.theguardian.com/us-news/2020/apr/08/wisconsincoronavirus-black-communities-inequality.
10 Associated Press, The Latest: 52 coronavirus cases may be linked to spring election (Apr. 28, 2020), https://apnews.com/b1503b5591c682530d1005e58ec8c267. “Several” of these people reported additional possible exposures, so it is unclear whether the election itself caused them to contract the virus. If they already had contracted the virus prior to the election, they may also have spread it to others at the polls on April 7.
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Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020). The defendants and intervening defendants did not challenge this extension of the ballot-receipt deadline, and the Supreme Court relied on this extension in denying “an additional extension, which would allow voters to mail their ballots after election day.” 2020 WL 1672702, at *2.
5. This Court’s April 2 preliminary injunction extending the ballot-receipt deadline from April 7 to April 13 appears to have resulted in over 142,000 Wisconsin citizens being able to cast their ballots by election day—ballots that would otherwise have been rejected and, thus, voters who would have been disenfranchised.11
6. Although the disastrous April 7 Spring Election is now past, several more elections will be held in Wisconsin in 2020, culminating in the November 3 General and Presidential Election. Contrary to the Wisconsin Legislature’s false claims in a recently filed motion to dismiss, see ECF No. 197, plaintiffs’ original and amended complaints clearly and repeatedly ask for injunctive relief both with respect to the April 7 election and for “any election that occurs while this crisis continues.” ECF No. 55 ¶ 7 (emphasis added); see id. at 19, pts. C-E (asking for various injunctive relief to extend “until the COVID-19 crisis is over”) (emphasis added); see also id. ¶ 44 (seeking injunctive relief for “the upcoming April 7, 2020 [election], as well as other elections taking place during the COVID-19 crisis”) (emphasis added). To reiterate, plaintiffs seek injunctive relief applicable to any and all elections—up to and including the November 3
11 The data regarding ballots that arrived between April 8 and April 13 can be found at https://elections.wi.gov/blog; see also https://electionlawblog.org/?p=110746. As of 8 p.m. on April 7, there had been 990,129 absentee ballots returned. https://elections.wi.gov/blog. WEC reports that, ultimately, 1,132,923 absentee ballots were returned and counted, suggesting that 142,794 ballots were able to be counted that would not otherwise have been. See https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf.
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election—that are held while the COVID-19 crisis continues in Wisconsin and until that crisis is over.
7. Plaintiffs in this Second Amended Complaint challenge the same statutory requirements for registering to vote and absentee voting that they challenged in their prior pleadings, see ECF Nos. 1, 55, and add an additional challenge regarding early in-person absentee voting and in-person voting on election day. The previously challenged provisions are: (a) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day for ballots to be counted (“Election Day Receipt Deadline”), Wis. Stat. § 6.87; (b) the requirement that for an absentee ballot to be counted, the absentee voter must have a witness certify to the truth of the information the voter provides on the ballot, id. § 6.87(2); (c) the requirement that copies or scans of photo identification accompany absentee ballot applications, id. § 6.86; (d) the requirement that copies of proof of residence accompany electronic and by-mail voter registration, id. § 6.34; and (e) the by-mail and electronic registration deadlines in id. § 6.28(1), which require the registration to “be delivered to the office of the municipal clerk or postmarked no later than the 3rd Wednesday preceding the election.” The additional challenge is to the defendants’ failure to provide sufficient financial, personnel, and other resources to ensure an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner. These challenges are collectively referred to as the “challenged matters” or “challenged provisions.”
8. Each of the challenged matters, on its own, continues to pose significant risks to voters seeking to exercise their right to vote in the remaining 2020 elections (and any other election that occurs while the pandemic continues). Collectively, these challenged matters will ensure that many Wisconsin citizens (a disproportionate number of whom are voters of color or live in
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economically disadvantaged communities) will be unable to vote or will have their validly cast ballots discarded. Without injunctive relief from this Court, thousands of Wisconsin voters at minimum will likely be disenfranchised again, as occurred in the April 7 election. Or, as also happened in the April 7 election, many other voters will refuse to be disenfranchised, will vote inperson, and will risk exposure to the COVID-19 virus. These are irreparable injuries.
9. Accordingly, plaintiffs file this Second Amended Complaint to ensure that Wisconsin voters—many of whom are their members and constituents—are able to fully exercise their right to vote in the midst of this unprecedented crisis. Plaintiffs seek expanded injunctive relief enjoining the Election Day Receipt Deadline and allowing all ballots postmarked12 on or before an election day but received within a minimum of 10 days thereafter to be counted; enjoining in part the requirement that a voter submitting an absentee ballot have a witness certify to the accuracy of the voter’s information on the ballot; suspending in part the requirements that copies of documents and photo IDs be included with voter registration and absentee ballot applications; extending the deadline for electronic and by-mail voter registration to the Friday before an election, or whenever in-person absentee voting ends; and requiring defendants to take immediate steps to ensure there will be an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner.
12 The term “postmark” refers to any type of imprint applied by the U.S. Postal Service to indicate the location and date the Postal Service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark date, it should be presumed to have been mailed on or before election day unless the preponderance of the evidence demonstrates it was mailed after election day.
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JURISDICTION AND VENUE 10. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of a right secured by the United States Constitution. 11. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 12. This Court has personal jurisdiction over the defendants, the Commissioners of the Wisconsin Elections Commission (WEC), who are sued in their official capacities only. The intervening defendants have voluntarily submitted to the Court’s jurisdiction. 13. Venue is proper in the U.S. District Court in the Western District of Wisconsin pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to plaintiffs’ claims occurred there. 14. This Court has the authority to enter a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. 15. This Court has continuing jurisdiction to enter and enforce additional injunctive relief despite the intervening defendants’ appeal of this Court’s April 2 and 3 interlocutory orders on plaintiffs’ motion for a preliminary injunction. See 28 U.S.C. § 1292(a)(1). This Court’s April 2 and 3 orders pertained only to the April 7 election. Bostelmann, 2020 WL 1638374, at *22 (extending receipt deadline to April 13 and request deadline to April 3); ECF No. 122 at 2 (enjoining release of unofficial results until April 13). To the extent this Court’s April 2 order extended beyond the April 7 election⸺for example, preventing defendants “from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so,”
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2020 WL 1638374, at *22, the Seventh Circuit’s stay does not prevent this Court from reconsidering the issue. The Seventh Circuit stayed this provision of this Court’s order because “the district court did not give adequate consideration to the state’s interests” when suspending this requirement. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at **3-4. The Seventh Circuit did not declare that suspension of this rule was inappropriate under all circumstances. In fact, the Seventh Circuit suggested that a modified witness requirement might be appropriate. Id. at *4. The United States Supreme Court did not consider this issue. Democratic Nat’l Comm. v. Republican Nat’l Comm., 2020 WL 1672702, at *1 (order stayed only “to the extent it requires the State to count absentee ballots postmarked after April 7, 2020”).
PARTIES 16. Plaintiff the Democratic National Committee (DNC) is a national committee, as that term is defined by and used in 52 U.S.C. § 30101, dedicated to electing local, state, and national candidates of the Democratic Party to public office throughout the United States. In particular, the DNC is charged with facilitating the Democratic presidential nominating process, which culminates in the 2020 Convention that is scheduled to take place in Milwaukee, Wisconsin in August. 17. The DNC has members and constituents across the United States, including eligible voters in Wisconsin whose rights to vote have been and will continue to be severely burdened and denied outright by the challenged matters during the current coronavirus crisis. 18. Plaintiff the Democratic Party of Wisconsin (DPW) is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public office throughout the State of Wisconsin. The DPW has members and constituents from across
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Wisconsin, including many voters whose rights to vote have been and will continue to be severely burdened and denied outright by the challenged matters during the current coronavirus crisis.
19. As part of their missions, both plaintiffs work to ensure that their members and constituents are able to effectively exercise their right to vote for their chosen candidates. Plaintiffs are directly harmed by the challenged matters, which by making it more difficult for plaintiffs’ members and constituents to register and vote, have required and will continue to require plaintiffs to expend additional resources assisting their members and constituents to overcome these burdens to exercise their right to vote. These are resources that the plaintiffs otherwise could be spending in educating voters about core issues and preparing for the general election. See, e.g., Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (political party had standing because of its diversion of resources “to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”), aff’d, 553 U.S. 181, 189 n.7 (2008); One Wis. Inst. v. Thomsen, 198 F. Supp. 3d 896, 908-10 (W.D. Wis. 2016).
20. Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen are the six Commissioners of the WEC and are named as defendants in their official capacities. Together, they comprise the WEC, the body that administers and enforces Wisconsin’s election laws, including Wis. Stats. §§ 6.28(1), 6.34, 6.86, and 6.87. See id. § 5.05. Defendants have acted under color of state law at all times relevant to this action. Defendants also have “the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing.” Wis. Stat. § 5.05(1); see also Frank v. Walker, 196 F. Supp. 3d 893, 918 (E.D. Wis. 2016) (“Carrying out a federal court’s order concerning the state’s election procedures would
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qualify as administering the state’s election laws and ‘other laws relating to elections’ (which includes federal laws relating to elections).”).
21. Intervening defendant the Republican National Committee (RNC) is a national committee, as that term is defined by and used in 52 U.S.C. § 30101, dedicated to electing local, state, and national candidates of the Republican Party to public office throughout the United States. This Court granted the RNC leave to intervene permissively in this litigation on March 28, 2020. See ECF No. 85.
22. Intervening defendant the Republican Party of Wisconsin (RPW) is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Republican Party to public office throughout the State of Wisconsin. This Court granted the RPW leave to intervene permissively in this litigation on March 28, 2020. See ECF No. 85.
23. Intervening defendant the Wisconsin Legislature (Legislature) is made up of the State Assembly and the State Senate, and is “vested” with the “legislative power” of the State of Wisconsin. See Wis. Const. art. IV, § 1. The United States Court of Appeals for the Seventh Circuit held on April 3, 2020 that the Legislature is entitled to intervene in this litigation, and this Court accordingly held that the Legislature has “effectively been an intervening defendant” since that decision and granted the Legislature’s motion to intervene on April 6. See ECF No. 191.
STATEMENT OF FACTS AND LAW A. Wisconsin Registration and Absentee Laws
24. Wisconsin law provides that registration by mail and electronic registration closes on the third Wednesday preceding an election. Wis. Stat. § 6.28 (1)(a).
25. Individuals registering by mail or electronically must provide a copy of an “identifying document that establishes proof of residence.” Id. § 6.34(2). The only exception to
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this rule is for individuals registering electronically who do not have to provide such documentation if they provide “the number of a current and valid operator’s license [or] identification card.” Id. (2m).
26. Individuals wishing to register after the mail and electronic registration deadline can only do so by registering in-person when they apply for an in-person absentee ballot or on Election Day at a polling place. Id.
27. Historically, Wisconsin voters have relied heavily on same day registration. Between 2008 and 2016, for example, 10 to 15% of all registrations took place on election day.13
28. Wisconsin also provides a process for absentee voting for all registered absentee voters, allowing them to request an absentee ballot by mail, in person at the municipal clerk’s office, or by signing a statement and requesting to receive an absentee ballot, via an agent, special voting deputy, or by e-mail or fax. Id. § 6.86(1)(a).
29. All voters, except for those who fall within specified exceptions, are required to present a copy of their proof of identification with their absentee application. Id. § 6.86(1)(ac).
30. Once a voter has received and completed their ballot, he or she must return it so that “it is delivered to the polling place no later than 8 p.m. on election day.” Id. § 6.87(6). B. The COVID-19 Pandemic and the April 7 Spring Election
31. We remain in the midst of the worst national health emergency since at least the Great Influenza of 1918-20. As of April 29, 2020, Wisconsin had had at least 6,520 reported cases of the COVID-19 coronavirus, and at least 308 Wisconsinites had died from it, with the death toll continuing to rise. As a result, Wisconsinites continue to socially distance themselves from each
13 https://elections.wi.gov/sites/elections.wi.gov/files/page/general_election_voter_registr ation_and_absentee_s_4.
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other to try to slow the spread of the disease in a collective effort to save their friends, neighbors, and families, with no clear end in sight. Projections by the federal government indicate that the virus will persist at least into the fall, if not longer. The Director of the Centers for Disease Control and Prevention recently warned that the country may encounter a second, more deadly wave of COVID-19 in the fall, which will “be even more difficult than the one we just went through.”14 This means that Wisconsin’s upcoming 2020 elections will occur in the middle or immediate aftermath of the worst public health crisis in over a century. Indeed, the latest projections indicate that this crisis may persist for 14 to 18 months, and perhaps even into 2022.
32. Governor Evers’ “Safer-at-Home Order,” issued March 24, 2020, has been extended pursuant to the April 16, 2020 Emergency Order #12 and is now scheduled to remain in effect until May 26, 2020 “or until a superseding order is issued.” All Wisconsinites must continue to stay at home as much as possible; non-essential businesses and operations remain closed, with limited exceptions; and all forms of travel continue to be prohibited unless explicitly excepted. Virtually all public and private gatherings of any number of people continue to be forbidden. Public and private K-12 schools are now closed for the remainder of the 2019-20 school year. The extended Order remains enforceable by local law enforcement officials and county sheriffs, with violations or obstruction of the Order punishable by imprisonment, fines, or both. Wis. Stat. § 252.25. It is presently uncertain whether and to what extent the Order will survive state legal challenges against it and, if it does, whether it will be extended past May 26. It is reasonably clear, however, that the pandemic will continue and may even worsen this year, and may well extend into 2021 or even 2022.
14 Zack Budryk, CDC director warns second wave of coronavirus might be ‘more difficult’, The Hill (Apr. 21, 2020), https://thehill.com/policy/healthcare/493973-cdc-director-warnssecond-wave-of-coronavirus-might-be-more-difficult
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33. Wisconsin citizens continue to distance themselves to ensure their safety and to comply with the Safer-at-Home Order. Many are unwilling to risk their safety and the safety of others by waiting in line to register to vote or cast their ballot. And the frightening results of the April 7 election, see supra ¶¶ 1-3, give them good cause for these concerns. Wisconsin voters have several more elections in 2020, culminating in the November 3 General and Presidential Election, with public-health conditions likely to be similar to, if not even worse than, the April 7 election. The experience of the April election helps demonstrate what the remaining 2020 elections in Wisconsin will be like absent additional judicial intervention and relief.
34. The City of Milwaukee shut down in-person registrations on March 23, 2020. ECF No. 63-1, at 8; see also ECF No. 63-9. Based on information and belief, other cities and towns took similar steps to limit in-person registration. As a result, for a large number of Wisconsin citizens, registering by mail or electronically was the only alternative to in-person registration on election day.
35. In-person absentee voting saw similar cuts throughout the State. During the inperson absentee voting period, for instance, the City of Milwaukee closed all three locations offering this option. ECF No. 63-1, at 8; see also ECF No. 63-9. The City of Madison closed all in-person absentee voting locations except for one location that permitted voters the option of curbside absentee voting. ECF No. 63-1, at 8.
36. The most severe impacts to in-person voting occurred on election day. This was due in large part to severe staffing shortages.15 Milwaukee only opened five of its usual 180 sites;
15 See, e.g., Patrick Marley & Craig Gilbert, Wisconsin polling places are closing because there's not enough people to work the April 7 election, Milwaukee Journal Sentinel (Mar. 31, 2020), https://www.jsonline.com/story/news/politics/elections/2020/03/31/wisconsin-votingsites-closing-due-coronavirus-poll-worker-shortage/5090003002/.
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Green Bay opened only two of its usual 30 sites; Waukesha opened just one of 13; and Kenosha opened only 10 of its usual 22 sites.16 In Milwaukee, these closures resulted in thousands of voters being forced to wait in line for hours in close quarters with other voters.17 The lines were
consistently long throughout the day; according to poll workers at one location in north Milwaukee, no fewer than 350 voters were in line throughout the day.18 Voters in Green Bay also
waited for as many as four hours to cast a ballot at one of two locations—down from the normal 30 polling places available.19
37. The burdens and risks imposed by all of these restrictions on in-person registration,
early in-person absentee voting, and in-person voting on election day fell disproportionately on
African-American, Latino, and Hmong voters and on economically disadvantaged communities.
See supra n.9.
38. Faced with few options to vote in-person and stymied at multiple points in obtaining
and casting an absentee ballot, it was not surprising that Milwaukee voters turned out in fewer
numbers than expected. One political scientist estimates that the City of Milwaukee “saw nearly
16 Briana Reilly, Madison has 66 polling sites on Election Day, Milwaukee has five. What’s the deal? (Apr. 7, 2020) https://madison.com/ct/news/local/govt-and-politics/madison-has-66polling-sites-on-election-day-milwaukee-has-five-whats-the-deal/article_8868bacf-6697-5cf4aa4f-d85fb37cf846.html.
17 Mary Spicuzza, ‘A very sad situation for voters’: Milwaukeeans brave wait times as long as 2 1/2 hours, top election official says, Milwaukee Journal Sentinel (Apr. 7, 2020), https://www.jsonline.com/story/news/politics/elections/2020/04/07/wisconsin-electionmilwaukee-voters-brave-long-wait-lines-polls/2962228001/.
18 Ben Jordan, Voters bear long lines on Milwaukee's north side, WTMJ-TV Milwaukee (Apr. 7, 2020), https://www.tmj4.com/news/coronavirus/voters-bear-long-lines-on-milwaukeesnorth-side.
19 Daniel Bush, Record absentee ballots sustain turnout in Wisconsin primary, PBS (Apr. 14, 2020), https://www.pbs.org/newshour/politics/record-absentee-ballots-sustain-turnout-inwisconsin-primary.
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16,000 fewer votes than it should have, given the performance of other municipalities in the
county.”20 Similarly, in the City of Green Bay, voter turnout was reportedly down 50% from the
2016 presidential primary election and down 25% from a 2019 mayoral race.21
39. Even worse, the voters who stood in line to cast ballots faced public health risks—
including exposure to the highly contagious COVID-19 virus. The Wisconsin Department of
Health has hired 120 additional contact tracers specifically “to gear up for potential cases resulting
from exposure at Tuesday's Spring General Election.”22 The Wisconsin Department of Health
Services reported on April 28 that 52 people who voted in-person or worked as poll workers on
April 7 have tested positive for COVID-19.23
40. For those voters who intended to cast absentee ballots—or did actually cast them—
problems also were rampant. First, many voters could not provide the required identification to
request an absentee ballot.24 As a result, some local officials recommended that all voters consider
20 Charles Stewart III, Important lessons from the Wisconsin primary, Mischiefs of Faction (Apr. 17, 2020), https://www.mischiefsoffaction.com/post/important-lessons-from-the-wisconsinprimary.
21 Voter turnout in Green Bay down more than 50% compared to 2016 spring election, Fox 11 News (Apr. 14, 2020), https://fox11online.com/news/election/voter-turnout-in-green-baydown-more-than-50-compared-to-2016-spring-election.
22 J.T. Cestkowski, State hires ‘contact tracers’ to help contain spread of COVID-19, WKOW (Apr. 9, 2020, 5:04 PM), https://wkow.com/2020/04/09/state-hires-contact-tracers-tohelp-contain-spread-of-covid-19/.
23 See supra ¶ 3; see also Devi Shastri, In-person voting was likely a 'disaster' for Wisconsin's efforts to flatten coronavirus curve, national experts say, Milwaukee Journal Sentinel (Apr. 8, 2020), https://www.jsonline.com/story/news/politics/elections/2020/04/08/coronaviruswisconsin-election-likely-hurt-effort-flatten-curve/2961718001/.
24 See, e.g., Reid J. Epstein & Adam Nagourney, Democratic Victory in Wisconsin Looms as ‘Clarion Call’ for Trump, N.Y. Times (Apr. 14, 2020), https://www.nytimes.com/2020/04/14/us/politics/trump-wisconsin-2020election.html?smid=nytcore-ios-share (quoting Wisconsinite on how some voters lacked the “wherewithal to request absentee ballots or the inclination to vote in person on April 7”).
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themselves indefinitely confined and therefore exempt from the photo identification requirement.25 The Wisconsin Supreme Court enjoined this practice, holding instead that each voter had to assess, based on their own individual circumstances, whether they were “indefinitely confined” and thus exempt from the photo identification requirement. The court added that a voter did not need to be completely or permanently confined to claim the exemption. Jefferson v. Dane Cty., No. 2020AP557-OA (Wis. Mar. 31, 2020).
41. Second, many absentee ballots failed to arrive until after April 7, effectively denying the voters who received their ballots late even the opportunity to cast their vote.26 According to statistics from the WEC, as of April 7, there were 1,282,762 absentee ballot applications but only 1,273,374 absentee ballots sent out—a difference of 9,388 absentee ballots that had not even been sent to the requesting voters as of the day the voters had to mail them back.27 Other ballots were mailed but never delivered. In Milwaukee, a postal worker located three bins of absentee ballots that never reached their destinations in Oshkosh and Appleton.28 In response to reports that the U.S. Postal Service struggled to deliver mail ballots to voters—resulting in some ballots being delayed or, even worse, not arriving at all—both of Wisconsin’s U.S. Senators called

25 Alison Dirr & Patrick Marley, Absentee voters in Milwaukee, Dane counties can say

they're 'indefinitely confined' and skip photo ID, clerks say, Milwaukee Journal Sentinel (Mar. 25,

2020),

https://www.jsonline.com/story/news/local/milwaukee/2020/03/25/absentee-voters-

milwaukee-dane-counties-can-skip-photo-id-coronavirus-indefinitely-confined/5085017002/.

26 See, e.g., Nick Corasaniti, Some People Got to Vote Today, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/2020/04/07/us/politics/wisconsin-absentee-ballots.html (discussing voters, such as a pregnant health care worker, who did not receive their absentee ballot by the deadline and could not vote in-person).

27 https://elections.wi.gov/node/6825

28 Nick Corasaniti & Stephanie Saul, Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots, N.Y. Times (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/us/politics/wisconsin-election-absentee-coronavirus.html.

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on the Inspector General of the U.S. Postal Service to begin an investigation into “absentee ballots not being delivered in a timely manner.”29 One investigation “into Wisconsin’s missing ballot crisis reveals a system leaking from all sides,” including through “[i]nadequate computer systems, overwhelmed clerks and misleading ballot information [that] hampered Wisconsin’s historic―and historically troubling―spring election.”30
42. The problems voters faced with the U.S. Postal Service during the recent election are not likely to abate any time soon. To the contrary, as more voters throughout the country turn to voting by mail in the coming months, that increased reliance in by-mail voting is likely to coincide with a budgetary crisis the U.S. Postal Service is facing due to COVID-19—a crisis that threatens to shutter the entire agency by this summer.31 The Postal Service is experiencing dramatic decreases in mail volume compared to last year and, “[a]s a result, . . . is projecting a $13 billion revenue shortfall this fiscal year because of the pandemic and another $54 billion in losses over 10 years.”32 And, as the pandemic continues to spread, postal workers have increasingly been infected. As of April 11, nearly 500 postal workers across the country had already tested positive

29 See Letter from Senators Tammy Baldwin and Ron Johnson to U.S. Postal Service

Inspector

General

(Apr.

9,

2020),

https://www.wispolitics.com/wp-

content/uploads/2020/04/200409LETTER.pdf.

30 Daphne Chen et al., ‘They should have done something’: Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows, Milwaukee Journal Sentinel (Apr. 21, 2020), https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueledmultiple-failures/5156825002/ The investigation was conducted by the Milwaukee Journal Sentinel, the PBS series FRONTLINE, and Columbia Journalism Investigations.

31 Kyle Cheney, House panel warns coronavirus could destroy Postal Service by June, Politico (Mar. 23, 2020), https://www.politico.com/news/2020/03/23/coronavirus-postal-servicejune-145683.

32 Nicholas Fandos & Jim Tankersley, Coronavirus Is Threatening One of Government’s Steadiest Services: The Mail, N.Y. Times (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/us/politics/coronavirus-is-threatening-one-ofgovernments-steadiest-services-the-mail.html.

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for the coronavirus, 19 had died, and more than 6,000 were in self-quarantine because of exposure.33
43. All of these developments have grave implications for voting rights in the State of Wisconsin. In years past, when the Postal Service has faced budget crises, it has closed hundreds of mail processing centers.34 Moving forward, it is likely the Postal Service will need to make further cuts to routes, processing centers, and staff, which will exacerbate mail processing delays. Any such delays will be acutely felt in Wisconsin, where mail routing is already circuitous. See ECF No. 72 ¶¶ 6–7 (describing how mail takes five days to go across Madison); see also ECF No. 75 ¶ 6 (describing how mail in Viroqua is routed through Minneapolis).
44. Finally, even the votes from Wisconsinites who successfully received and returned their absentee ballots on time were not guaranteed to count. Many of them lacked a witness signature—even though it is likely many of them were cast during the window of time when this Court enjoined that requirement and offered a narrow, reasonable alternative. For example, in Milwaukee, at least 750 absentee ballots were missing the signature and were therefore not counted.35 Hundreds in Marathon County were rejected for a variety of reasons, including 48 in the City of Marshfield either because of a late postmark or because of a missing witness signature.36

33 Jacob Bogage, White House rejects bailout for U.S. Postal Service battered by

coronavirus,

Wash.

Post

(Apr.

11,

2020),

https://www.washingtonpost.com/business/2020/04/11/post-office-bailout-trump/.

34 See Office of the U.S. Postal Service Inspector General, Area Mail Processing Consolidations (June 5, 2015), https://www.uspsoig.gov/sites/default/files/document-libraryfiles/2015/no-ar-15-007.pdf.

35 Spicuzza, supra note 17.

36 Naomi Kowles, Hundreds of absentee ballots for April election in Marathon County rejected, WSAW.com (Apr. 17, 2020), https://www.wsaw.com/content/news/Hundreds-of-

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45. Despite all of these obstacles, more than 1.1 million Wisconsin voters cast absentee ballots.37 Approximately 71% of Wisconsinites who voted in the election cast absentee ballots— far more than the 14% of the electorate who voted this way in the April 2019 election, the 11% in the April 2018 election, and even far more than the 27% in the 2016 general election.38 Given the extraordinary circumstances of the April election that are likely to continue for the foreseeable future, it is not surprising that Wisconsinites—faced with this unconscionable choice between their safety and potentially endangering the lives of others and exercising their fundamental right to vote—relied on absentee voting at record levels. It is all but certain that this unprecedented demand will continue through the remaining elections held in 2020. C. The Impact of the Challenged Statutory Provisions During the COVID-19 Pandemic
46. As the nation witnessed during the April 7 election, Wisconsin’s regulatory scheme is hostile to voting rights as applied in the context of the COVID-19 pandemic. As a direct result, without additional action by this Court, thousands of Wisconsin voters at a minimum will be disenfranchised in the remaining 2020 elections, culminating in the November 3 General and Presidential Election. Many thousands more, at a minimum, will vote only by overcoming unconscionable burdens, including potential exposure to the COVID-19 virus. These burdens disproportionately impact voters of color and economically disadvantaged communities.
absentee-ballots-for-April-election-in-Marathon-County-rejected-569748131.html. 37 Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference
Primary, Wis. Elections Comm’n (Apr. 17, 2020), https://elections.wi.gov/index.php/node/6859 38 Miles Parks, ‘In The End, The Voters Responded’: Surprising Takeaways From
Wisconsin's Election, Nat’l Public Radio (Apr. 15, 2020), https://www.npr.org/2020/04/15/834037566/in-the-end-the-voters-responded-surprisingtakeaways-from-wisconsin-s-election.
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47. As described below, each of the challenged statutory provisions on its own poses significant risks to voters seeking to exercise their right to vote in the upcoming 2020 elections; collectively, they combine to ensure that many Wisconsin citizens will continue to be unable to vote or will have their ballots discarded.
a. Extension of Deadline for Receipt of Absentee Ballots 48. In the upcoming 2020 elections, it is highly likely that thousands of absentee ballots will arrive after the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6), due to no fault of the voters. 49. In the weeks leading up to the April 7 election debacle, municipal clerks were inundated with an unprecedented number of absentee ballot requests. Despite valiant efforts from understaffed clerk’s offices, over 9,300 absentee ballots that were timely requested were not even mailed out by election day. See supra ¶ 41. That figure apparently does not include the additional large tubs of undelivered absentee ballots found on election day. Id. Many thousands more voters received their ballots just days before the election, often leaving insufficient time for them to return their ballots through the mail by election day. 50. For the April election, this Court extended the absentee ballot receipt deadline by six days, and the Seventh Circuit affirmed that decision. The intervening defendants did not challenge this extension in the U.S. Supreme Court, but instead relied on it in arguing that the District Court should have imposed an April 7 postmark deadline for absentee ballots. See Democratic Nat’l Comm. v. Republican Nat’l Comm., 2020 WL 1672702, at **3-4. Approximately 142,000 absentee ballots arrived during those six days. See supra ¶ 5. Had this Court not extended the absentee-ballot-receipt deadline, the voters casting these ballots would have been disenfranchised. In addition, approximately 4,678 additional absentee ballots were rejected
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because they arrived after 4:00 p.m. on April 13; it is not yet known how many of these rejected ballots were timely mailed on or before April 7.39
51. All evidence indicates the situation will remain the same for future elections this year. No plans to hire more staff have been announced, and there currently is no budget for heightened “postage and envelope costs” for absentee ballots.40 The Postal Service, already “pushed to the brink of [its] capabilities” during the April election, is on the verge of bankruptcy. Supra ¶¶ 41-43.
52. Accordingly, it is likely that thousands of voters will once again receive their timely requested absentee ballots too late to be able to cast and return them in sufficient time that the ballots are received by election day. Without intervention by the Court, all of those voters will be disenfranchised by the Election Day Receipt Deadline imposed by Wis. Stat. § 8.87(6). That would squarely conflict with the outcome in Democratic National Committee v. Republican National Committee, in which all nine Justices unanimously agreed that it was appropriate to extend the Election Day Receipt Deadline by an additional six days, with the 5-4 disagreement being over whether those ballots had to be postmarked by election day itself. Compare 2020 WL 1672702, at **1-4 with id. at *5 (Ginsburg, J., dissenting) (“If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?”).
39 See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020, Wis. Elections Comm’n, https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf
40 See Summary of April 7, 2020 Election at 5, Wis. Elections Comm’n, https://elections.wi.gov/sites/elections.wi.gov/files/202004/April%207%20Election%20Summary%20and%20Next%20Steps.pdf.
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53. The Supreme Court majority imposed the postmark deadline in part because it found “no probative evidence” that “late-requesting voters” in the April 7 election “would be in a substantially different position from late-requesting voters in other Wisconsin elections,” using the example of a voter who in an “ordinary election” requests an absentee ballot on the last day for doing so (the Friday before the election), who can “usually” expect to receive the ballot the following Monday or even on election day itself―i.e., in time to mail and postmark the ballot by the end of election day. Id. at *3. The April 7 election results provide the “probative evidence” the Supreme Court found lacking before the election―evidence that thousands of voters did not receive their requested ballots until after election day, through no fault of their own. See supra ¶¶ 1, 41. These voters were all in “a substantially different position from the late-requesting voters” described in the per curiam opinion, who received their ballots in time to return them on election day.
b. Relief from Requirement of Witness Signature for Absentee Ballots 54. Wisconsin’s requirement that each voter submitting an absentee ballot have another adult witness and sign their ballot puts tens of thousands of Wisconsin voters in an untenable situation and unconstitutionally burdens their right to vote. See Wis. Stat. § 6.87(2). Over 600,000 Wisconsinites live alone, and even more live with an individual who is unqualified to be a witness (e.g., a child or non-citizen). With the requirements of the Safer-at-Home Order and the health risks of venturing out to find a witness, many voters who live alone will not have a witness to attest to their absentee ballots and, absent intervention by the Court, simply will not be able to vote. Adding to their burden, a significant portion of this population is comprised of senior citizens who are most at risk from the coronavirus and who could not interact with a witness even if they could find one.
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55. This Court granted limited relief from the witnessing requirement, allowing a voter who could not obtain a witness through reasonable effort to certify that “he or she was unable to safely obtain a witness certification despite his or her reasonable efforts to do so.” Bostelmann, 2020 WL 1638374, at **20, 22. The Seventh Circuit stayed enforcement of this provision for the April 7 election, concluding that (a) “the district court did not give adequate consideration to the state’s interests in suspending this requirement”; (b) the Purcell principle counseled against relief given that the election was only days away; and (c) the “overbreadth of the district court’s order . . . categorically eliminates the witness requirement applicable to absentee ballots.” Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at *3. The panel suggested the WEC’s “alternative suggestions” for fulfilling the witness requirement (e.g., having the witness observe the voter over Skype, the voter mail the completed ballot to the witness, and the witness sign and date the ballot) would be sufficient, especially given the extra time that voters had to obtain a witness signature because of the extension of the ballot-receipt deadline. Id.
56. WEC’s proposed alternatives proved insufficient. According to preliminary data, approximately 11,944 returned ballots were rejected because of “insufficient” certification. Supra ¶ 50 & n.39. Moreover, there are strong grounds to believe that many of the 135,417 unreturned ballots—over 10% of all ballots sent out—were not returned because the voters who had requested these ballots were unable to navigate the witnessing requirements in the midst of the pandemic and resulting isolation from others. Supra ¶¶ 44, 54.
57. Plaintiffs respectfully submit that, given the experience in the April 7 election, both this Court and the Seventh Circuit should reconsider their views on this issue. The Seventh Circuit was concerned that this Court gave “no effect to the state’s substantial interest in combatting voter fraud.” Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at *3.
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That criticism is not fairly applied to this Court’s April 2 decision. Moreover, as discussed below, the State permits “indefinitely confined” voters to forego the requirement of submitting copies or scans of their photo IDs, even though the photo ID requirement serves the same “substantial interest in combatting voter fraud.” See infra ¶¶ 62-64. There is no sound basis for allowing indefinitely confined voters to avoid the photo ID requirements notwithstanding the State’s interest in combatting voter fraud but not extending similar relief to voters who are willing to attest they cannot meet the witness requirement.
58. The Seventh Circuit suggested that one way for a voter to “satisfy the statutory signature requirement” might be “by maintaining the statutory presence requirement but not requiring the witness’s physical signature.” Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at *4. The panel, however, incorrectly believed the WEC could implement that suggestion. The WEC does not believe it has the authority to make such an “accommodat[ion].”41
59. Even if it rejects broader relief, this Court should, at minimum, take the Seventh Circuit’s suggestion and provide that a voter who is unable to safely obtain a physical witness signature may have someone act as a witness from afar (or by video) without obtaining their physical signature. The voter would then write down the witness’s name and contact information on the ballot in the space provided, enabling election officials to contact the witness if they had any questions about the legitimacy of the ballot. This narrow relief would allow individuals to comply with social-distancing requirements and to avoid the risk of COVID-19 transfer from touching the same paper. It would not “categorically eliminate[ ] the witness requirement” and would give “effect to the state’s substantial interest in combating voter fraud.” Democratic Nat’l
41 See, e.g., https://elections.wi.gov/index.php/node/6790. SECOND AMENDED COMPLAINT OF DNC AND DPW FOR DECLARATORY AND
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Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at *3. Indeed, every absentee voter would have a witness and the State would have information about that witness.
c. Relief from Proof of Identification Provision 60. Wis. Stat. §§ 6.86 and 6.87, which require a copy of a voter’s photo identification to accompany a request for an absentee ballot, continue to burden voters. 61. As discussed supra ¶ 40, many voters did not even attempt to vote absentee during the April election because the photo ID requirements were too burdensome, especially for those without access to smartphones or the Internet. Because many workplaces, public libraries, and copy shops remain closed, many voters will continue to face substantial burdens in obtaining the copies or scans they need to complete their absentee ballot applications and will continue to be prevented from voting. In addition, even if those establishments were open, many voters are fearful of leaving their homes because of the health risks of the coronavirus pandemic and the prohibitions in the extended Safer-At-Home Order. 62. Wisconsin law specifically exempts a voter from the requirement of providing a photo ID with a request for an absentee ballot if the voter is “indefinitely confined” because of age, illness, infirmity, or disability. Wis. Stat. §§ 6.86(2)(a), 6.87(4)(b)(2). “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.” Jefferson, No. 2020AP557-OA, at *2. This Court relied heavily on the “indefinitely confined” option in its April 2 order denying preliminary injunctive relief, holding that “the current proof of ID requirement, as being applied under the WEC guidance and state court order, does not impose an undue burden on the right to vote[.]” Bostelmann, 2020 WL 1638374, at *21.
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63. The “indefinitely confined” option, however, gets only passing mention in the instructions provided to voters requesting an absentee ballot. Voters are not told that designation of indefinitely confined status is for each individual voter to make based on how they feel about their own current circumstances, nor are they told that a claim of indefinitely confined status does not require permanent or total inability to travel outside of their residence. As the WEC and Wisconsin Supreme Court have shown, “indefinitely confined” is not a self-defining term, and in the absence of explicit, prominent instructions on the absentee ballot request form, many voters are likely to misunderstand their entitlement to claim this status and, if they are otherwise unable to copy or upload an acceptable photo ID, may forego attempting to obtain an absentee ballot.
64. Thus, at a minimum, this Court should hold that materials for requesting absentee ballots must explicitly and prominently explain a voter’s option to claim “indefinitely confined” status during the COVID-19 pandemic, including the WEC and Wisconsin Supreme Court explanations of what that term means.
d. Relief from Proof of Residence Provision 65. Wis. Stat. § 6.34 requires new voters to provide a copy of their proof of residence to register if they do so by mail or online and do not have the number of a current driver’s license or state identification card with a matching address on file with the Wisconsin Department of Transportation. 66. This Court denied as moot plaintiffs’ request to enjoin the enforcement of this provision in connection with the April 7 election because the registration deadline for that election had already passed by the time the Court issued its order. Bostelmann, 2020 WL 1638374, at *50. 67. The issue is not moot with respect to the remaining 2020 elections. Wisconsin’s requirement that voters provide a copy of their proof of residence to register by mail or
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electronically operated to burden eligible voters in the April 7 election and will continue to burden eligible voters in the upcoming 2020 elections. The scanners and printers that many would-be electronic or by-mail registrants would typically use are often located at places of work, libraries, and commercial establishments (e.g., UPS locations) that are now closed or unsafe to visit. As a result, many Wisconsin citizens will be unable to obtain the copies they need to complete their voter registration applications and will be prevented from registering.
68. In addition, it is irrational and unfair for Wisconsin to exempt self-identified “indefinitely confined” voters from having to comply with some documentary proof requirements (i.e., photo ID requirements, see supra ¶¶ 62-64) while refusing to exempt such voters from other documentary proof requirements (i.e., proof of residency requirements). The anti-fraud and verification purposes of all these proof requirements are similar if not identical. No reasonable public purpose is served by excusing indefinitely confined voters from some documentation requirements but not others. If relaxing the photo ID requirements to accommodate indefinitely confined voters during the current pandemic is appropriate, there is no reasonable public purpose to be served in failing to relax other documentary proof requirements for such voters.
e. Extension of Mail-In and Electronic Registration Deadlines 69. Under Wis. Stat. § 6.28(1), the deadlines for registrations in person, by mail, and electronically all close on “the 3rd Wednesday preceding the election”—i.e., 21 days before the election. This provision goes on, however, to authorize registrations in person (but not by mail or electronically) to continue for those voters who cast “in-person absentee ballot[s]” or vote at the polls on election day. Id. Thus, those casting in-person absentee ballots may continue to register until the Sunday before the election, see id.; id. § 6.86(b), and those voting at the polls may register
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on election day itself, but those seeking to register by mail or electronically must do so no later than three full weeks before the election.
70. Historically, Wisconsin voters have registered to vote in person in large numbers, relying heavily on same-day registration during in-person absentee voting or on election day. As a result, thousands of Wisconsin voters typically do not register before they vote. However, many Wisconsinites did not have viable in-person registration options for the April 7 elections. As discussed above, in-person absentee voting was shut down in many parts of Wisconsin. See supra ¶ 34. And many Wisconsinites were understandably reluctant—if not altogether unable—to venture out in public to register and vote either through in-person absentee voting or at the polls, given the public health risks during the pandemic. For these voters, failure to register 21 days prior to the election effectively meant they could not vote.
71. No valid, reasonable state interests are served by this disparity and discrimination against by-mail and electronic registration. If election officials can accommodate registrations as late as election day when done in person, there is no sufficient reason why they cannot accommodate by-mail and electronic registrations much closer to the election than “the 3rd Wednesday preceding” it.
72. In its March 20, 2020 Opinion and Order, this Court recognized “the excruciating dilemma” faced by those who missed the statutory deadline for by-mail or electronic registration— “either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.” ECF No. 37 at 11. The Court found it likely that this was “an undue burden on citizens’ right to vote,” and concluded that extending the registration deadline would “impose only a minimal burden while potentially affording a great number of as yet unregistered voters the opportunity to exercise their franchise by safely voting absentee.” Id. at
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12, 15. The Court ordered that the “deadline by which individuals may register to vote electronically” be extended from March 18 to March 30 but declined to extend the by-mail registration deadline. Id. at 14-15, 20.
73. As the Court predicted, the evidence demonstrates that the extension of the electronic registration deadline to March 30 imposed only minimal burdens while affording many voters the opportunity both to register and to vote without risking exposure to the COVID-19 virus. In fact, the evidence shows that election administrators could have accommodated an extension of both the electronic and the by-mail registration deadlines to April 3, the Friday before the election. The Court’s concerns about by-mail registrations received even closer to the election that this, see id. at 14-15, could be resolved by requiring that by-mail requests be received by the Friday before the election.
74. Absent relief by this Court, unregistered but eligible voters who decide to register and vote shortly before one of the upcoming 2020 elections will face the same “excruciating dilemma” identified by this Court—“either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.” Id. at 11.
75. The individual and cumulative impacts of the challenged statutory provisions discussed supra ¶¶ 46-74 (together with defendants’ failure to ensure a sufficient number of safe early absentee-voting sites and election-day polling places) will, absent injunctive relief, cause plaintiffs, their members, and their constituents irreparable injuries that cannot be adequately redressed by money damages. Those injuries greatly outweigh any alleged injuries that defendants and intervenor-defendants may claim to face from the requested injunctive relief.
76. The balance of the equities and the public interest strongly favor plaintiffs’ requested injunctive relief.
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CLAIMS FOR RELIEF
COUNT I First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202 Undue Burden on the Right to Vote 77. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Second Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 78. Under the Anderson-Burdick balancing test, a court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 79. Unless plaintiffs are granted the relief requested herein thousands of Wisconsin voters, including plaintiffs’ members and constituents, will be severely burdened in attempting to exercise their right to vote (if not outright disenfranchised) in the upcoming 2020 elections. These burdens will fall disproportionately and with extra force on African American, Latino, and Hmong voters as well as economically disadvantaged voters. 80. Because of the ongoing pandemic and its projected course, many Wisconsin voters who would normally register in-person after the statutory cut-off for electronic and by-mail registration (either by registering during early in-person voting or at the polls) will continue to be unable or unwilling to do so. Similarly, Wisconsin voters are less able and, in some cases, wholly unable to copy and scan the documents and photo IDs required to complete their electronic and
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by-mail registration and absentee ballot applications. And, as absentee balloting increasingly becomes the safest way to vote, Wisconsin voters will remain at high risk of not receiving their ballots with sufficient time to return them to the municipal clerk’s office so they are received prior to the Election Day Receipt Deadline. Indeed, many thousands of voters may once again not even receive their timely requested absentee ballots by election day, making it impossible to cast those ballots by election day. These are severe burdens on the right to vote that will continue to lead to the outright disenfranchisement of many voters.
81. The State cannot provide any colorable justification as to why the statutory deadline for electronic and by-mail registrations should not be extended and why ballots received after the Election Day Receipt Deadline should not be counted in light of the unprecedented strains on the voting and postal systems created by the COVID-19 pandemic.
82. Further, the requirement that voters have witnesses attest to the truthfulness of their personal information on absentee ballots will disenfranchise many Wisconsin voters who are unable to locate witnesses for this purpose. The State has reasonable alternative means to enforce the witness requirement without requiring a physical witness signature on a voter’s ballot.
83. And because of the State’s continuing failure to provide sufficient financial, personnel, and other resources to local election officials to ensure an adequate number of safe early in-person absentee voting sites and election-day polling places throughout the State, many voters will continue to be at risk of having to endure long lines and wait times in order to register and vote in person on election day and will thereby increase their risk of exposure to the COVID-19 virus. Wisconsin has delegated its authority to “establish[]” polling places to local governing bodies, Wis. Stat. § 5.25(2), but the State cannot delegate its duty to ensure safe and sufficient inperson registration and voting facilities for all voters throughout the State. The defendants bear
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the statutory “responsibility for the administration of” Wisconsin’s election laws, Wis. Stat. § 5.05(1), which at minimum requires defendants to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee votes and to vote in-person on election day in as safe and secure a manner as feasible.
84. In short, the challenged matters are not supported by a state interest that is sufficient to justify the resulting burdens on the right to vote, and thus violate the First and Fourteenth Amendments.
COUNT II Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process
85. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Second Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
86. The Fourteenth Amendment’s Due Process Clause prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. amend. XIV, § 1. The right to vote is a fundamental liberty that is recognized and protected by the U.S. Constitution. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). Courts must first consider the nature of the interest that will be affected by the government’s actions as well as the “degree of potential deprivation that may be created” by existing procedures. Id. at 341. Second, courts consider the “fairness and reliability” of the existing procedures “and the probable value, if any, of additional procedural safeguards.” Id. at 343. Finally, courts consider the public interest, which “includes the administrative burden and other
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societal costs that would be associated with” additional or substitute safeguards. Id. at 347 “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (quotation and citation omitted).
87. Wisconsin’s procedures for registering to vote, absentee voting, and voting in person must comport with due process. “Such due process is not provided when the election procedures [for voting by mail]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990); see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
88. “When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (citation omitted) (re substantive due process).
89. Under the current circumstances, there is little question that Wisconsin’s election process is fundamentally unfair. The nature of the interest at stake in this case⸺the right to vote and to have that vote count⸺is the most precious liberty interest of all because it is preservative of all other basic civil and political rights.
90. But the challenged matters threaten to continue to deprive Wisconsin voters of this right in the remaining 2020 elections. Given the unprecedented situation at hand, Wisconsin must establish adequate procedures to ensure that voters have a reliable, fair, effective and safe method to cast their ballots in these upcoming elections. Because the challenged matters are markedly inadequate in all of these respects, and substitute procedures are readily available to protect voters’
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rights with minimal burden to the State, the challenged matters violate Wisconsin voters’ procedural due process rights.
COUNT III Equal Protection U.S. Const. Amend. XIV, 42 U.S.C. § 1983 91. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Second Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 92. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from “denying to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This constitutional provision requires that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). 93. And this applies to voting. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Among other things, this requires “specific rules designed to ensure uniform treatment” in order to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in. Id. at 106-07. There is no “emergency exemption” from this equal protection requirement. “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” Id. at 108-09; see also id. at 109 (shutting down the 2000 Florida recount
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because the recount process was “inconsistent with the minimum procedures necessary to protect the fundamental right of each voter”).
94. The April 7 election abounded with many examples of unfair, unequal, and disparate treatment of Wisconsin voters depending on where they live. Safe and sufficient inperson registration, absentee voting, and election-day voting opportunities were available to some Wisconsin voters but not to others, depending on where they resided. See, e.g., ECF Nos. 63-10, 63-12, 63-14; Exs. 10, 12, 14; see also ECF No. 39 at 2 (identifying closure of some, but not all, polling places due to COVID-19). Voters of color and the urban poor were disproportionately denied sufficient opportunities for safe in-person registration, early voting, and election-day voting. Similarly, the application of the documentation requirements for registering to vote and requesting an absentee ballot varied broadly across cities and counties, resulting in some voters being subject to these requirements while others were not. See ECF No. 74 ¶ 7. Voters also received conflicting guidance on the witness requirement for absentee ballots depending on where they lived and who they called. See, e.g., ECF No. 63-16 at 6 (quoting Madison officials suggesting FaceTime or Skype to satisfy requirement). Many voters, particularly those who live alone, lacked access to a witness but were simultaneously being instructed by the authorities to stay at home and practice social distancing. See, e.g., ECF No. 66 ¶ 3; ECF No. 70 ¶ 3; ECF No. 75 ¶ 4.
95. Another example of disparate and non-uniform treatment involved the interpretation and administration of the U.S. Supreme Court’s requirement that an absentee ballot be “postmarked by election day” in order to be counted. Democratic Nat’l Comm. v. Republican Nat’l Comm., 2020 WL 1672702, at *2. Wisconsin elections officials and the Postal Service do not follow uniform standards and procedures in postmarking absentee ballots. As a result, many
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absentee ballots were returned to local election officials by the Postal Service with either no postmarks at all, postmarks without dates, or illegible postmarks. The six Commissioners of the WEC, on a 3-3 tie vote, largely failed to agree on how election officials should address these issues, leaving local election officials throughout Wisconsin to make these decisions without any uniform standards ensuring consistent treatment throughout the State, rather than through discretion exercised locality by locality.
96. A further example of “arbitrary and disparate treatment [of] voters,” Bush, 531 U.S. at 104-05, is the interpretation adopted by the WEC and the Wisconsin Supreme Court of Wis. Stat. §§ 6.86(2)(a) and 6.87(4)(b)(2), which exempt voters who are “indefinitely confined because of age, physical illness or infirmity” from many of the absentee voting restrictions and conditions. In response to conflicting advice from county and local election officials about what it takes to be “indefinitely confined” by the pandemic within the meaning of these statutes, the Wisconsin Supreme Court, in an original action, adopted the WEC’s guidance, which provides in relevant part that the “[d]esignation 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.” Jefferson, No. 2020AP557-OA, at *2 (emphasis added). This “guidance” in no way provides “uniform” rather than “arbitrary and disparate treatment to voters.” Bush, 531 U.S. at 106-07. If using a standard that “might vary … from county to county” or “within a single county” violates equal protection, id. at 106, so much more the case where the interpretation and application of the standard varies from voter to voter.
97. In these and other respects, if this Court does not require “uniform rules” and “specific standards” in conducting the remaining 2020 elections under these emergency conditions, there will be an unacceptably high risk that Wisconsin will not satisfy “the minimum
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requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Bush, 531 U.S. at 105-06. If anything, the equal protection risks are even greater here than in Bush v. Gore. There, the right to vote was at risk. Here, the risks are to the right to vote and to the right to life⸺our own and the lives of others.
98. The dramatically inconsistent availability of safe and sufficient in-person registration and voting opportunities, the diverging standards across cities and counties with respect to the documents required to register and vote, the conflicting guidance on the witness requirement for absentee ballots, the absence of any statewide standards for implementing the “postmark” requirement, and the standardless discretion left to each voter in applying the “indefinitely confined” exception are depriving voters, including plaintiffs’ constituents, of equal protection of the laws.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter judgment: A. Declaring that in the context of the current coronavirus crisis, Wisconsin’s current by-mail and electronic registration deadlines, Wisc. Stat. § 6.28(1); requirements that copies of proof of residence and voter photo ID accompany electronic and by-mail voter registration and absentee applications, id. § 6.34, 6.86, respectively; requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87; and requirement that an absentee voter obtain the signature of a witness attesting to the accuracy of personal information on an absentee ballot, id. § 6.87(2); together with defendants’ failure to ensure that all citizens have safe and sufficient opportunities to register and vote in person, are unconstitutional in violation of the First and Fourteenth Amendments; B. Enjoining defendants and their respective agents, officers, employees, and
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successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office within a minimum of ten days after Election Day, subject to the definition of “postmarked” discussed supra n.12;
C. Enjoining in part the enforcement of the witness requirement in Wis. Stat. § 6.87(2) until the COVID-19 crisis is over;
D. Enjoining in part the enforcement of the photo identification requirements in Wis. Stat. §§ 6.86 and 6.87 until the COVID-19 crisis is over;
E. Enjoining in part the enforcement of the proof of residency requirement in Wis. Stat. § 6.34 for voter registrations until the COVID-19 crisis is over;
F. Ordering defendants to extend Wisconsin’s deadline for electronic and by-mail registration to the Friday before each of the remaining 2020 elections;
G. Ordering defendants to exercise their statutory authority and responsibility, see Wis. Stat. § 5.05(1), to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner;
H. Awarding plaintiff their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
I. Granting such other relief as the Court deems just and proper. Dated this 30th day of April, 2020.
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Respectfully submitted, /s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com Counsel for the Plaintiffs
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 Case: 3:20-cv-00249-wmc Document #: 199 Filed: 05/07/20 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE,
et al., Plaintiffs,
v.

Civil Action No. 3:20-cv-249-wmc

MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

SYLVIA GEAR, et. al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-278-wmc

REVEREND GREG LEWIS, et al.,

Civil Action No. 3:20-cv-284-wmc

Plaintiffs, v.

MARGE BOSTELMANN, et al.,

Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants. .

MEMORANDUM OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN IN OPPOSITION TO INTERVENING DEFENDANT WISCONSIN LEGISLATURE’S MOTION TO DISMISS
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INTRODUCTION Now that Wisconsin’s infamous April 7, 2020 Spring Election1 has passed, intervening defendant Wisconsin Legislature―but not the other intervening defendants, let alone the original defendants―has moved to dismiss one of three consolidated cases pending before this Court―but not the other two cases, which seek much of the same relief as the case the Wisconsin Legislature has targeted for dismissal. The Legislature has moved to dismiss the amended complaint in Democratic National Committee v. Bostelmann, No. 3:20-cv-249-wmc (ECF No. 55), in its entirety, arguing that (1) “the DNC Plaintiffs’ claims in their Amended Complaint are now moot, since the April 7, 2020 Spring Election ‘ha[s] come and gone by,’” and (2) dismissal is required on “Burford abstention grounds,” so-called after Burford v. Sun Oil Co., 319 U.S. 315 (1943). ECF No. 197 at 1, 3 (citation omitted). As this Court will recall, it already has once rejected the Legislature’s Burford abstention arguments in the leadup to the April 7 election. See Democratic Nat’l Comm. v. Bostelmann, No. 3:20-cv-249-wmc, 2020 WL 1320819, at **7-8 n.12 (W.D. Wis. Mar. 20, 2020) (“Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights”). This Court should deny the Legislature’s motion to dismiss in its entirety because plaintiffs’ claims are not moot and are not appropriate for Burford abstention.2
1 As discussed in plaintiffs’ Second Amended Complaint (SAC) (ECF No. 198-1), the decision to proceed with the April 7 election and the manner in which it was conducted have been branded a “travesty” and “an abomination, a civic tragedy that never should have occurred”; “insane”; “cruel”; “brazen”; “nightmarish” and “scandalous”; “appalling” and “terrifying”; “a dangerous spectacle that forced voters to choose between participating in an important election and protecting their health”; and “[o]ne of the most shameful chapters in American’s long history of voter suppression,” requiring voters “to make an unconscionable choice between their lives and their citizenship.” The title of one article has urged: “Never Forget Wisconsin.” See proposed SAC ¶ 2 & nn. 1-9, ECF No. 198-1.
2 This memorandum in opposition borrows heavily from plaintiffs’ Motion for Leave to
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BACKGROUND This Court needs little reminding of the relevant background. Plaintiffs filed this suit on March 18, 2020. ECF No. 1. In several orders in late March and early April, this Court denied plaintiffs’ preliminary injunction motions in some respects (without prejudice), while in other respects granting important relief that enabled tens of thousands of voters to register and cast their ballots. See ECF Nos. 37, 170, 179. Although this Court’s preliminary injunction was further narrowed on appeal by the Seventh Circuit and the Supreme Court, one of the most important parts of this Court’s injunctive relief survived intact: the Court’s order enjoining defendants “from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted,” and extending that deadline for receipt of absentee ballots by six days, provided that such ballots were mailed and postmarked on or before election day. See Democratic Nat’l Comm. v. Bostelmann, Civ. No. 3:20-cv-249-wmc, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020), clarified & amended, ECF Nos. 179-80 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 201546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020). The defendants and intervening defendants did not challenge this extension of the ballot-receipt deadline in the Supreme Court, and the Court relied on this extension in denying “an additional extension, which would allow voters to mail their ballots after election day.” 2020 WL 1672702, at *2. This Court’s April 2 preliminary injunction extending the ballot-receipt deadline from April 7 to April 13 appears to have avoided the disenfranchisement of over 142,000 Wisconsin
File Second Amended Complaint (ECF No. 198), which also addresses the Legislature’s mootness and Burford abstention arguments.
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citizens, whose ballots were cast by election day, but absent court intervention would have been rejected. See proposed Second Am. Compl. (SAC) ¶ 5 & n.11.3 The Court’s March 20 order also
enabled thousands of additional voters to register online rather than having to register at an early
in-person absentee voting site or on election day at the polls. Id. ¶¶ 4, 73.
ARGUMENT
I. Plaintiffs’ claims are not moot.
Although the April 7 Spring Election is now over, several more elections will be held in
Wisconsin in 2020, culminating in the November 3 General and Presidential Election. Yet the
Legislature contends this case―but not the other two cases that have been consolidated with this
one―should now be dismissed in its entirety because it is moot. The Legislature claims that
plaintiffs have “alleged constitutional violations only with respect to this [April 7] Spring
Election,” and have “challenged election laws … only for this past Spring Election.” ECF No.
197 at 3 (emphasis in original). Putting its argument another way, the Legislature claims that
3 The data regarding ballots that arrived between April 8 and April 13 can be found at https://elections.wi.gov/blog; see also Richard Pildes, How Many Absentee Ballots in WI Came In on Time Because of the Court Decision to Extend the Receipt Deadline?, Election Law Blog (Apr. 15, 2020), https://electionlawblog.org/?p=110746. As of 8 p.m. on April 7, there had been 990,129 absentee ballots returned. Election Day Update Blog, Wisconsin Elections Commission, https://elections.wi.gov/blog (last visited May 7, 2020). The Wisconsin Elections Commission (WEC) reports that, ultimately, 1,132,923 absentee ballots were returned and counted, suggesting that 142,794 ballots were able to be counted that would not otherwise have been. See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020, https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf (last visited May 7, 2020); see also Amy Gardner et al., Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after voting day were counted, thanks to court decisions, Washington Post (May 3, 2020), https://www.washingtonpost.com/politics/unexpected-outcome-in-wisconsin-tens-of-thousandsof-ballots-that-arrived-after-voting-day-were-counted-thanks-to-courtdecisions/2020/05/03/20c036f0-8a59-11ea-9dfd-990f9dcc71fc_story.html.
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plaintiffs “have not specifically challenged the application of the relevant election laws here to any
specific election in the future.” Id. at 5.
The Legislature’s claims are false, and the exact opposite of what the plaintiffs’ pleadings
actually say. Plaintiffs’ original and amended complaints clearly and repeatedly ask for injunctive
relief both with respect to the April 7 election and for “any election that occurs while this crisis
continues.” ECF No. 55 ¶ 7 (emphasis added); see id. at 19, ¶¶ C-E (asking for various injunctive
relief to extend “until the COVID-19 crisis is over”) (emphasis added); id. ¶ 44 (seeking injunctive
relief for “the upcoming April 7, 2020 [election], as well as other elections taking place during
the COVID-19 crisis”) (emphasis added).
Although the current amended complaint (ECF No. 55) should be more than sufficient to
withstand the Legislature’s contrived mootness challenge, plaintiffs have moved for leave to file
a proposed Second Amended Complaint that specifies in even more unmistakable terms that
plaintiffs have always sought, and continue to seek, injunctive relief applicable to any and all
elections—including the November 3, 2020 General and Presidential Election—that are held while
the COVID-19 crisis continues in Wisconsin and until that crisis is over. See ECF No. 198, 1981 at ¶¶ 6, 8, 33, 45-46, 67, 90, 97.4
4 In addition to responding to the Legislature’s mootness arguments, plaintiffs in their Second Amended Complaint have substantially revised and expanded their allegations to account for all of the factual and legal developments since their amended complaint was filed on March 26, especially the April 7 Spring Election itself, the litigation surrounding it, and the many constitutional flaws regarding the conduct and consequences of that election. The Second Amended Complaint also fine-tunes plaintiffs’ claims and requested relief to take account of the rulings over the past several weeks by this Court, the Seventh Circuit, and the Supreme Court, and adds an additional challenge growing directly out of how the April 7 election was conducted: defendants’ failure to provide sufficient financial, personnel, and other resources to ensure an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner. See SAC ¶¶ 7, 9, 83.
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That should dispose of the Legislature’s mootness defense. Contrary to the Legislature’s argument, the “capable of repetition, yet evading review exception to mootness” (ECF No. 197 at 4) does not apply because plaintiffs are seeking prospective relief relevant to upcoming elections in Wisconsin during the pandemic, and any such relief will be “capable of review” if granted. Plaintiffs are not seeking to establish liability because of past elections, but to enjoin prospective harms because of how the challenged statutes are likely to impact the upcoming elections during the pandemic, including the November 2020 election.
The Legislature appears to argue “there is no ‘reasonable expectation’” that the pandemic will affect the remaining 2020 elections. ECF No. 197 at 5 (citation omitted). That is squarely refuted by the public health evidence, and in any event is a question of fact not suitable for resolution at the pleadings stage. See SAC ¶ 31 (April 21 warning by Director of Centers for Disease Control of a potential second and even deadlier wave of COVID-19 this fall). And the Legislature’s attempt to use a mootness defense to force plaintiffs to litigate their federal constitutional voting rights claims “before the state courts or the Wisconsin Elections Commission,” ECF No. 197 at 5, is simply an attempt to cloak their Burford abstention arguments in mootness garb. As emphasized in the Burford discussion below, federal constitutional claims are entitled to be litigated in federal court. See infra at 8-9.
The Legislature’s extensive reliance (at ECF No. 197 at 2-3, 5) on Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517 (7th Cir. 2001), is far off base. That case involved a claim that the state elections board had violated the federal constitution in a just-concluded election by refusing to certify and place on the ballot the Libertarian Party’s slate of candidates as the result of the board’s allegedly illegal striking of thousands of signatures from the party’s nominating petition. The Seventh Circuit held that plaintiffs’ claim for “declaratory relief” was moot because
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it did not involve a challenge to “any statutory provision that will continue to operate past the [justconcluded] election,” but instead was a challenge to the procedural fairness of “a one-time decision” rejecting a specific nominating petition in a now-concluded election. Id. at 529. This case is just the opposite—it challenges the continuing application of specific statutes in elections to be held over the next six months (and perhaps beyond), and seeks to require defendants to undertake certain actions in those upcoming elections. Tobin for Governor is a poor choice of supporting precedent.
The Legislature’s reliance (at 2) on Stone v. Bd. of Election Commr’s for City of Chicago, 643 F.3d 543 (7th Cir. 2011), is similarly misplaced. Plaintiffs in that case sought a preliminary injunction against the enforcement of a ballot-access requirement in the February 2011 municipal election. The district court denied injunctive relief, the plaintiffs appealed, and the election was held while the appeal was pending. The Seventh Circuit thereafter held that the appeal was moot because “[t]he only relief Plaintiffs seek from us is an injunction pertaining to the municipal election on February 22, 2011,” and with the passage of that election “the requested injunction is now worthless.” Id. at 545 (emphasis added). Here, on the other hand, plaintiffs seek relief with respect to all Wisconsin elections held while the pandemic continues. See supra at 5-6; see also McDonald v. Cook Cty. Officers Electoral Bd., 758 Fed. Appx. 527, 529-30 (7th Cir. 2019) (similar challenge to ballot-access requirement was moot where election had passed, and plaintiff’s challenge had been specifically limited to that one election).5
5 Plaintiffs call to the Court’s attention that the Seventh Circuit has asked for the parties’ views on whether the appeals from this Court’s injunctive orders are now moot. See Apr. 20, 2020 Order in Seventh Cir. No. 20-1538 (parties’ joint status report due May 11). Plaintiffs believe that, while their claims are not moot, the intervening defendants’ appeals are moot. This Court’s injunctive relief was time-limited and specific to the April 7 election based on then-existing conditions. See ECF No. 37 (extending deadline for registering to vote by email from March 18 to March 30); Bostelmann, 2020 WL 1638374, at *22 (extending receipt deadline to April 13 and
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II. Plaintiffs’ claims are not subject to Burford abstention.
As for the Legislature’s shopworn Burford abstention argument, “the power to dismiss
recognized in Burford represents an ‘extraordinary and narrow exception to the duty of the District
Court to adjudicate a controversy properly before it.’” Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 728 (1996) (citations and internal quotation marks omitted). Burford gives a court the
discretion, but not the obligation, to dismiss a federal case in exceptional circumstances where it
unduly interferes with “complex state administrative processes.” Id. at 727. It is a sharply limited
exception to the “virtually unflagging obligation” of federal courts “to exercise the jurisdiction
given them”; abstention always is “the exception, not the rule.” Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 813, 817 (1976).6
This Court already has ruled that “Burford abstention is not an appropriate reason to duck
this court’s obligation to protect voters’ rights.” 2020 WL 1320819, at **7-8 n.12. This is
precisely the type of case in which the “strong federal interest in having certain classes of cases,
request deadline to April 3); ECF No. 179 at 2 (enjoining release of unofficial results until April 13). To the extent this Court’s April 2 order enjoining in part the witness-certification requirement in Wis. Stat. § 6.87(2) is not expressly time-limited, see 2020 WL 1638374, at *22, the Seventh Circuit stayed this provision of this Court’s order because “the district court did not give adequate consideration to the state’s interests” when suspending this requirement. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, at **3-4. The Seventh Circuit did not declare that suspension of this rule was inappropriate under all circumstances, and in fact suggested a modified witness requirement might be appropriate. Id. at *4. Plaintiffs intend to recommend that the Seventh Circuit remand the witness certification issue to this Court for further consideration.
6 Thus, just because a State has an administrative process like the WEC’s regulation of elections does not suggest that federal abstention is appropriate. “While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362 (1989); see also Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (“the mere existence of a statewide regulatory regime is not sufficient” for Burford to apply).
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and certain federal rights, adjudicated in federal court” outweighs any alleged countervailing state interests. Quackenbush, 517 U.S. at 728. “[T]he federal issues in this case eclipse any state issues that might arise.” Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d 517, 532 (7th Cir. 2018). Where the issue is a State’s “adherence” to federal constitutional requirements regarding voting rights, “Burford abstention is inapplicable.” Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130, 1136 (7th Cir. 1981) (reapportionment claim); see also Harman v. Forssenius, 380 U.S. 528, 537 (1965); Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (“voting rights cases are particularly inappropriate for abstention”); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981) (abstention inappropriate where the issue was “nothing less than the fundamental right to vote”); Edwards v. Sammons, 437 F.2d 1240, 1244 (5th Cir. 1971) (“We take Harman v. Forssenius to mean that the delay which follows from abstention is not to be countenanced in cases involving such a strong national interest as the right to vote.”); League of Women Voters of Fla., Inc. v. Detzner, 354 F. Supp. 3d 1280, 1283 (N.D. Fla. 2018) (“Federal courts do not abstain when voting rights are alleged to be violated.”); Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935, 943 (W.D. Mich. 2016) (Burford abstention inappropriate in federal voting rights case that “does not involve a state law claim” and seeks to protect federally guaranteed rights; “federal review of similar cases has never been overly disruptive of state efforts to develop a coherent voting policy”); Bogaert v. Land, 675 F. Supp. 2d 742, 747 (W.D. Mich. 2009) (citing additional cases holding that Burford abstention is “wholly inapplicable” to federal constitutional challenges to state election laws).7
7 Moreover, to the extent the Legislature claims that the exercise of federal jurisdiction over federal claims would disrupt its efforts to “establish a coherent policy with respect to a matter of substantial concern,” Burford abstention requires not only the existence of a state forum “in which claims may be litigated,” but also that the state forum “be special―it must stand in a special relationship of technical oversight or concentrated review in the evaluation of those claims.”
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CONCLUSION
The Wisconsin Legislature’s motion to dismiss should be denied in its entirety.
Dated this 7th day of May, 2020.
Respectfully submitted,
/s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 ccurtis@perkinscoie.com sshah@perkinscoie.com
Counsel for the Plaintiffs
Property & Cas. Ins. Ltd. v. Cent. Nat. Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir. 1991). The “specialized tribunal” must have “exclusive jurisdiction over the matter.” Wis. Term Limits v. League of Wis. Municipalities, 880 F Supp. 1256, 1261 (E.D. Wis. 1994) (emphasis added). These requirements are “a prerequisite of, not a factor in,” this type of Burford abstention. Property & Cas., 936 F.2d at 323; see also Hammer, 905 F.3d at 534-35. Neither the WEC nor Wisconsin’s courts of general jurisdiction meet these mandatory criteria for Burford abstention, especially with respect to federal constitutional claims. They are neither “specialized tribunal[s]” nor do they have “exclusive jurisdiction” over voting rights issues.
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants,
and
Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

Case No. 3:20-cv-249-wmc (consolidated with Case Nos. 3:20-cv-278-wmc and 3:20-cv-284-wmc)

THE WISCONSIN LEGISLATURE’S BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT

ERIC M. MCLEOD LANE E. RUHLAND HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com

MISHA TSEYTLIN Counsel of Record KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe St., Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Attorneys for Intervenor-Defendant Wisconsin Legislature

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1 BACKGROUND ............................................................................................................. 3
A. Wisconsin’s Regulation Of Elections............................................................. 3 B. The April 7, 2020 Election............................................................................. 6 C. Post-April 7 Developments .......................................................................... 10 D. Litigation History ........................................................................................ 13 LEGAL STANDARD.................................................................................................... 16 ARGUMENT ................................................................................................................ 16 I. Plaintiffs’ Motion To Amend Is Futile Because Their New Claims Are Unripe................................................................................................................ 16 II. Plaintiffs’ Motion To Amend Is Futile Because Their Claims Fail As A Matter Of Law................................................................................................... 22 A. Plaintiffs’ Anderson/Burdick Claim Fails As A Matter Of Law ................ 22 B. Plaintiffs’ Due-Process Claim Fails As A Matter Of Law .......................... 30 C. Plaintiffs’ Equal-Protection Claim Fails As A Matter Of Law .................. 32 III. Plaintiffs’ Motion To Amend Is Futile Because Their Claims Should Be Dismissed Under Burford Abstention .............................................................. 34 IV. The Court Should Stay This Case Until The Seventh Circuit Completes Its Work On Appeal .......................................................................................... 37 CONCLUSION............................................................................................................. 39

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TABLE OF AUTHORITIES
Cases Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ..................................................................................... 22, 23 Adkins v. VIM Recycling, Inc.,
644 F.3d 483 (7th Cir. 2011) ....................................................................... 43, 45 Aetna State Bank v. Altheimer,
430 F.2d 750 (7th Cir. 1970) ............................................................................. 47 Albright v. Oliver,
510 U.S. 266 (1994) ..................................................................................... 38, 39 Anderson v. Celebrezze,
460 U.S. 780 (1983) ......................................................................... 18, 20, 43, 44 Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ........................................................................................... 31 Bowes v. Ind. Sec’y of State,
837 F.3d 813 (7th Cir. 2016) ............................................................................. 45 Burdick v. Takushi,
504 U.S. 428 (1992) ................................................................................... passim Burford v. Sun Oil Co.,
319 U.S. 315 (1943) ........................................................................................... 42 Bush v. Gore,
531 U.S. 98 (2000) (per curiam)............................................................ 40, 41, 42 Califano v. Sanders,
430 U.S. 99 (1977) ............................................................................................. 22 City of Green Bay v. Bostelmann,
No. 20-C-479, 2020 WL 1492975 (E.D. Wis. Mar. 27, 2020) ..................... 17, 18 Clinton v. Jones,
520 U.S. 681 (1997) ........................................................................................... 46 Conyers v. Abitz,
416 F.3d 580 (7th Cir. 2005) ............................................................................. 39 Crawford v. Marion Cty. Election Bd.,
553 U.S. 181 (2008) ................................................................................... passim Denius v. Dunlap,
330 F.3d 919 (7th Cir. 2003) ............................................................................... 3 E & E Hauling v. Forest Preserve District,
821 F.2d 433 (7th Cir. 1987) ............................................................................. 43
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Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214 (1989) ............................................................................... 32, 33, 40
Foster v. DeLuca, 545 F.3d 582 (7th Cir. 2008) ............................................................................... 3
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) ..................................................................... passim
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ................................................................. 29, 30, 33
Gonzalez-Koeneke v. West, 791 F.3d 801 (7th Cir. 2015) ............................................................................. 21
Grice Eng’g, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915 (W.D. Wis. 2010).............................................................. 47
Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) ............................................................... 18, 29, 36
Henson v. CSC Credit Servs., 29 F.3d 280 (7th Cir. 1994) ................................................................................. 3
Jefferson v. Dane Cty., 2020AP557-OA (Wis. Mar. 31, 2020) ................................................... 41, 42, 46
King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812 (7th Cir. 2007) ............................................................................. 21
Lehn v. Holmes, 364 F.3d 862 (7th Cir. 2004) ............................................................................. 21
Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) ..................................................................... 39, 40
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................................... 42
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................... 38, 39, 40
Mays v. Thurston, No. 4:20-cv-341 (E.D. Ark. Mar. 30, 2020) ....................................................... 45
MillerCoors LLC v. Anheuser-Busch Cos., 940 F.3d 922 (2019)........................................................................................... 48
Nader v. Keith, 385 F.3d 729 (7th Cir. 2004) ............................................................................. 36
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989) ............................................................................... 43, 44, 45
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Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ........................................................................................... 22
Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam).................................................................... 35, 45
Reg’l Rail Reorganization Act Cases, 419 U.S. 102 (1974) ........................................................................................... 22
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (per curiam)...................................................... 19, 32, 41
Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870 F.3d 682 (7th Cir. 2017) ............................................................................. 20
Rodriguez v. United States, 480 U.S. 522 (1987) (per curiam)...................................................................... 36
SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010) ............................................................................. 46
Stone v. Bd. of Election Comm’rs for City of Chi., 750 F.3d 678 (7th Cir. 2013) ............................................................................. 29
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ........................................................................................... 23
Taylor v. Milwaukee Election Comm’n, No. 20-CV-545-PP, 2020 WL 1695454 (E.D. Wis. Apr. 6, 2020) ............... 17, 18
Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005) ............................................................................. 47
Texas v. United States, 523 U.S. 296 (1998) ........................................................................................... 21
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc) ............................................................. 36
Waterstone Mortg. Corp. v. Offit Kurman, LLC, No. 17-cv-796-jdp, 2018 WL 993856 (W.D. Wis. Feb. 20, 2018) ...................... 47
Wis. Cent., Ltd. v. Shannon, 539 F.3d 751 (7th Cir. 2008) ............................................................................. 22
Wis. Legislature v. Palm, No. 2020AP765-OA (Wis. argued May 5, 2020) ................................... 16, 25, 26
Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011) ....................................................................... 23, 24
Statutes & Rules Fed. R. Civ. P. 15 ......................................................................................................... 16
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Fed. R. Evid. 201............................................................................................................ 3 Wis. Stat. § 5.05 ............................................................................................................. 5 Wis. Stat. § 5.25 ............................................................................................................. 5 Wis. Stat. § 6.28 ................................................................................................... passim Wis. Stat. § 6.29 ....................................................................................................... 3, 24 Wis. Stat. § 6.34 ................................................................................................... passim Wis. Stat. § 6.55 ....................................................................................................... 4, 24 Wis. Stat. § 6.77 ............................................................................................................. 4 Wis. Stat. § 6.78 ............................................................................................................. 4 Wis. Stat. § 6.79 ....................................................................................................... 4, 27 Wis. Stat. § 6.80 ............................................................................................................. 4 Wis. Stat. § 6.82 ............................................................................................................. 4 Wis. Stat. § 6.85 ............................................................................................................. 4 Wis. Stat. § 6.86 ................................................................................................... passim Wis. Stat. § 6.87 ................................................................................................... passim Wis. Stat. § 7.15 ............................................................................................................. 5 Wis. Stat. §§ 7.10 ........................................................................................................... 5 Other Authorities 16 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3921.2
(3d ed.) ......................................................................................................... 38, 39 Andrew C. Berry, et al., Wisconsin April 2020 Election Not Associated With
Increase In COVID-19 Infection Rates at 2 (Apr. 23, 2020) ............................. 8 Bill Glauber, Tom Perez: Democrats Still Plan In-Person Convention In
Milwaukee Week Of Aug. 17, Milwaukee J. Sentinel (May 6, 2020).............. 11 Briana Reilly, Madison Has 66 Polling Sites On Election Day, Milwaukee
Has Five. What’s The Deal?, Capitol Times (Apr. 7, 2020) ............................. 10 City of Madison, CORRECTED Polling Place Listing for April 7 ............................. 10 Daphne Chen & John Diedrich, Two Weeks After Election, COVID-19 Cases
Have Not Spiked In Wisconsin But Experts Urge Caution About Conclusions, Milwaukee J. Sentinel (April 22, 2020) ........................................ 7 Emergency Order #12, Safer At Home Order (Mar. 24, 2020) .............................. 6, 12 Emergency Order #28, Safer At Home Order (Apr. 16, 2020) ............................. 12, 20
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John Diedrich, Milwaukee J. Sentinel, Election Didn’t Lead To Spike In COVID-19; Experts Say Effect May Be Hidden In Numbers (Apr. 29, 2020) ................................................................................................................ 8, 9
Kathy Leung, et al., No Detectable Surge in SARS-CoV-2 Transmission due to the April 7, 2020 Wisconsin Election, medRxiv (Apr. 29, 2020) ............... 7, 8
Mary Spicuzza & Alison Dirr, Milwaukee J. Sentinel, Why Did Milwaukee Have Just 5 Polling Places? Aldermen Want Answers (Apr. 10, 2020) ...... 9, 10
Memo of Administrator Meagan Wolfe to Members of the Wisconsin Elections Commission, Summary of April 7, 2020 Election (Apr. 2020) ................ passim
MyVote Wisconsin, Photo ID Required................................................................... 4, 27 MyVote Wisconsin, Proof of Residence ............................................................. 4, 26, 27 Richard H. Pildes & Charles Stewart III, The Wisconsin Primary Had
Extraordinarily High Voter Turnout, Wash. Post. (Apr. 15, 2020) .............. 6, 7 Scott Bauer, 52 People Who Took Part in Wisconsin’s Primary Have Tested
Positive for Coronavirus, Time (Apr. 29, 2020) ................................................. 8 Statement From The [White House] Press Secretary (Apr. 27, 2020) ...................... 11 The White House, The Centers for Disease Control and Prevention, & The
Food and Drug Administration, Testing Blueprint: Opening Up America Again (Apr. 27 2020) .............................................................. 11, 18, 20 The White House, The Centers for Disease Control and Prevention, & The Food and Drug Administration, Testing Overview: Opening Up America Again (Apr. 27, 2020) ......................................................................... 11 Wis. Elections Comm’n, 2020 General Election ......................................................... 10 Wis. Elections Comm’n, 2020 Partisan Primary ........................................................ 10 Wis. Elections Comm’n, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary .................................................. 8 Wis. Elections Comm’n, Absentee Witness Signature Requirement Guidance COVID-19 .......................................................................................................... 27 Wis. Elections Comm’n, Canvass Results for 2020 Spring Election and Presidential Preference Vote – 4/7/2020 (May 4, 2020)................................. 6, 8 Wis. Elections Comm’n, Curbside Voting ..................................................................... 4 Wis. Elections Comm’n, I Want To Vote Absentee........................................... 4, 24, 27 Wis. Elections Comm’n, Special Teleconference Meeting ...................................... 9, 10 Wis. Elections Comm’n, Unofficial Spring Election Turnout-34.3%-4/14/2020 (Apr. 14, 2020) ..................................................................................................... 6
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INTRODUCTION The April 7, 2020 Election showed that the people of Wisconsin are fully capable of maintaining our democracy in these challenging times, notwithstanding relentless attacks on our State from the national press. Refuting baseless, pessimistic predictions, this election ended up with far greater voter turnout than comparable prior elections. Wisconsin citizens, poll workers, and National Guard members showed the responsibility and community spirit that Wisconsinites have come to expect from each other. To the extent that some aspects of Wisconsin’s election machinery did not function as well as hoped, that fault lies with certain highlevel local officials in some areas of the State, who failed to take the same responsible actions that the vast majority of officials took, including by inexplicably declining the help of hundreds of National Guard members at the polls. All that said, the overwrought claims about the health effects of declining to postpone democracy fell flat, as even pre-election critics have been unable to identify any change in Wisconsin’s COVID-19 infection rate as a result of the election. In the first round of this litigation, Plaintiffs asked this Court for a wholesale rewrite of Wisconsin’s election laws, including by attacking a series of voter-integrity measures that they have long politically opposed. This Court rejected the vast majority of Plaintiffs’ requests, but did order a couple of changes, under Plaintiffs’ core theory that the April 7 Election day came too soon on the heels of the COVID-19 outbreak to permit all Wisconsinites to take advantage of Wisconsin’s generous

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absentee-voting options. As to the few reforms that this Court ordered, the Seventh Circuit stayed one, and the Supreme Court stayed another.
Having apparently gained no sense of modesty from their legal defeats and failed, sky-will-fall predictions about the ability of Wisconsinites to carry on their democracy, Plaintiffs now attempt to keep their case going. They have done so even though the foundational premise of their lawsuit—that the State and its citizens did not have sufficient time to adjust to COVID-19 in March, given the approaching April 7 Election day—does not even arguably apply. Plaintiffs ask this Court to speculate on the magnitude of the COVID-19 pandemic in both August (after three months of summer) and November, to guess at the types of treatments that will or will not be available at those times, and to predict the Wisconsin election procedures that will be in place by those months. Notably, Plaintiffs do not appear to believe what their lawyers are now arguing in this case, as lead Plaintiff Democratic National Committee has rescheduled its extremely large, in-person Democratic National Convention in Milwaukee for the week immediately after the August election.
Plaintiffs’ motion to amend their Complaint a second time is futile for several independent reasons. Plaintiffs’ claims are plainly unripe, as they are based upon premature speculation as to the state of the COVID-19 situation and Wisconsin’s election administration months from now. Plaintiffs’ proposed Second Amended Complaint also fails, as a matter of law, because it does not plausibly allege that any Wisconsin voter will be unable to vote in August or November with reasonable effort, let alone that a sufficient number of voters will be unable to vote to justify Plaintiffs’
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requested facial relief. Wisconsin has a generous, no-excuses-required absenteevoting system, meaning that any voters not wishing to go to the polls in August or November will have weeks before each election to obtain and cast an absentee ballot.
Finally, this Court should hold off deciding Plaintiffs’ motion and the Wisconsin Legislature’s motion to dismiss, as both are implicated by, and intertwined with, the appeal still pending in the Seventh Circuit.
BACKGROUND1 A. Wisconsin’s Regulation Of Elections Voting in Wisconsin is readily available to all. “Registering to vote is easy in Wisconsin.” Frank v. Walker, 768 F.3d 744, 748 (7th Cir. 2014) (“Frank I”). A voter need only submit a simple registration form and, in general, “an identifying document that establishes proof of residence,” Wis. Stat. § 6.34(2), either in person, by mail, or online at the “MyVote” website operated by the Wisconsin Elections Commission (“Commission”), no later than the third Wednesday preceding the election, see Wis. Stat. §§ 6.28(1), 6.29(2)(a), 6.34(2). The proof-of-residence document requirement is satisfied if a voter registers online and provides a valid driver’s license or state ID
1 In the Background of this brief, the Legislature cites government records found on government websites, as well as certain news articles and other publicly available sources. The Court can and should take judicial notice of the publicly available government websites. See Denius v. Dunlap, 330 F.3d 919, 926–27 (7th Cir. 2003); see generally Fed. R. Evid. 201. Notice is proper at the motion-to-dismiss stage, Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994), which correlates to the leave-to-amend stage here, see Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). Citations to non-government news articles and other publicly available sources, on the other hand, are provided solely for background and context. The Legislature does not cite these sources in the Argument section and explicitly asks this Court not to rely upon them in deciding the present Motion.
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number. MyVote Wisconsin, Proof of Residence.2 If registering in person, the voter may provide a proof-of-residence document in electronic format, such as with a photo taken on a smartphone, tablet, or computer. Id.. Voters may, of course, register in person on Election Day at their polling places. See Wis. Stat. § 6.55.3
Once registered, voting is easy as well. To vote in person on Election Day, see Wis. Stat. §§ 6.77–78, 6.80, the voter must simply arrive at the polling place, “state his or her full name and address,” present a valid photo ID—which may take one of “several forms” that many voters “may already have,” MyVote Wisconsin, Photo ID Required4—and “enter his or her signature on the poll list,” Wis. Stat. § 6.79(a). Alternatively, any registered Wisconsin voter may vote absentee by mail for any reason. Wis. Stat. § 6.85(1), (3). To do so, the voter must simply request an absenteeballot by “the 5th day immediately preceding the election” if by mail, fax, or online, or by “the Sunday preceding the election” if in person, Wis. Stat. § 6.86(1)(ac), (b); Wis. Elections Comm’n, I Want To Vote Absentee;5 then the voter must provide a copy of their photo ID (which can be done with a smart phone or scanner), Wis. Stat.
2 Available at https://myvote.wi.gov/en-us/ProofofResidence (all websites last accessed on May 7, 2020).
3 Easy registration is also readily available to disabled voters in Wisconsin. Disabled voters may complete same-day registration at the entrance to the polling place—such as from a parked vehicle—with the assistance of a polling-place inspector. Wis. Stat. § 6.82(1); Wis. Elections Comm’n, Curbside Voting, available at https://elections.wi.gov/ voters/accessibility/curbside-voting. And any voter “who is hospitalized” may register to vote by agent and, “at the same time,” apply for an “official ballot by agent.” Wis. Stat. § 6.86(3)(a)(1)–(2).
4 Available at https://myvote.wi.gov/en-us/PhotoIDRequired. 5 Available at https://elections.wi.gov/voters/absentee.
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§§ 6.86(1), 6.87(1); and finally the voter must fill out the ballot and obtain the signature of a witness, Wis. Stat. § 6.87(4). An absentee ballot must arrive by 8:00 p.m. on Election Day for it to be counted. Wis. Stat. § 6.87(6).
Wisconsin has adopted “the most decentralized” approach to election regulation in the country. See Memo of Administrator Meagan Wolfe to Members of the Wisconsin Elections Commission, Summary of April 7, 2020 Election (Apr. 2020) (“Wolfe Memo”);6 see generally Dkt. 198-1 ¶ 51 (citing this source). The Commission, a state agency, has the general “responsibility for the administration” of the State’s “laws relating to elections and election campaigns,” and thus oversees elections statewide. Wis. Stat. § 5.05(1). To conduct these statewide elections, Wisconsin law empowers “1,850 municipal election officials and 72 county election officials” throughout the State. Wolfe Memo at 1; see Wis. Stat. §§ 7.10, 7.15. These local officials have the duty to “provide [the] ballots” for elections, Wis. Stat. § 7.10(1)(a); “establish[ ]” the “polling place[s]” for elections, Wis. Stat. § 5.25(2); staff “inspectors” to “serve” at those polling places, including by “[r]eassign[ing]” inspectors “to assure adequate staffing at all polling places,” Wis. Stat. § 7.15(1)(k); “[e]quip polling places” with “sufficient election supplies,” Wis. Stat. §§ 7.10(1)(b), 7.15(1)(a)–(b); and “[t]rain election officials” according to the Commission’s standards, Wis. Stat. § 7.15(1)(e).
6 Available at https://elections.wi.gov/sites/elections.wi.gov/files/2020-04/April%207% 20Election%20Summary%20and%20Next%20Steps.pdf.
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B. The April 7, 2020 Election Two weeks before Wisconsin’s April 7 Election, the Wisconsin Governor issued his “Safer at Home” Emergency Executive Order, limiting movement throughout Wisconsin in response to the COVID-19 pandemic. See Emergency Order #12, Safer At Home Order (Mar. 24, 2020) (“Emergency Order #12”).7 This Order exempted individuals “leav[ing]” their homes for “essential government functions,” which allowed them to register to vote, vote, and complete other necessary election-related tasks. See Emergency Order #12 ¶¶ 1, 12; Dkt. 170 at 8–9. The turnout for the April 7 Election was “extraordinarily high,” Richard H. Pildes & Charles Stewart III, The Wisconsin Primary Had Extraordinarily High Voter Turnout, Wash. Post. (Apr. 15, 2020),8 with 1,555,263 votes cast, Wis. Elections Comm’n, Canvass Results for 2020 Spring Election and Presidential Preference Vote – 4/7/2020 (May 4, 2020),9 representing 34.3% of eligible voters, see Wis. Elections Comm’n, Unofficial Spring Election Turnout-34.3%-4/14/2020 (Apr. 14, 2020) (providing Wisconsin’s estimated voting-age population as 4,524,066).10 In comparison, the turnout for previous Spring Elections was 27.2% (2019), 22.3% (2019), 15.9% (2017), 47.4% (2016), 26.1% (2012), and 34.9% (2008). Id.; compare
7 Available at https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf. 8 Available at https://www.washingtonpost.com/politics/2020/04/15/wisconsin-primar y-had-extraordinarily-high-voter-turnout/. 9 Available at https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results %20Summary_spring%20election%20all%20contests_4_7_2020.pdf. 10 Available at https://elections.wi.gov/blog.
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Pildes & Stewart, supra (explaining that Wisconsin’s 2016 primary “was a complete outlier” in light of two “strongly contested” Presidential primary races).11 Indeed, “overall turnout in Wisconsin’s 2020 primaries was even higher than in most Wisconsin primaries in the past 40 years.” Pildes & Stewart, supra.
Contrary to pre-election claims from some quarters, including from Plaintiffs, Dkt. 154 at 2, “[t]he number of COVID-19 cases [in Wisconsin] has not shown a marked increase” since the April 7 Election, see Daphne Chen & John Diedrich, Two Weeks After Election, COVID-19 Cases Have Not Spiked In Wisconsin But Experts Urge Caution About Conclusions, Milwaukee J. Sentinel (April 22, 2020).12 One study concluded that “voting in Wisconsin on April 7 was a low-risk activity,” with “no detectable surge” in COVID-19 “transmission.” Kathy Leung, et al., No Detectable Surge in SARS-CoV-2 Transmission due to the April 7, 2020 Wisconsin Election, medRxiv (Apr. 29, 2020) (capitalization altered).13 Another study likewise found that “[t]here was no increase in COVID-19 new case daily rates observed for Wisconsin or its 3 largest counties following the election on April 7, 2020, as compared to the US, during the post-incubation interval period.” Andrew C. Berry, et al., Wisconsin April 2020 Election Not Associated With Increase In COVID-19 Infection
11 This explains why Plaintiffs’ comparison of Green Bay’s April 7, 2020 Election turnout to its outlier 2016 primary turnout, see Dkt. 198-1 ¶ 38, is inapt.
12 Available at https://www.jsonline.com/story/news/2020/04/22/covid-19-hasnt-spik ed-after-wisconsin-election-experts-urge-caution/2997394001/.
13 Available at https://www.medrxiv.org/content/10.1101/2020.04.24.20078345v1
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Rates at 2 (Apr. 23, 2020).14 Rather, a “reduction in daily new case rates in Wisconsin
was observed compared to what would have been expected if the rates in Wisconsin
had followed the pre-election [new-case] ratios.” Id. at 7 (emphasis added). This
absence of a “spike in COVID-19 cases attributable to in-person voting” during the
April 7 Election—even “[t]hree weeks after” the election—has “surprise[d]” even
those who expected a contrary, “major effect” in COVID-19 rates post-election.15 John
14 Available at https://madison.com/election-covid-19-study/pdf_647a9bf3-0646-5f61913c-1d0a584824a5.html.
15 Another press account, cited by Plaintiffs, states that 52 individuals who “voted in person or worked the polls” during the April 7 Election have “tested positive for COVID-19,” Scott Bauer, 52 People Who Took Part in Wisconsin’s Primary Have Tested Positive for Coronavirus, Time (Apr. 29, 2020), https://time.com/5829264/wisconsin-primarycoronavirus/, out of the approximately 400,000 individuals who voted in person and many others who served as election-day workers, compare Wis. Elections Comm’n, Canvass Results, supra (full ballot count), with Wis. Elections Comm’n, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, https://elections. wi.gov/node/6862 (absentee-ballot count). As this very press account itself recognizes, “[s]everal of the 52 people . . . also reported other ways they may have been exposed to the virus.” Bauer, supra. Indeed, “without really investigating closely and being clear that somebody really had no other potential exposure to infected people,” it is “speculative to say [w]hat was definitively the cause” of any particular infection. Diedrich, Election Didn’t Lead To Spike In COVID-19, supra. And, as already noted, at least two studies on this issue found no increase in infection rates after the election, with one of those studies concluding that “voting in Wisconsin on April 7 was a low-risk activity.” Supra p. 7. While Plaintiffs recite the 52-individuals figure, Dkt. 198-1 ¶¶ 3, 39, and made many failed pre-election claims that COVID-19 rates would spike, Dkt. 198-1 ¶ 2, they do not cite the post-election studies finding no such increase in infection rates, although both were published publicly before Plaintiffs filed their proposed Second Amended Complaint, compare Dkt. 198-1 (Apr. 30, 2020), with Leung, supra (Apr. 29, 2020), and Berry, supra, (Apr. 23, 2020).
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Diedrich, Milwaukee J. Sentinel, Election Didn’t Lead To Spike In COVID-19; Experts Say Effect May Be Hidden In Numbers (Apr. 29, 2020).16
Notably, any Election Day difficulties—such as long lines in certain areas of the State—were the result of irresponsible decisions made by high-ranking local officials, not any of the Defendants here. Officials in Milwaukee, for example, inexplicably decided “to dramatically cut [the city’s] number of voting sites from 180 to just five” for the April 7 Election, which forced in-person voters to wait in “long lines . . . for hours to cast their ballots.” Mary Spicuzza & Alison Dirr, Milwaukee J. Sentinel, Why Did Milwaukee Have Just 5 Polling Places? Aldermen Want Answers (Apr. 10, 2020);17 see Wolfe Memo at 8; Wis. Elections Comm’n, Special Teleconference Meeting (noting “[d]iscussion of Milwaukee . . . Polling Place Consolidation” on agenda).18 These officials failed to “open more voting locations once [they] learned Wisconsin National Guard members would be available to help staff the polls,” and even reduced their initial request for National Guard support from 500 members to 250 members. Spicuzza & Dirr, supra; see Briana Reilly, Madison Has 66 Polling Sites On Election Day, Milwaukee Has Five. What’s The Deal?,
16 Available at https://www.jsonline.com/restricted/?return=https%3A%2F%2Fwww. jsonline.com%2Fstory%2Fnews%2F2020%2F04%2F29%2Fcoronavirus-wisconsin-no-bumpelection-but-concerns-remain%2F3039357001%2F.
17Available at https://www.jsonline.com/story/news/politics/elections/2020/04/10/ coro navirus-milwaukee-aldermen-want-answers-polling-places-primary-election/5127577002/
18 Available at https://elections.wi.gov/node/6857.
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Capitol Times (Apr. 7, 2020).19 Other major metropolitan areas, like Madison, acted responsibly and did not experience these difficulties. See Reilly, supra; compare Wis. Elections Comm’n, Special Teleconference Meeting, supra; Wolf Memo at 8. Madison maintained “66 of [the city’s] normal 92 polling sites,” such that “few, if any, voters [were] spotted waiting outside polling places across [the] city.” Reilly, supra; see Spicuzza & Dirr, supra (“Madison had many times the number of polling sites [that] Milwaukee did.”); City of Madison, CORRECTED Polling Place Listing for April 7 (listing “all polling places for the April 7” Election in light of COVID-19).20
C. Post-April 7 Developments Wisconsin has several other elections scheduled for 2020, including the August 11, 2020 Partisan Primary, see Wis. Elections Comm’n, 2020 Partisan Primary,21 and the November 3, 2020 General and Presidential Election, see Wis. Elections Comm’n, 2020 General Election.22 Whether, or how, Wisconsin may adjust its election administration in response to COVID-19 for the elections occurring in August and thereafter cannot be known at this time. The Federal Government has now issued guidelines for “opening up America again,” as the threat of COVID-19 lessens. See The White House, The Centers for
19 Available at https://madison.com/ct/news/local/govt-and-politics/madison-has-66polling-sites-on-election-day-milwaukee-has-five-whats-the-deal/article_8868bacf-6697-5cf4 -aa4f-d85fb37cf846.html#tracking-source=home-top-story-1.
20 Available at https://www.cityofmadison.com/news/corrected-polling-place-listingfor-april-7.
21 Available at https://elections.wi.gov/node/5799. 22 Available at https://elections.wi.gov/node/5800.
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Disease Control and Prevention (“CDC”), & The Food and Drug Administration (“FDA”), Testing Overview: Opening Up America Again (Apr. 27, 2020);23 The White House, CDC, & FDA, Testing Blueprint: Opening Up America Again (Apr. 27 2020);24 see also Statement From The [White House] Press Secretary (Apr. 27, 2020).25 These guidelines serve as a “[b]lueprint” for States to “reopen their economies and get people back to work, while protecting the health and safety of the American people.” The White House, CDC, & FDA, Testing Blueprint at 2, supra.
Plaintiff Democratic National Committee has similarly made plans to resume public events as early as the week of August 17, recently announcing that it will hold the extremely large Democratic National Convention “in-person . . . in Milwaukee,” in anticipation of the November 3 Presidential Election. See Bill Glauber, Tom Perez: Democrats Still Plan In-Person Convention In Milwaukee Week Of Aug. 17, Milwaukee J. Sentinel (May 6, 2020).26 Plaintiff Democratic National Committee intends for this to be “a robust, in-person” national convention that will be held in a “safe” manner, despite “the fallout from the coronavirus pandemic.” Id.
23 Available at https://www.whitehouse.gov/wp-content/uploads/2020/04/Testing-Ove rview-Final.pdf.
24 Available at https://www.whitehouse.gov/wp-content/uploads/2020/04/TestingBlueprint.pdf.
25 Available at https://www.whitehouse.gov/briefings-statements/statement-presssecretary-126/.
26 Available at https://www.jsonline.com/story/news/politics/elections/2020/05/06/dncmilwaukee-tom-perez-says-person-convention-still-plan/5178866002/.
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For Wisconsin’s part, the Governor’s original “Safer at Home” Order, issued on March 24, 2020, expired on April 24, 2020. See Emergency Order #12. The Governor’s appointee has sought to renew that Order, with only minor modifications, but only until May 26, 2020, see Emergency Order #28, Safer At Home Order (Apr. 16, 2020) (“Emergency Order #28”),27 and the Legislature is challenging the validity of that extension before the Wisconsin Supreme Court, Wis. Legislature v. Palm, No. 2020AP765-OA (Wis. argued May 5, 2020).
In light of this changing landscape, the Commission has already begun to investigate additional steps it may choose to take in order to ensure the State’s readiness for Wisconsin’s upcoming 2020 elections, based on the State’s experience with the April 7 Election. See generally Wolfe Memo at 1. The Commission’s proposals relate to providing better sanitation supplies and personal protective equipment for polling locations for upcoming elections, id.; enhancing the WisVote Database, id. at 3, and the MyVote Website, id. at 4; funding the purchases of envelopes and postage for absentee ballots, id. at 5; ensuring adequate levels of poll workers for future elections, id. at 5–6; issuing guidance and communications for clerks, id. at 6–7; studying polling-place consolidations, id. at 7–8; studying how better to use the National Guard and other groups as “last minute” poll workers, id. at 8–9; building an intelligent-barcode system into the absentee-ballot system, id. at 10; and issuing guidance on election-results-reporting systems, id.
27 Available at https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf. - 12 -

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D. Litigation History In a series of lawsuits filed predominantly against the Commission and its members—both in this Court and elsewhere—multiple plaintiffs challenged both Wisconsin’s plan to hold its April 7 Election, as state law required, and the application of various other election laws during that election. See Dkt. 86 (three consolidated cases); see also Taylor v. Milwaukee Election Comm’n, No. 20-CV-545-PP, 2020 WL 1695454 (E.D. Wis. Apr. 6, 2020); City of Green Bay v. Bostelmann, No. 20-C-479, 2020 WL 1492975 (E.D. Wis. Mar. 27, 2020); Edwards v. Vos, No. 3:20-cv-340-wmc (W.D. Wis. amended compl. filed May 5, 2020) (“Edwards”). These plaintiffs generally alleged that holding the election on April 7 and the application of certain laws during that election impermissibly burdened their constitutional right to vote. See Dkt. 170 at 24–25; Taylor, 2020 WL 1695454, at *1; Green Bay, 2020 WL 1492975 at *3; see also Edwards Dkt. 5 ¶¶ 90–113 (amended complaint). In the present case, this Court denied the requests to “delay the April 7, 2020 election,” Dkt. 170 at 28, 36, and it denied any relief as to the photo ID law, Dkt. 170 at 49. This Court also denied requests to extend by-mail registration and associated proof-of-residency requirements as moot. Dkt. 170 at 49–50. The Court did, however, grant preliminary relief that “extend[ed] the deadline by which an individual can register to vote electronically to March 30, 2020”; “extend[ed] the deadline for receipt of absentee ballots to 4:00 p.m. on April 13, 2020”; “extend[ed] the deadline for receipt of absentee ballot requests . . . to 5:00 p.m. on April 3, 2020”; and “enjoin[ed] the enforcement of Wis. Stat. § 6.87(2),” which required absentee voters to obtain a
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witness’s signature in order for their absentee ballot to be counted. Dkt. 170 at 4–5; see also Dkts. 179–180 (amending and clarifying preliminary injunction). Other courts rejected plaintiffs’ election-law challenges across the board. See Taylor, 2020 WL 1695454, at *9; Green Bay, 2020 WL 1492975 at *3.
Appellate courts stayed several of this Court’s changes to Wisconsin laws. The Seventh Circuit issued a stay of the portion of this Court’s preliminary relief that “enjoin[ed] the enforcement of Wis. Stat. § 6.87(2),” which required absentee voters to obtain a witness’s signature for their absentee ballot to be counted. Dkt. 189 at 4 (Seventh Circuit’s stay order, citing Burdick v. Takushi, 504 U.S. 428, 434 (1992), Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004)). The Supreme Court thereafter stayed the preliminary relief ordered by this Court in DNC “to the extent it require[d] the State to count absentee ballots postmarked [or hand delivered] after” Election Day. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020) (per curiam).
In Edwards, currently pending before this Court, the putative-class plaintiffs claim that Wisconsin’s holding of the April 7 Election violated their constitutional right to vote and their rights under the Americans with Disabilities Act. Edwards, Dkt. 5 ¶¶ 90–132 (amended complaint). In particular, the Edwards plaintiffs allege a violation of (1) their First and Fourteenth Amendment right to vote, claiming that “refusal to postpone the election [due to COVID-19] completely deprived Plaintiffs” of this right, id. ¶ 109, and (2) Title II of the Americans with Disabilities Act (“ADA”), id. ¶ 114–32, claiming that the defendants violated the ADA “[b]y insisting on
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allowing the Spring Election to proceed without consideration of that decision’s impact on individuals with disabilities,” id. ¶ 120.
Following the Legislature’s Motion To Dismiss Plaintiffs’ Amended Complaint in the case here, see Dkt. 197, Plaintiffs sought leave to amend their Complaint a second time, specifying that their attempts to broadly transform Wisconsin’s election system should extend “until the COVID-19 crisis is over,” Dkt. 198-1 at 39, “up to and including the November 3, 2020 General and Presidential Election,” Dkt. 198 at 6. Plaintiffs’ proposed Second Amended Complaint reiterates their challenges to Wisconsin’s “statutory requirements for registering to vote and absentee voting”— specifically the absentee-ballot-acceptance deadline, Wis. Stat. § 6.87, the absenteeballot witness-signature requirement, Wis. Stat. § 6.87(2), the photo ID requirement for absentee-ballot applications, Wis. Stat. § 6.86, the proof-of-residency requirement for electronic and by-mail registration, Wis. Stat. § 6.34, and the deadlines for bymail and electronic registration, Wis. Stat. § 6.28(1); Dkt. 198-1 ¶ 7. The proposed Second Amended Complaint also adds a new challenge to Defendants’ alleged “failure to provide sufficient financial, personnel, and other resources to ensure an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner” for the upcoming 2020 elections. Dkt. 198-1 ¶ 7. In all, this new, proposed Complaint reasserts the same three claims that Plaintiffs brought before: an Anderson/Burdick right-to-vote claim, Dkt. 198-1 ¶¶ 77–84, a procedural-due-process claim, Dkt. 198-1 ¶¶ 85–90, and an equal-protection claim, Dkt. 198-1 ¶¶ 91–98.
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LEGAL STANDARD A district court has “broad discretion to deny leave to amend . . . where the amendment would be futile.” Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870 F.3d 682, 693 (7th Cir. 2017) (citation omitted); see Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015); Fed. R. Civ. P. 15(a)(2). Futility is measured by whether the amended complaint would survive a dispositive motion, such as a motion for summary judgment, King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007), or a motion to dismiss, Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
ARGUMENT I. Plaintiffs’ Motion To Amend Is Futile Because Their New Claims Are Unripe
A. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted). In other words, “[c]ases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (citation omitted). Dismissing a claim for lack of ripeness keeps courts from “entangling themselves in abstract disagreements,” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), allows the courts to steer clear from making any “unnecessary decision[s] of constitutional issues,” Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974), and enables the courts to hold off on the matter until after “further factual
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development” sharpens the issue, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 736–37 (1998). Lack of ripeness is a defect of subject-matter jurisdiction because “it implicates the possibility of this Court issuing an advisory opinion.” Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008).
The courts employ a two-factor test to determine whether a claim is ripe. First, the court must consider the “fitness of the issues for judicial decision.” Abbott, 387 U.S. at 149. On this fitness factor, unripe questions are those that “will [ ] be clarified by further factual development,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (citation omitted), or that are “uncertain or contingent” on future events, Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011), unlike “purely legal” disputes that are ripe for adjudication immediately, Susan B. Anthony List, 573 U.S. at 167–68 (citation omitted). Second, the court must consider “the hardship to the parties of withholding court consideration.” Abbott, 387 U.S. at 149. On this hardship factor, claims not involving present or immediate violations of the plaintiff’s rights are unripe, as opposed to claims where the plaintiff is already suffering a “substantial hardship,” Susan B. Anthony List, 573 U.S. at 167– 68 (claim alleging ongoing First Amendment violation satisfied hardship factor); accord Wis. Right to Life, 664 F.3d at 148 (same).
B. Each of Plaintiffs’ claims for relief readily fail this two-part test for ripeness. Plaintiffs have requested that this Court declare Wisconsin’s registration deadlines, Wis. Stat. § 6.28(1), proof-of-residence and photo ID requirements, Wis. Stat. §§ 6.34, 6.86, absentee-ballot-receipt deadline, Wis. Stat. § 6.87, and witness-
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signature requirement, Wis. Stat. § 6.87(2), violative of voters’ rights under the First and Fourteenth Amendments, Dkt. 198-1 at 38. Plaintiffs also request that this Court: enjoin each of those laws “until the COVID-19 crisis is over”; order Defendants to extend Wisconsin’s deadline for electronic and mail registration “to the Friday before each of the remaining 2020 elections”; and order Defendants “to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner.” Dkt. 198-1 at 39. These requests for relief are plainly unripe.
Beginning with the fitness factor of the ripeness inquiry, Plaintiffs’ claims for relief for elections scheduled to take place in August 2020, November 2020, and beyond are not fit for judicial decision now because those claims depend on both the health risks that COVID-19 may cause during those elections and the government’s response to those risks. See, e.g., Dkt. 198-1 ¶¶ 79–80, 82–83, 89–90, 97. The future course of the COVID-19 pandemic in Wisconsin, the types of treatments that may or may not be available, as well as the government’s responses, are “uncertain” and “contingent.” Wis. Right to Life, 664 F.3d at 148. The Federal Government—under the auspices of the CDC, the FDA, and the White House—issued guidelines for “opening up America again” in the months to come, as the risks posed by COVID-19 lessen. See The White House, CDC & FDA, Guidelines: Opening Up America Again, supra; The White House, CDC, & FDA, Testing Blueprint, supra. Governor Evers’ original “Safer at Home” Order expired April 24, 2020, and his appointee has sought
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to extend that order only to May 26 (and that one-month extension is subject to legal challenge in the Wisconsin Supreme Court, see Palm, No. 2020AP765-OA). Further, the Commission has begun taking steps to investigate readiness for future elections and is exploring making numerous changes to on-the-ground election administration, absentee-voting envelopes and postage, its MyVote website, and so on. See supra pp. 5–6. Whatever steps the Commission takes will be shaped by these investigations, as well as the developments in the COVID-19 situation. Those changes, in turn, will impact the merits—if any—of Plaintiffs’ claims.
Plaintiffs now speculate that “it is highly likely that thousands of absentee ballots will arrive after the Election Day Receipt Deadline” in “the upcoming 2020 elections,” Dkt. 198-1 ¶¶ 47–48, necessitating an extension of the deadlines for receipt of absentee ballots in August and November, Dkt. 198-1 at 38–39. To support their conjecture, Plaintiffs assert that the level of funding for the U.S. Postal Service will be deficient, Dkt. 198-1 ¶¶ 42, 51, and that the Commission has “[n]o plans to hire more staff” and lacks an additional “budget for heightened ‘postage and envelope costs’ for absentee ballots,” Dkt. 198-1 ¶ 51. These claims are unripe, baseless conjecture and are, in some instances, contrary to the Commission’s own publicly stated plans for future elections. See Wolfe Memo at 5–6.
Plaintiffs’ challenges to the witness-signature requirement, Wis. Stat. § 6.87(2), the photo ID requirement, Wis. Stat. §§ 6.86, 6.87, and the proof-ofresidency requirement, Wis. Stat. § 6.34, speculate on both the state of the COVID19 pandemic and the election-administration landscape months into the future.
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Plaintiffs claim that “many voters . . . will not have a witness to attest to their absentee ballots” or will not want to leave their homes to copy their photo IDs or various proof-of-residency documents due to “the requirements of the Safer-at-Home Order and the health risks of venturing out to find a witness,” Dkt. 198-1 ¶ 54, or to make copies, see Dkt. 198-1 ¶¶ 61, 67. But, even ignoring that the Safer at Home Order has never precluded citizens from engaging in the core democratic processes at issue here, the Governor’s appointee’s renewal of that temporary order extends only until May 26, 2020, see Emergency Order #28 at 21, well before the August and September elections, and this renewal is under legal challenge before the Wisconsin Supreme Court, Palm, No. 2020AP765-OA. Plaintiffs’ guess that “many workplaces, public libraries, and copy shops [will] remain closed,” Dkt. 198-1 ¶ 61, or be “unsafe to visit,” Dkt. 198-1 ¶ 67, come election time is conjecture and ignores the widespread efforts to “reopen [the States’] economies and get people back to work, while protecting the health and safety of the American people,” The White House, CDC, & FDA, Testing Blueprint at 2, supra.
Plaintiffs’ challenge to the mail-in and electronic-registration deadlines is also unripe. See Dkt. 198-1 ¶¶ 69–76. Plaintiffs rely almost entirely on this Court’s recognition of “the excruciating dilemma” faced by voters in the April 7 Election who had missed the March 18 deadline to register and had to choose between “ventur[ing] into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.” Dkt. 37 at 11; see Dkt. 198-1 ¶ 72 (quoting Dkt. 37 at 11). The scope of any “dilemma” in August and November is entirely speculative,
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based upon contingent future events, such as the course of the pandemic, the development of medical advances, and the nature of the government’s response.
Plaintiffs’ amorphous request for the Court to order Defendants to “exercise their statutory authority and responsibility . . . to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner,” Dkt. 198-1 at 39, is similarly unripe. As noted above, supra pp. 5– 6, the Commission is studying all available means to provide and administer safe elections in August and November, including by providing additional sanitation supplies and personal protective equipment at polling sites, improving processes for by-mail voting and registration, improving the public-facing website to account for increased interest in absentee voting, and much more, see Wolfe Memo at 1–10.
Moving to the hardship factor, Plaintiffs would suffer no hardship if the Court properly declined to adjudicate their unripe claims for relief for the August and November 2020 elections, and beyond, in this case. The right that Plaintiffs seek to vindicate in this lawsuit with respect to those elections is the right of Wisconsin voters to vote in those elections. See Dkt. 198-1 ¶ 9 (“[P]laintiffs file this Second Amended Complaint to ensure that Wisconsin voters . . . are able to fully exercise their right to vote in the midst of this unprecedented crisis.”). As explained both in the Background section and below, voters in Wisconsin have ample avenues to vote, including under Wisconsin’s generous absentee-voting regime.
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II. Plaintiffs’ Motion To Amend Is Futile Because Their Claims Fail As A Matter Of Law A. Plaintiffs’ Anderson/Burdick Claim Fails As A Matter Of Law 1. A party bringing an Anderson/Burdick claim, challenging election laws
under the First and Fourteenth Amendments, see Dkt. 198-1 ¶¶ 77–84; Burdick, 504 U.S. 428; Anderson, 460 U.S. 780, must satisfy a heavy burden in a two-part inquiry.
At the first step of the Anderson/Burdick test, the Court examines the burden caused by an election regulation, considering the restriction that the law imposes “as part of [the State’s] electoral scheme” as a whole. Burdick, 504 U.S. at 441. A law does not create a substantial burden on the right to vote when it does not “represent a significant increase over the usual burdens of voting.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008) (controlling plurality of Stevens, J.) (“[T]he inconvenience of making a trip to the [D]MV, gathering the required documents and posing for a photograph surely do not qualify as a substantial burden on the right to vote[.]”); accord Frank I, 768 F.3d at 748. “[I]t is obvious that a federal court is not going to decree weekend voting, multi-day voting, all-mail voting, or Internet voting[.]” Griffin, 385 F.3d at 1130. Nor does the Constitution require “unlimited absentee voting.” Id. at 1130–32.
At the second step of the Anderson/Burdick inquiry, the court weighs any burden from the election regulation against the State’s interests, including its sovereign interests in regulating elections. See Stone v. Bd. of Election Comm’rs for City of Chi., 750 F.3d 678, 681 (7th Cir. 2013). A State’s justification is generally treated as a “legislative fact” that must be accepted if reasonable. Frank I, 768 F.3d
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at 750. “If the burden on plaintiffs’ constitutional rights is ‘severe,’ a state’s regulation must be narrowly drawn to advance a compelling state interest. If the burden is merely ‘reasonable’ and ‘nondiscriminatory,’ by contrast, the government’s legitimate regulatory interests will generally carry the day.” Stone, 750 F.3d at 681 (citing Burdick, 504 U.S. at 434).
Finally, and critically important here, a finding that an election regulation burdens some voters “[can]not prevent the state from applying the law generally.” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”). A court examining a facial challenge to an election law must “consider only the statute’s broad application to all [of the State’s] voters.” Crawford, 553 U.S. at 202–03 (controlling plurality of Stevens, J.). A holding that certain voters cannot satisfy the regulation with “reasonable effort” cannot support facial relief. See Frank II, 819 F.3d at 386.
2. Plaintiffs’ Anderson/Burdick claim is a facial challenge against several Wisconsin election laws and practices, specifically: (a) the mail, electronic, and inperson registration deadlines, Wis. Stat. § 6.28(1), and the absentee-ballot electionday-receipt deadlines, Wis. Stat. § 6.87; (b) the proof-of-residence, Wis. Stat. § 6.34, photo ID, Wis. Stat. § 6.86, and witness-signature requirements, Wis. Stat. § 6.87(2); and (c) the alleged “failure” of Defendants “to ensure that all citizens have safe and sufficient opportunities to register and vote in person,” Dkt. 198-1 at 38–39, ¶¶ 81– 83. These claims fail, as a matter of law, under the Anderson/Burdick test.
a. Mail, electronic, and in-person registration deadlines, and absentee-ballot election-day-receipt deadlines. In terms of the registration deadlines, Plaintiffs’
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interests are insubstantial now, post-April 7 Election, since all voters wishing to register can know of the relevant deadlines well in advance of the upcoming 2020 elections. “Registering to vote is easy in Wisconsin,” Frank I, 768 F.3d at 758, and Wisconsin law provides generous deadlines for voter registration. “Registrations made by mail” and “[e]lectronic registration . . . for an election” must be submitted by “the 3rd Wednesday preceding the election,” Wis. Stat. § 6.28(1), which is July 22 for the August 11 Partisan Primary and October 14 for the November 3 General Election. Voters may also register in person at the clerk’s office until the close of business on the Friday before an election (August 7 and October 30), Wis. Stat. § 6.29, or at the polls on Election Day itself, Wis. Stat. § 6.55(2). Given that voters have many months to register for the remaining 2020 elections, Plaintiffs have failed to allege plausibly that any asserted interest in extending these deadlines now has any legal weight.
For similar reasons, Plaintiffs have alleged no meaningful burden resulting from Wisconsin’s absentee-ballot-receipt deadlines for the August and November elections (and beyond). Voters may request absentee ballots for any upcoming 2020 Election immediately, and need only submit requests by “the 5th day immediately preceding the election” if by mail, fax, or online (August 6 or October 29), or by “the Sunday preceding the election” if in person (August 9 or November 1), Wis. Stat. § 6.86(1)(ac), (b); Wis. Elections Comm’n, I Want To Vote Absentee, supra. Any voter even potentially concerned about submitting an absentee-ballot application by these deadlines can simply take action today, which is no meaningful burden. Plaintiffs’ ipse dixit about what they subjectively believe will “likely” happen if voters are
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required to comply with these neutral, months-from-now deadlines, see Dkt. 198-1 ¶¶ 8, 42–44, 48, 52, 63, is entirely “speculative,” and thus does not “raise a right to relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Plaintiffs’ argument that “the Supreme Court relied on this [Court’s absenteeballot-receipt] extension” when granting the Legislature’s stay application and thereby (somehow) approved of such a suspension in future elections is deeply misleading. Dkt. 198 at 3; Dkt. 198-1 ¶¶ 4, 50. In rejecting all of Plaintiffs’ arguments before it, the Supreme Court addressed the “sole,” “narrow, technical question” of whether, in light of this Court’s extension, “absentee ballots now must be mailed and postmarked by election day.” Republican Nat’l Comm., 140 S. Ct. at 1206. The Court did not consider the merits of the absentee-ballot-receipt extension itself even as to the April 7 Election, let alone as applied to future elections in different public-health contexts. See id. at 1206–08. The Court expressly refused to “express[ ] an opinion on . . . whether other reforms or modification of election procedures in light of COVID-19 are appropriate,” a point that “cannot be stressed enough.” Id. at 1208.
The State’s interests in the enforcement of its election-law deadlines are substantial, as a matter of law. The “State indisputably has a compelling interest in preserving the integrity of its election process,” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989), and in the “orderly administration” of its elections, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.). Clear, consistent deadlines like registration and absentee-ballot-receipt deadlines are
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central to those interests, see id.; Eu, 489 U.S. at 21, which is why every State has such deadlines for all of these aspects of election administration.
Finally, Plaintiffs’ limited allegations cannot support relief for any voters, let alone the broad, facial remedy that Plaintiffs seek. See Frank II, 819 F.3d at 386. If there are particular voters who, despite the lengthy time until the next elections, suffer more-than-usual burdens from these statutory deadlines, those hypothetical voters could pursue as-applied relief under the Frank II framework, including by putting forward the required evidentiary showing. Id. Notably, Plaintiffs have not identified any such voters in their proposed Second Amended Complaint.
b. Proof-of-residence, photo ID, and witness-signature requirements. Plaintiffs have made no plausible allegations that any voter cannot comply with these electionintegrity measures for the upcoming 2020 elections after reasonable effort, especially in light of the many months until those elections arrive. This Court and the Seventh Circuit each concluded that voters could comply with all of these requirements with minimal burden at a date much closer to Election Day and with much more apparent difficulties from COVID-19. Dkt. 37 at 15–17; Dkt. 170 at 47–49; Dkt. 189 (Seventh Circuit overturning this Court’s preliminary injunction of the witness-signature requirement). Specifically, for the proof-of-residence requirement, a voter need only present one of the many easily obtainable qualifying documents—such as a driver’s license. MyVote Wisconsin, Proof of Residence, supra. This requirement may be satisfied by registering online and submitting a valid driver’s license or state ID number, which “eliminat[es] the need to venture outside.” See Dkt. 37 at 15 & n.10;
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MyVote Wisconsin, Proof of Residence, supra (explaining that an electronic copy of any qualifying document may also be provided if registering in person). Likewise with the photo ID requirement—which is satisfied with any of “several forms” of ID that many voters “may already have,” MyVote Wisconsin, Photo ID Required, supra— a voter may either submit an electronic copy if requesting an absentee ballot online, Dkt. 37 at 15 & n.10; Wis. Elections Comm’n, I Want To Vote Absentee, supra, or simply present it if voting in person, see Wis. Stat. § 6.79(2)(a); MyVote Wisconsin, Photo ID Required, supra. And for the witness-signature requirement, voters may utilize any of the “at least five concrete alternative suggestions” from the Commission to safely obtain a witness signature “in light of the extraordinary challenges presented by the COVID-19 crisis.” Dkt. 189 at 4 (citing Wis. Elections Comm’n, Absentee Witness Signature Requirement Guidance COVID-1928). This includes having a witness observe the voter “through a window” or “via video chat like Skype or FaceTime,” and then the voter leaving the ballot “on the door step” for the witness to sign after socially distancing. Wis. Elections Comm’n, Absentee Witness Signature Requirement Guidance COVID-19, supra. Whatever credibility Plaintiffs’ arguments had in the immediate runup to the April 7 Election—and they had none, given the facility with which voters may comply with these laws—they certainly lack plausibility now months before the next election.
The State has a compelling interest in the continued enforcement of these election-integrity measures. The State’s proof-of-residency requirement, Wis. Stat.
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§ 6.34(2), furthers its compelling interest in “orderly administration and accurate recordkeeping . . . for carefully identifying all voters [who may] participat[e] in the election process,” thus legitimately ensuring that “only the votes of eligible voters” are tallied, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.); see also Dkt. 37 at 16; Dkt. 189 at 3. The photo ID law likewise “carefully identif[ies] all voters [who may] participat[e] in the election process,” Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.); accord Frank I, 768 F.3d at 751; Dkt. 37 at 15– 17, so as to promote the compelling interests in election integrity and public confidence in elections, Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam); Dkt. 189 at 3. And the absentee-ballot witness-signature requirement also advances these compelling election-integrity interests. See Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.). This election-integrity measure limits the fraud that is especially “facilitated by absentee voting,” Griffin, 385 F.3d at 1130–31, since “voting by mail makes vote fraud much easier to commit,” Nader v. Keith, 385 F.3d 729, 734 (7th Cir. 2004); see Veasey v. Abbott, 830 F.3d 216, 255–56 (5th Cir. 2016) (en banc) (recognizing examples of “people who harvest mail-in ballots from the elderly”); Crawford, 553 U.S. at 225 (Souter, J., dissenting) (noting that “absenteeballot fraud . . . is a documented problem”). Indeed, the State’s compelling interest in this witness-signature requirement is a key reason why the Seventh Circuit overturned this Court’s preliminary injunction of this law for the April 7 Election. Dkt. 189 at 3.
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Plaintiffs gets matters backwards when they argue that Wisconsin’s exemption of “indefinitely confined voters” from the photo ID requirement eliminates any “sound basis” for the witness-signature requirement. Dkt. 198-1 ¶ 57. The balancing of “competing values” as the Legislature pursues “a particular objective is the very essence of legislative choice”—and striking a balance between two legitimate goals cannot undermine the rationality of either, since “no legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (per curiam). So, Wisconsin’s exemption of one class of voters from a particular election-integrity measure does not undermine the purpose of a different measure, as applied to any other class of voter. That latter measure would still obviously further Wisconsin’s interests in combating voter fraud as to those voters, see supra pp. 27–29, even if the State chooses not to enforce the photo ID anti-voter-fraud measure as to indefinitely confined voters, given their unique hardships.
c. Alleged failure to ensure safe and sufficient opportunities to register and vote in person/request for order to “develop and implement plans to coordinate available state, local and private resources.” Plaintiffs’ final “challenge”/“[a]dditional requested relief” likewise fails to sufficiently allege a viable Anderson/Burdick claim. Dkt. 198 at 7 (emphasis removed); Dkt. 198-1 at 38–39. Plaintiffs’ only constitutional interest here is the interest of voters casting their ballots with reasonable efforts, Crawford, 553 U.S. at 198 (controlling plurality of Stevens, J.); accord Frank I, 768 F.3d at 748, and their final, poorly defined “challenge” makes no plausible allegations that their requested judicial micromanaging is needed to protect that interest. As
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explained above, registering to vote in Wisconsin “is easy,” Frank I, 768 F.3d at 748, given the numerous registration methods available, supra pp. 3–4. Further, as described above and below, the Commission has already begun substantial efforts to improve upon this success for upcoming elections, taking full advantage of the many months before the next 2020 election. Supra Part I; infra Part III. Thus, Plaintiffs have no plausible need for an order from this Court directing the “implement[ation] [of] plans to coordinate” election-related resources. Dkt. 198-1 at 39. Further, to the extent Plaintiffs have some unstated basis to believe that certain local officials will repeat their irresponsible actions on April 7 that caused long lines, they should bring a lawsuit against those officials. See Frank I, 768 F.3d at 755 (“[U]nits of government are responsible for their own discrimination but not for rectifying the effects of other persons’ discrimination.” (emphasis added)).
B. Plaintiffs’ Due-Process Claim Fails As A Matter Of Law Plaintiffs’ procedural-due-process claim, Dkt. 198-1 ¶¶ 85–90, invokes the procedural-due-process standard from Mathews v. Eldridge, 424 U.S. 319 (1976). Under that standard, Plaintiffs must first establish a protected liberty/property interest and then prove that the State’s processes to protect that interest are inadequate given: (1) Plaintiffs’ “private interest” at stake; (2) “the risk of an erroneous deprivation,” which considers the current process afforded by the State, together with the “probable value” of any additional processes; and (3) the “Government’s interest.” Id. at 335.
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Here, Plaintiffs’ assertion of their procedural-due-process claim fails for two related, but independently sufficient, reasons.
First, Plaintiffs’ procedural-due-process claim is wholly duplicative of their Anderson/Burdick right-to-vote claim under the First and Fourteenth Amendments, since that claim relies on a much more “specific guarantee[ ]” than the guarantees of the Due Process Clause. Albright v. Oliver, 510 U.S. 266, 273 (1994). In other words, the Anderson/Burdick right-to-vote analysis is “the guide for analyzing these [votingrights] claims,” not “the more generalized notion” of procedural due process. Id.; compare, e.g., Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (equal-protection and Eighth Amendment claims were duplicative of a more-specific Free Exercise Clause claim). Since Plaintiffs’ Anderson/Burdick claim fails as a matter of law, see supra Part II.A., their alleged procedural-due-process claim fails as well.
Second, even if the procedural-due-process claim were not wholly duplicative, the Court must still “reject [it] . . . for the same reasons” as the Anderson/Burdick claim. Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008) (applying Burdick, 504 U.S. at 434, and Crawford, 553 U.S. at 189–90 (controlling plurality of Stevens, J.), to reject procedural-due-process claim). Interests in registering to vote and casting a ballot are protected under existing Wisconsin election law, since voters need only expend reasonable effort to exercise these rights. See supra pp. 3–6; Mathews, 424 U.S. at 335 (“private interest”). Under these existing laws, there is minimal risk of an “erroneous deprivation,” Mathews, 424 U.S. at 335, since voters have many months to register, request absentee ballots, or plan to vote in person,
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supra pp. 24–25. The “probable value” of any additional processes—such as an extension of deadlines, Dkt. 198-1 at 38–39—would be negligible and, in any event, substantially outweighed by the State’s compelling interests in “preserving the integrity of its election process,” Eu, 489 U.S. at 231, and in the “orderly administration” of its elections, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.); Mathews, 424 U.S. at 335 (“Government’s interest”). Therefore, after applying the Mathews balancing test, Plaintiffs’ procedural-due-process claim fails.
C. Plaintiffs’ Equal-Protection Claim Fails As A Matter Of Law
Plaintiffs reassert an equal-protection claim premised on Bush v. Gore, 531
U.S. 98 (2000) (per curiam), Dkt. 198-1 ¶¶ 91–98, but this claim similarly fails. “Even were Bush applicable to more than the one election to which the
[Supreme] Court appears to have limited it,” Lemons, 538 F.3d at 1106, this claim would require movants to allege plausibly that specific election “procedures” result in “arbitrary and disparate treatment of the members of [the State’s] electorate.” Bush, 531 U.S. at 105. Plaintiffs have not pointed to any election procedures relevant to the forthcoming 2020 elections that are insufficiently uniform to violate the guarantee of equal treatment. Id. at 106–07. Plaintiffs claim that the “postmarked by election day” requirement resulted in “many absentee ballots [being] returned to local election officials by the Postal Service with either no postmarks at all, postmarks without dates, or illegible postmarks,” causing “local election officials throughout Wisconsin” to decide how these ballots should be treated “without any uniform standards ensuring consistent treatment throughout the State.” Dkt. 198-1 at ¶ 95.
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But this postmark requirement was a remedy ordered and fashioned as a result of the first round of this litigation, Dkt. 170 at 5; compare Republican Nat’l Comm., 140 S. Ct. at 1208, not a normal or expected procedure of Wisconsin’s election system in any future election, Bush, 531 U.S. at 105. Given Plaintiffs’ desire for prospective relief, Dkt. 198-1 at 38–39, and the one-off nature of that remedy, Plaintiffs’ claims on this point are wholly baseless and fail as a matter of law.
Plaintiffs’ equal-protection argument about the “indefinitely confined” provision of Wisconsin election law, Dkt. 198-1 ¶ 96, is similarly meritless. Plaintiffs claim that the Wisconsin Supreme Court’s determination that the “[d]esignation of indefinitely confined status is for each individual voter to make based upon their current circumstances,” and that this determination “does not require permanent or total inability to travel outside of the residence,” will somehow lead to arbitrary and disparate treatment of voters. Dkt. 198-1 ¶ 96 (quoting Order, Jefferson v. Dane Cty., 2020AP557-OA, at *2 (Wis. Mar. 31, 2020) (emphasis omitted)). But this is much different than what the Supreme Court addressed in Bush, where the Court was concerned with the unequal treatment of ballots, “piece[s] of cardboard or paper,” because the “factfinder” was tasked with finding a person’s intent by “confront[ing] a thing, not a person.” 531 U.S. at 106. Wisconsin law treats each voter equally by allowing each person to make their own good-faith determination if they are “indefinitely confined . . . based upon their current circumstances.” Order, Jefferson, No. 2020AP557-OA, at *2. That is itself a “uniform rule[ ]” to be applied to all voters, “ensur[ing] uniform treatment.” Bush, 531 U.S. at 106.
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Finally, this Court lacks jurisdiction over the remaining allegations in this equal-protection claim, even if Plaintiffs could have asserted it, since they complain only of the actions of independent third parties (“local elections officials” or “authorities” in “cities and counties”) and not the actions of the Commissioners or
others that they have named as Defendants. Dkt. 198-1 ¶¶ 94, 95; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (plaintiffs lack standing where they complain of
“the independent action of some third party not before the court,” as opposed to “the defendant” (citation omitted)); accord Frank I, 768 F.3d at 755. III. Plaintiffs’ Motion To Amend Is Futile Because Their Claims Should Be
Dismissed Under Burford Abstention Under the Supreme Court’s Burford abstention doctrine, federal courts should dismiss a case, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); E & E Hauling v. Forest Preserve District, 821 F.2d 433 (7th Cir. 1987), whenever “the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern,” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”) (citation omitted). “In other words, federal courts may abstain [under Burford] when principles of federalism warrant deference to a state’s regulatory regime.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011). State election law qualifies as one such “regulatory regime” under Burford, id., given that election laws involve the most “substantial” of “public concern[s],” NOPSI, 491 U.S. at 361—the people’s right to govern themselves. A comprehensive system of state election laws furthers “the State’s important regulatory interests,” Burdick, 504
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U.S. at 434 (quoting Anderson, 460 U.S. at 788), and is necessary to ensure “fair and honest” elections, rather than “chaos,” Anderson, 460 U.S. at 788. All of this is why, as this Court already recognized, “the administration of elections during a public health emergency is a matter of substantial public concern.” Dkt. 37, at 17 n.12.
This Court should abstain from adjudicating Plaintiffs’ claims under Burford, due to the extreme disruption that such intervention would cause to Wisconsin’s important interests in comprehensive election administration. NOPSI, 491 U.S. at 361; Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 788. Plaintiffs have asked this Court not only to enjoin several laws that Wisconsin maintains to protect its fair and honest elections, Anderson, 460 U.S. at 788, but also to “[o]rder[ ] defendants to exercise their statutory authority and responsibility to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote inperson on election day in a safe and secure manner,” Dkt. 198-1 at 39 (citation omitted). Plaintiffs’ extraordinary request would, if successful, seriously “disrupt[ ]” Wisconsin’s efforts to establish a “coherent” election-administration policy. NOPSI, 491 U.S. at 361. The State already ran a successful statewide election on April 7, processing record-breaking numbers of absentee ballots and managing a turnout much higher than comparable Spring Elections. See supra pp. 6–10. The Commission is further investigating and assessing all methods for improving election procedures to meet the changing needs of voters who may have concerns in light of the COVID-19 pandemic. See generally Wolfe Memo, supra.
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An order from this Court requiring the State to “coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner,” Dkt. 198-1 at 39—subject to oversight and restrictions set by this Court alone, rather than the State’s own election-administration experts—would not exhibit “a sound respect for the independence of state action,” but rather would cause “needless federal conflict with the state policy,” NOPSI, 491 U.S. at 360 (citation omitted). It would insult the “principles of federalism,” Adkins, 644 F.3d at 504; cause voter confusion, Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam), during this already uncertain time, see Order, Mays v. Thurston, No. 4:20-cv-341 (E.D. Ark. Mar. 30, 2020); and critically undermine the State’s ongoing preparations for the upcoming elections in 2020, Bowes v. Ind. Sec’y of State, 837 F.3d 813, 821 (7th Cir. 2016).
Plaintiffs’ response on this point is that “the Court already has once rejected the Legislature’s Burford abstention arguments in the leadup to the April 7 election.” Dkt. 198 at 4 (citing Dkt. 37 at 17–18 n.12). But the Court’s prior order rejecting the Legislature’s Burford argument relied in part on “the narrow relief being fashioned by this court,” a temporary equitable order, Dkt. 37 at 17–18 n.12, whereas Plaintiffs now seek to enjoin nearly every election-integrity measure that Wisconsin has, as well as to install this Court as the primary administrator of Wisconsin’s elections “until the COVID-19 crisis is over.” Dkt. 198-1 at 38–39. This is not the “narrow relief” upon which this Court previously relied. In any event, and with respect, this
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Court’s principal reason for declining to apply Burford abstention before rested on a faulty premise: the claimed unavailability of “any state-court review.” Dkt. 37, at 17 n.12. “The [Wisconsin] circuit courts are also fully capable of resolving any federal constitutional arguments that [Plaintiffs] might make.” SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 681 n.6 (7th Cir. 2010). Notably, on March 27, a voter and the Republican Party of Wisconsin filed a petition for an original action in the Supreme Court of Wisconsin, asking that tribunal to clarify how one important election law (the photo ID law) should be applied in the circumstances of the COVID-19 pandemic. Order, Jefferson, 2020AP557-OA, at *1–2; Tseytlin Decl. Ex. 8. The Court acted promptly, requiring a response from by 1:00 p.m. the following business day and issuing an opinion and order on March 31. Order, Jefferson, 2020AP557-OA, at *1– 2; Tseytlin Decl. Ex. 8. There is nothing stopping Plaintiffs, or any other parties, from similarly bringing any of the constitutional issues or concerns raised here to the Wisconsin Supreme Court. This Court should thus abstain. IV. The Court Should Stay This Case Until The Seventh Circuit Completes Its
Work On Appeal “The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). “[T]he general test for imposing a stay requires the court to balance interests favoring a stay against interests frustrated by the action in light of the court’s strict duty to exercise jurisdiction in a timely manner.” Grice Eng’g, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915, 920 (W.D. Wis. 2010) (citation omitted); accord Waterstone Mortg. Corp. v. Offit Kurman, LLC, No. 17-cv-796-jdp, 2018 WL 993856, at *1 (W.D. Wis.
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Feb. 20, 2018). Use of this power “pending the outcome of litigation in another court between the same parties, involving the same or controlling issues” is a particularly “acceptable means of avoiding unnecessary duplication of judicial machinery.” Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964, 980 (7th Cir. 2005) (quoting Aetna State Bank v. Altheimer, 430 F.2d 750, 755 (7th Cir. 1970)). While “[d]istrict courts . . . have exercised the power to dismiss for failure to state a claim pending appeal,” including pending an appeal challenging the grant or denial of a motion for a preliminary injunction, “it would be advisable for the district court to determine whether the same issue has been presented on appeal, and to defer action when it seems reasonably probable that appellate decision of the same question is imminent.” 16 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3921.2 (3d ed.).
Pending before the Seventh Circuit is the Legislature’s interlocutory appeal of this Court’s orders granting in part Plaintiffs’ request for an injunction, amending that injunction, and denying the Legislature’s motion to intervene. See Democratic Nat’l Comm., et al. v. Republican Nat’l Comm., et al., Nos. 20-1538, 20-1539, 20-1545, 20-1546 (7th Cir. appeals filed Apr. 2–3, 2020). Given these pending appeal, this Court has noted that “there is some question as to the scope of this court’s jurisdiction.” Dkt. 191 (Text Only Order). While the Legislature believes that this Court has jurisdiction over “aspects of the case” not involved in the specific orders on appeal, including retaining the power to dismiss Plaintiffs’ Amended Complaint and deny their motion to amend, MillerCoors LLC v. Anheuser-Busch Cos., 940 F.3d 922,
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923 (2019); accord Federal Practice and Procedure § 3921.2, the Legislature respectfully submits that “it would be advisable” for this Court to “defer action when it is reasonably probable that appellate decision on the same question is imminent,” Federal Practice and Procedure § 3921.2. During the appeal, the Legislature will argue that this case is moot (to the extent that it seeks relief for the April 7 Election) and unripe (to the extent that it seeks relief for the August and November elections), as well as raising many of the Anderson/Burdick arguments discussed above. See Democratic Nat’l Comm., et al. v. Republican Nat’l Comm., et al., Nos. 20-1538, 201539, 20-1545, 20-1546 (7th Cir. filed May 11, 2020), 20-1538 Dkt. 42, 20-1539 Dkt. 41. The Seventh Circuit’s decision may well resolve many of the core disputes between the parties both on the Legislature’s pending motion to dismiss, and Plaintiffs’ motion to amend, at least as a matter of “law of the case.” Dkt. 191 (Text Only Order).
CONCLUSION The Court should deny Plaintiffs’ Motion For Leave To File A Second Amended Complaint.
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Dated, May 11, 2020
ERIC M. MCLEOD LANE E. RUHLAND HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com

Respectfully Submitted,
/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe St., Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Attorneys for Intervenor-Defendant Wisconsin Legislature

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CERTIFICATE OF SERVICE I hereby certify that on the 11th day of May, 2020, a true and accurate copy of the foregoing Brief In Opposition To Plaintiffs’ Motion To Amend The Complaint was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

 
 Case: 3:20-cv-00249-wmc Document #: 201 Filed: 05/11/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.

Case No. 3:20-cv-249-wmc

Marge BOSTELMANN, et al.,

Defendants,

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN, and WISCONSIN STATE LEGISLATURE,
Intervenor-Defendants.

REPUBLICAN NATIONAL COMMITTEE AND REPUBLICAN PARTY OF WISCONSIN’S OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT
Intervenor-Defendants Republican National Committee and Republican Party of Wisconsin

join the Wisconsin Legislature’s opposition to Plaintiffs’ motion to amend the complaint (Doc. 200).

Dated: May 11, 2020

Respectfully submitted,

Jeffrey M. Harris Tyler R. Green Cameron T. Norris Alexa R. Baltes CONSOVOY MCCARTHY PLLC 1600 Wilson Blvd., Ste. 700 Arlington, VA 22209

/s/ Patrick Strawbridge T Patrick Strawbridge CONSOVOY MCCARTHY PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com

1

 
 Case: 3:20-cv-00249-wmc Document #: 202 Filed: 05/18/20 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants,
and
Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

Case No. 3:20-cv-249-wmc (consolidated with Case Nos. 3:20-cv-278-wmc and 3:20-cv-284-wmc)

THE WISCONSIN LEGISLATURE’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT IN DNC

INTRODUCTION This Court now has before it both the Legislature’s Motion to Dismiss the First Amended Complaint, Dkt. 197, and the Legislature’s Brief In Opposition To Plaintiffs’ Motion To Amend The First Amended Complaint, Dkt. 200. These filings explain why this lawsuit must be dismissed. To the extent that Plaintiffs seek relief only for the April 7 Election, as their First Amended Complaint does, their lawsuit is moot, as a matter of law. And to the extent that Plaintiffs seek relief for the August and November elections (as they do in their proposed Second Amended Complaint), their lawsuit is plainly unripe, as a matter of law.

Case: 3:20-cv-00249-wmc Document #: 202 Filed: 05/18/20 Page 2 of 8
ARGUMENT I. This Court Should Dismiss The First Amended Complaint As Moot, But To
The Extent Plaintiffs Are Correct That This Complaint Sought Relief After April 7, The Court Should Dismiss As Unripe As the Legislature explained in its Motion to Dismiss, this Court should dismiss Plaintiffs’ First Amended Complaint as moot. Dkt. 197 at 2–6. Once an “election ha[s] come and gone by,” challenges to that election often become moot, since a post-election remedy “would have no impact on the parties to th[e] suit or on the results of the [now-past] election.” Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). Here, the First Amended Complaint’s three claims sought relief only for the April 7 Election, given its repeated references to “the upcoming April 7, 2020 election,” Dkt. 55 ¶ 47; see Dkt. 55 ¶ 57; the Governor’s original “Safer-At-Home-Order,” which was set to expire in April, Dkt. 55 ¶¶ 48–50; the “current circumstances” surrounding the election, Dkt. 55 ¶ 56; and government officials’ responses to the COVID-19 pandemic for this election, Dkt. 55 ¶¶ 61–63. Since this election has “come and gone by,” these claims are now moot. Tobin, 268 F.3d at 528. Plaintiffs appear to concede that their claims are moot for the April 7 Election, and they agree that the capable of repetition, yet evading review exception to mootness does not apply. See Dkt. 199 at 6; Dkt. 197 at 5–6. Notably, Plaintiffs seek to distinguish the mootness cases upon which the Legislature relies solely on the grounds that plaintiffs there limited their challenges to a completed election, Dkt. 199 at 6–7, which is just the case with the First Amended Complaint here.
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Plaintiffs now claim that a few stray references in their First Amended Complaint to post-April 7 relief save their lawsuit from a mootness dismissal. Dkt. 199 at 4–7 (citing Dkt. 55 ¶¶ 7, 44; Dkt. 55 at 19, ¶¶ C–E). These “scattered references” do not “ple[a]d with sufficient clarity and specificity” claims for relief as to future elections. Larsen v. City of Beloit, 130 F.3d 1278, 1286 (7th Cir. 1997); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This is especially so given how separated and anomalous these references are. One is in a parenthetical statement at the Complaint’s beginning, Dkt. 55 ¶ 7, one is within a section entitled “Coronavirus and the April 7, 2020 Election,” Dkt. 55 ¶ 44 (emphasis added), and the last two merely state, in a conclusory manner, “until the COVID-19 crisis is over,” Dkt. 55 at 19, ¶¶ C–E. This is in marked contrast to the numerous and comprehensive references to the April 7 Election throughout the Complaint, including within each claim for relief. See, e.g., Dkt. 55 ¶¶ 47–50, 56–57, 61–63.
To the extent that this Court disagrees with the Legislature’s reading of the First Amended Complaint and concludes that this Complaint does challenge upcoming elections in 2020, the Court should dismiss the Complaint as unripe for much the same reasons articulated in the Legislature’s Brief In Opposition To Plaintiffs’ Motion To Amend The Complaint. Dkt. 200 at 16–21.1 The Legislature explicitly incorporates those arguments here. COVID-19-based challenges to
1 Because ripeness is jurisdictional, the Legislature could not have waived this argument as to the First Amended Complaint by failing to raise it in its opening support for its Motion To Dismiss. See Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008); Royce v. Michael R. Needle P.C., 950 F.3d 939, 950 (7th Cir. 2020).
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Wisconsin elections in August and November are unripe, as a matter of law, as they rest upon speculation about the progress of COVID-19 months from now, the status of treatments then, and any changes in election administration that the Wisconsin Elections Commission (“Commission”) may make. See Dkt. 200 at 10–12, 18–21.
Developments in just the last week further underscore the constantly evolving COVID-19 and election-administration situation, making lack of ripeness unavoidable. Wisconsin successfully completed its Special Election for the Seventh Congressional District on May 12, with such robust absentee and in-person voting that even Plaintiffs did not argue that any of their requested relief could be justified for that Election. Wis. Elections Comm’n, 7th Congressional District Special Election Today;2 see Wis. Elections Comm’n, More Than 69,000 Absentee Ballots Already Returned for May 12 Special Election (May 8, 2020);3 Denius v. Dunlap, 330 F.3d 919, 926–27 (7th Cir. 2003) (judicial notice of government websites). Indeed, almost every voter who requested an absentee ballot in the May 12 Special Election got one. Wis. Elections Comm’n, Absentee Ballot Report – May 12, 2020 Special Election for Congressional District 7.4 And, the next day, the Wisconsin Supreme Court invalidated the Governor’s designee’s extension of the “Safer at Home” Order, on state-law grounds. Wis. Legislature v. Palm, 2020 WI 42, ¶ 3.
2 Available at https://elections.wi.gov/node/6577 (all websites last accessed May 15, 2020).
3 Available at https://elections.wi.gov/node/6897. 4 Available at https://elections.wi.gov/node/6904.
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II. This Court Should Dismiss The First Amended Complaint Under Burford Abstention This Court should also dismiss the First Amended Complaint based on Burford
abstention. Burford v. Sun Oil Co., 319 U.S. 315 (1943); see New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”); Dkt. 197 at 1–2. Abstention is warranted because Wisconsin has a comprehensive election-regulation system—which is a matter of substantial public concern, see NOPSI, 491 U.S. at 361; Dkt. 37 at 17 n.12—that would be significantly disrupted by a judgment from this Court ordering the sweeping relief that Plaintiffs seek, see NOPSI, 491 U.S. at 361.
Plaintiffs argue that this Court’s denial of the Legislature’s Burford arguments in its Order granting a TRO should foreclose the Burford arguments here. Dkt. 199 at 8; see Dkt. 37 at 17 n.12 (TRO Order). But this Court’s TRO Order is not determinative, as the Court entered that Order in the context of a grant of temporary, “narrow relief.” Dkt. 37 at 17–18 n.12; see Dkt. 200 at 36. In any event, and with respect, the prior rejection of the Burford arguments rested on a legally faulty premise—the claimed unavailability of “any state-court review.” Dkt. 37, at 17 n.12. Yet Wisconsin “courts are also fully capable of resolving any federal constitutional arguments that [Plaintiffs] might make,” SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 681 n.6 (7th Cir. 2010), as evidenced by the Wisconsin Supreme Court’s quick action on an absentee-ballot-related issue in the runup to the April 7 Election. See Order,
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Jefferson v. Dane Cty., 2020AP557-OA, at *2 (Wis. Mar. 31, 2020); Tseytlin Decl. Ex. 8.5
Finally, Plaintiffs argue that Burford abstention is categorically inapplicable to election-law cases, Dkt. 199 at 9, but that is incorrect, see Seider v. Hutchison, No. 3:06CV215, 2007 WL 320964, at *3 (E.D. Tenn. Jan. 30, 2007) (invoking Burford to abstain from ordering a new election because a state election issue was “more effectively addressed through the formulation and implementation of Tennessee state policies versus court interference”), aff’d in part, rev’d in part and remanded, 296 F. App’x 517 (6th Cir. 2008) (affirming Burford abstention as to non-damages claims). The only Seventh Circuit case that they cite, Ryan v. State Board of Elections, 661 F.2d 1130 (7th Cir. 1981), provides no support, as that case “involve[d] no state regulatory issues” or “issues of state law whatsoever,” since it dealt solely with the question of whether a congressional map contained malapportioned districts. Id. at 1136. The present case involves myriad questions of state election law and election administration, see Dkt. 200 at 3–5, 10–12, all of which relate to the State’s “indisputably . . . compelling interest in preserving the integrity of its election process, Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989).
5 Plaintiffs’ assertion that the state forum must “be special” and have “exclusive jurisdiction over the [state regulatory] matter [at hand]” to trigger Burford abstention, Dkt. 199 at 9–10 n.7, relies upon a dated four-factor analysis that Plaintiffs’ own authority concluded has dubious “continuing validity . . . after the Supreme Court’s decisions in NOPSI and Quackenbush [v. Allstate Ins. Co., 517 U.S. 706 (1996)].” Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d 517, 532 (7th Cir. 2018).
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CONCLUSION The Court should dismiss Plaintiffs’ First Amended Complaint.

Dated: May 18, 2020.

Respectfully Submitted,

ERIC M. MCLEOD LANE E. RUHLAND HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com

/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe St., Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com

LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com

Attorneys for Intervenor-Defendant Wisconsin Legislature

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Case: 3:20-cv-00249-wmc Document #: 202 Filed: 05/18/20 Page 8 of 8
CERTIFICATE OF SERVICE I hereby certify that on the 18th day of May, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

 
 Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 1 of 34

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-249-wmc

SYLVIA GEAR, et. al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-278-wmc

REVEREND GREG LEWIS, et al.,

Civil Action No. 3:20-cv-284-wmc

Plaintiffs, v.

MARGE BOSTELMANN, et al.,

Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

REPLY BRIEF IN SUPPORT OF MOTION OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN FOR LEAVE TO FILE SECOND AMENDED COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 2 of 34 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 ARGUMENT IN REPLY ............................................................................................................... 6
I. Plaintiffs’ Second Amended Complaint is not “futile” for lack of ripeness........................ 8 II. Plaintiffs’ Second Amended Complaint is not “futile” for failure to state a claim. .......... 16
A. The Anderson-Burdick claim is not futile........................................................................ 16 B. The due process claim is not futile. ................................................................................. 19 C. The equal protection claim is not futile. .......................................................................... 21 III. Plaintiffs’ Second Amended Complaint is not “futile” on Burford abstention grounds.23 IV. This Court should not stay proceedings in this case. ..................................................... 27 CONCLUSION............................................................................................................................. 28
i

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 3 of 34

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...................................................................................................................8
Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) ...................................................................................................25
Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................................16
Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................................7
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979).................................................................................................................15
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................................7
Bogaert v. Land, 675 F. Supp. 2d 742 (W.D. Mich. 2009) .................................................................................26
Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) .................................................................................................20
Burdick v. Takushi, 504 U.S. 428 (1992).....................................................................................................16, 18, 20
Burford v. Sun Oil Co., 319 U.S. 315 (1943)......................................................................................................... passim
Bush v. Gore, 531 U.S. 98 (2000)...................................................................................................................21
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).................................................................................................................23
Decotiis v. Whittemore, 635 F.3d 22 (1st Cir. 2011) ......................................................................................................17
Democratic Nat’l Comm. v. Republican Nat’l Comm., 140 S. Ct. 1205 (2020) .......................................................................................................18, 24
Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, Doc. No. 30 (7th Cir. Apr. 3, 2020).........................................18, 19
Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981) ...................................................................................................26

ii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

E.F. Transit, Inc. v. Cook, 878 F.3d 606 (7th Cir. 2018) .....................................................................................................8
Edwards v. Sammons, 437 F.2d 1240 (5th Cir. 1971) .................................................................................................26
Fitzgerald v. Alcorn, 285 F. Supp. 3d 922 (W.D. Va. 2018) .....................................................................................14
Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153 (11th Cir. 2008) ...................................................................................13, 14, 21
Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d 517 (7th Cir. 2018) .............................................................................................25, 26
Harman v. Forssenius, 380 U.S. 528 (1965).................................................................................................................26
Holder v. Fraser Shipyards, Inc., 288 F. Supp. 3d 911 (W.D. Wis. 2018) .....................................................................................6
League of Women Voters of Fla., Inc. v. Detzner, 354 F. Supp. 3d 1280 (N.D. Fla. 2018)..............................................................................21, 26
Mathews v. Eldridge, 424 U.S. 319 (1976)...........................................................................................................20, 21
Mayr v. Husky Energy, Inc., No. 18-cv-917-wmc, 2019 WL 4849579 (W.D. Wis. Oct. 1, 2019) .............................7, 16, 17
Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935 (W.D. Mich. 2016) .................................................................................26
Midrad, LLC v. Dane Cty., 676 F. Supp. 2d 795 (W.D. Wis. 2009) (Crabb, J.) .............................................................3, 15
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................................................................................13
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).................................................................................................................25
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ...................................................................................................21
Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 936 F.2d 319 (7th Cir. 1991) ...................................................................................................25

iii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam) ................................................................................................15
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)...........................................................................................................23, 26
Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) ..........................................................................................20
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) ...................................................................................................21
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi., 786 F.3d 510 (7th Cir. 2015) .................................................................................................6, 7
Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130 (7th Cir. 1981) .................................................................................................26
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018).........................................................................................20
Seider v. Hutchison, No. 3:06CV215, 2007 WL 320964 (E.D. Tenn. Jan. 30, 2007), aff’d in part, rev’d in part, and remanded, 296 F. App’x 517 (6th Cir. 2008) .......................................26, 27
Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056 (7th Cir. 2020) ...................................................................................................3
Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) ...............................................................................................26
Soltysik v. Padilla, 910 F.3d 438 (9th Cir. 2018) .............................................................................................17, 18
Taha v. Int’l Bhd. of Teamsters, Local 781, 947 F.3d 464 (7th Cir. 2020) .................................................................................................7, 9
Tedards v. Ducey, 951 F.3d 1041 (9th Cir. 2020) .................................................................................................18
Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014) ...............................................................................................17
Tzakis v. Wright Med. Tech., Inc., No. 19-cv-545-wmc, 2020 WL 955016 (W.D. Wis. Feb. 27, 2020) ...............................7, 9, 12
Utah Republican Party v. Herbert, 144 F. Supp. 3d 1263 (D. Utah 2015)......................................................................................14

iv

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011) .....................................................................................................8
Wis. Term Limits v. League of Wis. Municipalities, 880 F Supp. 1256 (E.D. Wis. 1994).........................................................................................25
Yick Wo v. Hopkins, 118 U.S. 356 (1886).................................................................................................................20
STATUTES AND OTHER AUTHORITIES Fed. R. Civ. P. 15(a)(2)................................................................................................................1, 6 Rule 12(b)(6).......................................................................................................................... passim Rule 15(a)(2) ............................................................................................................................19, 23 Wis. Stat. § 6.28(1) ..........................................................................................................................2 Wis. Stat. § 6.34...............................................................................................................................2 Wis. Stat. § 6.86...............................................................................................................................2 Wis. Stat. § 6.87...............................................................................................................................2 Wis. Stat. § 6.87(2) ..........................................................................................................................2

v

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INTRODUCTION The original defendants do not oppose plaintiffs’ routine motion for leave to file their Second Amended Complaint (SAC) in this case that was commenced just two months ago. The intervening defendant Wisconsin Legislature, however, has unleashed a 40-page barrage of arguments, innuendo, and accusations that supposedly justify denying leave to amend at this early stage. See ECF No. 200 [hereafter “Opp.”].1 It is telling that the Legislature nowhere in those 40 pages quotes the underlying standard that governs here: “The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Instead, the Legislature tells the Court that Wisconsin “ran a successful statewide election on April 7,” despite “overwrought claims” to the contrary; argues that “any Election Day difficulties … were the result of irresponsible decisions made by high-ranking local officials”; and complains about “relentless attacks on our State from the national press” over the conduct of that election. Opp. at 1, 9, 35. These assertions are false, but their recitation helps illustrate how far the Legislature strays from arguments that the Court may properly consider at this juncture in the proceedings, when the factual assertions in plaintiffs’ proposed amended pleading must be accepted as true. Instead of accepting this blackletter standard, the Legislature spends the majority of its brief setting up a parallel factual universe, which even it seems to recognize may not be properly considered in deciding this motion. See id. at 3 n.1 (“explicitly ask[ing] this Court not to rely upon” the majority of the Legislature’s recitation of facts “in deciding the present Motion”). The Legislature also gravely mischaracterizes plaintiffs’ request for relief, falsely asserting that plaintiffs, through their pending motion for leave to amend, “now seek to enjoin nearly every election-integrity measure that Wisconsin has, as well as to install
1 The other two intervening defendants, the Republican National Committee and the Republican Party of Wisconsin, have joined in the Legislature’s opposition to plaintiffs’ motion for leave to amend, without offering any additional arguments of their own. See ECF No. 201.
1

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 8 of 34
this Court as the primary administrator of Wisconsin’s elections ‘until the COVID-19 crisis is over.’” Id. at 36 (citations omitted).
That is not, of course, even remotely what plaintiffs Democratic National Committee (DNC) and Democratic Party of Wisconsin (DPW) are seeking. As the Legislature acknowledges elsewhere in its brief, the proposed SAC, lodged at ECF No. 198-1, for the most part simply “reiterates the[] challenges” to the same five Wisconsin election-law statutes set forth in the original (ECF No. 1) and amended (ECF No. 55) complaints―i.e., Wis. Stats. §§ 6.28(1), 6.34, 6.86, 6.87, and 6.87(2) [hereafter the “Challenged Provisions”]. Opp. at 15. And the Legislature concedes the SAC “reasserts the same three claims that Plaintiffs brought before”―i.e., an Anderson-Burdick claim, a due process claim, and an equal protection claim. Id. The only new request is for injunctive relief requiring the defendants to take steps “to ensure an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner.” SAC ¶ 7; see also id. ¶¶ 9, 83.
The SAC and leave to file it are particularly appropriate here since the parties now have the benefit of lessons learned from the April 7 election and at least partial data about the actual impacts of some of the Challenged Provisions. The new pleading alleges in much more specific detail how these provisions operate to interfere unduly with voting, and it fine-tunes plaintiffs’ claims and requested relief to take account of the rulings over the past two months by this Court, the Seventh Circuit, and the Supreme Court. This is not a situation where plaintiffs filed a complaint and belatedly thought of new legal theories they could have included in the original pleading. Instead, the SAC is a direct outgrowth of new facts learned in the Spring Election. And plaintiffs timely moved for leave to amend very soon after the relevant data from that election―including data on the numbers of voters who were disenfranchised―became available.
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Why, then, does the Legislature object to this new pleading in its entirety? It claims (at 23, 22-34) that plaintiffs fail to allege even a single “plausible” claim, even though this Court already has awarded partial injunctive relief based on several of the same claims in the context of the April 7 election―relief that was upheld in part by the Seventh Circuit and the Supreme Court, and that resulted in over 80,000 Wisconsin voters being able to cast absentee ballots by April 7 and have their ballots counted provided they were received by the Monday following the election.2 See Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1061 (7th Cir. 2020) (“The right to vote is not just the right to put a ballot in a box but also the right to have one’s vote counted.”). The Legislature also argues that the entire SAC is either “moot” (to the extent it involves the April election) or not yet “ripe” (to the extent it involves the upcoming August and November elections). Opp. 2, 16-21, 39; but see Midrad, LLC v. Dane Cty., 676 F. Supp. 2d 795, 799 (W.D. Wis. 2009) (Crabb, J.) (“A claim cannot be moot and unripe at the same time because the two doctrines mean opposite things.”). And the Legislature claims, as it has several times before, that this Court must dismiss on Burford abstention grounds, contending that plaintiffs should be required to take their federal “constitutional issues or concerns raised here to the Wisconsin Supreme Court” by way of “a petition for an original action.” Opp. at 37 (emphasis added).
As noted above, the Legislature’s attempts to rewrite the facts of this case are not properly before this Court. But before turning to a point-by-point refutation of the Legislature’s arguments against granting leave to amend, plaintiffs briefly respond to the Legislature’s repeated claims that the April 7 election was “successful” and “refut[ed]” the plaintiffs’ pre-election “baseless,

2 The WEC’s May 15, 2020 report on absentee voting states that 79,054 ballots that were

mailed and postmarked by April 7 and received by election officials between April 8 and April 13

were

counted.

https://elections.wi.gov/sites/elections.wi.gov/files/2020-

05/April%202020%20Absentee%20Voting%20Report.pdf.

3

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 10 of 34
pessimistic predictions,” “overwrought claims,” and “failed, sky-will-fall predictions.” Opp. at 12. Simply put, the Legislature paints a picture of the election that cannot be sustained by reality. The conduct of the April 7 election was shameful―countless Wisconsin citizens had to choose between exercising their right to vote and risking exposure to the COVID-19 virus. The State of Wisconsin’s management of that election has been widely condemned throughout our country and abroad as a voting rights and public health fiasco, as detailed at length in the SAC at ¶¶ 1-3, 3474. Thousands were forced to stand in long lines for hours in order to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in the midst of the worst pandemic in over a century. As of the filing date of this reply, 71 in-person voters and poll workers have tested positive for COVID-19 statewide.3 The Legislature cites to two studies questioning the connection between in-person voting and COVID-19 cases. See Opp. at 79. There are other studies going the other way; one concludes that Wisconsin counties with more in-person voters per voting location―often counties with insufficient numbers of polling locations―had significantly higher rates of COVID-19 transmission after the election than counties with lower voter density.4 And due to the still insufficient lack of widespread testing, the significant spread by symptomless carriers, and the fact that Wisconsin announced on May 1 that it would stop attempting to determine whether or how many people contracted the virus as a result
3 David Wahlberg, 71 people who went to the polls on April 7 got COVID-19; tie to election uncertain, Wis. State Journal (May 16, 2020), https://madison.com/wsj/news/local/healthmed-fit/71-people-who-went-to-the-polls-on-april-7-got-covid-19-tie-to/article_ef5ab183-8e29579a-a52b-1de069c320c7.html?utm_medium=social&utm_source=email&utm_campaign=usershare.
4 Chad D. Cotti et al., The Relationship between In-Person Voting, Consolidated Polling Locations, and Absentee Voting on COVID-19: Evidence from the Wisconsin Primary, SSRN (May 10, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597233.
4

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of their participation in the election, we likely will never know the full extent of infection that followed.5
But regardless of how many voters and poll workers actually caught the coronavirus by participating in in-person voting in the Spring Election, the fears of contracting it and either becoming ill or becoming an unwitting carrier for its spread were both legitimate and wide-spread. We can only wonder how many people stayed home, couldn’t navigate the absentee ballot process, and simply did not vote because they could not or would not take the risk, rolling the dice on their health or the health of their loved ones or neighbors. There also were critical breakdowns in Wisconsin’s absentee-voting process, with thousands of voters never even receiving their requested ballots in time to vote by election day, thus forcing them either to go to the polls during the pandemic and risk exposure to the COVID-19 virus or be disenfranchised altogether. Over 14,000 absentee ballots that were received and returned were rejected for having “insufficient” witness certifications, and 2,659 more were rejected because they were not received by election officials until after the April 13 deadline for receipt.6 One investigation “into Wisconsin’s missing ballot crisis reveals a system leaking from all sides,” including through “[i]nadequate computer systems, overwhelmed clerks and misleading ballot information [that] hampered Wisconsin’s historic―and historically troubling―spring election.”7

5 Scott Bauer & Todd Richmond, No spike, but no certainty on fallout of Wisconsin election, StarTribune (May 6, 2020), https://www.startribune.com/no-spike-but-no-certainty-onfallout-of-wisconsin-election/570244112/.

6 J.R. Ross, 22,820 Wisconsin absentee ballots were rejected for various reasons, WISN

1130 (Apr. 18, 2020), https://newstalk1130.iheart.com/content/2020-04-18-22820-wisconsin-

absentee-ballots-were-rejected-for-various-reasons/;

see

also

https://elections.wi.gov/sites/elections.wi.gov/files/2020-

05/Exhibit%20A%20Absentee%20Voting%20Data%202016-2020.pdf

7 Daphne Chen et al., ‘They should have done something’: Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows, Milwaukee Journal Sentinel (Apr. 21,

5

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It is deeply disturbing how the Wisconsin Legislature treats voter safety, and equally disturbing that the Legislature views the conduct of the April 7 election as a “success.” That said, one of the things that was successful resulted directly from what the Legislature characterizes as plaintiffs’ “legal defeats” in the pre-primary proceedings before this Court, the Seventh Circuit, and the Supreme Court. In fact, it was plaintiffs’ success in this litigation that enabled nearly 80,000 Wisconsin voters to have their timely cast absentee ballots counted rather than summarily rejected under the election day receipt deadline. This Court’s injunctive relief allowed thousands of additional citizens to register on line and thereby avoid having to register in-person at the polls or an early voting site. But, here, too, the Legislature’s brief breaks companionship with reality, instead urging the Court to accept its alternative version of the facts, at a stage in the proceedings when the Court is obligated to accept plaintiffs’ well-pleaded facts as true. For all of the reasons that follow, plaintiffs’ motion for leave to file the SAC should be granted.
ARGUMENT IN REPLY A court may deny leave to amend a pleading under Rule 15(a)(2) “where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Holder v. Fraser Shipyards, Inc., 288 F. Supp. 3d 911, 933 (W.D. Wis. 2018). The Legislature relies on only one of these grounds: its argument that any amendment would be “futile.” But a proposed amended pleading is “futile” only if it would “fail[] to state a claim upon which relief can be granted” under Rule 12(b)(6). Runnion ex rel. Runnion v. Girl Scouts of Greater Chi., 786 F.3d 510, 524 (7th Cir. 2015). This Court has
2020), https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueledmultiple-failures/5156825002/. The investigation was conducted by the Milwaukee Journal Sentinel, the PBS series FRONTLINE, and Columbia Journalism Investigations.
6

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emphasized that the Rule 12(b)(6) inquiry does not allow for factfinding or the weighing of competing evidence:
[D]ismissal is warranted only if no recourse could be granted under any set of facts consistent with the allegations. … As this court has emphasized before, the motion to dismiss phase of proceedings ‘is not an opportunity for the court to find facts or weigh evidence.’ When reviewing a motion to dismiss under Rule 12(b)(6), the court must accept all well-pleaded factual allegations as true and draw all inferences in the light most favorable to the non-moving party. Tzakis v. Wright Med. Tech., Inc., No. 19-cv-545-wmc, 2020 WL 955016, at *2 (W.D. Wis. Feb. 27, 2020) (citations omitted); see also Mayr v. Husky Energy, Inc., No. 18-cv-917-wmc, 2019 WL 4849579, at *4 (W.D. Wis. Oct. 1, 2019). A claim “must include sufficient facts showing a plausible―not merely ‘conceivable’―entitlement to relief,” and may not rely on “sheer speculation” or “mere possibilit[ies]” of a legal violation. Taha v. Int’l Bhd. of Teamsters, Local 781, 947 F.3d 464, 469 (7th Cir. 2020) (citations omitted); see generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Unless it is certain from the face of the complaint that any amendment would be futile or otherwise unwarranted, the district court should grant leave to amend.” Runnion, 786 F.3d at 519-20 (emphasis in original). “[A]pplying the liberal standard for amending pleadings, especially in the early stages of a lawsuit, is the best way to ensure that cases will be decided justly and on their merits.” Id. at 520 (citations omitted). The Legislature argues that plaintiffs’ claims are “futile”―that they are either moot or unripe, that they fail to state a claim, and that they are barred under the Burford abstention doctrine, named after Burford v. Sun Oil Co., 319 U.S. 315 (1943). The Legislature also argues it is entitled to a stay. Plaintiffs address each of these arguments in turn.
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I. Plaintiffs’ Second Amended Complaint is not “futile” for lack of ripeness. Having previously argued that plaintiffs’ claims are moot, the Legislature now changes
course and argues they are not ripe because “they are based upon premature speculation” about the upcoming August and November elections. Opp. at 2; see id. at 16-21. This is the first time in this litigation the Legislature has ever raised a ripeness defense, even though plaintiffs clearly and repeatedly have made clear from the outset that they seek injunctive relief for “the upcoming April 7, 2020 [election], as well as other elections taking place during the COVID-19 crisis.” ECF No. 55 ¶ 44 (emphasis added); see also id. ¶ 7 (seeking relief for both the April 7 election and for “any election that occurs while this crisis continues”); id. at 19, ¶¶ C-E (asking for various injunctive relief to extend “until the COVID-19 crisis is over”).8
“A claim is ripe if it is fit for judicial decision and not resolving it will cause hardship to the plaintiff.” E.F. Transit, Inc. v. Cook, 878 F.3d 606, 610 (7th Cir. 2018) (citation omitted); see also Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (“Whether a claim is ripe for adjudication depends on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’”) (citations omitted); see generally Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). The Legislature repeatedly points to three supposedly “unripe” issues that, it says, require denial of leave to amend:
8 On the same day the Legislature first raised its ripeness defense in this Court―May 11―the Legislature also asked the Seventh Circuit not to dismiss the interlocutory appeals on mootness grounds so that the Legislature instead could raise its new ripeness arguments de novo on appeal. See Joint Status Report Regarding Mootness, Case No. 20-1538, Doc. 42, at 6-11. The Legislature argued that the Seventh Circuit should decide a variety of jurisdictional and substantive issues, “a decision [that] will help inform the district-court proceedings” by giving this Court “the benefit of [the Seventh Circuit’s] resolution of the purely legal issues that the Legislature intends to raise in this appeal, especially as to ripeness.” Id. at 9-10. The Seventh Circuit has now dismissed in their entirety the Legislature’s appeals from the preliminary injunction orders as moot.
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• It claims that “Plaintiffs ask this Court to speculate on the magnitude of the COVID19 pandemic in both August (after three months of summer) and November.” Opp. at 2; see id. (arguing that plaintiffs’ claims are “based upon premature speculation as to the state of the COVID-19 situation … months from now”); id. at 18 (questioning “[t]he future course of the COVID-19 pandemic in Wisconsin” and “the health risks that COVID-19 may cause during those elections”); id. at 20-21.
• It contends that, to resolve plaintiffs’ claims, this Court will need “to guess at the types of treatments that will or will not be available at those times” (i.e., the August and November elections). Opp. at 2; see also id. at 18 (suggesting that “treatments” may be “available” by then); id. at 21 (speculating about “the development of medical advances” between now and November).
• It argues that plaintiffs’ claims, most of which are addressed to the enforcement of plain statutory language, ask this Court “to predict the Wisconsin election procedures that will be in place by those months” (i.e., August and November). Id. at 2; see id. (“premature” to “speculat[e]” about “Wisconsin’s election administration months from now”); id. at 10 (“Whether, or how, Wisconsin may adjust its election administration in response to COVID-19 for the elections occurring in August and thereafter cannot be known at this time.”); id. at 19 (plaintiffs’ claims are based on speculation about “the election-administration landscape months into the future”); id. at 20-21.
As this Court has emphasized, the motion-to-dismiss stage “is not an opportunity for the court to find facts or weigh evidence.” Tzakis, 2020 WL 955016, *2. That said, on the scientific and public health merits, the Legislature has it backwards. It is the Legislature, not plaintiffs, that is engaged in “sheer speculation” and “mere possibilit[ies].” Taha, 947 F.3d at 469 (citations
9

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 16 of 34

omitted). Consider the facts. The federal government is preparing for the COVID-19 crisis to last
18 months and has repeatedly warned the pandemic could come in “multiple waves.”9 The
Director of the Centers for Disease Control and Prevention (CDC) recently warned that the country
may encounter a second, more deadly wave of COVID-19 in the fall, which will “be even more
difficult than the one we just went through.”10 Similarly, the Director of the National Institute of
Allergy and Infectious Diseases, Dr. Anthony Fauci, was asked at a White House press conference
whether the United States was “prepared for [coronavirus] to strike again, say, in the fall?” Dr.
Fauci responded, “[i]n fact, I would anticipate that that would actually happen because of the
degree of transmissibility.”11 And Dr. Rick Bright, who until last month was the Director of the
Biomedical Advanced Research and Development Authority, recently testified:
While it is terrifying to acknowledge the extent of the challenge that we currently confront, the undeniable fact is there will be a resurgence of the COVID19 this fall, greatly compounding the challenges of seasonal influenza and putting an unprecedented strain on our health care system. Without clear planning and implementation of the steps that I and other experts have outlined, 2020 will be the darkest winter in modern history.12

9 Peter Baker et al., U.S. Virus Plan Anticipates 18-Month Pandemic and Widespread

Shortages,

New

York

Times

(Mar.

17,

2020),

https://www.nytimes.com/2020/03/17/us/politics/trump-coronavirus-plan.html.

10 Zack Budryk, CDC director warns second wave of coronavirus might be ‘more difficult’, The Hill (Apr. 21, 2020), https://thehill.com/policy/healthcare/493973-cdc-director-warnssecond-wave-of-coronavirus-might-be-more-difficult.

11 The White House, Remarks by President Trump and Members of the Coronavirus Task Force in a Press Briefing (Mar. 30, 2020), https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-members-coronavirus-task-force-press-briefing/.

12 Statement of Rick Bright, Ph.D., Scientific Integrity in the COVID-19 Response at 3, House Committee on Energy and Commerce, Subcommittee on Health (May 14, 2020), https://energycommerce.house.gov/sites/democrats.energycommerce.house.gov/files/documents/ 200511 Testimony of Dr. Rick BrightRevised.pdf. Dr. Bright also served until recently as the Deputy Assistant Secretary for Preparedness and Response in the U.S. Department of Health and Human Services. Id.

10

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 17 of 34

Numerous other authorities are projecting “recurrent wintertime outbreaks” and the potential need for “prolonged or intermittent social distancing … into 2022.”13 Moreover, a recent modeling study by the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota found that seven of the eight most recent pandemics “had a second substantial peak about six months after the first one,” with some having “smaller waves of cases over the course of 2 years” after the initial outbreak.14
The Legislature’s suggestions that the pandemic might be over by the time of the August and November elections, or that there might be effective and available “treatments” by then, are sheer fantasy―and irresponsible. In any event, the factual and expert testimony in this litigation will establish that the Legislature is wrong. The human health and voting rights dangers are clear, present, and urgent. The Legislature is free to dismiss these warnings as “pessimistic” and “skywill-fall predictions” (Opp. at 1-2), but it cannot require a dismissal simply because it disagrees and believes the danger might be over by November, or even August. And it cannot, contrary to the evidence, require dismissal by speculating there might be “treatments” for COVID-19 by August and November that will alleviate the dangers.15 At the very least, these are precisely the

13 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through

the

postpandemic

period,

Science

(Apr.

14,

2020),

https://science.sciencemag.org/content/early/2020/05/11/science.abb5793.

14 Christopher Brito, New report says coronavirus pandemic could last for two years – and may not subside until 70% of the population has immunity, CBS News (May 4, 2020), https://www.cbsnews.com/news/coronavirus-pandemic-update-two-years-70-percent-immunity/.

15 The CDC emphasizes on its website that “[t]here is currently no vaccine to prevent coronavirus disease 2019 (COVID-19).” CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html#:~:text=There%20is%20currently%20no%20vaccine,%2Dto%2Dperson (last visited May 18, 2020). The Mayo Clinic website reports that, “[r]ealistically, a vaccine will take 12 to 18 months or longer to develop and test in human clinical trials,” and that “we don't know yet whether an effective vaccine is possible for this virus.” Mayo Clinic, COVID-19 (coronavirus) vaccine: Get the facts, https://www.mayoclinic.org/diseases-

11

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kinds of arguments that will require this Court “to find facts [and] weigh evidence,” thereby
precluding a Rule 12(b)(6) dismissal. Tzakis, 2020 WL 955016, at *2.16
As for the Legislature’s repeated insistence that plaintiffs are simply speculating about
what Wisconsin’s “election administration” and “procedures” will be like three to six months from
now, most of plaintiffs’ case continues to focus on the application and enforcement of five statutory
provisions in the upcoming elections. No one has suggested those statutes might be repealed or
amended in the next several months. Nor has anyone suggested these statutes might go
unenforced. The WEC took the position last time around that it has no authority to bend or relax
these clear statutory requirements, ECF No. 37 at 17 n.12, and there is no reason to believe the
Commission will believe any differently now. It is the Legislature itself that can change those
requirements, and it has shown no inclination to do so.
conditions/coronavirus/in-depth/coronavirus-vaccine/art-20484859 (last visited May 18, 2020). 16 The Legislature claims that the DNC is planning to proceed with its national convention
in Milwaukee as usual in August, Opp. at 2; see also id. at 12, which supposedly shows that the plaintiffs don’t believe what they are arguing here. But the convention already has been postponed from July to August, and the Democratic National Convention Committee has committed to proceeding with a convention that “protects the health of participants” and “is in line with public health recommendations.” Letter from Tom Perez to Fellow DNC Members at 1, https://wiki.democratsabroad.org/download/attachments/53217234/TEP%20Cover%20Letter%2 0to%20DNC%20Members.pdf?version=1&modificationDate=1589612114000&api=v2 (last visited May 18, 2020). The Committee has repeatedly recognized the importance of the health and safety of Convention participants, and the DNC will be prepared to take any steps necessary to protect the safety and wellbeing of its members, delegates, and the general public. Accordingly, the Committee is now seeking from DNC members the authority “to be flexible during the pandemic,” including allowing work done “by the rules, platform and credentials committees . . . be done in different formats.” Bill Glauber, 2020 DNC: Resolution will give local team authority to change format, size, dates of Milwaukee convention, Milwaukee Journal-Sentinel (May 11, 2020), https://www.jsonline.com/story/news/politics/elections/2020/05/11/dnc-organizers-gainflexibility-run-milwaukee-convention/3112747001/. This public health-minded flexibility is nearperfectly aligned with the relief plaintiffs seek here for the voters of Wisconsin—civic engagement without the fear of contracting a deadly virus.
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The Fourth Circuit’s decision in Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), is illustrative. The case involved a Republican challenge to Virginia’s open primary law, which would allow Democrats to vote in the Republican primary in the event there was a primary contest. The challenge was filed in April 2005, two years before the potential primary would take place in the event that two Republican candidates ran against each other. The district court dismissed on ripeness grounds because there were too many uncertainties and contingencies about an election two years away. But the Fourth Circuit reversed, even though it recognized there may not even be a primary in 2007 because there might only be one candidate. Id. at 319. The Fourth Circuit found that waiting until then “would provide insufficient time to decide the case” and would “seriously disrupt the election process.” Id. at 319, 321; see also id. at 319 (“The primary election likely would be resolved before an action brought that late could reach final decision.”); id. at 320 (“Providing only thirty days for briefing, argument, and decision of a novel constitutional question before the courts is troublesome.”). Since there was nothing to “suggest[] that the open primary law will not be enforced,” and since important First Amendment voting rights were in issue, the Fourth Circuit “remanded for consideration of the merits.” Id. at 321 (emphasis added).
Where there is “no doubt” that a registration or voting requirement will be enforced and the challenge involves “predominantly legal questions,” courts have routinely recognized that voting rights plaintiffs need not wait until the requirement is actually enforced because “there may not be enough time to reach a decision on the merits before the actual election.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1164 (11th Cir. 2008). Although plaintiffs must show “imminent harm” to establish ripeness, “imminence” is “somewhat elastic,” requiring “only that the anticipated injury occur with[in] some fixed period of time in the future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or
13

Case: 3:20-cv-00249-wmc Document #: 203 Filed: 05/18/20 Page 20 of 34
months.” Id. at 1161 (citation omitted); see also Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 943 (W.D. Va. 2018) (finding relaxed ripeness principles “apply with particular force to cases involving election laws”); Utah Republican Party v. Herbert, 144 F. Supp. 3d 1263, 1272 (D. Utah 2015) (finding challenge to newly enacted election law was ripe even though an election had not yet been conducted under the new law and “it is uncertain exactly how [the new law] would affect the upcoming election,” where the application of the law was “inevitable”).
To the extent that plaintiffs are challenging the WEC’s failure to take action where it has the authority and discretion to do so, the Legislature’s response similarly fails. The Legislature’s argument boils down to repeated assurances throughout its 40-page brief that the Commission is busily “studying,” “investigating,” and “assessing” various options; that it “may choose” to take action or may not, something that “cannot be known at this time”; and that Article III ripeness doctrine requires this Court “to hold off on the matter” until the WEC “sharpens the issue” by “clarify[ing]” what, if anything, it will do avoid another trainwreck like the one that occurred on April 7, 2020. Opp. at 10, 12, 16-17, 19, 21, 35.
We have seen this movie before. As this Court put it on April 2, “the only direction from an equally split group of Commissioners to the Administrator and her staff is to do the best they can in conducting a safe, in-person election.” ECF No. 170 at 34; see id. at 36 (“As much as the court would prefer that the Wisconsin Legislature and Governor consider the public health ahead of any political considerations, that does not appear in the cards.”). This gridlock has continued since the election. For example, the WEC refused on a 3-3 vote even to adopt uniform standards for implementing the “postmark requirement” that the Supreme Court majority had imposed, thus leaving those issues to hundreds of local election officials who, the record will show, followed
14

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inconsistent rules and practices. SAC ¶ 95. Thousands of absentee ballots were rejected over perceived postmark problems, most of them no fault of the individual voters.17
The newly introduced “ripeness” defense is especially galling because the August primary is only about three months away, and the November general election comes only three months after that. If plaintiffs’ challenges are deemed “unripe” at this moment and we must wait several more months while they ripen, there can be no doubt that the Legislature will then turn around and raise a Purcell defense that it is too late to make any changes before those elections. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300-01 n.12 (1979) (“Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment.”). The Legislature appears to seek a rule in which it is always either “too soon” or “too late” when it comes to the enforcement of constitutionally protected voting rights―where voting rights suits are either not yet ripe or have become moot. Compare Midrad, LLC, 676 F.Supp.2d at 799 (“A claim cannot be moot and unripe at the same time because the two doctrines mean opposite things.”).
17 Amy Gardner et al., Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions, The Washington Post (May 3, 2020), https://www.washingtonpost.com/politics/unexpected-outcome-in-wisconsintens-of-thousands-of-ballots-that-arrived-after-voting-day-were-counted-thanks-to-courtdecisions/2020/05/03/20c036f0-8a59-11ea-9dfd-990f9dcc71fc_story.html. If the WEC does take further steps, depending on what they are they might moot one or more of plaintiffs’ claims. Plaintiffs would welcome such action by the WEC. But the fact that the WEC might do what plaintiffs what it to do in the future is no reason to prohibit plaintiffs from bringing suit and litigating their claims now. There is always a chance in election law cases that state officials might change course and agree to changes, but that does not mean a challenge is not ripe because the defendants might moot it in the future.
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II. Plaintiffs’ Second Amended Complaint is not “futile” for failure to state a claim. A. The Anderson-Burdick claim is not futile. Begin with the obvious question: How can the Legislature call the Anderson-Burdick claim
“futile” when the prior, virtually identical version of that same claim resulted in an order enjoining in part several of the Challenged Provisions, injunctive relief that was narrowed on appeal by both the Seventh Circuit and Supreme Court but even after that enabled nearly 80,000 Wisconsin voters to cast absentee ballots on or before April 7 and have those ballots counted (if received by April 13)? A claim that saved the votes of at least 79,054 Wisconsin citizens is not a “futile” claim.
As this Court discussed in its April 2 Opinion and Order: Under the Anderson-Burdick standard, the court must (1) determine the extent of the burden imposed by the challenged provision; (2) evaluate the interest that the state offers to justify that burden; and (3) judge whether the interest justifies the burden. When voting rights are severely restricted, a law must be narrowly drawn to advance a state interest of compelling importance. But even slight burdens must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation. ECF No. 170 at 27 (citations and quotation marks omitted); see Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). This is a “flexible” balancing standard, one in which a court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). Multi-factor balancing standards and sliding-scale analyses are, by their very nature, generally inappropriate for Rule 12(b)(6) dismissal for failure to state a claim. This Court’s decision in Mayr, 2019 WL 4849579, illustrates the point. Defendants moved under Rule 12(b)(6)
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to dismiss a complaint alleging they had engaged in “abnormally dangerous” activities, a legal determination that turns on the balancing of a variety of factors (e.g., “the degree of risk, the likelihood of harm, the ability to eliminate the risk with the exercise of reasonable care, and the value of the activity to the community, among other factors”). Id. at *3. This Court denied the motion to dismiss, emphasizing it was “distinctly ill-informed to engage in this inquiry, much less undertake to balance the relevant factors,” to determine whether the challenged activity was “extrahazardous” in the absence of “a developed evidentiary record following discovery.” Id. at *4; see also Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014) (“fact-intensive” balancing analysis “does not easily lend itself to dismissal on a Rule 12(b)(6) motion”); Decotiis v. Whittemore, 635 F.3d 22, 35 n.15 (1st Cir. 2011) (same).
The Anderson-Burdick analysis is similarly ill-suited for Rule 12(b)(6) dismissal, especially in cases where the burdens are severe. Soltysik v. Padilla, 910 F.3d 438 (9th Cir. 2018), is closely on point. A Socialist candidate for local office challenged California’s requirement that his name appear on the primary ballot with the label “Party Preference: None,” despite his demand to be labeled a member of the Socialist Party USA, because that party was not a “qualified political party” under California law. Id. at 442. Under this regime, a candidate could use party-preference labels like Democratic, Republican, Green, Libertarian, and a few others because they were “qualified,” but not other parties’ labels because they were not “qualified.” Mr. Soltysik brought an Anderson-Burdick suit under the First and Fourteenth Amendments, but the district court dismissed under Rule 12((b)(6). The Ninth Circuit reversed, emphasizing that the AndersonBurdick balancing analysis does not lend itself to dismissals on the pleadings. “[W]ithout any factual record at this stage, we cannot say that the Secretary’s justifications outweigh the constitutional burdens on Soltysik as a matter of law.” Id. at 447. Anderson-Burdick’s “sliding-
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scale, ‘means-end fit analysis’” usually requires a “fully developed evidentiary record.” Id. at 44748.18
The Legislature tries to sweep this fact-bound balancing inquiry aside by insisting that the facts are clear and there is nothing to be balanced—that the burdens on plaintiffs are “insubstantial” and not “meaningful,” whereas the State’s interests are “compelling” and “substantial, as a matter of law.” Opp. at 23-28 (emphasis added). This Court rejected similar arguments before and the Legislature has presented no reason why it should not do so again.
Further, nothing in the prior rulings in this case makes it “futile” to request the relief specified in the SAC. While it is true that, with regard to some of plaintiffs’ claims, this Court and the Seventh Circuit expressed some skepticism, it was in the context of a very fast TRO/preliminary injunction schedule having no preclusive effect on the merits. And the Seventh Circuit’s stay of this Court’s partial relief from the statutory witness certification requirement did not foreclose further relief from that requirement. Instead, the Seventh Circuit held that “the district court did not give adequate consideration to the state’s interests in suspending this requirement,” and expressed “concern[] with the overbreadth of the district court’s order, which categorically eliminates the witness requirement[.]” Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546, Doc. No. 30 at 3 (7th Cir. Apr. 3, 2020), stayed in part on other grounds, 140 S. Ct. 1205 (2020). The Seventh Circuit emphasized there may be “other ways for voters to satisfy the statutory signature requirement (if possible, for example, by maintaining the
18 The Ninth Circuit distinguished Soltysik in Tedards v. Ducey, 951 F.3d 1041 (9th Cir. 2020), on the ground that, “compared to the burden at issue here, the burden in Soltysik fell higher on the Burdick sliding scale between ‘reasonable, nondiscriminatory’ and ‘severe.’” Id. at 445-46. Like the burden in Soltysik, the burdens here are “severe”; they include potential if not actual disenfranchisement as well as potential exposure (as well as the fear of potential exposure) to the COVID-19 virus.
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statutory presence requirement but not requiring the witness’s physical signature).” Id. at 4. Thus, the witness certification challenge remains entirely “plausible” under Rules 12(b)(6) and 15(a)(2) and may now be evaluated on a fuller evidentiary record as these proceedings move forward, including using the actual April 7 election data. Over 14,000 absentee ballots were rejected for lack of proper certifications.19 There is no basis for foreclosing plaintiffs from pursuing this claim (or any of the other claims contained in the SAC). This Court will ultimately have to decide whether plaintiffs can succeed on their proof, but this is neither the time nor the place to prejudge their likelihood of doing so.
B. The due process claim is not futile. The Legislature’s lead argument for why the plaintiffs’ due process claim is supposedly “futile” is that it is “wholly duplicative of their Anderson/Burdick right-to-vote claim under the First and Fourteenth Amendments[.]” Opp. at 31. This Court suggested in a footnote in its April 2 Opinion and Order that due process concerns “are properly addressed within the more specific Anderson-Burdick framework.” ECF No. 170 at 27 n.13. But plaintiffs do not read the Court to have said it is “futile” to include a due process claim, especially since it is common practice to plead constitutional violations on alternative grounds simply to avoid inadvertent waiver. It may be that, on a fully developed evidentiary record, this Court concludes that relief under AndersonBurdick fully encompasses any relief to which plaintiffs may be entitled under the Fourteenth Amendment’s due process clause, but that does not mean it is “futile” to include a due process claim in an amended pleading.
19 See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020, Wis. Elections Comm’n, https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf (last visited May 18, 2020).
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The due process claim rests on discrete, longstanding protections embodied in the Fourteenth Amendment. “[D]ue process … requires that the state accomplish [the regulation of the electoral process] narrowly and fairly to avoid obstructing and diluting” fundamental liberties. Briscoe v. Kusper, 435 F.2d 1046, 1054 (7th Cir. 1970). Among those fundamental liberties is the right to vote. See Burdick, 504 U.S. at 433 (“It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’”) (citation omitted); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“The . . . political franchise of voting . . . is regarded as a fundamental political right, because [it is] preservative of all rights.”).
Nor is plaintiffs’ procedural due process claim futile under the three-part framework of Mathews v. Eldridge, 424 U.S. 319 (1976), in which this Court must determine “the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335.
The right to vote is unquestionably a liberty interest that cannot be “confiscated without due process.” Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990). This liberty interest extends to by-mail voting in Wisconsin. See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d 202, 215 (D.N.H. 2018) (“voter has a sufficient liberty interest once ‘the State permits voters to vote absentee.’”) (citation omitted)). Moreover, the degree of deprivation resulting from the Challenged Provisions is extraordinarily high. This deprivation is neither hypothetical nor speculative. The April 7 election resulted in thousands of Wisconsinites being deprived of their liberty interest in voting because of one or more of the Challenged Provisions.
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The Challenged Provisions are neither fair nor reliable in the context of a simmering global pandemic. The administrative burden on Wisconsin in modifying the proof of residency requirement and extending the deadline for by-mail voter registrations, modifying the photo identification requirement for absentee ballot applications, modifying the absentee witness requirement, and extending the time in which a likely avalanche of absentee ballots may be received and counted is marginal compared to the deprived liberty interest. Mathews, 424 U.S. at 335. In short, plaintiffs’ procedural due process claim is the opposite of futile—it is necessary to ensure that every Wisconsin voter has adequate notice and opportunity to vindicate their liberty interests in voting.
C. The equal protection claim is not futile. The Legislature suggests that the equal protection principles embodied in Bush v. Gore, 531 U.S. 98 (2000), apply to only “the one election” involved there. Opp. at 32 (quotation marks and citation omitted). Nonsense. Courts repeatedly have relied on the equal protection principles enunciated in Bush v. Gore in a variety of election law circumstances. See, e.g., Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir. 2016) (redistricting); Obama for Am. v. Husted, 697 F.3d 423, 428–29 (6th Cir. 2012) (restrictions on early voting); Fla. State Conference of N.A.A.C.P., 522 F.3d at 1185–86 (Barkett, J., concurring in part) (voter registration). Equally untenable is the Legislature’s argument that the equal protection principles of Bush v. Gore are “concerned with the unequal treatment of ballots,” as opposed to the “arbitrary and disparate treatment of voters” themselves. Opp. at 33. But ballots are the means by which eligible voters express their will. Framed in terms of “ballots,” the injuries alleged in this case include:
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• Over 9,300 absentee ballots that were timely requested but not even mailed out by election officials as of election day, and an untold number of additional absentee ballots
that were mailed out too late to be received by the voters by election day;
• Over 14,000 ballots that were rejected for lack of witness certifications or improper/incomplete certifications;
• Thousands of ballots rejected under the “postmark rule,” which is interpreted differently and enforced unevenly among local voting officials; and
• Nearly 80.000 ballots that were cast by voters on or before election day that would have
been discarded because they were not received by the election day deadline, had it not
been for this Court’s preliminary injunction enabling those ballots to be counted.
The Legislature claims that “Plaintiffs have not pointed to any election procedures relevant to the forthcoming 2020 elections that are insufficiently uniform to violate the guarantee of equal
treatment.” Opp. at 32. But the face of the SAC shows otherwise:
The April 7 election abounded with many examples of unfair, unequal, and disparate treatment of Wisconsin voters depending on where they live. Safe and sufficient in-person registration, absentee voting, and election-day voting opportunities were available to some Wisconsin voters but not to others, depending on where they resided. Voters of color and the urban poor were disproportionately denied sufficient opportunities for safe in-person registration, early voting, and election-day voting. Similarly, the application of the documentation requirements for registering to vote and requesting an absentee ballot varied broadly across cities and counties, resulting in some voters being subject to these requirements while others were not. Voters also received conflicting guidance on the witness requirement for absentee ballots depending on where they lived and who they called.
SAC ¶ 94 (numerous evidentiary record cites omitted). The Legislature’s response entirely ignores
these well-pled allegations of disparate treatment and impacts.
The SAC also details how a divided WEC was unable to agree on standards to govern the
many situations in which absentee ballots were returned to local election officials by the Postal
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Service with either no postmarks at all, postmarks without dates, or illegible postmarks, leaving local election officials to make these decisions themselves exercising standardless discretion. Id. ¶ 95. The SAC also alleges that the “indefinitely confined” exception to many of the absentee voting restrictions and conditions is disparately defined and enforced by local elections officials. Id. ¶ 96. Respectfully, these are “plausible” allegations and easily pass muster under Rule 15(a)(2)’s liberal amendment standards. III. Plaintiffs’ Second Amended Complaint is not “futile” on Burford abstention grounds.
The Legislature’s Burford abstention defense grows increasingly shopworn every time it is raised. “[T]he power to dismiss recognized in Burford represents an ‘extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (citations and quotation marks omitted). Burford gives a court the discretion, but not the obligation, to dismiss a federal case in exceptional circumstances where it unduly interferes with “complex state administrative processes.” Id. at 727. It is a sharply limited exception to the “virtually unflagging obligation” of federal courts “to exercise the jurisdiction given them”; abstention always is “the exception, not the rule.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817 (1976).
Since Burford is a discretionary doctrine, there is no way plaintiffs’ federal constitutional claims can be deemed “futile” at the leave-to-amend stage simply because this Court might, after full consideration, decide to exercise its “narrow” discretion under Burford to abstain. And the Legislature’s futility argument is especially strained given that this Court already has ruled unambiguously that “Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights.” 2020 WL 1320819, at **7-8 n.12. The Legislature argues that the Court’s earlier rejection of Burford is distinguishable because of “‘the narrow relief [that was]
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fashioned by this court,’” whereas here plaintiffs are seeking “to install this Court as the primary
administrator of Wisconsin’s elections ‘until the COVID-19 crisis is over.’” Opp. at 36 (citation
omitted). That of course is not what plaintiffs are seeking, and that is not how the Legislature has
characterized this Court’s earlier relief in its filings with the Seventh Circuit and the Supreme Court.20 To reiterate, plaintiffs’ proposed SAC includes the same challenges to the same statutes
based on the same claims as before, with only a few additional requests for relief.
The Legislature also argues that this Court, in its previous Burford ruling, operated on the
“faulty premise” that plaintiffs could not obtain state court review of any WEC action or inaction
in a sufficiently timely manner. Opp. at 37. The Legislature explains “[t]here is nothing stopping
Plaintiffs, or any other parties, from … bringing any of the constitutional issues or concerns raised
here to the Wisconsin Supreme Court” by way of “a petition for an original action,” which the
Legislature has used to obtain lightning-fast action on several occasions during the current
pandemic. Id. at 37.
The suggestion that federal voting rights claims should be entrusted to the Wisconsin
Supreme Court through the device of original actions is, to put things mildly, a non-starter for
20 See, e.g., Wisconsin Legislature’s Emergency Motion to Stay the Preliminary Injunction and for an Administrative Stay, Seventh Cir. No. 20-1539, Doc. 4-1 at 2, 9, 16-17 (Apr. 2, 2020) (accusing this Court of granting relief “that had not even been suggested by any party, let alone subject to any adversarial testing”; of engaging in a “belated judicial rewrite of Wisconsin’s voting laws”; and of reaching “[i]ndefensible” and “inexplicable” results); Emergency Application for Stay, SCOTUS No. 19A1016 at 1-2, 7-8, 14, 18-19 (Apr. 4, 2020) (repeatedly accusing this Court of granting relief that “no party asked the court to grant” and of going “far beyond” plaintiffs’ requests). These mischaracterizations swayed five Justices in their per curiam decision on April 6 (the day before the election), which chided this Court for “unilaterally order[ing]” relief that had not been requested and “on its own” granting “extraordinary relief [that] would fundamentally alter the nature of the election.” Democratic Nat’l Comm. v. Republican Nat’l Comm., 140 S. Ct. 1205, 1207-08 (2020). Plaintiffs emphasized this was a gross mischaracterization because they had very clearly requested the relief granted by the Court, a point that was also emphasized in the dissent. Id. at 1210 (Ginsburg, J., dissenting).
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several reasons. Just because a State has an administrative process like the WEC’s regulation of elections and state court review of regulatory decisions does not suggest that federal abstention is appropriate. “While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362 (1989); see also Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (“the mere existence of a statewide regulatory regime is not sufficient” for Burford to apply).
Moreover, to the extent the Legislature claims the exercise of federal jurisdiction over federal claims would disrupt its “efforts to establish a coherent policy with respect to a matter of substantial public concern,” Opp. at 34 (citation omitted), Burford abstention requires not only the existence of a state forum “in which claims may be litigated,” but also that the state forum “be special―it must stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.” Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir. 1991). The “specialized tribunal” must have “exclusive jurisdiction over the matter.” Wis. Term Limits v. League of Wis. Municipalities, 880 F Supp. 1256, 1261 (E.D. Wis. 1994) (emphasis added). These requirements are “a prerequisite of, not a factor in,” this type of Burford abstention. Property & Cas., 936 F.2d at 323 (emphasis added); see also Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d 517, 534-35 (7th Cir. 2018). Neither the WEC, Wisconsin’s courts of general jurisdiction, nor (especially) the Wisconsin Supreme Court meet these mandatory criteria for Burford abstention, particularly with respect to federal constitutional claims. They are neither “specialized tribunal[s]” nor do they have “exclusive jurisdiction” over voting rights issues.
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There is another dispositive reason for rejecting Burford abstention once again: This is
precisely the type of case in which the “strong federal interest in having certain classes of cases,
and certain federal rights, adjudicated in federal court” outweighs any alleged countervailing state
interests. Quackenbush, 517 U.S. at 728. “[T]he federal issues in this case eclipse any state issues
that might arise.” Hammer, 905 F.3d at 532. The Seventh Circuit and numerous other courts have
emphasized that, where the issue is a State’s “adherence” to federal constitutional requirements
regarding voting rights, “Burford abstention is inapplicable.” Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130, 1136 (7th Cir. 1981) (reapportionment claim).21 This Court should,
once again, reject the Legislature’s Burford abstention defense and decline to leave plaintiffs’
federal constitutional claims to the tender mercies of the Wisconsin Supreme Court.
In response to all of the decisions plaintiffs have cited rejecting Burford abstention in
election law cases dealing with federal rights, the Legislature has combed through the case law
and finally come up with a decision supposedly going the other way, which it reported to the Court
in another filing today: Seider v. Hutchison, No. 3:06CV215, 2007 WL 320964 (E.D. Tenn. Jan.
30, 2007), aff’d in part, rev’d in part, and remanded, 296 F. App’x 517 (6th Cir. 2008); see ECF
21 See also Harman v. Forssenius, 380 U.S. 528, 537 (1965); Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000) (“voting rights cases are particularly inappropriate for abstention”); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981) (abstention inappropriate where the issue was “nothing less than the fundamental right to vote”); Edwards v. Sammons, 437 F.2d 1240, 1244 (5th Cir. 1971) (“We take Harman v. Forssenius to mean that the delay which follows from abstention is not to be countenanced in cases involving such a strong national interest as the right to vote.”); League of Women Voters of Fla., Inc. v. Detzner, 354 F. Supp. 3d 1280, 1283 (N.D. Fla. 2018) (“Federal courts do not abstain when voting rights are alleged to be violated.”); Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935, 943 (W.D. Mich. 2016) (Burford abstention inappropriate in federal voting rights case that “does not involve a state law claim” and seeks to protect federally guaranteed rights; “federal review of similar cases has never been overly disruptive of state efforts to develop a coherent voting policy”); Bogaert v. Land, 675 F. Supp. 2d 742, 747 (W.D. Mich. 2009) (citing additional cases holding that Burford abstention is “wholly inapplicable” to federal constitutional challenges to state election laws).
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No. 202 at 6. Seider has nothing to do with our case. The dispute involved how to implement a Tennessee Supreme Court decision upholding, under the Tennessee Constitution, the validity of the term limits provision of the Knox County Charter. Several county officials had to leave office as a result of this decision through a transition process defined in the state supreme court’s decision, and Knox County was implementing this process. It was in that context that a federal judge exercised his discretion to abstain under Burford because the dispute “deals primarily with state law issues” and the “federal issues presented by [the] case are minor when considered within the larger context of the case as a whole.” 2007 WL 320964, at *2. The plaintiff’s action, after all, was grounded on the Knox County Charter’s term limits provision. Id. Thereafter, the Sixth Circuit expressly rejected the district court’s Burford analysis and instead dismissed the case as moot. See 296 F. App’x at 518. If this overruled Tennessee district court decision somehow helps the Legislature here, plaintiffs fail to see how. The cases before this Court seek to enforce federal constitutional rights, not state or local laws; the federal issues here are not “minor,” but transcendent. IV. This Court should not stay proceedings in this case.
The final part of the Legislature’s brief in opposition has nothing to do with the pending motion for leave to file the SAC. Instead, without bothering to file a motion to stay proceedings, the Legislature argues it would be “advisable” for this Court, apparently on its own motion, to “stay this case” in its entirety “[u]ntil [t]he Seventh Circuit [c]ompletes [i]ts [w]ork” in the interlocutory appeals from this Court’s April 2 and 3 preliminary injunction orders. Opp. at 37, 39. The Legislature reasons that the interlocutory appeals “may well resolve many of the core disputes between the parties.” Id. at 39. The Seventh Circuit has now completed its work, dismissing the interlocutory appeals as moot in their entirety on May 14. Thus, the Legislature’s
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suggestion is itself moot. These proceedings should now move forward, and this Court should
begin that process by denying the Legislature’s pending motion to dismiss (ECF No. 197) and
granting plaintiffs’ motion for leave to file their proposed SAC (ECF No. 198).
CONCLUSION
Because the interests of justice favor leave to amend, this Court should grant plaintiffs’
motion and order that the SAC (ECF No. 198-1) be accepted for filing.
Dated this 18th day of May, 2020.
Respectfully submitted,
/s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com SShah@perkinscoie.com
Counsel for the Plaintiffs
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 Case: 3:20-cv-00249-wmc Document #: 206 Filed: 05/26/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants,
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants

Case No. 20- CV-249

SYLVIA GEAR, et al.,
Plaintiffs, v.
DEAN KNUDSON, et al
Defendants,
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants.

Case No. 20- CV-278

1

Case: 3:20-cv-00249-wmc Document #: 206 Filed: 05/26/20 Page 2 of 3

REVEREND GREG LEWIS, et al.,
Plaintiffs, v.
DEAN KNUDSON, et al.,
Defendants.
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants.

Case No. 20- CV-284

DEFENDANTS DEAN KNUDSEN, JULIE M. GLANCEY, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, ANN S. JACOBS, MARGE BOSTELMANN AND MEAGAN WOLFE NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT GEAR, et al. v. KNUDSON, et al. – CASE NO. 20 CV 278

PLEASE TAKE NOTICE, the above-named defendants, WEC Commissioners
Bostelmann, Glancey, Jacobs, Knudsen, Spindell and Thomsen, and WEC Administrator Wolfe,
the individuals being sued in their official capacity, will move for an order dismissing them
pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. Proc. from Gear, et al. v. Knudson, et al. as
soon this matter may be heard. The bases for this motion are set forth in the attached memorandum
in support of the motion to dismiss.
Respectfully submitted this 26th day of May, 2020.
/s/ Dixon R. Gahnz Dixon R. Gahnz, SBN: 1024367 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375 Daniel S. Lenz, SBN: 1082058

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LAWTON & CATES, S.C. 345 W. Washington Ave., Suite 201 PO Box 2965 Madison, WI 53701-2965 PH: 608-282-6200 Fax: 608-282-6252 dgahnz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com dlenz@lawtoncates.com Attorneys for Defendants Wisconsin Elections Commission, WEC Commissioners Bostelmann, Glancey, Jacobs, Knudsen, Spindell and Thomsen, and WEC Administrator Wolfe
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Case: 3:20-cv-00249-wmc Document #: 207 Filed: 05/26/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs, v.
MARGE BOSTELMANN, et al.,
Defendants,
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants

Case No. 20- CV-249

SYLVIA GEAR, et al.,
Plaintiffs, v.
DEAN KNUDSON, et al
Defendants,
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants.

Case No. 20- CV-278

1

Case: 3:20-cv-00249-wmc Document #: 207 Filed: 05/26/20 Page 2 of 5

REVEREND GREG LEWIS, et al.,
Plaintiffs, v.
DEAN KNUDSON, et al.,
Defendants.
and
REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,
Intervening Defendants.

Case No. 20- CV-284

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS GEAR, et al. v. KNUDSON, et al. – CASE NO. 20 CV 278
The defendants, Dean Knudson, Julie Glancey, Robert Spindell, Jr., Mark Thomsen, Ann Jacobs, Marge Bostelmann and Meagan Wolfe by their attorneys Lawton & Cates, S.C. move to dismiss the complaint in Gear, et al. v. Knudson, et al. pursuant to FRCP 12 (b)(1) and (6). The defendants move to dismiss the complaint on the grounds that it is moot.
The complaint requested relief related to the April 7, 2020 Spring election. (Dkt. 1 Prayer for Relief). That election has passed and there is no basis to continue this action. In addition, the complaint seeks relief for the duration of Governor Evers’s Emergency order #12 and any extensions thereof. On May 13, 2020 the Wisconsin Supreme Court invalidated the safer at home order that was in effect at the time. Wisconsin Legislature v. Palm, 2020 WI 42. Finally, the issues raised in the complaint have been litigated and decided.

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Case: 3:20-cv-00249-wmc Document #: 207 Filed: 05/26/20 Page 3 of 5
“A case is moot when it no longer presents a live case or controversy”. Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). The court in Stone v. Bd. Election Comm’rs for City of Chicago, 643 F. 3d 543, 544 (7th Cir. 2011) held that once an election has occurred requests for injunctive relief are of no value. In Stone, the plaintiff sought an injunction related to the February 22, 2011 Chicago mayoral race. The election occurred without the injunction and the plaintiff appealed. The court of appeals dismissed the appeal because it was moot. The court held:
[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). If an event occurs during appeal that eliminates the court's power to provide relief, the appeal is moot. Dorel Juvenile Grp., Inc. v. DiMartinis, 495 F.3d 500, 503 (7th Cir.2007). The only relief Plaintiffs seek from us is an injunction pertaining to the municipal election on February 22, 2011. That election has passed, the requirement was enforced, and the requested injunction is now worthless. The same rationale applies to the relief requested in this case. The plaintiffs requested the following relief: 1. A declaration that Wis. Stat. § 6.87(4)(b)1 [witness requirement for absentee ballots] violates the First and Fourteenth Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983; 2. A temporary restraining order and a preliminary injunction enjoining Defendants from enforcing Wis. Stat. § 6.87(4)(b)1. and from rejecting and/or refusing to process and count absentee mail-in ballots that lack a witness signature for at least such time as Emergency Order #12 remains in place, subject to further extension
3. A permanent injunction enjoining Defendants from enforcing Wis. Stat. § 6.87(4)(b)1. and
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from rejecting and/or refusing to process and count absentee mail-in ballots that lack a witness signature for at least such time as Emergency Order #12 remains in place, subject to further extension; The election has been completed and the emergency order is no longer in effect. Even if this Court were to issue the permanent injunction sought, it would already expired. As such, there is no active controversy and this case should be dismissed. This case does not fall within any of the exceptions to the mootness doctrine. The absentee ballot witness requirement in §§6.87(2) and (4) at issue in this case were only challenged as they related to the April 7, 2020 election. The plaintiffs’ claim that the signature requirements placed an unconstitutional burden on them are set forth at paragraphs 55-63 of the Complaint. The claim is limited to the circumstances surrounding the pandemic, Emergency Order #12, and the April 7, 2020 Spring Election. The exception requires the plaintiff to meet the following test: (1) the challenged action is too short in duration to be litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S. Ct. 983 (1979). The plaintiffs in this case cannot show that there is insufficient time to litigate any perceived shortcomings related to the absentee ballot procedures in the upcoming elections. Unlike the April 7, 2020 election, where the crisis was first hitting, the electorate is aware of the pandemic and has ample time to request and return absentee ballots. Wisconsin statutes provide that absentee ballots are to be in the municipal clerks’ possession 48 days before the election in question. Wis. Stat. § 7.10(3)(a). The clerks are then to start sending ballots out 47 days before the date of the election. Wis. Stat. § 7.115 (1)(cm).
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Case: 3:20-cv-00249-wmc Document #: 207 Filed: 05/26/20 Page 5 of 5

The situation presented in April of 2020 is not likely to recur and the plaintiffs in this

case will not be subjected to the same action. The fact that the safer at home order is no longer in

place in Wisconsin negates the central argument of the complaint. The COVID-19 virus will

likely still pose a threat, but that is not a governmental action that this court has any control over.

Finally, this court and the court of appeals have already decided the issues raised in this

complaint. This court granted some injunctive relief with respect to the absentee ballot signature

issue and the court of appeals stayed that relief. The election proceeded pursuant to this Court’s

Amended Preliminary Injunction, as modified by the Court of Appeals and Supreme Court. [‘249

Dkt. No. 180]. The Court of Appeals has since dismissed the appeals. In sum, there is nothing

left to litigate regarding whether Wisconsin could enforce its witness requirement for the April 7

Spring Election.

CONCLUSION

For the reasons stated, the defendants respectfully request an order dismissing the

complaint with prejudice and without costs.

Dated: 5/26/2020

LAWTON & CATES, S.C.

_/s/ Dixon R. Gahnz_______________ Dixon R. Gahnz, SBN: 1024367 Daniel P. Bach, SBN: 1005751 Daniel S. Lenz, SBN: 1082058 Terrence M. Polich, SBN: 1031375

345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dbach@lawtoncates.com dlenz@lawtoncates.com tpolich@lawtoncates.com
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 Case: 3:20-cv-00249-wmc Document #: 209 Filed: 05/28/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Plaintiffs,

Case No. 20- CV-249

v.

MARGE BOSTELMANN, et al.,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants

SYLVIA GEAR, et al.,

Plaintiffs,

Case No. 20- CV-278

v.

DEAN KNUDSON, et al

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants.

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REVEREND GREG LEWIS, et al.,

Plaintiffs,

Case No. 20- CV-284

v.

DEAN KNUDSON, et al.,

Defendants.

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants

DEFENDANTS’ RESPONSE TO LEWIS PLAINTIFFS’ MOTION TO DISMISS

Defendants Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs and Marge Bostelmann (collectively, the “WEC”), by their undersigned counsel, respond as follows to the Plaintiffs’ Motion to Dismiss in Lewis et al. v. Knudson, Case No. 20-cv-284 [‘284 Case, Dkt. No. 147].
The WEC agrees that the April 7 Spring Election rendered the Lewis Plaintiffs’ claims moot and, therefore, that the Lewis case should be dismissed. The WEC objects, however, to the Lewis Plaintiffs’ request that this Court award costs because this Court denied the remedy which those plaintiffs sought – postponement of the April 7 Spring Election.
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BACKGROUND The Lewis Plaintiffs filed their complaint on March 26, seeking the following relief: A. A declaration that, in the context of the COVID-19 crisis, proceeding with the in-person election on April 7 was an undue burden on the Plaintiffs’ constitutional rights (and those of their members, as applicable) and directing the WEC to reschedule the election; B. A declaration that, in the context of the COVID-19 crisis, Wisconsin’s’ electronic and by-mail registration deadlines; the proof of residence and voter ID for voter registration and absentee applications; and the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted are unconstitutional. C. A declaration that, in the context of the COVID-19 crisis, the WEC had the authority and duty to suspend Wisconsin’s election laws. D-F. Enjoining the WEC from enforcing of various aspect of Wisconsin election law in the context of the COVID-19 crisis and while Wisconsin’s Emergency Order #12 was in place. G. An order requiring the WEC to supply envelopes and printed ballots to municipalities in sufficient number such that every registered voter could receive an absentee ballot in advance of a rescheduled election. H. Enjoining the WEC from, “rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office by June 2, 2020.”
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I. Enjoining the WEC from, “enforcing the requirement that municipalities allow in-person voter registration and/or in-person absentee voting until after Emergency Order #12, as it may be extended, has expired.” J. Order the WEC to permit clerks to mail election ballots to all registered voters and postpone in-person election voting in polling places until the election could be rescheduled. K. Order the WEC to extend the registration deadline to May 1, 2020. L. Ordering the WEC to establish Tuesday, June 2, 2020 as the deadline by which clerks much have counted all returned, mailed absentee ballots. M. An award of costs and fees. [‘284 Case, Dkt. No. 147, pp. 65-67]. By the time the Lewis Plaintiffs filed suit, the Plaintiffs in DNC et al. v. Bostelmann et al., Case No. 20-CV-249 had filed their first Amended Complaint, which sought some of the same relief, but did not request that this Court postpone the April 7, 2020 Spring Election. [‘249 Case, Dkt. No. 55]. In part, the DNC Amended Complaint requested relief enjoining the WEC, “from rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office within a minimum of ten days after Election Day; Ballots that do not have a postmark or other marking from the USPS shall be presumed to have been mailed by Election Day.” [‘249 Case, Dkt. No. 55, p. 19]. On March 27, 2020, the DNC Plaintiffs filed their Motion for Preliminary Injunction and Reconsideration of the Court’s Ruling on the By-Mail Absentee Deadline and Documentation Requirements. The DNC Plaintiffs requested a
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preliminary injunction enjoining the enforcement of various election laws, including “(5) the requirement that polling places receive absentee ballots by 8:00 p.m. on
Election Day to be counted…” The next day, the Lewis Plaintiffs filed their Motion for Temporary Restraining Order and Preliminary Injunction. The motion sought,
inter alia, an order directing the WEC to reschedule in-person voting and an injunction restraining the WEC from, “enforcing the requirement that polling places
receive absentee ballots by 8:00 p.m. on Election Day to be counted…” [‘284 Case, Dkt. No. 17, p. 2].
The Lewis Plaintiff’s Brief in Support of their motion focused exclusively on their request that this Court reschedule the April 7 Spring Election:
“Simply put, if the election remains on April 7, it will disenfranchise hundreds of thousands or more Wisconsin voters.” [‘284 Case, Dkt. No. 18, p. 2]. “The only effective remedy is severe, but it is both necessary and proportionate to a crisis unique in our State’s history: suspend the April 7 election until after the expiration of Governor Evers’ Emergency Order #12, currently set for April 24.” [‘284 Case, Dkt. No. 18, p. 2].
“… the Defendants’ and State’s interest in holding the election on April 7 must bend to Plaintiffs’ constitutional rights.” [‘284 Case, Dkt. No. 18, p. 2].
“In the event that the election is allowed to proceed under the state’s statutory schedule and regulations, unprecedented numbers of voters will not be able to participate and exercise the franchise.’ [‘284 Case, Dkt. No. 18, p. 11].
“This Court can and should delay the April 7 election.” [‘284 Case, Dkt. No. 18, p. 11].
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The Lewis Plaintiffs concluded with a request that this Court postpone the April 7 Spring Election until the end of Governor Evers’ emergency order, suspend the witness requirement and photo ID requirements, and extend the process to request and submit absentee ballots. [‘284 Case, Dkt. No. 18, p. 13]. The same day, this Court consolidated the Lewis case with DNC et al. v. Bostelmann et al. and Gear et al. v. Bostelmann et al. [‘249 Case, Dkt. No. 86]. The parties and various amici briefed both motions, along with a motion in Gear.
While the motions were pending, the WEC notified the Court and parties that it would not object to an order requiring any absentee ballot postmarked by April 7, 2020 and received by April 10 to be counted. [‘249 Case, Dkt. No. 123]. The WEC later advised that it would not object to counting ballots received by April 13 at 4:00 p.m. [‘249 Case, Dkt. Nos. 152].
This Court heard both motions, as well as the motions in DNC and Gear on April 1. On April 2 this Court issued its decision and a preliminary injunction, enjoining the WEC from the following: (1) enforcing the requirement that absentee ballots be received on Election Day - the Court extended the deadline to 4:00 PM on April 13; (2) enforcing the requirement that requests for absentee ballots be received by April 2 – the Court extended that deadline to 5:00 p.m. on April 3; and (3) enforcing the witness certification as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts. [‘249 Case, Dkt. Nos. 170, 171]. This Court specifically denied the Lewis Plaintiffs’ request that it postpone the April 7
6

Case: 3:20-cv-00249-wmc Document #: 209 Filed: 05/28/20 Page 7 of 11
Spring Election. [‘249 Case, Dkt. No. 170, p. 36]. Intervening Defendants, the Republican National Committee and Republican Party of Wisconsin, along with Proposed Intervenors [now Intervening Defendants], the Wisconsin State Legislature, immediately filed Notices of Appeal. [‘249 Case, Dkt. Nos. 172, 173].
The WEC sought clarification regarding (1) whether unofficial results should be announced prior to April 13 and (2) when an absentee voter needs to submit a written statement. [‘249 Case, Dkt. No. 174]. The Court issued an amended preliminary injunction prohibiting the release of preliminary results and clarifying that a voter could provide written affirmation prior to tabulation. [‘249 Case, Dkt. Nos. 179, 180]. The RNC and Legislature appealed from the amended injunction. [‘249 Case, Dkt. Nos. 182, 185].
On April 6, the Seventh Circuit Court of Appeals stayed only this Court’s injunction pertaining to the witness certification. [‘249 Case, Dkt. No. 189]. The RNC and Legislature sought and received an emergency stay from the U.S. Supreme Court which required that, to be counted, ballots had to be postmarked on or before Election Day. DNC v. RNC, 589 U.S. ______ (2020).
ARGUMENT I. This Court Should Deny the Lewis Plaintiffs’ Request for
Statutory Costs and Fees Because They Did Not Prevail. A district court may impose terms and conditions on a voluntary dismissal. Fed. R. Civ. P. 41(a)(2). Federal Rule of Civil Procedure 54(d) provides: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than
7

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attorney's fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d). “Rule 54(d) creates a presumption that the prevailing party will recover costs, and that the ultimate decision to award costs is within the district court's discretion.” Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 221 (7th Cir. 1988). Similarly, 42 U.S.C. section 1988 permits an award of attorneys’ fees and non-taxable expenses to prevailing parties1. 42. U.S.C. § 1988 (b). The definition of “prevailing party” under the Rule and statute are analogous. See Mother and Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003).
A party may be a prevailing party if it has prevailed on some, but not all, of its claims, but only if the party has prevailed on an important matter in the litigation. Harnrahan v. Hampton, 446 U.S. 754, 757-758 (1980). “[P]arties are said to have prevailed in litigation for ‘attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”’ King v. Illinois State Bd. of Elections, 410 F.3d 404, 414 (7th Cir. 2005), quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “[A]t a minimum, to be considered a prevailing party ... [a party] must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–793 (1989). That resolution must be in place at the time of judgment. Farrar v. Hobby,
1 The WEC is mindful that the Lewis Plaintiffs have not, yet, moved for an award of attorneys’ fees and non-taxable costs. They have, however, requested that this Court permit such a motion. [‘284 Case, Dkt. No. 147]. Because the Lewis Plaintiffs did not prevail, however, this Court should deny this request. The WEC reserves any argument regarding the reasonableness of attorneys fees, as well as any objection that fees are not related to the actual outcome achieved. See Hensley, 461 U.S. at 435-36.
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506 U.S. 103, 111 (1992). In cases involving discrete sets of plaintiffs seeking various forms of relief, a court may award costs and fees to some plaintiffs and not others. Hastert v. Illinois State Bd. of Elections, 28 F.3d 1430, 1443 (7th Cir. 1993).
Generally, “a voluntary dismissal with prejudice renders the opposing party a “prevailing party” within the meaning of Rule 54.” Mother and Father, 338 F.3d at 708. While the Lewis Plaintiffs did not specify, dismissal for mootness is generally with prejudice. Deakins v. Monaghan, 484 U.S. 193, 200 (1988) (“Because this case was rendered moot … a dismissal with prejudice is indicated).
In this case, the Lewis Plaintiffs did not prevail because they did not achieve the relief they requested – that this Court postpone the April 7 Spring Election. This was the “principal issue” in the Lewis case throughout its existence. Hastert, 28 F.3d at 1439-40. Indeed, it is how the Lewis Plaintiffs characterized their suit from the outset:
Plaintiffs seek an order from this Court directing Defendants to postpone the current April 7, 2020 election to a date no earlier than the expiration of Emergency Order #12 issued by Wisconsin Governor Tony Evers on March 24, 2020, and to extend from April 7, 2020 to June 2, 2020 the deadline by which municipal clerks must have counted all returned mailed ballots for the Wisconsin spring election. [‘284 Case, Dkt. No. 1, ¶ 1]. The Court specifically denied this request in its April 2 Decision. [‘249 Case, Dkt. No. 170]. The Lewis Plaintiffs are not a prevailing party as a result of the more limited relief awarded. Following the orders of the Court of Appeals and Supreme Court, the relief in effect at the time of the election was the extension of the receipt deadline to April 13 and the injunction against reporting preliminary election
9

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results, as well as a brief extension of the deadline for electors to request an absentee ballot. [‘249 Case, Dkt. No. 180]. The Lewis Plaintiffs did not seek this relief. Instead, the Lewis complaint requested an injunction prohibiting the WEC from “rejecting ballots that are postmarked on or before Election Day and arrive at the municipal clerk’s office by June 2, 2020.” [‘284 Case, Dkt. No. 1, p. 66, ¶ H]. (emphasis added). Similarly, they requested that this Court order the WEC, “to establish Tuesday, June 2, 2020 as the deadline by which municipal clerks must have counted all returned mailed absentee ballots.” [‘284 Case, Dkt. No. 1, p. 67, ¶ L]. These requests, of course, were conditioned on this Court delaying the election, which did not occur. The Lewis Plaintiffs’ request for a postponement was the gravamen of their complaint and the entire focus of their Motion for a Temporary Restraining Order and Preliminary Injunction. [‘284 Case, Dkt. Nos. 17, 18]. They did not request an extension of the deadline to request an absentee ballot, nor an injunction against the release of preliminary results.
Other plaintiffs, particularly the DNC Plaintiffs, sought relief closer to what the Court ordered. Permitting the Lewis Plaintiffs to recover their costs (and eventually, fees) would impose a duplicative burden on the WEC which, notably, did not object to the major form of relief afforded by this Court’s Amended Preliminary Injunction – the extension of the receipt deadline. [‘249 Case, Dkt. Nos. 123, 152].
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CONCLUSION For the reasons stated herein, Defendants Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs and Marge Bostelmann respectfully request that this Court grant the Lewis Plaintiffs’ Motion to Dismiss but deny their requests regarding costs and fees.

Dated: 5/28/2020

LAWTON & CATES, S.C.
Electronically signed by Daniel S. Lenz Dixon R. Gahnz, SBN: 1024367 Daniel S. Lenz, SBN: 1082058 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375
345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dlenz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com

11

 
 Case: 3:20-cv-00249-wmc Document #: 210 Filed: 05/28/20 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Reverend Greg Lewis, Souls To The Polls, Voces De La Frontera, Black Leaders Organizing For Communities, American Federation Of Teachers Local, 212, AFL-CIO, SEIU Wisconsin State Council, and League Of Women Voters Of Wisconsin,
Plaintiffs,
v.
Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, in their official capacity as members of the Wisconsin Election Commission, and Meagan Wolfe, in her official capacity as the Administrator of the Wisconsin Elections Commission,
Defendants,
and
Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

Case No. 3:20-cv-284-wmc (consolidated with Case Nos. 3:20-cv-249-wmc and 3:20-cv-278-wmc)

THE WISCONSIN LEGISLATURE’S PARTIAL OPPOSITION TO LEWIS PLAINTIFFS’ MOTION TO VOLUNTARILY DISMISS
PURSUANT TO RULE 41(A)(2) WITH COSTS

The Legislature agrees with the Lewis Plaintiffs that dismissal is proper. Their lawsuit—which, to the extent not wholly duplicative of other plaintiffs’ requests, was focused on a failed effort to get the federal courts to postpone the April 7 Election—was “rendered moot by the conclusion” of that election. DNC Dkt. 205 at 2; see Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001).

Case: 3:20-cv-00249-wmc Document #: 210 Filed: 05/28/20 Page 2 of 3

The Legislature further notes that Plaintiffs should not be permitted to seek recovery of statutory costs, expenses, or attorneys’ fees from any Defendants. Plaintiffs have now moved to dismiss their own lawsuit, and they lost even on the overwhelming majority of their arguments at the preliminary injunction and appellate stages before that. See DNC Dkt. 170; DNC Dkt. 189 (Seventh Circuit’s Order); Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020) (per curiam); see generally Sole v. Wyner, 551 U.S. 74 (2007). In any event, Plaintiffs could not possibly obtain any type of cost/expenses recovery or attorneys’ fees from the real-party-in-interest defendant here—the State of Wisconsin—because no party authorized to represent the State was permitted to take part in the relevant proceedings before this Court. See Scott v. Donald 165 U.S. 107, 117 (1897). Should any Plaintiffs nonetheless move for any costs/expense recovery or fee award, the Legislature reserves the right to oppose such motion at the appropriate time.

Dated: May 28, 2020
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street, Ste. 800 Madison, WI 53703 (608) 442-5798 (608) 441-5707 (fax) rwalsh@eimerstahl.com amiller@eimerstahl.com
Counsel for Intervenor-Defendant Wisconsin Legislature in Lewis

Respectfully Submitted,
/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe Street, Ste. 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com kevin.leroy@troutman.com
Counsel for Intervenor-Defendant Wisconsin Legislature in DNC, Gear, and Lewis

- 2 -

Case: 3:20-cv-00249-wmc Document #: 210 Filed: 05/28/20 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 28th day of May, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

 
 Case: 3:20-cv-00249-wmc Document #: 211 Filed: 05/28/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.

Case No. 3:20-cv-249-wmc

Marge BOSTELMANN, et al.,

Defendants,

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervenor-Defendants.

Sylvia GEAR, et al.,

Plaintiffs,

v.

Case No. 3:20-cv-278-wmc

Dean KNUDSON, et al.,

Defendants,

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervenor-Defendants.

Reverend Greg LEWIS, et al.,

Plaintiffs,

v.

Case No. 3:20-cv-284-wmc

Dean KNUDSON, et al.,

Defendants,

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervenor-Defendants.

INTERVENOR-DEFENDANTS’ RESPONSE TO LEWIS PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL Under the order of this Court dated May 21, Intervenor-Defendants, the Republican National
Committee and Republican Party of Wisconsin, submit the following response to the Lewis Plaintiffs’
Motion for Judgment of Dismissal Pursuant to Rule 41(a)(2) (Doc. 205):
Intervenor Defendants do not object to dismissal of the Lewis Complaint, although given the
extensive proceedings conducted to date (including an evidentiary hearing), and the expiration of the

Case: 3:20-cv-00249-wmc Document #: 211 Filed: 05/28/20 Page 2 of 3
election period that was the focus of the action, the appropriate disposition of the motion should be a dismissal with prejudice. See, e.g., Pace v. Southern Exp. Co., 409 F.2d 331, 334 (7th Cir. 1969) (noting that the “factors justifying” dismissal with prejudice include “the defendant's effort and expense of preparation for trial”); Timothy B. O'Brien LLC v. Knott, 2019 WL 4722483, at *1 (W.D. Wis. 2019) (noting that “because defendants had to defend against [plaintiff’s] motion for preliminary injunction, the court required [plaintiff] to either accept dismissal with prejudice or withdraw its motion” to dismiss); see also Ratkovich By & Through Ratkovich v. Smith Kline, 951 F.2d 155, 157 (7th Cir. 1991) (affirming a dismissal with prejudice by a trial court that used as a factor the fact “that the defendants had expended considerable effort and expense in defending the case”).
Intervenor Defendants further object to any claim by the Lewis Plaintiffs that they are entitled to costs or attorneys’ fees. To begin, any award of costs would be precluded if dismissal is with prejudice; because “a voluntary dismissal with prejudice renders the opposing party a ‘prevailing party’ within the meaning of Rule 54.” Mother and Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). But even if dismissal were to be granted without prejudice, costs and fees would not be appropriate because the Lewis plaintiffs are not prevailing parties. The relief sought in their complaint, in their prehearing filings, and in the arguments presented to the court almost exclusively revolved around their request that this Court “postpone the current April 7, 2020 election to a date no earlier than the expiration of Emergency Order #12 issued by Wisconsin Governor Tony Evers on March 24, 2020[.]” See No. 20-cv-00284 Doc. 1 at ¶ 1; id. at 65-67; Doc. 105 at 2 (describing Plaintiffs’ “request that the Court enjoin Defendants from holding the Wisconsin Spring elections currently scheduled for April 7, 2020”). This Court rejected that relief. Doc. 113 at 36. The Lewis Plaintiffs therefore cannot qualify

Case: 3:20-cv-00249-wmc Document #: 211 Filed: 05/28/20 Page 3 of 3

as a “prevailing party” for purposes of costs or fees.* See, e.g., Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008).

Dated: May 28, 2020

Respectfully submitted,
/s/ Patrick Strawbridge T Patrick Strawbridge CONSOVOY MCCARTHY PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (703) 243-9423 patrick@consovoymccarthy.com
Jeffrey M. Harris Cameron T. Norris Alexa R. Baltes CONSOVOY MCCARTHY PLLC 1600 Wilson Blvd., Ste. 700 Arlington, VA 22209

* Although the Lewis Plaintiffs also requested that certain voter ID, residency, and witness requirements be suspended, see No. 20-cv-00284 Doc. 1 at 66, they did not ultimately prevail on any of those requests, either.

 
 No. ______

In the Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, ET AL. APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

THE WISCONSIN STATE LEGISLATURE, APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

EMERGENCY APPLICATION FOR STAY

To the Honorable Brett M. Kavanaugh Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Seventh Circuit

MISHA TSEYTLIN KEVIN M. LEROY Troutman Sanders LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 Counsel for Wisconsin Legislature in 3:20-cv-249, -278, -284
ERIC M. MCLEOD HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819
Counsel for Wisconsin Legislature in 3:20-cv-249

PATRICK STRAWBRIDGE Counsel of Record Consovoy McCarthy PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com
Counsel for Republican National Committee et al.
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street Suite 800 Madison, WI 53703 Counsel for Wisconsin Legislature in 3:20-cv-284

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS The parties to the proceeding below are as follows: Applicants Republican National Committee and the Republican Party of
Wisconsin were intervenor defendants in the district court and appellants in the court of appeals.
Applicant Wisconsin Legislature moved for and was denied intervention in the district court. It was an appellant in the court of appeals, which found it to have standing and to be a proper intervenor in this action.
Respondents are the Democratic National Committee, the Democratic Party of Wisconsin, Sylvia Gear, Makekeh K. Hakami, Patricia Ginter, Claire Whelan, Wisconsin Alliance for Retried Americans, League of Women Voters, Reverend Greg Lewis, Souls to the Polls, Voces de la Frontera, Black Leaders Organizing for Communities, American Federation of Teachers, Local, 212, AFL-CIO, SEIU Wisconsin State Council, and League of Women Voters of Wisconsin. Respondents were plaintiffs in the consolidated cases before the district court and appellees in the court of appeals.
Defendants below Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen are the members of the Wisconsin Election Commission. Defendant below Meagan Wolfe is the Commission’s administrator. None of these defendants below have appealed the district court’s injunction.
The related proceedings below are: ii

1. Democratic National Committee, et al. v. Bostelmann, et al. Nos. 20-1538, 20-1539, 20-1545 & 20-1546 (7th Cir.) – Judgment entered April 3, 2020;
2. Democratic National Committee, et al. v. Bostelmann, et al., No. 3:20-cv249 (W.D. Wis.) – Judgment entered April 2, 2020;
3. Gear, et al. v. Dean Knudson, et al., No. 3:20-cv-278 (W.D. Wis.) -Judgment entered April 2, 2020; and
4. Lewis, et al. v. Knudson, et al., No. 3:20-cv-284 (WMC) (W.D. Wis.) – Judgment entered April 2, 2020.
iii

CORPORATE DISCLOSURE STATEMENT Per Supreme Court Rule 29, Applicants the Republican National Committee, the Republican Party of Wisconsin, and the Wisconsin State Legislature state that they have no parent companies or publicly-held companies with a 10% or greater ownership interest in them.
iv

TABLE OF CONTENTS
OPINIONS BELOW ...................................................................................................... 3
JURISDICTION............................................................................................................. 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 4
STATEMENT................................................................................................................. 4
REASONS FOR GRANTING THE APPLICATION .................................................... 8
I. There Is A Reasonable Probability That Four Justices Would Vote To Grant Review And A Fair Prospect That This Court Would Reverse A Decision Upholding An Injunction Allowing Voting After Election Day, Issued While The Election Was Already Ongoing ........................................... 9
A. This Court And The Courts Of Appeals Have Repeatedly Stayed Changes To Elections Laws On The Eve Of Election Day........................ 9
B. Under the Anderson/Burdick Framework, The State’s Interest In Avoiding A Two-Track Election—In Which Numerous Voters Might Strategically Cast Ballots After Election Day Results Are Announced—Are Overwhelming ............................................................. 12
II. Applicants Will Suffer Irreparable Harm Absent A Stay ............................. 18
CONCLUSION............................................................................................................. 20

TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Perez, 138 S. Ct. 2305 (2018) ...................................................................................... 10, 19
Abbott v. Perez, 138 S. Ct. 49 (2017) ................................................................................................ 10
Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................................................................................ 12
Anderson v. Loertscher, 137 S. Ct. 2328 (2017) .............................................................................................. 9
Burdick v. Takushi, 504 U.S. 428 (1992) .......................................................................................... 12, 13
C.I.R. v. McCoy, 484 U.S. 3 (1987) .................................................................................................... 14
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) .............................................................................. 12, 13, 15, 19
Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016) .................................................................................. 11
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .................................................................................. 13
Gill v. Whitford, 137 S. Ct. 2289 (2017) ............................................................................................ 10
Heckler v. Redbud Hosp. Dist., 473 U.S. 1308 (1985) ............................................................................................. 14
Hollingsworth v. Perry, 558 U.S. 183 (2010) ................................................................................................. 9
Husted v. Ohio State Conference of N.A.A.C.P., 573 U.S. 988 (2014) ................................................................................................ 10
Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ................................................................................ 11
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League of Women Voters of Ohio v. LaRose, No. 2:20-cv-01638 (S.D. Ohio Apr. 3, 2020) ............................................................. 3
Mays v. Thurston, No. 4:20-cv-341 (E.D. Ark. voluntarily dismissed Mar. 31, 2020) .......................... 3
Ne. Ohio Coal. for Homeless and Serv. Employees Int’l Union, 467 F.3d 999 (6th Cir. 2006) .................................................................................... 1
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................. 9
North Carolina v. League of Women Voters of N. Carolina, 574 U.S. 927 (2014) ................................................................................................ 10
Page v. Bartels, 248 F.3d 175 (3d Cir. 2001) .................................................................................... 11
Perry v. Perez, 565 U.S. 1090 (2011) .............................................................................................. 10
Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019) .................................................................................... 4
Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................................... 8, 9, 10, 11
Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010) ..................................................................................... 11
San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301 (2006) ............................................................................................... 9
Smith v. Bayer Corp., 564 U.S. 299 (2011) ................................................................................................ 16
Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) ................................................................................. 11
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ................................................................................................ 12
Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) .............................................................................................. 3
Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014) .................................................................................. 11 - iii -

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019) .................................................................................... 4, 8, 19
West Virginia v. EPA, 136 S. Ct. 1000 (2016) .............................................................................................. 9
Williams v. DeSantis, No. 1:20-cv-00067 (N.D. Fla. Mar. 16, 2020) ........................................................... 3
Williams v. Rhodes, 393 U.S. 23 (1968) .................................................................................................... 9
Constitutions U.S. Const. amend. I...................................................................................................... 4 U.S. Const. amend. XIV................................................................................................. 4 Statutes 28 U.S.C. § 1254............................................................................................................. 3 28 U.S.C. § 1651............................................................................................................. 3 42 U.S.C. § 1983............................................................................................................. 4 42 U.S.C. § 1988............................................................................................................. 4 Alaska Admin. Code tit. 6, § 27.175 ............................................................................ 18 8 Colo. Code Regs. § 1505-1:7 ...................................................................................... 18 Fla. Stat. Ann. § 101.68 ............................................................................................... 18 Ill. Admin. Code tit. 26, § 205.10................................................................................. 18 Iowa Code Ann. § 53.23 ............................................................................................... 18 Code Me. R. tit. 01-001 Ch. 803, § 5............................................................................ 18 Mass. Code Regs. 52.03 ............................................................................................... 18 Mo. Code Regs. Ann. tit. 10, § 70-6.010 ...................................................................... 18 N.M. Stat. Ann. § 1-20-19.1 ......................................................................................... 18 Neb. Rev. Stat. Ann. § 32-1545 ................................................................................... 18
- iv -

S.D. Codified Laws § 12-19-46..................................................................................... 18 Wis. Stat. § 5.02 ............................................................................................................. 4 Wis. Stat. § 5.05 ........................................................................................................... 16 Wis. Stat. § 5.06 ........................................................................................................... 17 Wis. Stat. § 5.08 ........................................................................................................... 16 Wis. Stat. § 5.081 ......................................................................................................... 16 Wis. Stat. § 6.85 ............................................................................................................. 4 Wis. Stat. § 6.87 ............................................................................................. 2, 5, 14, 17 Wis. Stat. § 6.88 ........................................................................................................... 17 Wis. Stat. § 7.10 ............................................................................................................. 5 Wis. Stat. § 7.51 ............................................................................................... 15, 16, 17 Wis. Stat. § 13.365 ....................................................................................................... 15 Wis. Stat. § 803.09 ....................................................................................................... 15 Other Authorities Absentee Ballot Report - April 7, 2020 Spring Election and Presidential
Preference Primary, available at https://elections.wi.gov/node/ 6808 .................... 5 Hearing Before the Task Force on Elections of Comm. of H. Admin.
and Subcomm. on Telecomm., Cons. Protection, and Fin. of Comm. on Energy and Commerce, 97th Cong. 66 (1981) .................................................. 15 Wisconsin Elections Commission, Candidates on Ballot by Election (rev. Mar. 3, 2020) available at https://elections.wi.gov/sites/elections.wi.gov/files/202003/Candidates% 20on%20Ballot%20By%20Election_3_3_2020.pdf....................... 5
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TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT:
The district court below ordered that Wisconsin voters can continue to vote absentee after election day, even though no party asked the court to grant such extraordinary relief, nor submitted any evidence justifying that remedy. The district court issued this order five days before Wisconsin’s scheduled April 7 election, for which absentee voting had been in process for more than a month. This aspect of the district court’s injunction (which the Seventh Circuit declined to stay) plainly warrants this review and swift reversal, for at least two reasons. First, this Court’s precedent prohibits federal courts from changing the rules of an ongoing or rapidly approaching election. The district court’s order upends a key aspect of Wisconsin’s election less than a week before election day. Second, requiring a state to permit unlimited absentee voting for almost a week after election day presents significant dangers to election integrity, voter confidence and the orderly administration of an election that already has strained state resources due to the difficult circumstances associated with COVID-19.
Because Wisconsin’s election is already in full swing, and set to conclude on Tuesday, April 7, the Republican National Committee, Republican Party of Wisconsin and the Wisconsin Legislature (collectively, “Applicants”) respectfully ask for an immediate administrative stay, in order to prevent further voter confusion and unjustified interruption of ongoing election processes and, thereafter, a stay pending resolution of the Applicants’ appeal. Specifically, Applicants seek a stay of the district court’s injunction to the extent it requires the State to count

absentee ballots postmarked after April 7, thus clarifying that absentee ballots must be postmarked (or personally delivered to the polls) no later than April 7 in order to be counted. Given the date of the election, and to provide clarity to voters, Applicants request the stay pending appeal be issued no later than Monday, April 6.
The Respondents—to their credit—never requested the drastic remedy issued below. Their concern was only that ballots cast on or before April 7 might not arrive at polling places until after election day, due to the significant increase in absentee voting during the current public health crisis and the possibility that mail service was slowed. That would normally cause the ballots to be invalidated under Wis. Stat. § 6.87(6), which requires that a “ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day.” Respondents thus sought only to ensure that ballots postmarked by election day—that is, votes that were cast on or before election day—would be counted even if they arrived by mail a few days later. The district court went far beyond that concern, extending the deadline for the receipt of absentee ballots until 4 p.m. on Monday, April 13, and expressly declining to require any postmark or other evidence that the late-arriving ballot was actually completed on or before election day. This means that tens of thousands of Wisconsin residents will be permitted to vote after the election-day deadline.
The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such
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as its extension of the deadlines to remotely register to vote and to request an absentee ballot.1 And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.
OPINIONS BELOW The district court issued three orders, one granting a temporary restraining order, one granting a preliminary injunction, and one clarifying that preliminaryinjunction order, which are unreported, but attached at App. 61–81, App. 8–60, and App. 5–7. The Seventh Circuit’s order granting in part and denying in part the Legislature’s emergency motion for stay is unreported, but attached at App. 1–4.
JURISDICTION This Court has jurisdiction over this Application under 28 U.S.C. §§ 1254(1) and 1651(a). The Republican National Committee and Republican Party of Wisconsin
1 Notably, the decision below is the only case to date that has granted relief affecting an impending election due to claims arising from the challenges associated with COVID-19. See Williams v. DeSantis, No. 1:20-cv-00067 (N.D. Fla. Mar. 16, 2020); Mays v. Thurston, No. 4:20-cv-341 (E.D. Ark. voluntarily dismissed Mar. 31, 2020); League of Women Voters of Ohio v. LaRose, No. 2:20-cv-01638 (S.D. Ohio Apr. 3, 2020).
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intervened as defendants before the district court and have standing. See Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017); Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019). Further, the Seventh Circuit correctly concluded that “the Wisconsin State Legislature has standing to pursue this appeal, and that the district court erred in refusing to permit the Legislature to intervene in the case below.” App. 4 (citing Bethune-Hill, 139 S. Ct. 1945; Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019)). Sections 13.365(3) and 803.09(2m) of the Wisconsin Statutes are exactly the types of statutes that this Court discussed in Bethune-Hill, which permit the Legislature “to litigate on the State’s behalf . . . in a defined class of cases,” that is, when, as here, a state statute is alleged to be unconstitutional. 139 S. Ct. at 1952.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the First Amendment to the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Wisconsin Statute Section 6.87(6), and Sections 1983 and 1988 of Chapter 42 of the United States Code. All are reproduced in the Appendix beginning at App. 82.
STATEMENT Under Wisconsin law, a “[s]pring election” must be “held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party” in a Presidential election year. Wis. Stat. § 5.02(21). The State offers voters a generous, no-excuse-needed absentee voting
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option. See Wis. Stat. § 6.85(1). But absentee voting, like all voting, must be completed by election day. That is why Wisconsin law provides that an absentee ballot “shall be returned so it is delivered to the polling place no later than 8 p.m. on election day.” Wis. Stat. § 6.87(6). Put another way, if a voter mails in an absentee ballot, but that ballot arrives at the clerk’s office after election day, that vote does not count.
Absentee voting in Wisconsin’s April 7 Election has been in full swing for weeks, and the interest in this election is understandable, given that it includes a presidential primary, a Wisconsin Supreme Court race, a constitutional amendment ballot initiative, and important local races. Under Wisconsin law, absentee ballots can be sent as soon as they are printed by the local clerk, which must begin “immediately upon receipt of the certified list of candidates’ names from the commission,” Wis. Stat. § 7.10(2), which certification occurred on March 3.2 In the weeks following that certification, more than 1.1 million Wisconsinites received absentee ballots, and more than 561,000 already have been returned.3 So long as these ballots comply with all Wisconsin state law—including the photo ID and signature requirements—they will be counted, just like any ballot cast on election day.
2 See Wisconsin Elections Commission, Candidates on Ballot by Election (rev. Mar. 3, 2020) available at https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/Candidates% 20on%20Ballot%20By%20Election_3_3_2020.pdf.
3 See Wisconsin Elections Commission, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, available at https://elections.wi.gov/node/ 6808.
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The present Application arises from a series of lawsuits filed against each of the Wisconsin Elections Commissioners, relating to Wisconsin’s April 7 election. Only one of the legal theories raised in those lawsuits is relevant to this Application. On March 18, the Democratic National Committee and Democratic Party of Wisconsin sued the Commissioners, in the Western District of Wisconsin. D.Ct. Doc. 1. Those respondents then moved for a temporary restraining order or preliminary injunction, arguing, as relevant here, for relief because “the Election Day deadline prevents having ballots counted even if they are sent on or before Election Day.” D. Ct. Doc. 3 at 9. “There is, then, ample time to accept and count validly cast absentee ballots that are postmarked by Election Day but arrive at some point thereafter.” D. Ct. Doc. 3 at 11. The district court denied this relief as unjustified by the “limited record before it.” App. 17.4
Respondents thereafter moved for reconsideration of the district court’s denial of the preliminary injunction on this issue, arguing that “[b]ecause clerks are delayed in processing absentee requests⸺due both to the unprecedented influx and social distancing⸺the absentee ballots resulting from those requests will get sent out later, arriving to the voter’s home most likely within two to four days of the election.” D. Ct.
4 The district court did extend the time to register to vote online by an additional twelve days, from March 18 to March 30. App. 80. It also granted the motion to intervene as defendant filed by the Republican National Committee and Republican Party of Wisconsin, D. Ct. Doc. 85 at 12, and denied intervention by the Legislature, D. Ct. Doc. 85 at 12, and then denied the Legislature’s renewed intervention motion, even after the Wisconsin Attorney General withdrew from representing the defendant Elections Commissioners and the Commissioners refused to defend several of the challenged laws. D. Ct. Doc. 163.
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Doc. 62 at 12 (emphasis added). “There is, then, ample time to accept and count
validly cast absentee ballots that are postmarked by Election Day but arrive at some
point thereafter. Doing so would not violate Wisconsin’s interest in finality of
elections.” D. Ct. Doc. 62 at 16. Applicants responded by explaining that this request
was premature, given that it was unclear whether the Respondents’ worries about
delays in absentee ballot and mailing processing would actually materialize: “the
Court may simply wait until after election day to determine whether any remedy is
necessary or appropriate.” D.Ct. Doc. 90 at 25.5
On April 2, the district court entered a preliminary injunction that mandates,
in part,6 that the State may no longer apply its 8:00 p.m. election-day deadline for the
receipt of absentee ballots, moving the deadline to 4:00 p.m. on April 13. App. 59. This
order unexpectedly expanded the moderate (although still premature) remedy that
the Respondents had asked for into a far more sweeping authorization for post-
election day voting. The district court explained that it was “simply moving the
statutory absentee receipt deadline” to April 13 even for ballots voted and postmarked
after April 7, election day, meaning that there would be up to six days of absentee
5 In a consolidated case, also part of this appeal, a different group of plaintiffs also asked for a temporary restraining order blocking the “the requirement that polling places receive absentee ballots by 8:00 p.m. on Election Day to be counted,” Lewis, D.Ct. (-284) Doc. 17 at 2, but did not mention this request or develop it in their supporting memorandum. Lewis D.Ct. (-284) Doc. 18.
6 The district court also further extended the time to request an absentee ballot to April 3, and it created an exception to the Wisconsin statute requiring absentee ballots to be witnessed by another person in order to be effective. App. 59. Applicants did not seek to stay the extension of the request deadline, and the Seventh Circuit stayed the potion of the order regarding the witnessing requirements. App. 3–4.
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voting after election day. App. 47. The entirety of the court’s rationale for this unrequested relief was that “[n]o persuasive evidence suggests that further altering statutory requirements will impose tangible benefits or harms.” App. 47. The district court later amended this portion of its injunction by further enjoining both the Elections Commissioners and non-parties “from releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated.” App. 6. It cited no authority for its power to enjoin non-parties.
Applicants immediately moved for a stay from the Seventh Circuit. Last night, on April 3, the Seventh Circuit denied Applicants’ emergency motion for stay on this portion of the district court’s order. It offered no explanation at all, despite noting elsewhere that “[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” App. 3 (citing Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (alterations in original)). The Seventh Circuit separately held that the district court had improperly denied the Legislature’s motion to intervene, and that the Legislature had standing to pursue this appeal under this Court’s decision in Bethune-Hill. App. 4.
REASONS FOR GRANTING THE APPLICATION This Court will grant a stay of a district court’s order, including in a case still pending before the court of appeals, if there is “(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3)
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a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in chambers); see also Nken v. Holder, 556 U.S. 418, 427–29 (2009); West Virginia v. EPA, 136 S. Ct. 1000 (2016); Anderson v. Loertscher, 137 S. Ct. 2328 (2017). Applicants have satisfied these standards here. I. There Is A Reasonable Probability That Four Justices Would Vote To
Grant Review And A Fair Prospect That This Court Would Reverse A Decision Upholding An Injunction Allowing Voting After Election Day, Issued While The Election Was Already Ongoing
A. This Court And The Courts Of Appeals Have Repeatedly Stayed Changes To Elections Laws On The Eve Of Election Day
This Court has repeatedly stayed orders directing last-minute changes to election laws “[g]iven the imminence of the election.” Purcell, 549 U.S. at 5. The Court has identified an imminent election as one “just weeks” away—while the election here is just days away. Id. at 4. Consequently, this Court’s customary practice is to stay lower court orders directing changes to election laws on the eve of Election Day and “allow the election to proceed without an injunction suspending [election] rules.” Id. at 6. This is a long-standing practice. See, e.g., Williams v. Rhodes, 393 U.S. 23, 34– 35 (1968) (denying relief because it would result in “serious disruption of [the] election process” and “confusion” for voters).
In just the past few years, the Court time and again has stayed orders changing election laws when there were imminent deadlines—even with much more time remaining than the changes ordered here a mere five days before Election Day. See,
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e.g., North Carolina v. League of Women Voters of N. Carolina, 574 U.S. 927 (2014) (this Court, 27 days before Election Day, stayed a lower court order changing election laws 32 days before Election Day); Husted v. Ohio State Conference of N.A.A.C.P., 573 U.S. 988 (2014) (this Court, 36 days before Election Day, stayed a lower court order changing election laws 61 days before Election Day); Purcell, 549 U.S. at 4-5 (this Court, 18 days before Election Day, stayed a lower court order changing election laws 33 days before Election Day); see also Abbott v. Perez, 138 S. Ct. 49 (2017) (staying order directing that federal court would change election law unless Legislature did so within 3 business days, see Abbott v. Perez, 138 S. Ct. 2305, 2318 (2018)); Gill v. Whitford, 137 S. Ct. 2289 (2017) (staying order directing that federal court would change election law unless Legislature did so within approximately 5 months); Perry v. Perez, 565 U.S. 1090 (2011) (this Court, 6 days before candidate registration deadline, stayed a lower court order changing election laws 22 days before candidate registration deadline).
This Court’s practice of granting stays to maintain the status quo of state election laws ensures that voters, candidates, and political parties know and adhere to the same neutral rules throughout the election process. As Purcell explained, “[c]onfidence in the integrity of our electoral process is essential to the functioning of our participatory democracy.” 549 U.S. at 4. Fundamental fairness of the consistent application of established, accepted rules necessarily furthers the “integrity of our electoral process.” Id. Conversely, “voter confusion” is a paramount concern whenever
- 10 -

a court orders changes to established state election laws on the eve of an election. Id. at 4–5. And “[a]s an election draws closer, that risk will increase.” Id. at 5.
The courts of appeals have regularly followed the Purcell principle by staying orders changing election laws when an election is imminent. See, e.g., Crookston v. Johnson, 841 F.3d 396, 397–98 (6th Cir. 2016); Veasey v. Perry, 769 F.3d 890, 892–96 (5th Cir. 2014); Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012); Respect Maine PAC v. McKee, 622 F.3d 13, 14, 16 (1st Cir. 2010); Ne. Ohio Coal. for Homeless and Serv. Employees Int’l Union, 467 F.3d 999, 1003–04, 1012 (6th Cir. 2006); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 916–17, 919–20 (9th Cir. 2003) (en banc) (per curiam); Page v. Bartels, 248 F.3d 175, 195–96 (3d Cir. 2001).
Indeed, in rejecting other challenged portions of the district court’s injunction, the Seventh Circuit acknowledged and applied this principle. App. 3–4. But—without any analysis or explanation—it refused to stay the relevant portion of the district court’s injunction permitting the counting of ballots that were cast up to almost a week after Election Day. This change to Wisconsin law was imposed by the district court merely five days before the scheduled election, when absentee and early voting had already begun.
This was a deeply consequential and disruptive change. It will inevitably sow confusion over when voters need to submit their absentee ballots. A last-minute change to a voter deadline carries an increased risk that voters will not appreciate when votes actually must be cast. See Purcell, 549 U.S. at 4–5. Additionally, the district court’s order encourages absentee voters to hold their absentee ballots beyond
- 11 -

the April 7 Election Day, evaluate reports (authorized or otherwise) about exit polling and in-person voting, and then cast their votes days after in-person voting has concluded. See infra Part I.B.2. This information gap creates a fundamental unfairness that undermines the integrity of the election. Absentee voting should not be a procedure that gives some voters dramatically different incentives and information than others, permits advocacy groups to strategically chase down ballots that were not cast on election day, and otherwise disrupts Wisconsin statutes that aim to separate cleanly the time for ballot casting and ballot counting.
B. Under the Anderson/Burdick Framework, The State’s Interest In Avoiding A Two-Track Election—In Which Numerous Voters Might Strategically Cast Ballots After Election Day Results Are Announced—Is Overwhelming
1. To prevail on a vote-burden claim under Anderson/Burdick, see Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983), Respondents must satisfy a two-step inquiry, bearing a heavy burden at each turn. First, they must establish both a cognizable burden on the right to vote from a challenged law and that burden’s severity. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). Alleged hardships are measured against the baseline of “the usual burdens of voting.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008) (controlling opinion of Stevens, J.). Applying that standard, this Court has held that “making a trip to the [D]MV, gathering the required documents, and posing for a photograph surely do[ ] not qualify as a substantial burden on the right to vote.” Id. at 198.
- 12 -

At the second step, Respondents must show that the alleged burden outweighs the State’s interest. Id. If the burden on the Respondents’ constitutional rights is “severe,” a state’s regulation must be narrowly drawn to advance a compelling state interest. Burdick, 504 U.S. at 434. If, on the other hand, the burden is merely “reasonable” and “nondiscriminatory,” the State’s legitimate regulatory interests suffice. Id. In either case, as Judge Easterbrook has explained, a justification’s sufficiency is generally a “‘legislative fact’” that must be accepted if reasonable, not an “‘adjudicative fact[ ]’” subject to courtroom testing. Frank v. Walker, 768 F.3d 744, 750 (7th Cir. 2014); see Crawford, 553 U.S. at 194–97 (opinion of Stevens, J.).
Last, Respondents raising a facial challenge to a voting law—seeking its across-the-board invalidation—must clear a final, especially steep hurdle. Id. at 200 (“heavy burden of persuasion”). Courts “must consider only the statute’s broad application to all [of the State’s] voters,” and the “facial challenge must fail where the statute has a plainly legitimate sweep.” Id. at 202–03 (citation omitted). Hence the challenge to Indiana’s photo ID law in Crawford fell short because “[t]he application of the statute to the vast majority of Indiana voters [was] amply justified.” Id. at 204. Likewise Burdick “upheld Hawaii’s prohibition on write-in voting despite the fact that it prevented a significant number of voters from participating in Hawaii elections in a meaningful manner.” Id. at 190 (quotation omitted).
2. In this exceptionally important case, there is a reasonable likelihood this Court would grant review and reverse the lower court’s holding that the Constitution
- 13 -

compels Wisconsin to allow absentee ballots to be cast after election day—a fundamental change to Wisconsin’s election procedures.
To begin, the district court’s decision to grant a form of extraordinary relief that Respondents never requested below itself supports the granting of a stay. See Heckler v. Redbud Hosp. Dist., 473 U.S. 1308, 1312–13 (1985) (Rehnquist, J., in chambers) (noting that a district court’s granting “sweeping ‘preliminary’ relief” that the plaintiff “did not even seek” “would prompt at least four Members of this Court to grant review should the Court of Appeals affirm that aspect of the District Court’s order”); see also C.I.R. v. McCoy, 484 U.S. 3, 6 (1987) (court of appeals could not grant relief “beyond” what could have been sought from the Tax Court below).
Unsurprisingly, Respondents did not introduce any evidence to support a claim that post–election day absentee voting would be necessary to avoid unduly burdening anyone’s right to vote. See App. 44. Their concern focused instead on the potential burden that Wis. Stat. § 6.87(6) imposed on voters who would receive and complete their ballots by election day, but—due to the undisputed increase in absentee voting and the claimed potential for slowdown in mail service—would not be able to ensure they would be delivered to their polling place on election day. App. 44; D.Ct. Doc. 62 at 3–4, 8. The Respondents thus plainly never showed that there would be any burden on voting rights for Respondents to put their ballots in the mail on or before election day.
Second, the State’s interests in avoiding what are effectively two voting deadlines—here, one on April 7 and another on April 13—would amply justify any
- 14 -

burden imposed by its statute. Requiring that all voters vote by a single date, either by absentee ballots sent by that date or by voting in person, ensures—indeed, is necessary to ensure—the “orderly administration” of an election, Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.).
Having only one voting deadline also furthers the State’s “compelling interest in preserving the integrity of its election process,” Eu, 489 U.S. at 231. Consider the consequences of the district court’s order. Because municipal clerks in Wisconsin must publicize the returns of ballots cast on or after election day as soon as they are counted, see Wis. Stat. § 7.51(4)(b), (c), under the district court’s order, electors would have an incentive to withhold their ballots until the bulk of returns are released, perhaps even choosing not to cast their ballots at all if early returns suggest that their favored candidate will not likely overcome an election-night deficit. Meanwhile, campaigns would seize upon the opportunities presented under this rolling, singleelection model, pressuring electors who had not yet participated to cast their ballots for this or that candidate, all the while undermining all timely-cast ballots and, more broadly, casting a cloud of illegitimacy over the entire election. Indeed, the League of Women Voters has previously recognized that projections “for election night victory when polls are open for any given office serve[] no positive purpose in the election process and may indeed have serious and harmful effects on voter confidence in the integrity of the election system and in the value of an individual vote.” Hearing Before the Task Force on Elections of Comm. of H. Admin. and Subcomm. on Telecomm.,
- 15 -

Cons. Protection, and Fin. of Comm. on Energy and Commerce, 97th Cong. 66 (1981) (statement of Dorothy Ridings, President, League of Women Voters).
Although the district court belatedly tried to diminish this risk by amending its order to require that returns not be released before April 13, it failed to actually protect against the harm its order creates. Nor is there any practicable way for the court to fix these problems. The district court instructed the Elections Commission and “any inspector” not to “releas[e] any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated,” App. 6, but Wisconsin law does not impose the duty of releasing election results on the Commission or any inspectors in the first place—it places that duty instead on municipal clerks. See Wis. Stat. § 7.51(4)(b) (“The chief inspector, or one of the inspectors appointed by him or her, immediately after the votes are tabulated or counted at each election, shall report the returns of the election to the municipal clerk. . . . The clerk shall then make the returns public.” (emphasis added)). In any event, the court could not have stopped Wisconsin’s municipal clerks from releasing election-day results even if it had tried, since municipal clerks are not parties to these lawsuits and therefore not subject to the court’s powers. Smith v. Bayer Corp., 564 U.S. 299, 305 (2011) (“[A] court’s judgment cannot bind nonparties.”).7 Additionally—given the number of clerks and other
7 Although the Wisconsin Elections Commission does have some enforcement authority over election officials—for example, it may commence investigations upon a complaint and bring actions for violations of Chapters 5 through 12, see Wis. Stat. §§ 5.05(2m), 5.06, 5.08, and 5.081—these enforcement matters are triggered only once there is some kind of allegation that an election statute has been violated. See Wis. Stat. § 5.06(1) (“Whenever any elector of a jurisdiction or district served by an election official believes that
- 16 -

parties involved in the counting process—it is doubtful and unrealistic for any court
order to prevent widespread leaks about the progress of a controversial and hotly
contested state election.
The district court portrayed its extension of the time for voting as an act of
judicial modesty. Yet even as it disclaimed any desire to “further alter[] statutory
requirements” by “add[ing] a postmarked-by date requirement,” it undermined the
most important part of section 6.87(6). App. 47. The deadline for the delivery of ballots
is the demarcation point for two distinct phases of the election: the time for casting
ballots, and the time for counting them. Wisconsin law generally observes this
important distinction. See Wis. Stat. § 6.88(1) (requiring absentee ballots generally
to remain “unopened” when received); Wis. Stat. § 7.51(1) (requiring canvassing of
results “[i]mmediately after the polls close” (emphasis added)).8
Given the challenges imposed by COVID-19, it is understandable that the
district court wanted to ensure that voters who can complete their ballots by election
day, but—due to mail delays and safety concerns about physically bringing their
a decision or action of the official or the failure of the official to act with respect to any matter concerning…election administration”). Thus, should a municipal clerk announce or otherwise publicize the unofficial election results, the harm will have occurred.
8 Wisconsin is hardly alone in prohibiting counting or release of voting results while voting is ongoing. Numerous states contain similar laws advancing this interest. See, e.g., Alaska Admin. Code tit. 6, § 27.175; Ill. Admin. Code tit. 26, § 205.10; 950 Mass. Code Regs. 54.03; Code Me. R. tit. 01-001 Ch. 803, § 5; Mo. Code Regs. Ann. tit. 10, § 70-6.010; S.D. Codified Laws § 12-19-46. Others prohibit the publishing of results before polls are closed or votes counted. See 8 Colo. Code Regs. § 1505-1:7; Iowa Code Ann. § 53.23. And several states make it a crime to release results before the polls are closed. Fla. Stat. Ann. § 101.68; Neb. Rev. Stat. Ann. § 32-1545; N.M. Stat. Ann. § 1-20-19.1.
- 17 -

ballot to the polling place—could not deliver them by election day.9 But that concern cannot justify the fundamentally different relief of allowing voters to wait and actually cast their vote for nearly a week after the deadline for everybody else. Compounding its error, the court conceded that there was “no persuasive evidence” for keeping April 7 as the date by which voting must be completed. This amounted to placing the burden of proof under Anderson-Burdick on the State and not the Respondents, where it belongs. And it was especially unfair to reallocate this burden when this issue had not even been squarely raised by the parties before the district court’s order.
Finally, because there was no evidence to sustain this claim as to any voter (the Respondents having not even tried), there was also a fortiori insufficient evidence to invalidate application of Section § 6.87(6) as to all voters. In other words, because “[t]he application of [this] statute to the vast majority of [Wisconsin] voters [was] amply justified,” which the Respondents did not and could not refute, the facial remedy that the court ordered was improper. Crawford, 553 U.S. at 204 (opinion of Stevens, J.). II. Applicants Will Suffer Irreparable Harm Absent A Stay
Any time a State is enjoined by a court from effectuating statutes enacted by the representatives of its people, it suffers a form of irreparable injury. Abbott v.
9 Along this line, the Wisconsin Elections Commission made clear to the district court that they did “not object to any absentee ballot postmarked by April 7, 2020 and received by April 13, 2020 by 4:00 p.m.” App. 44 (emphasis added).
- 18 -

Perez, 138 S. Ct. 2305, 2324 & n.17 (2018). And the “State indisputably has a compelling interest in preserving the integrity,” Eu, 489 U.S. at 231, and “orderly administration,” Crawford, 553 U.S. at 196 (controlling plurality of Stevens, J.), of its elections.10 Further, the Republican National Committee and Republican Party of Wisconsin have an interest in having their members’ rights as voters not undermined by eleventh-hour changes to election laws, including by permitting post-election voting. The irreparable harm to Applicants from this injunction is especially grave, given that the court has enjoined a state law imposing a deadline on voting on the eve of a statewide election. Applicants have explained these significant burdens and harms flowing from this injunction above. See supra Part I.B.2.
On the other end of the equitable balance, the district court failed to offer anywhere near sufficient equitable reasons for its decision to allow voting after election day. The court expressed concern that ballots diligently returned may not be counted, under the April 7 statutory deadline. App. 45–46. But the Respondents submitted evidence to support their point only that it would be hard for voters to get their ballots to clerks by election day, due to the speed of the mail, even though the ballots would—in fact—be postmarked by election day. See supra Part I.B.2. The Respondents did not provide any evidence to justify allowing voters to mail in their ballots after election day, since they were never even asking for this relief.
10 Here, the Legislature is speaking for the State of Wisconsin and its interests in the validity of its laws, including its election laws, see Bethune-Hill, 139 S. Ct. at 1952; Wis. Stat. §§ 13.365(3), 803.09(2m), as the Seventh Circuit properly concluded, App. 4.
- 19 -

CONCLUSION This Court should issue the requested partial stay.
·tted,

MISHATSEYTLIN KEVIN M. LEROY Troutman Sanders LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606

,_._..,_,_,__,_~AWBRIDGE
Counsel of Record Consovoy McCarthy PLLC Ten Post Office Square 8th Floor South PMB #706

Counsel for Wisconsin Legislature

Boston, MA 02109

in 3:20-cv-249, -278, -284

(617) 227-0548 patrick@consovoymccarthy.com

ERICM. MCLEOD HUSCHBLACKWELLLP P.O. Box 1379

Counsel for Republican National Committee et al.

33 East Main Street, Suite 300 Madison, WI 53701-1379

RYANJ. WALSH
AMY MILLER

LISAM. LAWLESS

EIMERSTAHLLLP

HUSCHBLACKWELLLP

10 East Doty Street

555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819

Suite 800 Madison, WI 53703 Counsel for Wisconsin Legislature

Counsel for Wisconsin Legislature in in 3:20-cv-284

3:20-cv-249

April 2020

- 20 -

No. ______
In the Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, ET AL. APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

THE WISCONSIN STATE LEGISLATURE, APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

APPENDIX TO EMERGENCY APPLICATION FOR STAY

To the Honorable Brett M. Kavanaugh Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Seventh Circuit

MISHA TSEYTLIN KEVIN M. LEROY TROUTMAN SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606
Counsel for Wisconsin Legislature in 3:20-cv-249, -278, -284
ERIC M. MCLEOD HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819
Counsel for Wisconsin Legislature in 3:20-cv-249

PATRICK STRAWBRIDGE Counsel of Record CONSOVOY MCCARTHY PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com
Counsel for Republican National Committee et al.
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street Suite 800 Madison, WI 53703
Counsel for Wisconsin Legislature in 3:20-cv-284

TABLE OF CONTENTS
Court of Appeals Order Denying Emergency Stay in Part and Granting in Part (Apr. 3, 2020) .............................................................................................App. 1 District Court Order Amending Preliminary Injunction (Apr. 3, 2020) .............App. 5 District Court Order Granting Motion for Preliminary Injunction in Part and Denying in Part (Apr. 2, 2020) ..............................................................................App. 8 District Court Order Granting Motion For Temporary Restraining Order and Preliminary Injunction In Part and Denying in Part (Mar. 20, 2020) ............. App. 61 The First Amendment to the United States Constitution ................................ App. 82 Section 1 of The Fourteenth Amendment to the United States Constitution..App. 82 Wisconsin Statute Section 6.87(6)...................................................................... App. 82 Section 1983 of Chapter 42 of the United States Code ..................................... App. 82 Section 1988 of Chapter 42 of the United States Code ..................................... App. 83

Case: 20-1538 Document: 30

Filed: 04/03/2020 Pages: 4

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

April 3, 2020

By the Court:

DEMOCRATIC NATIONAL COMMITTEE,

] Appeals from the United

et al.,

] States District Court for

Plaintiffs-Appellees,

] the Western District of

] Wisconsin.

Nos. 20-1538 & 20-1546

v.

]

] Nos. 3:20-cv-00249-wmc,

MARGE BOSTELMANN, et al.,

]

3:20-cv-00278-wmc,&

Defendants

]

3:20-cv-00284-wmc

]

and

] William M. Conley,

]

Judge.

REPUBLICAN NATIONAL COMMITTEE,

]

et al.,

]

Defendants-Appellants,

]

------------------------------------]

DEMOCRATIC NATIONAL COMMITTEE,

]

et al.,

]

Plaintiffs-Appellees,

]

]

Nos. 20-1539 & 20-1545

v.

]

]

MARGE BOSTELMANN, et al.,

]

Defendants,

]

]

APPEAL OF: WISCONSIN STATE

]

LEGISLATURE

]

]

The following are before the court:

1. WISCONSIN LEGISLATURE’S EMERGENCY MOTION TO STAY THE PRELIMINARY INJUNCTION AND FOR AN ADMINISTRATIVE STAY, filed on April 2, 2020, by counsel.

2. EMERGENCY MOTION OF REPUBLICAN NATIONAL COMMITTEE AND REPUBLICAN PARTY OF WISCONSIN FOR

- App. 1 -

Case: 20-1538 Document: 30

Filed: 04/03/2020 Pages: 4

Nos. 20-1538, 20-1539, 20-1545 & 20-1546

Page 2

ADMINISTRATIVE STAY AND STAY PENDING APPEAL, filed on April 2, 2020, by counsel.
3. GEAR PLAINTIFFS’ RESPONSE IN OPPOSITION TO INTERVENORDEFENDANTS-APPELLANTS’ MOTION FOR ADMINISTRATIVE STAY AND STAY PENDING APPEAL, filed on April 3, 2020, by counsel.
4. LEWIS PLAINTIFFS’ OPPOSITION TO MOTIONS TO STAY, filed on April 3, 2020, by counsel.
5. OPPOSITION OF PLAINTIFFS-APPELLEES DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN TO MOTIONS TO STAY THE PRELIMINARY INJUNCTION AND FOR AN ADMINISTRATIVE STAY IN NOS. 20-1538 AND 20-1539, filed on April 3, 2020, by counsel.
6. REPLY OF WISCONSIN LEGISLATURE IN SUPPORT OF EMERGENCY MOTION TO STAY THE PRELIMINARY INJUNCTION AND FOR AN ADMINISTRATIVE STAY, filed on April 3, 2020, by counsel.
The court is in receipt of these emergency appeals, which have been referred to a three-judge panel.
The Democratic National Committee and the Democratic Party of Wisconsin, individual voters, and various community groups (collectively, “plaintiffs”) brought these three consolidated cases against Wisconsin election officials pursuant to 42 U.S.C. § 1983 challenging various aspects of the state’s primary election scheduled for April 7, 2020. They alleged that in light of shelter-in-place orders issued by the governor due to the COVID-19 crisis, voters will rely very heavily on absentee voting, and in their view, certain provisions of Wisconsin law governing absentee voting pose severe obstacles to some voters that unduly burdens their right to vote. Among other relief, they sought injunctive relief in the form of an extension of the electronic registration deadline; a suspension of the requirement for documentation and/or photo identification; a suspension of the requirement that each absentee ballot be signed by a witness. The Wisconsin State Legislature sought to intervene in the case, but the district

- App. 2 -

Case: 20-1538 Document: 30

Filed: 04/03/2020 Pages: 4

Nos. 20-1538, 20-1539, 20-1545 & 20-1546

Page 3

court denied this request. On April 2, 2020, following a hearing, the district court issued a lengthy order granting in part and denying in part the plaintiffs’ request for injunctive relief. The court subsequently made two minor amendments to the order. The Wisconsin State Legislature filed an emergency notice of appeal of the order denying intervention, and the Republican National Committee, which was permitted to intervene below, filed an emergency notice of appeal of the court’s preliminary injunction order. They both seek a stay of the court’s order. Notably, no aspect of theses appeals challenge the district court’s rejection of the plaintiffs’ request to enjoin live voting on April 7. Upon review of the parties’ filings,
IT IS ORDERED that the motions for a stay are DENIED as to the portions of the district court’s order that (1) enjoin the enforcement of the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted and extend the deadline for receipt of absentee ballots to 4:00 p.m. on April 13, 2020; and (2) enjoin the enforcement of the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020, and extend the deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) to 5:00 p.m. on April 3, 2020.
IT IS FURTHER ORDERED that the motions for a stay are GRANTED as to that portion of the district court’s order that enjoins the enforcement of Wis. Stat. § 6.87(2) for absentee voters who provide a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so. The court concludes that the district court did not give adequate consideration to the state’s interests in suspending this requirement. Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004). “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,” and “[v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). The court is also cognizant of the Supreme Court’s admonition that “[c]ourt orders affecting elections . . . can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4-5. This court is concerned with the overbreadth of the district court’s order, which categorically eliminates the witness requirement applicable to absentee ballots and gives no effect to the state’s substantial interest in combatting voter fraud. Griffin, 385 F.3d at 1130.

- App. 3 -

Case: 20-1538 Document: 30

Filed: 04/03/2020 Pages: 4

Nos. 20-1538, 20-1539, 20-1545 & 20-1546

Page 4

On March 29, 2020, the Wisconsin Election Commission issued Absentee Witness Signature Requirement Guidance that contained suggested options for allowing absentee voters to meet the state’s signature requirement. The guidance is available on the Commission’s website at https://elections.wi.gov/index.php/node/6790. The guidance came out of a meeting the Commission held on March 27, 2020, and contains at least five concrete alternative suggestions for how voters can comply with the state’s witness and signature requirements in light of the extraordinary challenges presented by the COVID-19 crisis. With the absentee ballot receipt date being extended to April 13, 2020, voters have more time to take advantage of one or another of the Commission’s suggestions for obtaining a signature. So, too, do we have every reason to believe the Commission, in keeping with the forward-leaning action it has taken thus far to accommodate voters’ interests while also striving to ensure their safety, will continue to consider yet other ways for voters to satisfy the statutory signature requirement (if possible, for example, by maintaining the statutory presence requirement but not requiring the witness’s physical signature). It is best to leave these decisions and any more particular prescriptions to the Commission, as it is better positioned to know what additional alternative suggestions are able to accommodate the many intersecting interests in play in the present circumstances.
IT IS FINALLY ORDERED that the court concludes that the Wisconsin State Legislature has standing to pursue this appeal, and that the district court erred in refusing to permit the Legislature to intervene in the case below. Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019); Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019).

- App. 4 -

Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

AMENDED PRELIMINARY

INJUNCTION ORDER

v.

20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S.

JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR.

and MARK L. THOMSEN,

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants. -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

- App. 5 -

Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 2 of 3

REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

IT IS ORDERED that defendants the Commissioners of the Wisconsin Election
Commission and its Administrator are ENJOINED as follows:
a) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted. The deadline for receipt of absentee ballots is extended to 4:00 p.m. on April 13, 2020.
b) Defendants and any inspector appointed under Wis. Stat. § 7.30(a)(b) are enjoined from releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated.
c) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020. The deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) is extended to 5:00 p.m. on April 3, 2020.

2 - App. 6 -

Case: 3:20-cv-00249-wmc Document #: 180 Filed: 04/03/20 Page 3 of 3 d) Defendants and Wisconsin municipal clerks are enjoined from enforcing Wis.
Stat. § 6.87(2) as to any absentee voter who, prior to their ballot being tabulated, provides a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so. Entered this 3rd day of April, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
3 - App. 7 -

Case: 3:20-cv-00249-wmc Document #: 170 Filed: 04/02/20 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

OPINION AND ORDER 20-cv-249-wmc

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants. -----------------------------------------------------------------------------------------------------------------------------

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

20-cv-278-wmc

Defendants. -----------------------------------------------------------------------------------------------------------------------------

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REVERAND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

20-cv-284-wmc

In these three, consolidated cases, all filed in the last two weeks under the cloud of the emerging COVID-19 health crisis, plaintiffs1 challenge a number of election-related, statutory requirements for the rapidly approaching April 7, 2020, election. Contrary to the view of at least a dozen other states, as well as the consensus of medical experts across the country as to the gathering of large groups of people, the State of Wisconsin appears determined to proceed with an in-person election on April 7, 2020. In the weeks leading up to the election, the extent of the risk of holding that election has become increasingly clear, and Wisconsin voters have begun to flock to the absentee ballot option in record numbers. As a result, state election officials are confronting a huge backlog in requests for absentee ballots made online, by mail or in person, including an unprecedented number of questions regarding how to satisfy certain registration requirements, properly request an

1 For simplicity, all three groups of plaintiffs will be referred to simply as simply “plaintiffs” throughout this opinion unless otherwise indicated, while still recognizing that the three cases continue to retain their separate characters. See Ivanov-McPhee v. Washington Nat. Ins. Co., 719 F.2d 927, 928 (7th Cir. 1983) (“[A]ctions which have been consolidated do not lose their separate identity.”).
2
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absentee ballot, and return a properly completed absentee ballot in time to be considered for the April 7 election. On top of the burdens this influx has created for the Wisconsin Election Commission, its Administrator, staff and local municipalities in the days leading up to the election, that same group has been improvising in real time a method to proceed safely and effectively with in-person voting in the face of increasing COVID-19 risks, loss of poll workers due to age, fears or sickness, the resulting consolidation of polling locations, and inadequate resources.
Despite these truly heroic efforts, the three most likely consequences of proceeding with the election on this basis are (1) a dramatic shortfall in the number of voters on election day as compared to recent primaries, even after accounting for the impressive increase in absentee voters, (2) a dramatic increase in the risk of cross-contamination of the coronavirus among in-person voters, poll workers and, ultimately, the general population in the State, or (3) a failure to achieve sufficient in-person voting to have a meaningful election and an increase in the spread of COVID-19. Nevertheless, the Wisconsin State Legislature and Governor apparently are hoping for a fourth possibility: that the efforts of the WEC Administrator, her staff, the municipalities and poll workers, as well as voters willing to ignore the obvious risk to themselves and others of proceeding with in-person voting, will thread the needle to produce a reasonable voter turnout and no increase in the dissemination of COVID-19.
However unlikely this outcome may be, or ill-advised in terms of the public health risks and the likelihood of a successful election, the only role of a federal district court is to take steps that help avoid the impingement on citizens’ rights to exercise their voting
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franchise as protected by the United States Constitution and federal statutes. That is what the court attempts to do in this opinion and the order below, understanding that a consequence of these measures may be to further the public health crisis in this State. Unfortunately, that is beyond the power of this court to control.
In a prior opinion and order in the ’249 case, the court granted plaintiffs the Democratic National Committee and the Democratic Party of Wisconsin’s (jointly, the “DNC/DPW”) motion for temporary restraining order in part, extending the deadline by which an individual can register to vote electronically to March 30, 2020. The court denied the other requests, but signaled to plaintiffs that the court would consider their request for extension of the date by which absentee ballots may be counted toward the election and other relief in a motion for preliminary injunction. On March 27, 2020, plaintiffs filed a motion for preliminary injunction and supporting evidence, seeking an extension of the deadline for receipt of absentee ballots and a suspension of the witness signature requirement on those ballots, as well as reconsideration of the court’s ruling on the by-mail absentee deadline and documentation requirements. (’249 dkt. #61.) In addition, on March 28, 2020, plaintiffs in the ’278 and ’284 cases filed motions for temporary restraining orders, requesting postponement of the April 7, 2020, election and other relief duplicative of the relief requested in the ’249 motion for preliminary injunction. (’278 dkt. #8; ’284 dkt. #17.)
In response to these motions, the court consolidated the three cases, and set briefing on the various motions. After reviewing the opposition briefs filed by defendants the Commissioners and Administrator of the Wisconsin Election Commission (“WEC”) and
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the intervening defendants the Republican National Committee and the Republican Party of Wisconsin (jointly, the “RNC/RPW”), as well as amici briefs, the court further conducted an evidentiary hearing and oral argument on April 1, 2020, at which the parties appeared by counsel and WEC Administrator Meagan Wolfe provided extensive testimony in response to the court’s questions, as well as those posed by counsel.2
For the reasons that follow and provided on the record during the hearing on plaintiffs’ motions, the court will grant plaintiffs’ motions in part, and provide the following preliminary relief: (1) enjoin the enforcement of the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted and extend the deadline for receipt of absentee ballots to 4:00 p.m. on April 13, 2020; (2) enjoin the enforcement of the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020, and extend the deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) to 5:00 p.m. on April 3, 2020; and (3) enjoin the enforcement of Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.3
2 Initially, the Commissioners were represented by the Attorney General of Wisconsin. But on March 26, 2020, the Governor appointed special counsel to represent them pursuant to Wis. Stat. § 14.11(2)(a). 3 The court will reserve on the question as to whether the actual voter turnout, ability to vote on election day or overall conduct of the election and counting votes timely has undermined citizens’ right to vote.
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FACTS A. Overview of the WEC and Voting in Wisconsin
The WEC is charged with overarching responsibility to administer and enforce Wisconsin’s election laws. In administering elections, the WEC works with the state’s 72 county clerks and 1,850 municipal clerks. The WEC issues clerk communications, training materials and forms for local clerks. In turn, local clerks are tasked with implementing any changes in policy or law in their community, including administering absentee ballot voting. About two-thirds of the clerks in Wisconsin municipalities are part-time.
After the polls close, election inspectors are charged with tabulating the votes received at the polling places; municipal clerks are to report the returns within two hours after tabulation; and the county clerks are to post the results within two hours after receiving the returns. Wis. Stat. §§ 7.51(1), (4), 7.60(1). Municipalities have two ways to count absentee ballots: (1) count absentee ballots at the polling places, Wis. Stat. §§ 6.88, 7.51; or (2) count absentee ballots at a central location by a municipal board of absentee ballot canvassers, Wis. Stat. § 7.52. Under either method, the election inspector or absentee ballot canvasser reviews the certification contained on the envelope, and if the certification is insufficient, the ballot is not counted. Wis. Stat. §§ 6.88(3)(b), 7.52(a).
For the upcoming April 7 election, municipal boards of canvass have until April 13 to certify the results to the county. The county boards of canvass also have 10 days after the election to certify their results to the WEC or April 17, 2020, for the upcoming election. Wis. Stat. § 7.60(5). The municipal boards of canvass must further publicly declare the results for municipal contests by the third Tuesday of April, or in the case of
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the April 7 election, by April 21, 2020. Wis. Stat. § 7.53(2)(d). Finally, the WEC has until May 15, 2020, to certify the election results for state and federal contests. Wis. Stat. § 7.70(3)(a).
In addition to the presidential primaries, the April 7, 2020, election has the following state and local seats on the ballot: a Wisconsin Supreme Court justice; three Wisconsin Court of Appeals judges; 34 Wisconsin circuit court judges; 102 municipal court judges; 1,596 county positions; 763 city positions; 464 village positions; 391 town positions; 565 school board seats; and 12 sanitary district supervisory board positions. (Gov. Evers Amicus Br. (dkt. #151) 6.)
B. Current State of COVID-19 Health Crisis As of March 27, the date the DNC/DPW plaintiffs filed their motion for preliminary
injunction, the state was reporting more than 710 cases of COVID-19 and at least 12 deaths. As of the date of this opinion and order, there are 1,550 confirmed cases in Wisconsin and 24 deaths.4 Wis. Dep. of Health Servs., “Outbreaks in Wisconsin” (as of Apr. 1, 2020), available at https://www.dhs.wisconsin.gov/outbreaks/index.htm. While Wisconsin and other parts of the country are taking steps to “flatten the curve,” it is clear that the outbreak in Wisconsin is still somewhat near the beginning of that curve, with evidence of increasing community spread. (Pls.’ PFOFs (’284 dkt. #19) ¶¶ 56-57; see also Gov. Evers Amicus Br. (’249 dkt. #151) 8 (“[T]he COVID-19 epidemic in Wisconsin will
4 Moreover, Wisconsin’s Department of Health Services’ chief medical officers and state epidemiologist for communicable diseases estimate that the actual number of Wisconsinites with COVID-19 is up to ten times higher than the number who have tested positive. (Gov. Evers Amicus Br. (’249 dkt. #151) 7 & n.12.)
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get worse before it gets better,” with the DHS Secretary-Designee estimating that “it could be ‘10-plus’ days before the growth curve of COVID-19 flattens out in Wisconsin.”).)
On Tuesday, March 24, Governor Evers issued a “Safer-at-Home Order,” requiring all Wisconsinites to shelter in place to slow the spread of COVID-19 until April 24, 2020, or until a superseding order is issued. (Spiva Decl., Ex. 4 (’249 dkt. #63-4) (also known as “Emergency Order #12”).) This order is consistent with the Centers for Disease Control and Prevention’s (“CDC”) recommendations that people in the at-risk category, which includes people who are 65 years old or older or who have underling health conditions and diseases, including chronic lung diseases, asthma, diabetes, serious heart conditions, and are otherwise immune-compromises, stay at home and avoid non-essential travel. (Pls.’ PFOFs (’278 dkt. #16) ¶ 6.) According to U.S. Census Bureau 5-year estimates, 15 per cent of the 2,328,754 Wisconsin households include someone 65 years of age or older.5
C. Increased Reliance on Absentee Ballots State actors have increasingly focused on encouraging individuals to vote by
absentee ballot, with Governor Evers recently calling on the Legislature to enable all registered voters to receive a ballot by mail and extend the time for mailed-in absentee ballots to be counted. (Pls.’ PFOFs (’284 dkt. #19) ¶ 67.) On March 24, the Governor issued an “EMERGENCY ORDER #12: SAFER AT HOME ORDER,” directing all Wisconsinites to stay at their home and places of residence, but a week later amended that
5 Although the number of those households occupied by those only 65 years or older is unclear, 675,000 households in the state are one-person, and 862,900 are two-person households. (Dkt. #166-4, Ex. 54.) By extrapolation, plaintiffs represent that 250,000 of these are over 65. (Pls.’ PFOF (‘278 dkt. #16) ¶ 20.)
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order to explain that “the Safer at Home Order is not intended to eliminate in-person absentee voting for the April 7, 2020, election” or “in person voting on the scheduled election date.” (Gov. Evers Amicus Br. (’249 dkt. #151) 5 & n.8.) In turn, the WEC indicated that it cannot cancel or postpone the election, and that “any change may require court intervention, an act of the Legislature, or an order of the Governor.” (Pls.’ PFOFs (’284 dkt. #19) ¶ 88.)
As a result, Governor Evers, the WEC Administrator, and the Mayor of Milwaukee, among other public officials, are encouraging voters to vote via absentee ballot. Ironically, while encouraging voting by absentee ballot, the options for in-person voting, either before the election day by absentee ballot or on election day are at risk of being eliminated or have been eliminated. In the City of Madison, 67% of poll workers are over 60 years of age, falling within the at-risk category for COVID-19, and 32% of poll workers have canceled their assigned, in-person voting shifts. Madison also limited in-person absentee voting to curbside voting and eliminated voting at other early voting locations. Similarly, the City of Milwaukee has reported that it no longer has sufficient staff to operate its three, in-person early voting locations, also eliminating the ability to register in-person before the election, although as the intervening defendants point out, drive-up early voting remains available through April 5. Milwaukee Elections Commission Website, available at https://city.milwaukee.gov/election#.XoFPkpNKiqA.
As of the date of the DNC/DPW plaintiffs’ motion, 699,431 absentee ballots have been requested statewide. As of the latest available data, that number has increased to 1,119,439, with today being the last remaining opportunity for individuals to request the
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mailing of an absentee ballot. WEC, “Absentee Ballot Report - April 7, 2020 Spring Election” (Apr. 2, 2020), available at https://elections.wi.gov/node/6806. As a point of reference, in the four spring elections from 2016 to 2019, the number of absentee ballots issued ranged from a low of 103,533 in 2017 to a high of 249,503 in 2016. (Burden Rept. (’249 dkt. #63-1) 7.)6 In a March 23, 2020, hearing on the court’s prior temporary restraining order, WEC Administrator Wolfe, stated “we’re also seeing unprecedented traffic for people requesting their absentee ballot.” (Pls.’ PFOFs (’249 dkt. #62-1) ¶ 8.) Anticipating this growth in demand, the WEC has distributed 1.2 million absentee ballot envelopes to municipal clerks throughout the state. At the hearing, WEC Administrator Wolfe testified that for the 2012 and 2016 spring elections, approximately 80-85% of the absentee ballots sent to voters were returned in time to be counted.
As a result of the significant uptick in absentee ballot requests, Madison City Clerk Maribeth Witzel-Behl represents that Madison has received an “unprecedented number of requests for absentee ballots”; Milwaukee City Clerk Neil Albrecht estimates that “absentee ballot requests this election are ten times the normal number”; and Hudson City Clerk Becky Eggen avers that “[t]his election cycle is by far the busiest I have experienced in terms of volume and speed of requests for absentee ballots.” (Id. ¶¶ 9-11 (citing WitzelBehl Decl. (’249 dkt. #77) ¶ 7; Albrecht Decl. (’249 dkt. #73) ¶ 5); Eggen Decl. (’249 dkt. #65) ¶ 2).)
In light of these unprecedented numbers, at least some clerks are having trouble
6 Moreover, in previous spring elections, absentee ballots were about as likely to be returned in person as by mail, a highly unlikely scenario for this election given the health risks and reduced options for doing so. (Burden Rept. (’249 dkt. #63-1) 7-8.)
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processing the applications for absentee ballots. The Madison Clerk explains that “[a]ttempting to meet the extraordinary demand for absentee ballots and other requests from voters has strained the capabilities of the Clerk’s office,” and “[t]he ever increasing volume of requests for absentee ballots is threatening to overwhelm the staff available.” (Pls.’ PFOFs (’249 dkt. #62-1) ¶ 20 (quoting Witzel-Behl Decl. (’249 dkt. #77) ¶¶ 6, 8).) As of March 27, Madison had a backlog of more than 12,000 absentee ballots requests to process, and as a result it was experiencing at least a week-long delay in sending out absentee ballots. As of March 27, the City of Hudson had 2,000 pending requests for absentee ballots. The difficulty of processing the high volume requests is not limited to these cities, but extends to other municipal election offices across the state. Although WEC Administrator Wolfe represented at the April 1, 2020, hearing that the backlog had improved in recent days, she was unable to provide any specifics.
While recognizing the challenges in processing absentee ballot requests, the WEC maintains that “[i]t is not clear that the timely processing of requests for absentee ballots is impossible.” (Defs.’ PFOFs (’249 dkt. #109) ¶ 38.) In particular, the WEC represents that as of March 31, 2020, of the 972,232 absentee ballot requests, 942,350 have been sent out, leaving only a backlog of 30,000 statewide. WEC, “Absentee Ballot Report April 7, 2020 Spring Election” (Mar. 31, 2020), available at https://elections.wi.gov/node/6794. As of April 2, the backlog was approximately 21,590. WEC, “Absentee Ballot Report - April 7, 2020 Spring Election” (Apr. 2, 2020), available at https://elections.wi.gov/node/6806.
Nevertheless, in light of the challenges in processing requests and mailing out
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absentee ballots, the Madison City Clerk avers that “the 8:00 p.m. election day deadline for receipt of absentee ballots is completely unworkable.” (Pls.’ PFOFs (’249 dkt. #62-1) ¶ 29 (quoting Witzel-Behl Decl. (’249 dkt. #77) ¶ 13).) Specifically, the United States Postal Service estimates that two to three days are necessary for a ballot to arrive on time, although as the WEC points out during the past several years, USPS has advised voters to mail completed ballots one week before the election to ensure that they are received on or before election day, and since the beginning of the COVID-19 health crisis, the USPS is operating more slowly. (Defs.’ PFOFs (’249 dkt. #109) ¶¶ 8-9.)
As a result, the City Clerks for Madison and Milwaukee represent that “[t]here is no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request . . . will have the time to receive, vote and return their ballot by Election Day.” (Id. ¶ 30 (quoting Cities’ Amicus Br. (’249 dkt. #39) 5).) The Madison City Clerk estimates that more than 1,000 ballots will be received after the election day deadline; Milwaukee estimates that “thousands” will arrive late. Indeed, at the hearing, in light of the number of absentee ballot requests to date and with reference to the 2016 spring election as a point of comparison, Wolfe acknowledged that approximately 27,500 voters absentee ballots will be received after the receipt deadline of 8:00 p.m. on the day of the election, April 7, 2020, and, therefore, will not be counted. No doubt at least in part for this reason, the WEC informed the court on March 31, 2020, that it no longer objects to any absentee ballot postmarked by April 7, 2020, and received by 4:00 p.m. on April 13, 2020, being counted in the election. (’249 dkt. #152.) In their notice to the court, the WEC also represented that “If the votes received by 4:00 p.m. on April 13, 2020, are
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counted it will not impact the ability to complete the canvass in a timely manner.” (Id.)
At the hearing, WEC Administrator Wolfe and her counsel reiterated this position..
D. Challenges to Absentee Voting Posed by Safer-At-Home Order 1. Absentee Ballot Witness Signature Requirement The Safer-At-Home Order did not explain how its provisions would implicate any
of the state’s requirements for voting, including the witness signature requirement,
although as the intervening defendants point out, there are numerous exceptions to the
order including for “essential governmental functions” and “essential travel.” The
envelopes in which absentee voters enclose and send in their ballots include the following
language in the “Certification of Voter” box:
I certify that I exhibited the enclosed ballot unmarked to the witness, that I then in (his) (her) presence and in the presence of no other person marked the ballot and enclosed and sealed the same in this envelope in such a manner that no one but myself and any person rendering assistance under s. 6.87 (5), Wis. Stats., if I requested assistance, could know how I voted. Wis. Stat. § 6.87(2). (See also Defs.’ PFOFs (dkt. #109) ¶ 16.) A box labeled “Certification
of Witness” provides:
I, the undersigned witness, subject to the penalties of s. 12.60 (1) (b), Wis. Stats., for false statements, certify that I am an adult U.S. citizen and that the above statements are true and the voting procedure was executed as there stated. I am not a candidate for any office on the enclosed ballot (except in the case of an incumbent municipal clerk). I did not solicit or advise the elector to vote for or against any candidate or measure. Id. (See also Defs.’ PFOFs (dkt. #109) ¶ 17.)
On March 26, 2020, the Madison City Clerk issued a statement indicating that
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“there is no exception to the witnessing and signature requirement for mail-in ballots,” and referring voters to non-profit organizations who can assist with witness signatures while maintaining social distancing. (Pls.’ PFOFs (’278 dkt. #16) ¶ 18 (quoting Aguilera Decl., Ex. T (’278 dkt. #15-20)).) On March 29, the WEC also issued guidance suggesting several options for voters to meet this requirement and avoid direct interaction, including a friend or neighbor may watch the voter mark their ballot through a window, open door or other physical barrier, and even may do so by video chat, like Skype or Facetime, with the voter then placing the ballot outside for the witness to sign and mail. WEC, “Absentee Witness Signature Requirement Guidance” (Mar. 29, 2020), available at https://elections.wi.gov/node/6790. The WEC even suggested that the voter could ask an individual delivering groceries or food to witness the ballot. Id. At the hearing, WEC Administrator Wolfe acknowledged that some of the guidance, in particular that concerning use of video chat, may not work for some elderly voters without access to or familiarity with the technology, and that the guidance may not account for all safety concerns about proper treatment of paper to avoid the spread of COVID-19. For its part, the City of Milwaukee has established five places where voters can drop off their completed absentee ballots and get them witnessed by staff, although obviously individuals would have to leave their home to access these services.
There are 675,850 single member households in Wisconsin, a substantial number of which are over the age of 65, including the four individual plaintiffs in the ’278 case. (Pls.’ PFOFs (’278 dkt. #16) ¶ 20.) Plaintiffs also submit declarations from several other individuals living alone, and in high risk groups, who explain the challenges they face in
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complying with the witness signature requirement for absentee ballots and averring that they have been unable to secure the necessary signatures. (Pls.’ PFOFs (’249 dkt. #62-1) ¶¶ 36, 39 (citing declarations); Pls.’ PFOFs (’278 dkt. #16) ¶¶ 21-31 (citing plaintiffs’ declarations); Pls.’ PFOFs (’284 dkt. #19) ¶ 76 (citing declaration).) Plaintiffs’ expert further opines “for a person who lives alone, is immunocompromised and self-quarantining to protect their health, or who has contacted COVID-19 and is in quarantine to protect others, it may be nearly impossible to secure a witness signature in a timely fashion.” (Id. ¶ 37 (quoting Burden Rept. (’249 dkt. #63-1) 9).) The Madison City Clerk also avers that her office has received “numerous requests daily from individuals who have received an absentee ballot, but live alone and have no person to witness the ballot . . . [and] are afraid to leave their homes in search of a witness.” (Id. ¶ 38 (quoting Witzel-Behl Decl. (’249 dkt. #77) ¶ 11); see also Eggen Decl. (’249 decl. #65) ¶ 6).)7
2. Photo ID and Proof of Residency Requirements Plaintiffs similarly contend that the Safer-At-Home Order, and specifically the requirement that all non-essential business close, poses challenges to individuals who need a copy of a photo ID or proof of residency in order to register to vote and request an absentee ballot online or by mail. While the intervening defendants point out that the Safer-At-Home order exempts business from closure that may provide photocopying services, a question remains whether voters, especially the elderly or other high-risk individuals, will feel safe venturing out to those businesses. Plaintiffs’ expert again opines
7 As of March 31, 2020, the Milwaukee Clerk also avers that the city has received 450 absentee ballots that are missing the necessary witness signature. (Albrecht Decl. (’249 dkt. #135).)
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that “[w]ithout the assistance of an election official and perhaps other friends or family who are separated physically due to ‘social distancing’ measures taken in response to the virus pandemic, [the copying and mailing in a copy of a photo ID or proof of residency] will be an administrative and technological hurdle for some prospective voters,” especially given that absentee voting is a “new and foreign process” for many Wisconsin voters, although recognizing that absentee voting has been in place in Wisconsin for some time. (Pls.’ PFOFs (’249 dkt. #62-1) ¶¶ 43-44 (quoting Burden Rept. (’249 dkt. #63-1) 12.)
One individual specifically avers that because of her lack of access to a copier or scanner, she will not be able to vote in this election. (Id. ¶ 45 (citing Love Decl. (dkt. #68) ¶ 4.) Moreover, the Dane County Clerk avers that he has received “many calls from elderly voters who are unable to provide a copy of their photo ID as required to request an absentee ballot.” (McDonell Decl. (‘249 dkt. #74) ¶ 6.)8 In response, he has advised these voters “to indicate on their absentee ballot requests that they are ‘indefinitely confined’ due to illness,” and on March 25, 2020, he advised all Dane County voters that they “should continue to follow the law requiring a photo ID but that they may indicate as needed that they are indefinitely confined due to illness.” (Id. ¶¶ 6-7.)
In response, the WEC issued guidance for indefinitely confined electors on March 29, 2020, which provides in pertinent part:
1. Designation of indefinitely confined status is for each individual voter to make based upon their current
8 The intervening defendants dispute McDonell’s account and other statements by clerks on hearsay grounds. At minimum, these statements are admissible for the impact they had on the declarants as voters. Fed. R. Evid. 803(3). To that extent, the court will at least credit the fact that some high risk voters have been paralyzed by the uncertain risks associated with venturing outside their homes.
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circumstance. It does not require permanent or total inability to travel outside of the residence. The designation is appropriate for electors who are indefinitely confined because of age, physical illness or infirmity or are disabled for an indefinite period.
2. Indefinitely confined status shall not be used by electors simply as a means to avoid the photo ID requirement without regard to whether they are indefinitely confined because of age, physical illness, infirmity or disability.
WEC, “Guidance for Indefinitely Confined Electors COVID-19” (Mar. 29, 2020),
available at https://elections.wi.gov/node/6788. This guidance goes on to explain:
We understand the concern over the use of indefinitely confined status and do not condone abuse of that option as it is an invaluable accommodation for many voters in Wisconsin. During the current public health crisis, many voters of a certain age or in at-risk populations may meet that standard of indefinitely confined until the crisis abates. We have told clerks if they do not believe a voter understood the declaration they made when requesting an absentee ballot, they can contact the voter for confirmation of their status. They should do so using appropriate discretion as voters are still entitled to privacy concerning their medical and disability status. Any request for confirmation of indefinitely confined status should not be accusatory in nature.
Id. (emphasis added).9
E. Challenges to In-Person Registration and Voting
While the significant increase in absentee ballot requests should decrease
9 In a March 31, 2020, order, the Wisconsin Supreme Court granted the Republican Party of Wisconsin’s motion for temporary restraining order, directing the Dane County Clerk to “refrain from posting advice as the County Clerk for Dane County inconsistent with the above quote from the WEC guidance.” Jeffersom v. Dane Cty., No 2020AP557-OA (Mar. 31, 2020). (’249 dkt. #130.) In so holding, the Supreme Court effectively adopted the WEC’s guidance of the term “indefinitely confined” as quoted above.
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significantly the number of in-person voters on April 7, assuming the total votes for this election fall somewhere in the mid-range of the total number of votes in the 2012 spring election (approximately 1.1 million) and the 2016 spring election (approximately 2.1 million), WEC Administrator Wolfe testified during the hearing that roughly 500,000 people would still need to vote in-person on April 7. In light of the COVID-19 health crisis and the various government orders, municipal clerks have expressed concerns about safely administering in-person voting and registration either before election day or on April 7. In response, the WEC has issued various communications, acknowledging concerns, including shortages of absentee ballot envelopes, polling locations, poll workers, hand sanitizer and cleaning products, as well as the real possibility that the clerks themselves may not be able to serve in the days leading up to election day and the election day itself. (Pls.’ PFOFs (’284 dkt. #19) ¶¶ 80-84.) Still, the WEC has directed municipal clerks to continue in-person registration and voting, while requiring at least six-feet of distance between voters and election workers.
As for election day, the WEC has directed that municipalities are required to conduct in-person election day voting and that local election officials and local elected officials are not authorized to terminate this option. (Defs.’ PFOFs (’249 dkt. #157) ¶ 2.) After consulting the public health officials, the WEC recently provided guidance for polling stations on election day as well. (Id. ¶ 3; see also Wolfe Decl., Ex. F (’249 dkt. #106-6).) This guidance requires hand washing or sanitizing stations, wiping down tables, door handles, pens, etc., every ten minutes, ensuring at least six-feet distance between voters and between voters and election workers, and avoiding handling of photo IDs, among other
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requirements. The WEC has purchased a large quantity of 70% ethyl alcohol liquid sanitizing product to provide clerks a disinfecting solution for use at polling sites, and is in the process of securing cleaning wipes. In addition, Governor Evers has indicated that he has agreed to use members of the Wisconsin Army National Guard to assist poll workers, although it is “anticipated that the assistance of the National Guard will not satisfy all of the current staffing needs.” (Gov. Evers Amicus Br. (’249 dkt. #151) 9.)
Even so, WEC Administrator Wolfe testified at the hearing that in a recent survey, 111 municipalities indicated that they did not have the capacity to staff even one polling place. Moreover, plaintiffs in the ’284 case submit more disturbing proposed findings of facts with respect to specific election preparations for the Cities of Milwaukee, Madison, Green Bay and Racine. In Milwaukee, the City has 592,000 residency, of which 439,000 are of voting age and approximately 298,000 are currently registered to vote. Approximately 40% of City residents are African-American; 17% are Hispanic/Latino; and 28% live in poverty, as compared to the state average of 13%. Milwaukee has 327 electoral wards and 180 polling stations, although 18 polling stations are unavailable due to risk of cross-contamination. In the 2016 spring presidential primary, Milwaukee documented 167,765 total ballots cast and processed 14,321 absentee ballots.
In preparation for the April 7, 2020, election, the City of Milwaukee will require some 300 staff members to assist in the processing of absentee ballots and 1,500 staff members for polling location operations. Due to the COVID-19 heath crisis, as of March 30, 2020, there are less than 400 election workers (without confirmation from all) and 50 central count workers available. An estimated 50% of the City’s regular election workers
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are over the age of 60, with approximately 33% over the age of 70. Milwaukee is concerned about training new poll workers due to the social distancing requirements. According to the City’s Clerk, “[w]hether imposed de jure or de facto, the City of Milwaukee likely will be unable to conduct in-person voting in its 327 wards on April 7, leaving mail-in absentee voting as the only means currently [available] by which Milwaukee voters will be able to vote for the Spring Election scheduled to occur on April 7.” (Pls.’ PFOFs (’284 dkt. #19) ¶ 98 (citing Albrecht Decl. (’284 dkt. #12) ¶ 9) (emphasis added).) The WEC disputes this, pointing to its guidelines requiring municipalities to conduct in-person absentee and election day voting.
In addition, as of March 30, 2020, the City of Milwaukee has processed approximately 66,850 requests for absentee ballots. The Clerk estimates that if the City continues to receive approximately 5,000 requests per day until the last day such requests may be received, April 2, and assuming that 5% of the ballots mailed will not be returned, the City will process an additional 38,000 ballots for an estimated total of 90,000 ballots. Assuming in-person voting on election day is not possible, the Clerk estimates that the turnout for Milwaukee will be approximately 70,000 less than originally estimated.
In turn, the City of Madison has a population of approximately 255,650, with 213,725 of voting age, approximately 179,648 of which are registered to vote. The City has 152 voting wards and 92 polling stations, although 14 are not available due to COVID19 health concerns, and the Madison Metropolitan School District is considering not allowing the City to use the 21 school facilities. Attempting to meet the demand for absentee ballots, other City of Madison employees have been reassigned to assist the City
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Clerk, but even with that influx of employees, some staff have been working 12-17 hour days. As of March 24, the City has sent 40,275 absentee ballots by mail and 1,273 by email, by March 30, the total number of absentee ballots issued was over 69,000. Nonetheless, the City is having a difficult time processing the applications for absentee ballots, and it now has a backlog of over 12,000 requests. In the 2016 spring presidential primary, Madison voters cast 118,219 ballots, including 10,272 absentee ballots. The City is anticipating as many as 118,000 absentee ballots to be cast in the April 7 election.
As of March 24, 2020, 666 poll workers have also canceled their assigned shift at the polls in the City of Madison for the April 7 election. As such, 774 of the 1,500 morning shifts and 715 of the 1,500 evening shifts are vacant. In addition, approximately 67% of the City’s poll workers were in the “at risk” category -- being over the age of 65. Accordingly, the City anticipates additional poll workers will opt not to work.10
As for Green Bay, as presented in the verified complaint in the Eastern District lawsuit, the City represents that it, too, is overwhelmed by the unprecedented demand for absentee ballots and has a backlog of over 4,000 requests with only six staff members, which includes employees from other departments, available to process the requests. As for election day, Green Bay currently lacks access to hand sanitizer or sanitation wipes, which are necessary to ensure cleanliness of polling places and limit potential exposure of
10 Dane County filed an amicus brief, in which it argues that the April 7 election should be postponed, including a statement from its Director of Public Health Madison & Dane County, in which she advises that a failure to postpone the election “would put all Wisconsin communities at greater risk of illness due to COVID-19, and puts our health care systems at risk of becoming overwhelmed and depleted of resources.” (’249 dkt. #150-3 (quoting Ex. C. (dkt. #150-5)).)
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COVID-19.11 Moreover, 90% of its 278 poll workers are age 60 or older, and only 54 have agreed to work on election day. Of the 54 poll workers who have agreed to work, only 11 are chief inspectors. The City avers that with these staff shortages, proceeding with the April 7 election is “not only impractical, it is wholly irresponsible given that the integrity of the election will be jeopardized.” (Pls.’ PFOFs (’284 dkt. #19) ¶ 125.)
Finally, with respect to Racine, like Milwaukee, it is more ethnically diverse than other cities in Wisconsin, with approximately 23% of its residents are African-American and 21% are Hispanic/Latino. In addition, 20% of Racine residents lives below the poverty level. Of Racine’s more than 34,000 registered voters, the City typically sends approximately 1,500 absentee ballots. As of March 26, 2020, Racine has sent 4,500 ballots, which while a significant number, represents a small percentage of Racine’s voters. (Coolidge Decl. (dkt. #7) ¶ 6.) For early voting, Racine has developed a process to ensure social distancing and attempt to limit exposure to COVD-19, but it does not believe these same protections will be viable on election day. Of the 135 poll workers who routinely and reliably work elections, fewer than 25 are under the age of 60, and as of March 31, 2020, only 50 are willing to work the April 7 election. Moreover, many of the chief election officials previously scheduled to work have also notified the City that they will not work the April 7 election.
In addition to considering the challenges faced by these four cities, plaintiffs in the
11 In its complaint in the Eastern District of Wisconsin, the City of Green Bay and the City Clerk, described the typical, in-person voting process on election day, noting several places where poll workers and voters will be closer to one another than the recommended six-feet separation for proper social distancing. (Pls.’ PFOFs (’284 dkt. #19) ¶ 78.)
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’284 case also contend that African-American and Latino voters are particularly burdened by the impact of the COVID-19 health crisis with respect to the April 7 election. Since the 2008 election in Wisconsin, between 10 to 15% of all registrations have occurred at a polling place on the election day. (Pls.’ PFOFs (’284 dkt. #19) ¶ 74.) For Milwaukee, approximately 20% of the total turnout for spring elections involve same-day registrants. (Id. ¶ 159.) Plaintiffs in the ’284 case further aver that a “significant number of AfricanAmerican voters have historically participated in same-day registration at the polls on election day, and will be unable to do this year due to the COVID-19 pandemic.” (Id. ¶ 153.) Furthermore, due to the digital divide, registering to vote online or requesting an absentee ballot online may present more of a barrier for low-income African-American and Latino voters.
The burdens posed by this election will also likely disproportionately impact elderly voters, who are most vulnerable to the COVID-19 threat. On March 25, Bryan Boland, a Canvass Lead for SEIUWI, one of the plaintiffs in the ’284 case, spoke with 43 people aged 60 and older living in the western part of Wisconsin. (Pls.’ PFOFs (’284 dkt. #19) ¶¶ 163-68 (citing Boland Decl. (’284 dkt. #2) ¶¶ 3-8); see also Lizotte Decl. (’284 dkt. #3) ¶¶ 3-10 (detailing additional concerns raised by voters ages 60 or older).) He avers that about half of the people that he spoke with were planning on voting in-person and would not request an absentee ballot, but a number of them recognized that if the coronavirus risks amplified, they might not be able to vote. A number of the people Boland spoke with also expressed difficulty in requesting a ballot on-line because of technical problems or lack
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of a computer or smart phone.12
OPINION The standard for determining whether a preliminary injunction or a temporary restraining order is appropriate is the same. See Planned Parenthood of Wis., Inc. v. Van Hollen, 963 F. Supp. 2d 858, 865 (W.D. Wis. 2013) (citing Winnig v. Sellen, 731 F. Supp. 2d 855, 857 (W.D. Wis. 2011)). Specifically, a plaintiff must first show “(1) that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action; (2) inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits.” Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017) (citing Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015)). Then, if this initial showing is successfully made, “the court must engage in a balancing analysis, to determine whether the balance of harm favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant’s interests.” Id. (citing Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053, 1057 (7th Cir. 2016)).
I. Irreparable Harm & Inadequate Remedies at Law The threatened loss of constitutional rights constitutes irreparable harm. See Preston
v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”); Elrod v. Burns, 427 U.S.
12 The WEC offered detailed facts about how postponing the election altogether would cause technical / logistics issues with respect to conducting the Special Election in the 7th Congressional District in particular (dkt. #157 at ¶¶ 8-17), but since the court does not believe this power lies within its purview, the court will not recite those here.
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347, 373 (1976) (where plaintiff had proven a probability of success on the merits, the threatened loss of First Amendment freedoms “unquestionably constitutes irreparable injury”). More specifically, courts have held that infringement on the fundamental right to vote amounts to an irreparable injury. See Obama for Am. v. Husted, 697 F.3d 423, 435 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable injury.”); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (holding that plaintiffs “would certainly suffer irreparable harm if their right to vote were impinged upon”).
Further, infringement on a citizens’ constitutional right to vote cannot be redressed by money damages, and therefore traditional legal remedies would be inadequate in this case. See Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (“The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate.”); League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no do-over and no redress.”). Accordingly, at least to the extent that they have demonstrated a likely constitutional violation as discussed below, plaintiffs have satisfied the first two prongs of the initial showing -- irreparable harm and inadequate remedies at law.
II. Likelihood of Success on the Merits & Balance of Equities The court now turns to the heart of the matter -- whether plaintiffs have
demonstrated a likelihood of success, and whether the balance of equities favors any of their requested relief. In the three motions, plaintiffs seek an order from the court restraining enforcement of the following six election-related requirements: (1) the current election day, April 7, 2020; (2) the current mail-in registration deadline under Wis. Stat.
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§ 6.28(1); (3) the requirement that copies of proof of residence and voter ID accompany electronic and by-mail voter registration, under § 6.34; (4) the requirement that copies of photo identification accompany absentee ballot applications, under §§ 6.86, 6.87; (5) the requirement that absentee ballots be signed by a witness, under § 6.87(2); and (6) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, under § 6.87.
In these consolidated cases, the merits question is whether any of the challenged provisions impose an unconstitutional burden on the right to vote. The right to vote is fundamental, and any alleged infringement on this right “must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). This right, however, is not absolute, Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986), and “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,” Storer v. Brown, 415 U.S. 724, 730 (1974).
Challenges to election laws are governed by the framework set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428
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(1992).13 Under the Anderson-Burdick standard, the court must (1) “determine the extent of the burden imposed by the challenged provision”; (2) “evaluate the interest that the state offers to justify that burden”; and (3) “judge whether the interest justifies the burden.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016) (citing Anderson, 460 U.S. 780; Burdick, 504 U.S. 428). When voting rights are severely restricted, a law “must be narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 280 (1992). But even “slight” burdens must be “be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (quoting Norman, 502 U.S. at 288-89).
Even if plaintiffs are able to show that the challenged laws are likely unconstitutional, however, that does not automatically entitle them to the relief that they seek. Instead, the court must proceed “to weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017) (citing Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). “In addition, the court must ask whether the preliminary injunction is in the public interest.” Id. (citing Jones, 842 F.3d at 1057). This latter consideration is
13 A citizen’s right to vote, and the Anderson-Burdick balancing test, is grounded in the First and Fourteenth Amendments. See Burdick, 504 U.S. at 434. So, while plaintiffs’ separately argue that the challenged provisions violate the equal protection clause and the due process clause of the Fourteenth Amendment, (see Pls.’ Br. (‘249 dkt. #62) 18-22), these concerns are properly addressed within the more specific Anderson-Burdick framework. See Harlan v. Scholz, 866 F.3d 754, 759 (7th Cir. 2017) (the Anderson-Burdick framework addresses “the constitutional rules that apply to state election regulations”); Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (the constitutionality of an election law is governed by the Anderson-Burdick standard).
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particularly critical here, as the Supreme Court has cautioned that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion . . . . As an election draws closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006).
A. Postponement of Election Date The court will begin with plaintiffs’ broadest request: that the court delay the April
7, 2020, election. They assert that “if the election remains on April 7, it will disenfranchise hundreds of thousands or more Wisconsin voters.” (Pls.’ Br. (‘284 dkt. #18) 2.) Although plaintiffs recognize that the decision to enjoin an impending election is serious, they maintain that such a measure is warranted given the immense burdens that will befall voters who attempt to exercise their franchise during the ongoing pandemic. (Id. at 8.)
First, plaintiffs contend that the burden that will be placed on citizens’ right to vote will not only be severe, but unprecedented. (Id. at 6.) Plaintiffs write that “[n]ever has an electorate in our state or country of this magnitude confronted the extreme burden of literally risking their health and lives in order to cast a vote.” (Id.) Moreover, they predict that in-person voting will be either cancelled or dysfunctionally understaffed as a result of poll workers’ decisions to stay home rather than risk their own health to operate the polls. (Id. at 2, 6.) Next, plaintiffs argue that the state has “no compelling interest justifying keeping the April 7 election date.” (Id. at 7.) According to plaintiffs, the election of candidates “by a mere fraction of qualified electors, under circumstances where a public crisis barred voters from participating, undermines the Defendants’ claims that adherence to the election schedule is essential to public confidence in the democratic process.” (Id. at 7-8.) Indeed, plaintiffs suggest that the state itself has an interest in postponing the
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election since it is in the state’s interest to hold a “meaningful” election which does not exclude significant number of eligible voters from the polls. (Id. at 8.)
Defendants, for their part, argue against delaying the election. The Commissioners maintain that they are capable of conducting an in-person election on April 7, despite the fact that certain unorthodox measures will need to be taken, such as consolidating polling stations and even possibly calling on Wisconsin National Guard members to serve as poll workers. In particular, the Commissioners voice concern over the cascading effects that may be caused by a delay in the scheduled election, including problems with processing ballots for upcoming elections and staying in compliance with federal laws regarding electronic tabulating equipment. (Defs.’ Opp’n (dkt. #155) 3-4.) More forcefully, the RNC/RPW argue that delaying the April 7 election would throw the state’s election preparations into turmoil and would harm those candidates who have spent time and resources campaigning. (RNC/RPW Opp’n (‘249 dkt. #138) 3-4.) Further, they note that such interference would be unprecedented, and urge that this court “should not be the first to grant that drastic relief.” (Id. at 4.)14
On the one hand, it is undeniable that the asserted state interests are strong. “The public interest in the maintenance of order in the election process is not only important, it is compelling.” Diaz v. Cobb, 541 F. Supp. 2d 1319, 1335 (S.D. Fla. 2008). “Preventing
14 The RNC/RPW also argue that plaintiffs’ claims should be denied because the additional burdens placed on voters are due not to state action, but the COVID-19 pandemic itself. (See RNC/RPW Opp’n (‘249 dkt. #96) 3; (‘249 dkt. #138) 2-3.) This argument is quickly dismissed. The state action challenged here is the enforcement of Wisconsin’s election laws; just as a state may not enforce an apportionment scheme that, although once constitutional, has through the passage of time resulted in uneven representation, Reynolds, 377 U.S. at 587, Wisconsin here cannot enforce laws that, even due to circumstances out of its control, impose unconstitutional burdens on voters.
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ambiguity and confusion serves” this compelling state interest. One Wisconsin Inst., Inc., 198 F. Supp. 3d at948. Moreover, more generally states have “a strong interest in their ability to enforce state election law requirements.” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 243 (6th Cir. 2011)
On the other hand, there is no doubt that the rapidly approaching election date in the midst of the COVID-19 pandemic means that citizens will face serious, and arguably unprecedented, burdens in exercising their right to vote in person. In-person absentee voting and pre-election, in-person registration has already been limited or even eliminated in some voting areas. An alarming number of poll workers have, understandably, cancelled their shifts, which is almost certain to lead to some degree of dysfunction on election day. Numerous polling stations have been ordered to close.
Although the Governor and other public officials have encouraged citizens to vote absentee, this is easier said than done. As plaintiffs have argued and as discussed below, the COVID-19 pandemic has raised concerns even for those seeking to vote absentee, particularly for those without access to the necessary technology. Further, unregistered voters at this point have no other option but to go in person to their clerk’s office or polling place on election day in order to register and thereby vote. Finally, voters who did not or could not vote absentee will be forced on election day to choose between exercising their franchise and venturing into public spaces, contrary to the public message to “stay home” delivered by countless public officials during the course of this pandemic. And this dilemma must be considered not only as an individual burden, but as a collective public health concern as the state continues to recommend limiting in-person interactions as
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much as possible. Indeed, most at risk will be poll workers themselves, who may well be exposed to large number of voters throughout the day, and, as described in the facts above, the majority of which fall within the 60+ age range that is most at risk for serious complications due to COVID-19.
In light of these competing interests, the court cannot say with confidence that the state’s asserted interests -- although strong -- are so compelling as to overcome the severe burdens that voters are sure to face in the upcoming election. Therefore, plaintiffs have demonstrated at least some likelihood of success on the merits of this claim. Even so, plaintiffs must further show that the balance of equities supports their requested relief.
In the balancing phase, “the court must compare the potential irreparable harms faced by both parties to the suit -- the irreparable harm risked by the moving party in the absence of a preliminary injunction against the irreparable harm risked by the nonmoving party if the preliminary injunction is granted.” Girl Scouts, 549 F.3d at 1100 (citing Ty, Inc., 237 F.3d at 895). Here, failing to delay the election day may well subject voters to unconstitutional burdens on their right to vote. The possibility that any law might disenfranchise qualified voters “would caution any district judge to give careful consideration to the plaintiffs' challenges.” Purcell, 549 U.S. at 4.
Yet an injunction delaying the election altogether is not without harm to defendants. As a general matter, “the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018). More specifically, the Commissioners have expressed serious concerns about the impacts of a delayed election. (See Defs.’ Opp’n (‘249 dkt. #155).) WEC Administrator Wolfe
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has explained that “changes to one aspect of the elections system have downstream impacts on voters, subsequent processes, and the ability of election officials to comply with statutory requirements and deadlines.” (Third Wolfe Decl. (‘249 dkt. #156) ¶ 9.) In particular, she has expressed concern that a delay to the April 7 election would interfere with the May election to be held in the 7th Congressional District, causing problems with “overlapping voter registration deadlines, overlapping absentee ballot procedures and time periods, voting equipment programming, and official canvass procedures.” (Id. ¶ 11.) Indeed, at the hearing, she testified that there are no other dates available that would not have some impact on another election to be held through September.
Crucially, “[w]hen conducting this balancing, it is also appropriate to take into account any public interest, which includes the ramifications of granting or denying the preliminary injunction on nonparties to the litigation.” Girl Scouts, 549 F.3d at 1100 (citing Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986); Ty, Inc., 237 F.3d at 895). Here, the public interest cuts both in favor and against court involvement. As a general matter, “[e]nforcing a constitutional right is in the public interest.” Whole Woman's Health All. v. Hill, 937 F.3d 864, 875 (7th Cir. 2019). And, certainly, the public interest “favors permitting as many qualified voters to vote as possible.” Obama for Am., 697 F.3d at 437.
That being recognized, a decision enjoining the election would not be an unequivocal benefit to all voters. As amicus Disability Rights Wisconsin points out, delaying the election day so that an all-mail election may be conducted, as has been suggested by some, may well adversely affect voters, including those with disabilities who
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may require accommodations only possible via in-person voting. (Disability Rights Wis. Amicus Br. (‘249 dkt. #121-1) 14.) Further, WEC Administrator Wolfe’s testimony regarding the administrability of a delayed April 7 election suggest that such an order could potentially hamper registration efforts, undermine absentee voting, and confuse voters. Finally, a court “is entitled to and should consider the proximity of a forthcoming election” when considering the propriety of equitable relief. Reynolds, 377 U.S. at 585. This is because “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion . . . . As an election draws closer, that risk will increase.” Purcell, 540 U.S. at 4-5.
Plaintiffs argue that the pandemic “has prompted a burgeoning chorus of calls by the general public, public health experts, Mayors, Clerks, and local election commissions to postpone the April 7 election.” (Pls.’ Br. (‘284 dkt. #18) 9.) And indeed the court has received numerous amicus briefs urging the court to take action. (See, e.g., Dane Cty. Amicus Br. (dkt. #150); City of Green Bay Amicus Br. (dkt. #112); City of Milwaukee Amicus Br. (dkt. #100).) Yet there is also a “chorus of calls” to keep the April 7 election date, including those from the Governor (Gov. Evers Amicus Br. (dkt. #151)) and the Legislature (Wis. Legislature Amicus Br. (‘249 dkt. #90)), who have both filed amicus briefs requesting that the court decline to stay the election. At the center of this maelstrom is the WEC, whose governing body was reconstituted relatively recently from a group of non-partisan judges to six Commissioners appointed equally by the two major political parties. As a consequence, the WEC’s Administrator Meagan Wolfe has been expressly charged with the near impossible task of accomplishing a viable and safe election through
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a combination of processing an unprecedented number of absentee ballots and an in-person election. If there is a hero to this story, it is the Administrator, her staff and municipal workers, all of whom continue to improvise election practices.
In doing so, the WEC retained the services of a medical expert approximately 3 weeks ago to advise how both can be accomplished under the threat of a COVID-19 outbreak and continued to consult with the Wisconsin State Emergency Operations Center (“SEOC”) established by the Governor on March 12, 2020, as the magnitude of the COVID-19 threat began to emerge. Among the exhibits provided this court is a copy of a memorandum prepared by the Administrator, which outlines the steps that have been taken so far to accomplish that task, some of which has been disseminated out to municipalities for implementation by its clerks and poll workers. On a rolling basis, the Administrator and her staff have been trying to update that advice and gather supplies for use by poll workers on election day. Indeed, during yesterday’s hearing, Administrator Wolfe learned for the first time that 25,000 masks were going to be provided at central locations for pick up by municipalities to be used during the local election next Tuesday. Until that moment, the advice by the Commissioner to municipalities was that masks would be unnecessary, apparently based on the previous advice of the medical expert and the fact that the CDC has not yet adopted the wearing of masks as a practice for the general public.
Because the only direction from an equally split group of Commissioners to the Administrator and her staff is to do the best they can in conducting a safe, in-person election, it appears that no medical expert has been retained by the Commission to advise
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as to whether an in-person election can be conducted safely under any circumstances, nor even more remarkably does it appear that medical experts at SEOC have been asked to opine on this subject, despite the obvious risks of further dissemination of the coronavirus on election day, including the handling of recently submitted absentee ballots. The Administrator and her staff, as well as local municipalities and others are to be commended for their remarkable efforts to accomplish an in-person election that may well be unwise, not just for poll workers, but for voters and the general public given the crucial moment this state seems to be confronting in the COVID-19 growth curve.
This leaves the broader concern as to the propriety of a federal court taking the extraordinary step of delaying a state-wide election at the last minute, and the federalism problems that are necessarily implicated, which weigh heavily in favor of denying the plaintiffs’ broadest, requested relief. Plaintiffs argue that “it is not uncommon for federal courts to enjoin state authorities from holding elections when doing so would violate the rights of voters that are protected by the Constitution.” (Pls.’ Reply (‘249 dkt. #162) 23.) However, none of the cases cited by plaintiffs authorize what plaintiffs are asking the court to do in this circumstance: delay the date of an impending, state-wide election.
In contrast, the Supreme Court has endorsed district court decisions to refrain from action, even in the face of undisputed constitutional violations. In Ely v. Klahr, 403 U.S. 108 (1971), the Supreme Court upheld a district court’s decision not to enjoin an election even under an unconstitutional apportionment plan. Id. at 113-14. Faced with an election that was “close at hand,” the district court explained that an injunction delaying the vote would “involve serious risk of confusion and chaos.” Id. at 133. In allowing the election
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to proceed, the Supreme Court recognized that the district court “chose what it considered the lesser of two evils,” and affirmed the judgment of the court. Id. at 113-14; see also Reynolds, 377 U.S. at 586 (holding that the district court “acted in a most proper and commendable manner” in declining to enjoin Alabama’s impending primary election, even under an unconstitutional apportionment scheme).
Without doubt, the April 7 election day will create unprecedented burdens not just for aspiring voters, but also for poll workers, clerks, and indeed the state. As much as the court would prefer that the Wisconsin Legislature and Governor consider the public health ahead of any political considerations, that does not appear in the cards. Nor is it appropriate for a federal district court to act as the state’s chief health official by taking that step for them.
At most, the court can only act in good faith to allow the WEC, local municipalities and poll workers to take what steps they can to vindicate the constitutional right to vote. Accordingly, the court must conclude that plaintiffs have not met their burden of showing that the balance of equities favors enjoining the upcoming election day. As the Supreme Court held in Purcell, “[g]iven the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction.” 549 U.S. at 5-6.
B. Extension of Deadline for Receipt of Absentee Ballots Plaintiffs next request that the court extend the deadline by which absentee ballots
may be received. Under current law, clerks will not count an absentee ballot that is received after 8:00 p.m. on election day. Wis. Stat. § 6.87(6). Plaintiffs argue that this statutory
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deadline imposes an undue burden on voters because “it is a certainty that thousands of ballots will arrive after the April 7, 2020 deadline due to no fault of the voter.” (Pls.’ Br. (‘249 dkt. #62) 12.)
In support, plaintiffs point to Doe v. Walker, 746 F. Supp. 2d 667 (D. Maryland 2010), in which the district court found that the statutory deadline for the receipt of absentee ballots imposed a severe burden on absent uniformed services and overseas voters that was not justified by the state’s interest in finality and certainty in elections. Id. at 678-80. The court found that due to long international mail delivery times, “even the most diligent absent uniformed services or overseas voter might be unable to return his ballot” in time to be counted. Id. at 678-79.15
Initially, the Commissioners maintained that the court should deny plaintiffs’ requests for any extension. (See Defs.’ Opp’n (‘249 dkt. #107) 9.) Later, however, the Commissioners submitted a notice to the court stating that they “do not object to any absentee ballot postmarked by April 7, 2020 and received by April 13, 2020 by 4:00 p.m. being counted in the Spring Election.” (Defs.’ Notice Mar. 31, 2020 (‘249 dkt. #152) 1.) They further represented that “[i]f the votes received by 4:00 p.m. on April 13, 2020 are
15 Plaintiffs also cite to In re Holmes, 788 A.2d 291 (N.J. Super. Ct. 2002), but this case is largely unhelpful. There, anthrax attacks had caused a particular postal facility to close shortly before an election, delaying their receipt by the Board of Elections. Id. at 293. The court ordered that the ballots cast on or before election day but trapped in the facility and not received until after election day, should be counted. Id. The court’s holding, however, was based on its interpretation of the state election law that set the deadline; the holding did not rely on or even discuss the federal constitutional analysis applicable to plaintiffs’ argument, making it of limited use here. See generally id. at 292-95. Similarly, plaintiffs’ citation to United States v. Cunningham, No. CIV. A. 3:08CV709, 2009 WL 3350028 (E.D. Va. Oct. 15, 2009), is unhelpful as that court bases its decision to extend the deadline by which absentee ballots should be received entirely on the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20401, et seq.
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counted it will not impact the ability to complete the canvass in a timely manner.” (Id.) The RNC/RPW and the Wisconsin Legislature contend generally that deadlines
ensure the orderly administration of elections and also provide certainty and reliability that minimizes disorder. (See RNC/RPW Opp’n (‘249 dkt. #96) 2-3 (citing Diaz , 541 F. Supp. 2d at1335; Wis. Legislature Amicus Br. (‘249 dkt. #90) 24 (citing Crawford, 553 U.S. at 196).) The RNC/RPW also argue that plaintiffs’ requested relief should be rejected because voters “face no imminent harm until those ballots are cast, do not arrive on time, are not counted, and are deemed material to the outcome.” (RNC/RPW Opp’n (‘249 dkt. #96) 6.) Similarly, the Wisconsin Legislature suggests that the court “wait until after election day to determine whether any remedy is necessary or appropriate.” (Wis. Legislature Amicus Br. (‘249 dkt. #90) 25.)
At the outset, the Legislature’s and RNC/RPW’s invitation to postpone deciding this issue must be declined. The record now contains sufficient evidence to show that the asserted harm is imminent, and a timely resolution is necessary if there is any hope of vindicating the voting rights of Wisconsin citizens in an April 7 election. Indeed, the evidence is nearly overwhelming that the WEC, local election units and poll workers will need additional time to address the avalanche of absentee ballots, still arriving daily, much less to do so safely.
Turning then to the merits, the court first considers the burden that the absentee receipt deadline will place on voters. Here, as in Doe, 746 F. Supp. 2d at 678-79, the evidence presented by the parties and amici demonstrates that even the most diligent voter may be unable to return his or her ballot in time to be counted. Wisconsin clerks are facing
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a record number of absentee ballot requests, and despite diligent efforts, as of April 2, 2020, they are still working on sending out a backlog of over 21,000 absentee ballot applications. Both the Madison and Milwaukee City Clerks have represented that “[t]here is no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request . . . will have the time to receive, vote and return their ballot by Election Day.” (Pls.’ PFOF (‘249 dkt. #62-1) ¶ 30 (quoting Cities’ Amicus Br. (’249 dkt. #39) 5).) Under these circumstances, the court finds that the burden placed on absentee voters is severe. Thus, defendants must demonstrate that the state has a compelling interest in enforcing the challenged law. See Norman, 502 U.S. at 280. They have not done so here.
Certainly, deadlines do generally provide certainty and reliability, and protect the orderly administration of elections. Yet election deadlines have already been disrupted, with the evidence showing that many voters who timely request an absentee ballot will be unable to receive, vote, and return their ballot before the receipt deadline. The state’s interest in deadlines surely also extends to preserving the rights of those voters who themselves relied on those deadlines. More to the point, the state’s general interest in the absentee receipt deadline is not so compelling as to overcome the burden faced by voters who, through no fault of their own, will be disenfranchised by the enforcement of the law.
Most persuasive is, of course, the fact that the WEC itself does not oppose extending the deadline and specifically averred that a receipt deadline of 4 p.m. on April 13, 2020, would “not impact the ability to complete the canvass in a timely manner.” (Defs.’ Notice Mar. 31, 2020 (‘249 dkt. #152).) Thus, the court concludes that plaintiffs have shown a
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likelihood of success on the merits of their challenge to the absentee ballot receipt deadline. Moreover, the balance of harms favors preliminary injunctive relief. Specifically, an injunction moving the receipt deadline from 8 p.m. on April 7 to 4 p.m. on April 13 sufficiently accommodates canvassing deadlines while preserving citizens’ rights.16
Similarly, the court will not add a postmarked-by date requirement; it is simply moving the statutory absentee receipt deadline. No persuasive evidence suggests that further altering statutory requirements will impose tangible benefits or harms, and indeed the amicus briefs from various local governments suggest that an extension of the deadline would be heartily welcomed by many local officials. (See, e.g., City of Madison and Milwaukee Amicus Br. (dkt. #39); Dane Cty. Amicus Br. (dkt. #150).) Moreover, the WEC Administrator testified that the process of eliminating anyone who proceeded to vote in person after mailing an absentee ballot is already in place as part of the standard postelection canvassing of absentee ballots, and is not likely to create a substantial burden in this election. Finally, this relief is more generally in the public interest, which “favors permitting as many qualified voters to vote as possible.” Obama for Am., 697 F.3d at 437.
In light of the court’s decision to extend the deadline for receipt of absentee ballots, the court will also extend slightly the receipt-deadline for absentee ballot requests.17 As
16 As such, this deadline addresses the concern raised in the Wisconsin Counties Association and Washington County’s amicus brief, expressing concern about the expiration of county board supervisor’s terms on the third Monday or Tuesday of April. (’249 dkt. #133.) 17 The court assumes that because the MyVote Wisconsin website still allows requests of absentee ballots online at the time this opinion issues, the WEC will be able to simply extend the clock until April 3, 2020, without having to engage in complex or risky computer changes. To the extent this assumption is incorrect, the WEC Administrator is empowered in her discretion not to implement this relief online, although municipalities are still required to accept requests locally through
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described above, the general deadline for which an absentee ballot request must be received is today, April 2, 2020. In an effort to expand absentee voting to as many Wisconsin individuals as possible and reduce the number of people who will face the difficult choice of voting in-person on April 7, the court will extend the deadline by one day, until 5:00 p.m., April 3, 2020. This slight extension aligns with the deadline by which indefinitely confined and military voters’ requests must be received. See Wis. Stat. § 6.86(1)(c), (2). Moreover, the increased flexibility on the back-end, extending the receipt deadline to April 13, should allow individuals whose absentee ballot request by 5:00 p.m. on Friday, April 3, 2020, to receive the ballot via mail, complete it, and return it via mail in time to meet the April 13, 2020, deadline.

C. Relief from Requirement of Witness Signature for Absentee Ballots According to plaintiffs, the requirement that an absentee ballot be signed by a
witness should also be enjoined because it imposes an unconstitutional burden under the current circumstances and is currently being applied in a way that violates the equal protection clause. Plaintiffs argue that for voters who do not have another adult U.S. citizen in their household, the witness requirement compels them to interact with a nonhousehold member and “that interaction -- both the witnessing and signing of the ballot - would require the individuals to come within six feet of each other” in violation of the Governor’s Safer-at-Home Order. (Pls.’ Br. (‘249 dkt. #62) 13.) Even aside from the Governor’s order, plaintiffs urge that interacting with another person to receive the

tomorrow, April 3, 2020.

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necessary signature creates serious health risks due to the ongoing pandemic, especially for those who are elderly or immunocompromised. (Id. at 13; Pls.’ Br. (‘278 dkt. #17) 6-7.)
In support, plaintiffs have submitted a number of declarations by aspiring voters who have testified that they have been unable to secure a witness signature for their absentee ballot. (See Wilson Decl. (’249 dkt. #75); Larson Decl. (’249 dkt. #67); Keel Decl. (’249 dkt. #66); Trapp Decl. (’249 dkt. #70); Gear Decl. (’278 dkt. #9); Ginter Decl. (’278 dkt. #10); Hakami Decl. (’278 dkt. #11); Whelan Decl. (’278 dkt. #12); Ott Decl. (’278 dkt. #13).) For example, Ben Wilson stated that he was “facing difficulty in finding a witness” because he lived alone and felt that “[k]nocking on a neighbor’s door or asking a gas station clerk would have me violate social distancing guidelines.” (Wilson Decl. (dkt. #75) ¶¶ 4-5.) Similarly, Jeff Trapp explained that he was “finding it difficult to get a witness” for his ballot, conceding that he “could sit on [his] doorstep and ask someone passing by,” but that he “really [did] not want to put someone else in the position of possible contact with the virus.” (Trapp Decl. (dkt. #70) ¶ 4.) Thus, plaintiffs conclude, the signature “requirement severely burdens individuals’ voting rights because, absent disobeying state law and severely compromising their health, it results in disenfranchisement.” (Pls.’ Br. (‘249 dkt. #62) 14; see also Pls.’ Br. (‘278 dkt. #17).)
In contrast, plaintiffs maintain that the state has no compelling interest in enforcing this requirement, and therefore the severe burden cannot be justified. Plaintiffs contend that “the witness requirement is an incredibly weak, borderline ineffectual, anti-fraud tool.” (Pls.’ Br. (‘278 dkt. #17) 7.) Moreover, according to plaintiffs, the state itself has an interest in encouraging individuals to observe social distancing guidelines, and the witness
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requirement undermines the state’s own interest in protecting the public health. (Id. at 910.)18
The RNC/RPW and Wisconsin Legislature oppose enjoining the witness requirement at all, arguing first that the burden on voters is not so severe as plaintiffs suggest. First, they point out that, if a voter can satisfy an election requirement with “reasonable effort,” then that requirement does not qualify as a substantial burden. (RNC/RPW Opp’n (‘249 dkt. #96) 5; Wis. Legislature Amicus Br. (‘249 dkt. #90) 20-21 (citing Frank, 819 F.3d at 386-87).) In particular, they argue that a voter can complete the requirement while abiding by the Governor’s orders and social distancing guidelines by, for example, having a witness observe through a window or even a videocall, then passing the ballot under a closed door to be signed and returned. (Wis. Legislature Amicus Br. (‘249 dkt. #90) 20-21.)
Second, the RNC/RPW and Wisconsin Legislature argue that any burdens imposed by the witness requirement are overcome by legitimate state interests. They both point to Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004), in which the Seventh Circuit explained that voting fraud is a “serious problem” and is “facilitated by absentee voting.” (RNC/RPW Opp’n (‘249 dkt. #96) 2 (quoting Griffin, 385 F.3d at 1130-31); Wis. Legislature Amicus Br. (‘249 dkt. #90) 18 (quoting Griffin, 385 F.3d at 1130-31).) As to the specific
18 Plaintiffs also suggested that the requirement is not narrowly tailored because the state’s interests may be satisfied by other, less risky means. In particular, plaintiffs argued that the remote presence of a witness -- either through a live audio or video feed -- sufficiently accommodates the state’s asserted interests. (Pls.’ Br. (‘249 dkt. #62) 14-15, 20-21.) On March 29, 2020, however, the WEC issued guidance specifically confirming that a voter may complete their ballot in the remote presence of a witness. While the witness will still have to sign the physical certificate, this can be accomplished without a direct interaction with the age or health compromised voter.
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witnessing requirement, they contend that it helps to prevent voter fraud “by adding an additional layer of protection, ensuring that the person filling out the absentee ballot is the actual voter listed on the ballot, and preventing undue influence or coercion.” (Wis. Legislature Amicus Br. (‘249 dkt. #90) 18.)
While generally arguing that the court should not enjoin the witnessing requirement, the Commissioners do not explicitly explain how the burdens imposed by the requirement are justified by state interests. (Defs.’ Opp’n (‘249 dkt. #107) 9.) Instead, they simply provide the court with the guidance developed by the WEC “for meeting the witness requirement . . . while either self-isolating or in quarantine.” (Id. at 17.)
It is undeniable that the COVID-19 pandemic and social distancing orders will make it harder for some aspiring absentee voters to satisfy the witness requirement. At the same time, for many voters, this requirement may easily be met by a fellow household member, with whom the strict social distancing guidelines discussed by plaintiffs do not apply. And even for those who do not reside with an adult U.S. citizen, in general the additional barriers they face may be overcome with some reasonable effort. In particular, the guidance published by the WEC suggests a variety of witnessing options for voters. (Aguilera Supp. Decl., Ex. W (dkt. #105-1) 2.) For example, the WEC suggests that a “family member, friend or neighbor” or even a “mail delivery person[]” or “food delivery person[]” “may watch the voter mark their ballot through a window, open door or other physical barrier.” (Id.) They also note that the “process can be done via video chat like Skype or Facetime with the ballot left outside of the door or in a mailbox for the witness to sign and provide their address after the fact.” (Id.) These options do not require the
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voter or their witness to violate the Governor’s Safer-at-Home Order, which allows individuals to interact so long as they “maintain social distancing of at least six (6) feet.” (Spiva Decl., Ex. 4 (’249 dkt. #63-4) 2.)
Understood in this way, the state’s asserted interests in the witness requirement as a tool against voter fraud justify the general application of the requirement. See Crawford, U.S. at 191 (preventing voter fraud is an important state interest); Griffin, 385 F.3d at 1130-31 (same); Frank, 768 F.3d at 750 (same). As such, plaintiffs have not met the “heavy burden of persuasion” needed to enjoin the requirement “in all its applications.” Crawford, 553 U.S. at 200.
Even so, given the current unknowns regarding COVID-19 infection and transmittal risks, plaintiffs have shown that at least some isolated voters, and in particular those who are immunocompromised or elderly, will likely not be able to secure a witness certification safely even with reasonable efforts, or at minimum have reasonable concerns about their ability to do so and, therefore, may be particularly burdened by this requirement. To be clear, while this requirement may impose severe burdens on some limited subset of voters, that burden does not justify a wholesale rejection of the requirement. See Crawford, 553 U.S. at199-200 (a conclusion that a burden “may not be justified as to a few voters” is not sufficient to strike down an election law). However, it may entitle those particular voters facing unreasonably high burdens to specific relief. In Frank v. Walker, 819 F.3d 384 (7th Cir. 2016), the Seventh Circuit considered a similar question related to Wisconsin’s requirement that a voter present a valid photo ID in order to vote. After arguing unsuccessfully that the photo ID requirement should be struck down entirely, plaintiffs in
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Frank returned to court with a different argument: that “high hurdles for some persons eligible to vote entitle those particular persons to relief.” Id. at 386 (emphasis added). The court reasoned that “[p]laintiffs’ approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily.” Id.
Here, the particularly high hurdles faced by this subset of voters are not overcome by the state’s general anti-fraud goals, and some limited relief is therefore appropriate. In particular, the court will order defendants to accept an unwitnessed ballot that contains a written affirmation or other statement by an absentee voter that due to the COVID-19 pandemic, he or she was unable to safely obtain a witness certification despite his or her reasonable efforts to do so, provided that the ballot is otherwise valid. No magic words are required by a voter to successfully make this affirmation, and it will be left up to the individual discretion of clerks as to whether to accept a voter’s excuse for not completing the witness certification requirement based on the written affirmation by the individual voter.
Moreover, the balance of harms favors this approach. Plaintiffs have adequately demonstrated that the harm some voters are likely to face includes unjustified burdens in the exercise of their right to vote. On the other side, the WEC already has the ability to communicate this new exception rapidly to the various clerks across the state. While the additional burden on the election process is not minimized, it is overcome by voters’ right to exercise their franchise without undue burdens, especially as the court has given local
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canvassers additional time to complete the review of absentee ballots and to follow up as to any written affirmation or statement they believe to be suspect, just as is already done with respect to the exceptions for Wisconsin IDs as discussed immediately below.
D. Relief from Proof of Identification Provision Third, plaintiffs argue that the court should enjoin the statutory requirement that
a photo ID be submitted with an absentee ballot. Wisconsin law provides that an individual requesting an absentee ballot for the first time must submit proof of a valid photo ID. Wis. Stat. § 6.86. Plaintiffs contend that many aspiring voters do not have in their homes the means necessary to submit the required proof, such as a copier, scanner, printer, and/or smartphone. Further, plaintiffs point out that while under normal conditions, individuals might be able to go to a library or copyshop to access these machines, due to the Safer-at-Home Order issued on March 24, 2020, most if not all of these locations have closed. Moreover, plaintiffs contend that even if such locations were still open, the Safer-at-Home order prohibits individuals from venturing outside of their homes in an attempt to find a machine that would allow them to submit their photo ID. The burden imposed by the proof of ID requirement for first-time absentee voters, plaintiffs argue, is severe because it requires voters without access to the necessary technology to disobey a statewide order to satisfy the requirement.
According to plaintiffs, any asserted state interest in preventing voter fraud or ensuring electoral integrity cannot justify the severe burden currently imposed by the requirement. First, plaintiffs suggest that the state’s interests may be satisfied by less risky means, such as having a voter complete a certificate -- subject to penalties for false
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statements -- affirming his or her identity. Second, plaintiffs point out that “state law already recognizes that there may be a need for exceptions to these types of rules, finding that voters who are ‘indefinitely confined’ due to age, illness, infirmity, or disability do not have to comply with the absentee photo ID requirements.” (Pls.’ Br. (‘249 dkt. #62) 17.)
The RNC/RPW and Wisconsin Legislature oppose enjoining the absentee ID requirement, arguing first that the burden on voters is not so severe as plaintiffs suggest. They point out that, if a voter can satisfy an election requirement with “reasonable effort,” then that requirement does not qualify as a substantial burden. (RNC/RPW Opp’n (‘249 dkt. #96) 5; Wis. Legislature Amicus Br. (‘249 dkt. #90) 15 (citing Frank, 819 F.3d at 386-87; Crawford, 553 U.S. at 198).) Here, according to the RNC/RPW and the Legislature, a voter could use their smartphone to upload proof of their ID or with reasonable effort could locate a person who could help them to do so, all while abiding by the Governor’s Stay-at-Home Order which permits interacting with others while staying six feet apart. (RNC/RPW Opp’n (‘249 dkt. #96) 5-6; Wis. Legislature Amicus Br. (‘249 dkt. #90) 15-16.) They further argue that any potential burdens are outweighed by the state’s interest in deterring fraud, which is particularly acute in the absentee ballot context. (RNC/RPW Opp’n (‘249 dkt. #96) 3; Wis. Legislature Amicus Br. (‘249 dkt. #90) 9.)
Again, under current conditions, there is little question that for some voters satisfying the proof of ID requirement will become more difficult, especially if fearful of any contact with others because of age or other high risk factor. At the same time, the court recognizes that for many if not most voters the requirement may be satisfied easily, and even for voters who face barriers those may be overcome with only reasonable effort.
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(See Strang Decl. (‘249 dkt. #76) ¶¶ 6, 9 (testifying that he initially had difficulty in attempting to provide proof of identification in requesting his absentee ballot, but that he was able to successfully upload his photo ID after spending 40 to 45 minutes on the effort).) Further, two days ago the Wisconsin Supreme Court issued an order in Jefferson v. Dane County, 2020AP557-OA, adopting the WEC’s guidance of the term “indefinitely confined.” The guidance provides in relevant part that the “[d]esignation 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.” In light of these developments, the court is satisfied that the current proof of ID requirement, as being applied under the WEC guidance and state court order, does not impose an undue burden on the right to vote, and accordingly will deny plaintiffs’ requested relief as to this requirement.
E. Extension of Mail-In Registration Deadline and Relief from Proof of Residence Provision Plaintiffs also argue that the court should extend the by-mail registration deadline
until April 2, 2020. (Pls.’ Br. (‘249 dkt. #62) 18.) The court will not dwell long on this question, because even if plaintiffs were to demonstrate a strong likelihood of success on the merits, the balance of equities does not favor the injunction they seek. Even given the best efforts of the court to expedite this case, as well as the diligent advocacy of all parties involved, the evidentiary hearing was held on April 1, 2020, and this court’s opinion and order is being issued the following day, on April 2, 2020. Plaintiffs’ requested injunction as to the by-mail registration deadline would open the registration window for less than
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one day. Given this timeline, it is implausible that the order could be implemented in a way that would provide relief to any meaningful number of voters, but it would be sure to add additional burdens on an already overwhelmed state election apparatus. Accordingly, plaintiffs’ request as to the by-mail registration deadline will be denied. Finally, plaintiffs ask the court to enjoin the requirement that copies of proof of residence be submitted with their mailed registration application. Because voters are no longer able to register by-mail for the upcoming election, this claim will be denied as moot.
III. Oral Motion for Stay One final note. At the end of yesterday’s hearing, counsel for the intervening
defendants RNC and Republican Party of Wisconsin requested that if the court grants plaintiffs’ request for preliminary relief, the court also stay its order for a limited amount of time to allow the intervening defendants to seek emergency relief from the Seventh Circuit Court of Appeals under Federal Rule of Civil Procedure 62(c). While the court is sympathetic to the intervening defendants’ request, the relief being granted is not of the sweeping nature sought by plaintiffs and the court is also cognizant of the impending election, and the immediate steps the WEC and local clerks will need to take to implement the court’s narrow injunction, along with the numerous other changes being made in real time by the WEC Administrator, her staff, local counties and municipalities, and poll workers in response to the current COVID-19 crisis. Regardless, the most significant relief provided at this time does not kick in until the evening of April 7, 2020, when, under the court’s order, local municipalities may continue to count absentee ballots received after
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8:00 p.m.19 As such, the preliminary injunction implicitly contains a window of time during which the intervening defendants may seek an emergency appeal and relief from the injunction. The court, therefore, will deny defendants’ oral motion for a stay. At the same time, both defendants WEC and its Administrator, as well as intervening defendants, are encouraged to return to this court if some modification of the preliminary injunction is necessary to accomplish the goals set out in this opinion.

IT IS ORDERED that:

ORDER

1) In Case No. 20-cv-249, plaintiffs’ motion for preliminary injunction and motion for reconsideration (’249 dkt. #61) is GRANTED IN PART AND DENIED IN PART as set forth below in the order.
2) In Case No. 20-cv-278, plaintiffs’ motion for temporary restraining order (’278 dkt. #8) is GRANTED IN PART AND DENIED IN PART as set forth below in the order.

3) In Case No. 20-cv-284, plaintiffs’ motion for temporary restraining order (’278 dkt. #17) is GRANTED IN PART AND DENIED IN PART as set forth below in the order.
4) Wisconsin Legislature’s motion for leave to file an amicus curiae brief in opposition to the motions for preliminary injunction and temporary restraining order (’249 dkt. #89) is GRANTED.
5) Honest Elections Project’s motion for leave to file amicus brief (’249 dkt. #94) is GRANTED.

19 The extension of the deadline by which individuals may request absentee ballots is a more immediate action, but even then, it is unlikely that the requests for absentee ballots received on April 3, 2020, would be processed, mailed, received by the voter, completed, and returned before April 7, 2020, and, therefore, in appealing the extension of the deadline for receipt of absentee ballots, the intervening defendants necessarily would also be able to appeal the extension of the deadline for requesting an absentee ballot online.
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6) The City of Milwaukee’s motion for leave to file an amicus brief (’249 dkt. #98) is GRANTED.
7) The City of Green Bay’s motion for leave to file an amicus brief (’249 dkt. #111) is GRANTED.
8) American Civil Liberties Union of Wisconsin, Disability Rights Wisconsin, Inc., and Wisconsin Conservation Voters’ motion to file amici curiae brief (dkt. #121) is GRANTED.
9) Governor Tony Evers’ motion for leave to file amicus brief (dkt. #125) is GRANTED.
10) City of Racine’s motion for leave to file amicus brief (dkt. #129) is GRANTED.
11) Washington County and Wisconsin Counties Association’s motion for leave to file amicus brief (dkt. #131) is GRANTED.
12) Plaintiffs Democratic National Committee and Democratic Party of Wisconsin’s motion for leave to file a reply brief (dkt. #153) is GRANTED.
13) Plaintiffs American Federal of Teachers Local, 212, AFL-CIO, Black Leaders Organizing for Communities, League of Women Voters of Wisconsin, Greg Lewis, SEIU Wisconsin State Council, Souls to the Polls, Voces De La Frontera’s motion to supplement brief addressing remedies (dkt. #161) is GRANTED.
14) Defendants the Commissioners of the Wisconsin Election Commission and its Administrator are ENJOINED as follows:
a) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted. The deadline for receipt of absentee ballots is extended to 4:00 p.m. on April 13, 2020.
b) Defendants are enjoined from enforcing the requirement under Wis. Stat. § 6.86(1)(b) that absentee ballot requests must be received by April 2, 2020. The deadline for receipt of absentee ballot requests by mail, fax or email (and if deemed administratively feasible in the sole discretion of the WEC Administrator, online) is extended to 5:00 p.m. on April 3, 2020.
c) Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.
52
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Case: 3:20-cv-00249-wmc Document #: 170 Filed: 04/02/20 Page 53 of 53 15) Intervening defendants’ oral motion to stay this order and preliminary injunction is DENIED. Entered this 2nd day of April, 2020. BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
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Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,
Defendants.

OPINION AND ORDER 20-cv-249-wmc

In light of the ongoing impact of the COVID-19 crisis, the Democratic National Committee (“DNC”) and the Democratic Party of Wisconsin seek a temporary restraining order and preliminary injunction barring enforcement of three requirements for the upcoming April 7, 2020, election: (1) the current electronic and mail-in voter registration deadline under Wis. Stat. § 6.28(1) of March 18, 2020; (2) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted under Wis. Stat. § 6.87; and (3) the requirements of proof of residence and voter ID for electronic and mailin registration and of photo identification for absentee ballot applications under Wis. Stat. §§ 6.34, 6.86, 6.87. (Dkt. #2.)
Yesterday, the court held a telephonic conference with counsel for the parties -plaintiffs appeared by private counsel and defendants appeared by the Department of Justice. In addition, the court allowed counsel for the Wisconsin Legislature to participate based on its expressed intent to file a motion to intervene and a motion to dismiss

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plaintiffs’ complaint. (Dkt. #8.)1 After the hearing, the court directed defendants to file a written response to plaintiffs’ motion for TRO and preliminary injunction, as well as set a deadline of noon today for the proposed intervenor to seek to intervene formally and its own response to plaintiffs’ motion.2
In light of the plaintiffs’ motion and supporting materials, defendants’ and the proposed intervenor’s respective responses, arguments by all parties during the telephonic conference, and the near certainty of increasing barriers to in person voting for the April 7, 2020, election due to the COVID-19 pandemic, the court will grant in part and deny in part plaintiffs’ motion for a temporary restraining order. Specifically, the court will grant plaintiffs’ request to extend the deadline by which an individual can register to vote electronically to March 30, 2020, and deny the motion in all other respects at this time. In denying the remaining aspects of plaintiffs’ motion for a temporary restraining order, the court expressly reserves on their request for extension of the date by which absentee ballots may be counted toward the election, which may still be taken up by motion for a preliminary injunction, either on or after April 7, or earlier if plaintiffs believe they have
1 Today, the Wisconsin Legislature filed a motion to intervene and a proposed motion to dismiss and opposition to plaintiffs’ motion for TRO. (Dkt. ##20, 22.) The court will take up these motions after considering responses from the parties, although the court has considered the Legislature’s arguments expressed during the hearing and in the proposed intervenor’s motion to dismiss and opposition to plaintiffs’ TRO motion. 2 Late today, the court also received a request from the Republican National Committee and the Republican Party of Wisconsin asking that the court delay any decision in this case for 48 hours so that they may file a motion to intervene. (Dkt. #34.) Due to the pressing circumstances surrounding this case, the court is unable to delay ruling and would simply encourage prompt filing of an intervention motion if either party continues seeks to participate going forward.
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sufficient evidence to support that request, including the submission of proper, proposed findings of fact.
FACTS A. Challenged Election Laws
Plaintiffs filed their complaint and the present motion on the afternoon of Wednesday, March 18, 2020, the third Wednesday before the April 7, 2020, election, which was also the last day for electronic and mail-in registrations for that election under Wisconsin Statute § 6.28(1). Left unchanged, individuals who still need to register to vote for the April 7 election must now either register in person (1) at the municipal clerk’s office on or before Friday, April 3, 2020, or (2) at their polling place on the date of the election, Tuesday, April 7, 2020. In past elections, between 11% and 12% of voters registered at their polling place on the date of the election. (Pl.’s Br., Ex. 5 (dkt. #3-6) (12.7% of voters registered on election day in 2016 general election; 11.2% of voters registered on election day in 2014 general election).)
Under Wisconsin Statute § 6.87(6), absentee ballots must arrive at the municipal clerks’ offices by 8:00 p.m. on election day to be counted. Under § 6.87(6)(b), individuals can request absentee ballots by submitting an application by April 2, 2020, the Thursday before the election, but must already be registered to do so online. In order to request an absentee ballot, individuals must also provide copies of photo identification pursuant to Wisconsin Statute § 6.86 and § 6.87.
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Finally, Wisconsin Statute § 6.34 requires individuals seeking to register to vote electronically or by mail to provide copies of proof of residence. Section 6.34 contemplates proof of residence besides a valid, unexpired driver’s license or Wisconsin State ID card, but practically speaking, if the same individual who is seeking to register online also wants to vote by absentee ballot, then that individuals would have to provide a picture or copy of a valid, unexpired Wisconsin driver’s license or Wisconsin State ID card.
B. COVID-19 Health Crisis As of March 19, 2020, 155 people in Wisconsin had tested positive for COVID-19,
although a substantially larger number has likely already contracted it.3 On March 17, Governor Evers had ordered “a statewide moratorium on mass gatherings of 10 people or more to mitigate the spread of COVID-19.” (Pls.’ Br., Ex. A (dkt. #3-2).) Moreover, restaurants, bars, indoor shopping malls and all public and private schools have been ordered closed. (Id.) Libraries are also closing, including those in Madison. (Id., Ex. 3 (dkt. #3-4).)
According to recent news reports, while “[e]stimates vary, . . . most public health experts believe that the U.S. is between one and two weeks behind what has befallen Italy, where a near-total lockdown has been imposed on 60 million citizens, with only
3 CDC, Cases in the U.S. (Mar. 19, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fcases-in-us.html; Wis. Dept. of Health Services, “Outbreaks in Wisconsin,” available at https://www.dhs.wisconsin.gov/outbreaks/index.htm.
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supermarkets and drug stores open to the public.”4 At best, the impacts of the coronavirus between now and election day on April 7th are uncertain, although informed predictions are not good.
Plaintiffs reason that because of existing restrictions, as well as the likelihood of even greater restrictions, voters will rely on voting by absentee ballots in significantly higher numbers than typical. Yet but individuals who have not already registered (or modified their registration to vote because of a change in address) no longer have the option to do so other than in person. As support, plaintiffs point to the relatively large number of absentee ballots already requested relative to past Spring elections. For example, as of the morning of Tuesday, March 17, the Wisconsin municipal clerks have received 173,000 absentee applications, of which 22% were received on Monday, March 16. (Pl.’s Br., Ex. 2 (dkt. #3-3).) With more than two weeks until the April 2 deadline for requesting absentee ballots, the number of requests already exceeds three out of the four most recent Spring elections. (Id.)5 Moreover, in elections held in other states this past Tuesday, March 17, 2020, “significantly fewer voters showed up in-person on Tuesday, and turnout plummeted in Illinois, amid rising health concerns and social-distancing requirements.”
4 Kim Hjelmgaard & Jim Sergent, USA Today, “USA TODAY analysis: America’s coronavirus ‘curve’ may be at its most dangerous point” (Mar. 19, 2020), available at https://www.usatoday.com/in-depth/news/2020/03/18/u-s-coronavirus-growth-rates-show-manystates-could-close-behind-new-york/5072663002/. 5 This trend is likely to hold. As of March 19, according to news reports, the number of absentee ballot requests is now more than 315,000. Stephanie Fryer, Channel 3000, “Wisconsin absentee ballots break record amid virus outbreak,” available at https://www.channel3000.com/wisconsinabsentee-ballots-break-record-amid-virus-outbreak/.
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OPINION I. Standing
As an initial matter, the threshold jurisdictional question of standing must be addressed. See Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988) (“Standing is a threshold question in every federal case . . . .”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (federal courts are obligated to consider the question of standing, regardless of whether the issue is raised by the parties). “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)).
In the voting rights context, courts have held that political parties have standing to assert the rights of its members who may face burdens to vote in upcoming elections. See, e.g., Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (“The Democratic Party . . . has standing to assert the rights of those of its members who will be prevented from voting by the new law.”); Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (political parties and labor organizations had “standing to assert, at least, the rights of their members who will vote in the [upcoming] election”); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1254 (N.D. Fla. 2016) (“[P]olitical parties have standing to assert, at least, the rights of its members
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who will vote in an upcoming election.”) (citing Fla. Democratic Party v. Hood, 342 F.Supp.2d 1073, 1078-79 (N.D. Fla. 2004)). Moreover, an organization may establish standing by asserting injury to their own rights. See Crawford, 472 F.3d at 951 (Democratic Party injured by new voting law that compelled party to “devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”); One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 909 (W.D. Wis. 2016) (organizations had standing to challenge new voting laws by establishing that they “devoted money, staff time, and other resources away from their other priorities to educate voters about the new laws”).
Here, plaintiffs are two membership organizations -- the DNC and the Democratic Party of Wisconsin. Plaintiffs claim that the challenged provisions place undue burdens on their members’ right to vote in the upcoming April 2020 election. (Compl. (dkt. #1) ¶¶ 16-17.) Additionally, they assert that the challenged provisions will require them to “expend additional resources to assist their members and constituents to overcome these burdens to exercise their right to vote.” (Id. ¶ 18.) Accordingly, plaintiffs have adequately established their standing to sue, both on behalf of their members and on behalf of themselves.
II. Standard for Relief Plaintiffs style their motion as a request for both a temporary restraining order and
a preliminary injunction. (Pls.’ Mot (dkt. #2) 1.) Both types of relief are designed to protect against irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits. See Am. Can Co. v. Mansukhani, 742 F.2d 314, 323 (7th
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Cir. 1984) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423, 440 (1974)); Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). A temporary restraining order, however, may be issued “before the adverse party can be heard in opposition,” and has strict durational limits. Fed. R. Civ. P. 65(b). See also Geneva Assurance Syndicate, Inc. v. Med. Emergency Servs. Assocs., 964 F.2d 599, 600 (7th Cir. 1992) (“The essence of a temporary restraining order is its brevity, its ex parte character, and (related to the second element) its informality.”). Moreover, the federal rules only expressly require a party making such a request to provide “specific facts in an affidavit or a verified complaint.” Fed. R. Civ. P. 65(b)(1)(A). Given the emergency nature of such relief, a relaxed evidentiary standard is appropriate. See 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2952 (3d ed.) (“There does not seem to be any case law defining the applicable standards for judging the quality and character of an affidavit offered in support of a motion under Rule 65(b). Since a temporary restraining order generally is sought on short notice, in a situation of pressing need, and Rule 65(b) expressly permits its issuance on the presentation of a verified complaint, it probably is unsound to hold affidavits to too rigorous a standard.”).
At this point, the relief sought, and the order granted, is better classified as a temporary restraining order as opposed to a preliminary injunction due to the brief duration of the lawsuit and motion, the lack of a developed record, and the limited notice and opportunity to be heard provided the defendants. See McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986) (“When determining whether to consider an order a TRO or a preliminary injunction . . . courts typically look to such factors as the duration of the
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order, whether it was issued after notice and a hearing, and the showing made to obtain the order.”); Connell v. Dulien Steel Prod., Inc., 240 F.2d 414, 418 (5th Cir. 1957) (“Where, as here, the duration of the order barely extends beyond 20 days and even though issued after notice (perhaps insufficient) we think it is not a temporary injunction and appealable.”).6 So while this opinion and order resolves plaintiffs’ motion for a temporary restraining order, their motion for a preliminary injunction is still pending. See Levas & Levas v. Vill. of Antioch, Ill., 684 F.2d 446, 448 (7th Cir. 1982) (“[A] party might fail to satisfy the criteria for an ex parte TRO and still be entitled to a preliminary injunction.”). If plaintiffs wish to continue to pursue that motion they must follow this court’s preliminary injunction procedures, which are available on the court’s website at https://www.wiwd.uscourts.gov/sites/default/files/Injunctive_Relief.pdf.
Regardless, as the proposed intervenor noted, the standard for determining whether either form of relief is appropriate is the same. See Van Hollen, 963 F. Supp. 2d at 865 (citing Winnig v. Sellen, 731 F. Supp. 2d 855, 857 (W.D. Wis. 2011)). Specifically, a plaintiff must first show “(1) that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action; (2) inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits.” Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017) (citing Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015)). Then, if this showing is successfully made, “the court must engage in a balancing analysis, to determine whether
6 Viewing the motion in this light, coupled with the limited nature of relief provided by the court at this time, largely addresses the concerns raised in the proposed intervenor’s opposition brief about the limited evidence in support of the motion.
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the balance of harm favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant’s interests.” Id. (citing Jones v. MarkiewiczQualkinbush, 842 F.3d 1053, 1057 (7th Cir. 2016)). A factor that the court must consider in balancing the equities in this particular case is the confusion that can result from lastminute orders affecting elections. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Such confusion can undermine confidence in our electoral processes, which itself is integral to our system of democracy. Id.
A. Likelihood of Success on the Merits The court will begin with the third prong of the initial inquiry -- likelihood of success
on the merits. Here, the merits question is whether any of the challenged provisions impose an unconstitutional burden on the right to vote. This question is governed by the framework set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Under the Anderson-Burdick framework, the court must (1) “determine the extent of the burden imposed by the challenged provision”; (2) “evaluate the interest that the state offers to justify that burden”; and (3) “judge whether the interest justifies the burden.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016) (citing Anderson, 460 U.S. 780; Burdick, 504 U.S. 428).
1. Online and By-Mail Registration Deadline First, plaintiffs argue that in light of the current public health crisis, Section 6.28(1) -- which imposed a deadline of March 18, 2020, for voters to register safely online or bymail -- creates an undue burden on a citizen’s right to vote, since the only way for an
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individual to register to vote now is to do so in person. (Pls.’ Br. (dkt. #3) 7-8.) Because individuals are being urged by the State of Wisconsin and the CDC to avoid public spaces altogether, plaintiffs further contend that “many individuals will abide by these precautions and will not leave their homes to go to the municipal clerk’s office or a polling place on election day or during the early vote period.” (Id. at 8.)
In this way, plaintiffs analogize this case to Florida Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016), in which a federal district court extended the voter registration deadline after a hurricane hit the state. Id. at 1257-59. According to that court’s findings, the hurricane forced many citizens to evacuate the state and foreclosed in-person and by-mail registration: “[b]ecause those aspiring eligible voters could not register, they could not vote in the upcoming election.” Id. at 1257. The court concluded that the registration deadline imposed a severe burden on the right to vote, and no legitimate state interest could justify the “de minimis” burden of extending the voter registration deadline. Id. Similarly, in Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016), a district court ordered an extension of the registration deadline where a hurricane had caused the elections office to close for a week, delayed mail service, and forced citizens to evacuate or take shelter. Id. at 1345.
Here, unlike in Scott and Georgia Coalition, citizens have not yet been prevented from registering. However, the court cannot help but take judicial notice of the excruciating dilemma that will soon be faced by eligible voters who did not register by the March 18, 2020, deadline: either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote. Moreover, while the court
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recognizes the state’s interest in the orderly administration of its elections, a short extension of the registration deadline would on its face appear to impose only a minimal burden while potentially affording a great number of as yet unregistered voters the opportunity to exercise their franchise by safely voting absentee.
At the court’s request, Megan Wolfe, the Administrator of the Wisconsin Elections Committee, filed a declaration in response to plaintiffs’ motion for temporary restraining order and preliminary injunction, setting forth the possible difficulties in extending the deadline for online and mail-in voter registration. First, Wolfe explains that reactivating the online registration process requires software changes that would need to be tested, including possible collaboration with the Department of Transportation (Wolfe Decl. (dkt. #24) ¶ 11.) Wolfe further explains that there are risks associated with software changes in the weeks preceding a statewide election.7 While the court is certainly reluctant to create risks to election technology systems, reactivating a link that was in place as of two days ago should not pose a significant risk to the security of the election systems or, at least, Wolfe does not explain why such a risk should preclude such efforts. If after attempting to reactivate on-line registration, however, WEC learns of additional issues or risks, they could, of course, promptly return to the court for relief from its order.

7 Wolfe also represents that a court order requiring reactivation of online registration would violate

a “statewide enterprise level change freeze enacted to protect critical elections operations from

unintentional disruption” (Wolfe Decl. (dkt. #24) ¶ 12), but the policy Wolfe appears to reference

states that non-critical patches -- and this would appear to be a critical change -- cannot be made in

the “week prior to a major election,” and this order will not require any changes in the week before

the election. See Wisconsin Elections Commission, “Election Security Report” (Sept. 2019) pp.16-

17,

available

at

https://elections.wi.gov/sites/electionsuat.wi.gov/files/2019-

09/2019%20Elections%20Security%20Planning%20Report.pdf.

12

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Second, Wolfe raises a concern about the timing of printing of municipal poll books, representing that a number of large municipalities and counties that assist with poll book printing on behalf of municipalities may have already sent their poll books to the publishers for printing. (Id. ¶ 14.) As Wolfe also explains, however, in-person registrations that occur up to April 3, 2020, and mail-in registrations that were required to be post-marked by March 18, 2020, will appear in supplemental or post-supplemental poll books. (Id. ¶¶ 14, 17.) Likewise, municipalities will be able to publish the additional online or mail-in registrations in these supplemental books. The court understands that these supplemental books may be significantly larger than normal as a result of any order extending the registration deadline, but this appears to be a reasonable downside to equitable relief that could increase both the robustness and health of the electorate, especially in light of the corresponding effect of having fewer, in-person voters to manage on election day.8
Third, Wolfe raises concerns about voter confusion in light of numerous publications informing individuals that their last day to register online was March 18, 2020. (Id. ¶ 16.) This, too, is a fair concern, but Wolfe does not explain, nor can the court conceive of any prejudice to voters caused by this confusion. While some individuals will not take advantage of the additional time to register online because they understandably believed that the opportunity had already passed, but at least some will be afforded a mechanism to vote safely, rather than be effectively denied that franchise by health restrictions, government edict or justified prudence for their safety or the safety of others.
8 The proposed notice at the end of this order is intended to both encourage online registration for those now looking to vote absentee and discourage registration if the voter still intends to appear in person, particularly on election day.
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The court understands that this is far from a perfect solution. At minimum, however, individuals who either were not aware of the March 18, 2020, deadline or learn of this court’s extension of that deadline, will be able to register online for an extended period of time. The ideal solution under the circumstances would probably be to delay the vote itself, as some other states have already done, but as defendants point out this too has its problems, and regardless is up to the State of Wisconsin to decide. There being no such prospect on the horizon, the court has attempted to fashion what limited remedy it can to vindicate the rights of as many voters as practical.
Fourth, Wolfe expresses a number of concerns about implementing a new mail-in deadline. Specifically, she addresses the impact of extending the deadline until April 3, as plaintiffs request, which would permit mail-in registrations that are post-marked by that day and mean that registration requests may not even be received through the mail by election day. (Id. ¶ 18.) The court shares this concern, especially when coupled with the current requirement that absentee ballots be received by April 7, 2020, in order to be counted. Indeed, extending the mail-in registration deadline may act to disenfranchise certain voters, by giving them a false sense of confidence that they will be able to vote by absentee ballot in time for the April 7, 2020, election. Moreover, unlike the online or electronic registration process, the mail-in process is not centralized; instead, as Wolf explains, any change to the process would depend on implementation by 1,850 municipal clerks and 72 county clerks. In light of this dynamic, the court is concerned about the ability to manage the communication process, as well as ensuring that these clerks are not overwhelmed by mail-in registration requests during the same period in which they will be
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preparing polling books and managing absentee applications. Accordingly, the court finds that plaintiffs have demonstrated a likelihood of success
on the merits that the March 18, 2020, online registration deadline imposes an undue burden on citizens’ right to vote, but concludes that plaintiffs have not met their burden with respect to mail-in registration. 9
2. Proof of Residence and Identification Provisions As previously litigated, plaintiffs also renew their contention that requiring individuals seeking to register to vote or applying for an absentee ballot to provide copies of documentation places a severe burden on the right to vote. As described in the fact section above, Wisconsin Statute §§ 6.34, 6.86 and 6.87 require proofs of residency for registrants and proof of voter identification for absentee ballot applicants. Plaintiffs reason that obtaining these documents may require individuals to venture out into the public to gain access to a copier, scanner, computer and/or printer, and specifically point out that the need to venture out of one’s home to access this technology will likely disproportionately impact less-affluent populations, including the elderly and college students.10 In support of this argument, plaintiffs submit proof that libraries, which may typically provide access to copiers and printers, have closed because of the COVID-19
9 As addressed below, some further relief may be sought by either side should the extension of online registration create issues with respect to receipt and processing of absentee votes timely. 10 While perhaps not a complete solution, the court notes, as defendants’ counsel suggested during the hearing, that an individual can upload a photo of his or her driver’s license or Wisconsin ID from virtually any smart phone in applying for an absentee ballot, thus eliminating the need to venture outside, although this assumes access to a smartphone.
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outbreak. The court does not dismiss out of hand the additional burden placed on some by
the proof of residency and identification requirements in the face of the COVID-19 pandemic, either because of more limited access to public copiers, printers or scanners or because of fears in venturing out to access that technology. However, the State’s interest with respect to this requirement has been recognized by the United States Supreme Court and the Seventh Circuit Court of Appeals, and appears to be much more significant than any interest in limiting the time period for registering to vote electronically or by mail. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203 (2008) (holding that Indiana’s interests in statute requiring government issued photo identification to vote were sufficiently weighty to justify any limitation imposed on voters); Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (relying on Crawford to reject challenge to Wisconsin’s photo identification requirement).
Plaintiffs also argue that the state’s interest is adequately addressed by the requirement that a voter must “sign a comprehensive certificate on absentee ballots stating she is a resident of the locality from where she is voting” (Pl.’s Br. (dkt. #3) 10 (citing Wis. Stat. § 6.87(2))), but this was true in past lawsuits and yet not found to be sufficient to satisfy the state’s interest in requiring identification, including preventing voter fraud and safeguarding voter confidence. See Crawford, 553 U.S. at 191 (describing interests at play). On this limited record, the court cannot conclude that plaintiffs are likely to succeed in
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this challenge.11
3. Absentee Ballot Receipt Deadline
Finally, plaintiffs request that the court extend the deadline for receipt of absentee
ballots from the current deadline of 8:00 p.m. on election day pursuant to Wis. Stat. §
6.87(6). While this request may have merit, and may be of assistance for the Elections
Commission and municipal clerks should state and local officials not fulfill their promise
to ensure sufficient staffing before and on election day, the court will not speculate about
the need for this relief on the limited record before it. Instead, as described above, the
court will allow plaintiffs to pursue additional relief in a motion for preliminary injunction,
with a more robust record, following the court’s guidelines.12
11 The court acknowledges that late today plaintiffs submitted affidavits from four potential voters averring to the difficulty in providing proof of residence and photo identification.
12 The proposed intervenor also argues that this court should deny plaintiffs’ request for relief and dismiss their complaint under the Burford abstention doctrine, pointing out that decisions as to the administration of the state’s elections laws are reserved to the Wisconsin Election Commission, which is subject to state judicial review. (Proposed Intervenor’s Br. (dkt. #23) 2, 17-20.) Any intervention by this court into the state’s election administration would, according to the proposed intervenor, “usurp” the Commission’s role and disrupt state efforts to establish a critical balance between the needs of public health and democracy. (Id.at 18-19.) Burford abstention applies when federal intervention would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (quoting New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”)). Certainly, the administration of elections during a public health emergency is a matter of substantial public concern and as proposed intervenor points out, the Commission met two days ago to “decide what action to take in response to the current public health situation” (Proposed Intervenor’s Br. (dkt. #23) 2, 18), but in a memo published that same day, the Commission specifically advised it does not have the authority to change the statutory deadlines for online and by-mail registration or for the return of absentee ballots, and that “any change may require court intervention, an act of the Legislature, or an order of the Governor.” (Tseytlin Decl., Ex. 9 (dkt. #25-9) 2-3.) Moreover, Burford abstention is only appropriate “[w]here timely and adequate state-court review is available,” NOPSI, 491 U.S. at 361, and there appears to be no time or inclination for state-court review, with the online and by-mail registration deadline having now passed and election day is fast approaching. Given the apparent lack of any state-court
17
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Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 18 of 21
B. Irreparable Harm and Inadequate Remedies at Law As for the online and by-mail registration deadlines, the remaining two prongs of
the initial showing -- irreparable harm and inadequate remedies at law -- are also satisfied. Where, as here, plaintiff has demonstrated a likelihood of success on the merits as to a constitutional claim, such an injury has been held to constitute irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (where plaintiff had proven a probability of success on the merits, the threatened loss of First Amendment freedoms “unquestionably constitutes irreparable injury”); Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”). Moreover, courts have specifically held that infringement on the fundamental right to vote constitutes irreparable injury. See Obama for Am. v. Husted, 697 F.3d 423, 435 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable injury.”); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (holding that plaintiffs “would certainly suffer irreparable harm if their right to vote were impinged upon”).13
Additionally, traditional legal remedies would be inadequate, since infringement on a citizens’ constitutional right to vote cannot be redressed by money damages. See Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (“The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not
review and the narrow relief being fashioned by this court, Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”). 13 Plaintiffs also argue that exposing Wisconsin voters to the coronavirus constitutes irreparable harm (Pls.’ Br. (dkt. #3) 13), but have offered no evidence as to the efforts being made by the state to mitigate that risk or its extent.
18 - App. 78 -

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 19 of 21
adequate.”); League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no do-over and no redress.”). Accordingly, plaintiffs have made an initial showing that a temporary restraining order is warranted as to the online and by-mail registration deadline.
C. Balance of Harms Finally, the court must engage in a balancing analysis to determine whether a
temporary restraining order is warranted. Under Seventh Circuit law, a “sliding scale” approach is used for this purpose: “[t]he more likely it is that [the movant] will win its case on the merits, the less the balance of harms need weigh in its favor.” Girl Scouts, 549 F.3d at 1100. “When conducting this balancing, it is also appropriate to take into account any public interest, which includes the ramifications of granting or denying the preliminary injunction on nonparties to the litigation.” Id.
Plaintiffs argue that an injunction would protect the health of the public and prevent disenfranchisement. (Pls.’ Br. (dkt. #3) 14.) Although plaintiffs recognize that their requested relief will create more administrative tasks for the state, they contend that such an inconvenience is “outweighed by the vindication of constitutional rights.” (Id.) Certainly, the extension of the online registration deadline will impose administrative burdens on the state, but these potential hardships appear minor compared with the growing dilemma being faced by eligible, but as yet unregistered voters between now and election day: either risk your and the public’s health by venturing into public to register in person, or stay home and relinquish your voting franchise. While a modest extension of the registration deadline is not likely to relieve all or even most of that difficult choice,
19 - App. 79 -

Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 20 of 21
it may do so for some. Finally, the court is sensitive to the fact that last-minute changes to election laws
may generate confusion and in turn undermine confidence in the electoral system. See Purcell, 549 U.S. at 4. Nevertheless, it is apparent that some accommodation is necessary to preserve citizens’ right to vote amidst this unprecedented public health crisis. This court’s narrow remedy attempts to find a balance between these vitally important interests.
ORDER IT IS ORDERED that plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (dkt. #2) is GRANTED IN PART AND DENIED IN PART as follows:
a) The motion is GRANTED with respect to plaintiffs’ request to extend the deadline by which individuals may register to vote electronically until March 30, 2020, subject to the following steps:
(i) Defendants shall reset the “clock” that tells the MyVote website (https://myvote.wi.gov) to stop accepting on-line registration requests until the end of the day on Monday, March 30, 2020.
(ii) Defendants shall test the necessary code changes to validate correct operation and the absence of errors or defects, including proper interface with the Department of Transportation and testing of the statewide voter registration system.
(iii) Defendants shall release and activate the new code, making it accessible to the public and post a notice as prominently as practical on the first page of both MyVote and WEC website. For review by the parties, the court proposes the following language. The parties should provide any proposed edits to this language on or before Monday, March 23, 2020, at 12:00 p.m.
20
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Case: 3:20-cv-00249-wmc Document #: 37 Filed: 03/20/20 Page 21 of 21
SPECIAL NOTICE WITH RESPECT TO ONLINE REGISTRATION AND ABSENTEE BALLOTS FOR APRIL 7, 2020, ELECTION ONLY DUE TO CORONAVIRUS PANDEMIC
By order of the U.S. District Court for the Western District of Wisconsin, online registration to vote is extended until March 30, 2020, for the April 7, 2020, election ONLY, notwithstanding ANY contrary Wisconsin statute, notice on this website, other state websites or other writing or postings. HOWEVER, the purpose of this extension is to facilitate voting by absentee ballots for those who may no longer wish or be unable to vote in person at your local municipal clerk’s office by absentee ballot on or before Friday, April 3, 2020, or at your local polling place on election day, Tuesday, April 7, 2020, due to the coronavirus pandemic. If you are not currently registered to vote in the State of Wisconsin, to obtain an absentee ballot, you will not only have to complete the online registration requirements, but then also request online that an absentee ballot be mailed to you. Both steps will require that you already have a valid, unexpired Wisconsin driver’s license or Wisconsin state ID card reflecting your current address, and have the ability to post it electronically for purposes of requesting the mailing of an absentee ballot. If you are unable to do these things or still intend to appear in person to actually vote, you are STRONGLY DISCOURAGED from still registering to vote in the April 7th election online, since online voter registration during this special extended period MAY complicate your ability to vote in person.
(iv) Consistent with the above, this notice shall be promptly removed after March 30, 2020.
b) Defendants are ENJOINED from enforcing the March 18, 2020, deadline under Wisconsin Statute § 6.28(1) with respect to online registration.
c) In all other respects, the motion is DENIED, albeit without prejudice to plaintiffs renewing their request for extension of the deadline for counting absentee ballots in a motion for preliminary injunction.
Entered this 20th day of March, 2020.
BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
21
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The First Amendment to the United States Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Section 1 of The Fourteenth Amendment to the United States Constitution All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Wisconsin Statute Section 6.87(6) The ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.
Section 1983 of Chapter 42 of the United States Code Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to
- App. 82 -

be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Section 1988 of Chapter 42 of the United States Code (a) Applicability of statutory and common law
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended
- App. 83 -

to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. (b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318, the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964, or section 12361 of title 34, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction. (c) Expert fees
In awarding an attorney’s fee under subsection (b) in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.
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 No. 19A1016
IN THE
SUPREME COURT OF THE UNITED STATES

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Marc E. Elias Counsel of Record
Bruce V. Spiva John Devaney Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com BSpiva@perkinscoie.com J.Devaney@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin
(additional counsel on next page)

Douglas M. Poland David P. Hollander Rathje Woodward LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com
Richard Saks Hawks Quindel, S.C. 222 E. Erie St., Suite 210 Milwaukee, WI 53201 (414) 271-8650 (telephone) (414) 271-8442 (facsimile) rsaks@hq-law.com
Counsel for Greg Lewis, Souls to the Polls, Voces de la Frontera, Black Leaders Organizing for Communities, and American Federation of Teachers, Local 212, AFL-CIO

Tamara B. Packard Lester A. Pines Pines Bach LLP 122 West Washington Ave, Suite 900 Madison, WI 53703 (608) 251-0101 (telephone) (608) 251-2883 (facsimile) lpines@pinesbach.com tpackard@pinesbach.com
Counsel for SEIU Wisconsin State Council

STATEMENT PURSUANT TO SUPREME COURT RULE 29.6 Per Supreme Court Rule 29.6, respondents Democratic National Committee and Democratic Party of Wisconsin have no parent companies or publicly-held companies with a 10% or greater ownership interest in them. Per Supreme Court Rule 29.6, Souls to the Polls, Voces de la Frontera, and American Federation of Teachers, Local, 212, AFL-CIO have no parent companies or publicly-held companies with 10% or greater ownership interest in them. Tides Advocacy is a parent company of respondent Black Leaders Organizing for Communities. No publicly-held company owns a 10% or greater ownership interest in Black Leaders Organizing for Communities. Per Supreme Court Rule 29.6, respondent SEIU Wisconsin State Council has no parent company or publicly traded companies with a 10% or greater ownership interest in it.
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TABLE OF CONTENTS
STATEMENT PURSUANT TO SUPREME COURT RULE 29.6................................i TABLE OF AUTHORITIES........................................................................................ iii INTRODUCTION .......................................................................................................... 1 STATEMENT OF THE CASE ......................................................................................4 REASONS FOR DENYING THE APPLICATION ......................................................7 I. There is neither a reasonable probability that four Justices would vote to
grant review nor a fair prospect that this Court would reverse, given that this is not the case that applicants describe. ........................................................ 7 A. The application rests on repeated mischaracterizations of the
arguments, evidence, and decision below. .................................................. 7 B. The district court’s narrow injunction is fully consistent with the
Anderson-Burdick framework and will not “cast[] a cloud of illegitimacy over the entire election.” ....................................................... 11 C. The Purcell principle cuts strongly against applicants’ requested relief. .................................................................................................................... 16 II. The balance of potential harms and the public interest strongly favor denial of the application. ................................................................................................. 18 CONCLUSION ........................................................................................................... 20
-ii-

TABLE OF AUTHORITIES
CASES
Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................................................................................ 11
Burdick v. Takushi, 504 U.S. 428 (1992) ................................................................................................ 11
Crawford v. Marion Cty. Election Bd., 553 U.S. 181,191 (2008) ......................................................................................... 12
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ............................................................................ 12, 19
Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................................... 4, 16, 17, 18
Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945) .................................................................................................... 14
Reynolds v. Sims, 377 U.S. 533 (1964) ................................................................................................ 12
Thompson v. Freeman, 648 F.2d 1144 (8th Cir. 1981) ................................................................................ 14
U.S. Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir. 2008) .................................................................................. 12
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................................................................................................ 12
STATUTES
Wis. Stat. § 5.05(1)....................................................................................................... 14 Wis. Stat. § 6.87(6)......................................................................................................... 1 Wis. Stat. § 7.30(a)(b) .................................................................................................. 13 Wis. Stat. § 7.51(4)(b) ...................................................................................... 13, 15, 16 Wis. Stat. § 7.52(1)(a) .................................................................................................. 15
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TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT:
INTRODUCTION Respondents, in addition to the Democratic National Committee and the Democratic Party of Wisconsin, are comprised of voting rights organizations, individual Wisconsin voters,1 and the SEIU Wisconsin State Council. They are all of the plaintiffs in two of three cases consolidated in the District Court. Collectively, they respectfully submit this opposition to the Emergency Application for Stay filed late yesterday afternoon. Wisconsin law does not impose a postmark deadline for absentee ballots, but instead provides that all such ballots, no matter when they are postmarked, “shall be returned so [they are] delivered to the polling place no later than 8 p.m. on election day.” Wis. Stat. § 6.87(6). Ballots arriving after this deadline “may not be counted.” Id. Respondents brought suit on March 18, 2020 to enjoin the strict enforcement of this deadline during the COVID-19 pandemic, which, as discussed in the Statement of the Case, has wreaked havoc on Wisconsin’s upcoming April 7 election, driving poll
1 The first named plaintiff case no. 20-cv-284, Reverend Greg Lewis, subsequent to the filing of that action, was hospitalized for a Covid-19 infection and is on a ventilator. On page ii of their Emergency Application, Applicants erroneously assert that the Respondents include the “League of Women Voters.” That is incorrect; the League of Women Voters of the US (“LWVUS”) – the League of Women Voters national organization – is not a party to the consolidated actions. Rather, the League of Women Voters of Wisconsin (“LWVWI”), which is a state affiliate of LWVUS, is a party to two of the consolidated cases in the district court, nos. 20-cv-278-wmc and 20-cv-284.
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workers and voters away from the polls, dramatically escalating the number of requests for absentee ballots, and overloading Wisconsin’s absentee-voting process. Respondents initially sought, among other relief, to postpone the election-day deadline for receipt of absentee ballots that were postmarked on or before April 7. But it quickly became apparent that thousands, if not tens of thousands of voters would not even receive their timely requested absentee ballots until on or after April 7, so respondents expanded their initial request for relief to include all absentee ballots received by a certain deadline regardless of postmark. The district court agreed, setting April 13 as the deadline for receipt of absentee ballots regardless of when they are postmarked. Opinion (Op.) at 38-40.
The applicants―the Republican National Committee, Republican Party of Wisconsin, and Wisconsin Legislature―have now agreed with the initial relief that respondents requested―counting any ballot that is postmarked on or before election day, even if received later. They now concede “it is understandable that the district court wanted to ensure that voters who can complete their ballots by election day, but—due to mail delays and safety concerns about physically bringing their ballot to the polling place—could not deliver them by election day” will still have their ballots counted. App. at 17-18. Applicants therefore seek only a “partial stay” of the district court’s injunction, opposing only respondents’ expanded request for relief. Id. at 20 (emphasis added). But as the district court recognized, that expanded relief is essential because thousands will be disenfranchised without it.
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The district court granted relief only to the limited extent necessary to address the “severe” burdens “faced by voters who, through no fault of their own, will be disenfranchised by the enforcement of” the April 7 absentee ballot-receipt deadline, given that “even the most diligent voter may be unable to return his or her ballot in time to be counted.” Id. at 38-39. Part of that relief includes requiring the counting of any ballot received by April 13, regardless of when it is postmarked. Importantly, the Wisconsin Election Commission (WEC), which is charged with the weighty responsibility of administering the election in the midst of the unprecedented pandemic, has no objection to this relief and believes it will “not impact the ability to complete the canvass in a timely manner.” Op. at 39.
Applicants nonetheless challenge this part of the injunction on several grounds. First, they claim that “no party asked the court to grant such extraordinary relief, nor submitted any evidence justifying that remedy.” Op. at 1. As shown below, that claim is baseless; respondents requested this specific relief and introduced abundant evidence why it is necessary, especially because it appears that tens of thousands of voters may not even receive their requested absentee ballots by election day.
Second, applicants argue that the proper Anderson-Burdick balancing analysis is one-sided, claiming that respondents failed to demonstrate “any burden on voting rights” while the State’s interest in requiring all ballots to be postmarked by election day is supposedly “overwhelming.” Id. at 12, 14 (emphasis added). But applicants entirely ignore the plight of voters who timely requested their absentee ballots but
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will not receive those ballots until after April 7, and their claim that the injunction will “cast[ ] a cloud of illegitimacy over the entire election” is contrived and demonstrably false.
Third, applicants invoke the so-called Purcell principle in objecting to the district court’s “last-minute” injunction prior to the election, even though they do not challenge the court’s “last-minute” order extending the absentee-ballot receipt deadline to April 13, which they concede is “understandable” given the electoral crisis caused by the COVID-19 pandemic. Op. at 17. But Purcell deals with last-minute judicial orders that threaten to create chaos and confusion in an otherwise-stable election process. Here, the chaos and confusion are being caused by the pandemic, and the district court’s order seeks to alleviate that chaos and confusion and ensure that Wisconsin voters are not disenfranchised.
Finally, applicants’ claim that their potential injuries somehow outweigh the potential disenfranchisement of tens of thousands of voters is unpersuasive, especially since their claimed injuries are fabricated. The public interest will be best served by denying the stay, which will ensure that voters receiving their requested absentee ballots after election day because of delays in county clerks’ offices resulting from the effects of the COVID-19 pandemic will not forfeit their votes.
STATEMENT OF THE CASE The State of Wisconsin, unlike nearly a dozen other States, has decided to proceed with its April 7, 2020 election in the midst of the worst national health emergency since at least the Great Influenza of 1918-20. As of today (April 5) there are 2,112 confirmed cases of coronavirus in Wisconsin, and 56 Wisconsinites already
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have died from it. https://www.dhs.wisconsin.gov/covid-19/map.htm. The numbers of infections and deaths continue to grow alarmingly by the day. The application only glancingly acknowledges the “challenges” and “difficult circumstances associated with COVID-19.” App. at 1, 3 n.1. It only once mentions the “pandemic,” and only once refers to “public health.” Id. at 2, 17. And it fails to acknowledge―let alone dispute―the district court’s extensive findings of fact detailing the consequences of the pandemic on the orderly conduct, safety, and integrity of the upcoming election. These include:
• “[S]tate election officials are confronting a huge backlog in requests for absentee ballots.” Op. at 2. There has been an “unprecedented” and “extraordinary” number of requests for absentee ballots (in excess of 1.1 million, compared to a previous high of about a quarter-million in 2016). Id. at 9-11. This has led to a substantial backlog of requests for absentee ballots and long delays in sending out ballots. “[D]espite diligent efforts, as of April 2, 2020,” there was still “a backlog of over 21,000 absentee ballot applications.” Id. at 39; see also id. at 11, 20-22, 38-39.
• These delays are being compounded because the U.S. Postal Service “is operating more slowly” during the COVID-19 crisis. Id. at 12.
• These backlogs and delays will disenfranchise voters, in the absence of any emergency extension of the deadlines for mailing and receiving absentee ballots. The City Clerks for Milwaukee and Madison have concluded there is “no practical way” that scores of thousands of voters from these two
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municipalities alone who have not yet received their absentee ballots will be able to vote and return their ballots by the deadline, which is now “completely unworkable.” Id. at 39. The Director of the Wisconsin Election Commission (WEC) estimates that approximately 27,500 absentee ballots that were requested in a timely manner “will be received after the receipt deadline … and, therefore, will not be counted.” Id. at 12 (emphasis added); see also id. at 38 (“the evidence … demonstrates that even the most diligent voter may be unable to return his or her ballot in time to be counted”). • Meanwhile, the WEC and local municipalities have been “improvising in real time a method to proceed safely and effectively with in-person voting in the face of increasing COVID-19 risks, loss of poll workers due to age, fears or sickness, the resulting consolidation of polling locations, and inadequate resources.” Id. at 3. Nevertheless, 111 municipalities have reported they do not have “the capacity to staff even one polling place.” Id. at 19. The Milwaukee City Clerk has reported that his city “likely will be unable to conduct in-person voting in its 327 wards on April 7.” Id. at 20 (emphasis added); see also id. at 30. • The crisis has been compounded even further because “[i]n-person absentee voting and pre-election, in-person registration has already been limited or even eliminated in some voting areas” because of fear of the COVID-19 virus, which has led to severe staffing shortages. Id. at 30.
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• One of the “most likely consequences” of this situation will be “a dramatic increase in the risk of cross-contamination of the coronavirus among inperson voters, poll workers and, ultimately, the general population in the State.” Id. at 3.
• “[T]here is no doubt that the rapidly approaching election date in the midst of the COVID-19 pandemic means that citizens will face serious, and arguably unprecedented, burdens in exercising their right to vote in person.” Id. at 30.
The applicants have not acknowledged, let alone attempted to refute, the district court’s detailed findings about the numerous severe, and in some instances insurmountable burdens that the challenged provisions are imposing on the right to vote in Wisconsin. Rather than disputing any of these detailed findings, applicants simply ignore them entirely.
REASONS FOR DENYING THE APPLICATION I. THERE IS NEITHER A REASONABLE PROBABILITY THAT FOUR JUSTICES WOULD VOTE TO GRANT REVIEW NOR A FAIR PROSPECT THAT THIS COURT WOULD REVERSE, GIVEN THAT THIS IS NOT THE CASE THAT APPLICANTS DESCRIBE.
A. The application rests on repeated mischaracterizations of the arguments, evidence, and decision below.
The application claims in its opening sentence that “no party asked the court to grant” an extension of the mailing deadline, “nor submitted any evidence justifying that remedy.” App. at 1. These allegations are repeated throughout the application:
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respondents, we are told, “never requested” such relief (id. at 2); “sought only to ensure that ballots postmarked by election day … would be counted” (id.); “never showed that there would be any burden on voting rights for Respondents to put their ballots in the mail on or before election day” (id. at 14, emphasis in original); and “did not provide any evidence to justify allowing voters to mail in their ballots after election day, since they were never even asking for this relief” (id. at 19, emphasis in original). Applicants insist that “the district court’s decision to grant a form of extraordinary relief that Respondents never requested below itself supports the granting of a stay.” Id. at 14 (emphasis added); see also id.at 7 (district court’s order “unexpectedly expanded” the respondents’ requested “moderate” relief “into a far more sweeping authorization for post-election day voting”); id. at 8 (criticizing district court’s “unrequested relief”); id. at 18 (issue of allowing post-election postmarks “had not even been squarely raised by the parties”).
None of these claims is true. Respondents specifically asked the district court not only to extend the deadline for receipt of absentee ballots, but to allow ballots to be postmarked after election day given the growing evidence that many voters who have timely requested absentee ballots will probably not even receive their ballots until after the election. Respondents argued that, given the “significant backlog” in requests for absentee ballots and ongoing mail delays, it is “probable” that “tens of thousands” of requested absentee ballots may not be received by voters until after April 7. Preliminary Injunction Transcript (Tr.) at 98, 101. Given that backlog, respondents asked the court to extend the ballot-receipt deadline to April 13 “and not
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worry about the postmark.” Id. at 102 (emphasis added); see also id. at 103 (“let’s make [April 13] a receipt deadline and not worry about the postmark”). Respondents argued this would “be much more enfranchising,” would resolve the problem of voters receiving their requested absentee ballots “on the eve of the election” or thereafter, and “would go a long way toward taking care of the problem we’re wrestling with right now.” Id. at 102-03. The court acknowledged the “backlog” in absentee ballot requests and that “maybe it is true that the ballots just aren’t going to arrive in time for individuals to vote.” Id. at 101-02; see also id. at 98-99 (court’s acknowledgment that “if we continue to see these tremendous requests for absentee ballots” and if “the clerks’ offices across the state haven’t been able to send out the absentee ballots,” it may be necessary to “let people know you could continue … to mail them in, have the Commission continue to accept afterwards”).
The record evidence conclusively establishes that thousands of voters at minimum will be disenfranchised if their requested absentee ballots must be postmarked by Tuesday the 7th. That evidence shows that, as of Thursday the 2nd, there was a backlog of 21,590 requested ballots that had not even been mailed out yet. Op. at 11; see also id. at 39. Even assuming that all of these requested ballots were mailed out on Friday the 3rd―which did not happen2―it is currently taking up to a full week or more for the U.S. Postal Service to deliver mail in Wisconsin due to
2 Far from eliminating this backlog since last Thursday, the WEC website reported that as of today, April 5, there is still a backlog of 12,113 absentee ballot requests that have not yet been processed according to the Wisconsin Elections Commission website. https://elections.wi.gov/node/6814. Even if all of these requested ballots are mailed out tomorrow (Monday the 6th), it will be impossible for them to be delivered, used, and postmarked by the next following day.
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the disruptive effects of the COVID-19 pandemic. Tr. at 18-19 (testimony by WEC Executive Director); see also Witzel-Behl Decl., ECF No. 77 ¶ 13; Wolfe Decl., ECF No. 106, ¶ 11; Morse Decl., ECF No. 72 ¶ 7; Wilson Decl., ECF No. 75 ¶ 6. Thus, many if not most of these backlogged absentee ballots will not even be received by voters until after election day, even though all voters who requested them did so before expiration of the deadline for requesting absentee ballots.
The on-the-ground realities have not improved as of today, Sunday the 5th. Respondents are submitting with this opposition declarations from election officials in Wisconsin’s largest cities that establish the insurmountable challenges the cities are facing and the imminent risk of broad disenfranchisement of their citizens. The declaration of Neil Albrecht, for example, establishes that in Milwaukee, 92,108 absentee ballots have been sent to voters and only 31,674 have been returned. Albrecht explains that given the flood of absentee ballots and delays in the mail, thousands of Milwaukee voters will be unable to return their absentee ballots until after April 7. The City Clerk of Madison, Maribeth Witzel-Behl, similarly reports that as of this morning, her office had issued 87,323 absentee ballots, of which only 46,902 have been returned. She states that nearly 10,000 voters likely will not receive their absentee ballots until after April 7 and that more than 38,000 ballots are likely to arrive after that date.
The situation is no different in Green Bay and Racine. The declaration from Green Bay’s City Clerk, Kris Teske, explains that the Clerk’s office has a backlog of 4,000 unfilled requests for absentee ballots. For all of those voters, it will be virtually
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impossible to comply with a deadline of April 7, as most will not receive their ballots by that date. And, in Racine, the City Clerk, Tara Coolidge, reports that the Clerk’s office has mailed more than 11,000 absentee ballots and has received less than half that number—5,338—back from voters. She also reports that Racine has a backlog of more than 100 requests for absentee ballots, that those ballots will not be mailed until tomorrow, April 6, and that she is concerned large numbers of Racine voters will be disenfranchised through no fault of their own.3
B. The district court’s narrow injunction is fully consistent with the Anderson-Burdick framework and will not “cast[] a cloud of illegitimacy over the entire election.” Applicants claim that the district court misapplied the Anderson-Burdick framework. Op. at 12-18; see Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). They contend that respondents failed to “introduce any evidence to support a claim that post-election day absentee voting would be necessary to avoid unduly burdening anyone’s right to vote,” Op. at 14, and that the State has an “overwhelming” interest in “avoiding a two-track election―in which numerous voters might strategically cast ballots after election day results are announced,” id. at 12 (emphasis in original). Applicants ignore the severe burdens imposed on voters by an April 7 postmark requirement, and they are simply wrong in claiming that
3 These issues are not limited to these municipalities. For instance, Diane Coenen, Oconomowoc’s clerk and president of the Wisconsin Municipal City Clerks’ Association has said “Am I confident those people will get their ballots by Monday, by Tuesday? No.” Doug Schneider, ‘Nightmare’: Clerks working overtime, but some Wisconsin voters may not get ballots filed by Election Day, GREEN BAY PRESS GAZETTE (Apr. 1, 2020), available at https://www.greenbaypressgazette.com/story/news/2020/04/01/wisconsins-local-clerksscramble-ensure-no-one-shut-out-vote/5105915002/.
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absentee voters will have knowledge of the preliminary election results when they cast their ballots.
As for the severe burdens on voters, the evidence establishes that a minimum of tens of thousands of voters who have requested absentee ballots will probably not receive those ballots in time to mail them back on or before election day. If an election-day postmark were required, that would result in the outright disenfranchisement of all these voters through no fault of their own. The “right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (right to vote is “regarded as a fundamental political right, because preservative of all rights”). Constitutional government is “best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful.” Obama for Am. v. Husted, 697 F.3d 423, 436-37 (6th Cir. 2012) (citation omitted); see also U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 388-89 (6th Cir. 2008). Thus, even if a state burden on voting is “slight,” it must still “be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181,191 (2008) (citation and quotation omitted). Here, of course, the burdens are not “slight” but “severe.” Op. at 31, 39.
What are the state interests supposedly justifying these “severe” burdens? Applicants claim that absentee voters casting their ballots after April 7 will know the election day results already and be able to vote “strategically,” which will “cast[] a
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cloud of illegitimacy over the entire election” and undermine Wisconsin’s “‘compelling interest in preserving the integrity of its election process.’” App. at 15 (quoting Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 231 (1989)). This too is a fabrication. Applicants only barely acknowledge that the district court ordered that “[d]efendants (the Wisconsin Election Commissioners) and any inspector appointed under Wis. Stat. § 7.30(a)(b) are ENJOINED from releasing any unofficial results until April 13, 2020, at 4:00 p.m. or as soon thereafter as votes can be tabulated.” April 3, 2020 Order, ECF No. 179 at 2. Applicants claim it is “doubtful and unrealistic” to believe this part of the order will be obeyed, and that “widespread leaks” will allow voters and political parties to game the system, but their arguments are baseless. App. at 17. They are wrong for many reasons.
First, applicants incorrectly claim that the district court would have needed to enjoin the municipal clerks themselves to prevent the release of unofficial election results until April 13; “municipal clerks are not parties to these lawsuits and therefore not subject to the court’s powers.” App. at 16. Under Wis. Stat. § 7.51(4)(b), however, inspectors must report the election results to municipal clerks before the clerks can release those results. The district court’s order enjoins those “inspector[s],” so municipal clerks will have nothing to release prior to April 13.
Second, contrary to applicants’ argument, the district court’s injunction binds municipal clerks and any others charged with publicly announcing election results. As Smith v. Bayer acknowledged, there are “discrete exceptions to the general rule against binding nonparties.” 564 U.S. 299, 308 (2011). This Court “explained that
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the power of a court to bind a nonparty to the provisions of an injunctive order derives ‘from the common-law doctrine that a decree of injunction not only binds the . . . defendant[s] but also those identified with them in interest, in privity with them, represented by them or subject to their control.’” See Thompson v. Freeman, 648 F.2d 1144, 1147 (8th Cir. 1981) (quoting Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1945)); see also Fed. R. Civ. P. 65(d)(2). As applicants themselves acknowledge, App. at 16 n.7, all elections officials are “subject to [Wisconsin Elections Commissioners’] control.” See Regal Knitwear, 324 U.S. at 14; Wis. Stat. § 5.05(1) (“The elections commission shall have the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns . . . .”); id. § 5.05(3g) (“The commission administrator shall serve as the chief election officer of this state.”). At the very least, elections officials are “identified with” WEC Commissioners “in interest” and/or “represented by them.” See Regal Knitwear, 324 U.S. at 14. Notably, the Wisconsin Election Commission itself has nowhere suggested that the district court’s injunction against “releasing any unofficial results until April 13” might be unenforceable.
Third, applicants speculate that “given the number of clerks and other parties involved in the counting process,” it is “doubtful and unrealistic for any court order to prevent widespread leaks about the progress of a controversial and hotly contested state election.” App. at 17. This speculation is unfounded; all evidence is to the contrary. During elections in the normal course, there are just as many (if not more, given COVID-19) clerks and other parties involved in the counting process, and
-14-

applicants have pointed to no evidence of a leak ever occurring no matter how “controversial and hotly contested” the election. In prior elections, statutes have permitted the tallying of absentee ballots beginning at any time after the opening of the polls, Wis. Stat. § 7.52(1)(a), and applicants present no examples of leaks about those ballots influencing who comes to the polls later in the day by 8 p.m.
Fourth, applicants claim that exit polling about in-person voting on election day and the purported requirement that municipal clerks must publicize the returns of ballots “as soon as they are counted” will “encourage[ ] absentee voters to withhold their ballots beyond the April 7 Election Day.” App. at 11-12, 15 (citing Wis. Stat. § 7.51(4)(b), (c)). But applicants have presented no evidence that exit polling will even be conducted; all the evidence indicates there will be no such polling in the April 7 election because of the pandemic. See Statement from the national election pool regarding March 17th elections, Edison Research (Mar. 13, 2020), https://www.edisonresearch.com/statement-from-the-national-election-poolregarding-march-17th-elections/; see also The survey of record for U.S. elections, Edison Research, https://www.edisonresearch.com/election-polling/ (“Our unique data includes the only national and state exit polls in the U.S.”). Nor are municipal clerks required to “immediately” publicize the results as soon as ballots are counted. The statute requires that, “except in 1st class cities” like Milwaukee, the chief inspector shall “immediately” report the returns of the election “to the municipal clerk or to the school district clerk,” Wis. Stat. § 7.51(4)(b) (emphasis added), and that the municipalities report the returns to the county clerk “no later than 2 hours after the
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votes are tabulated,” id. § 7.51(4)(c). The statute does not require the clerk to immediately make the returns public. See id. § 7.51(4)(b). Applicants simply have no evidence that absentee voters will know which candidate is ahead or behind in the period between April 7 and 13.
C. The Purcell principle cuts strongly against applicants’ requested relief. Applicants rely heavily on Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), in which this Court cautioned that “[c]ourt orders affecting elections, …can themselves result in voter confusion and consequent incentive to remain away from the polls,” a risk that increases “[a]s an election draws closer.” The underlying purpose of this so-called “Purcell principle” is to avoid “changing the electoral status quo just before the election,” which would cause “voter confusion and electoral chaos.” Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427, 428 (2016). But in this case, the “electoral status quo” already has been upended―not by any judicial order, but by the COVID-19 pandemic and the “voter confusion and electoral chaos” it is causing. Until very recently, Wisconsin voters reasonably expected they would be able either to vote safely in person on election day or through a reliable, well-functioning absentee ballot system. Now they cannot―and not because of any court order, but because of the pandemic. See Op. at 39 (“election deadlines have already been disrupted, with the evidence showing that many voters who timely request an absentee ballot will be unable to receive, vote, and return their ballot before the receipt deadline”) (emphasis in original). Likewise, this Court in Purcell was concerned that pre-election judicial orders might create a “consequent incentive to remain away from the polls.” 549 U.S. at 5.
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Here again, the “incentive to remain away from the polls” in these consolidated cases
results not from federal judicial action, but from a deadly pandemic. Voter confusion
and abstention from voting are “consequent” of COVID-19, not of anything the district
court has done. That court’s limited relief will result in more voters being able to cast
their ballots and ensure those ballots will be counted, rather than threatening to keep
voters from casting their ballots. The court’s injunction, in other words, is an effort to
mitigate the confusion and chaos caused by the pandemic that are interfering with
voters’ reasonable expectations and threatening to keep them from voting. Indeed, it
is telling that the WEC ― the body responsible for administering election ― is not
challenging the district court’s order or arguing that extending the ballot receipt
deadline to April 13 will cause disruption.
Applicants’ reliance on Purcell is misplaced for yet another reason. It will be
much less confusing and unfair if the district court’s order—which has received
substantial publicity and is in the process of being implemented by the WEC and
election clerks throughout Wisconsin4—simply remains in effect rather than being
4 See, e.g., Federal Court Order Affects Spring Election – Absentee Ballot Request and Receipt Deadlines Extended; Witness Signature Requirement Modified COVID-19, WIS. ELECTIONS COMM’N (Apr. 2, 2020), available at https://elections.wi.gov/node/6807; see also Appeals court refuses to block extended voting in Wisconsin, FOX 6 NOW (Apr. 3, 2020), available at https://fox6now.com/2020/04/03/appeals-court-refuses-to-block-extended-votingin-wisconsin/; Ruth Conniff, Appeals court upholds absentee ballot extension, but restores signatures, WIS. EXAMINER (Apr. 3, 2020), available at https://wisconsinexaminer.com/ brief/appeals-court-upholds-absentee-ballot-extension-but-restores-signatures/; Wisconsin limps toward Tuesday election despite virus fears (Apr. 4, 2020), available at https://www.wjfw.com/generalnews.html?SKU=20200404162347&text size=small; Patrick Marley, Wisconsin's election is still April 7, but a federal judge has extended the deadline for absentee votes to be counted, MILWAUKEE JOURNAL-SENTINEL (Apr. 2, 2020), available at https://www.jsonline.com/story/news/politics/elections/2020/04/02/
-17-

changed less than 48 hours before the election, which would lead to yet further confusion and uncertainty, as well as harm to voters who already have relied on the district court’s order in planning how and when to vote. Granting a stay, in other words, would simply create Purcell problems of its own, including by forcing voters who had planned to vote absentee but not yet received their ballots to either vote in person on election day and risk exposure to the coronavirus, or abstain from voting altogether. II. The balance of potential harms and the public interest strongly favor denial of the application.
The balance of harms and the public interest also strongly favor denying the application. As the district court emphasized, the potential harms to voters are severe, if not catastrophic, and there are no adequate remedies at law. Op. at 24-25. “When constitutional rights are threatened or impaired, irreparable injury is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury.” Obama for Am., 697 F.3d at 436. Moreover, “[t]he public interest . . . favors permitting as many qualified voters to vote as possible.” Id.
A stay also could exacerbate the unfolding COVID-19 public health disaster. If voters are not confident their absentee ballots will be counted, this will drive more

wisconsin-election-judge-extends-absentee-voting-but-keeps-vote-date/5112276002/;

Ed

Trevelan, ‘Ill-advised’ election to go on amid COVID-19 pandemic, judge says, but some

absentee ballot rules rolled back, WIS. STATE JOURNAL, (Apr. 3, 2020), available at

https://madison.com/wsj/news/local/crime-and-courts/ill-advised-election-to-go-on-judge-

says-but-some-absentee-ballot-rules-rolled-back/article_8dd80672-af4b-5bc6-b25b-

f29b92a78382.html; Shawn Johnson, Despite COVID-19 Concerns, Federal Judge Won't

Postpone Wisconsin's April 7 Election, WIS. PUBLIC RADIO (Apr. 2, 2020), available at

https://www.wpr.org/despite-covid-19-concerns-federal-judge-wont-postpone-wisconsins-

april-7-election.

-18-

people to vote in-person on election day, thereby increasing the risks of community spread through polling places in cities and towns throughout Wisconsin. The district court’s narrow injunction dramatically reduces the need for person-to-person contact, easing the “severe” burdens that Wisconsin law places on absentee voters in the circumstances of the present pandemic. A stay would negate these reasonable remedies for the extreme, unprecedented circumstances that tens of thousands of Wisconsin voters are likely to face: either they venture out to vote in person and risk their health and the health of others, or they forfeit the right to vote through no fault of their own.
Applicants entirely ignore these harms to voters and the public interest, simply repeating their false claims that “Respondents did not provide any evidence to justify allowing voters to mail in their ballots after election day, since they were never even asking for this relief.” Op. at 19 (emphasis added). And applicants’ claims of “irreparable harm” to themselves are simply a rehash of their unfounded arguments that voters completing their absentee ballots after April 7 will have knowledge of the preliminary election results, thereby undermining the “integrity” and “orderly administration” of the election. Id. Respondents have refuted these claims above in Part II-B. It is the district court’s injunction that will best promote the “integrity” and “orderly administration” of the April 7 election by ensuring that voters who receive their requested absentee ballots late because of the COVID-19 chaos will still be able to cast those ballots rather than having to venture to the polls and risk exposure to the coronavirus.
-19-

CONCLUSION For these reasons, the Emergency Application for Stay should be denied.
Respectfully submitted,

Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Marc E. Elias Counsel of Record
Bruce V. Spiva John Devaney Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com BSpiva@perkinscoie.com JDevaney@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin

-20-

No. 19A1016

IN THE
SUPREME COURT OF THE UNITED STATES
___________________________

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

CERTIFICATE OF SERVICE _______________________

DIRECTED TO BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT
_______________________

I, Marc E. Elias, a member of the Supreme Court Bar, hereby certify that the a copy of the forgoing Response to Emergency Application to Stay Injunction Pending Appeal in the United States Court of Appeals for the Ninth Circuit was filed by email with the Clerk’s Office of the Supreme Court of the United States, and was served via email on the following parties listed below on this 5th day of April, 2020:

MISHA TSEYTLIN KEVIN M. LEROY Troutman Sanders LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606

PATRICK STRAWBRIDGE Counsel of Record Consovoy McCarthy PLLC Ten Post Office Square 8th Floor South PMB #706

Counsel for Wisconsin Legislature in 3:20-cv-249, -278, -284
ERIC M. MCLEOD HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819
Counsel for Wisconsin Legislature in 3:20-cv-249

Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com
Counsel for Republican National Committee et al.
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street Suite 800 Madison, WI 53703
Counsel for Wisconsin Legislature in 3:20-cv-284

Marc E. Elias Counsel of Record
PERKINS COIE LLP 700 Thirteenth Street, N.W. Suite 800 Washington, D.C. 20005 (202) 654-6200 melias@perkinscoie.com

-2-

No. 19A1016
IN THE
SUPREME COURT OF THE UNITED STATES

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

Charles G. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Marc E. Elias Counsel of Record
Bruce V. Spiva John Devaney Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com BSpiva@perkinscoie.com J.Devaney@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin
(additional counsel on next page)

Douglas M. Poland David P. Hollander Rathje Woodward LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com
Richard Saks Hawks Quindel, S.C. 222 E. Erie St., Suite 210 Milwaukee, WI 53201 (414) 271-8650 (telephone) (414) 271-8442 (facsimile) rsaks@hq-law.com
Counsel for Greg Lewis, Souls to the Polls, Voces de la Frontera, Black Leaders Organizing for Communities, and American Federation of Teachers, Local 212, AFL-CIO

Tamara B. Packard Lester A. Pines Pines Bach LLP 122 West Washington Ave, Suite 900 Madison, WI 53703 (608) 251-0101 (telephone) (608) 251-2883 (facsimile) lpines@pinesbach.com tpackard@pinesbach.com
Counsel for SEIU Wisconsin State Council

DECLARATION OF MARC E. ELIAS IN SUPPORT OF RESPONDENTS’ OPPOSITION TO APPLICANTS’ EMERGENCY STAY I, Marc E. Elias, am an attorney with the firm of Perkins Coie LLP and counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin. I make this declaration in support of Respondents’ Opposition to Applicants’ Emergency Stay. 1. Attached as Exhibit 1 is a true and correct copy of the certified transcript of the April 1, 2020 evidentiary hearing on Respondents’ motion for preliminary injunction in the district court. 2. Attached as Exhibit 2 is a true and correct copy of the declaration of Neil Albrecht, Executive Director for the City of Milwaukee Election Commission, dated April 5, 2020. 3. Attached as Exhibit 3 is a true and correct copy of the declaration of Maribeth Witzel-Behl, City Clerk of Madison, dated April 5, 2020. 4. Attached as Exhibit 4 is a true and correct copy of the declaration of Kris Teske, City Clerk of Green Bay, dated April 5, 2020. 5. Attached as Exhibit 5 is a true and correct copy of the declaration of Tara Coolidge, Racine City Clerk, dated April 5, 2020. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury, under the laws of the United States, that the foregoing is true and correct to the best of my knowledge. Dated this 5th day of April, 2020.
s/ Marc E. Elias Marc E. Elias
- 1 -

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN ________________________________________________________________

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

-vs-

Case No. 20-CV-249-WMC

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN,

Madison, Wisconsin April 1, 2020 1:09 p.m.

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants. ________________________________________________________________

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs,

-vs-

Case No. 20-CV-278-WMC

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ________________________________________________________________

Jennifer L. Dobbratz, RMR, CRR, CRC U.S. District Court Federal Reporter
United States District Court 120 North Henry Street, Rm. 410
Madison, Wisconsin 53703 (608) 261-5709

2

________________________________________________________________

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS, LOCAL 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs,

-vs-

Case No. 20-CV-284-WMC

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

________________________________________________________________

STENOGRAPHIC TRANSCRIPT OF VIDEOCONFERENCE EVIDENTIARY HEARING HELD BEFORE U.S. DISTRICT JUDGE WILLIAM M. CONLEY

APPEARANCES:
For the Plaintiffs, DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN:
Perkins Coie LLP BY: JOHN DEVANEY
BRUCE V. SPIVA 700 Thirteenth Street N.W. Suite 800 Washington, D.C. 20005
For the Plaintiffs, SYLVIA GEAR, ET AL.:
Fair Elections Center BY: JON SHERMAN
MICHELLE E. KANTER COHEN 1825 K Street NW Suite 450 Washington, D.C. 20006

3

For the Plaintiffs, REVEREND GREG LEWIS, ET AL.:

Rathje & Woodward, LLC BY: DOUGLAS M. POLAND 10 East Doty Street Suite 507 Madison, Wisconsin 53703

Pines Bach, LLP BY: TAMARA B. PACKARD 122 West Washington Avenue Suite 900 Madison, Wisconsin 53703

For the Defendants:

Lawton & Cates, S.C. BY: DIXON R. GAHNZ
DANIEL S. LENZ 10 East Doty Street Suite 400 Madison, Wisconsin 53701

For the Intervening Defendants:

Consovoy McCarthy Park, PLLC BY: PATRICK STRAWBRIDGE Ten Post Office Square 8th Floor PMB 706 Boston, Massachusetts 02109

Also Appearing: Administrator MEAGAN WOLFE, Wisconsin Elections Commission

***

INDEX OF WITNESSES

PLAINTIFFS' WITNESSES

EXAMINATION

PAGE

MEAGAN WOLFE

Adverse Examination by Mr. Devaney

33

Adverse Examination by Mr. Sherman

43

Adverse Examination by Mr. Poland

66

Clarification Examination by Mr. Strawbridge 83

Clarification Examination by Mr. Lenz

86

4

INDEX OF EXHIBITS

PLAINTIFFS' EXHIBITS

IDENTIFIED RECEIVED

51

Memo - 3/29/20

44

44

52

Absentee Ballot Certification (EL-122) 60

60

54

U.S. Census Table

63

102

WEC Agenda - 3/31/20

66

68

***

7

(On the record at 1:09 p.m.)

8

THE COURT: All right. Let's go on the record. I am

9

calling Case No. 20-CV-249, 278, and 284, Democratic National

10

Committee, et al. v. Bostelmann, et al., and I'll hear

11

appearances first for the 294 [verbatim] plaintiff.

12

MR. DEVANEY: Your Honor, John Devaney for the

13

Democratic National Committee and the Wisconsin Democratic

14

Party, and I'm accompanied by my colleague, Mr. Bruce Spiva.

15

THE COURT: Very good.

16

For the 278 plaintiffs?

17

MR. SHERMAN: Good afternoon, Your Honor. Jon Sherman

18

on behalf of the Gear plaintiffs in 278. I'm joined by my

19

colleague, Michelle Kanter Cohen.

20

THE COURT: All right.

21

And for the 284 plaintiffs?

22

MR. POLAND: Good afternoon, Your Honor. Attorney Doug

23

Poland from Rathje Woodward accompanied by Attorney Tamara

24

Packard of Pines Bach appearing for the Lewis plaintiffs.

25

THE COURT: For the WEC defendants?

5

1

MR. GAHNZ: Good afternoon, Your Honor. Dixon Gahnz

2

and Dan Lenz from Lawton & Cates. Also present is Meagan Wolfe

3

from the Wisconsin Elections Commission.

4

THE COURT: Very good.

5

And then, finally, for the intervening defendant --

6

defendants.

7

MR. STRAWBRIDGE: Good afternoon, Your Honor. Patrick

8

Strawbridge on behalf of the Republican National Committee and

9

the Republican Party of Wisconsin.

10

THE COURT: All right. As I indicated, we will begin

11

with a witness and additional evidence by the parties. And with

12

that said, I understand we have one witness, and appropriately

13

enough, it is Ms. Wolfe.

14

So, Ms. Wolfe, I'll ask our clerk to swear you in.

15

MEAGAN WOLFE, PLAINTIFFS' WITNESS, SWORN

16

THE COURT: And, Joel, I'm not seeing Ms. Wolfe. I'm

17

still seeing Mr. Strawbridge.

18

THE CLERK: Not entirely clear what's happening, Judge,

19

why that's not working.

20

THE COURT: And I think it's pretty obvious that that's

21

not going to fly. I'm looking at gallery view, and then I can

22

see Ms. Wolfe. Let me see. But I can't call her up as the

23

principal speaker.

24

THE CLERK: I could -- the only thing that I can do,

25

Judge, is I can pin Ms. Wolfe as the spotlight speaker, which

6

1

would have her show up on the screen at all times, and then we

2

would hear other counsel in the background.

3

THE COURT: All right. Let's do this -- and I

4

apologize to everyone. I thought we had eliminated most of

5

these kinks already. But, Ms. Wolfe, I listened in to about a

6

half hour of one of your sessions, and I know you're all too

7

familiar with these problems with your own commission. I got

8

off by the time you got into the substance of your

9

decision-making, because I didn't think, once you were talking

10

about specifics, it would be appropriate for me to listen, but

11

at least I have a sense of what you're dealing with every day.

12

You are now under oath. You understand that?

13

THE WITNESS: Yes, I do, Your Honor.

14

THE COURT: Okay. And I can see you in the bottom

15

right of my gallery, so we'll operate on that basis.

16

I'm going to follow the suggestions of a number of parties

17

on our last call and simply to ask you some questions directly,

18

and then I'll give counsel an opportunity to ask their questions

19

of you, finishing with your own counsel. I would suggest that

20

you try to focus closely on the specific question being posed

21

and just answering that question, whether it's from me or the

22

other attorneys on this call, understanding that if you do need

23

to expand your answers, you'll have an opportunity to do that

24

with respect to your own counsel's questioning. All right?

25

THE WITNESS: Thank you.

7

1

THE COURT: And you can just leave your mic open at

2

this point. I think that will probably make the most sense.

3

We do have the benefit of a number of seemingly undisputed

4

facts, and so I'm not going to spend a lot of time on those, but

5

it did strike me that it would be appropriate to begin with your

6

own view of where you believe you stand with respect to absentee

7

ballots and particularly if I were, as the Wisconsin Election

8

Commission indicated, to extend the absentee ballot date to

9

postmarked by April 7th and received by April 13, 2020. Where

10

in your view do you think you stand as to the viability of

11

accomplishing that with respect to absentee ballots?

12

THE WITNESS: Yes, Your Honor. Thank you.

13

So as you stated, the Commission did pass a motion to say

14

that they would --

15

THE COURT: You don't need to preface it. I'm just

16

asking, assuming that I were to adopt that suggestion, where do

17

you think the Commission and the some 1,800 poll workers, 1,850

18

poll workers, stand as to accomplishing the counting of -- or

19

the processing and counting of absentee ballots?

20

THE WITNESS: We have heard from municipal clerks, and

21

there's 1,850 municipal clerks --

22

THE COURT: I'm not asking you for any preface. I'd

23

like you just to answer the question. Personally under oath,

24

you, individually, where do you think the Commission and the

25

1,850 municipal clerks and the 72 county clerks stand as to your

8

1

ability to process the absentee ballots? You're not speaking

2

for the Commission right now. You're speaking for yourself

3

personally under oath. Where do you think you stand?

4

THE WITNESS: Municipal clerks have expressed that they

5

have many absentees to process, more than they've ever had, and

6

so additional time may be useful for them to be able to process

7

those. There's also been expressed concerns about the return of

8

ballots from voters and the time it may take in the mail to

9

receive those. We've also -- as was shown in the declaration,

10

with what the Commission approved, that date would also allow

11

the other statutory requirements for canvassing and tallying the

12

ballots to be met as well.

13

THE COURT: And so I think what your answer is, is that

14

you believe if I were to extend the absentee ballot postmark

15

date to the day of election and to count ballots received by

16

April 13, that it would be manageable for the poll workers,

17

including municipal clerks, to accomplish the voting -- or the

18

counting and logging of votes consistent with their statutory

19

obligations. Is that what you're saying?

20

THE WITNESS: That's correct, as well as for the postal

21

return of ballots from voters to the municipal clerk.

22

THE COURT: Are you concerned about errors that are

23

likely to occur because of poll worker shortages?

24

THE WITNESS: There's always the possibility for errors

25

in the process. We've heard though that they are bringing in

9

1

additional poll workers that may not be seasoned as poll

2

workers. So as they're dealing with a larger volume of

3

absentees in addition to having new poll workers, there is the

4

potential for errors that we may not have seen in the past, but

5

we've provided ample training as well about some of these new

6

processes to help aid them in being prepared.

7

THE COURT: And what I'm interested in in particular,

8

given, as you say, you're going to have a lot of people who are

9

not well versed, what do you anticipate in terms of how the

10

clerks would accomplish absentee ballot voting consistent with

11

COVID-19 protocols? Which I guess at the outset we're not going

12

to be complying with them because you're going to be bringing

13

together a certain number of individuals in one room, I assume,

14

correct? Or have you come up with a way to accomplish both

15

counting of the absentee ballots and doing so in a safe manner?

16

THE WITNESS: Yes, Your Honor. We have provided many

17

documents on how to conduct both absentee voting as well as

18

in-person election day voting. We --

19

THE COURT: Yeah. I'm not asking about the voting.

20

I'm asking about the counting of the ballots themselves, the

21

absentee ballots.

22

THE WITNESS: Sure.

23

THE COURT: So what protocols have you suggested to

24

local clerks and the poll workers who will be exchanging pieces

25

of paper, I assume, or at least having to be close enough to

10

1

supervise and instruct other poll workers who are not

2

experienced on how to accomplish the actual tally of the

3

absentee ballots? And again we're just talking about the

4

absentee ballots.

5

THE WITNESS: Thank you, Your Honor.

6

Yes, we have provided guidance on the counting of absentees.

7

For example, there have been jurisdictions that do what we call

8

central count. They have moved the facilities to larger

9

facilities so that they can accomplish social distancing. We've

10

also provided guidance to the clerks about the CDC

11

recommendation for handling paper and the recommendations that

12

they focus on hand hygiene.

13

So, for example, in the checklist we provide to the clerks,

14

we talk about processing absentee ballots and how the poll

15

workers should be allowed to have a break every ten minutes to

16

preferably wash their hands with soap and water or to sanitize.

17

They do not recommend gloves or other things at this point. We

18

also had discussions with the public health official about how

19

long biological material can live on paper and that, when people

20

are transmitting it by mail, the time period for which that type

21

of material could still be viable has passed. So they don't

22

believe there's additional protocols beyond social distancing

23

and beyond having those opportunities to exercise hand hygiene

24

are the steps that are recommended.

25

THE COURT: Let me step back from that then, and I

11

1

should have said at the outset I understand just from what I've

2

read and from your affidavits as well as the other materials in

3

this case how hard you and the Commission have worked to try to

4

make a difficult situation viable, and obviously I know you

5

appreciate the efforts being made at the county and municipal

6

levels as well to make this happen.

7

If we were in a different world for the moment and before

8

you were aware of the COVID-19 epidemic, did you project how

9

many voters you anticipated for this election?

10

THE WITNESS: We do not do projections per se. We do

11

help clerks estimate how many materials to procure prior to each

12

election by looking at historical turnout, so we advised them to

13

the comparable elections, the presidential preference in 2012

14

and in 2016. In the 2012 presidential primary, we saw about 1.1

15

million voters turn out for that election. In the 2016

16

presidential preference, we had a new high historical turnout of

17

just over 2 million voters for that presidential preference, and

18

so we advised them to plan accordingly with history for a

19

comparable election, so we would have had them base their

20

resources on the 2016 numbers, knowing that they might likely be

21

higher than we might see this year.

22

THE COURT: Okay. So you would have expected going in,

23

in terms of your advice to the municipalities, that they should

24

plan for up to 2.1 million, but they're likely to see someplace

25

between 1.1 million and 2.1 million. Is that fair?

12

1

THE WITNESS: That's correct.

2

THE COURT: Okay. Based on what you've seen so far in

3

terms of absentee ballots, in order to achieve we'll just say

4

1.6 million voters, what would be the likely number that will

5

need to appear at the polls in person based on projected

6

absentee ballots in order to meet that number?

7

THE WITNESS: Right now we have -- there have been

8

100 -- or, I'm sorry, 1,050,000 absentee ballots that have been

9

recorded as requested in the statewide database. Now, that does

10

not reflect other ballots that have not yet been entered, data

11

entered into the system. There may be ballots that are sent

12

that aren't reflected in that number because, again, the clerk

13

may have sent them but hasn't had an opportunity to enter them

14

into our system. So we're operating under the assumption that

15

there are more than that million that we have in the system

16

right now, but being that that number is unknown, in your

17

scenario there would be about 500,000 voters that would still

18

need to vote in person or still need to request an absentee

19

ballot, but, again, we don't have an exact number at this point.

20

THE COURT: And that's data based on absentee ballots

21

sent, not actually returned, correct?

22

THE WITNESS: That's based on absentee ballot requests

23

entered into the system.

24

THE COURT: Right.

25

THE WITNESS: So, again, the number sent would be

13

1

higher.

2

THE COURT: Right.

3

THE WITNESS: And you're correct though; it's not

4

ballots returned.

5

THE COURT: And at this point the ballot return numbers

6

are approximately what?

7

THE WITNESS: I believe they're approximately 400,000,

8

but, again, those are that have been entered into the system.

9

There may be many more that have been returned, but the clerk

10

has not had an opportunity to enter them.

11

THE COURT: Understood. And how does that compare -- I

12

know these numbers are much larger than historic numbers, but

13

how does that return rate compare to prior elections, if you

14

know?

15

THE WITNESS: I'm not sure on return rates. I

16

apologize. I do know that we've broken records in terms of

17

absentees issued and entered into the system already. In the

18

2018 presidential -- or, I'm sorry, in the last presidential in

19

2016, I believe we saw about 800,000 absentee ballots issued.

20

THE COURT: So we really don't know if we're -- what's

21

the experience and do you even have a general percentage for the

22

number of absentee ballots that are normally returned compared

23

to the numbers that are mailed?

24

THE WITNESS: I believe, if my memory serves me

25

correctly, you know, it is less than half of the ballots that

14

1

have been returned that have been requested initially.

2

THE COURT: So that would mean, if that experience

3

occurred, that we would be short basically a million voters that

4

would have to appear in person on election day. Is that fair?

5

Assuming you had that same experience -- and maybe it will be

6

much higher. That would be lovely. But if we expected half of

7

those ballots to be returned, we'd be looking at about a

8

million-voter shortfall.

9

THE WITNESS: Your numbers would be correct, yes, and I

10

should note that when a voter shows up at the polls on election

11

day, if they've been issued an absentee, they're asked whether

12

or not they've returned the absentee. If the voter has indeed

13

returned their absentee ballot, then they cannot be issued

14

another ballot at the polls. If they have not yet returned it,

15

then they can receive and cast a ballot at the polls on election

16

day.

17

THE COURT: And so if I were to extend the counting of

18

absentee ballots, how would that be accomplished?

19

THE WITNESS: So under the motion passed by the

20

Commission, if it extended for voters to be able to postmark

21

their ballot by election day but received by their clerk by the

22

Monday after the election --

23

THE COURT: I'm sorry. It was a horrible question.

24

What I understood you to have just said is that there will be

25

individuals who may appear to vote in person who you have not

15

1

yet received their absentee ballot on the day of the election.

2

THE WITNESS: Okay.

3

THE COURT: And now the question is what if that comes

4

in -- if I extend the date for receipt through the date of the

5

election, how would you accomplish addressing those who

6

proceeded to vote but had also sent in an absentee vote?

7

THE WITNESS: Understood. Thank you for the

8

clarification.

9

So, yes, the statutes do state that if somebody has returned

10

their absentee ballot, that they cannot receive a ballot on

11

election day, and so that is a statutory requirement. So under

12

that scenario, the voter could not be issued another ballot on

13

election day, but if the return period were extended, then the

14

clerk would be waiting for that ballot to come back in the mail

15

during that extended period to add it to the count.

16

THE COURT: So would the clerks have in front of them a

17

list of everyone who was sent an absentee ballot?

18

THE WITNESS: Yes, Your Honor. On the actual poll book

19

itself, there is what we call a watermark on the voter records

20

of voters who have been sent an absentee, and this prompts the

21

poll worker to ask the voter the question, "Have you returned

22

your ballot?" And if the voter has already returned it, if the

23

clerk already has it in their hand, then it will actually show

24

that the ballot has been returned already, so, again, they

25

wouldn't be allowed to get another ballot on election day.

16

1

THE COURT: So the question would really have to be,

2

"Have you returned the ballot or do you intend to return the

3

ballot today," if I would extend as you're suggesting.

4

THE WITNESS: The question would be, "Have you already

5

put it in the mail?" So if it's already in transit to the

6

clerk, then they would not be able to get another one on

7

election day because the theory is --

8

THE COURT: I'm not asking the question as clearly as

9

I'm trying to. If I allow ballots to be counted that are

10

postmarked April 7th --

11

THE WITNESS: Uh-huh.

12

THE COURT: -- then how do we ensure that people who

13

vote in person have not also mailed in an absentee ballot on

14

that date, even if they answer honestly they haven't sent it in

15

yet?

16

THE WITNESS: Understood.

17

So in that scenario if someone came in on election day and

18

they were asked, "Have you returned your absentee," and the

19

voter said, "No, I haven't," but in actuality they had --

20

THE COURT: No, no. I'm not talking about fraud. That

21

could happen in any case. I'm talking about in this election if

22

they move the postmark date to the day of election for absentee

23

ballots, they could honestly answer no but still drop a ballot

24

in the election box. Now, I would think that would be a rare

25

situation, so maybe we don't have to overly think this, but I'm

17

1

just suggesting perhaps a poll worker would need to make sure

2

they understand they can't proceed to do so that day.

3

THE WITNESS: Yes. Thank you for the clarification.

4

You're right. Additional training could certainly be

5

conducted about those scenarios, and also if the voter did later

6

that day put their ballot in the mail, when they're reconciling,

7

when they're actually doing their municipal board of canvass,

8

they wouldn't count that ballot once it came in the mail because

9

they'd see that there was already participation recorded for

10

that voter in person.

11

THE COURT: And I take it that would just be one more

12

wrinkle that would be impacted by a change obviously, but is it

13

one that you think would further exacerbate the ability to count

14

the absentee ballots even with the extended time that I'm

15

providing -- that you're suggesting I provide?

16

THE WITNESS: There would need to be some adjustments

17

to our training. I think that scenario you just presented is an

18

interesting one that we don't have right now, and so we would

19

have to -- there would be some work on the municipal clerks'

20

parts for double-checking to make sure that voters who are

21

returning an absentee ballot that may be postmarked on election

22

day didn't participate. So that's not currently part of their

23

check but certainly something we could produce training to make

24

sure that they understood how to process those ballots.

25

THE COURT: Before I get off the absentee ballot

18

1

subject, do you have a sense as to whether the requests are

2

continuing to come in at record levels through at least

3

yesterday?

4

THE WITNESS: Yes, Your Honor. There's huge amounts

5

that continue to be entered into our system every day. We did

6

see a small plateau over the weekend, but we have actually a

7

chart on our website that shows the increase in requests day to

8

day, and it continues to grow at a pretty incremental, steady

9

pace from day to day.

10

THE COURT: All right. And just to confirm, that will

11

end then tomorrow. That is the last day to request is April

12

2nd.

13

THE WITNESS: For most voters. For voters who are

14

indefinitely confined and who -- actually who request a calendar

15

year request rather than a single election have through Friday.

16

THE COURT: All right. And what would be the impact if

17

I were to extend the overall request period to Friday for

18

everyone in light of this uncertainty as to whether you can

19

check COVID-19 as a reason for -- or concerns as a reason for

20

not leaving your home or taking steps?

21

THE WITNESS: I think that, you know, the biggest thing

22

to consider would, of course, be the opportunity for the voter

23

to receive that ballot by mail. We've heard that first-class

24

mail, which is what ballots are usually -- well, what ballots

25

are marked as, as election mail, take about two days, but the

19

1

postal service has advised that mail can take up to a week.

2

We've also heard from some jurisdictions it can take a week to

3

eight days for that transaction to happen. So the closer we get

4

to election day and the day that the voter would have to

5

postmark it for return, the more precarious the situation is

6

that they'll get their ballot back.

7

THE COURT: I get that. And have you had that

8

experience with people who have indicated an inability, whether

9

because of a handicap or age or other factors, to comply? In

10

other words, they've done the check-off, mailed it on the Friday

11

before election day, and you've not received the ballot by

12

election day?

13

THE WITNESS: Yes, that certainly does happen. There

14

are sometimes voters who may not know the deadline or who even

15

will send them to things like our office because they're not

16

sure where to return it. It's quite rare in that specific

17

circumstance, but there was a change in the law a few years ago.

18

There used to be a provision that allowed ballots from military

19

and overseas voters to be received by 4:00 p.m. on the Friday

20

after the election in coincidence with that provisional ballot

21

deadline, and so a lot of times when voters were in places where

22

the mail took a little longer, it would come back during that

23

period to the jurisdictions, and they have to delay their

24

canvassing until those ballots come back.

25

THE COURT: Which -- would that be addressed by

20

1

extending the postmark date to the date of election? In other

2

words, in those -- in your experience, does the individual -- I

3

guess you're saying they don't even -- there are situations

4

where they would not even get the ballot until on or after

5

election day, so they can't even get it postmarked on election

6

day. That's happened in the past.

7

THE WITNESS: That is certainly a potential situation.

8

There's also, I should note, the opportunity for voters to

9

request they receive their ballot by email, so that is an option

10

for voters, but then they have to have a printer and the ability

11

to mail that ballot back or hand deliver the ballot. So there

12

are some transactions that don't have to involve the mail

13

service, but the most common is, of course, mail.

14

THE COURT: Right. Understood.

15

I just want to talk a little bit more about the poll workers

16

themselves. Obviously we've heard from a number of

17

municipalities as to the difficulties that are being created by

18

poll workers, who understandably for their own reasons, perhaps

19

in many cases valid health reasons, that they're not going to be

20

able to appear, and I know you say municipalities are taking

21

steps to try to address that shortfall by enlisting others or --

22

and/or, I should say, by consolidating voting locations.

23

How -- this is the Hobson's choice for the poll workers and

24

the municipalities. The more you consolidate voting, the more

25

challenging it will be for voters to get to the right place, and

21

1

I know that you have undertaken various suggestions about

2

posting at the municipal clerk's office where the open polls are

3

and leaving that up on a sheet even after 5:00 p.m. -- or even

4

after the closing, whatever closing time is, 4:30 or 5:00 p.m.

5

or 5:30, for the local municipality. But on one side that

6

consolidation, which is intended to facilitate the ability to

7

process voters, creates a set of problems for people seeking to

8

vote in person on Tuesday.

9

You've at least acknowledged that's a concern for the

10

Commission, correct?

11

THE WITNESS: There certainly, in that scenario, would

12

be less availabilities in, you know, neighborhoods for people to

13

be able to walk, let's say, to the polling place because, yes,

14

certainly consolidation means fewer places, especially in our

15

mid to large-size communities.

16

THE COURT: And the Hobson's choice that I was talking

17

about is by consolidating poll workers and voters into a fewer

18

number of locations, you're also raising the COVID-19 risk for

19

everyone. In other words, the more people who congregate in one

20

place, the higher the risk develops, and I don't think you

21

dispute that. You're just saying that the Commission, who is

22

stuck with trying to make this happen, is taking what steps they

23

can to inform municipalities as to how they can effectively

24

address that based on what we know so far of this virus, which

25

is, unfortunately, not all we need to know.

22

1

THE WITNESS: Yes, Your Honor. We have developed some

2

guidance for how to make sure that only enough voters who can

3

safely be in a space are admitted at one time. So, for example,

4

we just had a live webinar to answer questions from clerks at

5

10:00. We have another one at 2:00. And a common question is,

6

is there a capacity limit for how many people can be in the

7

building? Our guidance remains that that capacity limit depends

8

on the facility and how many people can be in the facility and

9

still maintain the proper social distancing from one another and

10

from the poll workers, and so we suggest that they only allow

11

the number of people in at a time that they can accomplish that,

12

and then if there's sort of a waiting area outside, that they

13

should also be instructed in the waiting area to practice social

14

distancing as well.

15

THE COURT: And do you have sufficient masks -- do

16

local municipalities have sufficient masks to at least give to

17

the poll workers?

18

THE WITNESS: There are not masks. In our work with

19

the public health official and the guidance from the CDC

20

specific to elections, they have not advised at this point that

21

poll workers or voters use masks. They actually --

22

THE COURT: Yeah. Let me just stop you there. I

23

understand that, but as you might also know, the CDC is also

24

currently considering whether they should advise everyone to

25

wear a mask. My understanding is that basically COVID-19 is

23

1

everywhere in the country at this point, and a mask, other than

2

helping an individual from touching their face, doesn't do much

3

for the individual, but because we don't know who carries it, it

4

may help prevent someone who does have it and is asymptomatic

5

from spreading it.

6

So it would seem to me that masks for the poll workers, who

7

are most likely to be infected and most likely to transmit it to

8

others, if not on election day to other poll workers and voters

9

but within seven to 14 days later among their -- the people they

10

come in contact with, that they may be well served to wear masks

11

because they will be less likely to touch their face, and if

12

they, in fact, are transmitting and have not yet shown symptoms,

13

are less likely to transmit it to others. I just suggest that

14

to you. I'm not sure that's within the scope of what is before

15

me, but the attorneys will argue about that. In terms of the

16

poll workers themselves, I think -- and I know you're trying to

17

stay on top of the advice from the CDC, but that may be

18

something to consider.

19

We really won't know until election day whether or not

20

you're going to have sufficient staffing. Is that fair? To

21

handle in-person voting.

22

THE WITNESS: Right. I think our municipal clerks have

23

made many adjustments to make sure they have enough for these

24

consolidated polling places. We've also heard about many taking

25

creative approaches to working with their town boards or other

24

1

leadership in their town to ensure they have people sort of on

2

the bench in the event that someone is unable to serve. As you

3

know, each polling place has to have a minimum of three people

4

that are serving at the polling place, and so they've been

5

making contingencies to ensure if one of the three is

6

unavailable, there's someone else that can serve in that

7

capacity. And so I think a lot of the consolidation we're

8

seeing is a result of them ensuring they have adequate staffing

9

for fewer polling places.

10

THE COURT: And do you anticipate at this point the

11

National Guard being involved, as was suggested by the Governor?

12

THE WITNESS: We are certainly postured to help with

13

training and deployment if that is something that's made

14

available to us. It's been part of our discussions but nothing

15

that's formally been announced to us, but we certainly stand

16

ready to train and make people -- make sure they understand the

17

basics of the duties at any point if there were guard members

18

that were willing to serve in that capacity.

19

THE COURT: Then I guess we have the -- you know,

20

again, there's this Hobson's choice, because the more people you

21

get located at the voting, the greater the COVID-19 risk, so it

22

really is a tough balance that will be challenging each

23

municipal clerk or at least those experienced enough as poll

24

workers to guide others at each location.

25

What steps, if any, do you anticipate being taken if some

25

1

polls are -- end up having to close entirely?

2

THE WITNESS: So we do practice as part of our usual

3

contingency planning before this crisis occurred, we have what

4

we call tabletop exercises, scenario-based trainings with our

5

municipal elections officials, and they used to focus on

6

cybersecurity and other security measures like what would you do

7

in the event that your polling place flooded? If there was some

8

other safety issue in your polling place, how would you

9

consolidate with, say, a neighboring township to ensure that

10

you're able to continue to run the election? So these are plans

11

that are transferrable to the current crisis, and so we're

12

working on developing plans like consolidation as well as, like

13

you mentioned, the potential of training guards members that may

14

be able to fill in in that capacity in the event that there's an

15

emergency on an election morning and we need to ensure a polling

16

location is able to open.

17

THE COURT: And I assume those polling stations will

18

then be required to be in compliance with other relevant laws

19

like ADA accessibility or the presence of bilingual poll

20

workers.

21

THE WITNESS: Yes, Your Honor. We've been reinforcing

22

with the municipalities that changes to the process to

23

accommodate the current crisis must still meet the requirements

24

of the law. So they may look a little different than they have

25

in the past, but they still need to meet the requirements of the

26

1

law.

2

THE COURT: So let me ask you the last impossible

3

question about this subject, which is how confident are you that

4

voters will know where to go on election day or do you expect

5

that's just going to vary by local municipality?

6

THE WITNESS: I do think there will be some variation

7

between municipalities, but we do train them on the vital

8

importance of keeping their polling place records and election

9

plans up to date in the statewide database because this allows

10

voters to see where their polling place is. So the clerks enter

11

the polling places into our statewide database, which then

12

pushes to the MyVote Wisconsin website so voters can find their

13

polling place. We also instruct them, like you previously

14

mentioned, if they are changing polling locations, they need to

15

provide notice in their community, including putting a notice

16

on, let's say, the door of the facility that usually serves as

17

the polling place directing people to the new facility so that

18

they're aware when they arrive to maybe where they're used to

19

going about the change in location.

20

THE COURT: And, again, would it be fair to say that we

21

won't know until election day whether or not those mechanisms

22

are sufficient given the impacts of COVID-19?

23

THE WITNESS: Certainly the scope and likelihood that

24

there could be these consolidations and changes is greater than

25

previous elections, but every election there's at least one

27

1

place that does have to change locations at the last minute for

2

a variety of reasons. So it's certainly part of their

3

contingency planning that they've been doing for all previous

4

elections.

5

THE COURT: I'm also thinking that that's going to be

6

true with respect to challenges that will no doubt come for

7

recounts, whether because of concerns about incorrectly

8

recording voters, incorrectly mailing ballots -- excuse me -- or

9

the wrong ballot to voters, and I don't know how to weigh those

10

things other than to say -- I guess I'm being invited to say

11

that there's just so many potential problems that we're not

12

going to be able to accomplish a meaningful election. Again, we

13

have this irony that we're going to need between 500,000 to a

14

million voters to vote in person to have -- for this to appear

15

to be a viable election based on historic patterns, but if we

16

get that big a turnout, it may overwhelm those poll workers who

17

are being tasked with the extremely difficult job of trying to

18

accept that many voters in a safe manner.

19

I guess I'm not asking that question as much as do you

20

disagree with that observation?

21

THE WITNESS: I never want to underestimate our local

22

election officials. They are incredibly resilient. They are

23

incredibly resourceful, and so -- and we always say we're the

24

little agency that could, and so, you know, I don't want to

25

underestimate our ability to overcome obstacles, but it will

28

1

certainly be challenging.

2

THE COURT: The recount process also would be

3

problematic in this case, I assume, because the statute requires

4

that people who want to be can be present to observe in person

5

and by counsel. I assume that's not a bridge you've tried to

6

address yet or do you have a contingency in place for that?

7

THE WITNESS: Well, our clerks are certainly practiced

8

in recounts. As the only state that had a presidential recount,

9

we've -- they've all had practice in that, and there's many

10

training materials and guidance on the process. We also, if you

11

recall, during the gubernatorial recall, we were able to sort of

12

remotely make sure that people were able to observe the process.

13

So as we were processing recall petitions, for example, we had

14

cameras, and people were able to log in and publicly access the

15

process without being there. And so we can certainly prescribe

16

procedures for remote public involvement in those processes.

17

THE COURT: I'm going to ask this question because I

18

think it's likely to come up: With respect to handling absentee

19

ballots, is there any ability for drop boxes at local

20

municipalities? Has that been created?

21

THE WITNESS: So we actually yesterday with our

22

commission -- I'm sorry. I'm losing track of days. Whenever

23

the last daytime meeting was of our commission, we discussed

24

some options that jurisdictions are using for drop boxes.

25

They're not drop boxes maybe in the traditional sense you'd see

29

1

in vote-by-mail states, but what they have been doing, again, is

2

being very resourceful and utilizing things like library book

3

drop-offs, tax return slots, and other public facilities that

4

currently exist that may not be used right now to allow for

5

ballot drop-off. So we also instructed them to include

6

information about alternative drop-off sites in any future

7

mailings of their absentee ballots, and we gave them a template

8

they can use to include in those ballots so voters know that the

9

closer they get to the deadline, it may be advisable for them to

10

drop their ballots off rather than sending them through the

11

postal service. We also advised them to work with their local

12

postal service to do things like have the election mail held on

13

the days around the election so that the clerk can go pick it up

14

at the postal service rather than having it in transit to the

15

clerk's office. So we have advised them on some alternatives to

16

ensure that voters are able to get their ballots back as we get

17

closer to election day.

18

THE COURT: Would it make more or less sense, if the

19

Court were to extend the time for counting absentee ballots, to

20

allow clerks to begin that count before April 7th?

21

THE WITNESS: I believe there are some considerations

22

that we'd have to take into account. There has been legislation

23

in the last year, pending legislation, draft legislation, that

24

the clerks have been working on about early processing, and

25

concerns have come up throughout that process, one of which in

30

1

this point in time would be the testing and the certification of

2

voting equipment. So our voting equipment has to be tested and

3

certified at the federal and the state level to perform under

4

regular conditions, and that certification does not currently

5

include that voting equipment being opened and in use for

6

multiple days, and so that might be one of the considerations

7

that we'd have to weigh about the early processing is we have

8

not tested our voting equipment in that capacity. That's not to

9

be said that we couldn't, but we have not done that.

10

THE COURT: All right. And if I were to order

11

consolidation of the April 7th election with the 7th

12

Congressional District's May 12 special election, you've

13

indicated your concerns with respect to overlapping voter

14

registration deadlines, overlapping absentee ballot procedures

15

and time periods, as well as voting equipment programming and

16

official canvassing. Do you anticipate that those problems

17

could be addressed? You and your people who work under you seem

18

to have a view that no matter what is thrown at you, you'll make

19

it work, and particularly with the Commission, who can't agree

20

on specifics, you've been moving with remarkable adeptness with

21

what is being thrown at you.

22

But do you think that -- if I were to conclude, and I don't

23

know that it's my place, that this April 7th date of election is

24

excruciatingly in the dead middle of the most important period

25

for people not to be congregating and that for public health

31

1

conditions it should be moved, would it make sense to move it to

2

the May 12th special election date or simply to postpone it to

3

another date to be decided by the Election Commission and state

4

government?

5

THE WITNESS: So the May 12th dates, we would

6

essentially be asking the local election officials in the 7th

7

Congressional, which spans 526 municipalities, to be running two

8

elections concurrently. What that would mean practically is

9

that, like you said, there would be overlapping deadlines, but

10

it would also mean things like ballots have already gone out for

11

the 7th Congressional. So the state deadline is 47 days prior

12

to the election, and so at this point they would also have to

13

have two sets of voting equipment because the ballots can no

14

longer be consolidated with the programming to tabulate the

15

ballots, so they'd have to purchase additional equipment or rent

16

it. They'd also have to have things like two separate poll

17

books because who is registered in the registration --

18

THE COURT: And I appreciate it, and you're properly

19

providing a litany of problems. What I'm hearing you're saying

20

is that if I were to move it, you'd prefer that it be moved to a

21

different date than the May 12th special election because it

22

would probably create more problems than it would solve.

23

THE WITNESS: You know, as you noted, I always feel

24

like our job is to overcome obstacles, so it's always difficult

25

to lay out the series of potential challenges, but this year is

32

1

in itself a very challenging year. As we went through the

2

exercise of trying to schedule with the Governor's office the

3

special election for the 7th Congressional, there are nearly no

4

days in the entire calendar year where ballots aren't out for an

5

election. So if an alternate date is chosen, there's this

6

cascading effect where you're always going to be bumping up

7

against deadlines for another election this year. Ballots go

8

out for the August primary in June, and so no matter what day

9

you choose, there's going to be a different series of issues

10

that we'd need to consider.

11

THE COURT: Understood.

12

I'm going to turn you over then to counsel to ask their

13

specific questions. My sincere hope is that plaintiffs' counsel

14

for the three cases have done some coordination and have decided

15

who would start questioning and who will do what I'll describe

16

as cleanup, but I will make -- I want to make clear that we're

17

not going to be continually referring around. That's not to say

18

you can't ask about matters that I've already raised. I think

19

it's only fair that you get straightforward answers to any of

20

those subject matters as well as others you might want to raise,

21

but I want plaintiffs' counsel to be aware that we're not going

22

to have overlap.

23

As a practical matter, the intervening defendant is going to

24

be asking questions in counterpart to the questions that your

25

group, the plaintiffs, will be posing, and then I would view the

33

1

WEC defendants as asking cleanup.

2

Are you prepared to proceed, Ms. Wolfe, or do you need a

3

break?

4

THE WITNESS: I'm prepared to proceed. Thank you, Your

5

Honor.

6

THE COURT: All right. Then I'll ask hopefully that --

7

has there been an agreement as to who would go first among

8

plaintiffs' counsel?

9

MR. DEVANEY: Your Honor, this is John Devaney for the

10

DNC and the Wisconsin Democratic Party.

11

Yes, we have conferred among plaintiffs' counsel, and what

12

we did, Your Honor, is we identified four or five general topics

13

and divided them among us in the hopes that we wouldn't be

14

stepping on each other and we'd be efficient, and it was agreed

15

that I would go first with my couple of topics, if that's

16

acceptable to Your Honor.

17

THE COURT: You may proceed.

18

MR. DEVANEY: Thank you.

19

ADVERSE EXAMINATION

20

BY MR. DEVANEY:

21

Q Ms. Wolfe, it's nice to meet you, and thank you for your

22

public service in this challenging time.

23

I wanted to follow up on the Court's questions to you

24

relating to the absentee ballot issue, and the Court covered

25

much of what I was going to ask, but I have a few follow-ups.

34

1

One of them just relates to the number of what I call

2

unfulfilled absentee ballot requests that are pending. I just

3

define that -- we put in an affidavit from the Madison city

4

clerk, and at that time there were 12,000 requests for absentee

5

ballots that Madison had yet responded to. So I'm looking for

6

that number as it exists today on a statewide basis, if you know

7

it.

8

A So thank you for the question.

9

I do not have that number. Here's a few things I can tell

10

you about that: So, first is, again, the number of ballots

11

requested versus the number sent, the number sent might be

12

higher than what's reported because we have worked with

13

jurisdictions to develop a report that allows them to see the

14

requests to do more easy data entry than individual paper

15

requests. So often they may produce labels or other things

16

based on that report, and then they may have someone going in

17

and doing the data entry later. And so just because something's

18

not showing as sent in the official report we released doesn't

19

mean it hasn't been sent in the mail, and I have been checking

20

in with our jurisdictions, and it seems like especially the

21

larger ones are getting caught up in terms of sending out those

22

requests. I think initially there was such a large volume that

23

wasn't anticipated that it took them a while, as it should, to

24

get caught up on those requests, but it seems like they are now

25

getting caught up on those. You'll see that that chart that we

35

1

put out every day kind of reflects that they're getting caught

2

up on some of those requests and they don't have as large of

3

backlogs.

4

Q Are you able to give me any quantification approximately as

5

to what the backlog is today? Is it in the thousands, the tens

6

of thousands?

7

A I'm sorry. I cannot provide those numbers. They would

8

have to come from the individual municipalities. It would be my

9

assumption that smaller jurisdictions don't have a backlog, and

10

the larger ones -- you know, I know I've spoken to Milwaukee,

11

and it seems like they have now hired additional staff and do

12

not have the backlogs that they were previously seeing.

13

Q But you don't know what the backlogs are today; is that

14

correct?

15

A I'm sorry.

16

Q Okay. And then I wanted to follow up on a question

17

relating to the mail. You answered Your Honor's question about

18

the mail by saying that the post office is advising, I think you

19

said, seven or eight days for the transaction, and what I wanted

20

to clarify is, is that seven or eight days in total from an

21

election official sending out an absentee ballot, the voter

22

returning it, or does it take seven or eight days given COVID-19

23

for the ballot to reach the voter once it's sent by the

24

official?

25

A So first-class mail, the USPS has advised, should only take

36

1

two days for delivery, so the time that the voter drops it in

2

the mail to the time the clerk receives it or vice versa, and so

3

that's the usual. However, that being said, for the last few

4

years, they have always asked us to advise voters that it may

5

take up to a week, and so this is not new guidance. This has

6

always been our guidance. For example, on the MyVote Wisconsin

7

website in the past, as we get closer to the deadline, we post a

8

message on there for the absentee requests that reminds people

9

that the USPS advises that it may be up to a week for those

10

ballots to be returned. So it's really dependent on where the

11

voter is as well. Some of them may be --

12

THE COURT: I just -- I just want to break down that

13

question a little bit. You're saying from the time -- the

14

average time that the post office is advising for the request to

15

be honored by a municipal clerk and in the hands of the voter is

16

how long?

17

THE WITNESS: So from the time the voter -- let's say

18

the clerk sent -- put their ballot in the mail to be sent to the

19

voter, that transaction time from the time the clerk puts it in

20

the mail to the voter receiving it could take up to a week.

21

THE COURT: And then the same thing for the return.

22

Once the voter actually puts it in the mail, it could take up to

23

a week to arrive.

24

THE WITNESS: That's correct, yes, although they advise

25

first-class mail should only be two days.

37

1

THE COURT: Understood. Thank you.

2

I'm sorry. You may proceed, Mr. Devaney.

3

MR. DEVANEY: Thank you, Your Honor.

4

BY MR. DEVANEY:

5

Q And, Ms. Wolfe, with that clarification, what I'm trying to

6

get at is given the volume of absentee ballots, unprecedented

7

volume, given the time it's taking in the mail, and the

8

Commission has said that the mail is slower in one of its

9

filings with the Court, isn't it true that we can expect

10

probably hundreds or thousands of absentee ballots to be

11

returned after April 7th?

12

THE COURT: You mean to be --

13

MR. DEVANEY: I'm sorry, to arrive, to arrive after

14

April 7th.

15

THE COURT: So even though they're postmarked by

16

election day, there's a real possibility that they won't arrive

17

until up to a week after that.

18

MR. DEVANEY: That's my question, Ms. Wolfe, yes.

19

THE WITNESS: So because there's no longer a late

20

return deadline in the law, the clerks do not typically track

21

how many ballots come back after election day. We do have --

22

just looking at my notes from 2016, it appears there were about

23

5,500 ballots that were returned after election day, but we

24

weren't sure if those were just military and overseas voters or

25

all voters, so I don't have any historical numbers to really

38

1

paint a picture for what to expect from that.

2

BY MR. DEVANEY:

3

Q And would you agree with me that, given the unprecedented

4

volume of absentee ballots this year, given the Commission's

5

statement that the mail is moving slower because of COVID-19,

6

that we can expect a significantly larger number than that 5,500

7

number that you just cited?

8

A The number is likely proportionate I would say to -- you

9

know, the number of ballots issued may result in, you know, more

10

ballots that come back after the deadline.

11

THE COURT: And when you say "proportionate," what are

12

you thinking about in relation to past experience? How many

13

more are we talking about? 5,500 of what voters and what

14

percent of the current expectation?

15

THE WITNESS: I wish I had a number for you. I don't

16

know because, again, we don't really track that number, so I'm

17

not sure --

18

THE COURT: Yeah. I'm not asking it very well. If you

19

put in multiple -- on a multiple basis, how many more absentee

20

ballots have been requested than in the past?

21

THE WITNESS: Thank you for the clarification.

22

So for reference, I guess in 2016 there were just over

23

200,000 absentee ballots issued, and then if we had 5,500 that

24

were returned after the deadline -- so, pardon me, I'm an

25

election official, so my math isn't great, but I'm not sure what

39

1

that percentage is, but perhaps that might be a percentage that

2

we could look at.

3

THE COURT: So you would expect a minimum of about, if

4

we stay just at a million, about 27,500 votes coming in

5

afterward, even if it's not further skewed by all the other

6

impacts here. Is that fair?

7

THE WITNESS: I think that's fair, yes.

8

THE COURT: Next question, Mr. Devaney.

9

MR. DEVANEY: Thank you, Your Honor.

10

BY MR. DEVANEY:

11

Q Ms. Wolfe, right now the deadline for requesting a ballot,

12

an absentee ballot, is tomorrow, April 2nd, and you said that

13

the number of requests continues to be at a very high volume.

14

And so if someone requests a ballot tomorrow, April 2nd, and

15

given your statement that it could take up to a week for that

16

person to actually receive the ballot, assuming it's sent out

17

tomorrow, there are going to be multiple situations where lawful

18

voters receive their absentee ballot actually after election

19

day; isn't that correct?

20

A I can't assume what will happen or who that will impact.

21

Again, USPS says that you should expect two days for first-class

22

mail, but it may take up to a week for some voters. So I'm not

23

sure, you know, where or who would fall into that category.

24

We've also provided some additional information and templates

25

that we've asked the clerks to include in their ballots as we

40

1

get closer to the deadline to ensure that voters are aware of

2

other opportunities to drop off their ballots, so be it in a

3

drop box, in a municipal clerk's office, or a voter can, of

4

course, hand deliver their absentee ballot to the polls on

5

election day.

6

Q Ms. Wolfe, I'm going to ask you, if you could, to limit

7

your answers to the question that I'm asking --

8

THE COURT: And that's fair, Mr. Devaney, and I will

9

encourage you again, Ms. Wolfe, to focus on the question that's

10

asked and not on the kind of answer you would typically give in

11

a call with commissioners, and the specific question was it's

12

possible, and I think you're conceding it's quite possible, that

13

there will be some people who request a vote, absentee ballot,

14

tomorrow who will not be receiving it in time to put it in the

15

mail by April 7th. That will occur for some.

16

THE WITNESS: Yes, I think it's accurate to assume that

17

that will occur for some.

18

THE COURT: And what you can't say is whether it's

19

going to be -- what percentage that will be, and your hope is it

20

won't be a large percentage of those requesting on April 2nd.

21

THE WITNESS: Of course, yes.

22

THE COURT: So I've now led the witness to that answer,

23

Mr. Devaney, but if you want to explore that further, you're

24

more than welcome to.

25

MR. DEVANEY: Thank you, Your Honor.

41

1

BY MR. DEVANEY:

2

Q And my follow-up to that, Ms. Wolfe, is if someone gets

3

their ballot on April 8th and they send it in that very day,

4

under the Commission's current position, that ballot wouldn't be

5

counted because it's not postmarked by April 7th; is that

6

correct?

7

A Under the Commission's current proposal, yes, but under

8

current law, it has to be received by 8:00 p.m. on election day.

9

Q Okay.

10

THE COURT: So it wouldn't be counted anyway, but if I

11

were to move it -- move the date to a postmark date of April

12

7th, the election day, there will be some absentee ballots that

13

will not be counted because they're not physically -- they don't

14

physically get the ballot in time to put it in the mail that day

15

or to at least get the stamp on it that day. I should say more

16

importantly to get the stamp on it that day. That will occur.

17

The question remains what percentage that is.

18

THE WITNESS: That's correct.

19

THE COURT: Is that fair?

20

THE WITNESS: Yes, that's correct.

21

THE COURT: Okay. Anything else, Mr. Devaney?

22

BY MR. DEVANEY:

23

Q And my one follow-up to that, Your Honor, if I may, is, Ms.

24

Wolfe, given that that is likely to happen, wouldn't it be

25

fairer and wouldn't it be more enfranchising to count ballots

42

1

that come in after April 7th even if they're postmarked after

2

April 7th as long as they arrive by a date certain? Let's say

3

we pick ten days after the election, April 17th, and disregard

4

postmark and just have that as the deadline for receiving an

5

absentee ballot, wouldn't that prevent the kind of harm that

6

we're -- that I'm describing in my question of someone who can't

7

comply with the postmark deadline because of when they received

8

the ballot?

9

MR. LENZ: Judge, I'm going to object to the extent

10

that that calls for Ms. Wolfe to provide a legal analysis.

11

THE COURT: I'll sustain the objection.

12

Anything else, Mr. Devaney?

13

BY MR. DEVANEY:

14

Q My last question, Your Honor, is, Ms. Wolfe, can you tell

15

us today how many poll locations are without poll workers, any

16

poll workers?

17

A So as of the date of the survey that we conducted, there

18

were, I believe, 111 jurisdictions that indicate a critical need

19

to staff their polling places. We have since done a lot of work

20

with them to help them recognize opportunities to perhaps

21

recruit poll workers in their community. So I do not know as of

22

today the exact stance, but that was the date of the survey.

23

MR. DEVANEY: Thank you, Ms. Wolfe. No further

24

questions.

25

THE COURT: All right. I'll let whoever is scheduled

43

1

to proceed next go ahead. Otherwise I'll just take them in

2

order of appearance.

3

MR. SHERMAN: Thank you, Your Honor. Plaintiffs'

4

counsel agreed I'd go next for the Gear plaintiffs. And, Your

5

Honor, I'd ask --

6

THE COURT: Mr. Sherman.

7

MR. SHERMAN: Thank you.

8

THE COURT: Go ahead.

9

MR. SHERMAN: I'd ask that the witness be shown a copy

10

of Exhibit 51 on the screen, if that's possible.

11

THE COURT: It is. Just give us a moment.

12

And then if we could go to the first page of Exhibit 51.

13

MR. SHERMAN: Thank you very much, Your Honor.

14

ADVERSE EXAMINATION

15

BY MR. SHERMAN:

16

Q And good afternoon, Ms. Wolfe. Thank you. Thank you for

17

your service and for testifying today.

18

Can you see the exhibit up on your screen?

19

A Yes, I can.

20

Q And do you recognize it?

21

A Yes, I do.

22

Q And what is it?

23

A It's a memo issued on March 29th to municipal and county

24

clerks and the City and County of Milwaukee Elections Commission

25

regarding guidance on absentee ballot witness signature

44

1

requirements.

2

Q Did you author this memo in conjunction with other staff?

3

A Yes, I did.

4

Q Thank you. Does this appear to be a true and accurate copy

5

of the memo?

6

A Yes, it does.

7

MR. SHERMAN: And, Your Honor, I don't know if this is

8

required here, but I'd ask that Exhibit 51 be moved into

9

evidence, if necessary.

10

THE COURT: And just because it's become part of this

11

hearing, I'll grant that motion, and I'll accept Exhibit 51 as

12

an exhibit in this hearing. Frankly, I've obviously seen it

13

before. Frankly, I'm not certain if it was attached to an

14

affidavit, but just to allay everyone's fears, to the extent

15

that any documents were attached to declarations or affidavits,

16

they are considered part of this record regardless of whether

17

they're shown or admitted at this hearing, but for purpose of

18

this hearing, Exhibit 51 is admitted.

19

MR. SHERMAN: Thank you, Your Honor.

20

BY MR. SHERMAN:

21

Q Who is the public official, public health official, who

22

offered guidance in crafting this memo?

23

A We worked with a Mr. Ryan Wozniak, who is a public health

24

official with the Department of Health Services assigned to us

25

by the Governor's office.

45

1

Q Understood. Thank you.

2

And in this memorandum, for voters struggling to secure a

3

witness on their mail-in of an absentee ballot, the Commission

4

laid out guidance in the form of an 11-step process that they

5

were recommending to voters; is that correct?

6

A Yes, as it pertains to the assumption that the voter is

7

quarantined, not self-isolating or taking other measures.

8

Q Understood.

9

If we could go to page 2, Your Honor, or -- I wanted

10

to direct --

11

THE COURT: We'll be there in just a moment. Yep.

12

MR. SHERMAN: Thank you.

13

BY MR. SHERMAN:

14

Q Do you see, Ms. Wolfe, where it says, "Other options for

15

witnesses" -- this is the second bullet point -- "Other options

16

for witnesses in these situations include mail delivery persons,

17

grocery or food delivery persons, and medical professionals"?

18

It says that, correct?

19

A Yes, I do. I see that.

20

Q When would a medical professional be able to witness a

21

mail-in absentee ballot for a voter who was self-quarantining at

22

home?

23

A I'm not aware of the specific circumstances of individual

24

voters' medical needs, but someone that's coming to their home

25

perhaps to provide those services.

46

1

THE COURT: All right. I suppose under your current

2

guidance it could also be a doctor who is appearing via Skype or

3

some other video chat means as well.

4

THE WITNESS: Yes, it could be, but they would also

5

have to have a physical copy of the certificate to be able to

6

accomplish this process.

7

THE COURT: I'm sorry to interrupt, Mr. Sherman. Go

8

ahead.

9

MR. SHERMAN: Not at all, Your Honor. Thank you.

10

BY MR. SHERMAN:

11

Q So a doctor appearing via Skype to do -- for a telemedicine

12

appointment, that wouldn't suffice, correct, because they would

13

not have the certification envelope before them, correct?

14

A In all likelihood. We did discuss, and this is probably

15

more feasible earlier in the process, that the voter could send

16

or mail the absentee certificate envelope to someone else who

17

could then witness them via video chat marking their ballot and

18

then send the certificate back to the voter to be able to

19

complete the process.

20

THE COURT: And you say more viable because as we get

21

closer to the April 2nd date, it becomes more and more

22

unrealistic for reasons we've already discussed.

23

THE WITNESS: That's correct.

24

BY MR. SHERMAN:

25

Q Would anyone feel comfortable mailing a voted ballot to a

47

1

stranger or even a person they have a relationship with like

2

their doctor to sign the certification?

3

THE COURT: I'm going to treat that as argumentative,

4

Mr. Sherman. You're welcome to make that argument if you wish.

5

You can ask your next question.

6

MR. SHERMAN: Okay. Thank you, Your Honor.

7

BY MR. SHERMAN:

8

Q Can mailmen or other delivery persons access the door to a

9

person's apartment or are they prevented from entering apartment

10

buildings?

11

A I'm not sure of the individual setups of each apartment

12

complex. There may be places where that is possible.

13

Q The guidance that we're looking at on page 2 suggests that

14

mail delivery persons, grocery or food delivery persons could

15

witness an absentee ballot. I'm wondering whether this guidance

16

was crafted with folks who lived in apartment buildings -- with

17

that in mind as opposed to just residents in homes with, you

18

know, a door that a mailman can approach?

19

A We certainly did discuss people in apartments when we

20

developed this guidance. One of the things we discussed is the

21

video chat option. So let's say you're in an apartment where

22

you have a door without a window in a hallway. Perhaps the

23

voter could leave their certificates, not their ballots, outside

24

of their door and then video chat with the person on the other

25

side while the voter marked their ballots, and then later the

48

1

voter would retrieve that certificate to put their voted ballot

2

inside.

3

Q How -- and a person who witnesses a ballot, they have to

4

actually witness the voting of the ballot, correct? They can't

5

just sign having not witnessed the voting.

6

A That's correct.

7

Q And how long does it typically take on average to vote a

8

ballot?

9

A I do not have that data. I'm sorry.

10

Q Do you expect that delivery people will be able to hang out

11

and witness a voter cast their ballot and then -- for a handful

12

of minutes, five, ten minutes?

13

MR. LENZ: Judge, objection. Foundation.

14

THE COURT: I'm not going to -- I'll just treat it as

15

argumentative, and you can ask your next question, Counsel.

16

MR. SHERMAN: Okay. Thank you, Your Honor.

17

BY MR. SHERMAN:

18

Q I wanted to scroll down on the page -- or you can see it

19

already actually. Step 3 under Process Developed With Public

20

Health Official Guidance reads, "The voter opens their absentee

21

materials envelope and places the certificate envelope outside

22

their door in a mailbox, et cetera, where a person who is

23

providing supplies or services can access it. If possible, the

24

voter should put the certificate envelope and leave it untouched

25

for 24 hours before the witness handles it." It says that,

49

1

correct?

2

A Yes, it does.

3

Q Would it be safe to leave the certificate and envelope

4

outside one's door for 24 hours?

5

A I cannot, again, speak to the individual circumstances of

6

people's homes.

7

Q Understood.

8

Will this guidance work for people who live in apartment

9

buildings?

10

MR. LENZ: Judge, objection.

11

THE COURT: Counsel, I'm going to let her answer the

12

basic question. I'll overrule an objection at this stage.

13

You can answer the basic question, Ms. Wolfe.

14

THE WITNESS: As we previously discussed, we considered

15

people in apartments and how, again, they might leave that

16

certificate in a place where the witness could retrieve it and

17

then potentially video chat with them to accomplish the witness

18

requirement.

19

BY MR. SHERMAN:

20

Q Step 3 also contains a recommendation to leave the ballot

21

untouched for 24 hours. Why is that?

22

A So that is to, as we previously discussed, to address any

23

potential biological material that may be on paper and the

24

scientific recognized time period for how long it takes for that

25

material to degrade.

50

1

Q Thank you, Ms. Wolfe.

2

I wanted to direct your attention to step 4 in this memo and

3

step 6. Step 4 reads, "The witness should be prepared to watch

4

the voter mark their ballot through a window or by video chat."

5

And step 6 says, "The voter marks their ballot in view of the

6

witness but with a physical barrier between them or by video

7

chat." Is that correct?

8

A Yes, that's correct.

9

Q And I don't mean to be repetitive here, but would you agree

10

that this guidance would not work for individuals who live in

11

apartment buildings who don't have a window that faces a ground

12

floor, for instance?

13

A Again -- and I'm unsure of your question -- as we

14

discussed, we thought of the video chat and other means for

15

people that maybe don't have a window to accomplish that.

16

MR. SHERMAN: Your Honor, I'm just skipping a few

17

questions --

18

THE COURT: That's fine. Take your time. If you're

19

skipping questions, take all the time you need.

20

BY MR. SHERMAN:

21

Q I mean, you offer video chats as an alternative. Is it

22

common for people to utilize a video chat with a delivery person

23

or a mailman? Has this been done before in any other electoral

24

context or any other context you can think of?

25

A It is not a part of any other voting procedure.

51

1

Q Is it part of any other procedure that --

2

THE COURT: I understand, Ms. Wolfe, you to be saying

3

this is not a protocol you're aware was ever used before.

4

Personally you don't know of it ever being implemented before.

5

Is that fair?

6

THE WITNESS: Other than with witness requirements. We

7

have discussed with, you know, let's say, overseas voters or

8

others who had concerns about finding a witness similar things.

9

Like we talked about, you know, sending a certificate or leaving

10

the certificate with someone to then witness by video chat. So

11

there have been circumstances where people have utilized that

12

option in the past.

13

THE COURT: Having said that, that would be a rare

14

exception until this election.

15

THE WITNESS: Yes, Your Honor.

16

THE COURT: Next question, Mr. Sherman.

17

MR. SHERMAN: Thank you, Your Honor.

18

BY MR. SHERMAN:

19

Q Do you think most elderly voters who live alone could

20

manage a video chat? Is that a reasonable alternative for them?

21

A It depends on the individual. I think we all know

22

individuals who are elderly that can accomplish a video chat and

23

some that would struggle with it, so it depends on the

24

individual.

25

Q Relatedly, on page 2, if we could scroll back up again,

52

1

Your Honor. Thank you.

2

It says in bullet point 4, "This process can be done via

3

video chat like Skype or FaceTime with the ballot left outside

4

of the door in a mailbox for the witness to sign and provide

5

their address after the fact. The ballot could even be mailed

6

to the witness (who observed by video chat) after it is marked

7

and sealed in the envelope so they can sign it."

8

Relatedly, do you think many elderly voters are familiar

9

with Skype and FaceTime and could use this as a reasonable

10

alternative?

11

A Again, that would -- that would require -- that would be an

12

individual consideration for the voter.

13

Q While I'm thinking of it, how -- has your office done

14

anything to broadcast this guidance more widely? I mean,

15

everyone knew of the Wisconsin Emergency Order No. 12. That got

16

a lot of press. Are you aware of this guidance being broadcast

17

or otherwise disseminated through public outreach materials?

18

A We do our usual protocol in terms of making sure that we're

19

advising people. So, for example, on social media, as we've

20

been asked this question, we've been advising individuals. We

21

also answer many phone calls and emails throughout the day in

22

our office in addition to the training we do with our 1,850

23

municipal election officials and 72 county election officials to

24

ensure they have this guidance to be able to advise their

25

voters.

53

1

Q Understood.

2

THE COURT: So I'm clear though, in terms of posting it

3

on your MyVote website, it's not -- this advice on witnessing is

4

not specially posted in some way that it would be easily

5

accessible to a voter.

6

THE WITNESS: It's available through our

7

elections.wi.gov website. The first thing on the home page is

8

COVID-19 and all of the guidance that relates to voter and

9

clerks' procedures. We have videos, other things that are out

10

there to guide voters through the new guidance.

11

THE COURT: So on the COVID-19 site, there is a

12

specific procedure set forth for options to be used in getting a

13

witness if you need one for an absentee ballot.

14

THE WITNESS: Yes, Your Honor. This guidance appears

15

on that page.

16

THE COURT: All right. Thank you.

17

Next question, Mr. Sherman.

18

BY MR. SHERMAN:

19

Q Has -- thank you, Your Honor.

20

Has this guidance been disseminated to people without

21

digital access in any way?

22

A Could you please repeat the question?

23

Q Sorry. Could the -- has this guidance issued on March

24

29th, 2020, been disseminated in any other way publicly to

25

voters if they don't have digital access? Is there a way for

54

1

them to receive -- have they received it? Or would they have to

2

access it under a website?

3

A Because of the volume of local election officials, it

4

depends on, I suppose, where they live and the questions that

5

have been asked from voters to their local election official.

6

We have not -- if you're asking if we've individually mailed

7

this to voters, we have not. You can see we've put out many

8

memos in the last few days, but local election officials may, in

9

sending out their absentee balloting materials, advise voters

10

about some of the guidance.

11

THE COURT: You just don't know what practices are

12

being adopted locally, and you're not sending it out to

13

individual absentee ballots nor have you directed local

14

officials in mailing the absentee ballot to include it.

15

THE WITNESS: That's correct.

16

THE COURT: Correct?

17

THE WITNESS: Yes, that's correct, Your Honor.

18

THE COURT: Next question.

19

BY MR. SHERMAN:

20

Q If a voter took advantage of the suggestion to mail their

21

completed ballot to the witness after a video chat, would that

22

witness then mail the ballot back to the voter or would that

23

person, the delivery guy or whoever else, have to be trusted to

24

drop the ballot in the mail?

25

A So I think this needs to be clarified a little bit. We're

55

1

talking about the certificate, not the ballot itself. The

2

ballot itself shouldn't be transmitted. It would be the

3

certificate that the witness is signing. The voter maintains

4

the ballot.

5

Q Understood.

6

And this certificate envelope would be signed and then

7

mailed back to the voter?

8

A Under the scenario, yes.

9

Q Okay. And that would take several extra days, correct, in

10

order to complete the process, mail it back to the voter, wait

11

24 hours for decontamination on both ends, and then the voter

12

would be able to seal it up and mail it in, correct?

13

A The same postal requirements would apply to this as the

14

other transactions we've discussed.

15

Q Thank you. I wanted to direct your attention to step 8, if

16

we could scroll back down, Your Honor. Thank you very much.

17

Step 8 says, "The voter washes" -- actually I wanted to

18

direct your attention to three steps here. Step 8 says, "The

19

voter washes or sanitizes their hands and then retrieves the

20

signed certificate envelope."

21

Step 9 says, "The voter takes extra care not to cough on

22

balloting materials and places the marked ballot into the

23

envelope."

24

Step 11 says, "By the time the clerk receives the ballot,

25

any potential contamination will be degraded."

56

1

All three of those steps say what I just read, correct?

2

A Yes, they do.

3

Q And previously you recall we discussed step 3's

4

recommendation to leave the ballot untouched for 24 hours to

5

protect the witness, correct?

6

A Yes, that's correct.

7

Q Does this guidance recommend a 24-hour period of

8

decontamination after the delivery person or mailman handles it

9

to sign?

10

A I'm not sure I understand your question.

11

Q Sorry. I'll rephrase. So after -- if it's in person, I

12

mean the delivery person is standing on the front doorstep, they

13

pass back the certification envelope in some way or just leave

14

it on the doorstep, does this guidance recommend that the voter

15

leave that certification envelope untouched for 24 hours?

16

A Thank you for the clarification.

17

So in our discussions with the public health official, this

18

was presented in a way that it assumed, again, that the voter is

19

quarantined, so they may already have been exposed or have

20

COVID-19. And so this guidance was -- it was to protect the

21

witness more so than the voter that may be quarantined from

22

exposure from the witness.

23

Q Why is that?

24

THE COURT: Why was -- you're saying why was the focus

25

of the memo on the witness as opposed to on the voter beyond

57

1

what was just described, which was an expectation that it would

2

be the voter who needed to be -- I'm sorry, the witness who

3

would need to be protected from an isolated voter. Is there any

4

other reason why you did it that way, Ms. Wolfe?

5

THE WITNESS: No. That's correct, Your Honor.

6

BY MR. SHERMAN:

7

Q On page 3, if we could go to page 3, in the Overview --

8

sorry. On page 3 it says, "Voters may also be able to drive to

9

a meet-up spot to observe or witness through their vehicle

10

windows."

11

Sorry. I must have the page wrong. I think this is page 1.

12

It's definitely up on the document. Let me see if I can locate

13

this real quick.

14

Sorry. This is on page 2. It's the fifth bullet point. My

15

apologies. Fifth bullet point on --

16

THE COURT: It was there. Just go down one more bullet

17

point to 5.

18

MR. SHERMAN: So bullet point 5 --

19

THE COURT: Is it -- I'm sorry. It's bullet point 5?

20

MR. SHERMAN: Bullet point 5, Your Honor, yes --

21

THE COURT: Go ahead.

22

MR. SHERMAN: -- on the page we're on.

23

BY MR. SHERMAN:

24

Q "Voters may also be able to drive to a meet-up spot to

25

observe or witness through their vehicle windows."

58

1

How would this work in practice for -- and limit

2

transmission of COVID-19?

3

A So following the other practices that are outlined below,

4

in these discussions where voters have brought to our attention

5

they utilized this process, they may drive to a park or other

6

location, park next to one another. The voter could pass the

7

certificate to the witness through a crack in the window. The

8

witness could retrieve it. Again, they should both sanitize

9

their hands before the transaction in accordance with the other

10

directions. The voter would then mark their ballot with their

11

window closed while the witness signs and fills out the

12

certificate, and then again the witness would exchange the

13

certificate back to the voter through the crack in the window

14

therefore not -- still having that physical barrier between

15

them.

16

Q If there's a crack in the window, is that a sufficient

17

barrier for the transmission of COVID-19?

18

A Again, this was discussed with the public health official,

19

and we -- they thought that if these practices were followed, it

20

could be a safe transaction.

21

Q And given your knowledge of Emergency Order No. 12,

22

wouldn't this constitute a public gathering that's with people

23

outside of one's household that's barred by the emergency order?

24

THE COURT: I'm just -- Mr. Sherman, I appreciate

25

you're trying to develop certain facts through this witness, but

59

1

I think we're falling astray of what she's competent to testify

2

about.

3

MR. SHERMAN: Understood, Your Honor. I'll move on.

4

BY MR. SHERMAN:

5

Q And just, lastly, on this point, could most elderly voters

6

or people living with disabilities engage -- take advantage of

7

this suggestion to meet up at a spot, drive to a meet-up spot?

8

A Again, that's relevant to specific voters' individual

9

circumstances. I can't speak to the condition of all voters and

10

their access.

11

Q Understood.

12

On page 1 in the Overview section, it says, "This process

13

serves as verification that the voter who requested the ballot

14

is the person who actually received and voted the ballot"; is

15

that correct?

16

Can we scroll up, Your Honor, to page 1? Thank you very

17

much.

18

For -- do you see where it says that? It's in the --

19

A Yes, I do.

20

Q You see it. Okay. Thank you.

21

And this is consistent with the language for the witness

22

certification on EL-122, the absentee ballot certificate,

23

correct?

24

A I believe so, although I do not have it in front of me.

25

MR. SHERMAN: Your Honor, if we may, could I ask that

60

1

Exhibit 52 be shown on the screen?

2

THE COURT: You may.

3

MR. SHERMAN: Thank you.

4

BY MR. SHERMAN:

5

Q If we could scroll down, please, to the witness

6

certification -- or the witness and voter certification. If we

7

could show both the witness and voter certification. Thank you.

8

Sorry.

9

Reading these two certifications that -- well, sorry. I

10

should back up. What is this document that you're looking at?

11

A This is the absentee ballot certificate.

12

Q And this appears to be a true and accurate copy, correct?

13

A Yes, it does, although typically it would be printed on an

14

envelope.

15

Q Understood.

16

MR. SHERMAN: And, Your Honor, if I may, could I ask,

17

please, that Exhibit 52 be moved into evidence?

18

THE COURT: It is admitted.

19

MR. SHERMAN: Thank you, Your Honor.

20

BY MR. SHERMAN:

21

Q In reading the language of the voter certification and the

22

witness certification, isn't it true that the witness has to

23

have knowledge of who the voter is and be able to confirm that

24

fact in signing the witness certification? You can take a

25

minute to read the two certifications.

61

1

A Yes, that would be correct.

2

Q Would a UPS or Instacart delivery person or some other -- a

3

mailman, have that knowledge of who the voter is even if they

4

appear at their home or at their apartment?

5

A They would have to know enough to be able to deliver that

6

package accurately.

7

Q In delivering a package, do they definitely know that the

8

person at the door is who they say they are? They're just

9

trusting their word, correct?

10

A I suppose it would --

11

MR. LENZ: Objection, Your Honor.

12

THE COURT: Well, I'm -- you can answer the basic

13

question, but I do think we are getting back down into the

14

weeds, Mr. Sherman, of argument.

15

But you can answer the question if you're able to.

16

THE WITNESS: It would depend on the type of

17

transaction they were conducting.

18

THE COURT: So, in other words, a regular messenger,

19

someone who has delivered pizza 20 times to the same person at

20

the same address, they might have developed that familiarity.

21

Otherwise they might not.

22

Mr. Sherman, you should ask your next question.

23

MR. SHERMAN: Understood. I just have a few more, Your

24

Honor, and then I'm going to wrap up.

25

THE COURT: All right. That's fine.

62

1

BY MR. SHERMAN:

2

Q Ms. Wolfe, in just summing -- wrapping up for this --

3

sorry. I should go back to Exhibit 51, the guidance, if I

4

could.

5

Ms. Wolfe, in light of what we've discussed here, I just

6

wanted to ask as an overall point, is this guidance reasonable?

7

Does it provide reasonable access to voters and a reasonable

8

alternative to comply with the witness signature requirement?

9

MR. LENZ: Same objection, Your Honor.

10

THE COURT: You can answer the question.

11

THE WITNESS: It provides guidance that meets the

12

statutory requirements and the guidance provided by the public

13

health official.

14

BY MR. SHERMAN:

15

Q Understood.

16

What purpose does the witness certification serve in your

17

view?

18

A As stated in the memo and in the certification language,

19

it's to verify the voter marked the ballot.

20

Q Is it difficult to forge a signature that would evade

21

detection?

22

A I don't analyze signatures. I can't answer that question.

23

Q Do you know of instances where the witness certification

24

has helped law enforcement identify and prosecute fraud in

25

Wisconsin?

63

1

A I'm not aware of specific cases where that was used.

2

Q Understood.

3

MR. SHERMAN: With the Court's permission, I have just

4

one other exhibit I wanted to show Ms. Wolfe and just --

5

THE COURT: Go ahead.

6

MR. SHERMAN: -- one question.

7

THE COURT: What exhibit?

8

MR. SHERMAN: Exhibit 54, please, Your Honor. Thank

9

you.

10

THE COURT: Yep.

11

MR. DEVANEY: Your Honor, while we're pausing, could I

12

mention that I received an email saying that the public audio

13

line is not working.

14

THE COURT: We'll look into that on our end.

15

MR. DEVANEY: Thank you, Your Honor.

16

BY MR. SHERMAN:

17

Q Ms. Wolfe, could you identify the document that you're

18

looking at here?

19

A (No response.)

20

Q If you can.

21

A (No response.)

22

Q What does it appear to be?

23

A I'm sorry. Did you ask -- was that directed towards me?

24

Q Yeah. I'm sorry. Yes.

25

THE COURT: If you can look at this document, do you

64

1

recognize what this is?

2

THE WITNESS: I'm sorry. No, I do not.

3

BY MR. SHERMAN:

4

Q What does it appear to be?

5

THE COURT: Well, why don't you just represent to the

6

witness what you say it is, Counsel, and let's move along.

7

BY MR. SHERMAN:

8

Q All right. This is a document from the U.S. Census Bureau.

9

It's a table of facts on household size for Wisconsin. It comes

10

from the 2013 to 2017 American Community Survey 5-Year

11

Estimates. Can you see --

12

THE COURT: All right. And what's the question you had

13

for the witness?

14

BY MR. SHERMAN:

15

Q Can you see that there are more than 600,000 people who

16

live in a single-person household in Wisconsin according to this

17

document?

18

A I have no familiarity with this chart --

19

THE COURT: That's not the question, Ms. Wolfe, and I

20

appreciate this is new to you, but do you see at the line under

21

Household Size, 1-person household for Wisconsin of 675,580? Do

22

you just see that?

23

THE WITNESS: Yes, I do.

24

THE COURT: Next question, Mr. Sherman.

25

BY MR. SHERMAN:

65

1

Q And if we could scroll down just to where it shows the ages

2

of folks?

3

THE COURT: And, Mr. Sherman, you're welcome to make

4

this argument to me, but unless you have a specific question of

5

the witness, we're not going to just start introducing what you

6

think are key pieces of evidence.

7

MR. SHERMAN: All right. This was just my -- I just

8

wanted to ask her whether she expected a certain percentage of

9

folks, especially the elderly who live alone, to be able to use

10

this guidance based on the numbers, but Your Honor has the

11

document, so I can, you know, abandon this line of questioning.

12

THE COURT: Well, you can ask that question. Do you

13

understand the question, Ms. Wolfe?

14

Do you anticipate that those in the elderly demographic will

15

be able to follow the guidance not on Exhibit 54 before you but

16

on the other Exhibit 52 that you were talking about?

17

THE WITNESS: Again, it would be my belief that it

18

would depend on the individual. I have -- I can't speak to this

19

entire demographic of people and their aptitudes.

20

THE COURT: Understood.

21

Anything else, Mr. Sherman?

22

MR. SHERMAN: No further questions. Thank you, Your

23

Honor.

24

THE COURT: All right. Then, Mr. Poland, are you

25

batting cleanup?

66

1

MR. POLAND: I am, Your Honor. Thank you.

2

Your Honor, before I begin, would it be an appropriate time

3

to suggest a break --

4

THE COURT: Nope, it would not, but you're welcome --

5

MR. POLAND: I will begin.

6

THE COURT: -- to proceed.

7

MR. POLAND: Thank you, Your Honor.

8

ADVERSE EXAMINATION

9

BY MR. POLAND:

10

Q Ms. Wolfe, my name is Doug Poland. I'm an attorney for one

11

of the three plaintiff groups. I'm going to be focusing my

12

questions on in-person voting as opposed to absentee vote.

13

(Phone ringing.)

14

MR. POLAND: I apologize for that. That is my --

15

THE COURT: That's fine. Do you have a question for

16

the witness?

17

MR. POLAND: I do, Your Honor. That's my line that's

18

ringing.

19

BY MR. POLAND:

20

Q Yes. I'd ask that Exhibit 102 be shown to the witness,

21

please.

22

THE CLERK: I'm sorry, sir. Could you repeat that?

23

Which exhibit?

24

MR. POLAND: Exhibit No. 102.

25

THE COURT: 102. It's docket 169, Joel.

67

1

All right. I believe that's in front of you now. Can you

2

see that, Ms. Wolfe?

3

THE WITNESS: Yes, I can. Thank you.

4

THE COURT: Question, Mr. Poland.

5

MR. POLAND: Thank you, Your Honor.

6

BY MR. POLAND:

7

Q Ms. Wolfe, you mentioned that there was an elections

8

committee meeting yesterday, correct?

9

A There's been one most days, so, yes, there was one

10

yesterday as well.

11

Q And do you see Exhibit 102 on the screen in front of you?

12

THE COURT: She said she does. What's the question?

13

BY MR. POLAND:

14

Q Do you recognize the document?

15

A Yes, I do.

16

Q What is the document?

17

A It's a Wisconsin Elections Commission meeting agenda for

18

Tuesday, March 31st.

19

Q I'll represent to you that this is a 15-page document that

20

contains a number of memorandums attached to it, but I'll refer

21

to it as a packet. Is that fair?

22

THE OPERATOR: All participants are now in listen-only

23

mode.

24

MR. POLAND: I'm sorry. I didn't hear that.

25

THE COURT: No, that's fine. For the record, hopefully

68

1

that interruption indicates that individuals are again able to

2

listen on telephone or by telephone, and we will continue.

3

Did you get the question, Ms. Wolfe?

4

THE WITNESS: Yes, I did. I believe you were asking if

5

I recognized this document, which I do, as the Election

6

Commission agenda from Tuesday, March 31st.

7

BY MR. POLAND:

8

Q And I'll represent to you, Ms. Wolfe, that this is a

9

15-page document that has attached to it a number of different

10

memorandums. Is that fair?

11

A Yes, that's fair.

12

Q All right. And you're familiar with this document,

13

correct, the entire packet?

14

A Yes, I put it together myself.

15

Q And does this appear to be a true and correct copy of the

16

packet put together for the Elections Commission meeting

17

yesterday?

18

A Yes, it does.

19

Q Is this the type of document that you typically prepare and

20

maintain in the ordinary course of your job in the Elections

21

Commission's business?

22

A Yes, it is.

23

MR. POLAND: Your Honor, I will move Exhibit 102 into

24

evidence.

25

THE COURT: I will admit it.

69

1

MR. POLAND: Thank you, Your Honor.

2

I'd ask that the exhibit be scrolled down to page 12.

3

BY MR. POLAND:

4

Q Ms. Wolfe, do you see page 12 in front of you?

5

A Yes, I do.

6

Q This is a memorandum that was written for the March 31st,

7

2020, commission meeting, and the subject line says "Polling

8

Place Supply and Personnel Shortages." Do you see that?

9

A Yes, I do.

10

Q Was this a memo that you wrote?

11

A Along with other staff in my office, yes.

12

Q And do you see there's a chart in the middle of the page?

13

A Yes.

14

Q I believe a short time ago you testified that there were,

15

the most recent number you had, that there were 111

16

jurisdictions that did not have even one polling place they

17

could staff, correct?

18

A Yes, that's correct.

19

Q And that's the number that's reported on this page of

20

Exhibit 102, correct?

21

A Yes.

22

Q Now, in addition, there are 126 jurisdictions where they

23

cannot staff all polling places, correct?

24

A Yes, that's correct.

25

Q Would you please display the very last page of this

70

1

document.

2

There should be one more page. There we go. Thank you.

3

Ms. Wolfe, do you see on page 15 of Exhibit 102 a map

4

displayed in front of you?

5

A Yes, I do.

6

Q And this depicts the municipal worker shortage, critical

7

and serious, in considering shortages of poll workers throughout

8

the state, correct?

9

A Yes, this weighs critical and serious categories we defined

10

in the survey.

11

Q Thank you. And those are scattered throughout the entire

12

state, correct?

13

A Yes, that's correct.

14

Q Those places that have serious shortages of poll workers

15

include Milwaukee, Madison, and Green Bay, correct?

16

A I'm sorry. I do not have the specific jurisdictions, just

17

sort of the geographical location represented on the map.

18

Q Do you know whether there are serious shortages in

19

Milwaukee, Madison, and Green Bay of poll workers?

20

A I'm sorry. Again, I do not know. I don't have the

21

specific jurisdictions represented.

22

Q All right.

23

THE COURT: You don't have any reason to doubt that

24

each of those locations are experiencing some issues based on

25

the affidavits that have been submitted in this case?

71

1

THE WITNESS: I believe the representation of the

2

locals in terms of their poll worker needs, yes.

3

THE COURT: Thank you.

4

Next question.

5

BY MR. POLAND:

6

Q Those cities are making significant consolidations in the

7

number of polling places, correct?

8

A I believe --

9

THE COURT: "Those cities" meaning Madison, Milwaukee,

10

and Green Bay, Mr. Poland? Is that your question?

11

MR. POLAND: Yes, Your Honor.

12

THE COURT: Do you know the answer to that question,

13

Ms. Wolfe?

14

THE WITNESS: I do not know exactly all three of those

15

jurisdictions' plans specifically. Every day we see media

16

reports and whatnot on consolidations. I'm not sure the exact

17

status of those three cities.

18

THE COURT: But if that's what they represent, you

19

don't have any reason to dispute it, correct?

20

THE WITNESS: That's correct.

21

THE COURT: Mr. Poland, go ahead.

22

MR. POLAND: I will skip a few questions, Judge.

23

BY MR. POLAND:

24

Q Now, Ms. Wolfe, Section 5.25 of the Wisconsin Statutes

25

prohibits the consolidation of polling places except by

72

1

resolution adopted no less than 30 days before an election,

2

correct?

3

A That's correct.

4

Q And so if there is continuing consolidation of polling

5

places, that would not be in conformance with state statutes,

6

correct?

7

A There are also provisions for emergency changes needed on

8

election day, and our commission has discussed this

9

consolidation inside of those time parameters.

10

Q And do you know whether those comply with the emergency

11

statute?

12

THE COURT: You mean as a matter of the law or in her

13

view? I'm not sure I understand the question, Mr. Poland.

14

MR. POLAND: Yeah, I would ask in her view, Your Honor.

15

THE COURT: Would the current situation in the view --

16

in your view or the view of the Commission satisfy the emergency

17

requirements of that section?

18

THE WITNESS: Yes, Your Honor. The Commission has

19

considered this issue and in light of the current crisis

20

believes that consolidation or changing polling places may, of

21

course, become necessary, and that the -- has prescribed

22

procedures for the clerks to conduct that process and alert

23

their voters.

24

BY MR. POLAND:

25

Q Is it fair to say -- I'm sorry.

73

1

THE COURT: Go ahead. No, go ahead. Sorry.

2

BY MR. POLAND:

3

Q Is it fair to say, Ms. Wolfe, that rapidly and continually

4

consolidating polling places will cause confusion among voters

5

who must now go to a different polling place?

6

A We've prescribed procedures for the municipalities to,

7

again, alert their voters, such as posting notice on former

8

polling places so that voters are aware of where to go on

9

election day. We've also discussed with them the procedure for

10

the statewide database, to update those plans immediately so

11

they can display on the MyVote Wisconsin website and other voter

12

lookup tools that we provide official data to.

13

Q And, Ms. Wolfe, the changes that are pushed out on the

14

polling places, pushed out to MyVote online, people without any

15

internet access will not have access to the MyVote website,

16

correct?

17

A They would not have access to MyVote but would have access

18

to public notices on the former polling place facilities or

19

places like city hall.

20

Q If they know to go there to find them, correct?

21

A Correct.

22

Q Has the Elections Commission made any analysis of the

23

impact on minority voters of consolidating so many polling

24

places into relatively few polling places?

25

A We have not done such analysis.

74

1

Q As you sit here today, do you know the impact of

2

consolidation of polling places in the cities of Milwaukee,

3

Madison, Green Bay, and Racine on the ability of minority voters

4

to vote?

5

A I do not know the impact.

6

Q Ms. Wolfe, are you aware of other -- of statutes that are

7

not being complied with as a result of some of the procedures

8

that are being changed to try to accommodate in-person voting

9

under the current situation?

10

A I just need to think for a minute. The Commission has

11

considered a great deal of guidance and documentation over the

12

last few days and weeks. I believe that they have adapted what

13

the process looks like in some cases for in-person voting on

14

election day but that it still required that the law -- the

15

requirements of the statute need to still be met, although they

16

may look different than they have in previous elections.

17

Q So, for example, are you familiar with Statute Section 6.80

18

that provides that each polling site in an election contains a

19

private voting booth where voters must cast their ballots?

20

A Yes.

21

Q All right. And you testified a little earlier that --

22

actually strike that question.

23

Different question: Are you familiar with curbside voting

24

that is going on in some municipalities?

25

A There's a statutorily required curbside process, but then

75

1

we also have heard about sort of drive-up or drive-through

2

processes, which are just more or less outdoor locations. But

3

curbside is a very specific set of requirements in the statute,

4

so not to be conflated with other polling places that may just

5

be moved outdoors.

6

Q Are there situations you've heard of that wouldn't comply

7

with the requirements of Section 6.80?

8

A I am not aware of any situations currently in use that

9

wouldn't comply with that statute.

10

Q Are you familiar with Statute Section 7.37, which provides

11

that two inspectors shall be assigned to have charge of the

12

polls at each election?

13

A I don't have it in front of me, but I have a general

14

familiarity with that statute, yes.

15

Q With the consolidation of polling places to include up to

16

perhaps 20 wards per team of poll workers, would that

17

potentially violate the statute?

18

A In our guidance and discussion of consolidated polling

19

places, the Commission still believes in the guidance they've

20

approved that when polling places are consolidated, that they

21

still need to meet the requirements of the law, and that would

22

include having representatives from each of the reporting units

23

represented as part of that process.

24

Q Are you familiar with Statute Section 5.35(2) that says

25

that there shall be one voting booth for every 200 electors who

76

1

voted in the last general election?

2

A Again, I have general familiarity, although it's not in

3

front of me.

4

Q Okay. And would the consolidation of locations of polling

5

places comply with Section 5.35?

6

A It would depend on the individual circumstances of the

7

polling place. I'm not sure.

8

Q One more question for you about the statutes, and that is

9

Statute Section 5.35, that's ballot boxes, and that provides

10

that where voting procedures make it necessary, there shall be a

11

separate ballot box for each form of ballot at each polling

12

place. There shall be a suitable lock and key for each and an

13

opening no larger than is sufficient to receive a single ballot

14

or single folded ballot if the box is used for deposit of paper

15

ballots. Are you familiar with that section?

16

A Again, I'm generally aware of that statute, yes.

17

Q Do the drop boxes that are being used comply with that

18

statutory section?

19

A I'm sorry. I don't quite understand your question.

20

Q The procedures that are being used now for drop boxes,

21

would they comply with the requirements of Section 5.35 on

22

ballot boxes?

23

A Ballot boxes apply to election day. Drop-off locations are

24

where voters are depositing their ballot prior to election day

25

to be brought to their polling place.

77

1

Q Are you familiar with the canvassing statutes in Wisconsin?

2

A I am generally aware, yes.

3

Q Okay. So you're aware of the statutes that govern the

4

local board of canvassers, municipal canvass, the county

5

canvass, and the state canvass. Is that fair to say?

6

A Yes.

7

Q And there are -- there are date deadlines. They proceed in

8

that progression, correct, local board, municipal canvass,

9

county canvass, and then state canvass, correct?

10

A That's correct.

11

Q And each step in the canvassing -- and for the record,

12

those statutes are found at Section 7.51, 7.53, 7.60, and 7.70.

13

Ms. Wolfe, is it possible -- strike that question.

14

At each step in the canvassing procedure, the board must

15

certify the results of the election before it passes it on to

16

the next step in the process, correct?

17

A That's correct.

18

Q Is it possible that a canvassing board will not certify the

19

election results to the Elections Commission if they find that

20

votes have not been counted or that there are other

21

irregularities with the processes being used?

22

A I'm not aware of a time that that situation has occurred.

23

They would need to reconcile the issue and then certify.

24

Q Have you read that -- have you read that concern that's

25

been raised by any of the county clerks?

78

1

A I'm sorry. I'm not aware of that specific concern.

2

Q Now, the Elections Commission does not dispute that courts

3

have the authority to order changes in elections when the facts

4

merit such orders, correct?

5

A Could you please repeat the question?

6

Q Sure. And I'll give you the reference. There was a brief

7

that was filed. For the record, this is docket 155, and this is

8

from page 6.

9

The Elections Commission does not dispute that courts have

10

the authority to order changes in elections when the facts merit

11

such orders; is that correct?

12

A I believe so, although I don't have it in front of me.

13

Q Ms. Wolfe, if the Court were to allow greater time for

14

casting in-person absentee ballots, that would allow people who

15

don't have internet access a better opportunity to cast an

16

absentee ballot, correct?

17

MR. LENZ: I'll object to the term "better

18

opportunity."

19

THE COURT: Overruled.

20

Do you understand the question, Ms. Wolfe?

21

THE WITNESS: In so much as I can say, again, it would

22

depend on the individual circumstance and voter behavior of how

23

they're conducting the process.

24

THE COURT: But certainly at this point for someone

25

who's facing the deadline tomorrow to request a ballot, those

79

1

who have internet access are in a much better chance of

2

accomplishing that than those who are going to have to rely on

3

the mail, correct?

4

THE WITNESS: That may be the case in terms of a

5

quicker transaction.

6

THE COURT: And turnaround by mail of both the ballot

7

and then mailing it back.

8

THE WITNESS: Correct.

9

THE COURT: Next question.

10

MR. POLAND: Thank you, Your Honor.

11

BY MR. POLAND:

12

Q Ms. Wolfe, to the extent that people take advantage of

13

voting by in-person absentee ballots, assuming the Court does

14

not postpone the election, that would ease congestion at the

15

polls, correct?

16

THE COURT: I don't understand that question, Mr.

17

Poland. Could you rephrase that?

18

MR. POLAND: Sure.

19

BY MR. POLAND:

20

Q If the Court were not to postpone the election, to the

21

extent that people take advantage of voting by in-person

22

absentee ballots -- well, actually, strike the question. I'm

23

sorry.

24

Ms. Wolfe, to the extent that statutes regarding canvassing

25

and certification of the results of the election -- strike that

80

1

question too.

2

Ms. Wolfe, it's true, isn't it, that, in your opinion, it's

3

likely that without relief from the Court, a substantial number

4

of Wisconsin voters will be disenfranchised, correct?

5

MR. LENZ: Objection, Your Honor.

6

THE COURT: I'll sustain the objection as phrased. Why

7

don't you try it again, Mr. Poland.

8

BY MR. POLAND:

9

Q Is it fair to say, Ms. Wolfe, in your opinion, that unless

10

the Court orders some kind of changes in conjunction with the

11

April 7th election, a substantial number of Wisconsin voters

12

will not be able to vote or will not have their votes counted;

13

is that fair to say?

14

MR. LENZ: Same objection.

15

THE COURT: I'll allow you to answer the question if

16

you're able to, Ms. Wolfe.

17

THE WITNESS: I'm sorry, but it is not my job to have

18

opinions, so I can't assume --

19

THE COURT: Let me try a different way. The Commission

20

has now indicated that they wouldn't object to extending the

21

absentee ballot postmark to the date of the election and to

22

receiving ballots up to April 13. I assume that's because they

23

anticipate a substantial number of last-minute absentee ballot

24

voters, correct?

25

THE WITNESS: Yes, that's correct.

81

1

THE COURT: And if I weren't to extend it by those

2

dates, then there are at least some, if not many, absentee

3

ballots that will not be counted on election day, correct?

4

THE WITNESS: The extended period would certainly allow

5

more ballots to make it back in time.

6

THE COURT: Understood.

7

Anything else, Mr. Poland?

8

MR. POLAND: One more question, Your Honor.

9

BY MR. POLAND:

10

Q Ms. Wolfe, it's fair to say, isn't it, that the Elections

11

Commission itself is deeply divided on the issue of

12

postponement; half the Commission is in favor of postponement

13

and half is not?

14

A I'm sorry. I don't have the exact voting patterns of the

15

Commission in front of me.

16

THE COURT: It's fair to say that on this subject, that

17

is, the April 7th election, you've had a lot of split votes,

18

3-3, correct?

19

THE WITNESS: That is correct.

20

MR. POLAND: One final question, Your Honor.

21

BY MR. POLAND:

22

Q Ms. Wolfe, what is the plan if no poll workers show up in a

23

jurisdiction on election day?

24

A We're currently continuing to expand our guidance to clerks

25

about exactly that question. As we've discussed before, we do

82

1

have established training protocols for them to be able to,

2

let's say, consolidate with a neighboring town in the event of

3

an emergency. We've also been discussing with them

4

opportunities to perhaps have people on stand-by that can serve

5

in that capacity if someone is unavailable on election day, and

6

as we've also heard, there's been discussions about having a

7

pool of people that we're able to deploy in the event of an

8

emergency need, and so we stand ready, again, to train a

9

potential pool of individuals that could be deployed if the need

10

arises.

11

Q So there is no plan at this moment, correct?

12

A For that additional pool, there is no plan at this moment,

13

correct.

14

MR. POLAND: Thank you, Your Honor. No further

15

questions.

16

THE COURT: All right. Ms. Wolfe, I'd like to go until

17

3:30 before we take a break, but I'm happy if you'd prefer to

18

take a break now. We can do that.

19

THE WITNESS: I'm just fine. Thank you, Your Honor.

20

THE COURT: All right. Then I'll then leave it to you,

21

Mr. Strawbridge, to ask your questions.

22

MR. STRAWBRIDGE: Sure, and I hopefully only have just

23

a couple of minutes of questions here.

24

25

83

1

CLARIFICATION EXAMINATION

2

BY MR. STRAWBRIDGE:

3

Q My name is Patrick Strawbridge. I represent the Republican

4

National Committee and the Republican Party of Wisconsin.

5

Again, Ms. Wolfe, thank you for all the work that you and your

6

staff are doing in this case.

7

The first question I have for you is do you know when the

8

absentee ballots in the upcoming April 7th election were first

9

available to be requested by voters in Wisconsin?

10

A The state statutory deadline is 47 days prior to the

11

election, and then there's a federal requirement for military

12

and overseas of 45 days prior to the election.

13

Q Okay. And as far as you know, was the state in compliance

14

with that deadline in this election?

15

A Yes.

16

Q Okay. You were asked some questions earlier today about

17

the backlog that's reported with respect to the number of

18

absentee ballots requested versus those that have been sent to

19

voters. Do you recall that line of questioning?

20

A Yes.

21

Q Okay. Are clerks instructed to process absentee ballot

22

requests in the order they are received?

23

A Yes, that would be accurate.

24

Q And do you have any reason to believe that's not what's

25

been happening with respect to this election?

84

1

A I do not have any reason to believe that, no.

2

Q Okay. Has the United States Postal Service actually

3

advised the Election Commission that first-class mail in the

4

state of Wisconsin right now, in fact, is taking up to seven

5

days to be delivered?

6

A So we have had some contact with the postal service.

7

Again, it can depend on region in terms of guidance, but I've

8

actually -- over the course of the last few years, we've been in

9

contact with the national representatives of the USPS, and,

10

again, this has been their guidance for voters over the course

11

of the last few years.

12

Q And it hasn't changed with respect to the last few weeks?

13

A I'm not aware of any specific change in the last few weeks,

14

no.

15

Q Okay. The guidance that you were shown earlier that the

16

Elections Commission issued with respect to people who were

17

living alone and needed to obtain -- or, I'm sorry, who were

18

quarantined and needed to obtain a witness signature -- do you

19

recall that line of questioning?

20

A Yes, I do.

21

Q Okay. You testified that was developed specifically for

22

people who are alone in a quarantine situation, correct?

23

A That's correct.

24

Q Those procedures don't necessarily apply to the people who

25

are living in the household with someone who could provide the

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1

witness signature themselves, correct?

2

A That's correct.

3

Q Okay. Has any municipality advised you that they have

4

canceled in-person voting in this election?

5

A Could you please clarify? Election day or prior to

6

election day?

7

Q Election day.

8

A I am not aware of any jurisdictions that will not be

9

providing election day voting opportunities.

10

Q And for people who are voting by absentee ballot who for

11

whatever reason do not have access or cannot obtain a witness

12

signature in their location, is it your understanding that some

13

municipalities are, in fact, providing witness verification

14

services at clerks' offices or potential curbside absentee

15

ballot locations?

16

A I'm not aware of that particular circumstance that you

17

present. If a person is voting in-person absentee, there's a

18

whole different process for that.

19

Q Okay. In that case do they need to obtain a separate

20

witness verification from another person or can they do that at

21

that location?

22

A If they're doing in-person absentee, the municipal clerk or

23

their designee is serving as the witness.

24

MR. STRAWBRIDGE: All right. I have no other

25

questions.

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1

THE COURT: All right. Any clarification, Mr. Lenz?

2

MR. LENZ: Very briefly, Your Honor. Thank you.

3

CLARIFICATION EXAMINATION

4

BY MR. LENZ:

5

Q Ms. Wolfe, in testimony with the Court, you indicated that

6

historically about one half of absentees that are sent out to

7

voters are returned. Has the Commission performed any analysis

8

or do you have any personal belief as to whether or not that

9

number will be the case in this election?

10

A I do not, and I also should clarify. I may have misstated.

11

I apologize. I have some notes in front of me, and in 2012 and

12

2016, about 80 to 85 percent of ballots that were requested --

13

or were issued were returned by voters. So I apologize for

14

misstating that.

15

THE COURT: And, I'm sorry, could you give me those

16

statistics again?

17

THE WITNESS: Sure. In the 2012 and 2016 presidential

18

preference, 80 to 85 percent of ballots that were issued were

19

returned by the voters.

20

THE COURT: And I take it you still don't know what

21

percent were received after election day.

22

THE WITNESS: I'm sorry, Your Honor, I do not. Other

23

than that statistic I provided earlier, I don't have any other

24

numbers.

25

THE COURT: Would you expect that 80 to 85 percent that

87

1

you're quoting for those two elections were only those that were

2

actually counted or could it include some that arrived late and

3

were not allowed to be counted?

4

THE WITNESS: Thank you for the clarification, Your

5

Honor.

6

It was those that were arrived in time to be counted or that

7

were counted.

8

THE COURT: Thank you.

9

Anything else, Mr. Lenz?

10

MR. LENZ: Yes. Thank you, Your Honor.

11

BY MR. LENZ:

12

Q You also briefly discussed supplies that have been sent to

13

local municipalities. Could you provide an update from probably

14

your most recent declaration as to what the status of those

15

supplies are and what supplies are being sent out?

16

A Sure. So right now as we speak there are supplies being

17

prepared to be sent to regional armories for counties to collect

18

to distribute to their municipalities. Among those supplies are

19

a 70 percent alcohol -- liquid alcohol solution, spray bottles

20

for that solution to be used on hands and surfaces. We're also

21

providing copies of the signs that we produced -- the public

22

health signs that we produced. We'll be providing tape for

23

marking the floors for six-foot distances and for hanging the

24

signs. We're also going to be providing isopropyl wipes for

25

voting equipment and touch screens, and we did just find out

88

1

that there is also going to be some masks included as part of

2

that shipment. We had previously asked for masks but had been

3

told that they were only available to medical professionals at

4

this time and weren't advised for elections, but it sounds like

5

they did find some that will be included in those shipments

6

today. Again, it's expected those will be delivered at regional

7

armories for the county clerks to collect and then distribute

8

those to polling places.

9

Q Do you know how many masks are part of that?

10

A I believe it's about 25,000.

11

Q Are you conducting -- is the Commission and staff

12

conducting any additional trainings above and beyond what would

13

be normal for a spring election and presidential primary?

14

A Yes. We are providing many additional opportunities for

15

training on the specific COVID-19 crisis, including webinars on

16

public health guidance and procedures that can be adapted.

17

We've also recorded a number of videos, and today, like I

18

mentioned, we're holding three live question-and-answer sessions

19

with municipal election officials to make sure that they

20

understand how to incorporate this guidance. We're also sending

21

out in paper form the guidance and the checklist to all the

22

municipalities as part of today's shipment, so for those of them

23

that may not have had an opportunity to check their email or our

24

other webinars and guidance, they'll also receive that in paper

25

form. And we have many, many, many guidance documents that

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1

we've produced and that are available through our recent clerk

2

communications where we communicate to them about guidance and

3

materials as well as on the Election Commission's COVID-19 page.

4

Q And do you anticipate continuing to provide live guidance,

5

webinars, question/answer sessions between now and the date of

6

the election?

7

A Anytime something changes, we will provide guidance to the

8

local election officials and adapt to the situation. That being

9

said, the closer we get to election day, they're very busy, and

10

so we try not to bombard them with additional things unless it's

11

a critical change.

12

Q Okay. I have one last point of clarification, which is in

13

Exhibit 102, which is the exhibit -- we don't need to bring it

14

up -- but the exhibit in which -- the memorandum dealing with

15

critical and serious limitations on poll workers -- do you

16

remember that testimony and that exhibit?

17

A Yes, I do.

18

Q Okay. Of the -- in that exhibit you identified 126

19

jurisdictions that cannot staff all polling places. Just for

20

everyone's clarification, what does "all" mean in that

21

definition? Let me know if that question doesn't make sense.

22

A Sure. So when we initially sent the survey, it was based

23

on the election plans that they entered, which is usually long

24

before the election. So usually -- well, it would be more than

25

45 days before the election, jurisdictions enter what we call

90

1

their election plan into the statewide database that includes

2

setting the amount of polling places and locations of the

3

polling places, and so it was based on that plan, asking them if

4

they have staffing to staff their usual polling places for that

5

type of election.

6

Q Okay. So to be clear, if a jurisdiction has consolidated

7

their polling places and had sufficient staff to staff the

8

consolidated polling places, they may still appear to be in

9

serious need because they cannot staff what had been planned 45

10

days ago to be all of their polling places; is that correct?

11

A That's correct.

12

Q Okay. I apologize for the leading question.

13

And then to the extent you know, is there a specific type of

14

jurisdiction that is more likely or are you having more types --

15

more of one type of jurisdiction that has a critical or serious

16

need for poll workers?

17

A Based on those preliminary survey results, and, again,

18

they're changing constantly, we did see a lot of smaller

19

jurisdictions that perhaps -- well, they usually only have a

20

single polling location, and they may only have three poll

21

workers on election day because of the small size of their

22

jurisdiction, and so smaller jurisdictions were more prominent

23

in those preliminary results. I'm not sure exactly of the

24

municipal makeup of the current results.

25

MR. LENZ: Thank you. I have nothing further.

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1

THE COURT: All right. Then, Ms. Wolfe, I am painfully

2

aware that we're keeping you from the hard work of making the

3

election happen. Regardless of what this court may do, that's

4

obviously your primary focus. So I do want to thank you again

5

for all that you're doing. I don't know what your salary is,

6

but based on your performance throughout this process, I'm

7

guessing you're grossly underpaid. I do appreciate the time you

8

spent with us, and you are relieved from any further

9

participation today.

10

(Witness excused at 3:21 p.m.)

11

THE COURT: And we will take our break at this time.

12

Why don't we plan on reconvening at 20 to 4:00. I'll hear

13

closing arguments first from the -- from plaintiffs' counsel.

14

I'm hoping that there will be some coordination again there.

15

And I would propose that you divide them up similar to your

16

questioning beginning with, if you intend to argue for it, a

17

basis for actually delaying the in-person election on April 7

18

and then the specific modifications that are proposed by

19

plaintiffs. I'll then hear argument for the intervening

20

defendant and for the WEC defendants and short rebuttal,

21

preferably by one member of the plaintiffs' group, but maybe you

22

can talk me into two.

23

With that said, we'll take our break, and I would suggest

24

that everyone just keep their mic muted and plan that we will

25

just come right back on this same call -- (inaudible).

92

1

And we are in break and off the record. Thank you.

2

MS. WOLFE: Thank you, Your Honor.

3

(Recess at 3:23 p.m. until 3:41 p.m.)

4

THE COURT: All right. We're back on the record, and I

5

will hear from the first to argue for the plaintiffs.

6

MR. DEVANEY: Thank you, Your Honor. John Devaney for

7

the DNC and the Wisconsin Democratic Party.

8

Your Honor, before I begin, I just wanted to ask a

9

clarifying question: Right at the break Your Honor suggested

10

that perhaps you wanted to hear from the parties who are

11

requesting postponement of the election first, but I want to

12

make sure I --

13

THE COURT: Well, that's a fair point. My

14

understanding is that at this point the DNC has gotten on board

15

for that requested relief, but it's not part of your complaint

16

or written submissions to date. It struck me that that might be

17

the order in which to do this, but I'm not going to insist on

18

it. If you're the one who is prepared to take the lead, I'll

19

let you do that on whatever subjects you want to address, and

20

then I'll hear from the others.

21

MR. DEVANEY: Thank you, Your Honor. In that case,

22

I'll go ahead and proceed.

23

And, Your Honor, I don't intend to go through the entire

24

Anderson-Burdick legal analysis. The Court is obviously very

25

familiar with that, and I want to really focus mostly on remedy.

93

1

But before I get to specific remedies, I really just -- I want

2

to emphasize the point that I think the defendants, despite

3

whatever good faith they're operating with, just are not

4

recognizing the harsh reality of the situation on the ground for

5

the voters. And in putting together our PI motion, we were in

6

touch with dozens of voters, city clerks, county clerks, and we

7

got a feel for what's actually happening out there, just how

8

very, very hard these circumstances are for voters.

9

Obviously -- and it goes way beyond voting, right? It's all of

10

our lives. But for voters, the issue before us, these are just

11

extraordinary obstacles that I don't think we've ever

12

encountered before, and the very, very modest relief that the

13

defendants are proposing to address the situation just fall way

14

short of reality, and I think that's the important backdrop to

15

bear in mind and that we've tried to emphasize in our papers.

16

And, you know, just as examples -- and when you look at the

17

Anderson-Burdick framework, it's hard to imagine a greater

18

burden on voting than the situation we have. We are talking

19

about absolute disenfranchisement of at least hundreds, and

20

probably thousands, of voters under the scheme that's currently

21

in place. And, you know, I could walk -- I will walk through

22

each of the proposed remedies, but the absentee ballot receipt

23

deadline alone is -- if left in place, and at least the

24

Commission has agreed to extend that, but even with that

25

extension, it's going to probably disenfranchise thousands of

94

1

voters.

2

And so the remedy in this case has to address the gravity of

3

the situation --

4

THE COURT: And is your position -- I'm sorry to

5

interrupt, Mr. Devaney, but is it your position that your burden

6

is to show thousands may be impacted as opposed to hundred

7

thousands?

8

MR. DEVANEY: No, no, Your Honor. You know, there's

9

case law that says literally if a single voter is

10

disenfranchised, under Anderson-Burdick that is satisfying our

11

burden.

12

THE COURT: Well, when you say that, Mr. Devaney, I'm

13

not sure that the case law -- there is case law that would

14

suggest that literally one voter being disenfranchised by virtue

15

of the COVID virus means you get relief in a statewide election.

16

As I've indicated already, I -- if the question were, as a

17

matter of public health, is this election a good idea, my

18

response personally would be no. From everything I've read, not

19

just what has been submitted but from popular press and medical

20

experts, Wisconsin is right on the edge of its exponential

21

explosion of COVID-19 disease, and probably the days from April

22

1st through the 15th are crucial, and April 7th falls in the

23

dead middle of that, so even, one would speculate -- and that's

24

all it would be -- even more crucial.

25

So I don't -- you know, defendants are welcome to argue

95

1

otherwise, but I don't think there's any question that there

2

will be voters probably who are discouraged from even getting an

3

absentee ballot, much less showing up in person and voting, and

4

if that's the test, then I probably would have to find that some

5

voters have been impinged, but I find it really hard to accept

6

that that's the test. I think for a statewide election to be

7

suspended by a federal judge or modified in a way that would

8

substantially affect it would require some real evidence that

9

the election itself has been wholly undermined, and I don't

10

think you're going to have that until election day. Because I

11

don't know -- I think it's quite possible that the risks

12

involved here are going to be such that the polls won't open

13

appropriately, and, if they do, will open in a way that will not

14

allow sufficient numbers to vote, or simply that sufficient

15

numbers won't vote. I don't know what would be worse, frankly,

16

that we get a good turnout and we spread this virus or -- but

17

that there's no constitutional claim or that we don't get it and

18

there is a constitutional claim. But I'm not sure it's my place

19

in advance to assume that the steps being taken by the state or

20

not being taken by the state are an impingement on an

21

individual's right to vote. That's what I'm struggling with.

22

And I certainly, for your benefit, agree that since the

23

Election Commission has made clear that extending the postmark

24

date to April 7th and the receipt date to April 13th is

25

something that's doable within the confines of the goal of

96

1

holding an election, that seems to me a reasonable step that we

2

can take that recognizes the risk or -- and impingement on

3

voters both in attempting to vote safely absentee or deciding,

4

without that possibility, not to vote in person.

5

Beyond that relief I feel like I'm tinkering with the

6

election in ways that changes its nature, and as much as I would

7

like our legislature and governor to stop the public health

8

risk, I'm not sure that the voting right is being sufficiently

9

impinged, because voters do have a fairly robust absentee ballot

10

option which has now been taken advantage of whether -- you

11

know, one of the questions after the fact will be was it taken

12

advantage of by enough people, but we have now over a million

13

people who have requested a ballot, and because an individual

14

voter, assuming these steps are taken, is going to be told that

15

it's safe for them to come and vote in person. And it may be

16

for an individual voter, and it comes down to a question of

17

whether they're willing to run any risk in this environment,

18

that if they keep their distance from everyone else, they go in

19

and simply register, if they have to, from a distance and enter

20

a ballot, that most of those people are not going to get

21

COVID-19. That seems to be where we're at, although it would

22

increase if you had a mask on, again, mostly because you won't

23

be touching anything. And if they wash their hands going in and

24

coming out and they don't touch their face, then I don't know

25

that the right that you're arguing from appropriately is

97

1

sufficiently impinged that I can say stop the election or

2

radically change what is required to vote.

3

MR. DEVANEY: Your Honor, I certainly hear you and --

4

THE COURT: And so we're clear, I'm not precluding you

5

from arguing otherwise, but when I was in practice, I

6

appreciated a judge telling me what it is that would move them,

7

so if I'm -- and that's what I'm doing for all parties. If I'm

8

missing something here, and I'm sure every attorney on this call

9

thinks I am, I'd be interested in hearing, as well as starting

10

from there what else you think I should be considering that's

11

appropriate, assuming we let the election go, or why my analysis

12

is inconsistent with the law. You won't offend me in the least

13

if you take either of those positions.

14

MR. DEVANEY: Well, thank you, Your Honor, and my

15

response is twofold.

16

The first is I want to emphasize I had talked about

17

disenfranchisement, but, of course, under Anderson-Burdick it's

18

not just disenfranchisement. It's a burden on voting and

19

obstacles to voting. It's not just --

20

THE COURT: Right.

21

MR. DEVANEY: And I think that's a very important legal

22

point to emphasize, and we have lots of evidence in the record

23

about the burdens on voting that Your Honor is aware of and in

24

addition to evidence of disenfranchisement, so that's my first

25

point.

98

1

My second point though, Your Honor, is you said earlier that

2

we won't know the harm, if you will, until the election actually

3

occurs or whether the election has been undermined, and that's

4

where I respectfully disagree.

5

THE COURT: Yeah.

6

MR. DEVANEY: I think that if you look at our

7

evidence -- and, you know, you hear Ms. Wolfe's testimony just

8

an hour or two ago about the fact that it's probable -- and Your

9

Honor helped with the math -- it's probable that, you know, tens

10

of thousands, potentially, of ballots are going to come in after

11

April 7th without a postmark before April 7th, and they're

12

just going to be --

13

THE COURT: But let's assume that that happens.

14

MR. DEVANEY: Right.

15

THE COURT: If that happens, thousands or tens of

16

thousands --

17

MR. DEVANEY: Right.

18

THE COURT: -- don't come in until a postmark of April

19

8th or April 9th, why wouldn't I grant relief at that point? If

20

it turns out that most people choose either to mail it by

21

election day or to deliver it to a polling booth by election day

22

and there's only a few thousand that come in after the fact,

23

maybe I still -- maybe I still grant that. Is it -- or, for

24

example, what if we continue to see these tremendous requests

25

for absentee ballots today and tomorrow -- actually, I guess it

99

1

was yesterday and today. If we continue to get those so that we

2

anticipate -- and there's evidence that the clerks' offices

3

across the state haven't been able to send out the absentee

4

ballots for -- until the end of the week, then I could extend

5

the date to the 8th or the 9th and let people know you could

6

continue -- you can continue to mail them in, have the

7

Commission continue to accept afterwards. It does raise a

8

question about notice to -- or whether we should allow early

9

returns or not because that might, in fact, influence voters as

10

to whether they're going to bother to send in their April 8th or

11

April 9th ballot, but why would I decide that before we really

12

have reason to think that's going to be a significant problem?

13

MR. DEVANEY: Well, the first answer to the question,

14

Your Honor, is for those voters who are going to be receiving

15

absentee ballots in the next several days, and it sounds like

16

there are thousands of them, they may --

17

THE COURT: It sounds like that, but I don't have to

18

decide that today or tomorrow. I could wait and see what we're

19

really looking at in the last days. If you're right that

20

hundreds of thousands have requested them and that clerks'

21

offices are reporting that they're not going to be able to get

22

them out of the mail -- out in the mail until Friday or even

23

Monday, then clearly we've got a disenfranchisement problem --

24

MR. DEVANEY: Right.

25

THE COURT: -- and I ought to provide relief. But

100

1

until then I don't know why I would, as one of our magistrate

2

judges likes to put it, go look for trouble. We've got enough

3

trouble already that I'm trying to address on the evidence

4

before me, and I get your point that you could assume, I guess,

5

that -- there's certainly -- if the question was simply is it

6

more likely than not that we're going to have a problem with

7

absentee ballots getting to voters late so that they're not able

8

to drop it in the mail, I don't know that that's true. Even if

9

they get it on Friday or Monday, there are two ways they can

10

still vote. They'll have to act right away, and they'll have to

11

put it in the mail by Tuesday or they can drop it off at a

12

polling place by Tuesday. It's not until we determine that

13

they're really not going to get the ballot before election day

14

that they don't have a solution, and that would be, I guess,

15

inconsistent with the basic timing that we're talking about

16

because by the end of the day tomorrow, they're going to have

17

made their request for a ballot. That's seven days. It's

18

really just a matter of the turnaround by the clerks, and I

19

don't know what their turnaround will be. None of us do.

20

MR. DEVANEY: Well, Your Honor, hypothetically you said

21

if someone drops it in the mail on Monday or Tuesday.

22

THE COURT: Yeah.

23

MR. DEVANEY: Under the current state of the law --

24

THE COURT: No. But I'm telling you for purposes of

25

this argument, I'm convinced, for the very reason we're talking

101

1

about, I have to move the -- to the postmark date of April

2

7th --

3

MR. DEVANEY: Got it.

4

THE COURT: -- so you can -- I'll hear from the

5

defendant why that's a horrible, or maybe from the intervening

6

defendant, why that's a horrible idea, or maybe I won't --

7

MR. DEVANEY: Right.

8

THE COURT: -- but we start from that proposition --

9

MR. DEVANEY: Got it.

10

THE COURT: -- for purposes of your argument.

11

MR. DEVANEY: Got it.

12

THE COURT: So then the question is, is it more

13

appropriate for me to wait and see how well the clerks' offices

14

are doing in getting absentee ballots out by the end of the week

15

or not.

16

MR. DEVANEY: And, Your Honor, my response to that is

17

the evidence establishes a significant backlog already, and I

18

think the evidence --

19

THE COURT: You know, certainly there's a backlog, but

20

it's not clear in realtime how big of a backlog. Ms. Wolfe

21

suggested that clerks' offices have been working through the

22

backlog, and so I don't know that at this point. It may be

23

you're right. I'm not saying you're wrong. And, unfortunately,

24

this is -- I'm not faulting the evidence, because we're working

25

with three or four days' knowledge in the past. We don't have

102

1

current. But I think -- let's assume that this backlog has been

2

maintained, and it's something similar to what we have now.

3

Then I suppose you're right. If I assume that and that we're 20

4

to 30,000 on Wednesday -- I get my days confused. Especially

5

with social distancing, it gets harder and harder to tell which

6

is a work day. But if we assume that by April 4th they're still

7

working on the backlog and getting ballots out, then maybe it is

8

true that the ballots just aren't going to arrive in time for

9

individuals to vote, but I am a little concerned about not

10

encouraging people to turn around their votes prematurely.

11

That's where my concern is.

12

MR. DEVANEY: Well, Your Honor, my response is some

13

people will be requesting ballots today and tomorrow, and

14

they're going to get them very close to the election, and even

15

if they get around to dropping them in the mail on the 6th or

16

7th, they may not be postmarked. Right now it's an April 7th

17

postmark date, and so I think at a minimum I would ask the Court

18

to consider if you're going to -- I think the Commission

19

proposed, what was it, the 13th? Let's at least have that as a

20

receipt deadline and not worry about the postmark. That's going

21

to be much more enfranchising. It's going to allow for this

22

situation where ballots are arriving on the eve of the election,

23

someone wants to think about their vote, they turn it around,

24

they get it in the mail, and if it's not postmarked, they

25

shouldn't be discounted under these facts.

103

1

And so I would ask the Court to at least consider that

2

extension to the 13th, and I would argue it should be longer

3

than that, but let's make that a receipt deadline and not worry

4

about the postmark. I think that would go a long way toward

5

taking care of the problem we're wrestling with right now.

6

THE COURT: Understood.

7

MR. DEVANEY: And then the other point I'd make on

8

this -- and I would move on to the other issues -- is there's a

9

real chilling effect too, and Your Honor asked why shouldn't I

10

wait? Why shouldn't you wait to see what really happens? But

11

with these delays in voters getting absentee ballots, there are

12

probably going to be voters who get their ballot, see an April

13

7th deadline, and say, "Why bother?" And so that's why I

14

think -- one, I think the evidence now supports extending and

15

extending that postmark date we just talked about --

16

THE COURT: I'm not sure I get that argument "because

17

they're going to look at April 7th and say why bother." Well,

18

the "why bother" is get it in the mail. Turn it around. If I

19

were to relieve it on April 6th because it's clear people are

20

still not getting their ballots, they will get -- they will --

21

we'll try and get the message out that they can go ahead and

22

vote, but I don't think that's going to change very much whether

23

I make that decision tomorrow or I make that decision on Monday

24

as to who's going to actually take advantage of an extension of

25

the postmark date.

104

1

MR. DEVANEY: Uh-huh.

2

THE COURT: I do get your first point.

3

MR. DEVANEY: Okay.

4

THE COURT: Your first point is that if I extend it,

5

period, maybe people will not think, well, this is -- this

6

deadline is impacting, and even if they -- and if they are

7

willing to ignore it, they at least get their ballot in, and

8

maybe that will encourage more people who get the ballot late to

9

turn around and vote quickly so they can be counted.

10

MR. DEVANEY: Well, thank you for that, Your Honor.

11

The other issue -- a couple other issues I want to turn to

12

is the witness requirement for absentee ballots, and Your Honor

13

has heard plenty of evidence on that, and I won't beat it into

14

the ground. What I will point out though is that in our PI

15

papers, we provided declarations from five witnesses, Ms. Morse,

16

Mr. Keel, Mr. Trapp, Mr. Wilson, and Ms. Larson, and two city

17

and county clerks who I think really bring this issue to life.

18

It's very --

19

THE COURT: Let me -- the obvious question is --

20

MR. DEVANEY: Sure.

21

THE COURT: -- you managed to work with them in that

22

detail to get an affidavit from them. Why couldn't you do the

23

same to let them vote?

24

MR. DEVANEY: Well, they didn't need a witness to

25

provide an affidavit. I mean --

105

1

THE COURT: But you -- obviously you at least talked

2

with someone on the phone, right?

3

MR. DEVANEY: Sure.

4

THE COURT: How were the affidavits prepared? Was

5

there videoconferencing? I don't know.

6

MR. DEVANEY: No.

7

THE COURT: Okay. So you're on the phone. You've

8

reached out to them. You've developed an affidavit. And then

9

how did they provide their signature to it?

10

MR. DEVANEY: They were e-signatures. In one case we

11

couldn't get a signature because the woman did not have a

12

working computer.

13

THE COURT: But as for four, you were able to get

14

e-signatures.

15

MR. DEVANEY: That's true, but I --

16

THE COURT: Which suggests that -- I'm sorry. I don't

17

mean to minimize them, but this witnessing problem is not unique

18

to the coronavirus. It's going to be a problem for any

19

homebound person in any election --

20

MR. DEVANEY: Well, I think --

21

THE COURT: -- for those who are homebound because they

22

are susceptible to illnesses. And it's true you have five

23

anecdotal instances of individuals who claim they're not able to

24

accommodate this. They've had some time now to develop

25

alternatives, and I hope they do, but I'm not convinced that I

106

1

should -- whatever arguable merit you or I think there is to the

2

witness requirement, I'm not sure that COVID-19 completely says

3

I should throw that out for all people sending in absentee

4

ballots, which is the relief you're asking for.

5

MR. DEVANEY: That is true, Your Honor, but the reason

6

why it's appropriate in this circumstance is we are in this

7

COVID world, and for many --

8

THE COURT: But, again, with respect, those people

9

you're talking about, the true shut-in who knows no one, I don't

10

know how I would assume that that's a large enough group that I

11

would say for, I don't know, 99 percent, 99.9 percent of voters

12

who do not fit that category, that they should be relieved of a

13

witness requirement that the State of Wisconsin in its wisdom

14

felt was important to ensure the integrity of the absentee

15

ballot.

16

MR. DEVANEY: Well, it's not just those declarants,

17

Your Honor. It's also the city and county clerks who submitted

18

affidavits and reported on the many phone calls they received

19

about this and the many voters who are struggling with that, and

20

I do --

21

THE COURT: Right. But it's not a matter of struggling

22

with it. It's a matter of whether they can overcome it, and

23

there have been offered lots of ways in which someone who is

24

calling, including some groups that are reaching out to those

25

people, to give them the ability to get a witness on their

107

1

ballot. I just don't know how to measure that against the far

2

greater group that I would be letting in without a witness.

3

MR. DEVANEY: Well, Your Honor, there are also

4

penalties that exist if someone inaccurately --

5

THE COURT: I agree. I agree with you, but that to

6

me -- that's a great point, and that's a reason why there

7

shouldn't be a witness requirement, period, but there is one in

8

Wisconsin. They value that. Whether they're right to, whether

9

they should have a robust exception for people who have

10

difficulty finding someone to witness, those are all important

11

questions, but I'm not sure that they rise to the level of

12

violating the United States Constitution. That's where I'm

13

struggling.

14

MR. DEVANEY: Well, Your Honor, I think that the

15

evidence establishes that some number of people will not be able

16

to vote because of this requirement, and under Anderson-Burdick

17

we believe that's a sufficient showing, and it just isn't a

18

compelling state interest because they're already under penalty

19

if they say something false on their absentee ballot. And I

20

would encourage Your Honor, if you haven't already, just as an

21

example, the affidavit of -- the declaration of Martha Love, an

22

80-year-old woman -- it's just a heartbreaking story. I mean,

23

she's voted since she was age 20. She's 80 years old. She

24

wants to vote. She can't get a witness, and she's afraid of

25

exposing herself to COVID, and she's not alone.

108

1

THE COURT: But she may not be alone, but she's a small

2

group, and I would hope that your firm or whatever firm got her

3

affidavit will get her an absentee ballot and witness it for

4

her. That's -- I mean, I'm sorry, but that's -- it's pregnant

5

that there's got to be a way for these people to get a witness.

6

Perhaps it's true that some just will not come up with a

7

solution, but there are solutions out there for them, and I

8

still haven't heard a reason why she couldn't, with the

9

assistance of the same people who worked with her on this

10

affidavit, get a witness on her ballot for the reasons that Ms.

11

Wolfe described. And I know you say, "Well, there are others,"

12

and my answer is they are told by the clerk's office or they

13

should be told by clerks' offices what they need to do to get a

14

witness.

15

I'm not sure you've met your burden that this is really

16

going to disenfranchise a substantial number of people, but I

17

agree with you that it's a different question than if I were to

18

move the election. I think your burden is much higher for that

19

than it is for relieving the signature. If you gave me some

20

solution as to how we could do this for that group, a practical

21

way to do that for that group, I'd be more inclined to do it,

22

because I agree with you that I think COVID-19 has heightened

23

the concern, and the rational concern, with any interaction with

24

others, but I'm hopeful that the number of true shut-ins who

25

have no one is not a large group. If you gave me a way to

109

1

address those true shut-ins, I would do it, but my suspicion is

2

that true shut-ins, people who have no one, are probably not

3

voting anyway.

4

MR. DEVANEY: Well, Your Honor, I would say too that

5

it's not just shut-ins. These are -- some of these are young

6

people who have illnesses, pre-existing conditions, and they're

7

genuinely afraid of having contact with someone to witness their

8

ballot and --

9

THE COURT: But is there a case you can provide me

10

where a small percentage of the population is having difficulty

11

meeting a witness requirement and that means no one should have

12

to meet it? Because that's what --

13

MR. DEVANEY: Well, there -- there are certainly plenty

14

of cases where a segment of the population is burdened by a

15

voting obstacle, not the entire population, and sometimes it's a

16

small percentage, where the Anderson-Burdick analysis kicks in,

17

and the question --

18

THE COURT: Let me propose this to you: Why couldn't I

19

say that if a person indicates that because of necessity they

20

were unable to get a witness, that that should be counted,

21

absent evidence to the contrary.

22

MR. DEVANEY: I think that would help, Your Honor, by

23

all means.

24

THE COURT: All right. Anything else? Any other

25

particular category you're tasked with addressing?

110

1

MR. DEVANEY: I'm just looking at my list, and I don't

2

want to take too much time. I know we've got other counsel

3

coming behind me.

4

The only other one I would say is the photo ID requirement

5

for requesting an absentee ballot. Our evidence shows through

6

declarations and through application of judicially noticeable

7

facts that it's very hard right now for people to make copies of

8

photo IDs, and I know Your Honor considered that in your ruling

9

a couple of weeks ago or whatever that was, and our point is

10

that the circumstances have gotten considerably worse because of

11

the Safer-at-Home Order, the shutdown of businesses. The

12

State's answer is --

13

THE COURT: The easiest way to do it is find someone

14

who has an iPhone or a Samsung or any device that can take a

15

picture and send it electronically. And now you're going to

16

tell me there's a group who have not been able to do that. It

17

becomes even more problematic to have them -- I don't know how

18

the State implements that. I think that becomes an even harder

19

reach since the State has considered, right or wrong, that the

20

requirement of an ID is important.

21

I think -- you know, it's funny because we have this

22

situation where ballots, absentee ballots, have been mailed out

23

to people, the form has been mailed out by third-party groups to

24

individuals to fill out and send in. So we're creating this

25

never world where they're not registered, but they have an

111

1

absentee ballot in their hands. I just -- to me that becomes

2

sort of a further reach into what the State of Wisconsin has

3

required and is less directly related to COVID-19 and more --

4

I'm not questioning the potential for impingement on voters'

5

rights as much as I am that that argument has been made and lost

6

in court -- whether it should have been or not, I'm not even

7

expressing an opinion -- independent of COVID-19, and I'm not

8

convinced that COVID-19 has substantially changed the burdens

9

that people face.

10

MR. DEVANEY: And, Your Honor, my response to that is

11

since Your Honor issued your ruling 12 days ago or whatever

12

that -- I think it was March 20th -- the Safer-at-Home Order

13

from the Governor has come out that literally threatens people

14

with criminal prosecution should they leave their homes and

15

shuts down --

16

THE COURT: That's really not literally -- you're

17

probably not calling from Wisconsin.

18

MR. DEVANEY: No, I'm not. That's true. So I'm

19

probably -- maybe I'm over --

20

THE COURT: It's an overstatement, but I take your

21

point. They've been told they shouldn't leave the house, and

22

for those who aren't adept or don't have someone they know who

23

is adept with a phone capable of making images, it's still a

24

burden. I understand that.

25

MR. DEVANEY: And my last point on that factual point

112

1

is the State says 81 percent of people have smartphones. 19

2

percent don't, and that's a big number. That's the only other

3

point I wanted to make.

4

THE COURT: Yeah. I don't know what percent don't know

5

someone with a smartphone though, but I take your point.

6

MR. DEVANEY: Yeah.

7

THE COURT: All right. I appreciate --

8

MR. DEVANEY: My last point is, just for the record, in

9

our papers, as I pointed out at the start, we didn't advocate

10

postponing the election. In watching though the developments

11

over these past days and looking at our co-plaintiffs' papers,

12

the DNC and Wisconsin Democratic Party have come around to we do

13

support it. I'm going to leave that argument to others, but I

14

just, for the record, want to be clear that we are supportive of

15

that request given the chaos --

16

THE COURT: That's been noted and will be noted in the

17

opinion.

18

MR. DEVANEY: Okay. Thank you, Your Honor.

19

THE COURT: Thank you. I'll leave to Mr. Poland and

20

Mr. Sherman as to who takes up the remaining issues for the

21

plaintiffs.

22

MR. SHERMAN: Thank you, Your Honor. We didn't want to

23

duplicate efforts, but I had -- this is our sole claim over the

24

witnessing requirement, so if Your Honor --

25

THE COURT: Yes.

113

1

MR. SHERMAN: -- would permit, I'd like to --

2

THE COURT: Briefly, picking up where we left off, if

3

there's something more you want to add, I'll hear it.

4

MR. SHERMAN: Yes, Your Honor.

5

So, respectfully, this is not a small group. Based on the

6

CDC guidance, anyone who is 65 years old or older and anyone

7

with an immunocompromised condition is at severe risk of

8

complications or even death from COVID-19, and the census data

9

that we submitted shows that this is --

10

THE COURT: And let me stop you there. You've created

11

a factual scenario where there are a lot of people who need to

12

stay home. You've done that. But you also heard lots of ways

13

if they have one friend they can accomplish the signature on the

14

envelope. So what you haven't established is there's a large

15

group of individuals who have no one capable of providing the

16

witness requirement in a fashion that is safe even in an age of

17

COVID-19.

18

MR. SHERMAN: Well, respectfully, Your Honor, these --

19

our clients, they're terrified.

20

THE COURT: All of this is respectful. All of this is

21

respectful.

22

MR. SHERMAN: Understood.

23

THE COURT: I'm just saying that I haven't seen it.

24

Point out to me what percentage of the CDC numbers don't have

25

the capacity to have someone witness their ballot.

114

1

MR. SHERMAN: Our clients are afraid of contracting the

2

disease and of dieing from it --

3

THE COURT: Of course.

4

MR. SHERMAN: -- so for that reason they are --

5

THE COURT: There are clients who had that fear before

6

this. They were rightly afraid of the flu. I'm not suggesting

7

that COVID-19 isn't much worse than the flu. All of the

8

evidence so far is that it's much more communicable and much

9

more deadly than influenza, but they -- for people who are

10

compromised, COVID-19 is just one more problem that they face in

11

trying to avoid exposures to others. I just don't know what

12

percent of those, admittedly a greater group now that we have

13

COVID-19, which seems to have even worse implications for those

14

with comorbidities and the aged, but I don't know what percent

15

of those don't have the capacity, if they want to, to get a

16

witness.

17

MR. SHERMAN: Well, they're homebound solely because of

18

the disease. These are not people who are shut-ins, as the

19

Court put it. These are folks who have extended families and

20

friends. Dr. Hakami is a clinical psychologist. She sees

21

patients --

22

THE COURT: All of whom could go to a window and sign

23

their ballot and put it through the mailbox to someone else at

24

no risk to them.

25

MR. SHERMAN: Your Honor, I respectfully disagree. The

115

1

guidance --

2

THE COURT: How so?

3

MR. SHERMAN: The guidance that the Wisconsin Elections

4

Commission has put forward is patently unreasonable. It has --

5

THE COURT: How so?

6

MR. SHERMAN: It's calling upon elderly voters to --

7

THE COURT: But now you changed subjects. You changed

8

subjects. If it's elderly voters, it's even more appropriate

9

that -- I'm talking about people who face comorbidities and are

10

taking steps to remove themselves from society generally, but

11

let's include the aged. Why is it unreasonable for them to make

12

an arrangement of witnessing that's remote enough so they don't

13

represent a risk?

14

MR. SHERMAN: So in the case -- that's why I'm

15

referring to the guidance that the WEC has put out, and that

16

guidance calls for them to, either through a window or by video

17

chat, ask a, say, UPS delivery person or --

18

THE COURT: No, no. UPS -- a friend, a relative, a

19

reasonable acquaintance, the next-door neighbor, someone to come

20

to the window --

21

MR. SHERMAN: Right.

22

THE COURT: -- and sign.

23

MR. SHERMAN: Well, they have to pass -- they have to

24

leave their certification envelope for 24 hours outside until

25

that person comes and it decontaminates. Then it's signed,

116

1

passed back to the voter, and based on the available science,

2

has to be left for another 24 hours to decontaminate. The

3

Commission even recommended that people meet like spies in the

4

parking lot to pass it through cracked windows. Respectfully, I

5

just don't think that's a reasonable response to voters'

6

concerns of contracting the disease --

7

THE COURT: Well, we really don't know, but let's take

8

it a step further. What about simply requiring them to make a

9

statement providing a reason for not being able to get a

10

witness?

11

MR. SHERMAN: I think it would be a solution if it were

12

workable, Your Honor. The reason we asked for the remedy we did

13

is on the thought that it would be impossible to amend the

14

absentee ballot certificate envelope at this juncture and

15

because there would be no reasonable way to --

16

THE COURT: But that's not an answer. I'm sorry.

17

That's not an answer at all. If that's true, you're not going

18

to be able to change the ballot, so whatever I do, whether I

19

make an announcement that no one has to have a witness or I make

20

an announcement that if you can't have a witness, you don't have

21

to have one as long as you make a statement, that's not going to

22

be consistent with the ballots that have gone out, so that's not

23

even an argument. What's wrong with that being the solution so

24

that I don't completely ignore the State's interest in

25

witnesses?

117

1

MR. SHERMAN: I'm just trying to --

2

THE COURT: For everyone else who can -- for everyone

3

who can get a witness, you've got to have a witness. But if you

4

make a representation that you are not able to make a witness

5

because of your fears of COVID-19, you should include that

6

instead.

7

MR. SHERMAN: I understand --

8

THE COURT: How does that not address your concern?

9

MR. SHERMAN: It would address the concern. I just was

10

wondering how it would be practically workable, and what's

11

why --

12

THE COURT: How is it any more practical than what

13

you're suggesting?

14

MR. SHERMAN: Because, Your Honor, I think if you

15

enjoin the requirement, then the Commission and all municipal

16

clerks can make a broad announcement. These ballots are already

17

piling up. There are hundreds --

18

THE COURT: No, no. No, no. No, no, no. If I enjoin

19

the requirement of a witness for those who are willing to

20

represent in writing that they couldn't get a witness because of

21

COVID-19, how is that different than if I enjoin it for

22

everybody if it still requires an announcement by WEC?

23

MR. SHERMAN: Understood.

24

THE COURT: And I'm only intending it to apply to

25

people who are endangered. I'm not -- the whole point of this

118

1

is to be respectful of the State of Wisconsin's requirement,

2

whether we think it's a good idea or not.

3

MR. SHERMAN: I understand, Your Honor. I was trying

4

to think of what the practical limitations of it were --

5

THE COURT: I don't know why it's any less -- I don't

6

know why it's any less or more practical.

7

MR. SHERMAN: Right. I think people could submit a

8

letter along with their ballot, and that would be sufficient,

9

and that would solve the problem. The only reason that I had

10

raised it was I just thought -- you know, I thought you were

11

suggesting that there could be some certification, some kind of

12

checkbox that they couldn't reasonably -- they had a

13

reasonable --

14

THE COURT: But there isn't going to be one now either.

15

MR. SHERMAN: I understand. I understand, but I think

16

a letter in conjunction with --

17

THE COURT: Anything else that you want to add, Mr.

18

Sherman, before I hear from Mr. Poland?

19

MR. SHERMAN: I just wanted to note, because we moved

20

away from this point, that the census data that we submitted

21

showed that there are 600,000 single-person households in the

22

state --

23

THE COURT: I'm well aware of the numbers. Again, it

24

doesn't tell me what of that group which cannot witness, but

25

we've already gone through that.

119

1

Anything else you want to add?

2

MR. SHERMAN: Thank you, Your Honor. No.

3

THE COURT: Thank you.

4

Let me then hear from Mr. Poland.

5

MR. POLAND: Thank you, Your Honor. Your Honor, I'm

6

going to address -- I'm going to start out much in the way Mr.

7

Devaney did, addressing the situation on the ground, but this

8

will be from the standpoint of in-person voting as opposed to

9

absentee voting.

10

THE COURT: Okay.

11

MR. POLAND: And the situation, it is grim, but it is

12

deteriorating, and that's the point that I wanted to raise. The

13

statistics that were released today from the Department of

14

Health Services is that we now have 1,530 positive tests in the

15

state and 24 deaths from COVID-19. Milwaukee has

16

consolidated --

17

THE COURT: And, Mr. Poland, I just have to stop you

18

because I have yet to hear how I have the authority to stop what

19

may well be an ill-advised, if not a colossal, mistake from a

20

perspective of public health. I don't disagree with you, and

21

you can start already from the proposition that this is a bad

22

idea as a matter of what we know about COVID-19, what the

23

medical community knows about COVID-19. It's not worth the

24

risk. But I'm not sure how a federal district judge has the

25

authority to tell the State of Wisconsin and what was designed

120

1

as a commission that would not be able to make tough decisions

2

because they would split 3-3 that they're doing the wrong thing

3

from a matter of public health.

4

MR. POLAND: Your Honor --

5

THE COURT: But let's assume -- let's assume from your

6

proposition that this is a bad decision from the perspective of

7

public health and it could be excruciatingly bad given its

8

timing.

9

MR. POLAND: And it's going to make the election

10

unworkable, and that's where I'm going, Your Honor. It

11

certainly is a health and safety crisis that brought us to this

12

place. What we're asking the Court to do isn't based on that

13

particular health threat that's posed, but it's a voting rights

14

crisis. It's a crisis of constitutional rights. We share the

15

Court's frustration that the legislature and that the Governor

16

are not stepping in, but it's the inaction of those authorities

17

to ensure Wisconsin holds fair elections and that the voters'

18

constitutional rights are protected, that's the basis that we're

19

asking the Court to issue an injunction that would --

20

THE COURT: I'm still waiting for you to get to what it

21

is -- I mean, let's take rosiest scenario, and we have now a

22

million-and-a-half absentee voters. We get 1,300,000 who take

23

advantage of that option, and we get another three to 400,000

24

who vote on election day in relatively sparse numbers. You've

25

got a fairly robust voting turnout.

121

1

MR. POLAND: I think what we heard from the testimony

2

of Administrator Wolfe and then also from the declarations that

3

we have put into evidence, that the problem is that the

4

procedures that have been put into place by the Elections

5

Commission, and they're evolving as we go along, they are

6

helping -- they are helping or trying to loosen up the

7

restrictions on absentee voting by mail. The problem that we

8

run into though is that all of the changes that are coming to

9

the procedures are actually making it more difficult for people

10

to vote in person, and that's if you look at the -- if you look

11

at the amicus briefs from the cities of Milwaukee and Madison

12

and Green Bay and Racine, if you look at the declarants whose

13

declarations we put into evidence as well, what they identify is

14

that minority voters in the cities, and especially Milwaukee,

15

vote substantially through same-day registration.

16

So, for example, if you look at the declaration of Neil

17

Albrecht, who is the executive director of the Milwaukee

18

Elections Commission, he says that in the 2016 spring

19

presidential primary, 167,765 total ballots were cast and that

20

1,400 of them -- I'm sorry, 14,000 were by email. Well, that

21

means that there are -- I'm sorry, absentee, mail absentee

22

ballots. In the 2012 spring presidential primary election, the

23

Commission documented 84,641 ballots cast. They processed 5,690

24

by email.

25

THE COURT: Mr. Poland, let me ask you a question:

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Let's say I don't stop this election. It goes forward on the

2

7th as scheduled, and there is a great turnout in the

3

districts -- the voting jurisdictions that you're talking about

4

in Milwaukee. It could well be that's a horrible public health

5

consequence, but they weren't prevented from exercising their

6

franchise. The way they would be prevented from exercising

7

their franchise is they don't show up, which could be an

8

absolutely rational decision, and then we'll see that in the

9

numbers in those jurisdictions, and you can come back to me and

10

say, "This wasn't a valid election."

11

Is it my place as a federal district judge to say, "Nope,

12

the State of Wisconsin doesn't get to hold an election at all"?

13

MR. POLAND: Yeah, actually, Judge, we think that it

14

does. If you look at the supplemental -- the brief that we

15

submitted last night, it goes --

16

THE COURT: Yeah. I did. Yep.

17

MR. POLAND: So I think a couple of things come

18

through. Now, granted, granted, Your Honor, we will admit the

19

last time we faced a public health crisis like this was in 1918,

20

a very different time. We didn't have voting rights laws. The

21

19th Amendment hasn't been adopted. The jurisprudence isn't

22

what it is today. We didn't have Anderson-Burdick and that

23

framework, and so the lack of directly on-point authority, what

24

do you do in the case of --

25

THE COURT: But give me any on-point authority. I'm

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1

looking at your brief. Which of these cases makes clear that a

2

federal district court should stop a statewide election based on

3

a public health crisis?

4

MR. POLAND: We don't have a statewide election, Your

5

Honor. We don't have a statewide election.

6

THE COURT: Well, give me -- what's the closest case to

7

what I'm facing?

8

MR. POLAND: Well, I would say that the closest case

9

that we have to what you're facing was the Michaelson case that

10

we discussed. That was -- that was a smaller jurisdiction.

11

THE COURT: It was an incredibly smaller jurisdiction.

12

MR. POLAND: I understand, Your Honor, but from --

13

THE COURT: I'm not sure you do because that's what

14

you're asking for is to prevent the election from going forward

15

at all by a federal judge because the State of Wisconsin's

16

legislature and governor are not willing to step up and say

17

there's a public health crisis that makes it absolutely clear

18

that we should not be allowing poll workers and voters to

19

congregate on April 7th, Tuesday.

20

MR. POLAND: It's because the Elections Commission is

21

going to hold an election next Tuesday that's going to deprive

22

tens of thousands of people of their right to vote.

23

THE COURT: But I don't know that.

24

MR. POLAND: Well, Judge, but you can't know that ahead

25

of time. All you can do is act on the information that's in

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1

front of you.

2

THE COURT: Right. Thank you. I can't know that ahead

3

of time. What I can know is that an incredible number of people

4

got absentee ballots, and maybe enough people will go to the

5

polls on election day confident in the steps that have been

6

taken to allow for a relatively robust election, and you want to

7

stop it before it happens because you don't think that will be

8

true.

9

MR. POLAND: Your Honor, it's not me who thinks that.

10

I've got -- we've got --

11

THE COURT: No, no, no. Mr. Poland, I'm not saying you

12

personally.

13

MR. POLAND: No, I understand.

14

THE COURT: Your clients and certain municipalities

15

want a federal district judge to step in and prevent a state

16

from holding a statewide election because you don't think

17

there's going to be a good enough turnout between absentee

18

ballots and in-person voting. Maybe you're right, but why

19

wouldn't I in -- under principles of federalism allow the State

20

to try it? And the only reason is because it's really a bad

21

public policy idea and they should stop it for health reasons,

22

not because it's impinging on infringement. It may be impinging

23

on some voters because they won't go to the polls, but there's

24

going to be always some voters who won't go to the polls and for

25

whatever reason, because there's a storm that day. There could

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1

be lots of reasons why individuals decide they don't want to

2

show up at the polls, and the result is we look at the voting

3

turnout after the fact and determine whether, in fact, that was

4

the effect. We don't say there's going to be a bad storm and a

5

federal district judge gets to stop the election.

6

MR. POLAND: Your Honor, this is not the situation of

7

that there would be a bad storm. This is --

8

THE COURT: No, but it is exactly that situation.

9

There's a hurricane coming. You can't even give me a case where

10

a federal judge stopped a state from stupidly holding an

11

election when most of the voters were not going to go to the

12

polls because there was a hurricane coming. You expect the

13

State of Wisconsin to realize this is a hurricane and for them

14

to stop it for public health reasons, but you don't get to go to

15

a federal judge and say it's impinging on voting rights so you

16

get to stop a statewide election. The reason you can't cite me

17

a case is because it's not appropriate. I'm sorry that that's

18

what the situation is, but this is a public health crisis that

19

the state legislature and the Governor have refused to accept as

20

severe enough to stop this statewide election.

21

MR. POLAND: Your Honor, we certainly --

22

THE COURT: And that's where the remedy is under case

23

law and under the U.S. Constitution, and you may have a remedy

24

after the fact if voters rationally decide not to go get

25

absentee ballots and not to show up in person at the polls, but

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1

I don't see a basis on which I stop this, albeit very risky,

2

decision by the State of Wisconsin.

3

MR. POLAND: Your Honor, we do disagree. We do think

4

that the Court has the power, and we put that argument into our

5

briefs.

6

THE COURT: All right. Let me then hear from I guess

7

it's Mr. Lenz, counsel for -- I'm sorry. I apologize --

8

Mr. Strawbridge, counsel for the intervening defendants.

9

MR. STRAWBRIDGE: Thank you, Your Honor.

10

It's late in the day, and I won't try to belabor some of the

11

points that have already been made I think by Your Honor with

12

respect to moving the election. We certainly agree with the

13

position that you've taken that this is ultimately a decision

14

that has to be made in other venues. I'll just note obviously

15

that Ms. Wolfe did testify that, you know, an open-ended relief

16

of moving the election creates its own problems, and there are

17

no perfect solutions here, and obviously we see the law --

18

THE COURT: Well, from a public health perspective,

19

there's a much better solution, which is to delay this election,

20

which is what every other state in the current setting has done.

21

MR. STRAWBRIDGE: Well --

22

THE COURT: And I'm talking about not that COVID-19

23

existed but that we were watching the ramp-up on a graph that

24

tells us that we're at a crucial stage in the state of Wisconsin

25

to prevent its dissemination, and yet the State of Wisconsin is

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1

ignoring that data and is endangering its population, but as

2

I've said, I don't think it's for a federal district judge to

3

act as a super Department of Health for the State of Wisconsin.

4

Is there something more you want to add?

5

MR. STRAWBRIDGE: Yes. I want to move on to the

6

discussions about some of the voter integrity requirements,

7

which I think are the key questions at least that my clients

8

would like to highlight here.

9

I think that you're absolutely right with respect to what

10

the burden is on them, especially since they have only asked for

11

facial relief. The evidentiary record in this case is not

12

sufficient to sustain their request for broad relief. It's not

13

even close to being sufficient to sustain that request. There's

14

no quantification whatsoever of exactly how many people are

15

going to be affected by these long-existing requirements. Their

16

argument, of course, doesn't acknowledge the fact that this

17

election has been ongoing for weeks. We heard testimony that

18

the ballot has been available for more than 45 days --

19

THE COURT: I just find that an insulting argument.

20

I'm sorry that you went there. Because 45 days ago no one saw

21

this.

22

MR. STRAWBRIDGE: No, I didn't --

23

THE COURT: 30 days ago no one saw this.

24

MR. STRAWBRIDGE: I mean, please, please --

25

THE COURT: (Inaudible) days ago we were still not

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1

being told to stay in place. This is a recent event, and

2

absentee ballot as a solution is only recently something that

3

the average Wisconsin voter would have considered, so the notion

4

that they've had weeks to vote absentee is insulting. They've

5

had about 15 days to consider it, and each day the risk is

6

becoming more obvious of not using the absentee ballot. So I'm

7

sorry that you went there, but that's a silly argument.

8

MR. STRAWBRIDGE: As Your Honor has pointed out,

9

there's been a number of requests that have been fulfilled

10

thanks in part to the TRO that was issued in this case and the

11

fact that the Elections Commission has continued to try to

12

fulfill those ballots. It's very difficult -- I think it's

13

impossible to predict exactly what this election is going to do,

14

and unfortunately for the plaintiffs, the burden falls on them

15

to try to make that prediction to carry the burden of seeking

16

the broad relief that they're seeking in this case.

17

THE COURT: What would be enough? What would be

18

enough --

19

MR. STRAWBRIDGE: I mean, what the Frank decisions say

20

coupled with Crawford is they have to come forward with some

21

actual evidence that quantifies a burden that carries to a large

22

population that justifies suspending a generally applicable

23

requirement.

24

THE COURT: So what would be enough? 50,000, 100,000,

25

200,000? What is enough of people who are unable to exercise

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1

their franchise to be sufficient for a federal district court to

2

stop an election?

3

MR. STRAWBRIDGE: I don't think that I can certainly

4

quantify it to a specific degree. I can say that the

5

evidence --

6

THE COURT: Well, give me a rough estimate.

7

MR. STRAWBRIDGE: If they were able to demonstrate

8

that, you know, entire swaths of the state were physically

9

unable to get to the polls, that would be a different question,

10

but that's not the case here, and as Your Honor has pointed out,

11

Wisconsin actually has --

12

THE COURT: What if it turns out that 120 jurisdictions

13

are not able to allow in-person voting?

14

MR. STRAWBRIDGE: Well, if it turns out after the fact,

15

there may be some discussion to be had as to a remedy, but I

16

don't think that that can be made today. That's not even what

17

the testimony is. It's 120 are concerned they may not have

18

enough.

19

THE COURT: Right. Well, no, no, no, no, no. 120 said

20

at this point they don't have enough. They may be able to solve

21

that problem by election day, I agree with you, but right now

22

120 -- I shouldn't say right now. As of the last survey, 120

23

weren't prepared, and then there's another --

24

MR. STRAWBRIDGE: If we're being precise, I think it

25

was 111, but I don't mean to quibble.

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1

THE COURT: Fair enough. You're right. It was

2

111 (inaudible) --

3

MR. STRAWBRIDGE: The other point I would make is --

4

THE COURT: -- are otherwise concerned about their

5

ability to go ahead, but --

6

MR. STRAWBRIDGE: Correct.

7

THE COURT: -- if that fact bears out, then would that

8

be enough to void the election?

9

MR. STRAWBRIDGE: Not necessarily, because as we heard

10

today, the contingency plans in place may direct those people to

11

alternative locations to vote and --

12

THE COURT: No, no, no, no. I'm not saying

13

alternatively. I'm saying we know. It's now April 8th. 120

14

jurisdictions were not able to accommodate in-person voting.

15

Would that be enough to void the election?

16

MR. STRAWBRIDGE: Let me ask what you mean by "void the

17

election." After the fact order a new election; is that the

18

question?

19

THE COURT: Yes.

20

MR. STRAWBRIDGE: I'm not so sure that it would be

21

under governing law --

22

THE COURT: Well, what would be?

23

MR. STRAWBRIDGE: -- but it would be a harder case than

24

this. Well, widespread --

25

THE COURT: What if the major metropolitan minority

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1

voting dropped by 50 percent? Would that be enough?

2

MR. STRAWBRIDGE: Well, there's a real question there

3

as to whether that drop would be caused by actions of the

4

defendants. There are --

5

THE COURT: No, it wouldn't be -- I agree. I don't

6

think it would be actions of the defendants, but it would be

7

actions by the State of Wisconsin --

8

MR. STRAWBRIDGE: It may or may not be --

9

THE COURT: -- to go ahead with an election without

10

giving a viable means for a significant minority to be able to

11

participate in the election. Why wouldn't that be enough?

12

MR. STRAWBRIDGE: Well, I think the problem with that

13

is that there are no cases that have granted that remedy on that

14

basic theory. Obviously intentional discrimination is a

15

different question, but the --

16

THE COURT: Let's hope that that's not what we're going

17

to end up with. The alternative is you'll get a robust

18

response, and then you're going to have pockets of COVID-19

19

killing a large percentage of certain groups, and that may be

20

something that happens -- it would be outside of my

21

jurisdiction, but it will be on the hands of the state

22

legislature and the Governor.

23

MR. STRAWBRIDGE: I --

24

THE COURT: Anything else you want to add?

25

MR. STRAWBRIDGE: Yes. Let me add one point, and that

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1

is that I commend to the Court to read the decisions in Frank

2

very carefully, and that was particularly with respect to this

3

notion of the carve-out affidavit with respect to the witnessing

4

requirement. Frank makes very clear that that's a problematic

5

remedy when there's no actual way to verify that the interest in

6

witnessing has been met. All the --

7

THE COURT: Well, there is a way to verify it. It's

8

the same thing that we do -- that the State of Wisconsin does

9

already when it's relieving someone of the photo ID requirement,

10

and that is the person indicates on the ballot that because

11

they're a shut-in, they're not able to comply, and each local

12

municipality looks at it and decides whether they believe that

13

or they want to investigate it.

14

MR. STRAWBRIDGE: Yeah. I think that there's --

15

THE COURT: If it's already in place in the State of

16

Wisconsin for other purposes, what difference is this?

17

MR. STRAWBRIDGE: Well, I think that -- two points.

18

Purcell strongly weighs against imposing that kind of what I

19

think is essentially a legislative judgment at this point in the

20

process.

21

THE COURT: Well, no. It wouldn't be a legislative

22

judgment. It would be a judgment of the unique situations of

23

COVID-19, which have changed the calculus for certain

24

individuals who are afraid, and legitimately afraid, of any

25

contact with another person.

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1

MR. STRAWBRIDGE: I still think that there are serious

2

problems with trying to impose that requirement at this point in

3

the election under Purcell in a way that makes it effective for

4

Wisconsin to advance its (unintelligible) with respect to --

5

THE COURT: And the Purcell concern --

6

MR. STRAWBRIDGE: It may well be a good idea --

7

THE COURT: -- is that I'm changing the rules in the

8

middle of the game? Is that what you're concerned about?

9

MR. STRAWBRIDGE: Too close to the election, that's

10

correct. That's an argument that's notably missing from the

11

plaintiffs' filings --

12

THE COURT: Well, but all of this is too close to the

13

election. Two weeks ago we wouldn't have even have thought that

14

this would be a serious problem, and now in the middle of the

15

ramp-up of the COVID-19, we know it's a potentially serious

16

problem for some individuals.

17

MR. STRAWBRIDGE: Your Honor --

18

THE COURT: So there are some voters who will feel that

19

they cannot safely arrange for a signature.

20

MR. STRAWBRIDGE: Without minimizing the sincerity of

21

the belief, that is also true in a number of other situations in

22

a number of other elections. It's also true with respect to the

23

requirements that were at issue in Frank and that ultimately the

24

Seventh Circuit found this kind of relief could not be granted

25

and denied in granting a stay of a district court order of the

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1

case. That's all I have to say about that. Your Honor can read

2

the cases obviously.

3

THE COURT: Anything else?

4

MR. STRAWBRIDGE: Yes. Two quick points.

5

THE COURT: And although I'm impatient at this point in

6

the day, I don't want to preclude you from making your

7

arguments. I've heard from three lawyers on the other side. I

8

imagine that the WEC defendants will have very little to say, so

9

you have the floor, and you should take the time you think is

10

necessary to apprise me of the most important issues.

11

MR. STRAWBRIDGE: It's late in the day, so I don't want

12

to belabor these points, and Your Honor may already understand

13

our position on it and may not need further argument.

14

But the first point I want to make is I do think that the

15

request to essentially change the postmark date to some date

16

even after the 7th is very problematic. It is based on a lot of

17

speculation at this point in time, and it is -- and runs

18

headlong into the Purcell issues as well. So I understand the

19

argument of moving it to balance their postmark and delaying the

20

time for counting. I think that that's a much closer call, and

21

I understand where the Court's coming from on that, but it seems

22

to me like it's a fundamental change when you start actually

23

extending the time period to cast the election. It creates some

24

uncertainty issues, as Your Honor identified.

25

The only other point that I would make about the counting

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1

deadline that the Court may want to consider in this case,

2

because it is something that could be addressed after the

3

election -- and I'm just passing on essentially a concern that

4

has been raised to me about this -- the difference between, you

5

know, issuing an order that requires the counting to take place

6

through Friday as opposed to the following Monday is the fact

7

that that pushes into a holiday weekend. Poll observers and

8

others need to -- and by "holiday" I mean Easter is what I'm

9

referring to here. It's a real hardship on a lot of people, not

10

that maybe it won't be necessary, but it seems that judgment

11

could be made with a preliminary order if that's the way the

12

Court is inclined to go to try to do it by Friday and get status

13

reports and see whether it's really necessary to give additional

14

time through the weekend.

15

Last point, Your Honor, whatever relief you're inclined to

16

impose here, and I think that it was especially with respect to

17

the voting integrity measures we raised, we are required to

18

present a request for a stay to the Court. We ask the Court

19

address that in the first instance just so that we have at least

20

a 24-hour administrative appeal so we have an opportunity to

21

present any argument to the Seventh Circuit, if necessary. I

22

don't mean to prejudge what Your Honor is going to do.

23

THE COURT: No, I understand. I'm just -- I mean, you

24

would certainly have a right to appeal, and I understand your

25

request that I take up the stay now so that you wouldn't have to

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1

go through that request after the fact. The problem is we're

2

just about to have an election, so even a 12-hour stay may be

3

meaningful. But I take your point, and I will certainly give

4

consideration to some short stay so that you would have an

5

opportunity to proceed to the Seventh Circuit.

6

Anything else?

7

MR. STRAWBRIDGE: No, Your Honor.

8

THE COURT: All right. Mr. Lenz, do you want to be

9

heard at all for the Wisconsin Election Commission --

10

commissioners?

11

MR. LENZ: Yes, Your Honor. And I'm sorry. You cut

12

out for just a moment there.

13

We'll be very, very brief. The commissioners are bound by

14

Wisconsin statute. The Commission has put forth its statement

15

on the counting deadlines, and I'll leave it at that. Thank

16

you.

17

THE COURT: All right. I will hear, briefly, rebuttal

18

from plaintiffs. My preference would be that someone take that

19

on for the group, but I'm not going to require it. I am going

20

to require true rebuttal in light of the short statements made

21

by the defendants and intervening defendants.

22

MR. DEVANEY: Your Honor, if I may, and I'll be quick,

23

two points.

24

The first is responding to the point just made by counsel

25

about an inconvenience of a holiday weekend and counting, and

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1

while I have sympathy for respecting people's personal lives,

2

there's lots of case law that talks about when there's a risk of

3

disenfranchisement or significant burdens to voting, that the

4

interest in voting must prevail over administrative concerns,

5

and I just -- I have to make that point. I don't mean to be

6

insensitive to people's personal situations.

7

The second point I wanted to make is going back to the

8

discussion of whether the Court can issue a broad finding of

9

unconstitutionality with respect to a single provision of law

10

such as a witness requirement, by example, when not the entire

11

population or even, you know, less than a quarter of the

12

population is affected by it, I just want to point out, Your

13

Honor, we addressed that in our reply brief we filed yesterday

14

on page 6, and there's a string of cases going back to -- it

15

really begins with the poll tax cases. Obviously poll taxes did

16

not affect the entire population, probably a small percentage,

17

and yet the Supreme Court found them unconstitutional, and

18

tracing from that case forward, there are --

19

THE COURT: I'm not sure that I understand how they

20

trace, as you put it. What they found was the requirement

21

itself was unconstitutional because of its impact on a

22

substantial number of individuals and because of its intent.

23

MR. DEVANEY: No, that is true, but that case or those

24

cases spawned other cases that we cited in our brief like

25

Crawford that talk about -- that strike down laws that have an

138

1

effect on a very limited segment of the population, and the

2

relevant inquiry is on --

3

THE COURT: Yeah.

4

MR. DEVANEY: -- those affected by the law.

5

THE COURT: Well, but almost all of those cases that

6

I'm aware of, and you can disabuse me if there's some case

7

particularly you don't think this is true, but it's looking at

8

the impact of the law as passed on a group of individuals, and

9

this is not such a law. This is a requirement of a witnessing,

10

which because of the specific circumstances of COVID-19 is now

11

having a disproportionate impact, and I'm not sure you're right

12

that the laws become unconstitutional as a whole simply because

13

of unforeseen events by the legislature they may have a

14

disproportionate impact on certain individuals. And if there's

15

a case that holds that, I'd be happy to look at it.

16

MR. DEVANEY: Okay, Your Honor. Well, I just would

17

point the Court to page 6 of our reply brief which --

18

THE COURT: And -- yeah, I'm familiar with those cases,

19

but I understand the argument.

20

Anything else that you want to add?

21

MR. DEVANEY: No. Thank you, Your Honor.

22

THE COURT: All right. And did either of the other

23

plaintiffs' counsel want to be heard?

24

MR. SHERMAN: Your Honor, Jon Sherman here. Would you

25

entertain just a small point regarding any potential remedy?

139

1

It's not rebuttal, but I'm asking.

2

THE COURT: I'm inclined to say no because you should

3

have raised it already, but I'm going to give you one minute.

4

MR. SHERMAN: Thank you, Your Honor. I just wanted to

5

suggest, because we went quickly through this point, that

6

hundreds of ballots have already been cast, so if Your Honor is

7

inclined to craft any remedy directed at our claim, that we'd

8

just respectfully request that it cover folks who have already

9

submitted their ballots and outline some procedure that they

10

could follow as well.

11

THE COURT: I've lost you. So for people who have

12

successfully cast ballots --

13

MR. SHERMAN: Sorry, who have cast ballots without a

14

witness signature. If you look at the declaration from Neil

15

Albrecht, there are about -- there are over 400 ballots that

16

have already been submitted --

17

THE COURT: And how different is that from any other

18

election?

19

MR. SHERMAN: I don't know the answer to that, Your

20

Honor, but we --

21

THE COURT: And I don't know either, and absent some

22

evidence that that's not just typical of absentee voters missing

23

a requirement, I am not going to make this retroactive.

24

MR. SHERMAN: Understood.

25

THE COURT: And I'm not aware of anything in the record

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1

that says that.

2

Anything else?

3

MR. SHERMAN: No, Your Honor. Thank you.

4

THE COURT: All right. Thank you.

5

Thank you, all. I do want to say I realize this has been a

6

difficult process for everyone involved, especially working

7

remote. I am --

8

Sorry. I want to make sure I'm seeing everyone.

9

I am aware of the challenges that were faced by all counsel

10

and certainly by the commissioners and Ms. Wolfe and the people

11

working with her, and I'm even more aware of the burden that's

12

being placed on individual poll workers and ultimately, unless I

13

change my mind, on voters on election day and those who are

14

facing the difficult challenge of accomplishing successful

15

absentee voting. I'm not taking any of that lightly, and I will

16

endeavor to get a decision out as soon as possible so that

17

whatever steps can be taken consistent with the law occur.

18

Thank you again for your time and patience with me and my

19

questions. We are off the record.

20

(Proceedings concluded at 4:56 p.m.)

21

***

22

23

24

25

141

1

I, JENNIFER L. DOBBRATZ, Certified Realtime and Merit

2

Reporter in and for the State of Wisconsin, certify that the

3

foregoing is a true and accurate record of the proceedings held

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on the 1st day of April, 2020, before the Honorable

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William M. Conley, U.S. District Judge for the Western District

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of Wisconsin, in my presence and reduced to writing in

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accordance with my stenographic notes made at said time and

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place.

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Dated this 3rd day of April, 2020.

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15

/s/ Jennifer L. Dobbratz

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Jennifer L. Dobbratz, RMR, CRR, CRC

Federal Court Reporter

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The foregoing certification of this transcript does not apply to

any reproduction of the same by any means unless under the

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direct control and/or direction of the certifying reporter.

No. 19A1016
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

Marc E. Elias Counsel of Record
John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com J.Devaney@perkinscoie.com BSpiva@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Charles J. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin

DECLARATION OF NEIL ALBRECHT IN SUPPORT OF PLAINTIFFS-APPELLEES OPPOSITION TO MOVANTS’ EMERGENCY
STAY I, Neil Albrecht, make this declaration in support of Plaintiffs’ Opposition to Movants’ Emergency Stay. 1. I am the Executive Director for the City of Milwaukee Election Commission. I have been the Executive Director since 2012. Prior to that, I was the Deputy Director of the City Election Commission, a position I held since 2005. In this position, I oversee all aspects of local election management. The election-related responsibilities of my office include providing absentee ballots to voters and receiving and processing completed absentee ballots. Our office is currently in the process of sending and receiving absentee ballots for the Spring Election scheduled for April 7 (“Spring Election”). 2. The COVID-19 pandemic that is spreading across the world is having direct and severe consequences for the Spring Election. The epidemic has led to declarations of emergencies by the national, state, and local governments. On March 25, 2020, a new “Safer At Home Order” from Wisconsin Governor Tony Evers took effect, which orders “All individuals present within the State of Wisconsin . . . to stay at home or at their place of residence . . . .” With limited exceptions, the Order requires individuals in the Wisconsin to stay at home through April 24, 2020. Anyone who violates the Order is potentially subject to 30 days imprisonment or a fine up to $250. 3. There are approximately 294,000 registered voters in Milwaukee. The public health crisis and the fear of contracting COVID-19 has led to an unprecedented
-1-

number of requests for absentee ballots. Based on my experience, we are experiencing approximately ten times the normal volume of by-mail voting for a spring election.
4. As of April 5, there have been 94,256 absentee ballot requests and we have sent out 92,108 to voters. As of today, we have a backlog of approximately 2,148 absentee ballot requests, plus approximately 500 requests for reissuing ballots that were not received.
5. As of April 4, we have sent out 92,108 absentee ballots to voters and only 31,674 had been returned.
6. Based on my experience and given the delays in U.S. mail delivery during the COVID-19 crisis, there is an unusually large but indeterminate number of the voters who have been mailed absentee ballots but have still yet to receive their absentee ballots at home. Plus, thousands of voters will either: a) receive their ballots only one or two days prior to April 7th and even if they promptly return those ballots via U.S. mail, the Clerk’s office will not receive them prior to Election Day; or b) only receive their absentee ballots on or after Election Day. This means that scores of thousands of voters in Milwaukee will be unable to return those ballots until after April 7, even if they were attempting to comply with the previous April 7 deadline for the return of absentee ballots.
7. According to recent court decisions, including Judge Conley’s Order and that of the 7th Circuit Court of Appeals, if a voter receives an absentee ballot after Election Day, that voter can still cast his or her ballot as long as it is received by 4 pm on April 13. This is a deadline that has been included in instructions provided to
-2-

absentee voters (as of the date of the court ruling) and that has been frequently communicated to the media and the public. Based upon my experience and our efforts to efficiently process the unprecedented number of absentee ballot requests, scores of thousands of voters will either not receive their ballots prior to April 7 much less be able to return their ballots to my office prior to April 7. These scores of thousands of voters will have no opportunity to have their absentee ballots in my office on Election Day or earlier.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury, under the laws of the United States, that the foregoing is true and correct to the best of my knowledge.
Dated this 5th day of April, 2020. s/ Neil Albrecht
-3-

No. 19A1016
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

Marc E. Elias Counsel of Record John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com J.Devaney@perkinscoie.com BSpiva@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Charles J. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin

DECLARATION OF MARIBETH WITZEL-BEHL IN SUPPORT OF PLAINTIFFS-APPELLEES OPPOSITION TO MOVANTS’ EMERGENCY
STAY I, Maribeth Witzel-Behl, make this declaration in support of Plaintiffs’ Opposition to Movants’ Emergency Stay. 1. I am the City Clerk for the City of Madison, Wisconsin. As the City Clerk, I am charged with the statutory duty of running elections in the City of Madison, pursuant to chapters 5-11 of the Wisconsin Statutes, and related laws. I submitted a declaration in this case in the district court on March 18, 2020. I am submitting this declaration to update the information that I provided previously. 2. The election-related responsibilities of the Madison City Clerk’s Office include providing absentee ballots to voters and receiving and processing completed absentee ballots. Our office is currently in the process of sending absentee ballots for the spring election scheduled for April 7 (“Spring Election”). 3. The City of Madison has an approximate total population of 255,650 residents (213,725 of voting age) and approximately 179,648 registered voters. The health emergency and the fear of contracting COVID-19 has led to an unprecedented number of requests for absentee ballots. As of the morning of April 5, the Clerk’s office has issued 87,323 absentee ballots. We have received 46,902 of them, or 53.7%. This percentage is significantly lower than in past years. In April 2016, for example, we issued 11,126 absentee ballots, of which 10,272 (92.3%) were returned to be counted. 4. Based on my experience and the number of outstanding absent ballot requests, and given the delays in U.S. mail delivery during the COVID-19 crisis, a large number of voters have still yet to receive their absentee ballots at their address.
-1-

We have issued 38,569 absentee ballots that have a high probability of being returned after Election Day, either because they arrive to the voter after Election Day or because we do not receive them until after Election Day. The Wisconsin Election Commission estimates that it is taking the U.S. Postal Service a week to deliver absentee ballots and we have taken calls from Madison voters whose ballots took one week to reach their Madison address through the mail.
5. On Saturday, April 4, we issued 523 absentee ballots; on Friday, April 3, we issued 3,723 absentee ballots; on Thursday, April 2, we issued 2,751 absentee ballots; and, on Wednesday, April 1, we issued 2,587 absentee ballots. I anticipate that most, if not all, of these 9,584 ballots will not arrive to the requesting voter until after April 7. In addition, thousands of voters will receive their ballots either on Election Day or only one or two days before Election Day. On March 31, we issued 4,719 absentee ballots, 2,898 on March 30, and 2,306 on March 29. Even assuming these voters get their absentee ballots on or before April 7, if they promptly return those ballots via U.S. mail, the Clerk’s office will not receive them until after Election Day. Meanwhile, thousands of remaining voters, as mentioned, will only receive their absentee ballots on or after Election Day. We are informing voters that even if they receive ballots after April 7, their vote will count so long as we receive them by 4 PM on April 13. This guidance conforms with recent court decisions.
6. Additionally, we have mailed over 500 absentee ballots overseas. We have heard from numerous voters that they cannot send their absentee ballots because mail from their origin country to the United States has been suspended. For
-2-

example, we recently received an email from a voter who lives in the United Arab Emirates who, along with approximately 30 co-workers, cannot mail their ballots because mail from the UAE to the U.S. has been halted.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury, under the laws of the United States, that the foregoing is true and correct to the best of my knowledge.
Dated this 5th day of April, 2020. s/ Maribeth Witzel-Behl
-3-

No. 19A1016
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________

REPUBLICAN NATIONAL COMMITTEE, ET AL.

Applicants, v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

___________________________

Respondents.

THE WISCONSIN STATE LEGISLATURE, v.

Applicants,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

Respondents.

SEVENTH CIRCUIT CASE NOS. 20-1538 AND 20-1539 ___________________________

DIRECTED TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT ___________________________

Marc E. Elias Counsel of Record John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth Street, N.W. Ste. 800 Washington, D.C. 20005 (202) 654-6200 MElias@perkinscoie.com J.Devaney@perkinscoie.com BSpiva@perkinscoie.com ACallais@perkinscoie.com ZNewkirk@perkinscoie.com

Charles J. Curtis, Jr. Sopen B. Shah PERKINS COIE LLP One East Main Street, Suite 201 Madison, WI 53703 (608) 663-7460 CCurtis@perkinscoie.com SShah@perkinscoie.com

Counsel for Respondents Democratic National Committee and Democratic Party of Wisconsin

DECLARATION OF KRIS TESKE IN SUPPORT OF PLAINTIFFS-APPELLEES OPPOSITION TO MOVANTS’ EMERGENCY
STAY I, Kris Teske, make this declaration in support of Plaintiffs’ Opposition to Movants’ Emergency Stay. 1. I am the City Clerk for the City of Green Bay. I have been the Clerk since 2012. In this position, I oversee all aspects of local election management. The election-related responsibilities of my office include providing absentee ballots to voters and receiving and processing completed absentee ballots. Our office is currently in the process of sending and receiving absentee ballots for the Spring Election scheduled for April 7 (“Spring Election”). 2. There are approximately 52,230 registered voters in Green Bay. The public health crisis and the fear of contracting COVID-19 has led to an unprecedented number of requests for absentee ballots. Based on my experience, we are experiencing approximately six times the normal volume of by-mail voting for a spring election. 3. As of April 5, there have been approximately 17,000 absentee ballot requests and we have sent out approximately 13,000 to voters. As of today, we have a backlog of approximately 4,000 absentee ballot requests. 4. According to recent court decisions, including Judge Conley’s Order and that of the 7th Circuit Court of Appeals, if a voter receives an absentee ballot after Election Day, that voter can still cast his or her ballot as long as it is received by 4 pm on April 13. This is a deadline we have been letting voters know about and has been publicized in the local media. 5. For the approximately 4,000 voters whose absentee ballot requests have
-1-

not been processed yet by my office, it will be very difficult, if not impossible for those ballots to be returned by the 7th.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury, under the laws of the United States, that the foregoing is true and correct to the best of my knowledge.
Dated this 5th day of April, 2020. s/ Kris Teske
-2-

SUPREME COURT OF THE UNITED STATES

DEMOCRATIC NATIONAL COMMITTEE ANd DEMOCRATIC PARTY OF WISCONSIN,

No. 1941016

Plaintiff s-Appellees,
V
REPUBLICAN NATIONAL COMMITTEE, Ct
?.l.,
Def endant-IntervenorAppellants.

DECLARATION OF TARA COOLIDGE IN SUPPORT OF PLAINTIFFS-APPELLEES OPPOSITION TO MOVANTS' EMERGENCY STAY
Tara Coolidge declares as follows:
1. I am an adult resident of the State of Wisconsin. I make this affidavit in support
of Plaintiffs-Appellees Opposition to Movants' Emergency Stay. \tVhile various parties to this action are partisan political entities, the City of Racine, Wisconsin, is a nonpartisan municipal government. I am a statutory officer of the City of Racine. Nothing in this Declaration should be interpreted as taking position from a partisan political perspective.
2. I have personal knowledge of the matters set forth herein, and, if called as a
witness, I could and would testify competently as to the truth of such matters.
3. I am the City Clerk for the City of Racine, Wisconsin. In this capacity, I am
responsible for conducting elections within the City of Racine, pursuant to

Chapters 5 through 11 of the Wisconsin Statutes, as well as related statutes and regulations, and City of Racine ordinances.
4. Racine is the fifth-largest city in the State of Wisconsin. It is situated on the
western shore of Lake Michigan, in southeastern Wisconsin, between Milwaukee and the Illinois state line. As of the 2010 United States census, Racine had a population of 78,860, approximately 56,852 of whom were of voting age. The population of Racine is similar to that level today. (A1l demographic data herein,
https:/ / factfinder.census.gov/ f.acesf nav /jsf /pages/community_facts.xhtml, accessed March 31,2020.) Racine is one of the most ethnically diverse cites in
Wisconsin. Approximately 23% of its residents are African-American, and approximately 2L% of Racine residents are Hispanic/Latino. Approximately 20% of Racine residents live below the poverty level. Approximately 32% of AfricanAmerican Racine residents and,27%of Hispanic/Latino Racine residents live in poverty.
5. On March 18,2020, Racine Mayor Cory Mason formally proclaimed that a state
of emergency existed in the City of Racine, pursuant to his authority as mayor under Wisconsin Statutes section 323.11and323.14(4) and Racine Ordinance
section 34-1. Such declaration of emergency shall expire at11:59 P.M., Apfil2},
2020,un1ess extended by the Mayor or the Common Council of the City of
Racine.
6. As City Clerk, my responsibilities respecting elections in the City of Racine
include, but are not limited to, providing absentee ballots to voters; conducting

in-person, early absentee voting; receiving and processing completbd absentee ballots; and overseeing in-person voting on election day in all City wards.
.7 The election to be held on Tuesday, April 7,2020 ("Spring Election") includes
Republican and Democratic Presidential Primaries. However, every other office or measure on every ballot, including municipal elective offices and the Wisconsin Supreme Court electiory is nonpartisan.
8. Regarding the Spring Election, my office continues to struggle with the effects of,
and the City of Racine's crucial response to, the coronavirus pandemic. My office has been extremely burdened with processing the record number of absentee ballot requests that we have received.
9. The deadline for requesting absentee ballots had been Thursday, April 2,2020.
This was extended to Friday, April 3,2020, by order of the United States District Court for the Western District of Wisconsin. Of the City of Racine's more than 34,000 registered voters, we typically receive absentee ballot requests form approximately 1,500 voters. As of the end of the day, Friday, April 3,2020, rny office had received11,087 absentee ballot requests. On Friday, April3, aloneonly four days before the election-my office received approximately 385
absentee ballots requests.
10. My office is fulfilling absentee ballot requests as fast as possible. Much of my staff along with additional City employees has been dedicated to that task.
Flowever, because of the extraordinary number of absentee ballot requests we have received, this has been overwhelming. The City Clerk's Office is required to

respond to send an absentee ballot to an elector within 48 hours of receiving the request for a ballot. Because of the extraordinary dedication shown by Racine employees, we have generally done well meeting that timeline, but it has been difficult. 11. We make multiple runs to the post office each day to send absentee ballots. Many hundreds of absentee ballots have been mailed to electors each day through and including, Saturday, April 5,2020. There are still more than 100 ballots that we were unable to take to the post office before now. They will be mailed out on Monday, April 6,2020. 12.It is unreasonable to expect that absentee ballots sent by mail to electors within the last several days will be delivered to the electors and then returned by mail or otherwise to my office by April 7, 2020.In my experience, it can take as much as one week after posting for mail to be delivered from one address in Racine to another'address in Racine. I understand this is because mail from Racine is transported to Milwaukee to be sorted and processed before being delivered to an address in Racine. Maii-delivery times for absentee ballots have increased in recent weeks, which I attribute to the volume of requests received and understandable fears due to the CovID-19 public health emergency. 13. The City has 14 polling locations on Election Day, all with two to four wards voting at them. They are held in schools, community centers, and churches. Each polling location requires an election chief, a greeter, and three election officials (together, "poll workers") to staff each ward. In a lower-turnout election, we

need approximately 135 poll workers, at minimum, to run the election effectively and to comply with the law. Based upon the anticipated voter turnout, I witl need 180 to 200 poll workers comfortably to staff the April 7, 2020 election. 14. Of the 135 poll workers that we used in the February 2020 prirnary election, fewer than 25 of them were under the age of 60. I am concerned there will not be sufficient numbers of lower-risk poll workers available on April 7,2020. Even before the Wisconsin Department of Health Services' "Safer at Flome" Executive Order #12, we were losing poll workers. Many of the chief election officials previously scheduled to work have notified me that they have chosen to work
the polls on April 7,2020.I have been concerned we will not be able to fully staff
our election locations 15. As the City of Racine's difficulty in obtaining poll workers has been publicized,
the number of absentee voter requests has increased. With the number of absentee ballot requests so-greatly increased, it has become clear we will not receive all absentee ballots back from electors desiring to cast a vote by 8:00 P.M., Tuesday, April 7,2020. This led me and others within the City of Racine government to be concerned that large numbers of Racine voters would effectively be disenJranchised for no other reason than the unique moment in which we exist, specifically due to the fears of and responses to the COVID-19 public health emergency 16. Within the City of Racine goverrunent, we were pleased that the United States District Court for the Western Diskict of Wisconsin issued an order allowing us

to accept absentee ballots through 4:00 P.M., Monday, April 13,2020, in order to assure all voters'ballots are received. 17. As of this writing, at about 10:00 A.M. CDT, Sunday, April 5,2020, my office has 5,338 absentee ballots returned from electors. Therefore, of the more than 11,000
absentee ballots sent, there are more than 5,700 yet to be received,
Pursuant to 28 U.S.C. 51746,I declare under penalty of perjury, under the laws of the United States, that the foregoing is true and correct to the best of my knowledge.
Dated this 5th day of Aprll,2020
Tara Coolidge

 
 No. 19A1016 U.S. Supreme Court
Republican National Committee v. Democratic National Committee
Decided Apr 6, 2020
No. 19A1016
04-06-2020
REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL.
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. ON APPLICATION FOR STAY PER CURIAM.
The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted. The District Court's order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020.
Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary 2 injunction motions, the plaintiffs did not ask that the District *2 Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court's precedents and erred by ordering such relief. This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. ___ (2014).
1

Republican National Committee v. Democratic National C... No. 19A1016 (U.S. Apr. 6, 2020)
The unusual nature of the District Court's order allowing ballots to be mailed and postmarked after election day is perhaps best demonstrated by the fact that the District Court had to issue a subsequent order enjoining the public release of any election results for six days after election day. In doing so, the District Court in essence enjoined nonparties to this lawsuit. It is highly questionable, moreover, that this attempt to suppress disclosure of the election results for six days after election day would work. And if any information were released during that time, that would gravely affect the integrity of the election process. The District Court's order suppressing 3 disclosure of election results showcases the unusual nature of the District Court's order *3 allowing absentee ballots mailed and postmarked after election day to be counted. And all of that further underscores the wisdom of the Purcell principle, which seeks to avoid this kind of judicially created confusion.
The dissent is quite wrong on several points. First, the dissent entirely disregards the critical point that the plaintiffs themselves did not ask for this additional relief in their preliminary injunction motions. Second, the dissent contends that this Court should not intervene at this late date. The Court would prefer not to do so, but when a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error. Third, the dissent refers to voters who have not yet received their absentee ballots. But even in an ordinary election, voters who request an absentee ballot at the deadline for requesting ballots (which was this past Friday in this case) will usually receive their ballots on the day before or day of the election, which in this case would be today or tomorrow. The plaintiffs put forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots. In that regard, it bears mention that absentee voting has been underway for many weeks, and 1.2 million Wisconsin voters have requested and have been sent their absentee ballots, which is about five times the number of absentee ballots requested in the 2016 spring election. Fourth, the dissent's rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was 4 designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count. That *4 is the relief that the plaintiffs actually requested in their preliminary injunction motions. The District Court on its own ordered yet an additional extension, which would allow voters to mail their ballots after election day, which is extraordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional days after the election.
Therefore, subject to any further alterations that the State may make to state law, in order to be counted in this election a voter's absentee ballot must be either (i) postmarked by election day, April 7, 2020, and received by April 13, 2020, at 4:00 p.m., or (ii) hand-delivered as provided under state law by April 7, 2020, at 8:00 p.m.
The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate. That point cannot be stressed enough.
The stay is granted pending final disposition of the appeal by the United States Court of Appeals for the Seventh Circuit and the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
5 It is so ordered. *5 GINSBURG, J., dissenting JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
2

Republican National Committee v. Democratic National C... No. 19A1016 (U.S. Apr. 6, 2020)
The District Court, acting in view of the dramatically evolving COVID-19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin's spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court's disposition, which the Seventh Circuit allowed to stand.
I A
Wisconsin's spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions. Democratic National Committee v. Bostelmann, ___ F. Supp. 3d ___, ___, 2020 WL 1638374, *3 (WD Wis., Apr. 2, 2020).
In the weeks leading up to the election, the COVID-19 pandemic has become a "public health crisis." Id., at ___, 2020 WL 1638374, *1. As of April 2, Wisconsin had 1,550 confirmed cases of COVID-19 and 24 deaths 6 attributable to the disease, "with evidence of increasing community *6 spread." Id., at ___, 2020 WL 1638374, *3. On March 24, the Governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Ibid.
Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. Id., at ___, 2020 WL 1638374, *4. About one million more voters have requested absentee ballots in this election than in 2016. Ibid. Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters. Id., at ___-___, 2020 WL 1638374, *4*5.
B
Several weeks ago, plaintiffs—comprising individual Wisconsin voters, community organizations, and the state and national Democratic parties—filed three lawsuits against members of the Wisconsin Elections Commission in the United States District Court for the Western District of Wisconsin.1 The District Court consolidated the suits on March 28. The plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID-19 pandemic on the upcoming election.
1 The state and national Republican parties intervened as defendants. The District Court denied intervention by the state legislature, which the Seventh Circuit later allowed.
After holding an evidentiary hearing, the District Court issued a preliminary injunction on April 2. As relevant here, the court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens' right to vote. See Burdick v. Takushi, 504 U. S. 428, 434 (1992); Anderson v. Celebrezze, 460 U. S. 780, 789 (1983). To alleviate that burden, the court entered a twofold remedy. First, the District Court 7 extended the deadline for voters to request absentee ballots from April 2 to April *7 3. Second, the District Court extended the deadline for election officials to receive completed absentee ballots. Previously, Wisconsin law required that absentee ballots be received by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Commission and election inspectors from releasing any report of polling results before the new absentee-voting deadline, April 13.
3

Republican National Committee v. Democratic National C... No. 19A1016 (U.S. Apr. 6, 2020)
Although the members of the Wisconsin Elections Commission did not challenge the preliminary injunction, the intervening defendants applied to the Seventh Circuit for a partial stay. Of the twofold remedy just described, the stay applicants challenged only the second aspect, the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee-ballot deadline. The same applicants then sought a partial stay in this Court, which the Court today grants.
II A
The Court's order requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow— even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13. Neither of those deadlines carried a postmark-by requirement.
While I do not doubt the good faith of my colleagues, the Court's order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court's postmark deadline. 8 Rising concern about the COVID-19 pandemic has caused a late surge in absentee- *8 ballot requests. ___ F. Supp. 3d, at ___-___, 2020 WL 1638374, *4-*5. The Court's suggestion that the current situation is not "substantially different" from "an ordinary election" boggles the mind. Ante, at 3. Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate.2 The surge in absentee-ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. ___ F. Supp. 3d, at ___, ___, ___-___, ___-___, 2020 WL 1638374, *1, *5, *9-*10, *17-*18. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out.3 It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemic-induced mail delays. Id., at ___, 2020 WL 1638374, *5. It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain.4 Under the District Court's order, an absentee 9 voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election *9 officials by April 13. Now, under this Court's order, tens of thousands of absentee voters, unlikely to receive their ballots in time to cast them, will be left quite literally without a vote.
2 See Wisconsin Elections Commission, Absentee Ballot Report, Apr. 2, 2020, https://elections.wi.gov/node/6806; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 3, 2020, https://elections.wi.gov/node/6808; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 4, 2020, https://elections.wi.gov/node/6814; Wisconsin Elections Commission, Absentee Ballot Report, Apr. 5, 2020, https://elections.wi.gov/node/6815.
3 See Wisconsin Elections Commission, Absentee Ballot Report, Apr. 5, 2020, https://elections.wi.gov/index.php/node/6815.
4 See, e.g., Tr. 18-19 (Apr. 1, 2020) (testimony that mail delivery "can take up to a week" or longer, threatening "the opportunity for the voter to receive [the absentee] ballot by mail"); id., at 35 (testimony that the "transaction time from the time the clerk puts [an absentee ballot] in the mail to the voter receiving it could take up to a week"); id., at 40 (testimony agreeing that "there will be some people who request . . . [an] absentee ballot [on April 2] who will not be receiving it in time to put it in the mail by April 7th"); Brief for City of Green Bay as Amicus Curiae in No. 3:20-cv00249 (WD Wis.), p. 5 ("[D]elays at the post office are . . . affecting the speed with which voters receive their ballots . . . .").
4

Republican National Committee v. Democratic National C... No. 19A1016 (U.S. Apr. 6, 2020)
This Court's intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4-5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court's deadline. For this Court to upend the process—a day before the April 7 postmark deadline—is sure to confound election officials and voters.
B
What concerns could justify consequences so grave? The Court's order first suggests a problem of forfeiture, noting that the plaintiffs' written preliminary-injunction motions did not ask that ballots postmarked after April 7 be counted. But unheeded by the Court, although initially silent, the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots. See Tr. 102-103 (Apr. 1, 2020).
Second, the Court's order cites Purcell, apparently skeptical of the District Court's intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court's intervention today—even closer to the election—is all the more inappropriate.
Third, the Court notes that the District Court's order allowed absentee voters to cast ballots after election day. If a voter already in line by the poll's closing time can still vote, why should Wisconsin's absentee voters, already 10 in line to receive ballots, be denied the franchise? According to the *10 stay applicants, election-distorting gamesmanship might occur if ballots could be cast after initial results are published. But obviating that harm, the District Court enjoined the publication of election results before April 13, the deadline for returning absentee ballots, and the Wisconsin Elections Commission directed election officials not to publish results before that date.5
5 Memorandum from M. Wolfe, Administrator of the Wisconsin Elections Commission, to Wisconsin Municipal Clerks et al. (Apr. 3, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/202004/Clerk%20comm%20re.%20court%20decisions%204.3.pdf. --------
The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.
* * *
The majority of this Court declares that this case presents a "narrow, technical question." Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court's order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority's stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others' safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin's citizens, the integrity of the State's election process, and in this most extraordinary time, the health of the Nation.
5

 
 No. 19A1016
In the Supreme Court of the United States
REPUBLICAN NATIONAL COMMITTEE, ET AL. APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

THE WISCONSIN STATE LEGISLATURE, APPLICANTS, v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.

REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY

To the Honorable Brett M. Kavanaugh Associate Justice of the Supreme Court of the United States and
Circuit Justice for the Seventh Circuit

MISHA TSEYTLIN KEVIN M. LEROY Troutman Sanders LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 Counsel for Wisconsin Legislature in 3:20-cv-249, -278, -284
ERIC M. MCLEOD HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819
Counsel for Wisconsin Legislature in 3:20-cv-249

PATRICK STRAWBRIDGE Counsel of Record Consovoy McCarthy PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com
Counsel for Republican National Committee et al.
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street Suite 800 Madison, WI 53703 Counsel for Wisconsin Legislature in 3:20-cv-284

TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT:
Respondents do not deny that the order below permits any absentee voter to cast their ballot up to six days after election day, that this change to Wisconsin election law was imposed by the district court five days before the election, or that states have a legitimate interest in imposing voting deadlines to permit the orderly administration of their elections and to protect election integrity. Instead, they mischaracterize the record below, the reach of the district court’s amended injunction, and this Court’s decision in Purcell. A partial stay is warranted.
1. Respondents’ assertion that they fairly raised the extraordinary request for post-election-day voting before the district court is refuted by their own filings. They cannot identify any sentence in their voluminous briefing below—including their four motions for preliminary injunctions/TROs—that sought this relief. Instead, they point to two fleeting suggestions to the court to “not worry about the postmark” made by counsel during closing arguments after the evidentiary hearing. Resp. Br. 8–10. That cursory reference, first made after briefing and the close of evidence, is plainly insufficient to fairly present it to the court, let alone for adversarial process. See Sorrell v. IMS Health Inc., 564 U.S. 552, 563 (2011) (collecting cases); Philbrook v. Glodgett, 421 U.S. 707, 712 n.8 (1975) (district court was “unable” to consider an argument “raised . . . for the first time, at oral argument”).
And because Respondents did not fairly raise this issue below, they are forced to mischaracterize the record actually before the district court. Respondents suggest that the Administrator of the Wisconsin Elections Commission (WEC) testified that

mail delivery was taking a full week in Wisconsin because of the pandemic. Resp. Br. 9–10. In fact, she testified that mailing “usually” takes “about two days,” Resp. App. 18–19, and that she had not been informed as to any “change” in the speed of postal delivery under current conditions. Resp. App. 84. Although she acknowledged that the postal service had advised that mail can take “up to a week,” that was a statement about what typically happens in any election. Resp. App. 19.
Respondents’ other cited evidence from below does not support any conclusion about mail delays or absentee-ballot processing delays preventing voters from receiving ballots before election day.1 It consists only of (1) two declarants merely worrying about the speed of mail service, based entirely upon subjective feelings or “local media reports,” D. Ct. Doc. 75 ¶ 6; accord D. Ct. Doc. 72 ¶ 6–7; (2) one declarant discussing how many absentee ballots one city is expected to receive after April 7, not how many would be mailed after April 7, D. Ct. Doc. 77 ¶ 13; and (3) one declarant who heard that the post office was “operating more slowly.” D. Ct. Doc. 106, ¶ 11. None of this could justify the extraordinary relief granted below.2
1 Respondents’ newly submitted evidence to this Court has not been subject to crossexamination, relies on hearsay and speculation about an “indeterminate number of the voters who have been mailed absentee ballots but have still yet to receive their absentee ballots at home.” Resp. App. Ex. 2 ¶ 6; accord Resp. App. Ex. 3 ¶ 5; Resp. App. Ex. 5 ¶ 12. That is too weak a peg to support the claim that “tens of thousands of voters” will “probably” not receive ballots in time to vote and mail (or otherwise deliver) them on Tuesday. Resp. 12. It also cannot justify the district court’s facial remedy for all absentee voters. See infra 3.
2 Respondents’ argument also proves too much. If mail actually is taking a full week, then any ballots mailed by voters after election day won’t arrive at the clerks’ office by the district court’s April 13 ballot-receipt deadline (which no one is seeking to stay).
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2. Respondents do not even attempt to explain how the district court’s facial remedy, which permits anyone to vote after election day, is consistent with this Court’s remedies caselaw. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 202–03 (2008) (controlling opinion of Stevens, J.). Even assuming Respondents are correct that some voters will miss the election day voting deadline by no fault of their own, but see supra 2–3, they would be limited, at most, to seeking as-applied relief for these faultless voters. Respondents never sought as-applied relief, and the district court’s order allows anyone to vote after election day, even those who have had their absentee ballots in hand for days or weeks.
Turning to the Anderson/Burdick analysis itself, Respondents failed to submit evidence of burdens on voters caused by the standard prohibition of post-election day voting. See supra 1–2. As for the countervailing state interest, Respondents ask this Court to embrace the incredible proposition that a State has no sovereign interest in having a date-certain election day, after which no more votes can be cast. Resp. Br. 12–13. But Applicants have explained that having a voting deadline is core to the State’s ability to determine when its election will end, to maintain orderly election administration and to instill public confidence in the process. Application 14–16.
Respondents ignore these vital sovereign interests, and, instead, focus narrowly on the possibility that election-day results will leak, which is but one reason that a date-certain election is so important. Respondents claim that the district court’s amended injunction solved this problem, claiming to have identified certain “exceptions” to the “general rule against binding nonparties.” Resp. Br. 13–14. This
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misses the mark. The WEC can investigate misdeeds by clerks, but this gives the WEC no more “control” over those clerks than a prosecutor has over citizens within her jurisdiction. Respondents’ citation of the provision authorizing the WEC to “administ[er]” election laws does not help them, Resp. Br. 14, as that statute does not empower the WEC to give direct orders to municipal clerks, except in limited, inapposite circumstances. See, e.g., Wis. Stat. § 5.05(15) (“The commission shall require all municipalities to use [an official registration] list . . . .”). And Respondents cite no authority for their ipse dixit claim that municipal clerks are at least “identified with” the WEC “in interest” or “represented by them.” Resp. Br. 14.
In any event, Respondents’ assertion that the district court’s gag-order stops municipal clerks from publicly announcing election results before all absentee ballots are cast simply misreads the order. Resp. Br. 13–14. The district court’s order enjoins only “inspectors” from “releasing” results. Application 6. But inspectors in Wisconsin do not “release” results; they “report the returns of the election to the municipal clerk,” who “shall then make the returns public.” Wis. Stat. § 7.51(4)(b) (emphases added). The district court’s order does not apply to municipal clerks. To the extent this was an oversight, it illustrates the danger in federal courts’ attempting to change the rules of an ongoing election and issuing relief never subjected to adversarial testing.
3. Relying primarily on a law review article, Respondents wrongly contend that the “Purcell principle cuts strongly against applicants’ requested relief.” Resp. 16–17. That is not true. This Court—and many courts since—have recognized that
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the risk that “[c]ourt orders affecting elections” might “result in voter confusion and consequent incentive to remain away from the polls” only increases “[a]s an election draws closer[.]” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). See Application 9–12.
Respondents suggest that Purcell shouldn’t apply because of the difficulties posed by COVID-19. Resp. 17–18. But that is a point in Applicants’ favor. As the Seventh Circuit recognized elsewhere in its decision below, “[i]t is best to leave these decisions and any more particular prescriptions to the [WEC], as it is better positioned to know what additional alternative suggestions are able to accommodate the many intersecting interests in play in the present circumstances.” App. 4.3 Nothing in Purcell suggests that the voter confusion attendant in last-minute judicial orders is lessened in times of unprecedented challenges.
Finally, Respondents contend that Purcell somehow inhibits appellate review. Resp. 17–18. That is an attempt not to apply the Purcell principle, but to vitiate it. This Court certainly has not followed Respondents’ path. See, e.g., North Carolina v. League of Women Voters of N. Carolina, 574 U.S. 927 (2014) (staying district court order); Husted v. Ohio State Conference of N.A.A.C.P., 573 U.S. 988 (2014) (same).
CONCLUSION This Court should issue the requested partial stay.
3 Respondents assert that the WEC agrees with them. Resp. 3. But the district court opinion they cite noted only that the WEC “specifically averred that a receipt deadline of 4 p.m. on April 13, 2020” would be fine. App. 46 (emphasis added). In fact, the WEC stated that it did “not object to any absentee ballot postmarked by April 7[.]” App. 44 (emphasis added).
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Respectfully submitted,

MISHA TSEYTLIN KEVIN M. LEROY Troutman Sanders LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 Counsel for Wisconsin Legislature in 3:20-cv-249, -278, -284
ERIC M. MCLEOD HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819
Counsel for Wisconsin Legislature in 3:20-cv-249

____________________________ PATRICK STRAWBRIDGE Counsel of Record Consovoy McCarthy PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com
Counsel for Republican National Committee et al.
RYAN J. WALSH AMY MILLER EIMER STAHL LLP 10 East Doty Street Suite 800 Madison, WI 53703 Counsel for Wisconsin Legislature in 3:20-cv-284
April 2020

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 Case: 3:20-cv-00249-wmc Document #: 214 Filed: 06/02/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.

Case No. 20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

Case: 3:20-cv-00249-wmc Document #: 214 Filed: 06/02/20 Page 2 of 21

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs, v.

Case No. 20-cv-284-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

REPLY BRIEF OF PLAINTIFFS IN LEWIS, ET AL. v. KNUDSON, ET AL, 20-CV-284 ON ITS RULE 41(a)(2) MOTION TO DISMISS

INTRODUCTION The Lewis Plaintiffs have filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 41(a)(2). Dkt. 205.1 All parties agree that Lewis, et al. v. Knudson, et al., 20-CV-284 (“the Lewis case”) is moot, and that it should be dismissed. However, Defendants Wisconsin Elections Commission members and Administrator (“WEC”) (dkt. 209), the IntervenorDefendants – the Wisconsin Legislature (dkt. 210) and the Republican National Committee and Republican Party of Wisconsin (“RNC/RPW”) (dkt. 211) – submitted briefs opposing the Motion to Dismiss, arguing that the Lewis Plaintiffs should not be awarded costs, and should not be permitted to petition to recover their attorney’s fees,
1 Unless otherwise indicated, all citations in this Brief are to the docket in case number 20-cv-249-wmc (the “’249 case”). Where a docket citation is specifically to the docket in the Lewis case, the citation is to the “’284 case.”
2

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because they are not a “prevailing party.” The RNC/RPW also opposed the Lewis Plaintiffs’ request for dismissal unless the dismissal is entered with prejudice.
This reply brief will explain that the objections of the WEC, the Wisconsin Legislature, and the RNC/RPW are meritless, and why (as requested in the Motion to Dismiss) the Court should under Rule 41(a)(2) dismiss the Lewis case without prejudice, with costs, and with the Lewis Plaintiffs retaining their right to seek attorneys’ fees and expenses under 42 U.S.C. § 1988. As shown below: (a) the Lewis Plaintiffs succeeded on a significant issue which achieved a benefit to them and their members, as well as the general public; and (b) the dismissal of the Lewis case should be without prejudice because that is the default manner for dismissal under Rule 41(a)(2) and nothing supports a deviation from that approach. I. The Lewis Plaintiffs are a “prevailing party.”
A. A party is “prevailing” if it succeeded on a significant beneficial issue. The Lewis case presented civil rights claims under 42 U.S.C. § 1983. The United States Supreme Court has broadly defined as “prevailing parties” those civil rights plaintiffs who “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemore, 581 F.2d 275, 278-79 (1st Cir. 1978)); see also Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (affirming definition of “prevailing party” used in Nadeau v. Helgemore, 581 F.2d 275 and Hensley v. Eckerhart, 461 U.S. 424). It has consistently held that prevailing party status can be conferred in an interim fee award where “a party has prevailed on the merits of at least
3

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some of [its] claims.” Buckhannon Bd. & Care Home v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598, 605 (2001), citing Texas State Teachers Assn. v. Garland Independent Sch. Dist., 489 U.S. 782, 792 (1989). Although Buckhannon jettisoned what was known as the “catalyst rule,” the Court distinguished circumstances where defendants simply altered their conduct in the absence of a court order and held that prevailing party status hinged upon a “judicially sanctioned change in the legal relationship of the parties,” Buckhannon, 532 U.S. at 605, which is precisely what occurred here.
The WEC, Wisconsin Legislature, and RNC/RPW have separately argued that the Lewis Plaintiffs are not “prevailing parties” because: 1) the Lewis Plaintiffs did not request that the April 7 statutory deadline for receipt of absentee ballots be enjoined and extended; 2) the Court did not grant the Lewis Plaintiffs’ central request to postpone the April 7 in-person election; and 3) the Lewis Plaintiffs “won” nothing because the WEC offered to extend the deadline in a letter to the Court. As shown below, all these arguments fail.
B. The Lewis Plaintiffs explicitly and consistently requested an extension of the deadline for submission of absentee ballots.
Contrary to the WEC’s claims, each and every submission to the Court by the Lewis Plaintiffs sought, inter alia, an extension of the deadline for voters to submit absentee ballots, the precise remedy ordered by the Court. Their Complaint directly addressed the problem imposed by the 8 p.m. election day deadline for return of voters’ absentee ballots, statutorily mandated by Wisconsin Statutes Section 6.87, alleging the
4

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problems identified in various municipalities, and specifically alleging with respect to
the City of Madison that:
The circumstances described above makes the 8:00 p.m. election day deadline for receipt of absentee ballots completely unworkable. The combination of the volume of requests for absentee ballots, the everincreasing backlog the City has, and the fact that it now takes about a week to send voters an absentee ballot means that a very large number of absentee ballots from lawful voters will not arrive until after election day. The Clerk estimates that the City will receive more than 1,000 absentee ballots after 8:00 p.m. on April 7. Under the current law, all of those voters will be disenfranchised -- their votes won’t count.
‘284 case dkt. 1 ¶ 140.
Their Complaint further alleged that an extension of the 8:00 p.m. election day
deadline for receipt was essential to avoid disenfranchisement of voters:
[A]s absentee balloting becomes the only safe way to vote, Wisconsin voters are at a high risk of not receiving their ballots with sufficient time to mail it into the municipal clerk’s office so that it is received prior to the Election Day Receipt Deadline. This too will lead to disenfranchisement.
Id. ¶ 235.
The Complaint’s Prayer for Relief specifically asked the Court to declare “the
requirement that polling places receive absentee ballots by 8:00 p.m. on election day to
be counted, [Wis. Stat.] § 6.87, [] unconstitutional in violation of the First and Fourteenth
Amendments;” “[e]njoin[ ] Defendants…from rejecting ballots that are postmarked on
or before Election Day and arrive at the municipal clerk’s office by June 2, 2020” and
order “[d]efendants to establish Tuesday, June 2, 2020 as the deadline by which
municipal clerks must have counted all returned mailed absentee ballots.” ‘284 case dkt.
1 at 65-67, “Prayer for Relief,” ¶¶ B, H, L.
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While Defendants assert that the Lewis Plaintiffs’ TRO Motion focused
exclusively on postponing the in-person election, in fact, the Lewis Plaintiffs sought a
TRO specifically to enjoin the WEC Defendants from “enforcing the requirement that
polling places receive absentee ballots by 8:00 p.m. on Election Day to be counted
(“Election Day Receipt Deadline”), § 6.87.” ‘284 case dkt. 17 at 2. And in their
supporting Brief for the TRO Motion, the Lewis Plaintiffs likewise requested that the
“process for voter requests and submissions of mail-in absentee ballots be extended
beyond April 7.” ‘284 case dkt. 18 at 13. Contrary to Defendants’ argument, that request
was not conditional upon postponement of the in-person vote.
Finally, in their Statement of Record Facts in Support of Emergency Motion for
Temporary Restraining Order, describing the sworn testimony (in the form of
declarations) and other evidence submitted by them, the Lewis Plaintiffs identified the
serious problems of backlogs, shortages of supplies, and the likelihood that absentee
voters would not be able to return their ballots by April 7. With respect to the City of
Madison, the testimony stated that:
The circumstances described above makes the 8:00 p.m. election day deadline for receipt of absentee ballots completely unworkable. The combination of the volume of requests for absentee ballots, the everincreasing backlog the City has, and the fact that it now takes about a week to send voters an absentee ballot means that a very large number of absentee ballots from lawful voters will not arrive until after election day. The Clerk estimates that the City will receive more than 1,000 absentee ballots after 8:00 p.m. on April 7. Under the current law, all of those voters will be disenfranchised -- their votes won’t count.
The City also is beginning to receive calls from voters who are currently overseas and unable to return their absentee ballot via mail because the country in which they are located is no longer offering mail
6

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service due to COVID-19. The City Clerk’s Office contacted the Wisconsin Elections Commission about this issue and was informed that the only option for these voters is to return their ballot through the mail. The City has issued absentee ballots to over 500 voters who are currently overseas.
In addition to the above issues, the unprecedented requests for absentee voting is hampered at times by shortages of mailing labels and envelopes.
‘284 case dkt. 19 ¶¶ 110-112.
The Lewis Plaintiffs presented sworn testimony identifying similar problems in
Green Bay:
To address absentee ballot envelope shortages, the Commission directs clerks to be prepared to print their own…. Such a suggestion, however, fails to take into account staffing shortages caused by COVID-19 as well as the fact that current clerks’ staffs are already stretched too thinly while they attempt to process the overwhelming backlog created by unprecedented demand for absentee ballots. As of March 24, 2020, the City Clerk’s Office was handling a backlog of over 4,000 absentee ballots with six staff members, including staff from outside of the department.
The City Clerk’s Office does not have the resources to adequately handle all of the requests for absentee ballots plus these new directives from the Commission. Notably, the Clerk’s office is attempting to address the new directives in addition to its day-to-day duties, all of which have been assigned to other departments to the extent they can be at this time.
Id.¶¶ 116-117.
Suggesting that the Lewis Plaintiffs were focused solely on a postponement of the
in-person vote is a blatant mischaracterization of the actual record in this litigation. The
Lewis Plaintiffs consistently sought a broad range of relief, including extension of the
April 7 absentee ballot return deadline to ensure that thousands of eligible Wisconsin
voters were not disenfranchised due to the COVID-19 pandemic.
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C. The Court’s order to extend the statutory deadline for receipt of absentee ballots was a significant beneficial issue on which the Lewis Plaintiffs prevailed, warranting prevailing party status.
The Court’s Order to allow absentee ballots to be received by local clerks until 4 p.m. on April 13 was a significant remedial measure that enfranchised nearly eighty thousand otherwise-qualified voters. That the Court declined to grant the other remedies -- including postponement -- sought by the Lewis Plaintiffs does not diminish the profound importance of the Court’s remedial order.
Hensley, supra, establishes the principle that a party can acquire prevailing party status where it prevails on some, but not all, of its claims. Yet, the WEC now contends that the Lewis Plaintiffs are not entitled to prevailing party status because they did not prevail on their “principal issue,” dkt. 209 at 9, ignoring that, post-Hensley, the Supreme Court explicitly rejected a district court’s use of such a “central issue” test to determine prevailing party status, holding that plaintiffs must only succeed on a “significant issue.” Texas State Teachers v. Garland Indep. School Dist., 489 U.S. 782, 789 (1989) (quoting Hensley in holding that “the most critical factor is the degree of success obtained.” 461 U.S. at 436). Moreover, the Supreme Court subsequently distinguished cases involving only nominal damages awards, or technical, or minimal victories for plaintiffs, where no fee award is typically appropriate from those that attained relief on a “significant issue.” See Farrar v. Hobby, 506 U.S. 103 (1992) (where plaintiff sought $17 million award and received a nominal $1 award no fee award was appropriate); see also, Aponte v. City of Chicago, 728 F.3d 724, 726-27 (7th Cir. 2013) (summarizing Seventh Circuit precedent applying Garland and Farrar).
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Where plaintiffs receive meaningful relief, even despite falling substantially short of loftier objectives in their complaints, as Defendants claim occurred here, the Seventh Circuit “has rejected the notion that the fee award should be reduced because the damages were smaller than a plaintiff originally sought or that the fee award might, in fact, be more than the plaintiff’s recovery.” Estate of Enoch v. Tienor, 570 F.3d 821, 823 (2009) (plaintiff achieved more than nominal damages and was thereby entitled to fee award as prevailing party in connection with accepted offer of judgment for $635,000 despite procuring only a fraction of $10 million sought in complaint).
In this case, the Court’s order to allow six additional days for absentee ballots to be received by local clerks enfranchised nearly eighty thousand qualified voters by the WEC’s own admission. That result was neither nominal, trifling, nor minimal relief. By any measure, the Lewis Plaintiffs procured a meaningful measure of success and thereby prevailed.
D. The Court’s preliminary injunctive relief to extend the statutory absentee ballot return deadline was not mere recognition of an act of volition by the WEC; it was affirmative relief obtained by the Lewis Plaintiffs.
The Court’s order to extend the absentee ballot return deadline was not, as the WEC Defendants suggest, an act of volition by the WEC that would have occurred in the absence of this litigation. The WEC’s letter to the Court on the cusp of the April 1 TRO hearing indicating that it did not object to extension of the statutory deadline does not alter the Lewis Plaintiffs’ status as a prevailing party. Even if the WEC had offered to enter into a settlement or a consent decree – which it did not and could not -- such conduct would still not adversely affect the Lewis Plaintiffs’ entitlement to attorney fees.
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Maheer v. Gagne, 448 U.S. 122, 129 (1980) (fact that plaintiff obtained relief via settlement agreement had no impact on her being a prevailing party). The two other sets of intervening Defendants both opposed and appealed to both the Seventh Circuit and the Supreme Court this Court’s April 2 Order, forcing the Lewis Plaintiffs to defend and preserve the remedial relief ordered by this Court.
In addition, the fact that only preliminary injunctive relief was ordered without a final judgment has no bearing on the prevailing party status of the Lewis Plaintiffs. The Seventh Circuit adheres to what has become a clear majority view in the circuits in the wake of Buckhannon that prevailing party status may be conferred when: a) plaintiffs request and win preliminary injunctive relief from a district court on the merits of their clams, and not simply to equitably preserve the status quo; b) the injunctive order altered the parties’ legal relationship; and c) the complaint sought the affirmative relief and became moot prior to the time the plaintiffs petitioned for fees. See Young v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000) and Dupuy v. Samuels, 423 F.3d 714, 724725 (7th Cir. 2005).
In Young, the plaintiffs requested and won a preliminary injunction granting them a permit to engage in assembly outside the 1996 Democratic Party convention. Id. Defendants’ post-Convention appeal was dismissed as moot but the Seventh Circuit which held that the plaintiffs were a prevailing party entitled to fees even though the district court never reached a final judgment on the merits of plaintiffs’ claims. Id.
In Dupuy the court distinguished the circumstances where a preliminary injunction became moot because it had merely preserved the status quo until the court
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could reach a decision on the merits, versus cases such as Young – and in this case-where the mere passage of time mooted the matter after the event which was enjoined had passed. In Dupuy noted that the Seventh Circuit’s view was consistent with how other circuits had addressed the issue in the wake of Bukhannon:
Our circuit's law on the mootness issue is hardly an outlier among the federal circuit courts. We note that, in cases with circumstances similar to those in Young, several of our sister circuits have held that attorneys' fees may be awarded after a party has obtained a preliminary injunction and the case subsequently has become moot. See, e.g., Select Milk Producers, Inc. v. Johanns, 365 U.S. App. D.C. 183, 400 F.3d 939 (D.C. Cir. 2005); Watson v. County of Riverside, 300 F.3d 1092 (9th Cir. 2002); Taylor v. City of Fort Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987). Dupuy, 423 F.3d at 723, n. 4; see also Consol. Paving Inc. v. City of Peoria, No. 10-cv-1045, 2013 WL 916212 at *9 (C.D. Ill., Mar. 7, 2013) (surveying and summarizing the development of federal circuit positions including that of the Seventh Circuit, postBukhannon, on a party’s prevailing party status in a moot case after procuring preliminary injunctive relief). Since Dupuy¸ other circuits have adopted rules and general approaches affirming “prevailing party” fee awards in similar circumstances where plaintiffs won preliminary injunctive relief predicated upon a probability of success on the merits and the case became moot due to the passage of time and conclusion of the event enjoined, or other circumstances beyond the control of the plaintiff. See, e.g., Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008) (adopting test that plaintiff is a “prevailing party” if it wins preliminary injunction based upon likelihood of success and action becomes moot); People Against Police Violence v.
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City of Pittsburgh, 520 F.3d 226, 228-29 (3d Cir. 2008) (plaintiff “prevailed” where it achieved preliminary injunction and case became moot by virtue of “the results of the legal process”); Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1234, 1238 (10th Cir. 2011) (plaintiff was a prevailing party by acquiring preliminary injunction).
In the Lewis Plaintiffs’ Prayer for Relief in their Complaint, they explicitly requested that § 6.87, Wis. Stats. be enjoined and that the 8:00 P.M., April 7 deadline for the return of absentee ballots be extended. ‘284 case dkt. 1 at 65-67, “Prayer for Relief,” ¶¶ B, H, L. The Court’s April 2 Order granted the Lewis Plaintiffs’ requests in paragraphs B, H and L of their Prayer for Relief by enjoining Defendants from enforcing § 6.87 and requiring them to “extend the deadline for receipt of absentee ballots to 4:00 p.m. on April 13, 2020.” Dkt. 170 at 5.
That Order was without question a “judicially sanctioned change in the legal relationship of the parties,” Buckhannon, 532 U.S. at 605, which resulted in the counting of 79,054 additional absentee ballots received by municipal clerks across the state between April 8 and April 13. See WISCONSIN ELECTION COMMISSION, “April 7 2020 Absentee Voting Report,” at p. 7 & Table 8, May 15, 2020, available at: https://elections.wi.gov/sites/elections.wi.gov/files/202005/May%2020%2C%202020.Final_.pdf. (last visited June 2, 2020) The 79,054 absentee ballots returned during the period allowed by the preliminary injunction represented 6.68% of total ballots, including all in-person and absentee ballots cast in the election. Id.
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The Court’s preliminary injunction was judicially-sanctioned relief that altered the parties’ legal relationship. It was a judicial determination to directly address the merits of the Lewis Plaintiffs’ claims and provide relief to what the Court recognized was a serious infringement upon Wisconsinites’ right to vote. It was not a mere equitable remedy designed to preserve the status quo.
The preliminary injunction was widespread, substantial, and meaningful in enfranchising scores of thousands of qualified Wisconsin electors who otherwise would not have been able to participate in this important election. The Legislature and Republican Party Defendants immediately appealed the preliminary injunction to the Seventh Circuit Court of Appeals and failing there on the issue of the absentee ballot deadline, applied for an emergency stay from the United States Supreme Court. Although the Supreme Court qualified the injunction regarding § 6.87 by imposing a postmark requirement, the preliminary injunction remained otherwise intact and resulted in profound relief and vindication of the Lewis Plaintiffs’ claims.
The Lewis Plaintiffs sought no relief in their Complaint beyond Wisconsin’s Spring General Election and Presidential Preference Primary. Accordingly, their claims are now moot. The Lewis Plaintiffs are in the exact posture as the plaintiffs in Young, who similarly prevailed in procuring preliminary injunctive relief. In Young, plaintiffs sought to engage in protest activity at a specific event, only to have the case mooted by the passage of time and conclusion of the event which was the subject of the injunction. For the Lewis
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Plaintiffs, they likewise won injunctive relief applicable to an event that has now passed. In both cases, mootness arose post-injunction solely due to the temporal conclusion of the enjoined event, and dismissal was appropriate because further litigation to a final judgment on the merits served no purpose.
By all applicable measures, the Lewis plaintiffs “prevailed.” II. The Court’s dismissal should be without prejudice.
A. Dismissal without prejudice is the default under Rule 41(a)(2), and dismissal with prejudice is only appropriate when needed to shelter defendants from prejudicial effects of a dismissal without prejudice.
In their motion under Rule 41(a)(2), the Lewis Plaintiffs ask that the case be dismissed as moot. The Rule itself provides that “unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice,” and the ordinary consequence of mootness is dismissal without prejudice. Dixon v. ATI Ladish LLC, 667 F.3d 891, 894 (7th Cir. 2012); see also 9 Fed. Prac. & Proc. Civ. § 2364 (3d ed.) (dismissals without prejudice generally should be granted by the district court under Rule 41(a)(2) if no prejudicial effects would result for the opposing party, citing cases).
Under Rule 41(a)(2), at its discretion, the Court may place conditions on the plaintiff’s voluntary dismissal as it deems necessary to offset the possible prejudice that the defendant may otherwise suffer from dismissal without prejudice. Marlow v. Winston & Strawn, 19 F.3d 300, 303 (7th Cir. 1994). None of the objecting Defendants have alleged that there are any prejudicial effects that would result from dismissal of the Lewis case without prejudice. “In exercising its discretion, the court follows the traditional principle that dismissal should be allowed unless the defendant will suffer
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some plain legal prejudice other than the mere prospect of a second lawsuit.” Stern v. Barnett, 452 F.2d 211 (7th Cir. 1971); Woodzicka v. Artifex Ltd., 25 F. Supp. 2d 930, 934 (E.D. Wis. 1998).
Nevertheless, the WEC argues in its response brief that “dismissal for mootness is generally with prejudice.” Dkt. 209 at 9. The sole case they cite for that proposition is Deakins v. Monaghan, 484 U.S. 193, 200 (1988) in which there is absolutely nothing supporting the WEC Defendants’ statement. Deakins presented “questions concerning a federal court's obligation to abstain from the adjudication of federal claims arising out of an ongoing state grand jury investigation.” Id. at 194-195. The only thing it discussed said about mootness and dismissal was this:
And respondents can be prevented from reviving their claims by the order of dismissal. Because this case was rendered moot in part by respondents' willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated. This will prevent the regeneration of the controversy by a reassertion of a right to litigate the equitable claims in federal court. Id. at 200. Dismissal with prejudice is unnecessary to prevent revival of the Lewis Plaintiffs’ claims in this case. The passage of time (the occurrence of the April 2020 elections), and the limited relief sought by the Lewis Plaintiffs (only injunctive relief as to those elections), alone will prevent revival of the Lewis Plaintiffs’ claims here. That is why the case is now moot, as everyone agrees. The mootness of the Lewis Plaintiffs’ claims is all the protection the Defendants need.
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Moreover, dismissal with prejudice would harm some of the Lewis Plaintiffs. By its nature, a dismissal with prejudice not only prevents a plaintiff from filing the same lawsuit again; it can in some circumstances also have other preclusive effects, such as preventing a plaintiff from pursuing other claims that existed at the time of filing against the same defendants. Here, two of the Lewis Plaintiffs, Black Leaders Organizing for Communities (“BLOC”) and the League of Women Voters of Wisconsin (“the League”), are also plaintiffs in other cases pending against many of these same defendants: (1) Gear, et al. v. Bostelmann, et al., Case No. 20-cv-278-wmc (W.D. Wis.) (consolidated with DNC, et al. v. Bostelmann, et al., Case No. 20-cv-249-wmc (W.D. Wis.) (LWVWI); and (2) Swenson, et al. v. Bostelmann, et al., Case No. 20-cv-459-wmc (W.D. Wis.). Those cases pursue different claims and remedies than this one.
A dismissal of the Lewis Plaintiffs’ Complaint “with prejudice” could end BLOC’s and the League’s abilities to pursue those ongoing cases. Such an effect would work an unmerited penalty on those plaintiffs. By contrast, a dismissal “without prejudice” would allow those plaintiffs to continue to pursue those other cases, seeking prospective relief pertaining to future elections, and would not work any legal prejudice on the Defendants here.
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B. The Lewis Plaintiffs have not engaged in bad behavior, which can also support imposition of the condition of “with prejudice” dismissal by a court.
Sometimes courts will require a plaintiff’s voluntary dismissal to be with prejudice as punishment for bad behavior on the plaintiff’s part, or to prevent sharp practices, as was the case in Pace and Ratkovich. Those cases were cited by the Republican Party in its opposition brief to support the proposition that because there have been “extensive proceedings” in this case and the “election period that was the focus of the action” has “expired,” dismissal with prejudice is appropriate. See dkt. 211 at 2. Those cases do not support that proposition.
Pace is the leading Seventh Circuit case describing the factors to be considered in whether to condition voluntary dismissal on the penalty of dismissal with prejudice. Those factors are:
(1) the defendant's effort and expense of preparation for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action, (3) insufficient explanation for the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the
defendant. Pace v. S. Exp. Co., 409 F.2d 331, 334 (7th Cir. 1969).
Finding those factors present, the Pace court upheld the district court’s denial of the motion to dismiss without prejudice. Id. It specifically endorsed the district court’s finding that denial of the motion to dismiss without prejudice, filed while a motion for summary judgment was pending, was necessary to protect the defendants from future litigation, and that ruling on the motion for summary judgment to reach a final decision
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on the merits was also appropriate: three lawsuits with causes of action identical to those pending before the federal court were then also pending in state court. Id. at 334-335. “[I]t would be unfair to permit plaintiff to press them when it has failed to develop any material issue for trial in its earlier-filed federal court case.…defendant was entitled to a judgment which would preclude continued litigation on the same issue in any other court.” Id. at 335.
Ratkovich presented similar bad behavior on the part of the plaintiff and simply applied the Pace factors to uphold the district court’s exercise of discretion. None of the Pace factors apply here. Consequently, Pace and Ratkovich provide no support for conditioning voluntary dismissal of Plaintiff’s case on a “with prejudice” designation.
Finally, the Republican Party also cites Timothy B. O’Brien LLC v. Knott, 18-CV684-JDP, 2019 WL 4722483, *1 (W.D. Wis., May 16, 2019), for the proposition that a plaintiff’s motion for voluntary dismissal should be with prejudice, or withdrawn, because the defendant had to defend against a motion for preliminary injunction. See dkt. 211 at 2. That case is inapposite. Unlike here, in O’Brien the preliminary injunction was denied based on a finding that the plaintiff did not show a likelihood of success on the merits or irreparable harm. Thereafter, it filed a motion to voluntarily dismiss its claims without prejudice. The court ruled that “because defendants had successfully defended against Apple Wellness’s motion for preliminary injunction,” the plaintiff had to “either accept dismissal with prejudice or withdraw its motion.” Id.
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III. The Legislature misrepresents the holding of Sole v.Wyner. Sole v. Wyner, 551 U.S. 74 (2007) was cited by the Wisconsin Legislature to
support its assertion that Lewis Plaintiffs should not be permitted to seek costs, expenses and fees because they “lost even on the overwhelming majority of their arguments at the preliminary injunction and appellate stages.” Dkt. 201 at 2. Sole does not support the Legislature’s argument. It presented a single question:
Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a ‘prevailing party’ within the compass of § 1988(b)? 551 U.S. at 77. The Court then held that: [a] plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Id. at 78 (emphasis added). Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” Id. at 83. Here, the Lewis Plaintiffs’ victory was not “undone.” Quite the contrary: their victory resulted in the enfranchisement of over 79,000 voters whose ballots would otherwise not have been counted. It was a resounding victory for democracy and the right to vote.
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CONCLUSION
The Lewis Plaintiffs’ motion to dismiss without prejudice, with costs and with
them retaining the right under 42. U.S.C. § 1988 to seek attorneys’ fees and expenses
should be granted.
Dated this 2nd day of June 2020.
Respectfully submitted,
PINES BACH LLP
/s/ Tamara B. Packard .
Lester A. Pines, SBN 1016543 Tamara B. Packard, SBN 1023111 122 West Washington Ave., Suite 900 Madison, WI 53703 (608) 251-0101 (telephone) (608) 251-2883 (facsimile) lpines@pinesbach.com tpackard@pinesbach.com
Counsel for Plaintiff SEIU Wisconsin State Council
RATHJE WOODWARD LLC
/s/ Douglas M. Poland .
Douglas M. Poland, SBN 1055189 David P. Hollander, SBN 1107233 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com
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HAWKS QUINDEL, S.C.
/s/ Richard Saks .
Richard Saks, SBN 1022048 222 E. Erie St., Suite 210 Milwaukee, WI 53201 (414) 271-8650 (telephone) (414) 331-4405 (cell) (414) 271-8442 rsaks@hq-law.com Counsel for Plaintiffs Greg Lewis, Souls to the Polls, Voces de la Frontera, Black Leaders Organizing for Communities, American Federation of Teachers, Local 212, AFL-CIO, and League of Women Voters of Wisconsin
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 Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,
Defendants, and
WISCONSIN LEGISLATURE, REPUBLICAN NATIONAL COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants.

OPINION AND ORDER 20-cv-249-wmc

Within a few weeks of Wisconsin’s April 2020 election, the Democratic National Committee and the Democratic Party of Wisconsin (jointly, “the DNC/DPW”) filed this lawsuit, seeking a preliminary injunction against the enforcement of certain election laws on federal constitutional grounds due to the impacts of the unfolding COVID-19 health crisis. With lightening speed, the case made it to the United States Supreme Court and back. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. ____ (2020) (per curiam). Now that the April election has come and gone, intervening defendant, the Wisconsin Legislature, has moved to dismiss this case (dkt. #197), while plaintiffs have moved to file a second amended complaint (dkt. #198), seeking to update their claims in light of the alleged impacts of COVID-19 on the ability to obtain and count a record number of absentee ballots during that election and similar, other challenges facing the

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Wisconsin Election Commission (“WEC”) in the impending August and November elections.1 For the reasons discussed below, the court will grant plaintiffs’ motion and deny intervening-defendant’s motion as moot.
BACKGROUND Shortly after the emergence of the COVID-19 health crisis in Wisconsin, the DNC/DPW filed this lawsuit, a temporary restraining order, and a preliminary injunction, seeking to enjoin enforcement of various provisions of Wisconsin’s elections laws before Wisconsin’s April 7, 2020, primary election. This court granted narrow injunctive relief a few weeks before the April election, and this injunctive relief was further narrowed on appeal to the Seventh Circuit and the United States Supreme Court. The Wisconsin Legislature has now moved to dismiss the DNC/DPW’s complaint, arguing primarily that the claims became moot after the passage of the April election. While the DNC/DPW maintain that their original claims were not mooted, plaintiffs also seek to “fine-tune[]” their claims in an amended complaint “to take account of the rulings over the past two months by this court, the Seventh Circuit, and the Supreme Court.” (Pls.’ Reply (dkt. #203) 2.) The DNC/DPW’s proposed second amended complaint also
1 This case was previously consolidated with two other related cases. (See dkt. #86 (consolidating cases 20-cv-249, 20-cv-278, and 20-cv-284).) Still, “actions which have been consolidated do not lose their separate identity.” Ivanov-McPhee v. Washington Nat. Ins. Co., 719 F.2d 927, 928 (7th Cir. 1983). The two motions presently before the court concern only the 20-cv-249 case. (See Wis. Leg. Mot. to Dismiss (dkt. #197); DNC/DPW Mot. for Leave to File Second Am. Compl. (dkt. #198).) Accordingly, this opinion and order applies only to the 20-cv-249 case and all references to “plaintiffs” refer only to the DNC/DPW. The court will take up the more recently filed motions in the ‘284 case and ‘278 cases by separate order.
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seeks relief with respect to the August 2020 primary election and November 2020 general elections. Specifically, plaintiffs again request that, “in the context of the current coronavirus crisis,” the court declare unconstitutional and enjoin in part the following statutory provisions (“the challenged provisions”): (1) the current by-mail and electronic registration deadlines, Wis. Stat. § 6.28(1); (2) the requirements that copies of proof of residence and voter photo ID accompany electronic and by-mail voter registration and absentee applications, Wis. Stat. §§ 6.34, 6.86, respectively; (3) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, Wis. Stat. § 6.87; and (4) the requirement that an absentee voter obtain the signature of a witness attesting to the accuracy of personal information on an absentee ballot, Wis. Stat. § 6.87(2). (Proposed Second Am. Compl. (“Proposed SAC”) (dkt. #198-1) 38-39.) Plaintiffs also seek to “ensure safe and sufficient in-person registration and voting facilities for all voters throughout the State.” (Id. ¶ 83.) These requests are brought under the First and Fourteenth Amendment’s guarantee against undue burdens on the right to vote, the Fourteenth Amendment’s procedural due process clause, and the Fourteenth Amendment’s equal protection clause. (Id. at 31-38.)
Intervening defendants the Republic National Committee and the Republican Party of Wisconsin (jointly, “the RNC/RPW”) have since joined in the Wisconsin Legislature’s opposition to plaintiffs’ motion for leave to amend their complaint (dkt. #201), although the originally-named defendants, the Commissioners of the Wisconsin Election Commission (“WEC”), do not appear to oppose plaintiffs’ motion, and neither the Commissioners nor the RNC/RPW have joined in the Legislature’s motion to dismiss.
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OPINION The Federal Rules of Civil Procedure provide that leave to amend a complaint should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may, however, “deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870 F.3d 682, 693 (7th Cir. 2017) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)). “In the face of that uncertainty, applying the liberal standard for amending pleadings, especially in the early stages of a lawsuit, is the best way to ensure that cases will be decided justly and on their merits.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015). The Legislature opposes plaintiffs’ motion to amend on grounds of futility.2 Specifically, the Legislature contends that: (1) plaintiffs’ new claims are not yet ripe; (2) plaintiffs have alleged no claim upon which relief can be granted; and (3) all of plaintiffs’ claims should be dismissed under the Burford abstention doctrine.3 Unsurprisingly, the DNC/DPW responds by emphasizing the liberal standard generally applicable to requests for leave to amend and argue that their new claims are not futile.
2 The Legislature also argued that the court should stay the case pending resolution of various interlocutory appeals before the Seventh Circuit. (Wis. Leg. Opp’n (dkt. #200) 37-39.) However, the Seventh Circuit has since dismissed the appeals, rendering this argument moot. See Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 20-1538 (7th Cir. May 14, 2020). 3 In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that federal courts had the discretion to abstain from intervening in certain matters that would result in an impermissibly disruptive effect on state policies.
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At this point, the court is unable to conclude that the entirety of plaintiffs’ proposed
amended complaint is futile and, having been presented with no other reason to deny leave
to amend, the court will grant plaintiffs’ motion. Because plaintiffs’ second amended
complaint is now the operative pleading, the Legislature’s motion to dismiss plaintiffs’ first
amended complaint is rendered moot and, therefore, will be denied. See Wright & Miller,
6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.) (“[I]f the first complaint is considered superseded
by the amendment, the court is not required to dismiss the suit when a motion points up
the weaknesses of the earlier pleading.”). Inevitably, however, the court addresses The
Legislature’s arguments for dismissal in considering its opposition to plaintiffs’ motion for
leave to amend on futility grounds.
I. Ripeness The Legislature first argues that plaintiffs’ motion to amend is futile because their
new claims are not yet ripe. Ripeness is a justiciability concern regarding the appropriate
timing of judicial intervention.4 Renne v. Geary, 501 U.S. 312, 320 (1991). The rationale
4 In the past, the ripeness doctrine has been said to have both constitutional and prudential dimensions. Nat’l Park Hosp. Ass’n v. DOI, 538 U.S. 803, 808 (2003). Recently, however, the Supreme Court called into question the “continuing vitality of the prudential ripeness doctrine.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (respondents’ assertion that a claim is nonjusticiable on prudential ripeness grounds was in “some tension” with more recent cases reaffirming that a federal court’s obligation to hear cases within its jurisdiction is “virtually unflagging”). Even so, the line between prudential and constitutional ripeness remains unclear. See Wright & Miller, 13B Fed. Prac. & Proc. Juris. § 3532.1 (3d ed.) (“Although the dual [prudential and constitutional] origins of ripeness doctrine are clear, the line between them is far from clear.”). And without further guidance from the Supreme Court or the Seventh Circuit, this court will continue to apply traditional ripeness doctrine principles. Cf. Skyline Wesleyan Church v. California Dep’t of Managed Health Care, No. 18-55451, 2020 WL 2464926, at *10 n.9 (9th Cir. May 13, 2020) (“Because the Supreme Court has not yet had occasion to resolve the continuing vitality of the prudential ripeness doctrine, we apply it here regardless of any uncertainty about its life expectancy.”) (internal citations and quotations omitted).
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behind this doctrine is to avoid premature adjudication and prevent courts from “entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Because ripeness affects justiciability, courts have held that affidavits and other evidence may be considered in determining whether or not a claim is ripe. See, e.g., Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1290 & n.7 (3d Cir. 1993); St. Clair v. City of Chico, 880 F.2d 199, 201-02 (9th Cir. 1989).
Courts have traditionally considered two factors in determining ripeness: (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983) (quoting Abbott Labs., 387 U.S. at 149). A claim is not fit for judicial review if “the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992). In evaluating a claim of hardship, courts consider whether “irremediably adverse consequences” would flow from requiring a later challenge. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164 (1967).
Here, the Legislature argues that plaintiffs’ claims are not presently fit for judicial review “because those claims depend on both the health risks that COVID-19 may cause during those elections and the government’s response to those risks.” (Wis. Leg. Opp’n (dkt. #200) 18.) Notably, although the Legislature suggests that the WEC and the state and federal governments might take steps that affect plaintiffs’ claims, it does not argue that any of the challenged provisions will not be enforced in the upcoming elections. (See
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id. at 18-21.) The Legislature also argues that plaintiffs will suffer no hardship if the court requires a later challenge because “voters in Wisconsin have ample avenues to vote, including under Wisconsin’s generous absentee-voting regime.” (Id. at 21.) Plaintiffs counter that: (1) numerous reliable sources predict that the risks presented by COVID-19 will continue at least through the November election; and (2) there is no reason to expect that the challenged election laws will not be enforced. (Pls.’ Reply (dkt. #203) 10-12.) Indeed, they point out that a delay in litigation will impose an increasing hardship: as the later the court’s decision, the more likely relief will be barred by the Purcell doctrine. (Id. at 15.)
Turning to the first ripeness prong -- fitness for review -- the court concludes that plaintiffs’ claims state an actual and concrete conflict premised on the near-certain enforcement of the challenged provisions in the context of the present and ongoing COVID-19 health care crisis. See Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1164 (11th Cir. 2008) (“The Supreme Court has long since held that where the enforcement of a statute is certain, a preenforcement challenge will not be rejected on ripeness grounds.”). Indeed, the WEC, the Legislature, and the Wisconsin Supreme Court have already concluded that the election laws must be enforced as written. See WEC, Memorandum, Update Regarding COVID-19 Election Planning (Mar. 18, 2020) (taking the position that it did not have the authority to alter the election procedures set forth in Wis. Stat. § 6.28(1)(a) (online voter registration deadline) and §§ 6.88(3) and 7.52(1)(a) (absentee ballot return deadlines)); Wis. Leg. Proposed Mot. to Dismiss (dkt. #23) (taking the position that Wisconsin’s elections statutes should be enforced in the April 2020
7

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election); Wis. Leg. Mot. to Dismiss (dkt. #197) (taking the position that Wisconsin’s elections statutes should be enforced in the upcoming elections); Jeffersom v. Dane Cty., No 2020AP557-OA (Wis. Mar. 31, 2020) (directing enforcement of Wis. Stat. § 6.86 (absentee photo ID requirement) consistent with the WEC’s guidance on indefinitely confined voters). This alone contrasts the present lawsuit from those where enforcement is in some reasonable doubt. See Renne, 501 U.S. at 322 (claim unripe where there was “no evidence of a credible threat that [the challenged law] will be enforced”); Toilet Goods Ass’n, Inc., 387 U.S. at 163 (challenge to regulation authorizing penalties if plaintiffs did not permit the FDA to inspect their facilities was unripe in part because the court had “no idea whether or when” the challenged regulation might be enforced). Of course, in the event that some unforeseen, future event were to extinguish, or even call into reasonable question, plaintiffs’ claims for relief because of governmental action related to election procedures, the Legislature is free to revisit and this court would be delighted to take up its ripeness argument again as this litigation progresses. But for now, plaintiffs have demonstrated that their claims rest on a real, substantial controversy, and not merely on a hypothetical question.
Plaintiffs have also demonstrated that they are likely to suffer adverse consequences if the court were to require a later challenge. The August election is less than three months away, and the November election only three months after that. As was amply demonstrated in the fire drill leading up to the April election, the longer this court delays, the less likely constitutional relief to voters is going to be effective and the more likely that relief may cause voter confusion and burden election officials charged with its
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administration. Further, any delay may ultimately preclude relief under the Purcell doctrine, which cautions against court intervention in imminent elections. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300-01 n.12 (1979) (“Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment.”). As plaintiffs point out, the Legislature appears to propose a rule in which it would either be “too soon” or “too late” to enforce voting rights.
In similar cases, other courts have found challenges to election laws to be ripe even in the face of various factual uncertainties. In Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), the Fourth Circuit held that a challenge to Virginia’s open primary law was ripe, even though it was uncertain whether a candidate would run in the primary and be subjected to the challenged provision. Id. at 319. The court reasoned that “[w]aiting until at least two candidates file for office likely would provide insufficient time to decide the case without disrupting the pending election,” causing the court to ultimately conclude that “[t]he case is fit for judicial review despite this uncertainty.” Id. at 319-20. Similarly, in Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008), the Eleventh Circuit concluded that plaintiffs’ challenge to a Florida voter registration law was ripe even though it had not yet been enforced. Id. at 1164. According to that court, potential voters would face hardship if they had to wait until after their applications had been rejected to challenge the statute, as “there may not be enough time to reach a decision on the merits before the actual election.” Id. The court further observed that state election
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officials would likewise be burdened if the court were to enjoin enforcement of the challenged statute weeks or days before the election. Id. Regardless, this court does not relish, nor will it be receptive to, any repeat of last minute requests for relief from any party given that we have the luxury of months, rather than weeks, to address the merits of plaintiffs’ claims and hard-earned lessons from which to draw in protecting the rights of Wisconsin voters.
As in Miller and Browning, therefore, the court finds that plaintiffs have shown their proposed claims are fit for judicial review and that they would suffer hardship if the court were to withhold their consideration. Accordingly, the court rejects the Legislature’s ripeness argument.
II. Failure to State a Claim The Legislature next argues that plaintiffs’ proposed amendments are futile because
the allegations fail to state a claim. Plaintiffs’ proposed amended complaint challenges various provisions of Wisconsin’s election laws set forth above, as well as an alleged failure to ensure safe and sufficient opportunities to vote in person, on three federal constitutional grounds: (1) an undue burden the right to vote in violation of the First and Fourteenth Amendment; (2) violations of the procedural due process clause of the Fourteenth Amendment; and (3) violations of the equal protection clause of the Fourteenth Amendment. (Proposed SAC (dkt. #198-1) 31-38.) The Legislature argues that all three grounds for relief fail as a matter of law, rendering plaintiffs’ motion for leave to amend their complaint futile.
Certainly, “a district court is justified in denying an amendment if the proposed 10

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amendment could not withstand a motion to dismiss.” Glick v. Koenig, 766 F.2d 265, 268 (7th Cir. 1985). However, in considering such a motion, a court must accept all wellpleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015). Indeed, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. (quoting Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir. 2013)). With these principles in mind, the court will review the factual allegations for each of plaintiffs’ three constitutional claims.
A. Undue Burden on the Right to Vote Plaintiffs’ first claim that the challenged provisions impose an undue burden on the
right to vote in violation of the First and Fourteenth Amendments. (Proposed SAC (dkt. #198-1) 31.) This claim is governed by Anderson-Burdick framework,5 requiring courts to consider whether the burdens on the right to vote imposed by the challenged provisions are justified by the state’s interests in enforcing the provision. See One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016) (citing Anderson, 460 U.S. 780; Burdick, 504 U.S. 428).
Plaintiffs’ proposed complaint identifies specific burdens that allegedly will be imposed by each of the challenged provisions, and further avers that no state interest can justify their enforcement in light of the alleged burdens. (Proposed SAC (dkt. #198-1) 31.) The Legislature argues generally that plaintiffs’ alleged burdens are not “plausible” or
5 Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
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are “speculative” and, therefore, are insufficient to support their claims. (Wis. Leg. Opp’n (dkt. #200) 26-30.) Yet the burdens on the right to vote that plaintiffs identify are based, at least in part, on burdens that allegedly befell voters in the April 2020 election. For example, plaintiffs allege that in the April election, thousands of voters did not receive requested absentee ballots with adequate time to return them before the receipt deadline. (Proposed SAC (dkt. #198-1) ¶ 50.) They further allege that a similar situation will occur during the August and November elections, and that such a burden is not justified by any state interest. (Id. ¶¶ 51-52.) They include similar allegations for all of the challenged provisions. (See id. at 21-30.) Accordingly, the Legislature’s argument that such burdens are not “plausible” falls flat in light of this past experience, although plaintiffs’ will ultimately face a high bar in proving the allegations made in their complaint.
The Legislature also contends that plaintiffs’ alleged burdens on the right to vote are insufficient as a matter of law to overcome the state’s interest in enforcing duly enacted election laws. (Wis. Leg. Opp’n (dkt. #200) 26-30.) Plaintiffs counter that balancing tests are “by the very nature, generally inappropriate for Rule 12(b)(6) dismissal for failure to state a claim.” (Pls.’ Reply (dkt. #203) 16.) The court is again inclined to agree. As a general matter, a motion to dismiss “is not an opportunity for the court to find facts or weigh evidence.” My Health, Inc. v. Gen. Elec. Co., No. 15-CV-80-JDP, 2015 WL 9474293, at *2 (W.D. Wis. Dec. 28, 2015). In a previous challenge to Wisconsin’s election laws, this court explained that whether the laws at issue “actually burdened . . . voters, and if so, to what degree, is a question of fact that cannot be resolved at the pleading stage.” One Wisconsin Inst., Inc. v. Nichol, 155 F. Supp. 3d 898, 905 (W.D. Wis. 2015) (citing Cushing
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v. City of Chicago, 3 F.3d 1156, 1163 (7th Cir. 1993)); see also Baude v. Heath, 538 F.3d 608, 612 (7th Cir. 2008) (“[a]ny balancing approach . . . requires evidence,” and “without understanding the magnitude of both burdens and benefits,” it is impossible to tell whether a particular burden is excessive); Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014) (resolution of “a fact-intensive balancing test” is “not ordinarily suitable [at] the Rule 12(b)(6) stage”). Indeed, various circuit courts have reversed the dismissal of electionrelated challenges before the development of the evidentiary record. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 447 (9th Cir. 2018); Duke v. Cleland, 5 F.3d 1399, 1405-06 & n.6 (11th Cir. 1993); Wood v. Meadows, 117 F.3d 770, 776 (4th Cir. 1997). Here, plaintiffs have plausibly alleged that each of the challenged provisions imposes a burden on voters that is not justified by the state’s interests. Because these allegations are sufficient to survive a motion to dismiss, the claim is not futile.
That being said, some of the provisions challenged in this suit have been repeatedly upheld in federal court. See Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (upholding Wisconsin’s voter ID law); One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 935 (W.D. Wis. 2016) (upholding law requiring Wisconsin voters to provide documentary proof of residence when registering to vote). Absent some extraordinary showing as to the impact of the current health crisis on those statutory provisions, this court is unlikely to overturn those decisions. But, the court need not (and arguably cannot for the reasons set forth above) consider likely short-comings in plaintiffs’ ultimate proof at the pleadings stage, understanding that plaintiffs will ultimately bear a heavy burden of persuasion to
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obtain relief on any of their claims. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 200 (2008).
B. Procedural Due Process Plaintiffs’ second proposed claim is that the challenged provisions violate the
Fourteenth Amendment’s procedural due process clause. (Proposed SAC (dkt. #198-1) 33.) In bringing this claim, plaintiffs invoke the test established in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires the court to balance: (1) the interest that will be affected by the state action; (2) the risk of erroneous deprivation of this interest through the procedures used by the state and the probable value, if any, of additional procedural safeguards; and (3) the state’s interest, including the fiscal and administrative burdens that the additional procedure would entail. Id. at 340-49.
The Legislature argues that this claim is wholly duplicative of plaintiffs’ AndersonBurdick argument and should therefore be dismissed. (Wis. Leg. Opp’n (dkt. #200) 31.) As this court observed in its previous order, the Supreme Court’s Anderson-Burdick balancing test is grounded in both the Fourteenth and First Amendments. (See Order (dkt. #170) 27 n.15 (citing Burdick, 504 U.S. at 434).) Moreover, “[i]n Burdick v. Takushi, the Court emphasized that [the Anderson-Burdick] test applies to all First and Fourteenth Amendment challenges to state election laws.” Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (emphasis in original). Further, despite the Mathews and AndersonBurdick tests involving a similar balancing analysis, plaintiffs do not explain how, if at all, their separate procedural due process claim is distinguished from their undue burden claim.
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Nevertheless, the Legislature also fails to point to any rule requiring the court to dismiss plaintiffs’ claim simply because it appears to be duplicative.6 Cf. Glenwood Halsted LLC v. Vill. of Glenwood, 866 F. Supp. 2d 942, 948 (N.D. Ill. 2012) (“There is no need to decide at the pleadings stage which constitutional provision necessarily governs Plaintiff’s claims.”). Accordingly, the court will not hold that plaintiffs’ due process claim is futile simply because it is largely, if not entirely, duplicative. At the same time, unless plaintiffs are able to articulate a specific legal or factual rationale for applying the Mathews test over the Anderson-Burdick test in evaluating a challenged provision, the court will analyze their claims under the latter standard.
The Legislature argues that plaintiffs’ procedural due process claim should be dismissed for the same reasons that their undue burden claim should be dismissed: they fail to allege private burdens that, as a matter of law, overcome the state’s interest in preserving the integrity of its elections. (Wis. Leg. Opp’n (dkt. #200) 31-32.) For the same reasons identified above, however, the court concludes that plaintiffs have plausibly stated a claim and any balancing analysis is better undertaken with the benefit of a more developed evidentiary record.
C. Equal Protection Clause Plaintiffs’ last proposed claim sounds under the equal protection clause and is
6 The Legislature cites generally to Albright v. Oliver, 510 U.S. 266 (1994), but that case stands only for the proposition that a plaintiff cannot bring a generalized substantive due process claim where a particular Amendment “provides an explicit textual source of constitutional protection.” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
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premised on the Supreme Court’s holding in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), that “[h]aving once granted the right to vote on equal terms,” a state may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104-05. Generally, plaintiffs claim here that voters were subject to arbitrary and disparate treatment during the recent April election with respect to “[s]afe and sufficient in-person registration, absentee voting, and election-day voting opportunities.” (Proposed SAC (dkt. #198-1) ¶ 94.) More specifically, plaintiffs allege that: (1) the application of documentation requirements varied broadly; (2) voters received conflicting guidance on the witness requirement; (3) the standards for what constituted a valid postmark varied across localities; and (4) the “indefinitely confined” exception is defined and enforced differently by local election officials. (Id. ¶¶ 95-96.) Given these allegations, the court cannot conclude that plaintiffs’ equal protection claim is futile.
III. Burford Abstention Finally, the Legislature argues that plaintiffs’ motion to amend their complaint is
futile because Burford abstention requires that this court dismiss or stay all of plaintiffs’ proposed claims. Abstention under the Burford doctrine is appropriate where (1) “timely and adequate state-court review is available” and (2) federal intervention would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” New Orleans Public Serv., Inc. v. Council of City of New Orleans,
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491 U.S. 350, 361 (1989) (“NOPSI”).7 In examining Burford and its progeny, the Seventh Circuit has held that this abstention doctrine contains “two essential elements”: (1) “the state must offer some forum in which claims may be litigated”; and (2) “that forum must be special -- it must stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.” Prop. & Cas. Ins. Ltd. v. Cent. Nat. Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir. 1991). The Supreme Court has further cautioned that there is only a “narrow range of circumstances in which Burford can justify the dismissal of a federal action.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726 (1996). In particular, where federal issues eclipse state ones, the Seventh Circuit advised that principles of federalism do not warrant deference to a state regulatory regime. Hammer v. United States Dep’t of Health & Human Servs., 905 F.3d 517, 532 (7th Cir. 2018).
The Legislature contends that this court “should abstain from adjudicating Plaintiffs’ claims under Burford, due to the extreme disruption that such intervention would cause to Wisconsin’s important interests in comprehensive election administration.” (Wis. Leg. Opp’n (dkt. #200) 35.) This is not the first time that the Legislature has advanced this argument, having previously urged this court to stay or dismiss this case under the Burford abstention doctrine in response to plaintiffs’ first TRO request, albeit then in an amicus brief. (See Wis. Leg. Br. (dkt. #23) 2, 17-20.) The court was not persuaded by the Legislature’s argument then (see Order (dkt. #37) 17 n.12), nor is it persuaded now.
7 Burford abstention may also apply where a federal court is faced with “difficult state-law questions bearing on policy problems of substantial public import.” NOPSI, 491 U.S. at 361. But the Legislature does not argue that this type of Burford abstention is applicable to this case, nor could it, as plaintiffs here bring exclusively federal law claims.
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As plaintiffs point out, the Legislature’s assertion that plaintiffs’ claims may be litigated by Wisconsin state courts ignores that these courts are not specialized tribunals with a special relationship with voting rights issues. See Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (“judicial review by state courts with specialized expertise is a prerequisite to Burford abstention”) (emphasis in original). Moreover, plaintiffs cite to numerous decisions holding that Burford abstention is inappropriate in federal constitutional challenges to state elections laws. E.g., Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981); Edwards v. Sammons, 437 F.2d 1240, 1244 (5th Cir. 1971); League of Women Voters of Fla., Inc. v. Detzner, 354 F. Supp. 3d 1280, 1283 (N.D. Fla. 2018); Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935, 943 (W.D. Mich. 2016); Bogaert v. Land, 675 F. Supp. 2d 742, 747 (W.D. Mich. 2009). Accordingly, the court finds that plaintiffs’ amended complaint is not futile due to the Burford abstention doctrine.
Still, the court is mindful of the special role assigned the Wisconsin Election Commission in preparing for the August and November elections and will certainly take into consideration its actions in determining what steps, if any, a federal court should or may undertake in protecting the right of Wisconsin voters. Although given its recent history of strict adherence to the Wisconsin statutory requirements and deadlocking over any creative efforts to vindicate voter rights even if the statutes arguably allow them, this court would be remiss in abstaining from exercising its role in protecting the federal constitutional rights of Wisconsin voters, if necessary.
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IV. Next Steps In light of the impending August and November elections, and in an effort to
adjudicate the claims presented in this case efficiently, the court will set the following schedule. If they have not already done so, the parties should commence expedited discovery immediately. The parties should be restrained in their requests and should also endeavor to turn around written responses within 7 to 10 days, as well as schedule any needed depositions shortly thereafter.
On or before June 25, 2020, WEC is directed to file a statement addressing the following issues: (1) what measures WEC is taking or anticipates taking to prepare for the August and November 2020 elections; (2) whether WEC believes that any additional requested relief would improve the administration of those elections; and (3) whether WEC believes it has the statutory authority to provide any of the relief requested by plaintiffs. The court will then hold a status conference with the parties on Monday, June 29, 2020, at 10:00 a.m..

IT IS ORDERED that:

ORDER

1) Plaintiffs’ motion for leave to file a second amended complaint (dkt. #198) is GRANTED.
2) The Wisconsin Legislature’s motion to dismiss (dkt. #197) is DENIED as moot and all defendants and intervening defendants may have until June 30, 2020, to answer, move to dismiss, or otherwise respond to plaintiffs’ second amended complaint.

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Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 20 of 20 3) The schedule and deadlines as described in the opinion above is adopted. Entered this 9th day of June, 2020. BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
20

 
 Case: 3:20-cv-00249-wmc Document #: 221 Filed: 06/18/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.

20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants. ______________________________________________________________________________

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

Case: 3:20-cv-00249-wmc Document #: 221 Filed: 06/18/20 Page 2 of 13

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

Case No. 20-cv-284-wmc

GEAR PLAINTIFFS’ RESPONSE TO WISCONSIN ELECTIONS COMMISSION DEFENDANTS’ MOTION TO DISMISS

The Gear Plaintiffs1 respond to the Wisconsin Elections Commission (“WEC” or
“Commission”) Defendants’ motion to dismiss as follows:
1. The Gear Plaintiffs conferred with the WEC Defendants’ counsel regarding their motion to add and drop plaintiffs in an attempt to proactively and efficiently manage the case and were operating under the good-faith belief that leave was not required to amend the substance of their Complaint.
Given there was a pending motion to dismiss, the Gear Plaintiffs now appreciate that they
should have clarified the procedure with the Court in this novel situation and want to sincerely
apologize to this Court for not doing so in advance. The Gear Plaintiffs appreciate the opportunity
the Court has provided to respond to the WEC Defendants’ motion to dismiss at this time, and
begin by setting forth the reasons why they proceeded as they did.

1 Plaintiffs in this action are Sylvia Gear, Dr. Malekeh K. Hakami, Patricia Ginter, Claire Whelan, Wisconsin, Alliance for Retired Americans (“Wisconsin Alliance”), and League of Women Voters of, Wisconsin (“LWVWI”) (collectively, “Plaintiffs”).
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Even before the WEC Defendants filed their motion to dismiss the Gear Complaint on May 26, dkt. 141, 142,2 Plaintiffs’ counsel, in an effort to efficiently and proactively manage the litigation and move the case forward, communicated with counsel for the WEC Defendants to attempt to reach an understanding about how the case would proceed on remand from the Seventh Circuit with respect to the pleadings. On May 21, Plaintiffs’ counsel informed the WEC Defendants’ counsel that they intended to file a First Amended Complaint. The following day, the WEC Defendants’ counsel offered to prepare a stipulation that Plaintiffs could file their First Amended Complaint, and that the WEC Defendants would respond to that amended complaint within 30 days. After further considering some procedural issues, however, Plaintiffs’ counsel determined that the WEC Defendants should respond to the Complaint, and that Plaintiffs would then file their First Amended Complaint as a matter of course, as is their right under Federal Rule of Civil Procedure 15(a)(1)(B). The WEC Defendants, so informed, subsequently filed their motion to dismiss on May 26, and the Plaintiffs were prepared to file their First Amended Complaint under Rule 15(a)(1)(B) as a matter of course, as they had planned.
Shortly before they did so, however, Plaintiffs’ counsel discovered that the U.S. Court of Appeals for the Seventh Circuit is an outlier when it comes to amendments as a matter of course under Rule 15(a)(1)(B). Although other federal circuit courts of appeal hold that amendment as of right under Rule 15(a)(1)(B) includes the right to amend a complaint to add or drop parties without the consent of the other parties or leave of court, the Seventh Circuit follows a different rule. The Seventh Circuit instead follows the unique rule that Federal Rule of Civil Procedure 21 – not Rule 15(a)(1)(B) – governs whether parties may be added to or dropped from a case through an amendment to a complaint. See dkt. 148 ¶ 15; id. at 6. Consequently, Plaintiffs’ counsel recognized that they could not simply file their First Amended Complaint under Rule 15(a)(1)(B), as they had
2 For ease of review, unless otherwise indicated, all docket references are to the 20-cv-278 case.
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planned. Rather, they recognized that Seventh Circuit authority first required them to move under Rule 21 (following the process set forth in Federal Rule of Civil Procedure 20) to obtain the Court’s leave to add and drop Plaintiffs from the case, and then, only after obtaining the Court’s leave to add and drop parties, could they exercise their right to one free amendment of the complaint as a matter of course under Rule 15(a)(1)(B) by filing their First Amended Complaint, without being required to first obtain the defendants’ consent or the Court’s leave. Dkt. 148 ¶ 16; id. at 6-7.
Having discovered that they needed to first move under Rule 21 before amending as a matter of course under Rule 15(a)(1)(B), Plaintiffs’ counsel met and conferred with all of the Defendants regarding their motion under Rule 21 for leave to add and drop parties. Dkt. 148 ¶ 18. The WEC Defendants conveyed their non-opposition to the motion for leave, and the IntervenorDefendants Republican National Committee (“RNC”), Republican Party of Wisconsin (“RPW”) and the Wisconsin Legislature reserved their decision until they had seen the filed motion for leave with the proposed First Amended Complaint. Id. Having so met and conferred with Defendants’ counsel, on May 29, 2020 – only three days after the WEC Defendants filed their motion to dismiss – Plaintiffs moved this Court in accordance with Federal Rules of Civil Procedure 20 and 21 for leave to drop two current Plaintiffs as parties from this action and to add six new Plaintiffs as parties to this action, dkt. 148, as reflected in the proposed First Amended Complaint that was attached to the Motion as Exhibit A, dkt. 148-1. No opposition was filed by the June 5 deadline to respond to the motion and, therefore, as of the next business day, June 8, 2020, the motion for leave to add and drop parties stood unopposed.
As noted above, Plaintiffs understood the controlling Seventh Circuit precedent to layer Rule 21 on top of Rule 15(a)(1)(B), not to displace Rule 15(a)(1)(B) altogether. As Plaintiffs’ counsel read the cases, the Seventh Circuit’s rule requiring plaintiffs to seek leave to add or drop parties is layered upon Rule 15(a)(1)(B)’s grant to plaintiffs of a right to amend the substance of
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the complaint as a matter of course within 21 days of the filing of a responsive pleading or, in this case, a motion to dismiss. Put differently, counsel interprets the controlling authority as imposing a two-step process for plaintiffs seeking to add parties to an action or drop parties from an action as part of the process of amending a pleading: the first step, under Rule 21, requires a plaintiff to obtain the district court’s leave to add and/or drop parties; if that motion is granted, the second step, under Rule 15(a)(1)(B), allows a plaintiff to then file the amended complaint (reflecting the addition and dropping of parties granted by the court) as a matter of course, without the need for other parties to consent, or for the court to grant further leave.
Further, because Plaintiffs’ motion for leave was unopposed as of the June 5 deadline to respond to the motion for leave to add or drop parties, based on prior experiences, Plaintiffs believed that this Court would rule on their unopposed motion for leave as soon as the Court could do so. Since the Gear Plaintiffs’ proposed First Amended Complaint is directed at the November 3, 2020 general election, dkt. 155-1 at 74–77, and because all such substantive amendments to the original Complaint—beyond adding and dropping parties—could be made as a matter of course under Rule 15(a)(1)(B), the granting of the unopposed motion for leave would have necessarily mooted the WEC Defendants’ motion to dismiss. That is why the Gear Plaintiffs did not respond to the WEC Defendants’ motion to dismiss, though, in hindsight, Plaintiffs recognize that they should have clarified this point with the Court. At all times, the Gear Plaintiffs and their counsel have sought to act in good faith and in accordance with their understanding of the procedural rules and the interests of judicial efficiency in these consolidated proceedings. They certainly did not intentionally neglect any of their obligations; nor have they sought to delay these proceedings in any way. Quite to the contrary, they sought to amend the pleadings in the case on remand as quickly and efficiently as possible under the controlling law so that the case may proceed expeditiously. If, however, counsel for the Gear Plaintiffs erred in their reading of the requirements, the
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governing law, or the Court’s expectations, they sincerely apologize to this Court and appreciate the opportunity the Court has provided to respond to the WEC Defendants’ motion to dismiss at this time.
2. Plaintiffs’ Complaint is not moot, or their claimed constitutional violations are capable of repetition but evading review. a. Plaintiffs’ claims in their original Complaint were pegged to the facts known about COVID-19 at the time and not intended to expire at any time definite.
In the original Complaint, Plaintiffs based their claims and prayer for relief upon specific and objective facts, events, and orders, including but not limited to the upcoming election and Emergency Order #12, dkt. 1 at 22-23. The complete phrase was “for at least such time as Emergency Order #12 remains in place, subject to further extension,” id. (emphasis added), signaling that the emergency order’s duration should be the minimum, not the maximum, duration of the injunction Plaintiffs asked the Court to enter. The prayer for relief identified an election that Plaintiffs knew would feel the impact of COVID-19 and used the Emergency Order #12 as an approximate but objective proxy or metric for the danger voters were facing. Yet, as Plaintiffs believe is clear from the express language used in the prayer for relief (“at least”) and throughout the brief, see dkt. 1, Compl. ¶ 60 (“Given the circumstances of the COVID-19 pandemic . . . .”), they did not intend that relief be cut off upon the expiration of the emergency order or the end of the April 7 election, without consideration for whether the underlying circumstances that led to the constitutional violation were ongoing and would continue to impact voters’ ability to safely cast ballots.
Therefore, the WEC Defendants are wrong to argue that “[t]he fact that the safer at home order is no longer in place in Wisconsin negates the central argument of the complaint.” Dkt. 142 at 5. The fact that Plaintiffs would be required to violate Emergency Order #12 to comply with the witness requirement was always a secondary, if not tertiary, point in this case. As is clear from the
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sole cause of action, Plaintiffs’ central argument has always been that voters would be exposed to the dangers of COVID-19 by being forced to comply with the witness requirement. See dkt. 1, Compl. ¶ 58 (“Under the circumstances of the COVID-19 pandemic, which has led both the federal and Wisconsin state government to declare emergencies and has led Governor Evers to issue Emergency Order #12, ordering Wisconsin residents to stay at home (with limited exceptions) and banning ‘[a]ll public and private gatherings of any number of people that are not part of a single household or living unit,’ it is not safe, reasonable, or even logical to require mail-in absentee voters who live alone or do not have an adult U.S. citizen living in their household to seek out and obtain a witness’s signature in order for the ballot to be validly cast and counted.”) (emphasis added); id. ¶ 60 (“Given the circumstances of the COVID-19 pandemic, eligible Wisconsin voters who live alone or who do not have an adult U.S. citizen living in their household simply cannot comply with the requirements of Wis. Stat. § 6.87(4)(b)1. and still cast a mail-in absentee ballot that will count. Therefore, under these circumstances, Section 6.87(4)(b)1. now creates an undue burden on mail-in absentee voters’ right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as construed by Anderson and Burdick.”) (emphasis added). The WEC Defendants are focused exclusively on the prayer for relief, ignoring other statements throughout the Complaint that Plaintiffs believe make it clear, as they intended, that the duration of the Emergency Order #12 was a minimum, not a maximum, period for the requested injunction. At one point, the WEC Defendants do state that Plaintiffs’ “claim is limited to the circumstances surrounding the pandemic,” dkt. 142 at 4, seemingly admitting that as long as the pandemic is ongoing, Plaintiffs’ constitutional rights will continue to be injured. Similarly, the WEC Defendants concede that “[t]he COVID-19 virus will likely still pose a threat” in future elections, dkt. 142 at 5, and, therefore, the burdens imposed upon voters and the constitutional violations are ongoing. The harm to Plaintiffs will continue unabated, absent some kind of relief from this Court.
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Furthermore, the Complaint was filed in late March, during the early days of the pandemic when much less was known about COVID-19. Far more is known about the transmission dynamics of the COVID-19 pandemic now, and Plaintiffs plan to introduce an expert witness declaration and testimony from an epidemiologist that will establish on the record what has been learned about the pandemic since that time. It is that scientific evidence that has informed Plaintiffs’ decision to pursue relief for the November 2020 general election. Because leave to amend is either allowed as a matter of course once, and is otherwise “freely give[n] when justice so requires,” Fed. R. Civ. P. 15(a)(2), especially in light of new information, the Gear Plaintiffs anticipated that they might well have to amend the complaint in the future to seek relief for subsequent elections in 2020 and to add information relevant to the projected transmission of COVID-19 through the end of 2020. However, the Gear Plaintiffs were reluctant to do so until more information about the long-term dynamics of COVID-19, including the various factors that inform epidemiologists’ modeling of this pathogen’s transmission dynamics through the fall of 2020, was known.
Instead of understanding the Complaint as an initial statement of the facts known to the Plaintiffs at the time and the invocation of the Emergency Order #12’s duration as the minimum duration of the pandemic’s danger and the minimum duration of the requested injunction, the WEC Defendants now seek to confine Plaintiffs to those original factual allegations. The Gear Plaintiffs3 will continue to suffer injuries from the constitutional and federal statutory violations caused by the interaction of Wisconsin’s witness requirement and the pandemic that the WEC Defendants themselves concede will still pose a risk to voters in November.4
3 Four of the six Plaintiffs have been included in the proposed First Amended Complaint. Dkt. 155-1 at 24-33. 4 The WEC Defendants’ full statement is: “The COVID-19 virus will likely still pose a threat, but that is not a governmental action that this court has any control over.” Dkt. 142 at 5. The WEC Defendants can raise their state action defense on the merits, but that is not an argument for mootness. In any event, in issuing the preliminary injunction, dkt. 107, 115, this Court has presumably already rejected these state action arguments, which were raised in the preliminary
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b. In the alternative, the constitutional violations at issue would still be capable of repetition but would evade this Court’s review.
If the Court nevertheless believes the action was confined to the April 7 election or Emergency Order #12 and is now moot, in the alternative, the Gear Plaintiffs submit that their claimed violations, so limited, would still be capable of repetition in each election in Wisconsin during the COVID-19 pandemic but would continue to evade this Court’s complete and final review. This exception to application of the mootness doctrine applies when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (citations and quotation marks omitted); Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Seventh Circuit and district courts in this Circuit have applied this exception to mootness in election law cases. In Tobin for Governor v. Illinois State Board of Elections, the Seventh Circuit noted that “[t]he cases that traditionally have fallen within the ‘capable of repetition’ exception have involved challenges to the validity of statutory provisions that will continue to operate past the election in question.” 268 F.3d 517, 528–29 (7th Cir. 2001). Similarly, in Acevedo v. Cook County Officers Electoral Board, an Anderson-Burdick challenge to an election law, the Seventh Circuit concluded that “[t]hough the election is over, [the plaintiff’s] claim is not moot because it is capable of repetition, yet evading review.” 925 F.3d 944, 947–48 (7th Cir. 2019). And lastly, in a case decided by the U.S. District Court for the Northern District of Illinois, the Court found that a challenge to ballot access restrictions was not moot following the election: “The fact that the November 2012 election has long since been decided does not render Plaintiffs’ claims moot, as the ballot restrictions they challenge prevented Fox and the Libertarian Party from appearing on the ballot
injunction briefing directed at the April 7 election and rebutted by Plaintiffs in their reply brief. See dkt. 160.
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and continue to restrict the political activities of potential new parties and their members.” Libertarian Party of Ill. v. Ill. Bd. of Elections, 164 F. Supp. 3d 1023, 1028 n.2 (N.D. Ill. 2016) (citing Lee v. Keith, 463 F.3d 763, 767 (7th Cir. 2006); Storer v. Brown, 415 U.S. 724, 737 (1974)).
As to the first factor, the Seventh Circuit has stated that an election is “one of those inherently transitory situations . . . that will run its course faster than courts can usually act to provide complete review on the merits.” Ciarpaglini v. Norwood, 817 F.3d 541, 547 (7th Cir. 2016). In the abortion context, it is generally accepted that the window of a pregnancy is sufficiently short that challenged abortion restrictions cannot be fully litigated before those restrictions no longer apply to a pregnant plaintiff. Roe v. Wade, 410 U.S. 113, 125 (1973) (“[T]he normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete.”). Longer windows can still be deemed too short to prevent full litigation. See, e.g., Turner v. Rogers, 564 U.S. 431, 440 (2011) (one-year period found too short); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (18-month period). The Seventh Circuit has stated that:
A suit by a pregnant woman challenging a state law limiting the right to an abortion is unlikely to be decided before the pregnancy ends one way or another, and so the termination of the pregnancy is held not to terminate jurisdiction. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Challenges to election rules are treated the same way. Norman v. Reed, 502 U.S. 279, 287–88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988); Stewart v. Taylor, 104 F.3d 965, 969–70 (7th Cir.1997). Majors v. Abell, 317 F.3d 719, 722 (7th Cir.), certified question accepted, 785 N.E.2d 226 (Ind. 2003), and certified question answered, 792 N.E.2d 22 (Ind. 2003). If constitutional challenges to Wisconsin’s witness requirement in the context of the COVID-19 pandemic are found moot after the conclusion of each election or the termination of each emergency order, then a couple months’ time is too short a period in which to litigate these claims to completion, including all appeals of preliminary and permanent injunctive relief.
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As to the second factor, an action is reasonably expected to recur when the plaintiff demonstrates a real, rather than hypothetical, possibility that the same plaintiff will face a substantially similar situation in the future. A real possibility is demonstrated when a plaintiff establishes a “reasonable expectation,” “demonstrated probability,” or “reasonable showing” that the challenged action will recur. Murphy v. Hunt, 455 U.S. 478, 482 (1982); City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). In Stotts v. Community Unit School District No. 1, the Seventh Circuit stated that “the particular plaintiff must have a reasonable expectation of suffering from the same harm again.” 230 F.3d 989, 991 (7th Cir. 2000); see also Washington v. Marion County Prosecutor, 264 F. Supp. 3d 957, 970–71 (S.D. Ind. 2017) (“[T]he ‘capable of repetition yet evading review’ exception requires a plaintiff to show that he risks being subjected again to the offending behavior. . .”).
Here, the second requirement would clearly be satisfied if this Court concludes the original complaint was time-limited. The individual voters named as Plaintiffs will be forced to comply with the witness requirement in the November 2020 general election and subsequent elections during the pandemic. While they cannot reasonably seek facial invalidation in light of the Seventh Circuit’s stay order, they are entitled to pursue narrower relief to alleviate the undue burden and unconstitutional condition imposed on their right to vote. As the WEC Defendants concede, “[t]he COVID-19 virus will likely still pose a threat” to Wisconsin voters in future elections. Dkt. 142 at 5. Therefore, the burdens imposed upon voters and the constitutional violations are recurring in every election in Wisconsin during the COVID-19 pandemic.
As to the organizational Plaintiffs, both League of Women Voters of Wisconsin (“LWVWI”) and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) will continue to be forced to divert resources and staff time to educating voters about and helping voters with the witness requirement in the November 2020 general election. See dkt. 155-1, Compl. ¶¶ 30–48.
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These injuries do not cease with the April 7 election. What Plaintiffs and their counsel have learned about the virus since the original Complaint was filed in late March makes clear that the pandemic’s threat to voters will be ongoing through the fall and will make it very difficult or impossible for voters to safely comply with the witness requirement through reasonable efforts. While voters are unduly and unconstitutionally burdened, organizations, such as LWVWI and Wisconsin Alliance, that take it as their core mission to educate and assist these voters will be correspondingly unduly and unconstitutionally burdened.
Accordingly, if the Court concludes that this case is moot as originally pled, the original Complaint’s claims would nevertheless be capable of repetition but evading final adjudication and review. Plaintiffs would respectfully request that they be afforded the opportunity to amend their Complaint—for the first time in this litigation—to direct their existing and new claims at the November 2020 general election, as is now well-supported by the epidemiological evidence.
Conclusion The Gear Plaintiffs respectfully request that this Court grant their motion for leave to add and drop plaintiffs from the 20-cv-278 action and deny the WEC Defendants’ motion to dismiss as moot. If, however, the Court grants the WEC Defendants’ motion to dismiss, such dismissal on mootness grounds would typically be without prejudice. See, e.g., Dixon v. ATI Ladish LLC, 667 F.3d 891, 894 (7th Cir. 2012) (“Yet a good defense to liability is a reason why defendants prevail on the merits rather than a reason why the litigation should be dismissed without prejudice—which is the consequence of mootness.”). In that event, Plaintiffs respectfully would renew their request for leave to file their proposed First Amended Complaint on the docket. Failing that, Plaintiffs will have to resort to filing the proposed First Amended Complaint as a new action related to the 20-cv-249 case, move for consolidation, and move for a preliminary injunction.
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Dated: June 18, 2020

Respectfully submitted,
/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 (202) 331-0114 (telephone) jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org
Douglas M. Poland State Bar No. 1055189 David P. Hollander, State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com
Attorneys for Plaintiffs in Case No. 20-cv-278-wmc
*Admitted to the U.S. District Court for the Western District of Wisconsin

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 Case: 3:20-cv-00249-wmc Document #: 236 Filed: 07/02/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

CHRYSTAL EDWARDS, TERRON EDWARDS, JOHN JACOBSON, CATHERINE COOPER, KILEIGH HANNAH, KRISTOPHER ROWE, KATIE ROWE, CHARLES DENNERT, JEAN ACKERMAN, WILLIAM LASKE, JAN GRAVELINE, TODD GRAVELINE, ANGELA WEST, DOUGLAS WEST, and all others similarly situated,
Plaintiffs,
v.
ROBIN VOS, in his official capacity as Speaker of the Wisconsin State Assembly; SCOTT FITZGERALD, in his official capacity as Majority Leader of the Wisconsin State Senate; STATE OF WISCONSIN; WISCONSIN STATE ASSEMBLY; WISCONSIN STATE SENATE; WISCONSIN ELECTIONS COMMISSION; MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as members of the Wisconsin Elections Commission, and MEAGAN WOLFE, in her official capacity as the Administrator of the Wisconsin Elections Commission,
Defendants.

Case No. 20-CV-340

REPLY MEMORANDUM OF DEFENDANTS WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS,
DEAN KNUDSEN, ROBERT F. SPINDELL, JR., MARK L. THOMSEN AND MEAGAN WOLFE IN SUPPORT OF THEIR MOTION TO DISMISS THE
AMENDED COMPLAINT AGAINST THEM

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The above-named defendants, the Wisconsin Elections Commission (“WEC”), WEC Commissioners Bostelmann, Glancey, Jacobs, Knudsen, Spindell and Thomsen, and WEC Administrator Wolfe, the individuals being sued in their official capacity, have filed a motion to dismiss the amended complaint against them for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. Proc. This memorandum is filed in reply to the plaintiffs’ memorandum in opposition to the motion. I. The Court Lacks Subject Matter Jurisdiction in Regard to the Claims Against the
WEC Defendants. The plaintiffs assert that the WEC defendants have interests sufficiently adverse to the plaintiffs because they are charged with enforcing the elections laws at issue and would have a role in implementing the injunctive relief sought. Yet the plaintiffs have not brought suit against other parties, most notably Wisconsin county and municipal officials, who have significant roles in the administration of elections. See, e.g., Wis. Stat. §§ 7.10 (county clerks must issue election supplies and ballots) and 7.15 (municipal clerks supervise registration and elections). Numerous officials and offices integral to the conduct of elections in Wisconsin are not involved in this case, yet they will be bound to follow, and may be compelled to follow, any orders of this Court which affect their responsibilities. Alternatively, the Court would not be able to order the relief requested, even if it were justified, because the proper parties are not present. The WEC defendants are bound to follow whatever directives this Court might issue, as has been stated repeatedly in this and other cases. Local municipalities, however, are wholly separate entities not within the WEC’s control. The law is clear that in order for a court to have subject matter jurisdiction over a case, the litigants must have adverse legal interests. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-4, 57 S.Ct. 461 (1937). The plaintiffs cite United States v. Windsor, 570 U.S. 744, 759 (2013), INS
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v. Chadha, 462 U.S. 919, 940 (1983), and their progeny for the proposition that where the government continues to enforce the law being challenged, a justiciable controversy exists. Yet in those cases enforcement of the law involved a specific action government officials intended to undertake, or not undertake, in reliance upon a law that the government did not favor. For example, in Chadha the Immigration and Naturalization Service intended to deport an individual upon the demand of one House of Congress even though the Executive Branch viewed the applicable statute to be unconstitutional. 462 U.S at 930. Following its discussion of Chadha, the Court in Windsor made clear that “the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III.” 570 U.S. at 759. Adversity sufficient to give rise to subject matter jurisdiction is not dependent upon what the parties think about a particular law being challenged, but rather upon whether they intend to act in reliance upon that law.
The problem in this case is that with respect to the injunctive relief sought, there is no specific action the WEC defendants intend to take, or not take, that the plaintiffs wish to enjoin. The plaintiffs seek an order requiring the WEC defendants to abide by the ADA and take reasonable, constitutionally sufficient measures to allow the plaintiffs to vote safely. As pointed out in the WEC defendants’ initial brief, vague injunctions of the sort sought here are disfavored, in part because they give no specific direction as to the conduct expected. EEOC v. AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013). Regardless, the WEC defendants have not refused to follow the ADA, nor have they refused to undertake any specific measures going forward relative to the relief being sought. Unlike the situation in Windsor, where the Court found that the Executive would be harmed by an order requiring a refund from the Treasury, 570 U.S. at 758, the WEC defendants will not be harmed by the type of injunctive relief sought in this case. They have stated that they are bound to follow any order issued in this case and would have no authority to appeal it. Since,
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as discussed below, they are not subject to an award of damages for past conduct and they are not in a position to oppose the injunctive relief sought, the WEC defendants should be dismissed from this case. II. The Amended Complaint Does Not State a Valid Claim for Damages Under the ADA.
The plaintiffs cite two paragraphs in the amended complaint in support of their contention that they have alleged sufficiently that the WEC defendants acted with intent or deliberate indifference, thereby allowing their claim for damages under Title II of the ADA to withstand the motion to dismiss. Those paragraphs allege that the plaintiffs would have voted in the Spring Election had they been afforded reasonable accommodations (AC ¶ 129), and that “upon information and belief Defendants’ discriminatory conduct toward the ADA Class caused Plaintiffs to not be able to vote in the Spring Election. (AC ¶ 131.) The plaintiffs also cite to a footnote in Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) for the proposition that facts alleged in a complaint can be supported by consistent facts set forth in a brief.
As to the last point, the footnote in Geinosky states that a plaintiff appealing dismissal of a case under Rule 12(b)(6) “may elaborate on his factual allegations so long as the new elaborations are consistent with the pleadings.” The footnote does not purport to alter the rule “that the complaint may not be amended by the briefs in opposition to a motion to dismiss,” or that a district court’s “consideration of a motion to dismiss is limited to the pleadings.” Car Carriers, Inc. v. Ford Motor Corp., 745 F.2d 1101, 1107 (7th Cir. 1984); see also Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007)(courts do not consider after-the-fact allegations in determining sufficiency of the complaint under Rules 9(b) and 12(b)(6)).
The amended complaint is silent as to any reasonable accommodations the WEC defendants refused to provide. The plaintiffs seek to remedy that deficiency by offering some
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unwieldy possibilities in their brief. Even if those contentions are appended to the complaint, which they should not, there is no claim that the WEC defendants had the authority or practical ability to employ any such measures prior to the Spring Election. The WEC cannot have failed to act upon a matter, and thereby have intentionally discriminated in violation of the ADA, if the remedial measures were outside its control.
The amended complaint alleges that “(b)y insisting on allowing the Spring Election to proceed without consideration of that decision’s impact on individuals with disabilities, the State and the Commission violated the ADA…” (AC ¶ 120.) The amended complaint also acknowledges, however, that the legislature controls the “mode, method and timing of Wisconsin Elections.” (AC ¶ 96.) The amended complaint does allege that all of the defendants acted “intentionally, with malice and indifference” in violation of the ADA. (AC ¶ 130.) Yet that is precisely the type of “formulaic recitation of the elements of a cause of action” that is insufficient to state a claim in accordance with Rules 8(a) and 9(b), Fed. R. Civ. P. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). While Rule 9(b) allows a party’s intent to be plead “generally,” that does not mean that knowledge and intent may be plead in a conclusory fashion. Ashcroft v. Iqbal, 556 U.S. 662, 686, 129 S.Ct. 1937 (2009). “(T)he Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its factual context.” Id. The amended complaint in this case does not allege facts sufficient to support an inference that the WEC defendants intentionally discriminated against the plaintiffs. In fact, it clearly states that the timing and mode of elections are matters outside their control.
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III. The Parties Agree that Any Claim for Money Damages under 42 U.S.C. § 1983 is Barred by Sovereign Immunity.
The WEC defendants asserted in their initial brief that any claim for money damages under 42 U.S.C. § 1983 is barred by sovereign immunity. The plaintiffs have agreed that their only claim for money damages arises under the ADA. IV. CONCLUSION.
For the foregoing reasons, the WEC defendants respectfully request that the Court grant their motion to dismiss them as defendants in this case.
Respectfully submitted this 2nd day of June, 2020 /s/ Dixon R. Gahnz Dixon R. Gahnz, SBN: 1024367 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375 Daniel S. Lenz, SBN: 1082058 LAWTON & CATES, S.C. 345 W. Washington Ave., Suite 201 Madison, WI 53701-2965 PH: 608-282-6200 Fax: 608-282-6252 dgahnz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com dlenz@lawtoncates.com Attorneys for Defendants Wisconsin Elections Commission, WEC Commissioners Bostelmann, Glancey, Jacobs, Knudsen, Spindell and Thomsen, and WEC Administrator Wolfe
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 Case: 3:20-cv-00249-wmc Document #: 237 Filed: 07/02/20 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Chrystal Edwards, Terron Edwards, John Jacobson, Catherine Cooper, Kileigh Hannah, Kristopher Rowe, Katie Rowe, Charles Dennert, Jean Ackerman, William Laske, Jan Graveline, Todd Graveline, Angela West, Douglas West, and all others similarly situated,
Plaintiffs, v. Robin Vos, in his official capacity as Speaker of the Wisconsin State Assembly; Scott Fitzgerald, in his official capacity as Majority Leader of the Wisconsin State Senate; Wisconsin State Assembly; Wisconsin State Senate; Wisconsin Elections Commission; Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as members of the Wisconsin Elections Commission, and Meagan Wolfe, in her official capacity as the Administrator of the Wisconsin Elections Commission,
Defendants, and Republican National Committee and Republican Party Of Wisconsin,
Intervenor Defendants.

Case No. 3:20-cv-340wmc (consolidated with Nos. 3:20-cv-249, 3:20cv-278-wmc, 3:20-cv284-wmc, and 3:20-cv459-wmc)

LEGISLATIVE DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT

ROBERT E. BROWNE, JR. (State Bar No. 1029662) KEVIN M. LEROY (State Bar No. 1105053) SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax)

MISHA TSEYTLIN (State Bar No. 1102199) TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com
Attorneys for Legislative Defendants

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1 ARGUMENT .................................................................................................................. 2
I. Plaintiffs’ Near-Boundless Challenge To Wisconsin’s Election Laws, Broader Than The Challenge In DNC v. Bostelmann, Is Unripe ..................... 2
II. The Amended Complaint Fails To State A Claim ............................................. 4 A. Plaintiffs’ Anderson/Burdick Claim, Which Differs From The Anderson/Burdick Claim In DNC v. Bostelmann, Fails .............................. 4 B. Plaintiffs’ Americans With Disabilities Act Claim, Which Has No Counterpart In DNC v. Bostelmann, Also Fails .......................................... 7
III. As Plaintiffs’ Rightly Concede, They May Not Seek Damages From The State For Their Anderson/Burdick Claim........................................................ 11
IV. Speaker Vos And Leader Fitzgerald May Remain As Defendants Only Because The Legislature May Speak For The State’s Interests In Defense Of State Law ....................................................................................... 11
V. Burford Abstention Applies Here, Including Because The Presence Of A “Specialized” State Tribunal Is Not An Absolute Prerequisite ....................... 12
CONCLUSION............................................................................................................. 13

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TABLE OF AUTHORITIES
Cases A.H. by Holzmueller v. Ill. High Sch. Ass’n,
881 F.3d 587 (2018)....................................................................................... 8, 11 Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs.,
721 F.3d 871 (7th Cir. 2013) ............................................................................. 11 Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ........................................................................................... 10 Bogan v. Scott-Harris,
523 U.S. 44 (1998) ............................................................................................. 12 Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101 (7th Cir. 1984) ............................................................................. 9 CMFG Life Ins. Co. v. Banc of Am. Sec. LLC,
No. 13-CV-579-wmc, 2014 WL 2986474 (W.D. Wis. July 2, 2014) .................... 8 Frank v. Walker,
768 F.3d 744 (7th Cir. 2014) ........................................................................... 6, 7 Frank v. Walker,
819 F.3d 384 (7th Cir. 2016) ............................................................................... 7 Geinosky v. City of Chicago,
675 F.3d 743 (7th Cir. 2012) ............................................................................... 3 Griffin v. Roupas,
385 F.3d 1128 (7th Cir. 2004) ......................................................................... 4, 8 Hildreth v. Butler,
960 F.3d 420 (7th Cir. 2020) ......................................................................... 9, 10 Luft v. Evers,
___ F.3d ___, 2020 WL 3496860 (7th Cir. June 29, 2020) ......................... 1, 5, 6 Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ............................................................................................. 7 New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350 (1989) ........................................................................................... 13 Oconomowoc Residential Programs v. City of Milwaukee,
300 F.3d 775 (7th Cir. 2002) ............................................................................... 9 Olmstead v. L.C.,
527 U.S. 581 (1999) ........................................................................................... 11 Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ........................................................................................... 13
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Reeder v. Madigan, 780 F.3d 799 (7th Cir. 2015) ............................................................................. 12
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ......................................................................................... 6
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ............................................................................................. 3
Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) ....................................................................... 4, 7, 8
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ............................................................................................. 9
W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670 (7th Cir. 2016) ............................................................................. 10
Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011) ............................................................................... 3
Other Authorities Memo of Administrator Meagan Wolfe, Curbside Voting, Drive-Through
Voting And Outdoor Polling Places (Mar. 29, 2020).......................................... 9 Memo of Administrator Meagan Wolfe, Hospitalized Electors And Public
Health Guidance (Mar. 29, 2020) ..................................................................... 10 Wis. Elections Comm’n, Update on Commission Actions 5/27- COVID-19
(May 27, 2020) ..................................................................................................... 2
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INTRODUCTION Plaintiffs’ Amended Complaint differs in numerous ways from the complaint that this Court recently declined to dismiss in Democratic National Committee v. Bostelmann, No. 3:20-cv-249-wmc, Dkt. 217 (W.D. Wis. June 10, 2020), and this Court should grant Legislative Defendants’ motion to dismiss here. Among other key differences, (1) the claims in this case are far broader than in DNC, seeking more intrusive, speculative relief against Wisconsin’s election system; (2) many of Plaintiffs’ legal theories and assertions are premised upon allegations relating to the claimed subjective motives for Legislative Defendants’ decision not to postpone the April 7 Election, which, as the Seventh Circuit very recently held in Luft v. Evers, ___ F.3d ___, 2020 WL 3496860, at *2–3 (7th Cir. June 29, 2020), are completely improper; (3) Plaintiffs’ lawsuit involves a claim under Title II of the Americans with Disabilities Act (“ADA”), where Plaintiffs have not even attempted to allege elements of such a claim; and (4) Plaintiffs seek to bring claims against legislators for their legislative actions, something that legislative immunity plainly forbids. Further, and in addition, the Seventh Circuit’s post-DNC decision in Luft provides additional, powerful reasons requiring dismissal of the Amended Complaint. This Court should thus dismiss Plaintiffs’ Amended Complaint in whole or, at the very minimum, in part.

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ARGUMENT I. Plaintiffs’ Near-Boundless Challenge To Wisconsin’s Election Laws, Broader
Than The Challenge In DNC v. Bostelmann, Is Unripe Plaintiffs’ claims are unripe because they depend on the course of the COVID19 pandemic in the months ahead, medical advances developed during that time, and the government’s mitigating responses. Dkt. 13 at 10–11. Since Legislative Defendants filed their Motion to Dismiss, the Wisconsin Elections Commission (“Commission”) has taken steps that alleviate Plaintiffs’ concerns, including as to the mailing of absentee ballots, further demonstrating the contingent nature of Plaintiffs’ claims. See Wis. Elections Comm’n, Update on Commission Actions 5/27- COVID-19 (May 27, 2020).1 Nor would Plaintiffs suffer any hardship from the Court refusing to adjudicate their claims now, since they have ample opportunities to vote in the upcoming 2020 elections. See Dkt. 13 at 12–13. The breadth of Plaintiffs’ claims and requested relief distinguishes this case from DNC, in terms of ripeness. The DNC plaintiffs’ now-operative complaint “identifie[d] specific burdens” from “[s]pecifically” challenged provisions of Wisconsin election law. DNC, No. 3:20-cv-249-wmc, Dkt. 217 at 3, 11. Those specific challenges were ripe, this Court concluded, because no defendant had “argue[d] that any of the challenged provisions will not be enforced in the upcoming elections.” Id. at 6. Importantly, the Court also noted “that some unforeseen, future event” could “call into reasonable question plaintiffs’ claims for relief,” which would allow the Court “to
1 Available at https://elections.wi.gov/node/6915 (all websites last visited July 1, 2020).
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take up [a] ripeness argument again[.]” Id. at 8; accord Dkt. 25 at 8. Here, Plaintiffs near-boundless challenge fails to identify any “specific burdens” from “specifically” challenged Wisconsin statutes. To the contrary, Plaintiffs have requested that the Court enjoin any election law that they find “[un]reasonable.” Dkt. 5 ¶ 8.b. So, without any guiding or limiting principle to sharpen this request, further factual development is necessary, unlike in DNC. Dkt. 13 at 9. Additionally, Plaintiffs have requested universal mail-in voting as a remedy, yet the Commission’s decision to mail absentee-ballot applications to certain registered voters “call[s] into reasonable question” this claim for relief. DNC, No. 3:20-cv-249-wmc, Dkt. 217 at 8.
Plaintiffs criticize Legislative Defendants for “present[ing] additional facts” in their Motion to Dismiss. Dkt. 25 at 2–5. As Legislative Defendant’s explicitly stated, these facts are all drawn from publicly available government sources and so are “subject to proper judicial notice” at this stage, Dkt. 13 at 1 n.1, as even Plaintiffs’ cited authority recognizes, Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); Dkt. 25 at 2.
Finally, invoking Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139 (7th Cir. 2011), and Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), Plaintiffs claim that this Court must review their claims now, since any delay would force them to “forego[ ]” their right to vote. Dkt. 25 at 7–8. However, both Wisconsin Right to Life, 664 F.3d at 148–49, and Susan B. Anthony List, 573 U.S. at 167–68, rejected ripeness challenges because the laws at issue already chilled plaintiffs’ speech, such that plaintiffs were experiencing immediate burdens on their
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rights, see Dkt. 13 at 9–10. Here, in contrast, Plaintiffs’ voting rights are burdened only if they cannot cast a ballot in a future 2020 election. Dkt. 13 at 12–13. Since those elections are months away, and since Plaintiffs may request absentee ballots for them immediately, no such burden exists. Dkt. 13 at 12–13. II. The Amended Complaint Fails To State A Claim
A. Plaintiffs’ Anderson/Burdick Claim, Which Differs From The Anderson/Burdick Claim In DNC v. Bostelmann, Fails
Plaintiff’s sweeping Anderson/Burdick claim—premised on Legislative Defendants’ “failure” to postpone the April 7 Election—fails because their Amended Complaint does not sufficiently allege that the (unidentified) election laws that Plaintiffs challenge imposed anything more than reasonable burdens on their right to vote. Dkt. 13 at 19; see Dkt. 5 at 50 ¶ b, ¶¶ 99, 102, 112. Further, their request for universal mail-in voting is legally foreclosed, Dkt. 5 ¶¶ 8.b., 54, 112; id. at 50, because “it is obvious that a federal court is not going to decree . . . all-mail voting” or “unlimited absentee voting,” Dkt. 13 at 22 (quoting Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004)); accord Texas Democratic Party v. Abbott, 961 F.3d 389, 409 (5th Cir. 2020) (“The Virus’s emergence has not suddenly obligated [the State] to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.”). And their stray references to understaffed polling locations in some parts of the State also fail, since local election officials—not Legislative Defendants or the operation of Wisconsin law—were responsible for the ill-advised decisions that caused those election-day delays. Dkt. 13 at 20.
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The Seventh Circuit’s very recent, post-DNC decision in Luft further demonstrates why the Court must dismiss this claim. There, the court rejected plaintiffs’ “challenges to more than a dozen provisions” of Wisconsin’s election law, including their Anderson/Burdick claims. 2020 WL 3496860 at *1, 6–8; compare id. at *6 (upholding injunction of one provision on preemption, not Anderson/Burdick, grounds). In rejecting these claims, the Seventh Circuit repeatedly emphasized that Anderson/Burdick requires consideration of “the state’s election code as a whole,” rather than “evaluat[ion] [of] each clause in isolation.” Id. at *3. So, for example, a “state with liberal access to absentee ballots,” like Wisconsin, “may well offset this with more stringent verification of eligibility.” Id. Indeed, Wisconsin in particular “has lots of rules that make voting easier,” and “[t]hese facts matter when assessing challenges to a handful of rules that make voting harder.” Id. This binding decision defeats Plaintiffs’ challenge here: They make no effort to allege that Wisconsin’s “election code as a whole” imposes anything more than a reasonable burden, especially in light of the State’s generous, no-excuses-needed absentee-voting regime. Id.; compare Dkt. 25 at 13–14. And while “some voters [ ] might be inconvenienced by,” for example, the “rule” requiring them to actually request an absentee ballot, invalidating such a provision on those grounds alone would “not [be] a plausible application of Anderson and Burdick.” Luft, 2020 WL 3496860 at *7.
Plaintiffs’ arguments in support of their Anderson/Burdick claim fail. First, contrary to their assertions, Dkt. 25 at 14, Plaintiffs’ Anderson/Burdick claim differs fundamentally from the claim in DNC. While the DNC plaintiffs
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challenge significant portions of Wisconsin’s election regime, their now-operative complaint at least “identifie[d] specific burdens that allegedly will be imposed by each of [an enumerated number of] challenged provisions, and further aver[red] that no state interest can justify their enforcement in light of the alleged burdens.” DNC, No. 3:20-cv-249, Dkt. 217 at 11 (emphasis added). Here, however, Plaintiffs do not identify any of the specific election laws under challenge; instead, they ask the Court to enjoin any election law (without discernible limitation) that seems “[un]reasonable.” Dkt. 5 at 50 ¶ b. Further, the “heart” of the claim here is Legislative Defendants’ “failure” to postpone the April 7 Election, see Dkt. 5 ¶¶ 61, 65, an allegation that the now-operative complaint in DNC does not make, and one that this Court refused to entertain in its pre-election DNC order, DNC, No. 3:20-cv249, Dkt. 170 at 28–36.
Second, Plaintiffs argue that Legislative Defendants “afford[ed] no weight to,” or exhibited “lack of concern for,” Plaintiffs’ voting rights when they “refused” to postpone the April 7 Election. Dkt. 25 at 13–14. Plaintiffs are speculating about the subjective intent of Legislative Defendants, without any supporting factual allegations. See Dkt. 25 at 13–14. In any event, such subjective intent is legally irrelevant to the Anderson/Burdick framework, as the Seventh Circuit recently reaffirmed. Luft, 2020 WL 3496860 at *2–3 (citing Rucho v. Common Cause, 139 S. Ct. 2484 (2019)); see also Frank v. Walker, 768 F.3d 744, 750 (7th Cir. 2014) (“Frank I”). As the Fifth Circuit also recently explained, “drive-by speculation about
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the state’s covert motives” for holding in-person voting during the COVID-19 pandemic “is utterly impermissible.” Texas Democratic Party, 96 F.3d at 407.
Third, Plaintiffs argue that their Anderson/Burdick claim survives because “[n]ine plaintiffs aver that they requested absentee ballots, but did not receive them before the election.” Dkt. 25 at 13. Even if those claims did sufficiently allege morethan-reasonable burdens on the right to vote, they would not support the facial invalidation against any “[un]reasonable” election law that Plaintiffs seek. Dkt. 5 at 50 ¶ b. These allegations could only possibly support limited, as-applied relief under Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”). Dkt. 13 at 22–23.
Finally, Plaintiffs complain about a “shortage of poll workers” in “Milwaukee and Green Bay,” but they do not address that this shortage stemmed solely from the decisions of local officials. Dkt. 25 at 13. The Court cannot grant Plaintiffs relief against Legislative Defendants for the “independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted); accord Frank I, 768 F.3d at 753, 755. This also defeats Plaintiffs’ argument about other “voters [ ] not wearing masks or gloves.” Dkt. 25 at 13.
B. Plaintiffs’ Americans With Disabilities Act Claim, Which Has No Counterpart In DNC v. Bostelmann, Also Fails
Plaintiffs’ claim under Title II of the ADA alleges that the “failure” to postpone the April 7 Election amounted to a “refus[al] to accommodate” Plaintiffs’ disabilities
for this election. See Dkt. 5 ¶¶ 130–31; Dkt. 13 at 23–24 (listing the three elements
of this claim). As Legislative Defendants explained, Plaintiffs’ Amended Complaint fails at the first element of this claim because it does not include a request for a
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reasonable accommodation. Dkt. 13 at 25–26. The Amended Complaint also fails at the second and third elements, since Plaintiffs’ difficulties in receiving absentee ballots were due to, at most, inadvertent mistakes in ballot delivery through the mail, not Plaintiffs’ disabilities. Dkt. 13 at 26–27; see A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593 (2018). Finally, Plaintiffs’ Amended Complaint has not plausibly alleged “deliberate indifference” on behalf of Legislative Defendants, foreclosing any damages recovery, even if Plaintiffs had otherwise stated a valid ADA claim. Dkt. 13 at 27–28.
In response, Plaintiffs do not even attempt to argue that the absentee-ballotmail-delivery failures were caused by their disabilities. See Dkt. 25 at 14–16; A.H. by Holzmueller, 881 F.3d at 593. Given that this is an essential element of Plaintiffs’ claim, this failure alone requires dismissal. See CMFG Life Ins. Co. v. Banc of Am. Sec. LLC, No. 13-CV-579-wmc, 2014 WL 2986474, at *2 (W.D. Wis. July 2, 2014) (holding that by failing to respond to argument in brief in opposition, party “waived any argument to the contrary”).
Further, on the issue of reasonable accommodation, Plaintiffs do not explain how automatic, universal mail-in voting could possibly be reasonable, especially when “it is obvious that a federal court is not going to decree . . . all-mail voting” or “unlimited absentee voting.” Dkt. 13 at 22 (quoting Griffin, 385 F.3d at 1130); see also id. at 26; accord Texas Democratic Party, 961 F.3d at 409. Instead, Plaintiffs argue that the reasonable-accommodation question is immune from dismissal at the motion-to-dismiss stage, since it requires a “highly fact-specific” inquiry. Dkt. 25
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at 15. This overlooks an important threshold step—namely, that Plaintiffs first “show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002) (emphasis added); Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783–84 (7th Cir. 2002). Only after the plaintiff meets this initial burden does the analysis proceed to a more fact-specific inquiry. US Airways, 535 U.S. at 401; Oconomowoc, 300 F.3d at 783. Since Plaintiffs have not alleged that their accommodation is reasonable “on its face,” dismissal at the motion-to-dismiss stage is required.
Plaintiffs next attempt to smuggle in other accommodation requests, like “enhanced drive-up voting” or “sending teams of election officials to the homes of disabled voters.” Dkt. 25 at 15. Those requests are missing from Plaintiffs’ Amended Complaint, as Plaintiffs admit, see Dkt. 25 at 15, so they cannot satisfy Plaintiffs’ pleading burden, see Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Regardless, these new requests do not save their claim because, among other reasons, Plaintiffs’ Amended Complaint does not allege why existing accommodations in Wisconsin law are unreasonable. See Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir. 2020). Wisconsin already provides for safe “curbside voting” for voters with disabilities. Dkt. 13 at 2–3, 27; Memo of Administrator Meagan Wolfe, Curbside Voting, Drive-Through Voting And Outdoor Polling Places at 2–5 (Mar. 29, 2020).2 And “hospitalized electors”—who may receive ballot-casting assistance—
2 Available at https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/Clerk%20c omm%20re%20Curbside%2C%20Drive-Through%2C%20Outdoors%203.29.20_0.pdf.
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“include voters who are quarantined” due to COVID-19. See Memo of Administrator Meagan Wolfe, Hospitalized Electors And Public Health Guidance at 1 (Mar. 29, 2020);3 Dkt. 13 at 2–3, 27.
Finally, Plaintiffs argue that they are entitled to damages for their ADA claim since Legislative Defendants acted with “deliberate indifference” to their rights, but the only two allegations that they cite do not plausibly support that conclusion. Dkt. 25 at 15–16; Hildreth, 960 F.3d at 431. As for Legislative Defendants’ refusal to postpone the election after the Governor called special legislative sessions for this purpose, Dkt. 25 at 15 (citing Dkt. 5 ¶ 65), this could only plausibly show that Legislative Defendants disagreed with the Governor’s late-breaking desire to delay the election, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And as for the allegation that at “‘every opportunity’” Legislative Defendants “‘chose to adhere to a process they knew would restrict the franchise in violation of the Plaintiffs’ constitutional rights,’” Dkt. 25 at 16 (quoting Dkt. 5 ¶ 68), this is “no more than conclusions” about subjective intent, which do not meet Plaintiffs’ burden, W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (citation omitted).4
Amicus American Diabetes Association argues that the inadvertent-mailingfailure allegations support an ADA claim because “Title II prohibits public entities
3 Available at https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/Hospitalized %20Electors.pdf.
4 Plaintiffs have also argued that “deliberate indifference” is a free-standing ADA claim. Dkt. 25 at 15–16. Alleging “deliberate indifference” is a requirement to recover damages under the ADA, not an independent claim. Hildreth, 960 F.3d at 431.
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from administering their programs, even unintentionally, in such a way that excludes individuals with disabilities[.]” Dkt. 23-1 at 9. This is just another way to state that “the ADA requires proof of causation,” A.H. by Holzmueller, 881 F.3d at 593, which, again, Plaintiffs’ have not alleged, Dkt. 13 at 26–27. Neither does Amicus’ citation of Olmstead v. L.C., 527 U.S. 581 (1999), change the outcome, Dkt. 23-1 at 9, as that decision simply held that “discrimination” under the ADA “also” includes “undue institutionalization of disabled persons, no matter how anyone else is treated,” Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 874 (7th Cir. 2013) (emphasis omitted). That method of proof is not applicable here. III. As Plaintiffs’ Rightly Concede, They May Not Seek Damages From The State
For Their Anderson/Burdick Claim Plaintiffs’ Amended Complaint appears to seek damages for their Anderson/Burdick claim, but the Eleventh Amendment bars those damages. Dkt. 13 at 28–29. Plaintiffs have rightfully conceded that the Court may not award damages against the State for their Anderson/Burdick claim. Dkt. 25 at 16. IV. Speaker Vos And Leader Fitzgerald May Remain As Defendants Only Because The Legislature May Speak For The State’s Interests In Defense Of State Law Plaintiffs have named Speaker Vos and Majority Leader Fitzgerald as Defendants in their official capacities as legislators, and then allege only that these legislators’ inaction supports their claims. Dkt. 5 ¶¶ 23–24. But legislative immunity prohibits such claims, since “state and regional legislators are entitled to absolute immunity from liability under [42 U.S.C.] § 1983 for their legislative activities,” including legislative decisions not to enact legislation. Dkt. 13 at 29 (quoting Bogan
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v. Scott-Harris, 523 U.S. 44, 49 (1998)). Therefore, the Court must dismiss Speaker Vos and Majority Leader Fitzgerald as legislators.
Plaintiffs’ incorrectly argue that Speaker Vos and Majority Leader Fitzgerald have only asserted their “legislative immunity under Wisconsin law.” Dkt. 25 at 16. Legislative Defendants made clear that they are claiming the legislative immunity afforded them by the United States Constitution. Dkt. 13 at 29 (citing, among other authorities, Reeder v. Madigan, 780 F.3d 799, 802 (7th Cir. 2015)); Reeder, 780 F.3d at 801–02 (holding state legislators immune under the U.S. Constitution’s Speech and Debate Clause from § 1983 claims). That federal legislative immunity mandates dismissal of Speaker Vos and Majority Leader Fitzgerald as legislators, and Plaintiffs have waived any arguments to the contrary. See Dkt. 25 at 16.
While the Court must dismiss Speaker Vos and Majority Leader Fitzgerald as legislators, they are nonetheless proper defendants here—just in a different capacity than that envisioned by Plaintiffs. Under Wisconsin law, the leaders of the Legislature may appear as parties on behalf of the Legislature’s express authority to speak for the State’s interests in defending State law. Dkt. 13 at 29–31. And while Plaintiffs’ criticize this distinction as “confused,” Dkt. 25 at 16, Speaker Vos and Majority Leader Fitzgerald have regularly exercised this authority, Dkt. 13 at 30–31. V. Burford Abstention Applies Here, Including Because The Presence Of A
“Specialized” State Tribunal Is Not An Absolute Prerequisite The Court should abstain under Burford, given the State’s important regulatory interests in election administration, Dkt. 13 at 14, and the extreme disruption that Plaintiffs’ requested relief would cause, Dkt. 13 at 13–16 (citing New
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Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”)). Plaintiffs argue that Burford abstention is categorically unavailable because Wisconsin election-law issues are not “committed . . . to specialized tribunals.” Dkt. 25 at 11–12. But that is not an absolute prerequisite, especially since there is no “formulaic test for determining when dismissal under Burford is appropriate.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727 (1996). That also suffices to defeat Plaintiffs’ attempt to distinguish NOPSI: because the sweeping injunctions requested here would harm federalism, Burford abstention is justified even if this case does not precisely mirror NOPSI. See Quackenbush, 517 U.S. at 727 (no “formulaic test”). And, again, Plaintiffs seek far more sweeping relief than that sought in the now-operative complaint in DNC, thus the Court’s Burford decision there does not control here. See DNC, No. 3:20-cv-249, Dkt. 217 at 3, 11.
CONCLUSION The Court should dismiss the Amended Complaint.
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Dated, July 2, 2020

Respectfully Submitted,
/s/ Misha Tseytlin MISHA TSEYTLIN (State Bar No. 1102199) ROBERT E. BROWNE, JR. (State Bar No. 1029662) KEVIN M. LEROY (State Bar No. 1105053) SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com robert.browne@troutman.com kevin.leroy@troutman.com sean.dutton@troutman.com
Attorneys for Legislative Defendants

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of July, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

 
 Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-249-wmc

SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-278-wmc

CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-340-wmc

Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 2 of 7

JILL SWENSON, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants

Civil Action No. 3:20-cv-459-wmc

MOTION OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN FOR RENEWED PRELIMINARY INJUNCTION
Plaintiffs DEMOCRATIC NATIONAL COMMITTEE (“DNC”) and DEMOCRATIC PARTY OF WISCONSIN, by and through their attorneys, respectfully move the Court pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction restraining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing (1) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day for ballots to be counted (“Election Day Receipt Deadline”), Wis. Stat. § 6.87; (2) the requirement that absentee ballots be signed by a witness, id. § 6.87(2), unless the State provides an appropriate “safety net” as described in the accompanying brief; (3) the requirement that photo identification accompany absentee ballot applications, id. §§ 6.86, 6.87, unless the State provides an appropriate “safety net” as described in the accompanying brief; (4) the requirement that copies of proof of residence accompany electronic and by-mail voter registration, id. § 6.34, unless the State provides an appropriate “safety net” as described in the accompanying brief; and (5) the by-mail and electronic voter registration deadlines, id. § 6.28(1). Plaintiffs also challenge the Defendants’ failure to provide
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sufficient financial, personnel, and other resources to ensure an adequate number of in-person absentee voting sites and election-day polling places to accommodate voters in a safe and secure manner pursuant to its authority to administer Wisconsin’s elections, id. § 5.05 (collectively, these provisions are the “Challenged Provisions”).
Since the election held on April 7, 2020, evidence continues pouring in that the COVID19 pandemic is getting worse, governmental responses are falling woefully short, and the electoral process in place for the November General Election is threatened absent judicial intervention. Plaintiffs are entitled to a preliminary injunction because they are substantially likely to succeed on the merits of their claims that the Challenged Provisions severely burden the rights of Wisconsin voters, deprive them of equal protection under the law, and deprive them of their liberty interest in voting without due process.
The United States’ unprecedented pandemic is getting worse—not better—as the number of cases continue to rise. Wisconsinites continue to socially distance themselves to try to slow the spread of the coronavirus. And, if the Spring Election taught the world anything, it is that Wisconsin voters vastly prefer voting by mail during a pandemic than risking their health and the health of their loved ones by congregating into polling places. Wisconsin voters—including thousands of Plaintiffs’ members and constituents—should not again be forced to make the untenable choice between violating governmental guidelines on self-isolation and social distancing to exercise their fundamental right to vote. Yet, the Challenged Provisions continue to do just that by forcing some voters but not others to resort to in-person registration—or depriving them of any registration option whatsoever. Likewise, voters are forced to leave their homes to copy documents or obtain witness signatures. Even more, the Challenged Provisions impose arbitrary deadlines that simply cannot be met during this crisis.
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Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief, and traditional legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and Wisconsin voters outweighs any potential harm to the State. Finally, it almost goes without saying that Plaintiffs’ requested relief is in the public interest.
According to Wisconsin Election Commission data, the Court’s modest deadline extensions in its prior injunctive relief allowed 57, 187 Wisconsin voters to register online after March 18 without having to venture out to register in-person. And the Court’s relief saved 79,054 voters from disenfranchisement by requiring that their timely-cast and mailed absentee ballots be counted if received by April 13 (and were otherwise valid). In other words, if not for the Court’s orders, tens of thousands of Wisconsinites—if not more—would have been deprived of their voting rights. This Court’s orders resulted in the protection and expansion of democracy. Regrettably, in the absence of effective leadership by Wisconsin’s elected leaders, this Court must act again to prevent massive disenfranchisements in the November general election.
For the foregoing reasons, and as set forth in the accompany Memorandum in Support of Plaintiffs’ Renewed Motion for Preliminary Injunction, as well as accompanying Findings of Facts, exhibits, expert report, and declarations, the DNC and Democratic Party of Wisconsin respectfully request that this Court grant a Preliminary Injunction and enter judgment:
A. Declaring that in the context of the current coronavirus crisis, Wisconsin’s current by-mail and electronic registration deadlines, Wisc. Stat. § 6.28(1); requirements that copies of proof of residence and voter photo ID accompany electronic and by-mail voter registration and absentee applications, id. § 6.34, 6.86, respectively; requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87; and requirement that an absentee voter obtain the signature of a witness attesting to the accuracy of personal information
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on an absentee ballot, id. § 6.87(2); together with defendants’ failure to ensure that all citizens have safe and sufficient opportunities to register and vote in person, are unconstitutional in violation of the First and Fourteenth Amendments;
B. Enjoining defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting electronic and by-mail registrations that are received by the relevant clerk’s office by Friday, October 30, 2020.
C. Enjoining defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before November 3, 2020 and arrive at the municipal clerk’s office within a minimum of ten days thereafter, subject to the definition of “postmarked” discussed in the accompany Memorandum in Support of Plaintiffs’ Renewed Motion for Preliminary Injunction;
D. Enjoining in part the enforcement of the witness requirement in Wis. Stat. § 6.87(2) as applied to those absentee voters who certify under penalty of perjury that they are unable after making reasonable efforts to obtain a witness signature and provide contact information for local election officials to follow up immediately if they have any questions or concerns.
E. Enjoining in part the enforcement of the photo identification requirements in Wis. Stat. §§ 6.86 and 6.87 and the proof of residency requirement in Wis. Stat. § 6.34 for voter registrations until the COVID-19 crisis is over, as applied to those absentee voters who certify under penalty of perjury that they are unable after making reasonable efforts to obtain a witness signature and provide contact information for local election officials to follow up immediately if they have any questions or concerns.
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F. Ordering defendants to exercise their statutory authority and responsibility, see Wis. Stat. § 5.05(1), to develop and implement regulations, plans, and/or other administrative steps to (a) coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner; and (b) conduct a continuing public information campaign informing voters of their in-person and absentee voting options and requirements, with defendants required to report back to the Court on its progress in implementing this relief and plans for future steps through the election;
G. Awarding plaintiff their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
H. Granting such other relief as the Court deems just and proper.

Dated this 8th day of July, 2020

Respectfully submitted,
/s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Michelle M. Umberger
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Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 7 of 7 Sopen B. Shah Brandon M. Lewis PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com MUmberger@perkinscoie.com SShah@perkinscoie.com BLewis@perkinscoie.com Counsel for Plaintiffs in Case No. 20-cv-249-wmc
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 Case: 3:20-cv-00249-wmc Document #: 369 Filed: 07/08/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

v.

20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, LEAGUE OF WOMEN VOTERS OF WISCONSIN, KATHERINE KOHLBECK, DIANE FERGOT, GARY FERGOT, BONIBET BAHR OLSAN, SHEILA JOZWIK, and GREGG JOZWIK,

Plaintiffs,

v.

20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

CHRYSTAL EDWARDS, TERRON EDWARDS, JOHN JACOBSON, CATHERINE COOPER, KILEIGH HANNAH, KRISTOPHER ROWE, KATIE ROWE, CHARLES DENNERT, JEAN ACKERMAN, WILLIAM LASKE, JAN GRAVELINE,

Case: 3:20-cv-00249-wmc Document #: 369 Filed: 07/08/20 Page 2 of 10

TODD GRAVELINE, ANGELA WEST, DOUGLAS WEST, and all others similarly situated,

Plaintiffs,

v.

20-cv-340-wmc

ROBIN VOS, SCOTT FITZGERALD, WISCONSIN STATE ASSEMBLY, WISCONSIN STATE SENATE, WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

______________________________________________________________________________

JILL SWENSON, MELODY McCURTIS, MARIA NELSON, BLACK LEADERS ORGANIZING FOR COMMUNITIES, DISABILITY RIGHTS WISCONSIN

Plaintiffs,

v.

20-cv-459-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

GEAR v. BOSTELMANN, 20-CV-278, PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

In accordance with Federal Rule of Civil Procedure 65 and this Court’s procedure for motions seeking a preliminary injunction, Plaintiffs League of Women Voters of Wisconsin (“LWVWI”), Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”), Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, Gregg Jozwik, Claire Whelan, and Sylvia Gear (collectively, the “Gear Plaintiffs”) respectfully move this Court for preliminary injunctive relief. In support of this motion, and as more thoroughly set forth and

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supported in the accompanying Brief, Declarations, and Statement of Proposed Facts, the Gear Plaintiffs state as follows:
1. The Covid-19 pandemic has changed the way we vote. Even consistently-applied safety measures cannot make indoor places where people congregate—polling places among them—substantially safe. With the disease spreading exponentially once again, there is every reason to believe that the danger to voters will be real and substantial in the fall.
2. Due to the pandemic, in the April 7 election, nearly 62 percent of Wisconsin’s electorate chose to vote by mail. This unprecedented demand for mail-in voting strained and then broke the systems by which absentee ballots are prepared and delivered to voters. At least thousands of voters, including six of the Plaintiffs in this action, never received their timelyrequested ballots in the mail, because of administrative overload at municipal clerks’ offices, stillunexplained U.S. Postal Service (“USPS”) delivery failures, and even a software update glitch. Wisconsin’s municipal clerks’ offices were barely able to keep up with one million mail-in absentee ballot requests, even as they worked overtime and, in desperation, enlisted other city departments’ employees. If this year’s turnout is comparable to the level seen in the 2016 presidential election, the state will face 1.8 to 2 million mail-in absentee ballot requests for the November general election.
3. To protect the rights of Plaintiffs, their constituents and members, and Wisconsin voters generally under the U.S. Constitution and the Americans with Disabilities Act of 1990 (“ADA”), the Court should issue an order adopting certain specific voting procedures that Plaintiffs will demonstrate are necessary as a fail-safe to prevent a repeat of the mass disenfranchisement of absentee voters that occurred in the April 7 election. Plaintiffs offer three options to provide a fail-safe plan for voters who do not receive a requested absentee ballot in the mail. All three of these options would still require that the voter to first request a ballot by mail
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delivery and only use one of these options as a fail-safe; further, the voted replacement ballot must be mailed in or dropped off. A remedy would simply give Plaintiffs a back-up plan so they can still vote.
4. The best option is to extend the existing availability of the online access and download option through the myvote.wi.gov (hereinafter, “MyVote”) portal from just overseas civilian and military voters to domestic civilian voters who do not receive a requested absentee ballot in the mail, putting a full replacement mail-in ballot in the hands of voters who do not receive one in the mail. Another option would allow email delivery of replacement mail-in absentee ballots. Up until the Seventh Circuit’s decision last week, email delivery was an option for regular absentee voters, though it was discretionary for clerks to offer it and only offered sporadically across and within municipalities. The final fail-safe option that this Court could afford to regular absentee voters who do not receive a requested ballot in the mail is the ability to cast a Federal Write-In Absentee Ballot (“FWAB”). Wisconsin already accepts and processes the FWAB for overseas civilian and military voters, even if they have not previously requested a ballot be delivered by mail.
5. As fail-safe options, Defendants would only need to make these alternatives available to voters who have previously requested a mail-in absentee ballot, and only in the last week or even just the last few days before Election Day. These limitations ensure the numbers of voters exercising these options are manageable.
6. The Organizational Plaintiffs LWVWI and Wisconsin Alliance press their challenge to the witness requirement and request that the Court permit voters to use alternatives to it. This requirement has such minimal value to law enforcement that it cannot justify forcing voters to take unreasonable steps to secure a witness. There are alternatives, some suggested by the
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Seventh Circuit panel in April, and they can and should be ordered as alternatives for Wisconsin voters, particularly those at higher risk from Covid-19.
7. Plaintiffs are likely to succeed on the merits of their First and Fourteenth Amendment Anderson/Burdick claims. The failure to prepare and deliver absentee mail-in ballots timely or at all constitutes a complete denial of a voter’s constitutional right to cast a ballot, where voters cannot safely vote in person due to the Covid-19 pandemic. Accordingly, the burden on the right to vote is severe, and the state has no legitimate interest in disenfranchising a voter who does not timely receive their timely-requested absentee ballot in the mail. Since in-person voting would pose a severe risk to many voters’ health, bodily integrity, and lives, that option is simply not a viable choice. Further, the witness requirement for mail-in absentee ballots has become unduly burdensome because of the Covid-19 pandemic, and LWVWI and Wisconsin Alliance have been forced and will continue to be forced to divert substantial resources, time, effort, and money to helping and educating voters who are struggling to comply with this unconstitutional requirement. The prevention of voter fraud is an important regulatory interest of Defendants, but any law designed to prevent voter fraud must be balance against the burdens it imposes. Here, the witness requirement is not an effective, reasonable tool to safeguard election integrity and, therefore, the state’s interest is greatly attenuated and outweighed by the burdens imposed on LWVWI and Wisconsin Alliance.
8. Plaintiffs are also likely to prevail on their unconstitutional conditions doctrine claim. The failure to provide fail-safe options to absentee voters who do not receive their ballots in the mail and the witness requirement are both unconstitutional because they require voters to forfeit their fundamental right to bodily integrity as a condition of exercising their right to vote. Such state coercion violates the unconstitutional conditions doctrine. Because Wisconsin law bars regular absentee voters from online access and downloading or email delivery options for absentee
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voting, Wis. Stat. § 6.87(3)(d), bars regular voters from casting a FWAB, and requires at-risk absentee voters who live alone to satisfy a witness requirement during this pandemic, Defendants place unconstitutional conditions on the right to vote that coerce Plaintiffs into forfeiting their right to bodily integrity.
9. Plaintiffs are also likely to succeed on the merits of their ADA Claim. Several plaintiffs here have health conditions that limit major life activities, thereby placing them under the ADA’s protections and requiring Wisconsin election officials to make reasonable accommodations so that they can participate in the November General Election.
10. In addition to their likelihood of success on the merits, Plaintiffs meet all of the other equitable requirements for entry of a preliminary injunction. More specifically, absent relief from this Court, Plaintiffs are certain to suffer irreparable harm because there is no way to regain one’s right to vote after an election is held. Once the election is held and the results are certified, the injury to these voters’ constitutional rights will of course be irreparable. There is no adequate remedy at law—no damages—that can make a disenfranchised voter whole. In addition, the LWVWI and the Wisconsin Alliance will both be irreparably harmed because their members will be disenfranchised, and because both organizations have diverted resources to try to assist voters with voting absentee under these circumstances.
11. The balance of hardships militates strongly in favor of an injunction. The administrative aspects of extending existing election infrastructure to provide a fail-safe for domestic civilian voters does not outweigh the hardship to voters in the absence of any back-up plan if they do not receive their ballots and cannot vote safely at a polling place. If the Court fails to grant a preliminary injunction in this case, thousands of Wisconsinites will be unable to cast a ballot that counts, in light of the interaction between Wisconsin’s voting laws and the Covid-19 pandemic.
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12. A preliminary injunction to prevent the disenfranchisement of countless mail-in absentee voters would serve the public interest by vindicating constitutional and statutory rights and ensuring that the integrity and legitimacy of Wisconsin elections is not undermined or destroyed by the unconstitutional and unconscionable failure to allow voters who are at higher risk from Covid-19 to cast a ballot that counts.
13. Plaintiffs respectfully request that the Court enter an order granting the following relief with respect to the November 4, 2020 general election:
(a) Declare that the lack of a fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail in time to cast it such that it will be counted in the November general election, and Wis. Stat. § 6.87(3)(d), which restricts electronic access and downloading, as well as email delivery, of mail-in absentee ballots to military and overseas voters, violate the First and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983;
(b) Preliminarily enjoining Wis. Stat. § 6.87(3)(d), which restricts to military and overseas voters the ability to electronically access and download mail-in absentee ballots and the ability to receive an absentee ballot by email delivery;
(c) To remedy the constitutional and federal statutory violations caused by the lack of a fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail, for the November general election, order:
1. Defendants to permit voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail in time to timely cast it, to request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, that a mail-in absentee ballot and its
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certificate envelope be made available to such voters for online access and downloading, e.g. through myvote.wi.gov, and/or emailed to such voters; 2. Defendants to make mail-in absentee ballots available for online access and downloading, e.g. through myvote.wi.gov, and/or email mail-in absentee ballots, upon request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, to voters who previously and timely requested a mailin absentee ballot by mail delivery but who do not receive that ballot in the mail; 3. Defendants to process and count mail-in absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; and 4. Preliminary injunctive relief prohibiting Defendants from rejecting and/or refusing to count mail-in absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; (d) In the alternative or in addition to the relief outlined in subsection (c), for the November general election, order: 1. Defendants to permit voters who previously and timely requested an absentee ballot by mail delivery, to download, vote, and return in any way permitted under Wisconsin law or court orders the Federal Write-in Absentee Ballot;
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2. Defendants to process and count Federal Write-in Absentee Ballots that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery; and 3. Preliminary injunctive relief prohibiting Defendants from rejecting and/or refusing to count Federal Write-in Absentee Ballots cast by voters who previously and timely requested a mail-in absentee ballot by mail delivery and that are timely returned in any way permitted under Wisconsin law or court orders, but only if they are postmarked or dropped off at a municipal clerk’s office on or after the seventh day before Election Day through the deadline for returning absentee ballots; (e) Declare that Wis. Stat. § 6.87(4)(b)1. violates, in part, the First and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983, for the November general election; (f) To remedy the constitutional and federal statutory violations caused by enforcement of the witness requirement, Wis. Stat. § 6.87(4)(b)1., without reasonable modification during the course of the COVID-19 pandemic, preliminarily enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November general election and from rejecting and/or refusing to process and count an absentee mail-in ballot cast in the November general election on the basis that it lacks a witness signature on the certificate envelope, if the mail-in absentee voter signs a certification on the absentee ballot certificate envelope or on a pre-printed insert to be enclosed with the absentee ballot, that affirms that the voter was unable to safely obtain a witness certification through reasonable efforts, provided that the ballot is otherwise valid; (g) In the alternative or in addition to the relief outlined in subsection (f), preliminarily enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November general
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election and from rejecting and/or refusing to process and count an absentee mail-in ballot cast in

the November general election on the basis that it lacks a witness signature on the certificate

envelope, if the witness observes the voter casting the ballot remotely, e.g. by videoconference or

through a glass window, and the voter records in writing on the absentee ballot certificate envelope

or on a pre-printed insert to be enclosed with the absentee ballot the full name of the witness who

witnessed the voting of the ballot and enough of the witness’s address to identify the correct

residential address and contact that witness, provided that the ballot is otherwise valid.

Dated: July 8, 2020

Respectfully submitted,

/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 (202) 331-0114 (telephone) jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org

Douglas M. Poland State Bar No. 1055189 David P. Hollander, State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com

Attorneys for Plaintiffs in Case No. 20-cv-278-wmc

*Admitted to the U.S. District Court for the Western District of Wisconsin

10

 
 Case: 3:20-cv-00249-wmc Document #: 395 Filed: 07/08/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
JILL SWENSON, et al., Plaintiffs, v.

Civil Action No.: 3:20-cv-249-wmc Civil Action No.: 3:20-cv-278-wmc Civil Action No. 3:20-cv-340-wmc

Case: 3:20-cv-00249-wmc Document #: 395 Filed: 07/08/20 Page 2 of 6

MARGE BOSTELMANN, et al., and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-459-wmc

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
TO: All Counsel of Record PLEASE TAKE NOTICE that Plaintiffs Chrystal Edwards, Terron Edwards, John
Jacobson, Catherine Cooper, Kileigh Hannah, Kristopher Rowe, Katie Rowe, Charles Dennert, Jean Ackerman, William Laske, Jan Graveline, Todd Graveline, Angela West, and Douglas West (collectively the “Edwards Plaintiffs”), by their attorneys Laffey, Leitner & Goode LLC, Halling & Cayo, S.C., Urban & Taylor, S.C., and Salawdeh Law Office, LLC, move the Court, located at 120 N. Henry St., Madison, Wisconsin 53703, for injunctive relief pursuant to Fed. R. Civ. P. 65(a). This motion will be heard on August 5, 2020 at 9:00 a.m. in accordance with the Court’s June 30, 2020 Scheduling Order [Edwards Dkt. # 35].
PLEASE TAKE FURTHER NOTICE that the Edwards Plaintiffs seek an order solely in relation to the November 3, 2020 General and Presidential Election (the “November Election”) as follows:
1. Compelling prospective injunctive relief as described with particularly in ¶¶ 2-13 in this motion that is focused exclusively on how Wisconsin approaches the November Election due to the ongoing and growing problems associated with COVID-19, which is the most significant public health crisis since the influenza pandemic of 1918;

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2. Requiring the WEC Defendants identified in Paragraphs 27-34 of the Amended Complaint [Edwards Dkt. #5] to adopt for the November Election the in-person election hygiene protocols established by the United States Centers for Disease Control and Prevention (the “CDC Protocols”) as provided at Exhibit Z to the Declaration of Joseph S. Goode submitted herewith;
3. Compelling the WEC Defendants to prepare written guidance consistent with the CDC Protocols and any order of this Court and to distribute such guidance no later than August 31, 2020 to each of Wisconsin’s 1,853 municipalities overseeing one or more polling stations in Wisconsin for the November Election;
4. Obligating the WEC Defendants to condition each Wisconsin municipality’s receipt of grant money being administered by the WEC Defendants under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and/or Help America Vote Act (“HAVA”) upon the municipality’s written agreement to implement the CDC Protocols for the November Election and to train all polling personnel with regard to those Protocols no later than October 1, 2020;
5. Enjoining enforcement of Wis. Stat. §§ 6.86 and 6.87, which prohibit municipal clerks from issuing an absentee ballot without a written or electronic application and proof of identification (unless already on file);
6. Compelling the WEC Defendants to direct municipal clerks to send absentee ballots (not merely applications for absentee ballots) by mail to all registered voters on the voter rolls as of September 30, 2020;
7. Enjoining enforcement of all Wisconsin voter identification laws that unduly burden persons with disabilities and instead allowing disabled voters to submit a statement under penalty of perjury that they were unable to safely obtain identification suitable for voting, which
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statement shall be in a form drafted by the WEC Defendants and approved in form by the Court after consultation between the parties;
8. Regardless of whether the Court issues the relief set forth above, enjoining enforcement of Wis. Stat. § 6.87(3) to allow electors who have timely requested absentee ballots (but have not received them in time to complete and return them) to be provided with ballots via email or fax so as to allow the elector to timely return the emailed or faxed ballot prior to November 3, 2020;
9. Regardless of whether the Court issues the relief set forth above, enjoining enforcement of the “qualified witness” requirement in Wis. Stat. § 6.87(2) for those who do not reside with such a witness to minimize the undue and excessive burden on individuals who are immunocompromised, have mobility limitations, are infected with COVID-19, or are isolating due to exposure to coronavirus, suspected exposure or infection, or pursuant to a local or state quarantine order;
10. Enjoining enforcement of Wis. Stat. §§ 6.88, 7.51 and 7.52 (which prohibit municipalities from reviewing absentee ballots before election day) to allow electors to cure defects that are readily apparent on the transmittal envelope or ballot as determined by the municipal clerk;
11. Enjoining enforcement of Wis. Stat. § 6.86(1)(b) (which limits in-person absentee voting to the period beginning 14 days before the election and ending the Sunday before the election) to allow municipalities to spread out in-person voting consistent with the CDC Protocols;
12. Enjoining enforcement of Wis. Stat. § 6.855(1) (which requires municipalities choosing to offer in-person absentee voting at a site other than the clerk or board of election commissioners’ office to designate such sites “no fewer than 14 days prior to the time that absentee
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ballots are available for the primary . . . and [site selection] shall remain in effect until at least the

day after the election”) to accommodate the need to move in-person absentee sites, add additional

sites, or to compensate for deficiencies in the mail-in ballot process based on the CDC Protocols

or for other reasonable public health concerns; and

13. Enjoining enforcement of Wis. Stat. § 7.30(2) (which requires all election officials

and poll workers to be a qualified elector of the county in which they are serving) to address poll

worker shortages, allow municipalities to draw from a statewide pool of poll workers, and enable

a more effective deployment of National Guard members based on expected shortages stemming

from the existence of COVID-19.

The grounds for this motion are set forth in the brief and declarations filed

contemporaneously.

Dated this 8th day of July 2020.

Respectfully submitted,

LAFFEY, LEITNER & GOODE LLC Attorneys for Plaintiffs

By: s/ Joseph S. Goode Joseph S. Goode Mark M. Leitner John J. Laffey Sarah E. Thomas Pagels Jessica L. Farley 325 E. Chicago Street Suite 200 Milwaukee, WI 53202 (414) 312-7003 (414) 755-7089 (facsimile) jgoode@llgmke.com mleitner@llgmke.com jlaffey@llgmke.com stpagels@llgmke.com jfarley@llgmke.com

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URBAN & TAYLOR, S.C. Jay A. Urban Urban Taylor Law Building 4701 N. Port Washington Road Milwaukee, WI 53212 (414) 906-1700 (414) 704-7207 (facsimile) jurban@wisconsinjury.com HALLING & CAYO, S.C. Stacie H. Rosenzweig 320 East Buffalo Street Suite 700 Milwaukee, WI 53202 (414) 238-0197 (414) 271-3841 (facsimile) shr@hallingcayo.com SALAWDEH LAW OFFICE, LLC Rebecca L. Salawdeh 7119 W. North Avenue Wauwatosa, WI 53213 (414) 455-0117 (414) 918-4517 rebecca@salawdehlaw.com
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-249-wmc

SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-278-wmc

CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al.,

Civil Action No. 3:20-cv-340-wmc

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Defendants. and REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

JILL SWENSON, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-459-wmc

BRIEF OF THE EDWARDS PLAINTIFFS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION Courts almost never write on a blank slate. Even when they encounter that rara avis, the case of first impression, courts turn to the Constitution, decades if not centuries of case law, state and federal statutes, and administrative law. Rarely must a court start from scratch. Yet the cliché is right: there is a first time for everything, and this case is truly unprecedented. The United States has never before attempted to conduct a Presidential election amidst an outbreak of a deadly contagious disease. The 1918 Influenza pandemic, tragic as it was, happened during a midterm election, when the total U.S. population was less than one-third of its
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size today, two years before women could vote at all, and during a time when African-Americans were effectively disenfranchised altogether. With a much larger electorate today, coupled with rapid means of travel that were barely imaginable in 1918, it is no stretch to conclude that an outbreak of infectious disease is a much greater threat to an election today than it was just over a century ago.
In the intervening 100 years, Congress passed the Americans with Disabilities Act, the Voting Rights Act of 1965, and the Help America Vote Act to eliminate barriers to full participation by the electorate, and the federal courts have repeatedly recognized that voting is the fundamental civil right that operates as the key to all other rights. But as significant as those advances were, they did not anticipate – they could never have anticipated – the devastating effect of this virus on the United States in 2020.
The scourge of COVID-19 has hit the United States harder than any other country in the world. More Americans have contracted the disease, and more Americans have died from it, than the citizens of any other nation. Worst of all, the mounting data day by day demonstrates that the pandemic keeps growing exponentially – and the rate of growth is now worse in Wisconsin than in any other state.
The outlook is dire. At best, it is naïve to contend that Wisconsin can conduct a statewide election making no (or very few) changes to its regular rules and procedures without exposing even its healthiest citizens to unacceptable risks to their lives and health. Wisconsin voters with disabilities – such as respiratory diseases, compromised immune systems, and cancer, to name only a few – are even more threatened by electoral business-as-usual during what is shaping up to become the worst public health crisis in United States history.
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Yet the Wisconsin Legislature has refused to take any steps to adjust Wisconsin election law to accommodate the legitimate needs of voters in this once-in-a-lifetime crisis. And, while the Wisconsin Elections Commission, which is responsible for administering our election statutes, has commendably made some changes in the face of COVID-19’s threats to public health and safety, it nevertheless has failed to appreciate that those alterations will alleviate only a minimal part of the fear that Wisconsin’s voters face under the laws as written.
Changes are needed, for this extraordinary election only. We know that the separation of powers is a bedrock principle of American government. But we also know that the right to vote is the keystone of our system, and we know that when the political branches disregard their duty to safeguard the rights of the people, a court in a position to do something about it must step in and make things right. Plaintiffs’ motion summarizes 13 specific changes that the Court should order for the November 3, 2020 General and Presidential Election (the “November Election”). The remainder of this brief presents how those specific (and modest) changes ordered by the Court will preserve voters’ health and safety and their franchise, along with the legal basis for requiring those changes to be made.
STATEMENT OF FACTS A. COVID-19 and Wisconsin’s Ongoing Public Health Emergency. The Pre-Election Litigation (Amended Complaint (“AC”) ¶ 55) over the April 7, 2020 statewide election (the “Spring Election”) formally introduced the Court to the COVID-19 pandemic that continues to attack the United States. As of April 2, 2020—the date of the Court’s preliminary injunction order closest to the Spring Election—there were 1,550 confirmed cases of
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COVID-19 in Wisconsin, which had resulted in 24 deaths.1 Democratic National Committee v. Bostelmann, 2020 WL 1638374, 20-cv-249-wmc, at *3 (W.D. Wis. April 2, 2020).
Despite initially optimistic projections by certain government officials, the pandemic has gotten worse – much worse. As of July 7, 2020, the Wisconsin Department of Health Services (“DHS”) reported 32,556 confirmed cases in Wisconsin and 805 deaths. (Proposed Findings of Fact (“PFOF”) 1.) Thus, in the past 91 days COVID-19 cases are approximately 21 times higher in Wisconsin than they were when this Court made its most recent ruling on injunctive relief, and total deaths are a staggering 33.5 times higher than they were as of April 2, 2020. (PFOF 2.)
The Spring Election went forward on April 7, 2020, and as the plaintiffs in the Pre-Election Litigation predicted, many Wisconsin citizens who voted in person contracted the virus. (PFOF 3.) DHS directly traced 71 confirmed cases of COVID-19 to voting at the polls; an empirical study of the Spring Election concludes that in-person voting led to approximately 700 additional COVID-19 cases in Wisconsin, approximately 7.7 percent of all new cases in our state during the five-week post-election period. (PFOF 4.)
It is inescapable: COVID-19 will not “disappear” soon despite what politicians say. Certainly, it will not miraculously vanish before the November Election that is the subject of this
1 The Court may take judicial notice of of historical documents, documents contained in the public record, and reports of administrative bodies. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). Further, Federal Rule of Evidence 201(b) permits a court to take judicial notice of an adjudicative fact that is “not subject to reasonable dispute” because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. In re Lisse, 905 F.3d 495, 496 (7th Cir. 2018). Because this case is on a fast track and the pandemic that spurred its filing is moving even faster, Plaintiffs rely in part on judicial notice to establish the record on COVID-19 and the State of Wisconsin’s approach to addressing this public health emergency. The Edwards Plaintiffs also join the other plaintiffs’ motions for injunctive relief in the cases filed before and after this case, which the Court intends to adjudicate with this one in accordance with the Court’s June 30, 2020 Order adopting the Parties’ stipulated schedule (20-cv-249 Docket No. 232).
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motion.2 Indeed, the online Johns Hopkins University Coronavirus Resource Center (the “JHU Website”) reported a total of 2,134,465 cases of COVID-19 worldwide as of April 16, 2020, with 142,148 deaths. (PFOF 5.) Yet, as of yesterday, the JHU Website stated that globally there have been 11,679,808 cases of COVID-19, with 539,764 deaths. (PFOF 6.) Thus, in the last 82 days the world has seen an approximate 5.5-fold increase in cases, with a corresponding increase in deaths of nearly four times that in April. (PFOF 7.)
While not an apples-to-apples comparison, the world is generally dealing with the pandemic better than Wisconsin. The first diagnosed case of COVID-19 in Wisconsin occurred on February 6, 2020. (PFOF 8.) On March 12, 2020 Governor Tony Evers declared a public health emergency to direct all resources needed to respond to and contain COVID-19 in Wisconsin. (PFOF 9.) On March 24, 2020, at the direction and with the full authority of Governor Evers, Andrea Palm, the Secretary-Designee of DHS, entered Emergency Order No. 12 (the “Safer at Home Order”), which took effect at 8:00 a.m. on March 25, 2020. (PFOF 10.)
The Safer at Home Order, entered 14 days before the Spring Election, made specific public health findings and mandated that those physically present in Wisconsin engage in “social distancing” and otherwise comply with its terms. (PFOF 11.) They include:
i. Establishing that “social distancing,” the practice of keeping at least six feet apart from others and avoiding direct physical contact, is the only effective means of slowing the rate of COVID-19 infections (PFOF 12);
ii. Concluding that, despite prior emergency orders from Wisconsin and elsewhere banning mass gatherings, the rates of infection continue to drastically increase such
2 Plaintiffs’ Amended Complaint initially sought relief for both the November Election and the August 11, 2020 statewide primary. Plaintiffs have chosen against seeking relief for the August Election. This motion makes clear that Plaintiffs seek relief solely in relation to the November Election and do not seek to unwind established law on a permanent basis.
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that additional measures were needed to slow the rate of COVID-19 infections in Wisconsin (PFOF 13); iii. Prohibiting all non-essential businesses and operations from remaining open during the crisis and limiting all public and private gatherings of any number of people not part of a single household (PFOF 14); iv. Closing public schools and libraries, public amusement, and salons and spas (PFOF 15); v. Imposing an obligation on all citizens of Wisconsin to follow DHS and CDC guidelines regarding COVID-19 care (PFOF 16); vi. Obligating those “at high risk of severe illness from COVID-19 and people who are sick . . . to stay in their home or residence to the extent possible except as necessary to seek medical care;” (PFOF 17); vii. Identifying “essential” activities, governmental functions, and businesses and operations (PFOF 18); viii. Exempting healthcare and public health operations, human service operations, and essential infrastructure from the effects of the order (PFOF 19); ix. Establishing the meaning of “essential” travel (PFOF 20); x. Implementing minimum basic operational rules for how “essential” businesses and government functions should operate during the term of the order (PFOF 21); and xi. Requiring all persons residing in Wisconsin to follow “social distancing” rules, including maintaining appropriate distancing from each other and washing their hands in a manner provided within the order. (PFOF 22.)
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Clearly concerned about “flattening the curve,” on April 16, 2020 DHS issued an amended Safer at Home Order, which took effect a day later and was to remain in place until May 26, 2020. (PFOF 23.) The Wisconsin Legislature, led by some of the defendants in this case, challenged that amended order in an original action before the Wisconsin Supreme Court. (PFOF 24.) On May 13, 2020, the court ruled that Secretary-Designee Palm had overstepped her authority by imposing the Amended Safer at Home Order on Wisconsin residents. (PFOF 25.) In fact, positive cases of COVID-19 and associated deaths have risen since the Wisconsin Supreme Court issued its decision eight weeks ago, as DHS details in the following graphs:
(PFOF 26.) B. How COVID-19 Transmission Works. The ways that COVID-19 spreads are important to this Court’s evaluation of the threats
the disease poses to voting in light of the relief plaintiffs seek. “The virus that causes COVID-19 is mostly spread by respiratory droplets released when people cough, sneeze, or talk. Someone can also get COVID-19 by touching a surface or object that has the virus on it and then touching their own nose, mouth, or possibly their eyes.” (PFOF 27.) Thus, DHS warned early on that “[l]imiting physical contact between people is the best strategy to slow the spread of COVID-19, and it is saving lives. Wisconsinites need to continue this work to keep flattening the curve.” (PFOF 28.) The Centers for Disease Control and Prevention (“CDC”) expresses the concern about community spread this way:
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Because COVID-19 is highly transmissible and can be spread by people who do not know they have the disease, risk of transmission within a community can be difficult to determine. Until broad-scale testing is widely implemented or we have a more comprehensive and precise measure of disease burden, states and communities should assume some community transmission or spread is occurring. (PFOF 29.) Knowing how COVID-19 spreads, Dr. Caitlin Rivers, an epidemiologist at Johns Hopkins University, opines that there are three different factors to consider when evaluating risk regarding the virus. (PFOF 30.) The first is “contact intensity,” which involves determining how close you will be to someone, how confined, and over what period of time. (PFOF 31.) Second, Dr. Rivers advises consideration of how many people you will come in contact with in a particular setting during the pandemic and recommends that smaller groups are far better than larger groups. (Id.) Finally, in calculating the risk of COVID-19, we must look to how mitigation techniques are employed or capable of being employed by each person and the communities in which they live. (Id.) Applying these three rules, it’s not hard to discern how to approach the COVID-19 risk. For example, bars are considered high risk for COVID-19 transmission because contact intensity (close proximity to people, enclosed space, long duration), the number of people (high), and inability to fully mitigate (alcohol-impaired patrons, sharing of common touchpoints, inability to have the experience without close proximity to each other) all fail these three tests. (PFOF 34.) Similarly, large scale music and sporting events, gyms, amusement parks, libraries, churches, public pools, and schools are equally “high risk” endeavors for COVID-19 transmission when viewed through the lens of these three ground rules. (Id.) On the other end of the spectrum, the experts assess running and walking outside, playing tennis or golf, and getting takeout from a restaurant to be relatively “low risk” behaviors during the pandemic when considering these three
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factors. (Id.) The Court from its own experience knows that Wisconsin elections are often run out of schools, churches, and other unfriendly places for viral transmission; but if it wants to test the idea, we recommend that random addresses from around the state be entered into Wisconsin’s MyVote Website to see where voters at those addresses will vote in the November Election: https://myvote.wi.gov/en-us/FindMyPollingPlace. (See PFOF 37.) We suspect the Court will learn what we did: churches, governmental buildings, and schools are routinely used as polling stations—and these are the buildings that assist viral spread.
C. COVID-19’s R0 and Rt Factors. Epidemiologists talk about a particular virus’s transmission ability in terms of its R0 (pronounced “R naught”) factor. (PFOF 38.) Used by public health officials to structure their response to a viral outbreak, “[s]cientists use R0 – the reproduction number – to describe the intensity of an infectious disease outbreak.” (PFOF 39.) By way of example, estimated R0 factors influenced how public health officials addressed the 2003 SARS Pandemic, the 2009 H1N1 Influenza Pandemic, and the 2014 Ebola Epidemic in West Africa. (PFOF 40.) The “formal definition of a disease’s R0 is the number of cases, on average, an infected person will cause during their infectious period.” (PFOF 41.) The term is used, though, in two different ways: The basic reproduction number represents the maximum epidemic potential of a pathogen. It describes what would happen if an infectious person were to enter a fully susceptible community, and therefore is an estimate based on an idealized scenario. The effective reproduction number depends on the population’s current susceptibility. This measure of transmission potential is likely lower than the basic reproduction number, based on factors like whether some of the people are vaccinated against the disease, or whether some people have immunity due to prior exposure with the pathogen. Therefore, the effective R0 changes over time and is an estimate based on a more realistic situation within the population.
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It’s important to realize that both the basic and effective R0 are situation-dependent. It’s affected by the properties of the pathogen, such as how infectious it is. It’s affected by the host population – for instance, how susceptible people are due to nutritional status or other illnesses that may compromise one’s immune system. And it’s affected by the environment, including things like demographics, socioeconomic and climatic factors. For example, R0 for measles ranges from 12 to 18, depending on factors like population density and life expectancy. This is a large R0, mainly because the measles virus is highly infectious. On the other hand, the influenza virus is less infectious, with its R0 ranging from 2 to 3. Influenza, therefore, doesn't cause the same explosive outbreaks as measles, but it persists due to its ability to mutate and evade the human immune system. (PFOF 42.) Since the 1950s, public health officials analyzing a particular pathogen have sought to move the R0 factor to below 1. (PFOF 43.) An R0 below 1 means the disease ultimately will die out, because each person who has it transmits it, on average, to fewer than one person, meaning that perpetual reproduction is not possible. (PFOF 44.) In contrast, when R0 exceeds 1, the disease will spread because each infected person is on average infecting more than one other person. (PFOF 45.) In the case of the 2003 SARS pandemic, for example, “scientists estimated the original R0 to be around 2.75. A month or two later, the effective R0 dropped below 1, thanks to the tremendous effort that went into intervention strategies, including isolation and quarantine activities.” (PFOF 46.) While we are still learning about COVID-19 and data are still being collected on its R0 factor, certain studies assert a current R0 of between 1.5 and 3.5. (PFOF 47.) Early on, the World Health Organization (“WHO”) placed the basic R0 range value for the novel coronavirus at between 1.4 and 2.5. (PFOF 48.) Other studies early in review of the disease’s trajectory (that is, in January and February this year) placed the basic R0 at between 1.5 and 6.68. (PFOF 49.) While R0 is not the only variable important to public health assessments of COVID-
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19, it is an important tool for understanding the severity of the current pandemic, and the Court should look at it that way.
As an infectious disease takes hold in a population, the basic reproduction number becomes less important and the effective reproduction rate, also known as Rt, gains significance. (PFOF 50.) Because at least 11,679,808 people have now been infected with COVID-19 around the world (PFOF 6) (32,556 in Wisconsin as of July 7, 2020) (PFOF 1), the population has experienced some exposure, meaning that some people who have had the disease and recovered may have immunity to future infection, which will naturally impede transmission rates. But the basic mathematics of Rt are identical to those of R0: So long as the Rt exceeds 1, and absent significant interventions to reduce opportunities for transmission, communities will continue to see viral spread, because each infected person goes on to infect, on average, more than one person. (PFOF 51.)
On this front, the news is grim: Wisconsin’s Rt factor as of July 7, 2020 is 1.39 (PFOF 52), ranking highest as of that date among the 50 states for viral transmission possibility (PFOF 53); as the data demonstrate, Wisconsin finds itself in a world of transmission hurt since the Wisconsin Supreme Court ordered that the Safer at Home Order be lifted. While down from the February 29, 2020 R0 of 2.26 (PFOF 54), there is no reasonable basis in the empirical data for any conclusion other than this: COVID-19 continues to be a highly transmissible contagion in Wisconsin that will continue to make many people sick and some people die. The Court should look at anything it does in relation to the relief sought through this prism.
D. COVID-19’s Disparate Impact on Minorities and Urban Centers. COVID-19 has had and will continue to have a disproportionate impact on urban centers and particularly on African Americans and Latinos and the poor (regardless of race). (PFOF 55.)
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A cardiologist and academic from Northwestern University recently summed up the impact
of COVID-19 on African Americans:
In Chicago, more than 50% of COVID-19 cases and nearly 70% of COVID-19 deaths involve black individuals, although blacks make up only 30% of the population. Moreover, these deaths are concentrated mostly in just 5 neighborhoods on the city’s South Side. [Citation omitted.] In Louisiana, 70.5% of deaths have occurred among black persons, who represent 32.2% of the state’s population. [Citation omitted.]. In Michigan, 33% of COVID-19 cases and 40% of deaths have occurred among black individuals, who represent 14% of the population. [Citation omitted.] If New York City has become the epicenter, this disproportionate burden is validated again in underrepresented minorities, especially blacks and now Hispanics, who have accounted for 28% and 34% of deaths, respectively (population representation: 22% and 29%, respectively). [Citation omitted.]
The Johns Hopkins University and American Community Survey indicate that to date, of 131 predominantly black counties in the US, the infection rate is 137.5/100 000 and the death rate is 6.3/100 000. [Citation omitted.] This infection rate is more than 3-fold higher than that in predominantly white counties. Moreover, this death rate for predominantly black counties is 6-fold higher than in predominantly white counties. Even though these data are preliminary and further study is warranted, the pattern is irrefutable: underrepresented minorities are developing COVID-19 infection more frequently and dying disproportionately.
(PFOF 56.)
Wisconsin urban centers, particularly in the highly segregated city of Milwaukee, illustrate
the devastating impact of COVID-19 on communities of color. For example, of the 45 people
confirmed to have died from complications of COVID-19 in Milwaukee County as of March 30,
2020, 33 were African American. (PFOF 57.) David R. Williams, public health professor and
chairman of the Department of Social and Behavioral Sciences at Harvard University, explained
the impact of COVID-19 on Milwaukee’s African-American community: “Here is a virus
attacking individuals, and they’re more vulnerable physically and they’re also
vulnerable socioeconomically . . . We have mountains of evidence that indicates people of color
in this country have higher levels of underlying stressors.” (PFOF 58.) Professor Williams asserts
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that COVID-19 and the longstanding problems associated with the overall health and socioeconomic disparity in communities of color has created a “perfect storm.” (PFOF 59.)
DHS data reported as of July 7, 2020 demonstrate that Wisconsin’s mostly urban counties have been hit hardest by COVID-19 with a total of 23,413 confirmed cases out of a total 32,556. (PFOF 60.) Specifically, Brown County (3,072 cases), Dane County (2,510 cases), Kenosha County (1,610 cases), Milwaukee County (12,539 cases), Racine County (2,253 cases), and Waukesha County (1,429 cases) presently make up approximately 72 percent of Wisconsin’s COVID-19 cases. (PFOF 61.) When considering the impact of COVID-19 on voting rights, the Court should appreciate that “[n]early 90 percent of Wisconsin's African American population lives in the following six counties, all of which are located in Southeastern or Southern Wisconsin: Milwaukee, Dane, Racine, Kenosha, Rock, and Waukesha. When looking at African Americans as a percent of the total county population, Milwaukee County tops this list, with 25.6 percent.” (PFOF 62.) In sum, five of the six Wisconsin counties deemed by DHS to have been hit hardest by the pandemic contain the largest populations of African Americans who themselves are most vulnerable the disease.
E. The CDC’s Recommendations for a Safer Election. The CDC dedicates an entire webpage to safe voting during the pandemic. (PFOF 63.) Specifically, the CDC asserts that “[e]lections with only in-person voting on a single day are higher risk for COVID-19 spread because there will be larger crowds and longer wait times.” (PFOF 64.) The CDC’s recommendations for “in person” voting during COVID-19 are designed to mitigate – that is, diminish and not eliminate – the effect of the pandemic on both voters and poll workers. (PFOF 65.)
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In general, to reduce the threat of COVID-19 transmission during elections, the CDC recommends: (1) a wide variety of voting options; (2) longer voting periods (more days, and more hours each day); and (3) any other feasible options for reducing the number of voters who simultaneously congregate indoors in polling locations. (PFOF 66.) Rather than repeat them verbatim in this brief, the full list of guidelines from the CDC are included at Exhibit Z to the Declaration of Joseph S. Goode filed with this brief.
If the Court is inclined to allow the November Election to proceed under the rules that govern elections conducted in normal health conditions, it should at a minimum order the WEC Defendants to impose those standards statewide across all polling stations; to prepare and distribute written guidance consistent with these protocols to each county and municipality overseeing one or more polling stations for the November election, no later than August 31, 2020; and to condition each municipality’s receipt of grant money upon its written agreement to implement these protocols and train personnel no later than October 1, 2020.
F. The Plaintiffs’ Experiences. The plaintiffs are eligible voters whose voting rights have been and, without the Court’s intervention, will continue to be compromised by COVID-19. Subsection F-1 below introduces the plaintiffs, describes their specific circumstances, and relates their unfortunate voting experiences during the Spring Election. For the Court’s convenience and for organizational purposes, Subsection F-2 describes how each plaintiff falls in one or both of the following categories of aggrieved voters: vulnerable voters and underserved voters. “Vulnerable voters” are those voters whose right to vote is impaired by their preexisting health risks, the preexisting health risks of their family members, and the health risks associated with COVID-19. “Underserved voters” are those voters whose right to vote was impaired during the Spring Election by electoral
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system failures, as well as the inadequacy of in-person voter protections and accommodations. The plaintiffs hope that this organizational approach will aid the Court and parties in narrowly tailoring remedial measures to meet the plaintiffs’ specific needs.
1. The Plaintiffs’ Stories. The plaintiffs are Wisconsin citizens, each guaranteed the full and equal right to participate in the democratic process by voting in open elections. Plaintiffs share their stories here, explaining how their individual circumstances contributed to the injuries they sustained during the Spring Election and why, without appropriate safeguards, they are rightly concerned about the November Election and their ability to vote.
a. Chrystal Edwards and Terron Edwards. Chrystal and Terron Edwards are registered African-American voters who have regularly voted in Wisconsin elections for over a decade. (PFOF 67.) They see voting as a civic duty and, particularly with local elections, appreciate the very real stake they have in the outcomes. (PFOF 68.) Indeed, Chrystal makes it her business to familiarize herself with the candidates and their campaign promises, going so far as to educate others about those issues. (PFOF 69.) They understand the historical context of African-American enfranchisement, a right for which their ancestors fought and died. (PFOF 70.) Terron has diabetes, a metabolic disorder involving dysregulation of blood-sugar levels. (PFOF 71.) He and Chrystal both know that the CDC associates diabetes with an increased risk of severe illness from COVID-19. (PFOF 72.) Chrystal and Terron have three children especially vulnerable to illness. (PFOF 73.) They have a 14-year-old daughter who suffers from symptoms consistent with asthma, a respiratory inflammation disorder, and who regularly relies on an inhaler. (PFOF 74.) They understand that
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the CDC associates asthma with an increased risk of severe illness from COVID-19. (PFOF 75.) Chrystal and Terron also have a five-year-old son who was born with spina bifida, a congenital deformity of the spine. (PFOF 76.) Their son is currently waiting to undergo a surgical procedure. (PFOF 77.) Finally, Chrystal and Terron have a 16-year-old for whom they are guardians. (PFOF 78.) This last child is unvaccinated. (Id.)
Chrystal and Terron decided to vote absentee in the Spring Election because of the COVID19 pandemic. (PFOF 79.) They chose absentee voting because voting in person created a risk that they would contract and possibly die from a severe illness, such as COVID-19, and/or spread such severe illness to their vulnerable children. (PFOF 80.)
Chrystal and Terron requested absentee ballots about three weeks before the Spring Election. (PFOF 81.) Because they had not received their absentee ballots by April 6, 2020, they hoped that the Spring Election would be postponed or that the deadline for submitting their absentee ballot would be extended by a week. (PFOF 82.) Chrystal and Terron were devastated when they learned of the court decisions forcing them to vote in person if they wanted their votes counted. (PFOF 83.)
Considering the very significant health risks to themselves and their children should one or both of them contract COVID-19, Chrystal and Terron determined that voting in person might lead to their or their childrens’ deaths. (PFOF 84.) They further knew that the entire City of Milwaukee—and its roughly 600,000-person population—would be serviced by only five voting stations. (PFOF 85.) They were shocked, appalled, disgusted, and disappointed at the position in which they were placed. (PFOF 86.) They chose not to vote in person. (PFOF 87.)
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For reasons the WEC Defendants should be required to explain, their absentee ballots never arrived (PFOF 88) and they were thus disenfranchised because of the failure of defendants to reasonably navigate an election during the pandemic.
b. William Laske. William Laske is a registered voter who resides in Milwaukee and who has regularly voted in state and local elections. (PFOF 89.) He takes his right to vote seriously and considers it his responsibility to exercise that right. (PFOF 90.) Accordingly, William has voted consistently in nearly every election since he was discharged from the military in 1972. (PFOF 91.) William has chronic obstructive pulmonary disease (“COPD”), a progressive lung disease, and obliterative bronchiolitis (“OB”), an inflammatory disorder affecting smaller airways of the lungs. (PFOF 92.) He uses supplemental oxygen for his breathing difficulties in connection with these conditions. (PFOF 93.) He understands that the CDC associates COPD with an increased risk of severe illness from COVID-19. (PFOF 94.) William was concerned that, given his COPD, OB, and need for supplemental oxygen, he might die if he was exposed to the coronavirus while voting in person. (PFOF 95.) Consequently, he chose to order an absentee ballot on March 20, 2020. (PFOF 96.) This was the first time William had ever requested an absentee ballot. (PFOF 97.) On March 25, 2020, William received a mailing confirming that he requested a ballot. (PFOF 98.) But as of April 6, 2020, he had not received the ballot. (PFOF 99.) For that reason, William called the Milwaukee Election Commission. (PFOF 100.) After being placed on hold for an hour, the person with whom William spoke told him that his absentee ballot had been mailed on March 22, 2020. (PFOF 101.) The person further told him that he could either vote in person or deliver a ballot to the Zablocki Library polling location by April 14, 2020. (PFOF 102.)
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William has since learned that the United States Supreme Court later ruled that delivering the ballot after April 7, 2020 was not a viable option if he wanted his vote to be counted. (PFOF 103.)
William did not feel safe to vote in person due to the COVID-19 pandemic and his respiratory diseases. (PFOF 104.) He believed that contracting COVID-19 would be a “death sentence” for him. (PFOF 105.) He decided against voting in person. (PFOF 106.)
The absentee ballot never arrived (PFOF 107) and, like the Edwards, he was disenfranchised by the unreasonable positions taken by the defendants in relation to the Spring Election. William was upset, and he felt cheated, that he was unable to exercise his right to vote. (PFOF 108.) Had he been timely provided an absentee ballot, or had he been provided a safe method to vote in person, he would have voted in the Spring Election. (PFOF 109.)
c. Kileigh Hannah. Kileigh Hannah is a registered voter residing in Fox Point. (PFOF 110.) She and her family resided in Wisconsin between 2002 and 2016, moving away to Vermont for four years before returning to Wisconsin in February 2020. (PFOF 111.) Upon returning to Wisconsin, Kileigh secured a driver’s license amid the chaos and uncertainty of the COVID-19 pandemic so that she could successfully order a Wisconsin absentee ballot. (PFOF 112.) Kileigh has voted in every major election since turning 18 years of age. (PFOF 113.) Kileigh has multiple sclerosis (“MS”), a progressive neurological disorder that has many harmful symptoms, including disruption of the immune system. (PFOF 114.) She treats the disorder by, among other things, maintaining a safe and healthy lifestyle and taking medications such as ocrelizumab (brand name Ocrevus), an immunosuppressive drug. (PFOF 115.) She understands that the CDC associates MS with an increased risk of severe illness from COVID-19 and ocrelizumab with an increased risk of respiratory tract infections. (PFOF 116.) This increased
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risk of respiratory tract infections also increases the risk of severe illness from COVID-19, according to the CDC. (PFOF 117.) Incidentally, Kileigh had an all-day infusion of diseasemodifying treatment scheduled for the day after the Spring Election, a treatment that “knocks out [her] immune system” and puts her at an elevated risk of respiratory infection. (PFOF 118.)
Due to her health conditions and treatment, the rapid spread of COVID-19 in Milwaukee County, and her fear of severe illness or death, Kileigh decided not to vote in person. (PFOF 119.) Instead, she chose to vote by absentee ballot. (PFOF 120.) She ordered her absentee ballot on or about March 22, 2020. (PFOF 121.) This was the first time she had ever voted by absentee ballot. (PFOF 122.)
Kileigh’s absentee ballot never arrived. (PFOF 123.) She called the Fox Point Town Hall, and they told her to call the post office. (PFOF 124.) She called the post office, and they said she would find it in the mail. (PFOF 125.) The absentee ballot never came. (PFOF 126.) She debated voting in person on the day of the Spring Election, but in the end, she decided that it was not worth risking her life. (PFOF 127.) She further hoped that someone would remedy the situation by permitting her to cast a late absentee ballot to be counted. (PFOF 128.) This did not occur. (Id.)
Had she been provided with an absentee ballot in time, or a safe method to vote in person, Kileigh would have exercised her right to vote in the Spring Election. (PFOF 129.) Instead the defendants failed her and she was disenfranchised.
d. Todd Graveline and Jan Graveline. Todd and Jan Graveline are married registered voters who reside in Milwaukee and regularly vote in their state and local elections. (PFOF 130.) Because of the COVID-19 pandemic, Jan requested absentee ballots for both of them a few weeks prior to the Spring Election. (PFOF 131.) Jan does not typically vote absentee. (PFOF 132.) When Todd and Jan had not received
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their ballots by April 3, 2020, Jan called and spoke to someone who said she would mail out new absentee ballots. (PFOF 133.) Neither of their absentee ballots ever arrived. (PFOF 134.)
On the day of the Spring Election, Todd and Jan were conflicted as to whether to vote in person. (PFOF 135.) They feared being exposed to the coronavirus and contracting COVID-19, or spreading the illness to one another. (PFOF 136.) However, each of them valued their right to vote, and did not want to be disenfranchised. (PFOF 137.)
Todd and Jan decided to go to Milwaukee’s Riverside High School to vote in person. (PFOF 138.) They waited in line outside of the school before following the line inside, a process that took roughly 30 minutes. (PFOF 139.) They followed social distancing principles and Jan wore a mask and gloves. (PFOF 140.) While waiting in line, Todd grew very anxious about the number of people in line and how close they were standing to him, and he became increasingly worried about being exposed to the coronavirus. (PFOF 141.) He left the polling place out of fear for his health and safety, afraid he might become ill or die; Todd never got to vote. (PFOF 142.) Jan successfully voted in person. (PFOF 143.)
Had they been timely provided an absentee ballot, Todd and Jan would have voted by absentee ballot. (PFOF 144.) Absent that, had Todd been provided a safe method to vote in person, he would have exercised his right to vote in the Spring Election. (PFOF 145.) Instead, he was disenfranchised.
e. Jean Ackerman. Jean Ackerman is an 89-year-old registered voter who resides in Madison with her daughter. (PFOF 146.) Jean has physical health issues and is not mobile. (PFOF 147.) She has degenerative disc disease of the spine and spondylitis, an inflammatory disorder of the vertebrae. (PFOF 148.) These conditions cause pain and weakness in her legs. (Id.) She also has arthritis in
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her knees, preventing her from being able to walk or stand for any more than a few steps. (PFOF 149.) Jean has high blood pressure, high cholesterol, and is in renal failure, meaning her kidneys are in a state of dysfunction. (PFOF 150.)
On account of her health conditions, the risk of her being exposed to the coronavirus at the polling place, and her limited mobility, Jean decided that she could not vote in person. (PFOF 151.) She instead ordered an absentee ballot. (PFOF 152.) The absentee ballot never came. (PFOF 153.)
On the day before the election, she learned that Governor Evers extended the deadline to mail in absentee ballots. (PFOF 154.) She then learned that the courts overruled Governor Evers’ extension. (Id.) Even though Jean had not received an absentee ballot, she could not risk going out and standing in line to vote, and it was physically impossible for her to do so. (PFOF 155.) Had she been timely provided with an absentee ballot, or a safe method to vote in person, Jean would have exercised her right to vote. (PFOF 156.)
f. John Jacobson. John Jacobson is a registered voter residing in Milwaukee who regularly votes in state and local elections. (PFOF 157.) He is employed by Shorewood High School as a teacher of social studies, politics, and history. (PFOF 158.) John temporarily moved into the home of his elderly parents to care for them during the COVID-19 pandemic, and he resided there on the day of the Spring Election. (PFOF 159.) This was possible because Governor Evers closed all public schools as part of efforts to promote social distancing. (Id.)
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John timely requested an absentee ballot on or around March 18, 2020. (PFOF 160.) The absentee ballot never arrived. (PFOF 161.) Had he timely received the ballot, he would have exercised his right to vote in the Spring Election.3 (PFOF 162.)
g. Kristopher Rowe and Katie Rowe. Kristopher and Katie Rowe are registered voters residing in Glendale, Wisconsin. (PFOF 163.) They highly value their right to vote. (PFOF 164.) Because they feared contracting the coronavirus and spreading it to one another and to their family, Kristopher and Katie ordered absentee ballots. (PFOF 165.) They completed their absentee ballots and mailed them back on April 1, 2020. (PFOF 166.) However, the Wisconsin voter online database does not reflect that either of their votes was counted. (PFOF 167.) Consequently, Kristopher and Katie do not believe that their absentee ballots were counted. (PFOF 168.) They rightly find this revelation disturbing. (Id.)
h. Douglas West and Angela West. Douglas and Angela West are married African American registered voters also residing in Glendale, Wisconsin. (PFOF 169.) Douglas has diabetes, high blood pressure, coronary artery disease, and chronic obstructive pulmonary disease, and he needs to use supplemental oxygen on a regular basis. (PFOF 170.) Angela has high blood pressure. (PFOF 171.) According to the CDC, their conditions place them at an increased risk of severe illness due to COVID-19. (PFOF 172.) They usually vote at a school just three blocks from their home, but would have had to travel to Washington High School to vote in the Spring Election. (PFOF 173.) Because they feared contracting the coronavirus and were concerned about illness or death, and the impact of COVID-
3 Two days before the filing of this brief, plaintiffs’ counsel learned that John Jacobson has contracted COVID-19 and has been rendered incapacitated by the disesase.
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19 on their family, they ultimately decided not to vote. (PFOF 174.) Had they been provided with a safe method to vote in person, they would have exercised their right to vote. (PFOF 175.)
i. Charles Dennert. Charles Dennert is a registered voter who, since early April 2020, had temporarily resided at his family’s home in Waukesha. (PFOF 176.) He had fractured his leg and was unable to drive a vehicle. (PFOF 177.) Charles timely requested an absentee ballot on March 24, 2020. (PFOF 178.) However, the absentee ballot never came. (PFOF 179.) Because Charles had no way to commute to his Milwaukee polling station, he was unable to vote in person. (PFOF 180.) Had he been timely provided an absentee ballot, Charles would have exercised his right to vote. (PFOF 181.)
2. Vulnerable Voters and Previously Underserved Voters. Vulnerable Voters
Many of the plaintiffs have individual characteristics or circumstances that make them especially vulnerable to COVID-19; indeed, many of their ailments qualify as disabilities under the Americans with Disabilities Act (“ADA”), entitling them to special consideration pursuant to federal law. Each of the following five characteristics or circumstances applies to one or more of the plaintiffs and represents a distinct group of vulnerable voters in Wisconsin:
1. Voters with immune system compromise and/or conditions that place them at increased risk of severe illness if they contract COVID-19. Voters with certain medical conditions, or taking particular medications, have compromised immune systems and are, thus, at a higher risk of contracting illnesses, including COVID-19. (PFOF 182.) Many of the plaintiffs have compromised immune systems. Terron Edwards has diabetes. (PFOF 183.) William Laske has COPD and OB, necessitating the need for supplemental oxygen. (PFOF 184.) Kileigh Hannah
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takes a medication, Ocrevus, for MS. (PFOF 185.) Jean Ackerman has heart and kidney disorders, including renal failure. (PFOF 186.) Douglas West has diabetes, high blood pressure, coronary artery disease, and chronic obstructive pulmonary disease; he needs to use supplemental oxygen on a regular basis. (PFOF 187.) Angela West has high blood pressure. (PFOF 188.) All of these plaintiffs have compromised immune systems and/or are highly susceptible to severe illness from COVID-19. (PFOF 189-194.)
2. Voters with degenerative disease affecting mobility. Voters with certain progressive physical conditions have limited mobility and are, thus, less able to tolerate long lines such as those experienced in the Spring Election. For example, Jean Ackerman has degenerative disc disease of the spine as well as spondylitis, causing weakness in the legs and preventing her from walking more than a few steps. (PFOF 195.) She is functionally immobile as a consequence. (PFOF 196.)
3. Voters of advanced age. Elderly voters are more likely to have mobility and immune system problems. (PFOF 197.) Ms. Ackerman is 89 years old and, as mentioned above, has issues with her mobility and immune system. (PFOF 198.)
4. Voters with transient conditions affecting mobility. Voters with temporary injuries may have limited mobility. Charles Dennert fractured his leg prior to the Spring Election. (PFOF 199.) This prevented him from driving and forced him to rely upon others for transportation.
5. Voters residing with at-risk persons. Residing with someone whose immune system is compromised and/or someone who has a condition that places them at an increased risk of severe illness if they contract COVID-19 is a special circumstance; for the at-risk person to remain safe and healthy, the voter must be mindful of whether his or her actions will spread a contagion. (PFOF 200-01.) Chrystal Edwards resides with her husband, Terron, who has diabetes. (PFOF 202.)
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Furthermore, the Edwards have a 14-year-old daughter with asthma-like symptoms, who regularly requires an inhaler. (PFOF 203.) They also have a 5-year-old son with spina bifida, a congenital defect for which he had an impending surgery scheduled at the time of the Spring Election, and an unvaccinated 16-year-old for whom they are guardian. (PFOF 204-05.) John Jacobson had temporarily moved in with his elderly parents at the time of the Spring Election to care for them during the COVID-19 pandemic. (PFOF 206.) Angela and Douglas West reside together, and as mentioned above, have multiple conditions placing them both at higher risk of severe illness if they contract COVID-19. (PFOF 207.) All of these plaintiffs are voters attending to special circumstances affecting their ability to exercise their voting rights. Previously Underserved Voters
An electoral system in which eligible voters fail to have their votes counted is underserving its electorate. The Spring Election saw a surge in underserved voters on account of COVID-19 and other election mishaps. One or more of the plaintiffs was underserved in one of the following five ways:
1. Voters who requested, but did not receive, absentee ballots. Chrystal Edwards, Terron Edwards, William Laske, Kileigh Hannah, Todd Graveline, Jan Graveline, Jean Ackerman, John Jacobson, and Charles Dennert all timely requested absentee ballots. (PFOF 208.) None of them received one, either timely or otherwise. (PFOF 209.)
2. Voters whose properly-submitted absentee ballots were not counted. Kristopher Rowe and Katie Rowe timely mailed their absentee ballots but, because Wisconsin’s online database does not reflect that they voted, they do not believe that their ballots were counted. (PFOF 21011.)
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3. Voters who did not vote in person out of concern for their own or their family’s health. Chrystal Edwards, Terron Edwards, William Laske, Kileigh Hannah, Jean Ackerman, Douglas West, and Angela West decided not to vote in person because they feared contracting COVID-19 or spreading it to loved ones. (PFOF 212.)
4. Voters who did not vote in person because of lack of transportation. Charles Dennert, who lived with his parents in Waukesha while recovering from a broken leg, was unable to secure transportation to one of the five Milwaukee polling places. (PFOF 213.)
5. Voters who declined to vote in person after observing polling place conditions. Todd Graveline went to vote in person but, anxious about the number of people in line and how close they stood to him, left the polling place out of fear for his health and safety. (PFOF 214.)
Plaintiffs are all Wisconsin residents who wanted to vote in the Spring Election and whose government failed them, placing obstacles in the way of exercising their fundamental right to vote. This case seeks to avoid that same calamity in the November Election.
ARGUMENT I. THE EDWARDS PLAINTIFFS MEET THE STANDARD FOR ISSUING A
PRELIMINARY INJUNCTION PROTECTING THE RIGHT TO VOTE DURING AN UNPRECEDENTED PUBLIC HEALTH EMERGENCY. The basic requirements for preliminary injunctive relief are well-known: “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The argument that follows demonstrates why and how plaintiffs satisfy each of these requirements. II. THE COURT HAS THE POWER TO ORDER THE WEC DEFENDANTS TO PROVIDE THE RELIEF SOUGHT BY THE EDWARDS PLAINTIFFS.
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In the June 29, 2020 hearing establishing the schedule for briefing and resolving this motion, the Court questioned whether the relief sought by plaintiffs here and in the companion lawsuits could be granted without the presence of thousands of local officials as parties. A review of Wisconsin’s election statutes, the WEC’s powers to administer them, and the proper role of this Court in enforcing core Constitutional and statutory rights compel the answer: “Yes.”
Under Wis. Stat. § 5.05, WEC has “the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws related to campaign financing.” These statutory chapters include general provisions, balloting, and voting systems (chapter 5); electors (chapter 6); election officials, boards, selection and duties, canvassing (chapter 7); nominations, primaries, and elections (chapter 8); post-election actions and direct legislation (chapter 9); election notices (chapter 10) and prohibited election practices (chapter 12).
Other sources of law include federal statutes such as the Help America Vote Act, 52 U.S.C. §§ 20901 et seq.; the ADA as it pertains to voting, 42 U.S.C. § 12101 et seq.; the Voting Accessibility for the Elderly and Handicapped Act of 1984, 52 U.S.C. § 20101 et seq.; and the National Voter Registration Act of 1993, 42 U.S.C. § 1971 et seq. State and federal court decisions binding on the WEC and the state furnish additional sources of law. See Wis. Stat. § 5.05(5t).) In fact, the WEC has enforcement power and may prosecute civil violations of election law, Wis. Stat. § 5.05(2m), and may promulgate rules under Chapter 227, including emergency rules when necessary, to implement or interpret the laws regarding the conduct of elections as well as their proper administration.4 See Wis. Stat. § 5.05(1)(f).
4 While the WEC is tasked with enforcement and interpretation of election law, it may not act beyond the bounds of its statutory authority as an administrative agency. Changes to law must come from the Legislature, or through judicial action. The relief proposed by plaintiffs here acknowledges this fundamental principle and therefore seeks what the Court may do—ordering the WEC Defendants to take specified actions to protect voters during the November Election
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The WEC was presented with a gargantuan task in administering the Spring Election in the face of a Legislature that refused to legislate amid a global, deadly pandemic. The WEC itself issued a memorandum on March 18, 2020, outlining shortages of poll workers, polling locations, absentee ballot envelopes, and supplies for cleaning and sanitation. (PFOF 215.)
Alarmingly from a public health standpoint, local elections officials were advised through that memorandum that, with some local exceptions, “there appears to be no hand sanitizer or sanitation wipes available through local, state or federal channels. Other products such as bleach and rubbing alcohol are also difficult to obtain.” (PFOF 216.) The WEC advised municipal clerks to recruit backup elections inspectors and implement contingency plans for shortages, as well as plans for their own absence should they be unable to serve up to and on Election Day. (PFOF 217.) The Commission also declined to apply Wis. Stat. § 6.87(2), a statute providing a procedure for electors hospitalized on election day to vote from the hospital, to individuals restricted to their homes due to the pandemic. (PFOF 218.)
As this Court well knows, the Pre-Election Litigation and a last-ditch effort by Governor Evers to postpone the Spring Election through executive action resulted. Nevertheless, decisions by the Wisconsin Supreme Court and the United States Supreme Court forced the election to proceed on April 7, 2020, leading to increased COVID-19 transmission as described above, as well as wildly inconsistent elections procedures, and the suppression of votes, especially in urban areas and among people of color and those with disabilities.
Recent research bears this out. Kevin Morris and Peter Miller at the Brennan Center for Justice at the NYU School of Law recently released Voting in a Pandemic: COVID-19 and Primary Turnout in Milwaukee, Wisconsin on June 23, 2020. (PFOF 219.) This study finds that
and enjoining all defendants from enforcing specified laws that will assuredly and irreparably lead to the disenfranchisement of Wisconsin voters.
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polling place consolidation due to lack of poll workers and equipment reduced overall turnout in Milwaukee County by approximately 8.5 percentage points, but by 10.2 for the African American population in the City of Milwaukee. (PFOF 220.) Moreover, turnout in the City was depressed by roughly 8.6 percentage points compared to suburban voters. (Id.) “[I]ncreased absentee voting did not entirely offset the effect of polling place consolidation.” (PFOF 221.) The study also concluded that COVID-19 itself likely depressed turnout, especially among Milwaukee residents. (PFOF 222.) The study noted that as of April 7, 2020, there were roughly 14 positive COVID-19 tests per 10,000 residents of Milwaukee County (or 140 per 100,000); its suburbs had a far lesser rate—7.5 per 10,000 (75 per 100,000) in Ozaukee County; 4.4 per 10,000 (44 per 100,000) in Washington; 4.2 per 10,000 (42 per 100,000) in Waukesha, and 3.2 per 10,000 (32 per 100,000) in Racine. (PFOF 223.)
Cases have continued to increase since, but not at the same rate. As of July 3, 2020, only three months following the Spring Election, Milwaukee County’s infection rate has increased ninefold, from 140 cases per 100,000 to 1,266.3. (PFOF 224.) Racine County, another county with significant urban and minority population, has seen its cases increase to 1,123.9 per 100,000. (PFOF 225.) The primarily suburban counties of Waukesha, Ozaukee, and Washington have seen far more modest increases, to 330.2, 286.6, and 313.7 cases per 100,000 people, respectively. (PFOF 226.) The rapid increases in COVID-19 infections, as well as remedial measures urban centers in particular will need to take absent the statewide remedies the plaintiffs request, illustrate why such remedies are necessary.
Since April 7, 2020, the WEC has taken many important steps within its authority to help make the upcoming elections safer and more accessible. As indicated in its June 25, 2020 filing (the “June 25 report”) in the DNC v. RNC, 20-CV-249 case, the WEC will spend federal CARES
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Act funds, approximately $2.25 million, to “develop, print, and send an informational mailing to approximately 2.7 million registered voters in Wisconsin that provides information about the options for voting at the 2020 general Election.” (PFOF 227.) The mailing will be sent to registered voters who do not have an active absentee ballot request form on file, and who are not on a list of voters believed to have moved since their registration was last updated, as compiled by the Electronic Registration Information Center (ERIC). (PFOF 228.) Additional staff or contractors will be assisting with data entry and follow up with absentee voters who submit an incomplete application, reducing the burden on municipal clerks “so they can focus on final review of the application and getting absentee ballots out to voters as soon as practicable after receiving the request.” (PFOF 229.)
The June 25 report also states that WEC has provided or will provide $500,000 in CARES Act funding for sanitation and personal protective equipment (PFOF 230); up to $4.1 million in CARES subgrants to municipalities for increased election administration costs, generally (PFOF 231); and Help America Vote Act subgrants to counties (up to $3.9 million) and municipalities (up to $2.1 million) to improve election security (PFOF 232). Intelligent mail barcodes will also be developed and implemented so that elections officials and mail-in absentee voters will have more accurate information about the status and location of absentee ballots through the postal system. (PFOF 233.) Additionally, the myvote.wi.gov system (accessible to voters) and the WisVote system (accessible to elections officials) are or will be upgraded to handle the increase in absentee ballot requests. (PFOF 234.) The WEC staff also will “continue to urge counties and municipalities to solicit election inspectors” and has created or will create poll worker recruitment and voter outreach tools. (PFOF 235.) The latter are designed to “explain the mechanics of how to vote by absentee ballot how state and local election officials ensure that voting by absentee
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ballot is secure.” (Id.) Finally, WEC staff has produced public health guidance documents and will continue to offer election official and inspector training in advance of the elections. (PFOF 236.)
Notwithstanding the WEC Defendants’ efforts to learn from the massive failings of the Spring Election, it is becoming abundantly clear that these steps, while necessary, will not ensure a fair and accessible November Election for all voters. Accordingly, the plaintiffs in this case are seeking the 13 remedies set forth in their accompanying motion paper. Additionally, the WEC Defendants cannot implement all of those remedies on their own. Because the WEC Defendants are bound by statutes as well as other law, and the Legislative Defendants refuse to act, this Court’s intervention is necessary to avoid irreparable harm to the plaintiffs and all people like them as the defendants avoid the constitutional repercussions of acting like business as usual amidst the most severe public health crisis in a century.
This Court, on June 29, 2020, recommended that plaintiffs in these consolidated cases focus on whether the WEC could grant the relief sought. The Edwards Plaintiffs certainly acknowledge that Wisconsin operates elections on a decentralized, local basis, and there are 1,853 voting localities in the state and 1,922 local election officials. (PFOF 237.) It would be at best impractical, and likely impossible, to join nearly two thousand defendants into this action. For this reason, we ask the Court to take statewide – not local – action. Because the WEC is responsible for implementing, enforcing, and interpreting election law, and this Court has the power to enjoin or otherwise modify law, the WEC Defendants are appropriate parties to this action.
Finally, this Court is not overstepping its bounds by granting the relief requested by the Edwards Plaintiffs. Plaintiffs cannot be required to choose between exercising their fundamental right to vote and preserving their health and safety. Yet the Legislative Defendants refuse to act,
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and the WEC cannot take measures adequate to preserve plaintiffs’ voting rights while keeping them safe. This Court can solve the dilemma by exercising its equitable powers to forge extraordinary relief based on extraordinary facts—truly a once-in-a-lifetime decision.
“[W]here fundamental constitutional rights are violated, and where the Legislature fails to remedy the constitutional deficiencies after having had the opportunity to do so, and where an aggrieved litigant files suit seeking remedial relief for the constitutional violations, the judiciary must provide such a remedy.” Goldstein v. Sec’y of Commonwealth, 484 Mass. 516, 142 N.E.3d 560, 571 (2020) (applying Massachusetts law). The United States Supreme Court recognizes that citizens’ mental and physical health “is a public good of transcendent importance.” Jaffee v. Redmond, 518 U.S. 1, 12 (1996) (emphasis added) (interpreting evidentiary privileges). The police power is a traditional area for governments to act for the protection of their citizens’ health and safety. See, e.g., Sinclair Refining Co. v. City of Chicago, 178 F.2d 214, 216 (7th Cir. 1949) (government has “paramount obligation to promote and protect the public health, safety, morals, comfort, and general welfare of the people”).
There are no precedents before 2020 addressing how federal courts approach the protection of voting rights in a pandemic, because the COVID-19 pandemic is itself unprecedented. That fact does not restrict the judicial power; the opposite is true. This Court should not stay its hand for fear of exceeding its powers. COVID-19 has created a once-in-a-lifetime health and safety crisis that impairs and even destroys the fundamental right to vote if the status quo is maintained. The greater harm will result if the Court does not act.
It is no answer to say that elections are matters of state concern that require federal courts to tread lightly, if at all. When the facts are extreme and egregious, Federal courts are empowered to take actions extreme enough to ensure an effective remedy. For example, after California
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repeatedly failed to obey court orders directing it to provide adequate mental health care to prison inmates suffering from serious mental disorders, the United States Supreme Court upheld the extraordinary remedy imposed by a three-judge court ordering the state to reduce its prison population by thousands of inmates within two years. Brown v. Plata, 563 U.S. 493 (2011). The Court reached this result notwithstanding the significant deference ordinarily owed to a state in its operation of correctional facilities. Id. at 511. The facts of the COVID-19 pandemic will likely never be before America’s courts again. If those facts demand a remedy to protect voters’ health and safety, this Court should order whatever it takes. III. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM THAT THE
DEFENDANTS’ ACTS AND OMISSIONS WILL DEPRIVE THEM OF THEIR FUNDAMENTAL RIGHT TO VOTE. “[F]or reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Specifically, the right to vote is protected by the First Amendment and the Fourteenth Amendment. In deciding whether state-imposed restrictions unlawfully burden the constitutionally guaranteed right to vote, Federal courts apply what has become known as the Anderson-Burdick balancing test, from the United States Supreme Court’s decisions in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takashi, 504 U.S. 428 (1992). Under this test, this Court must weigh “the character and magnitude of the asserted injury” to the right to vote against “the precise interests put forward by the State as justifications for the burden.” Anderson, 460 U.S. at 789. This Court is well aware of Anderson-Burdick balancing, see DNC v. Bostelmann, 2020 WL 1638374 at *11, and it will surely get even more exposure to the test through the preliminary injunction motions to be filed by the other plaintiff groups in these consolidated cases, as well as
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the opposition materials from the defendants. Accordingly, the Edwards Plaintiffs will strive to avoid restatement of basic points, focusing instead on authorities and issues that we have not seen extensively emphasized or cited to date.5
The most important of these is the unique analytical framework for performing the Anderson-Burdick balance to the facts of this case. This Court must never lose sight of the fact that the heart of plaintiffs’ claims is the COVID-19 pandemic. The ordinary “burdens” that the defendants will emphasize – for example, that it is not especially difficult to obtain a person to witness an absentee ballot signature, or to plan around limited in-person absentee voting hours – are completely irrelevant in this case, but they will spring back to relevance once the pandemic is over. For this case, the burden is not merely that a prospective absentee voter who lives alone must locate a witness; it is that the voter must interact with other people, either at home or somewhere else, and in so doing expose herself to a deadly virus. It is simply beside the point that the act of finding a potential witness is a physical act that is easy to complete even now; the burden lies in the added risk that a prospective voter must take on under the status quo Wisconsin election regime.
This enhanced risk is grave enough for healthy prospective voters. It becomes nearintolerable when citizens under disabilities, like most of the plaintiffs in this case, must expose themselves to COVID-19 in order to comply with Wisconsin’s election rules. As difficult as it is for healthy citizens to weigh their fundamental right to vote against their health and safety, imagine how hard it is for a person with a suppressed immune system, or severely impaired pulmonary capacity, to decide whether it is worth risking life to comply with Wisconsin’s rules to perform an
5 We, of course, join in the arguments advanced by the plaintiffs in the companion cases consolidated for purposes of the injunctive relief the Edwards Plaintiffs seek.
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act that was comparatively simple to do in all previous years. 2020 is different in a factually and legally significant way.
That, at any rate, is what the U.S. District Court for the Western District of Virginia ruled in approving a consent decree that negated Virginia’s requirement that absentee ballots are valid only when signed by a witness, over the objections of the Republican Party of Virginia, in League of Women Voters v. Virginia State Bd. of Elections, 2020 WL 2158249 (W.D. Va., May 5, 2020)(“LWV”). Specifically, the court ruled that the COVID-19 pandemic fundamentally transformed the nature of the Anderson-Burdick balance:
In ordinary times, Virginia’s witness signature requirement may not be a significant burden on the right to vote. But these are not ordinary times. In our current era of social distancing where not just Virginians, but all Americans, have been instructed to maintain a minimum of six feet from those outside their household the burden is substantial for a substantial and discrete class of Virginia’s electorate. During this pandemic, the witness requirement has become “both too restrictive and not restrictive enough to effectively prevent voter fraud.” LWV, 2020 WL 2158249 at *8 (citation omitted) (emphasis added). The LWV court went on to specify that the witness requirement was too restrictive because it forced many Virginia voters to face the choice between adhering to guidance that is meant to protect not only their own health, but the health of those around them, and undertaking their fundamental right-and indeed, their civic duty-to vote in an election. The Constitution does not permit a state to force such a choice on its electorate. Id. (Emphasis added.) The Virginia Republicans argued that these health risks were “either overblown or could be mitigated,” by adopting recommended social distancing measures, id., but the court rightly shredded that cynical contention: “[F]or many—especially the elderly, immunocompromised, and others at greatest risk of medical complications or death if they contract the virus—such measures come up far short.” Id. The court reviewed the medical evidence demonstrating how widely and
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easily and widely the virus spreads, and concluded – as this Court should – that the “substantial burden on the right to vote has not been justified by countervailing, demonstrated interests in the witness requirement.” Id.
In other words, what the defendants here have historically used to justify election laws that impose hurdles to voting don’t hold water during this pandemic, because the burden of compliance is so much higher. Defendants’ arguments are based on a fundamental misunderstanding that the context is different in dispositive ways.
Thomas v. Andino, 2020 WL 2617329 (D.S.C., May 25, 2020), employs the same reasoning as LWV to invalidate – temporarily – South Carolina’s witness requirement6 for absentee ballots for a primary election to be held in early June. Id. at *17-*19. Central to its Anderson-Burdick balancing was its accurate recognition that “the court is faced with an unusual fact pattern, which is a function of unusual times.” Id. at *18. The Thomas court also found it significant that many of the plaintiffs – like the Plaintiffs here – “have individual characteristics or conditions that are regarded by the CDC as placing them, at a higher risk for contracting COVID-19, including being over 65 years of age, having underlying medical conditions (including scleroderma, interstitial lung disease, hypertension, gout, history of breast cancer, emphysema, infection), being disabled, and/or being African American.” Id. at *19. In light of the plaintiffs’ enhanced susceptibility to COVID-19 and the unique facts surrounding the pandemic, the court had no trouble in Thomas concluding that the scant evidence that the witness requirement actually prevented voter fraud was
6 While the case law offered here concerns a witness requirement, the same rationale applies to the other relief the plaintiffs’ requests for relief outlined in their motion and in Section G of the Background Facts section of their brief. If the burden to comply with the witness requirement is unacceptably high because doing so exposes vulnerable electors to a deadly disease, then the burden to comply with a voter identification requirement (which may necessitate waiting in line at a DMV or passport office) is similarly excessive.
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easily outweighed by the burden imposed under the circumstances of the pandemic. Id. at *20*22.
The Edwards Plaintiffs urge this Court to follow the path of LWV and Thomas, recognizing that COVID-19’s threat to life and health places a heavy weight on the scale for Anderson-Burdick balancing. Under these circumstances, it is difficult to imagine how any of the garden-variety rationales proffered to justify voting restrictions can pass muster. IV. PLAINTIFFS WILL SUCCEED IN PROVING THAT DEFENDANTS VIOLATED
THE AMERICANS WITH DISABILITIES ACT DURING THE SPRING ELECTION AND WILL CONTINUE TO DO SO WITHOUT JUDICIAL INTERVENTION. In 1990, Congress enacted the ADA to remedy widespread discrimination that existed against individuals with disabilities. Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C §12101(a)(2). For example, as recently as 1979, most states categorically disqualified “idiots” from voting, regardless of individual capacity, and discretion of who could vote was left to low-level election officials. Cleburne v. Cleburne Living Center, Inc. 473, U.S. 432, 464 (1985) (Marshall, J. concurring). Congress further found that “discrimination against individuals with disabilities persists in such critical areas as . . . voting, and access to public services,” a finding that was reiterated in the 2008 Americans with Disabilities Amendments Act. See 42 U.S.C §12101(a)(3) Further, in both 1990 and in 2008, Congress found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of . . . [the] failure to make modifications to existing facilities and practices;” 42 U.S.C §12101(a)(5) and that “census data, national polls, and other studies have documented that people with disabilities,
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as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.” 42 U.S.C §12101(a)(6)
In passing the ADA, Congress sought “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C §12101(b)(1). President George H.W. Bush, in signing the ADA, stated, “The Americans with Disabilities Act presents us all with an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.” (PFOF 238.)
The ADA prohibits discrimination in three major areas: employment, which is covered by Title I; public services, programs, and activities, which are covered by Title II; and public accommodations, which is covered by Title III. Title II, §§12131-12134, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” In the research leading to the passage of the ADA, Congress learned that approximately 76 percent of public services and programs were inaccessible and unusable to individuals with disabilities, even where the programs or services restructured or relocated to other parts of the buildings. U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 39 (1983).
The United States Supreme Court has documented a history of discriminatory treatment of individuals with disabilities by states and local governments. See Jackson v. Indiana 406 U.S. 715 (1972) (unjustified commitments); Youngberg v. Romeo, 457 U.S. 307 (1982) (documenting abuse and neglect of persons committed to mental institutions); Cleburne, 473 U.S. at 432
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(discriminatory zoning).7 One of the ADA’s central purposes was to sweep that history aside and

allow citizens with disabilities to fully participate in American life.

Thus, the ADA was crafted "to advance equal-citizenship stature for persons with

disabilities." Tennessee v. Lane , 541 U.S. 509, 536, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004)

(Ginsburg, J., concurring). Unsurprisingly, voting is among the rights safeguarded by the ADA. Nat’l Federation of the Blind v. Lamone, 813 F.3d 494, 503-04 (4th Cir. 2016); see also Lacy v.

Cook Cnty., 897 F.3d 847, 852 (7th Cir. 2018) This is logical, because the right to vote is a

fundamental right, “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

In addition to the ADA, Congress passed the Help America Vote Act (“HAVA”), 42 U.S.C.

§ 15301 et seq., which requires each polling place in a federal election to have a voting system

that is accessible to individuals with disabilities. Specifically, §15301(b)(1)(G) provides federal

financial assistance to ensure that polling locations are accessible to individuals with disabilities.

Despite the progress made in public services as a result of the ADA, including in the area

of voting, challenges for voters with disabilities continue to exist. One study, funded by the U.S.

Election Assistance Commission entitled, Disability, Voter Turnout, and Voting Difficulties in

the 2012 Elections, concluded that:

•

30.1% of voters with disabilities reported difficulty in voting at a polling place

(compared to 8.4% of voters without disabilities) with the most common problems being

difficulty in reading or seeing the ballot, or understanding how to vote or use voting

equipment (PFOF 239);

7 At times, the Supreme Court has even been complicit in this discrimination, as it was in Buck v. Bell 274 U.S. 200 (1927) when it upheld the forced sterilization of thousands. “A mere five paragraphs long, Buck . . . could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike.” Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a Lost World, 39 Pepp. L. Rev. 101, 101 (2011).
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• Almost one-third of voters with disabilities required assistance in voting, most commonly given by election officials or family members; and 6.5% of voters with disabilities used extra features or devices in voting, such as large displays and accessible voting machines (PFOF 240). Five years later, in October 2017, the Government Accountability Office (“GAO”) issued a report on the accessibility of polling places for individuals with disabilities in the 2016 election. Among its many findings, the GAO study found that 95 percent of polling locations observed had an accessible voting location, however, 65 percent had accessible voting stations that could impede casting a private and independent vote. (PFOF 241.) It is with this background that we now approach the November Election and the particular impact COVID-19 is having on individuals with disabilities. In addition to its general guidance for safely conducting elections during the pandemic summarized in Section E of the Background Facts found in this brief and as appended at Exhibit Z to the Declaration of Joseph S. Goode submitted herewith, the CDC has specifically found that individuals suffering from significant underlying medical conditions may also be at an increased risk for severe illness from COVID-19. These include:
• People with chronic lung disease or moderate to severe asthma • People who have serious heart conditions • People who are immunocompromised (PFOF 242.) Many conditions can cause a person to be immunocompromised, including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications • People with diabetes
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• People with chronic kidney disease undergoing dialysis • People with liver disease • People living in nursing homes (PFOF 243.) These significant medical conditions are all physical impairments, which substantially limit one or major life activities, as defined by the Section 12102(1)(A), which now requires the definition of disability to be construed in favor of broad coverage. 42 U.S.C. §12102(4)(A). We encourage the Court to review Section F of the Background Facts to appreciate how many of the plaintiffs in this case fall into a protected group under the ADA to understand why this claim is being pursued. Governments violate the ADA not only when their procedures completely deny the right of individuals with disabilities to cast their ballots; instead, they also violate the statute when their election apparatus does not provide “meaningful access” to the exercise of the franchise. California Council of the Blind v. County of Alameda, 985 F. Supp. 2d 1229, 1238 (N.D. Cal. 2013); see also Disabled In Action v. Bd. of Elections in the City of New York, 752 F.3d 189, 199 (2d Cir. 2013). A government cannot satisfy the requirements of the ADA by providing voters with disabilities “merely the opportunity to vote at some time and in some way.” Disabled In Action, 752 F.3d at 199. Governments have an affirmative obligation to ensure that disabled voters have a voting experience that gives them “an equal opportunity to participate in and enjoy the benefits of” voting that is enjoyed by non-disabled voters. California Council, 985 F. Supp. 2d at 1239, quoting 28 C.F.R. § 35.160(b)(1). Moreover, “the right to vote should not be contingent on the happenstance that others are available to help.” Disabled In Action, 753 F.3d at 199-200. Therefore, a government must take affirmative steps to ensure that each voter under disability has
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the same rights as a non-disabled voter, and cannot defeat an ADA voting rights claim by pointing to individual circumstances that might on one occasion have alleviated the burden of that government’s failure to provide required accommodations.
The defendants cannot assert the requirements of Wisconsin’s statutes governing voting to limit plaintiffs’ rights under the ADA. “A discriminatory state law is not a defense to liability under federal law; it is a source of liability under federal law.” Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995) (applying Age Discrimination in Employment Act; emphasis in original).8 Thus, “the ADA's reasonable modification requirement contemplates modification to state laws, thereby permitting preemption of inconsistent state laws, when necessary to effectuate Title II's reasonable modification provision.” Mary Jo C, 707 F.3d at 163.
Finally, defendants cannot defeat plaintiffs’ ADA claim by contending that the accommodations plaintiffs seek would “fundamentally alter” Wisconsin’s election procedures. See Lamone, 813 F.3d at 508-09. As the numerous recent cases in this Court and others over amendments to Wisconsin’s election laws demonstrate, the recently-passed laws, like strict voter identification requirements and limited early voting hours cannot be “fundamental” elements of Wisconsin elections, because Wisconsin held elections for decades under different procedural rules. V. DENIAL OF THE FUNDAMENTAL RIGHT TO VOTE CAUSES PLAINTIFFS
IRREPARABLE HARM. This Court’s April 2, 2020 order rightly follows clear authority holding that a deprivation of the right to vote works an irreparable harm, and that it cannot be redressed by money damages, meaning there is no adequate remedy at law. DNC v. Bostelmann, 2020 WL 1638374 at *11 (W.D.
8 Quinones has been cited to apply the ADA to protect voting rights. Mary Jo C v. New York State & Local Retirement Sys., 707 F.3d 144, 164 (2d Cir. 2013)
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Wis, April 2, 2020). There is no reason to revisit that result because the record in this case supports it in full. VI. THE HARM TO PLAINTIFFS IF AN INJUNCTION IS DENIED FAR
OUTWEIGHS THE HARM DEFENDANTS WOULD SUFFER IF AN INJUNCTION IS GRANTED. As the Amended Complaint, this brief, the declarations submitted to support it, and the myriad submissions from the other plaintiffs in the companion lawsuits all demonstrate, the Legislative Defendants evince at best a callous indifference to the Wisconsin Electorate’s ability to vote safely, including the plaintiffs in this case. These plaintiffs represent a broad cross-section of the electorate; some, including Chrystal Edwards, Terron Edwards, William Laske, Kileigh Hannah, Todd Graveline, Jan Graveline, Jean Ackerman, John Jacobson, and Charles Dennert did not receive their absentee ballots in the mail, despite timely requests. (PFOF 208-09.) Charles Dennert was convalescing at his parents’ house in Waukesha and did not have transportation to his polling place in Milwaukee, and could not vote despite timely requesting an absentee ballot. (PFOF 213.) Kristopher Rowe and Katie Rowe received and timely cast theirs, but their votes are not reflected in the MyVote.Wi.Gov system and they have reasonable reasons to believe their ballots were not counted. (PFOF 210-211.) Several plaintiffs, including Chrystal Edwards, Terron Edwards, William Laske, Kileigh Hannah, Jean Ackerman, Douglas West, and Angela West did not vote in person because they feared contracting COVID-19 or spreading it to at-risk loved ones (PFOF 212); Todd Graveline attempted to vote in person but saw a massive line with inadequate social distancing and left the polling place without voting, fearing for his safety (PFOF 214). The WEC Defendants have taken some steps to mitigate some of these problems ahead of the upcoming elections, including voter education, ballot tracking through smart barcodes,
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upgrading software and hardware to accommodate increased absentee balloting, and mailing of absentee ballots applications to most registered voters who have not already requested them. However, these steps, while necessary, are wholly insufficient in the face of a worldwide pandemic unlike any other infectious disease in the last century.
Injunctive relief is needed now in order to avoid repeating in the November Election the violations of the U.S. Constitution and ADA that occurred in the April Election. These injunctive measures are required now, well ahead of the November Election, to provide certainty and avoid last-minute confusion.9 See Republican National Committee et al. v. Democratic National Committee et. al., 589 U. S. ____ (2020) (April 6, 2020) (generally declining to alter election law on the eve of the Spring Election)(citing Purcell v. Gonzalez, 548 U.S. 1 (2006) (per curiam)); Frank v. Walker, 574 U.S. 929 (2014).
The CDC recommends that election officials implement “any … feasible options for reducing the number of voters who congregate indoors in polling locations at the same time.” (PFOF 244.) To do so, mail-in absentee balloting must be widely available and, importantly, effective, so as to avoid the disenfranchisement that occurred on April 7, 2020, as thousands of Wisconsin voters, including several of the plaintiffs in this case, did not receive their ballots. However, this is not enough. For individuals who cannot or will not vote via absentee ballot, the CDC recommends longer in-person voting periods as well as strict hygiene measures at the polling places. (PFOF 254.) The plaintiffs in this case request, at a minimum, the Court order the WEC Defendants to promulgate written guidance and condition its CARES Act and HAVA grants to municipal authorities only upon implementing the safety protocols set forth by the CDC.
9 Plaintiffs’ Amended Complaint seeks class certification and damages for the ADA claim; however, as damages will redress past violations of the ADA, adjudicating them here is not as time sensitive and will be handled at a later date as the Court so orders.
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A. Voting From Home in the November Election. An ideal and reasonable remedy here given the uncontroverted transmissibility concerns with COVID-19 would be to enjoin Wis. Stat. §§ 6.86 and 6.87. These statutory provisions prevent municipal clerks from issuing absentee ballots without written or electronic application and proof of identification if these materials are not already on file. While this Court cannot write new laws, it can enjoin laws that in practice violate the Constitution and in so doing order the WEC Defendants to direct clerks to send absentee ballots by mail to all registered voters, as the WEC has already done with absentee ballot applications. This would, in essence, transform the November Election to a vote-by-mail election with in-person absentee and election day balloting available for voters who are not registered in time to receive an absentee ballot, or who are unable or unwilling to vote via mail-in absentee ballot for whatever reason. Several states—Utah, Colorado, Oregon, Washington, and Hawaii—already have all-mail elections. (PFOF 245.) California, pursuant to an order by its Governor Gavin Newsom, has implemented mail-in voting for November 3, 2020, whereby every eligible voter will receive a mail-in ballot, with in-person voting continuing for those who want or need it. (PFOF 246.) This approach could easily be implemented here when weighed against the constitutional deprivations experienced by plaintiffs (and others like them) in the Spring Election. Defendants, particularly the Legislative Defendants and the intervening Republican National Committee (“RNC”), will no doubt complain as they normally do that mail-in elections favor one party or countenance fraud. Neither of these complaints have merit, particularly with the once-in-a-lifetime situation before us: a global and deadly pandemic where Wisconsin presently has the highest transmission rates of any state in the country. According to an April 15, 2020 paper from Stanford University’s Democracy & Polarization Lab, mail-in voting does not increase any
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party’s share of turnout or any party’s vote share; what it does is increase overall average turnout rates. (PFOF 247.) Importantly, the Brennan Center for Justice reports that there is “no evidence that voting by mail results in significant fraud. As with in-person voting, the threat is infinitesimally small.” (PFOF 248.)
We acknowledge that Wisconsin requires voters to submit identification to vote generally (2011 Wis. Act 23), and with absentee ballot requests if identification with current address has not previously been provided for an absentee ballot (Wis. Stat. § 6.87(4)(b)3), when obtaining an absentee ballot. For voters who have in the past requested absentee ballots by mail or electronic means and have not moved, this requirement has already been met, so at the very least ballots may be sent to these electors without substantial fanfare.
Obtaining adequate voter identification presents a substantial burden to many voters, even under normal circumstances. This burden is well documented; see, e.g. Estimating the Effect of Voter ID on Nonvoters in Wisconsin in the 2016 Presidential Election. (PFOF 249.) During a pandemic like COVID-19, the burden is even greater; voters who cannot appear in person or wait in lines at a polling place cannot appear in person or wait in lines at the Department of Motor Vehicles or a passport office, for the same reasons. We are not asking the Court to enjoin all voter identification laws for this election; however, in recognition of the extraordinary circumstances we ask that the Court enjoin enforcement of voter identification laws to the extent that they unduly burden persons with disabilities, and, instead, allow them to submit a statement under penalty of perjury that they were unable to safely obtain identification suitable for voting.
This is actually just an extension of current law and a remedy that meets the realities before the Court. Present law exempts identification to vote absentee where electors self-identify as indefinitely confined, due to age, illness, or disability. Under current law, such electors may avoid
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the identification requirement by providing a statement with their absentee ballot from a witness verifying the name and address of the elector. See Wis. Stat. § 6.87(4)(b)2. This could be an appropriate mechanism for voters who, due to disability in light of the COVID-19 pandemic, may not be indefinitely confined but at present cannot obtain appropriate identification but are able to safely have their ballot witnessed by a household member or caregiver. However, not everyone will be able to safely have their ballots witnessed, and in those cases a statement under penalty of perjury is appropriate and reasonable.
Should the Court decline to require mail-in ballots be sent to some or most electors, then steps must be taken to ensure that all absentee ballot requests that are submitted timely are fulfilled, with sufficient time for the ballot to arrive and be returned. Last week, Luft v. Evers, 2020 U.S. App. LEXIS 20245, __ F.3d __, 2020 WL 3496860, held that Wis. Stat. § 6.87(3), which prohibits clerks from faxing or emailing absentee ballots to most voters, was acceptable under the U.S. Constitution and the Voting Rights Act, and reversed the trial court’s contrary conclusion. If Luft is not stayed or otherwise altered, military and overseas voters will be entitled to faxed or emailed ballots but domestic voters will not. (PFOF 250.) This means even voters who timely request absentee ballots—voters like Chrystal Edwards, Terron Edwards, William Laske, Kileigh Hannah, Todd Graveline, Jan Graveline, Jean Ackerman, John Jacobson, and Charles Dennert —and do not receive them in the days leading up to the November Election cannot contact their clerks and obtain a reasonable replacement, leading to the same Hobson’s choice of risking their health or giving up their franchise that they faced in April.
Luft, which may be subject to en banc petition, was argued February 24, 2017, nearly three years before anyone had heard of COVID-19, and the decision was made based on a record from a universe that does not exist right now and will not for the November Election. Needless to say,
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circumstances have drastically changed, and the plaintiffs in this case ask for a limited order, enjoining Wis. Stat. § 6.87(3) solely for the November Election to allow electors who have timely requested absentee ballots but do not receive them in time to cast and return them to be provided with ballots via email or fax, which was allowed in Wisconsin up until last week and then disallowed based on a record that did not anticipate a global pandemic.
Defendant Wolfe testified in this case that emailed ballots have numerous security measures in place, and she considers email a secure method of “making sure only lawfully— lawfully issued ballots are counted.” (PFOF 251.) In fact, emailed ballots had been allowed for non-military, non-overseas voters for a few years before the Luft decision was issued, without incident. (PFOF 252.) This is a reasonable, commonsense solution to ensure that voters who request absentee ballots and do not receive them can still vote from the privacy of their homes.
Wis. Stat. § 6.87(2) requires substantially all absentee ballots to be witnessed by an adult citizen of the United States. Under normal circumstances and for most people, this is not a problem—they may live with a qualified witness or interact with one while going about their day. However, during this extraordinary time, this requirement acts as an undue and excessive burden on individuals who are immunocompromised or who have mobility limitations and do not reside with a qualified witness, as well as a burden on individuals who are infected with COVID-19 or are quarantining or isolating due to exposure, suspected infection, or another state or local order.
This Court previously acknowledged this burden, and on April 2, 2020, entered an injunction allowing voters to submit unwitnessed ballots if they contained a statement averring that the voter was unable to safely obtain a witness certification despite reasonable efforts. Democratic Nat'l Comm. v. Bostelmann, 2020 U.S. Dist. LEXIS 57918. We acknowledge that this request was rejected by the Seventh Circuit, which stayed this Court’s injunction. DNC v.
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Bostelmann, No. 20-1538 (7th Cir. Apr. 3, 2020). However, the Seventh Circuit’s decision did not reject wholesale the waiver of the witness certification, but criticized the “overbreadth” of this Court’s order, which it viewed as “categorically eliminat[ing] the witness requirement applicable to absentee ballots.” The Seventh Circuit also relied on Purcell v. Gonzalez, 548 U.S. 1,4 (2006) (per curiam) for the proposition that court orders affecting elections can cause voter confusion, especially close to an election. The Court of Appeals suggested that the WEC Defendants’ cumbersome work-arounds for the witness requirement were sufficient for the time being, and indicated that the WEC will “continue to consider yet other ways for voters to satisfy the statutory signature requirement” DNC v. Bostelmann, No. 20-1538 *4 (7th Cir. Apr. 3, 2020).
Here, we are not requesting that the witness requirement be waived in its entirety. For a very limited subset of the population, however, obtaining a witness signature may be a matter of life and death; in addition to immunocompromised individuals who cannot safely interact with other persons and do not have any other way of obtaining a witness certification (such as through a window or on video), unfortunately, any of the plaintiffs or any member of the population may find themselves in that class. Individuals diagnosed with COVID-19 are instructed to isolate in their homes and avoid contact with others for at least 10 days, regardless of symptoms. (PFOF 253.) A voter who timely requests an absentee ballot but falls ill will not be able to obtain a witness signature if they are isolated or quarantined. In those limited situations where a voter simply cannot obtain a witness signature without risking their health or that of a witness, a sworn statement under penalty of perjury is a necessary and sufficient substitute.
Finally, we join the Swenson Plaintiffs’ motion for preliminary injunction with regard to Wis. Stat. §§ 6.88, 7.51-.52 (see 20-CV-459, Docket No. 41, pp. 51-54), which prohibit municipalities from reviewing absentee ballots prior to election day, in its entirety. Clerks are
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directed to simply place the ballot in a carrier envelope and ignore it until election day, preventing electors from being able to cure even defects that are readily apparent on the transmittal envelope, let alone on the ballot. An in-person voter may be afforded the opportunity to cure an overvote rejected by the voting machine, or to ask a poll worker for assistance; an absentee voter is not.
B. Voting In Person in the November Election. Not everyone will want to or be able to vote via mail or other remote means, so in-person opportunities must be expanded and safeguarded. These include, as the CDC recommends, longer periods in which to vote in person. (PFOF 254.) Safeguarding the right to vote also includes ensuring flexibility at voting places and with regard to election staffing, whether for in-person absentee or on election day. With regard to implementing longer in-person voting periods, we acknowledge the holding in Luft that recently reinstated the portion of Wis. Stat. § 6.86(1)(b), which limited in-person absentee voting (commonly though perhaps erroneously referred to as early voting) to the period beginning 14 days preceding the election and ending the Sunday before the election. The Seventh Circuit’s decision found that these limits did not violate the Voting Rights Act10 or the First Amendment of the U.S. Constitution when read with Wisconsin’s elections system as a whole. While the Seventh Circuit’s conclusion in Luft may be the law in ordinary circumstances, the Court was not presented with this question: how do you avoid disenfranchising voters in the face of public health crisis unlike anything that has occurred in the last 100 years and, in fact, has never happened in a presidential election in the history of the United States? Circumstances have radically changed since the plaintiffs in Luft made their record and we ask the Court to review Wis. Stat. § 6.86(1)(b) under this reality. While the time limits may be
10 The plaintiffs here are no longer pursuing relief under the Voting Right Act.
51

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constitutionally allowable under normal circumstances, as the Seventh Circuit has signaled, they create unneeded and unnecessary obstacles for municipalities who want to spread out in-person voting as much as possible, to avoid the lines and crowds, and the increase in COVID-19 correlated with in-person voting, that befell urban centers like Milwaukee and Green Bay in the Spring Election. There simply is no compelling state interest in strict time limits for in-person absentee ballots in the midst of a pandemic. Accordingly, and assuming that the Luft order is not stayed or modified in the interim, we move the Court to enjoin enforcement of Wis. Stat. § 6.86(1)(b) for the November Election.
Plaintiffs also seek an order enjoining enforcement of Wis. Stat. § 6.855(1), which requires municipalities choosing to offer in-person absentee voting at a site or sites other than the clerk or board of election commissioners’ office to designate such sites “no fewer than 14 days prior to the time that absentee ballots are available for the primary . . . and [site selection] shall remain in effect until at least the day after the election.” Ballots are required to be available 47 days before a partisan primary pursuant to Wis. Stat. § 7.15(1)(cm); this year, that date was June 25, 2020 for the August 11, 2020 primary. This means municipalities designated their in-person absentee sites as of June 11, 2020, and these sites are fixed through the November Election. By law, they cannot be changed even if circumstances at the time so dictate—none can be added to provide for additional distancing or to compensate for deficiencies in the mail-in ballot process, nor can they be moved should circumstances dictate (i.e. should a location need to close following an outbreak). Again, there is little state interest in enforcing this statute in the midst of a pandemic; while voter confusion may potentially occur if sites are added or moved ad hoc under normal circumstances, any such potential is far outweighed by the needs of municipalities to be able to adapt to changing
52

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conditions where necessary, and can be offset through appropriate signage and voter outreach. We therefore move the Court for an order enjoining Wis. Stat. § 6.855(1).11
Finally, the plaintiffs here move for an order enjoining Wis. Stat. § 7.30(2), which requires all election officials and poll workers to be a qualified elector of the county in which they are serving. Poll worker shortages were well documented in the Spring Election, requiring consolidation of polling places and activation of the National Guard. (PFOF 255.) There is no compelling state interest in requiring poll workers to hail from the same county in which they serve, and this statute is likely to exacerbate poll worker shortages in counties with outbreaks, as resident poll workers may be sick, quarantining, or socially distancing themselves. Enjoining this statute for the November Election will allow municipalities to pull from a statewide pool of poll workers and would allow more effective deployment of National Guard members (who were generally restricted to serving in their home counties). VII. THE PUBLIC INTEREST SUPPORTS AN INJUNCTION.
Enforcing constitutional rights is in the public interest, as is “permitting as many qualified voters to vote as possible.” DNC v. Bostelmann, 2020 WL 1638374 at *14. The Edwards Plaintiffs easily clear this final threshold for the entry of a preliminary injunction.
CONCLUSION For the reasons stated above, and on the basis of the record developed by the Edwards Plaintiffs and the parties in the companion cases, the Court should order injunctive relief as outlined in the accompanying motion.
11 Moreover, as provided in Wis. Stat. § 6.855(4), all in-person absentee voting sites “shall be accessible to all individuals with disabilities.” (Emphasis added.) This by necessity requires the same accessibility provisions set forth in Wis. Stat. § 6.82, which includes curbside voting for electors who cannot enter the polling place, as well as aid in marking the ballot if the elector cannot do so due to a disability. In addition, HAVA mandates that voting systems be accessible to individuals with disabilities, including visual disabilities, and requires at least one such system be available at each polling place. 42 U.S.C. § 15301 et seq.
53

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Dated this 8th day of July 2020.

Respectfully submitted,
LAFFEY, LEITNER & GOODE LLC Attorneys for Plaintiffs
By: s/ Joseph S. Goode Joseph S. Goode Mark M. Leitner John J. Laffey Sarah E. Thomas Pagels Jessica L. Farley 325 E. Chicago Street Suite 200 Milwaukee, WI 53202 (414) 312-7003 (414) 755-7089 (facsimile) jgoode@llgmke.com mleitner@llgmke.com jlaffey@llgmke.com stpagels@llgmke.com jfarley@llgmke.com
URBAN & TAYLOR, S.C. Jay A. Urban Urban Taylor Law Building 4701 N. Port Washington Road Milwaukee, WI 53212 (414) 906-1700 (414) 704-7207 (facsimile) jurban@wisconsinjury.com
HALLING & CAYO, S.C. Stacie H. Rosenzweig 320 East Buffalo Street Suite 700 Milwaukee, WI 53202 (414) 238-0197 (414) 271-3841 (facsimile) shr@hallingcayo.com

54

Case: 3:20-cv-00249-wmc Document #: 397 Filed: 07/08/20 Page 55 of 55 SALAWDEH LAW OFFICE, LLC Rebecca L. Salawdeh 7119 W. North Avenue Wauwatosa, WI 53213 (414) 455-0117 (414) 918-4517 rebecca@salawdehlaw.com
55

 
 Case: 3:20-cv-00249-wmc Document #: 420 Filed: 07/08/20 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs,
v.
MARGE BOSTELMANN, et al., Defendants,
and
REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No.: 3:20-cv-249-wmc

SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-278-wmc

CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-340-wmc

Case: 3:20-cv-00249-wmc Document #: 420 Filed: 07/08/20 Page 2 of 74

JILL SWENSON, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants

Civil Action No. 3:20-cv-459-wmc

MEMORANDUM OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN IN SUPPORT OF MOTION FOR RENEWED PRELIMINARY INJUNCTION

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Table of Contents
Table of Authorities ....................................................................................................................... iii Table of Abbreviations ....................................................................................................................x Introduction and Summary of the Argument ...................................................................................1 Statement of Facts..........................................................................................................................10
A. Overview of the April 7 election. ..........................................................................11 B. The election-day receipt deadline continues to threaten to disenfranchise
voters. .....................................................................................................................15 C. The continuing disenfranchising effects of the witness certification
requirement. ...........................................................................................................20 D. The continuing disenfranchising effects of the photo ID and proof-of-
residence requirements...........................................................................................22 E. The WEC defendants’ June 25 Status Report........................................................24 ARGUMENT .................................................................................................................................27 I. This Court should extend the injunctive relief granted for the April 7 election to the November 3 general election. ......................................................................................27 A. This Court should again extend the online registration deadline, and
should include by-mail registration in that extension. ...........................................28 B. This Court should again extend the election-day ballot-receipt deadline..............31 II. This Court should again grant limited injunctive relief against Wisconsin’s witness-certification requirement, modified to resolve the Seventh Circuit’s concerns. ............................................................................................................................34 A. The controlling decisions require a generous safety net. .......................................35 B. This Court should follow Frank III in crafting appropriate relief. ........................42 III. This Court should partially enjoin the ID and proof of residency requirements as applied to those who attest under penalty of perjury that they cannot meet those requirements after reasonable efforts.................................................................................46 IV. This Court should order defendants to take further steps to ensure all Wisconsin voters have access to safe and secure in-person voting opportunities. ..............................49

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V. The challenged provisions violate federal due process guarantees. ..................................54 VI. The challenged provisions violate equal protection guarantees. .......................................56 VII. Plaintiffs meet all other requirements for their requested preliminary injunctive
relief. ..................................................................................................................................59

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Table of Authorities
CASES
Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp. 3d 779 (W.D. Tex. 2015)....................................................................................62
Bishop v. Lomenzo, 350 F.Supp. 576 (E.D.N.Y. 1972) ...........................................................................................60
Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................................................55
Bush v. Gore, 531 U.S. 98 (2000).................................................................................................56, 57, 58, 59
Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) ...........................................27, 35, 41
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)...........................................................................................................36, 42
Democratic Nat’l Comm. v. Bostelmann, 20-cv-249-wmc, 2020 WL 1505640 (W.D. Wis. Mar. 28, 2020) ...........................................51
Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc) ...................................................................................62
DNC v. RNC, Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020) ............................................................ passim
DNC v. RNC, 140 S. Ct. 1205 (Apr. 6, 2020) (stayed in part) ...............................................................2, 7, 57
Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) ........................................................46
Fair and Equal Mich. v. Benson, No. 20-000095-MM (Mich. Ct. Claims June 10, 2020) ..........................................................46
Faulkner for Va. v. Va. Dept of Elections, No. CL-20-1456 (Va. Cir. Ct. Mar. 25, 2020) .........................................................................46
Fla. Democratic Party v. Detzner, 4:16cv607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016)................................55, 60

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Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153 ..........................................................................................................................57
In re: Extension of time for Absentee and Mail-in Ballots, No. 2020-003416 (Penn. Ct. Common Pleas, Delaware Cty. June 2, 2020) ...........................46
In re: Extension of time for Absentee and Mail-in Ballots, No. 2020-02322-37, slip op. (Penn. Ct. Common Pleas, Bucks Cty. June 2, 2020) ........................................................................................................................................46
Frank v. Walker, 196 F. Supp. 3d 893 (E.D. Wis. 2016), aff’d in part and rev’d on other grounds 2020 WL 3496860 (7th Cir. June 29, 2020) ..............................................................52
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ........................................................................................... passim
Frank v. Walker, Nos. 16-3003 & 16-3052, 2016 WL 4224616 (7th Cir. 2016) ................................................38
Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc) ........................................................................... passim
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) ..................................................................................................42
Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018) ..............................................................................33, 60
Goldstein v. Sec’y of the Commonwealth, 484 Mass. 516 (2020) ..............................................................................................................46
Hollingsworth v. Perry, 570 U.S. 693 (2013).................................................................................................................27
Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir. 2003) .................................................................................................57
Jefferson v. Dane County, 2020AP557-OA ...........................................................................................................47, 49, 58
LAJIM, LLC v. Gen. Elec. Co., 917 F.3d 933 (7th Cir. 2019) ...................................................................................................59
League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV-00024, 2020 WL 2158249 (W.D. Va. May 5, 2020).........................................45

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Lewis v. Bostelmann, No. 20-cv-284-wmc ...................................................................................................................1
Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020), stay denied pending appeal, No. 20-1961 (7th Cir. June 21, 2020) ...........................................................46
Luft v. Evers, ___ F.3d ___, 2020 WL 3496860 (7th Cir. June 29, 2020) ............................................. passim
Miller v. Thurston, No. 5:20-cv-05070 (W.D. Ark. May 25, 2020) .......................................................................46
Moreno v. Denney, No. 1:20-cv-00242 (D. Idaho May 23, 2020) ..........................................................................46
Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) ...................................................................................................33
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .............................................................................................57, 59
One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016) .........................................................................6, 37, 62
One Wisconsin Institute, Inc. v. Thomsen, No. 15-cv-324-jdp, ECF Nos. 261, 293, 305 ................................................................... passim
Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 WL 2089813 (D. Nev. Apr. 30, 2020) .....................62
People First of Ala. v. Sec’y of State, No. 20-12184, slip op. (11th Cir. June 25, 2020) ....................................................................62
People First of Alabama v. Sec’y of State of Alabama, No. 20-12184, 2020 WL 3478093 (11th Cir. Jun. 25, 2020)...................................6, 37, 44, 45
Purcell v. Gonzalez, 549 U.S. 1 (2006)...............................................................................................................42, 59
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) ...................................................................................................57
Reclaim Idaho v. Denney, No. 1:20-CV-00268-BLW, 2020 WL 3490216 (D. Idaho June 26, 2020) ..............................46
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ...............................................................................................................5

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Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018).........................................................................................55
Taylor v. Louisiana., 419 U.S. 522 (1975).................................................................................................................60
Thomas v. Andino, Nos. 3:20-cv-01552-JMC, 2020 WL 2617329 (D.S.C. May 25, 2020) ..................................46
U.S. Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir. 2008) ...................................................................................................61
United States v. Berks Cty., Pa., 250 F. Supp. 2d 525 (E.D. Pa. 2003) .......................................................................................60
United States v. Georgia, 892 F. Supp. 2d 1367 (N.D. Ga. 2012) ....................................................................................60
Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ...................................................................................................51
Zessar v. Helander, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006).............................................................................55
Zinermon v. Burch, 494 U.S. 113 (1990).................................................................................................................55
STATUTES
Wis. Stat. § 5.05 .................................................................................................................51, 53, 63
Wis. Stat. § 5.25 .............................................................................................................................53
Wis. Stat. § 6.28 ...................................................................................................................7, 29, 62
Wis. Stat. § 6.30 .............................................................................................................................51
Wis. Stat. § 6.34 ..................................................................................................................... passim
Wis. Stat. § 6.86 .................................................................................................................... passim
Wis. Stat. § 6.87 ..................................................................................................................... passim Wis. Stat. § 7.08 .............................................................................................................................51
Wis. Stat. § 7.15 .............................................................................................................................53
Wis. Stat. § 7.31 .............................................................................................................................51

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Wis. Stat. § 7.60 .............................................................................................................................34 Wis. Stat. § 7.70 .......................................................................................................................34, 60 Wis. Stat. § 8.12 .............................................................................................................................52 Wis. Stat. § 9.01 .............................................................................................................................52 RULES Fed. R. Civ. P. 41(a)(2)....................................................................................................................1 Fed. R. Civ. P. 30(b)(6)......................................................................................................30, 34, 60 OTHER AUTHORITIES 42 U.S.C. § 1988............................................................................................................................64 Alfred W. Crosby, American’s Forgotten Pandemic: The Influenza of 1918 (2d
ed. 2003) ....................................................................................................................................3 Article III, U.S. Constitution..........................................................................................................27 Ind.Code Ann. § 3–11.7–5–2.5(c) .................................................................................................36 Wisconsin Election Protection 2020 Spring Election Report (May 11, 2020) ..............................48 Richard Cohn & Charlie Cook, The Almanac of American Politics 2020 (2019) ...........................3 Seward W. Livermore, Woodrow Wilson and the War Congress, 1916-18 (1966) ........................3 Sherrilyn Ifill, Never Forget Wisconsin, Slate
(Apr. 8, 2020, 6:46 PM)...........................................................................................................50 Wisconsin Election Protection, 2020 Spring Election Report .......................................................58

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Table of Abbreviations

DMV

The Wisconsin Division of Motor Vehicles of the Wisconsin DOT

DOT

The Wisconsin Department of Transportation

DNC

The full legal and juridical name of plaintiff DNC is DNC Services Corp./Democratic National Committee, but its d/b/a and trade names “Democratic National Committee (DNC)” are familiar and non-confusing, and used throughout this brief and accompanying submissions.

DNCFOF DNC/DPW’s accompanying proposed findings of fact

DPW

Democratic Party of Wisconsin

Frank I

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)

Frank II

Frank v. Walker, 819 F.3d 384 (7th Cir. 2016)

Frank III Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc)

GAB

Government Accountability Board, the WEC’s predecessor

GOTV

Get out the vote

IDPP

The Wisconsin Identification Petition Process, which is administered by the DMV. The IDPP administers Wisconsin’s chosen “safety net” to the voter ID law

RNC

Republican National Committee

RNC v. DNC Republican Nat’l Comm v. Democratic Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part 5-4, 140 S. Ct. 1205 (Apr. 6, 2020) (per curiam).

RPW

Republican Party of Wisconsin

SSA

U.S. Social Security Administration

USPS

U.S. Postal Service

WEC

Wisconsin Elections Commission

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INTRODUCTION AND SUMMARY OF THE ARGUMENT This Court needs no introduction to the issues nor any detailed summary of the “lightning speed” of motions, hearings, and appeals during the first preliminary-injunction round from March 18 through April 6, 2020. ECF No. 217 at 1. Plaintiffs Democratic National Committee (DNC)1 and Democratic Party of Wisconsin (DPW) filed this, the first of five cases the Court has now consolidated, on March 18. ECF No. 1; see also ECF Nos. 86, 233 (consolidating DNC with Gear, Lewis,2 Edwards, and Swenson). In several orders in late March and early April, the Court denied DNC/DPW’s preliminary injunction motions in some respects (without prejudice, pending the development of a more robust record), while in other respects granting critically needed equitable relief that enabled a conservative minimum of well over 140,000 eligible Wisconsin voters to register and/or cast their ballots. See ECF Nos. 37, 170, 179.3 Although the Court’s preliminary injunction was further narrowed on appeal by the Seventh Circuit and the Supreme Court, one of the most important parts of this Court’s injunctive relief survived intact: the order enjoining defendants “from enforcing the requirement under Wis. Stat. § 6.87(6) that absentee ballots must be received by 8:00 p.m. on election day to be counted,” and extending that deadline for receipt of absentee ballots by six days, provided that such ballots were mailed and postmarked on or before election day. See ECF No. 170 at 52 (April 2, 2020), clarified & amended, ECF Nos. 179-80 (Apr.
1 The full legal and juridical title of plaintiff DNC is DNC Services Corp./Democratic National Committee, but its d/b/a and trade name Democratic National Committee (DNC) will be used throughout this brief and supporting submissions.
2 The plaintiffs in Lewis v. Bostelmann, No. 20-cv-284-wmc, have, with this Court’s leave, dismissed their claims as moot under Fed. R. Civ. P. 41(a)(2). See ECF No. 162 at 3.
3 Over 57,000 Wisconsinites registered to vote during this Court’s extension of the online registration date from March 18 to March 30. DNCFOF ¶ 197. In addition, this Court’s extension of the ballot return deadline to 4:00 pm on April 13, 2020 resulted in an additional 79,054 ballots being counted for this election. WEC May 15 Report at 7; DNCFOF ¶ 198.
1

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3, 2020), stayed in part on other grounds sub nom. DNC v. RNC, Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (Apr. 6, 2020). The defendants and intervening defendants did not challenge this extension of the ballot-receipt deadline, and the Seventh Circuit and Supreme Court both relied on the extension in denying “an additional extension, which would allow voters to mail their ballots after election day.” 140 S. Ct. at 1208; see Order at 4, DNC v. RNC, Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), ECF No. 30 (extending ballot-receipt deadline to April 13 would give quarantined voters an additional six days to attempt to carry out the WEC and Seventh Circuit panel’s suggestions for complying with the witness-certification requirement).
This Court’s April 2 preliminary injunction extending the ballot-receipt deadline from April 7 to April 13, even as modified, avoided the disenfranchisement of a minimum of 79,054 voters whose valid ballots were cast on or before election day but, absent judicial intervention, would have been rejected. See WEC May 15 Report at 7; DNCFOF ¶ 198. The Court’s March 20 order (ECF No. 37) also enabled 57,187 eligible voters to register online between March 18 (the statutory cutoff) and March 30 (the deadline for in-person registration and voting). DNCFOF ¶ 197. These voters were able to register on-line rather than having to appear in-person either at county or municipal polling sites (those that were still open) or in-person at the voters’ accustomed polling locations (those few that had not been “consolidated,” often without adequate notice).
Now the focus shifts to the November 3, 2020 general election, which promises to be one of the most consequential elections in our Nation’s history. It also will be the first presidential election ever conducted in the midst of a global pandemic reaching deep into every corner of our Nation and Wisconsin’s 72 counties.4 The number of valid ballots that would have been rejected
4 The November 1918 mid-term elections were conducted during the Great Influenza of
2

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but instead were counted because of this Court’s April 2 order exceeds the margins of victory in each of the 2000, 2004, and 2016 Wisconsin presidential elections. In fact, the 79,054 ballots that were saved by this Court’s order are nearly twice the sum of the margins of victory in the 2000, 2004, and 2016 Wisconsin presidential elections combined.5
Widely accepted predictions anticipate that public-health conditions in November are likely to be similar to, if not worse than, the April 7 election. DNCFOF ¶ 49. This has become especially pronounced in the days leading up to the filing of plaintiffs’ motion, with reported cases skyrocketing in several States and steadily increasing in more than forty States, including Wisconsin. Id. ¶ 32; Umberger Decl., Ex. 78 (noting that “the United States saw a 27% increase in new cases of COVID-19 in the week ended July 5 compared to the previous seven days, with 24 states reporting positivity test rates above the level that the World Health Organization has flagged as concerning.”). Many Wisconsin counties have rolled back their reopening plans in response to the spike in new cases and continue to warn against mass gatherings. DNCFOF ¶ 47. Thus, Wisconsin voters are likely to choose absentee voting at least at the same—and likely higher—rate than in the April 7 election. The WEC concedes that, “[i]f voting patterns from April hold true, the state could see more than 1.8 million requests for absentee ballots by mail.” Id. ¶ 51 (emphasis added).
1918-19, and national turnout was significantly depressed through the combination of the pandemic (the second wave of which was just then cresting) and the First World War (which was then only a few days away from the Armistice). But there has never been a presidential campaign and election conducted during a global pandemic—until now. See generally Alfred W. Crosby, American’s Forgotten Pandemic: The Influenza of 1918, at 174-75 (2d ed. 2003); Seward W. Livermore, Woodrow Wilson and the War Congress, 1916-18, at 185-86, 227 (1966).
5 The Gore margin of victory in Wisconsin in 2000 was 5,708 votes; the Kerry margin of victory in Wisconsin in 2004 was 11,384 votes; and the Trump margin of victory in 2016 was 22,748 votes. The total of these three margins of victory (39,840) is just slightly more than half of the 79,054 ballots that were counted because of this Court’s April 2 injunctive relief. See Richard Cohn & Charlie Cook, The Almanac of American Politics 2020, at 1917 (2019).
3

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Indeed, there is every reason to believe that the November election—particularly processing at least double the number of absentee ballots as in April—is going to pose even greater challenges than those seen in the April 7 election. The plans outlined in the WEC’s June 25 report to the Court do not resolve these issues, and, as the WEC conceded, it is not aware of any steps the U.S. Postal Service (USPS) has taken to prevent a repeat of the problems seen in April, particularly when there will be a far greater number of anticipated absentee ballots going through the mail in November. DNCFOF ¶ 110, 132, 143-44. County clerks will continue to be overtaxed; issues posed by first-time absentee voters will continue; and the problems of delays and mishandling of absentee ballots by the USPS have not been fixed. Id. ¶ 87. The WEC itself concedes that its own forecasted demand for absentee ballots will “present terrific challenges for Wisconsin election officials at all levels.” Id. ¶ 88. As a result, without this Court’s intervention, the widespread disenfranchisement of voters in the April 7 election will happen again in November, this time on a much larger scale.
The DNC/DPW and their counsel have heard the Court’s questions and concerns loud and clear, and have attempted to focus this brief and supporting materials on responding to them. As the Court will note, DNC/DPW have relied heavily on the Swenson and Gear briefing, proposed findings, expert reports, and supporting exhibits on many crucial issues. We have sought to avoid burdening the Court with repetitious evidence on the same topics that are being thoroughly and convincingly covered by other plaintiffs (e.g., the epidemiological issues relating to the November 3 general election, certain statistical analyses of the adverse impacts of the challenged provisions in the April 7 election, expert testimony on Wisconsin election administration, etc.). We also have shifted many of the factual details and supporting evidence from this brief to the DNC/DPW’s accompanying heavily annotated proposed findings of fact (DNCFOF), again to streamline the
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presentation and focus on the concerns the Court shared in its June 10 Opinion and Order (ECF No. 217) and during the June 29 status and scheduling conference (ECF No. 231).
Counsel for the DNC/DPW also heard the Court’s admonition during the June 29 status conference to cut to the quick in explaining how our proposed relief is consistent with the Frank line of decisions and other controlling Seventh Circuit precedent. That burden now also includes explaining how the proposed relief is consistent with the Seventh Circuit panel’s long-awaited June 29 decision in the continuing Frank saga (now styled Luft v. Evers), which was finally issued together with the decision in the State’s four-year-old appeal from Judge Peterson’s July 29, 2016 injunction in the One Wisconsin Institute litigation. See Luft v. Evers, ___ F.3d ___, 2020 WL 3496860 (7th Cir. June 29, 2020).6 Luft is a troubling decision in many respects, especially on the Fifteenth Amendment and Section 2 of the Voting Rights Act. See id. at *4–5. Its dicta that Rucho v. Common Cause, 139 S. Ct. 2484 (2019), might somehow justify partisan tinkering with voting regulations to “help its candidates,” id. at *2, is flat wrong and unlikely to be followed by other courts. But on the Anderson-Burdick claims that the DNC/DPW are presenting to this Court, Luft v. Evers not only is consistent with our requested relief, but in several respects reinforces voters’ entitlement to that relief. Judge Easterbrook’s Luft opinion relies and expands upon his decision in
6 The Seventh Circuit issued its opinion after three years and four months. During that period, Wisconsin has had a general election, multiple primary elections, several Wisconsin Supreme Court races, and many more local elections. The delay in Frank and One Wisconsin drew attention. See Patrick Marley, ‘This is shocking to me’: A voter ID case that could rattle Wisconsin's fall election has been on hold for more than 3 years, The Milwaukee Journal (Jun. 19, 2020). And although a careful reading shows that Judge Easterbrook’s opinion fully endorsed Judge Peterson’s actions with respect to the ID Petition Process and the individualized, personal attention that each voter deserves, the opinion vacated and remanded back to Judge Peterson to continue supervising the IDPP and assemble a new, up-to-date record. See Luft, 2020 WL 3496860, at *11 (“The district court acted on a record assembled years ago. Instead of trying to evaluate the adequacy of a process, that the state once championed, but now wants to change, the best approach is to let it try and see what happens. Adequacy cannot be evaluated in the abstract.”).
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Frank v. Walker, 819 F.3d 384 (7th Cir. 2016), which emphasized that “[t]he right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily.” Id. at 386 (emphasis added). We are not allowed to treat voters as “error rates” to be written off because they are so “small.” For the minority of voters―whether the 1% hypothesized in Frank II or a much larger slice of the electorate―who cannot comply with generally applicable voting rules and eligibility requirements “with reasonable effort,” the State must provide a “safety net” in one form or another that must demonstrably provide eligible voters with a genuine “path to cast a vote.” Luft, 2020 WL 3496860, at *8; see id. at *10 (explaining that the en banc opinion in Frank III “says that the state’s process, as the state describes it, is adequate to that end, if reliably implemented”) (emphasis in original).
This is a non-delegable state duty that cannot be foisted off on the 1,850 municipal clerks and 72 county clerks who administer elections in Wisconsin, or on private voter-assistance efforts―let alone on aggrieved voters themselves. The State’s elected leaders cannot fall back on exhortations to the elderly, the disabled, those at “high risk,” and other citizens on the margins to try harder, travel further, wait longer, and accept more risk in the midst of the global pandemic. It also should be noted that Luft is a ringing endorsement of the Wisconsin district courts’ continuing jurisdiction and responsibility to hold the State to its promises, including with respect to ensuring that the State’s promised “safety nets” are “reliably implemented” and sufficiently advertised to the general public. Id. at *10-11; see also One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 964-65 (W.D. Wis. 2016); Frank III, 835 F.3d at 652.
Turning from the governing Frank and Luft framework to this litigation, the DNC/DPW make seven principal arguments in this brief and accompanying proposed findings.
First, this Court should grant the same injunctive relief that it did in connection with the
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April 7, 2020 election, as modified by the Seventh Circuit and Supreme Court. Specifically, the Court should extend the online and by-mail registration deadlines in Wis. Stat. § 6.28(1) from October 14 to October 30, the Friday before the election. The Court also should extend the November 3 election day receipt deadline in Wis. Stat. § 6.87(6) to ten days after the election (November 13), so long as all absentee ballots are “postmarked” by November 3, as that term is defined in the footnote below.7 These essentially were this Court’s remedies that still governed the spring election after the Seventh Circuit and the Supreme Court majority completed their work on election eve. This relief should be the Court’s jumping-off point, and thus is addressed in Part I below.
Part I also will show that this requested relief is fully consistent with the Luft decision. To use Judge Easterbrook’s classification, this is a 99% issue, and the question is therefore whether “the state’s election code as a whole impose[s] only reasonable burdens” as applied in the circumstances of the pandemic. 2020 WL 3496860, at *3 (emphasis in original). “Only when voting rights have been severely restricted must states have compelling interests and narrowly tailored rules.” Id. As demonstrated in Part I, the challenged deadlines once again threaten to harm not only individual voters, but the electoral system as a whole. We know how many voters would have been disenfranchised in April if the federal courts had not extended the absentee ballot-receipt deadline: 79,054. And the November 3 election—which could be one of the most fateful in our
7 There was never a postmark requirement for absentee ballots until the 5-4 per curiam Supreme Court decision imposed one on April 2. See RNC, 140 S. Ct. at 1208. The Supreme Court left that term undefined, and the WEC on a tie vote refused to provide guidance on what to do. As used in this brief, the term “postmark” refers to any type of imprint applied by the U.S. Postal Service to indicate the location and date the Postal Service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark date, it should be presumed to have been mailed on or before election day unless the preponderance of the evidence demonstrates it was mailed after election day.
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Nation’s history—will involve many more voters and present even more of a receipt deadline challenge, particularly because of overwhelmed local election officials and a dysfunctional postal system whose problems, like the pandemic, appear to be getting worse—not better.
Second, as demonstrated in Part II, this Court granted the right relief on the witnesscertification issue last time around, for all of the right reasons. Data from the April election proved it: 14,042 absentee ballots were rejected because of unspecified insufficient certifications; this does not include the much larger number of voters who received their absentee ballots but simply could not comply with all the certification and proof requirements. DNCFOF ¶ 96. The Court can meet the fraud-prevention concerns expressed in the Seventh Circuit’s April 3 stay order through modest adjustments to this Court’s earlier relief. Luft and the en banc decision it follows, Frank III, mark the path for getting there. Luft endorsed (once again) Judge Peterson’s administration of the ID Petition Process (IDPP), the State’s chosen “safety net” for the voter ID requirement. Part II demonstrates that the IDPP rests on five principles that have either been approved or required by the Seventh Circuit for the IDPP. We believe a court-ordered, WEC-issued and publicized form for claiming an exemption from the witness-certification requirement that follows these same principles should and will be approved under controlling Seventh Circuit precedent including Frank II, Frank III, and Luft. The staggering number of witness declarations on this issue being submitted today by the four consolidated plaintiff groups demonstrates the urgent demand for such relief, with ample lead time to implement such relief prior to November.
Third, as demonstrated in Part III, proof-of-identity requirements like those in Wis. Stats. §§ 6.34 and 6.86 are also subject to the Luft standard. Even though it should be relatively easy in ordinary times for most of us to meet the proof-of-identity requirements, these are no ordinary times. To repeat the obvious, we are in the midst of the worst global pandemic in over a century.
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Significant numbers of voters now face “high hurdles” in satisfying requirements that may, in more normal times, be relatively easy for many (or even most) of them to meet. The Frank line of cases and the new Luft decision teach that, for these citizens, the State must provide an accommodation designed to ensure that even these voters can cast a ballot with no more than “reasonable efforts.” This Court expressed hope in its April 2 Opinion that the option of claiming “indefinitely confined” status might provide voters with the necessary safety net. ECF No. 170 at 41. Those hopes were only partially and confusingly reached in the April election. The “indefinitely confined” option was plagued by the lack of clear and consistently applied standards, as well as the lack of any public education campaign targeted to those who might qualify and benefit from such status. As a matter of federal constitutional law, the State must fix this proffered safety net—fast—for it to be even remotely fair and equitable in the November election.
Fourth, as demonstrated in Part IV, this Court should order the defendants to take all reasonable steps available to them to ensure an adequate number of early in-person absentee voting sites and election-day polling places throughout the State to accommodate in-person voters in a safe and secure manner. DNC/DPW will let other plaintiffs take the evidentiary lead on this issue―especially the Swenson plaintiffs and their expert witness, former GAB Director and General Counsel Kevin Kennedy, who sets a gold standard in expertise on election administration. As for the law, Part IV addresses the spurious contention that DNC/DPW have sued the wrong defendants because WEC lacks any authority or control over enforcement of federal voting rights in Wisconsin’s nearly 2,000 local election jurisdictions. The WEC has ample statutory authority and the duty to “administer” Wisconsin’s election laws (other than on campaign finance matters), including through formal and emergency rules, guidance, public education, and other regulatory tools to carry out court orders to safeguard Wisconsin voters’ constitutional rights. It
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unquestionably has ample authority to carry out the injunctive relief requested by the DNC and DPW.
Fifth, the DNC/DPW acknowledge in Part V that the Anderson-Burdick and procedural due process analyses overlap in many important ways and probably will produce the same results in most cases. Nevertheless, we urge the Court to use both analyses in evaluating the constitutionality of each challenged provision for the reasons discussed in Part V.
Sixth, the dramatically inconsistent availability of safe and sufficient in-person registration and voting opportunities, the diverging standards across cities and counties with respect to the documents required to register and vote, the conflicting guidance on the witness requirement for absentee ballots, the absence of any statewide standards for implementing the “postmark” requirement, and the standardless discretion left to each voter in applying the confusing, illdefined, and poorly explained “indefinitely confined” exception are depriving voters, including plaintiffs’ constituents, of equal protection of the laws.
Finally, as demonstrated in Part VII, all other requirements for injunctive relief are readily met.
STATEMENT OF FACTS The adverse effects of the April 7 election on Wisconsinites were broad and severe. Thousands of people were disenfranchised, thousands more risked their health to vote, and thousands had their votes counted only because of this Court’s extension of the deadlines for online registration and receipt of absentee ballots. The discussion that follows describes these events and, most importantly, demonstrates that the chaos and disenfranchisement of the April election will happen again in November absent intervention by the Court. The DNC/DPW establish many of these facts through declarations from 116 Wisconsin citizens who were directly affected by the
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election day receipt deadline, the witness requirement for absentee ballots, and the other voting provisions the DNC/DPW are challenging. These declarations, in addition to the expert report of Dr. Barry Burden, the deposition testimony of WEC representatives, and other evidence are described in detail in the accompanying Proposed Findings of Fact (DNCFOF). A summary of this evidence follows.
A. Overview of the April 7 election. The intervening defendants and even some of the defendant Commissioners scoffed at concerns for voter safety and security in the run-up to the April 7 election, assuring that voting in person that day would be like “go[ing] to the store to get household products” or “engag[ing] in outdoor exercise.” ECF No. 90 at 4. They also insisted there was “no evidence supporting [the DNC/DPW] claim that absentee ballots will overload the Post Office.” ECF No. 23 at 14. Perhaps most incredibly, these same people have claimed post-April 7 that the election was “successful” and “refut[ed]” the plaintiffs’ pre-election “baseless, pessimistic predictions,” “overwrought claims,” and “failed, sky-will-fall predictions.” ECF No. 200 at 1-2. It is an understatement to say that intervening defendants got it wrong. Wisconsin’s infamous April 7 election was a voting rights and public health fiasco. People throughout the nation were horrified by images of thousands of Wisconsin citizens forced to stand in long lines for hours in order to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in the midst of the worst global pandemic in over a century. As of mid-May, 71 in-person voters and poll workers had tested positive for COVID-19 statewide. DNCFOF ¶ 6. Equally shocking was the breakdown in Wisconsin’s absentee-voting process and USPS service, with thousands of voters never even receiving their requested ballots in time to vote by election day, thus forcing them either to go to the polls during the pandemic and risk exposure
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to the COVID-19 virus or be disenfranchised altogether. Id. ¶¶ 3, 73-93. In response to the pandemic, Wisconsin residents acted by requesting absentee ballots for
the April 7 election at a rate never seen before in the State. Id. ¶ 98. The WEC reports that in the four spring elections from 2016 to 2019, the number of absentee ballots issued ranged from a low of 103,533 in 2017 to a high of 249,503 in 2016. Id. ¶ 99. In contrast, the April 7 election saw 1,303,985 ballots issued. Id. ¶ 100. Absentee ballots represented 73.8% of all ballots counted, a sea change from past elections when absentee votes never comprised more than one in five ballots and often represented less than 10% of ballots. Id. ¶ 101.
The shift to absentee voting, however, was not enough to prevent an overall drop in voter turnout during the pandemic. Id. ¶ 111. Because absentee voting is not sufficient for all individuals to participate, counties with a higher COVID-19 prevalence saw total voter turnout drop by an estimated 3.8 percentage points. Id. ¶ 112. The effect was even greater for older people, in predominantly Black and Hispanic communities, for those with less access to transportation, and among people who had never voted absentee. Id. ¶ 116.
Of the votes cast as absentee ballots, a much larger share was issued and returned by mail than in the past. Id. ¶ 102. In previous spring elections, absentee ballots were about as likely to be cast in person as by mail. Id. ¶ 103. For example, in the 2019 spring election, officials issued 80,577 absentees in person, but 89,218 absentees by mail. Id. ¶ 104. In 2018, officials issued 55,457 absentees in person, and 74,354 by mail. Id. ¶ 105. In contrast, data from the April 7 election indicate that 196,716 absentee ballots were issued in person and 1,116,833 were issued by mail, thus making mail ballots about 85% of the total absentee ballots issued in 2020. Id. ¶ 106.
The extraordinary volume of absentee ballots issued and returned by mail overwhelmed election officials and the USPS. Local election offices across the state were faced with large
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backlogs of requests for absentee ballots in the final week before the election, resulting in tens of thousands of voters receiving their ballots too late to be able to mail them back in time to arrive by election day. Between April 3 and April 6 (the day before election day), local officials mailed more than 92,000 absentee ballots to voters across the State, all of which were too late to be mailed back by election day. Id. ¶ 74. Moreover, according to statistics from the WEC, as of April 7, there were 1,282,762 absentee ballot applications but only 1,273,374 absentee ballots sent out—a difference of 9,388 absentee ballots that had not even been sent to the requesting voters as of the day the voters had to mail them back. Id. ¶ 75.
Meanwhile, the USPS was losing track of thousands of ballots, many of which, to this day, have never turned up. A post-election analysis that the WEC conducted describes a disturbing sequence of events involving lost ballots. Id. ¶ 125. On April 8, a member of the WEC staff received a call from a USPS official in Chicago reporting that “three tubs” of absentee ballots— about 1,600 ballots—from the Appleton/Oshkosh area had been found in a postal office in Chicago. Id. Around the same time, a large number of voters in Fox Valley and Oshkosh reported they had not received the absentee ballots they had requested or that they received them after election day. Id. ¶ 126. And, in the Village of Fox Point, a bin containing about 175 ballots was delivered to the clerk’s office on the morning of election day—all of the ballots were unopened and had never been received by the voters. Id. ¶ 127.
These events caused WEC Commissioner Spindell to admit that the 1.2 million mail-in votes in Wisconsin in April “completely overwhelmed our election system.” Id. ¶ 78. Thousands of mail-in ballots, he stated, were “floating around” the post office and did not make it into the system. Id. ¶ 79.
Indeed, one voter described election day as “a crushing day” because the voter’s sister, a
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cancer survivor, never received her absentee ballot, the “[f]irst time she will not be voting.” Id. ¶ 80. A couple requested their absentee ballots at the same time. While one ballot arrived, the husband “had to call three times and finally received it three weeks after [his spouse] did.” Id. ¶ 81. Milwaukee voters reported their ballots did not arrive until the day after election day: “We weren’t able to get them into the mail until the 9th, which guaranteed our votes would not be counted.” Id. ¶ 82.
Those who decided—or were forced—to vote in person did not fare much better. Most infamously, major cities like Milwaukee and Green Bay consolidated hundreds of polling places— 182 to five in Milwaukee, 31 to two in Green Bay—resulting in confusion, long wait times, lines stretching for blocks, and crowds. Id. ¶¶ 55-57. The result was “unacceptable,” according to one Green Bay voter who waited in line for 3.5 hours. Id. ¶ 58. Another Green Bay voter “stood in the rain . . . 5 hours and [explained] I’m high risk for the virus and I’m scared.” Id. ¶ 59. A Milwaukee voter describing a relative’s three-hour wait called it “despicable that citizens are forced to choose between being healthy and voting.” Id. ¶ 60. Some Wisconsinites simply could not vote, such as the Milwaukeean who “went to the voting site every two hours over the course of the day, but the line was always at least 300 people and at 81 years old with some lung issues, I could not join the end of the line.” Id. ¶ 61.
Jeannie Berry-Matos, a 55-year-old African-American resident of Milwaukee, had a similar experience. See id. ¶ 62.8 She suffers from asthma and is therefore at high-risk for complications if she were to contract COVID-19. She requested and received her absentee ballot
8 As explained in the Declaration of David Kronig, submitted concurrently herewith, plaintiffs have also filed with their preliminary injunction filings approximately 116 declarations of approximately 220 declarations obtained from Wisconsin citizens that describe their experience trying to vote in the April 7, 2020 election (cited in plaintiffs’ proposed findings as “Voter Declaration of __”).
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to avoid going to the polls in person, but when her ballot arrived, she discovered it was for the wrong ward. Id. She contacted both the Milwaukee city elections clerk and the state government to try to correct the error, but was unable to get the right ballot mailed to her. Id. She went to vote in person on April 7 at Washington High School, and found a line stretching several blocks and the only available parking a significant distance away. Id. There were no markers in the lines or poll workers to enforce proper social distancing, and, though she brought her own mask, many voters did not, and there was no way to sanitize the pens nor her photo ID. Id. All in all, it took her an hour and thirty-five minutes to vote. Id.
B. The election-day receipt deadline continues to threaten to disenfranchise voters.
As the discussion above demonstrates, the problems that local officials faced with unprecedented demand for absentee ballots, coupled with systemic dysfunction within the USPS, made the election day receipt deadline unworkable. This Court recognized this reality when it extended the deadline by six days and thereby saved the votes of a minimum of nearly 80,000 people. Now, with the November election looming, the same circumstances that caused the Court to act three months ago are present and are again threatening Wisconsin voters with massive disenfranchisement.
First, the worst global pandemic in over a century is getting worse by the day—worse around the world, worse in the United States, and worse in Wisconsin. DNCFOF ¶¶ 30-36.9 The
9 Intervening defendants have argued that the DNC/DPW’s failure to seek injunctive relief for each of the four Wisconsin elections this year somehow constitutes an admission that the pandemic is not as bad as plaintiffs claim; otherwise, how could plaintiffs have passed up litigation over a special election to fill the vacancy in Wisconsin’s CD-7 or a set of largely uncontested partisan primaries in mid-August? See, e.g., ECF No. 144 at 4. To articulate that argument is to refute it. These two low-turnout elections are hardly comparable to the high-turnout, high-stakes April 7 spring primary or the vastly greater turnout expected in the November 3 election. The DNC/DPW simply do not have the war chest available to the RNC/RPW to fund endless rounds
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trend lines are going up in too many respects, not down. Id. Decisions to reopen this State too soon
are now reaping the whirlwind of a worsening crisis. Id. ¶ 40, 47. The approaching November 3
election threatens to be a train wreck not only because so many more people will be voting in
November than in April (and there is a highly motivated electorate in this election), but because
the pandemic will probably not be any better in November than it was in April. It could very well
be much worse, particularly without the relief plaintiffs are seeking to protect both in-person and
absentee voting. Id. ¶¶ 30-51, 132.10
The DNC/DPW will defer to the Gear and Swenson plaintiffs to present the facts and
testimony necessary to address the epidemiological and public health issues, in particular to refute
the intervening defendants’ claims that recovery is just around the corner. The DNC/DPW
of scorched-earth motions and appeals. And clearly the DNC/DPW lack the statutory ability the Legislature granted itself (with the outgoing Governor’s blessing) to hire multiple private law firms charging national rates, and then charge the entire legal bill to state taxpayers. Plaintiffs simply cannot match these deep pockets, and must choose their battles selectively.
10 Intervening defendants also have taken periodic jabs at the DNC and DPW because of the long-scheduled upcoming Democratic National Convention in Milwaukee from August 17-20. The Legislature reasons that, since the DNC is planning on holding “the extremely large Democratic Nation Convention ‘in person … in Milwaukee,’” Democrats must not really believe the pandemic is dangerous in this State. ECF No. 200 at 11; see id. at 2 (“Plaintiffs do not appear to believe what their lawyers are now arguing,” since the DNC is holding its “extremely large, inperson” National Convention in Milwaukee). This comparison is spurious. The Democratic National Convention Committee (“DNCC”) has emphasized that the convention will “protect public health” by actually implementing recommendations from public health officials. And, while “Milwaukee w[ill] anchor events for the week,” the Convention will include “both live broadcasts and curated content from Milwaukee and other satellite cities, locations and landmarks across the country.” As part of this commitment to public health, the DNCC has brought on nationally recognized health experts to advise on the safety of the convention, has eliminated “several largescale events attended by thousands of people” that have been mainstays in past conventions, and has “determined state delegations should not plan to travel to Milwaukee and should plan to conduct their official convention business remotely.” Umberger Decl. Ex. 74. These measures underscore just how the DNCC is committed to protecting the health of Convention attendees and Wisconsinites. Simply put, the DNC is trying to make it as easy as possible for delegates to participate and vote remotely.
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especially call the Court’s attention to the compelling (and deeply concerning) expert reports presented by the Gear and Swenson plaintiffs:
 Dr. Meghan Murray, Professor of Global Health at the Harvard Medical School and Professor of Epidemiology at the Harvard Chan School of Public Health, who is appearing as an expert for the Gear plaintiffs; and
 Dr. Patrick Remington, Professor Emeritus in the School of Medicine and Public Health, University of Wisconsin-Madison, who appears for the Swenson plaintiffs.
These experts’ reports and testimony will comprehensively and convincingly refute the intervening defendants’ irresponsible arguments that things may be back to normal by election day.
The intervening defendants repeatedly in recent weeks have questioned “the health risks that COVID-19 may cause” during the runup to the November 3 election. E.g., ECF No. 200 at 18. They question whether “[t]he future course of the COVID-19 pandemic in Wisconsin” will be as bad as the plaintiffs’ “sky is falling predictions,” and suggest there may be new “types of treatments” by then. Id. They cite no medical experts for these irresponsible claims. The opinions of the only medical experts who are in this case establish persuasively that the virus will, unfortunately, continue to spread, that there is no vaccine on the horizon, and that the pandemic will continue to be a forceful, lethal presence in November.
Due in substantial part to the pandemic, the number of absentee ballots in the November election is expected to far surpass the volume of ballots that overwhelmed election officials and the USPS will be able to timely process in the April election. In comparison to the nearly 1.2 million absentee ballots cast in April, the WEC has already sent absentee ballot request forms to approximately 2.7 million voters for the November election and, as noted, WEC officials believe the number of absentee ballots cast easily could exceed 1.8 million if the April voting patterns hold. Because of the deliberate attempts to encourage absentee voting and the high turn-out associated with presidential elections, officials of the WEC are preparing for an unprecedented
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level of absentee voting that will stretch election officials and the USPS well beyond what they experienced in April. Adding to the challenge, tens or hundreds of thousands of voters will be voting absentee for the first time, which materially increases the likelihood that large numbers of voters will be disenfranchised without relief from the absentee ballot deadline. DNCFOF ¶ 86. Commissioner Spindell put it bluntly, stating that the problems of ballots “not sent to voters on time” and “ballots not returned on time” . . . “would only multiply and create more chaos and endless lawsuits in November.” DNCFOF ¶ 89 (emphasis added).
To make these dire predictions even worse, nothing appears to have been done to address the systemic problems at the USPS that led to so many lost and late absentee ballots. The WEC still has no answer or explanation for what led to the USPS’s mishandling of these thousands of ballots. The USPS itself has given no indication that it has addressed any of the issues that occurred in the April election and no assurances to WEC that these same problems will not happen again in November. DNCFOF ¶ 84. As Commissioner Spindell testified, the handling of ballots by the USPS during the April election was the “wild, wild west,” and he “still [doesn’t] understand what happened.” DNCFOF ¶ 141. Despite this, as Commissioner Spindell and Ms. Wolfe confirmed, the WEC is not engaged in any ongoing efforts with the USPS to develop a plan for avoiding the many problems that occurred in April. DNCFOF ¶ 144.
The cumulative effect of these factors is that the election-day receipt deadline again poses a clear and present danger that tens, if not hundreds of thousands of Wisconsin voters will face “high hurdles,” Frank II, 819 F.3d at 386, in receiving and returning their absentee ballots through the USPS on a timely basis. Indeed, as Ms. Wolfe described, voters should assume for the November election that it will take two weeks for an absentee ballot to make its way through the mail from a clerk’s office to a voter and back again. DNCFOF ¶ 142. This means that voters who
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request absentee ballots in the final two weeks before the election – voters can request ballots until five days before election day – will not have sufficient time to mail their ballots back for arrival by election day. As described by Plaintiffs’ expert, Barry Burden, the use of a strict ballot receipt deadline in this circumstance results in a system that is designed to fail, which of course presents the highest of hurdles. DNCFOF ¶ 146. Many voters will again suffer the totally unacceptable and unconstitutional injury that so many suffered in April—e.g., timely requested absentee ballots that do not arrive in time to vote, and timely returned ballots that do not make it back to local election officials by the normal deadline. See, e.g., Umberger Decl., Ex. 26 (discussing voters, such as a pregnant health care worker, who did not receive their absentee ballot by the deadline and could not vote in-person); see also Voter Decls. of Muawia Albanaweh, Hannah Gleeson, Rebecca Crowder, Neil Daniels, Patricia Sherman-Cisler, Susan Heinz, Elsie Thomas, Eric Vanvught, Lori Fares, Bridget Fogerty, Keri Petrie, Steven Reigle, Hannah Saxman, Eric Lind, Nathaniel Rendall, Katherine Ruh, and Delany Zimmer.
Unfortunately, the task of protecting these and the many voters like them will again fall to this Court, as there is no sign that either the WEC or the Wisconsin Legislature intends to address this issue for the November election. Commissioner Spindell made this clear when he testified in deposition that he sees no reason to extend the deadline for the November election. DNCFOF ¶ 90. But, as we learned in April and as the WEC acknowledges, the simple solution of extending the deadline by at least six days will not impose any meaningful burden on the WEC or election officials. On the contrary, as WEC Elections Administrator Meagan Wolfe testified, election officials were able to meet all post-election canvassing deadlines notwithstanding this Court’s sixday extension of the deadline in April, and the extension gave election officials time to tabulate and report election results more efficiently and accurately. DNCFOF ¶195. And that modest, short
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extension saved the timely cast, valid ballots of 79,054 Wisconsin citizens from being rejected. C. The continuing disenfranchising effects of the witness-certification requirement. Wisconsin’s requirement that each voter submitting an absentee ballot have another adult
witness sign their ballot puts tens of thousands of Wisconsin voters in an untenable situation and unconstitutionally burdens their right to vote. See Wis. Stat. § 6.87(2); see also DNCFOF ¶ 149. Over 600,000 Wisconsinites live alone, and even more live with an individual who is unqualified to be a witness (e.g., a child or non-citizen). DNCFOF ¶ 150. With the health risks of venturing out to find a witness during the COVID-19 pandemic, and any requirements of local orders regarding social distancing that may be in place at the time, a large number of voters who live alone—many of whom are elderly and vulnerable to COVID-19—will not have a witness to attest to their absentee ballots in November 2020. Id. ¶ 151.
As the Court will recall, the WEC’s previously proposed “alternative suggestions” for fulfilling the witness requirement included having the witness observe the voter over Skype, the voter mail the completed ballot to the witness, and the witness sign and date the ballot. DNC v. RNC, Nos. 20-1538 & 20-1546, at *3. These proposed alternatives to fulfilling the witness requirement proved woefully insufficient during the April election. According to reporting by local election officials, 14,042 returned absentee ballots were rejected because of “insufficient” certification. DNCFOF ¶ 156. Moreover, there are strong grounds to believe that many of the 135,417 unreturned ballots—over 10% of all ballots sent out—were not returned because the voters who had requested them were unable to navigate the witnessing requirements in the midst of the pandemic and resulting isolation from others. Id. ¶ 157; see also the Voter Decls. of Elizabeth Trogdon, Dolores Garm, Susan Heinz, David Mouradian, Casey Hines, and Stephan Thomas that accompany this brief.
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Dolores Garm is one such voter who received her ballot on time, but whose vote was never cast because of an inability to comply with the witness requirement. See DNCFOF ¶ 158. Being disabled with heart disease and other risk factors, she knew she could not go out during the pandemic. When she saw the witness portion of the ballot, she called the municipal clerk to ask if she had any option given that she lived alone. Unfortunately, given that the answer was no, Ms. Garm did not send in her ballot. She had no way to satisfy the witness requirement, and she knew her ballot would not be counted.
Elizabeth Trogdon was another voter stymied by the witness requirement in the time of a pandemic. See DNCFOF ¶ 159. As Ms. Trogdon explains, she could not vote in person given certain health conditions, and was also experiencing symptoms of COVID-19. She consulted with the Veteran’s Administration and was told that, based on the symptoms described, she was considered positive for COVID-19 and should self-isolate. Ms. Trogdon was able to request and receive an absentee ballot in time to return it, but was not able to do so with a witness signature given her instructions to self-isolate. While she mailed in her ballot during a time when the witness requirement had been waived, that ruling was reversed and Ms. Trogdon’s ballot was rejected as a result.
Although the Seventh Circuit suggested that one way for a voter to “satisfy the statutory signature requirement” might be “by maintaining the statutory presence requirement but not requiring the witness’s physical signature,” DNC v. RNC, Nos. 20-1538 & 20-1546, at *4, the WEC has not taken any steps to explore or implement that option. See, e.g., Umberger Decl., Ex. 36. Nor has the WEC done anything in response to the Seventh Circuit’s suggestion to consider other alternatives for voters to satisfy the requirement in a way that recognizes the realities of the public health crisis. Indeed, evincing a complete disregard for the pandemic and the people directly
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affected by it, Commissioner Spindell testified that even someone who has been diagnosed with COVID-19 should be required to interact with a witness to have her ballot signed because that is the law. DNCFOF ¶ 154.
What is the explanation for the repeated disenfranchisement caused by this requirement? A fear of phantom “fraudsters” (this is the Legislature’s word) apparently waiting to commit ballot fraud if the witness-certification requirement is modified or, as discussed below, the challenged proof requirements are waived for the duration of the pandemic. Yet there was not a single reported incident of voter fraud in connection with the election. Id. ¶ 180. Ms. Wolfe testified she was not aware of any, and Commission Spindell could not identify any either. Id. Indeed, while referring to “rumors” of improper voting and asserting that even the availability of absentee voting is a “hot button” issue for Republicans, Commissioner Spindell ultimately conceded that he knows of not a single incident of improper voting in April when approximately 1.2 million absentee ballots were cast. Id. ¶ 181.
D. The continuing disenfranchising effects of the photo ID and proof-ofresidence requirements.
Wis. Stat. §§ 6.86 and 6.87, which require a copy of a voter’s photo identification to accompany a request for an absentee ballot, continue to burden voters. In the April election, many voters did not attempt to vote absentee because they could not meet these ID requirements, especially those without access to smartphones or the Internet. DNCFOF ¶¶ 162-63. Also burdensome is the requirement that copies of proof of residence accompany electronic and by-mail voter registration. Wis. Stat. § 6.34. Given the alarming increase in reported cases in recent weeks, it is unclear whether and to what extent most workplaces, public libraries, and copy shops will be open in October and November. Even if those establishments remain open, many voters continue to be fearful of leaving their homes because of the health risks of the coronavirus pandemic, their
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own doctors’ recommendations, and the restrictions imposed under their respective county and local health orders. DNCFOF ¶ 164.
Nor do voters feel any more confident because of the so-called “indefinite confinement” safety net that this Court relied on in its pre-election decision. Many voters probably didn’t even know about it, let alone understand what it means. The provision exempts from the voter ID requirement those who are facing a difficult time getting to the polls “because of age, physical illness, or infirmity, or is disabled.” Wis. Stat. §§ 6.86(2)(a), 6.87(4)(b)(2). “Indefinitely confined” is not a self-defining term, and in the absence of explicit, prominent instructions on the absentee ballot request form, many voters are likely to misunderstand their entitlement to claim this status and, if they are otherwise unable to copy or upload an acceptable photo ID, may forego attempting to obtain an absentee ballot. See DNCFOF ¶ 170; Burden Rep. at 12-13. Those who even knew about this option in the April election were given vague, confusing, and often contradictory advice. Shortly after the election, the League of Women Voters of Wisconsin explained that “few voters” were aware of the law and there was not an “adequate, broad public education campaign” to assist voters who would qualify under it. DNCFOF ¶ 171. Instead, voters learned about it “in a piecemeal way,” through groups like the League. Id. ¶ 172.
The “indefinitely confined” option gets only passing mention in WEC’s currently proposed instructions to voters who request an absentee ballot for the November election. Id. ¶ 167. The WEC’s proposed instructions do not tell voters that designation of indefinitely confined status is for each individual voter to make based on how they feel about their own current circumstances, nor are they told that a claim of indefinitely confined status does not require permanent or total inability to travel outside of their residence. Id. ¶ 168. The instructions to voters do warn, however, that they may be fined $1,000 or imprisoned up to 6 months for falsely making an assertion in
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connection with the indefinitely confined option. Id. ¶ 169. And, both Ms. Wolfe and Commissioner Spindell are unaware of any plans the WEC has to modify its guidance on indefinitely confined status to clarify that COVID is a qualifying condition. Id. ¶ 173.
Moreover, this exception does not apply to the proof of residence requirement. Even individuals who are indefinitely confined must provide copies of proof of residence when they register to vote online or by mail. Wis. Stat. § 6.34.
E. The WEC defendants’ June 25 Status Report. The plans and procedures outlined in the WEC’s June 25 report to the Court do not resolve any of the DNC/DPW’s claims. The DNC/DPW and their counsel have respect and appreciation for the WEC Executive Director and her staff, and for the thousands of local election officials, poll workers, and other election volunteers throughout Wisconsin’s 1,852 local election jurisdictions whose heroic efforts mitigated the damage caused by the challenged provisions and the unyielding partisan gridlock in Wisconsin. The April 7 election could not have been conducted in the midst of an unprecedented global pandemic without their efforts. And the Status Report outlines several promising reforms that DNC/DPW appreciate and fully endorse. That said, the Status Report acknowledges once again that the WEC has no authority to modify statutory deadlines or proof requirements like those challenged by the DNC/DPW. DNCFOF ¶ 204. That answers the question with respect to nearly all of DNC/DPW’s claims, which with one exception all seek either extensions of deadlines or modification of proof requirements. On those matters, the Court must act because there nothing left for the Commission to do. First, there is no real effort in the Status Report to address the multiple breakdowns in the Wisconsin voting system. To be sure, the WEC has taken some steps, and the report claims to be “studying” and “consulting” on various issues. But on key issues there is little discussion of what
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the WEC will do itself, or recommends be done by others, so that all voters have reasonable access

to reliable, safe, and convenient absentee voting, early in-person voting sites, and election day

polling sites. For example:

•

The Report does not address the fact that more than 80,000 ballots arrived after

election day, through no fault of the voter, and offers no plan for dealing with the

probable repeat of that problem. Relatedly, there is no request in the Report to the

Governor or the Legislature to extend the ballot receipt deadline or take any other

steps to address this impending crisis.

•

There is no discussion of setting a minimum number of polling places and safety

standards that must be available to each Wisconsin citizen.

•

There is no discussion of proposed actions to address the dysfunction of the USPS.

Nor is there even any attempt to provide the best-available answers to the many

questions about what happened to so many ballots lost in the mail system and what

the WEC should to in response given that November 3rd is rapidly approaching.

There is no detailed explanation of what happened to the mail, and no suggested

plan for dealing with those postal problems in November.

•

Nor does the Report include a discussion of the fact that because of COVID, there

is a strong need to allow voters to register longer than allowed by statute. There is

no request to the Governor or the Legislature to extend the period for online

registration even though extending that period in April allowed 55,000 additional

people to register without imposing significant burdens on the WEC. DNCFOF

¶¶ 194-97.

Second, the Seventh Circuit stayed this Court’s injunction regarding the witness

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certification requirement, emphasizing that the WEC had just issued an Absentee Witness Signature Requirement Guidance several days earlier and expressing hope that voters could “take advantage of one or another of the Commission’s suggestions for obtaining a signature.” April 3 Order at 4. The Seventh Circuit encouraged the WEC to continue exploring ways to administer the witness-signature requirement in a way that respects the life-and-death need of many voters to isolate themselves from contact with others while ensuring that the purposes of the certification requirement are fulfilled. Id.
Remarkably, the Status Report is silent on these issues. The Report literally does not contain the words “witness,” “certify,” or “certification.” There is no effort to evaluate the success of the WEC’s pre-election Guidance in helping voters overcome the obstacles they encountered; no effort to take the Seventh Circuit up on its suggestion to consider other ways to help voters in overcoming difficulties with the witness-certification requirement; and no consideration of how better to educate voters (many of whom have never voted absentee before) on compliance with the requirement.
Third, the Report is completely silent on numerous interpretative issues. In the context of voting during the present pandemic, what does it mean to be “indefinitely confined”? How is that term interpreted? Who qualifies? And what about guidance concerning the U.S. Supreme Court’s newly invented election-day postmark requirement? What does it mean to be “postmarked”? What if an envelope arrives on November 4, the day after the election, without a postmark on it? The envelope obviously was mailed on or before election day; why should it be discarded because it lacks a postmark? The 1,852 local election jurisdictions in Wisconsin desperately need guidance and leadership on these and many other urgent matters.
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ARGUMENT11
I. This Court should extend the injunctive relief granted for the April 7 election to the November 3 general election.
This Court’s extensions of the online registration and election-day receipt deadlines were
a smashing success. The extensions enabled an additional 57,187 Wisconsin voters to register
online, safe and secure from the pandemic; and they saved the votes of 79,054 citizens who cast
valid, timely ballots but would have been disenfranchised by the election-day receipt deadline, but
for this Court’s intervention. And according to state election administrators, these extensions were
easy to accommodate and imposed few additional administrative burdens. And no one has pointed
to any evidence that these extensions led to any voter fraud or other systemic problems. On top of
that, turnout will be vastly larger in November, local election officials will probably be
overwhelmed by the volume, and the USPS will continue to be unreliable. And the pandemic will
still be with us on November 3.
There is, in short, nothing on the Anderson-Burdick scales to outbalance the many positive
effects of this Court’s extensions, including avoiding widespread disenfranchisements and helping
to maintain at least degree of public confidence that a ballot cast will be a ballot counted. The
11 This Court previously held that the DNC and DPW have Article III standing (1) “to assert the rights of [their] members who may face burdens to vote in upcoming elections”; and (2) to assert their own organizational injuries resulting from having to divert time, money, and other resources away from other party priorities to dealing with the challenged provisions’ adverse impacts on party registration and GOTV activities. ECF No. 37 at 6-7; see especially Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (Democratic Party had standing because of impact to members and its diversion of resources “to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote”), aff’d, 553 U.S. 181, 189 n.7 (2008). The DNC and DPW have submitted updated evidence demonstrating that they continue to suffer both kinds of Article III injuries as the direct and proximate result of the state action in this litigation. See DNCFOF ¶¶ 16-22. We call the Court’s attention in particular to the 116 signed declarations gathered by the DPW illustrating the severe, frequently disenfranchising burdens the challenged provisions have had upon its members throughout the State. See DNCFOF ¶ 48 n.14.
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Seventh Circuit’s new decision in Luft does not change the analysis in the least. Deadlines are extended if there are systemic crises that threaten to undermine the electoral process. Luft reminds us that “[c]ourts must weigh [any individual] burdens against the state’s interests by looking at the whole electoral system,” and that when an analysis of that “whole” system, taken together, shows that citizens’ voting rights are in danger of being “severely restricted” on a widespread basis, the State must have “compelling interests” for its restrictions and ensure they are “narrowly tailored.” Luft, 2020 WL 3496860, at * 3. As April 7 already has shown, the challenged deadlines “severely restrict” voting activity on a broad scale, and they serve no ”compelling interests,” especially in the midst of the COVID-19 pandemic. Id. The Court should grant the same relief it previously granted, as modified on appeal. It also should include by-mail registration in its extension of the online registration deadline.
A. This Court should again extend the online registration deadline, and should include by-mail registration in that extension.
This Court enjoined enforcement of the March 18, 2020 online registration deadline and extended the deadline to March 30, finding in the context of the pandemic and the urgent need for people to avoid crowded places that the deadline imposed an undue burden on the right to vote. ECF No. 37 at 10-15.
[T]he court cannot help but take judicial notice of the excruciating dilemma that will soon be faced by eligible voters who did not register by the March 18, 2020 deadline: either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote. Moreover, while the Court recognizes the state’s interest in the orderly administration of elections, a short extension of the registration deadline would on its face appear to impose only a minimal burden while potentially affording a great number of as yet unregistered voters the opportunity to exercise their franchise by safely voting absentee. Id. at 11-12. The Court acknowledged that the WEC and local election officials could bear additional expenses and burdens in extending the online registration deadline, but concluded they
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were “a reasonable downside to equitable relief that could increase both the robustness and health of the electorate, especially in light of the corresponding effect of having fewer, in-person voters to manage on election day.” Id. at 13. Though “far from a perfect solution,” the 12-day extension of online registration would help “individuals who either were not aware of the March 18, 2020 deadline, or learn of this court’s extension of that deadline,” to register online and thus avoid the potential exposure of having to register in person. Id. at 14.
This Court should grant similar relief again, enjoining enforcement of the October 14 online registration deadline under Wis. Stat. § 6.28(1) and extending that deadline to October 30, the Friday before the election. Under Wis. Stat. § 6.28(1), the deadlines for registrations in person, by mail, and electronically all close on “the 3rd Wednesday preceding the election”—i.e., 21 days before the election. This provision goes on, however, to authorize registrations in person (but not by mail or electronically) to continue for those voters who cast “in-person absentee ballot[s]” or vote at the polls on election day. Id. Thus, those casting in-person absentee ballots may continue to register until the Sunday before the election, see id.; id. § 6.86(b), and those voting at the polls may register on election day itself, but those seeking to register by mail or electronically must do so no later than three full weeks before the election. This will be before voters have even evaluated the candidates in the second and third scheduled Presidential debates this October, and before some voters will even decide whether to vote. DNCFOF ¶ 184.
Historically, Wisconsin voters have registered to vote in person in large numbers, relying heavily on same-day registration during in-person absentee voting or on election day. As a result, thousands of Wisconsin voters typically do not register before they vote. However, many Wisconsinites did not have viable in-person registration options for the April 7 elections. In-person absentee voting was shut down in many parts of Wisconsin. Id. ¶ 54. And many Wisconsinites
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were understandably reluctant—if not altogether unable—to venture out in public to register and vote either through in-person absentee voting or at the polls, given the public health risks during the pandemic. See, e.g., id. ¶¶ 48, 164, 188. For these voters, failure to register 21 days prior to the election effectively meant they could not vote.
No valid, reasonable state interests are served by this disparity and discrimination against by-mail and electronic registration. If election officials can accommodate registrations as late as election day when done in person, there is no sufficient reason why they cannot accommodate bymail and electronic registrations much closer to the election than “the 3rd Wednesday preceding” it. Id. ¶ 191.
That’s exactly what the WEC has confirmed in its Rule 30(b)(6) deposition: the extension of the electronic registration deadline to March 30 imposed only minimal burdens while affording many voters the opportunity both to register and to vote without risking exposure to the COVID19 virus. In fact, Ms. Wolfe confirmed that the WEC could have accommodated an extension of both the electronic and the by-mail registration deadlines to April 3, the Friday before the election. Id. ¶¶ 194-95. The Court’s expressed concern about moving the deadline for by-mail registrations to April 3―that envelopes mailed on April 3 might keep trickling in for several days, too close to the election―could easily be resolved by making April 3 a receipt deadline for all by-mail and online registration requests, rather than following a “postmark” rule that would allow this latearriving problem to occur.
Absent relief by this Court, unregistered but eligible voters who decide to register and vote shortly before the November election will face the same “excruciating dilemma” identified by this Court—“either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.” ECF No. 37 at 11; DNCFOF ¶¶ 192, 200.
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B. This Court should again extend the election-day ballot-receipt deadline. The Court should extend the deadline to receive absentee ballots to at least November 13, 2020, so long as the ballots are mailed by election day. This Court’s extension of the ballot receipt deadline allowed nearly 80,000 Wisconsinites to vote in the April election without causing any administrative problems for elections officials. See WEC May 15 Report at 7; DNCFOF ¶ 129. As described above, in the weeks leading up to the April election, an unprecedented number of ballot requests overwhelmed clerks and reports of slower mail service indicated that thousands of Wisconsinites would not receive their ballots in time to turn them in by election day. Over 9,300 voters had not received their timely requested absentee ballots by April 7. DNCFOF ¶¶ 75, 124. This Court’s extension was necessary but not sufficient, and the risk of disenfranchisement will only increase in November. Even with this Court’s extension, almost 4,700 ballots arrived after the new deadline of April 13. Id. ¶ 73. The USPS performed so abysmally that Wisconsin’s U.S. Senators made a bipartisan demand for the USPS Inspector General to begin an investigation into “absentee ballots not being delivered in a timely manner.” Id. ¶ 83. A full discussion of these facts, including the unprecedented volume of absentee ballots expected in November, is set forth above and in the accompanying proposed findings of fact, and we will not repeat them here. See Id. ¶¶ 73-93, 122-46. Moreover, April 7 in Wisconsin was not a one-time fluke that is unlikely to recur here or elsewhere. To the contrary, other states with elections since April 7 have reported significant problems with voters receiving absentee ballots on time and elections officials receiving timely mailed ballots. Id. ¶ 133. Almost 5,500 South Carolinians who timely requested absentee ballots for the June 9 election had not received them by the end of election day. Id. ¶ 134. During the June 9 primary, Georgia’s overwhelmed system lost some voters’ absentee ballot requests and some
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Georgians reported they had not received their requested ballot on the eve of the election. Id. ¶ 135. Some Georgians who mailed in their ballots by the recommended time and even by overnight mail were surprised to learn that the ballots did not arrive on time to be counted. Id. ¶ 136. Georgia rejected at least 8,000 ballots for arriving late. Id. ¶ 137. Pennsylvania and New York extended their ballot receipt deadlines through judicial decisions, executive action, or both. Id. ¶ 138.
The increase in mail volume stretched the capacity of the USPS during Ohio’s election on April 28. In Ohio, voters expressed frustration with delays in obtaining and submitting their absentee ballots. Five days before the April 28 election deadline, Ohio Secretary of State Frank LaRose wrote to the state’s congressional delegation, informing them that problems with mail delivery were affecting absentee voting. LaRose explained that, “we are finding that the delivery of the mail is taking far longer than what is published by the United States Postal Service (USPS) as expected delivery times. Instead of first-class mail taking 1-3 days for delivery, we have heard wide reports of it taking as long as 7-9 days.” Burden Rep. at 11-12.
The fact that hypothetical voters could send in their absentee ballots a month before the election does not cure the issue. The State permits voters to request absentee ballots up until five days before the election, as it should. Not only is it human nature to procrastinate, but also those who are forced to vote so early pay a price. Prospective voters who wish to participate in the November election but are reluctant or unable to vote in person on election day are in effect forced to cast ballots by mail before the presidential campaign has ended, during the crucial final weeks when so many voters first begin to pay attention to the campaign and the undecided are struggling to decide. The third and final 2020 Presidential Debate will occur on October 22, 2020⸺only 12 days before election day. DNCFOF ¶ 185. “The most intense period of a presidential campaign occurs in the final days before election day. For example, television advertising by presidential
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campaigns generally . . . reaches its maximum volume in the week before the election.” Burden Rep. at 12. “There may be” an “October surprise,” “late-breaking news or events that influence voters’ candidate preferences.” Id. “For example, an analysis of the accuracy of polling from the 2016 presidential election found evidence of late breaking movement toward Donald Trump that might have been the result of an announcement on October 28 by FBI Director James Comey that his office would review new evidence in a probe of Hillary Clinton’s email.” Id. at 12-13. In 2016, exit polls indicated that 10% of Wisconsinites decided how they would vote in “the last few days.” Id. at 13. A fair voting system accommodates those voters, especially during a pandemic.
Avoiding the complete disenfranchisement of tens of thousands of Wisconsinites far outweighs any administrative burden on the State from the extended deadline. See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012) (disqualified provisional ballots that constituted less than 0.3% of total votes inflicted “substantial” burden on voters); Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1264 (N.D. Ga. 2018) (severe burden existed where 3,141 individuals were ineligible to register). There is ample time to extend the ballotreceipt deadline to November 13 so that late-arriving ballots may be counted. Wisconsin law gives counties until November 10 to begin their canvasses, and until November 17 to complete them. Wis. Stat. § 7.60. The State itself need not complete its canvass until December 1. Id. § 7.70(3)(a). During the April 7 election, the State counted the ballots received by 4:00 pm on April 13 without issue and announced the results shortly thereafter. The WEC acknowledged in its Rule 30(b)(6) deposition that the administrative burdens caused by this Court’s prior deadline extensions were modest and manageable. See DNCFOF ¶ 195. There is no reason to expect a different result in November.
A modest extension of the receipt deadline is “narrow” relief, ECF No. 170 at 50, that
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already has survived one round of Seventh Circuit and Supreme Court review. Such relief will give voters maximum certainty as November approaches and avoid disfavored last-minute changes to election procedures. In the alternative, this Court could retain jurisdiction, require WEC to provide periodic reports, and later extend the ballot receipt deadline if doing so appears necessary at a later time. See generally Luft, 2020 WL 3496860, at *11 (“let [the State] try and see what happens”). We believe that all stakeholders would be better served by extending the deadline well in advance of November 3. II. This Court should again grant limited injunctive relief against Wisconsin’s witness-
certification requirement, modified to resolve the Seventh Circuit’s concerns. The DNC/DPW believe this Court granted the right relief on the witness-certification issue last time around, for all of the right reasons, and that the Court can meet the concerns expressed in the Seventh Circuit’s April 3 stay order through fairly modest adjustments to this Court’s earlier relief. DNC/DPW believe this modified approach is not only consistent with the Frank line of decisions and the newly released decision in Luft v. Evers, but compelled by those decisions. Specifically, the Court should order the WEC to provide a form on which voters may claim an exemption from the witness-certification requirement because of certain specified conditions, provided that (a) the claim is signed by the voter under penalty of perjury, (b) the voter provides all available contact information so that local election officials can quickly follow up with any questions or concerns, and (c) the voter cooperates with local election officials. These modifications would bring the Court’s contemplated relief fully into line with Frank II, Frank III, and Luft. This Court previously enjoined defendants “from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots
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are otherwise valid.” ECF No. 170 at 52 (emphasis added). The Court added that “[n]o magic words are required by a voter to successfully make this affirmation, and it will be left up to the individual discretion of clerks as to whether to accept a voter’s excuse for not completing the witness certification requirement based on the written affirmation by the individual voter.” Id. at 46. Though this part of the Court’s relief was stayed on appeal, the DNC/DPW believe that, with very modest changes, the Court’s earlier idea can be tweaked so that it fully complies with Seventh Circuit precedent, including Luft.
A. The controlling decisions require a generous safety net. The Supreme Court, Seventh Circuit, and Wisconsin district courts repeatedly have held that, where individual voters cannot meet a voting requirement after “reasonable efforts,” they must be given an alternative “safety net,” Frank II, 819 F.3d at 387, often in the form of requiring some kind of statement under penalty of perjury together with the declarants’ contact information so that state agents can follow up in the days after the election if there are any questions or concerns. Frank II pointed favorably to Indiana’s affidavit option that was integral to Justice Stevens’s controlling opinion in Crawford, which relied on the option of the voter “execut[ing] an appropriate affidavit” in concluding that Indiana’s voter ID law did not “impose[] ‘excessively burdensome requirements’ on any class of voters.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 202 (2008); see Frank II, 819 F.3d at 387.12 The Seventh Circuit, sitting en banc,
12 Under the challenged Indiana provision, voters without sufficient ID could “cast provisional ballots that will ultimately be counted,” provided they execute the appropriate affidavit at the circuit court clerk’s office within 10 days. Crawford, 553 U.S. at 199. The relevant statute provided: “The affidavit must state that (1) the person executing the affidavit is the same individual who cast the provisional ballot on election day; and (2) the affiant is indigent and unable to obtain proof of identification without paying a fee or has a religious objection to being photographed. Ind.Code Ann. § 3–11.7–5–2.5(c). If the election board determines that the challenge to the affiant was based solely on a failure to present photo identification, the “county election board shall ... find that the voter’s provisional ballot is valid.” § 3–11.7–5–2.5(d).” Crawford, 553 U.S. at 199
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embraced Frank II in its unanimous Frank III per curiam decision issued in late August 2016, ten weeks before the November 2016 general election. Of all the Seventh Circuit decisions, Frank III is the most significant because it represents the unanimous views of the full en banc court.13
Frank III is significant in other respects. It emphasized that Judge Peterson “ha[d] the authority to monitor compliance with [his] injunction” on voter ID and that “we trust that [he] will do so conscientiously between now and the November 2016 election.” 835 F.3d at 652. Judge Peterson did just that, requiring periodic status reports and issuing follow-up orders as necessary when the State failed to live up to its many promises regarding the promised “safety net,” in that case the IDPP.14 The en banc decision in Frank III also ordered the State to “adequately inform the general public that those who enter the IDPP will promptly receive a credential for voting, unless it is plain that they are not qualified.” Id. (emphasis added). Judge Peterson ultimately had to issue follow-up orders enforcing that court-ordered public educational relief as well. This Court has followed this same model of “monitor, report, and enforce” when necessary in the first preliminary injunction round, and in requiring the WEC to submit its June 25 statement. See, e.g., ECF Nos. 37, 170-71, 179-80, 217.
The unanimous en banc decision in Frank III also embraced Frank II’s core principle that each citizen’s “personal” constitutional right to vote “‘is not defeated by the fact that 99% of other people can secure the necessary credentials easily,’ and that the state may not frustrate this right
(Souter, J., dissenting). 13 The unanimous per curiam decision was joined by Chief Judge Wood and Circuit Judges
Posner, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton. See 835 F.3d at 650. 14 See, e.g., One Wisconsin Institute, Inc. v. Thomsen, No. 15-cv-324-jdp, ECF Nos. 261,
293, 305. The parties filed various motions, reports, declarations, and other materials relating to compliance with the Court’s injunctive orders from late September through the election, as shown by a review of the ECF docket from that time.
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for any eligible person by making it unreasonably difficult to obtain a qualifying photo ID.” 835 F.3d at 651 (emphasis added). The full Court upheld Judge Peterson’s determination that an “affidavit” option is not the only way Wisconsin can provide the “necessary safety valve” for Judge Easterbrook’s hypothetical 1% who cannot with “reasonable efforts” meet the requirements that the other 99% of voters can meet with relative ease. Frank III, 835 F.3d at 651-52; One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896, 910-17 (W.D. Wis. 2016), aff’d in part, rev’d in part and remanded by Luft v. Evers, ___ F.3d ___, 2020 WL 3496860 (7th Cir. Jun. 29, 2020). Judge Peterson held that, at least in theory, the IDPP provides an adequate “constitutionally required safety net” for the minority of voters who cannot with reasonable efforts meet all generally applicable requirements for obtaining a required ID card, and the en banc Seventh Circuit clearly endorsed that view as well. See, e.g., One Wisconsin, 198 F. Supp 3d at 913; Frank III, 835 F.3d at 651-52.
Five features of the IDPP are particularly relevant to the design of the required “safety net” here. First, there is an evidentiary presumption that voters claiming an exemption from generally applicable proof requirements are who they say they are, and are entitled to vote, unless and until the State demonstrates otherwise by a preponderance of the evidence. Luft, 2020 WL 3496860, at *10-11.
Second, an IDPP applicant must submit a claim to an objectively reasonable exemption and sign that claim under penalty of perjury. The IDPP is initiated through Wisconsin Form MV 3012, titled DMV Administrator Petition―Unavailable Documentation, which includes detailed personal disclosures and a personal signature confirming that “[t]he information that I have provided on this petition application is true under penalty of perjury and I am a resident of Wisconsin. (s. 343.14(5) Wis. Stats.).” DNCFOF ¶ 211. And the claimed exemption must be more
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specific than the Judge Adelman-endorsed version that was excoriated in Luft.15 Third, the IDPP applicant must provide “contact information” including telephone number
and email address, and is told that “Wisconsin DMV or Vital Records may contact you for any follow-up information which may be necessary to complete the verification process.” DNCFOF ¶ 212.
Fourth, the State has long contended, and the Seventh Circuit confirmed in its June 29 Luft decision, that IDPP applicants must “comply with reasonable requests for information that is material to voting eligibility.” 2020 WL 3496860, at *11.
Fifth, Judge Peterson in One Wisconsin and the unanimous en banc Seventh Circuit in Frank III both emphasized the need for a robust public education campaign managed by the GAB (now WEC) “inform[ing] the general public that those who enter the IDPP will promptly receive a credential for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential.” Frank III, 835 F.3d at 651. The en banc Court emphasized it was denying petitions for initial hearing en banc on the express understanding that “the State [will] adequately inform the general public that those who enter the IDPP will promptly receive a credential for voting, unless it is plain that they are not qualified.” Id. at 652 (emphasis added). And far from wanting Judge Peterson to abstain in favor of state proceedings,
15 Luft characterized the affidavit approved by Judge Adelman as overbroad and vague, and as preventing the voter from being questioned about it. “The injunction allowed a voter to make his or her choice about how much effort was too much―some people might deem even one trip to a governmental bureau excessive―and barred the state from contesting any person’s conclusion.” Luft, 2020 WL 3496860, at *21. The affidavit even allowed the voter to check “Other” as the reason he or she could not obtain a photo ID. See also Frank v. Walker, Nos. 163003 & 16-3052, 2016 WL 4224616, at *1 (7th Cir. 2016) (entering initial stay of Judge Adelman’s order “[b]ecause the district court has not attempted to distinguish genuine difficulties …, or any other variety of substantial obstacle to voting, from any given voter’s unwillingness to make the effort that the Supreme Court has held that a state can require”).
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the full Seventh Circuit unanimously emphasized that “[t]he Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election.” Id. (emphasis added). Judge Peterson vigorously exercised this authority and responsibility in ensuring that the State complied with its IDPP promises. His monitoring and enforcement tools included several additional orders, periodic submission of joint status reports on how the IDPP injunctive relief was being implemented, and requiring the repeated submission of sworn declarations by key GAB and DMV officials. See supra n.16.
These are the constitutional minimum requirements for the “safety net” required for Judge Easterbrook’s hypothesized “1%” of voters who may face “high hurdles” in meeting proof requirements that 99% of voters can meet with “reasonable effort.” Frank II, 819 F.3d at 386. The “personal” right to vote “is not defeated by the fact that 99% of other people can secure the necessary credentials easily.” Id. Far from excusing the State from having to adhere to these individualized personal standards, Judge Easterbrook’s new panel decision in Luft reaffirms and expands on his reasoning in Frank II, using as his illustration one of the plaintiffs in the One Wisconsin litigation.
Mr. Johnny Martin Randle, an African-American voter, was 75 years old at the time of the May 2016 trial. He was born and spent his entire life in northeast Mississippi, but moved north to live with his daughter in Milwaukee when he got older. He had been trying to obtain his supposedly “free” voter ID since August 2015, but had been prevented from doing so for the sole reason that his Mississippi birth certificate from July 1941 records his name as “Johnnie Marten Randall.” Even though the DMV Administrator herself conceded Mr. Randle is a U.S. citizen who was born in Mississippi on the date he said he was born, and even though there was abundant
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evidence confirming his identity, DMV refused to give him his requested voter ID because of the errors in his birth certificate, unless he submitted a Common Law Name Change (CLNC) affidavit, even though his name has never been changed—he has always lived his life as Johnny Martin Randle. DNCFOF ¶ 213. Mr. Randle was far from the only voter who had been barred from voting because of trivial and inconsequential errors in his vital records―usually African-American or Latino “petitioners” being judged by white people. As of August 2016 about 2/3 of all Wisconsin voters who were forced to resort to the IDPP to “petition” to exercise their right to vote were people of color; of the petitions that were officially denied (like Mr. Randle’s), 85% were from voters of color. One Wisconsin, 198 F. Supp. 3d at 922. This in a State that is about 6.2% African American and 6.8% Latino. See 2020 Almanac of American Politics, supra n.5, at 1917. The One Wisconsin trial record abounds with stories similar to Mr. Randle’s.
Judge Peterson July 29, 2016 decision excoriated the State for its conduct of the IDPP, pointing to Mr. Randle’s mistreatment and to many similar stories. The process was a voting rights “disaster” and “a wretched failure.” One Wisconsin, 198 F. Supp. 3d at 903, 916. The IDPP (as of May 2016) repeatedly had led to “real incidents of disenfranchisement” where the State admitted it had no reason to doubt a voter’s qualifications but nevertheless denied the “petition” for the credential required to vote. Id. at 903. Moreover, after studying hundreds of examples of voters who had to navigate the IDPP’s overly bureaucratic rules, Judge Peterson emphasized that “even voters who succeed in the IDPP manage to get an ID only after surmounting severe burdens.” Id. The process (again, as of July 2016) was “complicated,” “arduous,” “unnecessarily difficult,” and “imposes burdens that far exceed those contemplated in Crawford or Frank.” Id. at 913, 916, 950.
Judge Easterbrook’s Luft decision highlights Mr. Randle’s experience in explaining why
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Judge Peterson should retain jurisdiction so that he can continue to monitor the State’s compliance
with its promises:
Plaintiff Johnny Randle’s experience shows why [a promised safety net] may be hard to implement reliably. The name he used for more than seven decades differs from that of his birth certificate in spelling but not in pronunciation. After submitting his petition, Randle needed more than a dozen telephone calls, two inperson visits, and responses to multiple requests for information. The state demanded that he legally change his name and then declined to issue a voting credential because it asserted inability to verify his statement that he had done that already. The state asked him to sign a declaration that he had changed his name’s spelling at common law. It capped the five-month process by denying the petition when his agent did not produce a power of attorney.
Wisconsin asserts that the procedures it has recently established would have short-circuited that process by allowing the employees who interviewed Randle to look up the records using his date of birth and his mother’s maiden name, conclude that he had innocently been using a variation on the original spelling, and issue a voting credential. Wisconsin recognizes name changes at common law as long as the usage is consistent, continuous, and non-fraudulent. State v. Hansford, 219 Wis. 2d 226, 246–47 (1998). It asserts that the current version of its petition process, which it wants to implement, recognizes this and would simplify life for Randle and many others. Wisconsin allows common-law name changes for driver’s licenses and the like, and its new petition process requires the officials to accept a name change when an applicant submits a statement declaring the common-law elements as well as the prior name and its discontinuance. Wis. Stat. §343.50(3)(c); Wis. Admin. Reg. CR 16-040 §§ 1–3.
We stressed in Frank III that appropriate treatment of the petition process depends on how it works. Although that process has been a moving target from Frank II until today, we do not blame the state for displaying flexibility. It has had to see what problems are easy to solve and which are tougher. The district court acted on a record assembled years ago. Instead of trying to evaluate the adequacy of a process that the state once championed, but now wants to change, the best approach is to let it try and see what happens. Adequacy cannot be evaluated in the abstract.
Luft, 2020 WL 3496860, at *10-11. Although the State’s interest in the “integrity and reliability
of the electoral process” is strong, Crawford, 553 U.S. at 204; Frank I, 768 F.3d at 755, Luft
emphasizes that “[e]very citizen’s interest in individual treatment also is strong. That’s the
holding of Frank II.” Luft, 2020 WL 3496860, at *11 (emphasis added).
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B. This Court should follow Frank III in crafting appropriate relief. Turning from Frank and Luft to this case, the Seventh Circuit stayed this Court’s injunctive relief with respect to the witness-certification provision, concluding that (a) “the district court did not give adequate consideration to the state’s interests in suspending this requirement”; (b) the Purcell principle counseled against relief given that the election was only days away; and (c) the “overbreadth of the district court’s order . . . categorically eliminates the witness requirement applicable to absentee ballots.” DNC v. RNC, Nos. 20-1538 & 20-1546, at *3 (emphasis added). The panel suggested the WEC’s “alternative suggestions” for fulfilling the witness requirement (e.g., having the witness observe the voter over Skype, the voter mail the completed ballot to the witness, and the witness sign and date the ballot) might be sufficient, especially given the extra time that voters had to obtain a witness signature because of this Court’s extension of the ballotreceipt deadline. Id. The Seventh Circuit also urged this Court to let the WEC try to fix the problems first, before further judicial action. WEC’s proposed alternatives proved woefully insufficient. As described, approximately 11,944 returned ballots were rejected because of “insufficient” certification. DNCFOF ¶ 156. Moreover, there are strong grounds to believe that many of the 135,417 unreturned ballots—over 10% of all ballots sent out—were not returned because the voters who had requested these ballots were unable to navigate the witness requirements in the midst of the pandemic and resulting isolation from others. Id. ¶ 157. Today’s combined submissions from the four plaintiffs’ groups will put the individual stories of hundreds of Wisconsin citizens before this Court, many involving the suppressive effects of Wisconsin’s witness-certification requirement during this pandemic, especially for senior citizens and other high-risk groups. Where is their safety net?
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The DNC and DPW respectfully submit that, given the experiences in the April 7 election, both this Court and the Seventh Circuit should reconsider their views on this issue. The Seventh Circuit was concerned that this Court gave “no effect to the state’s substantial interest in combatting voter fraud.” DNC v. RNC, Nos. 20-1538 & 20-1546, at *3. That criticism is not fairly applied to this Court’s April 2 decision, which emphasized the general validity of the witnesscertification requirement; this Court was simply attempting to fashion, as best it could only days before the primary, the “safety net” required by Frank II. The Frank decisions and Luft point the way to how the Court can now design the safety net it envisioned that will satisfy the Seventh Circuit’s concerns.
 The statement asserting an individual exemption from the witness-certification requirement must present an objectively reasonable explanation for why the voter needs the exemption, and must be signed by the voter under penalty of perjury. This was one flaw in the “other written statement”/”no magic words” relief this Court fashioned in its April 2 injunction. This is not meant as a criticism; the Court had no time to design a form or have it printed and distributed. Now there is time.
 The statement must provide best-available contact information so that local election officials can quickly contact the voter to investigate any questions or concerns, either during the post-election tabulations and canvass or thereafter.
 The voter must cooperate with any inquiries by local election officials―Judge Easterbrook was emphatic about that in the just-released Luft decision. Id. at *11.
 The State, in turn, must engage in a genuine public educational campaign to inform the public at large as well as targeted at-risk populations about the “safety net” available for registration and voting and what voters need to do to take advantage of
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it. With these modifications, the Court can provide appropriate relief from the occasionally onerous witness-certification requirement for those who need it, while protecting against potential voter fraud and meticulously tracking the “safety net” requirements spelled out in Frank II, Frank III, and Luft.
Although courts in recent months have disagreed on the issue, a growing number have modified witness signature and identity requirements for the duration of the pandemic. The Eleventh Circuit’s recent decision in People First of Alabama v. Sec’y of State of Alabama, No. 20-12184, 2020 WL 3478093 (11th Cir. Jun. 25, 2020) (unpublished), stayed, No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020), is closely on point. There, the District Court for the Northern District of Alabama entered “a narrow injunction” applying only to “high-risk voters”―those (a) age 65 or older, (b) with a disability, or (c) who “suffer[] from an underlying medical condition that the CDC has determined places individuals at a substantially higher risk of developing severe cases or dying of COVID-19”―allowing these voters an exemption from Alabama’s witnesscertification and photo ID requirements if they submit a written statement signed under penalty of perjury that it is “impossible or unreasonable to safely satisfy” those requirements. 2020 WL 3478093, at *3. Two Eleventh Circuit judges, concurring in the panel’s stay of the district court injunction, rejected the State’s argument that compliance required just a “little bit of work”:
Appellants argue that the photo ID and witness requirements impose only a “little bit of work” on Alabamian voters. That misperceives the burden. The burden here is not the finding of two people or a notary to witness a signature or the finding of a location to copy one’s photo ID. Instead, the burden is tied to the fact that Plaintiffs and those similarly situated must risk death or severe illness to fulfill Alabama’s absentee voter requirements and, therefore, to exercise their right to vote. Despite Appellants’ insinuations, that risk isn’t comparable to the normal risk faced “when we leave home.” Sure, anyone may risk getting hit by a bus on the way to a polling station. But that doesn’t mean we set up polling stations in the middle of the street. Appellants’ failure to acknowledge the significant difference
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between leaving one’s home to vote in non-pandemic times and forcing high-risk COVID-19 individuals to breach social-distancing and self-isolation protocols so they can vote reflects a serious lack of understanding of or disregard for the science and facts involved here.
2020 WL 3478093, at *7 (emphasis added). While acknowledging that “‘combatting voter fraud’
is certainly a legitimate interest,” the panel majority concluded that interest could be adequately
served by requiring voters to submit statements under penalty of perjury, given the “potential life-
or-death burden placed on high-risk Alabamian voters.” Id. The judges also noted that Alabama
already has granted exceptions from the photo ID requirement for some voters―those over 65 or
with physical disabilities that deter them from going to the polls―and concluded there was “no
reason” under the Anderson-Burdick analysis to withhold a similar exemption for “voters who are
at a high-risk of contracting a severe or deadly cases of COVID-19.” Id. The Eleventh Circuit
decision in People First has been stayed, No. 19A1063, 2020 WL 3604049, but continues to
provide useful guidance. Many other federal and state courts have enjoined the enforcement of
various deadlines and proof requirements that, while permissible in normal times, must yield to
right to vote in the midst of a global pandemic that threatens voters’ lives and threatens to prevent
them from registering and casting their ballots.16
16 See, e.g., League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV00024, 2020 WL 2158249 (W.D. Va. May 5, 2020) (“In ordinary times, Virginia’s witness signature requirement [for absentee ballots] may not be a significant burden on the right to vote. But these are not ordinary times . . . . Notwithstanding the proffered steps which could be taken to mitigate the risks to health in having somebody witness one’s absentee ballot, many would be dissuaded from exercising their vote both on account of the remaining health risks and required steps to mitigate them―again, especially those who are elderly, immunocompromised, or otherwise at grave risk from the virus.”); Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020) (applying Anderson-Burdick balancing in light of the pandemic, and alleviating Illinois signature and witnessing requirements for minor party candidates seeking to run for state or federal office), stay denied pending appeal, No. 20-1961 (7th Cir. June 21, 2020); Thomas v. Andino, Nos. 3:20-cv-01552-JMC, 2020 WL 2617329, at *39 (D.S.C. May 25, 2020) (“strong likelihood that the burdens placed upon [plaintiffs] by the” witness signature requirement “outweigh the imprecise, and (as admitted by SCEC Defendants)
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III. This Court should partially enjoin the ID and proof-of-residency requirements as applied to those who attest under penalty of perjury that they cannot meet those requirements after reasonable efforts.
This Court previously denied relief on the photo ID requirement (without prejudice)
because it was “satisfied that the current proof of ID requirement, as being applied under the WEC
guidance and state court order, does not impose an undue burden on the right to vote.” ECF No.
170 at 49. The WEC guidance pertained to voters claiming “indefinitely confined status” under
Wis. Stat. §§ 6.86(2)(a) and 6.87(4)(b)(2), and the reference to state court was to the Wisconsin
Supreme Court’s order in Jefferson v. Dane County, 2020AP557-OA, which endorsed and adopted
the WEC’s “guidance” on such status. This Court denied injunctive relief on the proof-of-
residency requirement as “moot” because it was already April 2 and “voters are no longer able to
ineffective, state interests of combating voter fraud and protecting voting integrity”); Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020) (affirming district court’s conclusion that Michigan’s enforcement of signature requirement for candidates was “not narrowly tailored to the present circumstances” involving the pandemic); Goldstein v. Sec’y of the Commonwealth, 484 Mass. 516, 571 (2020) (acknowledging that minimum-signature requirements “impose a severe burden on, or significant interference with, a candidate’s right to gain access” to the ballot in light of pandemic); Faulkner for Va. v. Va. Dept of Elections, No. CL20-1456 (Va. Cir. Ct. Mar. 25, 2020) (applying strict scrutiny to decrease signature requirements for candidates to appear on ballot because of COVID-19, applying strict scrutiny); Reclaim Idaho v. Denney, No. 1:20-CV-00268-BLW, 2020 WL 3490216, at *11 (D. Idaho June 26, 2020) (State could either give plaintiff 48 additional days to collect online⸺instead of physical⸺signatures or put initiative on November 2020 ballot with current number of signatures); Miller v. Thurston, No. 5:20-cv-05070 (W.D. Ark. May 25, 2020) (petitioner need not sign an initiative petition in the presence of a canvasser and canvasser need not sign and swear in the presence of a notary to his or her affidavit attesting to the genuine and compliant nature of the signatures on his or her initiative petition), administratively stayed, No. 20-2095 (8th Cir. June 15, 2020); Moreno v. Denney, No. 1:20-cv-00242 (D. Idaho May 23, 2020) (extending deadline to request absentee ballot by a week from May 19 to 26); Fair and Equal Mich. v. Benson, No. 20-000095-MM (Mich. Ct. Claims June 10, 2020) (extending deadline for validity of signatures to get initiative on ballot); In re: Extension of time for Absentee and Mail-in Ballots, No. 2020-02322-37, slip op. at 2 (Penn. Ct. Common Pleas, Bucks Cty. June 2, 2020) (extending deadline to accept ballots seven days after June 2, 2020 primary); In re: Extension of time for Absentee and Mail-in Ballots, No. 2020003416 (Penn. Ct. Common Pleas, Delaware Cty. June 2, 2020) (extending deadline by ten days to accept ballots for voters who did not have mail-in or absentee ballots on morning of election day).
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register by-mail for the upcoming election.” ECF No. 170 at 50. The DNC/DPW appreciate the Court’s recent admonition that, “[a]bsent some
extraordinary showing as to the impact of the current health crisis on those statutory provisions, this court is unlikely to overturn those decisions.” ECF No. 217 at 13. Again, we understand that the Court cannot “overturn” those decisions, but it can ensure there is a genuine “safety net” that those decisions all promise. Moreover, the impacts are “extraordinary,” at least with respect to the minority of eligible voters who face “high hurdles” in complying with otherwise-reasonable requirements that 99% of voters can comply with. Frank II, 819 F.3d at 387. We are not asking the Court to “overturn” any decisions, simply to follow the logic of Frank II as it did before. There is no principled reason for saying that some identification and proof requirements must have a “safety net,” while allowing similar requirements to be enforced rigidly with an iron fist and no exceptions allowed, notwithstanding each person’s constitutional right to “individual treatment” and “accommodation that will permit him or her to cast a ballot.” Luft, 2020 WL 3496860, at **9, 11 (quotations and citations omitted).
The same analysis discussed in Part II in connection with the witness-certification requirement also compels an exception to the photo ID and proof-of-residence requirements, provided the voter is willing to claim an exemption subject to the same requirements discussed above―a signature under penalty of perjury claiming entitlement to a well-defined exemption, specific standards, suitable contact information, and cooperation with local election officials. No more may constitutionally be required, especially in a time of pandemic.
Despite the Court’s hopes, the on-the-ground reality proved that the “indefinitely confined” option did not provide the sort of safety net required under Frank II, Frank III, and Luft. The May 11 Wisconsin Election Protection 2020 Spring Election Report―an investigation conducted by
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“non-partisan observers”―found that “Confusion about ‘Indefinitely Confined’ Voters” had been
a rampant problem in the weeks leading up to the April 7 election. The Report explained:
The Wisconsin Elections Commission defines an indefinitely confined voter as a voter who has “a difficult time getting to the polls due to age, illness, infirmity, or disability.” As a result of the global pandemic, an increased number of voters clearly qualified under this definition.
However, few voters are aware of this provision, and there has not been an adequate, broad public education campaign by elections officials to raise awareness about it. Instead, to the extent voters learned about this exception at all it was in a piecemeal way, and the onus was on voters to seek out the information. Groups like LWVWI also attempted to share the information with a larger audience using the language approved by the WEC and sharing it publicly on their website and social media channels. Compounding the problem, days before the absentee ballot request deadline, the Wisconsin Supreme Court blocked the Dane County Clerk “from telling large groups of voters they could request absentee ballots without showing a photo ID because of the coronavirus pandemic.” These responses further confused voters about their rights and the process to request an absentee ballot as indefinitely confined, and may have caused some voters who qualified as such to be reluctant to use it for fear of potential punishment.
Umberger Decl., Ex. 59; DNCFOF ¶ 214. The record includes similar evidence of the uneven,
confusing, and inadequate use of this option, the supposed “safety net” for the ID requirement in
this time of pandemic. See DNCFOF ¶¶ 165-73.
As discussed above, this key regulatory term, supposedly providing the required safety net
for the ID law, gets no mention in the June 25 WEC Defendants’ Status Report. And the
“indefinitely confined” option gets only passing fine-print mention in the instructions given to
voters requesting an absentee ballot and in the WEC’s planned mailer to certain voters. Voters are
not told in any of these materials that, according to the WEC and the Wisconsin Supreme Court,
designation of indefinitely confined status is for each individual voter to make based on how they
feel about their own current circumstances. Nor are they told that, according to the State,
“indefinitely confined” status “does not require permanent or total inability to travel outside of the
residence.” Jefferson, No. 2020AP557-OA, at *2 (emphasis added). The WEC and Wisconsin
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Supreme Court “guidance,” such as it is, shows that “indefinitely confined” is not a self-defining term, and in the absence of explicit, prominent instructions on the absentee ballot request form, on the WEC’s website and in other informational materials, voters are likely to misunderstand the scope of their entitlement to claim this status and, if they are otherwise unable to copy or upload an acceptable photo ID, may forego attempting to obtain an absentee ballot.
Thus, at a minimum, this Court should hold that materials for requesting absentee ballots, instructions for completing those ballots, and the WEC’s own public education program must explicitly and prominently explain a voter’s option to claim “indefinitely confined” status during the COVID-19 pandemic, including the WEC and Wisconsin Supreme Court explanations of what that term means. IV. This Court should order defendants to take further steps to ensure all Wisconsin
voters have access to safe and secure in-person voting opportunities. The April 7 election demonstrated the dire need for further planning, resources, and leadership to ensure that Wisconsin voters are not once again left with no options for safe and secure in-person early voting and in-person voting at the polls on election day. For those like the intervening defendants who argue that in-person election-day voting is a safe and easy alternative to absentee voting, the April 7 experience teaches that in-person voting cannot provide such an alternative when the early-voting sites are closed, election-day polling sites are drastically consolidated, and voters who show up are too often forced to stand in long lines for hours in the midst of a pandemic. This was “[o]ne of the most shameful chapters” in American’s voting-rights history, requiring voters “to make an unconscionable choice between their lives and their citizenship,” and it cannot be allowed to happen again.17
17 Sherrilyn Ifill, Never Forget Wisconsin, Slate (Apr. 8, 2020, 6:46 PM), https://slate.com/news-and-politics/2020/04/never-forget-wisconsin.html.
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The Swenson plaintiffs have done a comprehensive job in demonstrating the many ways this can be done. They have presented, among many other things, the expert views of Kevin J. Kennedy, who served as Wisconsin’s Chief Election Officer for more than 33 years, and who knows as well as anyone how the voting process works at the polls and early-voting locations throughout the State. Mr. Kennedy presents numerous recommendations for what the WEC can and should be doing as the agency responsible for the administration and oversight of the State’s election system. These include setting standards and monitoring compliance with COVID-19 social distancing guidelines and appropriate sanitization; working with local officials to implement a statewide policy for providing and staffing alternative polling places; developing and implementing a statewide policy for expanding the use of drive-through and curbside voting, early in-person voting at alternative sites, and other measures for in-person voting designed to prevent the spread of the virus, protect voters with disabilities or who are at high risk from COVID-19 who must vote in person (e.g., those whose requested absentee ballots never arrived), and reduce crowding and long lines at the usual polling sites. See generally Kennedy Rpt.
DNC/DPW will not repeat the Swenson plaintiffs’ or Mr. Kennedy’s demonstration of how these goals can be met and what the WEC can and should be doing to make them happen. We do, however, respond briefly to the Court’s jurisdictional concerns expressed during the June 29 status conference and to the intervening defendants’ claims that DNC/DPW are suing the wrong defendants, and instead should be seeking direct relief from local election officials in 1,852 different local jurisdictions.
A suit against nearly 2,000 election officials would be chaotic, and, of course, unnecessary. DNC and DPW are seeking statewide standards and statewide relief. As this Court has observed, the WEC is the “governmental body charged by law with administering” Wisconsin’s election
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laws (other than with respect to campaign finance). ECF No. 85 at 7. In fact, the Legislature has
granted to WEC “the responsibility for the administration of chs. 5 to 10 and 12 and other laws
relating to elections and election campaigns, other than laws relating to campaign financing.” Wis.
Stat. § 5.05(1) (emphasis added); see also Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804,
842 (7th Cir. 2014) (WEC’s predecessor had “the authority to implement” election laws). Under
this broad grant of authority, the WEC may “[p]romulgate rules . . . applicable to all jurisdictions
for the purpose of interpreting or implementing laws regulating the conduct of elections or election
campaigns . . . or ensuring their proper administration.” Wis. Stat. § 5.05(1)(f) (emphasis added).
The WEC’s statutory “responsibility” for election “administration” includes many other oversight,
planning, guidance, and other administrative tools for “administering” Wisconsin’s election
system.18
As part of its general duty to “implement” and “administer” Wisconsin’s election laws, the
WEC also “may direct municipal clerks to implement a court order pertaining to the state’s election
18 See, e.g., Wis. Stat. § 5.05(e) (approve electronic data recording system and order exemptions for polling places’ accessibility requirements); id. § 5.05(f) (promulgate rules applicable to all jurisdiction to implement election laws); id. § 5.05(2m)(a) (initiate investigations of violations of election laws); id. § 5.05(2m)(f) (require any person to submit reports relevant to commission’s investigatory powers and order testimony to be taken under commission’s investigatory powers); id. § 5.05(5e) (reporting obligation); id. § 5.05(6a) (issue advisory opinions); id. § 5.05(7) (conduct informational and training meetings); id. § 5.05(11) (adopt plan to “enable participation . . . in federal financial assistance programs” and provide financial assistance to counties and municipalities for election administration costs); id. § 5.05(12) (conduct voter education); id. § 5.05(14) (request information from local election officials relating to election administration); id. § 5.05(15) (design and maintain registration list and require all municipalities to use it); id. § 6.30(4) (prescribe voter-registration form); id. § 6.30(5) (maintain electronic voter-registration system); id. § 7.08(3) (prepare and publish election law manual); id. § 7.08(6) (audit performance of voting systems and, if necessary, take remedial action and order remedial action); id. § 7.31(1)-(5) (establish qualifications for chief inspectors, training requirements, and oversee chief inspector renewal); id. § 8.12(2) (design official ballots); id. § 9.01(ar)(3) (order recount). This is just a sample of WEC’s duties.
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procedures and federal law.” Frank v. Walker, 196 F. Supp. 3d 893, 918-19 (E.D. Wis. 2016), aff’d
in part and rev’d on other grounds 2020 WL 3496860 (7th Cir. June 29, 2020). Judge Adelman’s
analysis of this issue is both comprehensive and correct. Although the Seventh Circuit rejected
Judge Adelman’s required remedy―in that case, an open-ended affidavit of exemption discussed
above in Part II―it did not question his jurisdiction to order such relief or the WEC’s authority to
implement it. 2020 WL 3496860, at *10-11. And the Seventh Circuit has upheld Judge Peterson’s
continuing supervisory authority over state officials for the statewide administration of the voter
ID laws. See Frank III, 835 F.3d at 651-52 (en banc); Luft, 2020 WL 3496860, at *11. Judge
Adelman’s analysis was comprehensive and cogent:
State law vests the commission with “the responsibility for the administration of [the Wisconsin Statutes governing elections] and other laws relating to elections.” Wis. Stat. § 5.05(1). Carrying out a federal court’s order concerning the state’s election procedures would qualify as administering the state’s election laws and “other laws relating to elections” (which includes federal laws relating to elections). Municipal clerks, who lack the power to administer election laws but only have the power to conduct elections in accordance with those laws, see Wis. Stat. § 7.15(1), could not disobey the commission’s directive to make affidavits available to voters and to accept them in lieu of photo ID. The administrator of the Elections Commission points out that the commission might not have authority under state law to pass a formal administrative rule implementing the affidavit requirement. Haas Decl. ¶¶ 15–17. However, such a rule is unnecessary. Although the commission has rulemaking authority, see Wis. Stat. § 5.05(1)(f), that is just one manifestation of its general authority to administer election laws. Pursuant to its general authority, the commission may direct municipal clerks to implement a court order pertaining to the state’s election procedures and federal law.
I also note that the defendants had no difficulty implementing the injunctive relief that I granted in 2014. If the defendants were able to direct municipal clerks to stop requiring voters to present photo ID at the polls in 2014, then they will be able to direct municipal clerks to allow voters to cast a ballot by presenting an affidavit in lieu of photo ID in 2016. Accordingly, I reject the defendants' suggestion that uncertainty over whether they have power to require municipal clerks to implement an affidavit remedy is a reason not to grant that remedy in the first place.
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This analysis is spot on. True, Wisconsin has delegated its authority to “establish[]” polling places and “conduct” elections to local governing bodies, Wis. Stat. §§ 5.25(2), 7.15(1), but the State cannot delegate its duty to ensure safe and sufficient in-person registration and voting facilities for all voters throughout the State. The defendants bear the statutory “responsibility for the administration of” Wisconsin’s election laws, Wis. Stat. § 5.05(1), which at minimum requires defendants to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee votes and to vote in-person on election day in as safe and secure a manner as feasible. The WEC, for example, may set the baseline number of voting locations, Wis. Stat. § 5.25(2), as well as the minimum safety and public health standards that apply to those voting locations to ensure they do not become Petri dishes for COVID-19. See Kennedy Rpt. ¶ 65.
It is not for this Court to set the actual number of polling sites or prescribe all the standards in detail. That is the WEC’s “responsibility,” and this Court should order WEC to exercise that authority, subject to this Court’s ongoing jurisdiction to require the WEC to report back on its compliance with the Court’s orders. Although DNC/DPW do not necessarily agree with all of Mr. Kennedy’s recommendations, they provide the necessary starting point for matters to address in the Court’s order, standards and procedures the WEC needs to address, and what the WEC should address in future reports to the Court. As for this Court’s exercise of its continuing jurisdiction, we respectfully submit that Judge Peterson’s approach in the fall election of 2016, discussed in Part II above, provides an excellent model for this Court to follow, as do this Court’s own orders leading up to the April 7 election. V. The challenged provisions violate federal due process guarantees.
The Gear and Swenson plaintiffs have done a comprehensive job in presenting the
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procedural due process objections raised in all four of the pending consolidated actions. DNC/DPW will not add to those comprehensive arguments, but will respond to this Court’s statement in its June 10 Opinion and Order that, “despite the Mathews and Anderson-Burdick tests involving a similar balancing analysis, plaintiffs do not explain how, if at all, their separate procedural due process claim is distinguished from their undue burden claim.” ECF No. 217 at 14. The Court cautioned that, “unless plaintiffs [DNC and DPW] are able to articulate a specific legal or factual rationale for applying the Mathews test over the Anderson-Burdick test in evaluating a challenged provision,” the Court would focus on the Anderson-Burdick claim. Id. at 15.
The DNC/DPW understand the Court’s concerns and questions. The short answer is that we have not yet found a decision in which a court accepted an Anderson-Burdick claim while rejecting a due process challenge to the same provision; or rejected an Anderson-Burdick challenge while striking down the same provision as violating due process. The Anderson-Burdick and Mathews v. Eldridge analyses are both multi-factor balancing inquiries, some of the relevant factors will often overlap, and the results of the inquiries may often be the same. But the focus of the two analyses differs. Anderson-Burdick balances burdens on voting rights against states’ justifications, while due process claims focus on the sufficiency of the process involved before the State deprives someone of their right to vote. Under the Anderson-Burdick framework, courts assess the burdens on the right to vote against the state’s justifications for those burdens. The more severe a burden, the more compelling a justification must be. Severe burdens on voting rights “must be narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citation omitted).
The gravamen of a procedural due process claim, on the other hand, concerns whether a voter has obtained enough process to justify a deprivation of a right. “In procedural due process
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claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (citations omitted) (emphasis in original). An appropriate remedy orders more process if a court determines the existing procedures are inadequate or absent. Id. at 126 (“[I]t is necessary to ask what process the State provided, and whether it was constitutionally adequate.”).
The Anderson-Burdick and due process analyses are like looking at the same object through different lenses. Sometimes a procedural due process analysis may help show systemic flaws that would not necessarily jump out under an Anderson-Burdick analysis. For example, due process post-deprivation cases are especially instructive here with respect to whether local election officials must contact voters about ballot problems and, if possible, give them opportunities to cure any problems before final rejection of the ballots.19 To the extent this principle governs AndersonBurdick claims as well, that would be wonderful. But to reach the right Anderson-Burdick result it sometimes is necessary to use a due process lens (likewise with an equal protection lens), and to acknowledge that due process helps point to the right result. That is hardly “redundant.”
Moreover, the assertion in Luft that rules challenged under Anderson-Burdick must be judged “by looking at the whole electoral system,” 2020 WL 3496860, at *3, seems out of step with the emphasis of due process on every individual’s liberty interest in fair voting. It is helpful
19 See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d 202, 222 (D.N.H. 2018) (enjoining law requiring rejection of ballots due to signature mismatch without giving voters opportunity to cure); Fla. Democratic Party v. Detzner, 4:16cv607-MW/CAS, 2016 WL 6090943, at *9 (N.D. Fla. Oct. 16, 2016) (same); Zessar v. Helander, 2006 WL 642646, at *9 (N.D. Ill. Mar. 13, 2006) (“Once rejected, the ballot cannot be rehabilitated and cast after a post-deprivation hearing.”); see also id. (“It is apparent that the risk of erroneous deprivation of the protected interest in absentee voting is not enormous, but the probable value of an additional procedure is likewise great in that it serves to protect the fundamental right to vote.”).
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to have the due process issues front and center at all times: Are voters receiving adequate notice of election procedures? Is the State explaining ambiguous terms (“indefinitely confined”) and clearly spelling out the availability of “safety nets” to be sure that all voters may vote with only reasonable effort? And is the election system providing sufficient process following the election regarding suspected ballot errors and omissions? DNC and DPW therefore respectfully urge the Court to use both an Anderson-Burdick and a due process analysis, if only to confirm that the two analyses both lead to the right result. VI. The challenged provisions violate equal protection guarantees.
“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Among other things, this requires “specific rules designed to ensure uniform treatment” in order to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in. Id. at 106-07. There is no “emergency exemption” from this equal protection requirement. “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” Id. at 108-09; see also id. at 109 (shutting down the 2000 Florida recount because the recount process was “inconsistent with the minimum procedures necessary to protect the fundamental right of each voter”).
The Legislature has argued that these equal protection principles apply only to “the one election” involved in Bush v. Gore. ECF No. 142 at 32 (quotation marks and citation omitted). That’s nonsense. Courts repeatedly have relied on the equal protection principles enunciated in Bush v. Gore in a variety of election law circumstances. See, e.g., Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir. 2016) (redistricting); Obama for Am. v. Husted, 697 F.3d 423, 428–29 (6th Cir. 2012) (restrictions on early voting); Idaho Coal. United
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for Bears v. Cenarrusa, 342 F.3d 1073, 1077 & n.7 (9th Cir. 2003) (ballot-initiative process); Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1185–86 (11th Cir. 2008) (Barkett, J., concurring in part) (voter registration).
Wisconsin’s April 7 election abounded with many examples of unfair, unequal, and disparate treatment of Wisconsin voters depending on where they live. Safe and sufficient inperson registration, absentee voting, and election-day voting opportunities were available to some Wisconsin voters but not to others, depending on where they resided. DNCFOF ¶¶ 52-66; see also ECF Nos. 63-10, 63-12, 63-14; Exs. 10, 12, 14; ECF No. 39 at 2 (identifying closure of some, but not all polling places). Voters of color and the urban poor were disproportionately denied sufficient opportunities for safe in-person registration, early voting, and election-day voting. Id. ¶¶ 5, 16. Similarly, the application of the documentation requirements for registering to vote and requesting an absentee ballot varied broadly across cities and counties, resulting in some voters being subject to these requirements while others were not. See, e.g., id. ¶¶ 71-72, 171-72. Voters also received conflicting guidance on the witness requirement for absentee ballots depending on where they lived and who they called. See, e.g., id. ¶¶ 155-71; ECF No. 63-16 at 6 (quoting Madison officials). Many voters, particularly those who live alone, lacked access to a witness but were simultaneously being instructed by the authorities to stay at home and practice social distancing. DNCFOF ¶¶ 15051, 153-61; see also ECF No. 66 ¶ 3; ECF No. 70 ¶ 3; ECF No. 75 ¶ 4.
Another example of disparate and non-uniform treatment involved the interpretation and administration of the U.S. Supreme Court’s requirement that an absentee ballot be “postmarked by election day” in order to be counted. RNC, 140 S. Ct. at 1208. Wisconsin elections officials and the Postal Service do not follow uniform standards and procedures in postmarking absentee ballots. As a result, many absentee ballots were returned to local election officials by the Postal Service
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with either no postmarks at all, postmarks without dates, or illegible postmarks. The six Commissioners of the WEC, on a 3-3 tie vote, largely failed to agree on how election officials should address these issues, leaving local election officials throughout Wisconsin to make these decisions without any uniform standards ensuring consistent treatment throughout the State, rather than through discretion exercised locality by locality. DNCFOF ¶ 215.
A further example of “arbitrary and disparate treatment [of] voters,” Bush, 531 U.S. at 10405, is the interpretation adopted by the WEC and the Wisconsin Supreme Court of Wis. Stat. §§ 6.86(2)(a) and 6.87(4)(b)(2), which exempt voters who are “indefinitely confined because of age, physical illness or infirmity” from many of the absentee voting restrictions and conditions. As discussed above, in response to conflicting advice from county and local election officials about what it takes to be “indefinitely confined” by the pandemic within the meaning of these statutes, the Wisconsin Supreme Court, in an original action, adopted the WEC’s guidance that the “[d]esignation 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.” Jefferson, No. 2020AP557-OA, at *2 (emphasis added). This “guidance” in no way provides “uniform” rather than “arbitrary and disparate treatment to voters.” Bush, 531 U.S. at 106-07. If using a standard that “might vary . . . from county to county” or “within a single county” violates equal protection, id. at 106, so much more the case where the interpretation and application of the standard varies from voter to voter. The record amply demonstrates the confusing and “piecemeal way” in which this exemption was administered. Wisconsin Election Protection, 2020 Spring Election Report at 9-10 (Ex. 59); DNCFOF ¶¶ 165-73, 207-09, 214.
In these and other respects, if this Court does not require “uniform rules” and “specific standards” in conducting the November 3 general election under pandemic conditions, there will
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be an unacceptably high risk that Wisconsin will not satisfy “the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Bush, 531 U.S. at 105-06. If anything, the equal protection risks are even greater here than in Bush v. Gore. There, the right to vote was at risk. Here, the risks are to the right to vote and to the right to life⸺our own and the lives of others. VII. Plaintiffs meet all other requirements for their requested preliminary injunctive
relief. All the other requirements for granting injunctive relief are, once again, readily satisfied. This Court repeatedly has emphasized that “infringement on the fundamental right to vote constitutes irreparable injury,” one for which “traditional legal remedies would be inadequate.” ECF No. 37 at 18; see ECF No. 170 at 24-25 (citations omitted). Moreover, the public has a “strong interest in exercising the ‘fundamental political right’ to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Because “[t]he public interest … favors permitting as many qualified voters to vote as possible,” that interest is “best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful.” Obama for Am., 697 F.3d at 436-37 (citation omitted). These considerations are further magnified because of the imminent dangers to public health during the pandemic. “[T]he denial of injunctive relief after a district court has found a risk of imminent and substantial danger to public health … should be rare.” LAJIM, LLC v. Gen. Elec. Co., 917 F.3d 933, 942 (7th Cir. 2019). This Court also has twice found that the balance of the equities favors the DNC and DPW, and it should so find again. ECF No. 37 at 19-20; ECF No. 170 at 25-28. The requested injunctive relief would protect public health and remove barriers to voting during an unprecedented global pandemic. On the other hand, the requested relief would cause some increased administrative burdens for the State and local election jurisdictions. But as the DNC/DPW have shown above,
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those potential burdens can be minimized through appropriately crafted relief. Any remaining
burdens are outweighed by the vindication of constitutional rights. See Taylor v. Louisiana., 419
U.S. 522, 535 (1975) (“administrative convenience” cannot justify practices impinging on
fundamental rights).20
As for the requested extension of the November 3 election-day receipt deadline, Wisconsin
law gives counties until November 10 to begin their canvasses, and until November 17 to complete
them. The State itself need not complete its canvass until December 1. Wis. Stat. § 7.70(3)(a).
Accordingly, there would be ample time to extend the ballot-receipt deadline by up to ten days so
that late-arriving absentee ballots may be counted. The experience of the April 7 election proves
that such an extension can be carried out with a minimum of administrative inconvenience while
avoiding the disenfranchisement of tens if not hundreds of thousands of voters. The WEC
acknowledged in its Rule 30(b)(6) deposition that the administrative burdens caused by this
Court’s prior deadline extensions were modest and manageable. DNCFOF ¶¶ 194-95. There is no
reason to expect a difference now.
20 See also, e.g., Ga. Coal. for People’s Agenda, Inc., 347 F. Supp. 3d at 1268 (increased administrative burden of “disseminating information” and “training poll managers. . . is minimal compared to the potential loss of a right to vote”); Fla. Democratic Party, 2016 WL 6090943, at *8 (“Any potential hardship [to the state] imposed by providing the same opportunity . . . for [] voters pales in comparison to that imposed by unconstitutionally depriving those voters of their right to vote and to have their votes counted.”); United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012) (“The potential hardships that Georgia might experience are minor when balanced against the right to vote, a right that is essential to an effective democracy.”); United States v. Berks Cty., Pa. , 250 F. Supp. 2d 525, 541 (E.D. Pa. 2003) (“Although these reforms may result in some administrative expenses for Defendants, such expenses are likely to be minimal and are far outweighed by the fundamental right at issue.”). Finally, Bishop v. Lomenzo, 350 F.Supp. 576 (E.D.N.Y. 1972) observed that, “[w]ithout minimizing the administrative burden upon the Boards of Elections, we must not lose sight of the fact that we are here dealing with a most fundamental aspect of our free and democratic society - the citizen's right to vote . . . [w]hen that is weighed in the balance against clerical inconvenience, the latter must give way. The state may not deny a voter the right to register (and hence to vote) because of clerical deficiencies.” Id. at 587.
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The DNC/DPW’s requests for a relaxation of the witness certification and other proof requirements also strike the right balance of equities. No one disputes that the State has a strong interest in preventing potential voter fraud. But as Luft has just reminded us, “[e]very citizen’s interest in individual treatment also is strong.” 2020 WL 3496860, at *11 (emphasis added). The DNC/DPW’s proposed relief protects that interest while eliminating barriers that are not necessary to the detection or prevention of fraud. If anything, the DNC/DPW’s proposed form for requesting an exemption provides even greater protection against possible “fraudsters” than the witness requirement and the other challenged proof requirements. By requiring voters to declare under penalty of perjury their specific grounds of entitlement to an exemption, provide email and telephone contact information so that local election officials can follow up promptly with any questions or concerns, and cooperate with any such investigations, the requested relief protects against possible “fraudsters” while reducing the “high hurdles,” Frank II, 819 F.3d at 386, that the witness-certification and proof requirements create for a significant percentage of voters hypothesized by Judge Easterbrook in Frank II.
On top of all this, there was no evidence of attempted voter fraud in the April 7 and May 12 elections, and there is no evidence that such fraud actually will be attempted in the November general election. DNCFOF ¶ 180. The State is entitled to police against this “miniscule” risk, but not by creating unnecessary restrictions that result in the disenfranchisement of “eligible voters.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 388-89 (6th Cir. 2008) (“Because the risk of actual voter fraud is miniscule when compared with the concrete risk that [the State’s] policies will disenfranchise eligible voters, we must conclude that the public interest weighs in favor of [injunctive relief, which] eliminates a risk of individual disenfranchisement without creating any
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new substantial threats to the integrity of the election process.”). Federal and state courts throughout the country have repeatedly found there is no evidence of attempted voter fraud.21
PRAYER FOR RELIEF
The DNC and DPW therefore respectfully request that this Court enter judgment:
A. Declaring that in the context of the current coronavirus crisis, Wisconsin’s current
by-mail and electronic registration deadlines, Wisc. Stat. § 6.28(1); requirements that copies of
proof of residence and voter photo ID accompany electronic and by-mail voter registration and
absentee applications, id. § 6.34, 6.86, respectively; requirement that polling places receive
absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87; and requirement that an
absentee voter obtain the signature of a witness attesting to the accuracy of personal information
on an absentee ballot, id. § 6.87(2); together with defendants’ failure to ensure that all citizens
have safe and sufficient opportunities to register and vote in person, are unconstitutional in
violation of the First and Fourteenth Amendments;
B. Enjoining defendants and their respective agents, officers, employees, and
21 See, e.g., People First, 2020 WL 3478093, at *7 (concluding that state’s “interest for maintaining the photo ID and witness requirements do not outweigh” burdens on voters where evidence “suggests that Alabama has not found itself in recent years to have a significant absenteeballot fraud problem”); Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1036 (9th Cir. 2020) (en banc) (rejecting fraud-based justification for ballot collection ban where “[t]here has never been a case of voter fraud associated with ballot collection charged in Arizona” (quoting Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 852 (D. Ariz. 2018))); Paher v. Cegavske, No. 3:20cv-00243-MMD-WGC, 2020 WL 2089813, at *1, 6 & n.10 (D. Nev. Apr. 30, 2020) (finding that plaintiffs’ “claim of voter fraud is without any factual basis”; the State’s “interests in protecting the health and safety of Nevada’s voters and to safeguard the voting franchise in light of the COVID-19 pandemic far outweigh any burden . . . premised on a speculative claim of voter fraud.”); One Wis. Inst., Inc., 198 F. Supp. 3d at 912 (noting that “there is utterly no evidence that [there] is a systematic problem” of multiple voting); Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp. 3d 779, 789, 802–03 (W.D. Tex. 2015) (rejecting standing argument where alleged injuries, “undermined voter confidence and the risk of vote dilution, are speculative”).
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successors, and all persons acting in concert with each or any of them, from rejecting electronic and by-mail registrations that are received by the relevant clerk’s office by Friday, October 30, 2020.
C. Enjoining defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before November 3, 2020 and arrive at the municipal clerk’s office within a minimum of ten days thereafter, subject to the definition of “postmarked” discussed on page 7 n.7 above;
D. Enjoining in part the enforcement of the witness requirement in Wis. Stat. § 6.87(2) as applied to those absentee voters who certify under penalty of perjury that they are unable after making reasonable efforts to obtain a witness signature and provide contact information for local election officials to follow up immediately if they have any questions or concerns.
E. Enjoining in part the enforcement of the photo identification requirements in Wis. Stat. §§ 6.86 and 6.87 and the proof of residency requirement in Wis. Stat. § 6.34 for voter registrations until the COVID-19 crisis is over, as applied to those absentee voters who certify under penalty of perjury that they are unable after making reasonable efforts to obtain a witness signature and provide contact information for local election officials to follow up immediately if they have any questions or concerns.
F. Ordering defendants to exercise their statutory authority and responsibility, see Wis. Stat. § 5.05(1), to develop and implement regulations, plans, and/or other administrative steps to (a) coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner; and (b) conduct a continuing public information campaign informing
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voters of their in-person and absentee voting options and requirements, with defendants required
to report back to the Court on its progress in implementing this relief and plans for future steps
through the election;
G. Awarding plaintiff their costs, expenses, and reasonable attorneys’ fees pursuant
to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
H. Granting such other relief as the Court deems just and proper.
Respectfully submitted,
/s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Michelle M. Umberger Sopen B. Shah Brandon M. Lewis PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com MUmberger@perkinscoie.com SShah@perkinscoie.com BLewis@perkinscoie.com
Counsel for Plaintiffs in Case No. 20-cv-249-wmc
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, LEAGUE OF WOMEN VOTERS OF WISCONSIN, KATHERINE KOHLBECK, DIANE FERGOT, GARY FERGOT, BONIBET BAHR OLSAN, SHEILA JOZWIK, and GREGG JOZWIK,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

CHRYSTAL EDWARDS, TERRON EDWARDS, JOHN JACOBSON, CATHERINE COOPER, KILEIGH HANNAH, KRISTOPHER ROWE, KATIE ROWE, CHARLES DENNERT, JEAN ACKERMAN, WILLIAM LASKE, JAN GRAVELINE,

Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 2 of 71

TODD GRAVELINE, ANGELA WEST, DOUGLAS WEST, and all others similarly situated,

Plaintiffs,

v.

Case No. 20-cv-340-wmc

ROBIN VOS, SCOTT FITZGERALD, WISCONSIN STATE ASSEMBLY, WISCONSIN STATE SENATE, WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

______________________________________________________________________________

JILL SWENSON, MELODY McCURTIS, MARIA NELSON, BLACK LEADERS ORGANIZING FOR COMMUNITIES, DISABILITY RIGHTS WISCONSIN

Plaintiffs,

v.

Case No. 20-cv-459-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

MEMORANDUM IN SUPPORT OF GEAR v. BOSTELMANN, 20-CV-278, PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION AND SUMMARY The Covid-19 pandemic has changed the way we vote. Of the many concerns that voters might have had prior to March, their physical safety was not usually among them. Confronted with a highly lethal virus marked by asymptomatic and airborne transmission, in-person voting has become fraught with peril for voters at elevated risk from Covid-19. Even were the application of
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Covid-19 safety measures or compliance with public health guidance consistent, the evidence does not demonstrate that these countermeasures can make indoor places where people congregate substantially safe. With Covid-19 spreading exponentially once again, there is every reason to believe that the danger to voters will be real and substantial, if not greater than at present, when early voting for the November general election begins in a little over 100 days.
As a direct consequence of the pandemic’s onset, in the April 7 election, nearly 62 percent of Wisconsin’s electorate chose to vote by mail. This unprecedented demand for mail-in voting strained and then broke the systems by which absentee ballots are prepared and delivered to voters. At least thousands of voters, including six of the Plaintiffs in this action, never received their timely-requested ballots in the mail, due to administrative overload at municipal clerks’ offices, still-unexplained U.S. Postal Service (“USPS”) delivery failures, and even a software update glitch. Wisconsin’s municipal clerks’ offices were barely able to keep up with one million mail-in absentee ballot requests, even as they worked overtime and, in desperation, enlisted other city departments’ employees, as well as volunteers from Plaintiff League of Women Voters of Wisconsin (“LWVWI”). November will be the first time in over a century that Wisconsin has held an election during a global pandemic. If this year’s turnout is comparable to the level seen in the 2016 presidential election, the state will face 1.8 to 2 million mail-in absentee ballot requests for the November general election. That the Wisconsin Elections Commission (“WEC” or “the Commission”) has voted to mail absentee ballot applications and information on how to request an absentee ballot online to 2.7 million registered Wisconsin voters all but guarantees that.
Defendants, the WEC Commissioners, concede that they and their municipal clerks’ offices face a steep climb in processing the anticipated volume of mail-in ballot requests: “If voting patterns from April hold true, the state could see more than 1.8 million requests for absentee ballots by mail. This kind of volume would present terrific challenges for Wisconsin election officials at
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all levels.”1 Wisconsin election officials have made heroic efforts, but they are feeling the pressure and uncertain whether they have the resources, funding, tools, and staff necessary to timely complete this gargantuan task. Intervenor-Defendant the Wisconsin Legislature has done nothing since the April 7 election to remedy this problem. For its part, WEC has announced a few reforms, but, according to municipal clerks, these will not be sufficient to reduce the crushing administrative burden on their offices, let alone the USPS.
Fortunately, there are solutions to the problem of absentee ballot delivery failures. Indeed, Wisconsin’s election officials largely already have the tools and procedures to solve this problem; they just need to extend their availability from overseas civilian and military voters only to all regular Wisconsin voters who do not receive a requested absentee ballot in the mail on time. This extension, if ordered by this Court,2 will not require Defendants and municipal clerks to do something they have never done before; they need only offer existing alternative methods of replacement absentee ballot delivery to additional voters who face disenfranchisement. All three of these options would still require that the voter request a ballot by mail delivery in the first instance, and that the voted replacement ballot be mailed in or dropped off. This proposed remedy would simply give Plaintiffs other ways to access a blank mail-in absentee ballot and the certificate for the ballot envelope.
1 Sherman Decl., Ex. 1, Wisconsin Elections Commission, April 7, 2020 Absentee Voting Report (“Post-Election Absentee Voting Report”), at 12 (May 15, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/202005/April%202020%20Absentee%20Voting%20Report.pdf. 2 Once the U.S. Court of Appeals for the Seventh Circuit issues the mandate in Luft v. Evers, No. 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020), only overseas civilian and military voters will be able to use the alternative absentee ballot delivery methods proposed as relief in this case. That pre-pandemic case, of course, does not foreclose this lawsuit though because the former was premised merely on the alleged discriminatory treatment of regular voters, on the one hand, and overseas and military voters on the other. Id. at *7–8. That case predates the Covid-19 pandemic and, unlike this case, the record in Luft contained no epidemiological evidence related to the danger the pandemic poses to voters and how long that danger may persist.
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The best option is to extend the availability of the online access and download option through myvote.wi.gov from just overseas civilian and military voters to domestic civilian voters who do not timely receive a requested absentee ballot in the mail. This option would put a replacement mail-in ballot in the hands of voters who do not receive one in the mail and is significantly less burdensome for municipal clerks’ offices than mailing the replacement ballot. Crucially, because this means of absentee ballot preparation and delivery is fully automated, it would not require the WEC or municipal clerks to invent a new web portal or an entirely new process, but merely to enable all registered voters in the statewide voter registration WisVote system to use this preexisting option if they certify on the myvote.wi.gov (hereinafter, “MyVote”) portal3 that they have not received an absentee ballot in the mail and confirm the last four digits of their Social Security Number. The previously-requested mail-in ballot would be cancelled by the municipal clerk’s office. Because any regular absentee voter using this back-up option to obtain a replacement absentee ballot would have already submitted their photo ID, the required verification will have already taken place or can be fully automated. Wis. Stat. § 6.87(1).
The next best option for voters to receive a replacement mail-in absentee ballot is email delivery. When a voter contacts a municipal clerk’s office to inform them that they have not received a ballot in the mail, staff members typically seek to mail out a replacement ballot, even if Election Day is less than a week away, or to inform voters of in-person voting options before and on Election Day. Up until the Seventh Circuit’s decision last week, email delivery was an option, though it was discretionary for clerks to offer it and only offered sporadically across and within municipalities. This absentee ballot delivery option was extended to all regular absentee voters in
3 “MyVote . . . is just kind of . . . the pretty face of WisVote. . . . WisVote is where all the data is, where everything happens, is created. MyVote is just the user interface for voters to be able to interact with that data.” Sherman Decl, Ex. 2, Deposition of Meagan Wolfe Transcript (July 3, 2020) (“Wolfe Tr.”) at 147:11-16.
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2016 by the district court’s opinion in One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896, 946 (W.D. Wis. 2016), and that availability to all absentee voters will continue until the Seventh Circuit issues the mandate reversing that part of the decision. But Wisconsin does have experience with this method of absentee ballot delivery. In the 2016 presidential election, 9,619 mail-in absentee ballots were delivered by email to voters without incident. That comprised about 5 percent of the 178,996 mail-in ballots delivered to absentee voters statewide.4
The final fail-safe option that this Court could afford to regular absentee voters who do not receive a requested ballot in the mail is the Federal Write-In Absentee Ballot (“FWAB”). Wisconsin already accepts and processes the FWAB for overseas civilian and military voters, even if they have not previously requested a ballot be delivered by mail. Sherman Decl, Ex. 2, Wolfe Tr. at 185:4-186:12. This is the only option that does not give the voter an official absentee ballot with all the offices and candidates listed, but at least it would permit voters to download a fail-safe ballot that they can use to write in their choices.
All of these measures are last, not first, resorts. To cure the constitutional and federal law violations identified by Plaintiffs, Defendants would only need to make these alternatives available to voters who have previously requested a mail-in absentee ballot, and only in the last week or even just the last few days before Election Day. These limitations on the relief will ensure it is used only as a last resort and keep the numbers of voters exercising these fail-safe options manageable. Defendants may argue that these measures increase election officials’ burdens and costs, but any administrative burden on the back end when these ballots are received is far outweighed by the reduced burden on the front end when clerks will struggle to mail out replacement ballots while conducting in-person absentee voting and preparing for Election Day,
4 Sherman Decl., Ex. 3, Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397.
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and by the voters’ interest in casting a ballot safely. They may argue that in-person voting is safe, but voting in a confined space with other people cannot be made anywhere near as safe as voting by mail—no matter what precautions are taken—and many voters are at heightened risk of complications and death from Covid-19. Finally, all of these fail-safe measures will alleviate the strain on early voting and Election Day polling sites, which in turn will have cascading benefits for election administrators and voters alike.
Finally, the Organizational Plaintiffs LWVWI and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) seek to enjoin the witness requirement. This requirement has such minimal value to law enforcement that it cannot justify forcing voters at high risk from Covid19 to take unreasonable steps to secure a witness. Enforcing this law during a pandemic in turn compels LWVWI and Wisconsin Alliance to divert resources and time from their core missions to educate and help voters comply with this requirement. There are alternatives, some suggested by the Seventh Circuit panel in April, and they can and should be ordered as alternatives for voters.
Plaintiffs meet each of the requirements for entry of a preliminary injunction, and respectfully request that this injunction be issued as to the November general election.
LEGAL STANDARD Under Federal Rule of Civil Procedure 65(b), a court may issue a temporary restraining order without notice to Defendants if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b). “Where the adverse party has received notice of a motion for a temporary restraining order and a hearing has been held on the motion, it is proper for the court to consider the motion as one for a preliminary injunction.” Milwaukee Cty. Pavers Ass’n v. Fielder, 707 F. Supp. 1016, 1018 n.3 (W.D. Wis. 1989); see also Planned Parenthood of Wis., Inc. v. Van Hollen, 963 F. Supp. 2d 858, 865 (W.D. Wis. 2013).
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“[T]he same showing is required to obtain either” a temporary restraining order or a preliminary injunction. Van Hollen, 963 F. Supp. 2d at 865 (citing Winnig v. Sellen, 731 F. Supp. 2d 855, 857 (W.D. Wis. 2011)). “‘To win a preliminary injunction, a party must show that it has (1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.’” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011)). “If the moving party makes this threshold showing, the court ‘weighs the factors against one another, assessing whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.’” Id. (quoting Ezell, 651 F.3d at 694). This Court “applies a sliding scale in weighing whether preliminary relief is warranted.” Van Hollen, 963 F. Supp. 2d at 864. “[T]he more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009).
ARGUMENT I. Plaintiffs have standing to bring their claims.
Article III standing consists of three elements: an injury in fact, traceability, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Under the Supreme Court’s decision in Havens Realty Corp. v. Coleman, an organization has standing, and has demonstrated an injury in fact, when a defendant’s actions impede the organization’s efforts to carry out its mission and cause a “consequent drain on the organization’s resources.” 455 U.S. 363, 379 (1982); Common Cause Indiana v. Lawson, 937 F.3d 944, 952 (7th Cir. 2019) (holding voter advocacy organizations had standing where organizational missions would be thwarted and need to combat confusion would displace other projects normally undertaken, and agreeing with sister
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circuits which “ upheld the standing of voter-advocacy organizations that challenged election laws…[and] demonstrated the necessary injury in fact in the form of the unwanted demands on their resources.”)
a. Absentee ballot delivery failures i. Injury in fact 1. The Covid-19 Pandemic
The individual Plaintiffs in this action would face a severe risk to their physical health and lives if they were forced to vote in person. This risk is a concrete and imminent injury for the purposes of their undue burden claim. See, e.g., Thomas v. Andino, No. 3:20-CV-01552-JMC, 2020 WL 2617329, at *21 (D.S.C. May 25, 2020) (“Thomas/Middleton Plaintiffs are likely to prevail on their constitutional challenge to [the voting requirement] under the Anderson-Burdick balancing test because the character and magnitude of the burdens imposed on Thomas/Middleton Plaintiffs in having to place their health at risk during the COVID-19 pandemic likely outweigh the extent to which [the voting requirement] advances the state’s interests of voter fraud and integrity.”); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 (11th Cir. 2019) (noting that “Florida’s signature-match scheme subjects vote-by-mail and provisional electors to the risk of disenfranchisement”) (emphasis added).
The threat of airborne transmission of SARS-CoV-2, the virus that causes Covid-19, in indoor settings where people congregate, like a polling place, is real, substantial, and not meaningfully mitigated by any of the available protective measures. Murray Decl. ¶¶ 6-20, 32-44. The risk of in-person voting facilitating the transmission of Covid-19 was on full display after the April 7 election in Wisconsin. As Dr. Murray concludes after analyzing several studies on the postelection Covid-19 transmission dynamics, “despite labor-intensive and costly efforts to maintain the safety of in-person voting during the [April 7] Wisconsin election, a rigorous study provides
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support for the contention that this election increased Covid-19 transmission.” Id. ¶ 65; see also id. ¶¶ 60-65. And COVID-19 continues to spread at an unprecedented pace within the United States and in Wisconsin. There are currently more than 3 million confirmed cases in the United States, and there have been 131,285 deaths nationwide.5 As of the early morning of July 8, 2020, the Wisconsin Department of Health Services had confirmed 32,556 positive cases of coronavirus in Wisconsin, 3,639 hospitalizations, and 805 deaths.6
COVID-19 appears to be much more contagious than other respiratory illnesses, in significant part because of its capacity for asymptomatic transmission, and highly lethal, particularly for people with underlying health conditions or comorbidities that put them at severe risk of complications or death. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from Covid-19 if they are 65 years old or older or have underlying health conditions and diseases, including Chronic kidney disease, COPD (chronic obstructive pulmonary disease), immunocompromised state (weakened immune system) from solid organ transplant, obesity (body mass index [BMI] of 40 or higher), serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies, sickle cell disease, and Type 2 diabetes mellitus.7 The CDC also notes that individuals with the following conditions or diseases may be at increased risk from Covid-19: asthma (moderate to severe), cerebrovascular disease (affects blood vessels and blood supply to the brain), cystic fibrosis, hypertension or high blood pressure, immunocompromised state
5 Sherman Decl., Ex. 4, Mitch Smith et al, Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last accessed July 8, 2020). 6 Sherman Decl., Ex. 5, Wisconsin Department of Health Services, COVID-19: Wisconsin Summary Data, https://www.dhs.wisconsin.gov/outbreaks/index.htm (last accessed July 8, 2020). 7 Sherman Decl., Ex. 6, CDC, Coronavirus Disease 2019 (COVID-19), People of Any Age with Underlying Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last updated June 25, 2020).
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(weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines, neurologic conditions, such as dementia, liver disease, pregnancy, pulmonary fibrosis (having damaged or scarred lung tissues), smoking, thalassemia (a type of blood disorder), and Type 1 diabetes mellitus.8 See also Murray Decl. ¶¶ 6-13, 28, 79-81.
This virus spreads through respiratory droplets that are attached to the surfaces of objects or are suspended in air and transmitted via inhalation and “emitted during coughs, sneezes or even talking.” Id. ¶¶ 8-13. Since it can be transmitted “by symptomatic and asymptomatic people” alike, individuals can spread the disease before realizing they are infected and self-quarantining. Id. ¶¶ 8-9, 32-33, 42. The CDC has also warned that asymptomatic COVID-19-positive individuals can transmit the disease to others.9 As a result, voters can spread the disease at a polling place before they even realize they are infected.
Though Covid-19 typically begins with “a flu-like illness that starts out with fever, cough, sore throat and shortness of breath,” some people “develop much more serious illness, characterized by respiratory compromise due to pneumonia that can be gradual or sudden.” Murray Decl. ¶¶ 6, 21, 22. The major complication in patients with severe disease is acute respiratory distress syndrome (“ARDS”), which commonly requires patients to be put on a ventilator. Id. ¶¶ 7, 23. People who develop severe complications and require mechanical ventilation to survive ARDS “are likely to develop lung scarring that may permanently impair their pulmonary function” or, in the case of stroke, “long term neurological deficits from these events.” Id. ¶¶ 7, 26. In critical cases, Covid-19 can be fatal. Murray Decl. ¶¶ 27-31. Infections are more common in people

8 Id.

9 Sherman Decl., Ex. 7, Coronavirus 2019 (COVID-19): How to Prepare, CTRS. FOR DISEASE

CONTROL

&

PREVENTION,

https://www.cdc.gov/coronavirus/2019-

ncov/prepare/transmission.html (last updated Mar. 4, 2020).

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younger than 50. Murray Decl. ¶ 31. Even young individuals, including children, are at risk of severe complications and death from COVID-19. Murray Decl. ¶¶ 24-25. In fact, because 66 percent of the U.S. population is under 50, Dr. Murray notes that “deaths among people under 50 will not be uncommon as the epidemic progresses over time.” Murray Decl. ¶ 31.
It is highly likely that COVID-19 will continue to circulate at its current level or at an even higher level in October and November of 2020. Id. ¶¶ 10, 66. The COVID-19 pandemic is expected to produce steady or increased transmission in the United States through the fall, as voters seek to cast their ballots on or before Election Day. Dr. Megan Murray notes in her declaration that within the range of different possible scenarios for COVID-19 epidemic trajectories, “all of these scenarios are similar in that they predict that it is highly likely that Covid-19 will continue to circulate at its current level or at an even higher level than currently in October and November of 2020.” Murray Decl. ¶ 66. Likewise, Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable,” and CDC Director Robert Redfield has said that wave may “be even more difficult than the one we just went through.”10 In his recent testimony to Congress, Dr. Redfield stated: “I want to make it clear we are going to experience significant coronavirus infection in the fall and winter of 2020.”11
10 Sherman Decl., Ex. 8, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Mar. 25, 2020), at 84, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-presidentpence-members-coronavirus-task-force-press-briefing-11/; Sherman Decl., Ex. 9, H. Rept. 116420, Authorizing Remote Voting by Proxy in the House of Representatives and Providing for Official Remote Committee Proceedings During a Public Health Emergency Due to a Novel Coronavirus, and For Other Purposes, at 7, https://www.congress.gov/congressional-report/116thcongress/house-report/420/1. 11 Sherman Decl., Ex. 10, House Committee on Energy and Commerce, Oversight of the Trump Administration's Response to the COVID-19 Pandemic, 3:54:02, YOUTUBE (June 23, 2020), https://www.youtube.com/watch?v=TX-x9tAmx6Q.
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While seasonal changes as to temperature and humidity may or may not ultimately have a significant impact on Covid-19’s transmission, the risk of transmission in the fall and winter will track “differences in the ways people congregate,” as “people tend to spend more time indoors with less ventilation and less personal space than they do in the summer.” Murray Decl. ¶ 72. With additional contacts, particularly in indoor settings, comes increased risk of infection. Murray Decl. ¶¶ 58, 71-72. Based on studies of previous influenza epidemics, Dr. Murray notes that the “most likely scenario” is that “the current first wave of Covid-19 will be followed by a larger wave in the fall or winter of 2020 and one or more smaller subsequent waves in 2021,” and that “most epidemiologists expect that incidence will increase in the fall/winter months of 2020-2021.” Id. ¶¶ 74-75. “In the period prior to the widespread use of an effective vaccine, this spread will continue to lead to serious disease and death in at-risk groups.” Id. ¶ 77. Progress towards herd immunity and vaccine development and production are unlikely to advance sufficiently quickly to significantly alter the trajectory of the COVID-19 outbreak. Id. ¶¶ 68, 82-83.. Finally, there are no known pharmaceutical treatments that substantially reduce the danger of Covid-19. Id. ¶¶ 9, 43, 85.
According to Dr. Murray’s report, “There is a substantial risk that an infection with Covid19 acquired during voting at a poll place in Wisconsin in the fall of 2020 could result in symptomatic disease, hospitalization or death.” That is because “[t]o the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, move people through the process slowly, are poorly ventilated and/or involve people touching objects like pens, paper, or surfaces within the voting booth, they constitute a risk to voters.” Murray Decl. ¶¶ 11, 47. Despite precautions taken during the April 7, 2020 election to protect in-person voters, “the Wisconsin department of health services detected 71 cases that they consider may have resulted from in-person voting, and a recent study found that counties with
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higher than average in person voting had twice the rate of Covid-19 positive tests in the weeks that followed the election.” Murray Decl. ¶¶ 13, 65.
A Kaiser Family Foundation analysis found that “37% of adults over age 18 in Wisconsin are at risk for serious disease with older adults making up 59% of those at high risk.” Murray Decl. ¶ 81.
2. Mail-in Absentee Ballot Delivery Failures During the April 7 Election
The threat of contracting COVID-19, particularly in confined spaces like polling sites and the long lines of voters who waited for their turn to access them on April 7, along with the precipitous reduction in election administration resources (including poll workers) for in-person voting both on and before Election Day, have forced a seismic shift towards mail-in absentee voting in Wisconsin. Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 3-6; Plaintiffs’ Proposed Findings of Fact (“PPFOF”) Nos. 1-2, 7-9, 25. According to the WEC’s “PostElection Absentee Voting Report,” mail-in absentee ballots have been cast by 4.8 to 8.1 percent of voters in spring and fall general elections going back to the 2016 fall general election, but in the April 7, 2020 election, they comprised a stunning 61.8 percent of votes cast.12 In that election, voters submitted an unprecedented total of 1,239,611 absentee ballot requests to municipal clerks, clerks issued 1,282,097 absentee ballots (which, of course, includes replacement ballots), and voters returned 1,157,599 of those ballots, or 73.2 percent of the total turnout in the election, 1,555,263.13 Only a fraction of these were in-person absentee ballots, as 964,433 or 83.3 percent of the 1,157,599 absentee ballots were mail-in absentee ballots.14 Based on these figures, 42,486
12 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 6 (Table 4). 13 Sherman Decl., Ex. 11, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862; see Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 4 (Table 2), 5 (Table 3). 14 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 4 (Table 1).
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of the mail-in absentee ballots were replacement ballots, many chasing previously-requested ballots that were delayed or lost in the mail, and 124,498 mail-in absentee ballots were ultimately never returned.15
Notwithstanding municipal clerks’ heroic efforts to prepare and mail out an unprecedented volume of absentee ballots, voters in the April 7th election faced a systemic and catastrophic failure to timely prepare and deliver absentee ballots by mail. Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 13-20. The total number of voters disenfranchised in this way is unknown, but as recounted by Defendants in their Post-Election Absentee Voting Report, at least several thousand voters never received their ballots in the mail. PPFOF Nos. ; Sherman Decl., Ex. 2, Wolfe Tr. at 88:1-4 (noting Post-Election Absentee Voting Report does not include all absentee ballot delivery failures, just those that rose “to the level of a trend”). According to Defendants’ own rolling absentee ballot reports, as of the morning of April 7, the last day to postmark a ballot for delivery or drop it off, it appears that 9,388 ballots had not yet been mailed out.16 Some voters received their ballots too late to cast and deliver or postmark them by April 7th, Ackerbauer Decl. ¶ 11, Thompson Decl. ¶¶ 5, 7, while some voters never received them at all, even weeks or months later. Kohlbeck Decl. ¶ 9; Diane Fergot Decl. ¶ 7; Gary Fergot Decl. ¶ 7; Bahr Olsan Decl. ¶ 6; Sheila Jozwik Decl. ¶ 7; Gregg Jozwik Decl. ¶ 7; Harrell Decl. ¶ 5; Krejci Decl. ¶ 7; Lohrenz Decl. ¶ 5; Newby Decl. ¶ 5; Wood Decl. ¶ 6. Absent any fail-safe alternatives for these voters who diligently and timely requested absentee ballots, their remaining options were to play Russian roulette with their health at the polls or lose their right to vote. Kohlbeck Decl. ¶ 9; Diane Fergot Decl. ¶ 7; Gary Fergot Decl. ¶ 7; Bahr Olsan Decl. ¶ 8; Sheila Jozwik Decl. ¶ 8; Gregg Jozwik
15 Sherman Decl. Ex. 11, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862. 16 Sherman Decl., Ex. 12, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 7, 2020 at 7:30 a.m.), https://elections.wi.gov/node/6825.
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Decl. ¶ 8; Harrell Decl. ¶ 8; Krejci Decl. ¶ 8; Lohrenz Decl. ¶ 9; Newby Decl. ¶ 8; Thompson Decl. ¶ 6; Wood Decl. ¶ 6.
This debacle was fueled by the Legislature’s and Governor’s inaction, Defendants’, municipal clerks’, and the USPS’s systemic administrative incapacity to meet the demand for absentee ballots in a timely manner, flaws or weaknesses in Defendants’ computer systems and database management, and the burdens of enforcing Wisconsin’s myriad legal requirements, such as the photo ID requirement for absentee voters and the mandatory 24-hour turn-around for mailing out ballots. PPFOF Nos. 28-73. All of these factors made it extremely difficult to process and deliver so many ballots to voters. As Defendants put it in their post-mortem report, “The most fundamental challenge faced by election officials was simply meeting the unprecedented demand.”17 That same report notes that:
Absentee voting remains a largely manual, labor-intensive process administered by each individual jurisdiction across the state. While voters can request a ballot and upload a photo ID on their smart phone in just a few minutes, behind the scenes clerks must still manually verify the IDs, stuff and seal envelopes by hand, apply postage, carry boxes of envelopes to the post office, and physically check off each request. . . . When mail volume is up to ten times higher than anticipated, clerks must complete the same tasks without the benefit of having more staff, additional supplies or more hours to meet statutory deadlines.18 Given the complex and labor-intensive procedures for processing and mailing out absentee ballots, Wisconsin election offices are simply not adequately staffed or funded to cope with an unprecedented shift to mail-in absentee voting by the majority of the electorate. Given these circumstances and the meager funding received from Congress, it is far more likely than not that Wisconsin election officials will remain unable to satisfy a much greater demand for mail-in absentee ballots in the fall.
17 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 13. 18 Id. at 3.
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The April 7, 2020 election set the record for most mail-in ballots ever cast in any Wisconsin election ever.19 The Commission reports that “[a]s the enormous quantity of absentee ballots began entering the mail system, voters began asking more questions and expressing concerns about ballot deliveries. With nearly six times more ballots in circulation, the number of complaints and concerns increased by a similar amount. Some voters also reported not receiving their absentee ballots . . . .”20 Voters who requested their mail-in absentee ballots weeks in advance of April 7th, such as Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and Gregg Jozwik, as well as Declarants Michele Harrell, Marina Krejci, Megan Lohrenz, Halee Newby, and Christopher Wood, never received their ballots in the mail, even after Election Day. Kohlbeck Decl. ¶ 9; Diane Fergot Decl. ¶ 7; Gary Fergot Decl. ¶ 7; Bahr Olsan Decl. ¶ 6; Sheila Jozwik Decl. ¶ 7; Gregg Jozwik Decl. ¶ 7; Harrell Decl. ¶ 5; Krejci Decl. ¶ 7; Lohrenz Decl. ¶ 5; Newby Decl. ¶ 5; Wood Decl. ¶ 6. All of these Plaintiffs and Declarants were in Wisconsin at the time of the election and requested the ballots be mailed to their residential addresses. Kohlbeck Decl. ¶¶ 5, 9; Diane Fergot Decl. ¶¶ 5-6; Gary Fergot Decl. ¶¶ 5-6; Bahr Olsan Decl. ¶ 6; Sheila Jozwik Decl. ¶ 4; Gregg Jozwik Decl. ¶ 4; Ackerbauer Decl. ¶ 8; Harrell Decl. ¶ 5; Lohrenz Decl. ¶ 6; Newby Decl. ¶ 6; Krejci Decl. ¶ 7; Thompson Decl. ¶ 6; Wood Decl. ¶ 6. Many voters like Plaintiffs Katherine Kohlbeck, Diane Fergot, and Gary Fergot, as well as Declarants Diane Ackerbauer, Michele Harrell, Megan Lohrenz, and Halee Newby, contacted their municipal clerks’ offices to inquire about their missing absentee ballots, all to no avail. Kohlbeck Decl. ¶ 8; Diane Fergot Decl. ¶ 6; Gary Fergot Decl. ¶ 6; Ackerbauer Decl. ¶ 8; Harrell Decl. ¶ 5; Lohrenz Decl. ¶ 6; Newby Decl. ¶ 6. Others believed they would arrive by Election Day, allowing them time to
19 Id. 20 Id. at 12.
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vote the ballots and postmark or drop them off. Bahr Olsan Decl. ¶ 7; Sheila Jozwik Decl. ¶ 7; Gregg Jozwik Decl. ¶ 7; Krejci Decl. ¶ 7; Thompson Decl. ¶ 6; Wood Decl. ¶ 6.
The Commission has released a report on absentee voting in the April 7, 2020 election, which recounts the multifarious and alarming failures to put absentee ballots in voters’ hands. “Oshkosh and other Fox Valley communities all reported voters complaining that their ballots were arriving late or not arriving at all,” but Defendants could not ascertain why this had occurred.21 The day after the election, USPS notified WEC that it had found three tubs of approximately 1,600 absentee ballots destined for Appleton and Oshkosh; no explanation was given, and none has been discovered or provided since then.22 Sherman Decl., Ex. 2, Wolfe Tr. at 89:20-91:19; 95:9-95:18; 127:11-22. In the Village of Fox Point, USPS bizarrely and repeatedly returned absentee ballots to the clerk’s office without explanation as to any defect precluding delivery, culminating in the return of 100 to 150 returned ballots per day in the week leading up to Election Day and 175 returned in a plastic mail bin on Election Day.23 The WEC’s report notes that “[r]esidents who did not receive an absentee ballot in the mail were advised to vote in person at their polling place on Election Day,” but that was not a viable, safe option for at-risk voters.24 USPS was also unable to explain what happened in Fox Point. Sherman Decl., Ex. 2, Wolfe Tr. at 93:15-94:18; 127:19-22. WEC’s Administrator Meagan Wolfe has testified that she had “significant concerns” with these USPS problems. Sherman Decl., Ex. 2, Wolfe Tr. at 89:10-15.
21 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 16. 22 Id. at 16. 23 Id. at 16-17. In response to these inexplicable failures, both of Wisconsin’s U.S. Senators called upon the Inspector General of the U.S. Postal Service to investigate “absentee ballots not being delivered in a timely manner.” See Sherman Decl., Ex. 13, Letter from Senators Tammy Baldwin and Ron Johnson to U.S. Postal Service Inspector General (Apr. 9, 2020), https://www.ronjohnson.senate.gov/public/_cache/files/9485956c-0c16-4f38-9be0f8d45e926aac/baldwin-johnson-letter-to-usps-ig-on-wisconsin-absentee-ballots.pdf. 24 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 16-17.
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Finally, in Milwaukee, on March 22, 2020, as a result of human and computer error or delay, “2,693 requested ballots were never sent to City of Milwaukee residents. Of the affected voters, 52.5% voted in the election either on a replacement absentee ballot or at the polls on election day.”25 This shocking incident therefore disenfranchised approximately 1,279 voters, who lost their right to vote through no fault of their own. They had timely requested their ballots more than two weeks before Election Day and, with no other alternatives for ballot delivery likely known to them, watched the days elapse and finally Election Day go by without receiving an absentee ballot in the mail.
If the preceding narrative shows the level of ballot delivery failures and disenfranchisement when a total of 1,555,263 of Wisconsin’s voters—less than half of all registered voters—turn out to vote,26 it is inevitable that the state’s 1,850 municipal clerks’ offices, see Sherman Decl., Ex. 2, Wolfe Tr. at 152:7-8, will not be able to handle nearly double that volume of absentee ballot requests in a timely fashion for the November 3, 2020 general election. Wisconsin had 3,406,952 registered voters as of July 1, 2020.27 In 2016, 2,976,150 voters cast ballots for President.28 If the same number of voters who voted in the 2016 presidential election vote in the fall general election, and, as in the April 7 election, 61.8 percent of those ballots cast are mail-in absentee ballots, municipal clerks will need to process a minimum of 1,839,260 absentee ballot requests and

25 Id. at 19-20.

26 Sherman Decl., Ex. 14, Wisconsin Elections Commission, Canvass Results for 2020 Spring

Election

and

Presidential

Preference

Vote,

https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results%20Summary_spring%2

0election%20all%20contests_4_7_2020.pdf; Sherman Decl., Ex. O, Wisconsin Elections

Commission, July 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6948.

27 Sherman Decl., Ex. 15, Wisconsin Elections Commission, July 1, 2020 Voter Registration

Statistics, https://elections.wi.gov/node/6948.

28 Sherman Decl., Ex. 16, Wisconsin Elections Commission, Canvass Results for 2016 General

Election,

https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20Offices%20

%28post-Presidential%20recount%29.pdf.

19

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successfully deliver the same number by mail. Assuming the 1 to 1.129 ratio of returned mail-in ballots to total issued mail-in absentee ballots holds from the April 7 election, then clerks will need to process over 2 million mail-in absentee ballot requests and issue the same number of ballots this fall.29 This stands in stark contrast to the 2016 fall general election, in which just 162,445 absentee ballots were returned by mail and other means such as special voting deputies (excluding in-person absentee voting), and which constitutes about one-sixth of the total such ballots cast in the April 7 election and just 8.83 percent of the projected total for the 2020 fall general election.30 All but guaranteeing another unprecedented surge in absentee voting, Defendants have voted to send absentee ballot request forms to approximately 2.7 million registered Wisconsin voters, excluding the who have already requested absentee ballots and those on the Electronic Registration Information Center’s “movers” list because they are suspected of moving to a different municipality or state.31
Further, many of these requests are submitted in the final days before the deadline, when municipal clerks’ offices will be busy conducting in-person absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week prior to April 7. Clerks received over 60,000 requests alone on the Friday before election day. Even if all these requests were mailed on Saturday, it is unknown how long those ballots took to reach voters.”32 With significant USPS
29 This calculation assumes that all or almost all in-person absentee ballots are returned. 30 Sherman Decl., Ex. 3, Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397; Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 4. 31 Sherman Decl., Ex. 17, Wisconsin Elections Commission, Meeting Agenda, Memorandum re: Voter Mailing Proposal and Mailer (June 10, 2020), at 145-50, https://elections.wi.gov/sites/elections.wi.gov/files/202006/Open%20Session%206.10.2020.Final_.pdf; Sherman Decl., Ex. 2, Wolfe Tr. at 27:2-7; Sherman Decl., Ex. 18, Wisconsin Elections Commission, Notice of Open Meeting, Wisconsin Elections Commission Special Teleconference-Only Meeting (May 27, 2020), at 8. 32 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 17.
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delays, it is likely that a substantial portion did not arrive in time for voters to cast them. Furthermore, 80,593 requests were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot.33 See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). The overwhelming majority of these 289,168 requests, which municipal clerks received on just those four days alone, were requests for mail-in absentee ballots, which by law must be mailed out to voters within a day of receiving them. Wis. Stat. § 7.15(1)(cm).
Wisconsin election officials at the state and local level will not be able to handle such an enormous increase in mail-in absentee ballot requests. The WEC Defendants seem to concur with this assessment: “If voting patterns from April hold true, the state could see more than 1.8 million requests for absentee ballots by mail. This kind of volume would present terrific challenges for Wisconsin election officials at all levels.”34 In her declaration, Madison City Clerk Maribeth Witzel-Behl describes an incredibly “challenging” situation, with her staff “work[ing] around the clock, including on weekends, struggling to meet the unprecedented demand for mail-in absentee ballots.” Witzel-Behl Decl. ¶ 3. She explains that they
were barely able to send all these requested ballots out, and it took all of the city’s resources, as well as volunteer help, to accomplish this. Absentee ballot request processing and data entry were handled by my full-time and part-time staff, with just a few other trained employees from the city’s Planning and Library departments. Other City of Madison municipal departments’ employees worked on absentee ballot mailings, specifically the manual work of affixing labels and mailing out the ballots. The staff and other departments’ employees worked over the weekend to complete these mailings and were compelled to rely on outside help from League of Women Voters of Dane County volunteers. For the April 7 election, we had over 100 city employees from other departments helping us; now we only have 7 available to us. Id. Ms. Witzel-Behl notes that the city clerk’s office was barely able to meet its obligation to mail ballots within 24 hours of receiving the request under Wis. Stat. § 7.15(1)(cm), and the backlog
33 Id. 34 Id. at 12.
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grew “as high as 12,000 absentee requests” but was ultimately cleared. Id. ¶ 4. Unfortunately, however, notwithstanding all of their efforts, their office still “received thousands of calls and emails from voters in Madison informing us that they had never received their requested absentee ballot in the mail” and still “sent thousands of replacement ballots to such voters in the weeks before the election.” Id. Ms. Witzel-Behl adds that “most of the voters who called [her] office in late March and early April had been waiting over a week since their ballot had been placed in the mail, and it had not yet been delivered.” Id. Shockingly, she also notes that her office is still “receiving ballots back from the Post Office, marked as undeliverable,” some twelve weeks after the April 7 election ended. Id.
Racine was similarly inundated. The City Clerk Tara Coolidge notes that: “In previous election years, my office typically received about 1,500 requests for absentee ballots, per election. For the April 7 election, we received 11,083 timely requests for absentee ballots, meaning they were requested by the Friday before election day.” Coolidge Decl. ¶ 3. Ms. Coolidge explains that:
In order to meet the demand for processing absentee ballots for the April 7 election, I had to recruit approximately 40 City employees from other departments to assist my staff in the days and weeks leading up to the election, including nights and weekends. At this time, I do not know how many other City employees will be available to assist with the August and November elections. This does not include the additional number of workers needed to process absentee ballots at the polls on Election Day, many of whom were members of the National Guard, who may or may not be required to assist with the August and November elections. Id. ¶ 6. For November, Ms. Coolidge makes clear that “[i]n order to timely process these requests, I will again need additional assistance from members outside of my office.” Id. ¶ 7. She also notes that many ballots arrived too late to be counted: “[h]undreds of ballots were returned to my office after the deadline, none of which could be processed.” Id. Despite processing all of the absentee ballot requests, Ms. Coolidge notes that “[i]n the days and weeks leading up to the April 7 election, my office received hundreds of phone calls, emails and text messages from voters complaining
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that they never received their absentee ballots as requested. It is unclear how many of those people eventually received their ballots, returned them, or went to the polls to vote in person.” Id. ¶ 4.
For Kenosha, former City Clerk-Treasurer Debra Salas notes that her office depended upon “roughly fifteen City of Kenosha municipal employees from the Libraries, Museums and Parks Departments” and “[a]pproximately 3 to 4 poll workers . . . each day” to process the onslaught of absentee ballots. Salas Decl. ¶ 4. This of course detracted from the city clerk’s office’s other duties and responsibilities. Id. It even detracted from in-person absentee voting and Election Day planning. Id. (“Due to the volume of absentee ballot requests and the Covid-19 precautions we were taking, in-person absentee voting was limited to the two weeks before the election by appointment only during a limited number of hours from 7:00 a.m. to 9:00 a.m.”); id. ¶ 5. She underscores that for the November election “the City Clerk/Treasurer’s office will need to hire and train substantially more people than were involved in the April 7 election.” Id. ¶ 4.
The above narratives of the clerks April 7 election difficulties are consistent with what the Commission reported:
Nearly every community experienced unprecedented absentee request volume, and many hired temporary staff to cope with demand. Many small and medium size jurisdictions learned to use WisVote absentee batch processing tools for the first time, having never previously needed any automation assistance to manage their workload. Larger cities, while used to higher volumes, were forced to work around the clock and conduct much larger batch mailings then [sic] previously experienced. For all jurisdictions, the statutory requirement to mail ballots within 24 hours of receiving a request presented a significant challenge.35
3. November 2020 General Election On June 25, 2020, the WEC Defendants submitted a status report outlining the various measures they are taking in advance of the August and November elections. 20-cv-249, dkt. 227. Only a few of these proposed or ongoing reforms can have any impact on the administrative
35 See Sherman Decl., Ex. 1, Post-Election Absentee Voting Report, at 13.
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burdens of absentee ballot preparation, data entry, and delivery. They include: (1) funding to municipal clerks through subgrants for additional staffing for processing higher levels of absentee ballots, id. at 5; (2) a still-developing plan to modify the state’s voter information database, WisVote, “to identify which method of processing absentee ballot requests, ballot records, and absentee address labels is best in managing high volumes of requests, and [to] train exclusively on this method,” id. a 9; and (3) a further WisVote modification “to implement additional tracing procedures and audit tools in WisVote to enable early detection of issues that could occur during the high volume of absentee ballot request processing,” id. Defendants expressly disclaim that intelligent mail barcodes (“IMBs”) will have a meaningful impact on the burden of processing and mailing so many ballots: “Use of IMBs will not change the preparation of absentee ballots in any significant way, but they will allow for more precise population of tracking information in WisVote/MyVoteWI.” Id. at 6.
Additional funding, a single common procedure for absentee ballot processing, and better visibility on potential WisVote problems notwithstanding, Defendants cannot guarantee that the labor-intensive tasks of processing over 2 million absentee ballot requests, entering data in WisVote, verifying photo IDs, printing labels, affixing these labels, and then mailing the ballots and certificate envelopes off will not once again cause the system to break down. Defendants also cannot guarantee that USPS will timely deliver ballots to absentee voters. Indeed, WEC Administrator Wolfe has testified that she does not know what, if any, steps USPS is or will be taking to address its past failures to deliver absentee ballots on time or at all in Wisconsin. Sherman Decl., Ex. 2, Wolfe Tr. at 101:2-5. None of Defendants’ proposals for new data entry procedures, tracking tools, and other measures can cure this shortfall in resources and staff. When WEC states the coming onslaught will pose “terrific challenges for Wisconsin election officials at all levels,”36
36 Id. at 12.
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this is not a statement of confidence; it is a statement of trepidation—that, even if municipal clerks marshal all city employees, resources, and efforts, they still will not be able to process and mail absentee ballots in a timely manner. Given that nearly 300,000 ballot requests came in over the course of the last four days before the deadline, the concern that they may not be able to fulfill their obligations under Wisconsin law is understandable.
Madison City Clerk Ms. Witzel-Behl states that her office “has not been given the resources and money necessary to meet the anticipated demand for mail-in absentee ballots in November” and that “with other departments going back to work, [her] staff now only has a few dozen League of Women Voters volunteers available to help.” Witzehl-Behl Decl. ¶ 6. With respect to IMBs, she states that “better tracking of ballots with anticipated delivery dates listed on myvote.wi.gov can only do so much to alleviate the burden on [her] staff. Although we anticipate that the intelligent bar codes may reduce the number of telephone inquiries we receive, this will not make it easier to process a massive volume of absentee ballot requests—according to the WEC, an estimated 1.8 million statewide.” Id.; Salas Decl. ¶ 8.
Absentee ballot delivery failures were experienced by voters statewide, including Plaintiffs. Even without comprehensive statewide data, the record shows that voters did not receive their absentee ballots on time, or at all, in many Wisconsin municipalities, including Fox Point, Oshkosh, Appleton, Milwaukee, Brookfield, and Sun Prairie. Diane Fergot Decl. ¶¶ 1, 7 (Oshkosh); Gary Fergot Decl. ¶¶ 1, 7 (Oshkosh); Harrell Decl. ¶¶ 1, 5 (Oshkosh); Bahr Olsan Decl. ¶¶ 1, 5 (Appleton); Kohlbeck Decl. ¶¶ 1, 5 (Milwaukee); Krejci Decl. ¶¶ 1, 6 (Milwaukee); Lohrenz Decl. ¶¶ 1, 5 (Milwaukee); Newby Decl. ¶¶ 1, 5 (Milwaukee); Thompson Decl. ¶¶ 1, 5 (Milwaukee); Wood Decl. ¶¶ 1, 6 (Milwaukee); Greg Jozwik Decl. ¶¶ 1, 7 (Brookfield); Sheila Jozwik Decl. ¶¶ 1, 7 (Brookfield); Ackerbauer Decl. ¶¶ 1,11 (Sun Prairie). Absent any fail-safe, these voters saw their most fundamental right of U.S. citizenship denied or severely burdened.
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These individual Plaintiffs all suffered a concrete injury and stand to lose their right to vote again if a similar systemic overload delays their ballots or prevents their delivery. And while Plaintiffs Claire Whelan and Sylvia Gear received their ballots in April, as both cannot risk voting in person at the polls, they too run the risk of disenfranchisement if their ballots do not arrive in time for them to be cast in the November election. Whelan Decl. ¶¶ 4-5, 7, 9; Gear Decl. ¶¶ 4, 6-7.
Finally, the Organizational Plaintiffs LWVWI and Wisconsin Alliance are also severely burdened by the failure to provide voters with back-up options if their ballots do not arrive timely in the mail. When voters do not receive requested absentee ballots in the mail, they turn to civic engagement organizations for information and assistance. This necessarily diverts organizational resources away from core mission activities to helping voters navigate a broken absentee ballot process that leaves them with few and bad options. Havens Realty, 455 U.S. at 379; see also Common Cause Indiana, 937 F.3d at 952 (agreeing with sister circuits which “upheld the standing of voter-advocacy organizations that challenged election laws . . . [and] demonstrated the necessary injury in fact in the form of the unwanted demands on their resources.”). LWVWI and Wisconsin Alliance have already expended resources, time, and money educating and helping voters that would not need help but for the unconstitutional failure to offer back-up delivery options to them and will continue to do so through the November general election. Cronmiller Decl. ¶¶ 10-11, 13; Mitchell Decl. ¶¶ 11-14.
ii. Traceability Plaintiffs’ injury is traceable to Defendants’ failure to offer a back-up option to voters who do not receive an absentee ballot in the mail. Ultimately, it does not matter why the ballot does not arrive in the voter’s mailbox, because (a) under Wisconsin law, Defendants hold the ultimate responsibility to ensure delivery, and (b) Defendants could but do not offer alternatives to regular
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domestic civilian voters in Wisconsin to cast a ballot, should their absentee ballot not arrive on time.
The Supreme Court has held that causation, in the context of Article III, does not mean proximate causation, but rather that the plaintiff’s injury must “be fairly traceable to the defendant’s conduct.” Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014). The traceability requirement does not bar standing in cases where the alleged injury is most immediately caused by a third party but is also fairly traceable to the government’s failure to regulate that party. See, e.g., Massachusetts v. E.P.A., 549 U.S. 497, 521–26 (2007). Put simply, the defendant’s actions need not be “the very last step in the chain of causation” for standing to exist. Bennett v. Spear, 520 U.S. 154, 169 (1997); see also Warth v. Seldin, 422 U.S. 490, 504–05 (1975) (“The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing.”). Rather, the traceability requirement may be satisfied when the injury is “produced by [a] determinative or coercive effect upon the action of someone else.” Bennett, 520 U.S. at 169 (emphasis added).
The Seventh Circuit’s traceability doctrine allows for standing when the injury is caused by multiple parties or government inaction. The Court has held that a plaintiff does not “lack standing merely because the defendant is one of several persons who caused the harm.” Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 500 (7th Cir. 2005). To establish Article III standing, “the complaint need only allege that ‘but for’ some act or omission of the defendant, the injury would not have occurred.” Boyden v. Conlin, No. 17-CV264-WMC, 2018 WL 2191733, at *3 (W.D. Wis. May 11, 2018) (Conley, J.). Accordingly, this Court has noted “Article III causation is a fairly modest bar.” Boyden 2018 WL 2191733 at *3; see also Bennett, 520 U.S. at 171.
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Importantly, the Seventh Circuit allows for standing when multiple actors are responsible for the plaintiff’s injury. In Lac du Flambeau, for instance, an Indian tribe sued the Secretary of the Interior to void a compact between a second tribe and the state of Wisconsin. 422 F.3d at 49394. The Secretary disputed the plaintiffs’ standing on the grounds that it was the action of the thirdparty tribes and state—not the Interior Department—that had caused the plaintiff’s harm. However, the court held that “the Secretary’s silent approval caused that potential [harm] to become a reality because, but for her approval, the compact would have no effect.” Id. at 501. Hence, although the Secretary was not the sole cause of injury, the court found that plaintiffs had standing to sue U.S. Secretary of Interior because the regulable third party would not have harmed the plaintiffs but for the Secretary’s inaction. Cty. of Cook v. HSBC N. Am. Holdings Inc., 136 F. Supp. 3d 952, 960 (N.D. Ill. 2015) (noting that where “the alleged conduct plausibly contributed to the harm, Article III standing exists”); see also Libertarian Party of Virginia v. Judd, 718 F.3d 308, 315-316 (4th Cir. 2013), cert. denied, 134 S. Ct. 681 (2013). (holding that "if the witness residency requirement is at least in part responsible for frustrating [a candidate’s] attempt to fully assert his First Amendment rights in Virginia, the causation requirement is satisfied”). Lac du Flambeau establishes that the WEC’s failure to provide voters with fail-safe options to safeguard against disenfranchisement when ballot preparation and delivery procedures fail to put a ballot in the voter’s hands, constitutes a “but-for” link in the causal chain leading to Plaintiffs’ injuries. But for failure to offer regular absentee voters alternative ballot delivery options, no voter would be disenfranchised because of municipal clerk offices’ or USPS’s systemic overload or error.
iii. Redressability Finally, Plaintiffs’ injuries are redressable by the requested injunction. If Defendants were compelled to offer regular voters one or more of these absentee ballot delivery methods as a failsafe to request a replacement mail-in ballot when the requested ballot does not come in the mail,
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that would certainly redress the legal violations identified in this case. Redressability is not just likely, but certain in this case. Lujan, 504 U.S. at 561.
b. Witness requirement The Organizational Plaintiffs LWVWI and Wisconsin Alliance move for injunctive relief against the witness requirement.37 Again, under Havens Realty and Common Cause Indiana, 937 F.3d at 952, the Organizational Plaintiffs LWVWI and Wisconsin Alliance are also burdened by the witness requirement. Voters, particularly those who are at higher risk from Covid-19 and who live alone, struggle with how to safely comply with this requirement and often require assistance. Civic engagement organizations have been compelled to divert organizational resources away from their core mission activities to educate and help voters comply with this requirement that is ill-suited to a pandemic. Havens Realty, 455 U.S. at 379; see also Common Cause Indiana, 937 F.3d at 952 (agreeing with sister circuits which “upheld the standing of voter-advocacy organizations that challenged election laws . . . [and] demonstrated the necessary injury in fact in the form of the unwanted demands on their resources.”). LWVWI and Wisconsin Alliance have already expended resources, time, and money educating and helping voters that would not need help but for the unconstitutional enforcement of the witness requirement and will continue to do so through the November general election. Cronmiller Decl. ¶¶ 9, 11-12; Mitchell Decl. ¶¶ 11-14. 2. Plaintiffs are likely to succeed on the merits of their claims.
a. Undue Burden under Anderson-Burdick i. Absentee ballot delivery failures
37 Plaintiffs Claire Whelan and Sylvia Gear do not move for a preliminary injunction on this claim at this time.
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Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992); One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016), order enforced, 351 F. Supp. 3d 1160 (W.D. Wis. 2019), and aff'd in part, vacated in part, rev’d in part sub nom. Luft v. Evers, No. 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020), and aff'd in part, vacated in part, rev’d in part sub nom. Luft v. Evers, No. 163003, 2020 WL 3496860 (7th Cir. June 29, 2020) (“This analysis proceeds under what is known as the Anderson–Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden.”). Even as modified or clarified by the Seventh Circuit’s recent opinion in Luft v. Evers, Anderson-Burdick always requires a balancing of interests and burdens, as well as a holistic analysis to see if any other parts of the election code or system ameliorate or negate the challenged laws’ burdens: “Courts weigh these burdens against the state’s interests by looking at the whole electoral system.” Luft, 2020 WL 3496860, at *3. For instance, if a restriction on voter registration is challenged, then it might be relevant that Election Day registration is available in Wisconsin. In this case, however, the Wisconsin election code does not contain any other provisions that ameliorate or
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negate the threat of disenfranchisement when a ballot does not arrive in the mail. If there were, this lawsuit would not have been filed.
Plaintiffs must establish that they are burdened by a particular election law, but the state must, in turn, substantiate its claimed interest with concrete evidence: “[w]hile states certainly have an interest in protecting against voter fraud and ensuring voter integrity, the interest will not suffice absent ‘evidence that such an interest made it necessary to burden voters’ rights.’” Thomas, 2020 WL 2617329, at *20 (quoting Fish v. Schwab, 957 F.3d 1105, 1133, (10th Cir. 2020) (affirming injunction against Kansas’s documentary proof of citizenship requirement for voter registration)).
Wisconsin’s election administration system, as managed by Defendants, is not equipped to handle the unprecedented surge in mail-in absentee balloting that the COVID-19 pandemic is causing. The November general election will be conducted under conditions of persistent and substantial Covid-19 transmission and will see an estimated 2 million-plus absentee ballot requests. As recounted above, given the current systems, procedures, laws, and resources for absentee voting and mail delivery, there is simply no way that Defendants, the municipal clerks who take their marching orders from them, and the USPS can meet that demand for all voters who intend to vote by absentee ballot. Inevitably, some portion of voters who must vote by mail due to the risk Covid-19 poses to their health and the health of their family and/or household members will not receive a ballot in the mail.
Because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, and Sheila Jozwik were all disenfranchised in the April 7 election and stand to be disenfranchised again in the November general election, Kohlbeck Decl. ¶ 9; Diane Fergot Decl. ¶ 7; Gary Fergot Decl. ¶ 7; Bahr Olsan Decl. ¶¶ 6, 8; Sheila Jozwik Decl. ¶¶ 7-8, and Plaintiff
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Gregg Jozwik was forced to risk exposure to the novel coronavirus by voting in person. Gregg Jozwik Decl. ¶¶ 7-8. Plaintiffs Claire Whelan and Sylvia Gear are exposed to the same risk of ballot delivery failure in November. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because they have diverted and will continue to divert resources, staff time, and money to educate and help voters who do not receive a requested absentee ballot in the mail.
In-person voting of course is not a reasonable alternative, as that would require these Plaintiffs to enter a confined and crowded space where they run a significant risk of contracting Covid-19 through airborne transmission. PPFOF Nos. 1-2, 7-9, 25. Because Covid-19 appears to be transmitted by airborne viral particles, in addition to respiratory droplets, the danger of inperson voting is not meaningfully reduced by interventions like wearing masks, hand-washing, and maintaining six feet of separation from other voters. PPFOF No. 1 (citing Murray Decl. ¶¶ 620, 32-44). Even if these methods were effective and there is no evidence that they substantially reduce the risk of transmission, voters’ and poll workers’ non-compliance with safeguards and public health guidance would still make in-person voting very risky, particularly for voters with comorbidities. One poll worker, Barbara Keresty from Madison, describes her experience working the April 7 election. She notes the polling place was so cramped and crowded that “made it impossible to maintain six feet of distance,” and that those who assisted curbside voters were unable to maintain 6 feet of distance. Keresty Decl. ¶¶ 3, 7. She notes that “[v]oting stations were also set up back-to-back in a small circle, not six feet apart” and that “[v]oters were therefore within two feet of each other when filling out their ballots.” Id. ¶ 3. Additionally, she observed that some poll workers and “many voters” failed to wear masks or gloves. Id. ¶ 4. Additionally, “[p]oll workers had to sit approximately two feet apart throughout the day. There were four tables for poll workers: two with plexiglass for assisting registered voters; one without plexiglass for assisting new registrants; and one without plexiglass for poll workers collecting absentee ballots.
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Poll workers had the use of only one unisex bathroom, which was never cleaned throughout the day. This set-up meant that poll workers were forced to come in close contact with both each other and voters.” Id. ¶ 5.
The failure to prepare and deliver absentee mail-in ballots timely or at all constitutes a complete denial of a voter’s right to cast a ballot, where voters cannot safely vote in person due to the Covid-19 pandemic. Accordingly, the burden on the right to vote is the most severe imaginable, while the state has zero legitimate interest in disenfranchising a voter who does not timely receive an absentee ballot in the mail. Indeed, it is the state’s statutory obligation to process that absentee ballot request and timely delivery a ballot via the method requested by the voter. Under the circumstances of the Covid-19 pandemic, there is no “compelling,” “important,” or “legitimate” interest, Burdick, 504 U.S. at 434, that can justify this disenfranchisement. The only legitimate state interests that can be asserted here must be directed to Plaintiffs’ proposed remedies for the failure to afford voters a fail-safe option, and we anticipate and address some of those arguments in the subsequent section on Plaintiffs’ proposed remedies.
Plaintiffs, and all voters who timely request an absentee ballot by mail delivery but who do not receive that ballot in the mail, must be granted one or more of the following fail-safes, without which they will not be able to vote safely and free of undue risk and burden. Wisconsin Statutes Section 6.87(3)(d)’s restriction of electronic transmission of mail-in absentee ballots to military and overseas voters—either through the MyVote portal or email delivery—is unconstitutional, given the circumstances of the Covid-19 pandemic. These alternative and fail-safe ballot delivery methods include: (a) the option to request that an absentee ballot be made available to them for electronic access and downloading; (b) the option to request that the ballot be emailed to them; and/or (c) the option to cast a Federal Write-in Absentee Ballot (“FWAB”). Absent this relief,
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Defendants have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution.
ii. Remedies for absentee ballot delivery failures The following proposed remedies for the disenfranchisement caused by ballot preparation and delivery failures are intended to serve as last resorts or fail-safes for voters such as Plaintiffs. They should not be used by voters or election officials in the first instance, but rather only after a timely-requested mail-in absentee ballot does not arrive in the mail. In that event, voters such as Plaintiffs must be afforded a fail-safe alternative: (a) accessing and downloading a mail-in absentee ballot, e.g. through myvote.wi.gov, (b) delivery of the ballot by email, or (c) permission to vote the FWAB used already by overseas civilian and military voters. Granted, these solutions to the constitutional problem of ballot preparation and delivery failures that continue to threaten Wisconsin voters with disenfranchisement will not work for all voters. This remedy is necessary, but not sufficient, to address all absentee ballot delivery failures. Voters who lack access to a computer, a printer, the Internet, or friends, family, and neighbors with the same will not be able to avail themselves of these proposed remedies. However, these remedies would cure the constitutional violation as to many voters and allow those voters to cast a ballot safely and timely. Replacement absentee ballots can be requested up until the Thursday deadline for requesting absentee ballots generally. Wis. Stat. § 6.86(5); Wis. Stat. § 6.86(1)(b); Sherman Decl., Ex. 2, Wolfe Tr. at Wolfe Tr. at 145:9-20. All absentee ballot certificate envelopes bear a unique identifying number and bar code, and clerks will cancel the previously-requested absentee ballot, so there is a safeguard that prevents the voter from casting two ballots. Sherman Decl., Ex. 2, Wolfe Tr. at 149:15-151:7; 169:20-170:6; Salas Decl. ¶ 13 (“When a military or overseas voter accesses their absentee ballot online at myvote.wi.gov, they also access the statutorily prescribed certificate according to Wis. Stats. 6.87(2) which contains their name, address and ward. This
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certificate contains a unique identification number and bar code assigned by the WisVote system.”); id. ¶ 13 (“In the rare instance where more than one certificate envelope containing a marked ballot is received from an individual voter, the unique identification number assigned by the WisVote system in addition to multiple procedural safeguards in place according to WEC rules and Wisconsin Statutes prevent more than one ballot from being counted.”); id. ¶ 11 (“The WisVote system allows only one ballot to be recorded as returned.”). A voter is entitled to up to three replacement ballots. Wis. Stat. § 6.80(2)(c).
1. Accessing and Downloading Mail-In Absentee Ballots Mail-in absentee ballots are delivered or made available to voters in a few different ways. Domestic civilian voters can receive mail-in ballots by mail delivery only. Wis. Stat. § 6.87(3)(a); Wolfe Tr. at 133:5-11. Military and overseas civilian voters can receive an absentee ballot by fax or email delivery. Wis. Stat. § 6.87(3)(d).38 In addition to these delivery methods, since 2012, all overseas civilian and military voters have been able to access their mail-in absentee ballots themselves online at myvote.wi.gov, download them for marking, and return them by mail. Wis. Stat. § 6.87(3)(d); Wolfe Tr. at 130:21-131:14.39 Wisconsin law restricts the ability to electronically access and download a mail-in absentee ballot to military and overseas voters. Wis. Stat. § 6.87(3)(d). Requests for online access to a mail-in absentee ballot must be selected at myvote.wi.gov; a municipal clerk’s office cannot facilitate the online access. Wolfe Tr. at 130:21131:14; 136:20-139:19.
38 Technically, as previously noted, until the Seventh Circuit issues the mandate in Luft v. Evers, email and fax delivery will continue to be available to regular absentee voters. 39 Sherman Decl., Ex. 19, Wisconsin Elections Commission, MyVote Wisconsin: A Guide to the MyVote Wisconsin Website for Voters and Clerks, at 20-21, https://elections.wi.gov/sites/elections.wi.gov/files/publication/65/myvote_manual_sept_2016_p df_21316.pdf.
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This process is automated and does not require municipal clerks to do any work to deliver a mail-in absentee ballot and the envelope’s certificate to a military or overseas voter. This method of ballot “delivery” shifts the burden from the municipal clerk’s office staff to the voter by permitting the voter to access their ballot at any time after their request is completed and processed. See generally supra note 39; Sherman Decl., Ex. 2, Wolfe Tr. at 134:2-135:20 (outlining online access and downloading process step by step from voter’s perspective); 151:8-152:9 (same). When asked what work, if any, the municipal clerk’s office has to do when a request for online access and downloading is made, Meagan Wolfe, WEC’s Administrator, responded: “Nothing. They do nothing. So it’s all a voter initiated process.” Sherman Decl., Ex. 2, Wolfe Tr. at 137:5-12. Ms. Wolfe also testified that the ballot and the certificate are automatically generated by the MyVote portal and also testified that this online access and downloading function at myvote.wi.gov draws on geocoded districts and wards, as well as pre-loaded candidate slates, in WisVote and can therefore automatically generate a ballot specific to the voter’s residence and a certificate for the envelope, without necessitating any further work from the municipal clerk’s office. Sherman Decl., Ex. 2, Wolfe Tr. at 137:16-139:19, 140:8-143:17. The Commission has already geocoded districts and imported candidate data for each election, so the ballot and certificate can be produced automatically, without any action by the municipal clerks’ offices. See id.; id. at 139:18-19 (“We’re able to generate it using data that we have.”). The municipal clerks’ offices do not have to create a mailing label, provide or stuff an envelope, pay for postage, enter any data, or deliver a ballot. Wolfe Tr. at 146:14-147:6.
Current and former municipal clerks in Madison, Racine, and Kenosha concur with this assessment. Maribeth Witzel-Behl in Madison writes that:
There is nothing that our office needs to do to enable online access and download of a mailin absentee ballot through myvote.wi.gov. The real benefit of this method is that it puts the burden on the voter to access their ballot; we do not have to send it to them and it will not get caught in email spam filters. In processing the ballot request and making the ballot
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available for download through myvote.wi.gov, the system automatically draws on the voter’s records in the WisVote database and generates a ballot for that voter’s residential address and ward. So we do not need to assemble the ballot and certificate, print a mailing label, affix a label, or affirmatively mail or email the ballot. Witzel-Behl Decl. ¶ 10. All three current and former clerks from Madison, Racine, and Kenosha endorse extending online access and downloading to regular absentee voters. Ms. Witzel-Behl in Madison writes: “Of the three methods Plaintiffs have proposed to ensure voters have a way to safely cast a ballot during this pandemic, I prefer extending the online access and download option to all registered Wisconsin voters, but any of the methods will be preferable to mailing replacement ballots.” Id. ¶ 15. Tara Coolidge in Racine and former Kenosha City Clerk-Treasurer40 Debra Salas endorses this method of ballot delivery for all the same reasons. Coolidge Decl. ¶¶ 8-12; Salas Decl. ¶¶ 11-13, 17-18. The sole task the municipal clerk’s office would need to complete for a regular absentee voter to secure a replacement ballot through online access on the MyVote portal online is to cancel the prior request for a mail-delivered ballot. Sherman Decl., Ex. 2, Wolfe Tr. at 143:22-144:17; see also Witzel-Behl Decl. ¶ 12 (“[W]e would need to cancel the outstanding ballot in the state system and deactivate the voter's absentee request. The voter could then go to myvote.wi.gov to submit a new request and request a ballot by online access and downloading.”). Ms. Coolidge in Racine notes that this would be a simple and quick task: “If a voter has previously requested that the ballot be delivered by mail, for example, but did not receive it, a member of my staff would have to log onto WisVote to manually cancel the outstanding ballot. This would take just a few minutes for each voter.” Coolidge Decl. ¶ 11. The former Kenosha City Clerk-Treasurer helpfully describes the process from end to end as follows: When a military or overseas voter accesses their absentee ballot online at myvote.wi.gov, they also access the statutorily prescribed certificate according to Wis. Stats. 6.87(2) which contains their name, address and ward. This certificate contains a unique identification
40 This is the same as a City Clerk.
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number assigned by the WisVote system. The voter is instructed to affix this certificate to the sealed envelope containing their voted ballot. No matter how many times the ballot is accessed and printed, the identification number on the certificate will be the same. When the envelope containing the voted ballot is received, the unique identification number is scanned into the WisVote system confirming that the ballot has been received. On election day, the envelopes received, containing the voted ballots, are submitted to the Absentee Board of Canvassers for counting. The canvassers view the certificate, announce the name and address of the voter, assign a number, write the number on the certificate envelope and in the ballot log next to the voter’s name and address. They view each envelope, one at a time, and perform the same procedure for each certificate envelope. The certificate envelopes are then opened. The canvassers remove the ballots and place the envelopes in a sealed container. Then ballots are then inserted into the voting machines for tabulation. Once tabulated, the ballots are removed from the voting machine and placed into the ballot container according to Wisconsin Statutes Section 7.52(4)(g).
Salas Decl. ¶ 13.
WEC Administrator Wolfe has represented that permitting regular absentee voters who are
not in the military or overseas to access replacement mail-in ballots at myvote.wi.gov will require
these voters to submit photo IDs and municipal clerks to verify photo IDs. Wolfe Tr. at 133:13-
134:1; 154:2-5 (“There would have to be a measure in there where the clerk verifies their photo
ID and makes sure that they're able to access a ballot.”); 155:10-17 (“[T]hey would have to be able
to upload their photo ID which would then have to be sent to the clerk to be able to review . . .
before the voter would be able to complete actually getting their ballot electronically.”); 159:2-3
(“Yes, that’s correct plus the transmission of the photo ID.”). This is not so. These requests are for
replacement mail-in ballots, so all of the regular voters who utilize this option will have already
had their uploaded or submitted photo IDs verified. Otherwise, they would never have had their
initial request for a mail-delivered ballot processed. See Salas Decl. ¶ 14 (“If this online access
system is extended to domestic civilian absentee voters when requesting a replacement mail-in
ballot, acceptable photo ID will already be on file in the WisVote system because their previous
request for a mail-delivered ballot was processed.”). All the clerk’s staff need to do is cancel that
prior request, permitting the voter to submit a new request, but the voter’s previously-submitted
photo ID will still be on file in WisVote, the statewide voter information database, and will show
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as previously-verified. Ms. Wolfe also testified that the MyVote portal and WisVote workflows for online access and downloading would need to be bifurcated because regular voters must submit photo ID, but military and overseas voters are exempt. Wolfe Tr. at 165:18-166:1; Wis. Stat. § 6.87(1). Plaintiffs agree that the system would need to be able to distinguish regular from military and overseas voters, but since all regular absentee voters taking advantage of this delivery method would be requesting a replacement ballot, the WisVote and MyVote systems can simply confirm that there is already a verified photo ID on file for regular domestic civilian voters. Even if it is bifurcated on the back end, the process can still be fully automated as to photo ID verification.
Furthermore, this system is secure. As election security and cybersecurity expert Matthew Bernhard explains in his declaration, Plaintiffs’ proposed relief of online access and downloading a ballot through MyVote “does not pose any additional security risk to Wisconsin elections.” Bernhard Decl. ¶ 8. Mr. Bernhard bases this opinion
on four facts: (1) the subset of voters who will have access to the proposed relief is limited; (2) the voters who can use the proposed relief will have been authenticated already and will also have to authenticate to MyVote using additional credentials; (3) the WEC has robust, defense-in-depth procedures for preventing fraud in absentee ballots; and (4) fraud in elections in the United States and in Wisconsin in particular is so rare as to be functionally non-existent. Id. ¶ 9. First, “[v]oters who gain the ability to download a ballot through MyVote will only be able to do so if they have previously requested and not received an absentee ballot via mail, and only if they do so within a specified window of time. Limiting the use of MyVote’s mail-in absentee ballot portal in this way is a well-established security practice in election security literature.” Bernhard Decl. ¶ 10. Second, voters using the system will already be authenticated and then provided more authenticating information. “While there is no evidence that voter ID requirements have an impact on the prevention of voter fraud, voters who will use MyVote to access a replacement absentee
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ballot will have already met the voter ID requirements in Wisconsin. These voters will thus have reached a higher bar of authentication than military and overseas voters, who are exempt from the photo identification verification requirement.” Bernhard Decl. ¶ 10. Additionally, MyVote portal users must enter their name, date of birth, and the last four digits of their Social Security Number in order to access their ballot online at myvote.wi.gov. Wolfe Tr. at 156:16-21. As Mr. Bernhard explains, “[t]he MyVote portal already uses standard identity authentication information by requiring the voter input their name, date of birth, and the last four digits of their Social Security Numbers (which have been established as the most secure part of SSNs by Acquisti and Gross).” Bernhard Decl. ¶ 12.
Asked whether she thought MyVote’s online ballot access portal was secure, Ms. Wolfe responded: “Yes, and there’s only, you know, one point of that data exchange, right, for them because there isn’t that intermediary step but, yes, we -- we consider it to be very secure.” Sherman Decl., Ex. 2, Wolfe Tr. at 157:2-9. However, because photo ID will already be on file and will already have been verified for a voter requesting a replacement ballot, it is unclear why Ms. Wolfe thinks the system will need an “intermediary step” to verify ID or be less secure if MyVote and WisVote are reprogrammed simply to confirm that this is a replacement ballot for a voter who (necessarily) has a photo ID on file. Sherman Decl., Ex. 2, Wolfe Tr. at 158:16-21. As Mr. Bernhard concludes, the MyVote website could be programmed to require only one data transaction that verified the voter’s identity and voter ID on file in one step. For a voter whose ballot does not arrive in the mail and requests online access, “[t]he MyVote page would then have to confirm that a photo ID verification had already taken place, which it can do in the same check it performs on the voter’s name, date of birth, and the last 4 digits of their SSN, and then build and send a ballot back to the voter. This should only require one transaction of PII, not two as indicated by Administrator Meagan Wolfe in her deposition.” Bernhard Decl. ¶ 13. He adds: “Since the
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proposed relief would require only one transaction with personally identifiable information (PII), it will be functionally the same as the existing workflow.” Bernhard Decl. ¶ 14.
Third, Mr. Bernhard believes a few other features of the MyVote portal create additional security: (1) “The MyVote portal prohibits the ability to download the ballot more than three times. While this does not preclude the ability to copy the ballot once downloaded, it is a robust safeguard that balances the voter’s right to ballot access against the risk of any security breach, however remote or unlikely to affect the election,” Bernhard Decl. ¶ 15; (2) “Voters’ requests to use the portal will also result in their clerk cancelling their existing mail ballot request, eliminating the possibility that a voter can have multiple live ballots issued at once, and therefore eliminating any opportunity for double voting,” id. ¶ 16; and (3) “[A]ccess to the portal for replacement ballots could be further limited in time restricts the access to the system even more. It is unlikely that actors seeking to commit fraud would be able to take advantage of the MyVote portal, for the aforementioned reasons, but also because a week is not enough time to fraudulently access and submit a substantial number of fraudulent ballots,” id. ¶ 17.
Finally, Ms. Wolfe testified that she knows of no instance in which a ballot was fraudulently accessed and/or voted using MyVote’s online access portal. Sherman Decl., Ex. 2, Wolfe Tr. at 160:17-161:4. The municipal clerks also agree that the system is secure and go farther to say that modification would not undermine its security. Racine City Clerk Tara Coolidge concurs that the system is secure: “I believe this to be a very secure and reliable method for voters to obtain their absentee ballots.” Coolidge Decl. ¶ 8; see also Salas Decl. ¶ 11 (“The voter securely accesses their certificate in PDF format, bearing their name, address and voter number and the PDF ballot for their ward and the instructions.”).
All online-accessed and downloaded ballots must be “duplicated or re-made” or “recreate[d]” on an official absentee ballot in order for it to be scanned by a voting machine. Witzel-
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Behcl ¶ 14; Coolidge Decl. ¶ 9; Salas Decl. ¶ 16. However, current and former clerks from Madison, Racine, and Kenosha do not believe this additional back-end work should preclude a front-end solution to the problems observed with absentee ballot delivery across Wisconsin. Racine City Clerk Tara Coolidge contends that as long as her office has some “advance notice of how many downloaded absentee ballots have been requested and are to be expected for each polling location,” then she “do[es] not foresee any difficulties in staffing polling places to adequately process such ballots once they are cast.” Coolidge Decl. ¶ 9. She adds that while “[t]his alternative would pose some minor inconvenience on the back end,” she “believe[s] that any inconvenience to [her] staff and poll workers would be far outweighed by the value to voters.” Id. ¶ 10. Ms. Witzel-Behl in Madison strongly dismisses the notion that administrative burden should outweigh voters’ access to an absentee ballot in a safe and secure manner: “We already do this for many ballots, but the volume will increase if these back-up options are required by the Court. This would pose some minor inconvenience on the back end, but I want to state clearly that, in my view, the value to voters who are trying to vote—and vote safely—would far outweigh any inconvenience or burden to my staff and those canvassing ballots at polling places.” Witzel-Behl Decl. ¶ 14; see Salas Decl. ¶ 16 (noting additional ballot duplication would “only pose minor inconvenience”).
Finally, Ms. Witzel-Behl and Ms. Coolidge in Madison and Racine, respectively, both note that every voter they can help successfully cast an absentee ballot is one less voter who needs to vote in person, adding to long lines and straining election administration resources that are in short supply. Witzel-Behl Decl. ¶ 14 ; Coolidge Decl. ¶ 10 (“[E]very voter we permit to vote by mail is a voter who does not show up at the polls, straining our already-taxed in-person voting resources in an environment with far fewer poll workers and potentially increasing the risk of Covid-19 transmission.”); Salas Decl. ¶ 17.
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2. Email Delivery of Mail-In Absentee Ballots If a voter uses myvote.wi.gov, then mail delivery of the absentee ballot is the default and only option for a domestic civilian voter. If, however, a voter fills out the statewide absentee ballot request form, Form EL-121, seeking a mail-in absentee ballot, then the voter is offered a selection of three methods of delivery: mail, fax, or email.41 For each delivery option, the voter is required to write in the address to which the ballot should be mailed, their fax number, or their email address.42 Some registered voters will have already provided their email address upon registering to vote, such that it is in their voter registration record.43 Wisconsin’s municipal clerks gained the authority to deliver mail-in absentee ballots to domestic civilian voters by email or fax in this Court’s decision in One Wisconsin Institute v. Thomsen in 2016. 198 F. Supp. 3d 896, 946 (W.D. Wis. 2016), which invalidated the statutory ban on emailing or faxing mail-in absentee ballots to domestic civilian voters and is on appeal. That decision has been reversed, restoring the ban, and will be officially vacated once the Seventh Circuit issues the mandate. While it was in effect though, One Wisconsin Institute appears to have left the decision as to whether to email or fax ballots to the sole discretion of Wisconsin’s 1,850

41 Sherman Decl., Ex. 20, Wisconsin Elections Commission, Form EL-121, Wisconsin Application

for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL-

121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf; Sherman Decl.,

Ex. 21, Wisconsin Elections Commission, Clerk Instructions for Emailing and Faxing Ballots to

Mail-in

Absentee

Voters

(last

updated

June

2018),

https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo

ts_to_uocava_vote_83593.pdf.

42 Sherman Decl., Ex. 20, Wisconsin Elections Commission, Form EL-121, Wisconsin Application

for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL-

121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.

43 Sherman Decl., Ex. 22, Wisconsin Elections Commission, Form EL-131, Wisconsin Voter

Registration

Application,

https://elections.wi.gov/sites/default/files/publication/154/el_131_voter_registration_application

_pdf_23730.pdf.

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municipal clerks—it struck down a ban, but did not mandate anything.44 Even though it appears from the face of Form EL-121 that a voter can request email delivery upon their initial request, i.e. in the first instance and not just as a back-up, WEC construes these emailed ballots as replacement ballots and, therefore, only permits requests for email or fax delivery up until the regular deadline for mail-in absentee ballots, i.e. 5:00 p.m. on the Thursday before Election Day.45
According to municipal clerks, regular absentee voters really valued and came to rely on the availability of email delivery. Recently-retired Kenosha City Clerk-Treasurer Debra Salas expects the office will continue to receive email delivery requests for the November election: “Despite the Seventh Circuit’s recent decision, once again restricting email delivery of absentee ballots to military and overseas voters, it is anticipated that many regular voters will request email delivery of absentee ballots for the November general election. For some regular voters, particularly voters temporarily away, or in counties with unreliable mail delivery, receiving a ballot via email was the only way to guarantee the voter would have an adequate amount of time to send their ballot back to the City Clerk’s Office.” Salas Decl. ¶ 10.
The procedure for emailing absentee ballots requires municipal clerks to “print their initials in the endorsement section of the ballot and on the face of the ballot and scan the initialed ballot” and then email the voter the initialed ballot, the absentee ballot certificate envelope, and the Uniform Instructions for Absentee Voters.46 WEC’s instructions on how the voter should be directed to print, cast, and mail the ballot state:

44 Sherman Decl., Ex. 23, Wisconsin Elections Commission, Uniform Instructions for Absentee

Voting,

at

2,

https://elections.wi.gov/sites/elections.wi.gov/files/2019-

02/Uniform%20Instructions%20for%20Absentee%20Voting%20-

%20All%20Voters%20%20%28Rev.%202-2019%29.pdf.

45 Id. (“A voter may request that a replacement ballot be faxed or emailed to him or her. The ballot

must be returned to the municipal clerk no later than 8:00 p.m. on Election Day. The ballot may

not be returned to the municipal clerk by fax or email.”) (emphasis added).

46 Sherman Decl., Ex. 21, Wisconsin Elections Commission, Clerk Instructions for Emailing and

Faxing Ballots to Mail-in Absentee Voters (last updated June 2018),

44

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The elector should be instructed to print the ballot, vote the ballot in the presence of a witness, fold the ballot and seal it inside a regular, non-window envelope, complete and sign the absentee certificate. An adult U.S. citizen witness must sign and provide his or her address on the certificate. Military or permanent overseas voters should provide their birthdate. The certificate should be affixed (with glue or tape) to the envelope containing the voted ballot. The envelope with the certificate attached should be placed into another, larger, envelope, sealed and mailed to the municipal clerk. The ballot must be received by 8 p.m. on Election Day.47
The WEC’s instructions continue to explain that “[t]he absentee elector must return the hard copy
of the ballot and the completed certificate to the municipal clerk in time so that the clerk can deliver
the ballot to the polling place before the close of the polls.”48 Ms. Salas, the former Kenosha City
Clerk, provides additional detail for this process:
To send an absentee ballot by email, the absentee ballot label which bears the voter’s name, address and voter registration number, generated from WisVote, is applied to a scan of the front of the certificate envelope. After the label is applied to the certificate it is scanned as a PDF. Then the appropriate ballot for the voter’s ward is initialed and scanned as a PDF. These two PDF documents, along with a PDF containing instructions are delivered as attachments to an email message. The voter is instructed to print out all of the attachments, mark their ballot, insert it in a plain envelope, and seal it. Then the voter is instructed to affix the certificate to the outside of that envelope. Once the voter has signed the certificate and obtained the signature and address of a witness, they must place the envelope with the certificate attached to the outside, into a larger envelope and mail it to the City Clerk’s Office. One benefit of this delivery method is it ensures delivery to the voter, and the voter receives the ballot much faster.
Salas Decl. ¶ 10.
The WEC’s instructions on email delivery of ballots notes that USPS does not think it can
guarantee on-time delivery unless it is afforded a week. The USPS recommends that ballots be
mailed one week prior to the date of the Election to arrive on time.49 The elector may choose
overnight delivery to assure that their ballot arrives on time.50 The municipal clerk is not
https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo ts_to_uocava_vote_83593.pdf. 47 Id. 48 Id. 49 Id. 50 Id.
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responsible for return postage of a faxed or e-mailed absentee ballot.51 “When absentee ballots are returned to the clerk’s office, the municipal clerk records the information is recorded in WisVote or their WisVote Provider.”52 “The municipal clerk records the date absentee ballots are faxed or e-mailed to voters in WisVote or forwards the information to their WisVote Provider.”53 The clerk encloses the envelope holding the ballot into a certificate envelope and attaches the completed certificate to the outside. The clerk then delivers the ballot to the appropriate polling place in a carrier envelope.”54 “At the polling place, the election inspectors follow the procedures for processing absentee ballots. The ballot may be remade by 2 election inspectors in order for the ballot to be accepted by electronic tabulating equipment.”55
Upon information and belief, every one of Wisconsin’s 1,850 municipal clerks exercises their discretionary authority on email delivery of absentee ballots differently. Some advertise this delivery option; some do not. Some will deliver ballots by email; some will not, even close to Election Day or the effective deadline to mail the ballot so that it is received in time to be counted. And there are of course variances between staff members within a municipal clerk’s office.
Nevertheless, in the 2016 fall general election, Wisconsin municipal clerks emailed voters 9,619 absentee ballots, and 7,231 voters returned those absentee ballots by mail.56
The municipal clerk is required to enter absentee applications and ballot information into the WisVote system maintained by the Commission within 48 hours after mailing or receiving an in-person absentee ballot application. Wis. Stat. § 6.33(5). Or, in the case where the municipality relies on the county or another municipality, the clerk shall submit the information to the clerk’s
51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 Sherman Decl., Ex. 3, Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397.
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Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 47 of 71
WisVote provider, and the provider shall enter the absentee information into the WisVote system within 24 hours. Wis. Stat. § 6.33(5).
The failures of Defendants, municipal clerks, and the USPS to keep up with the unprecedented, gargantuan demand for mail-in absentee ballots during this COVID-19 pandemic cries out for the alternative option of email delivery of absentee ballots. It need not and should not be a first resort; it is a last resort. However, to prevent disenfranchisement when ballots fail to arrive timely in the mail such that voters can timely vote and return them, Plaintiffs respectfully request that this Court order Defendants to instruct municipal clerks to email absentee ballots to voters who timely requested those ballots be delivered by mail but did not receive them in time to return them.
Email delivery will greatly alleviate the administrative burden on municipal clerks’ offices in mailing out replacement absentee ballots for those previously-issued ballots that did not arrive timely in the mail.
3. Federal Write-In Absentee Ballots There is one other element of absentee voting in Wisconsin that is relevant to the relief Plaintiffs request: the Federal Write-in Absentee Ballot (“FWAB”).57 This is another fail-safe option that would solve the problem of disenfranchisement by delayed delivery. Federal law and Wisconsin law set forth a procedure for military and overseas civilian voters to request and cast absentee ballots. Under the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq., military and overseas civilian voters are able to register to vote and request an absentee ballot with a federal postcard application. 52 U.S.C. § 20301(b)(2).58 Under

57 Sherman Decl., Ex. 24, Federal Write-in Absentee Ballot,

https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.

58

Sherman

Decl.,

Ex.

25,

Federal

Postcard

Application,

https://www.fvap.gov/uploads/FVAP/Forms/fpca2013.pdf.

47

Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 48 of 71

UOCAVA, military and overseas voters also must be permitted to cast FWABs as an “Official Backup Ballot”59 or “back-up measure”60 to vote in federal races if they do not receive their regular absentee ballot. 52 U.S.C. §§ 20302(a)(3), 20303(a)(1) (“The Presidential designee shall prescribe a Federal write-in absentee ballot (including a secrecy envelope and mailing envelope for such ballot) for use in general, special, primary, and runoff elections for Federal office by absent uniformed services voters and overseas voters who make timely application for, and do not receive, States, absentee ballots.”). State legislatures have the discretion to permit UOCAVA voters to use FWABs to vote in state and local offices or not. 52 U.S.C. § 20303(a)(1).
The ballot is downloadable and printable from this url: https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. The envelope must be assembled by the voter, and the voter fills out both a voter information sheet and the official back-up ballot. “[A] Federal write-in absentee ballot shall be submitted and processed in the manner provided by law for absentee ballots in the State involved.” 52 U.S.C. § 20303(b). If the voter later casts an official state absentee ballot after casting their FWAB, they are instructed to “make every reasonable effort to inform the appropriate State election official that the voter has submitted more than one ballot.” 52 U.S.C. § 20303(d). Wisconsin already accepts and processes the FWAB for overseas civilian and military voters, even if they have not previously requested a ballot be delivered by mail. Sherman Decl, Ex. 2, Wolfe Tr. at 185:4-186:12.
Because these are write-in ballots, federal law sets forth specific rules for processing and counting FWABs, specifically:
(1) In completing the ballot, the absent uniformed services voter or overseas voter may designate a candidate by writing in the name of the candidate or by writing in the name of

59 Sherman Decl., Ex. 24, Federal https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf, at 3. 60 52 U.S.C. § 20303(a)(2).

Write-in

Absentee

Ballot,

48

Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 49 of 71
a political party (in which case the ballot shall be counted for the candidate of that political party). (2) In the case of the offices of President and Vice President, a vote for a named candidate or a vote by writing in the name of a political party shall be counted as a vote for the electors supporting the candidate involved. (3) Any abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a political party shall be disregarded in determining the validity of the ballot, if the intention of the voter can be ascertained. 52 U.S.C. § 20303(c). Regardless, both Wisconsin residents who are temporarily overseas and permanently overseas voters who were last domiciled in Wisconsin can both use FWABs as ballots, at least for federal races, while domestic civilian voters cannot cast FWABs for any race. The principle behind this is that a voter who is overseas will face hardship or potential disenfranchisement if this backup option is not made available to them. The COVID-19 pandemic now threatens many domestic civilian voters with hardship and potential disenfranchisement—their right to vote is entitled to the same protection, given these extreme circumstances. Affording domestic civilian voters the right to cast FWABs to the same extent as overseas civilian voters and allowing them to use the FWAB for all federal, state, and local races would also cure the constitutional and federal statutory violations caused by the lack of a fail-safe option for voters who request absentee ballots during this pandemic because they cannot safely vote in person and whose absentee ballots never arrive in the mail. Plaintiffs respectfully request that this Court order this as relief in the alternative or in addition to the email delivery of ballots in the narrow circumstance where a voter timely requests a mail-in absentee ballot be delivered by mail but does not receive that ballot. Both Ms. Witzel-Behl and Ms. Salas represent that “[i]t is not cumbersome or difficult to process these write-in absentee ballots.” Witzel-Behl Decl. ¶ 13; Salas Decl. ¶ 15.
4. Limiting the availability of these remedies by time
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Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 50 of 71
Because these proposed remedies are last resorts, their availability can and should be limited by time—for instance, to the last week before Election Day or even the last few days. This is the busiest time for clerks. With respect to online access and downloading, former City Clark Ms. Salas notes that the WisVote system can be used to enforce temporal limitations:
The WisVote database records whether a particular voter has previously requested a ballot or not and, because of the U.S. Post Office Intelligent Bar Code, the system identifies whether that ballot is in the mail, and if so, for how long. There are ways to limit the use of this feature for domestic civilian voters and make it available only to those who request a replacement ballot for one that did not arrive in the U.S. mail . . . Salas Decl. ¶ 13. Municipal clerks are still processing mail-in absentee ballot requests that come in until 5:00 p.m. on the Thursday before Election Day;61 administering in-person absentee voting through the Sunday before Election Day, Wis. Stat. § 6.86(1)(b); and making preparations for Election Day. Salas Decl. ¶¶ 4-5. Ordering these alternative delivery methods, especially online access and downloading of mail-in ballots through the MyVote portal, would cure the constitutional violations caused by absentee ballot delivery failures during the Covid-19 pandemic, while also alleviating strain on municipal clerks’ offices. Municipal clerks would not need to mail any replacement mail-in ballots, unless the voter could not access a ballot online, and USPS advises WEC that it takes seven days for a ballot to be delivered so a replacement ballot might not arrive in time if it is mailed. Sherman Decl., Ex. 2, Wolfe Tr. at 51:7-9. It should be noted though that many voters will continue to believe their ballot is still in the mail, even after the deadline to request a replacement ballot has passed. Salas Decl. ¶ 17. This deadline is the same as the deadline for any other request for a mail-in absentee ballot: 5:00 p.m. on the Thursday before Election Day. Id.; Wis. Stat. § 6.86(5); Wis. Stat. § 6.86(1)(b). For this
61 This is the deadline to make any request for an absentee ballot. Wis. Stat. § 6.86(5); Wis. Stat. § 6.86(1)(b); Wolfe Tr. at 139:3-14. If the Court orders this relief to cure the federal constitutional violation for voters who need replacement absentee ballots, it of course need not be bound by this deadline in Wisconsin law.
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Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 51 of 71
reason, Ms. Witzel-Behl, Madison’s City Clerk, contends that Plaintiffs’ proposed “back-up options should also be made available to voters through Election Day.” Witzel-Behl Decl. ¶ 15. Racine City Clerk Ms. Coolidge’s office “received hundreds of requests for absentee ballots after the cut-off date allowed by law,” and these were rejected. Coolidge Decl. ¶ 5. Ms. Coolidge does suggest a deadline earlier than Election Day so that she can reallocate staff to polling places that will need to duplicate more of these online-accessed ballots, but that deadline, if the Court adopted it, need not be long before Election Day. Id. ¶ 9.
Additionally, if the Court wanted to preclude a voter from requesting a ballot by mail delivery soon before the deadline and then quickly turning around and requesting a replacement ballot through online access or email delivery, it could limit the ordered relief to voters who requested their ballots via mail delivery a certain number of days in advance of the replacement ballot request seeking online access through the MyVote portal or email delivery. MyVote, which contains the voter’s absentee ballot request date, and WEC’s adoption of intelligent mail bar codes, which will record when the ballot was mailed to the voter, will enable such an automatic limitation.
iii. Witness requirement The witness requirement for mail-in absentee ballots has become unduly burdensome because of the Covid-19 pandemic. The key word is “unduly”: a voting regulation is unconstitutional if the burdens it imposes far outweigh its efficacy in advancing the state’s interests. See Thomas, 2020 WL 2617329, at *21 (“Thomas/Middleton Plaintiffs are likely to prevail on their constitutional challenge to the Witness Requirement under the Anderson-Burdick balancing test because the character and magnitude of the burdens imposed on Thomas/Middleton Plaintiffs in having to place their health at risk during the COVID-19 pandemic likely outweigh the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity.”); see also id. at *19 (“[T]he Witness Requirement further burdens [Plaintiffs] from
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exercising their right to vote by absentee ballot by requiring them to expose themselves to other people in contravention of maintaining safe social distancing practices”). Here, the Organizational Plaintiffs, not the Individual Plaintiffs, seek to enjoin the witness requirement.
All absentee ballots must be witnessed and signed by an adult U.S. citizen (other than those cast by military and overseas voters, whose absentee ballots may be witnessed by an adult who is not a U.S. citizen), but that individual need not be a resident of Wisconsin or a registered voter in the state. Wis. Stat. § 6.87(4)(b)1.62 The witness requirement applies to all absentee voters, regardless of the particular method by which the voter cast that absentee ballot. Id. The absentee ballot certificate contains both a voter certification and a witness certification, which the voter and witness must respectively sign under penalty of perjury.63
Because Wisconsin law requires that mail-in absentee ballots’ certifications be signed by the voter and by a witness who is an adult U.S. citizen,64 this requirement forces voters to engage someone outside their household and thereby take a risk with their health in order to cast a ballot that will be counted. All eligible Wisconsin voters who live alone or who do not have an adult U.S. citizen in their household, but particularly those who are at higher risk from Covid-19, will struggle to safely satisfy the witness requirement through reasonable efforts. According to the U.S. Census Bureau’s 2018 American Community Survey 5-Year Estimates, there are over 675,000 single-member households in Wisconsin, and many other households that include only one adult, and more than 250,000 of these single-member households are individuals over the age of 65.65

62 Sherman Decl., Ex. 26, Wisconsin Elections Commission, Form EL-122, Standard Absentee

Ballot

Certificate,

WIS.

ELECTIONS

COMM’N,

available

at

https://elections.wi.gov/sites/elections.wi.gov/files/gab_forms/4/el_122_standard_absentee_ballo

t_certificate_portra_17554.pdf.

63 Id.

64 As noted previously, for military and overseas voters, the witness need not be a U.S. citizen.

65 Sherman Decl., Ex. 27, U.S. Census Bureau, 2018 American Community Survey 5-Year

Estimates, Table S2501, Occupancy Characteristics, available at

https://data.census.gov/cedsci/all?q=S2501&hidePreview=false&tid=ACSST1Y2018.S2501.

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The Organizational Plaintiffs LWVWI and Wisconsin Alliance move for injunctive relief against the witness requirement.66 Under Havens Realty and Common Cause Indiana, 937 F.3d at 952, the Organizational Plaintiffs LWVWI and Wisconsin Alliance are severely burdened by the witness requirement. Voters, particularly those who are at higher risk from Covid-19 and who live alone, struggle with how to safely comply with this requirement and often require assistance to navigate the process and secure a signed witness certification. Civic engagement organizations like Plaintiffs LWVWI and Wisconsin Alliance have been compelled to divert organizational resources away from their core mission activities to educate and help voters comply with this requirement that is ill-suited to a pandemic. Havens Realty, 455 U.S. at 379; see also Common Cause Indiana, 937 F.3d at 952 (agreeing with sister circuits which “upheld the standing of voteradvocacy organizations that challenged election laws . . . [and] demonstrated the necessary injury in fact in the form of the unwanted demands on their resources.”). LWVWI and Wisconsin Alliance have already expended resources, time, and money educating and helping voters that would not need help but for the unconstitutional enforcement of the witness requirement and will continue to do so through the November general election. Cronmiller Decl. ¶¶ 9, 11-12; Mitchell Decl. ¶¶ 11-14. “For the April 7, 2020 election, LWVWI fielded calls, texts, emails, and social media messages from voters who were struggling to comply with the witness requirement, and LWVWI members offered to help voters by serving as Plaintiffs’ witnesses.” Cronmiller Decl. ¶ 9. For the November election, “LWVWI will be working with local Leagues and municipal clerks to identify volunteers to serve as witnesses and possibly staff absentee drop-off locations.” Id. ¶ 12. And Wisconsin Alliance will be diverting staff time and resources “to produce, publish, and distribute educational literature and materials on voting in the November election,” which will
66 Plaintiffs Claire Whelan and Sylvia Gear do not move for a preliminary injunction on this claim at this time.
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discuss how to navigate the witness signature requirement. Mitchell Decl. ¶ 14. None of these actions would be necessary if Defendants were not enforcing this requirement during a global pandemic.
It is patently unreasonable to require voters to engage in such a process to comply with the witness requirement when there are reasonable alternatives such as this Court’s own injunction providing a certification alternative or the Seventh Circuit’s panel suggestion of remote witnessing with the recording of a witness name, without a physical signature from that witness. Because the enforcement of the requirement during a pandemic is unreasonable as compared to its potential benefits to the state, the Organizational Plaintiffs LWVWI and Wisconsin Alliance are likewise injured because these organizations have diverted and will continue to divert resources, staff time, and money to educate and help voters who are struggling and/or unable to safely comply with the witness requirement through reasonable efforts.
The burdens imposed on voters forced to comply with the witness requirement during the Covid-19 pandemic far outweigh any benefit Defendants derive from it in seeking to deter, prevent, detect, or prosecute electoral fraud. Restrictions on voting must, at a minimum, further a legitimate state interest—it must be “necessary to burden the plaintiff’s rights.” Anderson v. Celebrezze, 460 U.S. 780, 780 (1983). The prevention of voter fraud is an important regulatory interest of Defendants, but any law designed to prevent voter fraud must be tailored to the burdens it imposes. See Norman v. Reed, 502 U.S. 279, 289 (1992); Fish v. Schwab, 957 F.3d 1105, 1132 (10th Cir. 2020) (observing that “the Secretary points to no concrete evidence that ‘[its] interests make it necessary to burden the plaintiff’s rights’ in this case”). Here, the witness requirement is not an effective tool to safeguard election integrity and, therefore, the state’s interest is greatly attenuated.
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Case: 3:20-cv-00249-wmc Document #: 421 Filed: 07/08/20 Page 55 of 71
More specifically, preventing and prosecuting voter fraud are legitimate interests, but the witness requirement has extremely limited law enforcement value. In his declaration, Marshall Tutor, a long-time election fraud investigator in North Carolina, debunks the notion that the witness requirement prevents absentee ballot fraud or can substantially assist law enforcement in detecting and prosecuting fraud. Tutor Decl. ¶ 9 (“I do not believe a two-witness signature requirement in any way prevents potential fraud such as that conducted by Mr. Dowless’ illegal ballot fraud activities. In my 15 years’ experience as an investigator with the State Board of Elections, I cannot think of a time or situation in which two absentee ballot witness signatures would have prevented absentee ballot fraud.”). Additionally, Mr. Tutor notes that a witness signature is easily forged so as to evade detection. Id. ¶ 6 (“I never detected a forgery just by reviewing the face of the absentee ballot envelope.”).
Even if the state identifies a legitimate state interest, the voting regulation cannot be unreasonable or irrational. The state’s own guidance on the witness requirement makes plain how unreasonable the requirement is during a pandemic.67 They want elderly people with multiple Covid-19 risk factors who live alone to ask a neighbor or postal worker or Meals on Wheels volunteer to observe them voting through a window or glass door and then pass the ballot under a closed door or through a crack in an open window to be marked, signed, and returned after handwashing or sanitizing.68 This is, on its face, an unreasonable proposition, and the state’s confusing guidance on the subject is requiring civic engagement organizations like the Organizational Plaintiffs LWVWI and Wisconsin Alliance to assist voters who live alone. This rigmarole and diversion of civic engagement organizations’ resources, money, and time could only
67 Sherman Decl., Ex. 28, Wisconsin Elections Commission, Absentee Witness Signature Requirement Guidance (Mar. 29, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/202003/Absentee%20Witness%20Guidance.pdf. 68 This procedure of course is not possible for individuals living in an apartment above the ground floor.
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be justified by a requirement that held unmistakable benefits for law enforcement, but as a former chief election fraud inspector has stated in his declaration, there is no such clear benefit. Tutor Decl. ¶ 9. Instead of requiring a physical signature on the ballot, this Court could order, at the Seventh Circuit’s suggestion, remote witnessing and compel voters to record the name and address of the witness on the ballot’s certificate envelope. This would satisfy the state’s attenuated interest, while greatly alleviating the burden on groups like LWVWI and Wisconsin Alliance to physically travel to a voter’s home in order to assist them. It would also be far easier to educate the public on remote witnessing than on how to stay safe while witnessing a ballot in person.
Further, Wisconsin law establishes other, less burdensome means that sufficiently safeguard election integrity. For example, it prohibits “[f]alsely mak[ing] any statement for the purpose of obtaining or voting an absentee ballot under ss. 6.85 to 6.87.” Wis. Stat. § 12.60(3)(i). Violators face a $1,000 fine and up to 6 months in prison. Id. § 12.60(1)(b). Additionally, Form EL-121, one of the ways by which voters may request an absentee ballot, states that “[a]bsentee ballots may not be forwarded”69 or sent to a P.O. Box,70 thereby reducing the risk of someone other than the voter obtaining and casting the ballot. It also requires applicants to provide their name as it appears on their voter registration and their birthdate,71 which are used to verify the voter’s identity. Voters must also sign the following statement: “I certify that I am a qualified elector, a U.S. Citizen, at least 18 years old, having resided at the above residential address for at least 10 consecutive days immediately preceding this election, not currently serving a sentence including probation or parole for a felony conviction, and not otherwise disqualified from voting.”72

69 Sherman Decl., Ex. 20, Form EL-121, Wisconsin Application for Absentee Ballot, WIS.

ELECTIONS

COMM’N

1

(Oct.

2018),

available

at

https://elections.wi.gov/sites/elections.wi.gov/files/2020-07/EL-

121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.

70 Id. at 2.

71 Id.

72 Id. at 1.

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While states need not wait for an election problem to arise before addressing it through legislation, voting regulations cannot be upheld if they are patently ineffective at advancing the state’s proffered interest. Cf. Lee v. Virginia State Bd. of Elections, 843 F.3d 592, 606 (4th Cir. 2016) (“In conducting the Anderson-Burdick analysis, the Court found that Indiana had a valid interest in adopting standards that aligned with federal election statutes, including HAVA, where Congress had indicated a belief that ‘photo identification is one effective method of establishing a voter’s qualification to vote.’” (quoting Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 193 (2008)) (emphasis added).
Therefore, under these circumstances of this pandemic, Section 6.87(4)(b)1. now creates an undue burden on LWVWI and Wisconsin Alliance in violation of the First and Fourteenth Amendments to the U.S. Constitution as construed in Anderson and Burdick.
iv. Remedies for voters who cannot safely comply with the witness requirement through reasonable efforts
Due to the witness requirement’s relative inefficacy and the persistent pandemic conditions, Section 6.87(4)(b)1. cries out for modification. This Court can order relief short of invalidation that would satisfy the state’s anti-fraud interest, while minimizing absentee voters’ exposure to the risk of infection.
On April 1, 2020, this Court presided over a hearing on Plaintiffs’ motion for a preliminary injunction. Ruling in Plaintiffs’ favor, the Court blocked the witness requirement in part: “Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.” 20cv-249, dkt. 171.
Defendant-Intervenors Republican Party of Wisconsin and Republican National Committee appealed the preliminary injunction and moved for and obtained a stay of the above-
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excerpted part of the preliminary injunction. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020). The Seventh Circuit’s motions panel concluded “that the district court did not give adequate consideration to the state’s interests in suspending this requirement.” Id. at *3. But notably, in seeking to strike a balance between the voters’ burdens and the state’s anti-fraud interest, the Court suggested that witnesses could observe voters casting their ballots remotely without actually physically signing the ballot:
So, too, do we have every reason to believe the Commission, in keeping with the forwardleaning action it has taken thus far to accommodate voters’ interests while also striving to ensure their safety, will continue to consider yet other ways for voters to satisfy the statutory signature requirement (if possible, for example, by maintaining the statutory presence requirement but not requiring the witness’s physical signature). Id. at *4. While this was a mere suggestion in dicta, the Organizational Plaintiffs LWVWI and Wisconsin Alliance now seek this as a remedy in addition to or in the alternative to this Court’s own reasonable efforts certification. The Seventh Circuit panel never ruled on the merits and has dismissed the appeals, so both forms of relief remain viable. While the Seventh Circuit panel clearly believed the witness requirement rationally advanced Wisconsin’s anti-fraud interest, there was limited evidence in the record at the time to evaluate the efficacy of witnessing in preventing, detecting, and prosecuting fraud. But there is record evidence now that demonstrates that the witness requirement’s weak benefits for law enforcement are outweighed by the burdens to civic engagement organizations like LWVWI and Wisconsin Alliance on the other side of the scales. For that reason, Plaintiffs respectfully request that this Court order either or both of the following alternatives: (a) a reasonable efforts certification, and/or (b) remote witnessing.
b. Unconstitutional Conditions Doctrine Plaintiffs are also likely to prevail on their alternative constitutional claim under the unconstitutional conditions doctrine. The failure to provide fail-safe options to absentee voters
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who do not receive their ballots in the mail and the witness requirement are also unconstitutional because they require voters to forfeit their fundamental right to bodily integrity as a condition of exercising their right to vote. Such state coercion violates the unconstitutional conditions doctrine.
Here, a condition is imposed on the exercise of the right to vote, which is protected by the First Amendment as a means of political association and political expression. Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed, 502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). Similarly, courts recognize a constitutional right to bodily integrity. See Washington v. Glucksberg, 521 U.S. 702, 777–78 (1997); Canedy v. Boardman, 16. F.3d 183, 185 (7th Cir. 1994) (quoting Planned Parenthood v. Casey, 112 S. Ct. 2791, 2806 (1992)) (“It is settled now . . . that the Constitution places limits on a State's right to interfere with a person’s . . . bodily integrity.”).
Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. Simmons v. United States, 390 U.S. 377 (1968) presented a classic violation of this doctrine, where a criminal defendant was effectively forced to incriminate himself in establishing his standing to move to suppress evidence on Fourth Amendment grounds. The Supreme Court noted that the defendant “was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.” Id. at 394. The Supreme Court found “it intolerable that one constitutional right should have to be surrendered in order to assert another.” Id. at 394. The doctrine has also been invoked to prohibit the imposition of conditions on First Amendment-protected activities that require the forfeiture of other rights. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977) (New York law unconstitutionally required political party leaders to provide unimmunized testimony before a grand jury, forcing
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leaders to choose between First Amendment right of association and Fifth Amendment right against self-incrimination); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (“This case presents an especially malignant unconstitutional condition because citizens are being required to surrender a constitutional right—freedom from unreasonable searches and seizures—not merely to receive a discretionary benefit but to exercise two other fundamental rights—freedom of speech and assembly.”).
Most directly relevant to this case, the Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court held that a one-year durational residency requirement for voter registration placed an unconstitutional condition on the fundamental right to interstate travel. Id. at 346, 353. The Court explained that “such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote.” Id. at 342. Notably, when First Amendment-protected rights such as the right to vote are at stake, it is irrelevant whether the government intended to coerce the voter into forfeiting a constitutional right. See Bourgeois, 387 F.3d at 1324–25 (“[T]he very purpose of the unconstitutional conditions doctrine is to prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights.” (emphasis added)).
Courts evaluate these claims by looking to the constitutional standard for the right that Plaintiffs are being coerced into surrendering. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). In Dunn, for instance, the durational residency requirement for voter registration was subjected to strict scrutiny because fundamental voting and interstate travel rights were implicated: “In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification
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(recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.” 405 U.S. at 335; see also Shapiro v. Thompson, 394 U.S. 618, 634, 638 (1969), rev’d in part on other grounds, Edelman v. Jordan, 415 U.S. 651, 670 (1974) (invalidating Connecticut’s one-year durational residential residency requirement for welfare eligibility as impermissible penalty on individuals who exercised their right to interstate travel) (“Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.”).
“[I]ndividuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest.” Guertin v. State, 912 F.3d 907, 919 (6th Cir. 2019) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696 F.3d 490 (6th Cir. 2012)). Government actions that threaten the right to bodily integrity must be narrowly tailored to achieve a compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). In the Flint water crisis case, Guertin, the Court articulated the following standard: “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” 912 F.3d at 921–22; cf. id. at 921 (“[A] government actor violates individuals’ right to bodily integrity by knowingly and intentionally introducing life-threatening substances into individuals without their consent, especially when such substances have zero therapeutic benefit.”). In this case, absente relief from this Court, the challenged Wisconsin laws would force voters in certain circumstances to vote in person at risk to their bodily integrity, health and life.
Because Wisconsin law bars regular absentee voters from online access and downloading or email delivery options for absentee voting even if their ballots do not arrive by mail, Wis. Stat.
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§ 6.87(3)(d), bars regular voters from casting a FWAB, and requires at-risk absentee voters who live alone to satisfy a witness requirement during this pandemic, Defendants place unconstitutional conditions on the right to vote that coerce Plaintiffs into forfeiting their right to bodily integrity.
The Organizational Plaintiffs will not re-state the facts as to their witness requirement challenge. Suffice it to say that the witness requirement does not sufficiently advance the state’s interest in preventing vote by mail fraud to justify the unreasonable diversion of resources it has forced upon and will continue to force upon LWVWI and Wisconsin Alliance. These organizations will always seek to educate and help voters, but they are expending time, money, and resources helping voters safely comply with a requirement that is of extremely limited value to Defendants’ anti-fraud interests. What is more, because the majority of their members are above the age of 65, the witness requirement impermissibly conditions their members’ right to vote on forfeiture of their right to bodily integrity. Cronmiller Decl. ¶ 7.
As to Plaintiffs’ challenges to restrictions on alternative absentee ballot delivery methods, Plaintiff Kohlbeck cannot vote in person because she is undergoing cancer treatment and in an atrisk age group, Kohlbeck Decl. ¶ 3; Plaintiff Diane Fergot cannot vote in person because she has hypertension and a history of blood clots, Diane Fergot Decl. ¶ 4; and Plaintiffs Gary Fergot, Bahr Olsan, and Sheila Jozwik cannot vote in person because they are each above the age of 65, Gary Fergot Decl. ¶ 1; Bahr Olsan Decl. ¶ 1, Sheila Jozwik Decl. ¶ 1. Therefore, since April, they have relied on vote by mail to cast their ballots, and each were disenfranchised in the Spring Election after their ballots failed to arrive, and their only remaining option was to vote in person at risk to their bodily integrity, health, and life. Faced with a choice between exercising their right to vote or their right to bodily integrity, they sacrificed the former to defend the latter. Cf. Dunn, 405 U.S. at 334 (durational residence laws impermissibly penalized people who had recently exercised their right to interstate travel); Shapiro, 394 U.S. at 634 (law establishing waiting period for new state
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residents before they qualified for welfare benefits impermissibly penalized people who had exercised their right to interstate travel). Because these Plaintiffs never received an explanation for why their ballots never arrived and have received no assurances that these issues have been resolved going forward, they risk confronting the same impermissible choice in November.
At age 70, Plaintiff Gregg Jozwik is also at risk of severe illness or death from Covid-19. After not receiving his ballot, he too faced the choice between his right to vote and his right to bodily integrity. He chose his right to vote, which required him to vote in person and forego his right to bodily integrity. Gregg Jozwik Decl. ¶ 8. He estimated that about half of the voters at his polling place were not wearing masks, Gregg Jozwik Decl. ¶ 8; nor does Wisconsin law impose a requirement that voters wear masks or employ any other preventative measures in public. Therefore, due to election officials’ failure to make a ballot electronically available to him or to let him vote by FWAB, they impermissibly conditioned his right to vote on forfeiture of his right to bodily integrity. Cf. Dunn, 405 U.S. at 334; Shapiro, 394 U.S. at 634. Mr. Jozwik risks the same injury again in November, as he has received no explanation for why he never received his Spring Election absentee ballot, nor any assurances that those issues have been resolved.
For these reasons, Plaintiffs are likely to succeed on the merits of their unconstitutional conditions claim as well.
c. Title II of Americans with Disabilities Act Plaintiffs Kohlbeck, Diane Fergot, Whelan, and LWVWI are also likely to succeed on the merits of their Title II of the Americans with Disabilities Act (“ADA”) claim. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “[W]ith respect to an individual,” the law defines “disability” as: “(A) a physical or mental impairment that substantially
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limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Id. § 12102(1)(A)–(C). The term “major life activity” encompasses “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. § 12102(2)(B) (emphasis added). “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” Id. § 12102(4)(A). Furthermore, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” Id. § 12102(4)(E)(i).
Public entities must make “reasonable modifications” to rules, policies, or practices, remove barriers, or provide aid so that they are accessible to individuals with disabilities. Id. § 12131(2). To accommodate a disability in the context of a public service would be to make some change enabling a person with a disability to “participat[e] in or [enjoy the] benefits of services, programs, or activities of a public entity.” Id. § 12132 ; Lacy v. Cook Cty., 897 F.3d 847, 853 (7th Cir. 2018) (“The obligation to make ‘reasonable modifications’ parallels the obligations to make ‘reasonable accommodations’ in the context of Title I”); Washington v. Indiana High Sch. Ass’n, 181 F.3d 840, 848 (7th Cir. 1999) (“Congress clearly intended the failure-to-accommodate method of proving discrimination to apply to Title II”). An accommodation is reasonable if “it is both efficacious and proportional to the costs to implement it.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002).
Here, Plaintiffs Kohlbeck, Whelan, and Diane Fergot each have health conditions that limit major life activities, thereby placing them under the ADA’s protections and requiring Wisconsin
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election officials to make reasonable modifications so that they can participate in the November general election. These conditions also put them at increased risk of severe illness from Covid-19.
Plaintiff Kohlbeck was diagnosed with cancer earlier this year. According to the CDC, cancer compromises Plaintiff Kohlbeck’s immune system, which in turn places her at increased risk from Covid-19.73 The ADA specifically identifies “functions of the immune system” as a major bodily function. 42 U.S.C. § 12102(2)(B).
Plaintiff Whelan lives with asthma, which interferes with the major bodily function of breathing. The CDC has also identified asthma as a condition that can put someone at increased risk from Covid-19.74 The ADA specifically identifies respiratory function as a major bodily function. Id.
Plaintiff Diane Fergot lives with hypertension and has a history of blood clots. Hypertension is a disease impacting the circulatory system that can result in damage to the heart, brain, and other major organs.75 It also places her at increased risk from Covid-19.76 The ADA specifically identifies circulatory function as a major bodily function. Id.
Wisconsin election officials can reasonably accommodate Plaintiff Kohlbeck, Whelan, and Fergot’s disabilities by guaranteeing them the ability to receive a ballot through MyVote or email delivery, or to cast a FWAB should they fail to receive their absentee ballot by mail. In this way, they would be able to avoid the risk of infection at a polling place and still vote in the general

73 Sherman Decl., Ex. 29, If You Are Immunocompromised, Protect Yourself From COVID-19,

CDC,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/immunocompromised.html (last updated May 14, 2020).

74 Sherman Decl., Ex. 30, Coronavirus Disease 2019 (COVID-19): People of Any Age with

Underlying Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/people-with-medical-

conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-

ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html (last updated Jun. 25, 2020).

75 Sherman Decl., Ex. 31, High Blood Pressure Symptoms and Causes, CDC,

https://www.cdc.gov/bloodpressure/about.htm (last updated May 19, 2020).

76 Sherman Decl., Ex. 6, CDC, People of Any Age with Underlying Medical Conditions.

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election. This accommodation would be “efficacious and proportional to the costs to implement it” because municipal clerks already electronically transmit ballots to military and overseas voters, and electronic transmission spares clerks’ offices the time, effort, and expense of printing and mailing an absentee ballot. Oconomowoc Residential Programs, 300 F.3d at 784.
Plaintiff LWVWI has standing to seek fail-safe alternatives for ballot delivery failures on behalf of its members, who include Claire Whelan, and many of whom are at risk because they are above the age of 65. Cronmiller Decl. ¶ 7. It also has standing in its own right to seek this accommodation and waiver of the witness requirement, as Covid-19 has forced it to divert resources to conduct additional voter education on vote by mail. Id. ¶ 6. In the 2020 Spring Election, LWVWI conducted voter education and fielded calls from municipal clerks and voters in response to ballot delivery failures, and plans to do so again for the August and November elections. Id. ¶ 10-11, 13. With respect to the witness requirement, for the 2020 Spring Election, it “fielded calls, texts, emails, and social media messages from voters who were struggling to comply with the witness requirement, and LWVWI members offered to help voters by serving as Plaintiffs’ witnesses.” Id. ¶ 9. Two local chapters “worked with Meals on Wheels and educated its delivery people on how to serve as witnesses for people who live alone. LWVWI-Dane County also worked with the Dane County Voter ID Coalition to mobilize their Voter ID helpline to identify voters in need of a witness and to provide assistance as needed.” Id. Until then, LWVWI had never needed to expend resources on voter education and assistance specific to the witness requirement—an injury directly attributable to the State’s refusal to waive the requirement during the duration of the pandemic. Id. ¶ 9. LWVWI and its local chapters plan to make these efforts again for the November Election, though LWVWI anticipates that they will be unable to help all voters who will require assistance fulfilling the witness requirement. Id. ¶¶ 6, 11, 12.
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For these reasons, Plaintiffs are likely to succeed on the merits of their ADA claim. Accordingly, the Court should grant their requested relief.
3. Absent relief from this Court, Plaintiffs are certain to suffer irreparable harm because there is no way to regain one’s right to vote after an election is held. The Seventh Circuit has stated that “[t]he existence of a continuing constitutional violation
constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.” Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978); see also Ezell v. City of Chicago, 651 F.3d 684, 697-700 (7th Cir. 2011) (finding irreparable harm when plaintiffs’ Second Amendment rights were likely violated). “When constitutional rights are threatened or impaired, irreparable injury is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury.” Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (citations omitted) (affirming preliminary injunction against law which imposed shorter in-person early voting period for nonmilitary Ohio voters than for military voters).
In virtually all circumstances implicating the exercise of voting rights, courts have found that the harm is irreparable because a violation of constitutional rights that implicate a voter’s ability to cast a ballot cannot be redressed after the election. Common Cause Ind. v. Lawson, 327 F. Supp. 3d 1139, 1155 (S.D. Ind. 2018), aff’d, 937 F.3d 944 (7th Cir. 2019) (“A violation of the right to vote is presumptively an irreparable harm.”) (citing McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 1440–41 (2014); Reynolds v. Sims, 377 U.S. 533, 555 (1964); Elrod v. Burns, 427 U.S. 347, 373-74 & n.29 (1976) (plurality opinion); Ezell, 651 F.3d at 699)) (additional citations omitted); Dillard v. Crenshaw, 640 F. Supp. 1347, 1363 (M.D. Ala. 1986) (“Abridgement or dilution of a right so fundamental as the right to vote constitutes irreparable injury.”).
Absent relief from this Court, Plaintiffs are certain to suffer irreparable harm because there is no way to regain one’s right to vote after an election is held. Plaintiffs will suffer loss of their right to vote if alternatives to mail delivery are not ordered by this Court. Plaintiffs Kohlbeck,
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Diane Fergot, Gary Fergot, Bahr Olsan, and Sheila Jozwik, are all at elevated risk of suffering severe complications and even dying from Covid-19. They cannot safely vote in person and if, once again, no absentee ballot arrives in the mail and they have no recourse, such as online access and downloading or email delivery, they will lose their right to vote. Similarly, all of those Plaintifsf and Gregg Jozwik will either lose his right to vote without a fail-safe alternative or be unconstitutionally compelled to make a choice between their right to bodily integrity and their right to vote.
Once the election is held and the results are certified, the injury to these voters’ constitutional rights will of course be irreparable. There is no adequate remedy at law, no damages, that can make a disenfranchised voter whole. In addition, the LWVWI and the Wisconsin Alliance will both be irreparably harmed because their members will be disenfranchised, and because both organizations will have expended resources, time, money, and effort to try to assist voters with voting absentee under these circumstances, including by helping them navigate absentee ballot delivery failures and safe compliance with the witness requirement.
4. The balance of hardships militates strongly in favor of an injunction. The element involving the balance of harms comes down to a requirement that injunctive
relief “must do more good than harm.” Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009). The balancing requires the court “to choose the course of action that minimizes the cost of being mistaken” and “compare the potential irreparable harms faced by both parties to the suit – the irreparable harm risked by the moving party in the absence of a preliminary injunction against the irreparable harm risked by the nonmoving party if the preliminary injunction is granted.” Girl Scouts of Manitou Council, 549 F.3d at 1100. The balancing of harms also impacts the threshold requirement of the plaintiff’s likelihood of success: “[h]ow strong a claim on the merits [must be] depends on the balance of harms: the more net harm
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an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d at 725. This “sliding scale” approach means that the “more likely it is that [the plaintiff] will win its case on the merits, the less the balance of harms need weigh in its favor.” Girl Scouts, 549 F.3d at 1100.
If the court does not grant a preliminary injunction in this case, thousands of Wisconsinites isolated by the current Covid-19 crisis will be unable to cast a ballot that counts. There is little likelihood that extending online access and downloading and email delivery to all regular absentee voters or offering alternatives to the witness requirement will cause more harm to Wisconsin voters or the public than the disenfranchisement that would otherwise result from the court’s failure to issue the requested injunction.
Additionally, there will be no increased administrative burden or costs for Defendants from relaxing the witnessing requirement by permitting remote witnessing without a signature. If anything, the administrative burden will likely be reduced. As to ordering alternative ballot delivery methods, the requested injunction will require some amount of work by Defendants to update the MyVote portal and WisVote, and to inform municipal clerks. First, WEC is already in updating MyVote and WisVote right now. Sherman Decl., Ex. 2, Wolfe Tr. at 159:4-13. And second, the U.S. Supreme Court has explicitly stated that constitutional rights do not bend to administrative convenience and financial considerations. See, e.g., Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 218 (1986) (striking down Connecticut’s closed primary law on First Amendment associational rights grounds) (“Costs of administration would likewise increase if a third major party should come into existence in Connecticut, thus requiring the State to fund a third major party primary. Additional voting machines, poll workers, and ballot materials would all be necessary under these circumstances as well. But the State could not forever protect the two
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existing major parties from competition solely on the ground that two major parties are all the

public can afford.”).

5. Ordering these alternatives for voters who do not receive their ballot in the mail or who are struggling to safely comply with the witness requirement would also advance the public’s interest in maximizing eligible Wisconsin voters’ participation and preventing the denial of voting rights.

The balancing of harms also looks at the effect on nonparties and the public interest. The

Seventh Circuit has stated that remedying a “continuing constitutional violation . . . certainly would

serve the public interest.” Preston, 589 F.2d at 303 n.3; see also Joelner v. Vill. of Washington

Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004) (“Surely, upholding constitutional rights serves the

public interest.”) (quoting Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003)).

Issuing a preliminary injunction to prevent the disenfranchisement of countless mail-in absentee

voters would serve the public interest by vindicating constitutional rights and ensuring that the

integrity and legitimacy of Wisconsin elections is not undermined or destroyed by the

unconstitutional failure to afford voters who are at higher risk from Covid-19 alternatives to

receive their absentee ballot and alternatives to the witness requirement. The public has a strong

interest in the safeguarding of these individuals’ fundamental voting rights.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion

for a preliminary injunction.

Dated: July 8, 2020

Respectfully submitted,

/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450

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Washington, D.C. 20006 (202) 331-0114 (telephone) jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org Douglas M. Poland State Bar No. 1055189 David P. Hollander, State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com Attorneys for Plaintiffs in Case No. 20-cv-278-wmc *Admitted to the U.S. District Court for the Western District of Wisconsin
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 Case: 3:20-cv-00249-wmc Document #: 227 Filed: 06/25/20 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Plaintiffs,

Case No. 20- CV-249

v.

MARGE BOSTELMANN, et al.,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants

SYLVIA GEAR, et al.,

Plaintiffs,

Case No. 20- CV-278

v.

DEAN KNUDSON, et al

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN AND WISCONSIN STATE LEGISLATURE,

Intervening Defendants.

WEC DEFENDANTS’ STATUS REPORT

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Defendants Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs and Marge Bostelmann, by their undersigned counsel and pursuant to this Court’s Order of June 10, 2020, submit the following statement:
I. Measures the WEC is Taking or Anticipates Taking to Prepare for the August and November 2020 Elections.
Given the COVID-19 crisis, and in addition to normal election preparations, the Wisconsin Elections Commission (“WEC”) and its staff have taken, or plan to take the following measures to prepare for the August and November Elections:
a. Comprehensive Reports: “Summary of April 7, 2020 Election” and “April 7, 2020 Absentee Voting Report.” Following the April 7, 2020 Spring Election, WEC staff compiled a report1 for the Commission that captured the major efforts the WEC staff responded to and implemented for the April 7, 2020 Election. The report identified areas of impact, provided a discussion of each, and outlined next steps related to efforts and initiatives of WEC staff to improve election administration for the 2020 Fall elections. The report was presented and accepted by the Commission at its April 18, 2020 meeting. The report is attached as Exhibit A. The Commission also directed staff to compile a report2 outlining absentee voting issues identified during the April 7, 2020 election and provide recommendations on how to improve absentee voting processes moving forward given the anticipated shift
1 https://elections.wi.gov/sites/elections.wi.gov/files/202004/April%207%20Election%20Summary%20and%20Next%20Steps.pdf 2 https://elections.wi.gov/node/6908
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to by-mail absentee voting that will occur at the 2020 Fall elections. The Commission adopted the report at its May 20, 2020 meeting. The report is attached as Exhibit B. b. Absentee Ballot Mailers. On May 27, 2020, the WEC directed staff to spend federal CARES Act grant money (approximately $2.25 million) to develop, print and send an informational mailing to approximately 2.7 million registered voters in Wisconsin that provides information about the options for voting at the 2020 General Election. The mailer will be sent to registered voters who do not have an active absentee ballot request on file and who are not on the Electronic Registration Information Center (ERIC) Movers List. The informational mailing also includes a paper absentee ballot request form for voters that choose to request an absentee ballot using a paper form. The paper form can be returned to the WEC or the voter’s municipal clerk to request an absentee ballot. Due to the anticipated high volume of absentee ballot requests for the 2020 General Election, WEC staff and contractors will be assisting with data entry of the requests into the statewide voter registration system (WisVote). Municipal clerks would still be required to review the request and take action by either approving the request and sending the ballot, following up with the voter to obtain additional information, or denying the request if applicable. WEC staff would also be available to follow-up with
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absentee voters that submitted an incomplete application, including a lack of photo ID if required. The intent is to shift some of the data entry volume away from municipal clerks so they can focus on final review of the application and getting absentee ballots out to voters as soon as practicable after receiving the request. The informational mailer was sent to the printer on June 22, 2020 to begin the printing and proofing process. The informational mailing is scheduled to be sent on or about September 1, 2020 to the targeted group of registered voters. A sample of that mailer and paper absentee ballot request form is attached as Exhibit C. c. Sanitation and PPE Supplies3. The WEC has directed staff to spend federal CARES Act grant money ($500,000) to secure and distribute sanitation supplies and other materials to all 72 counties across the state, who in turn will distribute these supplies to municipalities in their respective counties. Similar to the distribution of supplies coordinated between the WEC, the State Emergency Operations Center, the Wisconsin National Guard and County Clerks for the April election, based on a needs survey conducted in mid-June, the WEC anticipates providing municipalities with the following supplies (subject to availability) for the upcoming Fall elections: disinfecting solution (surface and hand sanitizer), empty spray bottles for use with
3 https://elections.wi.gov/sites/elections.wi.gov/files/202005/Clerk%20Comm%20re%20May%2027%20Commission%20Meeting.pdf
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disinfecting solution, paper towels, disinfecting wipes such as Clorox wipes, hand sanitizer (normal gel based), procedural masks, latex gloves, painters tape (social distancing markers, signage). Isopropyl wipes (for equipment cleaning) and one-time use writing utensils are also possible supplies that could be available and distributed if requested. Municipalities are also instructed to use any leftover supplies from the April election for the August and November elections. d. Funding to Municipal Clerks (Subgrants)4,5. The WEC has directed staff to spend federal CARES Act grant money (up to $4.1 million) to provide subgrants to municipalities to help pay for increased election costs due to the COVID-19 pandemic. A municipality is eligible to receive a base grant amount of $200 plus an additional amount of $1.10 per registered voter in their municipality. Allowable uses for the subgrant to municipalities include: additional ballot supplies, printing and postage for higher levels of absentee voting, additional cleaning supplies, cleaning services and protective equipment, additional staffing for processing higher levels of absentee ballots, additional mailings for public communication related to changes in procedures or other pandemic related issues, additional absentee ballot drop boxes,
4 https://elections.wi.gov/sites/elections.wi.gov/files/202005/Clerk%20Comm%20re%20May%2027%20Commission%20Meeting.pdf 5 https://elections.wi.gov/WEC-CARES-subgrant
5

Case: 3:20-cv-00249-wmc Document #: 227 Filed: 06/25/20 Page 6 of 15
additional space leasing to process higher volumes of absentee ballots or spread out operations, and acquisition of additional equipment necessary to process a higher volume of absentee ballots. This subgrant opened on June 17, 2020 and municipalities have until September 1, 2020 to submit a subgrant agreement to the WEC requesting the funds. e. Intelligent Mail Barcodes6. The WEC has directed staff to spend federal CARES Act grant money (up to $400,000) on WEC staff development costs for Intelligent Mail Barcodes (IMBs) and other absentee process improvements. IMBs will allow clerks and voters to track an absentee ballot once it leaves the municipal clerk’s office and enters the mail stream of US Postal Service. IMBs are scanned by US Postal Service processing centers while the ballot is en route to the voter. Users of the WisVote system (clerks, staff) will have access to the status and location of the ballot in WisVote and their voters will have access to this US Postal Service-informed information on the MyVoteWI website. Use of IMBs will not change the preparation of absentee ballots in any significant way, but they will allow for more precise population of tracking information in WisVote/MyVoteWI. WEC staff have also conducted training webinars for clerks on IMBs7.
6 https://elections.wi.gov/sites/elections.wi.gov/files/202005/Clerk%20Comm%20re%20May%2027%20Commission%20Meeting.pdf 7 https://elections.wi.gov/node/6926
6

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f. Clerk Advisory Committee for Vote by Mail. Following the April 7 Spring Election, WEC formed a new Clerk Advisory Committee dedicated to Vote by Mail to provide direction and feedback from clerks on WEC staff proposals regarding Vote by Mail8.
g. HAVA Elections Security Subgrant to Counties9. The WEC has directed staff to spend federal Help America Vote Act (HAVA) security funds (up to $3.9 million) by offering a subgrant to assist counties with improvement of their overall election security posture as they prepare for the 2020 Fall elections. The subgrant funds are being provided to assist counties with conducting assessments of their systems, remediation of discovered issues and other overall improvements to election security at the county level. The HAVA election security subgrant to counties provides a maximum allocation of a $35,000 base grant per county, plus an additional amount of $.30 per voting-age person in the county based on 2019 voting-age population demographics estimated by the Wisconsin Department of Administration. Counties will complete an application outlining individual security needs based on its assessment, and the Commission will approve subgrants up to the allowable amount per the approved formula.
8 https://elections.wi.gov/sites/elections.wi.gov/files/2020-05/May%2020%2C%202020.Final_.pdf 9 https://elections.wi.gov/sites/elections.wi.gov/files/2020-06/Open%20Session%206.10.2020.Final_.pdf
7

Case: 3:20-cv-00249-wmc Document #: 227 Filed: 06/25/20 Page 8 of 15
h. HAVA Elections Security Subgrant – Reopened to Municipalities10. In 2019, the WEC offered a HAVA election security subgrant to municipalities to obtain up to date, secure hardware, professional IT support to help manage their systems and to ensure that clerks attend security training offered by the WEC and other partners. Not all municipalities applied for the subgrant in 2019. The WEC has authorized the reopening of this grant program in 2020 to municipalities that did not take advantage of it in 2019. The WEC has directed staff to spend HAVA security funds (up to $2.1 million) to assist municipalities in meeting basic security standards prior to the 2020 Fall elections. Municipalities are eligible to receive up to $1,200 to address either baseline security needs, or if those standards are already met, advanced security needs as outlined in the agreement.
i. Changes to MyVote11. In conjunction with the introduction of Intelligent Mail Barcodes described above, and changes to WisVote described below, WEC staff introduced several upgrades to the MyVote Wisconsin website to improve the quality and quantity of information available to voters. Changes were applied to the absentee request process and to the absentee tracking process. For the request process, a more-user friendly interface and menu options were developed through extensive usability testing conducted with the general public.
10 https://elections.wi.gov/sites/elections.wi.gov/files/2020-06/Open%20Session%206.10.2020.Final_.pdf 11 https://elections.wi.gov/sites/elections.wi.gov/files/2020-06/Open%20Session%206.10.2020.Final_.pdf
8

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These changes were specifically designed to reduce the most common user errors, such as submitting a personal photograph instead of a photo ID. Changes to the tracking process added information and linked MyVote tracking to US Postal Service mail tracking data. This will enable voters to more precisely observe the status of their absentee request and know when a ballot has been mailed to them. j. Changes to WisVote12. WEC staff are making changes to the WisVote system to meet the needs of clerks experiencing a large increase in the demand for absentee ballots. The WisVote system was originally designed to offer multiple methods for managing absentee ballot requests and ballot records meant to meet the needs of all sizes of communities in Wisconsin. While helpful, multiple methods can create confusion among clerks and their staff. WEC staff intend to work with clerks to identify which method of processing absentee ballot requests, ballot records, and absentee address labels is best in managing high volumes of requests, and train exclusively on this method. WEC staff also intend to implement additional tracing procedures and audit tools in WisVote to enable early detection of issues that could occur during the high volume of absentee ballot request processing. Such tools will allow technical staff greater insight into the internal WisVote processes that go beyond the current audit logs and reports to allow
12 https://elections.wi.gov/sites/elections.wi.gov/files/2020-06/Open%20Session%206.10.2020.Final_.pdf
9

Case: 3:20-cv-00249-wmc Document #: 227 Filed: 06/25/20 Page 10 of 15
near real-time monitoring of system performance. Enhanced monitoring will allow WEC staff to identify potential issues and address all issues more quickly if necessary. WEC staff are also exploring ways to provide clerks and voter more immediate feedback from the system to provide users confidence they have successfully navigated a process, or if there is an issue that needs attention before the process can be completed. Finally, additional reports are planned so clerks can more efficiently manage and audit absentee ballot requests and ballots entering and leaving their office. The increased reports will help provide clerks more confidence that all requests have been processed and all absentee ballots have been sent to voters with valid requests on file. WEC staff are hopeful that these improvements in WisVote will provide clerks the tools they need to monitor their absentee data more closely and help identify and resolve potential issues that occur. k. Usability Testing. WEC staff continue to conduct usability testing on items presented to clerks and the general public, to ensure clear messaging and understanding by intended audiences. For example, usability testing was used during the development of the voter information mailing that will be sent out in September, to insure voters would understand the information and instructions being provided to cast a ballot at the General election.
10

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l. Poll Worker Recruitment/Training/National Guard Assistance13,14. The WEC staff continue to urge counties and municipalities to solicit election inspectors for the upcoming 2020 Fall elections. While Wisconsin National Guard members may be available to assist with staffing polling locations in the Fall, that is not currently confirmed. WEC staff will continue to monitor the impact of COVID-19 on polling place staffing leading up to those elections. WEC staff has compiled training protocols for Wisconsin National Guard members that are ordered to serve as election inspectors on election day. Should Wisconsin National Guard members be needed to serve as election inspectors during the 2020 Fall elections, appropriate training will be provided to those members called to serve15. WEC staff has also created recruitment tools that can be used by local election officials to reach out to groups in their community to encourage them to serve as poll workers. Outreach tools include template news releases, letters, and social media posts that can be used by local election officials as well as suggestions for community groups they may wish to work with. WEC will also continue to promote the need for poll workers through our MyVote website widget, through earned and social media, and by
13 https://elections.wi.gov/node/6766 14 https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/3.20.20%20Letter%20to%20Governor.pdf 15 https://elections.wi.gov/COVID-19/training-for-poll-workers
11

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encouraging state employees and working with state leadership to promote the efforts. m. Voter Outreach Videos, Guides, and Survey. To help educate voters on unfamiliar aspects of voting, WEC is working with their advertising agency to produce videos, web content, social media content, earned media plans, and other outreach documents and tools. These educational resources will be made available to local election officials, voter groups, and the general public to explain the mechanics of how to vote by absentee ballot and on how state and local election officials ensure that voting by absentee ballot is secure. WEC will also continue to focus on earned media strategies such as press releases, news conferences, and public appearances to educate the public about the process, deadlines, and requirements of absentee voting. WEC is also working to conduct a second, statewide survey of Wisconsin voters to learn more about where they obtain their election administration information, what sources they trust, and what additional information about the voting process they are seeking. Based on the data collected in this survey, additional voter tools will be created to provide the type of information voters are seeking through the channels they utilize and trust.
12

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n. Public Health Guidance16. For the April 2020 Election, WEC staff worked with public health officials to produce over 20 public health guidance documents for clerks, poll workers, and the public. WEC will continue to work with public health officials to ensure that the guidance is kept current and to create additional guidance as needed. WEC staff also plans to post public health information about elections specifically for the public. Public outreach documents and the voter mailer both reference the elections.wi.gov/covid-19 webpage, therefore, work is being conducted on that webpage to present elections public health information to voters in a approachable and useful format.
o. Local Election Official and Election Inspector Training17. WEC staff continue to provide training opportunities to both local election officials and election inspectors in advance of the August and November elections. A webinar series has been developed that will provide training on administrative elections procedures and training on the use and functionality of elections IT applications used to manage elections in Wisconsin. The goal of these trainings is to increase and maintain the consistency of how elections are administered across jurisdictions and provide access to elections training required by law. Training subject matter is varied with presentations developed for local election officials, such as issuing and managing absentee ballots,
16 https://elections.wi.gov/covid-19 17 https://elections.wi.gov/clerks/education-training/webinars
13

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to election inspector focused training on subjects such as managing the poll book on election day. Training specific to conducting elections during the current public health crisis will be developed and COVID-19 related material will be added to existing trainings to supplement those programs. The training offered by WEC is provided through online learning platforms and is available at no cost to local election officials and election inspectors. Most agency training programs use live webinars that are recorded and posted to the agency website for viewing at any time by trainees who could not participate live. The agency also maintains on online learning center which houses training on agency elections administration IT applications and elections security procedures. II. WEC Statement on Whether Any Additional Requested Relief Would Improve the Administration of the August and November 2020 Elections. Among the relief sought in the Second Amended Complaint is a request that this Court order WEC to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner. [Dkt. No. 198-1, p. 39, ¶ G]. To the extent that this relief comports with measures identified in Section I, supra, the WEC believes it will improve the administration of the remaining 2020 Elections. Otherwise, the WEC takes no position on whether the additional relief would be helpful.
14

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III. WEC Statement on Whether It Has the Statutory Authority to Provide Any of the Relief Requested by Plaintiffs.
The WEC has the statutory authority to administer Wisconsin’s election statutes. Wis. Stat. § 5.05 (1). Therefore, the WEC has the authority to implement the measures described in Section I. The WEC does not have the authority to waive or adjust Wisconsin’s statutory election requirements, including deadlines.

Dated: June 25, 2020

LAWTON & CATES, S.C.
Electronically signed by Daniel S. Lenz Dixon R. Gahnz, SBN: 1024367 Daniel S. Lenz, SBN: 1082058 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375
345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dlenz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com

15

 
 Case: 3:20-cv-00249-wmc Document #: 230 Filed: 06/26/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, v.

20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants, and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants. ______________________________________________________________________________

SYLVIA GEAR, MALEKEH K. HAKAMI, PATRICIA GINTER, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS and LEAGUE OF WOMEN VOTERS OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

Case: 3:20-cv-00249-wmc Document #: 230 Filed: 06/26/20 Page 2 of 5

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs, v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

Case No. 20-cv-284-wmc

JOINT STIPULATION REGARDING PENDING MOTIONS REGARDING GEAR PLAINTIFFS’ COMPLAINT AND FIRST AMENDED COMPLAINT
Counsel for the Gear Plaintiffs and the Wisconsin Elections Commission (“WEC” or “Commission”) Defendants in Case No. 20-cv-278 met and conferred by Zoom call on June 25, 2020 in an effort to resolve certain pending disputes in anticipation of Monday’s status conference, to narrow issues in dispute, and to expedite the Court’s resolution of the substantive issues posed by the Gear action. Subsequently, the Gear Plaintiffs and the WEC Defendants agreed to enter into the following joint stipulation:
1. The WEC Defendants do not object to the Gear Plaintiffs’ filing of the attached proposed First Amended Complaint. See Exhibit A. The WEC Defendants expressly do not endorse the proposed First Amended Complaint in any way and reserve the right to answer or otherwise plead in response to the proposed First Amended Complaint.
2. The proposed First Amended Complaint attached as Exhibit A differs in very limited respects from the proposed First Amended Complaint attached to the Gear Plaintiffs’
2

Case: 3:20-cv-00249-wmc Document #: 230 Filed: 06/26/20 Page 3 of 5
Motion for Leave to Add and Drop Plaintiffs, dkt. 148-1. As is shown in the redline version attached as Exhibit B to this Stipulation, the Gear Plaintiffs seek to: (a) add an additional form of relief that will permit certain voters to electronically access and download a mailin absentee ballot, reducing the administrative burden on municipal clerks’ offices in sending replacement mail-in absentee ballots; (b) correct an error with respect to Plaintiff Gregg Jozwik; and (c) correct some non-substantive typographical errors. As compared to the proposed First Amended Complaint attached to the Gear Plaintiffs’ Motion for Leave to Add and Drop Plaintiffs, dkt. 148-1, no parties or causes of action have been added or dropped. 3. The Gear Plaintiffs and the WEC Defendants have agreed to abandon their respective positions with respect to the pending motion to dismiss the Gear Plaintiffs’ original Complaint, as set forth in the WEC Defendants’ motion to dismiss, dkt. 141, and the Gear Plaintiffs’ opposition brief, dkt. 155. These parties cannot stipulate to dismissal without prejudice and with leave to file the proposed First Amended Complaint, however; only this Court can grant that because the proposed First Amended Complaint seeks to add new plaintiffs and drop current plaintiffs, see Fed. R. Civ. P. 21, dkt. 148. However, the parties agree in principle that the First Amended Complaint attached as Exhibit A should become the operative complaint in this action, and they jointly request either that the Court resolve the pending motion to dismiss to permit that outcome, or, alternatively, that the Court permit the WEC Defendants to withdraw their motion to dismiss the Gear Plaintiffs’ original complaint, and grant the Gear Plaintiffs leave to file the First Amended Complaint attached as Exhibit A. 4. Finally, the Gear Plaintiffs and the Intervenor-Defendants Wisconsin Legislature, Republican National Committee, and Republican Party of Wisconsin (“the Intervenor-
3

Case: 3:20-cv-00249-wmc Document #: 230 Filed: 06/26/20 Page 4 of 5

Defendants”) met and conferred today via email. Having reviewed the attached proposed

First Amended Complaint, the Intervenor-Defendants do not oppose its filing. However,

like the WEC Defendants, the Intervenor-Defendants explicitly reserve the right to answer

or otherwise plead in response to the Gear Plaintiffs’ First Amended Complaint.

Dated: June 26, 2020

Respectfully submitted,

/s/ Jon Sherman Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 (202) 331-0114 (telephone) jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org

Douglas M. Poland State Bar No. 1055189 David P. Hollander, State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 (telephone) (608) 960-7460 (facsimile) dpoland@rathjewoodward.com dhollander@rathjewoodward.com

Attorneys for Plaintiffs in Case No. 20-cv-278-wmc

*Admitted to the U.S. District Court for the Western District of Wisconsin

Dated: June 26, 2020

LAWTON & CATES, S.C.
Electronically signed by Dixon R. Gahnz Dixon R. Gahnz, SBN: 1024367

4

Case: 3:20-cv-00249-wmc Document #: 230 Filed: 06/26/20 Page 5 of 5 Daniel S. Lenz, SBN: 1082058 Daniel P. Bach, SBN: 1005751 Terrence M. Polich, SBN: 1031375 345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dlenz@lawtoncates.com dbach@lawtoncates.com tpolich@lawtoncates.com
5

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EXHIBIT A

Case: 3:20-cv-00249-wmc Document #: 230-1 Filed: 06/26/20 Page 2 of 80

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, LEAGUE OF WOMEN VOTERS OF WISCONSIN, KATHERINE KOHLBECK, DIANE FERGOT, GARY FERGOT, BONIBET BAHR OLSAN, SHEILA JOZWIK, and GREGG JOZWIK,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS

Case: 3:20-cv-00249-wmc Document #: 230-1 Filed: 06/26/20 Page 3 of 80

ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

Case No. 20-cv-284-wmc

GEAR, ET AL. V. BOSTELMANN, ET AL., CASE NO. 20-CV-278, PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, Gregg Jozwik, Claire Whelan, Sylvia Gear, League of Women Voters of Wisconsin (“LWVWI”), and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) (collectively, “Plaintiffs”) seek declaratory and injunctive relief as follows:
NATURE OF ACTION 1. The COVID-19 pandemic presents an unprecedented challenge to our nation, threatening millions of Americans’ lives and livelihoods and severely straining health care systems, the economy, and all levels and branches of government. It is wreaking havoc across all sectors and causing massive disruptions in election administration during this presidential election year. 2. COVID-19’s high transmission rate and lethality pose a severe risk to in-person voters, particularly those in at-risk groups identified by the Centers for Disease Control and Prevention (“CDC”). The pandemic has already resulted in massive withdrawals by volunteer poll
2

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workers who justifiably fear contracting the disease and the widespread closure of voting sites

throughout Wisconsin. In the April 7, 2020 election, only five of the usual 180 polling places in

1

2

Milwaukee were open. In Green Bay, just two of the usual 31 were operational.

3. The threat of contracting COVID-19, particularly in confined spaces like polling

sites and the long lines of voters who waited for their turn to access them on April 7, along with

the precipitous reduction in election administration resources for in-person voting both on and

before Election Day, have forced a seismic shift towards mail-in absentee voting in Wisconsin.

According to the Wisconsin Elections Commission’s (“WEC” or “the Commission”) recently-

released report on absentee voting in the April 7, 2020 election (“the Post-Election Absentee

Voting Report”), mail-in absentee ballots have been cast by 4.8 to 8.1 percent of voters in spring

and fall general elections going back to the 2016 fall general election, but in the April 7, 2020
3
election, they comprised a stunning 61.8 percent of votes cast. In that election, voters submitted

an unprecedented total of 1,239,611 absentee ballot requests to municipal clerks, clerks issued

1,282,097 absentee ballots (some of them replacement ballots), and voters returned 1,157,599 of
4
those ballots, or 73.2 percent of the total turnout in the election, 1,555,263. Only a fraction of

these were in-person absentee ballots, as 964,433 or 83.3 percent of the 1,157,599 absentee ballots

1 Alison Dirr and Mary Spicuzza, What we know so far about why Milwaukee only had 5 voting sites for Tuesday's election while Madison had 66, MILWAUKEE JOURNAL SENTINEL (Apr. 9,
2020), https://www.jsonline.com/story/news/politics/elections/2020/04/09/wisconsin-election-
milwaukee-had-5-voting-sites-while-madison-had-66/2970587001/. 2 Id. 3 See Wisconsin Elections Commission, April 7, 2020 Absentee Voting Report (“Post-Election
Absentee Voting Report”), at 6 (Table 4) (May 15, 2020),
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
05/April%202020%20Absentee%20Voting%20Report.pdf.
4
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862; see supra note 3, Post-Election
Absentee Voting Report, at 4 (Table 2), 5 (Table 3).
3

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5
were mail-in absentee ballots; and as noted, this was nearly 62 percent of the total turnout. Based on these figures, 42,486 of the mail-in absentee ballots were replacement ballots, many chasing previously-requested ballots that were delayed or lost in the mail, and 124,498 mail-in absentee
6
ballots were ultimately never returned. 4. Notwithstanding municipal clerks’ heroic efforts to prepare and mail out an
unprecedented volume of absentee ballots, voters in the April 7th election faced a systemic and catastrophic failure to timely prepare and deliver absentee ballots by mail. The total number of voters disenfranchised in this way is unknown, but as recounted by Defendants in their PostElection Absentee Voting Report, at least several thousand voters never received their ballots in the mail. According to Defendants’ own rolling absentee ballot reports, as of the morning of April 7, the last day to postmark a ballot for delivery or drop it off, it appears that 9,388 ballots had not
7
yet been mailed out. Some voters received their ballots too late to cast and deliver or postmark them by April 7th, while some voters never received them at all, even weeks later. Absent any failsafe alternatives for these voters who diligently and timely requested absentee ballots, their remaining options were to play Russian roulette with their health at the polls or lose their right to vote.
5. This debacle was fueled by the Legislature’s and Governor’s inaction, Defendants’, municipal clerks’, and the U.S. Postal Service’s (“USPS”) systemic administrative incapacity to keep pace with the demand for absentee ballots, flaws or weaknesses in Defendants’ computer systems and database management, and the burdens of enforcing Wisconsin’s myriad legal
5 See supra note 3, Post-Election Absentee Voting Report, at 4 (Table 1).
6
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862.
7
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 7, 2020 at 7:30 a.m.), https://elections.wi.gov/node/6825.
4

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requirements, such as the photo ID requirement for absentee voters. All of these factors made it extremely difficult to process and deliver so many ballots to voters. Wisconsin’s election administration system, from the processing of absentee ballot requests to the printing of address labels to information technology glitches, buckled under the strain of the surge in absentee ballot requests compared with the 2016 presidential primary and spring election. As Defendants put it in their post-mortem report, “The most fundamental challenge faced by election officials was simply
8
meeting the unprecedented demand.” That same report notes that: Absentee voting remains a largely manual, labor-intensive process administered by each individual jurisdiction across the state. While voters can request a ballot and upload a photo ID on their smart phone in just a few minutes, behind the scenes clerks must still manually verify the IDs, stuff and seal envelopes by hand, apply postage, carry boxes of envelopes to the post office, and physically check off each request. . . . When mail volume is up to ten times higher than anticipated, clerks must complete the same tasks without the benefit
9
of having more staff, additional supplies or more hours to meet statutory deadlines. Given the complex and labor-intensive procedures for processing and mailing out absentee ballots, Wisconsin election offices are simply not adequately staffed or funded to cope with an unprecedented shift to mail-in absentee voting by a vast majority of the electorate. Absent the kind of massive allocation of funding and resources to permit election officials to scale up staff and supplies to meet demand, which only Congress and/or the Wisconsin Legislature can provide, it is far more likely than not that Wisconsin election officials will remain unable to satisfy a much greater demand for mail-in absentee ballots in the fall.
6. The April 7, 2020 election set the record for most mail-in ballots ever cast in any
10
Wisconsin election ever. The Commission reports that “[a]s the enormous quantity of absentee ballots began entering the mail system, voters began asking more questions and expressing
8 See supra note 3, Post-Election Absentee Voting Report, at 13. 9 Id. at 3. 10 Id.
5

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concerns about ballot deliveries. With nearly six times more ballots in circulation, the number of
complaints and concerns increased by a similar amount. Some voters also reported not receiving
11
their absentee ballots . . . .” Voters who requested their mail-in absentee ballots weeks in advance
of April 7th, such as Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr
Olsen, Sheila Jozwik, and Gregg Jozwik, never received their ballots in the mail—not before, on,
or after Election Day. All of these Plaintiffs were in Wisconsin at the time of the election. Many
voters like Plaintiffs Katherine Kohlbeck, Diane Fergot, and Gary Fergot contacted their municipal
clerks’ offices to inquire about their missing absentee ballots, all to no avail. One media report
cited additional glitches:
In Wauwatosa, one couple said they received envelopes with no ballots. In Milwaukee, three would-be voters said they received a form letter from Mayor Tom Barrett thanking them for requesting an absentee ballot — but not the ballot itself. . . . For some Wisconsin residents wintering in New Mexico and Florida, ballots simply never showed up. Nineteen Wisconsin citizens across eight cities — from New Auburn in the north to Bristol in the south — said they requested absentee ballots only to later be told the system had no record
12
of their applications.
7. The Commission just recently released a report on absentee voting in the April 7,
2020 election, which recounts the multifarious and alarming failures to put absentee ballots in
voters’ hands. “Oshkosh and other Fox Valley communities all reported voters complaining that
their ballots were arriving late or not arriving at all,” but Defendants could not ascertain why this
13
had occurred. USPS notified WEC—the day after the election—that it had found three tubs of
approximately 1,600 absentee ballots destined for Appleton and Oshkosh; no explanation was
11 Id. at 12. 12 Daphne Chen, Catharina Felke, Elizabeth Mulvey and Stephen Stirling, ‘They should have done something’: Broad failures fueled Wisconsin's absentee ballot crisis, investigation shows, MILWAUKEE JOURNAL SENTINEL (Apr. 21, 2020), https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueledmultiple-failures/5156825002/. 13 See supra note 3, Post-Election Absentee Voting Report, at 16.
6

Case: 3:20-cv-00249-wmc Document #: 230-1 Filed: 06/26/20 Page 8 of 80
14
offered, and none has been discovered. In the Village of Fox Point, USPS bizarrely and
repeatedly returned absentee ballots to the clerk’s office without explanation as to any defect
precluding delivery, culminating in the return of 100 to 150 returned ballots per day in the week
15
leading up to Election Day and 175 returned in a plastic mail bin on Election Day. The WEC’s
report notes that “[r]esidents who did not receive an absentee ballot in the mail were advised to
vote in person at their polling place on Election Day,” but of course that was not a viable, safe
16
option for at-risk voters. Finally, in Milwaukee, as a result of human and computer error or delay,
“2,693 requested ballots were never sent to City of Milwaukee residents. Of the affected voters,
52.5% voted in the election either on a replacement absentee ballot or at the polls on election
17
day.” This shocking incident disenfranchised approximately 1,279 voters, who lost their right to
vote through no fault of their own. They had timely requested their ballots more than two weeks
before Election Day and, believing that the mail was delayed and that they had no other alternatives
for ballot delivery, watched the days elapse and finally Election Day go by without receiving an
absentee ballot in the mail. Absent any fail-safe, these voters, including Plaintiffs Katherine
14 Id. at 16; Ashley Luthern, Wisconsin Election Commission decides to dig deeper into unreturned absentee ballots from election, MILWAUKEE JOURNAL SENTINEL (Apr. 18, 2020), https://www.jsonline.com/story/news/politics/2020/04/18/wisconsin-election-commission-lookinto-unreturned-absentee-ballots/5159766002/; see also Nick Corasaniti & Stephanie Saul, Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots, N.Y. TIMES (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/us/politics/wisconsin-election-absentee-coronavirus.html. 15 Returned To Sender: Postal Officials Investigating Wisconsin Absentee Ballots That Were Never Delivered, WISCONSIN PUBLIC RADIO (Apr. 9, 2020) (“Returned to Sender”), https://www.wpr.org/returned-sender-postal-officials-investigating-wisconsin-absentee-ballotswere-never-delivered; supra note 3, Post-Election Absentee Voting Report, at 16-17. In response to these inexplicable failures, both of Wisconsin’s U.S. Senators called upon the Inspector General of the U.S. Postal Service to investigate “absentee ballots not being delivered in a timely manner.” See Letter from Senators Tammy Baldwin and Ron Johnson to U.S. Postal Service Inspector General (Apr. 9, 2020), https://www.wispolitics.com/wpcontent/uploads/2020/04/200409LETTER.pdf. 16 See supra note 3, Post-Election Absentee Voting Report, at 16-17. 17 Id. at 19-20.
7

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Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and Gregg Jozwik saw their most fundamental right of U.S. citizenship denied or severely burdened.
8. If this is the level of ballot delivery failures and disenfranchisement when a total of
18
1,555,263 of the state’s voters—less than 50% of the registered voters—turn out to vote, it is inevitable that the state’s 1,850 municipal clerks’ offices will not be able to handle nearly double that volume of absentee ballot requests in a timely fashion for the November 3, 2020 general
19
election. Wisconsin had 3,397,693 registered voters as of May 1, 2020. In 2016, 2,976,150 voters
20
cast ballots for President. If the same number of voters who voted in the 2016 Presidential election vote in the fall general election, and, as in the April 7 election, 61.8 percent of those ballots cast are mail-in absentee ballots, municipal clerks will need to process a minimum of 1,839,260 absentee ballot requests and successfully deliver the same number by mail. Assuming the 1 to 1.129 ratio of returned mail-in ballots to total issued mail-in absentee ballots holds from the April
21
7 election, then clerks will need to issue over 2 million mail-in absentee ballots this fall. This stands in stark contrast to the 2016 fall general election, in which just 162,445 absentee ballots returned by mail and other means such as special voting deputies (but excluding in-person absentee voting), and which constitutes about one-sixth of the total such ballots cast in the April 7 election
18
Wisconsin Elections Commission, Canvass Results for 2020 Spring Election and Presidential Preference Vote, https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results%20Summary_spring%2 0election%20all%20contests_4_7_2020.pdf; Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
19
Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
20
Wisconsin Elections Commission, Canvass Results for 2016 General Election, https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20Offices%20 %28post-Presidential%20recount%29.pdf
21
This calculation assumes that all or almost all in-person absentee ballots are returned. 8

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22
and just 8.83 percent of the projected total for the 2020 fall general election. All but guaranteeing another unprecedented surge in absentee voting, this Wednesday Defendants voted to send absentee ballot request forms to approximately 2.7 million registered Wisconsin voters, excluding the approximately 528,000 who have already requested absentee ballots and the approximately
23
158,000 suspected of moving to a different municipality or state. 9. Further, many of these requests are submitted in the final days before the deadline,
when municipal clerks’ offices will be busy conducting in-person absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week prior to April 7. Clerks received over 60,000 requests alone on the Friday before election day. Even if all these requests were mailed
24
on Saturday, it is unknown how long those ballots took to reach voters.” With significant USPS delays, it is likely that a substantial portion did not arrive in time for voters to cast them. 80,593 requests were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). The overwhelming majority of these 289,168 requests, which municipal clerks
25
received on just those four days alone, were requests for mail-in absentee ballots, which by law must be mailed out to voters within a day of receiving them. Wis. Stat. § 7.15(1)(cm).
22
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397. 23 Patrick Marley, Wisconsin election officials agree to mail absentee ballot request forms to most voters, MILWAUKEE JOURNAL SENTINEL (May 27, 2020), https://www.jsonline.com/story/news/politics/2020/05/27/wisconsin-officials-take-up-mailingabsentee-ballot-request-forms/5262753002/. 24 See supra note 3, Post-Election Absentee Voting Report, at 17. 25 Id.
9

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10. Absent radical funding and staffing increases, Wisconsin election officials at the
state and local level will not be able to handle such an enormous increase in mail-in absentee ballot
requests. Defendants seem to concur with this assessment: “If voting patterns from April hold true,
the state could see more than 1.8 million requests for absentee ballots by mail. This kind of volume
26
would present terrific challenges for Wisconsin election officials at all levels.” Even for the April
7th election, dozens of Milwaukee City Election Commission staffers had already worked seven
27
days a week until 11:00 p.m. to process ballots. Madison City Clerk Maribeth Witzel-Behl said
there was “no way humanly possible” to keep up with the volume of requests, even though staffers
were working 110 hours a week but still had a week’s worth of backlogs by mid-March, and “that
their computer system became so bogged down by the volume of applications that it only began
28
working quickly after 10 p.m.” As the Commission noted in its post-mortem report,
Nearly every community experienced unprecedented absentee request volume, and many hired temporary staff to cope with demand. Many small and medium size jurisdictions learned to use WisVote absentee batch processing tools for the first time, having never previously needed any automation assistance to manage their workload. Larger cities, while used to higher volumes, were forced to work around the clock and conduct much larger batch mailings then [sic] previously experienced. For all jurisdictions, the statutory requirement to mail ballots within 24 hours of receiving a request presented a significant
29
challenge.
11. Defendants will argue that they have taken steps to address some of these problems,
but, at bottom, they cannot guarantee that the labor-intensive tasks of processing over 2 million
absentee ballot requests, entering data and printing labels for all those ballots, and then mailing
them off will not once again cause the system to break down. Defendants also cannot guarantee
that USPS will timely deliver ballots to absentee voters. Wisconsin’s electoral system, as
26 Id. at 12. 27 See supra note 12, Chen et al. 28 Id. 29 See supra note 3, Post-Election Absentee Voting Report, at 13.
10

Case: 3:20-cv-00249-wmc Document #: 230-1 Filed: 06/26/20 Page 12 of 80
administered by Defendants, failed the test run. None of Defendants’ proposals for new data entry procedures, tracking tools, and other measures can cure this shortfall in resources and staff. A presidential election is no time to leave voters without a fail-safe when Defendants’ proposed measures prove insufficient to prevent another massive failure to put ballots in voters’ hands.
12. The lack of a fail-safe option for these voters also violates the First and Fourteenth Amendments to the U.S. Constitution as an undue burden on the right to vote. No legitimate state interest is advanced by the denial of the right to vote to these voters. The lack of a fail-safe option when ballots do not arrive in the mail forces voters to choose between their constitutionallyprotected rights to bodily integrity and to vote in violation of the unconstitutional conditions doctrine and fails to provide a reasonable modification for voters with disabilities in violation of Title II of the Americans with Disabilities Act.
13. Even if voters who are at risk of suffering severe complications or dying from COVID-19 and who live alone or without an adult U.S. citizen in their household manage to receive their absentee ballots, the witness requirement still severely burdens their right to vote. Plaintiffs Claire Whelan and Sylvia Gear will once again apply for a mail-in absentee ballot for the November general election. Because they live alone and are self-quarantining during the COVID-19 pandemic, given their advanced age and/or medical histories and in light of the CDC’s recommendations, the extreme difficulties for these Plaintiffs to safely obtain a witness signature on their mail-in absentee ballot certificate envelopes remains a severe burden on their ability to
30
vote.
30
There are over 675,000 single-member households in Wisconsin, and many other households that include only one adult. More than 250,000 of these single-member households are individuals over the age of 65. See U.S. Census Bureau, 2013-2017 American Community Survey 5-Year Estimates, Table 2501, Occupancy Characteristics.
11

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14. By Wisconsin law, these absentee, mail-in ballots must be signed by the voter and also signed by a witness who is an adult U.S. citizen. Wis. Stat. § 6.87(4)(b)(1). This requirement poses a significant barrier to absentee, mail-in voting for any self-quarantining eligible voter who lives alone or who does not have an adult U.S. citizen in their household, particularly if they are elderly or have an underlying medical condition that puts them at higher risk from COVID-19. These voters are compelled to take unreasonable risks to satisfy the witness requirement to vote, when reasonable alternatives that equally satisfy the state’s anti-fraud interest exist.
15. Since in-person voting would pose a severe risk to the bodily integrity and lives of these individuals, that option, which must be preserved statewide, is simply not viable for voters who are at elevated risk from COVID-19. Taken together, the risks inherent in in-person voting and in securing a witness signature for an absentee mail-in ballot prevent certain eligible Wisconsin voters who live alone or without an adult U.S. citizen in the household from casting a ballot.
16. Enforcing this statutory requirement, particularly as to voters who are at heightened risk from COVID-19, constitutes an undue burden on the right to vote not justified by any legitimate or important government interest, a violation of the First and Fourteenth Amendments to the U.S. Constitution. If no alternatives are offered, such as a reasonable efforts certification that the voter can sign in lieu of securing a witness signature or witnessing without a physical signature, the witness requirement will force voters to choose between engaging another person in an unreasonably risky exercise, in-person voting that threatens their voter’s bodily integrity and health, or their disenfranchisement. This forces voters to choose between their constitutionallyprotected right to bodily integrity and their right to vote in violation of the unconstitutional
12

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conditions doctrine and fails to provide a reasonable modification for voters with disabilities in violation of Title II of the Americans with Disabilities Act.
JURISDICTION AND VENUE 17. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the United States Constitution and seeks equitable and other relief for the deprivation of constitutional rights under color of state law. 18. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 19. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 20. This Court has personal jurisdiction over Defendant-Commissioners Dean Knudson, Julie M. Glancey, Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, and Robert F. Spindell, Jr., the members of the Commission, and Meagan Wolfe, the Administrator of the Commission, who are sued in their official capacities. Defendants Knudson, Glancey, Thomsen, Jacobs, Bostelmann, Spindell, Jr. and Wolfe are state officials who reside in Wisconsin and work in Madison, Wisconsin. 21. Venue is appropriate in the Western District of Wisconsin, under 28 U.S.C. § 1391(b)(1), because Defendants are state officials working in Madison, Wisconsin. A substantial part of the events giving rise to these claims occurred and continues to occur in this district, making venue also proper under 28 U.S.C. § 1391(b)(2).
PARTIES 22. Plaintiff Katherine Kohlbeck is 72 years old and a resident of Milwaukee, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her
13

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right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives alone and has been self-quarantined during the COVID-19 pandemic. On March 11th, she was diagnosed with breast cancer, and on May 12th, after a two-month delay due to the pandemic, she finally had her lumpectomy surgery. Typically, she votes in person on Election Day, but sometimes she votes early in person and she has voted by absentee ballot only on a few occasions, such as when she has gone on vacation. Because of her health condition and the uncertainty surrounding it, she attempted to vote by mail in the April 7, 2020 election. Her doctor told her not to risk getting COVID-19 and that she should absolutely not be in contact with people. She was told to stay home and stay safe, and she followed that medical advice. She was told by her surgeon that in order to have the lumpectomy, she would have to take a COVID-19 test and test negative. Fortunately, because she followed her doctors’ advice, she ultimately tested negative. If she had tested positive, she could not have had this necessary surgery. That is one major reason she had to vote by mail. She could not be exposed because at any moment she could have been called up for the postponed surgery. But even if she did not have breast cancer and did not need that surgery, at her age, her odds of surviving COVID19 are not good. And if she had managed to somehow survive COVID-19, it might well have made it impossible for her to have the lumpectomy afterwards. So, to avoid voting in person and the dangers of COVID-19, she requested an absentee ballot by mail using the website myvote.wi.gov on March 19th or 20th, but never received the ballot in the mail, even after Election Day. She managed to upload an image of her Wisconsin driver’s license. She had to take a photo of her driver’s license, and then she had to send it from her phone to her email and download it onto her laptop. Finally, she uploaded it to myvote.wi.gov. She was able to track her ballot on myvote.wi.gov. She waited for almost a week and checked the website again on March 25th and
14

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again on March 26th. The site showed that her ballot had been mailed out on March 23rd, but she had not yet received it. She did receive a letter from Milwaukee’s Mayor Tom Barrett thanking her for requesting an absentee ballot. At the time, she had no idea what was causing the delay, but since the election she has read some of the stories of how ballots were lost or delayed in the mail or never even were mailed out due to computer problems. She did not call the Milwaukee City Election Commission at any point. She thought her ballot was delayed but still coming, and that as long as it arrived soon, she could vote it and drop it off or mail it in. She did email the city election commission and received an email back from Neil Albrecht, the head of the Commission, who informed her that another ballot would be mailed out to her. Ultimately, she did not receive either of these ballots in the mail before, on, or even after Election Day. There was no way she was going to vote in person given her health situation and her age. She is at high risk from COVID19 and has been quarantining herself since mid-March. She has not been to church since March 15th. The risk of contracting COVID-19 is simply too high and, based on what she saw on the news, she would have had to wait in long lines for 90 to 120 minutes or longer and vote in a very crowded polling place, increasing her risk of contracting COVID-19. Instead of the usual almost200 polling places in the city, there were only five open on April 7th. This was due to the shortage of available poll workers and the COVID-19 crisis. She saw on the news that the lines and long waits continued throughout the day. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her health, age, and the ongoing
15

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COVID-19 crisis, voting in person is simply too high a risk to her health and life. If the cancer comes back, she might need additional surgery in the future. For the same reasons that she could not risk contracting COVID-19 by voting in person in the April 7th election, she cannot risk contracting it in the August and November elections. So, if her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-in absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that and that her ballot arrives on time. If she cannot vote by mail in these elections, she will not be able to vote.
23. Plaintiff Diane Fergot is 59 years old and a resident of Oshkosh, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, and they have been quarantining themselves during the COVID-19 pandemic. Typically, she votes in person on Election Day, but COVID-19 poses a serious risk to her health and life. She has a history of severe blood clotting that required 14 years of medication; she also suffers from hypertension. From what she has read in the news, she understands that COVID-19 is causing blood clotting and strokes, even in healthy and younger people. She is extremely worried about COVID-19 and will only be voting by mail while the COVID-19 pandemic lasts. To avoid voting in person and the dangers of COVID-19, on March 24th, roughly two weeks before the April 7th election, she and her husband went on myvote.wi.gov and requested their absentee ballots be mailed to them, but they never received them, even after Election Day. On April 2nd, she realized that their ballots had not arrived in the mail yet, so she emailed the clerk’s office. The following day, April 3, having not heard back, she went on myvote.wi.gov and saw that her ballot had been mailed out on March 24th. She also sent
16

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the clerk’s office a second email. Later that day, she received an email back informing her that her and husband’s ballots had been reissued and mailed out that day, April 3, the Friday before the election. The clerk’s office did not offer to email them their absentee ballots as a more expedient option. Ultimately, they never received their ballots in the mail, before, on, or after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived soon, they could still vote and drop them off or mail them. Due to her health conditions, she could not safely vote in person. There was no way she was going to vote in person; the risk of contracting COVID-19 was simply too high. She is at high risk from COVID-19 and has been quarantining since mid-March. She has not been to the grocery store. She has only briefly visited at 6:00 a.m. one store that requires masks for customers and employees and an outdoor garden store. Those have been her only two shopping excursions in over two months. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her health, age, and the ongoing COVID-19 crisis, voting is simply too high a risk to her health and life. If her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-in absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. If she cannot vote by mail in these elections, she will not be able to vote.
17

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24. Plaintiff Gary Fergot is 69 years old and a resident of Oshkosh, Wisconsin. He is a United States citizen and a registered Wisconsin voter. He has never lost his right to vote by reason of a felony conviction or a court order. He wants to vote in the August primary election and the November general election. He lives with his wife, and they have been quarantining during the COVID-19 pandemic. He always votes in person on Election Day, but COVID-19 poses a serious risk to his health and life because of his age. He has never voted absentee in his life, but he will only be voting by mail while this pandemic lasts. To avoid voting in person and the dangers of COVID-19, on March 24th, two weeks before the April 7th election, he and his wife went on myvote.wi.gov and requested their absentee ballots be mailed to them, but they never received them, even after Election Day. On April 2nd, they realized that their ballots had not arrived in the mail yet, so his wife emailed the clerk’s office. On April 3rd, they received an email back informing them that their ballots had been reissued and mailed out that day, which was the Friday before the election. The clerk’s office did not offer to email them their absentee ballots. Ultimately, they never received their ballots in the mail, before, on, or after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived soon, they could still vote and drop them off or mail them. Due to his age (he will be 70 this year), Gary was extremely worried about COVID-19. There was no way he was going to vote in person; the risk of contracting COVID-19 was simply too high. Gary is at high risk from COVID-19 and has been quarantining since mid-March. The only store he has been to in two months is the grocery store between 5:00 a.m. and 6:00 a.m., and he always wears a mask. The grocery store allows senior citizens two hours to shop from 5:00 a.m. to 7:00 a.m., and there is hardly anyone there when he shows up. He has not been to any other stores or visited with any people or had anyone visit him. He has not had any other interactions with any people other than a very limited interaction with grocery store cashiers.
18

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He and his wife are taking social distancing very seriously. Gary wants to vote by mail in the August primaries and the November general election. For the November election, he wants to request an absentee ballot be delivered to his home by mail. He does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for him to cast and return it on time, then he needs a back-up because he cannot safely vote in person on or before Election Day. Because of his age and the ongoing COVID-19 crisis, voting is simply too high a risk to his health and life. If his ballot does not arrive in the mail on time, he wants to electronically access and download or be emailed his mail-in absentee ballot. Gary has access to a computer, a printer, his email account, and tape: everything he needs to print off, assemble, vote, and mail that emailed ballot back. He hopes it does not come to that, but if he cannot vote by mail in these elections, he will not be able to vote.
25. Plaintiff Bonibet Bahr Olsan is 77 years old and a resident of Appleton, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, and they have been quarantining themselves during the COVID-19 pandemic. She has never voted absentee in her entire life, but at her age, COVID-19 poses a serious risk to her health and life. Because of her age, Bonibet attempted to vote by mail for the first time in the April 7, 2020 election. To avoid voting in person and the dangers of COVID-19, in mid-March, she requested an absentee ballot by mail using the request form, which she and her husband printed off from myvote.wi.gov. She filled her request form out and mailed in this absentee ballot request form along with a printed photo she took of her Wisconsin driver’s license using her phone camera. She requested that her ballot be mailed to her. She does not recall an option on the form to select delivery by email. Bonibet never received her
19

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ballot in the mail, not even after Election Day. Her husband requested his ballot at the same time as she did and received it a week before Election Day. Before Election Day, she checked myvote.wi.gov, and it showed that her absentee ballot had been mailed out to her on March 28th. She did not contact the Appleton city clerk’s office. She thought her ballot was delayed but still coming, and that as long as it arrived soon, she could vote it and drop it off or mail it in time. She waited until the very last minute on April 7, Election Day, but the ballot still had not arrived in her mailbox and she was out of time. She was forced to make the difficult decision not to vote because the only option left to her was to vote in person and she did not want to risk the exposure. She has been self-quarantining since mid-March. She walks her dog and has been to a grocery store once, wearing a mask and gloves. There was no way she was going to vote in person given her age. The risk of contracting COVID-19 is simply too high. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her age and the ongoing COVID-19 crisis, voting is simply too high a risk to her health and life. If her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-in absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. But if she cannot vote by mail in these elections, she will not be able to vote.
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26. Plaintiff Sheila Jozwik is 68 years old and a resident of Brookfield in Waukesha County, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, Gregg Jozwik, in Brookfield. Since March 21st, they have been self-isolating at a cabin during the COVID-19 pandemic with her 93-year-old mother. To avoid voting in person and the dangers of COVID-19, she and her husband Gregg attempted to vote by mail in the April 7, 2020 election. They both requested absentee ballots by mail using myvote.wi.gov on March 17, 2020. They requested that their ballots be mailed to their home in Brookfield, but never received them, even after Election Day. In order to request their ballots online at myvote.wi.gov, they had to upload images of their Wisconsin driver’s licenses. They had to submit the images of their IDs three times before they could continue with the ballot request process. She did not receive any message confirming that the image had been successfully uploaded. Her husband had the same experience. Since March 30, her husband, mother, and she have been staying at their cabin north of Brookfield in order to self-isolate. Leading up to the April 7th election, she or Gregg would drive down and check the mail at their home in Brookfield to see if their ballots had arrived. The last time they checked was on April 5th, when Gregg went to their house to check the mail. On April 6th, they logged back onto myvote.wi.gov to see where their ballots were. It showed that they had applied to receive their ballots by mail. They never contacted the clerk’s office. Ultimately, they never received their ballots, even after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived by April 7th, they could vote them and drop them off or put them in the mail so they would be postmarked by April 7th, hoping they would arrive by April 13th. She chose not to vote in person on April 7th, to protect her health and the health of her elderly
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mother, who is extremely vulnerable to COVID-19. It was the first time she could not vote since she first registered and voted in 1969. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she does not want to risk exposure to the coronavirus that causes COVID-19 by voting in person at the polls on or before Election Day. She herself is in a high-risk category, and her mother, at 93 years of age, is at much higher risk. If her ballot does not arrive in the mail on time in the fall, she wants to electronically access and download or be emailed her mail-in absentee ballot. She has access to a computer, a printer, her email account, and tape—everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. She feels she should not be forced to choose between voting and exposing herself to a deadly virus. If she cannot vote by mail in these elections, she will not be able to vote.
27. Plaintiff Gregg Jozwik is a 70-year-old resident of Brookfield in Waukesha County, Wisconsin. He is a United States citizen and a registered Wisconsin voter. He has never lost his right to vote by reason of a felony conviction or a court order. He lives with his wife, Sheila Jozwik. Since March 30, 2020, they have been quarantining with Sheila’s 93-year-old mother in their cabin. To avoid voting in person and the dangers of COVID-19, he and his wife attempted to vote by mail in the April 7, 2020 election. They both requested absentee ballots be sent by mail using myvote.wi.gov on March 17, 2020. They requested that their ballots be mailed to their home in Brookfield. As part of the online request process, he had to submit an image of his Wisconsin driver’s license. He had to upload it three times before he could continue with the process, and he
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did not receive any message confirming that the image had been successfully uploaded. Since March 30th, he, his wife, and his mother-in-law have been staying at their cabin up north in Tomahawk, Wisconsin. He and Sheila have occasionally returned home to check the mail, including for the ballots they requested for the April 7th election. He last checked for their ballots on April 5th. They never arrived. On April 6th, he and Sheila logged back onto myvote.wi.gov to see where their ballots were. It said that they had applied to receive their ballots by mail. They never contacted the clerk’s office. Ultimately, they never received their ballots, even after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived by April 7th, they could vote them and drop them off or put them in the mail so they would be postmarked by April 7th, hoping they would arrive by April 13th. He decided to vote in person in Brookfield on April 7, although he was very worried about doing so. He wore a mask. While waiting in line to vote, he saw that all of the poll workers were wearing masks, but about half of the voters were not. He was not going to be denied his right to vote, but he does not feel he should have been forced to expose himself and potentially his loved ones as well to a lethal virus. He wants to vote by mail in the August primaries and the November general election. For the November election, he wants to request an absentee ballot be delivered to his home by mail. He does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for him to cast and return it on time, then he needs a back-up because he does not want to be forced to risk exposure to the coronavirus that causes COVID-19 by voting in person at the polls on or before Election Day. He is himself in a high-risk category, and his wife’s mother, at 93 years of age, is at much higher risk. If his ballot does not arrive in the mail on time in the fall, he wants to electronically access and download or be emailed her mail-in absentee ballot. He has access to a computer, a printer, his
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email account, and tape everything he needs to print off, assemble, vote, and mail that emailed ballot back. He hopes it does not come to that, and that his ballot arrives on time. He feels he should not be forced to choose between voting and exposing himself to a deadly virus.
28. Plaintiff Claire Whelan is a 64-year-old retiree who lives alone in her apartment in Appleton, Wisconsin. She is a United States citizen, has never lost her right to vote by reason of a felony conviction or a court order, and is a registered Wisconsin voter. Ms. Whelan is a member of the League of Women Voters of Appleton and therefore a member of Plaintiff League of Women Voters of Wisconsin. Ms. Whelan is at high risk of severe complications or even death from COVID-19 because she has chronic asthma. When the weather changed recently and became hot and humid, she forgot to close the windows at night and woke up wheezing. Once she closed the windows, it took all day for her breathing to calm down, and she was utterly exhausted and had to just sit and wait to recover. To protect herself, she has been self-quarantining at her apartment since mid-March. She makes grocery runs at 5:30 a.m., wearing a mask and gloves, and there are only a very few other people in the store. Putting the groceries away can entail up to thirty hand washings. Ms. Whelan does not feel safe going to a laundromat or even the laundry room in her apartment building and has not been to either since March 10. To protect her health, she is handwashing her clothes in her kitchen sink. She is trying to take every precaution to minimize the chance that she is exposed to COVID-19, because she wants to maximize the chance that she can once again visit her mother, who is 93 years old and lives in a nursing home nearby. She fears bringing the virus into that facility, but also fears that her mother could rapidly decline, while the nursing home remains on lockdown, which it has been for about 2.5 months. Because Ms. Whelan is quarantining herself pursuant to federal and state government recommendations and cutting off all in-person contact unless it is absolutely necessary, she must vote by mail-in absentee ballot to
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avoid the severe risks to her health and life posed by in-person voting. Ms. Whelan will again request mail-in absentee ballots for the August and November general elections. In March, she requested a ballot for the April 7 election. She waited until the end of March, when she dropped off her rent check late at night to avoid other people, to see if her ballot had arrived in her mailbox. When it arrived days before the election, she knew that this Court’s preliminary injunction, affording relief to individuals who certified that they could not safely secure a witness with reasonable effort, had been stayed by the U.S. Court of Appeals for the Seventh Circuit. Therefore, Ms. Whelan was compelled to ask a friend to drive from a town 8 miles away to show up at her apartment and serve as her witness. Ms. Whelan’s friend entered the apartment building, rode the elevator up to the fourth floor, and waited outside Ms. Whelan’s apartment. Ms. Whelan voted her ballot inside the apartment with the door closed, took photos of herself voting, and texted them to her friend outside. She filled out and signed the certificate envelope, sealed up her ballot in its envelope, and slid it under the door to her friend. Her friend signed the certificate envelope as Ms. Whelan’s witness and put down her address, texted pictures of that action to Ms. Whelan, and then drove to a post office to drop off Ms. Whelan’s ballot. It is unreasonable to require that voters like Ms. Whelan engage in such a process to comply with the witness requirement, while avoiding the dangers of COVID-19 transmission, in the midst of the worst public health crisis in at least a century. There are reasonable alternatives such as this Court’s own injunction providing a certification alternative or the Seventh Circuit’s panel suggestion of remote witnessing with the recording of a witness name, without a physical signature by that witness.
29. Plaintiff Sylvia Gear is an 83-year-old retired teacher who lives alone at her residence in Cudahy, Wisconsin. She is a United States citizen, has never lost her right to vote by reason of a felony conviction or a court order, and is a registered Wisconsin voter. Ms. Gear is a
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member of Plaintiff Wisconsin Alliance for Retired Americans. Ms. Gear is at risk of severe complications from the novel coronavirus and COVID-19 because of her age and her medical history as a cancer survivor. For this reason, she is self-quarantining at her home, and she has not allowed anyone in her house since March. In that time, her son and a neighbor have stopped by to visit Ms. Gear, but they spoke outside of the home on Ms. Gear’s porch while maintaining at least six feet of distance between them. Since March, Ms. Gear has only left her home about once a week to go grocery shopping or to obtain prescription medications, for which she always wears a mask or a face covering like a scarf. Since March, she has not been to any of her regular social activities, including Sisters of St. Francis in St. Francis, Wisconsin and gathering with her teacher friends at a weekly fish fry at a local restaurant. She has stopped going to her sister’s house and had to miss her granddaughter’s and grandnephew’s birthdays. Because Ms. Gear has been quarantining herself pursuant to government recommendations and, until recently, Emergency Order #12, and cutting off all in-person contact unless it is absolutely necessary, e.g. to obtain medication, she must vote by mail-in absentee ballot to avoid the severe risks to her health and life posed by in-person voting. She voted by mail-in absentee ballot in the April 7, 2020 Spring Election. To satisfy the witness requirement, she asked her neighbor to serve as her witness. At risk to each other, they conducted the entire process outside on Ms. Gear’s porch, using their own pens. Ms. Gear would prefer to vote in person in the August and November elections, but if the COVID-19 pandemic continues to pose a threat to public safety, she will again apply to vote by mail-in absentee ballot to protect her health. Interacting with a witness to vote absentee will once again pose a risk to her health.
30. Plaintiff Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) was founded on March 14, 2005. Wisconsin Alliance has 103,611 members, composed of retirees from
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public and private sector unions, community organizations and individual activists. It is incorporated in the State of Wisconsin as a 501(c)(4) social welfare organization under the Internal Revenue Code.
31. Alliance for Retired Americans is a national organization with more than 4.3 million members in all 50 states. The national Alliance charters state organizations, such as the Wisconsin Alliance, which then elect officers, form a governing board, affiliate local chapters and organize members in the state.
32. Wisconsin Alliance’s board is presided over by Marlene Ott, a retired member of the National Education Association (“NEA”). President Ott presides over a board with a treasurer, secretary and vice president representatives from the largest affiliates. During monthly meetings, they organize activities, initiate programs, and maintain the governance of Wisconsin Alliance in the state.
33. Wisconsin Alliance participates in an organizing calendar that resembles and reflects the national Alliance for Retired Americans, with Wisconsin-specific additions. This calendar includes engaging local, state and federal representatives about issues and laws that affect retirees and seniors, highlighting May as Older Americans Month, and celebrating the anniversaries of Social Security and Medicare.
34. Wisconsin Alliance also engages in member education about elections. Historically, Wisconsin Alliance has provided information to members about how their elected leaders have voted on issues that impact the lives of seniors and provided information about how to cast a ballot.
35. The interests Wisconsin Alliance seeks to protect in this action, the voting rights of its members and of all retired Wisconsinites, are germane to the organization’s purpose as detailed
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above. As a membership organization, Wisconsin Alliance suffers the constitutional injury of its members, like Plaintiff Sylvia Gear.
36. The Wisconsin Alliance plans to produce, publish, and distribute educational literature and materials on voting in the November election, specifically around the process of obtaining absentee ballots, including the difficulties voters face when the ballot is not timely delivered, and the witness signature requirement. The Wisconsin Alliance Executive Director is a paid staffer and will be diverting time normally used for get-out-the-vote efforts to make and distribute these materials. The Wisconsin Alliance will distribute electronic materials through social media and email, and printed materials in person and via mail.
37. Plaintiff League of Women Voters of Wisconsin (“LWVWI”) is a nonpartisan, nonprofit, non-stock corporation organized under the laws of the State of Wisconsin with its principal office located at 612 West Main St., Suite 200, in the City of Madison, Dane County, Wisconsin. LWVWI is an affiliate of The League of Women Voters of the United States, which has 750 state and local Leagues in all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, and Hong Kong. LWVWI works to expand informed, active participation in state and local government, giving a voice to all Wisconsinites.
38. LWVWI, a nonpartisan community-based organization, was formed in 1920, immediately after the enactment of the Nineteenth Amendment granting women’s suffrage. LWVWI is dedicated to encouraging its members and the people of Wisconsin to exercise their right to vote as protected by the U.S. Constitution, the Voting Rights Act of 1965, and other federal laws. The mission of LWVWI is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The League seeks to
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maximize eligible voter participation through its voter registration efforts and encourage civic engagement through registration and voting.
39. LWVWI impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently LWVWI has 20 local Leagues and approximately 2,600 members, including Plaintiff Claire Whelan. LWVWI works with and through 20 local Leagues in the following cities, counties, and areas throughout Wisconsin: Appleton, Ashland/Bayfield Counties, Beloit, Dane County, Door County, the Greater Chippewa Valley, Greater Green Bay, Janesville, the La Crosse area, Manitowoc County, Milwaukee County, the Northwoods, Ozaukee County, the Ripon area, Sheboygan County, the Stevens Point area, the Upper St. Croix Valley, the Whitewater area, Winnebago County, and the Wisconsin Rapids area.
40. LWVWI began as an organization focused on the needs of women and training women voters. It has evolved into an organization concerned with educating, advocating for, and empowering all Wisconsinites. With members in nearly every county in the State, LWVWI’s local Leagues are engaged in numerous activities, including hosting public forums and open discussions on issues of importance to the community. Individual League members invest substantial time and effort in voter training and civic engagement activities, including voter registration and get-outthe-vote (“GOTV”) efforts. LWVWI has developed the statewide Election Observation Program and the Vote411 voter guide for Wisconsin.
41. LWVWI also devotes substantial time and effort to ensuring that government at every level works as effectively and fairly as possible. This work involves continual attention to and advocacy concerning issues of transparency, a strong and diverse judiciary, fair and equal nonpartisan redistricting, and appropriate government oversight.
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42. The interests LWVWI seeks to protect in this action, the voting rights of its members and all eligible Wisconsin voters, are germane to the organization’s purpose as detailed above. As a membership organization, LWVWI suffers the constitutional injury of its members, like Plaintiff Claire Whelan.
43. For the April 7, 2020 election, LWVWI fielded calls, texts, emails, and social media messages from voters who were struggling to comply with the witness requirement, and LWVWI members offered to help voters by serving as Plaintiffs’ witnesses. LWVWI also worked with partners to create educational materials around the witness requirement for voters and volunteers assisting voters. LWVWI communicated with clerks and others to identify absentee ballot dropboxes with volunteers ready to serve as witnesses and to relay this information to voters. As changes to the witness requirement were made, LWVWI communicated them with the League of Women Voters national office (“LWVUS”) to ensure their national voter education resource, VOTE411.org, was up to date with the latest information. To understand the scope of issues faced by voters during this unprecedented election, LWVWI created a survey to collect stories from voters, including challenges to finding a witness and issues with receiving an absentee ballot. LWVWI analyzed the results along with other relevant data sets to write the Wisconsin Election Protection: 2020 Spring Election Report, which highlights barriers voters faced and gives recommendations to improve future elections. Voter experiences and recommendations regarding the burdensome witness requirement and the failures to deliver absentee ballots are included in the report. Additionally, LWVWI-Dane County and LWVWI-Ashland and Bayfield Counties worked with Meals on Wheels and educated its delivery people on how to serve as witnesses for people who live alone. LWVWI-Dane County also worked with the Dane County Voter ID Coalition to mobilize their Voter ID helpline to identify voters in need of a witness and to provide
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assistance as needed. All of this work was specific to and undertaken for the first time because of the COVID-19 pandemic. LWVWI had never done any of this specific work on the witness requirement previously or diverted any of its resources or staff time to helping voters navigate the witness requirement. All told, LWVWI’s Voter Education Manager Eileen Newcomer spent an estimated 20.5 hours, the equivalent of $512.50 in salary, working on various activities to educate voters about the witness requirement and help them navigate it.
44. Furthermore, LWVWI responded to voters’ concerns about not receiving in the mail absentee ballots they had timely requested. LWVWI worked with partners to develop educational materials around what to do if a requested absentee ballot does not arrive in the mail— including how to track an absentee ballot’s status, who to contact to follow up on your ballot, and what the voters’ options are to still vote in the election. LWVWI fielded calls from municipal clerks who said they could not handle the volume of absentee ballot requests and needed more resources and funding to purchase more envelopes and ballots. Additionally, the municipal clerks said they needed WEC to intervene and make up the shortfall in ballots so soon before the election. Many printers had been shut down as non-essential businesses under Executive Order #12, and only the Commission could procure the necessary hundreds of thousands of ballots on short notice. These clerks wanted LWVWI to raise awareness on the issue. In late March, when WEC realized they had an insufficient number of ballots statewide, WEC made an emergency request to print more ballots and secured a printer through the state procurement process. All told, LWVWI’s Voter Education Manager Eileen Newcomer spent an estimated 35.5 hours, the equivalent of $887.50 in salary, working on various activities to educate voters about the witness requirement and help them navigate it.
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45. LWVWI’s work on educating voters about and helping voters with absentee ballot delivery failures and the witness requirement will continue through the August and November elections. LWVWI intends to do more of the same for August and November elections, when they reasonably anticipate the same challenges with receiving ballots on time and complying with the witness requirement will return in force.
46. As to the witness requirement, LWVWI will be working with local Leagues and municipal clerks to identify volunteers to serve as witnesses and possibly staff absentee drop-off locations. LWVWI will also work with the Voter ID Coalition to expand their efforts to provide witness information and support statewide. LWVWI will continue to provide educational materials around the witness requirement and is exploring creating new digital resources. LWVWI will continue to respond to voter inquiries about the witness requirement. Additionally, LWVWI will continue to follow up with voters who responded to its post-election survey and identified that they had difficulty safely complying with the witness requirement and provide assistance in future elections. LWVWI will work with local League members to provide training or resources around this specific requirement. LWVWI will continue its advocacy efforts to remove or relax the witness requirement. But for the unconstitutional enforcement of the witness requirement during this COVID-19 pandemic, LWVWI would not be compelled to divert resources, money, and staff time to educating and helping voters struggling with this law.
47. As to absentee ballot delivery failures, LWVWI will continue to follow up with voters who responded to LWVWI’s survey and identified that they did not receive their ballot and provide assistance as needed. LWVWI will continue its advocacy efforts to ensure voters receive the absentee ballots they have requested and to which they are entitled by Wisconsin law. Specifically, LWVWI will support ballot tracking, which will increase transparency as ballots are
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in transit, and send voters absentee ballot applications. LWVWI will continue to respond to voter inquiries about ballot delivery failures, and continue to provide educational materials about this issue, and work with local League members to provide training and resources. But for the unconstitutional dual failure to provide voters with absentee ballots in the mail or any fail-safe option in those circumstances, LWVWI would not be compelled to divert resources, money, and staff time to educating and helping voters struggling to vote by absentee ballot in a timely manner.
48. LWVWI estimates that it will expend approximately $2,000 on its activities to educate and help voters with respect to the failures to prepare and deliver mail-in absentee ballots and the witness requirement.
49. Defendants Dean Knudson, Julie M. Glancey, Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, and Robert F. Spindell, Jr. are sued in their official capacities as the members of the Wisconsin Elections Commission.
50. Defendant Meagan Wolfe is sued in her official capacity as the Administrator of the Wisconsin Elections Commission.
FACTUAL BACKGROUND The COVID-19 Pandemic
51. In December 2019, a novel coronavirus strain was detected, now named SARSCoV-2, and the disease it causes became known as COVID-19. It has now spread throughout the world, including to every state in the United States.
52. On January 30, 2020, the World Health Organization (“WHO”) declared COVID19 to be a Public Health Emergency of International Concern. On March 11, 2020, the WHO declared that it had become a pandemic.
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53. The novel coronavirus that causes COVID-19 continues to spread at an unprecedented pace around the world and within the United States. There are currently more than
31
1.7 million confirmed cases in the United States, and there have been 102,761 deaths nationwide. As of the evening of May 29, 2020, the Wisconsin Department of Health Services had confirmed
32
17,707 positive cases of coronavirus in Wisconsin, 2,499 hospitalizations, and 568 deaths. 54. COVID-19 appears to be much more contagious than other respiratory illnesses, in
significant part because of its capacity for asymptomatic transmission, and highly lethal, particularly for people with underlying health conditions or comorbidities that put them at severe risk of complications or death. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and
33
other health conditions that suppress immune systems like HIV/AIDS. The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases (“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly
31 Mitch Smith et al, Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last accessed May 29, 2020).
32
Wisconsin Department of Health Services, Outbreaks in Wisconsin, https://www.dhs.wisconsin.gov/outbreaks/index.htm (last accessed May 29, 2020). 33 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html (last updated May 14, 2020).
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controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening
34
medications.”
55. Severe COVID-19 cases can cause a wide variety of secondary infections and
pathologies, including but not limited to: pneumonia, acute respiratory distress syndrome, kidney
failure, liver failure, strokes, heart attacks, cardiac inflammation, and gastrointestinal infections,
35
among others. Furthermore, everyone is at some risk of severe complications and death from
COVID-19, as health officials have recently associated COVID-19 with pulmonary embolism and
36
stroke in younger patients without known risk factors and subsequent inflammatory disease in
37
young children. Many of these clinical manifestations can and do result in death.
56. The CDC has warned that asymptomatic COVID-19-positive individuals can
38
transmit the disease to others. As a result, individuals can spread the disease for a week or more
before realizing they are infected, facilitating rapid transmission.
57. Leading epidemiologists anticipate that the pandemic will continue into fall and
winter of 2020, and potentially well into 2021. It is highly likely that COVID-19 will continue to
circulate at its current level or at an even higher level in October and November of 2020. Dr.
34 Id. 35 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes. 36 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And MiddleAged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronavirus-causingstrokes-in-young-and-middle-aged-people/#598e78fe34df. 37 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html. 38 Coronavirus 2019 (COVID-19): How to Prepare, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Mar. 4, 2020).
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Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a
second wave of infections in the United States is “inevitable,” and the CDC Director Robert
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Redfield has said that wave may “be even more difficult than the one we just went through.”
Furthermore, experts have warned that, to avoid exceeding hospital critical care capacities,
40
prolonged or intermittent social distancing may be necessary into 2022. Currently, no therapeutic
treatments or vaccinations have been shown to significantly alter the trajectory of the COVID-19
outbreak.
58. Countless eligible Wisconsin voters will continue to self-quarantine for fear of
contracting COVID-19, and/or for fear of transmitting the disease, regardless of whether they are
symptomatic or not.
59. COVID-19 will have an unprecedented impact on the nation’s upcoming elections.
Before the COVID-19 pandemic, the Brookings Institution predicted that “turnout in 2020 could
41
break all records and test our election machinery as it has never been tested before.” Other experts
42
also anticipate record-breaking turnout in the 2020 presidential election.
39 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Mar. 25, 2020), https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-vice-president-pence-members-coronavirus-task-forcepress-briefing-11/; Zack Budryk, CDC director warns second wave of coronavirus might be ‘more difficult,’ The Hill (Apr. 21, 2020), https://thehill.com/policy/healthcare/493973-cdcdirector-warns-second-wave-of-coronavirus-might-be-more-difficult. 40 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, Science (Apr. 14, 2020), available at https://science.sciencemag.org/content/early/2020/04/24/science.abb5793. 41 William A. Galston, What does high voter turnout tell us about the 2020 elections? Brookings Institution (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-highvoter-turnout-tell-us-about-the-2020-elections/. 42 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. News & World Report (Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/experts-predict-hugeturnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit? N.Y. Times (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnoutanalysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, The Atlantic (June 13,
36

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60. On March 12, 2020, Governor Tony Evers declared a public health emergency to direct all resources needed to respond to and contain COVID-19 in Wisconsin.
61. On March 13, 2020, President Donald Trump proclaimed a National Emergency concerning COVID-19.
62. On March 24, 2020, Wisconsin Department of Health Services Secretary-designee Andrea Palm issued Emergency Order #12, the “Safer at Home” Order, which, starting March 25th, closed all nonessential businesses in Wisconsin and required the state’s residents, with
43
limited exceptions, to stay at home in order to reduce the transmission of COVID-19. The order was in effect during the April 7 election, and expired by its own terms on April 24, 2020, when Secretary-designee Palm issued a new Emergency Order, EO#28. In an opinion issued on May 13, 2020, the Wisconsin Supreme Court ruled that EO#28 was unenforceable because it was not promulgated pursuant to statutory emergency rulemaking procedures and exceeded the Secretarydesignee’s authority under the statute on which it relied. Wisconsin Legislature v. Palm, 2020 WI 42, ¶¶ 58-59, ___ N.W.2d ___, 2020 WL 2465677, *12-*13. The Wisconsin Supreme Court’s opinion did not address EO#12.
63. EO#12 began by stating that, “[T]he entire State of Wisconsin - including residents, businesses, community organizations, and government - need to take all possible actions to reduce
44
further spread of COVID-19 to save lives.” The order continued to state that: “[S]ocial distancing - the practice of keeping at least six feet apart from others and avoiding direct physical contact - is
2019), https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/. 43 Emergency Order #12, available at https://content.govdelivery.com/attachments/WIGOV/2020/03/24/file_attachments/1409408/Hea lth%20Order%20%2312%20Safer%20At%20Home.pdf (last accessed May 29, 2019). 44 Id. at 1.
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the only effective means of slowing the rate of infection. Despite prior emergency orders banning mass gatherings, the rates of infection continue to drastically increase, necessitating additional
45
measures to slow the rate of infection and save lives.” 64. Emergency Order #12 mandated that “[a]ll individuals present within the State of
Wisconsin are ordered to stay at home or at their place of residence, with exceptions” for certain defined “essential activities” such as those to promote individual and family health and safety including obtaining groceries and medications, “essential governmental functions,” “essential businesses and operations” such as grocery stores, pharmacies and gas stations, “non-essential
46
minimum basic operations,” and “essential travel.” Furthermore, the Order instructed that “[t]o the extent individuals are using shared or outdoor spaces other than their home or residence, they must at all times as reasonably possible maintain social distancing of at least six (6) feet from any
47
other person consistent with Social Distancing Requirements,” as defined. The Order mandated that “[n]on-essential business and operations must cease. All for-profit and non-profit businesses with a facility in Wisconsin, except Essential Businesses and Operations as defined below, are required to cease all activities at facilities located within Wisconsin.”48
65. Crucially, for purposes of the April 7 election, the order commanded that, “All public and private gatherings of any number of people that are not part of a single household or living unit are prohibited, except for the limited purposes expressly permitted in this Order.”49 It also required that, “Elderly people and those who are vulnerable as a result of underlying health conditions should take additional precautions. People at high risk of severe illness from COVID-
45 Id. at 2. 46 Id. at 2. 47 Id. at 2. 48 Id. at 3. 49 Id. at 3.
38

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19 and people who are sick are urged to stay in their home or residence to the extent possible except as necessary to seek medical care.”50 For the purpose of elections during the remainder of 2020, in the wake of the Wisconsin Supreme Court’s ruling striking down Wisconsin DHS Emergency Order 28, Safer at Home, it is noteworthy that a patchwork of additional orders has sprung up across the state, with municipal and county governments issuing their own orders requiring various degrees of restrictions and requirements to shelter in place.51
The Law and Mechanics of Requesting, Casting, and Returning an Absentee Ballot in Wisconsin
66. Wisconsin has no-excuse absentee voting. “An absent elector is any otherwise
qualified elector who for any reason is unable or unwilling to appear at the polling place in his or
her ward or election district.” Wis. Stat. § 6.85.
67. Registered voters in Wisconsin can apply for and obtain absentee ballots in a variety
52
of ways: by a written, mail-in application; in person at the municipal clerk’s office or at an
53
alternate site under Wis. Stat. § 6.855; by signing a statement and filing a request to receive
absentee ballots under Wis. Stat. § 6.86(2) or Wis. Stat. § 6.86(2m)(a) (indefinitely confined
voters) or Wis. Stat. §§ 6.22(4), 6.24(4), or 6.25(1)(c) (military and overseas civilian voters); by
50 Id. at 4. 51 See, e.g., Howard Hardee and Riley Vetterkind, UPDATE: 13 of 72 Wisconsin counties and the city of Racine have extended stay-at-home orders, Wisconsin State Journal (May 15, 2020), https://madison.com/wsj/news/local/govt-and-politics/update-13-of-72-wisconsin-counties-andthe-city-of-racine-have-extended-stay-at/article_7d97c49c-8e06-518d-a25b-079f9086b023.html; Some Wisconsin counties and cities have continued or started new stay-at-home orders, but others have been rescinded, MILWAUKEE JOURNAL SENTINEL (May 13, 2020), https://www.jsonline.com/story/news/local/wisconsin/2020/05/13/wisconsin-stay-home-ordernot-over-dane-brown-counties-milwaukee-city-racine/5188700002/.
52
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.
53
Wisconsin’s “early voting” is in fact in-person absentee voting. Statistics on “absentee voting,” therefore must be disaggregated into in-person absentee voting and mail-in absentee voting.
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agent as provided in Wis. Stat. § 6.86(3) (hospitalized voters); by delivering an application to a special voting deputy under Wis. Stat. § 6.875(6) (voters in retirement homes and residential care facilities); by email or fax as provided in Wis. Stat. § 6.86(1)(ac); and by online request through the myvote.wi.gov portal.
68. Unless the voter is indefinitely confined, a military or overseas voter, or has a confidential listing (typical in domestic violence cases), the voter must submit or upload a copy or image of their valid photo ID the first time they submit an absentee ballot request. Wis. Stat. §§ 6.86(ac), 6.87(1). The clerk must verify the name on the absentee ballot. Wis. Stat. §§ 6.86(ac).
69. Absentee ballots are delivered to voters in different ways: by mail, email, and in person. See infra at 53-55.
70. Absentee ballots are cast and returned in different ways as well. Many absentee voters mail their absentee ballots to the municipal clerk’s office, drop the ballots off, or authorize
54
someone to drop them off on their behalf. Wis. Stat. § 6.87. In-person absentee voters vote prior to Election Day at designated sites, but their ballots are not processed and counted until Election Day. Wis. Stat. §§ 6.855, 6.87, 6.88. All absentee ballots must be returned to the municipal clerk’s office by no later than 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6).
71. Municipal clerks prepare absentee ballots for delivery to voters that request them. An absentee ballot must be sent to any voter with an absentee application already on file, no later than 47 days before a federal election, and no later than 21 days before a primary or other election. Otherwise, the municipal clerk must deliver an absentee ballot within one business day of the time
54 See also Uniform Instructions for Wisconsin Absentee Voters, WIS. ELECTIONS COMM’N, https://elections.wi.gov/sites/elections.wi.gov/files/201902/Uniform%20Instructions%20for%20Absentee%20Voting%20%20All%20Voters%20%20%28Rev.%202-2019%29.pdf.
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the voter’s request is received. Wis. Stat. § 7.15(1)(cm). Some absentee voters have requested ballots for a whole year or to be placed on the permanent absentee voter list because they are indefinitely confined. Wis. Stat. § 6.86(2)(a).
Failures to Process Absentee Ballot Requests and Deliver Absentee Ballots to Voters 72. The threat of contracting COVID-19, particularly in confined spaces like polling
sites, and the precipitous reduction in election administration resources for in-person voting both on and before Election Day has forced a seismic shift towards mail-in absentee voting in Wisconsin. Mail-in absentee ballots have been cast by 4.8 to 8.1 percent of voters in spring and fall general elections going back to the 2016 fall general election, but in the April 7, 2020 election,
55
they comprised a stunning 61.8 percent of votes cast. In that election, voters submitted an unprecedented total of 1,239,611 absentee ballot requests to municipal clerks, clerks issued 1,282,097 absentee ballots, some replacement ballots, and voters returned 1,157,599 of them, 73.2
56
percent of the total turnout of 1,555,263. Only a fraction of these were in-person absentee ballots, as 964,433 or 83.3 percent of the 1,157,599 absentee ballots were mail-in absentee ballots; and as
57
noted, this was nearly 62 percent of the total turnout. Based on these figures, 42,486 of the mailin absentee ballots were replacement ballots, many chasing previously-requested ballots that were
58
delayed or lost in the mail, and 124,498 mail-in absentee ballots were ultimately never returned. 73. Notwithstanding municipal clerks’ heroic efforts to prepare and mail out an
unprecedented number of absentee ballots, voters in the April 7th election nevertheless faced a
55 See supra note 3, Post-Election Absentee Voting Report, at 6 (Table 4).
56
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862; supra note 3, Post-Election Absentee Voting Report, at 4 (Table 2), 5 (Table 3). 57 See supra note 3, Post-Election Absentee Voting Report, at 4 (Table 1).
58
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862.
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catastrophic and systemic failure to timely prepare and deliver absentee ballots by mail. The total number of voters disenfranchised in this way is unknown, but at least several thousand voters never received their ballots in the mail. Some voters received their ballots too late to cast and deliver or postmark them by April 7th, while some voters never received them at all, even weeks later. Absent any fail-safe alternative for these voters who diligently and timely requested absentee ballots, their remaining options were to play Russian roulette with their health at the polls or lose their right to vote.
74. This debacle was fueled by the Legislature’s and the Governor’s inaction, Defendants’, municipal clerks’, and the USPS’s systemic administrative incapacity to keep pace with the demand for absentee ballots, flaws or weaknesses in Defendants’ computer systems and database management, and the burdens of enforcing Wisconsin’s myriad legal requirements, such as the photo ID requirement for absentee voters. Wis. Stat. § 6.86(ac). All of these factors made it extremely difficult to process and deliver ballots to voters. Wisconsin’s election administration system, from the processing of absentee ballot requests to the printing of address labels to technological glitches, and the USPS buckled under the strain of an unprecedented surge in absentee ballot requests compared with the 2016 presidential primary and spring election. As Defendants put it in their post-mortem report, “The most fundamental challenge faced by election
59
officials was simply meeting the unprecedented demand.” That same report notes that: Absentee voting remains a largely manual, labor-intensive process administered by each individual jurisdiction across the state. While voters can request a ballot and upload a photo ID on their smart phone in just a few minutes, behind the scenes clerks must still manually verify the IDs, stuff and seal envelopes by hand, apply postage, carry boxes of envelopes to the post office, and physically check off each request. . . . When mail volume is up to ten times higher than anticipated, clerks must complete the same tasks without the benefit
60
of having more staff, additional supplies or more hours to meet statutory deadlines.
59 See supra note 3, Post-Election Absentee Voting Report, at 13. 60 Id. at 3.
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Given the complex and labor-intensive procedures for processing and mailing out absentee ballots, Wisconsin election offices are simply not adequately staffed or funded to cope with such a widespread shift to mail-in absentee voting. Absent the kind of massive allocation of funding and resources to permit election officials to scale up staff and supplies to meet demand, which only Congress and/or the Wisconsin Legislature can provide, it is far more likely than not that Wisconsin election officials will remain unable to satisfy a much greater demand for mail-in absentee ballots in the fall.
75. The April 7, 2020 election set the record for most mail-in ballots cast in any
61
Wisconsin election ever. The Commission reports that “[a]s the enormous quantity of absentee ballots began entering the mail system, voters began asking more questions and expressing concerns about ballot deliveries. With nearly six times more ballots in circulation, the number of complaints and concerns increased by a similar amount. Some voters also reported not receiving
62
their absentee ballots . . . .” Voters who requested their mail-in absentee ballots weeks in advance of April 7th like Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and Gregg Jozwik never received their ballots in the mail—not before, on, or after Election Day. All of these Plaintiffs were in Wisconsin at the time of the election. Many voters like Plaintiffs Katherine Kohlbeck, Diane Fergot, and Gary Fergot contacted their municipal clerk’s offices to inquire about their missing absentee ballots, all to no avail; none were offered any alternative such as email delivery.
76. The Post-Election Absentee Voting Report recounts the multifarious and alarming failures to put absentee ballots in voters’ hands. In one such incident, “the City of Oshkosh and
61 Id. 62 Id. at 12.
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other Fox Valley communities all reported voters complaining that their ballots were arriving late
63
or not arriving at all.” Even after an investigation, Defendants have not been able to explain why
so many completed absentee ballot requests yielded so many unreturned ballots.
The WEC also investigated reports from the City of Oshkosh suggesting that ballot requests were received but not fulfilled. While many of the cases involved incomplete requests (e.g. no photo ID provided) other records appeared complete. WEC staff researched several dozen Oshkosh area ballot requests that were entirely valid, including those of Assembly Representative Gordon Hintz (D – Oshkosh) and his spouse. The ballot records in question were generated as part of a batch on March 24, and analysis of the ballots associated with it showed that a large part of the batch was not returned by voters. Of the first quarter of records generated, more than 90% were returned. Of the remaining three- quarters of records, less than 1% were returned. This suggests that something happened to the ballots in the latter portion of the batch.
WEC and Oshkosh staff could find no evidence of a technical failure. The Oshkosh batch was produced very quickly by the system (two minutes and seven seconds), did not include any unexpected applications, and occurred during normal operating hours when no system maintenance was underway. Furthermore, the City of Oshkosh Clerk reports with confidence that the ballots were mailed to voters. Thus, in this case, there is no evidence of a system error and no evidence of a printing problem. Instead, one of two events are possible: either a user did not apply the mailing labels to ballot envelopes, or these ballots
64
were bundled together and collectively encountered an issue in the mailing process.
Furthering the latter theory, USPS notified Defendants that it had found three tubs of absentee
65
ballots destined for Appleton and Oshkosh in a processing center. But this alarming report has
raised more questions than it has answered, and it has not yet been adequately investigated:
On the morning of April 8, 2020, WEC staff received a telephone call from a Political and Election Mail Coordinator at the Great Lakes Regional office of the USPS in Chicago. The USPS official reported that the post office had located “three tubs” of absentee ballots for the Appleton/Oshkosh area and that the ballots were being processed. The official was unable to confirm how many ballots were in the three tubs but stated that “it could be quite a lot” as they were large two-handled tubs. In a follow up communication, the USPS indicated that there were approximately 1,600 ballots in the batch.
WEC staff attempted to follow up with the USPS to further identify the ballots and determine what happened but did not receive any further information about these ballots.
63 Id. at 16. 64 Id. 65 See supra note 14, Luthern.
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Written inquiries to the USPS did not produce any specific information about these ballots. Wisconsin’s two U.S. Senators have asked the USPS Inspector General to investigate, but
66
WEC staff have been unable to learn anything about the status of the inquiry.
77. Additional alarming stories of mail ballot preparation and delivery failures abound:
Scott Botcher, Fox Point village manager, said his staff worked hard to quickly send ballots to all 2,877 residents who requested them. But something strange happened ahead of Election Day: USPS repeatedly returned unsent ballots without explanation. ‘The ballots are not stamped “undeliverable” or anything. They just never got mailed,’ . . . But on Election Day — the deadline for voters to postmark their ballots — he received a white plastic bin filled with 175 ballots local voters never received. . . . Botcher said he and Pedersen took the returned, unopened ballots back to their branch post office seeking an explanation and got none. Village officials asked them to be redelivered — and some were
67
returned to the sender, the village of Fox Point — more than once, Botcher said.
The Commission investigated and corroborated this story:
As with the larger cities, smaller municipalities also reported issues with ballots reaching residents or being returned to the clerk in a timely fashion. The Village of Fox Point was among them and experienced an unusual chain of events that garnered some media attention. For two weeks, absentee ballots that were supposed to be mailed to Fox Point residents were repeatedly returned to the Fox Point Village Hall by the post office before reaching voters.
The village reported receiving anywhere from 20 to 50 of these returned absentee ballots per day two weeks ahead of the election. The problem continued to grow as election day neared. In the week prior to the election, 100 to 150 ballots per day were returned to the village. On the morning of Election Day, Fox Point Village Hall received a plastic mail bin with 175 ballots. In each case, the returned ballots were unopened, unmarked and had not been received by voters. The postage was not cancelled, and no explanation was provided.
Each time they received a batch of absentee ballots, village officials immediately drove the ballots back to the nearest post office. They asked post office supervisors what was wrong with the ballots, but they did not receive any explanation. Fox Point Village Clerk Kelly Meyer reports it is unclear how many voters were affected by the undelivered ballots. Residents who did not receive an absentee ballot in the mail were advised to vote in person at their polling place on Election Day. Residents who called village hall inquiring about their absentee ballot on Election Day could retrieve their ballot from village hall if the
68
ballot still un-sent and the resident could confirm their identity with a photo ID.
66 See supra note 3, Post-Election Absentee Voting Report, at 16. 67 See supra note 15, Returned to Sender. 68 See supra note 3, Post-Election Absentee Voting Report, at 16-17.
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78. In Milwaukee, officials have asked USPS to investigate absentee ballots that were
69
never received. Neil Albrecht, executive director of the City of Milwaukee Election Commission,
said because of worker shortages, postal officials told him it could take seven to 10 days to deliver
70
a ballot. Albrecht said the date recorded as the “ballot mailing date” in myvote.wi.gov actually
71
reflects the date the mailing label is generated by staff, not the date a ballot was mailed.
Reportedly, it typically takes employees another three to seven days to assemble, mail and deliver
72
the ballot, depending on the backlog’s size. Albrecht also said the city heard from an
“extraordinary number” of voters on March 22 and 23 who reported to the Election Commission
that they had not received their ballots and that “many voters were just disenfranchised by waiting
73
for absentee ballots to arrive in the mail.” Again, WEC’s report investigated and discovered that
a combination of human and computer errors likely resulted in a large batch of absentee ballot
requests going unfulfilled:
As in Oshkosh, there was a sharp decline in ballot return rates for a specific subset of ballots. Of the 5,913 ballot records created on or before 10:42:32 p.m. on March 22, 5,237 were recorded as having returned in some way to the clerk’s office. This is an 88.5% return rate. Of the 2,693 ballots generated after 10:42:32 p.m., only one was recorded as returned.
Further investigation disclosed several factors unique to Milwaukee. In particular:
• It was the largest batch processed by WisVote; ultimately including 8,607 absentee ballot request records. The median batch size for the same day was 32 records. • It started at 5:16 p.m. on March 22 and did not complete until 1:31 a.m. on March 23. Typically, batches complete within a few minutes. • Of the absentee application records associated with the batch, many were created after the batch was generated. Since the first thing the batch does is select the absentee application records that match its criteria, this should not be possible.
69 See supra note 14, Luthern. 70 See supra note 15, Returned to Sender. 71 See supra note 12, Chen et al. 72 Id. 73 See supra note 15, Returned to Sender.
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Upon review, it was determined that the timeframe of this particular batch overlapped with maintenance on a known server issue. On March 22, WEC staff observed high utilization rates in some WisVote servers that could potentially cause user interface degradation, such as slow page loads or poor performance of some tasks. In consultation with Microsoft, plans were made to implement server improvements to prevent further issues. In the interim, system resources were freed by restarting the servers that process background jobs, called asynchronous servers. Background jobs are intended to be short-running, and by restarting one server at a time during a period when few users would be interacting with the system, staff believed that WisVote’s load balancing would shuffle background jobs as needed and there would be no impact. That has been staff’s experience in past server restarts, and in testing no impact was observed. However on subsequent code review it was determined that it is possible, if a batch workflow is restarted, for that workflow to select applicable ballot requests a second time, which would generate ballot tracking records for absentee applications not originally associated with the batch.
It is staff’s belief that an extraordinary confluence of events resulted in additional ballot records being generated after MEC staff printed their mailing labels, leading MEC to believe those ballots had already been sent when in fact they had not. First, Milwaukee’s extraordinarily large batch of more than 8,000 ballots, exacerbated by the high user load on the system in the run up to the April election, resulted in the processing of this batch taking several hours, instead of a few minutes. Second, unbeknownst to MEC, Commission staff conducted an unscheduled restart of the asynchronous servers to address an unrelated issue, interrupting this long-running job. Third, an oversight in the development of this process meant that the system failed to handle the restart gracefully, selecting an entirely new collection of absentee applications instead of continuing from where it had been interrupted.
Since the database contained detailed information tracking batch creation, staff could develop precise criteria to determine the impact and review transactions across the state. As a result, staff can conclusively determine that this restart issue only impacted this one batch in the City of Milwaukee. As a result of this issue, staff believes that 2,693 requested ballots were never sent to City of Milwaukee residents. Of the affected voters, 52.5% voted in the election either on a replacement absentee ballot or at the polls on election day.74
This shocking incident disenfranchised approximately 1,279 voters, who could not participate in
the election despite their diligence. They had timely requested their ballots more than two weeks
before Election Day and, believing that the mail was delayed and that they had no other alternatives
for ballot delivery, watched the days elapse and finally Election Day go by without an absentee
74 See supra note 3, Post-Election Absentee Voting Report, at 19-20 (emphasis added).
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ballot arriving in the mail. Absent any fail-safe, these voters and voters like them, including

Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and

Gregg Jozwik, will see their most fundamental right of U.S. citizenship denied or severely

burdened.

79. If this is the level of ballot preparation and delivery failures and resulting
75
disenfranchisement when a total of 1,555,263 of the state’s voters turn out to vote, it is inevitable

that the state’s 1,850 municipal clerks’ offices will not be able to handle nearly double the volume

of absentee ballot requests in a timely fashion this fall. Wisconsin had 3,397,693 registered voters

76

77

as of May 1, 2020. In 2016, 2,976,150 voters cast ballots for President. If the same number of

voters vote in November and if, as in April, 61.8 percent of those voters cast mail-in absentee ballots, municipal clerks will need to process a minimum of 1,839,260 absentee ballot requests and

successfully deliver the same number by mail in the fall. Assuming the 1 to 1.129 ratio of returned

mail-in ballots to total issued mail-in absentee ballots holds from the April 7th election, then clerks
78
will need to issue over 2 million mail-in absentee ballots this fall. This stands in stark contrast to

the 2016 fall general election, in which just 162,445 absentee ballots returned by mail and other

means such as special voting deputies (but excluding in-person absentee voting), and which

75
Wisconsin Elections Commission, Canvass Results for 2020 Spring Election and Presidential Preference Vote, https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results%20Summary_spring%2 0election%20all%20contests_4_7_2020.pdf.
76
Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
77
Wisconsin Elections Commission, Canvass Results for 2016 General Election, https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20Offices%20 %28post-Presidential%20recount%29.pdf.
78
This calculation assumes that all or almost all in-person absentee ballots are returned.
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constitutes about one-sixth of the comparable absentee ballots cast in the April 7 election and a
79
mere 8.83 percent of the projected total for the 2020 fall general election. 80. Further, many of these requests are submitted in the final days before the deadline
when municipal clerks’ offices will be busy conducting in-person absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week prior to April 7. Clerks received over 60,000 requests alone on the Friday before election day. Even if all these requests were mailed
80
on Saturday, it is unknown how long those ballots took to reach voters.” With significant USPS delays, it is likely that a substantial portion did not arrive in time for voters to cast them. 80,593 requests were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). The overwhelming majority of these 289,168 requests which came in over just four
81
days, were mail-in absentee ballots and by law had to be mailed out to voters within a day. Wis. Stat. § 7.15(1)(cm).
81. Absent radical increases in funding, staffing, and supplies, Wisconsin election officials at the state and local level will not be able to handle such an enormous increase in mailin absentee ballot requests. Defendants seem to concur with this assessment: “If voting patterns from April hold true, the state could see more than 1.8 million requests for absentee ballots by mail. This kind of volume would present terrific challenges for Wisconsin election officials at all
79
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397 80 See supra note 3, Post-Election Absentee Voting Report, at 17. 81 Id. at 17 (Table 11).
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82
levels.” Even for the April 7th election, dozens of Milwaukee City Election Commission staffers
83
had already worked seven days a week until 11 p.m. to process ballots. Madison City Clerk
Maribeth Witzel-Behl said there was “no way humanly possible” to keep up with the volume of
requests, even though staffers were working 110 hours a week but still had a week’s worth of
backlogs by mid-March, and “that their computer system became so bogged down by the volume
84
of applications that it only began working quickly after 10 p.m.” As the Commission noted in its
post-mortem report,
Nearly every community experienced unprecedented absentee request volume, and many hired temporary staff to cope with demand. Many small and medium size jurisdictions learned to use WisVote absentee batch processing tools for the first time, having never previously needed any automation assistance to manage their workload. Larger cities, while used to higher volumes, were forced to work around the clock and conduct much larger batch mailings then [sic] previously experienced. For all jurisdictions, the statutory requirement to mail ballots within 24 hours of receiving a request presented a significant
85
challenge.
82. Defendants’ proposals for new procedures, tracking tools, and other measures
cannot cure this shortfall in resources and staff. In WEC’s recent report on the April 7th election,
the only proposal to reform the absentee ballot request process that could potentially have any
impact on the administrative burden is automatic data updates to WisVote, the statewide voter
registration system, when voters use myvote.wi.gov: “[I]nformation submitted to clerks through
MyVote should not require manual data entry into the voter registration system or rely on an email-
86
based process for most users.” Updates to Form EL-121, the statewide absentee ballot request
form, and myvote.wi.gov, as well as other measures to make the absentee process more user-
82 Id. at 12. 83 See supra note 12, Chen et al. 84 Id. 85 See supra note 3, Post-Election Absentee Voting Report, at 13. 86 Id. at 21-24.
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friendly and intuitive, can help reduce some calls to municipal clerks’ offices, but that will not solve the problem of an overwhelming demand for mail-in absentee ballots and a lack of staff and
87
resources to meet that demand. Finally, applying Intelligent Mail Barcodes to absentee ballots will not meaningfully help municipal clerks’ offices meet the unprecedented demand to prepare
88
and mail out absentee ballots or to speed up a congested postal service. 83. Notably, Plaintiffs’ proposed remedies of email delivery of absentee ballots and/or
authorizing domestic civilian voters to use the Federal Write-in Absentee Ballot will significantly alleviate the burden on municipal clerks statewide through the deadline to request mail-in absentee ballots and while in-person voting through Election Day is under way. However, if those alternatives are not made available to voters and election officials alike (who both stand to benefit), Defendants cannot and will not be able to guarantee that the labor-intensive tasks of processing over 2 million absentee ballot requests, entering data and printing labels for all those ballots, and then mailing them off will not once again cause the system to break down. Defendants, of course, also cannot guarantee that USPS will timely deliver ballots to absentee voters. Given the concrete evidence of a systemic failure to keep up with the demand for absentee ballots in a much lower turnout election, this Court must intervene and safeguard voters’ constitutional rights. A presidential election is no time to leave voters without a fail-safe when election officials and the postal service fail to put ballots in voters’ hands.
84. The lack of a fail-safe option for such voters violates the First and Fourteenth Amendments to the U.S. Constitution as an undue burden on the right to vote. No legitimate state interest is advanced by this denial of these voter’s rights to vote, and the burden is the most severe
87 Id. 88 Id. at 22-23.
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possible: disenfranchisement. The lack of a fail-safe option when ballots do not arrive in the mail

forces voters such as Plaintiffs to choose between their constitutionally-protected rights to vote

and to bodily integrity in violation of the unconstitutional conditions doctrine. It also fails to

provide a reasonable modification for voters with disabilities in violation of Title II of the

Americans with Disabilities Act. Fail-Safe Remedies for Ballot Preparation and Delivery Failures

85. The following proposed remedies for the disenfranchisement caused by ballot

preparation and delivery failures are intended to serve as last resorts or fail-safes for voters such

as Plaintiffs. They should not be used by voters or election officials in the first instance, but rather

only after a timely-requested mail-in absentee ballot fails to arrive in the mail. In that event, voters

such as Plaintiffs must be afforded a fail-safe alternative: (a) accessing and downloading a mailin absentee ballot, e.g. through myvote.wi.gov, (b) delivery of the ballot by email, or (c) permission

to vote the Federal Write-In Absentee Ballot (“FWAB”) used already by overseas civilian voters.

Granted, these solutions to the constitutional problem of ballot preparation and delivery failures

that continue to threaten Wisconsin voters with disenfranchisement, given the massive shift to

voting by mail during the COVID-19 pandemic, will not work for all voters. Voters who lack

access to a computer, a printer, the Internet, or friends, family, and neighbors with the same will

not be able to avail themselves of these proposed remedies. However, these remedies would cure the constitutional violation as to many voters and allow those voters to cast a ballot safely and

timely.

A. Accessing and Downloading Mail-In Absentee Ballots

86. Mail-in absentee ballots are delivered or made available to voters in a few different

ways. Domestic civilian voters can receive mail-in ballots by mail, fax, or email delivery, if the

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municipality in which the voter resides chooses to make them available in that way. In addition to these delivery methods, all military and overseas voters, regardless of their municipality of residence, can also access their mail-in absentee ballots themselves online at myvote.wi.gov,
89
download them for marking, and return them by mail. Wis. Stat. § 6.87(3)(d). Section 6.87(3)(d) appears to still restrict the ability to electronically access and download a mail-in absentee ballot to military and overseas voters.
87. This process is automated and does not require municipal clerks to do any work to deliver a mail-in absentee ballot (and the envelope’s certificate) to a military or overseas voter. This method of ballot “delivery” shifts the burden from the municipal clerk’s office staff to the voter by permitting the voter to access their ballot at any time after their request is completed and processed.
88. The military or overseas voter must enter the last four digits of their Social Security Number in order to access their ballot online at myvote.wi.gov.
B. Email Delivery of Mail-In Absentee Ballots 89. If a voter uses myvote.wi.gov, then mail delivery of the absentee ballot is the default and only option for a domestic civilian voter. If, however, a voter fills out the statewide absentee ballot request form, Form EL-121, seeking a mail-in absentee ballot, then the voter is offered a
90
selection of three methods of delivery: mail, fax, or email. For each delivery option, the voter is

89 See also Wisconsin Elections Commission, MyVote Wisconsin: A Guide to the MyVote

Wisconsin

Website

for

Voters

and

Clerks,

at

20-21,

https://elections.wi.gov/sites/elections.wi.gov/files/publication/65/myvote_manual_sept_2016_p

df_21316.pdf.
90
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot,

https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf; see also

Wisconsin Elections Commission, Faxing or Emailing Absentee Ballots,

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required to write in the address to which the ballot should be mailed, their fax number, or their
91
email address. Some registered voters will have already provided their email address upon
92
registering to vote, such that it is in their voter registration record. Upon information and belief, the statewide absentee ballot request form is not accessible through myvote.wi.gov. It is only accessible through WEC’s website or a municipal clerk’s website, if the municipality posts it.
90. Wisconsin’s municipal clerks gained the authority to deliver mail-in absentee ballots to domestic civilian voters by email or fax in this Court’s decision in One Wisconsin Institute v. Thomsen in 2016. 198 F. Supp. 3d 896, 946 (W.D. Wis. 2016), which invalidated the statutory ban on emailing or faxing mail-in absentee ballots to domestic civilian voters and is on appeal. This ruling appears to have left the decision as to whether to email or fax ballots or not to the sole discretion of Wisconsin’s 1,850 municipal clerks—it struck down a ban, but did not
93
mandate anything. Even though it appears from the face of Form EL-121 that a voter can request email delivery upon their initial request, i.e. in the first instance and not just as a back-up, upon information and belief, WEC construes these emailed ballots as replacement ballots and, therefore,
https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo ts_to_uocava_vote_83593.pdf.
91
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.
92
Wisconsin Elections Commission, Form EL-131, Wisconsin Voter Registration Application, https://elections.wi.gov/sites/default/files/publication/154/el_131_voter_registration_application _pdf_23730.pdf.
93
Wisconsin Elections Commission, Uniform Instructions for Absentee Voting, at 2, https://elections.wi.gov/sites/elections.wi.gov/files/201902/Uniform%20Instructions%20for%20Absentee%20Voting%20%20All%20Voters%20%20%28Rev.%202-2019%29.pdf.
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only permits requests for email or fax delivery up until the regular deadline for mail-in absentee

ballots,

i.e.

5:00

p.m.

on

the

Thursday

before

Election

94
Day.

91. The procedure for emailing absentee ballots requires municipal clerks to “print their

initials in the endorsement section of the ballot and on the face of the ballot and scan the initialed

ballot” and then email the voter the initialed ballot, the absentee ballot certificate envelope, and
95
the Uniform Instructions for Absentee Voters. WEC’s instructions on how the voter should be

directed to print, cast, and mail the ballot state:

The elector should be instructed to print the ballot, vote the ballot in the presence of a witness, fold the ballot and seal it inside a regular, non-window envelope, complete and sign the absentee certificate. An adult U.S. citizen witness must sign and provide his or her address on the certificate. Military or permanent overseas voters should provide their birthdate. The certificate should be affixed (with glue or tape) to the envelope containing the voted ballot. The envelope with the certificate attached should be placed into another, larger, envelope, sealed and mailed to the municipal clerk. The ballot must be received by
96
8 p.m. on Election Day.

The WEC’s instructions continue to explain that “[t]he absentee elector must return the hard copy

of the ballot and the completed certificate to the municipal clerk in time so that the clerk can deliver
97
the ballot to the polling place before the close of the polls.”

92. The WEC’s instructions on email delivery of ballots notes that USPS does not think

it can guarantee on-time delivery unless it is afforded a week. The USPS recommends that ballots
98
be mailed one week prior to the date of the Election to arrive on time. The elector may choose

94 Id. (“A voter may request that a replacement ballot be faxed or emailed to him or her. The ballot
must be returned to the municipal clerk no later than 8:00 p.m. on Election Day. The ballot may
not be returned to the municipal clerk by fax or email.”) (emphasis added).
95
Wisconsin Elections Commission, Faxing or Emailing Absentee Ballots,
https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo
ts_to_uocava_vote_83593.pdf. 96 Id. 97 Id. 98 Id.
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99
overnight delivery to assure that their ballot arrives on time. The municipal clerk is not
100
responsible for return postage of a faxed or e-mailed absentee ballot. “When absentee ballots
are returned to the clerk’s office, the municipal clerk records the information is recorded in
101
WisVote or their WisVote Provider.” “The municipal clerk records the date absentee ballots are
102
faxed or e-mailed to voters in WisVote or forwards the information to their WisVote Provider.”
The clerk encloses the envelope holding the ballot into a certificate envelope and attaches the
completed certificate to the outside. The clerk then delivers the ballot to the appropriate polling
103
place in a carrier envelope.” “At the polling place, the election inspectors follow the procedures
for processing absentee ballots. The ballot may be remade by 2 election inspectors in order for the
104
ballot to be accepted by electronic tabulating equipment.”
93. Upon information and belief, every one of Wisconsin’s 1,850 municipal clerks
exercises their discretionary authority on email delivery of absentee ballots differently. Some
advertise this delivery option; some do not. Some will deliver ballots by email; some will not, even
close to Election Day or the effective deadline to mail the ballot so that it is received in time to be
counted. And there are of course variances between staff members within a municipal clerk’s
office.
94. Nevertheless, in the 2016 fall general election, Wisconsin municipal clerks emailed
105
voters 9,619 absentee ballots, and 7,231 voters returned those absentee ballots by mail.
99 Id. 100 Id. 101 Id. 102 Id. 103 Id. 104 Id.
105
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397.
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95. The municipal clerk is required to enter absentee applications and ballot information into the WisVote system maintained by the Commission within 48 hours after mailing or receiving an in-person absentee ballot application. Wis. Stat. § 6.33(5). Or, in the case where the municipality relies on the county or another municipality, the clerk shall submit the information to the clerk’s WisVote provider, and the provider shall enter the absentee information into the WisVote system within 24 hours. Wis. Stat. § 6.33(5).
96. The failures of Defendants, municipal clerks, and the USPS to keep up with the unprecedented, gargantuan demand for mail-in absentee ballots during this COVID-19 pandemic cries out for the alternative option of email delivery of absentee ballots. It need not and should not be a first resort; it is a last resort. However, to prevent disenfranchisement when ballots fail to arrive timely in the mail such that voters can timely vote and return them, Plaintiffs respectfully request that this Court order Defendants to instruct municipal clerks to email absentee ballots to voters who timely requested those ballots be delivered by mail but did not receive them in time to return them.
97. Email delivery will greatly alleviate the administrative burden on municipal clerks’ offices in mailing out replacement absentee ballots for those previously-issued ballots that did not arrive timely in the mail.
C. Federal Write-In Absentee Ballots 98. There is one other element of absentee voting in Wisconsin that is relevant to the
106
relief Plaintiffs request: the Federal Write-in Absentee Ballot (“FWAB”). This is another failsafe option that would solve the problem of disenfranchisement by delayed delivery. Federal law and Wisconsin law set forth a procedure for military and overseas civilian voters to request and
106
Federal Write-in Absentee Ballot, https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. 57

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cast absentee ballots. Under the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq., military and overseas civilian voters are able to register

to vote and request an absentee ballot with a federal postcard application. 52 U.S.C. §

107
20301(b)(2). Under UOCAVA, military and overseas voters also must be permitted to cast

108

109

FWABs as an “Official Backup Ballot” or “back-up measure” to vote in federal races if they

do not receive their regular absentee ballot. 52 U.S.C. §§ 20302(a)(3), 20303(a)(1) (“The

Presidential designee shall prescribe a Federal write-in absentee ballot (including a secrecy

envelope and mailing envelope for such ballot) for use in general, special, primary, and runoff

elections for Federal office by absent uniformed services voters and overseas voters who make

timely application for, and do not receive, States, absentee ballots.”). State legislatures have the

discretion to permit UOCAVA voters to use FWABs to vote in state and local offices or not. 52

U.S.C. § 20303(a)(1).

99. The ballot is downloadable and printable from this url:

https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. The envelope must be assembled by

the voter, and the voter fills out both a voter information sheet and the official back-up ballot. “[A]

Federal write-in absentee ballot shall be submitted and processed in the manner provided by law

for absentee ballots in the State involved.” 52 U.S.C. § 20303(b). If the voter later casts an official

state absentee ballot after casting their FWAB, they are instructed to “make every reasonable effort

to inform the appropriate State election official that the voter has submitted more than one ballot.”

52 U.S.C. § 20303(d). Wisconsin law requires a military or overseas voter first apply for an

107
Federal Postcard Application, https://www.fvap.gov/uploads/FVAP/Forms/fpca2013.pdf.
108
Federal Write-in Absentee Ballot, https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf, at 3.
109
52 U.S.C. § 20303(a)(2).
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absentee ballot with the federal postcard application before using the FWAB. See Wis. Stat. §

6.25(1)(a);

Federal

Write-in

Absentee

Ballot,

at

1,

https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.

100. Because these are write-in ballots, federal law sets forth specific rules for

processing and counting FWABs, specifically:

(1) In completing the ballot, the absent uniformed services voter or overseas voter may designate a candidate by writing in the name of the candidate or by writing in the name of a political party (in which case the ballot shall be counted for the candidate of that political party).

(2) In the case of the offices of President and Vice President, a vote for a named candidate or a vote by writing in the name of a political party shall be counted as a vote for the electors supporting the candidate involved.

(3) Any abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a political party shall be disregarded in determining the validity of the ballot, if the intention of the voter can be ascertained.

52 U.S.C. § 20303(c).

101. Wisconsin law tracks the federal requirement but adds one restriction. First, the

statute states that

[a]ny individual who qualifies as a military elector under s. 6.22(1)(b) and who transmits an application for an official absentee ballot for any election, including a primary election, no later than the latest time specified for the elector in s. 6.86(1)(b) may, in lieu of the official ballot, cast a federal write-in absentee ballot prescribed under 42 USC 1973ff-2 for any candidate for an office listed on the official ballot or for all of the candidates of any recognized political party for the offices listed on the official ballot at that election if the federal write-in absentee ballot is received by the appropriate municipal clerk no later than the applicable time prescribed in s. 6.87(6).

Wis. Stat. § 6.25(1)(a). Next, subsection (b) authorizes the same for “overseas electors.” Wis. Stat.

§ 6.25(1)(b). However, there is an exception to this default rule that a FWAB voter can vote in all

federal, state and local races. Under Wisconsin Statutes Section 6.24, an “overseas elector” is

defined as

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Case: 3:20-cv-00249-wmc Document #: 230-1 Filed: 06/26/20 Page 61 of 80
a U.S. citizen who is not disqualified from voting under s. 6.03, who has attained or will attain the age of 18 by the date of an election at which the citizen proposes to vote and who does not qualify as a resident of this state under s. 6.10, but who was last domiciled in this state or whose parent was last domiciled in this state immediately prior to the parent's departure from the United States, and who is not registered to vote or voting in any other state, territory or possession. Wis. Stat. § 6.24(1). Wisconsin law does draw a distinction between those who are permanently overseas and those who are temporarily overseas, i.e. those who maintain Wisconsin residence. The latter group can vote for state and local contests, but the former cannot: An overseas elector may vote in any election for national office, including the partisan primary and presidential preference primary and any special primary or election. Such elector may not vote in an election for state or local office unless the elector qualifies as a resident of this state under s. 6.10. An overseas elector shall vote in the ward or election district in which the elector was last domiciled or in which the elector’s parent was last domiciled prior to departure from the United States. Wis. Stat. § 6.24(2) (emphasis added). Regardless, both Wisconsin residents who are temporarily overseas and permanently overseas voters who were last domiciled in Wisconsin can both use FWABs as ballots, at least for federal races, while domestic civilian voters cannot cast FWABs for any race. The principle behind this is that a voter who is overseas will face hardship or potential disenfranchisement if this back-up option is not made available to them. The COVID-19 pandemic now threatens many domestic civilian voters with hardship and potential disenfranchisement— their right to vote is entitled to the same protection, given these extreme circumstances. 102. Affording domestic civilian voters the right to cast FWABs to the same extent as overseas civilian voters and allowing them to use the FWAB for all federal, state, and local races would also cure the constitutional and federal statutory violations caused by the lack of a fail-safe option for voters who request absentee ballots during this pandemic because they cannot safely vote in person and whose absentee ballots never arrive in the mail. Plaintiffs respectfully request that this Court order this as relief in the alternative or in addition to the email delivery of ballots in
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the narrow circumstance where a voter timely requests a mail-in absentee ballot be delivered by mail but does not receive that ballot.
The Witness Requirement 103. All absentee ballots must be witnessed and signed by an adult U.S. citizen (other than those cast by military and overseas voters, whose absentee ballots may be witnessed by an adult who is not a U.S. citizen), but that individual need not be a resident of Wisconsin or a
110
registered voter in the state. Wis. Stat. § 6.87(4)(b)1. The witness signature requirement applies to all absentee voters, regardless of the particular method by which the voter cast that absentee ballot. Id. The absentee ballot certificate contains both a voter certification and a witness
111
certification, which the voter and witness must respectively sign under penalty of perjury. 104. For in-person absentee voting, the municipal clerks serve as the witnesses, and they
must put down the clerk’s office address, but, upon information and belief, they can just use a
112
stamp. Other forms of absentee voting, such as for hospitalized voters and voters in nursing homes, through an agent or special voting deputy (“SVD”) require the agent or SVD to serve as the witness.
105. Because Wisconsin law requires that mail-in absentee ballots’ certifications be
113
signed by the voter and by a witness who is an adult U.S. citizen, this requirement constitutes an insurmountable hurdle for many eligible Wisconsin voters under self-quarantine. All eligible
110 See also Wisconsin Elections Commission, Form EL-122, Standard Absentee Ballot Certificate, WIS. ELECTIONS COMM’N, available at https://elections.wi.gov/sites/elections.wi.gov/files/gab_forms/4/el_122_standard_absentee_ballo t_certificate_portra_17554.pdf. 111 Id.
112
Wisconsin Elections Commission, Absentee Voting 101, (Sept. 7, 2016), https://elections.wi.gov/node/4086.
113
As noted previously, for military and overseas voters, the witness need not be a U.S. citizen. 61

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Wisconsin voters under self-quarantine who live alone or who do not have an adult U.S. citizen in their household will be unable to satisfy the state’s witness signature requirement and cast a mailin absentee ballot.
106. According to the U.S. Census Bureau, there are over 675,000 single-member
114
households in Wisconsin, and many other households that include only one adult. More than
115
250,000 of these single-member households are individuals over the age of 65. 107. Additionally, upon information and belief, at least 735 mail-in absentee ballots in
Milwaukee were rejected for lack of a witness signature. 108. Since in-person voting would pose a severe risk to the bodily integrity and lives of
these individuals, that option, which must be preserved statewide, is simply not viable for voters who are at elevated risk from COVID-19. Indeed, in-person voting, which requires the gathering of many poll workers (or “election inspectors”) and voters in a single polling place, would seem to violate social distancing guidance. Under the current circumstances, given the acknowledged public health hazard of contracting COVID-19 from in-person voting, the witness signature requirement preventing certain eligible Wisconsin voters from casting a mail-in ballot constitutes an undue burden on the right to vote not justified by any legitimate or important government interest.
109. Plaintiffs Sylvia Gear and Claire Whelan, both of whom must vote by mail-in absentee ballot to safeguard their lives during this pandemic, challenged this requirement back in March and April. Because they live alone and are self-quarantining during the COVID-19 pandemic, given their advanced age and medical histories, the CDC’s recommendations, and the
114 See supra note 30, U.S. Census Bureau. 115 Id.
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now-enjoined Emergency Order #12, they have no way to reasonably and safely obtain a witness signature on their mail-in absentee ballots’ certifications and are therefore effectively disenfranchised by Wis. Stat. § 6.87(4)(b)1. For example, Plaintiff Claire Whelan was compelled to ask a friend to drive from a town 8 miles away to Ms. Whelan’s apartment in order to serve as her witness. There, because Ms. Whelan is at high risk from COVID-19 due to her asthma, she and her friend were forced to pass the ballot underneath a closed door and text each other photos showing the completed acts that constitute the witnessing process. It is patently unreasonable to require voters like Ms. Whelan to engage in such a process to comply with the witness requirement when there are reasonable alternatives such as this Court’s own injunction providing a certification alternative or the Seventh Circuit’s panel suggestion of remote witnessing with the recording of a witness name, without a physical signature from that witness. Absent a court order enjoining the witness signature requirement for the November 3, 2020 general election, at least in part, Plaintiffs Whelan and Gear will be denied their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution.
110. The burdens imposed on voters forced to comply with the witness requirement during the COVID-19 pandemic far outweigh any benefit Defendants derive from it in seeking to deter, prevent, detect, or prosecute electoral fraud. The prevention of voter fraud is an important regulatory interest of Wisconsin state government officials, including Defendants, but any law designed to prevent voter fraud must be tailored to the burdens it imposes. See Norman v. Reed, 502 U.S. 279, 289 (1992); Fish v. Schwab, 957 F.3d 1105, 1132 (10th Cir. 2020) (observing that “the Secretary points to no concrete evidence that ‘[its] interests make it necessary to burden the plaintiff’s rights’ in this case”). Here, the witness requirement is not an effective tool to safeguard election integrity and, therefore, the state’s interest is greatly attenuated. The witness requirement
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also undermines the state’s strong public health interest in limiting the spread of COVID-19. If absentee voting is closed off to individuals who live alone or do not have an adult U.S. citizen in their household, some may well resort to in-person voting, thereby running the risk of contracting and spreading COVID-19 and further worsening the pandemic in Wisconsin. Others who are at severe risk, like Plaintiffs, will be prevented from voting altogether, an unconstitutional result that this suit seeks to prevent.
111. On April 1, 2020, this Court presided over a hearing on Plaintiffs’ motion for a preliminary injunction. Ruling in Plaintiffs’ favor, the Court blocked the witness requirement in part: “Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.” 20cv-249, dkt. 171.
112. Defendant-Intervenors Republican Party of Wisconsin and Republican National Committee appealed the preliminary injunction and moved for and obtained a stay of the aboveexcerpted part of the preliminary injunction. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL 1672702 (U.S. Apr. 6, 2020). The Seventh Circuit’s motions panel concluded “that the district court did not give adequate consideration to the state’s interests in suspending this requirement.” Id. at *3. But notably, in seeking to strike a balance between the voters’ burdens and the state’s anti-fraud interest, the Court suggested that witnesses could observe voters casting their ballots remotely without actually physically signing the ballot:
So, too, do we have every reason to believe the Commission, in keeping with the forwardleaning action it has taken thus far to accommodate voters’ interests while also striving to ensure their safety, will continue to consider yet other ways for voters to satisfy the
64

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statutory signature requirement (if possible, for example, by maintaining the statutory presence requirement but not requiring the witness’s physical signature). Id. at *4. While this was a mere suggestion in dicta, Plaintiffs now seek this as a remedy in addition
to or in the alternative to this Court’s own reasonable efforts certification. The Seventh Circuit
panel did not rule on the merits and has dismissed the appeals, so both forms of relief remain
viable. CLAIMS
COUNT ONE FAILURES TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS
(All Plaintiffs) (Denial of Right to Vote in Violation of the First and Fourteenth Amendments to the U.S.
Constitution and 42 U.S.C. § 1983)
113. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First
Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
114. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden
on the right to vote must be balanced against a state’s interest in that requirement. The Supreme
Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also One Wisconsin Institute, Inc. v. Thomsen,
15-cv-324-jdp, 2016 WL 4059222 at *3 (W.D. Wis. July 29, 2016) (“This analysis proceeds under what is known as the Anderson–Burdick framework, which sets out a three-step analysis. First, I
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determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden.”).
115. Wisconsin’s election administration system, as managed by Defendants, is not equipped to handle the unprecedented surge in mail-in absentee balloting that the COVID-19 pandemic is causing. The November general election will be conducted under substantial COVID19 transmission and will see an estimated 2 million-plus absentee ballot requests. Given the current systems, procedures, laws, and resources for absentee voting and mail delivery, there is simply no way that Defendants, the municipal clerks who take their marching orders from them, and USPS can meet that demand. Inevitably, some portion of voters who must vote by mail due to the risk COVID-19 poses to their health and the health of their family members will not receive a ballot in the mail.
116. Because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, and Sheila Jozwik were all disenfranchised in the April 7 election and stand to be disenfranchised again in the November general election, and Plaintiff Gregg Jozwik was forced to risk exposure to the novel coronavirus by voting in person. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because they have diverted and will continue to divert resources, staff time, and money to educate and help voters who do not receive a requested absentee ballot in the mail.
117. In-person voting of course is not a reasonable alternative, as that would require these Plaintiffs to enter a confined and crowded space where they run a significant risk of contracting COVID-19.
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118. The failure to prepare and deliver absentee mail-in ballots timely or at all constitutes a complete denial of a voter’s right to cast a ballot, where voters cannot safely vote in person or will be traveling or otherwise away from their ward on Election Day.
119. The burden on the right to vote is the most severe imaginable, while the state has zero legitimate interest in disenfranchising a voter who does not timely receive an absentee ballot in the mail. Under the circumstances of the COVID-19 pandemic, which has already led both the federal and Wisconsin state governments to declare emergencies, there is no “compelling,” “important,” or “legitimate” interest, Burdick, 504 U.S. at 434, that can justify this disenfranchisement or failing to afford voters a fail-safe option that is already in use in the state.
120. Plaintiffs, and all voters who timely request an absentee ballot by mail delivery but who do not receive that ballot in the mail, must be granted one or both of two fail-safes, either (a) the option to request that an absentee ballot be made available to them for electronic access and downloading or emailed to them, and/or (b) the option to cast a Federal Write-in Absentee Ballot.
121. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution.
122. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of their rights to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT TWO WITNESS REQUIREMENT (Plaintiffs LWVWI, Wisconsin Alliance, Claire Whelan, and Sylvia Gear) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983)
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123. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
124. Under the First and Fourteenth Amendments to the U.S. Constitution, any burden on the right to vote must be balanced against a state’s interest in that requirement. The Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also One Wisconsin Institute, Inc. v. Thomsen, 15-cv-324-jdp, 2016 WL 4059222 at *3 (W.D. Wis. July 29, 2016) (“This analysis proceeds under what is known as the Anderson–Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden.”). 125. The witness signature requirement for absentee mail-in ballots requires mail-in absentee voters to obtain an adult U.S. citizen’s signature certifying that the voter cast the mail-in ballot themselves. Wis. Stat. § 6.87(4)(b)1. 126. Under the circumstances of the COVID-19 pandemic, which led both the federal and Wisconsin state government to declare emergencies, it is not safe, reasonable, or even logical to require mail-in absentee voters who live alone or do not have an adult U.S. citizen living in their household to seek out and obtain a witness’s signature in order for the ballot to be validly cast and
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counted. This required action puts the health of Plaintiffs Claire Whelan and Sylvia Gear in jeopardy. They, and other similarly situated voters, are compelled to take an unreasonable risk to satisfy the witness requirement, when reasonable alternatives that equally satisfy the state’s antifraud interest exist.
127. Not only does continuing to require a witness signature on a mail-in ballot in the face of this fast-spreading pandemic lack support from a legitimate government interest that is “compelling” or “important,” Burdick, 504 U.S. at 434, but it would also directly contradict the state’s proffered interest in maintaining social distancing.
128. Given the circumstances of the COVID-19 pandemic, eligible Wisconsin voters who are at higher risk from COVID-19 and who live alone or who do not have an adult U.S. citizen living in their household, like Plaintiffs Claire Whelan and Sylvia Gear, cannot safely comply with the requirements of Wis. Stat. § 6.87(4)(b)1. through reasonable efforts and cast a mail-in absentee ballot that will count.
129. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because Plaintiffs Whelan and Gear are members of LWVWI and Wisconsin Alliance, respectively, and because these organizations have diverted and will continue to divert resources, staff time, and money to educate and help voters who are struggling and/or unable to safely comply with the witness requirement through reasonable efforts.
130. Therefore, under these circumstances, Section 6.87(4)(b)1. now creates an undue burden on mail-in absentee voters’ right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as construed in Anderson and Burdick.
131. In-person voting of course is not a reasonable alternative, as that would require these eligible Wisconsin voters to enter a confined space with even more people than would be
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required to witness the casting of a mail-in absentee ballot and seriously jeopardize their health and life.
132. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution.
133. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT THREE FAILURES TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS; WITNESS
REQUIREMENT (All Plaintiffs) (Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C.
§ 1983)
134. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
135. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997).
136. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The
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Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel) (“Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right. In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Absent a compelling state interest, a State may not burden the right to travel in this way.” (internal citation and footnotes omitted)).
137. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. State, 912 F.3d 907, 919 (6th Cir. 2019). “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
138. Because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, and Sheila Jozwik were all disenfranchised in the April 7 election and stand to be disenfranchised again in the November general election, and Plaintiff Gregg Jozwik was forced to risk exposure to the novel coronavirus by voting in person. Without a fail-safe option, they must either lose their right to vote or vote in person which threatens them with a violation of their bodily integrity. In-person voting would require these Wisconsin voters to enter a confined space with many people, risking contracting COVID-19.
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139. By failing to provide a fail-safe option for voters who request but do not receive an absentee ballot in the mail and by requiring Plaintiffs Claire Whelan and Sylvia Gear to engage a witness to observe the voting of their mail-in ballots and to sign the certification, which cannot be reasonably and safely accomplished, Defendants effectively require Plaintiffs to choose between a severe risk to their right to bodily integrity and losing their right to vote.
140. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because they have diverted and will continue to divert resources, staff time, and money to educate and help voters who do not receive a requested absentee ballot in the mail and to educate and help voters who are struggling and/or unable to safely comply with the witness requirement through reasonable efforts. Additionally, Plaintiffs Whelan and Gear are members of LWVWI and Wisconsin Alliance, respectively.
141. Because in-person voting and the witness requirement both severely threaten to violate Plaintiffs’ bodily integrity by subjecting them to the significant risk of contracting COVID19, Defendants force Plaintiffs to forfeit their right to bodily integrity in order to exercise their right to vote. Should Plaintiffs exercise their right to vote under these circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign substance—the novel coronavirus that causes COVID-19—without a therapeutic basis or Plaintiffs’ consent.
142. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
143. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
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COUNT FOUR FAILURE TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS; WITNESS
REQUIREMENT (Plaintiffs Katherine Kohlbeck, Diane Fergot, Claire Whelan, and League of Women
Voters of Wisconsin) (Failure to Provide Reasonable Modifications in Violation of Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 144. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 145. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including exercise of the fundamental right to vote, that screen out individuals with disabilities from fully and equally enjoying those services and programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability. 146. “The obligation to make ‘reasonable modifications’ parallels the obligations to make ‘reasonable accommodations’ in the context of Titles I and III.” Lacy v. Cook Cty., 897 F.3d 847, 853 (7th Cir. 2018). To accommodate a disability in the employment context is to “make some change that will enable [a] disabled person to work.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995). To accommodate a disability in the context of a public service requires a modification that would enable a disabled person to “participat[e] in or [enjoy the] benefits of services, programs, or activities of a public entity.” 42 U.S.C.S. § 12132. 147. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan possess are at higher risk for severe illness from COVID-19. Because of these high risks, Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan are substantially affected and unable to enjoy at least one major life
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activity: exercising their fundamental right to vote. Additionally, Claire Whelan’s chronic asthma substantially limits the operation of her respiratory function, a major bodily function and a major life activity.
148. Individuals who suffer a significant medical vulnerability that places them at high risk of serious bodily injury or death should they be forced to vote in person or secure a witness— including Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan, whose health conditions put them at high risk of severe illness or death should they contract COVID-19—have a disability within the meaning of the ADA.
149. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan’s medical conditions substantially affect their major life activities because they cannot safely exercise their fundamental right to vote without risking their lives. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan must be afforded reasonable fail-safe options if their absentee ballots do not arrive in the mail on time and provided some relief from the witness requirement.
150. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan are unable to reasonably and safely obtain a witness signature without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan would be unable to safely vote by absentee ballot through reasonable efforts unless they are afforded relief from the witness requirement.
151. Defendants’ failure and refusal to ensure that Plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable modification for those, such as Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan,
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whose health conditions limit their ability to have contact with others during this public health

emergency created by COVID-19, in violation of the ADA.

152. The failure to provide a reasonable modification for these voters constitutes a

condition on access to the ballot box that has the effect of screening out such individuals from

participating in the November 3, 2020 general election, in violation of Title II of the Americans

with Disabilities Act.

153. For the foregoing reasons, Defendants, acting under color of state law, have

deprived and will continue to deprive Plaintiffs of their statutory rights under the ADA as enforced

by 42 U.S.C. § 1983.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

(a) Assume jurisdiction over this matter;

(b) Declare that the lack of a fail-safe option for voters who previously and timely requested

a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail in time to

cast it such that it will be counted in the November general election, and Wis. Stat. § 6.87(3)(d) to

the extent it still restricts electronic access and downloading of mail-in absentee ballots to military

and overseas voters, violate the First and Fourteenth Amendments to the U.S. Constitution and

Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983;

(c) Preliminarily and permanently enjoining Wis. Stat. § 6.87(3)(d) to the extent it still

restricts electronic access and downloading of mail-in absentee ballots to military and overseas

voters;

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(d) To remedy the constitutional and federal statutory violations caused by the lack of a fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail, for the November general election, order:
1. Defendants to permit voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail, to request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, that a mail-in absentee ballot and its certificate envelope be made available to such voters for online access and downloading, e.g. through myvote.wi.gov, and/or emailed to such voters; 2. Defendants to make mail-in absentee ballots available for online access and downloading, e.g. through myvote.wi.gov, and/or email mail-in absentee ballots, upon request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, to voters who previously and timely requested a mailin absentee ballot by mail delivery but who do not receive that ballot in the mail; 3. Defendants to process and count mail-in absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; and 4. Preliminary and permanent injunctive relief prohibiting Defendants from rejecting and/or refusing to count mail-in absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters
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who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; (e) In the alternative or in addition to the relief outlined in subsection (c), for the November general election, order: 1. Defendants to permit voters who previously and timely requested an absentee ballot by mail delivery, to download, vote, and return in any way permitted under Wisconsin law or court orders the Federal Write-in Absentee Ballot; 2. Defendants to process and count Federal Write-in Absentee Ballots that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery; and 3. Preliminary and permanent injunctive relief prohibiting Defendants from rejecting and/or refusing to count Federal Write-in Absentee Ballots cast by voters who previously and timely requested a mail-in absentee ballot by mail delivery and that are timely returned in any way permitted under Wisconsin law or court orders, but only if they are postmarked or dropped off at a municipal clerk’s office on or after the seventh day before Election Day through the deadline for returning absentee ballots; (f) Declare that Wis. Stat. § 6.87(4)(b)1. violates, in part, the First and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983, for the November general election; (g) To remedy the constitutional and federal statutory violations caused by enforcement of the witness requirement, Wis. Stat. § 6.87(4)(b)1., without reasonable modification during the
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course of the COVID-19 pandemic, preliminarily and permanently enjoin Defendants from

enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November general election and from rejecting

and/or refusing to process and count an absentee mail-in ballot cast in the November general

election on the basis that it lack a witness signature on the certificate envelope, if the mail-in

absentee voter signs a certification on the absentee ballot certificate envelope or on a pre-printed

insert to be enclosed with the absentee ballot, that affirms that the voter was unable to safely obtain

a witness certification through reasonable efforts, provided that the ballot is otherwise valid;

(h) In the alternative or in addition to the relief outlined in subsection (f), preliminarily and

permanently enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November

3, 2020 general election and from rejecting and/or refusing to process and count an absentee mail-

in ballot cast in the November general election on the basis that it lacks a witness signature on the certificate envelope, if the witness observes the voter casting the ballot remotely, e.g. by

videoconference or through a glass window, and the voter records in writing on the absentee ballot

certificate envelope or on a pre-printed insert to be enclosed with the absentee ballot the full name

of the witness who witnessed the voting of the ballot and enough of the witness’s address to

identify the correct residential address and contact that witness, provided that the ballot is

otherwise valid;

(i) Retain jurisdiction to monitor Defendants’ compliance with this Court’s judgment;

(j) Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in bringing this action

pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise permitted by law; and

(k) Grant such other relief as this Court deems just and proper.

DATE: June 26, 2020

Respectfully submitted,

/s/ Jon Sherman

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Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org (202) 331-0114 Douglas M. Poland State Bar No. 1055189 David P. Hollander State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 Phone: 608-960-7430 Fax: 608-960-7460 dpoland@rathjewoodward.com dhollander@rathjewoodward.com Counsel for Plaintiffs *Admitted to the U.S. District Court for the Western District of Wisconsin
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EXHIBIT B

Case: 3:20-cv-00249-wmc Document #: 230-2 Filed: 06/26/20 Page 2 of 81

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, LEAGUE OF WOMEN VOTERS OF WISCONSIN, KATHERINE KOHLBECK, DIANE FERGOT, GARY FERGOT, BONIBET BAHR OLSAN, SHEILA JOZWIK, and GREGG JOZWIK,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

REVEREND GREG LEWIS, SOULS TO THE POLLS, VOCES DE LA FRONTERA, BLACK LEADERS

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ORGANIZING FOR COMMUNITIES, AMERICAN FEDERATION OF TEACHERS LOCAL, 212, AFL-CIO, SEIU WISCONSIN STATE COUNCIL, and LEAGUE OF WOMEN VOTERS OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,
Defendants.

Case No. 20-cv-284-wmc

GEAR, ET AL. V. BOSTELMANN, ET AL., CASE NO. 20-CV-278, PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, Gregg Jozwik, Claire Whelan, Sylvia Gear, League of Women Voters of Wisconsin (“LWVWI”), and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) (collectively, “Plaintiffs”) seek declaratory and injunctive relief as follows:
NATURE OF ACTION 1. The COVID-19 pandemic presents an unprecedented challenge to our nation, threatening millions of Americans’ lives and livelihoods and severely straining health care systems, the economy, and all levels and branches of government. It is wreaking havoc across all sectors and causing massive disruptions in election administration during this presidential election year. 2. COVID-19’s high transmission rate and lethality pose a severe risk to in-person voters, particularly those in at-risk groups identified by the Centers for Disease Control and Prevention (“CDC”). The pandemic has already resulted in massive withdrawals by volunteer poll
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workers who justifiably fear contracting the disease and the widespread closure of voting sites

throughout Wisconsin. In the April 7, 2020 election, only five of the usual 180 polling places in

1

2

Milwaukee were open. In Green Bay, just two of the usual 31 were operational.

3. The threat of contracting COVID-19, particularly in confined spaces like polling

sites and the long lines of voters who waited for their turn to access them on April 7, along with

the precipitous reduction in election administration resources for in-person voting both on and

before Election Day, have forced a seismic shift towards mail-in absentee voting in Wisconsin.

According to the Wisconsin Elections Commission’s (“WEC” or “the Commission”) recently-

released report on absentee voting in the April 7, 2020 election (“the Post-Election Absentee

Voting Report”), mail-in absentee ballots have been cast by 4.8 to 8.1 percent of voters in spring

and fall general elections going back to the 2016 fall general election, but in the April 7, 2020
3
election, they comprised a stunning 61.8 percent of votes cast. In that election, voters submitted

an unprecedented total of 1,239,611 absentee ballot requests to municipal clerks, clerks issued

1,282,097 absentee ballots (some of them replacement ballots), and voters returned 1,157,599 of
4
those ballots, or 73.2 percent of the total turnout in the election, 1,555,263. Only a fraction of

these were in-person absentee ballots, as 964,433 or 83.3 percent of the 1,157,599 absentee ballots

1 Alison Dirr and Mary Spicuzza, What we know so far about why Milwaukee only had 5 voting sites for Tuesday's election while Madison had 66, MILWAUKEE JOURNAL SENTINEL (Apr. 9,
2020), https://www.jsonline.com/story/news/politics/elections/2020/04/09/wisconsin-election-
milwaukee-had-5-voting-sites-while-madison-had-66/2970587001/. 2 Id. 3 See Wisconsin Elections Commission, April 7, 2020 Absentee Voting Report (“Post-Election
Absentee Voting Report”), at 6 (Table 4) (May 15, 2020),
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
05/April%202020%20Absentee%20Voting%20Report.pdf.
4
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862; see supra note 3, Post-Election
Absentee Voting Report, at 4 (Table 2), 5 (Table 3).
3

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5
were mail-in absentee ballots; and as noted, this was nearly 62 percent of the total turnout. Based on these figures, 42,486 of the mail-in absentee ballots were replacement ballots, many chasing previously-requested ballots that were delayed or lost in the mail, and 124,498 mail-in absentee
6
ballots were ultimately never returned. 4. Notwithstanding municipal clerks’ heroic efforts to prepare and mail out an
unprecedented volume of absentee ballots, voters in the April 7th election faced a systemic and catastrophic failure to timely prepare and deliver absentee ballots by mail. The total number of voters disenfranchised in this way is unknown, but as recounted by Defendants in their PostElection Absentee Voting Report, at least several thousand voters never received their ballots in the mail. According to Defendants’ own rolling absentee ballot reports, as of the morning of April 7, the last day to postmark a ballot for delivery or drop it off, it appears that 9,388 ballots had not
7
yet been mailed out. Some voters received their ballots too late to cast and deliver or postmark them by April 7th, while some voters never received them at all, even weeks later. Absent any failsafe alternatives for these voters who diligently and timely requested absentee ballots, their remaining options were to play Russian roulette with their health at the polls or lose their right to vote.
5. This debacle was fueled by the Legislature’s and Governor’s inaction, Defendants’, municipal clerks’, and the U.S. Postal Service’s (“USPS”) systemic administrative incapacity to keep pace with the demand for absentee ballots, flaws or weaknesses in Defendants’ computer systems and database management, and the burdens of enforcing Wisconsin’s myriad legal
5 See supra note 3, Post-Election Absentee Voting Report, at 4 (Table 1).
6
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862.
7
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 7, 2020 at 7:30 a.m.), https://elections.wi.gov/node/6825.
4

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requirements, such as the photo ID requirement for absentee voters. All of these factors made it extremely difficult to process and deliver so many ballots to voters. Wisconsin’s election administration system, from the processing of absentee ballot requests to the printing of address labels to information technology glitches, buckled under the strain of the surge in absentee ballot requests compared with the 2016 presidential primary and spring election. As Defendants put it in their post-mortem report, “The most fundamental challenge faced by election officials was simply
8
meeting the unprecedented demand.” That same report notes that: Absentee voting remains a largely manual, labor-intensive process administered by each individual jurisdiction across the state. While voters can request a ballot and upload a photo ID on their smart phone in just a few minutes, behind the scenes clerks must still manually verify the IDs, stuff and seal envelopes by hand, apply postage, carry boxes of envelopes to the post office, and physically check off each request. . . . When mail volume is up to ten times higher than anticipated, clerks must complete the same tasks without the benefit
9
of having more staff, additional supplies or more hours to meet statutory deadlines. Given the complex and labor-intensive procedures for processing and mailing out absentee ballots, Wisconsin election offices are simply not adequately staffed or funded to cope with an unprecedented shift to mail-in absentee voting by a vast majority of the electorate. Absent the kind of massive allocation of funding and resources to permit election officials to scale up staff and supplies to meet demand, which only Congress and/or the Wisconsin Legislature can provide, it is far more likely than not that Wisconsin election officials will remain unable to satisfy a much greater demand for mail-in absentee ballots in the fall.
6. The April 7, 2020 election set the record for most mail-in ballots ever cast in any
10
Wisconsin election ever. The Commission reports that “[a]s the enormous quantity of absentee ballots began entering the mail system, voters began asking more questions and expressing
8 See supra note 3, Post-Election Absentee Voting Report, at 13. 9 Id. at 3. 10 Id.
5

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concerns about ballot deliveries. With nearly six times more ballots in circulation, the number of
complaints and concerns increased by a similar amount. Some voters also reported not receiving
11
their absentee ballots . . . .” Voters who requested their mail-in absentee ballots weeks in advance
of April 7th, such as Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr
Olsen, Sheila Jozwik, and Gregg Jozwik, never received their ballots in the mail—not before, on,
or after Election Day. All of these Plaintiffs were in Wisconsin at the time of the election. Many
voters like Plaintiffs Katherine Kohlbeck, Diane Fergot, and Gary Fergot contacted their municipal
clerks’ offices to inquire about their missing absentee ballots, all to no avail. One media report
cited additional glitches:
In Wauwatosa, one couple said they received envelopes with no ballots. In Milwaukee, three would-be voters said they received a form letter from Mayor Tom Barrett thanking them for requesting an absentee ballot — but not the ballot itself. . . . For some Wisconsin residents wintering in New Mexico and Florida, ballots simply never showed up. Nineteen Wisconsin citizens across eight cities — from New Auburn in the north to Bristol in the south — said they requested absentee ballots only to later be told the system had no record
12
of their applications.
7. The Commission just recently released a report on absentee voting in the April 7,
2020 election, which recounts the multifarious and alarming failures to put absentee ballots in
voters’ hands. “Oshkosh and other Fox Valley communities all reported voters complaining that
their ballots were arriving late or not arriving at all,” but Defendants could not ascertain why this
13
had occurred. USPS notified WEC—the day after the election—that it had found three tubs of
approximately 1,600 absentee ballots destined for Appleton and Oshkosh; no explanation was
11 Id. at 12. 12 Daphne Chen, Catharina Felke, Elizabeth Mulvey and Stephen Stirling, ‘They should have done something’: Broad failures fueled Wisconsin's absentee ballot crisis, investigation shows, MILWAUKEE JOURNAL SENTINEL (Apr. 21, 2020), https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueledmultiple-failures/5156825002/. 13 See supra note 3, Post-Election Absentee Voting Report, at 16.
6

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14
offered, and none has been discovered. In the Village of Fox Point, USPS bizarrely and
repeatedly returned absentee ballots to the clerk’s office without explanation as to any defect
precluding delivery, culminating in the return of 100 to 150 returned ballots per day in the week
15
leading up to Election Day and 175 returned in a plastic mail bin on Election Day. The WEC’s
report notes that “[r]esidents who did not receive an absentee ballot in the mail were advised to
vote in person at their polling place on Election Day,” but of course that was not a viable, safe
16
option for at-risk voters. Finally, in Milwaukee, as a result of human and computer error or delay,
“2,693 requested ballots were never sent to City of Milwaukee residents. Of the affected voters,
52.5% voted in the election either on a replacement absentee ballot or at the polls on election
17
day.” This shocking incident disenfranchised approximately 1,279 voters, who lost their right to
vote through no fault of their own. They had timely requested their ballots more than two weeks
before Election Day and, believing that the mail was delayed and that they had no other alternatives
for ballot delivery, watched the days elapse and finally Election Day go by without receiving an
absentee ballot in the mail. Absent any fail-safe, these voters, including Plaintiffs Katherine
14 Id. at 16; Ashley Luthern, Wisconsin Election Commission decides to dig deeper into unreturned absentee ballots from election, MILWAUKEE JOURNAL SENTINEL (Apr. 18, 2020), https://www.jsonline.com/story/news/politics/2020/04/18/wisconsin-election-commission-lookinto-unreturned-absentee-ballots/5159766002/; see also Nick Corasaniti & Stephanie Saul, Inside Wisconsin’s Election Mess: Thousands of Missing or Nullified Ballots, N.Y. TIMES (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/us/politics/wisconsin-election-absentee-coronavirus.html. 15 Returned To Sender: Postal Officials Investigating Wisconsin Absentee Ballots That Were Never Delivered, WISCONSIN PUBLIC RADIO (Apr. 9, 2020) (“Returned to Sender”), https://www.wpr.org/returned-sender-postal-officials-investigating-wisconsin-absentee-ballotswere-never-delivered; supra note 3, Post-Election Absentee Voting Report, at 16-17. In response to these inexplicable failures, both of Wisconsin’s U.S. Senators called upon the Inspector General of the U.S. Postal Service to investigate “absentee ballots not being delivered in a timely manner.” See Letter from Senators Tammy Baldwin and Ron Johnson to U.S. Postal Service Inspector General (Apr. 9, 2020), https://www.wispolitics.com/wpcontent/uploads/2020/04/200409LETTER.pdf. 16 See supra note 3, Post-Election Absentee Voting Report, at 16-17. 17 Id. at 19-20.
7

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Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and Gregg Jozwik were denied the saw their most fundamental right of U.S. citizenship denied or severely burdened.
8. If this is the level of ballot delivery failures and disenfranchisement when a total of
18
1,555,263 of the state’s voters—less than 50% of the registered voters—turn out to vote, it is inevitable that the state’s 1,850 municipal clerks’ offices will not be able to handle nearly double that volume of absentee ballot requests in a timely fashion for the November 3, 2020 general
19
election. Wisconsin had 3,397,693 registered voters as of May 1, 2020. In 2016, 2,976,150 voters
20
cast ballots for President. If the same number of voters who voted in the 2016 Presidential election vote in the fall general election, and, as in the April 7 election, 61.8 percent of those ballots cast are mail-in absentee ballots, municipal clerks will need to process a minimum of 1,839,260 absentee ballot requests and successfully deliver the same number by mail. Assuming the 1 to 1.129 ratio of returned mail-in ballots to total issued mail-in absentee ballots holds from the April
21
7 election, then clerks will need to issue over 2 million mail-in absentee ballots this fall. This stands in stark contrast to the 2016 fall general election, in which just 162,445 absentee ballots returned by mail and other means such as special voting deputies (but excluding in-person absentee voting), and which constitutes about one-sixth of the total such ballots cast in the April 7 election
18
Wisconsin Elections Commission, Canvass Results for 2020 Spring Election and Presidential Preference Vote, https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results%20Summary_spring%2 0election%20all%20contests_4_7_2020.pdf; Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
19
Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
20
Wisconsin Elections Commission, Canvass Results for 2016 General Election, https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20Offices%20 %28post-Presidential%20recount%29.pdf
21
This calculation assumes that all or almost all in-person absentee ballots are returned. 8

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22
and just 8.83 percent of the projected total for the 2020 fall general election. All but guaranteeing another unprecedented surge in absentee voting, this Wednesday Defendants voted to send absentee ballot request forms to approximately 2.7 million registered Wisconsin voters, excluding the approximately 528,000 who have already requested absentee ballots and the approximately
23
158,000 suspected of moving to a different municipality or state. 9. Further, many of these requests are submitted in the final days before the deadline,
when municipal clerks’ offices will be busy conducting in-person absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week prior to April 7. Clerks received over 60,000 requests alone on the Friday before election day. Even if all these requests were mailed
24
on Saturday, it is unknown how long those ballots took to reach voters.” With significant USPS delays, it is likely that a substantial portion did not arrive in time for voters to cast them. 80,593 requests were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). The overwhelming majority of these 289,168 requests, which municipal clerks
25
received on just those four days alone, were requests for mail-in absentee ballots, which by law must be mailed out to voters within a day of receiving them. Wis. Stat. § 7.15(1)(cm).
22
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397. 23 Patrick Marley, Wisconsin election officials agree to mail absentee ballot request forms to most voters, MILWAUKEE JOURNAL SENTINEL (May 27, 2020), https://www.jsonline.com/story/news/politics/2020/05/27/wisconsin-officials-take-up-mailingabsentee-ballot-request-forms/5262753002/. 24 See supra note 3, Post-Election Absentee Voting Report, at 17. 25 Id.
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10. Absent radical funding and staffing increases, Wisconsin election officials at the
state and local level will not be able to handle such an enormous increase in mail-in absentee ballot
requests. Defendants seem to concur with this assessment: “If voting patterns from April hold true,
the state could see more than 1.8 million requests for absentee ballots by mail. This kind of volume
26
would present terrific challenges for Wisconsin election officials at all levels.” Even for the April
7th election, dozens of Milwaukee City Election Commission staffers had already worked seven
27
days a week until 11:00 p.m. to process ballots. Madison City Clerk Maribeth Witzel-Behl said
there was “no way humanly possible” to keep up with the volume of requests, even though staffers
were working 110 hours a week but still had a week’s worth of backlogs by mid-March, and “that
their computer system became so bogged down by the volume of applications that it only began
28
working quickly after 10 p.m.” As the Commission noted in its post-mortem report,
Nearly every community experienced unprecedented absentee request volume, and many hired temporary staff to cope with demand. Many small and medium size jurisdictions learned to use WisVote absentee batch processing tools for the first time, having never previously needed any automation assistance to manage their workload. Larger cities, while used to higher volumes, were forced to work around the clock and conduct much larger batch mailings then [sic] previously experienced. For all jurisdictions, the statutory requirement to mail ballots within 24 hours of receiving a request presented a significant
29
challenge.
11. Defendants will argue that they have taken steps to address some of these problems,
but, at bottom, they cannot guarantee that the labor-intensive tasks of processing over 2 million
absentee ballot requests, entering data and printing labels for all those ballots, and then mailing
them off will not once again cause the system to break down. Defendants also cannot guarantee
that USPS will timely deliver ballots to absentee voters. Wisconsin’s electoral system, as
26 Id. at 12. 27 See supra note 12, Chen et al. 28 Id. 29 See supra note 3, Post-Election Absentee Voting Report, at 13.
10

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administered by Defendants, failed the test run. None of Defendants’ proposals for new data entry procedures, tracking tools, and other measures can cure this shortfall in resources and staff. A presidential election is no time to leave voters without a fail-safe when Defendants’ proposed measures prove insufficient to prevent another massive failure to put ballots in voters’ hands.
12. The lack of a fail-safe option for these voters also violates the First and Fourteenth Amendments to the U.S. Constitution as an undue burden on the right to vote. No legitimate state interest is advanced by the denial of the right to vote to these voters. The lack of a fail-safe option when ballots do not arrive in the mail forces voters to choose between their constitutionallyprotected rights to bodily integrity and to vote in violation of the unconstitutional conditions doctrine and fails to provide a reasonable modification for voters with disabilities in violation of Title II of the Americans with Disabilities Act.
13. Even if voters who are at risk of suffering severe complications or dying from COVID-19 and who live alone or without an adult U.S. citizen in their household manage to receive their absentee ballots, the witness requirement still severely burdens their right to vote. Plaintiffs Claire Whelan and Sylvia Gear will once again apply for a mail-in absentee ballot for the November general election. Because they live alone and are self-quarantining during the COVID-19 pandemic, given their advanced age and/or medical histories and in light of the CDC’s recommendations, the extreme difficulties for these Plaintiffs to safely obtain a witness signature on their mail-in absentee ballot certificate envelopes remains a severe burden on their ability to
30
vote.
30
There are over 675,000 single-member households in Wisconsin, and many other households that include only one adult. More than 250,000 of these single-member households are individuals over the age of 65. See U.S. Census Bureau, 2013-2017 American Community Survey 5-Year Estimates, Table 2501, Occupancy Characteristics.
11

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14. By Wisconsin law, these absentee, mail-in ballots must be signed by the voter and also signed by a witness who is an adult U.S. citizen. Wis. Stat. § 6.87(4)(b)(1). This requirement poses a significant barrier to absentee, mail-in voting for any self-quarantining eligible voter who lives alone or who does not have an adult U.S. citizen in their household, particularly if they are elderly or have an underlying medical condition that puts them at higher risk from COVID-19. These voters are compelled to take unreasonable risks to satisfy the witness requirement to vote, when reasonable alternatives that equally satisfy the state’s anti-fraud interest exist.
15. Since in-person voting would pose a severe risk to the bodily integrity and lives of these individuals, that option, which must be preserved statewide, is simply not viable for voters who are at elevated risk from COVID-19. Taken together, the risks inherent in in-person voting and in securing a witness signature for an absentee mail-in ballot prevent certain eligible Wisconsin voters who live alone or without an adult U.S. citizen in the household from casting a ballot.
16. Enforcing this statutory requirement, particularly as to voters who are at heightened risk from COVID-19, constitutes an undue burden on the right to vote not justified by any legitimate or important government interest, a violation of the First and Fourteenth Amendments to the U.S. Constitution. If no alternatives are offered, such as a reasonable efforts certification that the voter can sign in lieu of securing a witness signature or witnessing without a physical signature, the witness requirement will force voters to choose between engaging another person in an unreasonably risky exercise, in-person voting that threatens their voter’s bodily integrity and health, or their disenfranchisement. This forces voters to choose between their constitutionallyprotected right to bodily integrity and their right to vote in violation of the unconstitutional
12

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conditions doctrine and fails to provide a reasonable modification for voters with disabilities in violation of Title II of the Americans with Disabilities Act.
JURISDICTION AND VENUE 17. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1343 because this case arises under the United States Constitution and seeks equitable and other relief for the deprivation of constitutional rights under color of state law. 18. This Court has jurisdiction to award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 19. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 20. This Court has personal jurisdiction over Defendant-Commissioners Dean Knudson, Julie M. Glancey, Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, and Robert F. Spindell, Jr., the members of the Commission, and Meagan Wolfe, the Administrator of the Commission, who are sued in their official capacities. Defendants Knudson, Glancey, Thomsen, Jacobs, Bostelmann, Spindell, Jr. and Wolfe are state officials who reside in Wisconsin and work in Madison, Wisconsin. 21. Venue is appropriate in the Western District of Wisconsin, under 28 U.S.C. § 1391(b)(1), because Defendants are state officials working in Madison, Wisconsin. A substantial part of the events giving rise to these claims occurred and continues to occur in this district, making venue also proper under 28 U.S.C. § 1391(b)(2).
PARTIES 22. Plaintiff Katherine Kohlbeck is 72 years old and a resident of Milwaukee, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her
13

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right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives alone and has been self-quarantined during the COVID-19 pandemic. On March 11th, she was diagnosed with breast cancer, and on May 12th, after a two-month delay due to the pandemic, she finally had her lumpectomy surgery. Typically, she votes in person on Election Day, but sometimes she votes early in person and she has voted by absentee ballot only on a few occasions, such as when she has gone on vacation. Because of her health condition and the uncertainty surrounding it, she attempted to vote by mail in the April 7, 2020 election. Her doctor told her not to risk getting COVID-19 and that she should absolutely not be in contact with people. She was told to stay home and stay safe, and she followed that medical advice. She was told by her surgeon that in order to have the lumpectomy, she would have to take a COVID-19 test and test negative. Fortunately, because she followed her doctors’ advice, she ultimately tested negative. If she had tested positive, she could not have had this necessary surgery. That is one major reason she had to vote by mail. She could not be exposed because at any moment she could have been called up for the postponed surgery. But even if she did not have breast cancer and did not need that surgery, at her age, her odds of surviving COVID19 are not good. And if she had managed to somehow survive COVID-19, it might well have made it impossible for her to have the lumpectomy afterwards. So, to avoid voting in person and the dangers of COVID-19, she requested an absentee ballot by mail using the website myvote.wi.gov on March 19th or 20th, but never received the ballot in the mail, even after Election Day. She managed to upload an image of her Wisconsin driver’s license. She had to take a photo of her driver’s license, and then she had to send it from her phone to her email and download it onto her laptop. Finally, she uploaded it to myvote.wi.gov. She was able to track her ballot on myvote.wi.gov. She waited for almost a week and checked the website again on March 25th and
14

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again on March 26th. The site showed that her ballot had been mailed out on March 23rd, but she had not yet received it. She did receive a letter from Milwaukee’s Mayor Tom Barrett thanking her for requesting an absentee ballot. At the time, she had no idea what was causing the delay, but since the election she has read some of the stories of how ballots were lost or delayed in the mail or never even were mailed out due to computer problems. She did not call the Milwaukee City Election Commission at any point. She thought her ballot was delayed but still coming, and that as long as it arrived soon, she could vote it and drop it off or mail it in. She did email the city election commission and received an email back from Neil Albrecht, the head of the Commission, who informed her that another ballot would be mailed out to her. Ultimately, she did not receive either of these ballots in the mail before, on, or even after Election Day. There was no way she was going to vote in person given her health situation and her age. She is at high risk from COVID19 and has been quarantining herself since mid-March. She has not been to church since March 15th. The risk of contracting COVID-19 is simply too high and, based on what she saw on the news, she would have had to wait in long lines for 90 to 120 minutes or longer and vote in a very crowded polling place, increasing her risk of contracting COVID-19. Instead of the usual almost200 polling places in the city, there were only five open on April 7th. This was due to the shortage of available poll workers and the COVID-19 crisis. She saw on the news that the lines and long waits continued throughout the day. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her health, age, and the ongoing
15

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COVID-19 crisis, voting in person is simply too high a risk to her health and life. If the cancer comes back, she might need additional surgery in the future. For the same reasons that she could not risk contracting COVID-19 by voting in person in the April 7th election, she cannot risk contracting it in the August and November elections. So, if her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-inan absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that and that her ballot arrives on time. If she cannot vote by mail in these elections, she will not be able to vote.
23. Plaintiff Diane Fergot is 59 years old and a resident of Oshkosh, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, and they have been quarantining themselves during the COVID-19 pandemic. Typically, she votes in person on Election Day, but COVID-19 poses a serious risk to her health and life. She has a history of severe blood clotting that required 14 years of medication; she also suffers from hypertension. From what she has read in the news, she understands that COVID-19 is causing blood clotting and strokes, even in healthy and younger people. She is extremely worried about COVID-19 and will only be voting by mail while the COVID-19 pandemic lasts. To avoid voting in person and the dangers of COVID-19, on March 24th, roughly two weeks before the April 7th election, she and her husband went on myvote.wi.gov and requested their absentee ballots be mailed to them, but they never received them, even after Election Day. On April 2nd, she realized that their ballots had not arrived in the mail yet, so she emailed the clerk’s office. The following day, April 3, having not heard back, she
16

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went on myvote.wi.gov and saw that her ballot had been mailed out on March 24th. She also sent the clerk’s office a second email. Later that day, she received an email back informing her that her and husband’s ballots had been reissued and mailed out that day, April 3, the Friday before the election. The clerk’s office did not offer to email them their absentee ballots as a more expedient option. Ultimately, they never received our their ballots in the mail, before, on, or after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived soon, they could still vote and drop them off or mail them. Due to her health conditions, she could not safely vote in person. There was no way she was going to vote in person; the risk of contracting COVID-19 was simply too high. She is at high risk from COVID-19 and has been quarantining since mid-March. She has not been to the grocery store. She has only briefly visited at 6:00 a.m. one store that requires masks for customers and employees and an outdoor garden store. Those have been her only two shopping excursions in over two months. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her health, age, and the ongoing COVID-19 crisis, voting is simply too high a risk to her health and life. If her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-in absentee ballotwants to be emailed an absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. If she cannot vote by mail in these elections, she will not be able to vote.
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24. Plaintiff Gary Fergot is 69 years old and a resident of Oshkosh, Wisconsin. He is a United States citizen and a registered Wisconsin voter. He has never lost his right to vote by reason of a felony conviction or a court order. He wants to vote in the August primary election and the November general election. He lives with his wife, and they have been quarantining during the COVID-19 pandemic. He always votes in person on Election Day, but COVID-19 poses a serious risk to his health and life because of his age. He has never voted absentee in his life, but he will only be voting by mail while this pandemic lasts. To avoid voting in person and the dangers of COVID-19, on March 24th, two weeks before the April 7th election, he and his wife went on myvote.wi.gov and requested their absentee ballots be mailed to them, but they never received them, even after Election Day. On April 2nd, they realized that their ballots had not arrived in the mail yet, so his wife emailed the clerk’s office. On April 3rd, they received an email back informing them that their ballots had been reissued and mailed out that day, which was the Friday before the election. The clerk’s office did not offer to email them their absentee ballots. Ultimately, they never received their ballots in the mail, before, on, or after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived soon, they could still vote and drop them off or mail them. Due to his age (he will be 70 this year), Gary was extremely worried about COVID-19. There was no way he was going to vote in person; the risk of contracting COVID-19 was simply too high. Gary is at high risk from COVID-19 and has been quarantining since mid-March. The only store he has been to in two months is the grocery store between 5:00 a.m. and 6:00 a.m., and he always wears a mask. The grocery store allows senior citizens two hours to shop from 5:00 a.m. to 7:00 a.m., and there is hardly anyone there when he shows up. He has not been to any other stores or visited with any people or had anyone visit him. He has not had any other interactions with any people other than a very limited interaction with grocery store cashiers.
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He and his wife are taking social distancing very seriously. Gary wants to vote by mail in the August primaries and the November general election. For the November election, he wants to request an absentee ballot be delivered to his home by mail. He does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for him to cast and return it on time, then he needs a back-up because he cannot safely vote in person on or before Election Day. Because of his age and the ongoing COVID-19 crisis, voting is simply too high a risk to his health and life. If his ballot does not arrive in the mail on time, he wants to electronically access and download or be emailed his mail-in absentee ballotwants to be emailed an absentee ballot. Gary has access to a computer, a printer, his email account, and tape: everything he needs to print off, assemble, vote, and mail that emailed ballot back. He hopes it does not come to that, but if he cannot vote by mail in these elections, he will not be able to vote.
25. Plaintiff Bonibet Bahr Olsan is 77 years old and a resident of Appleton, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, and they have been quarantining themselves during the COVID-19 pandemic. She has never voted absentee in her entire life, but at her age, COVID-19 poses a serious risk to her health and life. Because of her age, Bonibet attempted to vote by mail for the first time in the April 7, 2020 election. To avoid voting in person and the dangers of COVID-19, in mid-March, she requested an absentee ballot by mail using the request form, which she and her husband printed off from myvote.wi.gov. She filled her request form out and mailed in this absentee ballot request form along with a printed photo she took of her Wisconsin driver’s license using her phone camera. She requested that her ballot be mailed to her.
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She does not recall an option on the form to select delivery by email. Bonibet never received her ballot in the mail, not even after Election Day. Her husband requested his ballot at the same time as she did and received it a week before Election Day. Before Election Day, she checked myvote.wi.gov, and it showed that her absentee ballot had been mailed out to her on March 28th. She did not contact the Appleton city clerk’s office. She thought her ballot was delayed but still coming, and that as long as it arrived soon, she could vote it and drop it off or mail it in time. She waited until the very last minute on April 7, Election Day, but the ballot still had not arrived in her mailbox and she was out of time. She was forced to make the difficult decision not to vote because the only option left to her was to vote in person and she did not want to risk the exposure. She has been self-quarantining since mid-March. She walks her dog and has been to a grocery store once, wearing a mask and gloves. There was no way she was going to vote in person given her age. The risk of contracting COVID-19 is simply too high. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she cannot safely vote in person at the polls on or before Election Day. Because of her age and the ongoing COVID-19 crisis, voting is simply too high a risk to her health and life. If her ballot does not arrive in the mail on time, she wants to electronically access and download or be emailed her mail-in absentee ballotwants to be emailed an absentee ballot. She has access to a computer, a printer, her email account, and tape: everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. But if she cannot vote by mail in these elections, she will not be able to vote.
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26. Plaintiff Sheila Jozwik is 68 years old and a resident of Brookfield in Waukesha County, Wisconsin. She is a United States citizen and a registered Wisconsin voter. She has never lost her right to vote by reason of a felony conviction or a court order. She wants to vote in the August primary election and the November general election. She lives with her husband, Gregg Jozwik, in Brookfield. Since March 21st, they have been self-isolating at a cabin during the COVID-19 pandemic with her 93-year-old mother. To avoid voting in person and the dangers of COVID-19, she and her husband Gregg and she attempted to vote by mail in the April 7, 2020 election. They both requested absentee ballots by mail using myvote.wi.gov on March 17, 2020. They requested that their ballots be mailed to their home in Brookfield, but never received them, even after Election Day. In order to request their ballots online at myvote.wi.gov, they had to upload images of their Wisconsin driver’s licenses. They had to submit the images of their IDs three times before they could continue with the ballot request process. She did not receive any message confirming that the image had been successfully uploaded. Her husband had the same experience. Since March 30, her husband, mother, and she have been staying at their cabin north of Brookfield in order to self-isolate. Leading up to the April 7th election, she or Gregg would drive down and check the mail at their home in Brookfield to see if their ballots had arrived. The last time they checked was on April 5th, when Gregg went to their house to check the mail. On April 6th, they logged back onto myvote.wi.gov to see where their ballots were. It showed that they had applied to receive their ballots by mail. They never contacted the clerk’s office. Ultimately, they never received their ballots, even after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived by April 7th, they could vote them and drop them off or put them in the mail so they would be postmarked by April 7th, hoping they would arrive by April 13th. She chose not to vote in person on April 7th, to protect her health and
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the health of her elderly mother, who is extremely vulnerable to COVID-19. It was the first time she could not vote since she first registered and voted in 1969. She wants to vote by mail in the August primaries and the November general election. For the November election, she wants to request an absentee ballot be delivered to her home by mail. She does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for her to cast and return it on time, then she needs a back-up because she does not want to risk exposure to the coronavirus that causes COVID-19 by voting in person at the polls on or before Election Day. She herself is in a high-risk category, and hermy mother, at 93 years of age, is at much higher risk. If her ballot does not arrive in the mail on time in the fall, she wants to electronically access and download or be emailed her mail-in absentee ballotwants to be emailed an absentee ballot. She has access to a computer, a printer, her email account, and tape—everything she needs to print off, assemble, vote, and mail that emailed ballot back. She hopes it does not come to that, and her ballot arrives on time. She feels she should not be forced to choose between voting and exposing herself to a deadly virus. If she cannot vote by mail in these elections, she will not be able to vote.
27. Plaintiff Gregg Jozwik is a 70-year-old resident of Brookfield in Waukesha County, Wisconsin. He is a United States citizen and a registered Wisconsin voter. He has never lost his right to vote by reason of a felony conviction or a court order. He lives with his wife, Sheila Jozwik. Since March 30, 2020, they have been quarantining with Sheila’s 93-year-old mother in their cabin. To avoid voting in person and the dangers of COVID-19, he and his wife attempted to vote by mail in the April 7, 2020 election. They both requested absentee ballots be sent by mail using myvote.wi.gov on March 17, 2020. They requested that their ballots be mailed to their home in Brookfield. As part of the online request process, he had to submit an image of his Wisconsin
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driver’s license. He had to upload it three times before he could continue with the process, and he did not receive any message confirming that the image had been successfully uploaded. Since March 30th, he, his wife, and his mother-in-law have been staying at their cabin up north in Tomahawk, Wisconsin. He and Sheila have occasionally returned home to check the mail, including for the ballots they requested for the April 7th election. He last checked for their ballots on April 5th. They never arrived. On April 6th, he and Sheila logged back onto myvote.wi.gov to see where their ballots were. It said that they had applied to receive their ballots by mail. They never contacted the clerk’s office. Ultimately, they never received their ballots, even after Election Day. They thought their ballots were delayed but still coming, and that as long as they arrived by April 7th, they could vote them and drop them off or put them in the mail so they would be postmarked by April 7th, hoping they would arrive by April 13th. He decided to vote in person in Brookfield on April 7, although he was very worried about doing so. He wore a mask. While waiting in line to vote, he saw that all of the poll workers were wearing masks, but about half of the voters were not. He was not going to be denied his right to vote, but he does not feel he should have been forced to expose himself and potentially his loved ones as well to a lethal virus. He wants to vote by mail in the August primaries and the November general election. For the November election, he wants to request an absentee ballot be delivered to his home by mail. He does not want to deal with printing off an emailed ballot and assembling the envelope for its mailing. However, if that requested ballot does not arrive by mail in time for him to cast and return it on time, then he needs a back-up because he does not want to be forced to risk exposure to the coronavirus that causes COVID-19 by voting in person at the polls on or before Election Day. He is himself in a high-risk category, and his wife’s mother, at 93 years of age, is at much higher risk. If his ballot does not arrive in the mail on time in the fall, he wants to electronically access and
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download or be emailed her mail-in absentee ballotwants to be emailed an absentee ballot. He has access to a computer, a printer, his email account, and tape everything he needs to print off, assemble, vote, and mail that emailed ballot back. He hopes it does not come to that, and that his ballot arrives on time. He feels he should not be forced to choose between voting and exposing himself to a deadly virus.
28. Plaintiff Claire Whelan is a 64-year-old retiree who lives alone in her apartment in Appleton, Wisconsin. She is a United States citizen, has never lost her right to vote by reason of a felony conviction or a court order, and is a registered Wisconsin voter. Ms. Whelan is a member of the League of Women Voters of Appleton and therefore a member of Plaintiff League of Women Voters of Wisconsin. Ms. Whelan is at high risk of severe complications or even death from COVID-19 because she has chronic asthma. When the weather changed recently and became hot and humid, she forgot to close the windows at night and woke up wheezing. Once she closed the windows, it took all day for her breathing to calm down, and she was utterly exhausted and had to just sit and wait to recover. To protect herself, she has been self-quarantining at her apartment since mid-March. She makes grocery runs at 5:30 a.m., wearing a mask and gloves, and there are only a very few other people in the store. Putting the groceries away can entail up to thirty hand washings. Ms. Whelan does not feel safe going to a laundromat or even the laundry room in her apartment building and has not been to either since March 10. To protect her health, she is handwashing her clothes in her kitchen sink. She is trying to take every precaution to minimize the chance that she is exposed to COVID-19, because she wants to maximize the chance that she can once again visit her mother, who is 93 years old and lives in a nursing home nearby. She fears bringing the virus into that facility, but also fears that her mother could rapidly decline, while the nursing home remains on lockdown, which it has been for about 2.5 months. Because Ms. Whelan
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is quarantining herself pursuant to federal and state government recommendations and cutting off all in-person contact unless it is absolutely necessary, she must vote by mail-in absentee ballot to avoid the severe risks to her health and life posed by in-person voting. Ms. Whelan will again request mail-in absentee ballots for the August and November general elections. In March, she requested a ballot for the April 7 election. She waited until the end of March, when she dropped off her rent check late at night to avoid other people, to see if her ballot had arrived in her mailbox. When it arrived days before the election, she knew that this Court’s preliminary injunction, affording relief to individuals who certified that they could not safely secure a witness with reasonable effort, had been stayed by the U.S. Court of Appeals for the Seventh Circuit. Therefore, Ms. Whelan was compelled to ask a friend to drive from a town 8 miles away to show up at her apartment and serve as her witness. Ms. Whelan’s friend entered the apartment building, rode the elevator up to the fourth floor, and waited outside Ms. Whelan’s apartment. Ms. Whelan voted her ballot inside the apartment with the door closed, took photos of herself voting, and texted them to her friend outside. She filled out and signed the certificate envelope, sealed up her ballot in its envelope, and slid it under the door to her friend. Her friend signed the certificate envelope as Ms. Whelan’s witness and put down her address, texted pictures of that action to Ms. Whelan, and then drove to a post office to drop off Ms. Whelan’s ballot. It is unreasonable to require that voters like Ms. Whelan engage in such a process to comply with the witness requirement, while avoiding the dangers of COVID-19 transmission, in the midst of the worst public health crisis in at least a century. There are reasonable alternatives such as this Court’s own injunction providing a certification alternative or the Seventh Circuit’s panel suggestion of remote witnessing with the recording of a witness name, without a physical signature by that witness.
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29. Plaintiff Sylvia Gear is an 83-year-old retired teacher who lives alone at her residence in Cudahy, Wisconsin. She is a United States citizen, has never lost her right to vote by reason of a felony conviction or a court order, and is a registered Wisconsin voter. Ms. Gear is a member of Plaintiff Wisconsin Alliance for Retired Americans. Ms. Gear is at risk of severe complications from the novel coronavirus and COVID-19 because of her age and her medical history as a cancer survivor. For this reason, she is self-quarantining at her home, and she has not allowed anyone in her house since March. In that time, her son and a neighbor have stopped by to visit Ms. Gear, but they spoke outside of the home on Ms. Gear’s porch while maintaining at least six feet of distance between them. Since March, Ms. Gear has only left her home about once a week to go grocery shopping or to obtain prescription medications, for which she always wears a mask or a face covering like a scarf. Since March, she has not been to any of her regular social activities, including Sisters of St. Francis in St. Francis, Wisconsin and gathering with her teacher friends at a weekly fish fry at a local restaurant. She has stopped going to her sister’s house and had to miss her granddaughter’s and grandnephew’s birthdays. Because Ms. Gear has been quarantining herself pursuant to government recommendations and, until recently, Emergency Order #12, and cutting off all in-person contact unless it is absolutely necessary, e.g. to obtain medication, she must vote by mail-in absentee ballot to avoid the severe risks to her health and life posed by in-person voting. She voted by mail-in absentee ballot in the April 7, 2020 Spring Election. To satisfy the witness requirement, she asked her neighbor to serve as her witness. At risk to each other, they conducted the entire process outside on Ms. Gear’s porch, using their own pens. Ms. Gear would prefer to vote in person in the August and November elections, but if the COVID-19 pandemic continues to pose a threat to public safety, she will again apply to vote by
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mail-in absentee ballot to protect her health. Interacting with a witness to vote absentee will once again pose a risk to her health.
30. Plaintiff Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) was founded on March 14, 2005. Wisconsin Alliance has 103,611 members, composed of retirees from public and private sector unions, community organizations and individual activists. It is incorporated in the State of Wisconsin as a 501(c)(4) social welfare organization under the Internal Revenue Code.
31. Alliance for Retired Americans is a national organization with more than 4.3 million members in all 50 states. The national Alliance charters state organizations, such as the Wisconsin Alliance, which then elect officers, form a governing board, affiliate local chapters and organize members in the state.
32. Wisconsin Alliance’s board is presided over by Marlene Ott, a retired member of the National Education Association (“NEA”). President Ott presides over a board with a treasurer, secretary and vice president representatives from the largest affiliates. During monthly meetings, they organize activities, initiate programs, and maintain the governance of Wisconsin Alliance in the state.
33. Wisconsin Alliance participates in an organizing calendar that resembles and reflects the national Alliance for Retired Americans, with Wisconsin-specific additions. This calendar includes engaging local, state and federal representatives about issues and laws that affect retirees and seniors, highlighting May as Older Americans Month, and celebrating the anniversaries of Social Security and Medicare.
34. Wisconsin Alliance also engages in member education about elections. Historically, Wisconsin Alliance has provided information to members about how their elected
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leaders have voted on issues that impact the lives of seniors and provided information about how to cast a ballot.
35. The interests Wisconsin Alliance seeks to protect in this action, the voting rights of its members and of all retired Wisconsinites, are germane to the organization’s purpose as detailed above. As a membership organization, Wisconsin Alliance suffers the constitutional injury of its members, like Plaintiff Sylvia Gear.
36. The Wisconsin Alliance plans to produce, publish, and distribute educational literature and materials on voting in the November election, specifically around the process of obtaining absentee ballots, including the difficulties voters face when the ballot is not timely delivered, and the witness signature requirement. The Wisconsin Alliance Executive Director is a paid staffer and will be diverting time normally used for get-out-the-vote efforts to make and distribute these materials. The Wisconsin Alliance will distribute electronic materials through social media and email, and printed materials in person and via mail.
37. Plaintiff League of Women Voters of Wisconsin (“LWVWI”) is a nonpartisan, nonprofit, non-stock corporation organized under the laws of the State of Wisconsin with its principal office located at 612 West Main St., Suite 200, in the City of Madison, Dane County, Wisconsin. LWVWI is an affiliate of The League of Women Voters of the United States, which has 750 state and local Leagues in all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, and Hong Kong. LWVWI works to expand informed, active participation in state and local government, giving a voice to all Wisconsinites.
38. LWVWI, a nonpartisan community-based organization, was formed in 1920, immediately after the enactment of the Nineteenth Amendment granting women’s suffrage. LWVWI is dedicated to encouraging its members and the people of Wisconsin to exercise their
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right to vote as protected by the U.S. Constitution, the Voting Rights Act of 1965, and other federal laws. The mission of LWVWI is to promote political responsibility through informed and active participation in government and to act on selected governmental issues. The League seeks to maximize eligible voter participation through its voter registration efforts and encourage civic engagement through registration and voting.
39. LWVWI impacts public policies, promotes citizen education, and makes democracy work by, among other things, removing unnecessary barriers to full participation in the electoral process. Currently LWVWI has 20 local Leagues and approximately 2,600 members, including Plaintiff Claire Whelan. LWVWI works with and through 20 local Leagues in the following cities, counties, and areas throughout Wisconsin: Appleton, Ashland/Bayfield Counties, Beloit, Dane County, Door County, the Greater Chippewa Valley, Greater Green Bay, Janesville, the La Crosse area, Manitowoc County, Milwaukee County, the Northwoods, Ozaukee County, the Ripon area, Sheboygan County, the Stevens Point area, the Upper St. Croix Valley, the Whitewater area, Winnebago County, and the Wisconsin Rapids area.
40. LWVWI began as an organization focused on the needs of women and training women voters. It has evolved into an organization concerned with educating, advocating for, and empowering all Wisconsinites. With members in nearly every county in the State, LWVWI’s local Leagues are engaged in numerous activities, including hosting public forums and open discussions on issues of importance to the community. Individual League members invest substantial time and effort in voter training and civic engagement activities, including voter registration and get-outthe-vote (“GOTV”) efforts. LWVWI has developed the statewide Election Observation Program and the Vote411 voter guide for Wisconsin.
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41. LWVWI also devotes substantial time and effort to ensuring that government at every level works as effectively and fairly as possible. This work involves continual attention to and advocacy concerning issues of transparency, a strong and diverse judiciary, fair and equal nonpartisan redistricting, and appropriate government oversight.
42. The interests LWVWI seeks to protect in this action, the voting rights of its members and all eligible Wisconsin voters, are germane to the organization’s purpose as detailed above. As a membership organization, LWVWI suffers the constitutional injury of its members, like Plaintiff Claire Whelan.
43. For the April 7, 2020 election, LWVWI fielded calls, texts, emails, and social media messages from voters who were struggling to comply with the witness requirement, and LWVWI members offered to help voters by serving as Plaintiffs’ witnesses. LWVWI also worked with partners to create educational materials around the witness requirement for voters and volunteers assisting voters. LWVWI communicated with clerks and others to identify absentee ballot dropboxes with volunteers ready to serve as witnesses and to relay this information to voters. As changes to the witness requirement were made, LWVWI communicated them with the League of Women Voters national office (“LWVUS”) to ensure their national voter education resource, VOTE411.org, was up to date with the latest information. To understand the scope of issues faced by voters during this unprecedented election, LWVWI created a survey to collect stories from voters, including challenges to finding a witness and issues with receiving an absentee ballot. LWVWI analyzed the results along with other relevant data sets to write the Wisconsin Election Protection: 2020 Spring Election Report, which highlights barriers voters faced and gives recommendations to improve future elections. Voter experiences and recommendations regarding the burdensome witness requirement and the failures to deliver absentee ballots are included in the
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report. Additionally, LWVWI-Dane County and LWVWI-Ashland and Bayfield Counties worked with Meals on Wheels and educated its delivery people on how to serve as witnesses for people who live alone. LWVWI-Dane County also worked with the Dane County Voter ID Coalition to mobilize their Voter ID helpline to identify voters in need of a witness and to provide assistance as needed. All of this work was specific to and undertaken for the first time because of the COVID-19 pandemic. LWVWI had never done any of this specific work on the witness requirement previously or diverted any of its resources or staff time to helping voters navigate the witness requirement. All told, LWVWI’s Voter Education Manager Eileen Newcomer spent an estimated 20.5 hours, the equivalent of $512.50 in salary, working on various activities to educate voters about the witness requirement and help them navigate it.
44. Furthermore, LWVWI responded to voters’ concerns about not receiving in the mail absentee ballots they had timely requested. LWVWI worked with partners to develop educational materials around what to do if a requested absentee ballot does not arrive in the mail— including how to track an absentee ballot’s status, who to contact to follow up on your ballot, and what the voters’ options are to still vote in the election. LWVWI fielded calls from municipal clerks who said they could not handle the volume of absentee ballot requests and needed more resources and funding to purchase more envelopes and ballots. Additionally, the municipal clerks said they needed WEC to intervene and make up the shortfall in ballots so soon before the election. Many printers had been shut down as non-essential businesses under Executive Order #12, and only the Commission could procure the necessary hundreds of thousands of ballots on short notice. These clerks wanted LWVWI to raise awareness on the issue. In late March, when WEC realized they had an insufficient number of ballots statewide, WEC made an emergency request to print more ballots and secured a printer through the state procurement process. All told, LWVWI’s
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Voter Education Manager Eileen Newcomer spent an estimated 35.5 hours, the equivalent of $887.50 in salary, working on various activities to educate voters about the witness requirement and help them navigate it.
45. LWVWI’s work on educating voters about and helping voters with absentee ballot delivery failures and the witness requirement will continue through the August and November elections. LWVWI intends to do more of the same for August and November elections, when they reasonably anticipate the same challenges with receiving ballots on time and complying with the witness requirement will return in force.
46. As to the witness requirement, LWVWI will be working with local Leagues and municipal clerks to identify volunteers to serve as witnesses and possibly staff absentee drop-off locations. LWVWI will also work with the Voter ID Coalition to expand their efforts to provide witness information and support statewide. LWVWI will continue to provide educational materials around the witness requirement and is exploring creating new digital resources. LWVWI will continue to respond to voter inquiries about the witness requirement. Additionally, LWVWI will continue to follow up with voters who responded to its post-election survey and identified that they had difficulty safely complying with the witness requirement and provide assistance in future elections. LWVWI will work with local League members to provide training or resources around this specific requirement. LWVWI will continue its advocacy efforts to remove or relax the witness requirement. But for the unconstitutional enforcement of the witness requirement during this COVID-19 pandemic, LWVWI would not be compelled to divert resources, money, and staff time to educating and helping voters struggling with this law.
47. As to absentee ballot delivery failures, LWVWI will continue to follow up with voters who responded to LWVWI’s survey and identified that they did not receive their ballot and
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provide assistance as needed. LWVWI will continue its advocacy efforts to ensure voters receive the absentee ballots they have requested and to which they are entitled by Wisconsin law. Specifically, LWVWI will support ballot tracking, which will increase transparency as ballots are in transit, and send voters absentee ballot applications. LWVWI will continue to respond to voter inquiries about ballot delivery failures, and continue to provide educational materials about this issue, and work with local League members to provide training and resources. But for the unconstitutional dual failure to provide voters with absentee ballots in the mail or any fail-safe option in those circumstances, LWVWI would not be compelled to divert resources, money, and staff time to educating and helping voters struggling to vote by absentee ballot in a timely manner.
48. LWVWI estimates that it will expend approximately $2,000 on its activities to educate and help voters with respect to the failures to prepare and deliver mail-in absentee ballots and the witness requirement.
49. Defendants Dean Knudson, Julie M. Glancey, Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, and Robert F. Spindell, Jr. are sued in their official capacities as the members of the Wisconsin Elections Commission.
50. Defendant Meagan Wolfe is sued in her official capacity as the Administrator of the Wisconsin Elections Commission.
FACTUAL BACKGROUND The COVID-19 Pandemic
51. In December 2019, a novel coronavirus strain was detected, now named SARSCoV-2, and the disease it causes became known as COVID-19. It has now spread throughout the world, including to every state in the United States.
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52. On January 30, 2020, the World Health Organization (“WHO”) declared COVID19 to be a Public Health Emergency of International Concern. On March 11, 2020, the WHO declared that it had become a pandemic.
53. The novel coronavirus that causes COVID-19 continues to spread at an unprecedented pace around the world and within the United States. There are currently more than
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1.7 million confirmed cases in the United States, and there have been 102,761 deaths nationwide. As of the evening of May 29, 2020, the Wisconsin Department of Health Services had confirmed
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17,707 positive cases of coronavirus in Wisconsin, 2,499 hospitalizations, and 568 deaths. 54. COVID-19 appears to be much more contagious than other respiratory illnesses, in
significant part because of its capacity for asymptomatic transmission, and highly lethal, particularly for people with underlying health conditions or comorbidities that put them at severe risk of complications or death. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are at higher risk of severe complications and death from COVID-19 if they are 65 years old or older or have underlying health conditions and diseases, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity (body mass index (“BMI”) of 40 or higher), diabetes, chronic kidney disease undergoing dialysis, liver disease, and
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other health conditions that suppress immune systems like HIV/AIDS. The CDC’s website, relying upon research from the National Center for Immunization and Respiratory Diseases
31 Mitch Smith et al, Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last accessed May 29, 2020).
32
Wisconsin Department of Health Services, Outbreaks in Wisconsin, https://www.dhs.wisconsin.gov/outbreaks/index.htm (last accessed May 29, 2020). 33 Coronavirus Disease 2019 (COVID-19), People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html (last updated May 14, 2020).
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(“NCIRD”), Division of Viral Diseases, notes that immunocompromised individuals are at severe
risk from COVID-19: “Many conditions can cause a person to be immunocompromised, including
cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly
controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening
34
medications.”
55. Severe COVID-19 cases can cause a wide variety of secondary infections and
pathologies, including but not limited to: pneumonia, acute respiratory distress syndrome, kidney
failure, liver failure, strokes, heart attacks, cardiac inflammation, and gastrointestinal infections,
35
among others. Furthermore, everyone is at some risk of severe complications and death from
COVID-19, as health officials have recently associated COVID-19 with pulmonary embolism and
36
stroke in younger patients without known risk factors and subsequent inflammatory disease in
37
young children. Many of these clinical manifestations can and do result in death.
56. The CDC has warned that asymptomatic COVID-19-positive individuals can
38
transmit the disease to others. As a result, individuals can spread the disease for a week or more
before realizing they are infected, facilitating rapid transmission.
34 Id. 35 Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body, from brain to toes, SCIENCE (Apr. 17, 2020), https://www.sciencemag.org/news/2020/04/how-does-coronavirus-kill-clinicians-traceferocious-rampage-through-body-brain-toes. 36 Robert Glatter, M.D., Why is COVID-19 Coronavirus Causing Strokes in Young And MiddleAged People?, FORBES (Apr. 27, 2020), https://www.forbes.com/sites/robertglatter/2020/04/27/why-is-covid-19-coronavirus-causingstrokes-in-young-and-middle-aged-people/#598e78fe34df. 37 Pam Belluck, New Inflammatory Condition in Children Probably Linked to Coronavirus, Study Finds, N. Y. TIMES (May 13, 2020), https://www.nytimes.com/2020/05/13/health/coronavirus-children-kawasaki-pmis.html. 38 Coronavirus 2019 (COVID-19): How to Prepare, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Mar. 4, 2020).
35

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57. Leading epidemiologists anticipate that the pandemic will continue into fall and winter of 2020, and potentially well into 2021. It is highly likely that COVID-19 will continue to circulate at its current level or at an even higher level in October and November of 2020. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of infections in the United States is “inevitable,” and the CDC Director Robert
39
Redfield has said that wave may “be even more difficult than the one we just went through.” Furthermore, experts have warned that, to avoid exceeding hospital critical care capacities,
40
prolonged or intermittent social distancing may be necessary into 2022. Currently, no therapeutic treatments or vaccinations have been shown to significantly alter the trajectory of the COVID-19 outbreak.
58. Countless eligible Wisconsin voters will continue to self-quarantine for fear of contracting COVID-19, and/or for fear of transmitting the disease, regardless of whether they are symptomatic or not.
59. COVID-19 will have an unprecedented impact on the nation’s upcoming elections. Before the COVID-19 pandemic, the Brookings Institution predicted that “turnout in 2020 could
39 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, White House (Mar. 25, 2020), https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-vice-president-pence-members-coronavirus-task-forcepress-briefing-11/; Zack Budryk, CDC director warns second wave of coronavirus might be ‘more difficult,’ The Hill (Apr. 21, 2020), https://thehill.com/policy/healthcare/493973-cdcdirector-warns-second-wave-of-coronavirus-might-be-more-difficult. 40 Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, Science (Apr. 14, 2020), available at https://science.sciencemag.org/content/early/2020/04/24/science.abb5793.
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41
break all records and test our election machinery as it has never been tested before.” Other experts
42
also anticipate record-breaking turnout in the 2020 presidential election.
60. On March 12, 2020, Governor Tony Evers declared a public health emergency to
direct all resources needed to respond to and contain COVID-19 in Wisconsin.
61. On March 13, 2020, President Donald Trump proclaimed a National Emergency
concerning COVID-19.
62. On March 24, 2020, Wisconsin Department of Health Services Secretary-designee
Andrea Palm issued Emergency Order #12, the “Safer at Home” Order, which, starting March
25th, closed all nonessential businesses in Wisconsin and required the state’s residents, with
43
limited exceptions, to stay at home in order to reduce the transmission of COVID-19. The order
was in effect during the April 7 election, and expired by its own terms on April 24, 2020, when
Secretary-designee Palm issued a new Emergency Order, EO#28. In an opinion issued on May 13,
2020, the Wisconsin Supreme Court ruled that EO#28 was unenforceable because it was not
promulgated pursuant to statutory emergency rulemaking procedures and exceeded the Secretarydesignee’s authority under the statute on which it relied. Wisconsin Legislature v. Palm, 2020 WI
41 William A. Galston, What does high voter turnout tell us about the 2020 elections? Brookings Institution (Nov. 20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-highvoter-turnout-tell-us-about-the-2020-elections/. 42 See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. News & World Report (Sept. 20, 2019), https://www.usnews.com/news/elections/articles/2019-09-20/experts-predict-hugeturnout-in-2020; Nate Cohn, Huge Turnout Is Expected in 2020. So Which Party Would Benefit? N.Y. Times (July 15, 2019), https://www.nytimes.com/2019/07/15/upshot/2020-election-turnoutanalysis.html; Ronald Brownstein, Brace for a Voter-Turnout Tsunami, The Atlantic (June 13, 2019), https://www.theatlantic.com/politics/archive/2019/06/2020-election-voter-turnout-couldbe-record-breaking/591607/. 43 Emergency Order #12, available at https://content.govdelivery.com/attachments/WIGOV/2020/03/24/file_attachments/1409408/Hea lth%20Order%20%2312%20Safer%20At%20Home.pdf (last accessed May 29, 2019).
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42, ¶¶ 58-59, ___ N.W.2d ___, 2020 WL 2465677, *12-*13. The Wisconsin Supreme Court’s opinion did not address EO#12.
63. EO#12 began by stating that, “[T]he entire State of Wisconsin - including residents, businesses, community organizations, and government - need to take all possible actions to reduce
44
further spread of COVID-19 to save lives.” The order continued to state that: “[S]ocial distancing - the practice of keeping at least six feet apart from others and avoiding direct physical contact - is the only effective means of slowing the rate of infection. Despite prior emergency orders banning mass gatherings, the rates of infection continue to drastically increase, necessitating additional
45
measures to slow the rate of infection and save lives.” 64. Emergency Order #12 mandated that “[a]ll individuals present within the State of
Wisconsin are ordered to stay at home or at their place of residence, with exceptions” for certain defined “essential activities” such as those to promote individual and family health and safety including obtaining groceries and medications, “essential governmental functions,” “essential businesses and operations” such as grocery stores, pharmacies and gas stations, “non-essential
46
minimum basic operations,” and “essential travel.” Furthermore, the Order instructed that “[t]o the extent individuals are using shared or outdoor spaces other than their home or residence, they must at all times as reasonably possible maintain social distancing of at least six (6) feet from any
47
other person consistent with Social Distancing Requirements,” as defined. The Order mandated that “[n]on-essential business and operations must cease. All for-profit and non-profit businesses
44 Id. at 1. 45 Id. at 2. 46 Id. at 2. 47 Id. at 2.
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with a facility in Wisconsin, except Essential Businesses and Operations as defined below, are required to cease all activities at facilities located within Wisconsin.”48
65. Crucially, for purposes of the April 7 election, the order commanded that, “All public and private gatherings of any number of people that are not part of a single household or living unit are prohibited, except for the limited purposes expressly permitted in this Order.”49 It also required that, “Elderly people and those who are vulnerable as a result of underlying health conditions should take additional precautions. People at high risk of severe illness from COVID19 and people who are sick are urged to stay in their home or residence to the extent possible except as necessary to seek medical care.”50 For the purpose of elections during the remainder of 2020, in the wake of the Wisconsin Supreme Court’s ruling striking down Wisconsin DHS Emergency Order 28, Safer at Home, it is noteworthy that a patchwork of additional orders has sprung up across the state, with municipal and county governments issuing their own orders requiring various degrees of restrictions and requirements to shelter in place.51
The Law and Mechanics of Requesting, Casting, and Returning an Absentee Ballot in Wisconsin
48 Id. at 3. 49 Id. at 3. 50 Id. at 4. 51 See, e.g., Howard Hardee and Riley Vetterkind, UPDATE: 13 of 72 Wisconsin counties and the city of Racine have extended stay-at-home orders, Wisconsin State Journal (May 15, 2020), https://madison.com/wsj/news/local/govt-and-politics/update-13-of-72-wisconsin-counties-andthe-city-of-racine-have-extended-stay-at/article_7d97c49c-8e06-518d-a25b-079f9086b023.html; Some Wisconsin counties and cities have continued or started new stay-at-home orders, but others have been rescinded, MILWAUKEE JOURNAL SENTINEL (May 13, 2020), https://www.jsonline.com/story/news/local/wisconsin/2020/05/13/wisconsin-stay-home-ordernot-over-dane-brown-counties-milwaukee-city-racine/5188700002/.
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66. Wisconsin has no-excuse absentee voting. “An absent elector is any otherwise qualified elector who for any reason is unable or unwilling to appear at the polling place in his or her ward or election district.” Wis. Stat. § 6.85.
67. Registered voters in Wisconsin can apply for and obtain absentee ballots in a variety
52
of ways: by a written, mail-in application; in person at the municipal clerk’s office or at an
53
alternate site under Wis. Stat. § 6.855; by signing a statement and filing a request to receive absentee ballots under Wis. Stat. § 6.86(2) or Wis. Stat. § 6.86(2m)(a) (indefinitely confined voters) or Wis. Stat. §§ 6.22(4), 6.24(4), or 6.25(1)(c) (military and overseas civilian voters); by agent as provided in Wis. Stat. § 6.86(3) (hospitalized voters); by delivering an application to a special voting deputy under Wis. Stat. § 6.875(6) (voters in retirement homes and residential care facilities); by email or fax as provided in Wis. Stat. § 6.86(1)(ac); and by online request through the myvote.wi.gov portal.
68. Unless the voter is indefinitely confined, a military or overseas voter, or has a confidential listing (typical in domestic violence cases), the voter must submit or upload a copy or image of their valid photo ID the first time they submit an absentee ballot request. Wis. Stat. §§ 6.86(ac), 6.87(1). The clerk must verify the name on the absentee ballot. Wis. Stat. §§ 6.86(ac).
69. Absentee ballots are delivered to voters in different ways: by mail, email, and in person. See infra at 53-55.
70. Absentee ballots are cast and returned in different ways as well. Many absentee voters mail their absentee ballots to the municipal clerk’s office, drop the ballots off, or authorize
52
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.
53
Wisconsin’s “early voting” is in fact in-person absentee voting. Statistics on “absentee voting,” therefore must be disaggregated into in-person absentee voting and mail-in absentee voting.
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54
someone to drop them off on their behalf. Wis. Stat. § 6.87. In-person absentee voters vote prior to Election Day at designated sites, but their ballots are not processed and counted until Election Day. Wis. Stat. §§ 6.855, 6.87, 6.88. All absentee ballots must be returned to the municipal clerk’s office by no later than 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6).
71. Municipal clerks prepare absentee ballots for delivery to voters that request them. An absentee ballot must be sent to any voter with an absentee application already on file, no later than 47 days before a federal election, and no later than 21 days before a primary or other election. Otherwise, the municipal clerk must deliver an absentee ballot within one business day of the time the voter’s request is received. Wis. Stat. § 7.15(1)(cm). Some absentee voters have requested ballots for a whole year or to be placed on the permanent absentee voter list because they are indefinitely confined. Wis. Stat. § 6.86(2)(a).
Failures to Process Absentee Ballot Requests and Deliver Absentee Ballots to Voters 72. The threat of contracting COVID-19, particularly in confined spaces like polling
sites, and the precipitous reduction in election administration resources for in-person voting both on and before Election Day has forced a seismic shift towards mail-in absentee voting in Wisconsin. Mail-in absentee ballots have been cast by 4.8 to 8.1 percent of voters in spring and fall general elections going back to the 2016 fall general election, but in the April 7, 2020 election,
55
they comprised a stunning 61.8 percent of votes cast. In that election, voters submitted an unprecedented total of 1,239,611 absentee ballot requests to municipal clerks, clerks issued 1,282,097 absentee ballots, some replacement ballots, and voters returned 1,157,599 of them, 73.2
54 See also Uniform Instructions for Wisconsin Absentee Voters, WIS. ELECTIONS COMM’N, https://elections.wi.gov/sites/elections.wi.gov/files/201902/Uniform%20Instructions%20for%20Absentee%20Voting%20%20All%20Voters%20%20%28Rev.%202-2019%29.pdf. 55 See supra note 3, Post-Election Absentee Voting Report, at 6 (Table 4).
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56
percent of the total turnout of 1,555,263. Only a fraction of these were in-person absentee ballots, as 964,433 or 83.3 percent of the 1,157,599 absentee ballots were mail-in absentee ballots; and as
57
noted, this was nearly 62 percent of the total turnout. Based on these figures, 42,486 of the mailin absentee ballots were replacement ballots, many chasing previously-requested ballots that were
58
delayed or lost in the mail, and 124,498 mail-in absentee ballots were ultimately never returned. 73. Notwithstanding municipal clerks’ heroic efforts to prepare and mail out an
unprecedented number of absentee ballots, voters in the April 7th election nevertheless faced a catastrophic and systemic failure to timely prepare and deliver absentee ballots by mail. The total number of voters disenfranchised in this way is unknown, but at least several thousand voters never received their ballots in the mail. Some voters received their ballots too late to cast and deliver or postmark them by April 7th, while some voters never received them at all, even weeks later. Absent any fail-safe alternative for these voters who diligently and timely requested absentee ballots, their remaining options were to play Russian roulette with their health at the polls or lose their right to vote.
74. This debacle was fueled by the Legislature’s and the Governor’s inaction, Defendants’, municipal clerks’, and the USPS’s systemic administrative incapacity to keep pace with the demand for absentee ballots, flaws or weaknesses in Defendants’ computer systems and database management, and the burdens of enforcing Wisconsin’s myriad legal requirements, such as the photo ID requirement for absentee voters. Wis. Stat. § 6.86(ac). All of these factors made it
56
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862; supra note 3, Post-Election Absentee Voting Report, at 4 (Table 2), 5 (Table 3). 57 See supra note 3, Post-Election Absentee Voting Report, at 4 (Table 1).
58
Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary (updated Apr. 21, 2020), https://elections.wi.gov/node/6862.
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extremely difficult to process and deliver ballots to voters. Wisconsin’s election administration system, from the processing of absentee ballot requests to the printing of address labels to technological glitches, and the USPS buckled under the strain of an unprecedented surge in absentee ballot requests compared with the 2016 presidential primary and spring election. As Defendants put it in their post-mortem report, “The most fundamental challenge faced by election
59
officials was simply meeting the unprecedented demand.” That same report notes that: Absentee voting remains a largely manual, labor-intensive process administered by each individual jurisdiction across the state. While voters can request a ballot and upload a photo ID on their smart phone in just a few minutes, behind the scenes clerks must still manually verify the IDs, stuff and seal envelopes by hand, apply postage, carry boxes of envelopes to the post office, and physically check off each request. . . . When mail volume is up to ten times higher than anticipated, clerks must complete the same tasks without the benefit
60
of having more staff, additional supplies or more hours to meet statutory deadlines. Given the complex and labor-intensive procedures for processing and mailing out absentee ballots, Wisconsin election offices are simply not adequately staffed or funded to cope with such a widespread shift to mail-in absentee voting. Absent the kind of massive allocation of funding and resources to permit election officials to scale up staff and supplies to meet demand, which only Congress and/or the Wisconsin Legislature can provide, it is far more likely than not that Wisconsin election officials will remain unable to satisfy a much greater demand for mail-in absentee ballots in the fall.
75. The April 7, 2020 election set the record for most mail-in ballots cast in any
61
Wisconsin election ever. The Commission reports that “[a]s the enormous quantity of absentee ballots began entering the mail system, voters began asking more questions and expressing concerns about ballot deliveries. With nearly six times more ballots in circulation, the number of
59 See supra note 3, Post-Election Absentee Voting Report, at 13. 60 Id. at 3. 61 Id.
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complaints and concerns increased by a similar amount. Some voters also reported not receiving
62
their absentee ballots . . . .” Voters who requested their mail-in absentee ballots weeks in advance
of April 7th like Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen,
Sheila Jozwik, and Gregg Jozwik never received their ballots in the mail—not before, on, or after
Election Day. All of these Plaintiffs were in Wisconsin at the time of the election. Many voters
like Plaintiffs Katherine Kohlbeck, Diane Fergot, and Gary Fergot contacted their municipal
clerk’s offices to inquire about their missing absentee ballots, all to no avail; none were offered
any alternative such as email delivery.
76. The Post-Election Absentee Voting Report recounts the multifarious and alarming
failures to put absentee ballots in voters’ hands. In one such incident, “the City of Oshkosh and
other Fox Valley communities all reported voters complaining that their ballots were arriving late
63
or not arriving at all.” Even after an investigation, Defendants have not been able to explain why
so many completed absentee ballot requests yielded so many unreturned ballots:
The WEC also investigated reports from the City of Oshkosh suggesting that ballot requests were received but not fulfilled. While many of the cases involved incomplete requests (e.g. no photo ID provided) other records appeared complete. WEC staff researched several dozen Oshkosh area ballot requests that were entirely valid, including those of Assembly Representative Gordon Hintz (D – Oshkosh) and his spouse. The ballot records in question were generated as part of a batch on March 24, and analysis of the ballots associated with it showed that a large part of the batch was not returned by voters. Of the first quarter of records generated, more than 90% were returned. Of the remaining three- quarters of records, less than 1% were returned. This suggests that something happened to the ballots in the latter portion of the batch.
WEC and Oshkosh staff could find no evidence of a technical failure. The Oshkosh batch was produced very quickly by the system (two minutes and seven seconds), did not include any unexpected applications, and occurred during normal operating hours when no system maintenance was underway. Furthermore, the City of Oshkosh Clerk reports with confidence that the ballots were mailed to voters. Thus, in this case, there is no evidence of a system error and no evidence of a printing problem. Instead, one of two events are
62 Id. at 12. 63 Id. at 16.
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possible: either a user did not apply the mailing labels to ballot envelopes, or these ballots
64
were bundled together and collectively encountered an issue in the mailing process.
Furthering the latter theory, USPS notified Defendants that it had found three tubs of absentee
65
ballots destined for Appleton and Oshkosh in a processing center. But this alarming report has
raised more questions than it has answered, and it has not yet been adequately investigated:
On the morning of April 8, 2020, WEC staff received a telephone call from a Political and Election Mail Coordinator at the Great Lakes Regional office of the USPS in Chicago. The USPS official reported that the post office had located “three tubs” of absentee ballots for the Appleton/Oshkosh area and that the ballots were being processed. The official was unable to confirm how many ballots were in the three tubs but stated that “it could be quite a lot” as they were large two-handled tubs. In a follow up communication, the USPS indicated that there were approximately 1,600 ballots in the batch.
WEC staff attempted to follow up with the USPS to further identify the ballots and determine what happened but did not receive any further information about these ballots. Written inquiries to the USPS did not produce any specific information about these ballots. Wisconsin’s two U.S. Senators have asked the USPS Inspector General to investigate, but
66
WEC staff have been unable to learn anything about the status of the inquiry.
77. Additional alarming stories of mail ballot preparation and delivery failures abound:
Scott Botcher, Fox Point village manager, said his staff worked hard to quickly send ballots to all 2,877 residents who requested them. But something strange happened ahead of Election Day: USPS repeatedly returned unsent ballots without explanation. ‘The ballots are not stamped “undeliverable” or anything. They just never got mailed,’ . . . But on Election Day — the deadline for voters to postmark their ballots — he received a white plastic bin filled with 175 ballots local voters never received. . . . Botcher said he and Pedersen took the returned, unopened ballots back to their branch post office seeking an explanation and got none. Village officials asked them to be redelivered — and some were
67
returned to the sender, the village of Fox Point — more than once, Botcher said.
The Commission investigated and corroborated this story:
As with the larger cities, smaller municipalities also reported issues with ballots reaching residents or being returned to the clerk in a timely fashion. The Village of Fox Point was among them and experienced an unusual chain of events that garnered some media attention. For two weeks, absentee ballots that were supposed to be mailed to Fox Point
64 Id. 65 See supra note 14, Luthern. 66 See supra note 3, Post-Election Absentee Voting Report, at 16. 67 See supra note 15, Returned to Sender.
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residents were repeatedly returned to the Fox Point Village Hall by the post office before reaching voters.
The village reported receiving anywhere from 20 to 50 of these returned absentee ballots per day two weeks ahead of the election. The problem continued to grow as election day neared. In the week prior to the election, 100 to 150 ballots per day were returned to the village. On the morning of Election Day, Fox Point Village Hall received a plastic mail bin with 175 ballots. In each case, the returned ballots were unopened, unmarked and had not been received by voters. The postage was not cancelled, and no explanation was provided.
Each time they received a batch of absentee ballots, village officials immediately drove the ballots back to the nearest post office. They asked post office supervisors what was wrong with the ballots, but they did not receive any explanation. Fox Point Village Clerk Kelly Meyer reports it is unclear how many voters were affected by the undelivered ballots. Residents who did not receive an absentee ballot in the mail were advised to vote in person at their polling place on Election Day. Residents who called village hall inquiring about their absentee ballot on Election Day could retrieve their ballot from village hall if the
68
ballot still un-sent and the resident could confirm their identity with a photo ID.
78. In Milwaukee, officials have asked USPS to investigate absentee ballots that were
69
never received. Neil Albrecht, executive director of the City of Milwaukee Election Commission,
said because of worker shortages, postal officials told him it could take seven to 10 days to deliver
70
a ballot. Albrecht said the date recorded as the “ballot mailing date” in myvote.wi.gov actually
71
reflects the date the mailing label is generated by staff, not the date a ballot was mailed.
Reportedly, it typically takes employees another three to seven days to assemble, mail and deliver
72
the ballot, depending on the backlog’s size. Albrecht also said the city heard from an
“extraordinary number” of voters on March 22 and 23 who reported to the Election Commission
that they had not received their ballots and that “many voters were just disenfranchised by waiting
73
for absentee ballots to arrive in the mail.” Again, WEC’s report investigated and discovered that
68 See supra note 3, Post-Election Absentee Voting Report, at 16-17. 69 See supra note 14, Luthern. 70 See supra note 15, Returned to Sender. 71 See supra note 12, Chen et al. 72 Id. 73 See supra note 15, Returned to Sender.
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a combination of human and computer errors likely resulted in a large batch of absentee ballot
requests going unfulfilled:
As in Oshkosh, there was a sharp decline in ballot return rates for a specific subset of ballots. Of the 5,913 ballot records created on or before 10:42:32 p.m. on March 22, 5,237 were recorded as having returned in some way to the clerk’s office. This is an 88.5% return rate. Of the 2,693 ballots generated after 10:42:32 p.m., only one was recorded as returned.
Further investigation disclosed several factors unique to Milwaukee. In particular:
• It was the largest batch processed by WisVote; ultimately including 8,607 absentee ballot request records. The median batch size for the same day was 32 records. • It started at 5:16 p.m. on March 22 and did not complete until 1:31 a.m. on March 23. Typically, batches complete within a few minutes. • Of the absentee application records associated with the batch, many were created after the batch was generated. Since the first thing the batch does is select the absentee application records that match its criteria, this should not be possible.
Upon review, it was determined that the timeframe of this particular batch overlapped with maintenance on a known server issue. On March 22, WEC staff observed high utilization rates in some WisVote servers that could potentially cause user interface degradation, such as slow page loads or poor performance of some tasks. In consultation with Microsoft, plans were made to implement server improvements to prevent further issues. In the interim, system resources were freed by restarting the servers that process background jobs, called asynchronous servers. Background jobs are intended to be short-running, and by restarting one server at a time during a period when few users would be interacting with the system, staff believed that WisVote’s load balancing would shuffle background jobs as needed and there would be no impact. That has been staff’s experience in past server restarts, and in testing no impact was observed. However on subsequent code review it was determined that it is possible, if a batch workflow is restarted, for that workflow to select applicable ballot requests a second time, which would generate ballot tracking records for absentee applications not originally associated with the batch.
It is staff’s belief that an extraordinary confluence of events resulted in additional ballot records being generated after MEC staff printed their mailing labels, leading MEC to believe those ballots had already been sent when in fact they had not. First, Milwaukee’s extraordinarily large batch of more than 8,000 ballots, exacerbated by the high user load on the system in the run up to the April election, resulted in the processing of this batch taking several hours, instead of a few minutes. Second, unbeknownst to MEC, Commission staff conducted an unscheduled restart of the asynchronous servers to address an unrelated issue, interrupting this long-running job. Third, an oversight in the development of this process meant that the system failed to handle the restart gracefully, selecting an entirely new collection of absentee applications instead of continuing from where it had been interrupted.
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Since the database contained detailed information tracking batch creation, staff could
develop precise criteria to determine the impact and review transactions across the state.
As a result, staff can conclusively determine that this restart issue only impacted this one batch in the City of Milwaukee. As a result of this issue, staff believes that 2,693 requested ballots were never sent to City of Milwaukee residents. Of the affected voters, 52.5% voted in the election either on a replacement absentee ballot or at the polls on election day.74

This shocking incident disenfranchised approximately 1,279 voters, who could not participate in

the election despite their diligence. They had timely requested their ballots more than two weeks

before Election Day and, believing that the mail was delayed and that they had no other alternatives

for ballot delivery, watched the days elapse and finally Election Day go by without an absentee

ballot arriving in the mail. Absent any fail-safe, these voters and voters like them, including

Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsen, Sheila Jozwik, and

Gregg Jozwik, were will seedenied their most fundamental right of U.S. citizenship denied or

severely burdened.

79. If this is the level of ballot preparation and delivery failures and resulting
75
disenfranchisement when a total of 1,555,263 of the state’s voters turn out to vote, it is inevitable

that the state’s 1,850 municipal clerks’ offices will not be able to handle nearly double the volume

of absentee ballot requests in a timely fashion this fall. Wisconsin had 3,397,693 registered voters

76

77

as of May 1, 2020. In 2016, 2,976,150 voters cast ballots for President. If the same number of

74 See supra note 3, Post-Election Absentee Voting Report, at 19-20 (emphasis added).
75
Wisconsin Elections Commission, Canvass Results for 2020 Spring Election and Presidential Preference Vote, https://elections.wi.gov/sites/elections.wi.gov/files/Canvass%20Results%20Summary_spring%2 0election%20all%20contests_4_7_2020.pdf.
76
Wisconsin Elections Commission, May 1, 2020 Voter Registration Statistics, https://elections.wi.gov/node/6886.
77
Wisconsin Elections Commission, Canvass Results for 2016 General Election, https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20Offices%20 %28post-Presidential%20recount%29.pdf.
48

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voters vote in November and if, as in April, 61.8 percent of those voters cast mail-in absentee ballots, municipal clerks will need to process a minimum of 1,839,260 absentee ballot requests and successfully deliver the same number by mail in the fall. Assuming the 1 to 1.129 ratio of returned mail-in ballots to total issued mail-in absentee ballots holds from the April 7th election, then clerks
78
will need to issue over 2 million mail-in absentee ballots this fall. This stands in stark contrast to the 2016 fall general election, in which just 162,445 absentee ballots returned by mail and other means such as special voting deputies (but excluding in-person absentee voting), and which constitutes about one-sixth of the comparable absentee ballots cast in the April 7 election and a
79
mere 8.83 percent of the projected total for the 2020 fall general election. 80. Further, many of these requests are submitted in the final days before the deadline
when municipal clerks’ offices will be busy conducting in-person absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week prior to April 7. Clerks received over 60,000 requests alone on the Friday before election day. Even if all these requests were mailed
80
on Saturday, it is unknown how long those ballots took to reach voters.” With significant USPS delays, it is likely that a substantial portion did not arrive in time for voters to cast them. 80,593 requests were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). The overwhelming majority of these 289,168 requests which came in over just four
78
This calculation assumes that all or almost all in-person absentee ballots are returned.
79
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397 80 See supra note 3, Post-Election Absentee Voting Report, at 17.
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81
days, were mail-in absentee ballots and by law had to be mailed out to voters within a day. Wis.
Stat. § 7.15(1)(cm).
81. Absent radical increases in funding, staffing, and supplies, Wisconsin election
officials at the state and local level will not be able to handle such an enormous increase in mail-
in absentee ballot requests. Defendants seem to concur with this assessment: “If voting patterns
from April hold true, the state could see more than 1.8 million requests for absentee ballots by
mail. This kind of volume would present terrific challenges for Wisconsin election officials at all
82
levels.” Even for the April 7th election, dozens of Milwaukee City Election Commission staffers
83
had already worked seven days a week until 11 p.m. to process ballots. Madison City Clerk
Maribeth Witzel-Behl said there was “no way humanly possible” to keep up with the volume of
requests, even though staffers were working 110 hours a week but still had a week’s worth of
backlogs by mid-March, and “that their computer system became so bogged down by the volume
84
of applications that it only began working quickly after 10 p.m.” As the Commission noted in its
post-mortem report,
Nearly every community experienced unprecedented absentee request volume, and many hired temporary staff to cope with demand. Many small and medium size jurisdictions learned to use WisVote absentee batch processing tools for the first time, having never previously needed any automation assistance to manage their workload. Larger cities, while used to higher volumes, were forced to work around the clock and conduct much larger batch mailings then [sic] previously experienced. For all jurisdictions, the statutory requirement to mail ballots within 24 hours of receiving a request presented a significant
85
challenge.
81 Id. at 17 (Table 11). 82 Id. at 12. 83 See supra note 12, Chen et al. 84 Id. 85 See supra note 3, Post-Election Absentee Voting Report, at 13.
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82. Defendants’ proposals for new procedures, tracking tools, and other measures cannot cure this shortfall in resources and staff. In WEC’s recent report on the April 7th election, the only proposal to reform the absentee ballot request process that could potentially have any impact on the administrative burden is automatic data updates to WisVote, the statewide voter registration system, when voters use myvote.wi.gov: “[I]nformation submitted to clerks through MyVote should not require manual data entry into the voter registration system or rely on an email-
86
based process for most users.” Updates to Form EL-121, the statewide absentee ballot request form, and myvote.wi.gov, as well as other measures to make the absentee process more userfriendly and intuitive, can help reduce some calls to municipal clerks’ offices, but that will not solve the problem of an overwhelming demand for mail-in absentee ballots and a lack of staff and
87
resources to meet that demand. Finally, applying Intelligent Mail Barcodes to absentee ballots will not meaningfully help municipal clerks’ offices meet the unprecedented demand to prepare
88
and mail out absentee ballots or to speed up a congested postal service. 83. Notably, Plaintiffs’ proposed remedies of email delivery of absentee ballots and/or
authorizing domestic civilian voters to use the Federal Write-in Absentee Ballot will significantly alleviate the burden on municipal clerks statewide through the deadline to request mail-in absentee ballots and while in-person voting through Election Day is under way. However, if those alternatives are not made available to voters and election officials alike (who both stand to benefit), Defendants cannot and will not be able to guarantee that the labor-intensive tasks of processing over 2 million absentee ballot requests, entering data and printing labels for all those ballots, and then mailing them off will not once again cause the system to break down. Defendants, of course,
86 Id. at 21-24. 87 Id. 88 Id. at 22-23.
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also cannot guarantee that USPS will timely deliver ballots to absentee voters. Given the concrete evidence of a systemic failure to keep up with the demand for absentee ballots in a much lower turnout election, this Court must intervene and safeguard voters’ constitutional rights. A presidential election is no time to leave voters without a fail-safe when election officials and the postal service fail to put ballots in voters’ hands.
84. The lack of a fail-safe option for such voters violates the First and Fourteenth Amendments to the U.S. Constitution as an undue burden on the right to vote. No legitimate state interest is advanced by this denial of these voter’s rights to vote, and the burden is the most severe possible: disenfranchisement. The lack of a fail-safe option when ballots do not arrive in the mail forces voters such as Plaintiffs to choose between their constitutionally-protected rights to vote and to bodily integrity in violation of the unconstitutional conditions doctrine. It also fails to provide a reasonable modification for voters with disabilities in violation of Title II of the Americans with Disabilities Act.
Fail-Safe Remedies for Ballot Preparation and Delivery Failures 85. The following proposed remedies for the disenfranchisement caused by ballot preparation and delivery failures are intended to serve as last resorts or fail-safes for voters such as Plaintiffs. They should not be used by voters or election officials in the first instance, but rather only after a timely-requested mail-in absentee ballot fails to arrive in the mail. In that event, voters such as Plaintiffs must be afforded a fail-safe alternative: (a) accessing and downloading a mailin absentee ballot, e.g. through myvote.wi.gov, (b) delivery of the ballot by email, or (cb) permission to vote the Federal Write-In Absentee Ballot (“FWAB”) used already by overseas civilian voters. Granted, these solutions to the constitutional problem of ballot preparation and delivery failures that continue to threaten Wisconsin voters with disenfranchisement, given the
52

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massive shift to voting by mail during the COVID-19 pandemic, will not work for all voters. Voters who lack access to a computer, a printer, the Internet, or friends, family, and neighbors with the same will not be able to avail themselves of either of these proposed remedies. However, these remedies would cure the constitutional violation as to many voters and allow those voters to cast a ballot safely and timely..
A. A. Accessing and Downloading Mail-In Absentee Ballots 85. Mail-in absentee ballots are delivered or made available to voters in a few different ways. Domestic civilian voters can receive mail-in ballots by mail, fax, or email delivery, if the municipality in which the voter resides chooses to make them available in that way. In addition to these delivery methods, all military and overseas voters, regardless of their municipality of residence, can also access their mail-in absentee ballots themselves online at myvote.wi.gov,
89
download them for marking , and return them by mail. Wis. Stat. § 6.87(3)(d). Section 6.87(3)(d) appears to still restrict the ability to electronically access and download a mail-in absentee ballot to military and overseas voters.
86. This process is automated and does not require municipal clerks to do any work to deliver a mail-in absentee ballot (and the envelope’s certificate) to a military or overseas voter. This method of ballot “delivery” shifts the burden from the municipal clerk’s office staff to the voter by permitting the voter to access their ballot at any time after their request is completed and processed.

89 See also Wisconsin Elections Commission, MyVote Wisconsin: A Guide to the MyVote

Wisconsin

Website

for

Voters

and

Clerks,

at

20-21,

https://elections.wi.gov/sites/elections.wi.gov/files/publication/65/myvote_manual_sept_2016_p

df_21316.pdf.

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Case: 3:20-cv-00249-wmc Document #: 230-2 Filed: 06/26/20 Page 55 of 81
87. The military or overseas voter must enter the last four digits of their Social Security
Number in order to access their ballot online at myvote.wi.gov. A.B. Email Delivery of Mail-In Absentee Ballots
86.88. Mail-in absentee ballots are delivered to voters in a few different ways, but not all
of these methods are communicated to voters in a uniform way. If a voter uses myvote.wi.gov,
then mail delivery of the absentee ballot is the default and only option for a domestic civilian voter.
If, however, a voter fills out the statewide absentee ballot request form, Form EL-121, seeking a
mail-in absentee ballot, then the voter is offered a selection of three methods of delivery: mail, fax,
90
or email. For each delivery option, the voter is required to write in the address to which the ballot
91
should be mailed, their fax number, or their email address. Some registered voters will have
already provided their email address upon registering to vote, such that it is in their voter
92
registration record. Upon information and belief, the statewide absentee ballot request form is
not accessible through myvote.wi.gov. It is only accessible through WEC’s website or a municipal
clerk’s website, if the municipality posts it.
87.89. Wisconsin’s municipal clerks gained the authority to deliver mail-in absentee ballots to domestic civilian voters by email or fax in this Court’s decision in One Wisconsin
90
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf; see also Wisconsin Elections Commission, Faxing or Emailing Absentee Ballots, https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo ts_to_uocava_vote_83593.pdf.
91
Wisconsin Elections Commission, Form EL-121, Wisconsin Application for Absentee Ballot, https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/EL121%20Application%20for%20Absentee%20Ballot%20%282018-10%29.pdf.
92
Wisconsin Elections Commission, Form EL-131, Wisconsin Voter Registration Application, https://elections.wi.gov/sites/default/files/publication/154/el_131_voter_registration_application _pdf_23730.pdf.
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Institute v. Thomsen in 2016. 198 F. Supp. 3d 896, 946 (W.D. Wis. 2016), which invalidated the

statutory ban on emailing or faxing mail-in absentee ballots to domestic civilian voters and is on

appeal. This ruling appears to have left the decision as to whether to email or fax ballots or not to

the sole discretion of Wisconsin’s 1,850 municipal clerks—it struck down a ban, but did not
93
mandate anything. Even though it appears from the face of Form EL-121 that a voter can request email delivery upon their initial request, i.e. in the first instance and not just as a back-up, upon

information and belief, WEC construes these emailed ballots as replacement ballots and, therefore,

only permits requests for email or fax delivery up until the regular deadline for mail-in absentee

ballots,

i.e.

5:00

p.m.

on

the

Thursday

before

Election

94
Day.

88.90. The procedure for emailing absentee ballots requires municipal clerks to “print their

initials in the endorsement section of the ballot and on the face of the ballot and scan the initialed

ballot” and then email the voter the initialed ballot, the absentee ballot certificate envelope, and
95
the Uniform Instructions for Absentee Voters. WEC’s instructions on how the voter should be

directed to print, cast, and mail the ballot state:

The elector should be instructed to print the ballot, vote the ballot in the presence of a witness, fold the ballot and seal it inside a regular, non-window envelope, complete and sign the absentee certificate. An adult U.S. citizen witness must sign and provide his or her address on the certificate. Military or permanent overseas voters should provide their birthdate. The certificate should be affixed (with glue or tape) to the envelope containing the voted ballot. The envelope with the certificate attached should be placed into another,

93
Wisconsin Elections Commission, Uniform Instructions for Absentee Voting, at 2, https://elections.wi.gov/sites/elections.wi.gov/files/201902/Uniform%20Instructions%20for%20Absentee%20Voting%20%20All%20Voters%20%20%28Rev.%202-2019%29.pdf. 94 Id. (“A voter may request that a replacement ballot be faxed or emailed to him or her. The ballot must be returned to the municipal clerk no later than 8:00 p.m. on Election Day. The ballot may not be returned to the municipal clerk by fax or email.”) (emphasis added).
95
Wisconsin Elections Commission, Faxing or Emailing Absentee Ballots, https://elections.wi.gov/sites/elections.wi.gov/files/memo/20/faxing_or_emailing_absentee_ballo ts_to_uocava_vote_83593.pdf.
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larger, envelope, sealed and mailed to the municipal clerk. The ballot must be received by
96
8 p.m. on Election Day.
The WEC’s instructions continue to explain that “[t]he absentee elector must return the hard copy
of the ballot and the completed certificate to the municipal clerk in time so that the clerk can deliver
97
the ballot to the polling place before the close of the polls.”
89.91. The WEC’s instructions on email delivery of ballots notes that USPS does not think
it can guarantee on-time delivery unless it is afforded a week. The USPS recommends that ballots
98
be mailed one week prior to the date of the Election to arrive on time. The elector may choose
99
overnight delivery to assure that their ballot arrives on time. The municipal clerk is not
100
responsible for return postage of a faxed or e-mailed absentee ballot. “When absentee ballots
are returned to the clerk’s office, the municipal clerk records the information is recorded in
101
WisVote or their WisVote Provider.” “The municipal clerk records the date absentee ballots are
102
faxed or e-mailed to voters in WisVote or forwards the information to their WisVote Provider.”
The clerk encloses the envelope holding the ballot into a certificate envelope and attaches the
completed certificate to the outside. The clerk then delivers the ballot to the appropriate polling
103
place in a carrier envelope.” “At the polling place, the election inspectors follow the procedures
for processing absentee ballots. The ballot may be remade by 2 election inspectors in order for the
104
ballot to be accepted by electronic tabulating equipment.”
96 Id. 97 Id. 98 Id. 99 Id. 100 Id. 101 Id. 102 Id. 103 Id. 104 Id.
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90.92. Upon information and belief, every one of Wisconsin’s 1,850 municipal clerks exercises their discretionary authority on email delivery of absentee ballots differently. Some advertise this delivery option; some do not. Some will deliver ballots by email; some will not, even close to Election Day or the effective deadline to mail the ballot so that it is received in time to be counted. And there are of course variances between staff members within a municipal clerk’s office.
91.93. Nevertheless, in the 2016 fall general election, Wisconsin municipal clerks emailed
105
voters 9,619 absentee ballots, and 7,231 voters returned those absentee ballots by mail. 92.94. The municipal clerk is required to enter absentee applications and ballot
information into the WisVote system maintained by the Commission within 48 hours after mailing or receiving an in-person absentee ballot application. Wis. Stat. § 6.33(5). Or, in the case where the municipality relies on the county or another municipality, the clerk shall submit the information to the clerk’s WisVote provider, and the provider shall enter the absentee information into the WisVote system within 24 hours. Wis. Stat. § 6.33(5).
93.95. The failures of Defendants, municipal clerks, and the USPS to keep up with the unprecedented, gargantuan demand for mail-in absentee ballots during this COVID-19 pandemic cries out for the alternative option of email delivery of absentee ballots. It need not and should not be a first resort; it is a last resort. However, to prevent disenfranchisement when ballots fail to arrive timely in the mail such that voters can timely vote and return them, Plaintiffs respectfully request that this Court order Defendants to instruct municipal clerks to email absentee ballots to
105
Wisconsin Elections Commission, Absentee Ballot Report (Nov. 8, 2016), https://elections.wi.gov/node/4397.
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Case: 3:20-cv-00249-wmc Document #: 230-2 Filed: 06/26/20 Page 59 of 81

voters who timely requested those ballots be delivered by mail but did not receive them in time to

return them.

94.96. Email delivery will greatly alleviate the administrative burden on municipal clerks’

offices in mailing out replacement absentee ballots for those previously-issued ballots that did not

arrive timely in the mail. B.C. B. Federal Write-In Absentee Ballots

95.97. There is one other element of absentee voting in Wisconsin that is relevant to the
106
relief Plaintiffs request: the Federal Write-in Absentee Ballot (“FWAB”). This is another fail-

safe option that would solve the problem of disenfranchisement by delayed delivery. Federal law

and Wisconsin law set forth a procedure for military and overseas civilian voters to request and

cast absentee ballots. Under the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq., military and overseas civilian voters are able to register

to vote and request an absentee ballot with a federal postcard application. 52 U.S.C. §

107
20301(b)(2). Under UOCAVA, military and overseas voters also must be permitted to cast

108

109

FWABs as an “Official Backup Ballot” or “back-up measure” to vote in federal races if they

do not receive their regular absentee ballot. 52 U.S.C. §§ 20302(a)(3), 20303(a)(1) (“The

Presidential designee shall prescribe a Federal write-in absentee ballot (including a secrecy

envelope and mailing envelope for such ballot) for use in general, special, primary, and runoff

elections for Federal office by absent uniformed services voters and overseas voters who make

timely application for, and do not receive, States, absentee ballots.”). State legislatures have the

106
Federal Write-in Absentee Ballot, https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.
107
Federal Postcard Application, https://www.fvap.gov/uploads/FVAP/Forms/fpca2013.pdf.
108
Federal Write-in Absentee Ballot, https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf,
at 3.
109
52 U.S.C. § 20303(a)(2).
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discretion to permit UOCAVA voters to use FWABs to vote in state and local offices or not. 52

U.S.C. § 20303(a)(1).

96.98. The ballot is downloadable and printable from this url:

https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf. The envelope must be assembled by

the voter, and the voter fills out both a voter information sheet and the official back-up ballot. “[A]

Federal write-in absentee ballot shall be submitted and processed in the manner provided by law

for absentee ballots in the State involved.” 52 U.S.C. § 20303(b). If the voter later casts an official

state absentee ballot after casting their FWAB, they are instructed to “make every reasonable effort

to inform the appropriate State election official that the voter has submitted more than one ballot.”

52 U.S.C. § 20303(d). Wisconsin law requires a military or overseas voter first apply for an absentee ballot with the federal postcard application before using the FWAB. See Wis. Stat. §

6.25(1)(a);

Federal

Write-in

Absentee

Ballot,

at

1,

https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf.

97.99. Because these are write-in ballots, federal law sets forth specific rules for

processing and counting FWABs, specifically:

(1) In completing the ballot, the absent uniformed services voter or overseas voter may designate a candidate by writing in the name of the candidate or by writing in the name of a political party (in which case the ballot shall be counted for the candidate of that political party).

(2) In the case of the offices of President and Vice President, a vote for a named candidate or a vote by writing in the name of a political party shall be counted as a vote for the electors supporting the candidate involved.

(3) Any abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a political party shall be disregarded in determining the validity of the ballot, if the intention of the voter can be ascertained.

52 U.S.C. § 20303(c).

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98.100.

Wisconsin law tracks the federal requirement but adds one restriction. First,

the statute states that

[a]ny individual who qualifies as a military elector under s. 6.22(1)(b) and who transmits an application for an official absentee ballot for any election, including a primary election, no later than the latest time specified for the elector in s. 6.86(1)(b) may, in lieu of the official ballot, cast a federal write-in absentee ballot prescribed under 42 USC 1973ff-2 for any candidate for an office listed on the official ballot or for all of the candidates of any recognized political party for the offices listed on the official ballot at that election if the federal write-in absentee ballot is received by the appropriate municipal clerk no later than the applicable time prescribed in s. 6.87(6).

Wis. Stat. § 6.25(1)(a). Next, subsection (b) authorizes the same for “overseas electors.” Wis. Stat.

§ 6.25(1)(b). However, there is an exception to this default rule that a FWAB voter can vote in all

federal, state and local races. Under Wisconsin Statutes Section 6.24, an “overseas elector” is

defined as

a U.S. citizen who is not disqualified from voting under s. 6.03, who has attained or will attain the age of 18 by the date of an election at which the citizen proposes to vote and who does not qualify as a resident of this state under s. 6.10, but who was last domiciled in this state or whose parent was last domiciled in this state immediately prior to the parent's departure from the United States, and who is not registered to vote or voting in any other state, territory or possession.

Wis. Stat. § 6.24(1). Wisconsin law does draw a distinction between those who are permanently overseas and those who are temporarily overseas, i.e. those who maintain Wisconsin residence.

The latter group can vote for state and local contests, but the former cannot:

An overseas elector may vote in any election for national office, including the partisan primary and presidential preference primary and any special primary or election. Such elector may not vote in an election for state or local office unless the elector qualifies as a resident of this state under s. 6.10. An overseas elector shall vote in the ward or election
district in which the elector was last domiciled or in which the elector’s parent was last
domiciled prior to departure from the United States.

Wis. Stat. § 6.24(2) (emphasis added). Regardless, both Wisconsin residents who are temporarily

overseas and permanently overseas voters who were last domiciled in Wisconsin can both use

FWABs as ballots, at least for federal races, while domestic civilian voters cannot cast FWABs

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for any race. The principle behind this is that a voter who is overseas will face hardship or potential

disenfranchisement if this back-up option is not made available to them. The COVID-19 pandemic now threatens many domestic civilian voters with hardship and potential disenfranchisement—

their right to vote is entitled to the same protection, given these extreme circumstances.

99.101.

Affording domestic civilian voters the right to cast FWABs to the same

extent as overseas civilian voters and allowing them to use the FWAB for all federal, state, and

local races would also cure the constitutional and federal statutory violations caused by the lack of

a fail-safe option for voters who request absentee ballots during this pandemic because they cannot

safely vote in person and whose absentee ballots never arrive in the mail. Plaintiffs respectfully

request that this Court order this as relief in the alternative or in addition to the email delivery of

ballots in the narrow circumstance where a voter timely requests a mail-in absentee ballot be

delivered by mail but does not receive that ballot. The Witness Requirement

100.102. All absentee ballots must be witnessed and signed by an adult U.S. citizen

(other than those cast by military and overseas voters, whose absentee ballots may be witnessed

by an adult who is not a U.S. citizen), but that individual need not be a resident of Wisconsin or a
110
registered voter in the state. Wis. Stat. § 6.87(4)(b)1. The witness signature requirement applies

to all absentee voters, regardless of the particular method by which the voter cast that absentee ballot. Id. The absentee ballot certificate contains both a voter certification and a witness
111
certification, which the voter and witness must respectively sign under penalty of perjury.

110 See also Wisconsin Elections Commission, Form EL-122, Standard Absentee Ballot Certificate, WIS. ELECTIONS COMM’N, available at https://elections.wi.gov/sites/elections.wi.gov/files/gab_forms/4/el_122_standard_absentee_ballo t_certificate_portra_17554.pdf. 111 Id.
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Case: 3:20-cv-00249-wmc Document #: 230-2 Filed: 06/26/20 Page 63 of 81
101.103. For in-person absentee voting, the municipal clerks serve as the witnesses, and they must put down the clerk’s office address, but, upon information and belief, they can just
112
use a stamp. Other forms of absentee voting, such as for hospitalized voters and voters in nursing homes, through an agent or special voting deputy (“SVD”) require the agent or SVD to serve as the witness.
102.104. Because Wisconsin law requires that mail-in absentee ballots’ certifications
113
be signed by the voter and by a witness who is an adult U.S. citizen, this requirement constitutes an insurmountable hurdle for many eligible Wisconsin voters under self-quarantine. All eligible Wisconsin voters under self-quarantine who live alone or who do not have an adult U.S. citizen in their household will be unable to satisfy the state’s witness signature requirement and cast a mailin absentee ballot.
103.105. According to the U.S. Census Bureau, there are over 675,000 single-
114
member households in Wisconsin, and many other households that include only one adult. More
115
than 250,000 of these single-member households are individuals over the age of 65. 104.106. Additionally, upon information and belief, at least 735 mail-in absentee
ballots in Milwaukee were rejected for lack of a witness signature. 105.107. Since in-person voting would pose a severe risk to the bodily integrity and
lives of these individuals, that option, which must be preserved statewide, is simply not viable for voters who are at elevated risk from COVID-19. Indeed, in-person voting, which requires the gathering of many poll workers (or “election inspectors”) and voters in a single polling place,
112
Wisconsin Elections Commission, Absentee Voting 101, (Sept. 7, 2016), https://elections.wi.gov/node/4086.
113
As noted previously, for military and overseas voters, the witness need not be a U.S. citizen. 114 See supra note 30, U.S. Census Bureau. 115 Id.
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would seem to violate social distancing guidance. Under the current circumstances, given the acknowledged public health hazard of contracting COVID-19 from in-person voting, the witness signature requirement preventing certain eligible Wisconsin voters from casting a mail-in ballot constitutes an undue burden on the right to vote not justified by any legitimate or important government interest.
106.108. Plaintiffs Sylvia Gear and Claire Whelan, both of whom must vote by mailin absentee ballot to safeguard their lives during this pandemic, challenged this requirement back in March and April. Because they live alone and are self-quarantining during the COVID-19 pandemic, given their advanced age and medical histories, the CDC’s recommendations, and the now-enjoined Emergency Order #12, they have no way to reasonably and safely obtain a witness signature on their mail-in absentee ballots’ certifications and are therefore effectively disenfranchised by Wis. Stat. § 6.87(4)(b)1. For example, Plaintiff Claire Whelan was compelled to ask a friend to drive from a town 8 miles away to Ms. Whelan’s apartment in order to serve as her witness. There, because Ms. Whelan is at high risk from COVID-19 due to her asthma, she and her friend were forced to pass the ballot underneath a closed door and text each other photos showing the completed acts that constitute the witnessing process. It is patently unreasonable to require voters like Ms. Whelan to engage in such a process to comply with the witness requirement when there are reasonable alternatives such as this Court’s own injunction providing a certification alternative or the Seventh Circuit’s panel suggestion of remote witnessing with the recording of a witness name, without a physical signature from that witness. Absent a court order enjoining the witness signature requirement for the November 3, 2020 general election, at least in part, Plaintiffs Whelan and Gear will be denied their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution.
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107.109. The burdens imposed on voters forced to comply with the witness requirement during the COVID-19 pandemic far outweigh any benefit Defendants derive from it in seeking to deter, prevent, detect, or prosecute electoral fraud. The prevention of voter fraud is an important regulatory interest of Wisconsin state government officials, including Defendants, but any law designed to prevent voter fraud must be tailored to the burdens it imposes. See Norman v. Reed, 502 U.S. 279, 289 (1992); Fish v. Schwab, 957 F.3d 1105, 1132 (10th Cir. 2020) (observing that “the Secretary points to no concrete evidence that ‘[its] interests make it necessary to burden the plaintiff’s rights’ in this case”). Here, the witness requirement is not an effective tool to safeguard election integrity and, therefore, the state’s interest is greatly attenuated. The witness requirement also undermines the state’s strong public health interest in limiting the spread of COVID-19. If absentee voting is closed off to individuals who live alone or do not have an adult U.S. citizen in their household, some may well resort to in-person voting, thereby running the risk of contracting and spreading COVID-19 and further worsening the pandemic in Wisconsin. Others who are at severe risk, like Plaintiffs, will be prevented from voting altogether, an unconstitutional result that this suit seeks to prevent.
108.110. On April 1, 2020, this Court presided over a hearing on Plaintiffs’ motion for a preliminary injunction. Ruling in Plaintiffs’ favor, the Court blocked the witness requirement in part: “Defendants are enjoined from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid.” 20-cv-249, dkt. 171.
109.111. Defendant-Intervenors Republican Party of Wisconsin and Republican National Committee appealed the preliminary injunction and moved for and obtained a stay of the
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above-excerpted part of the preliminary injunction. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, No. 19A1016, 2020 WL
1672702 (U.S. Apr. 6, 2020). The Seventh Circuit’s motions panel concluded “that the district
court did not give adequate consideration to the state’s interests in suspending this requirement.” Id. at *3. But notably, in seeking to strike a balance between the voters’ burdens and the state’s
anti-fraud interest, the Court suggested that witnesses could observe voters casting their ballots
remotely without actually physically signing the ballot:
So, too, do we have every reason to believe the Commission, in keeping with the forwardleaning action it has taken thus far to accommodate voters’ interests while also striving to ensure their safety, will continue to consider yet other ways for voters to satisfy the statutory signature requirement (if possible, for example, by maintaining the statutory presence requirement but not requiring the witness’s physical signature). Id. at *4. While this was a mere suggestion in dicta, Plaintiffs now seek this as a remedy in addition
to or in the alternative to this Court’s own reasonable efforts certification. The Seventh Circuit
panel did not rule on the merits and has dismissed the appeals, so both forms of relief remain
viable. CLAIMS
COUNT ONE FAILURES TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS (All Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila
Jozwik, Gregg Jozwik, LWVWI, and Wisconsin Alliance) (Denial of Right to Vote in Violation of the First and Fourteenth Amendments to the U.S.
Constitution and 42 U.S.C. § 1983)
110.112. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
First Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
111.113. Under the First and Fourteenth Amendments to the U.S. Constitution, any
burden on the right to vote must be balanced against a state’s interest in that requirement. The
Supreme Court has set forth the following test:
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[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also One Wisconsin Institute, Inc. v. Thomsen, 15-cv-324-jdp, 2016 WL 4059222 at *3 (W.D. Wis. July 29, 2016) (“This analysis proceeds under what is known as the Anderson–Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden.”). 112.114. Wisconsin’s election administration system, as managed by Defendants, is not equipped to handle the unprecedented surge in mail-in absentee balloting that the COVID-19 pandemic is causing. The November general election will be conducted under substantial COVID19 transmission and will see an estimated 2 million-plus absentee ballot requests. Given the current systems, procedures, laws, and resources for absentee voting and mail delivery, there is simply no way that Defendants, the municipal clerks who take their marching orders from them, and USPS can meet that demand. Inevitably, some portion of voters who must vote by mail due to the risk COVID-19 poses to their health and the health of their family members will not receive a ballot in the mail. 113.115. Because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, and Sheila Jozwik were all disenfranchised in the April 7
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election and stand to be disenfranchised again in the November general election, and Plaintiff Gregg Jozwik was forced to risk exposure to the novel coronavirus by voting in person. Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, and Gregg Jozwik were all disenfranchised in the April 7 election and stand to be disenfranchised again in the November general election, because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because they have diverted and will continue to divert resources, staff time, and money to educate and help voters who do not receive a requested absentee ballot in the mail.
114.116. In-person voting of course is not a reasonable alternative, as that would require these Plaintiffs to enter a confined and crowded space where they run a significant risk of contracting COVID-19.
115.117. The failure to prepare and deliver absentee mail-in ballots timely or at all constitutes a complete denial of a voter’s right to cast a ballot, where voters cannot safely vote in person or will be traveling or otherwise away from their ward on Election Day.
116.118. The burden on the right to vote is the most severe imaginable, while the state has zero legitimate interest in disenfranchising a voter who does not timely receive an absentee ballot in the mail. Under the circumstances of the COVID-19 pandemic, which has already led both the federal and Wisconsin state governments to declare emergencies, there is no “compelling,” “important,” or “legitimate” interest, Burdick, 504 U.S. at 434, that can justify this disenfranchisement or failing to afford voters a fail-safe option that is already in use in the state.
117.119. Plaintiffs, and all voters who timely request an absentee ballot by mail delivery but who do not receive that ballot in the mail, must be granted one or both of two fail-
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safes, either (a) the option to request that an absentee ballot be made available to them for
electronic access and downloading or emailedally emailed to them, and/or (b) the option to cast a
Federal Write-in Absentee Ballot.
118.120. Defendants, acting under color of state law, have deprived and will continue
to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S.
Constitution.
119. For the foregoing reasons, Defendants have deprived and will continue to deprive
Plaintiffs of their rights to vote in violation of the First and Fourteenth Amendments to the U.S.
Constitution as enforced by 42 U.S.C. § 1983.
120.121. COUNT TWO
WITNESS REQUIREMENT (Plaintiffs LWVWI, Wisconsin Alliance, Claire Whelan, and Sylvia Gear) (Undue Burden on the Right to Vote in Violation of the First and Fourteenth Amendments
to the U.S. Constitution and 42 U.S.C. § 1983)
121.122. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
First Amended Complaint and the paragraphs in the counts below as though fully set forth herein.
122.123. Under the First and Fourteenth Amendments to the U.S. Constitution, any
burden on the right to vote must be balanced against a state’s interest in that requirement. The
Supreme Court has set forth the following test:
[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Anderson, 460 U.S., at 788, 103 S.Ct., at 1569–1570; see also id., at 788–789, n. 9, 103 S.Ct., at 1569–1570, n. 9.
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Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also One Wisconsin Institute, Inc. v. Thomsen, 15-cv-324-jdp, 2016 WL 4059222 at *3 (W.D. Wis. July 29, 2016) (“This analysis proceeds under what is known as the Anderson–Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden.”).
123.124. The witness signature requirement for absentee mail-in ballots requires mail-in absentee voters to obtain an adult U.S. citizen’s signature certifying that the voter cast the mail-in ballot themselves. Wis. Stat. § 6.87(4)(b)1.
124.125. Under the circumstances of the COVID-19 pandemic, which led both the federal and Wisconsin state government to declare emergencies, it is not safe, reasonable, or even logical to require mail-in absentee voters who live alone or do not have an adult U.S. citizen living in their household to seek out and obtain a witness’s signature in order for the ballot to be validly cast and counted. This required action puts the health of Plaintiffs Claire Whelan and Sylvia Gear in jeopardy. They, and other similarly situated voters, are compelled to take an unreasonable risk to satisfy the witness requirement, when reasonable alternatives that equally satisfy the state’s antifraud interest exist.
125.126. Not only does continuing to require a witness signature on a mail-in ballot in the face of this fast-spreading pandemic lack support from a legitimate government interest that is “compelling” or “important,” Burdick, 504 U.S. at 434, but it would also directly contradict the state’s proffered interest in maintaining social distancing.
126.127. Given the circumstances of the COVID-19 pandemic, eligible Wisconsin voters who are at higher risk from COVID-19 and who live alone or who do not have an adult U.S.
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citizen living in their household, like Plaintiffs Claire Whelan and Sylvia Gear, cannot safely comply with the requirements of Wis. Stat. § 6.87(4)(b)1. through reasonable efforts and cast a mail-in absentee ballot that will count.
127.128. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because Plaintiffs Whelan and Gear are members of LWVWI and Wisconsin Alliance, respectively, and because these organizations have diverted and will continue to divert resources, staff time, and money to educate and help voters who are struggling and/or unable to safely comply with the witness requirement through reasonable efforts.
128.129. Therefore, under these circumstances, Section 6.87(4)(b)1. now creates an undue burden on mail-in absentee voters’ right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as construed in Anderson and Burdick.
129.130. In-person voting of course is not a reasonable alternative, as that would require these eligible Wisconsin voters to enter a confined space with even more people than would be required to witness the casting of a mail-in absentee ballot and seriously jeopardize their health and life.
130.131. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the First and Fourteenth Amendments to the U.S. Constitution.
131.132. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of undue burdens on their right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT THREE FAILURES TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS; WITNESS
REQUIREMENT (All Plaintiffs)
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(Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily Integrity in Violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C.
§ 1983) 132.133. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 133.134. Under the unconstitutional conditions doctrine, the government may not require an individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard v. Walker, 406 F.3d 114, 129 (2nd Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997). 134.135. “[W]hen a condition on a government benefit burdens a constitutional right, it generally triggers the same scrutiny as a direct penalty would.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994). Government actions that threaten the right to bodily integrity are subject to strict scrutiny. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998). The Supreme Court has invalidated voting requirements or conditions that require the forfeiture of another fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (finding that durational residency requirement for voter registration placed unconstitutional condition on fundamental right to interstate travel) (“Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right. In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Absent a compelling state interest, a State may not burden the right to travel in this way.” (internal citation and footnotes omitted)). 135.136. The Fourteenth Amendment guarantees the right to bodily integrity, and this right is violated if government officials are deliberately indifferent to the violation of the plaintiff’s
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bodily integrity. See Missouri v. McNeely, 569 U.S. 141, 159 (2013); Guertin v. State, 912 F.3d 907, 919 (6th Cir. 2019). “Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” Guertin, 912 F.3d at 921–22.
136.137. Because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on time Plaintiffs Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, and Sheila Jozwik, and Gregg Jozwik were all disenfranchised in the April 7 election and stand to be disenfranchised again in the November general election, because of Defendants’ failure to provide them with a fail-safe option if their absentee ballots do not arrive in the mail on timeand Plaintiff Gregg Jozwik was forced to risk exposure to the novel coronavirus by voting in person. Without a fail-safe option, they must either lose their right to vote or vote in person which threatens them with a violation of their bodily integrity. In-person voting would require these Wisconsin voters to enter a confined space with many people, risking contracting COVID-19.
137.138. By failing to provide a fail-safe option for voters who request but do not receive an absentee ballot in the mail and by requiring Plaintiffs Claire Whelan and Sylvia Gear to engage a witness to observe the voting of their mail-in ballots and to sign the certification, which cannot be reasonably and safely accomplished, Defendants effectively require Plaintiffs to choose between a severe risk to their right to bodily integrity and losing their right to vote.
138.139. Organizational Plaintiffs LWVWI and Wisconsin Alliance are also injured because they have diverted and will continue to divert resources, staff time, and money to educate and help voters who do not receive a requested absentee ballot in the mail and to educate and help voters who are struggling and/or unable to safely comply with the witness requirement through
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reasonable efforts. Additionally, Plaintiffs Whelan and Gear are members of LWVWI and Wisconsin Alliance, respectively.
139.140. Because in-person voting and the witness requirement both severely threaten to violate Plaintiffs’ bodily integrity by subjecting them to the significant risk of contracting COVID-19, Defendants force Plaintiffs to forfeit their right to bodily integrity in order to exercise their right to vote. Should Plaintiffs exercise their right to vote under these circumstances, Defendants will have knowingly subjected Plaintiffs to a foreign substance—the novel coronavirus that causes COVID-19—without a therapeutic basis or Plaintiffs’ consent.
140.141. Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
141.142. For the foregoing reasons, Defendants have deprived and will continue to deprive Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
COUNT FOUR FAILURE TO PREPARE AND DELIVER MAIL-IN ABSENTEE BALLOTS; WITNESS
REQUIREMENT (Plaintiffs Katherine Kohlbeck, Diane Fergot, Claire Whelan, and League of Women
Voters of Wisconsin) (Failure to Provide Reasonable Modifications in Violation of Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12131, et seq.) 142.143. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though fully set forth herein. 143.144. Under Title II of the Americans with Disabilities Act, state and local governments must not impose requirements on participation in public services, programs, or activities, including exercise of the fundamental right to vote, that screen out individuals with
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disabilities from fully and equally enjoying those services and programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability.
144.145. “The obligation to make ‘reasonable modifications’ parallels the obligations to make ‘reasonable accommodations’ in the context of Titles I and III.” Lacy v. Cook Cty., 897 F.3d 847, 853 (7th Cir. 2018). To accommodate a disability in the employment context is to “make some change that will enable [a] disabled person to work.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995). To accommodate a disability in the context of a public service requires a modification that would enable a disabled person to “participat[e] in or [enjoy the] benefits of services, programs, or activities of a public entity.” 42 U.S.C.S. § 12132.
145.146. The CDC has deemed that individuals who suffer from the impairments that Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan possess are at higher risk for severe illness from COVID-19. Because of these high risks, Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan are substantially affected and unable to enjoy at least one major life activity: exercising their fundamental right to vote. Additionally, Claire Whelan’s chronic asthma substantially limits the operation of her respiratory function, a major bodily function and a major life activity.
146.147. Individuals who suffer a significant medical vulnerability that places them at high risk of serious bodily injury or death should they be forced to vote in person or secure a witness—including Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan, whose health conditions put them at high risk of severe illness or death should they contract COVID-19—have a disability within the meaning of the ADA.
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147.148. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan’s medical conditions substantially affect their major life activities because they cannot safely exercise their fundamental right to vote without risking their lives. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan must be afforded reasonable fail-safe options if their absentee ballots do not arrive in the mail on time and provided some relief from the witness requirement.
148.149. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan are unable to reasonably and safely obtain a witness signature without ignoring the CDC’s guidelines and putting themselves at risk of contracting COVID-19 and suffering serious health consequences, including death. Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan would be unable to safely vote by absentee ballot through reasonable efforts unless they are afforded relief from the witness requirement.
149.150. Defendants’ failure and refusal to ensure that Plaintiffs with disabilities are given the ability to vote without risks of serious illness or death constitute a failure to make a reasonable modification for those, such as Plaintiffs Katherine Kohlbeck, Diane Fergot, and Claire Whelan, whose health conditions limit their ability to have contact with others during this public health emergency created by COVID-19, in violation of the ADA.
150.151. The failure to provide a reasonable modification for these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the November 3, 2020 general election, in violation of Title II of the Americans with Disabilities Act.
151.152. For the foregoing reasons, Defendants, acting under color of state law, have deprived and will continue to deprive Plaintiffs of their statutory rights under the ADA as enforced by 42 U.S.C. § 1983.
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PRAYER FOR RELIEF Plaintiffs respectfully request that this Court: (a) Assume jurisdiction over this matter; (b) Declare that the lack of a fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail in time to cast it such that it will be counted in the November general election, and Wis. Stat. § 6.87(3)(d) to the extent it still restricts electronic access and downloading of mail-in absentee ballots to military and overseas voters, violates the First and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983; (c) Preliminarily and permanently enjoining Wis. Stat. § 6.87(3)(d) to the extent it still restricts electronic access and downloading of mail-in absentee ballots to military and overseas voters; (dc) To remedy the constitutional and federal statutory violations caused by the lack of a fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail, for the November general election, order:
1. Defendants to permit voters who previously and timely requested a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail, to request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, that a mail-in absentee ballot and its certificate envelope be made available to such voters for online access and downloading, e.g. through myvote.wi.gov, and/or emailed to such voters; 2. Defendants to make mail-in absentee ballots available for online access and downloading, e.g. through myvote.wi.gov, and/or email mail-in absentee ballots,
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upon request via email, myvote.wi.gov, or Form EL-121, the statewide uniform absentee ballot application, to voters who previously and timely requested a mailin absentee ballot by mail delivery but who do not receive that ballot in the mail; 3. Defendants to process and count mail-in email-delivered absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; and 4. Preliminary and permanent injunctive relief prohibiting Defendants from rejecting and/or refusing to count mail-in email-delivered absentee ballots that were accessed online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery but do not receive that ballot in the mail; (ed) In the alternative or in addition to the relief outlined in subsection (c), for the November general election, order: 1. Defendants to permit voters who previously and timely requested an absentee ballot by mail delivery, to download, vote, and return in any way permitted under Wisconsin law or court orders the Federal Write-in Absentee Ballot; 2. Defendants to process and count Federal Write-in Absentee Ballots that are timely returned in any way permitted under Wisconsin law or court orders by voters who previously and timely requested a mail-in absentee ballot by mail delivery; and
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3. Preliminary and permanent injunctive relief prohibiting Defendants from rejecting and/or refusing to count Federal Write-in Absentee Ballots cast by voters who previously and timely requested a mail-in absentee ballot by mail delivery and that are timely returned in any way permitted under Wisconsin law or court orders, but only if they are postmarked or dropped off at a municipal clerk’s office on or after the seventh day before Election Day through the deadline for returning absentee ballots; (fe) Declare that Wis. Stat. § 6.87(4)(b)1. violates, in part, the First and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. § 1983, for the November general election; (gf) To remedy the constitutional and federal statutory violations caused by enforcement of the witness requirement, Wis. Stat. § 6.87(4)(b)1., without reasonable modification during the course of the COVID-19 pandemic, preliminarily and permanently enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November general election and from rejecting and/or refusing to process and count an absentee mail-in ballot cast in the November general election on the basis that it lack a witness signature on the certificate envelope, if the mail-in absentee voter signs a certification on the absentee ballot certificate envelope or on a pre-printed insert to be enclosed with the absentee ballot, that affirms that the voter was unable to safely obtain a witness certification through reasonable efforts, provided that the ballot is otherwise valid; (hg) In the alternative or in addition to the relief outlined in subsection (f), preliminarily and permanently enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November 3, 2020 general election and from rejecting and/or refusing to process and count an absentee mail-in ballot cast in the November general election on the basis that it lacks a witness
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signature on the certificate envelope, if the witness observes the voter casting the ballot remotely, e.g. by videoconference or through a glass window, and the voter records in writing on the absentee

ballot certificate envelope or on a pre-printed insert to be enclosed with the absentee ballot the full

name of the witness who witnessed the voting of the ballot and enough of the witness’s address to

identify the correct residential address and contact that witness, provided that the ballot is

otherwise valid;

(ih) Retain jurisdiction to monitor Defendants’ compliance with this Court’s judgment;

(ji) Grant Plaintiffs their reasonable costs and attorneys’ fees incurred in bringing this

action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920, and as otherwise permitted by law; and

(kj) Grant such other relief as this Court deems just and proper.

DATE: May 29June 265, 2020

Respectfully submitted,

/s/ Jon Sherman

Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org (202) 331-0114

Douglas M. Poland State Bar No. 1055189 David P. Hollander State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 Phone: 608-960-7430

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Case: 3:20-cv-00249-wmc Document #: 230-2 Filed: 06/26/20 Page 81 of 81 Fax: 608-960-7460 dpoland@rathjewoodward.com dhollander@rathjewoodward.com Counsel for Plaintiffs *Admitted to the U.S. District Court for the Western District of Wisconsin
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-249-wmc

SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-278-wmc

CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-340-wmc

JILL SWENSON, et al., Plaintiffs,

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v. MARGE BOSTELMANN, et al.,
and REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.

Civil Action No. 3:20-cv-459-wmc

MEMORANDUM OF WEC DEFENDANTS IN RESPONSE TO PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS

INTRODUCTION Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Commissioners of the Wisconsin Elections Commission and Meagan Wolfe, Administrator1, in their official capacities (collectively, the “WEC”), by their undersigned counsel, respond as follows and collectively to the Plaintiffs’2 Motion for Preliminary Injunction. The WEC administers and enforces Wisconsin’s election laws, except for laws regarding campaign finance. Wis. Stat. § 5.05 (1)3. The WEC is a function of the Wisconsin statutes and has no authority to overrule, waive or otherwise disregard Wisconsin’s election laws, including statutes related to absentee ballots and the decentralized structure of Wisconsin election administration.

1 Administrator Wolfe is a defendant in three of the four consolidated cases: Gear et al. v. Bostelmann et al., 3:20-cv278; Edwards et al. v. Vos et al., 3:20-cv-340; and Swenson et al. v. Bostelmann et al., 3:20-cv-459.
For purposes of this brief, and pursuant to the agreed-upon schedule in this case, the individual Commissioners and Administrator Wolfe respond collectively to the motions for preliminary injunction.
2 Except as otherwise specified herein, “Plaintiffs” means, collectively, the plaintiffs in the four consolidated cases, DNC et al. v. Bostelmann et al., Case No. 3:20-cv-249; Gear et al. v. Bostelmann et al., 3:20-cv-278; Edwards et al. v. Vos et al., 3:20-cv-340; Swenson et al. v. Bostelmann et al., 3:20-cv-459.
3 All references are to the 2020 Statutes.
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The November 2020 Election will be the fourth election conducted in Wisconsin since the beginning of the COVID-19 crisis. [WECPFOF4 1-2]. One of those elections – the April 7 Spring Election – was the subject of extensive proceedings before this Court, including a request to postpone the election altogether. [See generally, ‘249 Case Dkt. No. 170; ‘284 Case, Dkt. No. 1]. The Plaintiffs have requested various relief, some of which was also before the Court in March. [‘249 Case Dkt. Nos. 252, 369 and 395; ‘459 Case Dkt. No. 40]. Following the April 7 Election, and in anticipation of a general election taking place during the ongoing COVID-19 crisis, the WEC and its staff has undertaken steps which are outlined in the WEC’s June 25, 2020 Report to the Court and described briefly below. [‘249 Case Dkt. No. 227]. The WEC does not take a position on the specific relief requested in the Plaintiffs’ respective motions. Rather, this brief sets forth the WEC’s position regarding its authority under Wisconsin statutes.
FACTS I. The Wisconsin Elections Commission.
Defendants Marge Bostelmann, Dean Knudson, Ann Jacobs, Mark Thomsen, Robert Spindell and Julie Glancy are the members of the Wisconsin Elections Commission. Wisconsin statute authorizes the creation of the WEC and defines its duties. Wis. Stat. § 15.61; see generally Wis. Stat. 5.05 (1). The WEC administers and enforces Wisconsin’s elections laws. In administering elections, the WEC works in conjunction with the State’s county5 and municipal clerks6. There are 72 county clerks and 1,850 municipal clerks. [WECPFOF 5]. Over 60% of the
4 WEC Defendants’ Additional Proposed Findings of Fact 5 As used herein, “county clerks” is intended to describe those officials described in Wisconsin Statute sections 7.10
and 5.02 (2) as well as boards of election for counties over 750,000 in population as described in Wisconsin Statute section 7.20. 6 As used herein, “municipal clerks” is intended to include those officials described in Wisconsin Statute sections 7.15 and 5.02 (10) as well as boards of election for municipalities over 500,000 in population as described in Wisconsin Statute section 7.20.
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State’s municipal clerks are part-time. [WECPFOF 5]. The WEC has an Administrator, Meagan Wolfe, and a staff of twenty-nine. [WECPFOF 2]; Wis. Stat. § 5.05 (3d). II. Wisconsin Election Law.
Wisconsin election law is a product of the Wisconsin Constitution and statutes. The Wisconsin Constitution guarantees the right to vote, subject to, “a legitimate field of legislative activity in the nature of regulation.” League of Women Voters v. Walker, 2014 WI 97, ¶ 19, 357 Wis.2d 360 851 N.W. 2d 302, quoting McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910). Wisconsin’s election laws are found in Chapters 5 through 10 and 12 of the Wisconsin statutes. Those statutes include delineations of the duties of municipal and county clerks, as well as the WEC. See generally, Wis. Stat. §§ 7.15; 7.10; 7.08. Wisconsin statutes also set the qualifications for election officials; deadlines applicable to elections; registration requirements; and the rules surrounding absentee ballots. See e.g. Wis. Stat. §§ 7.30; 7.15; 6.34; 6.28, 6.86 et seq. The statutes also create specific rules regarding the standards for polling places. Wis. Stat. §§ 5.15; 5.25; 5.35. More information regarding the WEC’s authority, as well as the independent statutory authority of municipal clerks and boards of elections, is set forth below. III.COVID-19 and the April 7 Election.
A. Background for the April 7 Election. Wisconsin held its Spring Presidential Preference and Spring Election on April 7, 2020.
[WECPFOF 8]. In addition to the presidential primary, there was also a race for Justice of the Wisconsin Supreme Court and many local offices. [WECPFOF 8]. At the time, Wisconsin was the only state to conduct a statewide election while operating under a “stay at home” order related to the COVID-19 pandemic. [WECPFOF 9]. Ballots for the April 7 Election became available on February 20, 2020. [WECPFOF 8]. Governor Evers issued his first executive order related to
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COVID-19 on March 12, proclaiming a health emergency and directing the Wisconsin Department of Health Services as the lead agency to respond. See e.g. Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 5, 391 Wis.2d 497, 942 N.W.2d 900. On March 22, 2020, Governor Evers and Lieutenant Governor Barnes issued a letter which, among other things, encouraged people to cast absentee ballots in the upcoming election. [WECPFOF 10]. On March 24, the Governor and the SecretaryDesignee of Wisconsin’s Department of Health Services issued “Emergency Order # 12: Safer at Home Order,” restricting certain forms of travel and activities in the state in response to COVID19 [‘249 Case Dkt. No. 170, p. 7 n 4]; Palm, 2020 WI 42, ¶ 7.
The day before the election, Governor Evers issued an additional emergency order – Executive Order # 74 - to postpone in-person voting. The Wisconsin Supreme Court enjoined that order later the same day. Wisconsin Legislature v. Evers, No. 2020AP608-OA (Apr. 6, 2020).
a. Preparations for the April 7 Election In anticipation of the April 7 Election, the WEC undertook projects to change its own processes and provide assistance to municipal clerks throughout the state. [WECPFOF 11]. In addition to its normal duties, the WEC did the following in response to the COVID-19 pandemic:
1. Sanitation and PPE. The WEC staff worked with the State Emergency Operations Center (“SEOC”) to find, procure and distribute sanitation supplies and personal protective equipment to polling places throughout Wisconsin. Those supplies included over 8,000-liter bottles of ethyl alcohol solution for use as a hand and surface sanitizer; 10,000 plastic spray bottles; 500,000 isopropyl alcohol wipes; surgical masks, latex gloves; 1.5 million ballpoint pens; approximately 2,000 rolls of painter’s tape; and over 10,000 social distancing and public health signs. The Wisconsin National Guard then helped package
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and distribute supplies to regional facilities around the state. County governments distributed the supplies from the regional facilities. [WECPFOF 12-14]. 2. Encouraging Absentee Voting. On March 13, 2020, the WEC issued a press release encouraging anyone who was concerned about COVID-19 exposure to make plans to vote absentee for the April 7, 2020 Election, describing how voters could request an absentee ballot and providing information about indefinitely confined voters, photo ID requirements and the absentee ballot receipt deadline. [WECPFOF 15]. 3. Updates to WisVote. WEC staff performed updates on WisVote, Wisconsin’s statewide voter registration database and election administration system. WEC’s staff performed updates to WisVote to accommodate changes to the deadlines for absentee ballot requests and online registration. As a result of increased absentee ballot requests and uploaded photo ID’s, WEC staff made multiple memory increases to WisVote and continuously monitored its capacity. The WEC staff also created a new report within WisVote to assist jurisdictions with consolidated polling places. [WECPFOF 16-17]. 4. Updates to MyVote. The WEC staff increased capacity and made changes to MyVote, the WEC’s public-facing website. The circumstances of the April 7 Election and COVID-19 crisis resulted in an unprecedented use of MyVote features. WEC staff also had to make coding changes to MyVote to adjust deadlines and workflows because of court orders. Due to the pandemic, the WEC was unable to conduct usability tests of these changes. Finally, the WEC
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adjusted load testing plans to address the high volume of MyVote traffic and changes in voter behavior. [WECPFOF 18-20]. 5. Envelopes and Postage. Municipal clerks had purchased absentee ballot supplies, including envelopes and supplies, prior to the start of the COVID-19 crisis in Wisconsin based on pre-2020 absentee ballot behavior. As voters increasingly shifted to voting by absentee ballot by mail, clerks ran out of supplies and were unable to purchase more due to supply chain issues. The WEC, with help from the SEOC, procured and distributed additional envelopes. By March 30, the WEC had distributed 1.2 million absentee ballot envelopes to municipal clerks. [WECPFOF 20-22]. 6. Poll Worker Shortage. At the beginning of the COVID-19 crisis, municipal clerks began reporting a shortage of poll workers. According to statewide surveys, most poll workers are typically over the age of 60. Many municipal clerks were unable to fill-in on an emergency basis as poll workers because they were also in a vulnerable demographic. Prior to the April 7 Election, municipalities reported a statewide shortage of over 7,000 poll workers. The WEC requested poll worker personnel from the state operations center. It also engaged in a public campaign to encourage those who were able to serve as poll workers, and distributed recruitment material to municipalities for their use. WEC staff added a “become a poll worker” function to MyVote to put potential poll workers in touch with municipal clerks. State employees were encouraged to serve. The WEC also developed online, video-based training that could be used by municipalities to meet their statutory duty to train poll workers. Finally,
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on April 2, Governor Evers authorized the Wisconsin National Guard to serve as poll workers. The WEC worked with the National Guard and local election officials to coordinate deployment, as well as developing online poll worker and election public health training for service members of the National Guard. Nearly 2,500 members of the National Guard were put on active duty on April 6 to begin screening and training. [WECPFOF 23-30]. 7. Guidance to Clerks. The WEC communicates regularly with the 1,850 municipalities and 72 counties who administer elections in Wisconsin. Given the unprecedented difficulties of the April 7 Election, the WEC sent more than 50 communications and guidance documents to clerks between March 12 and April 7. Normally, the WEC sends 10 such communications in that period and avoids communications in the week before an election. WEC staff prepared and distributed specific public health documents and held numerous webinars. On March 29, 2019, the WEC issued additional guidance regarding the “indefinitely confined” designation considering the COVID-19 pandemic. Wis. Stat. § 6.82 (2)(a). [WECPFOF 31-33]. 8. Consolidation of Polling Places. As a result of unknown in-person turnout and poll worker shortages, some jurisdictions consolidated polling places, moving multiple wards into the same polling place. Wisconsin Statute § 5.25 requires that polling places be established at least 30 days in advance of the election by the local governing body. Wis. Stat. § 5.25 (1). Due to the timing of the public health emergency and emergency orders, as well as public health guidance regarding who could enter certain types of care facilities, the WEC adopted a
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motion stating that municipal clerks may relocate or move polling places that were to be located in nursing homes, care facilities and other facilities as determined by the Wisconsin Department of Health Services or other local health officials without obtaining prior approval of the local governing body or municipal elections commission. [WECPFOF 34-35]. 9. Postmarks. Pursuant to Republican National Committee v. Democratic National Committee, a ballot had to be returned by 8:00 pm on April 7 or postmarked no later than April 7 and received by the clerk by April 13 to be counted. RNC v. DNC, 140 S. Ct. 1205 (April 6, 2020) (per curiam). Following the Court’s decision, the WEC worked with local election officials and representatives of the USPS to understand the way various postmarks are used. [WECPFOF 36]. 10. Other Postal Issues. Following the April 7 Election, WEC staff sent a letter to local, state, regional and national USPS representatives regarding ballots not received and outgoing ballots returned to municipalities, to which there has not been a response. [WECPFOF 37]. 11. Public Guidance. During the lead-up to the April 7 Election, the WEC issued frequent public guidance, including “Top 10 Things Voters Should Know about the April 7 Spring Election and Presidential Primary - COVID-19” which provided information on polling place consolidation and double-checking your polling place, deadlines to return absentee ballots following the Supreme Court’s decision, public health guidelines, curbside voting and a voter’s ability to return an absentee ballot to a polling place on Election Day. [WECPFOF 38].
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b. Litigation Related to the April 7 Election On March 19, 2020, the Democratic National Committee and Democratic Party of Wisconsin filed their complaint for declaratory and injunctive relief. [‘249 Case, Dkt. No. 1]. Two other lawsuits regarding the administration of the April 7 Election followed in short order. [’278 Case, Dkt. No. 1; ‘284 Case, Dkt. No. 1]. The Court and parties are well-aware of the proceedings that followed, including proceedings before the Court of Appeals for the Seventh Circuit and the United States Supreme Court. [see generally ‘249 Case, Dkt. No. 217, pp. 1-2]. Following the decision of the United States Supreme Court on April 6, 2020, in order to be counted for the April 7 Election, a voter’s absentee ballot either (1) had to be postmarked by election day and received by April 13, 2020 at 4:00 p.m. or (2) had to be hand-delivered to a polling place or clerk’s office by April 7 at 8:00 p.m. RNC v. DNC, 140 S.Ct. 1205 (April 6, 2020) (per curiam). The WEC issued immediate guidance to clerks and created new guidance to ensure that jurisdictions could securely suspend voting equipment to comply with this Court’s injunction regarding early result reporting, and followed up with an alert to all local election officials. [WECPFOF 39]. In addition to the litigation before this Court, plaintiffs sued in the United States District Court for the Eastern District of Wisconsin, requesting among other things that the election be postponed. Both suits were dismissed. City of Green Bay v. Bostelmann, No. 20-C-479, 2020 WL 1492975, *3 (E.D. Wis. March 27, 2020); Taylor v. Milwaukee Elec. Comm., No. 20-cv-545, 2020 WL 1695454 (E.D. Wis. April 6, 2020).
c. Absentee Ballots for the April 7 Election Voters cast a total of 964,433 absentee ballots by mail in the April 7 Election. [WECPFOF 40.] Voters cast a total of 1,555,263 ballots in the April 7 Election, meaning over 60% of total ballots were by-mail absentee. [WECPFOF 40.] Due to the combined increase of in-person and
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by-mail absentee voting, some municipal clerks and their staff were nearly overwhelmed and had to recruit assistance from other municipal departments or hire temporary staff. [WECPFOF 42.] Of the 1,303,985 absentee ballots sent by municipal clerks, 1,159,800 (or 88.94%) were returned and counted. Of those, 1,101,324 were returned on or before April 7. Seventy-nine thousand fiftyfour ballots were received between April 8 and April 13. According to reports from municipal clerks, 2,659 absentee ballots were returned after April 13 and could not be counted. [WECPFOF 43.]
The WEC is unable to determine how many voters were unable to cast a ballot for the April 7 Election due to the COVID-19 Pandemic. Municipal clerks and local election officials rejected 14,042 ballots due to insufficient certification and 5,526 because they were postmarked after election day. [WECPFOF 44.] There were 120,989 ballots which voters requested but did not return, which includes ballot requests cancelled either by a municipal clerk or by the voter, as well as 4,960 ballots that were returned as undeliverable. [WECPFOF 45.] The WEC investigated reported issues both in fulfilling ballot requests and in the United States Postal Service delivering those ballots. [WECPFOF 46.]
Municipal clerks faced the challenge of meeting this unprecedented demand for absentee ballots, in addition to their other duties including administering in-person absentee voting, preparing polling places and recruiting and training new election inspectors. [WECPFOF 41.] Hundreds of municipal clerks work alone and part time. [WECPFOF 41.]
d. In-Person Election Day Voting Subject to the consolidation described above, in-person election day voting was available in every jurisdiction on April 7. Voters cast 397,664 ballots through in-person election day voting.
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This represented 26% of the total ballots cast. Historically, that percentage is over 80%. [WECPFOF 47.]
B. Plans for November Election The WEC is underway with preparations for the November 3 Election, and is undertaking
additional steps in response to the COVID-19 crisis. Those steps are outlined in more detail in the WEC’s June 25 Status Report and discussed below.
ARGUMENT The WEC takes no position on the relief sought by the Plaintiffs in these consolidated cases. The WEC will briefly set forth the relevant standards for the Plaintiffs’ claims, along with a discussion of the relevant constitutional and statutory duties of the WEC, municipal clerks and boards of election, and the other statutes at issue. I. Standards A. Preliminary Injunctions To obtain an preliminary injunction, any plaintiff must show, “(1) that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action; (2) inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits.” [‘249 Case, Dkt. No. 37, p. 9, quoting Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017)]. Only if the moving party shows likelihood of success on the merits and a suffering of irreparable harm if the injunction does not issue, then “the court weighs the competing harms to the parties if an injunction is granted or denied and also considers the public interest.” Wis. Right to Life, Inc. v. Barland, 751 F.3d 904, 830 (7th Cir. 2014) (citation omitted). “The equitable balancing proceeds on a sliding-scale analysis; the greater the
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likelihood of success on the merits, the less heavily the balance of harms must tip in the moving party’s favor.” Id. (internal citation omitted).
A preliminary injunction is an extraordinary and drastic remedy and is never awarded as a matter of right. Munaf v. Geren, 553 U.S. 674, 689–90 (2008). “[A]n injunction requiring an affirmative act by the defendant” must be “cautiously viewed” and granted only “sparingly.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). “Preliminary relief is properly sought only to avert irreparable harm to the moving party.” Chi. United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006).
B. Constitutional Claims. a. Anderson-Burdick.
Each group of plaintiffs claims that Wisconsin imposes unconstitutional burdens on the right to vote. That question is governed by the Anderson-Burdick framework. Common Cause Ind. v. Individual Members of the Ind. Election Comm., 800 F.3d 913, 917 (7th Cir. 2015) citing Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). Anderson-Burdick is, “the proper standard under which to evaluate an equal protection challenge to laws that allegedly burden the right to vote of certain groups of voters.” One Wisconsin Inst. v. Thomsen, 198 F.Supp.3d 896, 929 (W.D. Wis. 2016) (internal citation omitted), aff’d in part, rev’d in part sub nom. Luft v. Evers, No 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020).
States retain the power to regulate their own elections. Burdick, 504 U.S. at 433; Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986). “A State indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989). The public also has a “strong interest” in exercising the constitutional right to vote. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). In recognition that election
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laws “invariably impose some burden upon individual voters,” Burdick, 504 U.S. at 433, the Anderson-Burdick framework involves a balancing of these interests, requiring this Court to consider, “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.” Id. at 434 (internal quotations omitted).
In addressing the Anderson-Burdick analysis, the Seventh Circuit stressed recently that a state’s election laws must be considered as a whole. Luft v. Evers, 2020 WL 3496860, *8. Quoting Burdick, the Seventh Circuit noted that the “right to vote in any manner….(is not) absolute.” Id., quoting Burdick, 504 U.S. at 433. Election laws impose some burdens upon voters, and “(c)ourts weigh those burdens against the state’s interests by looking at the whole electoral system” to determine if voting rights have been “severely restricted.” Luft, 2020 WL 3496860, *3.
b. Procedural Due Process Claims. The DNC and Swenson plaintiffs have made claims styled as procedural due process violations. Due process analysis requires consideration of three distinct factors in this context: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
The Court has previously held that “all First and Fourteenth Amendment challenges to state election laws” are analyzed under the Anderson-Burdick framework. [‘249 Case Dkt. No.
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217, p. 14, quoting Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019)]. The Court’s language in Burdick indicates that the test was applicable to all Fourteenth Amendment claims and did not provide a carve-out for claims of procedural due process violations. Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Anderson, 460 U.S. at 789.
C. Statutory Claims. a. Voting Rights Act. The Swenson plaintiffs have asserted a claim under Section 11(b) of the Voting Rights Act,
52 U.S.C. § 10307 (b). In general, that section prohibits anyone acting under color of law from engaging, or attempting to engage, in intimidating, threatening, or coercive conduct relative to voting. 52 U.S.C. § 10307 (b).
b. Americans With Disabilities Act. The Edwards plaintiffs and a subset of the Gear and Swenson plaintiffs have sought relief pursuant to the ADA. Title II of the ADA provides that, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Discrimination in violation of Title II can be shown by the failure to make “reasonable modifications in policies, practices, or procedures.” 28 C.F.R. § 35.130 (b)(7)(i). In order to prove discrimination in violation of Title II, “a plaintiff must show: (1) that he is a qualified individual with a disability; (2) that he was denied the benefits of the services, programs, or activities of a public entity or otherwise subjected to discrimination by such an entity; and (3) that the denial or discrimination was by reason of his disability.” Lacy v. Cook County,
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Illinois, 897 F.3d 847, 853 (7th Cir. 2018) (internal citations and quotations omitted).7 II. Plaintiffs’ Motions for Preliminary Injunctions
The WEC does not take a position on the elements of relief requested in the Plaintiffs’ respective motions for preliminary injunctions. In assessing those requests, however, the WEC asks this Court to be mindful of its statutory role within Wisconsin’s election system. As this Court is aware, the WEC does not have the authority to modify, waive or overrule Wisconsin’s election statutes. Wisconsin’s election statutes govern each election. Wis. Stat. § 5.01 (2); [‘249 Case, Dkt. No. 170, p. 6]. The WEC is charged with administering and enforcing those statutes. Wis. Stat. § 5.05; [WECPFOF 3]. Should this Court enter relief that is in effect as of the date of the November 2020 election, the WEC will be responsible for issuing appropriate guidance to implement that decision. Wis. Stats. § 5.05 (5t).
A. WEC’s Role and Authority. The WEC is made up of six members serving five-year terms. Wis. Stat. § 15.61 (1)(a).
Four members are appointed by specific members of the Wisconsin Legislature: the senate majority leader, the senate minority leader, the speaker of the assembly and the assembly minority leader. Wis. Stat. § 15.61 (1)(a). The two additional members are former county or municipal clerks, who are nominated by the Governor from lists prepared by the legislative leadership of the two major political parties. Wis. Stat. § 15.61 (1)(a)5. Any action by the WEC, except an action relating to its own internal procedures, requires a two-thirds vote of the Commission. Wis. Stat. § 5.05 (1e). Subject to limited exceptions, WEC meetings are public and recordings of those meetings are publicly available. Wis. Stat. §§ 19.81 (2); 19.83 (1); 19.851; 5.05 (6a) (a)1.
7 In addition to injunctive relief, the Edwards plaintiffs seek damages for alleged violations of the ADA relative to the Spring Election. The WEC defendants oppose that claim, as discussed in their memoranda in support of their Motion to Dismiss the Edwards plaintiffs’ amended complaint. [‘340 Case, Dkt. Nos. 14-15].
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Deliberations regarding advisory opinions are not open to the public. [WECPFOF 4.] The WEC’s Administrator, even as the chief elections officer in the state, is not statutorily empowered to modify laws concerning the conduct of elections. Wis. Stat. § 5.05 (3d)-(3g). The Administrator performs such duties as assigned by the WEC. Wis. Stat. § 5.05 (3d). The WEC Defendants will be bound by any decision the Court makes which impacts the election laws implicated in this case, and thereafter issue whatever guidance may be appropriate pursuant to Wis. Stat. § 5.05(5t).
The WEC has specific duties and authority pursuant to Wisconsin statutes, both generally and for each election. Among those duties, WEC prescribes the ballot form, and must include on each ballot form certain requirements. Wis. Stat. § 7.08 (1)(a). It also prescribes the necessary forms on which canvassers can report results, as well as forms for registration (including overseas, electronic, by-mail and same-day registration) and requesting an absentee ballot. Wis. Stat. §§ 7.08 (1)(c); 6.33 (1). The WEC publishes an election manual explaining the duties of election officials, the election laws and district maps. Wis. Stat. § 7.08 (3)-(5).
The WEC provides technical and direct support to municipal clerks on all aspects of election management. [WECPFOF 6.] This includes providing access to and maintaining the WisVote system and MyVote website, along with technical assistance for both. [WECPFOF 6.] WisVote allows clerks to track absentee requests across elections, creates records for issued ballots, and records whether the voter participated in the election and by what method. This system also permits the WEC to monitor compliance with Federal and State Uniformed Overseas Citizens Absentee Voting Act requirements. [WECPFOF 7.] The WEC is required to conduct regular information and training meetings for county and municipal clerks, as well as other election officials. Wis. Stat. § 5.05 (7). The WEC determines the training requirements for municipal clerks, as well as the content of the training that municipal clerks provide to inspectors. Wis. Stat.
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§ 7.315 (2); (1)(a); Wis. Adm. Code § EL 11-12. The WEC is required to audit voting systems used by the municipal clerks to determine the error rate and take or order remedial action if that rate exceeds the stated rate. Wis. Stat. § 7.08 (6). The WEC is required to coordinate with and assist local election officials and respond to inquiries. Wis. Stat. § 7.08 (11). It may also provide financial assistance to municipalities and counties in accordance with a State Election Administration Plan, which is subject to the approval of Legislature’s Joint Committee on Finance. Wis. Stat. §§ 5.05(10); 5.05(11). The WEC issues clerk communications, training materials and forms for local clerks, but ultimately municipal clerks are tasked with implementing any changes in policy or the law in their community.
The WEC is also required to conduct educational programs for voters. Wis. Stat. § 5.05 (12). The WEC maintains telephone and electronic systems by which voters can report voting fraud and voting rights violations, obtain general election information, and access information regarding registration status, polling locations and other election information. Wis. Stat. § 5.05 (13). The WEC provides information regarding registration and absentee ballot procedures to members of the uniformed services and overseas voters. Wis. Stat. § 6.06.
The WEC enforces certain standards related to elections. The WEC’s enforcement authority is generally complaint-based and initiated by voters. Wis. Stat. §§ 5.06 (1); 5.05 (2m); see also Wis. Adm. Code § EL 20.04. The WEC may also initiate investigations on its own motion. Wis. Stat. § 5.06 (4). Upon a finding that the local election official has abused his or her discretion, the WEC may issue an order to that official to conform to the law. Wis. Stat. § 5.06 (6). The WEC may bring civil actions and require a forfeiture or seek injunctive or other specific relief for violations of Wisconsin’s election statutes. Wis. Stat. § 5.05 (1)(c)-(d). The Attorney General or a district attorney may also sue to compel compliance, including compliance with section 2 of the
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Voting Rights Act. Wis. Stat. § 5.061; 5.08; 5.081. Under certain circumstances, the WEC may make referrals to a district attorney in a county in which an alleged violation occurred. Wis. Stat. § 5.05 (2m)(c)10-18.
The WEC’s mandate does not include an option to displace the authority of municipal clerks or boards of election. The WEC has limited rulemaking authority to ensure the “proper administration” of Wisconsin’s election statutes. Wis. Stat. § 5.05 (1)(f). As with other Wisconsin agencies, the WEC must follow a statutory procedure prior to issuing any such order. Wis. Stat. § 227.01 et seq.; See e.g. Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 15, 391 Wis. 2d 497, 513, 942 N.W.2d 900, 908. The WEC promulgates rules pursuant to grants of authority from the Wisconsin Legislature. Koschkee v. Taylor, 2019 WI 76, ¶ 15, 929 N.W.2d 600, 387 Wis. 2d 552. State agencies in Wisconsin “ha[ve] no inherent constitutional authority to make rules, and, furthermore, [their] rule-making powers can be repealed by the legislature.” Martinez v. DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992); Wis. Stat. § 227.19(1)(b)1. For example, the WEC’s predecessor agency, the Wisconsin Government Accountability Board, promulgated standards for the training and certification of election inspectors. Wis. Adm. Code § EL 11.01 et seq. The corresponding rulemaking authority is found in section 7.31 of the statutes: “The commission shall, by rule, prescript the contents of the training that municipal clerks must provide to inspectors, other than chief inspectors, and to special voting deputies appointed under s. 6.875.” Wis. Stat. § 7.31(1)(a).8 Chapter 227 does not provide plenary rule-making authority to Wisconsin’s state agencies, including the WEC. Wis. Stat. § 227.11(1).
8 See also Wis. Stat. 7.315 (2) (“The commission shall, by rule, prescribe requirements for, and the content of, training required of municipal clerks under s. 7.15 (1m). The commission may provide such training directly or arrange for such training to be provided by other organizations. The rules shall provide a method for notifying the relevant municipal governing body if a municipal clerk fails to attend required training.”); Wis. Adm. Code § EL 12, Certification and Training of Municipal Clerks; Wis. Stat. 7; Wis. Stat. § 7.08 (1)(d) (the WEC shall “[p]romulgate
rules for the administration of the statutory requirements for voting machines and electronic voting systems and
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Administrative agencies are creatures of the Legislature, with “only those powers as are expressly conferred or necessarily implied from the statutory provisions under which [they] operate.” Those statutes will be strictly construed to preclude the exercise of power not expressly granted. Any reasonable doubt regarding an agency’s implied power should be resolved against the agency. Since the Legislature has discretion to grant power to an agency, it follows that the Legislature can also retract that power. Wis. Op. Att’y Gen. OAG-01-16 (2016), https://docs.legis.wisconsin.gov/misc/oag/recent/oag_1_16 (internal citations and quotations omitted). Upon request, the WEC may issue formal or informal advisory opinions, “regarding the propriety under chs. 5 to 10 or 12 of any matter to which the person is or may become a party.” Wis. Stat. § 5.05 (6a)(a)1. To have legal effect, the WEC’s advisory opinions must be supported by a specific legal authority. Wis. Stat. § 5.05 (6a)(a)2. For each election, the WEC also produces and publishes the candidate list so that each county clerk can produce a ballot. Wis. Stat. § 7.08 (2). The WEC collects nomination papers for state office and seats on a metropolitan sewage commission, as well as petitions for names to be included in the presidential and congressional primaries. Wis. Stat. §§ 8.10 (6)(a); 8.12 (1)(c); 8.15 (8). The WEC promulgates rules for use by election officials in determining the validity of nominating papers. Wis. Stat. § 8.07; Wis. Adm. Code § EL 2, 6. The WEC then issues standardized notices to the county clerks certifying the list of candidates for any election. Wis. Stat. § 10.06 (1).
any other voting apparatus which may be introduced in this state for use at elections…”); Wis. Adm. Code § EL 7, Approval of Electronic Voting Equipment.
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B. Municipal Clerks’ Role and Authority. Like the WEC, municipalities in Wisconsin, including towns, villages and cities, have
duties and authorities derived from Wisconsin statutes. See generally Wis. Stat. chs. 60-62. Each municipality is required to have a clerk who performs certain duties. Wis. Stat. §§ 60.33 (duties of the town clerk); 61.25 (duties of the village clerk); 62.09 (11) (duties of the city clerk). Under Wisconsin’s decentralized election system, municipal clerks largely run Wisconsin’s elections. Wis. Stat. §§ 7.15 (1); 60.33 (4); 61.25 (1); 62.09 (7)(b). “Each municipal clerk has charge and supervision of elections and registration in the municipality.” Wis. Stat. 7.15 (1). This structure is consistent with Wisconsin’s status as a home rule state. Wis. Const. Art. 11, § 3; Wis. Stat. § 66.0101; see also Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶¶ 88-89, 358 Wis.2d 1, 851 N.W.2d 337. Wisconsin cities enjoy, “the largest measure of self-government compatible with the constitution and general law...” Wis. Stat. § 62.04. Municipal clerks administer absentee by mail, absentee in-person and election day in-person voting in their communities. Wis. Stat. § 7.15 (1), (2), (2m). In the City of Milwaukee, these duties are performed by the municipal Board of Election Commissioners. Wis. Stat. § 7.20 (1); Milwaukee Ord. 302-3.
Municipal clerks have the statutory responsibility for, inter alia: equipping polling places; purchasing and maintaining equipment; sending absentee ballots; and reassigning inspectors to address staffing shortages. Wis. Stat. § 7.15 (1)(a-k). The governing body of a municipality, or the board of elections, determines the number and location of polling places. Wis. Stat. § 5.25 (2). Municipal clerks staff polling places, train election officials, pay election officials and are charged with discharging election officials when required. Wis. Stat. §§ 7.30 (1); 7.03 (1)(a); 7.15 (1)(f). Wisconsin statutes define the requirements that municipal clerks must meet in establishing polling places. Wis. Stat. §§ 5.15; 5.25; 5.35. This includes rules on the minimum number of voting booths
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and ballot boxes, the layout and organization of the polling place and what must be posted. Wis. Stat. § 5.35. Municipalities determine whether to use electronic voting systems, subject to statutory and regulatory requirements, including rules to ensure the security of those systems. Wis. Stat. §§ 5.76; 5.77-5.95; 5.905 (3); Wis. Adm. Code § EL 7. The Municipal clerks are required to “make reasonable efforts to comply with requests for voting accommodations made by individuals with disabilities whenever feasible.” Wis. Stat. § 7.15 (14). Polling places must be accessible to individuals with disabilities. Wis. Stat. § 5.25 (4)(a).
The statutes also mandate the number of inspectors for each polling place at each election, which is either five or seven, depending on whether voting machines are used. Wis. Stat. § 7.30 (1)(a). Municipal governing bodies may, by ordinance, permit the municipal clerk to establish different working hours, increase the number of inspectors if there is more than one voting machine being used or provide for sets of inspectors to work at different times. Wis. Stat. § 7.30 (1). Inspectors maintain order in the polling place, distribute ballots to voters, are in charge of the poll lists, examine electronic voting systems and resolve certain challenges to voters, among other duties. Wis. Stat. § 7.37. Inspectors also process election-day registrations and provisional ballots for voters who do not provide proof of identification or residence. Wis. Stat. §§ 6.55; 6.97. Municipalities may reduce the number of election officials, but there must be three at any polling place. Wis. Stat. § 7.32. Municipalities may also authorize the municipal clerk to employ tabulators, who assist the election inspectors after the polls close. Wis. Stat. § 7.30 (3). In the limited circumstances in which the WEC employs an individual who performs duties which are the responsibility of a county or municipality, the WEC passes along that cost to the county or municipality. Wis. Stat. § 7.03 (2).
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Municipal clerks are required to mail a registration form upon request to any elector, as well as review registrations for sufficiency and notify proposed voters of any deficiencies. Wis. Stat. §§ 6.30 (4); 6.32. The WEC facilitates electronic registration through WisVote and notifies municipal clerks of each completed application. Wis. Stat. § 6.30. Conversely, municipal clerks, upon receipt of a new registration, change in registration, or change in a registration status, are required to enter that information into the official registration list maintained by the WEC. Wis. Stat. § 6.33 (5)(b); 6.50. The municipal clerk makes copies of the registration list for use in elections and provides copies to the candidates, subject to certain limitations. Wis. Stat. § 6.45. Municipal clerks also resolve challenges regarding registration. Wis. Stat. § 6.48.
Municipal clerks process, send and receive absentee ballots in Wisconsin. This includes ballots for military electors and overseas electors, as well as federal write-in absentee ballots. Wis. Stat. §§ 6.22 (4), (6); 6.24; 6.25. It also includes both in-person absentee voting and by-mail absentee voting. Wis. Stat. § 6.855; 6.86 (a). Municipal clerks are charged with confirming that an application for an absentee ballot is accompanied by proof of identification. Wis. Stat. § 6.86(1)(b); 6.87 (1); 6.87 (4)(b)2-4. Municipal clerks also process absentee ballot requests pursuant to specific procedures for voters who are indefinitely confined because of age, physical illness or disability; are hospitalized; or are a sequestered juror. Wis. Stat. § 6.86 (1)(b), (2), (3). Under Wisconsin statutes as written, municipal clerks also send absentee ballots to military or overseas voters via facsimile or e-mail. Wis. Stat. § 6.87 (3)(d)9. The WEC provides uniform instructions for absentee voters. Wis. Stat. § 6.869. The statutes prescribe the language of absentee ballot certifications, both by the voter and the witness. Wis. Stat. § 6.87 (2). Municipal clerks and inspectors are
9 This provision was modified by this Court’s decision One Wisconsin Institute v. Thomsen. 198 F. Supp. 3d at 904, order enforced, 351 F. Supp. 3d 1160 (W.D. Wis. 2019). The Court of Appeals for the Seventh Circuit recently issued its ruling in that case, reversing in part. Luft v. Evers, No. 16-3003, 2020 WL 3496860. The Court of Appeals has yet to issue its mandate. Fed. R. App. P. 41.
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responsible for processing returned absentee ballots including delivering those ballots to polling places or boards of absentee ballot canvassers on election day to be counted. Wis. Stat. § 6.88 (1)(2). Either the inspectors or canvassers review the absentee ballot envelope for, among other things, a properly completed certification. Wis. Stat. § 6.88 (3)(a)-(c); 7.52 (3).
C. County Clerks’ Role and Authority. Like the WEC and municipal clerks, county clerks in Wisconsin have election duties
defined by statute. Wis. Stat. § 59.23 (2)(i) (county clerks are the chief election officer of the county). County clerks are responsible for providing ballots for every election in the county for national, state and county offices and state and county referenda. Wis. Stat. § 7.10 (1)(a). County clerks are required to distribute ballots to municipal clerks no later than 48 days before partisan primaries and general elections and no later than 22 days before each other election. Wis. Stat. § 7.10 (3)(a). County clerks must distribute an adequate number of ballots to meet the municipal clerks’ obligation to supply absentee ballots. Wis. Stat. § 7.10 (3)(b). Ballot forms are subject to specific statutes. Wis. Stat. § 5.51 – 5.56 (general requirements for ballots, and requirements for spring primary, spring election, partisan primary and general election ballots). Any person shall be given an opportunity to register to vote at the office of the county clerk for the county in which the person's residence is located. Wis. Stat. § 6.28 (4). Some county clerks, by mutual consent, also provide voter registration services on behalf of municipalities within their county, including assistance with data entry into the WisVote system. See Wis. Stat. § 6.33 (5)(b), Apart from their responsibility to prepare and distribute ballots, county clerks also assist the WEC with voter education, elections information and training election officials. Wis. Stat. § 7.10 (7)-(9).
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D. Canvassing. Under Wisconsin’s statutory system, municipalities, counties and the WEC all have
separate but related authorities to conduct the canvass following an election. Inspectors immediately begin the canvass after the polls close. Wis. Stat. § 7.51 (1). This process involves comparing the poll lists and addressing any defective, blank, or challenged ballots. Wis. Stat. § 7.51 (2)(a)-(f). The inspectors then either count and record the number of votes or retrieve a record of the votes cast from the voting machines. Wis. Stat. § 7.51 (e), (g)-(h). The chief inspector or another inspector must then report that result to the municipal clerk. Wis. Stat. § 7.51 (4)(b).
The municipal clerk, in turn, must report results to the county clerk no later than two hours after tabulation. Wis. Stat. § 7.51 (4)(c). The county clerk must receive those reports and post returns on election night within two hours of receipt. Wis. Stat. § 7.60 (1). By statute, the municipal canvass cannot begin until the municipal board of canvassers has received the returns from all polling places in the municipality but must begin no later than 9 a.m. on the Monday after the election. Wis. Stat. § 7.53(2)(d). The county board of canvass must begin its canvass no later than 9 a.m. on the Tuesday after each election and must gather any unreported returns from the municipalities. Wis. Stat. § 7.60 (3). The county clerk then reports certain results of the county canvass to the WEC. Wis. Stat. § 7.60(5)(a). On election night, the WEC is required to post links to each county’s returns. Wis. Stat. § 5.05 (14)(c).
The WEC’s chairperson or the chairperson’s designee examines the certified statements of the county boards of canvass for material mistakes. Wis. Stat. § 7.70 (3)(b). The chairperson or their designee must begin the canvass no later than December 1 for the November Election, and must complete it within ten days. Wis. Stat. § 7.70 (3)(a), (c).
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III. WEC ROLE REGARDING RELIEF REQUESTED The WEC does not take a position on the merits of the specific elements of relief requested
in the plaintiffs’ respective motions for preliminary injunctions. In assessing those requests, however, the WEC asks this Court to be mindful of the WEC’s specific statutory role within Wisconsin’s election system. As this Court is aware, the WEC does not have the authority to modify, waive or overrule Wisconsin’s election statutes. To the contrary, the WEC is charged with administering and enforcing those statutes. Wis. Stat. § 5.05(1), (2). In addition, the WEC has limited authority over local officials, as state law provides that municipal clerks run elections and voter registration in their respective municipalities. Wis. Stat. § 7.15 (1), (2), (2m).
Some forms of relief requested by certain plaintiffs are premised on allegations that the WEC failed to perform its duties, when those “duties” are not within the purview of the WEC’s statutory functions. For example, the DNC and Swenson plaintiffs contend that the WEC should mandate that each municipality have an adequate number of polling places. By statute, the authority to designate polling places is vested in either a board of election commissioners or other local government officials. Wis. Stat. § 5.25 (2), (3). The same plaintiffs argue that the WEC must ensure that polling places are safe, such as by providing expanded curbside voting, reduce crowding at polling places, monitoring social distancing, providing appropriate sanitization, and require that voters and poll workers take precautions to avoid the spread of COVID-19. The Edwards plaintiffs request an order compelling the WEC defendants to adopt in-person election hygiene protocols issued by the CDC, issue guidance in accordance with those protocols and condition receipt of CARES Act grant funds upon a municipality’s written agreement to implement those protocols.
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Certainly, the WEC has undertaken measures to assist in safeguarding voting places, such as by facilitating the delivery of sanitation supplies before the April Election and by directing staff to spend federal CARES Act grant money to distribute sanitation supplies to all 72 counties in Wisconsin. [WECPFOF 48.] The WEC also has worked with public health officials to produce over 20 public health guidance documents for clerks, poll workers and the public. However, municipal clerks are delegated with specific responsibilities in regard to polling places, such as providing necessary equipment, and they are accorded the general responsibility to perform any duties “which may be necessary to properly conduct elections or registration.” Wis. Stat. § 7.15(1). Whatever injunctive relief, if any, that is granted in this case should be fashioned keeping in mind those who are statutorily charged with matters such as selecting and staffing polling places, mailing and processing absentee ballots, and running elections in general.
Other forms of relief sought are directed at problems the WEC has taken steps to address in the months since the pandemic was unleashed. Among the various forms of injunctive relief directed at the WEC defendants by the Swenson plaintiffs is an order to upgrade electronic voter registration systems. WisVote and MyVote are websites operated by the WEC that work in tandem. WisVote is the statewide voter registration data base where local officials enter voter registration information, among other things. [WECPFOF 7.] MyVote is the user interface for voters to be able to interact with that data. [WECPFOF 7.] Both are in the process of being upgraded to make them more efficient and enable municipal clerks to better handle the volume of absentee ballot requests in the upcoming elections. The changes to MyVote and WisVote are further summarized in the June 25 Status Report filed with the Court.
Both the Gear and Swenson plaintiffs point to significant problems with the delivery and return of absentee ballots in the Spring Election. The Swenson plaintiffs seek an order requiring
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that the WEC, “take all appropriate actions to ensure that all voters who request and are qualified to receive an absentee ballot in fact receive such absentee ballot…” [‘459 Case, Dkt. No. 40, p. 4]. The Gear plaintiffs contend that the WEC defendants “hold the ultimate responsibility to ensure delivery” of the mail, [‘249 Case, Dkt. No. 421, p. 26], and ask that all voters who request absentee ballots but do not receive them timely be able to access mail in ballots online. [‘249 Case, Dkt. No. 369, pp. 8-9]. The latter appeal requires a change in state law that is addressed below.
Aside from the obvious point that delivery of the mail is the responsibility of the United States Postal Service, the WEC did request information about the failed deliveries from the USPS, as has at least one municipality. [WECPFOF 37.] The WEC is spending up to $400,000 of federal CARES Act grant funds to develop Intelligent Mail Barcodes (IMBs). IMBs will enable clerks and voters using WisVote and MyVote, respectively, to track absentee ballots through the mail stream. The process is described in more detail in the Status Report submitted to the Court. [‘249 Case, Dkt. No. 227, p. 6; [WECPFOF 48]. Finally, it is municipal clerks who process, send and receive absentee ballots in Wisconsin. Wis. Stat. § 7.15 (1); 6.86 et seq. The WEC does not have the statutory authority to assume that responsibility.
Most of the remedies sought by the various plaintiffs are precluded under current state law and, therefore, would require a court order or action by the Legislature. The DNC plaintiffs concede that nearly all the relief they are seeking requires Court action “because there is nothing left for the Commission to do.” [‘249 Case, Dkt. No. 420, p. 24]. The Swenson plaintiffs concur that “(a)bsent judicial intervention, (the WEC) Defendants will be powerless to make necessary adjustments that run afoul of these statutory mandates.” [‘459 Case, Dkt. No. 41, p. 23]. The Edwards plaintiffs as well recognize the statutory constraints upon the WEC’s ability to provide
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many of the remedies sought. [‘249 Case, Dkt. No. 397, p. 32]. Among the forms of relief sought by one or more groups of plaintiffs that would require judicial intervention are the following:
• The DNC, Gear and Swenson plaintiffs assert that the WEC’s suggestions for fulfilling the witness requirement for an absentee ballot are either insufficient or unreasonable. The Edwards plaintiffs also seek relief from the witness requirement for those who do not reside with a competent witness. The witness certification language and witness requirement are mandated under state law. At present, the WEC may not issue guidance or promulgate a rule that does not require a witness certification and signature as prescribed in Wis. Stat. § 6.87(2), (4)(b).
• The DNC and Edwards plaintiffs seek to enjoin enforcement of the proof of identification requirements to obtain absentee ballots set forth in Wis. Stats. §§ 6.86(1)(ac) and 6.87(1). The Seventh Circuit has previously approved Wisconsin’s Photo ID requirement, subject to certain qualifications. Frank v. Walker (Frank I), 768 F.3d 744 (2014); Frank v. Walker (Frank II), 819 F.3d 384 (2016); Luft, 2020 WL 3496860, *1. The DNC plaintiffs also seek to enjoin enforcement of the proof of residency requirement set forth in Wis. Stat. § 6.34(3) until the COVID-19 crisis is over. Luft, 2020 WL 3496860, *7.
• The Edwards and Swenson plaintiffs seek to enjoin enforcement of Wis. Stat. § 7.30(2), which requires each election official to be a qualified elector of the county in which he or she is serving. The Swenson plaintiffs seek an order directing the WEC to take appropriate actions to ensure that there are adequate numbers of poll workers. The WEC is encouraging counties and municipalities to solicit election officials for the upcoming elections, [‘249 Case, Dkt. No. 227, p. 11], but the role
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of nominating and selecting election officials is delegated to local officials and the political parties under Wis. Stat. § 7.30(4). • The Swenson and DNC plaintiffs seek to enjoin enforcement of the requirement in Wis. Stat. § 6.87(6) that absentee ballots not delivered to the polling place by 8 p.m. on election day not be counted. Both groups offer alternatives, one which involves counting all absentee ballots postmarked by election day or received within a week of election day (Swenson), and the other requesting that absentee ballots be counted up to ten days after election day, so long as they are postmarked (as defined in ‘249 Case, Dkt. No. 420, p. 7 n.7) by election day. Clearly, the relief sought by the DNC plaintiffs will require a determination how to handle absentee ballots without a postmark. The solution posed by them, a presumption of timely mailing absent a preponderance of evidence to the contrary, may require further judicial guidance. • The DNC plaintiffs seek to extend electronic and by mail voter registration deadlines until October 30, 2020. Currently, state law requires mail in registrations to be received by the clerk or postmarked no later than the third Wednesday preceding the election. Electronic registrations must be received by 11:59 pm on the third Wednesday preceding the election. Wis. Stat. § 6.28(1). • The Swenson and Edwards plaintiffs request that the Court enjoin enforcement of Wis. Stat. §§ 6.88, 7.51 and 7.52 to allow absentee ballots to be counted prior to election day. Section 6.88 (3) requires that except where absentee ballots are canvassed pursuant to § 7.52, envelopes containing absentee ballots be opened in public view during polling hours on election day and examined to verify that the elector is qualified and has not voted, that the ballot is properly endorsed and that
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it is accompanied by proof of residence. Section 7.51 (1) provides that canvassing of all votes shall begin after the polls close. Section 7.52 (1)(a) provides that by municipal ordinance, canvassing of absentee ballots may be done on election day between the opening of the polls and 10 p.m. by a board of absentee ballot canvassers at a publicly noticed site. • The Swenson and Edwards plaintiffs seek to enjoin enforcement of Wis. Stat. § 6.855 (1) insofar as it requires that sites other than the office of the municipal clerk or board of election commissioners used to request and vote absentee ballots be designated “no fewer than 14 days prior to the time that absentee ballots are available for the primary” or, if there is no primary election, “at least 14 days prior to the time that absentee ballots are available for the election.” The Court should be aware that, pursuant to statute municipal clerks designated alternative absentee ballot sites in June. [WECPFOF 49] • The Edwards plaintiffs request that the Court enjoin enforcement of Wis. Stat. § 6.86 (1)(b), which they contend limits in-person absentee voting to the period 14 days before the election and ending the Sunday before the election. [‘249 Case, Dkt. No. 395, p. 4]. The time limits referenced in that section set forth the period within which in person applications for absentee ballots shall be made. Wis. Stat. § 6.86 (1)(b). See Luft, 2020 WL 3496860, *7. • The Edwards plaintiffs seek an order compelling the WEC defendants to direct municipal clerks to send absentee ballots to all registered voters on the voter rolls as of September 30, 2020. Currently, Wis. Stat. § 6.86 sets forth methods by which
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absentee ballots may be obtained and does not include any provision for sending absentee ballots to all registered voters. • The Gear plaintiffs request that the Court enjoin enforcement of Wis. Stat. § 6.87 (3)(d), which restricts electronic access to absentee ballots to military and overseas voters. The Gear plaintiffs wish to extend electronic access to ballots to those who timely requested, but did not receive, ballots by mail. After Luft v. Evers, municipal clerks will be prohibited from sending ballots via facsimile or email to anyone other than military or overseas voters. Wis. Stat. § 6.87 (3)(d); Luft, 2020 WL 3496860, *7. As stated, WEC defendants take no position with respect to the injunctive relief the plaintiffs seek in regard to the statutes cited, but only wish to emphasize that the WEC is not allowed to afford any aspect of such relief, including guidance or rule-making, absent legislative action or a judicial order addressing the statutes at issue.
CONCLUSION As set forth herein, the WEC defendants take no position with respect to the injunctive relief the plaintiffs seek in the four consolidated cases. The WEC is a function of the Wisconsin statutes and has no authority to overrule, waive or otherwise disregard Wisconsin’s election laws, including statutes related to absentee ballots and the decentralized structure of Wisconsin election administration. Wis. Stat. § 5.05. The WEC will be bound by any decision of the Court and will take any steps or issue any guidance required. Wis. Stat. sec. 5.05 (5t).
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Dated this 20th day of July, 2020.
345 W. Washington Avenue, Suite 201 P.O. Box 2965 Madison, WI 53701-2965 Phone: (608) 282-6200 Fax: (608) 282-6252 dgahnz@lawtoncates.com dbach@lawtoncates.com dlenz@lawtoncates.com tpolich@lawtoncates.com

LAWTON & CATES, S.C.
/s/Daniel S. Lenz Dixon R. Gahnz, SBN: 1024367 Daniel P. Bach, SBN: 1005751 Daniel S. Lenz, SBN: 1082058 Terrence M. Polich, SBN: 1031375

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 Case: 3:20-cv-00249-wmc Document #: 448 Filed: 07/20/20 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Sylvia Gear, Malekeh K. Hakami, Patricia Ginter, Claire Whelan, Wisconsin Alliance for Retired Americans, League of Women Voters of Wisconsin,
Plaintiffs,
v.
Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, in their official capacity as members of the Wisconsin Elections Commission, Meagan Wolfe, in her official capacity as the Administrator of the Wisconsin Elections Commission,
Defendants,
and
Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

No. 3:20-cv-278-wmc
(consolidated with Nos. 3:20-cv-249-wmc, 3:20-cv-284-wmc, 3:20cv-340-wmc, and 3:20cv-459-wmc)

THE WISCONSIN LEGISLATURE’S MOTION TO DISMISS THE GEAR PLAINTIFFS’ AMENDED COMPLAINT

Under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and this Court’s inherent authority to stay a case, Intervenor-Defendant the Wisconsin Legislature (“Legislature”) hereby submits this Motion to Dismiss the Gear Plaintiffs’ Amended Complaint. The Legislature sets forth the grounds for this Motion in its Omnibus Brief, filed in these consolidated cases. For the reasons set forth in this supporting Omnibus Brief, the Legislature respectfully requests that this Court grant its motion.

Case: 3:20-cv-00249-wmc Document #: 448 Filed: 07/20/20 Page 2 of 3

Dated this 20th day of July, 2020.

Respectfully submitted,

ERIC M. MCLEOD (State Bar No. 1021730) LANE E. RUHLAND (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Counsel for Legislature in DNC
SCOTT A. KELLER BAKER BOTTS LLP 700 K Street, N.W. Washington, DC 20001 (202) 639-7837 (202) 585-1023 (fax) scott.keller@bakerbotts.com
Counsel for Legislature in Gear

/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record (State Bar No. 1102199) ROBERT E. BROWNE, JR. (State Bar No. 1029662) KEVIN M. LEROY (State Bar No. 1105053) SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com robert.browne@troutman.com kevin.leroy@troutman.com sean.dutton@troutman.com
KASIA HEBDA TROUTMAN PEPPER HAMILTON SANDERS LLP 600 Peachtree Street NE, Suite 3000 Atlanta, GA 30308 (404) 885-3665 kasia.hebda@troutman.com
Counsel for Legislature in DNC, Gear, and Swenson and for Legislative Defendants in Edwards

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Case: 3:20-cv-00249-wmc Document #: 448 Filed: 07/20/20 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 20th day of July, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

Case: 3:20-cv-00249-wmc Document #: 449 Filed: 07/20/20 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Jill Swenson, Melody McCurtis, Maria Nelson, Black Leaders Organizing for Communities, Disability Rights Wisconsin,
Plaintiffs,
v.
Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, Commissioners of the Wisconsin Elections Commission; Meagan Wolfe, Administrator of the Wisconsin Elections Commission,
Defendants
and
Republican National Committee, Republican Party of Wisconsin, and Wisconsin Legislature,
Intervenor-Defendants.

No. 3:20-cv-459-wmc
(consolidated with Nos. 3:20-cv-249-wmc, 3:20-cv-278-wmc, 3:20cv-284-wmc, and 3:20cv-340-wmc)

THE WISCONSIN LEGISLATURE’S MOTION TO DISMISS THE SWENSON PLAINTIFFS’ AMENDED COMPLAINT

Under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and this Court’s inherent authority to stay a case, Intervenor Defendant the Wisconsin Legislature (“Legislature”) hereby submits this Motion to Dismiss the Swenson Plaintiffs’ Amended Complaint. The Legislature sets forth the grounds for this Motion in its Omnibus Brief, filed in these consolidated cases. For the reasons set forth in this supporting Omnibus Brief, the Legislature respectfully requests that this Court grant its motion.

Case: 3:20-cv-00249-wmc Document #: 449 Filed: 07/20/20 Page 2 of 3
Dated this 20th day of July, 2020
Respectfully Submitted,
/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record (State Bar No. 1102199) ROBERT E. BROWNE, JR. (State Bar No. 1029662) KEVIN M. LEROY (State Bar No. 1105053) SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com robert.browne@troutman.com kevin.leroy@troutman.com sean.dutton@troutman.com
KASIA HEBDA TROUTMAN PEPPER HAMILTON SANDERS LLP 600 Peachtree Street NE, Suite 3000 Atlanta, GA 30308 (404) 885-3665 kasia.hebda@troutman.com
Counsel for Legislature
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Case: 3:20-cv-00249-wmc Document #: 449 Filed: 07/20/20 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 20th day of July, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 1 of 139

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and Democratic Party of Wisconsin,
Plaintiffs, v. Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, in their official capacities as Wisconsin Elections Commissioners,
Defendants, and Republican National Committee, Republican Party of Wisconsin, and the Wisconsin State Legislature,
Intervenor-Defendants.

No. 3:20-cv-249-wmc (consolidated with Nos. 3:20-cv-278-wmc, 3:20-cv-284-wmc, 3:20cv-340-wmc, and 3:20cv-459-wmc)

WISCONSIN LEGISLATURE AND LEGISLATIVE DEFENDANTS’ OMNIBUS BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTIONS
FOR PRELIMINARY INJUNCTION AND IN SUPPORT OF THEIR MOTIONS TO DISMISS

(Signature block for Intervenor-Defendant Wisconsin Legislature and Legislative Defendants on following page)

Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 2 of 139

ERIC M. MCLEOD LANE E. RUHLAND HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Counsel for Legislature in DNC
SCOTT A. KELLER BAKER BOTTS LLP 700 K Street, N.W. Washington, DC 20001 (202) 639-7837 (202) 585-1023 (fax) scott.keller@bakerbotts.com
Counsel for Legislature in Gear

MISHA TSEYTLIN Counsel of Record ROBERT E. BROWNE, JR. KEVIN M. LEROY SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street, Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com robert.browne@troutman.com kevin.leroy@troutman.com sean.dutton@troutman.com
KASIA HEBDA TROUTMAN PEPPER HAMILTON SANDERS LLP 600 Peachtree Street NE, Suite 3000 Atlanta, GA 30308 (404) 885-3665 kasia.hebda@troutman.com
Counsel for Legislature in DNC, Gear, and Swenson and for Legislative Defendants in Edwards

Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 3 of 139
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1 BACKGROUND ............................................................................................................. 5
A. Wisconsin’s Regulation Of Elections............................................................. 5 1. Registering To Vote .................................................................................. 5 2. Voting........................................................................................................ 6 a. Absentee Voting .................................................................................. 6 b. Election Day Voting ............................................................................ 9 c. Disabled, Indefinitely Confined, And Hospitalized Electors........... 10 3. Election Administration ......................................................................... 11
B. The April 7, 2020 Election........................................................................... 13 C. Post-April 7 Developments .......................................................................... 15 D. Plaintiffs’ Complaints And Preliminary Injunction Motions ..................... 18 ARGUMENT ................................................................................................................ 22 I. Plaintiffs Are Not Entitled To Any Preliminary Injunctive Relief ................. 22 A. Plaintiffs Have No Likelihood Of Success On The Merits ......................... 22
1. Anderson/Burdick Claims ...................................................................... 22 a. Luft Forecloses These Claims Because Wisconsin Voters Have Multiple Readily Available Voting Options ..................................... 25 i. Wisconsin’s Mail-In Absentee Voting Options Are Independently Constitutionally Adequate ................................. 27 ii. Wisconsin’s Multiple In-Person Voting Options Are Independently Constitutionally Adequate ................................. 31 iii. If Some Extremely Rare Series Of Events Renders All Of These Options Reasonably Unavailable To Some Unfortunate Voter In November, That Voter Can Seek AsApplied Relief Then ..................................................................... 40 b. Even If This Court Looks At Each Provision “In Isolation,” Contrary To Luft, Each Is Constitutional........................................ 41 i. The Election-Integrity Provisions ............................................... 41 (I) The Witness-Signature Requirement .................................... 42 (II)The Proof-Of-Residence Requirement ................................... 48 (III) The Photo-ID Requirement .............................................. 50

Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 4 of 139
ii. Registration Deadlines ................................................................ 52 iii. Absentee-Ballot Related Provisions............................................ 55
(I) Absentee-Ballot Delivery Deadline ....................................... 55 (II)Emailing Or Faxing Absentee Ballots................................... 62 iv. The Commission’s Provision Of Voter Education....................... 66 v. Deadline For Designating In-Person-Absentee Locations And The Residency Requirement For Polling-Place Inspectors ..................................................................................... 68 2. Procedural Due Process Claims ............................................................. 70 3. Equal Protection/Bush v. Gore Claims.................................................. 79 4. Americans With Disabilities Act Claims............................................... 85 a. The Swenson Plaintiffs’ ADA Claims............................................... 87 b. The Gear Plaintiffs’ ADA Claim ....................................................... 91 c. The Edwards Plaintiffs’ ADA Claims............................................... 93 5. Voter-Intimidation Claim Under The Voting Rights Act ..................... 94 6. The Court Lacks Jurisdiction In Various Respects ............................ 100 a. Plaintiffs Continue To Seek Relief That They Could Only Obtain Against Nonparty Local Election Officials ........................ 100 b. The Swenson Plaintiffs Lack Standing To Assert Their ADA Claim Regarding “Accessible Online Ballots” ................................ 105 c. Plaintiffs’ Claims Remain Unripe .................................................. 108 d. Burford Abstention Bars Plaintiffs’ Claims ................................... 111 B. Plaintiffs Fail To Meet Their Burden On The Equitable Elements ........ 112 1. Plaintiffs Have Ample Means To Vote In The November 2020 Election, Thus They Suffer No Irreparable Harm .............................. 112 2. Enjoining The Commission From Complying With The Numerous Election Laws Challenged Here Irreparably Harms The State, And Is Not In The Public Interest ....................................................... 113 II. The Court Should Dismiss The Gear And Swenson Operative Complaints ...................................................................................................... 114 A. Luft Requires Dismissal Of All Of The Anderson/Burdick Claims ......... 115 B. The Gear And Swenson Plaintiffs’ ADA Claims Fail As A Matter Of Law ............................................................................................................. 118
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 5 of 139 C. The Swenson Plaintiffs’ Procedural-Due-Process Claim Fails As A Matter Of Law ........................................................................................... 120 D. The Swenson Plaintiffs’ Equal Protection/Bush v. Gore Claim Fails As A Matter Of Law................................................................................... 121 E. The Swenson Plaintiffs’ VRA Voter Intimidation Claim Fails As A Matter Of Law ........................................................................................... 121 F. This Court Lacks Jurisdiction Over Both Complaints In Various Respects...................................................................................................... 122 G. This Court Should Dismiss Both Complaints Under Burford Abstention .................................................................................................. 124
CONCLUSION........................................................................................................... 125
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 6 of 139
TABLE OF AUTHORITIES
Cases A.H. by Holzmueller v. Ill. High Sch. Ass’n,
881 F.3d 587 (7th Cir. 2018) ............................................................... 86, 93, 119 Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ......................................................................................... 108 Abbott v. Perez,
138 S. Ct. 2305 (2018) ............................................................................. 113, 114 Acevedo v. Cook Cty. Officers Electoral Bd.,
925 F.3d 944 (7th Cir. 2019) ............................................................... 71, 73, 120 Adkins v. VIM Recycling, Inc.,
644 F.3d 483 (7th Cir. 2011) ........................................................................... 111 Albright v. Oliver,
510 U.S. 266 (1994) ................................................................................... 71, 120 Anderson v. Celebrezze,
460 U.S. 780 (1983) ............................................................................. 23, 24, 111 Apex Digital, Inc. v. Sears, Roebuck & Co.,
572 F.3d 440 (7th Cir. 2009) ........................................................................... 115 Ashcroft v. Iqbal,
556 U.S. 662 (2009) ......................................................................................... 115 Bershatsky v. Levin,
99 F.3d 555 (2d Cir. 1996) (per curiam) ........................................................... 95 Bible v. United Student Aid Funds, Inc.,
799 F.3d 633 (7th Cir. 2015) ................................................................... 115, 117 Blanchette v. Conn. Gen. Ins. Corps.,
419 U.S. 102 (1974) ......................................................................................... 109 Burdick v. Takushi,
504 U.S. 428 (1992) ................................................................................... passim Burford v. Sun Oil Co.,
319 U.S. 315 (1943) ......................................................................................... 111 Bush v. Gore,
531 U.S. 98 (2000) (per curiam).................................................... 79, 80, 81, 121 Cal. Council of the Blind v. Cty. of Alameda,
985 F. Supp. 2d 1229 (N.D. Cal. 2013) ..................................................... 90, 108 Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) ........................................................................................... 23
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 7 of 139
Califano v. Sanders, 430 U.S. 99 (1977) ........................................................................................... 108
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........................................................................................... 112
Clingman v. Beaver, 544 U.S. 581 (2005) ........................................................................................... 49
Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597 (7th Cir. 2016) ................................................................. 52, 67, 83
Common Cause/New York v. Brehm, 432 F. Supp. 3d 285 (S.D.N.Y. 2020) .............................................................. 105
Courthouse News Serv. v. Brown, 908 F.3d 1063 (7th Cir. 2018) ........................................................................... 22
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ................................................................................... passim
Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312 (11th Cir. 2019) ....................................................................... 105
Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575 (D.N.J. 2009).................................................................... 95
Denius v. Dunlap, 330 F.3d 919 (7th Cir. 2003) ........................................................................... 114
Disability Rights Wis., Inc. v. Walworth Cty. Bd. of Supervisors, 522 F.3d 796 (7th Cir. 2008) ........................................................... 106, 107, 108
Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) ...................................................................... 90, 108
Drenth v. Boockvar, No. 1:20-cv-829, 2020 WL 2745729 (M.D. Pa. May 27, 2020) ....................... 108
E & E Hauling, Inc. v. Forest Preserve Dist., 821 F.2d 433 (7th Cir. 1987) ........................................................................... 111
Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214 (1989) ................................................................................... passim
F.T.C. v. Elders Grain, Inc., 868 F.2d 901 (7th Cir. 1989) ........................................................................... 114
Fenton v. Dudley, 761 F.3d 770 (7th Cir. 2014) ............................................................................. 95
Frank v. Walker, 196 F. Supp. 3d 893 (E.D. Wis. 2016)............................................................. 103
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 8 of 139
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) ..................................................................... passim
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ..................................................................... passim
Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (per curiam)........................................................ 46
Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) ................................................................... passim
Hildreth v. Butler, 960 F.3d 420 (7th Cir. 2020) ......................................................... 86, 88, 90, 118
Hummel v. St. Joseph Cty. Bd. of Comm’rs, 817 F.3d 1010 (7th Cir. 2016) ......................................................................... 107
Jefferson v. Dane Cty., 2020AP557-OA (Wis. Mar. 31, 2020) ......................................................... 83, 84
John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ........................................................................................... 23
Knutson v. Vill. of Lakemoor, 932 F.3d 572 (7th Cir. 2019) ............................................................................. 71
League of Women Voters of Minn. Educ. Fund v. Simon, No. 0:20-cv-1205 (D. Minn. June 23, 2020) ...................................................... 48
Lehn v. Holmes, 364 F.3d 862 (7th Cir. 2004) ................................................................... 109, 122
Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) ................................................................... 79, 121
Love v. Westville Corr. Ctr., 103 F.3d 558 (7th Cir. 1996) ..................................................................... passim
Luft v. Evers, ___ F.3d ___, No. 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020).. passim
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................................... passim
LULAC – Richmond Regulation Council v. Pub. Interest Legal Found., No. 1:18-cv-00423, 2018 WL 3848404 (E.D Va. Aug. 13, 2018) ................ 98, 99
Marston v. Lewis, 410 U.S. 679 (1973) ............................................................................... 49, 51, 53
Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................... passim
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 9 of 139
Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) ....................................................................... 32, 53
Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam)................................................................ 22, 93
McDonald v. Bd. of Election Comm’rs, 394 U.S. 802 (1969) ..................................................................................... 32, 62
Merrill v. People First of Ala., No. 19A1063 (U.S. July 2, 2020)............................................................. 3, 44, 48
Nader v. Keith, 385 F.3d 729 (7th Cir. 2004) ............................................................................. 42
Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) ........................................................................... 108
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989) ................................................................................. 111, 124
Nken v. Holder, 556 U.S. 418 (2009) ......................................................................................... 113
O’Brien v. Skinner, 414 U.S. 524 (1974) ..................................................................................... 32, 62
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002) ............................................................................. 85
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) ..................................................................... 94, 122
One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016).............................................................. 67
P.F. by A.F. v. Taylor, 914 F.3d 467 (7th Cir. 2019) ............................................................................. 86
Parson v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016) .................................................. 94, 96, 122
People First of Ala. v. Sec’y of State, No. 20-12184, 2020 WL 3478093 (11th Cir. June 25, 2020)........................ 3, 46
Powell v. Power, 436 F.2d 84 (2d Cir. 1970) .................................................................. 95, 97, 122
Protect Marriage Ill. v. Orr, 463 F.3d 604 (7th Cir. 2006) ......................................................... 71, 75, 78, 121
Pullman Co. v. Knott, 235 U.S. 23 (1914) ........................................................................................... 109
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 10 of 139
Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam).............................................................. 41, 43, 58
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (per curiam).......................................................... passim
Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143 (7th Cir. 2010) ......................................................................... 115
Reynolds v. Sims, 377 U.S. 533 (1964) ........................................................................................... 41
Rosario v. Rockefeller, 410 U.S. 752 (1973) ............................................................................... 53, 54, 56
Rural Cmty. Workers All. v. Smithfield Foods, Inc., 2020 WL 2145350 (W.D. Mo. May 5, 2020).................................................... 113
SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010) ................................................................... 112, 125
Stevo v. Keith, 546 F.3d 405 (7th Cir. 2008) ....................................................................... 58, 69
Tennessee v. Lane, 541 U.S. 509 (2004) ..................................................................... 86, 87, 118, 119
Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) ............................................................. 3, 32, 42, 77
Texas v. United States, 523 U.S. 296 (1998) ................................................................................. 109, 122
Thomas v. Andino, No. 3:20-CV-01552-JMC, 2020 WL 2617329 (D.S.C. May 25, 2020) .............. 48
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ..................................................................................... 53, 56
Toeller v. Wis. Dep’t of Corr., 461 F.3d 871 (7th Cir. 2006) ............................................................................. 86
U.S. by Katzenbach v. Original Knights of Ku Klux Klan, 250 F. Supp. 330 (E.D. La. 1965).............................................................. 99, 100
United States v. Clark, 249 F. Supp. 720 (S.D. Ala. 1965)..................................................................... 99
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) ..................................................................... 94, 122
United States v. Stadfield, 689 F.3d 705 (7th Cir. 2012) ................................................................. 89, 92, 93
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 11 of 139
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc) ............................................................. 42
W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670 (7th Cir. 2016) ................................................................... 115, 117
Wagoner v. Lemmon, 778 F.3d 586 (7th Cir. 2015) ..................................................................... passim
Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968) ............................................................................. 95
Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012) ........................................................................... 112
Willingham v. Cty. of Albany, 593 F. Supp. 2d 446 (N.D.N.Y. 2006) ................................................. 95, 97, 122
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................................................... 22, 112, 113
Wis. Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020) ..................................................................... 15, 102
Wrinn v. Dunleavy, 440 A.2d 261 (Conn. 1982) ................................................................................ 42
Statutes 42 U.S.C. § 12131......................................................................................................... 85 42 U.S.C. § 12132......................................................................................................... 85 42 U.S.C. § 1973i.......................................................................................................... 95 52 U.S.C. § 10101......................................................................................................... 98 52 U.S.C. § 10307................................................................................................. passim Ala. Code § 17-11-10 .................................................................................................... 44 Fed. R. Civ. P. 12 ....................................................................................................... 115 Fed. R. Evid. 201........................................................................................................ 114 Wis. Stat. § 227.10 ..................................................................................................... 102 Wis. Stat. § 227.11 ..................................................................................................... 102 Wis. Stat. § 5.05 ................................................................................................... passim Wis. Stat. § 5.25 ................................................................................................... passim Wis. Stat. § 6.28 ........................................................................................... 6, 18, 52, 53 Wis. Stat. § 6.29 ................................................................................................. 6, 52, 53 Wis. Stat. § 6.34 ................................................................................................... passim
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 12 of 139
Wis. Stat. § 6.55 ........................................................................................... 6, 52, 53, 54 Wis. Stat. § 6.76 ................................................................................................. 9, 31, 66 Wis. Stat. § 6.78 ....................................................................................................... 9, 66 Wis. Stat. § 6.79 ............................................................................................................. 9 Wis. Stat. § 6.80 ................................................................................................. 9, 31, 66 Wis. Stat. § 6.82 ............................................................................................. 11, 88, 118 Wis. Stat. § 6.85 ....................................................................................................... 6, 27 Wis. Stat. § 6.855 ................................................................................................. passim Wis. Stat. § 6.86 ................................................................................................... passim Wis. Stat. § 6.869 ................................................................................................. passim Wis. Stat. § 6.87 ................................................................................................... passim Wis. Stat. § 6.88 ........................................................................................... 8, 21, 27, 77 Wis. Stat. § 7.10 ................................................................................................... passim Wis. Stat. § 7.15 ................................................................................................... passim Wis. Stat. § 7.30 ......................................................................................... 11, 21, 69, 70 Wis. Stat. § 7.50 ........................................................................................................... 21 Wis. Stat. § 7.51 ................................................................................................. 8, 21, 77 Wis. Stat. § 7.52 ....................................................................................................... 8, 77 Wis. Stat. § 85.21 ......................................................................................................... 10
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INTRODUCTION1 Several of the Plaintiffs here have already unsuccessfully brought a wholesale challenge to the application of Wisconsin’s longstanding election laws leading up to the April 7 Election, in light of COVID-19. In the first round of litigation, the only relief that this Court ordered was premised on the sudden, unexpected onset of COVID-19 in the weeks preceding the election—which, this Court emphasized, “no one saw” coming, such that voters did not have time to adjust their behavior in certain respects. Dkt. 181 at 127:19–128:7.2 Even as to that limited relief, the Seventh Circuit overturned one part, and the Supreme Court overturned another. Now various Plaintiffs challenge many of the same provisions of Wisconsin’s election laws for the November Election, while adding still more claims against additional state statutes. These claims, taken together, ask this Court to use COVID19 as a license to take Wisconsin’s comprehensive election regime into federal-court receivership. But all of Plaintiffs’ sweeping claims have no likelihood of success, which is reason enough to deny their preliminary injunction requests. As a threshold matter, Plaintiffs still refuse to sue the correct defendants—the high-ranking local
1 This Omnibus Brief is filed on behalf of Intervenor-Defendant Wisconsin Legislature in Democratic National Committee v. Bostelmann, No. 3:20-cv-249-wmc (“DNC”), Gear v. Knudson, No. 3:20-cv-278-wmc, and Swenson v. Bostelmann, 3:20-cv-459-wmc, and Legislative Defendants Speaker Robin Vos, Majority Leader Scott Fitzgerald, the Wisconsin State Assembly, and the Wisconsin State Senate in Edwards v. Vos, No. 3:20-cv-340-wmc. This Omnibus Brief will collectively refer to Intervenor-Defendant Wisconsin Legislature and Legislative Defendants as “the Legislature,” unless context indicates otherwise.
2 All citations to the “Dkt.” refer to the docket in Democratic Party v. Bostelmann, No. 3:20-cv-249-wmc, unless otherwise noted.

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election officials in Milwaukee and Green Bay who unnecessarily injected difficulties into the April 7 Election—ignoring this Court’s admonitions that Plaintiffs should bring the proper defendants before the Court. More broadly, both the law and the facts have worsened substantially for Plaintiffs’ position since April. Incredibly, Plaintiffs declare that the relief that this Court ordered in April around the onset of COVID-19 “should be the Court’s jumping-off point” for analyzing claims about the November Election seven months later. Dkt. 420 at 7. But a realistic assessment of the legal and factual landscape leads to only one inescapable conclusion: all of Wisconsin’s duly enacted laws can constitutionally govern the November Election.
Developments in the law have shifted the ground even further against Plaintiffs since April, making clear that they are entitled to no possible relief.
Most recently, the Seventh Circuit issued Luft v. Evers, ___ F.3d ___, No. 163003, 2020 WL 3496860 (7th Cir. June 29, 2020), which upholds dozens of Wisconsin election laws against sweeping Anderson/Burdick challenges similar to Plaintiffs’ central claims here. Luft devastates Plaintiffs’ core theories, which seek to challenge various provisions of Wisconsin’s election law, in isolation. Luft holds that a court must consider the burden of a specifically challenged election provision against “the state’s election code as a whole”; that is, by “looking at the whole electoral system,” rather than “evaluat[ing] each clause in isolation.” Id. at *3, *6. Even more to the point, Luft “stresse[s]” that “Wisconsin’s [election] system as a whole is accommodating,” that it has “lots of rules that make voting easier,” and that it is “easy to vote” here. Id. at *3, *6–7. Under Luft’s controlling analysis, all of Plaintiffs’
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Anderson/Burdick claims fail, as do their parallel claims brought under other constitutional and statutory provisions. All of these claims are nonstarters, as Wisconsin voters will have multiple, readily available voting options in November.
Developments in election case law, specifically those cases related to COVID19, further undermine Plaintiffs’ case. While Plaintiffs project legal confidence, they cannot hide the uncomfortable fact that in every case challenging voting laws due to COVID-19 that has reached federal appellate review that Plaintiffs cite, the court of appeals either rejected any court-ordered changes or, if any survived there, the Supreme Court blocked the district court’s order. See Dkt. 420 at 45 & n.16. In the first round of this case, the Seventh Circuit blocked this Court’s injunction of the witness-signature requirement, Dkt. 189 at 3, and the Supreme Court then blocked the injunction requiring Wisconsin to count absentee ballots postmarked after Election Day, Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206–08 (2020) (per curiam). In Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020), application to vacate stay denied, No. 19A1055 (June 26, 2020), the Fifth Circuit overturned a district court’s injunction requiring Texas to offer absentee voting to certain voters. Id. at 409. And in Merrill v. People First of Alabama, No. 19A1063 (U.S. July 2, 2020), the Supreme Court stayed a district-court injunction that had paved the way for curbside voting in Alabama and had blocked photo-ID and witness-signature requirements for absentee ballots. See People First of Ala. v. Sec’y of State, No. 20-12184, 2020 WL 3478093 (11th Cir. June 25, 2020).
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The changed facts since April also greatly undermine Plaintiffs’ lawsuits and preliminary injunction requests. The premise of the limited relief that this Court granted in the immediate runup to the April Election—the sudden, unexpected onset of COVID-19—is no longer even arguably applicable to November. Unlike the short window before the April Election, every Wisconsin voter now has months to register to vote and to request/cast an absentee ballot in light of the current COVID-19 situation. The Wisconsin Elections Commission (“Commission”) has taken significant measures to increase the ease and safety of voting both via absentee ballot and in person, and is going to mail absentee ballot applications to 2.7 million registered voters. The municipalities that inexplicably closed numerous polling locations in April are now taking measures to avoid repeating those needless mistakes in November. The United States Postal Service (“USPS”) is correcting the April absentee-ballot-delivery errors. And while Plaintiffs have offered no credible evidence of any COVID-19 spread from in-person voting on April 7, these numerous developments will make voting even safer in November.
In April, this Court expressed concern that Wisconsinites and their election officials would be unable to “thread the needle to produce a reasonable voter turnout and no increase in the dissemination of COVID-19.” Dkt. 170 at 3. Wisconsinites pulled together and laudably achieved both of those twin aims. Now, the voters of Wisconsin and the State’s hardworking election officials have many months to prepare for even better performance in November. This Court should deny the
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motions for a preliminary injunction, as well as dismiss the operative complaints, leaving the running of Wisconsin’s November Election to the State of Wisconsin.3
BACKGROUND A. Wisconsin’s Regulation Of Elections Wisconsin makes voting easy and readily available to all eligible voters, in that it has “lots of rules that make voting easier” than the processes in “many other states.” Luft, 2020 WL 3496860, at *3; Frank v. Walker, 768 F.3d 744, 748 (7th Cir. 2014) (“Frank I”). The “net effect” of these rules is that, in Wisconsin, there “ha[s] been a higher turnout rate” “for voters of all races.” Luft, 2020 WL 3496860, at *3.
1. Registering To Vote “Registering to vote is easy in Wisconsin.” Frank I, 768 F.3d at 748. To register, a voter need only complete a simple registration form and, for most voters, provide “an identifying document that establishes proof of residence.” Wis. Stat. § 6.34(2). “[M]any acceptable forms of proof of residency” satisfy this requirement, and a voter may submit a proof-of-residency document “as a hard copy, paper document or an electronic document on a smartphone, tablet, or computer.” Dkt. 24 (“Wolfe Decl.”) ¶¶ 23–24; Declaration of Misha Tseytlin (“Tseytlin Decl.”) Ex. 1.
3 The Legislature did not move to dismiss the DNC Plaintiffs’ Second Amended Complaint because the Court rejected the Legislature’s pre-Luft arguments supporting dismissal, which the Legislature presented in its opposition to the DNC Plaintiffs’ motion to amend their complaint. Dkt. 217. However, especially after Luft, the DNC Second Amended Complaint must be dismissed for many of the same reasons supporting dismissal of the operative complaints in Gear and Swenson. Infra Part II. Given the current press of time, however, the Legislature believes it prudent for this Court to sort out the pending preliminary injunction motions and pending motions to dismiss in Edwards, Swenson and Gear, and to deal with the DNC Second Amended Complaint thereafter.
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Voters may register in person at the clerk’s office, by mail, or online using the Wisconsin Election Commission’s (“Commission”) “MyVote” website. Wis. Stat. §§ 6.28(1), 6.29(2)(a); Luft, 2020 WL 3496860, at *3. Voters must register via these methods by the third Wednesday preceding the election, see Wis. Stat. §§ 6.28(1), 6.29(2)(a), which is October 14, 2020, for the November 2020 Election; or they may complete “[l]ate registration” in person at the clerk’s office up to the Friday before the election, Wis. Stat. § 6.29(1)–(2), which is October 30 for the November Election, see Tseytlin Decl. Ex. 2. If a voter registers online, the voter may satisfy the proof-ofresidence requirement by submitting a valid driver’s license or state-ID number through the MyVote website. Tseytlin Decl. Ex. 1. Additionally, voters may also “register at the polling place immediately before casting a ballot,” using Wisconsin’s “generous . . . same-day registration” regime. Luft, 2020 WL 3496860, at *3, *7; Wis. Stat. § 6.55(2).
2. Voting Voting itself is also easy in Wisconsin, as Wisconsin offers broad, no-excusesneeded absentee and election-day voting options. See Luft, 2020 WL 3496860, at *3.
a. Absentee Voting Wisconsin “extends the privilege of voting by absentee ballot to [all] otherwise qualified electors who, for any reason, are unable or unwilling to appear at the polls.” Id.; see Wis. Stat. § 6.85. To obtain an absentee ballot, voters need only submit a request by “the 5th day immediately preceding the election” if requesting by mail, fax, or online, or by “the Sunday preceding the election” if requesting in person, Wis.
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Stat. § 6.86(1)(ac), (b); Tseytlin Decl. Ex. 3. For the November 2020 Election, those dates are October 29, 2020, and November 1, 2020, respectively. Along with the absentee-ballot-request form, voters must provide a copy of their photo ID to obtain an absentee ballot, which can be done with a smart phone or scanner. Wis. Stat. §§ 6.86(1), 6.87(1); Wolfe Decl. ¶ 31; Tseytlin Decl. Ex. 3.
As relevant to these cases, voters who have not already opted to vote absentee for the entirety of 2020 may request an absentee ballot for the November Election immediately, and municipal clerks will start delivering such ballots by mail once the ballots have been prepared, which will be well over a month in advance of the election. See Wis. Stat. § 7.15(1)(cm); Tseytlin Decl. Ex. 4. “When a request for an absentee ballot is made by mail,” the clerk must mail the absentee ballot “to the elector within one day of the request.” Tseytlin Decl. Ex. 4; see Wis. Stat. § 7.15(1)(cm). For “military [and overseas] voters,” who often “face special problems” in accessing “regular voting methods,” the clerk will “fax or email” the absentee ballots after receiving a valid absentee-ballot request. Luft, 2020 WL 3496860, at *8; see Wis. Stat. § 6.87(3)(d); Dkt. 247, Deposition of Meagan Wolfe 130:21–133:18 (hereinafter “Wolfe Dep.”); see Tseytlin Decl. Ex. 5.
To cast an absentee ballot, voters need only fill out the ballot and obtain the signature of a witness on the absentee-ballot envelope. Wis. Stat. § 6.87(4)(b); see Wis. Stat. § 6.87(2). Those witnesses may observe absentee voters through a window or over free, readily available video-call applications like FaceTime or Skype, so they
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need not have physical contact with the voters and can maintain social distancing. Wolfe Dep. 36:5–9; see Tseytlin Decl. Ex. 6 at 2.
Then, the voters must return the ballot by 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6). The voters may return completed absentee ballots through the mail; drop them off in a “drop box,” if available; hand deliver them to the clerk’s office or another designated site; or even bring it to their polling place on election day. See Tseytlin Decl. Ex. 7 at 1–2. “A family member or another person may [ ] return the ballot on behalf of the voter.” Id. at 1. Once the appropriate clerk receives a completed absentee ballot, the clerk ensures its delivery to “the same room where votes are being cast at the polls” for canvassing on Election Day. Wis. Stat. §§ 6.88(1)–(2), 7.51(1). Alternatively, a municipality may pass an ordinance enabling a “municipal board of absentee ballot canvassers” to “canvass all absentee ballots” cast in an election, rather than having polling-place inspectors canvass the absentee ballots at each polling place. Wis. Stat. § 7.52(1)(a).
Voters may also use the in-person absentee-voting procedure to simultaneously request and cast an absentee ballot at the clerk’s office or another location designated by the clerk. Tseytlin Decl. Ex. 3; see Wis. Stat. §§ 6.855, 6.86(1)(a)2. A municipality may “designate multiple sites for in-person absentee voting,” in addition to the clerk’s office. Luft, 2020 WL 3496860, at *5; see Wis. Stat. § 6.855. The in-person absenteevoting procedure can begin as early as two weeks before the election until “the Sunday preceding the election,” Wis. Stat. § 6.86(1)(b), which is November 1, 2020 for the November 2020 Election.
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Wisconsin law has procedures for absentee voters to correct errors with their absentee ballots. See Wis. Stat. §§ 6.86(5), 6.869, 6.87(9); Tseytlin Decl. Ex. 8. For voters who “improperly complete” or omit the witness-signature certificate, “the clerk may return the ballot to the elector . . . whenever time permits the elector to correct the defect and return the ballot.” Wis. Stat. § 6.87(9); Tseytlin Decl. Ex. 4 (instructing clerks, if “time permits,” to “make an effort to contact the elector and make arrangements for correcting the problem, whenever possible”). If absentee voters “make an error while marking [the] ballot or otherwise require a replacement ballot,” they may contact their municipal clerk to replace the spoiled ballot with a new ballot. Tseytlin Decl. Ex. 8; see Wis. Stat. § 6.86(5). The clerk may send that replacement ballot by fax or email. Tseytlin Decl. Ex. 8. And if the poll worker counting an absentee ballot finds it deficient, the poll worker will “[s]et [it] aside” and only “process [it] after 8 p.m. on Election Day to give the voter an opportunity to correct the[ ] errors.” Tseytlin Decl. Ex. 9.
b. Election Day Voting Wisconsinites can, of course, vote at their polling places on Election Day. Wis. Stat. §§ 6.76–78, 6.80. To do so, voters simply arrive at the polling place, state their “full name and address,” present a valid photo ID, and sign “the poll list.” Wis. Stat. § 6.79(2)(a); Tseytlin Decl. Ex. 10; see also Luft, 2020 WL 3496860, at *3 (noting that Wisconsin “keeps the polls open for thirteen hours, and longer if voters are waiting in line at closing time”). Although in-person polling places are traditionally “brick and mortar” operations, municipalities may choose to allow “[d]rive-through voting”
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at a polling location, or even “mov[e] [their] polling place operations outside,” so long as they “substantially meet the procedures normally reserved for voting” in person. Tseytlin Decl. Ex. 11 at 2–5.
c. Disabled, Indefinitely Confined, And Hospitalized Electors
Wisconsin’s laws contain numerous provisions to make voting even easier for individuals with disabilities, indefinitely confined voters, and hospitalized electors.
Any voters who are “indefinitely confined because of age, physical illness or infirmity or [are] disabled for an indefinite period” may elect to “automatically” receive absentee ballots “for every election,” Wis. Stat. § 6.86(2)(a), and may further submit a signed witness statement that “verifies” the voter’s name and address “in lieu of [the voter] providing proof of identification,” Wis. Stat. § 6.87(4)(b)2. Guidance from the Commission explains these requirements in further detail, noting that “[d]esignation of indefinitely confined status is for each individual voter to make based upon current circumstance[s],” and “shall not be used . . . simply as a means to avoid the photo ID requirement.” Tseytlin Decl. Ex. 12; Wolfe Dep. 40:12–19.
For voters with disabilities and senior citizens, Wisconsin “funds specialized transportation assistance programs” to help these individuals “get to the polls.” Luft, 2020 WL 3496860, at *3; Wis. Stat. § 85.21. Both the polling place itself and “the voting system used at each polling place” must be accessible to individuals with disabilities. Wis. Stat. § 5.25(4)(a). And if disabled voters cannot access the polling place, those voters may register and vote outside the polling place from their vehicles with the help of a polling-place inspector, under the “curbside voting” procedure. Wis.
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Stat. § 6.82(1); Tseytlin Decl. Ex. 13. Beyond these specific accommodations, “[e]ach municipal clerk shall make reasonable efforts to comply with requests for voting accommodations made by individuals with disabilities whenever feasible,” Wis. Stat. § 7.15(14).
And hospitalized voters, including those quarantined as a result of COVID-19 exposure, may register to vote by agent and, “at the same time,” apply for an “official [absentee] ballot by agent.” Wis. Stat. § 6.86(3)(a)(1)–(2); see Tseytlin Decl. Ex. 14 at 1.
3. Election Administration Wisconsin has the most “decentralized” election-regulation system in the country. See Dkt. 227-1 at 1 (Memorandum from Administrator Meagan Wolfe to Members of the Wisconsin Elections Commission, Summary of April 7, 2020 Election (Apr. 2020)) (hereinafter “Wolfe Memo”); Dkt. 227-2 at 10 (hereinafter “WEC Absentee Voting Report”), and Wisconsin has enjoyed “a higher turnout rate” of voters “than other states for voters of all races,” Luft, 2020 WL 3496860, at *3. Wisconsin vests the legal duty and authority to administer elections in election officials at the county or municipal level. Wolfe Memo at 1; Wolfe Dep. 114:8–3; see Wis. Stat. §§ 7.10, 7.15. As relevant to this case, these municipal and county election officials “provide ballots” for elections, Wis. Stat. § 7.10(1)(a); “establish[ ]” the polling places for elections, Wis. Stat. § 5.25(2)–(3); staff “inspectors” to work at those polling places, who each must “be a qualified elector of a county in which the municipality where the official serves is located,” Wis. Stat. § 7.30(2)(a); “[r]eassign” these
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inspectors “to assure adequate staffing at all polling places,” Wis. Stat. § 7.15(1)(k); “[e]quip” polling places with “sufficient election supplies,” Wis. Stat. §§ 7.10(1)(b), 7.15(1)(a)–(b); and “[t]rain election officials” according to the Commission’s guidelines and standards, Wis. Stat. § 7.15(1)(e).
The Commission, in turn, is a state agency with the “responsibility for the administration” of the State’s “laws relating to elections and election campaigns.” Wis. Stat. § 5.05(1); see also Wolfe Dep. 11:15–18. The Commission has no legal “authority to be able to mandate” local election officials’ exercise of these power and duties, e.g., Wolfe Dep. 57:3–5, and instead, provides advice and funding to help local officials satisfy their statutory obligations. The Commission can provide guidance on how polling places should operate, but it cannot mandate the opening of polling locations, designate in-person-absentee voting locations, or prohibit the consolidation of polling locations. E.g., Tseytlin Decl. Ex. 11 at 2–5; Dkt. 438, Second Deposition of Meagan Wolfe 157:9–12 (hereinafter “Wolfe Dep. II”) 176:8–15 (“We do not have a role in approving or reviewing any type of in-person absentee plan.”). It can facilitate the staffing of extra polling-place inspectors (such as National Guard members, Wolfe Dep. II 170:3–12), but cannot order local election officials to accept those staffers. Wolfe Memo at 8–9; Wolfe Dep. II 158:23–25 (“[A]t the end of the day [local officials are] the ones that have the responsibility to staff their polling places[.]”); see also Wolfe Dep. II 172:13–17. And it can secure funds for local officials to acquire sanitation supplies, but cannot require local officials to adopt particular sanitation procedures. Dkt. 227 at 4–5 (hereinafter “WEC Defendants’ Status Report”).
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B. The April 7, 2020 Election Wisconsin’s April 7 Election saw “extraordinarily high” voter turnout, Tseytlin Decl. Ex. 15—with 1,555,263 votes cast, comprising 34.3% of eligible Wisconsin voters, Tseytlin Decl. Ex. 16; Tseytlin Decl. Ex. 17. In comparison, the turnout for previous Spring Elections was 27.2% (2019), 22.3% (2018), 15.9% (2017), 47.4% (2016), 26.1% (2012), and 34.9% (2008). Tseytlin Decl. Ex. 17; compare Tseytlin Decl. Ex. 15 (explaining that the 2016 primary “was a complete outlier,” given two “strongly contested” Presidential primary races). The “overall turnout in Wisconsin’s 2020 primaries was even higher than in most Wisconsin primaries in the past 40 years.” Tseytlin Decl. Ex. 15. As for absentee voting, 1,157,599 voters cast such ballots by mail, which was an “unprecedented level[ ].” WEC Absentee Voting Report at 4–5, 24; Wolfe Dep. 83:14–21. “[T]he final election data conclusively indicate[d] that the election did not produce an unusual number [of] unreturned or rejected [absentee] ballots.” WEC Absentee Voting Report at 24. Contrary to the pre-election claims of some, including various Plaintiffs here, e.g., Dkt. 154 at 2, there is no evidence the April 7 Election increased the number of COVID-19 cases in Wisconsin. One study concluded that “voting in Wisconsin on April 7 was a low-risk activity,” with “no detectable surge” in COVID-19 “transmission.” Tseytlin Decl. Ex. 18 (capitalization altered). A second study similarly found that “[t]here was no increase in COVID-19 new case daily rates observed for Wisconsin or its 3 largest counties following the election on April 7, 2020, as compared to the US, during the post-incubation interval period.” Tseytlin Decl.
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Ex. 19 at 2. Wisconsin saw a “reduction in daily new case rates . . . compared to what would have been expected if the rates . . . had followed the pre-election [new-case] ratios.” Id. at 8 (emphasis added). And while there have been “71 confirmed cases of Covid-19 among people who may have been infected during the election,” Dkt. 370 ¶ 60 (Dr. Murray); Dkt. 420 at 11; Swenson Dkt. 44 at 10 n.34 (Dr. Remington), “[i]t is possible that these people may have been infected elsewhere[,] although it is difficult to verify,” Dkt. 370 ¶ 60 (Dr. Murray). The Wisconsin Department of Health Services has also explained that it is “not clear how many of the infections may have been caused by the spring election because many of the people had other exposures.” Tseytlin Decl. Ex. 20; see Swenson Dkt. 44 at 10 n.34 (Dr. Remington).
Difficulties experienced during the April 7 Election, such as long lines in municipalities like Milwaukee and Green Bay, e.g., Dkt 198-1 ¶ 36 (DNC operative complaint); Swenson Dkt. 37 ¶ 3 (Swenson operative complaint), were attributable only to the ill-advised decisions of high-ranking local officials. Green Bay—like other municipalities—could have avoided long lines at the polls. However, instead of resolving its purported staffing issue, it declined the help of National Guard members and drastically cut and consolidated its voting locations. Wolfe Dep. II 172: 13–17 (stating that she “d[id] not believe” that Green Bay requested “National Guard” members to “staff [its] polling locations”); Dkt. 198-1 ¶ 36; Swenson Dkt. 37 ¶ 3; see Dkt. 413, Deposition of Robert Spindell 138:17–140:10 (hereinafter “Spindell Dep.”); Wolfe Memo at 7–8; Tseytlin Decl. Ex. 21 (noting “[d]iscussion of Milwaukee . . . Polling Place Consolidation” on agenda). In contrast, other major municipalities in
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Wisconsin, like Madison, did not unreasonably close polling locations, so they did not experience these Election Day difficulties. See Wolfe Memo at 8; Tseytlin Decl. Ex. 22; Swenson Dkt. 37 ¶ 122.
C. Post-April 7 Developments Wisconsin’s “Safer at Home” orders are no longer in force. Secretary Palm’s original order expired on April 24, 2020, Tseytlin Decl. Ex. 23, and the Wisconsin Supreme Court invalidated the attempted extension of that order, Wis. Legislature v. Palm, 942 N.W.2d 900, 905 (Wis. 2020)—an extension that was set to expire by its own terms in late May 2020, in any event, id. at 906. The Governor does not intend to pursue additional statewide emergency restrictions due to COVID-19. See Tseytlin Decl. Ex. 24 (withdrawing emergency-rule scope statement related to COVID-19). Wisconsin’s Seventh Congressional District successfully held a special election on May 12, 2020, with 94,007 voters voting absentee, Tseytlin Decl. Ex. 25—or over 22% of the district’s registered voter population, see Tseytlin Decl. Ex. 26. Clerks received over 69,000 of those absentee ballots by the afternoon of May 8. Tseytlin Decl. Ex. 27. And almost every voter who requested an absentee ballot received one. Tseytlin Decl. Ex. 25. The Commission has made tremendous strides to enhance the State’s readiness for the upcoming November 2020 Election, and it plans to take still more steps in the coming months. See generally WEC Defendants’ Status Report at 2–14 (listing 15 detailed actions); Wolfe Dep. 104:1–111:16, 121:2–122:20. For example, the Commission has elected to mail absentee-ballot applications and informational
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material to “all voters without an active absentee request on file,” making it even easier for voters to vote via absentee ballot for the November 2020 Election. Tseytlin Decl. Ex. 28; Tseytlin Decl. Ex. 29; WEC Defendants’ Status Report at 3–4; Wolfe Dep. 26:16–27:7. The Commission plans to implement “intelligent mail barcodes into the existing [absentee-ballot-envelope] design” for the November 2020 Election, which will facilitate more detailed absentee-ballot tracking. Tseytlin Decl. Ex. 28; WEC Defendants’ Status Report at 6; Wolfe Dep. 54:14–60:12 (noting that the Commission expects most clerks to use the intelligent barcodes for the November 2020 Election), 99:8–17, 105:11–15 (expressly stating that the Commission approved use of intelligent barcode system). The Commission will spend up to $4.1 million of a “CARES Act sub-grant [for] local election officials,” Tseytlin Decl. Ex. 28, “to help pay for increased election costs due to the COVID-19 pandemic,” WEC Defendants’ Status Report at 5; Tseytlin Decl. Ex. 29; Wolfe Dep. 75:3–16; accord Wolfe Dep. 68:10–69:6. And the Commission has made, and will continue to make, numerous upgrades to the MyVote Website and WisVote system, including to “meet the needs of clerks experiencing a large increase in the demand for absentee ballots.” WEC Defendants’ Status Report at 8–9; Wolfe Dep. 70:9–73:14, 128:15–129:18; see generally WEC Defendants’ Status Report at 2–14 (discussing other efforts, like pollworker-recruitment efforts); Wolfe Dep. 75:17–78:4 (similar).
Both Milwaukee and Green Bay are already working to avoid the long lines that occurred in April, after those municipalities inexplicably and irresponsibly closed many polling places. Milwaukee has already begun to recruit more poll
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workers for the general election, utilizing the “more time” that it has until November, and “officials hope to be able to open all 180 polling sites in November’s presidential election.” Tseytlin Decl. Ex. 30. Milwaukee has also approved “16 in-person early voting locations for the August and November elections,” which is “a sharp increase from prior years.” Tseytlin Decl. Ex. 31. And Milwaukee will also have help from volunteers recruited by the DNC Plaintiffs themselves. See Tseytlin Decl. Ex. 32 (requesting that its supporters “[v]olunteer for the Voter Protection team to make sure our elections are safe & fair this fall,” and specifically mentioning that “voting locations were closed in April”). Green Bay has also begun significant poll-worker recruitment efforts, and it will have at least 13 polling locations open for November— up from the two locations the city had in April. Tseytlin Decl. Ex. 33.
Finally, the Inspector General for the United States Post Office (“USPS”) released a report outlining the results of the investigation into “timeliness of ballot mail in the Milwaukee processing [and] distribution center service area” relating to the April 7 Election. Dkt. 433-1, Office of Inspector General, USPS, Timeliness of Ballot Mail in the Milwaukee Processing & Distribution Center Service Area, Report No. 20-235-R20 (July 7, 2020). The report concluded that “tubs” of ballots from Appleton and Oshkosh were not delivered because those municipalities dropped the ballots off at USPS at the end of the day on April 7, 2020—i.e., Election Day itself. Id. at 3–4. A low absentee-ballot return rate for certain ballots in Milwaukee resulted from a computer glitch identified by “Milwaukee Election Office staff” and was exacerbated by the lack of “Intelligent Mail Barcodes,” which “would have enabled
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the Postal Services and election offices to track ballots.” Id. at 4; see also Wolfe Dep. at 128:15–129:18 (explaining that this glitch has been solved). A single mail carrier’s negligence caused the delivery issues in Fox Point, the failure to properly log political mailings per USPS policy, and flaws in the address labels. Dkt. 433-1 at 4–5. The report issued several recommendations, which USPS staff agreed to implement: “communicate with the Wisconsin Election[s] Commission and associated election offices” about deadlines for timely delivery, the use of barcodes, and proper address labels; “ensure” relevant USPS staff and facilities are using the “political mail log to record ballot mail”; and “coordinate” with local “election offices” on “proper ballot mailing processes.” Id. at 5–6, 8.
D. Plaintiffs’ Complaints And Preliminary Injunction Motions These consolidated cases consist of four separate actions, each of which challenges large portions of Wisconsin’s election operations for the upcoming November 2020 Election. Below is a brief summary of the claims and requests for relief in each consolidated case’s operative complaint. 1. The DNC Plaintiffs’ Second Amended Complaint brings three claims: an Anderson/Burdick claim, an equal-protection/Bush v. Gore claim, and a procedural due process claim. Dkt. 198-1 ¶¶ 77–98.4 The DNC Plaintiffs ask this Court to: enjoin Section 6.28(1)’s by-mail and electronic registration deadlines, extending them
4 The DNC Plaintiffs are the Democratic National Committee and the Democratic Party of Wisconsin. Dkt. 198-1 ¶¶ 16, 18. They named Commissioners Bostelmann, Glancey, Jacobs, Knudson, Spindell, and Thomsen (“the Commissioners”) as defendants. This Court granted the Legislature’s and the Republican National Committee and the Republican Party of Wisconsin’s (“RNC”) motions to intervene. Dkts. 85 & 191.
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to the Friday before the November 3, 2020 Election, Dkt. 198-1 at 39 ¶ C; extend Section 6.34’s proof-of-residence requirement, Dkt. 198-1 at 39 ¶ E; enjoin Section 6.86’s photo ID requirement for requesting an absentee ballot, Dkt. 198-1 at 39 ¶ D; extend Section 6.87’s deadline for clerks to receive absentee ballots from 8:00 p.m. on Election Day to 10 days after Election Day, Dkt. 198-1 ¶ 9 & at 38 ¶ A; and enjoin Section 6.87’s witness-signature requirement (or, at the very least, order that this requirement is satisfied if a witness observes the voter over Skype of FaceTime, but does not physically sign the ballot). Dkt. 198-1 ¶ 55 & at 39 ¶ C. The DNC Plaintiffs also request that the Court order the Commission to “coordinate” resources with all relevant state, federal, and private entities to ensure the safety of voting. Dkt. 198-1 at 39 ¶ G. The DNC Plaintiffs have moved for a preliminary injunction on all of their claims for the November 2020 Election. See Dkt. 420 at 6– 10.
2. The Gear Plaintiffs’ First Amended Complaint asserts Anderson/Burdick claims and a claim under Title II of the Americans with Disabilities Act (“ADA”). Dkt. 213-1 ¶¶ 113–53.5 They ask the Court to enjoin Section 6.87’s witness-signature requirement as to disabled voters, allowing them to submit an absentee ballot without such a signature if they attest that they could not safely locate a witness.
5 The Gear Plaintiffs are Sylvia Gear, Claire Whelan, the Wisconsin Alliance for Retired Americans, the League of Women Voters of Wisconsin, Katherine Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, and Gregg Jozwik. Dkt. 230-1 ¶¶ 22–30, 37–38. They named the Commissioners and Administrator Wolfe as defendants. Dkt. 230-1 ¶¶ 49–50. This Court granted the Legislature’s and the RNC’s motions to intervene. Dkts. 85 & 191.
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Dkt. 213-1 at 77 ¶ (g). The Gear Plaintiffs also ask the Court to order the Commission to deliver absentee ballots via email or fax to any Wisconsin voter, not just to military voters, under Section 6.87(3), Dkt. 213-1 at 75 ¶¶ (b)–(c), at 76 ¶ (d), or to allow any Wisconsin voter to use the “Federal Write-in Absentee Ballot,” Dkt. 213-1 at 77 ¶ (e). The Gear Plaintiffs have moved for a preliminary injunction on all of their claims for the November 2020 Election. Dkt. 421 at 2–7.
3. The Edwards Plaintiffs’ Amended Complaint also brings claims under Anderson/Burdick and the ADA, although these plaintiffs’ claims are premised on the State’s “failure” to postpone the April 7 Election. Edwards Dkt. 5 ¶¶ 90–132.6 They ask the Court to order universal mail-in voting, forcing the Commission to mail absentee ballots to the address of each registered voter without even requiring any voter to submit an application requesting such a ballot. Edwards Dkt. 5 ¶ 8.b; see generally Edwards Dkt. 5 at 50 ¶¶ a–d. The Edwards Plaintiffs also ask the Court to enjoin, without limitation, any election law that is not “fair, reasonable, and constitutionally sufficient” in their view. Edwards Dkt. 5 at 50 ¶ b. The Edwards Plaintiffs have also moved for a preliminary injunction on both of their claims for the November 2020 Election. See Dkt. 397 at 34, 38. The Legislature’s motion to dismiss the Amended Complaint in Edwards is pending before the Court. Edwards Dkt. 12.
6 The Edwards Plaintiffs are Chystal Edwards, Terron Edwards, John Jacobson, Catherine Cooper, Kileigh Hannah, Kristopher Rowe, Katie Rowe, Charles Dennert, Jean Ackerman, William Laske, Jan Graveline, Todd Graveline, Angela West, and Douglas West. Edwards Dkt. 5 ¶¶ 13–22. They named Speaker Robin Vos, Majority Leader Scott Fitzgerald, the Wisconsin State Assembly, the Wisconsin State Senate, the Commission, the Commissioners, and Administrator Wolfe as defendants. Edwards Dkt. 5 ¶¶ 23–34. This Court granted the RNC’s motion to intervene. Edwards Dkt. 27.
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4. The Swenson Plaintiffs’ Amended Complaint asserts five claims: an Anderson/Burdick claim, an equal-protection/Bush v. Gore claim, a procedural dueprocess claim, an ADA claim, and a voter-intimidation claim under Section 11(b) of the Voting Rights Act (VRA). Swenson Dkt. 37 ¶¶ 195–242.7 They ask the Court to: enjoin Section 6.87’s witness-signature requirement, Swenson Dkt. 37 at 68 ¶ C.2; extend Section 6.87’s absentee-ballot-acceptance deadline to seven days after Election Day, Swenson Dkt. 37 at 68 ¶ C.4; enjoin Sections 6.88 and 7.50–.51’s requirement that absentee ballots be counted on Election Day, rather than before Election Day, Swenson Dkt. 37 at 69 ¶ C.5; enjoin the requirement in Section 6.855 that municipalities designate alternative in-person absentee-voting locations by June 11, 2020, Swenson Dkt. 37 at 68 ¶ C.3; and enjoin Section 7.30(2)’s requirement that election officials be electors of a municipality in the county in which they are staffed, Swenson Dkt. 37 at 68 ¶ C.1. Plaintiffs further request a litany of additional relief, some of which is only tangentially related to their claims.8 Plaintiffs moved for
7 The Swenson Plaintiffs are Jill Swenson, Melody McCurtis, Maria Nelson, Black Leaders Organizing for Communities, and Disability Rights Wisconsin. Swenson Dkt. 37 ¶¶ 10–14. They named the Commissioners and Administrator Wolfe as defendants. Swenson Dkt. 37 ¶¶ 15–16. This Court granted the Legislature’s and the RNC’s motions to intervene. Swenson Dkt. 38.
8 Specifically, the Swenson Plaintiffs additionally request that the Court order the Commission to: “[t]ake all appropriate actions to ensure . . . [voting is] safely conducted”; require accessible voting machines at each polling place; ensure adequate numbers of poll workers; guarantee timely absentee-ballot delivery and notice of any rejection of an absenteeballot request; provide adequate registration and absentee voting opportunities for residents of care facilities; upgrade online registration and absentee-ballot-request systems; mandate more drop boxes throughout the State for the submission of absentee ballots; and engage in a public-education campaign. Swenson Dkt. 37 at 67–68 ¶ B.
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preliminary injunctive relief on their claims for the November 2020 Election. Swenson Dkt. 41 at 25.
ARGUMENT I. Plaintiffs Are Not Entitled To Any Preliminary Injunctive Relief
Preliminary-injunctive relief “is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking such relief must sufficiently show that: “(1) without such relief, it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of success on the merits.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018) (citations omitted). Then, if the plaintiff meets this burden, the Court weighs the harm that the plaintiff will suffer without a preliminary injunction, against the harm the other party will suffer if one is granted. Id. Finally, the Court must consider how the preliminary injunction serves the public interest, if at all, which includes considering the effects of the injunction on non-parties. Id. The plaintiff bears the burden of “a clear showing” that the case warrants preliminary injunctive relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). In the present case, Plaintiffs have made none of these necessary showings.
A. Plaintiffs Have No Likelihood Of Success On The Merits 1. Anderson/Burdick Claims
Under Anderson/Burdick, the court must “weigh ‘the character and magnitude of the asserted injury to the [voting] rights protected by the First and Fourteenth
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Amendments” against “‘the precise interests put forward by the State as justification for the burden imposed by its rule.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). This test sets a high bar, given the State’s sovereign and compelling interests in election integrity and orderly administration. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190, 198 (2008) (controlling plurality op. of Stevens, J.); Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 231 (1989); accord Luft, 2020 WL 3496860, at *11 (“The state’s interest in the ‘integrity and reliability of the electoral process’ is strong.” (quoting Crawford, 553 U.S. at 204)). The Court generally treats the State’s interests as a “legislative fact” that must be accepted if reasonable. Frank I, 768 F.3d at 750.
An election law is constitutional under Anderson/Burdick if the burden imposed by the law does not “represent a significant increase over the usual burdens of voting.” Crawford, 553 U.S. at 198 (controlling plurality op. of Stevens, J.); accord Luft, 2020 WL 3496860, at *3; Frank I, 768 F.3d at 748. If a burden is “merely ‘reasonable’ and ‘nondiscriminatory,’” the State’s interests in election integrity and orderly administration “will generally carry the day.” Stone v. Bd. of Election Comm’rs, 750 F.3d 678, 681 (7th Cir. 2014) (quoting Burdick, 504 U.S. at 434). This test affords the “States significant flexibility in implementing their own voting systems,” John Doe No. 1 v. Reed, 561 U.S. 186, 195 (2010) (citing Burdick, 504 U.S. at, 433–434), recognizing that “States have a major role to play in structuring and monitoring the election process,” Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000). Indeed, “as a practical matter, there must be a substantial regulation of
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elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Anderson, 460 U.S. at 788 (citation omitted); Burdick, 504 U.S. at 433 (“Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections[.]”). Further, as discussed more fully below, infra Part I.A.1.a., Anderson/Burdick requires considering a given election law’s burden in light of “the state’s election code as a whole,” rather than “evaluat[ing] each clause in isolation.” Luft, 2020 WL 3496860, at *3; accord Anderson, 460 U.S. at 788.
Even if an election regulation does unconstitutionally burden certain particularly vulnerable voters—as opposed to merely imposing an “inconvenience,” Luft, 2020 WL 3496860, at *7—this “[can]not prevent the state from applying the law generally,” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”). Rather, voters who cannot vote with “reasonable effort” are eligible for at most targeted, asapplied relief, not statewide relief for all voters generally. Id. Importantly, to obtain even this narrow relief, these voters’ burdens must objectively exceed the constitutional threshold—a voter cannot just “make his or her [own] choice about how much effort [to comply with the law] was too much.” Luft, 2020 WL 3496860, at *9.
Here, Plaintiffs’ Anderson/Burdick claims attack scores of Wisconsin election laws, alleging that they impose more-than-reasonable burdens on Wisconsinites’ right to vote, and Plaintiffs’ operative complaints seek correspondingly sweeping relief. See supra pp. 18–22. Below, the Legislature first offers a detailed discussion of the Seventh Circuit’s decision in Luft, explaining why that recent decision
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forecloses all Plaintiffs’ Anderson/Burdick claims, without need for this Court to engage in a more granular analysis. Infra Part I.A.1.a. The Legislature then explains that even when evaluating each challenged law “in isolation”—contrary to Luft’s controlling rule—each of the five categories of challenges fails. Infra Part I.A.1.b.
a. Luft Forecloses These Claims Because Wisconsin Voters Have Multiple Readily Available Voting Options
The Seventh Circuit’s Luft decision shows that Plaintiffs have no likelihood of success on their Anderson/Burdick claims. 2020 WL 3496860 at *1, 6–8. As relevant here, Luft held that Wisconsin’s “adjustments to the number of days and hours for inperson absentee voting, the state’s durational residence requirement, . . . the prohibition on sending absentee ballots by email or fax,” id. at *11, and the “requirement for documentary proof of residence,” id. at *7 were all constitutional under the Anderson/Burdick balancing test. Additionally, the Court overturned a district court order allowing individuals to bypass the photo-ID law by certifying “that reasonable effort failed to yield acceptable photo ID,” concluding that this subjective, individualized bypass certification violated Frank II. Id. at *9.
The central feature of the Seventh Circuit’s reasoning in Luft was the Court’s admonition that Anderson/Burdick requires consideration of “the state’s election code as a whole,” rather than “evaluat[ion] [of] each clause in isolation.” Id. at *3; see also id. at *6, *7. This means that Anderson/Burdick does not invalidate an election law, viewed in isolation, where the State offsets that law with provisions making voting with reasonable effort available in other respects or by other methods. Id. at *3. So, for example, a State may “offset” “stringent verification of [voter] eligibility” with
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“liberal access to absentee ballots.” Id. Failure to consider “all parts of the electoral code” under Anderson/Burdick, id. at *7, impermissibly “allows a political question— whether a rule is beneficial, on balance—to be treated as a constitutional question and resolved by the courts rather than by legislators,” id. at *3.
Luft makes clear that, after considering Wisconsin’s “election code as a whole,” rather than “evaluat[ing] each clause in isolation,” none of Plaintiffs’ Anderson/Burdick claims has any chance of success. Id. at *3. Wisconsin “has lots of rules that make voting easier,” and its “system as a whole is accommodating.” Id. at *3, *6. “These facts matter when assessing challenges to a handful of rules that make voting harder,” id. at *3, and defeat Plaintiffs’ claims here.
Remarkably, the DNC Plaintiffs claim that Luft, on balance, “reinforces” its Anderson/Burdick claims on the basis that Luft reaffirms the as-applied challenge approach discussed in Frank II and requires the State “to demonstrably provide eligible voters with a genuine ‘path to cast a vote.’” Dkt. 420 at 5–6 (quoting Luft, 2020 WL 3496860, at *8). Luft’s treatment of Frank II merely reaffirms that the rare, individual voter who objectively demonstrates that he or she cannot comply with a voting provision with reasonable effort is entitled to, at most, individual, as-applied relief as to that provision. Luft, 2020 WL 3496860 at *9. The DNC Plaintiffs have not pursued this narrow, as-applied relief on behalf of any identifiable voter, and nothing in the evidence that they have presented even indicates that such a voter exists. As for Luft’s statement that all voters must have a “path to cast a vote,” id. at
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*8, Wisconsin already has “lots of rules that make voting easier” and “that make it

easy to vote,” as Luft itself repeatedly explained, id. at *3, *6.

As the Legislature details below, Wisconsin’s mail-in absentee voting option,

infra Part I.A.1.a.i., and its multiple in-person voting options, infra Part I.A.1.a.ii, are

each constitutionally adequate “path[s] to cast a vote,” Luft, 2020 WL 3496860 at *9.

That alone is sufficient to defeat Plaintiffs’ Anderson/Burdick claims. If an extremely

rare series of events transpires to make those paths reasonably unavailable to a

specific voter in November, that voter may seek targeted, as-applied relief under

Frank II at that time. Infra Part I.A.1.a.iii.

i.

Wisconsin’s Mail-In Absentee Voting Options Are

Independently Constitutionally Adequate

Wisconsin has a generous, no-excuses-needed mail-in absentee-voting regime,

Wis. Stat. §§ 6.85–6.88, which, as Plaintiffs’ own expert explains, “Wisconsin

residents are fortunate” to have “available,” Dkt. 418 at 6 (Dr. Barry Burden). Since

any voter can take advantage of this absentee voting regime, Plaintiffs’ criticisms of

Wisconsin’s in-person voting regime (which are, in any event, erroneous, see infra

Part I.A.1.a.ii.), are legally irrelevant under Luft because Wisconsinites can fully

vindicate their right to vote with reasonable effort through absentee voting.

Any Wisconsinite can exercise the franchise for the November Election by

using Wisconsin’s generous mail-in absentee voting regime. Any voter may request

an absentee ballot for any reason by submitting a form online, by mail, or in person.

Wis. Stat. § 6.86(1)(ac), (b); see supra pp. 6–9. A voter can submit this request now,

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and municipal clerks will begin mailing absentee ballots well over a month before the election. See Wis. Stat. § 7.15(1)(cm); supra p. 7.
Indeed, many of Plaintiffs’ declarants have, or presumably very soon will, submit such requests. See Dkt. 259 (Milton Bartelme Decl.) ¶ 5 (“We applied for absentee ballots for the rest of the year . . . and won’t have to go through the process again.”); see also Dkt. 270 (Pamela Brown Decl.) ¶ 8 (similar); Dkt. 353 (Patricia Sherman-Cisler Decl.) ¶ 9 (similar); Dkt. 352 (Paul Schinner Decl.) ¶ 5 (similar); Dkt. 396 (Blair Braun Decl.) ¶ 10 (“I have signed up for absentee ballots to be sent to me in all future elections.”); Dkt. 393 (Cheryl Riley Decl.) ¶ 10 (similar); Dkt. 392 (Meghan Lorenz Decl.) ¶ 9 (similar); Dkt. 391 (Haley Newby Decl.) ¶ 10 (similar); see also Dkt. 372 (Katherine Kohlbeck Decl.) ¶ 11 (“For the November election, I want to request an absentee ballot be delivered to my home by mail.”); Swenson Dkt. 49 (Maria Nelson Decl.) ¶ 12 (similar); Dkt. 373 (Diane Fergot Decl.) ¶ 9 (similar); Dkt. 374 (Gary Fergot Decl.) ¶ 9 (similar); Dkt. 378 (Claire Whelan Decl.) ¶ 9 (similar); Dkt. 379 (Sylvia Gear Decl.) ¶ 7 (similar); Dkt. 377 (Gregg Jozwik Decl.) ¶¶ 8, 10 (similar, and he safely voted in person); Dkt. 376 (Sheila Jozwik Decl.) ¶ 10 (similar); Dkt. 375 (Bonibet Bahr Olsan) ¶¶ 8, 10 (similar, and she shops at the grocery store every two weeks taking safety precautions, which she could use to vote safely in person); Dkt. 349 (Sue Rukamp) ¶¶ 4–5 (complaining of “technological issues and difficulty uploading her driver’s license to MyVote,” but stating that she “successfully requested her ballot despite her technological difficulties”). And multiple named Plaintiffs have already requested their absentee ballots for
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November, Tseytlin Decl. Exs. 34; 35; 36; 37, or intend to do so, Tseytlin Decl. Exs. 38; 39; 40.
The DNC and Gear Plaintiffs attack the sufficiency of Wisconsin’s mail-in absentee-voting regime by claiming that some absentee-ballot requests may be lost or delayed, but they present only speculative evidence that this is likely to happen in November. See Dkt. 420 at 13, 18, 25, 31–33; Swenson Dkt. 41 at 42–43, 49–50. Both the Commission and the USPS have already taken significant steps to ensure timely absentee-ballot delivery in November. The Commission will mail absentee-ballot request forms to millions of Wisconsin voters, which will encourage voters to request ballots early. Supra pp. 15–16. Further, the Commission is implementing “intelligent mail barcodes” and other “tools to allow [clerks] to make sure that ballots have gone out,” further mitigating any concerns of “lost” ballots. Wolfe Dep. 129:3– 18; compare Swenson Dkt. 41 at 50 (requesting that the Court order barcode implementation). The USPS, for its part, has already studied the errors that DNC Plaintiffs complain of. Compare Dkt. 433-1, at 4–6, with Dkt. 420 at 31–32. In light of this study, the USPS will take measures to ensure that these isolated issues do not recur in November, such as increasing communications between the USPS and Wisconsin election officials, correcting discrete absentee-ballot label concerns, and enforcing already-existing USPS policies. Dkt. 433-1, at 4–6, 8.
In any event, a prudent voter wishing to avoid the speculative problem hypothesized by Plaintiffs regarding lost absentee ballots can simply request an absentee ballot now, especially if the voter does not wish to vote in person in light of
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personal concerns about COVID-19. See supra pp. 28–29. That minimal, “[a]dministrative step[ ],” Luft, 2020 WL 3496860, at *10 (citing Crawford, 553 U.S. at 198 (controlling plurality op. of Stevens, J.)), is a “reasonable effort” under Frank II, 819 F.3d at 386–87, and Luft, 2020 WL 3496860, at *8–9. Of course, not every voter will request absentee ballots now and, as explained immediately below, inperson voting in November is a safe, constitutionally adequate option. Contra Dkt. 421 at 32 (Gear Plaintiffs asserting, with no citation to any case law, that “[i]nperson voting of course is not a reasonable alternative”). But for those falling within the extremely narrow category of voters who, due to special circumstances, personally believe that they cannot safely vote in person due to COVID-19, requesting an absentee ballot immediately is a wholly viable path to casting a ballot. See Republican Nat’l Comm., 140 S. Ct. at 1207. This fully protects the constitutional right to vote, which means that Plaintiffs cannot succeed on their Anderson/Burdick claims. See Luft, 2020 WL 3496860, at *3.
The Swenson Plaintiffs, for their part, entirely ignore the constitutional import of Wisconsin’s mail-in absentee-voting system when they claim that Wisconsin’s administration of in-person voting for the April Election violated Anderson/Burdick. Swenson Dkt. 41 at 38–42. Even if the Swenson Plaintiffs could demonstrate that inperson voting was unsafe in some respects, but see infra Part I.A.1.a.ii, Wisconsin’s “liberal access” to safe “absentee ballots” would “offset” whatever burdens that imposed, under Luft’s controlling rule that Wisconsin’s system “as a whole” must be considered in the Anderson/Burdick analysis. 2020 WL 3496860, at *3.
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ii.

Wisconsin’s Multiple In-Person Voting Options Are

Independently Constitutionally Adequate

Wisconsin also has a comprehensive in-person voting regime. For those voters

who choose not to take advantage of Wisconsin’s generous absentee voting regime—

or for the extremely rare individual who requests an absentee ballot early,

experiences a delay in delivery, and does not receive a replacement absentee ballot in

time—in-person voting in November (either two weeks before Election Day with the

in-person absentee procedure, Wis. Stat. § 6.86(1)(b), or on Election Day itself, Wis.

Stat. §§ 6.76–78, 6.80) is a safe and entirely constitutionally adequate option. Most

of Plaintiffs’ Anderson/Burdick arguments rest on the erroneous, unsupported

assumption that, in light of COVID-19, Wisconsin must provide some additional

special level of absentee voting beyond its existing, broad absentee and in-person

voting options. But as described below, there is no general constitutional right to

absentee voting, in light of COVID-19, and, further, Plaintiffs have not shown that

Wisconsin’s November Election is likely to be so uniquely unsafe for in-person voting

as to require a different conclusion. Thus, Wisconsin’s generous in-person voting

options render Wisconsin’s voting regime entirely constitutional under Luft’s

requirement that a plaintiff must demonstrate that Wisconsin’s election system “as

a whole”—including Wisconsin’s multiple in-person voting options—does not permit

Wisconsinites to vote in person after reasonable efforts. See 2020 WL 3496860, at *3.

Both the Supreme Court and the Seventh Circuit have unambiguously held

that the Constitution does not require States to provide any level of absentee voting,

thus absentee-ballot restrictions “do not themselves deny [voters] the exercise of the

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franchise” or implicate the “fundamental right to vote.” McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807–08 (1969). “[A]bsentee voting” is a “privilege[ ],” O’Brien v. Skinner, 414 U.S. 524, 530 (1974), which States may extend to some, or to none at all, see Griffin v. Roupas, 385 F.3d 1128, 1129–30 (7th Cir. 2004); accord Tex. Democratic Party v. Abbott, 961 F.3d 389, 409 (5th Cir. 2020); Mays v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020). So, since “there is no constitutional right to an absentee ballot,” Mays, 951 F.3d at 792, “it is obvious that a federal court is not going to decree . . . all-mail voting” or “Internet voting,” Griffin, 385 F.3d at 1130.
As the Fifth Circuit recently explained in a challenge to Texas’ absentee-voting regime—which (unlike Wisconsin’s) does not offer absentee voting options to all voters—COVID-19’s “emergence has not suddenly obligated [the State] to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.” Tex. Democratic Party, 961 F.3d at 409. Wisconsin, like Texas, is “not suddenly obligated” by the Constitution to offer any special level of absentee voting due to “[t]he Virus’s emergence.” Id. Even after the onset of COVID19, absentee voting remains a privilege that States may decline to extend. This constitutional rule holds true even in States, like Texas, confronting more serious COVID-19 outbreaks than Wisconsin. See id.; compare Tseytlin Decl. Ex. 41, with Tseytlin Decl. Ex. 42. All Wisconsin must do, consistent with the Constitution, is “permit[ ] [voters] to vote in person,” Tex. Democratic Party, 961 F.3d at 404, which it does.
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Nothing in Plaintiffs’ submissions shows that in-person voting in Wisconsin, either two weeks before the election under the in-person absentee procedure or on Election Day itself, is likely to be so uniquely unsafe in November as to make it a constitutionally impermissible option, contrary to controlling caselaw. Even in April—when the election officials and the country were new to the COVID-19 situation, which “no one saw” coming, Dkt. 181 at 127:19–128:7—many of Plaintiffs’ declarants demonstrated that in-person voting could be done safely and responsibly. Dkt. 257 (Thomas Barnum Decl.) ¶ 5 (“I used hand sanitizer and put on a mask,” “there was a lot of space [at the polling location],” “people were wiping down the ballot machine after each use, being very careful.”); Dkt. 261 (Anthony Berg Decl.) ¶¶ 12– 17 (similar); Dkt. 284 (Linda Duffey Decl.) ¶ 9 (similar); Dkt. 264 (Thomas Binder Decl.) ¶ 4 (similar); Dkt. 285 (Curtiss Engstrom Decl.) ¶¶ 5–6 (similar); Dkt. 280 (Neil Daniels Decl.) ¶ 4 (similar); Dkt. 281 (Brian Davis Decl.) ¶ 5 (similar); Dkt. 299 (Peter Hable Decl.) ¶ 7 (similar); Dkt. 309 (Brenna Hughes Decl.) ¶¶ 4–5 (similar); Dkt. 319 (Nicholas Lemin Decl.) ¶ 6 (similar); Dkt. 325 (Leroy Maxfield Decl.) ¶¶ 5–6 (similar); Dkt. 368 (Delany Zimmer Decl.) ¶ 7 (similar); Dkt. 348 (Katherine Ruh Decl.) ¶ 4 (similar); Dkt. 403 (Jan Graveline Decl.) ¶ 6 (similar); Dkt. 302 (Sharon Harris Decl.) ¶ 8 (similar); see also Dkt. 283 (Kimberly Diaz Decl.) ¶¶ 5–6 (“I ran in[to the polling location] and dropped off my [absentee] ballot as quickly as possible,” where other people were also “leaving quickly”); Dkt. 294 (Sharon Gamm Decl.) ¶ 6 (similar); Dkt. 296 (Joanne Glasser Decl.) ¶ 5 (similar). Further, the Institute for Health Metrics and Evaluation (IHME) model that the Swenson Plaintiffs rely upon, Swenson Dkt.
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42 ¶ 216, predicts that infection rates in Wisconsin for November will be substantially lower than they were in April, improving this situation further. See Tseytlin Decl. Ex. 43.
To the extent that some of Plaintiffs’ other declarants articulate examples of local officials not taking prudent steps to conduct safe, in-person voting in April— problems which were almost entirely confined to Milwaukee and Green Bay, Swenson Dkt. 41 at 14; e.g., Dkt. 365 (Lisa Whiteman Decl.) ¶ 5 (complaining of “not much social-distancing”); Dkt. 377 (Gregg Jozwik Decl.) ¶ 8 (complaining that “about half of the voters were not” “wearing masks”)—the Commission and local election officials are all working diligently to improve those conditions, such that there is no reason to believe they will recur during the November Election.
The Commission has prepared detailed, “comprehensive reports,” based on the April Election, to guide the planning of the November Election, in order to allow for safe in-person voting. WEC Defendants’ Status Report at 2–3. It has dedicated significant grant funds “to secure and distribute sanitation supplies and other materials” throughout the State, id. at 4, and millions of dollars more for local clerks to purchase (among other things) “additional cleaning supplies” and “cleaning services and protective equipment,” id. at 5–6. It has engaged in recruitment efforts to eliminate the risk of understaffed polling places, and therefore overcrowded, nonsocially-distanced in-person voting locations. See id. at 11–12. And it has “worked with public health officials to produce over 20 public health guidance documents for
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clerks, poll workers, and the public,” and will “continue” this work to keep these materials “current and create additional guidance as needed.” Id. at 13.
As for Milwaukee and Green Bay, while those parties have not yet fully responded to the Legislature’s discovery requests, public information reveals that they are planning to open and staff vastly more polling places than they did in April. Milwaukee is planning to open all 180 polling sites and 16 in-person-absentee sites, taking advantage of the “more time” before the election by recruiting polling-place workers now. Supra pp. 16–17. And Green Bay is planning for at least 13 polling places, a marked increase from the two locations it provided in April. Supra pp. 16– 17. DNC Plaintiffs’ volunteers will help solve staffing issues in Milwaukee for the November 2020 Election. See Tseytlin Decl. Ex. 32 (requesting that DNC Plaintiffs’ supporters “[v]olunteer for the Voter Protection team to make sure our elections are safe & fair this fall,” and specifically mentioning that “voting locations were closed in April”). In any event, to the extent that any local conditions would remain a concern in November, Plaintiffs have made the decision not to sue the local officials that would be responsible, especially those officials in Milwaukee and Green Bay. Infra Part I.A.6.a. And, regardless, longer lines do not present a constitutional problem, Frank I, 768 F.3d at 748, and Plaintiffs have not presented any evidence that those lines caused any COVID-19 spread, see infra pp. 37–39.
Even if this Court were to consider the claimed COVID-19 impacts of the April Election—which, again, occurred at the outset of the COVID-19 outbreak, when election officials and voters all had far less time to prepare than they will for
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November—Plaintiffs have failed to show any COVID-19 spread occurred during that Election. Despite the vast resources of Plaintiffs in these consolidated cases— including their multiple expert reports and voluminous declarations—they cannot identify anyone who claims that they were either exposed to, or infected by, COVID19 from the April Election (or who even suspects that might be the case). While there were “71 confirmed cases of Covid-19 among people who may have been infected during the election,” Dkt. 370 ¶ 60 (Dr. Murray); Dkt. 420 at 11; Swenson Dkt. 44 at 10–11 & n.34 (Dr. Remington), this suggests nothing in particular, as “[i]t is possible that these people may have been infected elsewhere[,] although it is difficult to verify,” Dkt. 370 ¶ 60 (Dr. Murray).
Researchers have found that “voting in Wisconsin on April 7 was a low-risk activity.” Tseytlin Decl. Ex. 18. Dr. Leung and her colleagues “analyzed confirmed cases [of COVID-19] and new hospitalizations in Wisconsin in the weeks surrounding the April 7, 2020 election.” Id. at 1. Based on this analysis, the study concluded that there was “no detectable spike” in infection rates. Id. The “number of [COVID-19] tests performed in Wisconsin has been relatively stable,” and “hospitalizations are much less than testing capacity,” meaning that these factors did not confound the analysis. Id. Given these results, this study concluded that “voting in Wisconsin on April 7 was a low-risk activity.” Id. at 2. Dr. Berry and his colleagues concurred, in a study entitled, Wisconsin April 2020 Election Not Associated with Increase in COVID-19, Tseytlin Decl. Ex. 19 at 1. This study analyzed “daily new [COVID-19] case reports” from April 12–21, which was the relevant “incubation period” post-April
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7, and compared them to “new case activity in the rest of the [United States].” Id. The study found that Wisconsin’s “daily new case rates were lower than those of the rest of the [United States]” for both “the 10-day period before the election” and “during the post exposure incubation period.” Id. at 2. “No evidence was found to support an increase in COVID-19 new daily case rates for the state of Wisconsin . . . following live voting on April 7, 2020.” Id. at 9.
Plaintiffs’ experts rely on a single, contrary study to conclude that the April 7 Election was associated with an increase in the number of COVID-19 cases in Wisconsin. See Swenson Dkt. 44 at 10 (Dr. Remington) (citing Chad D. Cotti, et al., The Relationship Between In-Person Voting, Consolidated Polling Locations, and Absentee Voting on Covid-19: Evidence From The Wisconsin Primary); Dkt. 440, Deposition of Dr. Megan Murray 109:18–119:3 (hereinafter “Murray Dep.”) (admitting that she had no other basis for this conclusion). This study is methodologically flawed in numerous respects. Although this study purported to find a “statistically and economically significant association between in-person voting and the spread of COVID-19 two to three weeks after the election,” Swenson Dkt. 44 at 11 & n.35 (Dr. Remington); see also Dkt. 370 ¶ 63 (Dr. Murray), the study’s dependent variable was the positive COVID-19 test rate in a county, not the COVID-19 infection rate in a county (i.e., positive cases per capita). Murray Dep. Ex. 2; Murray Dep. 59:6–9. Two counties with equal COVID-19 infection rates could show different positive COVID-19 test rates, simply because one county tested more individuals than the other. See Murray Dep. 61:3–7. As Dr. Murray conceded, it is possible that
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such differences in testing availability could lead to biased results in the authors’ study, see Murray Dep. 60:6–61:2. Thus, this association between in-person voting at the April 7 and the spread of COVID-19 could be the spurious result of differences in the availability of testing. Further, this study did not account for important countylevel factors that could well lead to different COVID-19 rates, making the study unreliable. See Murray Dep. Ex. 2; Murray Dep. 67:1–22.9 In particular, the study does not control for what the Centers for Disease Control and Prevention (“CDC”) calls the “primary and more important mode of transmission” of COVID-19: “close contact from person-to-person.” Dkt. 370 ¶ 33 (Dr. Murray); see Murray Dep 86:14– 87:14. Finally, the authors included observations from the week before the April 7 Election in their data. For those observations, any causal relationship, if there were one, might operate in the opposite direction, with fewer voters deciding to vote in person in counties with higher COVID-19 positive test rates. Including this data when trying to determine whether in-person voting on April 7 led to an increase in COVID-19 after the election could well lead to unreliable results. See Murray Dep. 79:1–80:17.
9 The authors of this study, perhaps recognizing these flaws, updated their paper with a new version in June 2020. See Murray Dep. Ex. 3 (Chad D. Cotti, et al., The Relationship Between In-Person Voting, Consolidated Polling Locations, and Absentee Voting on Covid19: Evidence From The Wisconsin Primary). However, although this new version of the study included model specifications in which the dependent variable was the number of cases per capita and included county fixed effects, the authors also added sources of potential error by including two additional weeks of data from before the April 7 Election. See Murray Dep. Ex. 3 at 13, 24.
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Finally, the remaining evidence that Plaintiffs rely upon does not support the conclusion that voting in person in November will be unsafe. The Gear Plaintiffs present testimony from a poll worker regarding an allegedly unsafe polling location in April, Dkt. 421 at 32–33, but this shows that polling places can, in fact, be set up safely, even under that poll worker’s standards. Regardless, “[t]hat some local [election officials] may disagree with the state’s approach does not permit them to enlist a federal court to override the state’s judgment.” Luft, 2020 WL 3496860, at *5. The Edwards Plaintiffs claim that voting in November will be unsafe because “churches, governmental buildings, and schools are routinely used as polling stations—and these are the buildings that assist viral spread.” Dkt. 397 at 10. But buildings cannot “assist viral spread”; it is the individuals and activities within these buildings and the lack of appropriate safeguards that cause such spread, and all buildings can be modified to safely support voting on Election Day. The DNC Plaintiffs similarly claim that “[w]idely accepted predictions anticipate that publichealth conditions in November are likely to be similar to, if not worse than, the April 7 Election,” Dkt. 420 at 3, but that assertion is directly contradicted by the Swenson Plaintiffs’ own tool, the IHME model that the Swenson Plaintiffs rely upon, which predicts that the COVID-19 situation in Wisconsin will much better in November than it was in April, Tseytlin Decl. Ex. 43.
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iii.

If Some Extremely Rare Series Of Events Renders

All Of These Options Reasonably Unavailable To

Some Unfortunate Voter In November, That Voter

Can Seek As-Applied Relief Then

Any Wisconsin voter can easily vote with “reasonable effort[s],” Frank II, 819

F.3d at 386, either by utilizing Wisconsin’s generous, no-excuses-needed mail-in

absentee-ballot regime, supra Part I.A.1.a.i, or through the multiple, safe in-person

voting methods, opening fourteen days before Election Day or on Election Day itself,

supra Part I.A.1.a.ii. Those readily available paths to vote defeat Plaintiffs’ claims

against “the general application of [Wisconsin’s election laws] to the millions of

persons” in Wisconsin statewide. Frank II, 819 F.3d at 387.

In all events, the as-applied failsafe that the Seventh Circuit discussed in

Frank II and Luft remains available for individual voters challenging a specific

provision of Wisconsin law that, even after considering Wisconsin’s election system

“as a whole,” Luft, 2020 WL 3496860, at *3, actually prevents the voter from casting

a ballot after expending “reasonable effort,” Frank II, 819 F.3d at 386. That

hypothetical voter would be exceedingly unfortunate to be unable to use any available

voting avenue: he would have to know that he does not wish to vote in person,

prudently request an absentee ballot well in advance of November, have that ballot

lost in delivery due to some error by the USPS, be unable to request a replacement

ballot, and be so compromised that he cannot safely vote in person. If that parade of

unlikely hypotheticals were to afflict a specific, extremely unlucky voter, that voter

can then seek—at the very most—narrow, as-applied relief under Frank II, limited

to that voter, for this election. Frank II, 819 F.3d at 386–87; see also Luft, 2020 WL

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3496860, at *8–9. Such a plaintiff could seek that remedy without any need for broadly applicable changes in Wisconsin law, thereby avoiding any confusion for other voters. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).
b. Even If This Court Looks At Each Provision “In Isolation,” Contrary To Luft, Each Is Constitutional
i. The Election-Integrity Provisions Wisconsin’s election-integrity measures—the witness-signature requirement, see Wis. Stat. § 6.87, the proof-of-residence requirement, Wis. Stat. § 6.34(2), and the photo-ID requirement, Wis. Stat. § 6.86(1)—satisfy the Anderson/Burdick balancing test, even if viewed in isolation from Wisconsin’s permissive voting regime. These measures each serve the State’s “indisputably . . . compelling interest[s]” in the integrity, legitimacy, and security of its elections. Eu, 489 U.S. at 231. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,” since “[v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell, 549 U.S. at 4. “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Therefore, the State has a paramount interest in “carefully identifying all voters [who may] participat[e] in the election process,” which ensures that the State counts “only the votes of eligible voters.” Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.). Wisconsin’s election-integrity measures are especially important in the context of the State’s broadly available no-excuses-needed mail-in absentee-voting regime.
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As the bipartisan Carter-Baker Commission explained, mail-in absentee voting is “the largest source of potential voter fraud.” Tseytlin Decl. Ex. 44. Or, as the Seventh Circuit has explained, “[v]oting fraud is a serious problem in U.S. elections . . . and it is facilitated by absentee voting.” Griffin, 385 F.3d at 1130; Nader v. Keith, 385 F.3d 729, 734 (7th Cir. 2004) (“[V]oting by mail makes vote fraud much easier to commit.”); accord Tex. Democratic Party, 961 F.3d at 413 (Ho, J., concurring) (collecting cases); Veasey v. Abbott, 830 F.3d 216, 239 (5th Cir. 2016) (en banc); Wrinn v. Dunleavy, 440 A.2d 261, 270 (Conn. 1982) (“[T]here is considerable room for fraud in absentee voting . . . .”). Even Justices who would have held other election-integrity measures unconstitutional have recognized that “absentee-ballot fraud . . . is a documented problem.” Crawford, 553 U.S. at 225 (Souter, J., dissenting).
(I) The Witness-Signature Requirement Wisconsin’s witness-signature requirement is constitutional, consistent with the Seventh Circuit’s stay decision before the April 7 Election. Dkt. 189 at 3–4. Under Section 6.87(4), absentee voters in Wisconsin must complete their absentee ballots “before one witness who is an adult U.S. Citizen,” who must also sign the ballot’s witness certification. Wis. Stat. § 6.87(4)(b)1; see Wis. Stat. § 6.87(2). This step, too, requires only “reasonable effort” from Wisconsin voters. Frank II, 819 F.3d at 386. Even considering COVID-19, there are “at least five concrete alternative suggestions for how voters can [safely and easily] comply with the state’s witness and signature requirements.” Dkt. 189 (citing Wis. Elections Comm’n, Absentee Witness Signature Requirement Guidance COVID-19 (Mar. 29, 2020)). This includes using a
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family or household member and mail-delivery persons or medical professionals, having a witness observe over Skype or FaceTime, and signing after sanitizing and social distancing. See Tseytlin Decl. Ex. 45. Further, this requirement is especially easy to satisfy since absentee voters may receive their ballots well in advance of the November Election. See supra p. 7.
The witness-signature requirement furthers the State’s interests in election integrity, which plainly outweigh its reasonable burdens. By requiring an absentee voter to obtain the signature of a witness, that witness helps ensure that the person who actually casts the ballot is the qualified voter who requested the absentee ballot. See Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.). Or, as the Seventh Circuit held in this case, the witness-signature requirement promotes “[c]onfidence in the integrity of our electoral processes,” which is “essential to the functioning of our participatory democracy,” because “[v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government.” Dkt. 189 at 3 (quoting Purcell, 549 U.S. at 4 (brackets in original)).
The DNC Plaintiffs claim that a witness-certification bypass is needed for those absentee voters who cannot safely secure a witness. Dkt. 420 at 34–45. But this does nothing more than ask this Court to flout the Seventh Circuit’s and Supreme Court’s recent stay decisions on this very issue. Back in April, the Seventh Circuit stayed this Court’s proposed bypass procedure, even though the electoral timeframe was much more compacted and the COVID-19 situation much more novel and unknown. Dkt. 189. And more recently, the Supreme Court stayed an Alabama
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district court’s order enjoining a witness-signature provision requiring voters to have their absentee ballot signed by a notary or two lay witnesses, a law requiring voters to expend more effort than Wisconsin’s. See Merrill, No. 19A1063 (U.S. July 2, 2020); see also Ala. Code § 17-11-10(b).
None of the declarations that Plaintiffs have submitted demonstrates the inability to obtain a witness signature with “reasonable effort” for November. Frank II, 819 F.3d at 386. Leah Mann says that she cannot “safely” obtain a witness because she “live[s] alone,” but there are numerous, safe alternatives that do not rely on a household member. Dkt. 324 ¶ 6; see supra pp. 42–43. Dolores Marie Garm notes that she “could have maybe found a witness and returned [her] ballot” even back in April if she only had an extra week—extra time she has (and many months more) before the November Election. Dkt. 295 ¶¶ 5, 7. Quintin Nulley provides no details explaining why he could not find a witness for April, and does not even claim that he cannot safely find a witness between now and November. Dkt. 334. The same is true of Elizabeth Trogdon. Dkt. 359. Debra Conmiller, the Executive Director of the League of Women Voters, Dkt. 380 ¶ 1, demonstrates the ease of compliance with the witness-signature requirement, as she explains the League of Women Voters volunteers have already worked to help absentee voters satisfy this requirement, e.g., Dkt. 380 ¶ 9. Finally, while Plaintiff Jill Swenson describes circumstances relating to some difficulties that she encountered obtaining a signature on short notice in April, she fails to explain why she cannot obtain a witness signature for November,
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given the many weeks she has to prepare for this requirement and the numerous avenues available to her and all Wisconsin voters. See Swenson Dkt. 47.
And the DNC Plaintiffs’ preferred bypass procedure is, at bottom, not meaningfully different from the procedure a district court in Luft imposed with respect to photo ID requirements, which the Seventh Circuit rejected. See 2020 WL 3496860 at *9. The DNC Plaintiffs’ discussion of “Indiana’s affidavit option” is thus self-defeating, Dkt. 420 at 35, as the district court in Luft also relied on that procedure, 2020 WL 3496860, at *2—and Luft still rejected it as a permissible remedy, emphatically, id. at *9–10. Even that aside, the Seventh Circuit already upheld the witness-signature requirement this past April—in the face of far more uncertainty, Dkt. 189. The DNC Plaintiffs’ requests for “modest adjustments” in this Court’s prior, invalidated order cannot mask their invitation to flout the Seventh Circuit’s prior decision, Dkt. 420 at 8, 34.
The DNC Plaintiffs attempt to analogize current circumstances to the “ID Petition Process” (“IDPP”) at issue in Luft is deeply misleading. Dkt. 420 at 36–40. As an initial matter, Wisconsin created that petition process itself, as its sovereign prerogative, and Luft holds only that a district court can monitor this process to ensure that it is available even as to the rare individual, such as Mr. Randle, described in that decision—not that the Court can simply order such a procedure itself. Luft, 2020 WL 3496860, at *8, *10–11. In any event, Wisconsin’s IDPP process is far different than the bypass procedure that the DNC Plaintiffs offer. Under Wisconsin’s IDPP procedure, an individual can obtain a photo ID only if he or she
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“show[s] up at a DMV,” brings “as much [required documentation] as he or she has,” Frank v. Walker, 835 F.3d 649, 651 (7th Cir. 2016) (per curiam) (“Frank III”), and then “fill[s] out two forms” with information, Tseytlin Decl. Ex. 46. This process allows the State to verify specific individuals after acquiring as much information as possible (a feature of the process that DNC Plaintiffs do not mention, Dkt. 420 at 37– 38), while also providing those individuals a receipt to temporarily satisfy the photoID requirement. See Luft, 2020 WL 3496860, at *4, *10–11. The DNC Plaintiffs’ process, in contrast, requires only that voters state that they cannot safely find a witness, provide their contact information (which the State already has, since the voter received an absentee ballot), and then promise to assist the State if “any questions or concerns” arise. Dkt. 420 at 34.
And, of course, the DNC Plaintiffs’ reliance on People First of Alabama v. Secretary of State, No. 20-12184, 2020 WL 3478093 (11th Cir. 2020), stayed No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020), Dkt. 420 at 44, backfires, since the Supreme Court stayed that erroneous injunction of state election laws. Thus, the DNC Plaintiffs ask this Court to enter an injunction that is sure to be stayed by the Seventh Circuit or Supreme Court once again.
The Gear Plaintiffs present no evidence of anyone at risk for not obtaining a witness for November with reasonable efforts. See Dkt. 421 at 52–53. Rather, as already mentioned, one of their declarants explains that her organization has engaged in efforts to assist absentee voters in this regard. Supra pp. 44–45. And while the Gear Plaintiffs argue that they have standing to challenge this
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requirement, owing to their diversion of resources, Dkt. 421 at 29, that does not establish—on the merits—that any individual voter cannot satisfy this provision with “reasonable effort.” Frank II, 819 F.3d at 386. While the Gear Plaintiffs mention the Seventh Circuit’s “suggestion” that “remote witnessing” could be used, Dkt. 421 at 56, the Seventh Circuit did not condition its upholding of the witness-signature requirement on that “suggestion,” see Dkt. 189 at 4. And the Gear Plaintiffs’ lengthy “unconstitutional conditions” argument, Dkt. 421 at 58–63, is a legally irrelevant distraction: Wisconsin’s witness-signature requirement does not impose an “unconstitutional condition[ ]” on any Wisconsin voter, since all voters may satisfy this law with “reasonable effort[s],” Frank II, 819 F.3d at 386, or alternatively, safely vote in person on Election Day, see supra Part I.A.1.a.ii.
The Edwards Plaintiffs’ arguments are similarly unpersuasive. To begin, their requested bypass of the witness-signature requirement fails for the same reasons as the DNC Plaintiffs’ request, Dkt. 397 at 35–36—this is just what this Court ordered last time, which was stayed by the Seventh Circuit, Dkt. 189, just like the affidavit procedure condemned in Luft. These Plaintiffs further rely on a consent decree invalidating a witness-signature requirement from the Western District of Virginia, Dkt. 397 at 36, without even discussing the stay decisions in this very case from the Seventh Circuit approving of the witness-signature requirement, Dkt. 189—or the multiple Court of Appeals and Supreme Court decisions overturning COVID-19related election-law injunctions, see supra pp. 2–3. Notably, a district court in Minnesota, which had the benefit of these later decisions, rejected an identical
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consent decree, see League of Women Voters of Minn. Educ. Fund v. Simon, Dkt. 52, No. 0:20-cv-1205 (D. Minn. June 23, 2020). And Plaintiffs’ reliance on Thomas v. Andino, No. 3:20-CV-01552-JMC, 2020 WL 2617329 (D.S.C. May 25, 2020), Dkt. 397 at 37, is of no help, as the court ordered relief from a witness-signature requirement as to an election that was one month away, id. at *30, while the November Election is over three months away. Further, South Carolina neither appealed nor asked the Supreme Court for a stay in Thomas, which the Supreme Court very likely would have granted, given that it granted a stay in the virtually identical case from Alabama. Merrill, No. 19A1063 (U.S. July 2, 2020). And Thomas was not bound by the Seventh Circuit’s caselaw, including its stay decision in this very case, and Luft.
(II) The Proof-Of-Residence Requirement The proof-of-residence requirement for registration found in Section 6.34(2) “do[es] not violate the Constitution.” Luft, 2020 WL 3496860, at *7. This requirement “impose[s] slight burdens on voters,” Luft, 2020 WL 3496860, at *7, and is “easy” to satisfy, see Frank I, 768 F.3d at 748. Section 6.34(2) provides simply that “upon completion of a [voter] registration form,” a voter “must provide an identifying document that establishes [their] proof of residence.” Wis. Stat. § 6.34(2). “[M]any acceptable forms of proof of residency” satisfy this requirement, and a voter may submit a form “as a hard copy, paper document or an electronic document on a smartphone, tablet, or computer.” Wolfe Decl. ¶¶ 23–24; Tseytlin Decl. Ex. 1. And if the voter registers online, the voter may satisfy the proof-of-residence requirement by simply entering a Wisconsin driver’s license or state-ID number. Tseytlin Decl.
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Ex. 1. Such “[a]dministrative step[s]”—“gathering documents” or perhaps “making a trip” to a government office—impose only “reasonable” or “slight burdens.” Luft, 2020 WL 3496860, at *7, *10 (citing Crawford, 553 U.S. at 198); accord Clingman v. Beaver, 544 U.S. 581, 593 (2005) (“fil[ing] a form” to register to vote requires only “minimal effort”).
The State’s interests in Section 6.34(2) outweigh its minimal burdens on voters. The “[p]roof of residence” requirement furthers the State’s compelling election-integrity interests because it “helps assign voters to their proper districts”— and, as Luft held, that makes this requirement “valid for that reason alone.” Luft, 2020 WL 3496860, at *7; accord supra Part I.A.1.a. That is, because “a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot,” the State may constitutionally require proof that voters meet residence-eligibility requirements. Id. (quoting Marston v. Lewis, 410 U.S. 679, 680 (1973)); accord Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.).
The DNC Plaintiffs (the only parties challenging this law) failed to offer any evidence that this requirement imposes anything more than reasonable burdens. They do not offer even a single declarant that claims that complying with this requirement would be burdensome at all, let alone so burdensome as to outweigh the State’s interest in election integrity. So, because voters may satisfy this requirement with “reasonable effort” between now and November’s Election Day, this provision is constitutional. Frank II, 819 F.3d at 386. For this reason, the DNC Plaintiffs’ claims that this requirement needs a certification-bypass procedure also fail, Dkt. 420 at 46–
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47, as the Legislature discussed more fully above in the context of the witnesssignature requirement, supra Part I.A.1.b.i.(I).
(III) The Photo-ID Requirement The photo-ID requirement for absentee voting found in Section 6.87(1) likewise satisfies the Constitution, consistent with binding Supreme Court and Seventh Circuit precedent. Crawford, 553 U.S. at 198 (controlling plurality op. of Stevens, J.); Luft, 2020 WL 3496860 at *9; Frank I, 768 F.3d at 748. Wisconsin’s photo-ID law imposes only reasonable burdens. Frank I, 768 F.3d at 748 (citing Crawford, 553 U.S. at 198 (controlling plurality op. of Stevens, J.)); see also Luft, 2020 WL 3496860 at *9. Section 6.87(1) provides that an “absent elector shall enclose a copy of his or her proof of identification . . . with his or her application” for an absentee ballot. Wis. Stat. § 6.87(1). If the voter “applies for an absentee ballot in person at the clerk’s office,” then the voter must “present[ ] proof of identification” to the clerk. Wis. Stat. § 6.86(1)(ar). The vast majority of absentee voters may satisfy this requirement without leaving their homes. If the voter already has a photo ID on file, then the voter already satisfies this requirement. Tseytlin Decl. Ex. 3; Wolfe Decl. ¶ 31; see Wolfe Dep. 102:2–11. For voters who do not have a photo ID on file, they can upload a picture of it to the MyVote website using a “computer, tablet, or phone” when they request their absentee ballot online. Wolfe Decl. ¶ 31. Thus, “[t]he entire process of requesting a[n] [absentee] ballot, taking a picture of an ID, and uploading the picture can be done with a smart phone.” Wolfe Decl. ¶ 31. These
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“[a]dministrative step[s]” are only “reasonable” or “slight burdens.” Luft, 2020 WL 3496860, at *7, *10.
The photo-ID law furthers the State’s compelling interests in election integrity and security, which easily outweigh the minimal burdens the law imposes, and so satisfies Anderson/Burdick. The State must “carefully identify[ ] all voters [who may] participat[e] in the election process,” Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.), as there is no “right to walk up to a voting place on election day and demand a ballot,” Luft, 2020 WL 3496860, at *7 (Marston, 410 U.S. at 680). Requiring voters to present a photo ID obviously furthers that identification goal, thus “promot[ing] confidence” and “mak[ing] elections cleaner.” Frank I, 768 F.3d at 750–51. This is why the Supreme Court, the Seventh Circuit, and this Court have consistently recognized the constitutionality of such laws. Crawford, 553 U.S. at 204 (controlling plurality op. of Stevens, J.); Luft, 2020 WL 3496860 at *9; Frank I, 768 F.3d at 755; Dkt. 217:13–14; see also Dkt. 37 at 16–17.
The DNC Plaintiffs failed to offer any evidence, even from their multitude of declarants, that a voter exists who could not satisfy the photo ID requirement for the November Election without “reasonable effort[s].” Frank II, 819 F.3d at 386. While Shirley Powell notes that she failed to provide a copy of her photo ID when requesting an absentee ballot by mail, she does not explain why she could not obtain assistance copying her photo ID or uploading it to the MyVote Website herself. See Dkt. 341 at 2–4. Further, she does not claim that voting will be difficult in the November 2020 Election, instead stating that she “think[s] voting by absentee ballot may be the best
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way for [her] to vote.” Dkt. 341 at 3. And while the DNC Plaintiffs complain that

voters are confused by the “indefinitely confined” exception to the photo ID

requirement, Dkt. 47–49, all citizens are presumed to know the law, see Cochran v.

Ill. State Toll Highway Auth., 828 F.3d 597, 600 (7th Cir. 2016), and the Commission

has published clear guidance on this point, supra p. 10; see Tseytlin Decl. Ex. 12;

Wolfe Dep. 40:12–19. In any event, even if this provision could confuse some voters,

that does not support Plaintiffs’ Anderson/Burdick claim here, as nothing in the

record indicates that any Plaintiff cannot utilize this exception due to any sort of

confusion. Notably, none of the DNC Plaintiffs’ numerous declarants even so much

as claims that he or she cannot vote in November after reasonable efforts because of

some confusion as to the indefinitely-confined-voter exception.

ii.

Registration Deadlines

“Registering to vote is easy in Wisconsin.” Frank I, 768 F.3d at 748. Under

Wisconsin law, voters have until October 14, 2020, to register for the November

Election in person at the clerk’s office, by mail, or online at the MyVote website—or

until October 30 using late registration at the clerk’s office. Wis. Stat. §§ 6.28(1),

6.29(1)–(2)(a); see Tseytlin Decl. Ex. 2 (first link). Wisconsin also has “generous . . .

same-day registration” available. Luft, 2020 WL 3496860, at *3, *7; see Wis. Stat.

§ 6.55(2).

These registration deadlines impose only reasonable burdens on Wisconsin

voters. See Luft, 2020 WL 3496860, at *3. Wisconsin voters have months to register

online or by mail for the November Election—with no need to leave their homes—and

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they may register today. See Wis. Stat. §§ 6.28(1), 6.29(1)–(2)(a). Voters have months to register in person before Election Day, see Wis. Stat. § 6.28(1)(a), and may even register in person on Election Day itself right before casting a ballot, Wis. Stat. § 6.55(2). If any qualified elector fails to “act” in accordance with such “mere[ ] [ ] time limitation[s],” that would be due solely to “their own failure to take timely steps to effect their [registration].” Rosario v. Rockefeller, 410 U.S. 752, 758 (1973); see also Burdick, 504 U.S. at 436–37 (giving “little weight to the interest [of voters] . . . in making a later rather than early decision” (citation omitted)); accord Republican Nat’l Comm., 140 S. Ct. at 1207 (“[E]ven in ordinary elections, voters who request an absentee ballot at the deadline for requesting ballots, will usually receive their ballots on the day before the election or day of the election . . . .”).
Wisconsin’s “valid and sufficient interests in providing for some period of time—prior to an election—in order to prepare adequate voter records and protect its electoral process from possible fraud” justify the registration deadlines’ miniscule burdens under Anderson/Burdick. Luft, 2020 WL 3496860, at *7 (quoting Marston, 410 U.S. at 680) (emphasis in original). Indeed, the State “inevitably must” enact such deadlines, Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997), to ensure the “orderly administration,” Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.), and “efficient[ ]” operation of its elections, Burdick, 504 U.S. at 433; accord Mays v. LaRose, 951 F.3d 775, 787 (6th Cir. 2020).
The only parties challenging the registration deadlines are the DNC Plaintiffs, and their arguments are insufficient. Dkt. 420 at 28–30. The DNC Plaintiffs ask the
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Court to extend the by-mail and electronic registration deadlines, yet they do not even attempt to explain—let alone provide any evidence for—why any qualified elector needs more than months already available to register via these methods. See Dkt. 420 at 28–30. Indeed, the DNC Plaintiffs are unable to present a single declarant or any other evidence to suggest that any voter will be unable to register for the November Election with more than “reasonable effort[s].” Frank II, 819 F.3d at 386. The interests of those persons who voluntarily fail to act—even if due to the “human nature to procrastinate,” Dkt. 420 at 32—have “little weight” in the Anderson/Burdick analysis. Burdick, 504 U.S. at 436–37; see also Rosario, 410 U.S. at 758; accord Republican Nat’l Comm., 140 S. Ct. at 1207.10 In any event, even these “procrastinat[ing],” unregistered voters may still vote in November by simply completing same-day registration at the polling place itself. Wis. Stat. § 6.55(2). Thus, contrary to DNC Plaintiffs’ arguments, no “unregistered but eligible voters” will “face the same ‘excruciating dilemma’ [previously] identified by this Court,” so long as they simply do not make the personal “deci[sion] to register and vote shortly before the November election,” Dkt. 420 at 30 (quoting Dkt. 37 at 11), even assuming there could be similar mailing problems come November.
The Court’s justification for extending registration deadlines on March 20 for the April 7 Election is no longer applicable. The Court concluded that this extension
10 The fact that Wisconsin’s electronic and by-mail registration deadlines fall “before voters have even evaluated the candidates in the second and third scheduled Presidential debates” is constitutionally irrelevant. Dkt. 420 at 29. Any unregistered voter relying on those debates to determine how to cast a ballot in the November Election can obviously still register to cast that ballot by these deadlines.
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was warranted in light of the sudden onset of COVID-19 in the immediate weeks

leading up to the election, see Dkt. 37 at 2, 4–5, in which “the State of Wisconsin and

the CDC” had “urged” everyone “to avoid public spaces altogether,” Dkt. 37 at 11.

Now, voters have months to register in advance of the November Election, and they

are fully aware of the need to take COVID-19 precautions if necessary. Further, while

the government is advising certain precautions, it is no longer urging individuals to

avoid the public sphere entirely, as Wisconsin has largely reopened. See supra p. 15.

iii.

Absentee-Ballot Related Provisions

Multiple Plaintiffs challenge Wisconsin’s absentee-ballot-receipt deadline, and

the Gear Plaintiffs challenge Wisconsin’s decision to afford only military and overseas

electors the ability to receive absentee ballots via email or fax. These aspects of

Wisconsin’s election administration are constitutional.

(I) Absentee-Ballot Delivery Deadline

Under Section 6.87(6), absentee ballots must be “delivered to the polling place

serving the elector’s residence before 8 p.m. on election day,” while “[a]ny ballot not

mailed or delivered as provided . . . may not be counted.” Wis. Stat. § 6.87(6).

Section 6.87(6)’s deadline, like the registration deadlines, impose only minimal

burdens. An elector may return an absentee ballot through a variety of easy methods.

See generally Luft, 2020 WL 3496860, at *3. All voters may simply mail the absentee

ballot in a timely manner, which is particularly reasonable given that clerks may

begin mailing ballots well over a month in advance of the election. Supra p. 7. Voters

may leave completed absentee ballots in a designated drop box utilized by their

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municipality, hand deliver them to the clerk’s office (or another designated site), or even bring them to the polling place on Election Day. See supra p. 7. And a proxy for the voter may complete any of those delivery methods on behalf of the voter under the Commission’s interpretation of Wisconsin law. See supra p. 8. Additionally, many voters may use the in-person absentee procedure from 14 days before the election through the Sunday prior (October 20–November 1), which procedure municipalities may offer “without any restriction on the number of hours per day that a municipality may choose to keep its office open.” Luft, 2020 WL 3496860, at *1; see supra p. 8.
Voters need only expend minimal effort to timely deliver an absentee ballot. This “[a]dministrative step[ ]” requires little of the voter, Luft, 2020 WL 3496860, at *7, *10 (citing Crawford, 553 U.S. at 198), and—given the time and multiple avenues available to comply—a voter’s “failure to take timely steps to” meet this deadline lies with the voter alone. Rosario, 410 U.S. at 758; Burdick, 504 U.S. at 436–37. “[E]ven in an ordinary election” the State may expect voters to act in advance of these deadlines to vote absentee; for example, “voters who request an absentee ballot at the deadline for requesting ballots[ ] will usually receive their ballots on the day before the election or day of the election,” potentially requiring them to cast that absentee ballot at the polling place. Republican Nat’l Comm., 140 S. Ct. at 1207.
The State has a strong interest in Section 6.87(6)’s absentee-ballot-receipt deadline. The State “inevitably must” enact an absentee-ballot-receipt deadline, Timmons, 520 U.S. at 358, which necessarily furthers its compelling interests in the
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“orderly administration” and integrity of its elections, Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.); Eu, 489 U.S. at 231. The election-day deadline allows for adequate time to canvass the election results, so as to accurately and timely report election-day winners. See Tseytlin Decl. Ex. 48. As Administrator Wolfe explained, local officials experienced “an extremely tight turnaround,” requiring “incredible efforts . . . on the part of local election officials,” to meet certification deadlines after this Court extended the absentee-ballot-receipt deadline for the April 7 Election. Wolfe Dep. 48:12–16. While the cost of missing certification or reporting deadlines for the April Election may have been bearable—were this “extremely tight turnaround to prove” too restrictive—missing such deadlines for the Presidential election in November would be intolerable.
Extending this deadline for the November Election would be far more harmful to the State’s and the Nation’s interests than the extension that this Court ordered in April, given that the November Election includes the Presidential race. As this Court previously recognized, an order extending the absentee ballot receipt deadline must be paired with an order prohibiting the release of any election results until the new, court-imposed deadline, in order to ensure election integrity and public confidence in the results. See Dkt. 179. Imposing this gap in November would delay the public announcement and completion of Wisconsin’s election results, including as to the Presidential race, for more than a week, potentially leaving the State and the Nation in needless limbo, given Wisconsin’s swing-state status.
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Further, “[c]ommon sense . . . compels the conclusion that government” may “structure” its election administration to require the receipt of all ballots by the date of the election: Election Day. Burdick, 504 U.S. at 433, 441. The State has adopted this eminently reasonable requirement, already engaging for itself in the “difficult” “balancing [of] the competing interests involved.” Griffin, 385 F.3d at 1130. Upsetting that considered balance with a federal-court order would be nothing more than “federal judicial micromanagement of state regulation of elections,” which Anderson/Burdick does not allow. Stevo v. Keith, 546 F.3d 405, 409 (7th Cir. 2008); accord Republican Nat’l Comm., 140 S. Ct. at 1207 (avoiding “judicially created confusion” from such orders is “the wisdom of the Purcell principle”).
This Court’s basis for extending this deadline for the April 7 Election, which was ultimately reversed in part by the Supreme Court, Dkt. 170 at 38, is now plainly inapplicable to the November Election. This Court’s concern in April was that “even the most diligent voter may be unable to return his or her ballot in time to be counted.” Dkt. 170 at 38. This does not apply to the November Election, as any diligent voters who wish to vote mail-in absentee can request absentee ballots even now and return them far in advance of the November Election Day deadline, thereby avoiding all but the most extreme and unlikely series of mailing scenarios. See supra pp. 40–41. As noted above, many of Plaintiffs’ own declarants have already sent in a request, or will presumably do so soon. See supra pp. 28–29.
The Plaintiffs’ various counterarguments are unpersuasive.
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To begin, the DNC Plaintiffs imply that the Supreme Court tacitly approved this Court’s week-long extension of the absentee-ballot deadline, but any such suggestion would be erroneous. Dkt. 420 at 2. None of the Intervenor Defendants presented this issue to the Supreme Court. Accordingly, the Court did not consider the merits of that extension, even as to the April 7 Election, to say nothing of its application to the November 2020 Election. Republican Nat’l Comm., 140 S. Ct. at 1207. Rather, the Court focused on the “sole,” “narrow, technical question” of whether “absentee ballots now must be mailed and postmarked by election day,” given this Court’s one-week extension. Id. at 1206. And the Court refused to “express[ ] an opinion on . . . whether other reforms or modification of election procedures in light of COVID-19 are appropriate,” a point that “cannot be stressed enough.” Id. at 1208.
The DNC Plaintiffs’ reliance on the number of absentee ballots returned during the one-week extension does not justify an identical extension in November. Dkt. 420 at 31; see also Swenson Dkt. 41 at 42–43. The massive, unexpected, and sudden shift of would-be in-person voters to absentee voters for the April Election caused that large number of returned ballots in that one-week period. See Dkt. 170 at 8–13, 38– 39; Dkt. 181 at 127:19–128:7. Those circumstances are not even arguably present now, in the months leading to November. Instead, individuals now have ample time before the November Election to vote absentee if they desire. As noted, those voters may immediately request an absentee ballot, which leaves them with more than enough time to deliver the ballot come November 3. See supra p. 7. Expecting these
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voters to prudently plan in this manner requires nothing more than their “reasonable effort,” which is sufficient to satisfy Anderson/Burdick. Frank II, 819 F.3d at 386.
The DNC Plaintiffs claim that the Commission implemented this Court’s oneweek extension “without causing any administrative problems for elections officials,” Dkt. 420 at 31; see also Dkt. 420 at 33, but that is refuted by Administrator Wolfe, as already noted above. Because of this extension, local officials operated with “an extremely tight turnaround,” requiring “incredible efforts” to certify the results on time. Wolfe Dep. 48:12–16.
The references by the DNC Plaintiffs to mistakes by the USPS in the delivery of absentee-ballots in April also do not justify enjoining Wisconsin’s absentee-ballot deadline. Dkt. 420 at 12–13, 17–18, 31–32. Wisconsin does not control that federal agency, thus its actions could not support facially enjoining provisions of Wisconsin’s election law. That unfair result would violate fundamental standing principles. See Part I.A.6.a. Regardless, the USPS has investigated these discrete absentee-ballotdelivery issues, issued a report detailing its findings, and proceeded to implement recommendations to prevent their recurrence in November. Supra pp. 17–18.
The DNC Plaintiffs further argue that an extension is necessary because the “third and final 2020 Presidential Debate” occurs “only 12 days before election day,” but that debate is of no constitutional import, Dkt. 420 at 32, as absentee voters almost always cast their votes without “information . . . that surfaces in the late stages of the election campaign,” Griffin, 385 F.3d at 1131.
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Also unconvincing are the DNC Plaintiffs’ recitations of difficulties experienced by other States for elections held in early June. Dkt. 420 at 31–32. Those States’ experiences have no bearing on the operation of Wisconsin’s election laws, and Wisconsin successfully held an election in May—with no claims of difficulties from any quarters. Supra p. 15. And the November Election is still months away, further negating any comparative value to those out-of-state June elections.
The Edwards Plaintiffs generally requested their absentee ballots close to the April Election, Dkt. 397 at 17–18, 20–23 (two voters not mentioning any request), so presumably they—and all those like them—can take the “reasonable effort,” Frank II, 819 F.3d at 386, of planning ahead and ordering their ballots now, assuming they do not want to vote in person in November. Expecting voters who do not want to vote in person to take such prudent measures is a “reasonable” burden, id., and the Edwards Plaintiffs have not argued that voters are constitutionally entitled to wait until the absentee-ballot-request deadline approaches before submitting their requests. And even if a voter fails (or declines) to request an absentee ballot with sufficient time, in-person voting remains a safe and constitutionally sufficient option.
As for the Swenson Plaintiffs, their absentee-ballot-deadline-extension arguments suffer from the same flaws already discussed above, Swenson Dkt. 41 at 42–43: They focus on the exigent circumstances immediately leading up to the April 7 Election, which exigency no longer exists, given the months until the November Election. See supra pp. 7, 15–16. So, while these Plaintiffs assert that “Wisconsin’s statutory deadline for receipt of mail-in absentee ballots is again likely to
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disenfranchise thousands of voters,” Swenson Dkt. 41 at 37, they have no evidence to substantiate that claim. Although these Plaintiffs argue that voters who wait until the last day available to request absentee ballots may not receive them in time, Swenson Dkt. 41 at 43, “voters who request an absentee ballot at the deadline” are well aware of this possibility, and can be expected to request their ballots further in advance (including now). Republican Nat’l Comm., 140 S. Ct. at 1207. Indeed, there is no constitutional requirement that Wisconsin allow absentee voters to request absentee ballots only five days before an election. McDonald, 394 U.S. at 807; O’Brien, 414 U.S. at 530; Griffin, 385 F.3d at 1129–30. Plaintiffs’ attempts to turn this capacious privilege on its head, characterizing it as a burden to be overcome, Swenson Dkt. 41 at 42–43, misses the mark.
Finally, the Swenson Plaintiffs’ various arguments about the rejection of absentee ballots do not implicate COVID-19, and they lack any record evidence supporting their assertions that Wisconsin’s existing procedures are constitutionally burdensome. Swenson Dkt. 41 at 51–54. The Legislature addresses these arguments in the procedural-due-process section of this Brief. Infra Part I.A.2.
(II) Emailing Or Faxing Absentee Ballots Section 6.87(3) requires municipal clerks to deliver absentee ballots via fax or email upon request from military or overseas electors, but not to “regular” absentee voters. Wis. Stat. § 6.87(3)(d). Wisconsin’s reservation of email/fax delivery to military and overseas voters, thus requiring all other “regular” voters to receive absentee ballots by mail, poses no Anderson/Burdick concerns.
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As Luft held, Wisconsin “could reasonably conclude that members of the military [and overseas voters] face special problems,” such as the inability “to return to the state to use its regular voting methods, which justify willingness on the state’s part to accept the burdens that fax or email cause for the vote-counting process.” 2020 WL 3496860, at *8. In other words, these voters’ special circumstances make the State willing to establish and manage the logistics of email/fax delivery, as well as the burdens of processing these voters’ mailed returns of home-printed absentee ballots and witness certificates. See id.; Wolfe Dep. 139:3–19 (explaining that “a lot of work” went into developing this system, which “automatically” generates ballots for these voters). That latter burden on the State is particularly notable: because military and overseas voters return faxed/emailed absentee ballots “on regular printer paper,” not “official ballot stock,” the clerks must “remake the ballot [on official paper] so that it can be counted by the voting equipment on election day.” Wolfe Dep. 153 at 3–9; see Luft, 2020 WL 3496860, at *8.
Even placing Luft’s dispositive holding aside, Wisconsin’s Section 6.87(3) does not impose any constitutionally meaningful burden on Wisconsin voters. Wisconsin grants “liberal access to absentee ballots” for every voter, allowing any qualified elector to receive such ballots in the mail. Luft, 2020 WL 3496860, at *3. Any elector may request an absentee ballot immediately, the Commission has facilitated such requests by mailing absentee-ballot-request forms to a large number of electors, and municipal clerks will begin mailing requested absentee ballots well in advance of the November Election. Supra p. 7.
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The State’s interests in Section 6.87(3) outweigh any burdens. The State may legitimately “control errors arising from the fact that faxed or emailed ballots cannot be counted by machine,” thereby furthering its compelling election-integrity interests, Luft, 2020 WL 3496860, at *7, and “it is obvious that a federal court is not going to decree . . . Internet voting,” Griffin, 385 F.3d at 1129–30. That “some voters might be inconvenienced by this rule—road warriors who may be out of state, or leisure travelers who don’t plan ahead”—“does not permit a court to override the state’s judgment that other interests predominate.” Luft, 2020 WL 3496860, at *7; Griffin, 385 F.3d at 1129–30.
The arguments of the Gear Plaintiffs, the only Plaintiffs challenging this particular provision, run contrary to Luft. Before engaging their specific arguments, it is important to emphasize that the Gear Plaintiffs’ argument here is based on the hypothetical that some voter might need “a fail-safe option” if all of Wisconsin’s generally available voting procedures are somehow futile. Dkt. 421 at 33. But these Plaintiffs’ various catalogue of “solutions” only become relevant if there is some constitutional violation. Under Anderson/Burdick, the Court “weigh[s] . . . burdens against the state’s interests by looking at the whole electoral system,” Luft, 2020 WL 3496860, at *3, not the proposed remedy from a challenger to the law. To do otherwise allows the Court to substitute “judicial judgment for legislative judgment,” picking which individual election clauses are “beneficial” and which are too burdensome, “on balance.” Id. But this is what Luft foreclosed, which means the Gear Plaintiffs’ various “solutions” are irrelevant because Wisconsin’s overall electoral system
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“make[s] voting easier”—a “fact[ ]” that “matter[s] when assessing challenge to a handful of rules that [may] make voting harder.” Id.
The Gear Plaintiffs claim that sending “automated” ballots via email or fax adds no work for municipal clerks, and thus there is no burden to the State. Dkt. 421 at 36. But as Luft already concluded, Wisconsin is constitutionally permitted “to control errors arising from the fact that faxed or emailed ballots cannot be counted by machine.” 2020 WL 3496860, at *7. And these Plaintiffs’ contentions that ordering municipal officials to send such email and fax ballots is presently possible and endorsed by a handful of local election officials, Dkt. 421 at 36–38, 41–42; but see Luft, 2020 WL 3496860, at *5, betrays Plaintiffs’ aim: they are not seeking a constitutional remedy, but rather their own preferred election reform. “[A]s far as national government is concerned,” however, “which decisions a state wishes to make statewide, and which locally, are for the state to decide.” Luft, 2020 WL 3496860, at *5. In any event, Plaintiffs have cited no examples of courts creating hypothetical “fail-safe” remedies to be employed only as a last resort like the kind they now seek.
The Gear Plaintiffs’ assertion that “the Wisconsin election code does not contain any other provisions that ameliorate or negate the threat of disenfranchisement when a ballot does not arrive in the mail,” Dkt. 421 at 30–31, is false. Any voter who needs a replacement ballot because they never received their first one can contact the voter’s municipal clerk to receive a replacement, Tseytlin Decl. Ex. 8. And, of course, voters who, for any reason, do not receive an absentee
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ballot and did not leave themselves enough time for another request can safely vote

in person at their polling places on Election Day. Wis. Stat. §§ 6.76–78, 6.80.

iv.

The Commission’s Provision Of Voter Education

Section 5.05(12) authorizes the Commission to promulgate “educational

programs to inform electors about voting procedures, voting rights, and voting

technology,” and Section 6.869 requires the Commission to publish uniform absentee-

voting procedures. Consistent with Section 5.05(12), the Commission has provided

“a great deal of guidance” to the voting public. Wolfe Dep. 40:12–19. “[S]ince the

implementation of the photo ID law,” for example, the Commission has “put out

documentation” and “public information,” and it has the “bringit.wi.gov website” and

numerous other online pages. Wolfe Dep. 40:12–19; e.g., MyVote.wi.gov; supra p. 6.

The Commission has “develop[ed]” other “voter outreach tools,” including “videos and

documentation for voters to understand the mechanics of the voting process,”

“including absentee [voting].” Wolfe Dep. 109:13–19. And the Commission has

approved the mail voting information, including absentee-ballot-request forms, to a

large number of Wisconsin voters in advance of the November Election. Supra pp.

15–16. The Commission has also satisfied Section 6.869’s mandate, publishing

uniform absentee-voting instructions for Wisconsin voters, that meticulously detail,

in easy-to-understand language: the requirements for requesting an absentee ballot,

including as to the photo ID requirement; completing a ballot in front of a witness

and obtaining the witness’s signature; timely returning the ballot; and requesting a

replacement ballot to correct errors. Tseytlin Decl. Ex. 8 at 1–2.

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The Swenson Plaintiffs claim that the Court should order the Commission to engage in a broader public-education campaign to apprise Wisconsin citizens of their voting rights. Swenson Dkt. 41 at 50–51, 64, 66. But while they cite Section 5.05(12) of the Wisconsin Statutes, they do not discuss the existing educational efforts of the Commission (including those just described above) or why those efforts are insufficient. Further, Plaintiffs have not cited any case holding that a state agency’s failure to educate the electorate sufficiently unreasonably burdens any voting rights under the Anderson/Burdick framework. See Swenson Dkt. 41 at 50–51, 64, 66. In fact, the opposite proposition is true: the Constitution places the “onus [ ] on citizens to inform themselves of the laws and regulations of the state.” Cochran, 828 F.3d at 600.
Relatedly, the DNC Plaintiffs reference the public-education component of the district-court order in One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016), aff’d in part, vacated in part, rev’d in part sub nom. Luft, 2020 WL 3496860, which had ordered the State to “inform the general public that those who enter the IDPP will promptly receive a credential valid for voting,” id. at 964; Dkt. 420 at 38–39. The One Wisconsin order was a remedy for an underlying constitutional violation that the district court there had found, One Wisconsin, 198 F. Supp. 3d at 948–49, 963–64—a finding that the Seventh Circuit ultimately vacated, Luft, 2020 WL 3496860, at *10–*11. The absence of a particular public-education campaign was not itself a constitutional violation. See One Wisconsin, 198 F. Supp. 3d at 948–49, 963–64. As explained throughout this brief, none of the Plaintiffs has established
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any underlying constitutional violation that would justify such a public-education

remedy here, thus there is no need to order the Commission to engage in any such

campaign.

v.

Deadline For Designating In-Person-Absentee

Locations And The Residency Requirement For

Polling-Place Inspectors

The remaining Wisconsin election law provisions under challenge here, dealing

with the designation of in-person-absentee voting locations, residency requirements

for poll workers, and centralizing the counting of absentee ballots, are entirely

reasonable under Anderson/Burdick, even if viewed in isolation.

a. Section 6.855 requires municipalities to have designated locations for in-

person-absentee voting beyond the clerk’s office “14 days prior to the time that

absentee ballots are available for the primary,” Wis. Stat. § 6.855(1), which was

June 11, 2020, for the November Election. This furthers Wisconsin’s interests in

election integrity and orderly administration, while making voting easier. Crawford,

553 U.S. at 196 (controlling plurality op. of Stevens, J.); Eu, 489 U.S. at 231. By

requiring the designation of in-person-absentee locations well in advance of the

election, voters will learn well before they must cast their ballots whether this

convenient voting option is available, and local municipalities will have adequate

time to prepare staffing and other logistics for these sites.

The Swenson and Edwards Plaintiffs briefly challenge this requirement of

Section 6.855. Swenson Dkt. 41 at 41–42; Dkt. 397 at 52–53. They do not claim that

this section imposes a burden on voters, fail to cite any record evidence demonstrating

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that this section imposed any difficulties for the April 7 Election, and do not cite any case supporting their argument. See Swenson Dkt. 41 at 41–42; Dkt. 397 at 52–53. Instead, they claim that allowing municipalities to designate additional locations after June 11 would be good policy because, for example, existing locations “could be closed” due to COVID-19 or other locations may prove “better.” Swenson Dkt. 41 at 42; Dkt. 397 at 52–53. Those arguments invite the sort of “judicial micromanagement” that Anderson/Burdick forbids. Stevo, 546 F.3d at 409; see Luft, 2020 WL 3496860, at *8.11
b. Section 7.30(2) provides that a polling-place inspector must “be a qualified elector of a county in which the municipality where the official serves is located.” Wis. Stat. § 7.30(2)(a). This provision ensures that officials who are truly local administer the polling places, furthering the State’s desire to take a “decentralized” approach to election administration. See supra pp. 11–12. Since that policy decision does not impose any meaningful burden on any voter, the Court cannot second-guess the State’s “willingness” to “accept the burdens.” Luft, 2020 WL 3496860, at *8; see also Stevo, 546 F.3d at 409 (“judicial micromanagement”).
11 Beyond challenging Section 6.855(1)’s deadline to designate alternate in-personabsentee-voting sites, the Edwards Plaintiffs also claim to challenge Section 6.86(1)(b)’s limitation of in-person-absentee voting to 14 days prior to Election Day. Dkt. 397 at 51–52. Luft squarely forecloses that challenge, 2020 WL 3496860, at *6, which, remarkably, the Edwards Plaintiffs appear to both recognize and somehow ask this Court to disregard. Dkt. 397 at 51–52. Additionally, nowhere does the Edwards Plaintiffs’ Amended Complaint allege that Section 6.86’s limitation on the number of days of in-person-absentee voting imposes an unreasonable burden on the right to vote, further demonstrating the boundless sweep of the Edwards Plaintiffs’ request that this Court enjoin any election law that they consider “[un]reasonable.” Edwards Dkt. 5 at 50 ¶ b.
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Here, too, only the Swenson and Edwards Plaintiffs challenge this provision. Swenson Dkt. 41 at 41; Dkt. 397 at 53. Yet, just as with the previous provision, neither group of Plaintiffs cites any record evidence suggesting that this provision (rather than, for example, the staffing decisions of certain local officials) contributed to any poll-worker shortages. See Swenson Dkt. 41 at 41; Dkt. 397 at 53. Rather, this provision imposed no barrier, as the Commission was able to staff National Guard members “to serve as [supplemental] poll workers [in the April 7 Election] in their local counties of residence.” Wolfe Memo at 8 (emphasis added). And while both sets of Plaintiffs claim (with no case law support) that Wisconsin needs a “compelling state interest” to justify Section 7.30(2), Swenson Dkt. 41 at 41; Dkt. 397 at 53, this provision need not satisfy that higher test, see supra pp. 23–24. Section 7.30(2) is simply a “reasonable” regulation that is fully justified by the State’s interests in the orderly administration of its elections. Stone, 750 F.3d at 681.
2. Procedural Due Process Claims A procedural due process claim under Mathews v. Eldridge, 424 U.S. 319 (1976), requires the court to weigh: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335. Within the Mathews framework, the Court must first “determine if the plaintiff has been deprived of a liberty or
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property interest” protected under the Clause. Knutson v. Vill. of Lakemoor, 932 F.3d 572, 576 (7th Cir. 2019). And second, the Court must “determine if the plaintiff was provided constitutionally sufficient process.” Id. Thus, “what is required in the name of due process depends . . . on the costs as well as the benefits of process.” Protect Marriage Ill. v. Orr, 463 F.3d 604, 608 (7th Cir. 2006).
a. As an initial matter, the Seventh Circuit has held that the Anderson/Burdick “test applies to all First and Fourteenth Amendment challenges to state election laws,” necessarily including Fourteenth Amendment procedural due process claims. Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019); see also Albright v. Oliver, 510 U.S. 266, 273 (1994) (concluding that the Anderson/Burdick right-to-vote analysis is “the guide for analyzing [voting-rights] claims,” rather than “the more generalized notion” of due process). This Court previously noted that the DNC Plaintiffs have failed to “explain how, if at all, their separate procedural due process claim is distinguished from their undue burden claims,” and that the two “appear[ ] to be duplicative.” Dkt. 217 at 14–15. Plaintiffs have not heeded this Court’s warning that they must “articulate a specific legal or factual rationale for applying the Mathews [balancing] test over the AndersonBurdick test in evaluating a challenged provision,” id. at 15, and, therefore, this Court should cabin its analysis to Anderson/Burdick. The Seventh Circuit adopted this same paring approach in Luft, concluding that it was “not necessary to analyze” the plaintiffs’ Twenty-Sixth Amendment and “partisan fencing” claims to certain Wisconsin voting laws separately from their Anderson/Burdick claims. Luft, 2020
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WL 3496860, at *5. And because Wisconsin’s electoral system, as a whole, does not place an undue burden on voters’ rights under Anderson/Burdick, see supra Part I.A.1., Plaintiffs’ procedural due process claim necessarily fails as well.
The DNC Plaintiffs half-heartedly contend that there remains some play in the joints between the Anderson/Burdick framework and procedural due process in challenges to voting laws, before ultimately giving up on this point. Dkt. 420 at 53– 56. They admit that they “have not yet found a decision in which a court accepted an Anderson-Burdick claim while rejecting a due process challenge to the same provision; or rejected an Anderson-Burdick challenge while striking down the same provision as violating due process.” Dkt. 420 at 54. And they further concede that they only want this Court to “use both an Anderson-Burdick and a due process analysis . . . to confirm that the two analyses both lead to the right result.” Dkt. 420 at 56 (emphasis added). Thus, the DNC Plaintiffs agree that their procedural due process claim is duplicative of the Anderson/Burdick framework, and it is “not necessary to analyze” the laws separately under this framework. Luft, 2020 WL 3496860, at *5.
The Swenson Plaintiffs similarly claim that they are entitled to an independent analysis under the procedural due process clause, without citing any supporting case, because “procedural [due process] rights are analytically distinct from the Anderson/Burdick framework.” Swenson Dkt. 41 at 47 n.188. This unsupported assertion fails to either meet this Court’s requirement that Plaintiffs “articulate a specific legal or factual rationale for applying the Mathews [balancing]
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test,” Dkt. 217 at 15 (emphasis added), or to circumvent the Seventh Circuit’s clear rule that Anderson/Burdick “applies to all First and Fourteenth Amendment challenges to state election laws.” Acevedo, 925 F.3d at 948.
b. Even if Plaintiffs’ procedural due process merited independent analysis, those claims would fail.
Requesting Absentee Ballots. The Swenson Plaintiffs first contend that “[a]dditional procedural protections are necessary to avoid erroneous denials of absentee-ballot requests” because many “voters who requested absentee ballots in the April election never received one.” Swenson Dkt. 41 at 48.
As an initial matter, Plaintiffs make no effort to explain why any specific problems that arose in the fast-paced run up to the April 7 Election, when COVID-19 was still new and unexpected, are likely to repeat. In late March, when the pandemic fears increased in Wisconsin, there was little time to receive and respond to absenteeballot requests—even though election officials in most areas of the State did yeoman’s work to accommodate all requests, despite the unprecedented numbers of such absentee-ballot requests. See WEC Absentee Voting Report at 24 (“[T]he final election data conclusively indicate[d] that the election did not produce an unusual number [of] unreturned or rejected [absentee] ballots.”); id. at 3, 5; Wolfe Dep. 83:14– 21. And voters can all request absentee ballots right now, months in advance of the November Election, Wis. Stat. § 7.15(1)(cm); Tseytlin Decl. Ex. 4; see Dkt. 259 (Milton Bartelme Decl.) ¶ 5, giving all local election officials plenty of time to plan and prepare for all such absentee requests. The Commission is already planning to mail
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absentee-ballot applications to “all voters without an active absentee request on file,” see Tseytlin Decl. Ex. 28, beginning around September 1, 2020, Wolfe Dep. II 129:3– 15, and the USPS has engaged in substantial efforts to identify and correct possible errors in the Milwaukee area that caused some voters not to receive their absentee ballots before, Dkt. 433-1. The Swenson Plaintiffs fail to engage with these post-April 7 efforts, simply noting without support that the Commission’s actions “will not correct the failures exposed by the April 7 Election.” Swenson Dkt. 41 at 48. This bare assertion is insufficient to meet their burden of showing the “risk of an erroneous deprivation” of their interest in absentee voting through the existing procedures used, Mathews, 424 U.S. at 335.
Plaintiffs’ proposed additional safeguards for requesting absentee ballots are also unlikely to provide additional value to voters. The Swenson Plaintiffs demand that the Commission “ensure[ ] well in advance that there [is] sufficient bandwidth and server resources to manage the volume of requests anticipated for the November elections, and [that] the system [is] configured to track not just ballot requests, but delivery of ballots through the mailing process as well”; procedures for notifying voters if their ballot request is defective; and an “[e]ffective public education” campaign giving voters “adequate notice of their rights, and the procedures they must follow.” Swenson Dkt. 41 at 49–50. But none of these additional procedures provides any noticeable benefit above what the Commission and State have already done to ensure the successful administration of the November Election.
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On Plaintiffs’ arguments about server and bandwidth resources to manage absentee-ballot requests, such efforts are already in the works. The Commission has made, and will continue to make, upgrades to the MyVote website and WisVote system, including addressing the “large increase in the demand for absentee ballots.” WEC Defendants’ Status Report at 8–9; Wolfe Dep. 70:9–73:14, 128:15–129:18.
Plaintiffs’ request for directives and systems “to provide prompt, effective notice to a voter if their ballot request is defective or if it will not be filled within one day as required by law . . . and clear, uniform procedures to cure any defect in a ballot request or replace an undelivered ballot,” Swenson Dkt. 41 at 49, fail both to protect a liberty or property interest and to provide any noticeable benefit. Requiring a voter “to comply with the requirements of state law” by properly filling out an absenteeballot application does not implicate any “right of liberty or property.” Protect Marriage Ill., 463 F.3d at 608. And Plaintiffs do not explain how these procedures will improve any interest they have in voting absentee. Every registered voter in Wisconsin has already either successfully applied to vote absentee or will receive both an absentee-ballot application and information on voting in the near future. See Tseytlin Decl. Ex. 28; Wolfe Dep. II 129:3–15. And any voter who so requests an absentee ballot now will be sent one within one day of the ballots becoming available, well over a month in advance of the November Election. See Wis. Stat. § 7.15(1)(cm); Tseytlin Decl. Ex. 4. Therefore, even if an odd request is delayed or lost, any affected voter will have plenty of time to reach out to their municipal clerk for help via
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telephone, fax, mail, or the MyVote Wisconsin website, among other sources, well in advance of the November Election. See, e.g., Tseytlin Decl. Ex. 47.
Plaintiffs’ demands that the Commission (1) coordinate with the USPS and (2) establish safe and sufficient in-person voting sites, would provide no additional benefits to voters and are directed at the wrong party. Both the Commission and the USPS have audited their respective processes and provided concrete solutions to problems that arose in April. Tseytlin Decl. Ex. 28; WEC Defendants’ Status Report at 6; Wolfe Dep. 54:14–60:12 (Commission expects most clerks to use the intelligent barcodes for the November 2020 Election), 99:8–17, 105:11–15 (Commission approved use of intelligent barcode system); Dkt. 433-1. Furthermore, Wisconsin law already provides that municipalities may “designate multiple sites for in-person absentee voting,” Luft, 2020 WL 3496860, at *5; see Wis. Stat. § 6.855, but the authority to decide how many to open lies with local officials, Wis. Stat. § 6.855(1). In any event, the Commission has already provided local officials with guidance on in-person absentee voting for future elections. See, e.g., Spindell Dep. 19:1–8.
And Plaintiffs’ request for “[e]ffective public education . . . to provide voters with constitutionally adequate notice of their rights, and the procedures they must follow,” Swenson Dkt. 41 at 50, fares no better. Section 6.869 of the Wisconsin Statutes mandates that the Commission “prescribe uniform instructions for municipalities to provide to absentee electors,” including “the specific means of electronic communication that an absentee elector may use to file an application for an absentee ballot,” the means “to request a registration form or change his or her
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registration,” and “information concerning the procedure for correcting errors in marking a ballot and obtaining a replacement for a spoiled ballot.” Wis. Stat. § 6.869. And the Commission has complied with this directive. See Tseytlin Decl. Ex. 8. The Commission has also developed voter outreach tools, including “videos and documentation for voters to understand the mechanics of the voting process including absentee.” Wolfe Dep. 109:13–19. Plaintiffs fail to adequately address why these numerous, state-mandated educational tools are insufficient.
Absentee Ballot Counting. Plaintiffs also contend that the State’s procedures for counting absentee ballots violate voters’ procedural due process rights. This is so, they claim, because absentee voters have no “opportunity to be heard on whether [ ] rejections [of absentee ballots on numerous grounds] are incorrect.” Swenson Dkt. 41 at 52. As a result, Plaintiffs demand that the Court invalidate Sections 6.88, 7.51, and 7.52 of the Wisconsin Statutes, all of which preclude canvassing of absentee ballots before election day, and require the Commission to give all voters notices and “explanations of the applicable procedures with a statewide mailing of absenteeballot request forms.” Swenson Dkt. 41 at 53–54. As an initial matter, Plaintiffs do not explain how these “problems” and remedies relate to COVID-19. The State’s procedures for counting absentee ballots on Election Day apply in all elections, Wis. Stat. §§ 6.88(1)–(2), 7.51(1), and Plaintiffs provide no explanation for why COVID-19 impacts the constitutionality of this procedure, see Tex. Democratic Party, 961 F.3d at 409 (“The Virus’s emergence has not suddenly obligated [the State] to do what the Constitution has never been interpreted to command . . . .”).
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Plaintiffs’ requested remedies also add little value for voters. See Mathews, 424 U.S. at 335. Wisconsin law already provides procedures for absentee voters to correct errors with their absentee ballots. See Wis. Stat. §§ 6.86(5), 6.869, 6.87(9); Tseytlin Decl. Ex. 8. Clerks can return improperly completed ballots “to the elector . . . whenever time permits the elector to correct the defect and return the ballot,” Wis. Stat. § 6.87(9); Tseytlin Decl. Ex. 4, and any voter who believes that they made an error in completing their ballot may request a new one, Tseytlin Decl. Ex. 8; Wis. Stat. § 6.86(5), which the clerk may send by fax or email, Tseytlin Decl. Ex. 8. And the Commission has decided to send informational materials to all voters that are not yet registered to vote absentee, Tseytlin Decl. Ex. 28; Wolfe Dep. II 129:3–15, as well as providing legally required guidance on absentee voting and fixing ballot errors that all municipalities can provide to voters, Tseytlin Decl. Ex. 8; Wis. Stat. § 6.869.
On the other hand, the costs and “administrative burdens,” Mathews, 424 U.S. at 335, of requiring the State to individually provide more than “tens of thousands” of potential voters notice and to demand a determination on their individual ballot “would be disproportionate to the benefits, which would be slight,” given all of the State’s other protections for voters. Protect Marriage Ill., 463 F.3d at 608. And requiring early canvassing of ballots, before voting is complete, risks “disclosure of election results,” which “would gravely affect the integrity of the election process.” Republican Nat’l Comm., 140 S. Ct. at 1207.
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3. Equal Protection/Bush v. Gore Claims The DNC and Swenson Plaintiffs’ Equal Protection Claim under Bush v. Gore, 531 U.S. 98 (2000) (per curiam), is meritless. Because the Supreme Court acknowledged that “the problem of equal protection in election processes generally presents many complexities,” the Court expressly limited its “consideration” in that decision to those “present circumstances” surrounding the 2000 Florida recount. Bush, 531 U.S. at 109. Thus, other courts have concluded that the Bush opinion is not “applicable to more than the one election to which the [Supreme] Court appears to have limited it.” Lemons v. Bradbury, 538 F.3d 1098, 1106 (9th Cir. 2008). And here, Plaintiffs are challenging laws relating to voting, not post-election recount procedures that were the focus of the Bush v. Gore Court’s “consideration.” Bush, 531 U.S. at 109. The present circumstances find no similarities to those in Bush v. Gore. Even if that decision were more broadly applicable, Plaintiffs would have to prove that specific election “procedures” will result in “arbitrary and disparate treatment of the members of [the State’s] electorate.” Bush, 531 U.S. at 105. At least in the particular context of the Florida recount’s attempts to discern voter intent from inanimate ballots, the Court held that those “procedures” require “specific rules designed to ensure uniform treatment.” Id. at 106. The DNC and Swenson Plaintiffs have not identified any election procedures for which the Commission is responsible that are likely to result in arbitrary or disparate treatment of voters in November.
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Both the DNC and Swenson Plaintiffs contend that the April Election resulted in unconstitutionally unequal treatment, see Dkt. 420 at 56–59; Swenson Dkt. 41, in terms of poll closings and poll-worker shortages, lack of adequate personal protective equipment at some polling locations, and disparate treatment regarding voter registration and requests for absentee ballots. None of these claims identify any specific election procedures that apply unequally or have any bearing on the upcoming November Election. Instead, Plaintiffs merely contend that “Wisconsin’s April 7 election abounded with many examples of unfair, unequal, and disparate treatment of Wisconsin voters depending on where they live,” Dkt. 420 at 57, or “Defendants’ administration of the April 7 election violated” the Equal Protection Clause, Swenson Dkt. 41 at 55, and that “the same equal-protection violations experienced during the April 7 election are all but certain to recur [in November],” id. at 60; see also Dkt. 420 at 58–59. These unspecified and unsupported allegations are insufficient to allege a likely equal protection violation in future elections, Bush v. Gore, 531 U.S. at 105, and Plaintiffs do not mention the extensive efforts of Defendants and others to improve upon the generally successful administration of the April 7 Election going forward into November.
On poll closings and poll-worker shortages, Plaintiffs do not identify any election procedures administered by the Commission that produced this allegedly “arbitrary and disparate treatment,” or explain any basis for any such procedure to apply during the November Election. Id. Under Wisconsin’s “decentralized” approach to election regulation, “1,850 municipal election officials and 72 county
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election officials” throughout the State are equally responsible for administering elections in their individual jurisdictions, including by staffing and reassigning poll workers. Wolfe Memo at 1, 6; see Wis. Stat. §§ 7.10, 7.15. Furthermore, all evidence shows that the Commission provided ample guidance to local election officials to help recruit staff and support polling locations. Spindell Dep. 16:1–8; Wolfe Dep. 76:16– 77:8, 109:2–6. These efforts included helping local officials coordinate with political parties for paid election judges, as well as providing plain-clothes National Guardsmen to assist with staffing polling locations. Spindell Dep. 16:1–13; Wolfe Dep. 109:2–6; Wolfe Memo at 8–9. The Commission alerted municipalities about the equal availability of these members of the National Guard to serve as supplemental poll workers, see Wolfe Memo at 8–9, even though some municipalities like Green Bay chose not to accept this aid, Wolfe Dep. II 173:13–17. And they are at the ready to do so again if poll-worker shortages should recur in November. Wolfe Dep. 109:2– 6. Further, decisions on numbers and staffing of polling locations are necessarily based on differences in geography and population, and are not amenable to a onesize-fits-all standard like the ballot counting at issue in Bush v. Gore. 531 U.S. at 106. Wisconsin law imposes the equal burden on local election officials to staff polling locations, and, to the extent the Commission acted in this arena, it offered supplemental staff on an equal basis.
And whatever concerns Plaintiffs raise about specific precincts in the April Election, such as in Milwaukee and Green Bay, they have no reasonable basis to contend that such problems will recur in November. Milwaukee is presently adding
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additional poll workers—including volunteers recruited by the DNC Plaintiffs, see Tseytlin Decl. Ex. 32—with the intent of “open[ing] all 180 polling sites in November’s presidential election.” Tseytlin Decl. Ex. 30. Similarly, Green Bay is successfully engaging in its own recruitment efforts, and it already has sufficient staff to open 13 polling locations in November, substantially more than the two it offered in April. Tseytlin Decl. Ex. 3.
The same is true with regard to Plaintiffs’ claims about personal protective equipment at various polling locations. Again, Wisconsin law places municipal and county officials in charge of such decisions. Wolfe Memo at 1, 6; see Wis. Stat. §§ 7.10, 7.15. The Commission has supported these duties by granting municipalities $500,000 “to purchase such items as sanitizer, masks, gloves, [and] tape,” and has issued “some 22 different policies, memos and training” “to make sure that the inperson voting and the election day voting is as safe as possible and certainly safer than going to the grocery store.” Spindell Dep. 14:6–15; see also Wolfe Dep. 68:13– 69:6 (noting that the Commission is purchasing adequate supplies to provide to local election officials for the August and November Elections). And a $4.1 million “CARES Act sub-grant to local election officials,” Tseytlin Decl. Ex. 28, is similarly earmarked “to help pay for increased election costs due to the COVID-19 pandemic,” WEC Defendants’ Status Report at 5. Whatever difficulties some jurisdictions might have had with adequate personal protective equipment in April, Plaintiffs have not shown any likelihood that those difficulties will repeat.
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Plaintiffs’ equal protection challenge to the State’s voter registration and absentee-ballot-request measures similarly fails. The Commission will soon mail an absentee-ballot-request form and informational materials to registered voters without an absentee request already on file. Tseytlin Decl. Ex. 28; Wolfe Dep. II 129:3–15. It has also implemented “intelligent mail barcodes into the existing [absentee-ballot-envelope] design” for the November 2020 Election, thereby improving ballot tracking. Id. And the Commission has upgraded, and will continue upgrading, its websites to “meet the needs of clerks experiencing a large increase in the demand for absentee ballots.” WEC Defendants’ Status Report at 8–9; Wolfe Dep. 70:9–73:14, 128:15–129:18.
The DNC Plaintiffs also challenge both the “indefinitely confined” standard under Wisconsin law, see Wis. Stat. §§ 6.86(2)(a), 6.87(4)(b)(2); Jefferson v. Dane Cty., 2020AP557-OA (Wis. Mar. 31, 2020), and the interpretation of the Supreme Court’s ballot postmark date standard, Dkt. 420 at 57–58, but these challenges are obviously meritless. The DNC Plaintiffs’ complaint that voters are confused by the “indefinitely confined” exception, Dkt. 420 at 58, is lacking. The law presumes that citizens know and apprise themselves of applicable legal rules, see Cochran, 828 F.3d at 600, and the Commission has published clear guidance on this point, see Tseytlin Decl. Ex. 12. That the standard allows individual voters to make their own determination as to “indefinitely confined status” does not mean the procedure is arbitrary or disparate, and it applies equally to all voters. Nor do Plaintiffs point to any case suggesting that “voter confusion” due to alleged lack of guidance can be an Equal Protection Clause
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violation. Instead, the State’s standard for “indefinitely confined”—as interpreted by the Wisconsin Supreme Court, Jefferson, 2020AP557-OA—adequately apprises and applies to all Wisconsin voters equally.
The DNC Plaintiffs’ challenge to the “postmarked by election day” requirement does not challenge any election procedures either. That “requirement” resulted from a series of court orders extending the deadline for receipt of absentee ballots to April 13, 2020, Dkt. 170 at 52, and then subsequently clarifying on appeal that such ballots must be postmarked by April 7, Republican Nat’l Comm., 140 S. Ct. at 1208. Wisconsin election law and procedures do not have a postmarked-by-election-day requirement, because all ballots, absentee or otherwise, must arrive at the polling location by 8:00 p.m. on Election Day. Wis. Stat. § 6.87(6).
Finally, as explained below, this Court lacks jurisdiction over many of these equal-protection arguments because Plaintiffs complain only of the actions of independent third parties and not the actions of the Commissioners or others named as Defendants. Infra Part I.A.6.a.; see Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (plaintiffs lack standing to complain of “the independent action of some third party not before the court,” as opposed to “the defendant” (citation omitted)); accord Frank I, 768 F.3d at 755. And Plaintiffs have not cited a single case, anywhere in the country, that holds that local differences in election administration, for which local officials hold the legal authority, violate the Equal Protection Clause.12
12 Plaintiffs’ unanchored contentions about differences in availability of drop boxes, Swenson Dkt. 41 at 10–11, do not make out a Bush v. Gore violation either, as the decision
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4. Americans With Disabilities Act Claims Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under Title II, a “public entity must reasonably accommodate a qualified individual with a disability by making changes in rules, policies, practices, or services when needed.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 782–83 (7th Cir. 2002). The Swenson, Gear, and Edwards Plaintiffs all bring claims under the ADA, yet none of these Plaintiffs is entitled to preliminary-injunctive relief. To succeed on a Title II failure-to-accommodate claim, a plaintiff must prove three essential elements. First, the plaintiff must show that he or she “is a qualified individual with a disability.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (citations omitted). This requires that the plaintiff prove that he “meets the essential eligibility requirements,” 42 U.S.C. § 12131(2), “for participating in [a state] program with or without reasonable accommodations” or modifications, Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (emphasis added; citation omitted). An accommodation or modification that “fundamentally alter[s] the nature of the service,” program, or activity is by law unreasonable. Tennessee v. Lane, 541 U.S.
to implement such drop boxes is also reserved to local election officials under the law. See Tseytlin Decl. Ex. 7.
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509, 532 (2004); accord P.F. by A.F. v. Taylor, 914 F.3d 467, 472 (7th Cir. 2019). And if the State already provides accommodations that are reasonable, a plaintiff’s preference for a different accommodation does not require the State to provide it. Hildreth v. Butler, 960 F.3d 420, 431 (7th Cir. 2020). Modifications that successfully span the divide between disabled voters and a State’s voting systems are reasonable, see, e.g., Wagoner, 778 F.3d at 593, because, at its core, “Title II is about access to public services,” Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 878 (7th Cir. 2006).
Second, a plaintiff must assert that he was or will be “denied the benefits of the services, programs, or activities of a public entity or otherwise subjected to discrimination by such an entity.” Wagoner, 778 F.3d at 592 (citations omitted).
Third, the plaintiff must show that “the denial or discrimination was by reason of his disability.” Id. (citation omitted; emphasis added). The requires a plaintiff “to prove that, but for his disability,” he would have been able to access the services or benefits desired. A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593 (7th Cir. 2018) (citation omitted; emphasis added). That is, “the ADA requires proof of causation”: to obtain any relief, the ADA plaintiff must demonstrate that, had he not been disabled, he would have obtained the benefit of the government program for which he was denied. Id. (“[B]ut for [plaintiff’s] learning disability, he would have been eligible to play sports in his junior year.” (citation omitted)).
None of the Swenson, Gear, or Edwards Plaintiffs’ ADA claims will likely succeed, as all fail to satisfy at least one essential element (and, as to one claim, the Swenson Plaintiffs fail to establish standing, infra Part I.A.6.b.).
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a. The Swenson Plaintiffs’ ADA Claims The Swenson Plaintiffs bring two ADA claims. For their first ADA claim, they argue that individuals especially vulnerable to (or already infected by) COVID-19 cannot safely comply with the witness-signature requirement; thus they are entitled to “substitut[e]” this requirement for “a self-certification.” Swenson Dkt. 41 at 32– 34. This claim fails at each of the three ADA elements. Beginning with the first element, the Swenson Plaintiffs have not shown that their requested accommodation is reasonable, Love, 103 F.3d at 560, as opposed to a fundamental alteration of Wisconsin’s absentee-ballot regime, Lane, 541 U.S. at 532. The Swenson Plaintiffs’ requested accommodation is that “[t]he Court [ ] waive the in-person witness requirement for this limited class of voters who are unable to secure a witness safely, replacing it with a self-verification on penalty of perjury.” Swenson Dkt. 41 at 33. But that is what this Court ordered in April, Dkt. 170 at 52, which the Seventh Circuit stayed, Dkt. 189 at 3. The Seventh Circuit determined that the witness-signature requirement was necessary to further the State’s “substantial interest in combatting voter fraud,” and that eliminating that requirement with a self-certification procedure would seriously undermine that interest. Dkt. 189 at 3; see supra p. 42 (explaining heightened fraud concerns with absentee ballots). Stated in ADA terms, eliminating this safeguard for absentee voting with a self-certification procedure would fundamentally alter Wisconsin’s electoral system, Lane, 541 U.S. at 532, and is thus not a reasonable accommodation, Love, 103 F.3d at 560.
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The Swenson Plaintiffs are also not entitled to this accommodation because Wisconsin law already sufficiently accommodates disabled voters, such that they may readily exercise their right to vote. See Hildreth, 960 F.3d at 431; Wagoner, 778 F.3d at 593. Wisconsin provides numerous safe avenues for voting for disabled individuals, even those who may be especially susceptible to COVID-19. Such a voter could use the curbside-voting procedure, allowing the disabled voter to vote in front of the polling place from the safety of their car, thereby avoiding any crowds. See Wis. Stat. § 6.82(1); Tseytlin Decl. Ex. 13. A disabled voter could use the “hospitalized electors” provision to safely vote from his or her home. Wis. Stat. § 6.86(3)(a)(1)–(2); see Tseytlin Decl. Ex. 14 at 1. A voter could complete in-person-absentee voting, which similarly allows the voter to avoid crowds, while still complying with the witness-signature requirements. Tseytlin Decl. Ex. 3; see Wis. Stat. §§ 6.855, 6.86(1)(a)2. Finally, disabled voters have the opportunity to vote in person on Election Day, which can be accomplished safely with minimal effort; thus that avenue fully accommodates Plaintiffs. Several of Plaintiffs’ declarants—including those with conditions that place them at risk from COVID-19—explain that they were able to vote safely even back in April, while wearing personal protective equipment and practicing social distancing. Dkt. 257 (Barnum Decl.) ¶¶ 4–5; Dkt. 377 (Gregg Jozwik Decl.) ¶ 8; Dkt. 403 (Graveline Decl.) ¶ 6. And voting in person will be even safer in November, for the reasons detailed extensively above. See supra Part I.A.1.a.ii.
Moving to the second element, the Swenson Plaintiffs have not shown that the witness-signature requirement is likely to deny any disabled voters the right to vote.
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Wagoner, 778 F.3d at 592. Indeed, the Swenson Plaintiffs do not offer any evidence, from any of the multitude of declarants, demonstrating that any voter cannot obtain a witness’s signature in November with reasonable effort. See Dkt. 41 at 32–34. While Plaintiff Swenson claims that she was unable to get a witness in April, she does not state that she is unlikely to obtain a witness in November with reasonable effort. Swenson Dkt. 47 (Swenson Decl.) ¶¶ 11–14, 19. That is unsurprising, since there are many “concrete alternative suggestions for how voters can [safely and easily] comply with the state’s witness and signature requirements.” Dkt. 189.
As for the causation element, the Swenson Plaintiffs’ only discussion of this is a cursory, unsupported statement in a footnote. Swenson Dkt. 41 at 36 n.164. They simply assert, using ipse dixit, that “[t]here is no question that, but for their disabilities, Plaintiffs would have had equal access to the franchise.” Id. That abbreviated argument constitutes waiver. See United States v. Stadfield, 689 F.3d 705, 712 (7th Cir. 2012) (“Undeveloped arguments are considered waived.”).
The Swenson Plaintiffs’ second ADA claim fares no better. The Swenson Plaintiffs argue that voters “with vision and other disabilities” cannot vote independently or privately via absentee ballot, thus the ADA entitles these voters to “[a]ccessible online ballots” that would allow them to use online ballot marking tools built for those with vision impairments. Swenson Dkt. 41 at 34.
As an initial matter, the Swenson Plaintiffs do not have standing to assert this claim, as the Legislature explains below. Infra Part I.A.6.b.
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Standing aside, this claim also fails because the Swenson Plaintiffs again do not explain why Wisconsin’s existing accommodations are unreasonable, even as to those with visual impairments. Hildreth, 960 F.3d at 431. Wisconsin law requires both the polling place itself and “the voting system used at each polling place” to be accessible to individuals with disabilities, including those with visual impairments. Wis. Stat. § 5.25(4)(a). Further, “[e]ach municipal clerk shall make reasonable efforts to comply with requests for voting accommodations made by individuals with disabilities whenever feasible.” Wis. Stat. § 7.15(14). A visually impaired individual with a particular concern of contracting COVID-19—and who does not wish to vote with a paper absentee ballot—could arrange with their local clerk to vote in-person, using an accessible machine, while taking extra sanitary and social-distancing precautions. See Wis. Stat. §§ 5.25(4)(a), 7.15(14). Nothing about that bespoke accommodation is unreasonable, especially since it would maintain the privacy of voting, see Swenson Dkt. 41 at 34–35 (citing Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 199 (2d Cir. 2014), and Cal. Council of the Blind v. Cty. of Alameda, 985 F. Supp. 2d 1229, 1232 (N.D. Cal. 2013)); thus the Swenson Plaintiffs are not entitled to any relief on their second ADA claim either.
Notably, none of the Legislature’s arguments for dismissing the Swenson Plaintiffs’ two ADA claims asks the Court to conduct “a balancing test” for the State’s and the Swenson Plaintiffs’ interests, thus the Swenson Plaintiffs’ explanation that the ADA does not require such an analysis, unlike the Anderson/Burdick test, is irrelevant. Swenson Dkt. 41 at 34 n.160.
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b. The Gear Plaintiffs’ ADA Claim The Gear Plaintiffs’ ADA claim argues that because Plaintiffs suffer from conditions that make them especially vulnerable to COVID-19, Dkt. 421 at 63–65, Wisconsin must allow these Plaintiffs to receive absentee ballots by email or fax, rather than through the mail, so that they may “avoid the risk of infection at a polling place and still vote in the general election,” Dkt. 421 at 65–66.13 The Gear Plaintiffs’ argument on the merits of its ADA claim is exceedingly abbreviated—comprising a single paragraph—and, unsurprisingly, fails at each element. See Dkt. 421 at 65–66 (merits argument); compare Dkt. 421 at 63–65 (arguing only that Plaintiffs have qualified disabilities); Dkt. 421 at 66 (arguing only that the Organizational Plaintiffs have standing under the ADA). First, the Gear Plaintiffs have not shown that this accommodation is reasonable. Love, 103 F.3d at 560. As explained above, faxed/emailed absentee ballots are “on regular printer paper”—since the voter herself printed the ballot—not “official ballot stock.” Wolfe Dep. 153:3–9. This means that local clerks must “remake the ballot [on official ballot stock] so that it can be counted by the voting equipment on election day,” which is an additional administrative delay that could become quite burdensome. Wolfe Dep. 153:3–9. Further, this accommodation would require the Commission to update the WisVote/MyVote system to allow these voters to obtain these ballots, a process that requires “a lot of work” and must proceed cautiously so
13 Plaintiffs alternatively claim that they are entitled under the ADA to cast a “Federal Write-in Absentee Ballot,” which is another online-accessible ballot available only to military electors. Dkt. 421 at 65; Wolfe Dep. 135:3–136:19.
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as to not compromise the security of that essential system. Wolfe Dep. 139:3–19. And even if this accommodation were reasonable, the State already sufficiently accommodates the Gear Plaintiffs in numerous ways, thus the ADA does not compel the State to offer email/faxed absentee ballots, rather than mail ballots, as an additional accommodation. As explained in the Legislature’s response to the Swenson ADA claim, disabled voters may safely vote via curbside voting; in-personabsentee voting; as a hospitalized elector; or simply in-person at the polls, following all safety precautions. Supra pp. 87–88.
Second, the Gear Plaintiffs have not argued that their receipt of mailed absentee ballots is likely to prohibit them from voting, see Dkt. 421 at 65–66, thus they have waived this essential element of their claim, Stadfield, 689 F.3d at 712. Given their lack of developed argument, the Gear Plaintiffs have failed to present any evidence that any voter will likely be unable to vote if required to obtain an absentee ballot through the mail, rather than via fax or email. See Dkt. 421 at 65–66. Nor is there any reason to believe that such evidence exists: voters may request absentee ballots immediately, and clerks will begin delivering them well over a month before the November Election. Supra p. 7. That is ample time for any voter—including those with disabilities—to timely request, receive, and cast an absentee ballot by mail, which fully protects their constitutional right to vote on equal grounds with non-disabled voters. See Luft, 2020 WL 3496860, at *3; Wagoner, 778 F.3d at 592. Even were a problem to arise, given the capacious timelines that all voters have to get their ballot requests in order, there is no real, non-speculative chance that any
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voter would be denied the opportunity to vote absentee. See supra pp. 40–41; infra p. 109.
Third, and relatedly, the Gear Plaintiffs fail to show how any denial in timely receipt of a by-mail absentee ballot would be “by reason of” their disabilities. A.H. by Holzmueller, 881 F.3d at 593 (emphasis added). Even if, contrary to all indications, a voter that has timely requested an absentee ballot does not receive it (and does not receive a requested replacement), nothing would tie that exceedingly unlikely mail delivery failure to any disability status of the requesting voter. See id. Indeed, the Gear Plaintiffs do not make any argument on this required element either, see Dkt. 421 at 65–66, which is reason alone to reject this claim, Mazurek, 520 U.S. at 972 (“clear showing”); accord Stadfield, 689 F.3d at 712 (waiver).
c. The Edwards Plaintiffs’ ADA Claims The Edwards Plaintiffs do not meaningfully develop any arguments supporting their ADA argument claim, see Dkt. 397 at 38–43, thus the Court should deny their motion on this basis alone, Stadfield, 689 F.3d at 712. Instead, in the ADA section of the Edwards Plaintiffs’ brief, they recite the ADA’s history at length, Dkt. 397 at 38– 40, present statistics about voters with disabilities in 2012 and 2017, Dkt. 397 at 40– 41, and assert that certain Plaintiffs have qualifying disabilities, Dkt. 397 at 42. Then, without developing what their ADA claim is or making any specific request for a reasonable accommodation, the Edwards Plaintiffs argue that the Commission cannot defeat their (unexplained) claim by accommodating them solely “on one occasion,” by arguing that Wisconsin election law somehow limits the scope of the
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ADA, or by claiming that their (unnamed) accommodation fundamentally alters Wisconsin election law. Dkt. 397 at 43. Plaintiffs have the burden to establish a likelihood of success on every element of their ADA claim in order to obtain relief, Wagoner, 778 F.3d at 592–93 including the requirement that they present a specific, reasonable accommodation, Love, 103 F.3d at 560. The Edwards Plaintiffs have not done that here, thus the Court should deny their motion for a preliminary injunction.
5. Voter-Intimidation Claim Under The Voting Rights Act a. Section 11(b) of the VRA provides that “[n]o person . . . shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.” 52 U.S.C. § 10307(b). A plaintiff must show both that a “person”—the defendant—committed “an act of intimidation or attempt to intimidate,” and “that the act was done with the specific intent to intimidate or attempt to intimidate” another for voting. See Parson v. Alcorn, 157 F. Supp. 3d 479, 498–99 (E.D. Va. 2016) (discussing the need to show that the defendant “undertook any acts of intimidation”) (citing Olagues v. Russoniello, 770 F.2d 791, 804 (9th Cir. 1985), and United States v. McLeod, 385 F.2d 734, 740–41 (5th Cir. 1967)). Thus, to succeed on a Section 11(b) voter-intimidation claim, a plaintiff must establish that the defendant’s actions actually intimidated voters and that the defendant intended to intimidate those voters with those actions. Olagues, 770 F.2d at 804. Further, proving intimidation, threats, or coercion, rather than some lesser infraction, is critical. The Seventh Circuit has recounted Section 11(b) of the VRA as a “sweeping prohibition of official acts of harassment against equal civil rights.”
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Fenton v. Dudley, 761 F.3d 770, 777 (7th Cir. 2014) (emphasis added) (quoting Whatley v. City of Vidalia, 399 F.2d 521, 525 (5th Cir. 1968)). Similarly, courts have noted that this statute “does not protect voters against inadvertent or technical violations of voting procedures but against conduct intended to ‘intimidate, threaten, or coerce.’” Willingham v. Cty. of Albany, 593 F. Supp. 2d 446, 462 (N.D.N.Y. 2006) (quoting 42 U.S.C. § 1973i(b), subsequently renumbered without substantive change to 52 U.S.C. § 10307(b)); see also Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575, 602 (D.N.J. 2009) (describing the predecessor statute, 42 U.S.C. § 1973i(b) as prohibiting “attempts to prevent qualified voters from casting their ballots through intimidation or screening mechanisms”); Powell v. Power, 436 F.2d 84, 87 (2d Cir. 1970) (declining to turn the Voting Rights Act into “a general mandate by which Federal courts may correct election deficiencies of any sort”). Thus, even intentional government conduct done without malicious or wrongful intent—such as using voter rolls to populate jury-duty lists—“does not constitute coercion or intimidation within the meaning of [52 U.S.C. § 10307(b)’s predecessor statute].” Bershatsky v. Levin, 99 F.3d 555, 557 (2d Cir. 1996) (per curiam).
b. The Swenson Plaintiffs contend that the State violated, and will continue to violate in November, Section 11(b) “by failing to take objectively reasonable precautions to enable Wisconsin citizens to vote free of fear of contracting COVID19.” Swenson Dkt. 37 ¶ 197; see also id. ¶¶ 201, 207. But Plaintiffs have wholly failed to allege or prove that (1) any person (2) intentionally (3) intimidated by any Defendant, and their claim fails as a matter of law.
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First, the Swenson Plaintiffs have not alleged or shown that they or other voters were or will be intimidated by any “person.” 52 U.S.C. § 10307(b); see Parson, 157 F. Supp. 3d at 498–99. Plaintiffs allege only feelings of fear, intimidation, and threats from COVID-19, Swenson Dkt. 37 ¶¶ 202–04, and have presented no evidence of acts of intimidation initiated by any Defendant. Plaintiffs point to no precedent, and the Legislature is aware of none, where a court found a violation of Section 11(b) without any affirmative human act of intimidation, threat, or coercion.
Second, Plaintiffs fail to show that any Defendant likely acted with an intent to “intimidate, threaten, or coerce,” or would do so in the future. 52 U.S.C. § 10307(b). Plaintiffs affirmatively pleaded, and evidence shows, that Wisconsin’s “election officials” “worked hard to manage the challenges [COVID-19] posed.” Swenson Dkt. 37 ¶ 7; accord Dkt. 170 at 34 (“If there is a hero to this story, it is the Administrator, her staff and municipal workers, all of whom continue to improvise election practices.”); Wolfe Dep. 12:4–8 (“Q. Okay. Do – do you also agree the mission is what I asked before which is to maximize the number of Wisconsinites who can vote and participate in the democratic process? A. Yes.”); see also id. 20:20–21:12. Furthermore, Wolfe testified in her deposition that one of the Commission’s core missions is “to maximize the number of Wisconsinites who are able to vote and participate in the democratic process,” and noted that the Commission is already acting on that mission by coordinating and sending a mailer to all voters who have not placed a request for an absentee ballot, in order “to provide voters with information on their options to cast a ballot, including absentee by mail.” Wolfe Dep.
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11:15–12:8, 26:16–27:1, 27:6–7; Wolfe Dep. II 129:3–15. In the run up to the April 7 Election, Commission employees worked “very, very quickly” to implement necessary changes to deal with the then-unforeseen COVID-19 pandemic. Id. at 20:18–21:5. Plaintiffs acknowledge as much: “Wisconsin election officials have made heroic efforts.” Dkt. 421 at 4. Because Plaintiffs have not presented any evidence of intent by Defendants to intimidate or coerce any voter—instead, affirmatively acknowledging election officials’ praiseworthy intent to aid Wisconsinites, Swenson Dkt. 37 ¶ 7; see also Wolfe Dep. 11:15–12:8—Plaintiffs’ voter-intimidation claim under Section 11(b) of the VRA fails as a matter of law.
Third, Plaintiffs have not alleged or shown any acts of past or future intimidation sufficient to sustain a claim under Section 11(b). Instead, Plaintiffs merely contend that “large numbers of people (caused by consolidation of polling places), inadequate social distancing, and insufficient personal protective equipment” were the “conditions” that caused them to fear for their safety. Swenson Dkt. 41 at 28; see also Swenson Dkt. 37 ¶¶ 199–204. At most, these assertions amount to no more than the “inadvertent or technical violations of voting procedures,” Willingham, 593 F. Supp. 2d at 462, or general “election deficiencies” that are outside the scope of the VRA, Powell, 436 F.2d at 87. And even if such long lines and large groups of people were legally sufficient to show intimidation under Section 11(b), then Plaintiffs’ claims lie with the local election officials in Milwaukee and Green Bay who created those conditions. See supra pp. 14–15. Thus, Plaintiffs’ claim under Section 11(b) of the VRA fails as a matter of law.
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Even if the Legislature were somehow incorrect about all three points above, there is nothing intimidating or fear-inducing about Wisconsin’s generous electoral regime, which offers all voters ample means to cast their vote in November. See supra Part I.A.1.a.i.–ii. Between in-person absentee voting, mail-in absentee voting, curbside voting, and in-person voting on Election Day, all voters have sufficient means to safely exercise their franchise in Wisconsin, without any reasonable fear. See supra p. Part I.A.1.a.i.–ii.
c. Plaintiffs erroneously rely on LULAC – Richmond Regulation Council v. Public Interest Legal Foundation, No. 1:18-cv-00423, 2018 WL 3848404 (E.D Va. Aug. 13, 2018), for the contention that Section 11(b) applies “regardless whether the defendant intended the intimidation.” Swenson Dkt. 41 at 26. There, the court compared Section 11(b) to Section 131(b) of the VRA, and concluded that Section 11(b) had no mens rea element because, unlike Section 131(b), it did not require a plaintiff to show that the defendant intimidated them “for the purpose of interfering with the right of such other person to vote.” LULAC, 2018 WL 3848404, at *3–4 (quoting 52 U.S.C. § 10101(b)) (emphasis in original). This single, unpublished decision fails to grapple with the very similar language that Congress did include in Section 11(b): “No person . . . shall intimidate, threaten, or coerce . . . any person for voting or attempting to vote.” 52 U.S.C. § 10307(b) (emphasis added). Thus, just as in Section 131(b), Section 11(b) does not encompass all acts of alleged intimidation regardless of intent—the threats or intimidation must be for voting.
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In any event, even under the LULAC decision’s erroneous reasoning, the virusrelated claims Plaintiffs present here still fail on the merits. In LULAC, the plaintiffs alleged that a nonprofit group published two national media reports, titled Alien Invasion I and Alien Invasion II, accusing hundreds of Virginia voters of numerous felonies, including casting ineligible ballots, based upon lists of voters who had been purged from the rolls. 2018 WL 3848404, at *1. The plaintiffs filed suit, claiming that defendants intimidated and harassed them on the basis of their participation in the electoral process, by asserting that voting by members of the Latino community was an “alien invasion” worthy of prosecution. Id. But this affirmative conduct by members of a nonprofit group, directed at the plaintiff’s participation in the electoral process, is a far cry from this case, where Plaintiffs allege they are intimidated by only the COVID-19 virus. See Swenson Dkt. 37 ¶¶ 202–04.
Next, the Swenson Plaintiffs argue—relying on United States v. Clark, 249 F. Supp. 720 (S.D. Ala. 1965), and U.S. by Katzenbach v. Original Knights of Ku Klux Klan, 250 F. Supp. 330 (E.D. La. 1965)—that a Section 11(b) claim may be premised on a mere failure to act in the plaintiff’s desired way to mollify any exterior “threat.” Swenson Dkt. 41 at 27–28. These authorities cannot bear the weight of that contention. In Clark, while the court noted that “a city cannot effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be,” in the next breath it also concluded that any “good faith” attempts by the city “to perform its duties and responsibilities under the law” sufficed to avoid a judgment against the city. 249 F. Supp. at 739–30 (citation
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omitted). Thus, the evidence of the Commission’s efforts, both in April’s Election and beyond, see Wolfe Dep. 20:18–21:12; Dkt. 421 at 4; Dkt. 170 at 34, distinguishes Clark. The Katzenbach decision is even less helpful for Plaintiffs. There, the court held that intimidation by private persons—in that case, unabashed members of the Ku Klux Klan—falls within the reach of the Civil Rights Act. Katzenbach, 250 F. Supp. at 334; see also LULAC, 2018 WL 3848404, at *3 (same). In Katzenbach, the Klansmen admitted engaging in horrific affirmative acts of violence and intimidation against black voters and their supporters. 250 F. Supp. at 337. Thus, Katzenbach does not support Plaintiffs’ extraordinary contention that amorphous fears of an external, inanimate virus, coupled with a contention that more should have been done to combat it, creates a Section 11(b) violation.
6. The Court Lacks Jurisdiction In Various Respects a. Plaintiffs Continue To Seek Relief That They Could Only Obtain Against Nonparty Local Election Officials
i. Article III standing’s “irreducible constitutional minimum” requires Plaintiffs to prove, among other things, a causal connection between their asserted injuries and “the challenged action of the defendant,” rather than “the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (citation omitted); accord Frank I, 768 F.3d at 755. Under controlling precedent, “units of government”—including localities within a state—“are responsible for their own discrimination.” Frank I, 768 F.3d at 753 (emphasis added).
ii. Plaintiffs continue to attack the actions and responsibilities of local election officials that they have declined to name as defendants, as well as the alleged actions
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of non-party USPS. They have asked the Court to order the Commission to ensure an adequate number of poll workers to administer safe polling places, see, e.g., Swenson Dkt. 41 at 38–42, 56–58; Dkt. 397 at 51; Dkt. 420 at 49–53, even though the law imposes such staffing responsibilities on local officials, see Wis. Stat. §§ 7.10, 7.15; Wolfe Memo at 1, 6; Spindell Dep. 14:16–15:22. And they similarly request that the Court require municipalities to coordinate with the USPS to ensure the timely delivery, return, and counting of absentee ballots, Swenson Dkt. 41 at 48–54, 57–58; Dkt. 421 at 65–66, and require municipalities to establish secure drop boxes for inperson return of absentee ballots and to increase safe and accessible in-person absentee voting opportunities, Dkt. 395 at 4–5; Dkt. 397 at 52–53. All of these requests for relief are properly directed at local officials and, in some cases, the USPS, not the Commission.
Wisconsin’s election-regulation system is decentralized, Wolfe Memo at 1, with the Commission responsible only for “the administration” of Wisconsin’s “laws relating to elections and election campaigns.” Wis. Stat. § 5.05(1); see also Wolfe Dep. 11:15–18. Wisconsin law charges local and municipal officials throughout Wisconsin with day-to-day oversight of election administration. Wolfe Memo at 1; Wolfe Dep. 114:8–115:3; see Wis. Stat. §§ 7.10, 7.15. Thus, local and municipal election officials, not the Commission, are explicitly tasked with “establish[ing]” polling places, Wis. Stat. § 5.25(2), “[e]quip[ping] polling places,” “[p]rovid[ing] for the purchase and maintenance of election equipment,” “[p]repar[ing] ballots,” including “official absentee ballots for delivery to electors requesting them,” “[r]eassign[ing]
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inspectors” between “polling place[s] within the municipality,” Wis. Stat. § 7.15(1)(a), (b), (c), (cm), (k), and “conducting educational programs . . . to inform electors about the voting process,” Wis. Stat. § 7.10(7), among many other things; see also Wolfe Dep. II 157:9–159:19.
The Commission has no lawful ability to wrest this authority away from these local election officials, and certainly cannot control the actions of the USPS. Under Wisconsin law, agencies cannot issue rules, even during COVID-19, without explicit statutory authorization. See Wis. Legislature v. Palm, 2020 WI 42, ¶ 52, 391 Wis. 2d 497, 942 N.W.2d 900. Agency powers must be “explicitly required or explicitly permitted by statute or by a [valid] rule,” id. ¶ 52 (citation omitted)—all such agency powers require explicit authority. Wis. Stat. § 227.10(2) (“No agency may promulgate a rule which conflicts with state law[.]”); Wis. Stat. § 227.10(2m) (“No agency may implement or enforce any standard, requirement, or threshold . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute[.]”). Nor can an agency escape this limit on its authority “by simply utilizing broad statutes describing the agency’s general duties or legislative purpose as a blank check for regulatory authority,” as Wisconsin law requires courts “to narrowly construe imprecise delegations of power to administrative agencies,” Palm, 2020 WI 42, ¶ 52 (citations omitted); Wis. Stat. § 227.11(2)(a)1.–3. Here, the Commission could not adopt or enforce any rules on polling locations, polling workers, ballot drop boxes, and the like, as all authority on these issues falls expressly to local election officials. See Wis. Stat. §§ 7.10, 7.15; Wolfe Memo at 1, 6; Spindell Dep. 14:16–15:22;
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Tseytlin Decl. Ex. 7 at 1–2. Therefore, the Edwards Plaintiffs’ argument that the Commission has “enforcement power,” “may prosecute civil violations of election law,” and can “promulgate rules . . . including emergency rules when necessary, to implement or interpret the laws regarding the conduct of elections as well as their proper administration,” Dkt. 397 at 28 (citations and emphasis omitted), is incorrect under Wisconsin law.
This distinguishes Plaintiffs’ sought-after relief from Judge Adelman’s inapposite conclusion in Frank v. Walker, 196 F. Supp. 3d 893 (E.D. Wis. 2016), aff’d in part and rev’d in part, Luft, 2020 WL 3496860, which the DNC Plaintiffs attempt to rely upon, Dkt. 420 at 51–53. There, Judge Adelman concluded that the Commission “has th[e] power” to order municipal officials to accept affidavits in lieu of photo ID, based upon the Commission’s broad “‘responsibility for the administration of [the Wisconsin Statutes governing elections] and other laws relating to elections.’” Id. at 918 (quoting Wis. Stat. § 5.05(1)) (brackets in original). Even assuming Judge Adelman’s vacated decision could be persuasive authority on points not discussed by the Seventh Circuit in Luft, whatever enforcement authority the Commission has on statewide rules like photo ID has no bearing whatsoever on those aspects of election administration unambiguously allotted only to local officials, such as those for staffing and equipping polling places, preparing and delivering ballots, and the like, see, e.g., Wis. Stat. §§ 5.25(2), 7.15(1)(a), (b), (c), (cm), (k). None of these powers falls under the Commission’s general authority relied upon by Judge Adelman.
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Plaintiffs and their experts largely acknowledge the municipalities’ authority over these aspects of Wisconsin’s electoral system. The DNC Plaintiffs admit that the State “has delegated its authority to ‘establish[ ]’ polling places and ‘conduct’ elections to local governing bodies.” Dkt. 420 at 53 (citing Wis. Stat. §§ 5.25(2), 7.15(1)). The Swenson Plaintiffs acknowledge that Madison and many towns across the State successfully “mitigate[d]” the effects of COVID-19 through adequate staffing and sufficient polling locations. Swenson Dkt. 41 at 15. On the other hand, “Milwaukee closed 175 out of 180 polling sites, leaving voters to face wait-times of up to two-and-a-half hours, and in Green Bay, only 2 of 31 polling sites remained open and voters faced up to four-hour long waits.” Id. at 40. Despite acknowledging the differences in local administration of the April 7 Election, Plaintiffs misdirect their efforts at the Commission, which is not responsible for the problems that arose in Milwaukee and Green Bay. Plaintiffs’ expert, Kevin J. Kennedy, admits that Wisconsin has “the most decentralized” system in the country, and recommends adjustments directed at municipalities. See Swenson Dkt. 45 (“Kennedy Report”) 2– 6, 15–21, 29–31.
iii. The DNC and Edwards Plaintiffs’ contention that seeking relief against the parties in error would be “chaotic,” Dkt. 420 at 50, “impractical, and likely impossible to join [those] nearly two thousand defendants into this action,” Dkt. 397 at 32, does not support their cause. Even if there were substantial difficulty in naming the proper defendants, there is no difficulty exception to the “irreducible constitutional minimum[s]” of Article III standing. Lujan, 504 U.S. at 560. Furthermore, none of
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the Plaintiffs lodged complaints with the administration of the April Election in the vast majority of Wisconsin’s jurisdictions, largely limiting their concerns to Milwaukee and Green Bay. See, e.g., Dkt. 397 at 29–30, 52; Dkt. 420 at 14, Dkt. 421 at 19; Swenson Dkt. 41 at 4, 8–9, 11, 14, 16, 40, 56–59. Surely Plaintiffs could have sued the election officials in these two jurisdictions to ensure that the problems those voters faced in April do not recur in November.
Finally, the Swenson Plaintiffs cite inapposite caselaw for the proposition that the “right to vote can be unjustifiably burdened . . . through deficient election administration, not only problematic statutory requirements.” Swenson Dkt. 41 at 38 n. 168. While this is true, in both cases Plaintiffs cite, the defendants were actually responsible for administering the deficient procedures. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (“Because the Secretary is the state’s chief election officer with the authority to relieve the burden on Plaintiffs’ right to vote, she was appropriately sued for prospective injunctive relief.”); Common Cause/New York v. Brehm, 432 F. Supp. 3d 285, 289–90 (S.D.N.Y. 2020) (noting that defendants served as the co-executive directors of New York’s State Board of Elections, which was responsible for maintaining the voter lists at issue). Here, Plaintiffs have sued the Commission for actions of local officials, as well as the USPS.
b. The Swenson Plaintiffs Lack Standing To Assert Their ADA Claim Regarding “Accessible Online Ballots”
The Swenson Plaintiffs fail to establish standing to assert their second ADA claim, which contends that voters “with vision and other disabilities” cannot vote independently or privately via absentee ballot, meaning that the ADA compels the
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State to provide these voters with “accessible online ballots.” Swenson Dkt. 41 at 34; see supra Part I.A.4.a. (arguing that the Swenson Plaintiffs are not entitled to any relief on this same claim on the merits).
To have standing, a plaintiff must have an “injury in fact,” a “causal connection between the injury and the defendant’s conduct,” and a “likel[ihood]” of “redressability through a favorable decision.” Disability Rights Wis., Inc. v. Walworth Cty. Bd. of Supervisors, 522 F.3d 796, 800 (7th Cir. 2008) (citations omitted). An organization like Plaintiff Disability Rights Wisconsin may have standing to sue on behalf of its members if it demonstrates that: “(1) its members would otherwise have standing [under Article III] to sue in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claims asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Id. at 801.
The Swenson Plaintiffs have not met their burden to demonstrate standing to assert their second ADA claim. None of the individual Swenson Plaintiffs claim to have “vision and other disabilities,” see Swenson Dkt. 41 at 31–32, 34, so none of them have even attempted to demonstrate an Article III injury for this claim. Swenson Dkt. 41 at 34. Further, DRW cannot demonstrate associational standing to assert this claim either, since it cannot establish the first or third essential elements of that test. See Disability Rights Wis., 522 F.3d at 800.
On the first element, DRW has not sufficiently demonstrated that any of its members have a “vision [or] other disabilit[y]” that makes independent voting via
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absentee ballot impossible without an “[a]ccessible online ballot[ ].” Swenson Dkt. 41 at 34; see Disability Rights Wis., 522 F.3d at 800. The only factual allegation that DRW makes on this score is that it “was in contact with” a single “blind voter who was both unable to safely vote in person . . . and who lacked a private and independent at-home voting option.” Swenson Dkt. 41 at 13, 32; see Swenson Dkt. 42 ¶ 96 (making same allegation); see also Swenson Dkt. 42 ¶ 207 (stating only that this affected “some voters, particularly those with visual impairment,” with no further details). This is not “sufficient to establish that any of its members have sustained their own injury in fact.” Disability Rights Wis., 522 F.3d at 802 (emphasis added). Nowhere does this single allegation state that this blind voter is a member of DRW, such that DRW could serve as the voter’s “representative” in court. Id. (citations omitted). Neither does this single allegation show an “injury in fact,” id., as it does not sufficiently develop why this individual was “unable to safely vote in person,” Swenson Dkt. 41 at 32, as other Plaintiffs at least attempted to do by submitting declarations from the voters themselves, supra pp. 28–29, 33–34. Finally, this single allegation does not state that this voter wishes to vote via absentee ballot in November, thus this voter has no basis to seek any such relief for the upcoming election. See Hummel v. St. Joseph Cty. Bd. of Comm’rs, 817 F.3d 1010, 1019 (7th Cir. 2016) (looking for “record” evidence to demonstrate a future injury).
For the third associational-standing element, the “participation” of the voter with a vision or other disability is “require[d]” for the Court to grant meaningful relief under the ADA. Disability Rights Wis., 522 F.3d at 801 (citation omitted). For
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example, the voter’s presence is needed to explain the nature of his or her disabilities and, if required by the ADA, which accommodation would be reasonable. Without these crucial details, the Court would be left to speculate as to the kinds of vision impairments and other disabilities that prevent a voter from completing a paper absentee ballot, compare Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 506 (4th Cir. 2016) (considering whether “individuals such as plaintiffs” were entitled to relief (emphasis added)), and whether “online ballot marking tools,” Swenson Dkt. 41 at 34, would actually ameliorate these unknown voters’ concerns, Lamone, 813 F.3d at 508 (“Determination of the reasonableness of a proposed modification is generally factspecific.”). This explains why all of the cases that the Swenson Plaintiffs cite here, Swenson Dkt. 41 at 34–35, included individual voters as plaintiffs, Lamone, 813 F.3d at 498, 500; Drenth v. Boockvar, No. 1:20-cv-829, 2020 WL 2745729, at *1 (M.D. Pa. May 27, 2020); Cal. Council of the Blind, 985 F. Supp. 2d at 1232, or at least had “deposition testimony” from “individuals with [the relevant] disabilities,” unlike the case here, Disabled in Action, 752 F.3d at 193. In all, rather than engage in the speculation that this claim calls for, the Court must wait to consider these claims until a voter “who ha[s] actually suffered an injury . . . bring[s] suit on [his or her] own behalf, or represented by DRW.” Disability Rights Wisconsin, 522 F.3d at 803.
c. Plaintiffs’ Claims Remain Unripe To avoid “entangling themselves in abstract disagreements,” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), or making “unnecessary decision[s] of constitutional
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issues,” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138 (1974), courts routinely dismiss claims that are not yet ripe for adjudication. A claim is unripe when “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all,” Texas v. United States, 523 U.S. 296, 300 (1998) (citation omitted), or “when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts,” Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (citations omitted). This is especially true when a challenge is to the validity or application of a state law, as a statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.” Pullman Co. v. Knott, 235 U.S. 23, 26 (1914).
Plaintiffs all continue to assume that both the COVID-19 pandemic and Wisconsin’s electoral readiness in November will be as they were back in April—when the pandemic was still quite novel, and when, again, the Commission acted heroically, see Wolfe Dep. 20:18–21:12; Dkt. 421 at 4; Dkt. 170 at 34, to conduct an ultimately safe and successful election. See, e.g., Dkt. 420 at 3–4; Swenson Dkt. 41 at 20–24. But all evidence shows that the Commission’s heroic efforts have not abated since April 7. It has taken a top-down review of the election procedures from April 7, identifying any problems and seeking solutions. See supra pp. 15–16. The Commission has already gotten ahead of the estimated increase in absentee-voter requests for the November Election by preparing to mail “all voters without an active absentee request on file” both an absentee-ballot application and informational materials. See Tseytlin Decl. Ex. 28; Tseytlin Decl. Ex. 29; WEC Defendants’ Status
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Report at 3–4; Wolfe Dep. 26:16–27:7; Wolfe Dep. II 128:19–129:17. The Commission and the USPS have worked together to identify problems and solutions relating to the mailing of ballots in April, resulting in the Commission’s decision to implement intelligent barcodes for ballot tracking and the USPS’s administrative recommendations to improve ballot delivery. Tseytlin Decl. Ex. 28; WEC Defendants’ Status Report at 6; Wolfe Dep. 54:14–60:12; Dkt. 433-1.
The Commission has both made improvements to its internal and public-facing websites and earmarked $4.1 million to provide increased safety measures at polling locations. Tseytlin Decl. Ex. 28; WEC Defendants’ Status Report at 5, 8–9; Tseytlin Decl. Ex. 29; Wolfe Dep. 74:21–75:16; see generally WEC Defendants’ Status Report at 2–14 (discussing other efforts, like poll-worker-recruitment efforts).
Speculation about the course of COVID-19 in November is also unripe. The Swenson Plaintiffs admit as much, claiming that any request to predict “the future course of the COVID-19 pandemic” is impossibly vague, barring any response. See, e.g., Tseytlin Decl. Ex. 37 at 4 ¶ 5. The impossibility of this prediction is precisely the point; Plaintiffs do not know what will occur with COVID-19, let alone how Wisconsin’s election administration will respond to the virus. Indeed, even the IHME reporting tool that the Swenson Plaintiffs rely upon, Swenson Dkt. 42 ¶ 216, predicts a much lower infection rate in Wisconsin for November than in April, while admitting of some uncertainty, Tseytlin Decl. Ex. 43. This is textbook unripeness. Texas, 523 U.S. at 300.
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d. Burford Abstention Bars Plaintiffs’ Claims Burford abstention, Burford v. Sun Oil Co., 319 U.S. 315 (1943); E & E Hauling, Inc. v. Forest Preserve Dist., 821 F.2d 433 (7th Cir. 1987), cautions courts to dismiss a suit when “the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern,” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”) (citation omitted), which matters of public concern include a federal court’s “deference to a state’s regulatory regime,” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011). Wisconsin’s state election laws count as such a “state regulatory regime.” Id. Plaintiffs’ efforts to undercut or completely remove Wisconsin’s election-integrity laws clearly disrupt the State’s efforts to establish a coherent and consistent system of voting. Plaintiffs variously ask this Court not only to enjoin numerous laws that Wisconsin requires to protect its fair and honest elections, Anderson, 460 U.S. at 788, but also to “[o]rder[ ] defendants to exercise their statutory authority and responsibility to develop and implement plans to coordinate available state, local, and private resources to ensure that all voters throughout the State are able to cast early in-person absentee ballots and to vote in-person on election day in a safe and secure manner,” Dkt. 198-1 at 39 (citation omitted). This would not only “disrupt[ ]” Wisconsin’s entire electoral system, but also impede upon the Commission’s impressive and ongoing efforts to improve the State’ electoral processes based upon the experience gained from the April 7 Election and subsequent races. See supra pp. 15–16. The undisputed
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testimony of Administrator Wolfe shows that the Commission needs ample flexibility and room to address problems and adopt solutions. Wolfe Dep. 28:22–29:12, 36:19– 37:8. Thus, this Court should abstain under Burford from deciding this case, and allow all Plaintiffs to take their claims to the Wisconsin courts, which are “fully capable of resolving any federal constitutional arguments that [Plaintiffs] might make.” SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 681 n.6 (7th Cir. 2010).
B. Plaintiffs Fail To Meet Their Burden On The Equitable Elements 1. Plaintiffs Have Ample Means To Vote In The November 2020 Election, Thus They Suffer No Irreparable Harm
“[E]quitable relief depends on irreparable harm, even when constitutional rights are at stake.” Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012). And Plaintiffs seeking such relief have the burden of demonstrating that “irreparable injury is likely in the absence of an injunction,” not just a mere “possibility.” Winter, 555 U.S. at 22. Thus, a plaintiff must show that he or she “is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (citations omitted).
Here, Plaintiffs have established no likelihood of irreparable harm in the absence of an injunction. All Wisconsin voters have ample, easy means to register and vote in November’s Election. See Frank I, 768 F.3d at 748. “Wisconsin has lots of rules that make voting easier” than the process in “many other states,” with the “net effect” being that Wisconsin “ha[s] . . . a higher turnout rate than other states
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for voters of all races.” Luft, 2020 WL 3496860, at *3. And this is truer now than ever, given the Commission’s recent efforts to increase no-excuses-needed absentee voting and improve nearly every facet of the State’s electoral system in light of the April 7 Election. See supra p. 15–16. Further, ripeness aside, the uncertainties surrounding the risks of COVID-19 in November, see supra p. 39–40, 110, make Plaintiffs’ injuries “too speculative” to constitute irreparable harm. See Rural Cmty. Workers All. v. Smithfield Foods, Inc., 2020 WL 2145350, at *9–10 (W.D. Mo. May 5, 2020) (explaining that harms that stem from “potentially contracting COVID-19,” “the spread of COVID-19,” or the “[inability] to contain it” are simply “too speculative” to warrant a preliminary injunction). Plaintiffs cannot show that Wisconsin voters are unable to vote in the upcoming elections with only reasonable efforts, and Plaintiffs have not established any likelihood of irreparable harm in the absence of the widespread injunctions they seek. See supra p. 18–21.
2. Enjoining The Commission From Complying With The Numerous Election Laws Challenged Here Irreparably Harms The State, And Is Not In The Public Interest
A court considering preliminary-injunctive relief must weigh the plaintiffs’ irreparable harm against the defendant’s irreparable harm and the public interest. Winter, 555 U.S. at 20. When the defendant is the State, the public-interest and defendant’s-harm factors merge together. Nken v. Holder, 556 U.S. 418, 435 (2009). Enforcement of validly enacted laws is presumed to be in the public interest, accord Abbott v. Perez, 138 S. Ct. 2305, 2324 & n.17 (2018); F.T.C. v. Elders Grain, Inc., 868
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F.2d 901, 904 (7th Cir. 1989), and “the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State,” Abbott, 138 S. Ct. at 2324 n.17.
Plaintiffs challenge numerous Wisconsin election laws that are part of the State’s efforts to “orderly administ[er]” its elections, including bolstering the critical functions of protecting election integrity, safeguarding the public’s belief in that integrity, and setting predictable, date-certain deadlines for election administration. Crawford, 553 U.S. at 196 (controlling plurality op. of Stevens, J.); accord Eu, 489 U.S. at 231. The State has a “substantial interest” in these laws designed to “combat[ ] voter fraud.” Dkt. 189, at 3. And even beyond the grave harm of enjoining individual laws, Abbott, 138 S. Ct. at 2324 n.17, the DNC Plaintiffs also ask this Court to essentially take Wisconsin’s in-person election system into a federal receivership, whereby the Court maintains ongoing jurisdiction and requires the Commission to routinely report back on its progress, Dkt. 420 at 53. This request would gravely harm the State’s interests, with no commensurate value to Plaintiffs, who have every reasonable opportunity to exercise their franchise under the current system. See supra Part I.A.1.a.i.–ii. II. The Court Should Dismiss The Gear And Swenson Operative Complaints14
Rule 12(b) of the Federal Rules of Civil Procedure provides that a court must dismiss a lawsuit for, among other things, “lack of subject-matter jurisdiction” or
14 In deciding the Legislature’s Motion to Dismiss, the Court should take judicial notice of the facts in the publicly available government websites. See Denius v. Dunlap, 330 F.3d 919, 926–27 (7th Cir. 2003); see generally Fed. R. Evid. 201. The Legislature does not rely in its arguments in support of its Motions to Dismiss on the other facts that it has submitted to the Court for its decision on Plaintiffs’ motions for preliminary injunctions.
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“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(1), (6). Under either provision, the court accepts as true the well-pleaded allegations in the complaint. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). However, the court need not accept as true a simple recitation of the elements of a claim, because any complaint “must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court is tasked with concluding whether, after “disregard[ing] any portions that are ‘no more than conclusions,’ [the complaint] ‘contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting Iqbal, 556 U.S. at 678–79) (third brackets in original). “‘Plausibility’ is not a synonym for ‘probability’ in this context, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015) (citations omitted).
In the present consolidated case, the Legislature has pending a Motion To Dismiss the Edwards Plaintiffs’ Complaint. Edwards v. Vos, No 3:20-cv-340-wmc, Dkts. 12, 13. The Legislature now moves to dismiss the operative complaints in Swenson, Swenson Dkt. 37, and Gear, Dkt. 213-1, for the reasons stated below.
A. Luft Requires Dismissal Of All Of The Anderson/Burdick Claims Under Luft, a court considering challenges to a State’s election laws must consider the “the state’s election code as a whole,” not merely the individual
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provisions challenged by the plaintiffs. 2020 WL 3496860, at *3 (emphasis in original). Even a burdensome individual election law passes constitutional muster if other provisions in the State’s election code allow voters to exercise their franchise by other means, with reasonable efforts. See id. Thus, even “stringent verification of eligibility” laws can be sufficiently offset with, for example, “liberal access to absentee ballots,” as Wisconsin plainly offers. Id. (emphasis added). Applying this holistic, whole-code approach to Wisconsin’s election laws, the Seventh Circuit in Luft held that the State’s “adjustment of the number of days and hours when [in-person absentee] voting occurs,” id. at *5, “the state’s durational residence requirement,” id. at *7, “the prohibition on sending absentee ballots by email or fax”, id. at *11, and the “requirement for documentary proof of residence,” id. at *7, were all constitutional under the Anderson/Burdick balancing test, while also overturning a district court’s order permitting individuals to bypass Wisconsin’s photo-ID law with a certification stating that “reasonable effort failed to yield acceptable photo ID,” because this individualized-bypass certification violated Frank II’s admonition against individualvoter difficulties invalidating statewide election laws, id. at *9. The Court came to this conclusion because, overall, “Wisconsin has lots of rules that make voting easier” than the process in “many other states.” Id. at *3.
After Luft, the Gear Plaintiffs’ Complaint plainly fails to state a claim under Anderson/Burdick. As an initial matter, the Gear Complaint violates Luft’s admonition not to consider only challenged individual election laws under the Anderson/Burdick framework. See, e.g., Dkt. 213-1 ¶¶ 12 (claiming a lack of a single
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“fail-safe option” imposes “an undue burden on [Plaintiffs’] right to vote”), 107 (alleging that “[t]he burdens imposed on voters forced to comply with the witness requirement during the COVID-19 pandemic far outweigh any benefit Defendants derive from it”); see supra pp. 25–27. And their request for a “reasonable efforts certification” in lieu of a witness signature on absentee ballots, see, e.g., id. ¶ 16, is near-identical to what the Seventh Circuit rejected in Luft, as a bypass to the State’s similarly reasonable photo-ID law. 2020 WL 3496860, at *9; see supra p. 45. In any event, Plaintiffs’ challenges to Wisconsin’s election laws necessarily fail because Wisconsin’s entire electoral system, overall, “make[s] voting easier” than in “many other states,” Id. at *3, and COVID-19 does nothing to change that, see Tex. Democratic Party, 961 F.3d at 409.
The Swenson Plaintiffs’ Amended Complaint also fails to state a claim for relief after Luft. The Swenson Plaintiffs challenge numerous Wisconsin election laws, but nowhere allege any specific burdens these laws pose, instead only claiming that “Defendants’ actions unduly burdened Plaintiffs.” Dkt. 37 ¶ 220. But this is no more than a mere legal conclusion, which the Court should “disregard[ ].” W. Bend Mut. Ins. Co., 844 F.3d at 675. The Swenson Plaintiffs’ Complaint nowhere alleges sufficient factual matter to assert a plausible claim under Anderson/Burdick, as necessary to survive a motion to dismiss. Bible, 799 F.3d at 639. Nor could they. Wisconsin’s electoral system, as a whole, offers generous and capacious protections for voters’ franchise rights, such that the entire system presents no undue burden on Plaintiffs’ right to vote. Luft, 2020 WL 3496860, at *3.
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B. The Gear And Swenson Plaintiffs’ ADA Claims Fail As A Matter Of Law The Gear Plaintiffs’ Complaint alleges that Defendants have failed and will continue to fail to accommodate them by requiring them to obtain a witness signature on their absentee ballots, rather than allowing disabled voters to simply sign a certification on their own ballot. Dkt. 213-1 ¶¶ 145–50; id. at 76–77. But this request is not a reasonable accommodation, Love, 103 F.3d at 560, as it would fundamentally alter Wisconsin’s electoral system, Lane, 541 U.S. at 532, by undercutting the State’s “substantial interest in combatting voter fraud,” Dkt. 189 at 3 (emphasis added); see supra pp. 41–42. And Plaintiffs fail to acknowledge that Wisconsin law already affords disabled voters ample accommodations to vote, Hildreth, 960 F.3d at 431; Wagoner, 778 F.3d at 593, even if they do not want to comply with the witnesssignature requirement, supra pp. 87–88. Disabled voters can take advantage of curbside-voting procedures, allowing them to vote in front of the polling place from the safety of their cars, thereby avoiding any crowds. See Wis. Stat. § 6.82 (1); Tseytlin Decl. Ex. 13. They can also engage in in-person-absentee voting. Tseytlin Decl. Ex. 3; see Wis. Stat. §§ 6.855, 6.86(1)(a)2. And Wisconsin law also allows quarantining voters to use an agent to vote safely from home under the “hospitalized electors” provision. Wis. Stat. § 6.86(3)(a)(1)–(2); see Tseytlin Decl. Ex. 14 at 1. Finally, in-person voting on Election Day is readily available and safe with minimal efforts, fully accommodating Plaintiffs. Therefore, Plaintiffs’ claim fails as a matter of law because Wisconsin law already amply accommodates disabled voters’ right to the franchise.
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The Swenson Plaintiffs’ ADA claims similarly fail as a matter of law. These Plaintiffs’ Complaint alleges that Defendants violated the ADA by failing to ensure immunocompromised individuals will receive the absentee ballots they request and can circumvent the witness-signature requirement, and failing to guarantee blind voters the right to vote privately and independently with assistive technology. Swenson Dkt. 37 ¶¶ 238–40. Each variation fails. First, the Swenson Plaintiffs’ requested remedies for absentee voting are not reasonable as a matter of law. Supra p. 87. Waiving the witness-signature requirement in favor of a certification is just what the Seventh Circuit stayed back in April. Dkt. 189 at 3. Plaintiffs cannot avoid the Seventh Circuit’s conclusion by bringing the same claim but under the ADA, since the Seventh Circuit concluded the witness-signature requirement was necessary to Wisconsin’s absentee-voting protections, id., requiring the conclusion that mandating this change would fundamentally alter Wisconsin’s system, Lane, 541 U.S. at 532, and be unreasonable, Love, 103 F.3d at 560. Second, their claims for blind voters fail because they have no standing to raise such claims, and all blind voters already have sufficient accommodations under the law. Supra pp. 89–90, 105–08. Finally, this Complaint make no allegations whatsoever, on either iteration, that they would be able to vote but for their disabilities. A.H. by Holzmueller, 881 F.3d at 593; see Dkt. 37 ¶¶ 234–42. Therefore, this Court should dismiss the Gear and Swenson Plaintiffs’ ADA claims for failure to state a claim.
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C. The Swenson Plaintiffs’ Procedural-Due-Process Claim Fails As A Matter Of Law
The Swenson Plaintiffs’ procedural-due-process count fails to state a claim on which relief can be granted. As this Court well understands, “all First and Fourteenth Amendment challenges to state election laws” are analyzed under the Anderson/Burdick framework, Acevedo, 925 F.3d at 948; see also Albright, 510 U.S. at 273, making this claim wholly duplicative of their meritless Anderson/Burdick claim. See supra Part I.A.2.
But even if this could be a legally independent claim, it still fails. The Swenson Plaintiffs’ challenge to the procedures for requesting absentee ballots alleges no serious risk of erroneous deprivation of Plaintiffs’ rights in the November Election, given both Wisconsin’s generous absentee-by-mail, absentee-in-person, and in-person voting options, as well as the Commission’s extensive efforts to further provide safe and reliable voting options to all voters who want them. Mathews, 424 U.S. at 335; see supra pp. 73–74. And Plaintiffs’ requested “remedies” offer little, if any, additional safeguards, Mathews, 424 U.S. at 335, given all of the Commission’s extensive efforts to ensure that all voters who want to vote absentee can. See supra pp. 74–77.
Similarly, Plaintiffs’ challenge to Wisconsin’s procedures for absentee ballot counting similarly fails to state a claim on which relief can be granted. First, Plaintiffs’ challenge here has seemingly nothing to do with COVID-19. Supra p. 77. Plaintiffs’ requested remedies offer little-to-no additional value to voters, given the existing procedures for voters to correct errors with their absentee ballots under
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Wisconsin law. See Wis. Stat. §§ 6.86(5), 6.869, 6.87(9); Tseytlin Decl. Ex. 8. But imposing these additional procedures “would be disproportionate to the benefits, which would be slight” given all of the State’s other protections for voters, Protect Marriage Ill., 463 F.3d at 608, and requiring the State to canvass ballots before voting is complete risks “disclosure of election results,” which the Supreme Court has already acknowledged “would gravely affect the integrity of the election process,” Republican Nat’l Comm., 140 S. Ct. at 1207.
D. The Swenson Plaintiffs’ Equal Protection/Bush v. Gore Claim Fails As A Matter Of Law
The Swenson Plaintiffs’ Equal Protection Clause claim, premised on Bush v. Gore, fares no better. First, both the Supreme Court and lower courts have expressly limited that decision to its own particular circumstances, which circumstances have absolutely no similarities here. Bush, 531 U.S. at 109; Lemons, 538 F.3d at 1106. But even assuming, arguendo, that Bush v. Gore could apply here, Plaintiffs challenge only the acts of independent third parties they have chosen not to name as defendants. See Lujan, 504 U.S. at 560; see supra pp. 84, 100–05.
E. The Swenson Plaintiffs’ VRA Voter Intimidation Claim Fails As A Matter Of Law
The Swenson Plaintiffs’ claim under Section 11(b) of the VRA is legally meritless for three independent reasons. Supra pp. 93–100. First, despite the statutory text prohibiting only “person[s]” from “intimidat[ing] . . . any person for voting or attempting to vote,” 52 U.S.C. § 10307(b) (emphasis added), Plaintiffs allege only that they were intimidated by COVID-19. See Swenson Dkt. 37 ¶¶ 202–04.
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Plaintiffs also fail to plausibly allege that any Defendants intended to intimidate them, even though the statute only prohibits acts of intimidation specifically “for voting or attempting to vote.” 52 U.S.C. § 10307(b) (emphasis added); see also Parson, 157 F. Supp. 3d at 498–99 (citing Olagues, 770 F.2d at 804; McLeod, 385 F.2d at 740– 41). Finally, Plaintiffs allege only that Defendants failed “to take objectively reasonable steps” to administer the election, Swenson Dkt. 37 ¶¶ 197–99, 201, but this falls far short of alleging acts of intimidation under the statute, given that Section 11(b) does not cover “inadvertent or technical violations of voting procedures,” Willingham, 593 F. Supp. 2d at 462, or general “election deficiencies,” Powell, 436 F.2d at 87.
F. This Court Lacks Jurisdiction Over Both Complaints In Various Respects
Plaintiffs’ claims, all directed at the future elections, are unripe. The Gear and Swenson Plaintiffs’ claims all rest on assumptions and contingencies about the future of COVID-19 and Wisconsin’s electoral preparedness. The Swenson Plaintiffs, for example, admit that they cannot predict “the precise course of the pandemic between now and the coming elections,” Swenson Dkt. 37 ¶ 4, and they can only guess that Wisconsin’s electoral process “is likely” to violate Plaintiffs’ rights, id. ¶ 9. The Gear Plaintiffs similarly admit that they believe it only “likely” that “Wisconsin election officials will remain unable to satisfy . . . demand for mail-in absentee ballots in the fall.” Dkt. 213-1 ¶ 5. But these claims remain entirely “contingent” upon future events, Texas, 523 U.S. at 300, which are entirely speculative, Lehn, 364 F.3d at 867, making them quintessentially unripe claims.
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In addition, this Court lacks jurisdiction over both sets of Plaintiffs’ Complaints, to the extent they lack standing for challenging the actions of third parties not named in this lawsuit. Plaintiffs must prove, as an “irreducible constitutional minimum,” a causal connection between “action[s] of the defendant” and their alleged injuries. Lujan, 504 U.S. at 560. And specific units of government are responsible only “for their own discrimination,” not the discrimination of other government officials. Frank I, 768 F.3d at 753. Here, both sets of Plaintiffs claim harm from the actions of local election officials, not the Commission, claims for which they have no standing. For example, the Gear Plaintiffs widely challenge Wisconsin’s procedures for delivery of absentee ballots and processing and counting absentee ballots. Dkt. 213-1 ¶¶ 112–19, 135–36. But they also admit that “[m]unicipal clerks prepare absentee ballots for delivery to voters that request them,” that municipal clerks and the USPS are responsible for delivery and return of mailed ballots, Dkt. 213-1 ¶¶ 71, 74, as is clear under Wisconsin law, see, e.g., Wis. Stat. § 7.15(1)(a), (b), (c), (cm), (k). And the Swenson Plaintiffs similarly challenge Wisconsin procedures for establishing, managing, and staffing polling locations; delivery and return of absentee ballots, and educating the voting public, Swenson Dkt. 37 ¶ 8, although all of these procedures are administered under Wisconsin law by local election officials, Wis. Stat. §§ 7.15(1)(a), (b), (c), (cm), (k); 7.10(7). Because these allegations all fall at the feet of local election officials, Plaintiffs have no Article III standing to press these claims against Defendants. Lujan, 504 U.S. at 560; Frank I, 768 F.3d at 753.
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Finally, the Swenson Plaintiffs lack Article III standing to bring their ADA vision-impairment claims because, as explained above, they do not allege that they are visually impaired and do not allege that they have visually impaired members harmed by Wisconsin law. See supra Part I.A.6.b.
G. This Court Should Dismiss Both Complaints Under Burford Abstention Finally, this Court should dismiss both Complaints under Burford and its progeny, because Plaintiffs’ efforts will disrupt Wisconsin’s extremely critical efforts to maintain election integrity during a statewide election. Under Burford and its progeny, federal courts should dismiss a suit when deciding the matter “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern,” NOPSI, 491 U.S. at 361, which clearly includes the enforcement of state election laws and the administration of a statewide election, see id.; see also Dkt. 37 at 17 n.12. The Gear and Swenson Plaintiffs both seek to enjoin numerous election laws and develop and implement additional election processes under this Court’s supervision, Swenson Dkt. 37 at 67–69; Dkt. 213-1 at 74–77, including a specific request that this Court “monitor Defendants’ compliance” with any specific procedures ordered, Dkt. 213-1 at 77. Such requests will not only “disrupt[ ]” Wisconsin’s entire electoral system, NOPSI, 491 U.S. at 361, but also impede the Commission’s ongoing efforts to improve the State’s electoral processes based upon the experience gained from the April 7 Election and subsequent races, see supra at pp. 15–16. Therefore, Burford abstention requires this Court to dismiss
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Case: 3:20-cv-00249-wmc Document #: 454 Filed: 07/20/20 Page 137 of 139 Plaintiffs’ complaints, which dismissal will still permit them to resort to the “fully capable” Wisconsin courts, SKS & Assocs., Inc., 619 F.3d at 681 n.6.
CONCLUSION The Court should deny the motions for preliminary injunction in all cases. And the Court should dismiss the operative complaints in Gear and Swenson.
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Dated, July 20, 2020
ERIC M. MCLEOD (State Bar No. 1021730) LANE E. RUHLAND (State Bar No. 1092930) HUSCH BLACKWELL LLP P.O. Box 1379 33 East Main Street, Suite 300 Madison, WI 53701-1379 (608) 255-4440 (608) 258-7138 (fax) eric.mcleod@huschblackwell.com lane.ruhland@huschblackwell.com
LISA M. LAWLESS (State Bar No. 1021749) HUSCH BLACKWELL LLP 555 East Wells Street, Suite 1900 Milwaukee, WI 53202-3819 (414) 273-2100 (414) 223-5000 (fax) lisa.lawless@huschblackwell.com
Counsel for Legislature in DNC
SCOTT A. KELLER BAKER BOTTS LLP 700 K Street, N.W. Washington, DC 20001 (202) 639-7837 (202) 585-1023 (fax) scott.keller@bakerbotts.com
Counsel for Legislature in Gear

Respectfully submitted,
/s/ Misha Tseytlin MISHA TSEYTLIN Counsel of Record (State Bar No. 1102199) ROBERT E. BROWNE, JR. (State Bar No. 1029662) KEVIN M. LEROY (State Bar No. 1105053) SEAN T.H. DUTTON TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com robert.browne@troutman.com kevin.leroy@troutman.com sean.dutton@troutman.com
KASIA HEBDA TROUTMAN PEPPER HAMILTON SANDERS LLP 600 Peachtree Street NE, Suite 3000 Atlanta, GA 30308 (404) 885-3665 kasia.hebda@troutman.com
Counsel for Legislature in DNC, Gear, and Swenson and for Legislative Defendants in Edwards

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CERTIFICATE OF SERVICE I hereby certify that on the 20th day of July, 2020, a true and accurate copy of
the foregoing was served via the Court’s CM/ECF system upon all counsel of record.
/s/ Misha Tseytlin MISHA TSEYTLIN TROUTMAN PEPPER HAMILTON SANDERS LLP 227 W. Monroe Street Suite 3900 Chicago, IL 60606 (608) 999-1240 (312) 759-1939 (fax) misha.tseytlin@troutman.com

 
 Case: 3:20-cv-00249-wmc Document #: 455 Filed: 07/20/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v.
MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners,
Defendants,

Case No: 3:20-cv-249-wmc (consolidated with 3:20-cv-278-wmc, 3:20-cv284-wmc, 3:20-cv-340-wmc, and 3:20-cv-459-wmc)

REPUBLICAN NATIONAL COMMITTEE, REPUBLICAN PARTY OF WISCONSIN, and WISCONSIN STATE LEGISLATURE
Intervenor-Defendants.

INTERVENOR-DEFENDANTS’ CONSOLIDATED OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Intervenors, the Republican National Committee (RNC) and the Republican Party of Wisconsin (RPW), incorporate by reference the arguments of the Wisconsin Legislature opposing any preliminary injunction in this case, see Doc. 454, which comprehensively refute the legal and factual basis offered by Plaintiffs. In an effort to avoid duplicative briefing, the RNC and RPW write briefly to emphasize three points that should guide the Court’s consideration of whether Plaintiffs can make “a clear showing” that they are entitled to the “extraordinary remedy” of an injunction. Winter v. NRDC, 555 U.S. 7, 24, 22 (2008).
First, “[constitutional] violations require state action,” and Wisconsin is not responsible for COVID-19 or private citizens’ responses to it. Thompson v. Dewine, 959 F.3d 804, 813 (6th Cir. 2020). While COVID-19 has changed Wisconsinites’ everyday lives, these difficulties are not burdens imposed “by the State.” Tex. Democratic Party v. Abbott, 2020 WL 2982937 (5th Cir. June 4, 2020). Plaintiffs’ claimed obstacles to voting “are not caused by or fairly traceable to the actions of the State,

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but rather are caused by the global pandemic.” Mays v. Thurston, 2020 WL 1531359, at *2 (E.D. Ark. Mar. 30, 2020). To date, most courts have recognized that “COVID-19 … is not the result of any act or failure to act by the Government. And that fact is important” because “[a]ll of the election cases cited by Plaintiffs in which injunctive relief was granted involved a burden … that was created by the Government. Not so here.” Coalition for Good Governance v. Raffensperger, 2020 WL 2509092, at *3 n.2 (N.D. Ga. May 14, 2020); accord Tex. Democratic Party, 2020 WL 2982937, at *11 (“The Constitution is not offended … even where voting in person may be extremely difficult … because of circumstances beyond the state’s control, such as the presence of the Virus.” (cleaned up)).
Moreover, the State has determined that it can conduct in-person voting safely and effectively. Wisconsin has generally relaxed its restrictions on the public since the April election, and both the WEC and municipalities are moving forward with plans to offer in-person voting in a safe manner this fall. Even if this Court disagreed that voting could be safely administered under these circumstances—and it bears repeating that Plaintiffs cannot even demonstrate that a single voter was infected during April’s in-person election—federal courts cannot and should not second-guess the judgment of Wisconsin’s election officials. As the Seventh Circuit explained earlier in this case, questions about how to “accommodate voters’ interests while also striving to ensure their safety” are best left to election officials, who are “better positioned … to accommodate the many intersecting interests in play in the present circumstances.” Democratic Nat’l Comm. v. Bostelmann, Doc. 30, No. 201538 (7th Cir. Apr. 3, 2020). “[F]ederal courts make poor arbiters of public health.” Sinner v. Jaeger, 2020 WL 3244143, at *6 (D.N.D. June 15, 2020). They do “not have the authority ‘to act as the state’s chief health official’ by making the decision” how best to protect “the health and safety of the community.” Taylor v. Milwaukee Election Comm’n, 2020 WL 1695454, at *9 (E.D. Wis. Apr. 6, 2020). These “decisions are instead best left ‘to the politically accountable officials of the States,’ not ‘an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public
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health and is not accountable to the people.’” Sinner, 2020 WL 3244143, at *6 (quoting S. Bay United Pentecostal Church v. Newsom, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., concurring in the denial of injunctive relief)).
Second, even if the Plaintiffs could attribute the effects of the pandemic to some constitutional violation by state actors, their attempt to slice and dice various provisions of Wisconsin election law and attack them in isolation is foreclosed by binding precedent. On their face, none of the challenged laws abridges the right to vote. As the Seventh Circuit has explained, “[v]oting fraud is a serious problem” that can be “facilitated by absentee voting.” Griffin v. Roupas, 385 F.3d 1128, 113031 (7th Cir. 2004). Registration deadlines promote the State’s “valid and sufficient interests in … prepar[ing] adequate voter records and protect[ing] its electoral processes from possible frauds.” Marston v. Lewis, 410 U.S. 679, 680 (1973) (upholding a registration deadline 50 days before the election). These deadlines also “provide[] a certainty and reliability that enable election officials to direct their efforts to the essential tasks of election preparation and thus minimize[] the degree of disorder and the risk of error and even chaos.” Diaz v. Cobb, 541 F. Supp. 2d 1319, 1335 (S.D. Fla. 2008). Similarly, laws that require voters to prove their identity “deter[] fraud,” “promote[] accurate record keeping,” and “promote[] voter confidence.” Frank v. Walker (Frank I), 768 F.3d 744, 750 (7th Cir. 2014).
Because all of the challenged provisions are “nondiscriminatory law[s]” that are “supported by valid neutral justifications,” Crawford v. Marion County Election Bd., 553 U.S. 181, 204 (2008) (opinion of Stevens, J.), Plaintiffs have no chance of success on the merits of their claims. In these types of Anderson-Burdick cases, the “government’s legitimate regulatory interests will generally carry the day.” Stone v. Bd. of Election Comm’rs, 750 F.3d 678, 681 (7th Cir. 2014). Moreover, in analyzing the Plaintiffs’ challenges the Court cannot “look at each provision in isolation[.]” Luft v. Evers, ---- F.3d ---, 2020 WL 3496860, at *3 (7th Cir. 2020). It must instead consider “Wisconsin’s many other provisions that make
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it easy to vote,” id. *6, in reaching a decision as to whether the asserted burdens of the challenged laws outweigh the state’s interests.
Moreover, in doing so the Court cannot focus only on the inconvenience or disruption to certain individual voters. “This is not a plausible application of Anderson and Burdick.” Luft, 2020 WL 3496860, at *7. “Some [voters’] potential inconvenience does not permit a court to override the state’s judgment that other interests predominate.” Id. Indeed, a “voter-by-voter examination of the burdens of voting regulations” is “especially disruptive.” Crawford, 553 U.S. at 208 (Scalia, J,., concurring). States like Wisconsin must make legislative determinations for their population as a whole, and could not possibly anticipate every potential effect on each and every voter. As the Northern District of Florida recently explained, “[a] state could reasonably … decide,” for example, “to require receipt on or before election day. This eliminates the problem of missing, unclear, or even altered postmarks, eliminates delay that can have adverse consequences, and eliminates the remote possibility that in an extremely close election … a person who did not vote on or before election day can fill out and submit a ballot later.” Nielsen v. DeSantis, Doc. 332 at 3, No. 4:20-cv-236-RH-MJF (N.D. Fla. June 24, 2020).
Third, and finally, this Court should be particularly wary of granting injunctive relief given the short time frame in which votes and election officials would have to react to any change in the election procedures. The hearing on this motion is scheduled to take place less than 90 days before the election, with key deadlines and early voting starting even sooner. The Supreme Court has often and recently— indeed, in this very proceeding—“emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican National Comm. v. Democratic National Comm., 140 S.Ct. 1205, 1207 (2020). This is because “[c]ourt orders affecting elections … can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). “As an election draws closer, that risk will increase.” This Court has acknowledged that Purcell “cautions against court intervention in imminent elections.” Doc. No 217 at 9.
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Under the current schedule, any injunction in this case would issue less than three months before the election. The inevitable appeals by whichever side loses will undoubtedly “consume further valuable time.” Purcell, 549 U.S. at 5; see also Thompson, 959 F.3d at 813 (“rewriting a state’s election procedures or moving deadlines rarely ends with one court order” because “[m]oving one piece on the game board invariably leads to additional moves.”). Even now, the WEC and local municipalities have their hands full preparing to conduct a safe in-person election, to deal with an expected large number of absentee ballot requests and votes, to provide for early in-person voting, and to address other challenges arising from the high turnout associated with a presidential election year. And deadlines for the November election begin in mid-October. Under Purcell, the Court must consider all of these factors when determining whether issuing an injunction that would alter the state’s election laws in the weeks immediately preceding the election would add to voter confusion and negatively impact the upcoming election.
Courts have invoked Purcell in proceedings conducted on a similar time frame as this one. See, e.g., Husted v. Ohio State Conference of NAACP, 573 U.S. 988 (2014) (staying a lower-court order that changed election laws 61 days before election day); Thompson, 959 F.3d at 813 (election day was “months away but important, interim deadlines … [we]re imminent” and “moving or changing a deadline or procedure now will have inevitable, other consequences”); Perry v. Perez, 565 U.S. 1090 (2011) (22 days before the candidate-registration deadline); Purcell, 549 U.S. at 4-5 (33 days before election day); North Carolina v. League of Women Voters of N.C., 574 U.S. 927 (2014) (32 days before election day).
The RNC and RPW recognize the Court’s efforts to ensure this motion could be heard in as timely a manner as possible. See Doc. 217 at 9. But that cannot change the fact that three of these Plaintiffs waited until July to file their motions for preliminary injunctions, and the others chose to file in late June. And although the facts concerning COVID-19’s effects within the state undeniably
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change by the day and are difficult to forecast in advance, this simply underscores the other points made above: those changes are being caused by the virus, not the State, and any attempt to assess the effect of COVID-19 in the coming weeks is necessarily speculative. Against that changing backdrop, this Court should be particularly wary about adding further uncertainty to the mix of information voters must grapple with as this election approaches.
CONCLUSION For the reasons set forth above and in the Legislature’s opposition, Plaintiffs’ motions should be denied.

Dated: July 20, 2020
Jeffrey M. Harris Cameron T. Norris Alexa R. Baltes CONSOVOY MCCARTHY PLLC 1600 Wilson Blvd., Ste. 700 Arlington, VA 22209

Respectfully submitted,
/s/ Patrick Strawbridge T Patrick Strawbridge CONSOVOY MCCARTHY PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com

6

 
 Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 1 of 110

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

  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.  

               20-cv-249-wmc      

  SYLVIA GEAR, et al.,  
 Plaintiffs,   
v.    MARGE BOSTELMANN, et al.,  
Defendants,  
and   WISCONSIN LEGISLATURE, REPUBLICAN NATIONAL COMMITTEE, AND REPUBLICAN PARTY OF WISCONSIN,  
Intervening-Defendants.  

               20-cv-278-wmc      

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 2 of 110

  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.

               20-cv-340-wmc      
               20-cv-459-wmc      
   

PLAINTIFFS’ OMNIBUS BRIEF IN FURTHER SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION AND IN OPPOSITION TO THE INTERVENORDEFENDANTS’ MOTION TO DISMISS.

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 3 of 110
TABLE OF CONTENTS TABLE OF AUTHORITIES.........................................................................................................i INTRODUCTION .........................................................................................................................1 STANDARDS OF REVIEW ........................................................................................................4 ARGUMENT .................................................................................................................................5
I. Plaintiffs Are Likely to Prevail on the Merits of Their Claims .....................................5 Plaintiffs Are Likely to Succeed on the Merits of Their Claim Under Section 11(b) of
the Voting Rights Act of 1965.................................................................................................5 Section 11(b) does not contain an intent element........................................................7 Section 11(b) applies here because defendants are administering an elections system
that intimidates voters and that fails to protect voters from intimidating threats ..............11 Plaintiffs Are Likely to Prevail on the Merits of Their ADA Claims. ..........................14 Plaintiffs Are Likely to Prevail on Their Claim That Defendants’ Election
Administration and Various Provisions of Wisconsin Election Law Unduly Burden Their Right to Vote Under Anderson-Burdick ................................................................................22
Luft does not foreclose, and if anything reinforces, Plaintiffs’ Anderson-Burdick claims ................................................................................................................................. 22
Absent judicial intervention, several aspects of the upcoming election are likely to unconstitutionally burden the right to vote........................................................................29
The Supreme Court has not ruled or suggested that an Anderson-Burdick challenge to election law and administration in light of COVID-19 will be rejected. ......................46
Plaintiffs are Likely to Succeed on the Merits of their Procedural Due Process Claim 48 Plaintiffs’ procedural due process claim is independent of their Anderson-Burdick
claims ................................................................................................................................. 48 The prohibition on canvassing absentee ballots before Election Day violates
procedural due process. .....................................................................................................52 Defendants’ procedures regarding requesting, processing, and rejecting requests for
absentee ballots violate due process ..................................................................................57 Plaintiffs Are Likely to Succeed on the Merits of Their Equal Protection claim..........59
II. The WEC Is the Proper and Necessary Defendant to Remedy the Unique Threat to Voting Rights in November ....................................................................................................64
The WEC is Responsible for the Administration of Wisconsin Elections and Is Therefore the Appropriate Defendant Here...........................................................................66
The WEC’s Specific Statutory Authorities Support Each of Plaintiffs’ Claims for Relief. ....................................................................................................................................70 III. Plaintiffs’ Claims Are Justiciable...................................................................................78
Plaintiffs’ Claims Are Ripe and Present No Purcell Problem ......................................78

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Plaintiffs’ claims are ripe...........................................................................................79 Purcell does not prevent an injunction here ..............................................................81 Burford Abstention Does Not Apply.............................................................................84 IV. Plaintiffs Are Entitled to a Preliminary Injunction .....................................................86 Plaintiffs Will Suffer Irreparable Harm in the Absence of an Injunction .....................86 The WEC’s Efforts to Date Will Not Prevent Irreparable Harm to Plaintiffs...............87 In-Person Voting .......................................................................................................89 Absentee Voting ........................................................................................................92 Voter Education.........................................................................................................94 The Public Interest Favors an Injunction.......................................................................95 CONCLUSION ............................................................................................................................96

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 5 of 110
TABLE OF AUTHORITIES
Cases .................................................................................................................................... Page(s)
Acevedo v. Cook County Officers Electoral Board, 925 F.3d 944 (7th Cir. 2019) .....................................................................................................50
Acosta v. Pablo Restrepo, 2020 WL 3495777 (D.R.I. June 25, 2020) ................................................................................23
Addington v. Texas, 441 U.S. 418 (1979) ..................................................................................................................49
Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) ...............................................................................................84, 85
Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) .......................................................................................................4
Anderson v. Celebrezze, 460 U.S. 780 (1983) ..................................................................................................................50
Arizona Democratic Party v. Arizona Republican Party, No. 16-3752, 2016 WL 8669978 (D. Ariz. 2016) .......................................................................7
Babbitt v. Sweet Home Chapter of Cmtys., 515 U.S. 687 (1995) ....................................................................................................................9
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ..................................................................................................................79
Bershatsky v. Levin, 99 F.3d 555 (2d Cir. 1996) ........................................................................................................10
Bible v. United Student Aid Funds, Inc., 799 F.3d 633 (7th Cir. 2015) .......................................................................................................5
Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002).........................................................................................60
Brost v. Capstan Corp., 19-CV-535-WMC, 2020 WL 2560965 (W.D. Wis. May 20, 2020) ...........................................4
Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570 (7th Cir. 2017) .......................................................................................................5
Burdick v. Takushi, 504 U.S. 428 (1992) ............................................................................................................48, 50
i

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 6 of 110
Burson v. Freeman, 504 U.S. 191 (1992) ..................................................................................................................46
Bush v. Gore, 531 U.S. 98 (2000) ........................................................................................................50, 60, 61
Church of Our Lord & Savior Jesus Christ v. City of Markham, Ill., 913 F.3d 670 (7th Cir. 2019) .....................................................................................................79
Common Cause Ind. v. Lawson, 937 F.3d 944 (7th Cir. 2019) .....................................................................................................21
Cook Cty. v. Wolf, 962 F.3d 208 (7th Cir. 2020) .....................................................................................................21
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ..................................................................................................................27
Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017 (N.D. Fla. Nov. 15, 2018) ......................................................................43
Democratic Exec. Comm. of Florida v. Lee, 915 F.3d 1312 (11th Cir. 2019) .................................................................................................40
Democratic Nat’l Comm. v. Bostelmann, 20-cv-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020)...........................................84
Democratic Nat’l Comm. v. Bostelmann, No. 20-1538, 2020 WL 3619499 (7th Cir. Apr. 3, 2020)....................................................16, 45
Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020) .............................passim
Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 3077047 (W.D. Wis. June 10, 2020) ...........................passim
Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575 (D.N.J. 2009)............................................................................................10
Disabled in Action v. Bd. of Elections in City of N.Y., 752 F.3d 189 (2d Cir. 2014) ......................................................................................................18
Drenth v. Boockvar, 2020 WL 2745729 (M.D. Pa. May 27, 2020) .....................................................................18, 22
DRW v. State of Wis. Dep’t of Pub. Instruction, 463 F.3d 719 (7th Cir. 2006) .....................................................................................................19
ii

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 7 of 110
DRW v. Walworth Cty. Bd. of Supers., 522 F.3d 796 (7th Cir. 2008) .....................................................................................................20
Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981) .....................................................................................................86
Fenton v. Dudley, 761 F.3d 770 (7th Cir. 2014) .....................................................................................................10
Fla. Democratic Party v. Detzner, No. 4:16-CV-607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016)............................69
Frank v. Walker, 196 F. Supp. 3d 893 (E.D. Wis. 2016) ......................................................................3, 64, 67, 68
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .....................................................................................................43
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ...................................................................................26, 27, 40, 44
Gill v. Whitford, 138 S. Ct. 1916 (2018) ..............................................................................................................50
Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004) ...................................................................................................27
Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) .......................................................................................................5
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ......................................................................................................15
Hicks v. Knight, No. 15,727, 10 Race Rel. L. Rep. 1504 (E.D. La. 1965).....................................................13, 14
Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017) .....................................................................................................15
Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721 (7th Cir. 2009) .......................................................................................................4
Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) .....................................................................................................61
Husted v. Ohio State Conference of NAACP, 573 U.S. 988 (2014) ..................................................................................................................83
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Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 8 of 110
Idaho v. Little, 2020 WL 3490216 (D. Idaho June 26, 2020) ............................................................................23
Illinois v. Batchelder, 463 U.S. 1112 (1983) ................................................................................................................52
Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Correction, 642 F. Supp. 2d 872 (S.D. Ind. 2009)............................................................................19, 20, 21
Int’l College of Surgeons v. City of Chi., 153 F.3d 356 (7th Cir. 1998) .....................................................................................................85
Kansas v. Hendricks, 521 U.S. 346 (1997) ..................................................................................................................49
Katzenbach v. Original Knights of Ku Klux, 250 F. Supp. 330 (E.D. La. 1965) .............................................................................................13
Lacy v. Cook Cty., 897 F.3d 847 (7th Cir. 2018) .....................................................................................................18
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) .........................................................................................60, 61, 62
League of Women Voters of U.S. v. Fields, 352 F. Supp. 1053 (E.D. Ill. 1972) ............................................................................................60
League of Women Voters of Virginia v. State Bd. of Elections, 2020 WL 2158249 (W.D. Va. May 5, 2020).............................................................................23
Lexmark Int’l., Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ..................................................................................................................84
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) ..............................................................................................passim
LULAC-Richmond Regional Council 4614 v. Public Interest Legal Found., No. 18-423, 2018 WL 3848404 (E.D. Va. 2018) ..............................................................7, 9, 10
Lyman v. Baker, 954 F.3d 351 (1st Cir. 2020) .....................................................................................................60
Madera v. Detzner, 325 F. Supp. 3d 1269 (N.D. Fla. 2018) .....................................................................................68
Massachusetts v. EPA, 549 U.S. 497 (2007) ....................................................................................................................7
iv

Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 9 of 110
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................................................52, 53
Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) .....................................................................................................28
Merrill v. People First of Alabama, No. 19A1063 (July 2, 2020) ......................................................................................................47
NFIB v. Lamone, 813 F.3d 494 (4th Cir. 2016) ..............................................................................................passim
North Carolina v. League of Women Voters of N.C., 574 U.S. 927 (2014) ..................................................................................................................83
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .....................................................................................................95
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002) .....................................................................................................15
Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) .....................................................................................................28
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) .................................................................................................9, 10
Ore. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ...................................................................................................20
Parsons v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016) ....................................................................................9, 10
People First of Ala. v. Sec’y of State, 2020 WL 3478093 (11th Cir. June 25, 2020)............................................................................47
Perry v. Perez, 565 U.S. 1090 (2011) ................................................................................................................83
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ..................................................................................................................17
Powell v. Power, 436 F.2d 84 (2d Cir. 1970) ........................................................................................................10
Price v. New York State Bd. of Elections, 540 F.3d 101 (2d Cir. 2008) ................................................................................................28, 43
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Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 10 of 110
Prop. & Cas. Ins. Ltd. v. C. Nat. Ins. Co. of Omaha, 936 F.2d 319 (7th Cir. 1991) .....................................................................................................85
Pugel v. Bd. of Tr. of Univ. of Ill., 378 F.3d 659 (7th Cir. 2004) .....................................................................................................48
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) ..................................................................................................................84
Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) ..........................................................................48, 49, 54, 57
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) .......................................................................................................passim
Rumsfeld v. Forum for Acad. and Inst. Rights, Inc., 547 U.S. 47 (2006) ......................................................................................................................9
Rural Cmty. Workers All. v. Smithfield Foods, Inc., 2020 WL 2145350 (W.D. Mo. May 5, 2020)............................................................................87
Santosky v. Kramer, 455 U.S. 745 (1982) ..................................................................................................................52
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018) ..........................................................................................49
Sevugan v. Direct Energy Services, LLC, 931 F.3d 610 (7th Cir. 2019) .......................................................................................................4
Shaw v. Reno, 509 U.S. 630 (1993) ..................................................................................................................50
Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) .................................................................................................86
Stein v. Thomas, 672 Fed. App’x 565 (6th Cir. 2016) ..........................................................................................86
Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020) .....................................................................................................47
Thomas v. Andino, 2020 WL 2617329 (D.S.C. May 25, 2020) ...............................................................................23
Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) .....................................................................................................83
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Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 11 of 110
Tzakis v. Wright Med. Tech., Inc., 19-CV-545-WMC, 2020 WL 955016 (W.D. Wis. Feb. 27, 2020)..............................................5
United States v. Bd. of Edu. of Greene Cty., Miss., 332 F.2d 40 (5th Cir. 1964) .........................................................................................................8
United States v. Beaty, 288 F.2d 653 (6th Cir. 1961) .......................................................................................................8
United States v. Clark, 249 F. Supp. 720 (S.D. Ala. 1965) ......................................................................................12, 13
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) .................................................................................................8, 10
Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969)........................................................................................60, 62
Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006) .................................................................................................61
Willingham v. County of Albany, 593 F. Supp. 2d 446 (N.D.N.Y. 2006) ..................................................................................9, 10
Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011) .....................................................................................................79
Zessar v. Helander, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006) ..................................................................49, 54, 57
Statues.................................................................................................................................. Page(s) 52 U.S.C. § 10101(b).......................................................................................................................8 52 U.S.C. § 10307(a) .......................................................................................................................8 52 U.S.C. § 10307(b).....................................................................................................................10 52 U.S.C. § 10307(c) .......................................................................................................................8 Fla. Stat. § 15.13............................................................................................................................69 Fla. Stat. § 97.012..........................................................................................................................69 Wis. Stat. § 5.05 .....................................................................................................................passim Wis. Stat. § 5.25 ............................................................................................................................74
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Wis. Stat. § 5.35 ............................................................................................................................71 Wis. Stat. § 5.51 ............................................................................................................................73 Wis. Stat. § 5.905 ..........................................................................................................................74 Wis. Stat. § 6.20 ............................................................................................................................57 Wis. Stat. § 6.24 ......................................................................................................................75, 76 Wis. Stat. § 6.30 ......................................................................................................................74, 75 Wis. Stat. § 6.855 ..............................................................................................................37, 59, 65 Wis. Stat. § 6.86 .....................................................................................................................passim Wis. Stat. § 6.869 ....................................................................................................................53, 76 Wis. Stat. § 6.87 .....................................................................................................................passim Wis. Stat. § 6.875 ..........................................................................................................................70 Wis. Stat. § 6.88 .....................................................................................................................passim Wis. Stat. § 6.93 ............................................................................................................................55 Wis. Stat. § 7.03 ................................................................................................................69, 73, 74 Wis. Stat. § 7.08 .....................................................................................................................passim Wis. Stat. § 7.10 ..........................................................................................................73, 75, 77, 78 Wis. Stat. § 7.15 .....................................................................................................................passim Wis. Stat. § 7.30 ......................................................................................................................37, 65 Wis. Stat. § 7.51 ................................................................................................................44, 52, 65 Wis. Stat. § 7.52 .....................................................................................................................passim Wis. Stat. § 7.70 ............................................................................................................................55 Wis. Stat. § 7.75 ............................................................................................................................55
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Case: 3:20-cv-00249-wmc Document #: 493 Filed: 07/31/20 Page 13 of 110 Other Authorities................................................................................................................ Page(s) H. Rpt. 89-439, at 30 (1965)..........................................................................................................10 Hearing on the U.S. Commissioner System Before the Subcomm. on Improvements in Judicial
Machinery of the S. Comm. on the Judiciary, 189th Cong. 1300-1301 (1965) ........................14 Random House Webster’s Dictionary (2d ed. 1996).......................................................................8 Regulations .......................................................................................................................... Page(s) 28 C.F.R. § 35.130.........................................................................................................................15
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INTRODUCTION The Wisconsin Legislature’s core argument here is that it remains “easy to vote” in Wisconsin during the COVID-19 pandemic. That is an astonishing position to take as the pandemic continues to escalate and in light of Wisconsin’s experience during the April election, during which tens of thousands of voters were disenfranchised and deterred from voting. Plaintiffs’ claims are likely to succeed because, unlike the Intervenor-Defendants’ arguments, they are grounded in the actual operation of Wisconsin’s election system during the COVID-19 pandemic.
The Intervenor-Defendants in this case—speaking mainly through the Legislature’s omnibus brief, which the Republican Party incorporates by reference—betray a stunning breeziness about recent history and brush aside what all the evidence suggests: that April was a sneak preview of what will happen in November, absent intervention from this Court. All of the epidemiological evidence proffered in this case establishes that the virus will continue to spread in Wisconsin, with infection rates in November likely to continue to grow from where they are today. See infra 88. The Intervenor-Defendants put forward no expert report questioning the public health consensus, and they do not even bother to rebut the expert analysis demonstrating how COVID-19 rates in April corresponded to the disenfranchisement of thousands of Wisconsin voters. See infra 64, 88.
In April, it was not one isolated aspect of the election system that buckled, but the interlocking components of that system as a whole, leaving huge numbers of Wisconsin voters without safe and effective access to the franchise. In-person voting was unsafe and untenable for many voters throughout the state due to poll worker shortages and the resulting polling place closures that followed, lack of personal protective equipment and sanitation supplies, and an absence of clear guidance on how to structure polling places during a pandemic. The deadly risk
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associated with voting in person led to an unprecedented spike in absentee voting, which strained the MyVote and WisVote systems to the breaking point, spawned massive problems with ballot delivery, and placed huge numbers of voters at risk of returning their ballots too late to be counted despite having complied with the law. Absentee voting during the pandemic also put immunocompromised voters who tried to comply with the statutory witness signature requirement in an impossible position. These breakdowns in absentee voting sent many voters back to polling places to cast ballots, thus exacerbating the challenges associated with maintaining social distancing in a condensed number of polling places.
There are, however, at least two meaningful differences between the April and November elections. The first is the scale of the challenge. Based on historic participation rates, turnout may be twice as high in November as it was in April. That, coupled with the intensified scrutiny and potential for disputes inherent in a closely contested presidential race, will multiply the stresses to the system. The second difference offers some basis for optimism: in contrast to the extremely compressed litigation timeline in the lead-up to the April election, the Court now has an opportunity to craft relief that can appropriately address the risk to voters’ rights on a timeline that can be effectively implemented across the state.
The Intervenor-Defendants nonetheless contend that the Court is powerless to make things better in November, based largely on an expansive reading of Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), which they contend simply forecloses the claims in this case. But their reliance on Luft fails for three primary reasons. First, the talismanic citation of the Seventh Circuit’s observation that Wisconsin law makes it “easy to vote” under normal conditions, id. at 675, does not apply here. Plaintiffs do not contend that the state’s election system, under normal circumstances, violates their rights. They do, however, assert that various elements of that
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system will violate their rights when administered under the extraordinary conditions of the COVID-19 pandemic. Second, Intervenor-Defendants seriously distort Luft, insisting that it forecloses voting rights claims except where every potential pathway to voting is closed. That holding, inconsistent with longstanding Seventh Circuit and Supreme Court caselaw, is not to be found in Luft. To the contrary, Luft emphasized the importance of ensuring that voters can cast ballots with “reasonable efforts.” Third, even if this unfounded reading of Luft were correct, Plaintiffs would succeed here. Instead of contending that one policy, or even one method of voting, places an undue burden on voting rights, Plaintiffs have identified system-wide, mutually-reinforcing breakdowns in the state’s ability to operate a major election in the face of the COVID-19 crisis. This is precisely the kind of challenge that even the Legislature’s extreme reading of Luft would permit. Intervenor-Defendants’ numerous other legal defenses relating to the merits of Plaintiffs’ claims or various putative justiciability concerns also fail, for reasons detailed below.
Finally, in response to the Court’s query during the June 29, 2020 conference, this brief sets out in detail the legal and practical bases for maintaining these claims against the members of the Wisconsin Election Commission (“WEC”). The WEC occupies a unique role in the state’s election infrastructure, charged by statute with “the responsibility for the administration” of Wisconsin election law (other than campaign finance laws). Wis. Stat. § 5.05(1). This responsibility entails broad authority to ensure that all actors in Wisconsin election administration comply with relevant election laws—including the Voting Rights Act, Americans with Disabilities Act, and U.S. Constitution. “Pursuant to its general authority, the commission may direct municipal clerks to implement a court order pertaining to the state’s election procedures and federal law.” Frank v. Walker, 196 F. Supp. 3d 893, 918 (E.D. Wis. 2016). This
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broad responsibility is reflected in the WEC’s longstanding practices, as well as the measures it has stated it will take in preparation for the November election. Moreover, beyond this broad general responsibility to administer Wisconsin’s election laws, the Commission has specific statutory authority related to each of the forms of relief requested in this case, as detailed below.
The risks facing voters this November are profound, but the Wisconsin election system’s failure is not inevitable. There are concrete measures that the WEC can take now, and statutes whose application can be enjoined for the November election, that will remedy these foreseeable harms. Intervenor-Defendants have failed to refute the bases for granting preliminary injunctive relief. This Court should therefore take action now to ensure that plaintiffs and all Wisconsin voters can participate in November without choosing between their safety and their right to vote.
STANDARDS OF REVIEW To succeed on their motion for a preliminary injunction, Plaintiffs must establish “some likelihood of success on the merits,” “no adequate remedy at law,” and “irreparable harm if [the] preliminary injunction is denied.” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012). “[T]he more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009). As the party moving to dismiss under Rule 12(b)(6), Intervenors have “the burden to prove that the complaint is legally insufficient.” Brost v. Capstan Corp., 19-CV-535-WMC, 2020 WL 2560965, at *2 (W.D. Wis. May 20, 2020) (citing Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990)). To survive a motion to dismiss, Plaintiffs’ complaint need only “allege sufficient facts that make the plaintiff[s’] claim plausible,” that is, that there is “more than a sheer possibility” that the requested relief is warranted. Sevugan v. Direct Energy Services, LLC, 931 F.3d 610, 614 (7th Cir. 2019). At this stage, courts “accept as true all factual allegations in
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the amended complaint and draw all permissible inferences in [Plaintiffs’] favor.” Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015); Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017) (applying the same standard to a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)). “[D]ismissal is warranted only if no recourse could be granted under any set of facts consistent with the allegations.” Tzakis v. Wright Med. Tech., Inc., 19-CV-545-WMC, 2020 WL 955016, at *2 (W.D. Wis. Feb. 27, 2020) (emphasis added) (citation omitted).1
ARGUMENT I. Plaintiffs Are Likely to Prevail on the Merits of Their Claims.
Plaintiffs Are Likely to Succeed on the Merits of Their Claim Under Section 11(b) of the Voting Rights Act of 1965. The Legislature does not deny that Wisconsin voters were forced to choose between their safety and their vote in the April election. Nor could it. The Chair of the Elections Commission has already conceded as much. See Jacobs Dep. 107:7-9, July 17, 2020, ECF No. 475 (“Jacobs Dep.”); Statement of Add’l Proposed Facts in Supp. of Pls.’ Mot. for a Prelim. Inj., July 31, 2020 (“SOAPF”) ¶ 23 (admitting voters risked their lives to vote); Jacobs Dep. 100:12-20; SOAPF ¶ 24 (admitting “I have. . . seen the lines . . . that is an intimidating situation, there is no question about it.”). Moreover, Dr. Fowler’s unrebutted2 expert report demonstrates the magnitude of the intimidation: tens of thousands of Wisconsinites were deterred and ultimately disenfranchised.
1 Courts may consider documents referenced in the complaint without converting the motion into one for summary judgment. See Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009). 2 Defendants’ only apparent response to Dr. Fowler’s report in their nearly two hundred pages of briefing is the repeated assertion that it is “conjectural.” See Joint Resp. of IntervenorDefendants to Swenson Proposed Findings of Fact, ECF No. 451, at ¶ 138. But without an explanation of what exactly is wrong with Dr. Fowler’s statistical methodology, the mere assertion his statistical analysis is supposedly conjectural is not enough to make it so.
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See Statement of Proposed Facts in Supp. Of Pls.’ Mot. for a Prelim. Inj., Case No. 20-cv-459wmc (hereinafter “Swenson”), ECF No. 42 (“Swenson SOPF”), ¶ 138; Expert Report of Anthony Fowler, Swenson ECF No. 46 (“Fowler Report”), at 8-10.
Nor does the Legislature have a persuasive contention that the intimidation will subside by the November election. As Plaintiffs’ expert Dr. Patrick Remington, a veteran epidemiologist and Director of the Preventative Medicine Residence Program at the University of WisconsinMadison explained, Wisconsin has seen an “acceleration of community transmission” of COVID-19 since June, increasing the risk of transmission at in-person voting locations. See Dep. of Patrick Remington, July 22, 2020, ECF No. 469 (“Remington Dep.”) 35:11-13; SOAPF ¶ 8. Despite this, the Wisconsin Elections Commission has not consulted with medical experts or anyone else to assess the vulnerability of immunocompromised voters in the November election. See Dep. of Meagan Wolfe as 30(b)(6) Rep. of Wisconsin Elections Commission, July 3, 2020, ECF No. 247 (“WEC I Dep.”) 32:2-6; SOAPF ¶ 84. Nor has the Elections Commission worked on any plans to offer altered witness requirement guidance for voters who are high-risk for COVID-19, or even for those who suffer from COVID-19 or COVID-related illnesses. Spindell Dep. 86:15-87:9, July 7, 2020, ECF No. 413 (“Spindell Dep.”); Dep. of Meagan Wolfe as 30(b)(6) Rep. of Wisconsin Elections Commission, July 16, 2020, ECF No. 438 (“WEC II Dep.”) 106:21-106:23; SOAPF ¶ 85.
Because the fact of past and future intimidation is inarguable (particularly for the immunocompromised), the Legislature focuses its opposition on arguing that Section 11(b) has a specific intent requirement and that the Commission should not be held legally responsible for fear of COVID. Wisc. Leg. and Leg. Defs.’ Omnibus Br. in Opp. to Pls. Mot. for Prelim. Inj, and in Support of their Mots. to Dismiss, ECF No. 454 (“Leg. Br.”) 94-96, 97-100. Both contentions
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are wrong. Section 11(b) by its plain terms contains no specific intent requirement, and reading such a requirement into the statute would, among other things, improperly render Section 11(b)’s ban on voter intimidation a largely meaningless exercise given that Section 131(b) of the Civil Rights Act of 1957already banned intentional voter intimidation. And there is nothing wrong with holding defendants responsible for their conduct causing voter intimidation—administering an elections system in a manner that exposes voters to unnecessary risks and intimidation to cast a ballot. That is exactly what Section 11(b) was meant to preclude. The motion to dismiss should be denied, and a preliminary injunction should be granted.
Section 11(b) does not contain an intent element. The Legislature’s contention that Section 11(b) contains an intent element is contrary to the text of the statute, its surrounding context, and the statute’s legislative history. Plaintiffs start with the text. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 528 (2007) (declining to adopt interpretation of statute “foreclose[d]” by the statutory text). The statute renders liable anyone who “shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.” 52 U.S.C. § 10307(b). Here, the “plain language” of Section 11(b) “does not require a particular mens rea.” Arizona Democratic Party v. Arizona Republican Party, No. 16-3752, 2016 WL 8669978, at *4 n.3 (D. Ariz. 2016). That is because the statute makes “no reference” to the Legislature’s proposed “specific intent to intimidate” requirement. LULAC-Richmond Regional Council 4614 v. Public Interest Legal Found., No. 18-423, 2018 WL 3848404, at *3 (E.D. Va. 2018). The Legislature counters that the statute does include an intent requirement because it proscribes intimidation “for voting or attempting to vote.” Leg. Br. 98. Not so. “For voting” in the context here simply means “with respect to voting”—the statute prohibits intimidation with respect to voting or attempts to vote. That is what the word “for” means in this context. See also,
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e.g., Random House Webster’s Dictionary 257 (2d ed 1996) (offering “with respect to” as a definition of “for”). The Legislature does not say what it thinks “for voting” means—it simply asserts that the term creates a mens rea requirement. The only way to read that phrase to create an intent requirement is to interpret Section 11(b) as a retaliation provision, i.e., that it only proscribes intimidating persons for having voted or tried to vote. But that obviously cannot be right: everyone agrees that the statute prohibits intimidation against people voting in the first place—i.e. “with respect to voting”—rather than retaliation after the fact “for having voted.”
When Congress wanted to impose a mens rea requirement in the Voting Rights Act, moreover, it did so expressly, including in the very next section of that Act. Section 11(c) prohibits the provision of false information “for the purpose of establishing [ ] eligibility to register or vote,” 52 U.S.C. § 10307(c) (emphasis added), and Congress would have used this readily available formulation if had intended an intent element in Section 11(b). See also 52 U.S.C. § 10307(a) (prohibiting persons acting under color of state law from “willfully fail[ing] or refus[ing]” to tabulate, count, or report lawful votes) (emphasis added).
The Legislature, meanwhile, has no answer for the fact that Section 131(b) of the Civil Rights Act of 1957 had already made intentional voter intimidation unlawful by using exactly the mens rea language that Section 11(b) lacks. See 52 U.S.C. § 10101(b) (formerly 42 U.S.C. § 1971(b)) (preventing intimidation “for the purpose of interfering with the right of such other person to vote” (emphasis added)); see, e.g., United States v. McLeod, 385 F.2d 734, 740 (5th Cir. 1967); United States v. Beaty, 288 F.2d 653, 655-56 (6th Cir. 1961); United States v. Bd. of Edu. of Greene Cty., Miss., 332 F.2d 40, 46 (5th Cir. 1964). Reading Section 11(b) of the 1965 to parrot that already-existing prohibition would violate the principle that statutory enactments should not be interpreted to be “a largely meaningless exercise.” Rumsfeld v. Forum for Acad.
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and Inst. Rights, Inc., 547 U.S. 47, 58 (2006); see also Babbitt v. Sweet Home Chapter of Cmtys., 515 U.S. 687, 701 (1995) (courts presume Congress intends to have “real and substantial effect” in subsequent statutory enactments) (citation omitted). The Legislature has no explanation for why Congress would have enacted a prohibition against intentional voter intimidation that already existed, or why it would have done so without using the readily available “for the purpose of” language that would have made its intent clear. See LULAC, 2018 WL 3848404, *4 (“The text of § 11(b), unlike § 131(b), plainly omits ‘for the purpose of,’ suggesting § 11(b)’s deliberately unqualified reach.”). This Court should not read Section 11(b) as a meaningless enactment that served no purpose.
Legislative history confirms that the difference in language between Section 11(b) and Section 131(b) was intentional, and that the whole point of the former’s enactment was to create a right against even unintentional acts that result in voter intimidation. The conference report on the Voting Rights Act indicates that Congress specifically intended to excise Section 131(b)’s specific intent requirement in Section 11(b). See Second Goodman Decl., Ex. 14 (H. Rpt. 89439, at 30 (1965)) (explaining that under Section 11(b) “[t]he prohibited acts of intimidation need not be racially motivated; indeed, unlike 42 U.S.C. 1971(b) [aka Section 131(b)] (which requires proof of a ‘purpose‘ to interfere with the right to vote) no subjective purpose or intent need be shown”); SOAPF ¶ 56.
The Legislature’s cases to the contrary do not provide a persuasive justification for reading the mens rea requirement that Congress specifically intended to excise back into Section 11(b). Only three of the cases that the Legislature cites—Parsons v. Alcorn, 157 F. Supp. 3d 479 (E.D. Va. 2016); Olagues v. Russoniello, 770 F.2d 791, 804 (9th Cir. 1985); Willingham v. County of Albany, 593 F. Supp. 2d 446, 462 (N.D.N.Y. 2006)—even examine the question of
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Section 11(b)’s mens rea requirement at all. Two of those cases—Willingham and Parsons—
simply cite Olagues for the proposition that Section 11(b) has a specific intent requirement. See
Willingham, 593 F. Supp. 2d at 462; Parsons, 157 F. Supp. 3d at 498. And Olagues itself does
not independently analyze whether Section 11(b) has an intent element; rather, Olagues cites for
that proposition the Fifth Circuit’s opinion in United States v. McLeod. See Olagues, 770 F.2d at
804. But McLeod was not a Section 11(b) case at all—it was a Section 131(b) case. See McLeod,
385 F.2d at 739-41. Obviously, then, Olagues carries no weight; it “is . . . unpersuasive” to cite a
Section 131(b) case for the proposition that Section 11(b) has a mens rea requirement when (i)
the provisions have crucially different language and (ii) the latter was enacted expressly to
expand the former to non-intentional conduct. LULAC, 2018 WL 3848404, at *4.3
It is true, as the Legislature says, that the Voting Rights Act is not a “general mandate by
which federal courts may correct election deficiencies of any sort.” Powell v. Power, 436 F.2d
84, 87 (2d Cir. 1970). But the Voting Rights Act does require courts to correct election
3 The language that the Legislature plucks out of Fenton v. Dudley—that Section 11(b) is a “sweeping prohibition of official acts of harassment,” 761 F.3d 770, 777 (7th Cir. 2014) (emphasis added); Leg. Br. 107—was plainly never meant to be a comprehensive statement of Section 11(b)’s prohibitions for the simple reason that the plain text of the statute applies to unofficial actions as well. See 52 U.S.C. § 10307(b) (“No person, whether acting under color of law or otherwise, shall intimidate . . . .” (emphasis added)). Bershatsky v. Levin examines Section 11(b)’s definitions of “intimidate” and “coerce” (and not the mental state one needs to intimidate or coerce), and concludes that the Voting Rights Act probably should not be interpreted to render illegal something encouraged elsewhere as a core attribute of citizenship in the United States Code. See 99 F.3d 555, 557 (2d Cir. 1996). And the quoted language in Democratic Nat’l Comm. v. Republican Nat’l Comm. describes no statute, but rather the particular consent decree entered in that case. 671 F. Supp. 2d 575, 602 (D.N.J. 2009) (no “change in law that would make legal the activities the Decree is meant to prevent—attempts to prevent qualified voters from casting their ballots through intimidation . . .” (emphasis added)). Its sole relevance here is as a warning that the Republican National Committee’s concerns about electoral integrity, see Intervenor-Defs. Consolidated Opp. to Pls. Mot. for Prelim. Inj., ECF No. 455 ("RNC Br."), at 3-4, have a nearly four-decade history of serving as a smokescreen in support of efforts to drive down turnout among voters of color, see, e.g., 671 F. Supp. 2d at 58084.
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deficiencies expressly prohibited by the Act. Section 11(b) prohibits conduct that results in voter intimidation regardless of intent. And Plaintiffs’ case challenges an electoral system that the Chair of the WEC concedes (1) intimidated voters in the last election by forcing them to pick between democracy and disease, and (2) may not produce a free and fair election in November. Dep. of Ann Jacobs, July 17, 2020, ECF No. 475 (“Jacobs Dep.”) 100:12-20, 110:17, 99:8-17, 103:4-11; SOAPF ¶ 52. Such a system—in which the cost of electoral participation is risking one’s life, Jacobs Dep. 107:99—is the kind of vote-deterring intimidation that the Section 11(b) was meant to prohibit. This Court must give effect to that provision and ensure that voters do not face the same sort of intimidation in November.
Section 11(b) applies here because defendants are administering an elections system that intimidates voters and that fails to protect voters from intimidating threats. The Legislature next argues that Section 11(b) violations cannot “be premised on a mere failure . . . to mollify any exterior ‘threat,’” Leg. Br. 99, particularly when that threat is supposedly prompted by a virus and not a person, Leg. Br. 96, 112. But that argument is irrelevant and, in any case, wrong. The Legislature’s argument rests on the flawed premise that the Section 11(b) violation here is simply the failure to protect against the virus.4 What is intimidating voters is defendants’ conduct itself. For example, as the Chair of the Election Commission admitted, a polling place without a sufficient number of poll workers, that is not properly sanitized, and that is populated by people who are not practicing social distancing or wearing masks is more intimidating to
4 The Legislature’s attempted distinction between human intimidation and non-human voter intimidation, see Leg. Br. 108, should be rejected because would quickly produce absurd results. If it were correct, a government could, for example, locate polling places in places transparently calculated to intimidate and deter voting—such as for example a morgue or a nuclear power plant—simply because the fear is not of human action.
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voters than where safe practices are followed. See Jacobs Dep. 100:12-102:17; see also id. at 112:17-113:2 (noting importance that voters know in advance polling places are safe); WEC II Dep. 70:18-70:22 (admitting that WEC has not sought to determine whether voting conditions in April deterred participation among voters); SOAPF ¶ 53. Section 11(b) prohibits defendants from administering an elections system that exposes voters to an unnecessarily risky and intimidating in-person voting process coupled with an ineffective absentee voting procedure that frightens voters into believing that they need to vote in-person or not vote at all. See Br. in Supp. of Pls.’ Mot. for a Prelim. Inj., Swenson ECF No. 41 (“Swenson PI Br.”) 28-29 (explaining how defendants’ administration of Wisconsin’s electoral system during the pandemic deters electoral participation); Jacobs Dep. 108:7-109:8; SOAPF ¶ 54 (conceding that voter fear that absentee ballots will not be properly counted given past errors will lead some voters to feel as if they need to vote in-person instead of absentee).
The Legislature is in any event wrong that Section 11(b) does not reach failures to protect against harm. See Swenson PI Br. 26-27 (explaining how voter intimidation laws have been enforced against jurisdictions that failed to protect voters from known threats). The Legislature’s main response is to cite factual differences between this case and the ones from the civil rights era that plaintiffs rely on, see Leg. Br. 99, but none of these distinctions rebuts the idea of an obligation to protect.
Take United States v. Clark. Yes, the Legislature is right that the Clark court did not enter an injunction against Selma in light of Selma’s decision to appoint a new Director of Public Safety and attempt to “perform its duties and responsibilities under the law.” 249 F. Supp. 720, 730 (S.D. Ala. 1965); Leg. Br. 99. But in denying injunctive relief, the Clark court did not decide that Selma’s past failures to protect voters were somehow lawful. Just the opposite, in fact. The
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Clark court made clear that an injunction loomed should the City fail to protect all citizens attempting to vote:
[T]he replacement of old officials will not, in and of itself, justify the denial of injunctive relief . . . however, because of the circumstances of this case, particularly the apparent conscientious efforts on the part of the city officials . . . to deal with their racial matters within the framework of the law . . . no injunction will be issued at this time. . . . In proceeding in this manner, this Court is assuming that the City of Selma . . . . will not fail to provide police protection to all persons attempting peaceably to exercise the right to vote . . . . This Court will, of course, reserve jurisdiction of this matter . . . . 249 F. Supp. 720, 730 (emphasis added). If a failure to protect voters against an external threat did not constitute unlawful intimidation, then this discussion in Clark would be meaningless. The Legislature’s attempt to distinguish Katzenbach v. Original Knights of Ku Klux Klan, 250 F. Supp. 330 (E.D. La. 1965), fares no better. Yes, the Klan engaged in horrific acts of intimidation in that case. See Leg. Br. 99-100. And yes, the holding of Katzenbach was about the defendant in that case—the Klan. Id. But the Legislature focus on the Katzenbach’s disposition wrongly elides Katzenbach’s commentary about its sister case, Hicks. See Second Goodman Decl., Ex. 15 (Hicks v. Knight, No. 15,727, 10 Race Rel. L. Rep. 1504 (E.D. La. 1965)). In particular, the Klan in Katzenbach not only intimidated voters directly but also attempted to “intimidate public officials” sometimes “by threat of violence, sometimes by character assassination.” 250 F. Supp. at 342. The result was that the Klan’s actions “unquestionably intimidated public officials . . . and later hindered effective police action against Klan violence.” Id at 340. The Klan’s conduct rendered local voters “unable to obtain from police officials adequate protection from the Klan,” so they sued and won an order enjoining the City from “failing to use all reasonable means to protect the . . . plaintiffs and others similarly situated from . . . intimidation.” Id. at 342; see also Second Goodman Decl., Ex. 15 (Hicks v.
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Knight, No. 15,727, 10 Race Rel. L. Rep. 1505 (E.D. La. 1965)) at 2 (injunction text).5 This case is in the same posture—the government has the responsibility under Section 11(b) to protect voters against outside threats, whether they be the Klan or a deadly virus. If defendants fail to protect voters in the November election, they would still remain properly liable for that failure under Section 11(b).
Plaintiffs Are Likely to Prevail on the Merits of Their ADA Claims. Plaintiffs challenge two aspects of Wisconsin’s voting regime that, in the context of the COVID-19 pandemic, violate Title II of the ADA by denying Wisconsin voters with disabilities full and equal access to government programs or services: (i) Wisconsin’s enforcement of the witness-verification requirement as applied to immunocompromised voters or voters currently infected with COVID-19; and (ii) Defendants’ failure to provide an accessible online ballot to voters with vision and other disabilities that prevent them from reading or using a pen and paper (“print disabilities”). See Swenson PI Br. 30-36. The Legislature mounts an array of attacks on these modest ADA claims, but none is persuasive—indeed, each rests on fundamental legal error. 1. The witness requirement. The Legislature first contends that Plaintiffs have not carried their burden to show that substituting another anti-fraud tool for the witness-verification requirement for these voters is a reasonable modification “as opposed to a fundamental alteration
5 See also Second Goodman Decl., Ex. 16, Hearing on the U.S. Commissioner System Before the Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 189th Cong. 1300-1301 (1965) (available at https://bit.ly/2UZGsj6) (describing DOJ consent judgment in United States v. Mathews that enjoined defendants “from refusing reasonable police protection to any person in need thereof” when exercising the right to vote or encouraging others to exercise the right to vote). SOAPF ¶ 57.
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of Wisconsin’s absentee ballot-regime.”6 Leg. Br. 87. This argument seriously misunderstands the relevant burdens of proof and persuasion under Title II. Consistent with its sweeping antidiscrimination mandate, the ADA imposes only a minimal burden on Plaintiffs to show that the modification they seek “is reasonable on its face.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002). This burden “is not a heavy one,” Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003) (citation omitted), and requires only a “prima facie showing,” Oconomowoc, 300 F.3d at 783; see also Henrietta D., 331 F.3d at 280. The Legislature cannot seriously argue that Plaintiffs have failed to carry this burden.
Once a plaintiff makes this prima facie showing, it is the defendant’s burden to demonstrate “unreasonableness or undue hardship in the particular circumstances.” Oconomowoc, 300 F.3d at 783. It is thus the Legislature’s burden to prove that replacing the witness-verification requirement with another anti-fraud tool “would fundamentally alter the nature” of voting by mail in Wisconsin. 28 C.F.R. § 35.130(7)(i) (showing must be made by “the public entity”); see NFIB v. Lamone, 813 F.3d 494, 508 (4th Cir. 2016); Swenson PI Br. 31.
The Legislature has not come close to making that showing, for two independent reasons. First, proving fundamental alteration requires more than attorney argument—it requires evidence, but the Legislature has marshaled none. As the Sixth Circuit has explained, “[i]t is not enough for a defendant to merely allege plaintiffs’ proposed remedy undermines” its interests in preventing fraud. Hindel v. Husted, 875 F.3d 344, 348 (6th Cir. 2017). “In order to prevail on his affirmative defense, defendant has the burden of production and persuasion to prove that plaintiffs’ proposed [modification] . . . would fundamentally alter [the State’s] election system.”
6 The Legislature’s brief confuses the standards under Title I of the ADA with those applicable under Title II. Title I of the ADA requires covered entities to make reasonable accommodations. Title II, by contrast, requires government entities to make reasonable modifications.
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Id. The Legislature cites no record evidence demonstrating that allowing voters with disabilities who are reasonably unable to secure a witness to utilize another anti-fraud tool would somehow fundamentally alter the nature of voting by mail. In fact, the WEC and the RNC acknowledge that they have no evidence of voter fraud related to absentee ballots, and the Legislature is unable to provide any evidence of absentee voter fraud for voters invoking the “indefinitely confined” exemption. Second Goodman Decl., Ex. 30 (Objections and Responses of Defendants Dean Knudson, Julie M. Glancey, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann and Meagan Wolfe to the Swenson Plaintiffs’ First Set of Requests for Admissions (July 27, 2020)) (“WEC RFA Resp.”) at No. 32; Second Goodman Decl., Ex. 31 (Republican Nat’l Comm. and Republican Party of Wis. Objections and Responses to Swenson Plaintiffs’ Requests for Admission (July 20, 2020)) (“RNC RFA Resp.”) at No. 2; SOAPF ¶ 76.
Second, the Legislature’s fundamental alteration argument is unpersuasive, even on its own terms. Citing the Seventh Circuit’s order staying relief this Court ordered in April, the Legislature reasons that Plaintiffs’ requested relief must constitute a fundamental alteration because the State has a “substantial interest in combatting voter fraud.” Leg. Br. 87 (quoting Democratic Nat’l Comm. v. Bostelmann, No. 20-1538, 2020 WL 3619499, at *2 (7th Cir. Apr. 3, 2020)). Setting aside the fact that the Legislature mischaracterizes the Seventh Circuit’s opinion,7 the conclusion does not follow from the premise: the fact that the witness-verification requirement furthers the state’s interest in combatting voter fraud does not mean that replacing
7 The Seventh Circuit was “concerned with the overbreadth of the district court’s order, which categorically eliminate[d] the witness requirement applicable to absentee ballots.” DNC, 2020 WL 3619499, at *2. That concern is not present here because Plaintiffs seek relief on behalf of the small class of voters with disabilities who cannot secure a witness with reasonable effort.
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the requirement with another anti-fraud tool for a limited class of voters would fundamentally alter the nature of voting by mail.
It does not. The fundamental nature of voting by mail is casting one’s ballot remotely, which is not affected by the presence or absence of any particular anti-fraud tool. Cf. PGA Tour, Inc. v. Martin, 532 U.S. 661, 683-85 (2001) (holding under Title III that requiring the PGA Tour to allow a professional golfer to use a golf cart was not a fundamental alteration because “the use of carts is not itself inconsistent with the fundamental character of the game of golf,” i.e., “shotmaking”). That much is evident from the majority of states that currently offer vote-by-mail options without witness verification—no one could reasonably contend that voting by mail in those states is fundamentally different in nature than voting by mail in Wisconsin.8
The Legislature next contends that reasonable modifications to the witness-verification rule are not required because voters with disabilities do not have to vote by mail. Leg. Br. 88. This argument, too, fundamentally misunderstands the ADA. As explained below, the Legislature mischaracterizes the Luft analysis, but such analysis in any event has no relevance to the ADA. It is well-settled that the relevant government service or program under the ADA is narrow—here, it is voting by mail. See, e.g., Lamone, 813 F.3d at 503-05 (rejecting argument “that even if absentee voting is not fully accessible, the full accessibility of Maryland’s in-person
8 The Legislature’s argument is further undermined by the fact that some of the proposed “solutions” to the witness-verification requirement during COVID-19 that the Legislature touts are especially poor means of deterring fraud. For instance, the Legislature has made no showing that allowing witnesses without any specialized training or pre-existing knowledge of the voter (e.g., a food delivery person), as WEC now suggests, see Goodman Decl., Ex. 31, Swenson ECF No. 43-31 (Wis. Elections Comm’n, Updated Absentee Witness Signature Requirement Guidance - COVID-19), is a better means of policing fraud than a certification under pain of perjury. Nor can the Legislature possibly explain how placing a ballot “outside [one’s] door” for pick up by the witness, and then on the voter’s “door step” after it is signed, is more secure than a voter self-certification.
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polling places provides disabled voters with meaningful access to voting”); Drenth v. Boockvar, 2020 WL 2745729, at *5 (M.D. Pa. May 27, 2020) (relevant government program was “ability to vote privately and independently without being physically present at a polling location”). It is thus irrelevant whether voters with disabilities could vote some other way. What matters is that they have been denied their rights to participate fully and equally in Wisconsin’s vote-by-mail program. Lamone, 813 F.3d at 503-07; Drenth, 2020 WL 2745729, at *4-5; cf. Disabled in Action v. Bd. of Elections in City of N.Y., 752 F.3d 189, 199 (2d Cir. 2014) (assuming that the benefit is “merely the opportunity to vote at some time and in some way would render meaningless the mandate that public entities may not afford persons with disabilities services that are not equal to that afforded to others” (internal punctuation and citation omitted)).
Similarly misguided is the Legislature’s suggestion that Plaintiffs were required to prove that the witness-verification rule “is likely to deny any disabled voters the right to vote.” Leg. Br. 88-89. That is not the standard. An ADA plaintiff “need not . . . prove that they have been disenfranchised or otherwise completely prevented from enjoying a service, program, or activity to establish discrimination under . . . Title II.” Disabled in Action, 752 F.3d at 198 (quotations omitted); Lamone, 813 F.3d at 503 (“Title II does not only prohibit ‘exclusion from participation’ in a public program[.]”). It is enough that individuals with disabilities be denied meaningful access to the public service—here, meaningful access to voting by mail. Lacy v. Cook Cty., 897 F.3d 847, 854 (7th Cir. 2018); see Lamone, 813 F.3d at 506-07. Plaintiff Swenson was not alone in her difficulties securing a witness for April, see DNC Br. 20-21, and given that the pandemic is likely to be worse in November, not better, it is likely that thousands of Wisconsin voters will find themselves in the same situation. See id. at 20 (noting that “[o]ver
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600,000 Wisconsinites live alone and even more live with an individual who is unqualified to be a witness”).
Finally, the Legislature makes a half-hearted waiver argument, asserting that Plaintiffs failed to argue causation. Leg. Br. 89. But this element is plainly satisfied. If not for their immunodeficiencies, these Wisconsinites would safely be able to secure an in-person witness and vote by mail. See, e.g., Swenson Decl. ¶¶ 11-15; Swenson PI Br. 36 n.164 (standard is “but for” causation).
2. Accessible online ballots. The Legislature does not dispute that voters with print disabilities are denied equal access to Wisconsin’s vote-by-mail program because the WEC does not provide an accessible online ballot. The Legislature also does not dispute that these tools are reasonable, feasible, and would not fundamentally alter the nature of voting by mail. Instead, the Legislature offers two legal arguments that are clearly in error.
First, buried deep in its brief, the Legislature asserts that Plaintiffs lack standing. Leg. Br. 105-08. This contention is easily rejected. DRW has both associational and organizational standing.
Associational standing. Plaintiff DRW is Wisconsin’s designated protection and advocacy agency for individuals with disabilities and is charged by statute to “pursue legal … remedies” for Wisconsinites with disabilities. See Supp. Decl. of Kit Kerschensteiner in Supp. of Pls.’ Mot. for Prelim. Inj., July 31, 2020 (“Supp. DRW Decl.”) ¶¶ 6-8; SOAPF ¶ 70.9 “[C]ourts
9 See also DRW v. State of Wis. Dep’t of Pub. Instruction, 463 F.3d 719, 722-23 (7th Cir. 2006) (explaining that DRW is a P&A organization under Wisconsin statutes and pursuant to the Developmental Disabilities and Bill of Rights Act, the Protection and Advocacy for Mentally Ill Individuals Act of 1986, and the Protection and Advocacy of Individual Rights Act, “known collectively as the … federal P&A statutes”); Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Correction, 642 F. Supp. 2d 872, 876 (S.D. Ind. 2009) [hereinafter IPAS] (noting
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around the country have rejected similar [associational] standing challenges to protection and advocacy services,” IPAS, 642 F. Supp. 2d at 877 (collecting cases), so long as they sufficiently detail how at least one of their constituents is adversely affected by the challenged policy, see DRW v. Walworth Cty. Bd. of Supers., 522 F.3d 796 (7th Cir. 2008).10 DRW has more than done so, illustrating how its constituents have been and will be denied equal access to Wisconsin’s vote-by-mail program. See Decl. of Kit Kerschensteiner in Supp. of Pls.’ Mot. for Prelim. Inj. ¶ 17, Swenson ECF No. 51 (“DRW PI Decl.”); SOAPF ¶ 71 (blind voter required assistance from family member with different political views); see also Supp. DRW Decl. ¶ 16; SOAPF ¶ 71. The Legislature’s “overly formalistic” argument that injuries to DRW’s “constituents” are insufficient because they are not “direct member[s]” has been roundly rejected, see, e.g., Ore. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110-13 (9th Cir. 2003); see also DRW, 522 F.3d at 803 (acknowledging that disabled students who have suffered an injury can be “represented by DRW”), Supp. DRW Decl. ¶¶ 7 - 8, and any suggestion that DRW’s constituents are not harmed because they can vote in person simply misunderstands the ADA.
As to the remaining two elements in the associational standing inquiry, not even the Legislature contests that the interests DRW seeks to protect are germane to DRW’s statutory mission, and the Seventh Circuit (along with numerous other courts) has already recognized “that congress eliminated the third requirement”—viz., that the claims do not require the participation of individual members—“in enacting the Developmental Disabilities Act.” DRW, 522 F.3d 796, 802; see also, e.g., Mink, 322 F.3d at 1113 (“Congress abrogated the third prong of the Hunt
that P&A organizations “are responsible for enforcing federal and state law on behalf of individuals with disabilities who otherwise would face perhaps insurmountable obstacles to seeing their rights enforced and their interests protected”). 10 Notably, however, DRW is not required to identify its constituents by name to establish standing. Id. at 802.
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test” for “advocacy organizations” like DRW); IPAS, 642 F. Supp. 2d at 878 (same). Even if the third requirement did apply, however, it would be easily satisfied. Participation of DRW’s constituents is unnecessary because the only facts that would hypothetically require individual participation are undisputed: the individuals DRW represents (i) have qualifying disabilities; and (ii) they all seek the same remedy—an accessible ballot—that the Legislature does not dispute is a reasonable and feasible modification, within the WEC’s authority to implement.
Organizational standing. There is no need to consider organizational standing because DRW clearly has associational standing. But even if the Court proceeds further, there is no question that DRW has organizational standing, too. Indeed, the Legislature does not even contest DRW’s organizational standing. See Cook Cty. v. Wolf, 962 F.3d 208, 219 (7th Cir. 2020); Common Cause Ind. v. Lawson, 937 F.3d 944, 949-53 (7th Cir. 2019). DRW respectfully directs the Court to paragraphs 17 and 22-26 of Ms. Kerschensteiner’s first declaration, Swenson ECF No. 51, and paragraphs 19-23 of her second declaration, filed July 31, 2020, which set out in detail how DRW has been forced to divert resources to aid voters with print disabilities.
Second, the Legislature again asserts that voting in person is a reasonable modification for voters with print disabilities, Leg. Br. 90, but as explained above, it categorically is not. Supra 18-22. The relevant government service here is voting by mail, and a “modification” that requires an individual with a disability to utilize a different service altogether (voting in person) is not a modification to the service from which an individual has been denied meaningful access (voting by mail) because it does not allow the individual to participate in that service. The Legislature’s argument is thus discriminatory on its face. In the Legislature’s view, individuals with disabilities should be satisfied with voting in person, while the general public is able to choose between voting in person and by mail. The ADA was enacted to prohibit just such
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discriminatory treatment, as myriad courts have recognized, including Lamone and Drenth in the vote-by-mail context.
Plaintiffs Are Likely to Prevail on Their Claim That Defendants’ Election Administration and Various Provisions of Wisconsin Election Law Unduly Burden Their Right to Vote Under Anderson-Burdick.
Luft does not foreclose, and if anything reinforces, Plaintiffs’ Anderson-Burdick claims. The Legislature devotes nearly twenty pages to the Seventh Circuit’s decision in Luft and treats that case—which has absolutely nothing to do with COVID-19 or any other extraordinary shock to the state’s election system—as somehow dispositive of the Anderson-Burdick analysis in Plaintiffs’ challenge to the administration of Wisconsin elections during a deadly pandemic. Leg. Br. 2-3, 22-41. That is wrong for three reasons. First, Luft addressed the operation of certain of Wisconsin’s voting laws prior to, and unaffected by, COVID-19; the court posited that Wisconsin’s ordinary electoral system “make[s] it easy to vote”—in normal circumstances. Luft, 963 F.3d at 665. That premise carries zero weight here. These circumstances are anything but normal. The November 2020 presidential election will happen in the midst of a global pandemic the likes of which the world has not seen in over a century. Swenson PI Br. 2-3, 20-22. COVID-19, by virtue of making in-person encounters potentially deadly and disease-spreading, has wholly disrupted ordinary voting processes and procedures. Swenson PI Br. 3-19. Plaintiffs’ challenges do not concern the ordinary administration and operation of Wisconsin’s generally functioning system, but its operation in extraordinary COVID-19 conditions—when it will be anything but “easy to vote,” as every expert before this Court has opined.11 See, e.g., Remington Dep. 34:21-35:18; Decl. of
11 Courts around the country have recognized COVID-19’s destructive force on otherwisefunctioning election apparatus—nationwide, election laws and administration that might function
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Dr. Meagan Murray, July 8, 2020, ECF No. 370 (“Murray Decl.”) ¶¶ 47, 66-81; SOAPF ¶¶ 1213.
Plaintiffs’ claims are thus in no sense “foreclose[d]” by Luft. Leg. Br. 25. And the Legislature’s suggestion otherwise is indicative of its failure throughout its brief to confront the profound and cross-cutting ways in which COVID-19 will create unprecedented difficulties for Wisconsin’s administration of the November 2020 election.
Second, Plaintiffs’ suit—which challenges core components of an electoral system that is failing on multiple axes in light of a novel pandemic—is exactly the type of suit that would remain viable even under the Legislature’s overly expansive reading of Luft.
According to the Legislature, Luft’s references to “the system as a whole” mean that for an Anderson-Burdick challenge to be successful, a plaintiff must show that a voter is “unable to use any available voting avenue”—i.e., that every part of the electoral system is failing. Leg. Br. 40. So long as Wisconsin’s mail-in voting options are available, Plaintiffs cannot raise an Anderson-Burdick claim with respect to Wisconsin’s in-person voting regime. Leg. Br. 27 (“Plaintiffs’ criticisms of Wisconsin’s in-person voting regime … are legally irrelevant under Luft because Wisconsinites can fully vindicate their right to vote with reasonable effort through
properly in normal times are now breaking down. See, e.g., League of Women Voters of Virginia v. State Bd. of Elections, 2020 WL 2158249, at *8, 10 (W.D. Va. May 5, 2020) (while in “ordinary times, Virginia’s witness signature requirement may not be a significant burden on the right to vote,” the inquiry is different in an election that “takes place during the worst pandemic this state, country, and planet has seen in over a century”); Thomas v. Andino, 2020 WL 2617329, at *1 (D.S.C. May 25, 2020) (modifying voting requirements based on the “immediate and severe effects” of the Covid-19 pandemic); Acosta v. Pablo Restrepo, 2020 WL 3495777, at *11 (D.R.I. June 25, 2020) (modifying voting requirements based on the “extraordinary circumstances wrought by the ongoing COVID-19 pandemic”); Idaho v. Little, 2020 WL 3490216, at *1 (D. Idaho June 26, 2020) (finding plaintiffs had standing to challenge Idaho’s election procedures based on the “unprecedented COVID-19 pandemic scenario”).
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absentee voting.”). And vice versa: if Wisconsin permits in-person voting, Plaintiffs cannot raise an Anderson-Burdick claim with respect to Wisconsin’s mail-in voting regime. Leg. Br. 31 (“Wisconsin’s generous in-person voting options render Wisconsin’s voting regime entirely constitutional under Luft’s requirement that a plaintiff must demonstrate that Wisconsin’s election system “as a whole”).
That extreme overreading of Luft is wrong, as explained below. But even if it were correct, Plaintiffs here would be entitled to prevail on their claims. The Legislature ignores that COVID-19 will disrupt Wisconsin’s election system as a whole—and that’s the thrust of this suit. It is not one component of the system that’s failing under the weight of a pandemic it was not designed to handle; it’s all of it, both mail-in voting and in-person voting. The Legislature’s suggestion that each avenue is “independently adequate,” Br. 27, 31, is wrong on its face; right now, neither avenue is independently adequate.
For instance, with respect to absentee voting, the Legislature argues that “Wisconsin has a generous, no-excuses-needed mail-in absentee voting regime.” Leg. Br. 27. But the whole point of this challenge is that the normally “generous, no-excuses-needed” mail-in absentee regime will not function as it did prior to the onset of COVID-19. To take just one example, that regime currently allows voters to request ballots so close to the return deadline that it is virtually impossible for them to vote those ballots, in the midst of a natural catastrophe severely affecting municipal and postal resources. See infra 38-39.
On the in-person side of the equation, absent adequate safety precautions, voting in person is now a dangerous act—it is a gathering of people that, while in normal times would be celebrated, is now a grave risk to the health of the voter and her loved ones, or to strangers who happen to find themselves near a voter who is unknowingly infected. It is now dangerous to wait
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in line too close to someone, to work as a poll worker at a voting precinct without adequate PPE and sanitization supplies, and to touch unsanitized pens or screens or other objects that the preceding voter touched. Absent steps by Defendants to ensure that in-person voting is safe, Wisconsin’s in-person voting regime is simply not an independently adequate option. See, e.g., Remington Dep. 34:21-35:3; Jacobs Dep. 100:12-103:11; SOAPF ¶ 51.
Even accepting the Legislature’s extreme reading of Luft, then, Plaintiffs’ suit thus challenges “the system as a whole.” There are two basic options for voters: in-person or absentee. Both regimes will be substantially disrupted by COVID-19. And the systemic breakdowns exacerbate each other: the in-person voting risks compound the likelihood of a deluge of absentee-ballot requests, and resulting breakdowns in the mail-in voting process will result in voters resorting to in-person polling locations.12 Absent judicial intervention, “the system as a whole” will likely suffer from widespread, arbitrary, and dangerous breakdowns in the November election that will ultimately disenfranchise thousands of Wisconsin voters. Indeed, it is the Legislature that refuses to consider whether Wisconsin’s “election code as a whole impose[s] only reasonable burdens.” Luft, 963 F.3d at 671. And it is the Legislature’s analysis that contradicts Luft by looking at each of Wisconsin’s challenged voting laws and practices “in isolation,” without putting them in context—i.e., without accounting for the effect of these interlocking failures amid an ongoing pandemic. See Leg. Br. 27-48.
The sheer number of voters likely to be disenfranchised absent Plaintiff’s requested relief eliminates any doubt. Take just the absentee-ballot receipt deadline: Chair Jacobs testified that
12 Remarkably, the Legislature also criticizes Plaintiffs for bringing too many challenges. Leg. Br. 1. The Legislature’s Goldilocks theory—where a plaintiff must show that every single voting method the State provides is inadequate, but may not challenge each of the components of the system that burdens the right to vote—finds no support in Luft or any other source of authority.
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hundreds of thousands of duly qualified voters—an amount on par with the entire State of Wyoming, and many times the margin of victory in Wisconsin in the last several elections—will likely be disenfranchised in November absent judicial injunction of the ballot-receipt deadline. . Jacobs Dep. 32-35; see also Fowler Report at 8-20; SOAPF ¶ 58. There can be no serious dispute that challenges to voting provisions that would cause disenfranchisement on that massive scale survive Luft. That is the definition of a “system as a whole” breaking down.
Third, the Legislature seriously misreads Luft, which does not set nearly so high a bar. Luft does not support the Legislature’s theory, which narrows Anderson-Burdick to a sliver of challenges (perhaps pandemic-based challenges once a century) where plaintiffs can show (as they can here) that every aspect of the system is failing. Rather, the thrust of Luft is much more modest: courts can’t consider “individual provisions” in a vacuum, because every election law “invariably impose[s] some burden on individual voters.” Luft, 963 F.3d at 671. Accordingly, election laws must be considered in context, and considered against the backdrop of whether voters can vote with “reasonable effort.” Id. at 670. So for instance, in Luft, the court ruled that a restriction on the number of hours per day for in-person early voting should not be assessed “in isolation” but rather in light of various other provisions that ordinarily make it easy to vote in Wisconsin. Id. at 671. But that does not mean that so long as there’s some hypothetical way a voter could vote, no burden on voting can be unconstitutional. To the contrary, Luft—consistent with Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) (“Frank II”)—emphasized the importance of ensuring that all voters can cast ballots with “reasonable effort.” Luft, 963 F.3d at 678. And Luft further emphasized that the right to vote is “personal,” and cannot be defeated by the fact that others will be able to reasonably cast their ballots. Id. at 669. Rather, the state must provide all voters with a true “path to cast a vote.” Id. at 678.
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And it certainly cannot be true, as the Legislature suggests, that so long as the in-person voting system functions, the vote-by-mail system can wholly fail; or vice versa. Luft didn’t consider core breakdowns infecting an entire voting method, and Luft certainly never suggested that such challenges would be meritless. For good reason: Any such ruling would be irreconcilable with both Supreme Court and Seventh Circuit precedent. An unduly burdensome protocol—even if the state has provided alternatives—is still unconstitutional. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 185 (2008) (evaluating burden of in-person photo requirement even though voters could avoid requirement by voting through absentee ballots); Griffin v. Roupas, 385 F.3d 1128, 1129 (7th Cir. 2004) (evaluating burden of absentee ballot requirements even though in-person system existed).
The Legislature’s description of Luft’s sweep highlights how aggressively it reads that case, beyond anything the Seventh Circuit actually said. In the Legislature’s view, this is the vanishingly small space in which an Anderson-Burdick claim may still exists: A hypothetical voter who “does not wish to vote in person, prudently request[s] an absentee ballot well in advance of November, ha[s] that ballot lost in delivery due to some error by the USPS, [is] unable to request a replacement ballot, and [is] so compromised that he cannot safely vote in person.” Leg. Br. 40. Set aside the transparent Purcell trap that such a narrow reading would create, forcing voters to bring potentially fact-intensive claims to Court only at the very last moment, when all else has failed. Cf. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020) (hereinafter “RNC”), Slip Op. at 2 (“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”). A state imposes an unconstitutional burden on the right to vote long before a voter has encountered repeated, insurmountable obstacles at every turn. Frank II, 819 F.3d at 387
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(holding that, if a voter cannot meet a voting requirement after “reasonable efforts,” there must be a “safety net”).
The Legislature makes much of the fact that states are not constitutionally required to provide mail-in voting. Leg. Br. 31-32. But the Legislature cites no authority that suggests Wisconsin can choose to provide mail-in voting, and then create a system that will necessarily fail. And any such suggestion is absurd. A state need not have mail-in voting, but once it decides to create such a regime, many of its citizens will understandably rely on that regime as a viable voting option. So if a state decides to have mail-in voting, that regime must function in a way that actually allows people to vote. The rule the Legislature appears to press—that there can be no oversight of mail-in voting because mail-in voting need not be offered in the first place— would lead to wide-scale voter confusion and certain disenfranchisement. Once a state provides an option such as mail-in voting, it must take measures to ensure that a voter who reasonably chooses that option can effectively vote. See Price v. New York State Bd. of Elections, 540 F.3d 101, 110-12 (2d Cir. 2008) (holding that New York unconstitutionally denied absentee ballots when it “relie[d] exclusively on its contrived argument that tabulating absentee ballots could cause delay in finalizing election results”). That is why courts routinely assess the burdens imposed by such laws under the Anderson-Burdick framework. See, e.g., Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374, at *17 (W.D. Wis. Apr. 2, 2020), ECF No. 170; Mays v. LaRose, 951 F.3d 775, 780 (6th Cir. 2020) (evaluating constitutionality of deadline to request absentee ballot); Ohio Democratic Party v. Husted, 834 F.3d 620, 623 (6th Cir. 2016) (evaluating burden of reducing early in-person voting and same day registration).
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The voting laws and practices Plaintiffs challenge are not simply “less-convenient feature[s],” as Luft characterized the laws it upheld. Luft, 963 F.3d at 675. This case isn’t about minor or picayune details of the voting apparatus. Absent this Court’s intervention, Wisconsin voters who attempt to vote in person will be required to choose between voting and risking their health or the health and lives of their loved ones in order to vote. See infra 30-36. And even if they choose to assume that risk in order to vote, sheer overcrowding at too-few polling locations may prevent them from actually casting a ballot. See infra 36-38. Meanwhile, voters who attempt to vote by mail will risk having their entirely valid ballots not counted. See infra 38-44, 44-46. Luft poses no barrier to these claims.
Absent judicial intervention, several aspects of the upcoming election are likely to unconstitutionally burden the right to vote. Absent judicial intervention, four aspects of the upcoming November 2020 Election are likely to unconstitutionally burden Wisconsinites’ right to vote: (i) Defendants are likely to fail to ensure safe and accessible in-person voting; (ii) Defendants are likely to fail to ensure an adequate number of poll workers to administer safe polling places; (iii) Wisconsin’s statutory deadline for receipt of mail-in absentee ballots is again likely to disenfranchise thousands of voters; and (iv) Wisconsin’s absentee-ballot witnessing requirement is likely to disenfranchise a discrete class of immunocompromised, high-risk, or infected individuals unable to safely secure a witness. Each of these challenged practices and laws severely burdens the right to vote, considered within the framework of the Wisconsin voting system as a whole. See supra 29-46. Absent intervention from this Court, each of these challenged practices is likely to disenfranchise or create serious health risks for many Wisconsin voters—and their cumulative effect will likely spell disaster for November, measured against any norms of a functioning electoral system.
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The WEC Defendants have not taken a position on the merits of Plaintiffs’ requested relief. And the Legislature has come nowhere near showing that the challenged burdens are narrowly tailored to a compelling state interest. To the contrary, the Legislature has constructed an almost exquisite Catch-22, arguing that any health risks associated with in-person voting are ameliorated by the availability of vote-by-mail procedures, while any failures of the vote-by-mail system are rendered irrelevant by the options available for voting in person. Compare Leg. Br. 27 (“Plaintiffs’ criticisms of Wisconsin’s in-person voting regime . . . are legally irrelevant under Luft because Wisconsinites can fully vindicate their right to vote with reasonable effort through absentee voting.”) with id. at 31 (“For those voters who choose not to take advantage of Wisconsin’s generous absentee voting regime . . . in-person voting in November . . . is a safe and entirely constitutional option.”).
a. Failure to Ensure Safe In-Person Voting The Legislature first suggests that Wisconsin need not take reasonable steps to ensure that its in-person voting system is safe at all, because voters can always mail-in their ballots. Leg. Br. 30. That position is untenable. The mail-in system is itself suffering from COVID-19related breakdowns, and more fundamentally, Wisconsin cannot tell its voters they can vote in person, but then abdicate its duty to ensure that doing so is safe. Instructing voters that they can vote in person while allowing that voting avenue to pose life-threatening risks severely burdens the right to vote. The Legislature’s fallback position, accordingly, is that in-person voting in April was safe, and that in-person voting in November will likewise be safe and therefore constitutionally adequate. Leg. Br. 33-39. Both assertions fly in the face of all available evidence and expert guidance.
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As Plaintiffs’ opening brief laid out, in-person voting was not safe in the April election. During the April 7 election, many polling locations, including in parts of the state most acutely affected by COVID-19, lacked the social distancing protocols and safety equipment—such as PPE, masks and gloves, sanitization supplies and equipment—necessary to ensure safe voting. Swenson PI Br. 15-17; 38-39. Plaintiffs themselves experienced such unsafe voting environments, including crowded venues and unsanitary voting practices, in April. Swenson PI Br. 15-16; see also DNC PI Br. 11-15; SOAPF ¶ 31.13 Both public-health and epidemiological experts in this consolidated litigation evaluated the April election and opined, based on their respective expertise, just how unsafe that election was. Swenson PI Br. 38-40; Gear PI Br. 9-10.
Discovery has only underscored that conclusion. The WEC’s own communications reveal that it was unable to source masks and gloves due to inadequate supplies. SOAPF ¶ 26. Supplies were in such short demand poll workers had to rely on vodka as a sanitizer. SOAPF ¶ 27. Poll workers reported being fearful for their life. SOAPF ¶ 28. Two WEC commissioners noted that Wisconsin could not guarantee the safety of its voters in the April election. SOAPF ¶ 29. Voter after voter reported lack of social distancing and safety protocols. SOAPF ¶¶ 30-31. Chair Jacobs testified that some voters in the April election risked their lives to vote. Jacobs Dep. 107:7-9; SOAPF ¶ 23.
Rather than attempting to rely on some competing expert to suggest that, contrary to all available evidence, in-person voting in April was safe, the only argument the Legislature can
13 See also, e.g., Decl. of Marquisha Wortham, July 8, 2020, ECF No. 367 (conditions at voter’s polling place were unsafe as a result of overcrowding and long lines; she left after 30 minutes without voting); Decl. of Christy Moore, July 8, 2020, ECF No. 330 (voter’s polling place had crowded line; she waited in her car for an hour and a half to vote and then left); Decl. of Latoya Washington, July 8, 2020, ECF No. 363 (voter’s polling place had crowded line; she waited for two hours to vote and then was told the polls were closing and she could not vote); SOAPF ¶ 31.
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muster is to claim that some of the declarations submitted in the DNC case show that in-person voting “could be done safely and responsibly in” April. Leg. Br. 33. But no one disagrees that inperson voting could have been made safe; the problem is that it was not made safe as a general matter.
The Legislature further suggests that Plaintiffs have failed to show any COVID-19 spread in fact occurred during the April election. But that is a red herring. Plaintiffs have offered a substantial body of evidence showing an association between voting in April and COVID-19 transmission. COVID-19 is transmitted through contaminated respiratory droplets or “droplet nuclei” (aerosolized particles). Expert Report of Patrick Remington, M.D., Swenson ECF No. 44 (“Remington Report”) at 8; SOAPF ¶ 1. This is “well-established” and “based on extensive research about respiratory viruses, coronaviruses, and the [] novel COVID-19 virus.” Remington Dep. 116:5-11; SOAPF ¶ 2. Because of these characteristics, COVID-19 spreads in the exact type of environments in which in-person voting occurs—indoor environments where voters are necessarily brought into close contact with one another and the same surfaces and objects at the polling place. Remington Report at 9; SOAPF ¶ 3. The record reflects that where Wisconsinites did in fact vote in person on April 7, they reported long, crowded lines for hours, and polling places with lack of social distancing and use of PPE or masks. See Second Goodman Decl., Ex. 2 (Compilation of six emails from voters regarding April 7) (produced by WEC); SOAPF ¶ 2. The evidence further reflects that rates of COVID-19 increased in counties with higher rates of inperson voting, confirming what is known about the epidemiology of COVID-19 and the biology of transmission. Remington Report at 11 & n. 35; SOAPF ¶ 4. In addition, Dr. Murray reports “71 confirmed cases of Covid-19 among people who may have been infected during the election.” Decl. of Dr. Meagan Murray ¶ 60, July 8, 2020, ECF No. 370 (“Murray Decl.”);
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SOAPF ¶ 5. The Legislature suggests that such evidence is insufficient because there is no conclusive proof that any one voter actually contracted COVID-19 during the April election. But such proof would require a nearly impossible “randomized placebo controlled double-blind trial, where you would . . . assign people to vote in person, and a controlled population to not to,” and then “randomize the confounding factors in the exposed and the unexposed group.” Remington Dep. 73:18-74:3; see also Murray Dep. 37:11-17; (“I wouldn’t ever be able to say that someone was definitely infected at a particular time.”). What the Swenson Plaintiffs have shown, however, is that the evidence shows a significant association between voting in-person in April and COVID-19 rates. Murray Dep. 55:22-56:3; SOAPF ¶ 78. The Legislature’s efforts to refute the import of that conclusion are meritless.
The Legislature attempts to rely on two studies that it says show that voting in Wisconsin was a “low risk” activity on April 7. See Leg. Br. 36. But both studies, by Leung and Berry, respectively, are methodologically weak and unreliable.14 By contrast, the study on which Plaintiffs’ experts rely, by Chad Cotti and his colleagues, found a “statistically and economically significant association between in-person voting and the spread of COVID-19 two to three weeks after the election.” Remington Report at 11 & n. 35. The Cotti study addresses the limitations in
14 The Leung study is a post-test observational study without a control group which makes the assumption that the expected rates of COVID-19 transmission following the election would be constant and then finds a lack of increase in expected rates to be evidence that the April election did not cause any increase. But infection rates could have increased or decreased as a result of changes in other unmeasured factors. The Berry study examined the expected daily rates of COVID-19 transmission following the April election and concluded that the trends in Wisconsin were the same as in the rest of the United States during the two-week period following the election. But Wisconsin had much lower rates of COVID-19(44.3 per 100,000 on April 7) than did the US (120.8 per 100,000 on April 7). So, the entire United States, with a much larger rate of COVID-19 spread, was not a viable control group. Remington Report at n.34. Further, Dr. Berry and his colleagues did not measure other potential confounding factors for trends in the United States. Murray Report ¶ 63.
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the Leung and Berry studies by comparing trends within the state of Wisconsin using countylevel data and controlling for known and potential confounders, including measures of social distancing and county-specific demographics. Both Plaintiffs’ experts in the field of epidemiology concluded that, given these important distinctions in methodology, the Cotti study is most rigorous and reliable. See Remington Report n. 34; Murray Report ¶ 63. In short, all available evidence and reliable expert analysis demonstrates that in-person voting was simply not safe in April. Murray Report ¶ 63.
The Legislature thus pivots to the wildly irresponsible suggestion that even if in-person voting was not safe in April, Plaintiffs must show that it will be “uniquely unsafe” in November. Leg. Br. 31, 33. But unsafe voting conditions represent a burden whether unique or not. And Plaintiffs have shown that COVID-19 is likely to be a problem in November, and that in-person voting is November—absent appropriate safety precautions—is thus likely to again be unsafe again. Plaintiffs’ experts have testified that COVID-19 is continuing to spread throughout Wisconsin and will continue to be a major public health concern during the remaining months of 2020. Remington Report at 6-10; Br. in Supp. of Pls.’ Mot. for TRO and Prelim. Inj. 12, Case No. 20-cv-278-wmc, ECF No. 17 (“Gear PI Br.”); Murray Decl. ¶¶ 10, 66; SOAPF ¶ 10. Those conclusions are consistent with all available public health and epidemiological evidence. The Legislature’s claim otherwise—unsupported by expert testimony—is simply reckless.15
15 In its Supplemental Brief, the Legislature contends that Dr. Remington’s acknowledgment that the exact course of the pandemic is unknown somehow means Plaintiffs are not entitled to relief, ECF No. 474-1 at 6. But Dr. Remington stated that “there’s no doubt in my mind that we will have significant community transmission for the next four months, certainly through November,” Remington Dep. 38:14–17; SOAPF ¶ 79, and Plaintiffs need not provide evidence of the precise number of cases in Wisconsin on November 3 to demonstrate that in-person voting will be unsafe without appropriate precautions.
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The Legislature hangs its hat on a single model, from the Institute for Health Metrics and Evaluation (IHME), which indicates that infection rates in November will be lower than in April. Leg. Br. 34. But that model has not been updated since June and is thus of no predictive value for November. Dr. Remington cited that model in his June report when it was current but subsequently explained that it is now hopelessly out of date and wrong. Remington Dep. 47:1220; Remington Dep. 49:12. Its projections are flatly inconsistent with the real-world numbers in Wisconsin today, where the infection rate is far higher than predicted (likely in part because the assumptions of widespread mask use in the model have not proven correct). For instance, that model predicts 308 daily infections in WI as of July 23, 2020, while the Wisconsin health department tracker shows more than 1,000. SOAPF ¶ 81. And the model predicted two and a half deaths for July 21, when Wisconsin recorded 13. SOAPF ¶ 82. As Dr. Remington testified, the projections in the model for November are likely “off by an order of magnitude of four to five”; “clearly, [the IHME] model vastly underestimated the number of deaths,” and “clearly, this model has to be rerun.” Remington Dep. 47:17-48:17; SOAPF ¶ 83.
The Legislature likewise repeatedly suggests that the only reason any difficulties occurred in April at all is because COVID-19 was new, and no one saw it coming. Leg. Br. 33. Although COVID-19 will have been around longer by November, Defendants still have not taken nearly the measures necessary to ensure safe in-person voting. See infra 70-78, 87-95. The passage of time since COVID-19’s onset will not alleviate its likely effect if appropriately responsive measures have not been taken in the interim. Indeed, the WEC’s inaction despite the passage of time is all the more reason for the Court to issue appropriate instructions to the WEC, which is currently deadlocked without the Court’s intervention. WEC I 23:8-24:15.
b. Adequate poll workers and in-person voting opportunities.
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Safe in-person voting during a highly contagious pandemic cannot take place absent an adequate number of poll workers to staff polling locations, and in the absence of adequate voting opportunities to spread out in-person voting so that crowds do not form, see Expert Report of Kevin J. Kennedy, Swenson ECF No. 45 (“Kennedy Report”) ¶¶ 87-89.
To avoid the widespread closures that occurred in April, this Court should order the WEC to ensure an adequate number of available poll workers—a key cause of those closures. Swenson PI Br. 40-42. The Legislature does not deny that the widespread closure of polling locations that occurred in April burdened the rights of Wisconsin voters, instead calling such closures “illadvised,” “inexplicabl[e],” and “irresponsible.” Leg. Br. 14, 16. It contends that Milwaukee, at least, will not experience them again, Leg. Supp. Br. 5, despite the fact that the Milwaukee Elections Commission has testified that it is concerned about poll worker shortages for the November election. See MEC Dep. 111:2-112:18; SOAPF ¶ 49.
The Legislature also suggests that the WEC lacks authority to solve this problem, Leg. Br. 102-03, but as explained below, infra 66-70, that is wrong. The WEC retains the statutory authority under Wisconsin law to engage in recruitment efforts and the duty to ensure compliance with state and federal election laws—including the VRA, ADA, and U.S. Constitution. That entails ensuring safe and effective in-person voting facilities for all voters throughout the State by recruiting poll workers to staff the polls. See infra 72-74. At the very least, the WEC can, by taking the steps Plaintiffs request, significantly mitigate the problem. See Goodman Decl., Ex. 33, Swenson ECF No. 43-33 (Wis. Elections Comm’n, Special Teleconference-Only Meeting, Polling Place Supply and Personnel Shortages (Mar. 31, 2020)) (hereinafter “March 31, 2020 WEC Meeting Notice”) at 10 (“It has become clear that a shortage
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of available election inspectors due to COVID-19 is one of the most limiting factors related to the number of polling locations to be used.”); SOAPF ¶ 91.
This Court’s intervention is likewise necessary to enjoin two statutes that prevent WEC from ensuring that there are adequate in-person voting opportunities. First, the county-residence requirement in Wis. Stat. § 7.30(2), prevents the WEC from creating a statewide pool of poll workers who could be deployed in response to shortages around the state. WEC II Dep. 89-90. Second, the requirement that municipalities designate by June 11, 2020 all locations that will provide in-person absentee voting for the November 3 election, Wis. Stat. § 6.855(1), limiting inperson absentee voting to a period of 14 days, tie municipalities’ hands with respect to in-person absentee voting. Enjoining these provisions would facilitate a greater number of in-person polling locations operating smoothly, efficiently, and safely for the November election—thus alleviating the burden on the right to vote caused by unsafe, crowded polling locations.
The Legislature’s articulated countervailing interests do not justify its opposition to this relief. Lifting restrictions on in-person absentee voting does nothing at all to displace “officials who are truly local [from] administer[ing] the polling places.” Leg. Br. 69. After all, the whole point is that local officials should be able to provide more in-person voting options and respond to the changing pandemic as need be. And allowing jurisdictions to share poll workers would abate arbitrary shortages in the November election, Kennedy Report ¶¶ 67-69; Swenson SOPF ¶ 237; Milwaukee Elect. Comm’n 30(b)(6) Dep., July 23, 2020, ECF No. 470 (“MEC Dep.”) 113:3-10; SOAPF ¶ 129. Still, no municipality would be forced to hire poll workers from outside the county—it would be up to local officials. Swenson PI Br. 41. Likewise, contrary to the Legislature’s assertion, Leg. Br. 68-69, the record evidence shows that § 6.855(1), if enforced, will impose a burden on voters. COVID-19 infection rates have risen substantially
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since June 11, SOAPF ¶ 129, making clear how difficult it is for clerks to project their November needs five months out. Cutting off designation of in-person absentee polling sites in June means that many of the sites that municipalities designate could be unworkable come the fall, yet municipalities will be prevented from adapting to COVID-19’s course by designating replacement sites. That in turn will cause the overcrowding and dangerous conditions that characterized April in-person voting, severely burdening the right to vote. Swenson PI Br. 11, 2324, 42-44. The State’s interest in “orderly administration,” Leg. Br. 68, would only be promoted by enjoining this provision.
c. Statutory Deadline for Receipt of Absentee Ballots This Court’s preliminary injunction extending the statutory deadline for receipt of absentee ballots by six days in April preserved the constitutional right to vote of nearly 80,000 people who cast valid ballots on or before election day—according to Defendants’ own analysis. Swenson SOPF ¶ 67. That is because the relevant statutory provisions authorize voters to timely request an absentee ballot by mail up until five days (Thursday) before election day, Wis. Stat. § 6.86(1)(b), but require all ballots to arrive at the polling place by 8 PM on election day, Wis. Stat. § 6.87(6). But while Wisconsin law allows voters to request a ballot five days out, it is undisputed that the total time, from receipt of the request to receipt of a completed ballot, can be up to 14 days. WEC I Dep. 51:1-52:21; SOAPF ¶ 62. The tight turnaround envisioned by Wisconsin law means that if the system is flooded with absentee ballot requests, or if USPS is overwhelmed by the volume of ballots, many absentee ballots will be rejected even though the voter made a timely request and acted consistently with state law at every turn.16 That is exactly
16 See Jacobs Dep. 32:19-33:1 (“[B]y virtue of the fact that the law was changed so that ballots had to arrive by 8:00 p.m. of election day, that is a profound disconnect with the timing of being permitted to request absentee ballots.”); SOAPF ¶ 33; Jacobs Dep. 34:18-35:6 (“The problem with
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what happened in April: COVID-19 led to a huge number of requests for absentee ballots, which in turn strained electoral and USPS resources and capacity. See Kennedy Dep., July 24, 2020, ECF No. 471 (“Kennedy Dep.”) 64:19-65:4; 113:16-114:17; Green Bay City Clerk 30(b)(6) Dep., July 28, 2020, ECF No. 480 (“Green Bay Dep.”) 124:1-14, 162:8-17; Swenson PI Br. 4243; SOAPF ¶ 34.17 Absent judicial intervention, those validly cast votes would not have been counted.
These 80,000 votes amount to 6.68% of all absentee ballots cast and 5.1% of all votes. Swenson SOPF ¶ 67. A large swath of the Wisconsin voting population would thus have been disenfranchised absent judicial intervention—proof that this Court’s Anderson-Burdick analysis in April, affirmed on appeal by both the Seventh Circuit and U.S. Supreme Court, was correct. Moreover, the salience of this number to public confidence in the legitimacy of the election cannot be overstated. The nearly 80,000 validly cast ballots that were counted as a result of this Court’s order far exceeds the margin of victory in the 2016 Wisconsin presidential election, as well as many of the other recent elections.18 These razor-thin margins only underscore the significance that disenfranchising tens of thousands of voters could have on ensuring a legitimate outcome in the election and public confidence in the result.
Yet the Legislature nevertheless objects to the Court similarly modifying the ballotreceipt deadline in November. Its objections are meritless.
the receipt deadline is . . . it takes the ability of a voter to return their ballot and have it be counted out of the hands of the voter.”); SOAPF ¶ 32. 17 WEC Commissioner Spindell admitted that the 1.2 million mail-in votes in Wisconsin in April “completely overwhelmed our election system.” Spindell Dep. 47:20-49:9. SOAPF ¶ 35. 18 President Trump’s margin of victory in 2016 was 22,748 votes. See Richard Cohn & Charlie Cook, The Almanac of American Politics 2020, at 1917 (2019); SOAPF ¶ 59. And that election was not an outlier: The Gore margin of victory in Wisconsin in 2000 was 5,708 votes; the Kerry margin of victory in Wisconsin in 2004 was 11,384 votes. SOAPF ¶ 60.
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First, the Legislature suggests that because absentee voters can request and return their ballots earlier than the statutory deadline, or could return their ballots by methods other than the mail, relief is not warranted. Leg. Br. 27-30, 55-60. But voters should not have to disregard the timeframes and methods authorized by state law to have a chance that their ballot is counted; that is not what “reasonable effort,” Frank II, 819 F.3d at 386, means. Indeed, a recent report by the Inspector General of the USPS found that voters requesting absentee ballots consistent with the operative statutory deadline—in other words, voters complying with state law—face a “high risk” that their ballots will go uncounted. See WEC II Dep. 115:12-116:12; SOPF ¶ 61. If following state law means put a voter at “high risk” of being disenfranchised, despite validly casting her ballot, the system severely burdens the right to vote. See Democratic Exec. Comm. of Florida v. Lee, 915 F.3d 1312, 1324-25 (11th Cir. 2019) (finding that voting system severely burdened right to vote when voters were disenfranchised despite “follow[ing] the ostensible deadline for their ballots only to discover that their votes would not be counted and that they would have no recourse”). Indeed, this is the functional equivalent of misinforming people about which day they should vote.
Second, the Legislature suggests that the problems in April are not likely to recur in November, because the system will in fact be able to process the volume of absentee ballots likely requested. Leg. Br. 55-62. But all the available evidence is to the contrary. The pandemic is likely to be wreaking public-health havoc in November, just as in April. Swenson SOPF ¶¶ 6, 10, 224; Remington Report at 8-11; SOAPF ¶ 16. And given the nature of the November presidential election, there is likely to be an even higher volume of absentee ballot requests in November than in April. Swenson SOPF ¶¶ 228-235; Kennedy Report ¶ 147; SOAPF ¶ 15. In comparison to the nearly 1.2 million absentee ballots cast in April, the WEC has already sent
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absentee ballot request forms to approximately 2.7 million voters for the November election and, as noted, WEC officials believe the number of absentee ballots cast easily could exceed 2 million. Jacobs Dep. 22:5-23:11, 151:9-152:12; Goodman Decl., Ex. 18, Swenson ECF No. 4318 (Wis. Elections Comm’n, April 7, 2020 Absentee Voting Report (May 15, 2020)), at 12; SOAPF ¶ 18. Even if some voters send in their requests earlier, the unprecedented demand is likely to strain local resources. Swenson SOPF ¶¶ 231-236; Kennedy Report ¶¶ 104-106, 110, 125, 137; Remington Report at 11-12; Green Bay Dep. 124:1-14, 162:8-17; SOAPF ¶ 19.19
The Legislature provides little support for its argument to the contrary, which seems to rest on the assumption that election officials can manage a potential deluge of mail-in voting, despite the lack of any articulable game plan or real investment in building that capacity. Indeed, the Legislature’s argument is inconsistent with Defendants’ own representations: As Defendant Wolfe described, the WEC is already predicting that it will take two weeks for an absentee ballot to make its way through the mail from a clerk’s office to a voter and back again for the November election—meaning that voters who request absentee ballots in the final two weeks before the election will not have sufficient time to mail their ballots back for arrival by election day. WEC I Dep. 51:1-52:21; SOAPF ¶ 62. And Chair Jacobs testified that “the volume of absentee balloting that we’re looking at is definitely going to put a strain on the system,” and that absent a continued injunction, “several hundred thousand” would-be absentee voters are at risk of not having their ballots counted in November. Jacobs Dep. 34:7-15; SOAPF ¶ 63.
19 As the DNC explains, the 1.3 million absentee ballots issued in April 2020 election already amounted to five times the number of absentee ballots issued in the four April elections from 2016-2019. A conservative estimate of more than half a million additional ballots in November will only further tax an overtaxed system. DNC PI Br. 12.
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Accordingly, all available evidence suggests that in November—as this Court found in April—“even the most diligent voter may be unable to return his or her ballot in time to be counted.” DNC, 2020 WL 1638374, at *16; Remington Report at 11-12; Kennedy Report ¶¶ 15, 126-29, 147. WEC Chair Jacobs herself testified that the Court’s order extending the receipt deadline for the April election enfranchised approximately 80,000 Wisconsinites. Jacobs Dep. 121:4-14; SOAPF ¶ 66, see also Kennedy Dep. 110:9-111:2; SOAPF ¶ 64.20 And she encouraged the Court to enter another order suspending the receipt requirement, noting the “amazing and important” results of the April injunction. Jacobs Dep. 121:4-14; SOAPF ¶ 67. Chair Jacobs testified that changing the receipt requirement is “essential to allowing people to exercise their right to vote and particularly to vote absentee, which is the safest way to vote in the upcoming election.” Jacobs Dep. 146:12-17; see also MEC Dep. 115:16-116:13; SOAPF ¶ 68.
Absent this Court’s intervention, many thousands of voters are likely to be disenfranchised in November despite complying with Wisconsin law and validly casting their ballots. That is a core Anderson-Burdick injury.
On the other side of the ledger, the Legislature’s stated interests in not extending the deadline are unpersuasive. The Legislature suggests that its primary interest is in promptly reporting the vote count. However, Ms. Wolfe conceded that in April, even with the extension to receive and count ballots by April 13, the state was able to certify its election results by its statutory deadline. WEC I Dep. 47:14-48:16; SOAPF ¶ 73. Defendant Wolfe did not recall any clerks missing their reporting deadlines. WEC I Dep. 48:8-16; SOAPF ¶ 74. And quickly
20 “I think we know from experience that the post office doesn’t keep very good track of ballots much less other important pieces of mail, and that if we’re going to ensure that people are able to fully participate, particularly when there’s a much greater reliance on mail in absentee ballots, that there has to be some accommodation for the failures of the post office and just the delivery issues.” Kennedy Dep. 110:9-111:2.
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announcing election results—at the expense of accuracy—is not a valid state interest. Rather, prioritizing speed over accuracy harms Wisconsin’s “valid interest in protecting ‘the integrity and reliability of the electoral process.’” Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014) (quoting Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008)); see Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”). Indeed, the Legislature itself notes the importance of the “integrity of its elections,” and the State’s interest in “accurately” reporting election-day winners. Leg. Br. 57. That is precisely what’s at issue here: whether validly cast ballots will be counted. If the Legislature’s concern is the public’s faith in the election, then it should be extremely concerned that, in the WEC’s own estimation, hundreds of thousands of qualified voters may be disenfranchised absent judicial remediation of the ballot-receipt deadline. Jacobs Dep. 34:7-15; SOAPF ¶ 58. The public can have no faith in an election where the votes of hundreds of thousands of citizens who followed the rules are not counted.
Likewise, while the efforts to canvass the election results after an extension are appreciated, Leg. Br. 57, these efforts do not outweigh the risk of disenfranchisement if the court does not modify the deadlines for the November election. See, e.g., Price v. New York State Bd. of Elections, 540 F.3d 101, 111-12 (2d Cir. 2008) (finding that state’s concern that elections would “be unsettled for several days while the candidates await[ed] certification” carried “infinitesimal weight” that did not justify the burdens imposed on voters); Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017, 1030-31 (N.D. Fla. Nov. 15, 2018) (finding that state’s interest in “efficiently and quickly report[ing] election results . . . unconstitutionally burden[ed] the fundamental right of Florida citizens to vote and have their votes counted”).
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Indeed, the Legislature’s concern about timely counting of ballots only supports Plaintiffs’ request that the Court enjoin Wis. Stat. §§ 6.88, 7.51-.52, which artificially limits localities by preventing them from canvassing absentee ballots before election day, see infra 5257, 65. Enjoining that statute would free municipalities to spread the burden of counting ballots over the entire election period, thereby eliminating the Legislature’s concern about administrative burdens and delayed results and promoting public confidence in the election by allowing results to be reported sooner.
d. Absentee-Ballot Witnessing In addition to violating Title II of the ADA, as discussed above, see supra 14-22, Wisconsin’s witness certification requirement will likewise impose a serous burden on immunocompromised voters and voters currently infected with COVID-19. As the Seventh Circuit explained in Frank v. Walker, each citizen’s “personal” constitutional right to vote “is not defeated by the fact that 99% of other people can secure the necessary credentials easily.” 819 F.3d at 387. Although “the State’s interest in the integrity and reliability of the electoral process is strong, every citizen’s interest in individual treatment also is strong. That’s the holding of Frank II.” Luft, 963 F.3d at 680 (internal quotation marks omitted). Wisconsin must provide a safety net in one form or another that demonstrably provides eligible voters with a genuine “path to cast a vote.” Id. at 678. Here, Plaintiffs have shown that for a limited class of voters who are immunocompromised or at high risk from COVID-19, or who are actively infected with COVID19, Wisconsin’s requirement that would-be absentee voters locate and secure a witness to verify the ballot and sign the envelope, Wis. Stat. § 6.87(2), will impose a severe—indeed, insurmountable—obstacle to absentee voting in the upcoming November election. See Swenson PI Br. 44-45; supra 29. And Defendant Wolfe testified at her deposition that the WEC’s
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witnessing guidance suggestions are an “ongoing challenge,” WEC II Dep. 107:9-108:7, confirming that WEC’s proposed workarounds do not alleviate the burden posed by § 6.87(2). Indeed, remarkably, despite the Seventh Circuit’s instruction that the WEC “continue to consider yet other ways for voters to satisfy the statutory signature requirement (if possible, for example, by maintaining the statutory presence requirement but not requiring the witness’s physical signature),” Democratic Nat’l Comm. v. Bostelmann, No. 20-1538, 2020 WL 3619499, at *2 (7th Cir. Apr. 3, 2020), the WEC’s June 25 status report is entirely silent on the issue of witnessing.
The Legislature, for its part, maintains that any burden imposed by the witnesscertification requirement is necessarily justified by its interest in preventing voter fraud. But importantly, there was no evidence of attempted voter fraud in the April 7 election, and the Legislature has introduced no evidence that such fraud is a real risk in the November general election. See Defs. RFA Resp. No. 32 (admitting there is no evidence of absentee ballot fraud); RNC RFA Resp. No. 2 (failing to identify any evidence of absentee ballot fraud for those voting without a witness). 21 And whatever deference the state’s interest in fraud merits even absent any substantiating facts, it is outweighed by the serious burden that the witness certification requirement imposes on immunocompromised and voters currently infected with COVID-19 during this pandemic. Moreover, as Plaintiffs explained in their opening brief and above, see Swenson PI Br. 45-46, supra 14-17, the state’s anti-fraud rationale is seriously undermined by the fact that Defendants’ proposed workarounds are especially poor means of deterring fraud. The State’s anti-fraud goals would, in any event, be adequately served by a self-certification on penalty of perjury. Swenson PI Br. 44-45. And the Legislature nowhere acknowledges the State’s
21 Indeed, multiple members of the WEC testified that they had not heard of any incidents of attempted voter fraud in the April election. See Jacobs Dep. 37:9-20; Spindell Dep. 25:9 - 26:15; SOAPF ¶ 75.
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interest in preventing the disenfranchisement that will occur if the WEC fails to take actions sufficient to ensure that voters are not intimidated from safely casting their votes in November. See Burson v. Freeman, 504 U.S. 191, 206 (1992) (noting “States’ compelling interests in preventing voter intimidation and election fraud”) (emphasis added).
At bottom, the Legislature’s objection to a safety net for those for whom the witnesscertification requirement poses a severe burden exposes its mystifying refusal to grapple with the nature and impact of the current pandemic.22 A physical signature requirement is plainly a different beast during a pandemic that spreads from person to person and especially through contact. Yet the Legislature wraps itself in an anti-fraud rationale that has no evidentiary basis, refusing to accede to a limited alternative for those for whom this requirement is most dangerous.
The Supreme Court has not ruled or suggested that an AndersonBurdick challenge to election law and administration in light of COVID-19 will be rejected. In an apparent attempt to convince the Court that any relief it awards here will ultimately be rejected by the Supreme Court, the Legislature points to the fact that the Supreme Court stayed a portion of this Court’s relief in the litigation involving the Wisconsin April election and likewise blocked, or allowed the Court of Appeals to block, relief in litigation arising from COVID-19-related voting issues in Texas and Alabama. See Leg. Br. 3 (citing Republican Nat’l
22 The Legislature’s representation of Jill Swenson’s deposition testimony, see Leg. Proposed Supp. Br., ECF No. 474-1, is of a piece with this refusal. The Legislature questioned Ms. Swenson about her plans with respect to voting in the August 11 election, currently in process, see Dep. of Jill Swenson, July 21, 2020, ECF No. 468, 53:2-55:3, and then presented that testimony as if it applies directly to the November election. But Ms. Swenson also testified that “things are kind of up in the air right now given the increasing rates of Covid in Appleton,” id. at 53:12-14. Moreover, the Legislature fails to acknowledge that Ms. Swenson would be subject to, in effect, a 48-hour waiting period to cast a ballot, because the “option[]” she could take advantage of would involve two 24-hour intervals between the time she fills out her ballot and the time she could return it.
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Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020)); Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020), application to vacate stay denied, No. 19A1055 (June 26, 2020); People First of Ala. v. Sec’y of State, 2020 WL 3478093 (11th Cir. June 25, 2020) , application to vacate stay granted, Merrill v. People First of Alabama, No. 19A1063 (July 2, 2020)).
But the Legislature ignores that all three suits ran up against a common obstacle: Purcell. As the Supreme Court explained in the RNC case, the district court’s order requiring the State to count absentee ballots postmarked after April 7, 2020 was stayed because it “chang[ed] the election rules so close to the election date,” and “lower federal courts should ordinarily not alter the election rules on the eve of an election.” 140 S. Ct. at 1207. In Texas Democratic Party—in which the Court issued no written decision—the consistent theme of Texas’s briefing to the Court was Purcell. See Respondents’ Opp. To Application to Vacate Fifth Circuit Stay Of Prelim. Inj., No. 19A1055, at 1 (“[T]his Court has ‘repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.’ . . . Now, having waited nearly a month since the injunction was initially stayed, petitioners claim crisis and ask this Court to grant them the extraordinary relief of vacating the Fifth Circuit’s unanimous stay and issuing a writ of certiorari before judgment precisely because there are just a few weeks before a statewide primary election.”). In the Alabama litigation, the election was already underway when the district court issued the injunction. See Emergency Application for Stay, No. 19A1063, at 1 (“Alabama is in the middle of a primary election runoff.”).
By contrast, as explained below, Purcell has no bearing here, where Plaintiffs filed suit and moved expeditiously to allow this Court to provide relief well ahead of the November election. See infra 81-84. These stay decisions thus have no bearing here. Critically, the Supreme
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Court has not addressed the merits of any COVID-19-related Anderson-Burdick claim. The Legislature’s attempts to insinuate otherwise are meritless.
Plaintiffs Are Likely to Succeed on the Merits of Their Procedural Due Process Claim. Plaintiffs ask this Court to ensure that Wisconsin voters have constitutionally guaranteed procedural rights against erroneous decisions to not to count an absentee ballot—or not to provide an absentee ballot upon request in the first place. Given the importance of the right to vote, the significant improvement that Plaintiffs’ requested relief would produce with respect to the risk of erroneously discarded or denied absentee ballots, and the minimal burdens on the government, Plaintiffs are likely to prevail on this claim, which is not subsumed by the Anderson-Burdick analysis.
Plaintiffs’ procedural due process claim is independent of their Anderson-Burdick claims. Plaintiffs’ procedural due process claim is fundamentally distinct from their AndersonBurdick claim, and the former need not be subsumed under the latter. “The hallmarks of procedural due process are notice and an opportunity to be heard,” when the State deprives a person of a protected liberty or property interest. Pugel v. Bd. of Tr. of Univ. of Ill., 378 F.3d 659, 662-63 (7th Cir. 2004). In this case, Plaintiffs seek procedural protections to guard against erroneous decisions not to count their properly-cast absentee ballot—or to deny an absentee ballot on request in the first place. See, e.g., Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990) (“[T]he right to vote is a ‘liberty’ interest which may not be confiscated without due process.”). Unlike Plaintiffs’ claim under the Anderson-Burdick framework, their procedural due process claim is not concerned directly with burdens that the law places on the “‘individual’s right to vote and . . . to associate with others for political ends” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780,
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788 (1983)). It instead seeks to ensure that—when the state deprives a person of their vote by rejecting their absentee ballot at the canvass (or by failing to provide a ballot in the first place)— that individuals have adequate procedural protections to learn why their rights were taken, to contest the decision, and to protect against and cure errors.
Indeed, procedural due process claims have been recognized repeatedly by courts, particularly with respect to the processes that accompany the decision to challenge and discard absentee ballots upon canvassing. See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d 202, 214 (D.N.H. 2018) (procedural due process rights violated where “voters receive neither prior notice of, nor an opportunity to cure, [absentee ballot] rejection due to a signature mismatch.”); Zessar v. Helander, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006) (“lack of notice and an opportunity to rehabilitate . . . absentee ballot before the official election canvass date” violated procedural due process.); Raetzel, 762 F. Supp. at 1356 (“lack of notice and a hearing prior to . . . absentee votes being disqualified” violated procedural due process).23
Nonetheless, the Legislature and the WEC argue that procedural due process challenges to deprivations of the right to vote have simply been subsumed under the Anderson-Burdick framework. They rely primarily on a single line from Acevedo v. Cook County Officers Electoral
23 There are many other contexts in which the Constitution simultaneously protects both the substantive right (as does the Anderson-Burdick framework) and procedural rights. To take one example, it is uncontroversial that the “substantive” component of the Due Process Clause limits the circumstances in which a person can be detained indefinitely without criminal charge, see, e.g., Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (“dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment”), while the “procedural” component of the Due Process Clause specifies the processes the state must afford a when it chooses to do so, see, e.g. Addington v. Texas, 441 U.S. 418, 431-32 (1979) (requiring state to establish by “clear and convincing evidence” that person is properly subject to civil commitment). Likewise here. Anderson-Burdick tests whether the state has unconstitutionally burdened the substantive right to vote, whereas procedural due process determines the process the state must afford when it deprives a person of their right by, for example, discarding a ballot.
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Board, in which the Seventh Circuit wrote that “[i]n Burdick v. Takushi, the Court emphasized that [the Anderson-Burdick] test applies to all First and Fourteenth Amendment challenges to state election laws.” 925 F.3d 944, 948 (7th Cir. 2019). But this statement cannot be read literally to mean that any election challenge arising under either the First or Fourteenth Amendment is governed by a single test, given that courts—including the Supreme Court and Seventh Circuit— plainly recognize a variety of distinct causes of action and legal frameworks under the Fourteenth Amendment in the voting rights context. For instance, racial discrimination challenges to voting laws are of course governed by the Fourteenth Amendment, but nobody believes that Anderson-Burdick governs them. See, e.g., Shaw v. Reno, 509 U.S. 630, 642–44 (1993) (applying strict scrutiny to intentional racial discrimination in voting). In Bush v. Gore, 531 U.S. 98, 104–05 (2000), the Supreme Court rested its decision on Fourteenth Amendment rights, but it did not rely on Anderson-Burdick framework. In Gill v. Whitford, concerning Wisconsin’s districting laws, nobody argued—and the Supreme Court certainly did not hold— that the challenge should be governed by Anderson-Burdick even though it was explicitly a case brought “under the First and Fourteenth Amendments.” 138 S. Ct. 1916, 1923 (2018).
Defendants’ ignore that when Acevedo refers to “First and Fourteenth Amendment” claims governed by the Anderson-Burdick test, it is necessarily referring only to a particular species of the many claims encompassed by those two Amendments. In particular, AndersonBurdick applies to “claim[s] that a state law burdens the right to vote,” Burdick, 504 U.S. at 438, or “impose[s] . . . burden on voters’ rights to associate or to choose among candidates,” Anderson, 460 U.S. at 788. But where a party argues that a state election law violates the Fourteenth Amendment in some other way—here, by violating its Due Process Clause for failing
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to provide adequate procedural safeguards against erroneously discarded or denied ballots—the particular doctrinal test appropriate to that species of Fourteenth Amendment claim should apply.
The Legislature also attempts to draw an analogy to the Seventh Circuit’s summary disposition of the Twenty-Sixth Amendment and “partisan fencing” arguments in Luft, where the court agreed that those claims were “just different ways of presenting contentions under Anderson and Burdick.” Luft, 963 F.3d at 673; see Leg. Br. 72. Here, unlike in Luft, the procedural due process claims are not “different ways of presenting” contentions under Anderson-Burdick but challenge distinct aspects of the electoral process and seek different relief.24
If anything, the Legislature’s reading of Luft underscores the need for different analyses. As explained supra 22-29, the Legislature (incorrectly) reads Luft to mean that so long as a voter can vote in some way, a state’s election system “as a whole” is immune from challenge under Anderson-Burdick. But if that were true, procedural due process would be the only means for challenging components parts of that system that might be completely arbitrary—for example, a hypothetical law requiring clerks to lie about the deadline for voting. Wisconsin’s absenteeballot receipt deadline functions just like the lie described above. Voters are told they can vote
24 For similar reasons this Court’s prior suggestion that the DNC’s procedural due process claims may be duplicative of its Anderson-Burdick claims has no bearing on the Swenson plaintiffs’ claims here. See Leg. Br. 72-73 (citing ECF No. 217, at 15). Unlike the DNC, which has essentially asserted procedural due process as an alternative way to adjudicate the same claims and relief they press under Anderson-Burdick, see ECF No. 420, at 53–56, the Swenson Plaintiffs’ procedural due process claims are analytically and factually distinct from their Anderson-Burdick claims. The Swenson Plaintiffs do not agree with the DNC that “[t]he Anderson-Burdick and due process analyses are like looking at the same object through different lenses” or that the Court should “use both an Anderson-Burdick and a due process analysis, if only to confirm that the two analyses both lead to the right result.” Id. at 55-56. Instead, as argued here and below, the Swenson Plaintiffs press distinct procedural due process claims that focus on the procedures necessary to prevent erroneous deprivations of the fundamental liberty interest in having one’s ballot properly counted.
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by requesting a ballot five days before the election, but in reality it will take up to fourteen days to cast a ballot. If that scheme does not substantively burden an individual’s right to vote, it surely is an arbitrary deprivation of a liberty interest that the state itself provides.
Because Anderson-Burdick has not devoured all other Fourteenth Amendment claims that happen to challenge state election laws, Plaintiffs’ procedural due process claims here are properly governed by Mathews v. Eldridge, 424 U.S. 319 (1976), as are claims that the state is providing inadequate procedural guarantees in essentially every other context where the state abridges a fundamental right or other protected interest. Mathews, 424 U.S. 319 (cancellation of social security benefits); Santosky v. Kramer, 455 U.S. 745, 761 (1982) (termination of parental rights); Illinois v. Batchelder, 463 U.S. 1112, 1117 (1983) (suspension of drivers’ licenses).
The prohibition on canvassing absentee ballots before Election Day violates procedural due process. When the state rejects an absentee ballot, it deprives the person who cast it of their fundamental right to vote and their protected “liberty” or “property” interest in voting. The Constitution thus requires that the state provide constitutionally adequate procedures to protect these voters. Wisconsin does not. To start, Wisconsin law currently prohibit absentee ballots from being counted before Election Day, Wis. Stat. §§ 6.88, 7.51-.52. This prohibition prevents municipalities from processing absentee ballots as they are received, preventing them from properly adjudicating challenges to ballots and providing voters notice and an opportunity to cure (or contest) any defects. The statute also increases the risk that votes will be improperly counted by forcing municipalities to canvass all absentee ballots in a compressed time period after the election—a limitation that was plainly not designed to accommodate the unprecedented deluge of absentee
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ballots that municipalities will receive in November.25 Under Mathews, whether an injunction against this statute is warranted depends on “(A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake.” Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017).
The Legislature does not dispute the weight of the “private interest”—i.e., the value of having one’s vote counted properly. Nor does it make any attempt to argue that the requested relief would impair any governmental interest, perhaps because it would impose only minimal administrative burdens and would in fact serve the government’s interest in ensuring that voters are not erroneously denied the opportunity to vote absentee. With respect to the risk of “erroneous deprivation,” the only Mathews prong on which it does make an argument, the Legislature simply ignores that (i) the law deprives local election officials of time to detect defects in absentee ballots, in turn depriving voters of notice and a meaningful opportunity to cure, and (ii) given other deadlines by which ballots must be counted, it increases the risk of incorrect vote-counts.
25 Plaintiffs do not ask this Court itself to issue an order requiring WEC to require municipalities to provide notice of defective ballots or an opportunity to cure in advance of Election Day. While Plaintiffs’ opening brief laid out the minimal requirements of procedural due process in this regard, see Swenson PI Br. 53, Plaintiffs did not actually seek that relief from this Court, see id. at 65-66. The statutory framework already in place should give WEC and municipalities the necessary authority to provide notice and an opportunity to cure so long as the statutes that prohibit opening and counting absentee ballots before Election Day are waived. See, e.g., Wis. Stat. § 6.86(5) (allowing clerk to replace a “spoiled or damaged ballot”); § 6.869 (requiring WEC to “prescribe uniform instructions . . . concerning the procedure for correcting errors in marking a ballot and obtaining a replacement for a spoiled ballot.”); accord Leg. Br. 78 (describing “procedures for absentee voters to correct errors with their absentee ballots”). Plaintiffs thus ask this Court only to enjoin the statutory prohibitions on canvassing absentee ballots before Election Day.
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In April, tens of thousands of ballots were rejected for insufficient certification or for other reasons. See Swenson PI Br. 51-52; SOAPF ¶ 40; see also SOAPF ¶¶ 38-39.
It is essentially uncontested that the number and proportion of absentee ballots in the November election will be far higher in November. Jacobs Dep. 21:8-10, 22:18-23:11; Spindell Dep. 129:10-16; SMEC Dep. 117:3-118:11; SOAPF ¶ 40. More than 1 million absentee ballots were cast in the April election. See Spindell Dep. 47:20-49:9; SOPF ¶¶ 35, 18. If the same proportion of voters in November cast absentee ballots, we are likely to see approximately double that number. SOPF ¶ 47.
But the prohibition on counting absentee ballots until Election Day prevents voters from getting notice of defects in their ballots before Election Day such that they might cure defects (or contest adverse determinations) before Election Day. See Swenson PI Br. 52-53. The deadline means that there will almost always be no notice of a defect—and never an opportunity to cure— an absentee ballot before Election Day. Id. And, of course, once Election Day has passed, it is too late for a voter to re-cast their ballot. Another district court in this Circuit invalidated Illinois’ prohibition on counting ballots before Election Day on procedural due process grounds for exactly the same reason, even absent the vast increase in absentee balloting prompted by the COVID-19 pandemic. See Zessar, 2006 WL 642646; see also Raetzel, 762 F. Supp. 1354. Wisconsin law is worse, layering on additional barriers to providing notice and opportunity to cure, as explained in Plaintiffs’ opening brief. See Swenson PI Br. 52.
The prohibition on early counting of these ballots also hinders an accurate count because the unprecedented task of counting so many absentee ballots will have to be completed on an impossibly short timeline. Wisconsin Law requires municipalities to count ballots and transmit results to the county clerk such that the county clerk can certify results no later than 11 days after
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the election. Wis. Stat. § 7.70(1)(b). The WEC’s statewide canvass of election results commences on December 1, 2020 and must end by December 11, 2020. Wis. Stat. § 7.70(3)(a), (c). In a presidential election year, there is little flexibility. The presidential electors must convene on December 14, 2020, to cast votes for the Presidency and Vice-Presidency, according to both state and federal law. Wis. Stat. §§ 7.70(5)(b), 7.75(1); 3 U.S.C. § 7. Given the significant possibility that absentee ballots will be challenged, counts contested, and judicial intervention sought, the prospect of counting more than two million absentee ballots on this timeline obviously heightens the risk that absentee votes will be erroneously discarded or counted. See Kennedy Dep. 119:2-122:1.
Common sense and record evidence show that these timelines increase the risk that those procedures will produce erroneous results. Wisconsin law prescribes detailed steps by which each absentee ballot must be opened, inspected, and counted. See Wis. Stat. §§ 6.88, 7.52. It also prescribes procedures to adjudicate challenges to the validity of any absentee ballot, § 6.93, including—in municipalities that have established a central board to canvass absentee ballots— the power to “call before it any person whose absentee ballot is challenged if the person is available to be called.” Wis. Stat. § 7.52(5)(b). These procedures will have to be applied to literally millions of ballots in a hotly contested presidential election, on an artificially compressed timeframe. See Kennedy Dep. 120:6-122.26
Given Wisconsin’s historical importance in presidential elections, the risk is grave that this prohibition could throw the election into doubt by leaving a significant number of voters’ ballots improperly rejected or inadvertently uncounted, without enough time to properly
26 “[B]y focusing on processing the ballots in the clerk’s office, you're not relying on tired poll workers to identify the problem. You’re in a position where it could be brought to the attention of the clerk.”
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adjudicate challenges, let alone cure defects. While the statutes envision that canvassing of absentee ballots will happen between the open and close of polls on Election Day, Wis. Stat. § 7.52, the evidence in the record suggests that it will be impossible to complete the count on that timeline, particularly in Milwaukee. MEC Dep. 117:3-21; see also Green Bay Dep. 124:1-14 (“My biggest worry right now is election night. . . . I don’t know if we’re going to get the results in an acceptable time . . . . In April, with all the absentees we had, we were given multiple days to get those in the tabulator. I haven’t heard anything yet for November. So we’ll have from 7:00 in the morning until we’re done. I just can’t even—I’m just—I’m really worried.”) SOAPF ¶ 115. Indeed, the Town Administrator from Merrimac, who also serves as chair of the Republican Party of Sauk County, expressed fears to a WEC Commissioner that the massive influx of absentee ballots “will burden the system to the point we’ll look like Florida 2000 counting ballots a month later.” See SOAPF ¶ 69.
Against the enormous benefits that would flow from allowing an earlier canvass of absentee ballots, the Legislative Defendants assert an illusory and self-defeating government interest. They argue that “early canvassing of ballots” would “gravely affect the integrity of the election process” because it “risks disclosure of election results.” Leg. Br. 78. The Legislature cites no evidence for this proposition, because there is none. In fact, the experience nationwide is that numerous states permit absentee ballots to be counted early, and Plaintiffs are aware of no reported instances where results leaked. See SOAPF ¶ 137. But the Court need not rely only outof-state experience: during the 2020 election municipal and county clerks statewide did not report results until six days after Election Day, April 13, 2020, and suffered not a single reported leak even though some ballots were processed through optical scan machines or tallied on Election Day. See id. ¶ 138. There is no reason to believe that processing absentee ballots before
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Election Day would cause problems. In truth, the clear and present risk is the prohibition on canvassing absentee ballots before Election Day, which should be invalidated especially because it will delay vote tabulation that could be dispositive of the presidential election.
Defendants’ procedures regarding requesting, processing, and rejecting requests for absentee ballots violate due process. Wisconsin voters have a statutory right to vote absentee if they wish, for any reason. Wis. Stat. §§ 6.20, 6.86. This, too, is a protected liberty or property interest. See Swenson PI Br. 46; Zessar, 2006 WL 642646, at *6; Raetzel, 762 F. Supp. at 1457. In order to provide notice and an opportunity to challenge or cure any denial of an absentee ballot, Plaintiffs contend that the following procedural protections are necessary: (1) increased bandwidth and server resources for WEC’s computer systems that receive and process requests; (2) guidance and support from WEC such that municipalities must provide prompt notice if a request for a ballot is rejected along with an opportunity to correct; (3) effective notice to the public regarding the procedures governing the right to vote absentee; and (4) flexibility to designate in-person absentee voting locations. These remedies are necessary in order to decrease the risk of an erroneous denial of the protected interest in voting absentee. Contrary to the Legislature’s suggestion, see Leg. Br. 7374, there is strong evidence that, absent such relief, voters will once again suffer significant delays and outright failures to receive an absentee ballot, similar to the experience in April. Kennedy Dep. 64:19-65:4, 66:13-16, 113:1-5, 120:20-121:4. The Legislature seeks to downplay this risk, contending that the April election did not produce an unusual number of unreturned or rejected ballots. Id. at 74. But this misses the point: thousands of people did not receive their absentee ballot at all. Swenson PI Br. 9–10. There is copious evidence in the record of individuals who simply did not get an absentee ballot. Goodman Decl., Ex. 18, Swenson ECF No. 43-18 (Wis. Election Comm’n, April 7, 2020 Absentee Voting Report, at 15-17, 20)
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(reporting thousands of ballots not received); Declaration of Melody McCurtis in Supp. of Pls.’ Mot. for Prelim. Inj., Swenson ECF No. 48 at ¶ 7; Declaration of Maria Nelson in Supp. of Pls.’ Mot. for Prelim. Inj., Swenson ECF No. 49 at ¶¶ 7-9; SOAPF ¶ 37. And voter turnout overall was significantly depressed in areas with large numbers of first-time absentee voters. See Fowler Report, at 20. All of this underscores that difficulties navigating the absentee ballot request process—including the absence of timely notice and opportunities to correct a faulty request— deprived many people of their right to vote absentee.
With respect to the specific remedies sought here, first, the need for increased server and bandwidth resources for the MyVote and WisVote system remains crucial. WEC’s description of its efforts to date fail to show that it has adequately prepared to handle the much larger number of voters in November. Kennedy Dep. at 63:11-67:22.
Second, directives requiring prompt, effective notice when an absentee ballot request is rejected or delayed are appropriate relief here. The Legislature contends that such protections will have no benefit, because of the longer lead times before November that permit voters to apply to obtain absentee ballots early. Leg. Br. 74–75. But this elides the fact that large numbers of voters are likely to register in the immediate lead-up to the election, as is their right under the law. Establishing the procedural safeguards of notice and opportunity-to-cure will help ensure they are not deprived of the ability to access the ballot. The Legislature also suggest that this claim fails because voters’ failure to properly fill out an application effectively defeats their procedural due process rights. See Leg. Br. 75 (citing Protect Marriage Ill. v. Orr, 463 F.3d 604, 608 (7th Cir. 2006)). But that ballot access case is inapposite. Where, as here, the statute gives voters an affirmative right to choose to vote absentee and gives voters an opportunity to cure any
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defects, see Wis. Stat. § 7.15(1)(cm), voters plainly have a procedural due process right to notice that their application suffered from a defect and an opportunity to fix the problem.
Third, Plaintiffs ask this Court to waive the statutory requirement precluding municipalities from designating additional in-person absentee voting sites for November, which, remarkably, is now already passed. Wis. Stat. § 6.855(1). The fact that Wisconsin law already allowed municipalities to designate multiple in-person absentee sites misses the point: what is necessary is flexibility so that municipalities can increase or change their designations based on the realities of this rapidly evolving pandemic.
Finally, the Legislature argues against the need for public education and notice regarding the procedures they must follow by citing to the WEC’s statutory mandates to provide guidance to election officials. Leg. Br. 76-77. But what is necessary is effective notice to the voting public, Swenson PI Br. 50–51, and WEC’s efforts to date are insufficient. Kennedy Dep. 86:5–91:14; 113:1–115:7; SOAPF ¶ 105.
Because the right to vote absentee is vital in a pandemic, because the value of these additional procedural safeguards to protect that right are considerable, and because there are no countervailing government interests, plaintiffs are likely to succeed on the merits of their claim for relief with respect to requests for absentee ballots.
Plaintiffs Are Likely to Succeed on the Merits of Their Equal Protection claim. The Legislature fails to engage seriously with Plaintiffs’ equal protection claim. Rather than address Plaintiffs’ core allegation—that absent Plaintiffs’ requested relief Wisconsin voters will again face constitutionally impermissible disparities in their access to the franchise—the Legislature attempts to conjure nonexistent barriers to any equal protection claim challenging election administration. But those attempts fail. So too does the Legislature’s attempt to avoid the mounting evidence in this case. Rather than make any effort to rebut Plaintiffs’ expert
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evidence laying bare the disproportionate harm visited on older voters, voters with disabilities, and minority communities in April, the Legislature blithely characterizes Defendants’ administration of the April election as “generally successful.” Leg. Br. 80. But as everyone other than Defendants seems to appreciate, April was not a success, see Swenson PI Br. 54-60, and unless this Court grants the relief requested, November won’t be, either.27
The Legislature first contends that Plaintiffs’ equal protection claim fails because “both the Supreme Court and lower courts have expressly limited [Bush v. Gore] to its own particular circumstances[.]” Leg. Br. 121, 79. But Plaintiffs’ claim is premised on the longstanding equal protection principle that, “[h]aving once granted the right to vote on equal terms,” a state cannot “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05. That principle is not some novel or fact-bound holding limited to Bush; it is a “basic proposition[]” of longstanding equal protection law. Id. (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) & Reynolds v. Sims, 377 U.S. 533 (1964)).
Indeed, contrary to the Legislature’s claim that lower courts have “limited” the principles described in Bush, virtually every court to consider the decision has recognized its continuing vitality. See, e.g., League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476-77 (6th Cir.
27 Although some courts have considered equal protection claims under the Anderson-Burdick standard, the Supreme Court declined to apply that framework in Bush v. Gore. Instead, having deemed the franchise “fundamental,” the Court asked only if a state’s actions result in “arbitrary and disparate” treatment of voters. Bush, 531 U.S. at 104-05. That approach, appropriate here, is consistent with decisions before and after Bush addressing equal protection claims alleging arbitrary and disparate treatment. See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (holding long wait times violated Equal Protection Clause without reference to Anderson-Burdick); see also Lyman v. Baker, 954 F.3d 351, 370–71 (1st Cir. 2020) (adjudicating equal protection claim without discussion of Anderson-Burdick); Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill. 2002) (same); League of Women Voters of U.S. v. Fields, 352 F. Supp. 1053, 1055 (E.D. Ill. 1972) (same); Ury v. Santee, 303 F. Supp. 119, 12527 (N.D. Ill. 1969) (same).
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2008) (holding that Bush “reaffirmed” fundamental equal protection principles prohibiting defendants from “arbitrarily den[ying] its citizens the right to vote or burden[ing] the exercise of that right based on where they live”); Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 234 (6th Cir. 2011) (“We are … guided in our analysis by the important requirement that state actions in election processes must not result in ‘arbitrary and disparate treatment’ of votes” (quoting Bush, 531 U.S. at 104-05)); Wexler v. Anderson, 452 F.3d 1226, 1231 (11th Cir. 2006) (considering under Bush whether variations between counties in voting systems “accord arbitrary and disparate treatment to Florida voters, thereby depriving voters of their constitutional right[] to … equal protection”). Plaintiffs’ claim here is the same: that enforcement of the challenged provisions, coupled with Defendants’ failures to take the practical statewide measures within its authority described supra, will result in wide disparities in voting access based on arbitrary factors, such as where voters happen to live. There is accordingly no basis to dismiss Plaintiffs’ equal protection claim based on Bush’s purported “limitations.”
The Legislature next invents a prerequisite to bringing an equal protection challenge, contending that Plaintiffs must identify “specific election ‘procedures’” that will cause arbitrary and disparate treatment in November. Leg. Br. 79 (quotation omitted). But the crux of the equal protection problem in Bush was “the absence of specific standards . . . designed to ensure uniform treatment” of voters. Bush, 531 U.S. at 106 (emphases added). That is what is at issue here, too—Defendants’ ongoing failure to adopt policies, practices, and procedures ensuring that Wisconsin meets its “obligation to avoid arbitrary and disparate treatment of the members of its electorate.” Id. at 105. For example, it is clear that “the failure of the Commission to give specific guidance” on the interpretation of postmarked ballots in the April election resulted in “1,850 different standards to assess postmarks,” leading to the non-uniform treatment of voters
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that the Court in Bush found to be an equal protection violation. Jacobs Dep. 117:16-118:2; see also SOAPF ¶ 41 (WEC staff member noting problems with varied interpretations of the witnessing requirement by saying, “I will follow up with the clerk in the morning, but we’re incorrectly training a bunch of people…”). Nor was this merely a failure of omission: what advice the WEC did provide led to the arbitrary and disparate treatment of voters whose ballots were received after April 7. SOAPF ¶ 42 (citing documents containing contradictory WEC instructions). As this Court already has recognized, such allegations state a valid equal protection claim. See Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 3077047, at *7 (W.D. Wis. June 10, 2020), ECF No. 217 (DNC’s allegation that Defendants issued conflicting guidance and failed to ensure adequate in-person registration, absentee voting, and election-day voting opportunities stated equal protection claim).28
Similarly unpersuasive is the Legislature’s complaint that Plaintiffs’ equal protection claim focuses too heavily on what went wrong in April, failing to identify any policies or practices that might “bear[] on the upcoming November Election.” Leg. Br. 80-82. Belying that assertion, however, Plaintiffs have set forth in detail the practical steps Defendants must take to meet their constitutional obligations in November. See Remington Report at 8-9, 14-17; Kennedy Report ¶¶ 35-41; see infra 70-78. And should Defendants fail to implement that relief, the same equal protection violations that occurred in April will make an unwelcome comeback this fall: arbitrary lack of safe, accessible polling locations, differing availability of PPE and other
28 See also Brunner, 548 F.3d at 474, 477-78 (plaintiff stated equal protection claim in suit for prospective relief alleging that Ohio “fail[ed] to prevent and correct the system-wide chaos that is alleged to have occurred in [the previous general election]”); Ury, 303 F. Supp. at 126 (“As a consequence of the failure of defendants to provide substantially equal voting facilities, plaintiffs and those similarly situated were discriminated against in the exercise of their franchise and were denied the right secured by the United States Constitution to equal protection of the laws.”).
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equipment necessary to guarantee safe in-person voting, uneven access to the MyVote system, and more. See Swenson PI Br. 56-59.
Contrary to the Legislature’s suggestion otherwise, mounting evidence demonstrates that Defendants have not even taken the steps necessary to learn what went wrong in April, let alone to ensure similar equal protection violations will not recur in November. See Swenson PI Br. 2224; see Jacobs Dep. 62:1-18 (expressing concern about problems from the April Election recurring in November, noting, “When we don’t know what’s gone wrong, we can’t fix it. So one of my concerns is we don’t know what went wrong with – either it was 1600 or 750 ballots [not received by voters in the Oshkosh area]”); SOAPF ¶ 77. And Defendants’ current plans and policies are insufficient to guarantee voters will have equal access to safe and accessible voting options both in person and by mail. See WEC II Dep. 70 (discussing how the WEC is not taking any measures that are specifically designed to prevent racial disparities in future elections).
Symptomatic of the problem is the Legislature’s description of the April election as “generally successful.” Leg. Br. 80. That characterization reflects Defendants’ continued failure to understand the wide-ranging failures in the WEC’s approach to administering elections during the COVID-19 pandemic—failures that disproportionately and arbitrarily harmed minority communities, older voters, and voters with disabilities. See Spindell Dep. 153:7-11; SOAPF ¶ 43. And it puts the lie to the Legislature’s contention that Plaintiffs have “no reasonable basis to contend [similar] problems will recur in November.” Leg. Br. 81. Indeed, Defendants entirely ignored the findings in Dr. Fowler’s expert report detailing the outsized and arbitrary impact of Defendants’ failures on particular groups of voters, including those in zip codes with higher percentages of Black and Hispanic voters and those over 65. See Fowler Report at 8-16; Swenson PI Br. 17-19; SOAPF ¶ 45. Yet Defendants say nothing about these arbitrary disparities.
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Defendants similarly take no notice of the ample evidence indicating that voters were not treated equally in April. See Spindell Dep. 153:7-11; SOAPF ¶ 44, (describing the disparate impact of the April Election by noting that “the Black community was not treated as they should have been.”).
Finally, the Legislature once again attempts to take refuge in the assertion that Wisconsin’s “decentralized” election system insulates it from any equal protection liability. Leg. Br. 81-82. But, as described below, Defendants have a unique state-wide role in ensuring the uniform, non-arbitrary treatment of Wisconsin voters during the COVID-19 pandemic as well as the authority to implement the specific relief Plaintiffs have requested, including the policies and practices necessary to meet their obligations under the Equal Protection Clause. II. The WEC Is the Proper and Necessary Defendant to Remedy the Unique Threat to
Voting Rights in November. Plaintiffs listened carefully to the Court’s instruction to demonstrate the WEC’s authority
to provide the specific relief Plaintiffs seek. In the pages that follow, Plaintiffs heed the Court’s charge: they itemize in detail the relief they seek and show, based on Wisconsin statutes, settled case law, and WEC past and current practice, that WEC indeed is the proper defendant to provide every piece of relief sought.
The Legislature does not dispute that the WEC, as the sole agency with “the responsibility for the administration” of Wisconsin election law (other than campaign finance laws), Wis. Stat. § 5.05(1), is the proper defendant for all of Plaintiffs’ request to enjoin Wisconsin statutes, see, e.g., Luft, 963 F.3d 665; Frank v. Walker, 196 F. Supp. 3d at 918-19, as this Court has already found, DNC, 2020 WL 1638374. Thus, there is no dispute that the WEC is the proper defendant as to Plaintiffs’ requests to enjoin:
• Wis. Stat. § 6.87(6) to ensure that voters who comply fully with Wisconsin law and timely mail absentee ballots by election day have their votes counted. In the April
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election, the Court’s injunction of this statutory provision protected the franchise of nearly 80,000 Wisconsin voters, SOAPF ¶ 133, and this injunction is needed to protect the franchise of “several hundred thousand voters,” Jacobs Dep. 34:7-8, come November.
• Wis. Stat. § 6.87(2) for those voters who are immunocompromised or otherwise at high risk from COVID-19 and cannot safely secure a witness, and replace the witness-verification requirement with another anti-fraud tool like a self-certification on pain of perjury.
• Wis. Stat. § 7.30(2) to allow cross-county sharing of poll workers, which will alleviate shortages that are likely to recur. The WEC itself admits that the pool of poll workers available to local election officials would be larger if there was no countyresidence requirement limiting the area in which an individual can serve as a poll worker. Defs. RFA Resp. No. 36.
• Wis. Stat. § 6.855(1) to allow localities the flexibility to re-designate polling places based on the realities of the pandemic as the November election approaches.
• Wis. Stat. §§ 6.88, 7.51-.52 to allow localities to count absentee ballots before election day, which will: (i) give localities time to provide voters with notice and opportunity to cure defects that will otherwise be disenfranchising; (ii) promote public confidence in the integrity of the election by making partial results available sooner (i.e., immediately after polls close); (iii) alleviate massive and inevitable burdens on clerks who will be forced to count an unprecedented number of absentee ballots; and (iv) prevent error and uncertainty that will result from requiring all counts and challenges to be adjudicated in an artificially compressed period after Election Day.
The Legislature’s objection is thus quite narrow. It challenges only the WEC’s authority to: (i)
assist localities in ensuring that in-person voting is safe by providing, for example, guidance on
polling place layout and set-up; (ii) assist localities in staffing polling places; (iii) require access
to drop boxes; (iv) develop statewide policies and procedures for absentee ballots; and (iv)
educate the public. See Leg. Br. 101-02.
As set out in detail below, the members of the WEC are the natural—and indeed,
necessary—defendants in a case seeking to remedy the statewide harms flowing from the
systemic breakdown of election administration in the face of COVID-19. As this section explains
in detail, the Legislature fails in its effort to distract from the role of the Commission and insists,
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in effect, that every municipality is on its own to face the extraordinary demands of COVID-19 on the state’s elections. That simply is not true.
The WEC is Responsible for the Administration of Wisconsin Elections and Is Therefore the Appropriate Defendant Here. The Legislature devotes much of its brief to the argument that the WEC’s authority is so anemic that it could not take the kinds of steps needed to ensure a safe and effective election, and its members are therefore not the proper defendants in this case. See, e.g., Leg. Br. 1-2, 100105.29 There is no question that Wisconsin law invests certain day-to-day responsibilities for administering elections with the state’s nearly 2,000 local election officials. But that uncontroversial proposition does not carry the weight that the Legislature wants it to. Wisconsin law entrusts the WEC with the broad “responsibility for the administration” of Wisconsin law “relating to elections and election campaigns, other than laws relating to campaign finance.” Wis. Stat. § 5.05(1) (emphasis added). This includes ensuring compliance with federal and state election law, including the Voting Rights Act, ADA, and U.S. Constitution. WEC II Dep. 17:21-19:4; SOAPF ¶ 109 The WEC Administrator, in turn, is the “chief election officer” of the state. Wis. Stat.§ 5.05(3g). The WEC has express statutory authority to “[p]romulgate rules . . . applicable to all jurisdictions for the purpose of interpreting or implementing laws regulating the conduct of elections or election campaigns . . . or ensuring their proper administration.” Wis. Stat. § 5.05(1)(f). It is also required by statute, “following the publication of a decision by a state or federal court that is binding on the commission and [the]
29 Significantly, while the WEC’s “Memorandum in Response” to the consolidated motions for preliminary injunction details the structure of the state’s election code, it pointedly “does not take a position on the specific relief requested in the Plaintiffs’ respective motions,” Mem. of WEC Defs. in Resp. to Pls. Mots. for Prelim. Inj., ECF No. 444 (“WEC Br.”), at 3, and does not say that it is an improper defendant with respect to any of the relief sought.
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state,” to “issue updated guidance or formal advisory opinions,” and to “commence the rulemaking procedure to revise administrative rules promulgated by the commission.” Wis. Stat. § 5.05(5t) (emphasis added). And it is tasked with responding to requests for advisory opinions concerning Wisconsin election laws, and when supported by a “specific case or common law authority,” such formal and informal WEC advisory opinions can have “legal force and effect.” Wis. Stat. § 5.05(6a)(a)1-2. See also Green Bay Dep. 87:16-87:18 (Green Bay deponent describing WEC’s role in Green Bay’s preparation for elections as “I follow what they tell us to do.”); id. at 90:9-91:3 (describing binding instruction for WEC regarding election procedures); SOAPF ¶ 116.
In conjunction with these broad grants of authority, existing caselaw establishes the WEC as the appropriate defendant in litigation that requires broad statewide relief. Indeed, “[p]ursuant to its general authority, the commission may direct municipal clerks to implement a court order pertaining to the state’s election procedures and federal law.” Frank, 196 F. Supp. 3d at 918. In Frank, the court applied this principle to conclude the WEC “clearly” had the power to require municipal clerks to implement an affidavit option for voter identification. Id. at 918. This “clear[]” understanding of the WEC’s authority applies with equal force in this case, not least because, as in Frank, it obviates the need for the “impractical” alternative of joining the nearly 2,000 local election officials in litigation requiring implementation of statewide remedies. Id.; see also DNC Br. 51-53.
The Legislature attempts to distinguish Frank by making the conclusory assertion that “whatever enforcement authority the Commission has on statewide rules like photo ID has no bearing whatsoever on those aspects of election administration unambiguously allotted only to local officials, such as those for staffing and equipping polling places, preparing and delivering
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ballots, and the like.” Leg. Br. 103. This assertion begs the question. The very issue the court in Frank addressed was whether the Commissioners had “authority under state law to require clerks to accept affidavits from voters in lieu of photo ID,” in light of the administrative power enjoyed by clerks over elections. Frank, 196 F. Supp. 3d at 918. In any event, the Legislature’s argument fails on its face: the claims plaintiffs assert here are violations of federal statutes and the U.S. Constitution, which are indisputably “statewide rules.” Indeed, the Frank decision is among the cases consolidated on appeal in Luft, which does not discuss these issues and then affirmatively states that it “agree[s] with the district courts’ handling of any issues that we have not mentioned.” Luft v. Evers, 963 F.3d 665, 681 (7th Cir. 2020).
Although not expressly examining the scope of the WEC’s authority, this Court’s April 2 order requiring the WEC to count mail-in absentee votes received by 4 p.m. on Sunday, April 13—six days later than prescribed by statute—implicitly recognized the WEC’s broad authority. See Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374, at *17 (W.D. Wis. Apr. 2, 2020), ECF No. 170. By statute, the obligations to record absentee ballots that are validly cast fall on municipal clerks and local elections inspectors, not the WEC itself. Wis. Stat. § 6.86. Nonetheless, the Court ordered the WEC to extend the deadline by which mailin absentee ballots must be counted. Id.30
30 This understanding of the WEC’s authority is consistent with the way courts have handled cases in other states where statewide remedies are necessary but the day-to-day administrative responsibility for elections is diffuse. For example, federal courts addressing voting restrictions in Florida have repeatedly rejected the argument that the Secretary of State is an improper defendant in a suit concerning statewide administration of elections, despite the fact that Florida’s election system is also frequently described as “decentralized.” See e.g. SOAPF ¶ 113. In Madera v. Detzner, 325 F. Supp. 3d 1269, 1276, 1284 (N.D. Fla. 2018), order enforced, No. 1:18-CV-152-MW/GRJ, 2018 WL 7506109 (N.D. Fla. Nov. 5, 2018), the district court entered an injunction requiring the Secretary of State to provide written direction to county election supervisors, and found that the Secretary had that power as a result of the Secretary’s status as
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To be sure, localities also play an important in Wisconsin’s election scheme—that is, after all, the nature of a partly decentralized system. But even where Wisconsin law delegates principal authority to local officials, the Legislature sensibly authorized the WEC to act as a backstop to ensure that, if local officials, for whatever reason, cannot ensure a safe and fair election, Wisconsin’s voters are not left out in the cold. Mr. Kennedy repeatedly testified to this careful balance. See, e.g., Kennedy Dep. 33:9-18, 35:5-36:3, 37:4-14.
For example, Wisconsin statutes authorize the WEC to “provide financial assistance to eligible counties and municipalities for election administration costs.” Wis. Stat.§ 5.05(11). To that end, the WEC has directed its staff “to spend federal CARES Act grant money to distribute sanitation supplies to all 72 counties in Wisconsin.” WEC Br. 27; see Leg. Br. 16. The WEC also is plainly authorized to provide supplies to local election officials. Indeed, it has done just that, “find[ing], procur[ing] and distribut[ing] sanitation supplies and personal protective equipment to polling places throughout Wisconsin” in advance of the April 7 election. WEC Br. 5; see id. at 7 (WEC “distributed 1.2 million absentee ballot envelopes to municipal clerks”). As necessary, WEC even has the authority to hire an individual to “perform[] duties which are [ordinarily] the responsibility of a county or municipality.” Id. at 22 (citing Wis. Stat. § 7.03(2)).
“chief election officer,” Fla. Stat. § 97.012, general administrative authority, Fla. Stat. § 15.13, and power to investigate local election officials violations of law, Fla. Stat. § 97.012(14). Compare Wis. Stat. § 5.05(3g) (WEC administrator is “chief election officer”); Wis. Stat. § 5.05(1) (WEC has “responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections”); and Wis. Stat.§ 5.05(2m)(a) (WEC may “investigate violations of laws administered by the commission”). Fla. Democratic Party v. Detzner, No. 4:16-CV-607MW/CAS, 2016 WL 6090943, at *5 (N.D. Fla. Oct. 16, 2016). Surprisingly, the IntervenorDefendants argue that a subsequent Eleventh Circuit decision on signature matching that directly cites this decision is inapposite here because it found the Secretary to have “the authority to relieve the burden on Plaintiffs’ right to vote.” Leg. Br. 105 (citing Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (citing Fla. Democratic Party v. Detzner, 2016 WL 6090943, at *5). That authority, however, is derived from a statutory scheme that parallels Wisconsin’s in significant ways.
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Moreover, in a number of instances during the pandemic, WEC has undertaken actions that by statute are ordinarily assigned to localities, indicating that State and local authority under Wisconsin’s election scheme is not mutually exclusive. For example, the WEC has directed clerks not to send special voting deputies (SVDs) into care facilities for the August or November elections, as it did in April, SOAPF ¶ 110, despite the fact that Wis. Stat. § 6.875 explicitly gives municipal clerks responsibility for dispatching SVDs and gives the WEC responsibility only for prescribing the form of the SVD’s oath, Wis. Stat. § 6.875(5). And the mailing that the WEC will send to registered voters will include the WEC’s address as one to which the enclosed absentee ballot request forms can be returned. SOAPF ¶ 111, although statute provides only that “an absent elector may make written application to the municipal clerk of that municipality for an official ballot by” several methods, including mail, Wis. Stat. § 6.86(1)(a).
Plaintiffs do not ask this Court to “wrest” authority away from local officials and grant it to the WEC. Leg. Br. 102. Instead, they ask this Court to order the WEC to take specific steps within its powers to assist localities throughout Wisconsin in ensuring the November election satisfies minimum constitutional and statutory standards. That is the WEC’s responsibility, on behalf of the state of Wisconsin.
The WEC’s Specific Statutory Authorities Support Each of Plaintiffs’ Claims for Relief. For all the reasons just stated, it is clear that the WEC is the proper defendant here. In addition to its broad general authority, each item of relief sought by Plaintiffs is further supported by specific statutory authorities of the WEC. 31 Plaintiffs simply ask the Court to order
31 Contrary to the Legislature’s assertions, Plaintiffs do not seek relief requiring a specific number of polling locations or poll workers, nor do Plaintiffs seek an order allowing the WEC to overrule a municipality's determination of the location for a particular polling site. See Leg. Br. 100-102. Additionally, Plaintiffs no longer seek relief with respect to accessible voting machines
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relief that is consistent with the WEC’s broad administration and enforcement powers, state statutory authorities, and past practices. Each specific item of relief, as well as additional authority supporting the WEC’s ability to implement that relief, is set out below.
a. Take all appropriate actions to ensure that in-person voting, whether exercised by casting an absentee ballot or by casting a ballot on election day, can be safely conducted. Ø Order the WEC to establish requirements for social distancing and appropriate sanitization practices at all in-person absentee and election day registration and voting locations, as well as creating appropriate corresponding signage. See Expert Report of Patrick Remington, Swenson ECF No. 44 (“Remington Report”), at 14-17; Kennedy Report ¶¶ 66-78. Ø Order the WEC to provide adequate staff time to support municipalities in implementing these measures. Ø Order the WEC to provide counties and municipalities with necessary safety supplies and PPE or assist them in procuring such supplies. Ø Order the WEC to develop training specific to conducting elections during the current public health crisis, as the WEC represented in its June 25 status report. In addition to its general authority to administer Wisconsin elections, two specific
provisions empower the WEC to implement Plaintiffs’ measures to ensure safe in-person voting activities. First, the WEC possesses the authority to direct the posting of information at polling places, which can include social distancing guidance and the requirement of signs, tapes, markers, and other visual cues. Wis. Stat. § 5.35(6). WEC also has clear authority to issue statewide guidance on the layout and set up of polling places, WEC Br. 27 (noting “over 20 public health guidance documents for clerks, poll workers and the public”), and municipalities have already testified that they will follow this guidance. See MEC Dep. 92-94, Kennedy Dep.
for in-person absentee voting, PI Brief 65 ¶ 2, voters in care facilities, id. at 66, ¶ 4, and coordination with the United States Postal Service, id. at 66 ¶ 8.
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73:16-74:8.32 WEC staff can assist municipalities in following this guidance. Wis. Stat. § 7.08(11). See also Green Bay Dep. 110:21-111:11 (testifying that WEC should have done more to guide municipalities on how to set up polling locations during pandemic and noting “we take direction from them on everything else.”); id. at 117:1-118:17; SOAPF ¶ 119. Additionally, the WEC shall “[a]llocate and assign sufficient members of its staff to coordinate their activities with local election officials.” Wis. Stat. § 7.08(11).
The WEC is authorized to financially assist counties and municipalities with procuring additional supplies, including disposable writing utensils, personal protective equipment, sanitizing equipment, and others. See Wis. Stat. § 5.05(11). During the April election, the WEC went a step further and actually procured and directly provided municipalities with PPE, pens, and sanitizing equipment. See SOAPF ¶ 112; WEC I Dep. 74:13-15 (“We don’t have any sort of statutory responsibility to [provide supplies], but certainly felt like the right thing to do”).
b. Take all appropriate actions to ensure an adequate number of poll workers to administer safe polling places. Ø Order the WEC to directly assist in poll worker recruitment at the state level, by: (1) developing and implementing procedures for proactively recruiting poll workers; (2) facilitating the assignment of recruited poll workers to jurisdictions where they are needed and (3) creating a pool of reserve poll workers who can be trained ahead of time to serve in the event of an unplanned, critical lack of poll workers on election day, as the WEC discussed for April. See also Kennedy Report at ¶¶ 67-69. In addition to its general responsibility to administer Wisconsin’s election laws, the WEC
has the statutory authority to financially assist with recruitment efforts, see Wis. Stat. § 5.05(11),
32 The guidance should also direct localities, where practicable to make available open-air registration and voting opportunities, as well special walk-in hours registration hours, including opportunities exclusively designed for voters 65 years of age or older, voters with disabilities, and immunocompromised voters or voters who are otherwise at high risk from COVID-19, and to use arena venues for polling locations, whenever practicable. See Kennedy Report ¶¶ 41, 5359, 71-75.
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coordinate with and assist local officials, including by allocating and assigning members of its staff to coordinate activities with local officials as it did in April, Wis. Stat. § 7.08 (11); WEC Br. 7, employ staff to complete work that is the responsibility of the county or municipality, Wis. Stat. § 7.03(2), and collect information concerning “election administration,” Wis. Stat. § 5.05(14)(a); Wis. Stat. § 7.10(10); Wis. Stat. § 7.15(13). The WEC acknowledges that it has tools available to recruit poll workers, and that it is feasible for it to assist local officials with recruitment efforts. See, e.g., Second Goodman Decl., Ex. 30 (WEC RFA Resp.) at Nos. 14-15; WEC Defs.’ Add’l Prop. Findings of Fact ¶ 26, July 20, 2020, ECF No. 445 ¶¶ 26-27; WEC II Dep. 84:24-86:15 (admitting that the WEC has tools available to it to attempt to impact the number of poll workers on election day); SOAPF ¶ 118. Municipalities “would be able to open more polling places for the November election” if the WEC helped with recruitment. MEC Dep. 113:11-18.
c. Ensure that voters who are blind and others with disabilities have an accessible means of receiving, marking, and submitting absentee ballots privately and independently. Ø Order the WEC to make available accessible ballots that voters with disabilities can complete privately and independently. See Kennedy Report ¶¶ 90-94. This relief would enable voters with print disabilities to print out and mail in their ballot.
There is no question WEC has this authority; WEC has already tested an option for doing so, see DRW Second Decl. ¶ 27. WEC also makes ballots available online through MyVote to military and overseas voters, SOAPF ¶ 120, showing again that WEC does have the authority to make ballots available to those who need them online.
Creating these ballots falls within WEC’s current responsibilities, which include establishing the form of all ballots and ballot containers. Wis. Stat. § 7.08 (1) (a); id. § 7.08 (1) (b); Wis. Stat. § 5.51(8). And as noted above, the WEC plays a distinctive role in assisting voters
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with disabilities, see Wis. Stat. § 5.25(4)(a), including by promulgating rules for the
administration of the statutory requirements for voting machines, electronic voting systems, and
any other voting apparatus which may be used in elections, Wis. Stat. § 7.08(1)(d). See also Wis.
Stat. § 5.905(2) (noting the WEC’s role establishing software components of an electronic voting
system).
d. Take all appropriate actions to ensure that all voters who request and are qualified to receive an absentee ballot in fact receive such absentee ballot, and that any voter whose request for an absentee ballot is rejected or not processed for any reason be notified and given the opportunity to cure any defect in a timely manner. Ø Order the WEC to issue a directive reiterating local election officials’ statutory responsibility to mail absentee ballots within one business day of receiving the request, Wis. Stat. § 7.15(1)(cm), and requiring that they seek assistance from the WEC if they are failing to meet that responsibility. Ø Order the WEC to proactively use the WisVote database to monitor the status of absentee ballot applications and mailings, including implementing the new “pending absentee” feature in WisVote, which allows clerks to approve or deny requests and communicate the result and its status to voters without manual data entry. See Goodman Decl., Ex. 18, Swenson ECF No. 43-18 (April 7 Absentee Voting Report) (“April 7 Absentee Voting Report”), at 34. Ø Order the WEC to deploy its staff and resources to allow local election officials to comply with their statutory responsibility, when it finds that local officials are unable to keep up with the volume of absentee ballot requests or failing to identify defective requests, as was the case during the April election. See Kennedy Report ¶¶ 105-107. The WEC is authorized to coordinate its activities with local election officials, including
by allocating staff for this purpose, Wis. Stat. § 7.08(11), and hiring staff to complete work that
is the responsibility of the county or municipality, Wis. Stat. § 7.03(2). In addition to its role
operating and maintaining WisVote and MyVote, Wis. Stat. § 6.30(5); WEC II Dep. 96:20-22,
the WEC can monitor and assist local clerks as they respond to a large volume of absentee ballot
requests. See WEC Status Report at 3-4 (“WEC staff would also be available to follow-up with
absentee voters that submitted an incomplete application, including a lack of photo ID if
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required.”); SOAPF ¶ 122. For example, the WEC has already intervened and involved its staff in the coordination of, and response to, absentee ballot requests, see id., even though the receipt and distribution of absentee ballots requests is statutorily tasked to municipalities. See Wis. Stat. § 6.30(1) (“Any eligible elector may register by mail on a form prescribed by the commission and provided by each municipality . . . The clerk shall mail a registration form to any elector upon written or oral request.”); see also Wis. Stat. §§ 7.10(1), 7.15(1)(c), 6.86.
Ø Order the WEC to mandate the use of WisVote mailing labels that incorporate intelligent barcodes so that every ballot can be tracked throughout the mail process. The WEC can mandate the use of intelligent barcode mailing labels pursuant to its broad
authority to require “information from county and municipal clerks relating to election administration, performance of electronic voting systems and voting machines, and use of paper ballots in elections.” Wis. Stat. § 5.05(14)(a); Wis. Stat. § 7.10 (10) (“[e]ach county clerk shall provide to the commission any information requested under s. 5.05 (14)”) (emphasis added); Wis. Stat. § 7.15(13) (same for municipal clerks). The WEC may invoke this authority to compel county and municipal clerks to provide it with the underlying tracking information and data that an intelligent barcode system would collect and display that information to voters and officials through the MyVote and WisVote systems, which the WEC operates. The WEC’s authority to mandate the use of intelligent barcode is further supplemented by its plenary power over the absentee ballot application forms and certificates, Wis. Stat. § 6.86(2m)(a); Wis. Stat. §§ 7.08(1)(b)-(c); Wis. Stat. § 6.24(d).
Ø Order the WEC to establish clear, uniform procedures to ensure that voters whose absentee ballot requests are defective receive individual, prompt, and effective notice of the reasons their request was rejected and information about how to cure the defect, and that voters whose ballots are not timely processed similarly be provided with notice. See also Kennedy Report ¶ 110.
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The WEC has the authority to “prescribe uniform instructions for municipalities to provide to absentee electors.” Wis. Stat. § 6.869; see also Wis. Stat. § 6.24 (“The commission shall prescribe the instructions for marking and returning ballots and the municipal clerk shall enclose such instructions with each ballot.”). This includes “information concerning the procedure for correcting errors in marking a ballot and obtaining a replacement for a spoiled ballot.” Wis. Stat. § 6.869.
e. Take all appropriate actions to upgrade electronic voter registration systems so they can process the anticipated elevated number of online registrations and absentee ballot requests. Ø Order the WEC to implement technological upgrades, including: (1) upgrade the WisVote voter registration database in anticipation of substantial increases in voter registration and absentee ballot requests for the November election; (2) increase memory capacity for MyVote—in particular for uploaded photo ID documents that required for online registration; and (3) add sufficient bandwidth and server capacity to support increased demand on the website, including a late surge in online absentee ballot requests. See Kennedy Report ¶¶ 42-48.
The WEC has straightforward authority to implement this requested relief. Second Goodman Decl., Ex. 30 (WEC RFA Resp.) at Nos. 9-10 (WEC admits that it is both feasible and that it has the authority to upgrade the memory, bandwidth, and server capacity of its electronic voter registration systems, including, but not limited to, WisVote and MyVote); see also Green Bay Dep. 105:11-107:20 & Teske Ex. 16 (Green Bay deponent describing city’s dependence on WEC to ensure that registration system works properly); SOAPF ¶ 125.
f. Ensure that secure drop boxes for in-person return of absentee ballots are available to every voter and increase in-person absentee voting opportunities that are safe and accessible, including, for instance, drive-through voting. Ø Order the WEC to mandate at least one secure drop box in every municipality at which voters can safely return their absentee ballots on or before election day without having to mail their ballots or go to the polling place. See Kennedy Report ¶¶ 138140.
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Ø Order the WEC to provide staff time to assist municipalities with identifying suitable locations for in-person absentee voting, drop-boxes, and drive-through locations. See Kennedy Report ¶¶ 84-86.
Ø Order WEC to issue guidance on the use and placement of drop boxes. The WEC is the proper party to implement this relief given its broad-ranging powers to establish standards for ballot containers and to collect information. Kennedy Dep. 115:21-116:3 (“[T]here’s a lot of resources that are available in the election communicate [sic] on drop box implementation that the WEC can direct towards municipalities to provide this safe alternative for voters.”); The WEC has the authority to “[p]rescribe the necessary standard sample forms and ballot containers . . . for all elections the results of which are reportable to the commission,” as well as “all other materials as it deems necessary to conduct the elections.” Wis. Stat. § 7.08 (1)(b) (emphasis added). The WEC also has the authority to collect information concerning “election administration,” Wis. Stat. § 5.05(14)(a); Wis. Stat. § 7.10 (10); Wis. Stat. § 7.15(13). The WEC provided guidance to local election officials that they could establish new drop boxes before the April election. Second Goodman Decl., Ex. 22 (Wis. Elections Comm’n, FAQs: Absentee Ballot Return Options: USPS Coordination and Drop Boxes (Mar. 31, 2020)); see also Green Bay Dep. 158:4-22 (expressing frustration that the WEC has not provided sufficient guidance on the appropriate type of drop box); SOAPF ¶ 97.33
g. Engage in a public education campaign to apprise the public on: how to request, vote, and return absentee ballots; the locations and times for in-person absentee voting; all early voting opportunities in each community; the provisions being made for safe inperson voting; and any changes in election day polling locations.
33 In the alternative, and at the very least, the Court should require the WEC to issue guidance to clerks detailing the (1) the desirability of drop boxes; (2) guidelines for municipalities to follow for determining the number and location of ballot drop boxes, equipment and supplies needed, and staffing and security requirements; and (3) the relationship between the expansion of wellpublicized early in-person voting hours and the reduction in the risk of exposure to COVID-19. See Kennedy Report ¶¶ 41, 89.
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Ø Order the WEC to initiate a comprehensive statewide voter education program in advance of the November election that (1) provides information on: how to request, vote, and return absentee ballots; the locations and times for in-person absentee and election day voting; and the provisions being made for safe in-person voting; (2) involves multiple media channels, including MyVote, radio, television, print, social media, and an online presence, and (3) is designed to reach all voters—including those with disabilities, without ready access to the internet, or those who are unable to effectively to navigate the MyVote Wisconsin website. See Kennedy Report ¶¶ 157164.
Ø Order the WEC to coordinate this voter education campaign with municipal and county clerks, community groups, political parties, and presidential and congressional campaigns. See id. ¶ 160.
Wisconsin law tasks the WEC with engaging in public education initiatives, and it compels municipal and county clerks to assist in these efforts. See Wis. Stat. § 5.05(12); Wis. Stat. § 7.10(7); Wis. Stat. § 7.15(9). Additionally, the WEC is tasked with maintaining a toll-free telephone line for electors to get information about the general election, access information regarding their registration status, current polling place locations, and report voter rights violations or fraud. Wis. Stat. § 5.05(13). As with educational campaigns, municipal and county clerks are required to assist the WEC in maintaining this telephone service. Wis. Stat. § 7.10(8); § 7.15(10). III. Plaintiffs’ Claims Are Justiciable.
Plaintiffs’ Claims Are Ripe and Present No Purcell Problem. The Intervening Defendants argue both that Plaintiffs’ motion is not ripe, because the risks of COVID-19 are still too speculative, Leg. Br. 109, but also that the motion comes too late, “given the short time frame” before the election, RNC Br. 4-6. They argue, in effect, that Plaintiffs’ claims are simultaneously not yet ripe and already overripe. These contradictory arguments, if accepted, would preclude federal courts from ever enforcing the constitutional and statutory rights of voters during a pandemic. That cannot be the law. Perhaps that is why the Intervening Defendants chose to make them in separate briefs. In truth, however, this
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incoherence simply underscores the conclusion that the time is right for this Court to promptly adjudicate Plaintiffs’ claims.
Plaintiffs’ claims are ripe. It is not too early for this Court to issue an injunction to protect the right to vote during the pandemic. The ripeness doctrine’s “underlying objective is to avoid premature adjudication and judicial entanglement in abstract disagreements.” Church of Our Lord & Savior Jesus Christ v. City of Markham, Ill., 913 F.3d 670, 676 (7th Cir. 2019). Ripeness is “peculiarly a question of timing,” id. (quotation omitted), and “depends on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration,’” Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983)). In election cases, courts are particularly wary of withholding relief on ripeness grounds precisely in order to avoid a situation where “[c]hallengers to election procedures [are] left without a remedy . . . because the election is too far underway or actually consummated prior to judgment.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 301 n.12 (1979). The Legislature argues that adjudication now would be premature because it requires “[s]peculation about the course of COVID.” Leg. Br. 110. But every expert in this case agrees that COVID will have a significant effect on the administration of the November election. Remington Dep. 34:21-35:3; Murray Decl. ¶¶ 47, 66-81; SOAPF ¶ 13. Both of the Commissioners who sat for depositions also expect COVID-19 to affect the November election, as do the election administrators for Milwaukee and Green Bay. Jacobs Dep. 151:3-8; Spindell Dep. 22:6-23:1; MEC Dep. 67:20-69:21, 95:22-96:1, 99:3-7, 100:23-101:8; Green Bay Dep. 86:21-87:15; 123:4-124:14; 124:18-125:1; 126:12-127:21; 158:4-159:3; SOAPF ¶ 14. The WEC
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has also acknowledged this likelihood by taking some measures to prepare to run the November election amid the continuing pandemic. See WEC Status Report; SOAPF ¶ 15.
The Legislature cites no evidence to the contrary. Instead it suggests, falsely, that the Swenson plaintiffs “admitted” that the effect of COVID-19 in November is speculative. To the contrary, Plaintiffs’ expert has provided undisputed testimony that the pandemic will “almost certainly be a significant risk of contracting and transmitting COVID-19” during the November election. Remington Dep. 34:21-35:3; SOAPF ¶ 6.34 The Legislature also argues Plaintiffs’ claims are not ripe because the WEC has taken steps since April to address the pandemic. Leg. Br. 109-10. But this only demonstrates that the effects of COVID-19 are entirely foreseeable, not speculative. If the WEC understands that the risk of COVID-19 in November justifies some action now, it is hard to understand why this Court should come to the opposite conclusion. Unsurprisingly, the WEC does not argue that this motion is unripe.
The Legislature’s ripeness argument impermissibly conflates the merits with the threshold issue of timing. The fact that WEC has taken various steps to address COVID-19 does not mean this motion is speculative; instead, it means that those steps must be assessed against the constitutional and statutory rights that Plaintiffs assert. Plaintiffs have shown that the WEC has not done enough and that its actions and plans are insufficient to safeguard Wisconsin
34 The Legislature cites to an objection that Plaintiffs lodged to a discovery request on vagueness grounds, but that is not a concession that COVID-19’s effect on the coming election is too speculative to adjudicate. See Leg. Br. 110. The Legislature also claims Plaintiffs “rely upon” an IHME model that predicted lower COVID-19 rates in November than April, id. (citing Swenson SOPF ¶ 216), but Plaintiffs do not endorse that model’s predictions and their expert has explained that the IHME model is now obviously wrong because it has not been updated to reflect recent data and consequently is currently underestimating COVID-19 rates by a factor of 4 to 5. Remington Dep. 35:19-36:10, 47:7-51:10.
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citizens’ voting rights. See infra 87-95. This dispute cannot be dismissed as “unripe” simply because the Legislature believes the steps WEC has taken are sufficient.
There is a live, concrete dispute among the parties now. The fact that COVID-19 will profoundly affect the November election is accepted by all except, perhaps, the Wisconsin Legislature and the Republican National Committee. Plaintiffs’ claims are ripe, just as the Court held the DNC plaintiffs’ claims were in its June 10, 2020 opinion. See Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 3077047, at *2-*4 (W.D. Wis. June 10, 2020), ECF No. 217.
Purcell does not prevent an injunction here. Nor is it somehow too late for this Court to issue an injunction. The RNC/RPW asks the Court to stay its hand because the election has drawn too near.35 RNC Br. 4-6. But that is wrong, both because there is sufficient time before the election and because the relief sought here would assist rather than disrupt the fair and orderly administration of the November election. In Purcell v. Gonzalez, the Supreme Court cautioned lower courts to be mindful of the “risk” that an injunction close to election day could “result in voter confusion and consequent incentive to remain away from the polls.” 549 U.S. 1, 7 (2006). The Supreme Court relied on that reasoning in granting a stay of part of this Court’s April order—issued five days before the April election—to the extent that it permitted absentee ballots to be returned after Election Day. The Court reasoned that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020).
35 The RNC makes no effort to reconcile its argument with the contradictory position of the Legislature, even though RNC “incorporate[d] by reference” the Legislature’s arguments. RNC Br. 1.
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Plaintiffs here do not seek relief on the election’s eve, but months in advance. This Court has been attentive to the need to move quickly, scheduling discovery and the preliminary injunction hearing to occur on a highly compressed schedule. See Scheduling Order of June 29, 2020. This case has moved as expeditiously as possible and, as the recent experience in these consolidated cases shows, appeals can move very rapidly too. Moreover, the relief Plaintiffs seek here does not create “voter confusion” and will produce no “incentive to remain away from the polls.” Purcell, 549 U.S. at 4-5. To the contrary, Plaintiffs are seeking relief that will make it safer for people to vote in person if they choose, and easier and more certain for people to vote absentee. For instance, a ruling permitting use of out-of-county poll workers—and the concomitant ability to operate more polling places—does not risk any voter confusion. Similarly, permitting absentee ballots to be counted before election day or requiring the WEC to take specific measures to make polling places safe and accessible do not create any risk of confusion whatsoever.36
The Supreme Court cases cited by the RNC to suggest that it is already too late do not support that proposition; all issued stays without any accompanying reasons. There is no basis to
36 To the extent that the RNC contends that relief is untimely because it would impose a burden on election administrators, see RNC Br. 5, it is noteworthy that the WEC itself does not make this argument. WEC I Dep. 17:20-21:5 (noting that the WEC was able to implement the Court’s ordered changes in a matter of days and, while not necessarily always the most comfortable way to operate, the WEC can “can work very, very quickly”). SOAPF ¶ 114. And administrators from Green Bay and Milwaukee indicated that some of the relief sought here against the WEC would in fact help them prepare for November. MEC Dep. 90:8-91:18 (health and safety measures), 111:9-113:18 (recruiting poll workers), 113:3-10 (out-of-county poll workers), 117:22-119:9, (counting ballots before election day), and 119:10-121:18 (upgrades to MyVote and WisVote); and Green Bay Dep. 60:14-19 (supplies), 104:4-104:12, 104:22-105:4, 110:5-18 (upgrades to WisVote & MyVote), 131:22-132:9 (recruiting poll workers), 143:21-144:22 (out-of-county poll workers), 148:11-22 (clearer guidance on public health best practices), 154:1-8 (PPE and sanitizing supplies), 158:4-159:3 (clearer guidance on drop box security), 162:8-163:6 (extended time to accept mail-in ballots). SOAPF ¶ 115.
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assume that they were based on Purcell concerns, rather than disagreement on the merits or other considerations. See Perry v. Perez, 565 U.S. 1090 (2011), subsequent op. vacating and remanding, 565 U.S. 388 (2012); Husted v. Ohio State Conference of NAACP, 573 U.S. 988 (2014); North Carolina v. League of Women Voters of N.C., 574 U.S. 927 (2014). The remaining case is non-precedential and held that the district court had erred on the merits; its comments about Purcell were plainly and self-consciously dicta. See Thompson v. Dewine, 959 F.3d 804, 812–13 (6th Cir. 2020) (granting stay pending appeal and then proceeding to make several additional “point[s]”).
In contrast to this grab-bag of non-precedents, the Supreme Court has made clear that courts do not need to stay their hands whenever an election draws near. In RNC v. DNC the Court itself ordered a change to Wisconsin’s absentee ballot deadline on the evening before the election, permitting voters to postmark their ballots by Election Day rather than shoulder the risk of unpredictably slow mail delivery. 140 S. Ct. at 1208; id. at 1209 (Ginsburg, J. dissenting) (describing the Court’s postmark deadline as a “novel requirement”). Plaintiffs seek precisely that remedy here, among other relief. It cannot possibly be too late for this Court to order now what the Supreme Court granted on the literal eve of the April election. To the contrary, RNC v. DNC demonstrates that there is no Purcell bar to measures that ensure lawfully cast ballots are properly counted or that ordinary means of voting are accessible despite the pandemic. Because those are precisely the kinds of relief Plaintiffs seek, and because there is plenty of time to adjudicate expedited appeals if necessary, the so-called Purcell principle has no purchase here.
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Cf. RNC, 140 S. Ct. at 1208 (staying part of this court’s order only because, in its view, it would “fundamentally alter the nature of the election”).37
Burford Abstention Does Not Apply. Ignoring the Court’s previous rulings, the Legislature renews the now twice-rejected argument that the Burford abstention doctrine bars Plaintiffs’ claims. See Leg. Br. 111-12; Democratic Nat’l Comm. v. Bostelmann, 20-cv-249-WMC, 2020 WL 1320819, at *7 (W.D. Wis. Mar. 20, 2020), ECF No. 21 (“Burford abstention is not an appropriate reason to duck this court’s obligation to protect voters’ rights”); Democratic Nat’l Comm. v. Bostelmann, 20-cv-249WMC, 2020 WL 3077047, at *7-8 (W.D. Wis. June 10, 2020), ECF No. 217 (Court was “not persuaded” that Burford abstention was appropriate the first time it was urged and “is [not] persuaded” the second time, either). The Court was right the first two times: Burford abstention does not apply here. A “federal court’s obligation to hear and decide cases within its jurisdiction is ‘virtually unflagging.’” Lexmark Int’l., Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (quoting Col. River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976)). Burford abstention “represents an extraordinary and narrow exception” to that duty. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) Under Burford, federal courts have discretion to decline jurisdiction in “two narrow situations.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011). “First, a federal court may choose to abstain when it is faced ‘with difficult questions of state law.’” Id. “Second,
37 The Supreme Court’s decision also explicitly noted that it was not “expressing an opinion on . . . whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” RNC, 140 S. Ct. at 1208.
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… when concurrent federal jurisdiction would be ‘disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’” Adkins, 644 F.3d at 504 (quoting New Orleans Pub. Serv., Inc. (“NOPSI”) v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)).
Defendants cannot rely on the first type of Burford abstention—the presence of difficult state law questions—because “[P]laintiffs here bring exclusively federal law claims.” DNC, 2020 WL 3077047, at *7 n.7. Defendants thus rely exclusively on the second type of Burford abstention, arguing that this Court’s intervention would disrupt Wisconsin’s effort to “establish a coherent policy” with respect to administering the November general election, which is a “matter of substantial concern.” Leg. Br. 111 (quoting NOPSI, 491 U.S. at 361).
However, reliance on the second basis of Burford abstention—disruption of state efforts to establish a coherent policy—is legally foreclosed. “[F]or th[e] second basis of Burford abstention to apply,” Adkins, 644 F.3d at 504, “two essential elements” must be satisfied: (1) “the state must offer some forum in which claims may be litigated,” and (2) “that forum must be special—it must stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims,” Prop. & Cas. Ins. Ltd. v. C. Nat. Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir. 1991) (emphasis added). “In other words, judicial review by state courts with specialized expertise is a prerequisite to Burford abstention.” Adkins, 644 F.3d at 504 (second emphasis added). Defendants make no attempt to satisfy these elements. As this Court already has recognized, Defendants cannot rely on ordinary Wisconsin state courts to adjudicate Plaintiffs’ claims, because that would “ignore[] that [state] courts are not specialized tribunals with a special relationship with voting rights issues.” DNC, 2020 WL 3077047, at *7; see Int’l College of Surgeons v. City of Chi., 153 F.3d 356, 365 (7th Cir. 1998) (rejecting claim that
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Burford required dismissal because, “unlike the situation in Burford, the administrative scheme at issue in th[e] case does not recognize any specialized expertise in the Circuit Court of Cook County”). Because Defendants are “unable to point to the type of specialized forum” required to decline jurisdiction, “the second of the Burford abstention rationales does not apply to this case,” id., and Burford does not bar Plaintiffs’ claims.38 IV. Plaintiffs Are Entitled to a Preliminary Injunction.
For the foregoing reasons, Plaintiffs are likely to succeed on the merits of their statutory and constitutional claims. Plaintiffs are entitled to a preliminary injunction because the other equitable factors likewise tilt heavily in their favor.
Plaintiffs Will Suffer Irreparable Harm in the Absence of an Injunction. In arguing that the equities preclude injunctive relief, see Leg. Br. 112-13, the Legislature altogether ignores that “[t]he threatened loss of constitutional rights”—and especially “the fundamental right to vote”—“constitutes irreparable harm.” DNC, 2020 WL 1638374, at *11; see also Swenson PI Br. 63-64. As Plaintiffs demonstrated extensively above, absent judicial intervention, countless Wisconsinites will have their right to vote threatened, and many will actually be disenfranchised, as they were in April. Many individuals with disabilities, moreover, will be denied the right to participate in our democracy on par with individuals without disabilities, directly contrary to the core purpose of the ADA—i.e., “[e]nsuring that disabled
38 Moreover, as this Court recently emphasized, “numerous decisions [have held] that Burford abstention is inappropriate in federal constitutional challenges to state election laws.” DNC, 2020 WL 3077047, at *7; see, e.g., Siegel v. LePore, 234 F.3d 1163, 1173 (11th Cir. 2000) (declining to dismiss under Burford in case “target[ing] certain discrete [election] practices set forth in a particular state statute”); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981) (observing that “[t]he delay inherent in abstention is least tolerable where” a case concerns “the fundamental right to vote”); Stein v. Thomas, 672 Fed. App’x 565, 570 (6th Cir. 2016) (Burford abstention not warranted in case “evaluating whether state election procedures violate First and Fourteenth Amendment election rights”).
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individuals are afforded an opportunity to participate in voting that is equal to that afforded others” so that these “individuals are never relegated to a position of political powerlessness.” Lamone, 813 F.3d at 507.
The Legislature offers two throwaway arguments in response. First, it argues that Plaintiffs will not suffer irreparable harm because of “the Commission’s recent efforts” to address voting during the pandemic. Leg. Br. 113. As the Legislature itself recognizes, this is simply a recycled version of its (erroneous) ripeness argument. Regardless, while Plaintiffs are certainly mindful and appreciative of WEC’s efforts, the WEC has not done enough—and in the case of statutes, cannot do enough, absent judicial intervention—to protect the voting rights of Wisconsin’s citizens. The Legislature’s second argument confuses the injury here. Unlike in Rural Cmty. Workers All. v. Smithfield Foods, Inc., 2020 WL 2145350 (W.D. Mo. May 5, 2020), where the claimed injury was “potentially contracting COVID-19,” id. at *9-10, the injury here is an irreparable loss of the right to vote in the November 3 election and the stigma and inequity that comes with disparate treatment of voters with disabilities. And any suggestion that voting will be easier in November because the virus is under control is inconsistent with reality.
The WEC’s Efforts to Date Will Not Prevent Irreparable Harm to Plaintiffs. Plaintiffs have amply established that administering the November 3 election will present an unprecedented challenge for the WEC. The WEC itself has noted that turnout in presidential elections has lately surpassed 3 million votes, and that Wisconsin could see more than 1.8 million requests for absentee ballots by mail, a volume which would create “terrific challenges.” April 7 Absentee Voting Report, at 12-13; SOAPF ¶ 46. It has projected that more than twice as many total ballots will be cast in November as were cast in April. April 7 Absentee Voting Report, at 13; SOAPF ¶ 47. There will almost certainly be a significant risk of contracting and
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transmitting COVID-19 in Wisconsin around that date. Remington Dep. 34:21-35:3; SOAPF ¶ 6. Since Plaintiffs’ opening brief was filed, the daily infection rate in Wisconsin has climbed to 1,170 cases a day. Remington Dep. 35:11-18; SOAPF ¶ 7. A statistical analysis of the April election found “that approximately 38,000 people statewide (more than 1 percent of registered voters) did not vote who otherwise would have done so in the absence of COVID-19.” Fowler Report at 9. In areas of the state where COVID-19 infection rates were higher, at least 8.4 percent of voters were deterred from voting. Fowler Report at 10. Based on this analysis and the continuing increase in infection rates, there is almost certain to be a significant risk of contracting and transmitting COVID-19 during the November 3, 2020 election. See Remington Report at 34:21-35:3; SOAPF ¶ 6.
Given these extraordinary circumstances, the WEC must take every action within its authority to ensure that the widespread disenfranchisement that plagued the April election does not recur. Mr. Kennedy explains that the number of local election officials in Wisconsin highlights the need for clear and strong leadership from the WEC. Kennedy Dep. 30:7-31:4. Defendant Wolfe—speaking on behalf of the Commission—appears to agree, describing the WEC’s role as providing the “framework” for local officials to follow and implement. WEC II Dep. 151:21-25. But remarkably, the WEC has not, to date, even taken a position on the question of whether the risk of COVID-19 transmission should factor into its planning for the November election. WEC I Dep. 23:8-24:15; SOAPF ¶ 86; see Defs. RFA Resp. No. 20 (WEC “does not have knowledge or information” to admit whether there is a significant risk to human health associated with in-person voting during the COVID-19 pandemic). And, on at least some aspects of relief sought by Plaintiff, the Commission’s “deadlock” is unlikely to change “absent instruction from a court or the Legislature.” Jacobs Dep. 120:2-19; SOAPF ¶ 107.
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The WEC has likewise made clear that it simply cannot or will not address many of the
breakdowns Plaintiffs have identified:
• Statutory Requirements: The WEC acknowledges that it has no authority to modify statutory deadlines or requirements. WEC Status Report at 15. The WEC thus cannot address any of Plaintiffs’ claims seeking such relief. And its Chair has testified that an absence of “political will” will prevent the Legislature from taking the steps necessary to ensure a safe election in November. Jacobs Dep. 99:8-100:4.
• Absentee Ballot Receipt: The Status Report does not mention that nearly 80,000 validly cast ballots did not arrive by election day in April and offers no plan to deal with a likely recurrence of this catastrophic breakdown in November. The WEC does not suggest any plan to request a legislative or executive solution.39
• Certification Requirement: The Status Report is silent on the question of workarounds to the witness-certification requirement. The WEC does not suggest actually workable ways for voters to overcome the documented difficulties with the requirement, nor does it evaluate the success (or failure) of the methods it originally suggested. See supra 6, 14-19, 44-46.
And while the WEC has taken some limited steps or announced plans to address certain
other issues, its current plans are insufficient to cure the known defects and ensure that each
Wisconsin voter has the opportunity to cast a safe and effective ballot.
In-Person Voting The WEC has thus far failed to take adequate action to correct the problems with unsafe
in-person voting opportunities that plagued the April election. Remarkably, it has not updated or
created any new health guidelines or safety standards since the April election. See WEC Status
Report at 4. And when asked if the WEC had issued any health guidance for the November
election, Defendant Wolfe, speaking on behalf of the Commission, said that it would be a “fool’s
39 Green Bay’s deponent also testified that her “biggest worry” is the election night challenges inherent in counting the surge of absentee ballots without a high speed tabulator, and noted that “[i]n April, with all the absentees we had, we were given multiple days to get those in the tabulator.” Green Bay Dep. 124:1-124:11; see also id. 162:10-163:6.
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errand” to do so at this stage. WEC II Dep. 52:13-17; SOAPF ¶ 88. Although the WEC directed the use of $500,000 of CARES Act grant money to secure and distribute sanitation supplies, see WEC Status Report at 4, it has not taken any steps to ensure that polling places implement adequate safety measures, including regarding layout, distancing, PPE, and sanitization practices, or special voting opportunities for at-risk populations. See WEC II Dep. 50:4-51:24; SOAPF ¶ 89. Because Wisconsin elections cannot be uniformly safe without leadership from the WEC to mitigate health risks associated with in-person voting activities, the Court should grant Plaintiffs’ requested relief. See Kennedy Dep. 71:4-12; SOAPF ¶ 108. Indeed, local officials have confirmed that they need and will follow WEC guidance.
Likewise, the WEC has yet to take the comprehensive action necessary—and within its authority—to address poll worker shortages for November, which are likely to be exacerbated by increased voter participation during the presidential general election. SOAPF ¶ 48; Swenson SOPF ¶ 237. According to the WEC, to address November poll worker shortages it plans to “urge counties and municipalities to solicit election inspectors,” compile training protocols, provide materials to local election officials to help them recruit workers, and promote the need for poll workers through a widget on MyVote, as well as earned and social media. See WEC Status Report at 11-12; see also WEC I Dep. 77:1-8 (surveying municipalities to identify poll workers shortages); SOAPF ¶ 90. It has pointedly not announced that it plans to create “a pool of reserve poll workers who can be trained ahead of time to serve in the event of an unplanned, critical lack of poll workers on election day,” March 31, 2020 WEC Meeting Notice 12-13; SOAPF ¶ 90, as it discussed doing for April. See, e.g., Green Bay Dep. 141:20-142:7 (stating that Green Bay is not aware of WEC doing anything actively to reach out to voters and encourage them to be poll workers.); SOAPF ¶ 95. And the National Guard is not a sufficient
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backstop: the WEC has told municipalities “not to plan on them.” Green Bay Dep. 136:16137:22; SOAPF ¶ 94. Indeed, when Green Bay recently requested National Guard assistance at the polls for the August election, the WEC informed the city’s clerk it could not receive the level of support requested, and that the WEC “[does not] know if they’ll be trained.” Id. at 70:1771:13; SOAPF ¶ 93. Moreover, the WEC’s current efforts are proving to be deficient now in the lead up to the August primary election, which will have far fewer participants—by orders of magnitude—than the November general election. See SOAPF ¶ 92 (“The City of Sun Prairie will be consolidating from eight polling places down to one polling place for the Tuesday, Aug. 11 Fall Partisan Primary because of Election Official shortages resulting from COVID-19.”).
Accordingly, the approach that the WEC has outlined to address poll worker shortages for November is inadequate—particularly given the number of municipalities that may once again have to close numerous polling locations for lack of poll workers. See MEC Dep. 111:2112:18 (explaining that Milwaukee Elections Commission is concerned about poll worker shortages in November and that assistance from the WEC would allow the city to maintain as many polling locations as it intends to offer); Kennedy Dep. 30:19-31:4 (noting that the number of local officials highlights the need for a leadership role from the WEC); Green Bay Dep. 123:6-19 (noting that lack of poll workers is the biggest concern for November); SOAPF ¶ 50. In order to ensure that municipalities have the staff they need to maintain an adequate number of polling locations, the Court should require that the WEC immediately initiate the coordinated approach to poll worker recruitment that Plaintiffs outline above, see supra 72.
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Absentee Voting During the April election, tens of thousands of voters were disenfranchised due to failures throughout the absentee voting process. The WEC is currently failing to address some critical systemic problems that persist, including: measures to ensure that voters receive their ballots and have the opportunity to correct issues with their ballot request forms; upgrades to WisVote and MyVote; and methods to allow voters with print disabilities to vote using an absentee ballot. See also Kennedy Dep. 66:13-16 (“[T]here were problems with [sending absentee ballots in] April; that there undoubtedly [will] be problems with November because the volume will increase.”) See Kennedy Dep. 66:13-16; SOAPF ¶ 65. Receiving Absentee Ballots: Thus far, the WEC has failed to take appropriate action to ensure that voters will receive their absentee ballots and have the opportunity to correct issues with their ballot request forms. The WEC has established an intelligent barcode system, see WEC Status Report at 6, and it identifies deploying intelligent barcodes as one of the critical steps it has taken to prevent the kind of absentee ballot delivery problems that afflicted the April election. See WEC I Dep. 98:22-99:17; see also id. at 93:9-11 (“[W]ithout intelligent mail barcodes, there, we don’t have any data to know if the voter did eventually receive their ballot”); SOAPF ¶ 99. However, the WEC does not know how many municipalities will use intelligent bar codes. WEC I Dep. 58:8-18; SOAPF ¶ 98. And, as Mr. Kennedy testified, the Commission has not begun educating voters about intelligent barcodes or how to use them to track ballots. Kennedy Dep. 93:9-94:4; SOAPF ¶ 100. Relatedly, the WEC has discussed the “pending absentee” feature in WisVote for over two months, see April 7, 2020 Absentee Voting Report at 34, but has yet to implement the feature, see WEC Status Report at 9-10; SOAPF ¶ 101. And finally, the WEC does not appear to have taken any action to establish clear, uniform procedures to ensure that voters whose absentee ballot requests are defective receive notice and instructions
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on how to correct deficiencies. Without a judicial order—particularly regarding the need to use intelligent barcodes—voters will once again face a multitude of problems requesting and timely receiving absentee ballots.
Drop Boxes. While the WEC has made CARES Act subgrant money available for the purchase of “additional absentee ballot drop boxes,” it has not issued any guidance or directive regarding drop boxes and/or drive-through voting in anticipation of the November election. See WEC Status Report at 5; Green Bay Dep. 158:4-158:22; WEC II Dep. 51:21-51:24; SOAPF ¶ 97. The Court should order the WEC to enact Plaintiffs’ proposed relief—namely, mandating at least one drop box per municipality, procuring such drop boxes for localities, and promulgating uniform, statewide standards for their placement and use, see supra 76-77 & n.33—so that voters have a safe and convenient means to ensure timely receipt of their ballots and without risking their safety. See Kennedy Report ¶¶ 81, 85, 138-40.
WisVote and MyVote. The WEC has not affirmatively stated that these systems are being upgraded to handle increased traffic associated with a general election and prevent outages, which have dogged the MyVote website since at least February 2020. See Goodman Decl., Ex. 21, Swenson ECF No. 21; Kennedy Report ¶¶ 44-46; SOAPF ¶ 102. Plaintiffs’ expert Kevin Kennedy reviewed the WEC Status Report and concluded that the WEC has simply not provided enough information to evaluate the sufficiency of their actions, including whether whatever they are doing “scales up” to meet November demand, which will be twice as high as in April. See Kennedy Dep. 64:13 -65:4; SOAPF ¶ 106. When asked about upgrades to server capacity on MyVote, Megan Wolfe testified that WEC staff are doing “load testing” and looking at “server structure,” but did not clarify whether explicit steps were being taken to ensure that both MyVote and WisVote are being upgraded to handle surges in traffic. WEC II Dep. 101:17-102:11;
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SOAPF ¶ 103. Accordingly, the Court should require the WEC to take the necessary steps to prepare for the inevitable demand for absentee ballots. See supra 74-45.
Accessible Absentee Ballot: Finally, the WEC has not committed to establishing a procedure to allow voters with print disabilities to have an accessible means of receiving, marking, and submitting absentee ballots privately and independently.
Voter Education Up to this point, the WEC has not taken proper action to provide voters with information about their voting options and the steps the WEC is taking to allow for safe voting opportunities. See, e.g., Kennedy Dep. 113:1-5 (“I don't think voters have enough information about the absentee voting process . . . .”). In its June 25 Status Report, the WEC briefly states that it is working with an advertising agency to produce videos, web content, social media content, and other outreach documents and tools to educate voters. See WEC Status Report at 12. And the WEC has admitted that it is feasible, and that it has the authority, to create a public education campaign that provides information on: how to request, vote, and return absentee ballots; the locations and times for in-person absentee and election day voting; and the provisions being made for safe in-person voting. Defs. RFA Resp. Nos. 19-20; SOAPF ¶126. But Defendant Wolfe’s testimony was not clear as to whether the WEC had established a budget, set a start date, identified the campaign’s communications channels, or designed a coordination plan to engage outside nonprofits and political campaigns. See WEC II Dep. 57:3-65:25; SOAPF ¶ 104. The lack of clarity on the WEC’s voter education campaign is all the more concerning because Plaintiffs’ expert, Mr. Kennedy, explained that all of the recommendations in his report on how to improve Wisconsin elections are conditioned on proper communication with the public about the measures the WEC is taking to ensure voting is safe and the various opportunities that voters have to access the ballot. Kennedy Dep. 74:9-15. With the election only four months away, it is
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essential that the Court direct the WEC to create a clear and comprehensive voter education campaign that explains safety measures and voting opportunities, and includes outreach to voters with disabilities, without ready access to the internet, or voters who are unable to effectively navigate MyVote.
As described in detail in Section II above, the WEC has the authority to do far more. At this point, judicial intervention compelling the WEC to use its authority to protect voting rights is warranted.
The Public Interest Favors an Injunction. The Legislature’s argument that the public interest favors denying injunctive relief amounts to an argument that a state’s interest in enforcing its election laws is always supreme. See Leg. Br. 113-14. That is incorrect, as this Court held in April. DNC, 2020 WL 1638374, particularly because those laws were not written (and have not been revised) to deal with the exigencies of a pandemic. In any event, the injunctive relief here is narrowly tailored to further the public’s interest in “permitting as many qualified voters to vote as possible,” Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012), while protecting the State’s interest in election integrity and predictability. Thus, for example, Plaintiffs seek relief far in advance of the November election so that the public has advance notice of any changes. Plaintiffs seek to make in-person voting safe, which will benefit voters and State officials alike. Plaintiffs seek minimal extensions to various deadlines to allow the State’s election system to accommodate the new reality of voting during a pandemic—i.e., mass voting by mail—and safeguard the public’s faith in the legitimacy of the election. And Plaintiffs proposed modest changes for voters with disabilities will make Wisconsin’s system more equitable while either preserving the State’s
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CONCLUSION For the foregoing reasons, the Court should grant Plaintiffs’ motion for preliminary injunction and enter the attached proposed order. The Court should further deny the Legislature’s motion to dismiss.
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Respectfully submitted,

/s/ Rachel E. Goodman Rachel E. Goodman The Protect Democracy Project 115 Broadway, 5th Fl. New York, NY 10006 (202) 997-0599 rachel.goodman@protectdemocracy.org
Sara Chimene-Weiss The Protect Democracy Project 530 E McDowell Rd., Suite 107-222 Phoenix, AZ 85004 (202) 934-4237 sara.chimene-weiss@protectdemocracy.org
Laurence M. Schwartztol The Protect Democracy Project 15 Main St., Suite 312 Watertown, MA 02472 (202) 856-9191 larry.schwartztol@protectdemocracy.org
Farbod Kaycee Faraji* Rachel F. Homer Cameron Kistler THE PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Ave. NW, Suite # 163 Washington, D.C. 20006 (202) 579-4582 farbod.faraji@protectdemocracy.org rachel.homer@protectdemocracy.org cameron.kistler@protectdemocracy.org *Admitted to practice in California, not D.C.; practice consistent with D.C. App. R. 49(c)(3).
Douglas M. Poland State Bar No. 1055189 Rathje Woodward LLC 10 E Doty Street, Suite 507 Madison, WI 53703 (608) 960-7430 dpoland@rathjewoodward.com

Anton Metlitsky Leah Godesky Yaira Dubin O’Melveny & Meyers LLP 7 Times Square New York, NY 10036 (212) 326-2000 ametlitsky@omm.com lgodesky@omm.com ydubin@omm.com
Molly M. Lens O’Melveny & Meyers LLP 1999 Avenue of the Stars, Suite 800 Los Angeles, CA 90067 (310) 553-6700 mlens@omm.com
Jason Zarrow O’Melveny & Meyers LLP 400 S. Hope Street, 18th Floor Los Angeles, CA 90071 (213) 430-6000 jzarrow@omm.com
Jonathan Manes Roderick & Solange MacArthur Justice Center 160 E Grand Ave, Sixth Floor Chicago, IL 60611 (312) 503-0012 jonathan.manes@law.northwestern.edu
Jeffrey A. Mandell State Bar No. 1100406 Stafford Rosenbaum LLP 222 West Washington Avenue P.O. Box 1784 Madison, WI 53701-1784 (608) 256-0226 jmandell@staffordlaw.com
Counsel for Plaintiffs

Dated: July 31, 2020

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 Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 1 of 73

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-249-wmc

SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No.: 3:20-cv-278-wmc

CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.

Civil Action No. 3:20-cv-340-wmc

Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 2 of 73

JILL SWENSON, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants

Civil Action No. 3:20-cv-459-wmc

REPLY BRIEF OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN IN SUPPORT OF MOTION FOR RENEWED PRELIMINARY INJUNCTION
_____________________________________________________________________________________

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Table of Contents
Page
Table of Authorities ...................................................................................................................... iii
Table of Abbreviations ............................................................................................................... viii
INTRODUCTION AND SUMMARY OF THE ARGUMENT ................................................... 1
REPLY STATEMENT OF FACTS............................................................................................... 8
A. The pandemic’s trajectory and magnitude. ................................................ 9
B. The State’s failure to prepare for the November election........................ 12
C. The continuing USPS service problems. ................................................. 18
ARGUMENT IN REPLY ............................................................................................................ 23
I. This Court should extend the injunctive relief granted for the April 7 election to the November 3 general election........................................................ 23
A. This Court should again extend the election-day ballot-receipt deadline. ................................................................................................... 24
B. This Court should again extend the online registration deadline, and should include by-mail registration in that extension. ...................... 34
II. This Court should again grant limited injunctive relief against Wisconsin’s witness-certification requirement, modified to resolve the Seventh Circuit’s concerns. ............................................................................................... 36
A. Plaintiffs’ requested relief is fully consistent with Luft. .......................... 37
B. Plaintiffs’ requested relief would not “flout” Seventh Circuit or Supreme Court stay orders....................................................................... 42
III. This Court should partially enjoin the ID and proof-of-residency requirements as applied to those who attest under penalty of perjury that they cannot meet those requirements after reasonable efforts. ............................ 45
IV. This Court should order defendants to take further steps to ensure all Wisconsin voters have access to safe and secure in-person voting opportunities. ....................................................................................................... 48
V. The challenged provisions violate federal due process guarantees. .................... 49
VI. The challenged provisions violate equal protection guarantees. ......................... 53

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Page VII. Plaintiffs meet all other requirements for their requested preliminary
injunction relief. ................................................................................................... 57 A. Plaintiffs satisfy all other preliminary injunctive criteria. ....................... 57 B. As this Court repeatedly has ruled, it has Article III jurisdiction
and should not abstain in favor of state remedies. ................................... 58 CONCLUSION............................................................................................................................ 62

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Table of Authorities
CASES
Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) ...................................................................................................61
Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002) .......................................................................................54
Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................................................33
Bush v. Gore, 531 U.S. 98 (2000).......................................................................................................53, 54, 55
Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597 (7th Cir. 2016) .............................................................................................47, 50
Common Cause S. Christian Leadership Conference of Greater L.A. v. Jones, 213 F. Supp. 2d 1106 (C.D. Cal. 2001) ...................................................................................54
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008).................................................................................................................39
DNC v. RNC, Nos. 20-1538 & 20-1546, slip op. (7th Cir. Apr. 3, 2020) ............................................1, 17, 42
Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) ........................................................26
Fla. Democratic Party v. Detzner, No. 4:16-cv-607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016) ............................49
Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016)....................................................................................27
Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ...............................................................................................60
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ........................................................................................... passim
Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) ........................................................................................... passim
Frank v. Walker, Nos. 16-3003 & 16-3052, 2016 WL 4224616 (7th Cir. Aug. 10, 2016) .................................40

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Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016).....................................................................................27
Goldstein v. Sec’y of Commonwealth, 142 N.E.3d 560 (Mass. 2020) ..................................................................................................27
Grayned v. City of Rockford, 408 U.S. 104 (1972)...........................................................................................................47, 50
Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000) .............................................................................................47, 50
Hill v. Stone, 421 U.S. 289 (1975).................................................................................................................30
Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) ...................................................................................................54
In re Gen. Election 1985, 109 Pa. Commw. 604 (1987) ...................................................................................................27
Jefferson v. Dane Cty., No. 2020AP557-OA (Wis. 2020) ............................................................................................55
Kusper v. Pontikes, 414 U.S. 51 (1973).......................................................................................................30, 35, 36
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) ...................................................................................................54
Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) .................................................................................................53
Libertarian Party of Ill. v. Cadigan, No. 20-1961, 2020 WL 3421662 (7th Cir. June 21, 2020) ................................................26, 27
Little v. Reclaim Idaho, No. 20A18, 2020 WL 4360897 (July 30, 2020) ......................................................................45
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) ........................................................................................... passim
Marston v. Lewis, 410 U.S. 679 (1973)...........................................................................................................29, 30
Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018) ....................................................................................49

Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 7 of 73Page
Mathews v. Eldridge, 424 U.S. 319 (1976)...........................................................................................................49, 51
Merrill v. People First of Ala., No. 19A1063, 2020 WL 3604049 (July 2, 2020) ............................................................ passim
Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................................................................................60
Miller v. Thurston, No. 20-2095, 2020 WL 4218245 (8th Cir. July 23, 2020).......................................................26
Obama for Am. v. Cuyahoga Cty. Bd. of Elections, No. 1:08-cv-562-PAG(N.D. Ohio Mar. 4, 2008).....................................................................27
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ...................................................................................................27
One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016), aff’d in part, vacated in part, rev’d in part, 963 F.3d 665 (7th Cir. 2020).............................................................................................5
People First of Ala. v. Merrill, No. 2:20-cv-619-AKK, 2020 WL 3207824 (N.D. Ala. June 15, 2020) ..................................42
People Not Politicians Or. v. Clarno, 2020 WL 3960440 (D. Or. July 13, 2020), stay denied, Order, No. 20-35630 (9th Cir. July 23, 2020) ..............................................................................................................6
Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 936 F.2d 319 (7th Cir. 1991) ...................................................................................................61
Purcell v. Gonzalez, 549 U.S. 1 (2006)............................................................................................................. passim
Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) ....................................................................................50, 53
Reynolds v. Sims, 377 U.S. 533 (1964).....................................................................................................23, 24, 26
RNC v. DNC, 140 S. Ct. 1205 (2020) ..................................................................................................... passim
Rosario v. Rockefeller, 410 U.S. 752 (1973).....................................................................................................29, 30, 35

Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 8 of 73Page
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018).........................................................................................49
SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010) ...................................................................................................62
Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), superseded as moot, 473 F.3d 692 (6th Cir. 2007) ........................................................................................................................................54
Zessar v. Helander, No. 05 C 1917, 2006 WL 642646 (N.D. Ill. Mar. 13, 2006) ...................................................49
Zinermon v. Burch, 494 U.S. 113 (1990).................................................................................................................51
CONSTITUTION AND STATUTES U.S. Const. Amend. I ............................................................................................................. passim U.S. Const. Amend. XIV ....................................................................................................... passim Wis. Stat. § 5.05(1) ..................................................................................................................48, 59 Wis. Stat. § 5.05(5t) .........................................................................................................................1 Wis. Stat. § 6.86 (1)(b)...................................................................................................................21 Wis. Stat. § 6.86(2)(a)....................................................................................................................55 Wis. Stat. § 6.87(4)(b)(2) ...............................................................................................................55 Wis. Stat. § 6.87(9) ..................................................................................................................52, 56 Wis. Stat. § 7.15 (1) (cm).........................................................................................................21, 44 Wis. Stat. § 7.70(3)(a)....................................................................................................................25 RULES Fed. R. Civ. P. 30(b)(6)..................................................................................................................26 OTHER AUTHORITIES Alfred W. Crosby, American’s Forgotten Pandemic: The Influenza of 1918
(2003) .......................................................................................................................................11 Catherine Arnold, Pandemic 1918: Eyewitness Accounts From the Greatest
Medical Holocaust in Modern History (2018).........................................................................11

Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 9 of 73Page
John M. Barry, The Great Influenza: The Epic Story of the Deadliest Plague in History (2004) ..........................................................................................................................11
Laura Spinney, Pale Rider: The Spanish Flu of 1918 and How It Changed the World (2017) ............................................................................................................................11
Linda Greenhouse, The Supreme Court Fails Us, N.Y. Times (Apr. 9, 2020)..............................28
Richard L. Hasen, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, 19 Election L.J. (forthcoming 2020) ..................................................................................................................28
State Legislatures, VOPP: Table 11: Receipt and Postmark Deadlines for Absentee Ballots (June 15, 2020).............................................................................................32
U.S. Postal Service Office of Inspector General Management Alert: Timeliness of Ballot Mail in the Milwaukee Processing & Distribution Center Service Area (Report Number 20-235-R20, July 7, 2020) ............. passim

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Table of Abbreviations

DMV

The Wisconsin Division of Motor Vehicles of the Wisconsin Department of Transportation

DNC

The full legal and juridical name of plaintiff DNC is DNC Services Corp./Democratic National Committee, but its d/b/a and trade names “Democratic National Committee (DNC)” are familiar and non-confusing, and used throughout this brief and accompanying submissions.

DNCFOF DNC/DPW’s accompanying proposed findings of fact

DPW

Democratic Party of Wisconsin

Frank I

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)

Frank II

Frank v. Walker, 819 F.3d 384 (7th Cir. 2016)

Frank III Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc)

IDPP

The Wisconsin Identification Petition Process, which is administered by the DMV. The IDPP administers Wisconsin’s chosen “safety net” to the voter ID law.

RNC

Republican National Committee

RNC v. DNC Republican Nat’l Comm v. Democratic Nat’l Comm., Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part 5-4, 140 S. Ct. 1205 (Apr. 6, 2020) (per curiam).

RPW

Republican Party of Wisconsin

SDNCFOF Supplemental DNC/DPW’s proposed findings of fact

USPS

U.S. Postal Service

WEC

Wisconsin Elections Commission

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INTRODUCTION AND SUMMARY OF THE ARGUMENT This brief replies to the July 20 briefs filed by the “WEC defendants” (ECF No. 444), the RNC and RPW (ECF No. 455), and the Wisconsin Legislature (ECF No. 454) in opposition to the DNC and DPW’s July 8 motion for a renewed preliminary injunction (ECF Nos. 252 (motion), 420 (brief)). The first two defense briefs require relatively little reply. The “WEC defendants take no position with respect to the injunctive relief the plaintiffs seek in regard to the statutes,” but emphasize they are “not allowed to afford any aspect of such relief, including guidance or rulemaking, absent legislative action or a judicial order addressing the statutes.” ECF No. 444 at 32. The WEC defendants acknowledge that, if this Court grants renewed injunctive relief with respect to these statutes, they “will be responsible for issuing appropriate guidance to implement that decision,” consistent with their duty to “administer[] and enforce[e] those statutes.” Id. at 16 (citing Wis. Stat. § 5.05(5t)). The RNC and RPW have only filed a six-page opposition, which largely “incorporate[s] by reference” the “comprehensive[]” arguments in the Wisconsin Legislature’s brief. ECF No. 455 at 1. They add several brief “points,” including that this Court has no jurisdiction to do anything here because there is no “state action”―the “difficulties” encountered by plaintiffs are caused by the pandemic, not “by the State.” Id. “Wisconsin,” they reason, “is not responsible for COVID-19 or private citizens’ responses to it.” Id. The RNC and RPW do not mention that this Court forcefully rejected the identical “state action” defense in its April 2 Opinion and Order: “Wisconsin cannot enforce laws that, even due to circumstances out of its control, impose unconstitutional burdens on voters.” ECF No. 170 at 29 n.14.1 The RNC-RPW also rely on the
1 Clarified & amended, ECF Nos. 179-80 (Apr. 3, 2020), stayed in part on other grounds sub nom. DNC v. RNC, Nos. 20-1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct.
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argument that “[p]laintiffs cannot even demonstrate that a single voter was infected during April’s
in-person election”―as if a “no-one-died” defense could ever be appropriate in a voting rights case.2 And they argue it is too late under Purcell for this Court to take any action because the
general election is now fewer than 100 days away (ECF No. 455 at 4-6), even though the
Legislature simultaneously argues that, because the election is still nearly 100 days away,
plaintiffs’ claims are “speculative” and “unripe” (ECF No. 454 at 108-10)―another example of the “too soon”/”too late” defense rejected by this Court in its June 10 ripeness decision. See ECF
217 at 9.
That leaves the Legislature’s 125-page brief, which will be the focus of most of this reply
brief. This brief follows the same order of argument as the DNC-DPW’s opening brief,
demonstrating first that this Court should again extend the election-day ballot receipt deadline and
the online registration deadline (and extend the by-mail registration deadline as well). See Part I.
The reply next addresses the challenged witness-certification, voter ID, and proof-of-residence
provisions, demonstrating that this Court should grant partial, as-applied injunctive relief to
provide the constitutionally required “safety net” for those who cannot meet these requirements
through reasonable efforts. See Parts II-III. Remaining sections of the reply will address the
1205 (Apr. 6, 2020). 2 Seventy-one in-person voters and poll workers tested positive for COVID-19 statewide
following the election, though given the nature of the virus it could not be determined whether they contracted it before the election, at the polls, or thereafter. DNCFOF ¶ 6. Different studies using different methodologies have reached differing conclusions. Id. ¶ 115-16. And due to the continuing lack of widespread testing, the significant spread by symptomless carriers, and the State’s decision at the end of April to stop attempting to determine whether or how many people had contracted the virus as a result of their participation in the election, we likely will never know the full extent of infection that followed. On the other hand, there is strong evidence that the pandemic suppressed voter turnout in the April primary and will likely have an even greater deterrent effect on turnout in November, especially among groups like senior citizens, voters of color, and economically depressed voters. See generally Burden Decl. at 6-7 (ECF No. 418); Fowler Rpt. at 13-16 (Dkt. 3:20-cv-459, ECF No. 46).
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polling place issues, DNC-DPW’s due process and equal protection claims, and the other requirements for preliminary injunctive relief. See Parts IV-VII-A. The reply closes by refuting several defenses the Legislature has recycled from previous unsuccessful motions, including standing, ripeness, and Burford abstention. See Part VII-B.
Before turning to their specific claims and requested relief, the DNC and DPW address several overarching flaws in the Legislature’s brief.
The present reality. Throughout its brief the Legislature describes a world that does not exist, in which the pandemic is now on the wane, “Wisconsin has largely reopened,” the U.S. Postal Service (“USPS”) will “ensure” that its “isolated issues” with mail service in Wisconsin’s April 7 election “do not recur in November,” and it will be “easy” for everyone to vote either in person or by absentee ballot in the general election. Leg. Br. at 5, 29, 55. That is not remotely the reality in which this Court must decide the plaintiffs’ motions. As discussed below, the pandemic is getting worse, not better, in part because the intervening defendants and their allies forced Wisconsin to reopen too early. Many problems encountered in April have not been resolved and will only get worse with the expected surge of absentee voting in October and November; the Office of the Inspector General of the USPS has issued a dire warning about mail delays in Wisconsin and elsewhere in the upcoming November election;3 and there is a growing chorus of alarm about the risks of widespread disenfranchisement in November.
The “prudent voter.” The Legislature (as well as the RNC-RPW) refuse even to acknowledge that many Wisconsin citizens were unable to vote in April because of the challenged
3 See USPS Office of Inspector General’s Management Alert: Timeliness of Ballot Mail in the Milwaukee Processing & Distribution Center Service Area (Report Number 20-235-R20, July 7, 2020) (“IG Report”), https://www.uspsoig.gov/sites/default/files/document-libraryfiles/2020/20-235-R20.pdf; see also Suppl. Umberger Decl. Ex. 30.
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provisions and face similar risks in the November election. In fact, the intervening defendants appear to contend there are no such voters—or at least none who have been identified to date. Leg. Br. at 40-41; RNC Br. at 4. We repeatedly are told that those who encounter such difficulties have only themselves to blame―they will have “procrastinated” too long, “voluntarily fail[ed] to act” sooner; “fail[ed] to take timely steps,” and failed to behave in a “prudent” manner. Leg. Br. at 5356. The Legislature repeatedly admonishes that voting is “easy,” even during this pandemic, and that voters will encounter no difficulties so long as they are “prudent.” Id. at 34, 40, 60-61. To the extent there is any remaining “hypothetical voter” who has behaved “prudently” but still has problems, the Legislature adds (apparently in jest), “[t]hat hypothetical voter would be exceedingly unfortunate” and “extremely unlucky.” Id. at 40.
That is an appalling way for the Wisconsin Legislature―the peoples’ elected representatives―to characterize the genuine problems their constituents faced in April and now face again in the general election. The multiple plaintiffs’ groups in these consolidated cases have collectively presented extensive record evidence of tens of thousands of voters who were either unable to cast a ballot that was ultimately counted or would have suffered that fate had this Court not acted when it did. There are, indeed, many “unlucky” and “unfortunate” fellow citizens who face genuine problems in voting during this pandemic. Id. To dismiss them all as “hypothetical voters” who probably did not try hard enough is offensive.
Luft and other recent appellate decisions. It would be an understatement to say the Legislature relies heavily on the Seventh Circuit’s June 29 decision in Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), literally citing to that decision over one hundred times in its brief. Luft, the Legislature insists, is “controlling” and “dispositive,” and “devastates Plaintiffs’ core theories.” Leg. Br. at 2, 25, 30, 63. But the Legislature almost entirely ignores the detailed analysis in our
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opening brief showing that Luft not only is consistent with our “core theories,” but in several
important respects strongly reinforces those theories. ECF No. 420 at 5-6, 8-9, 27-28, 34-44, 47-
48. To be sure, the Legislature at one point (at 26) dismisses the DNC and DPW’s reliance on Luft
as “remarkabl[e],” but it generally either ignores or mischaracterizes our key points about Luft,
including:
• Luft is a ringing re-endorsement of the Wisconsin federal district courts’ continuing jurisdiction and responsibility to hold the State of Wisconsin to its voting-rights promises, including in ensuring that its promised “safety nets” are “reliably implemented” and sufficiently explained and publicized to potential voters. 963 F.3d at 679; see also Frank v. Walker, 835 F.3d 649, 652 (7th Cir. 2016) (en banc) (per curiam) (“Frank III”) (directing Judge Peterson to “conscientiously” monitor the State’s compliance with voter ID injunctive relief “between now [August 2016] and the November 2016 election”); One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 964-65 (W.D. Wis. 2016), aff’d in part, vacated in part, rev’d in part, 963 F.3d 665 (7th Cir. 2020).
• Luft relies heavily on the Seventh Circuit’s unanimous en banc decision in Frank III, which was decided several months before the last presidential election (in August 2016). Yet the Legislature cites only once to Frank III in passing (at 46) for an innocuous proposition, entirely ignoring our detailed discussion of how Frank III applies in this presidential election year. See DNC-DPW Br. at 42-45.
• Luft reaffirmed that if citizens’ voting rights are in danger of being “severely restricted” on a widespread scale, “looking at the whole electoral system,” the State must have “compelling interests” for its restrictions and ensure they are “narrowly tailored” to help alleviate these widespread, systemic burdens on voting. 963 F.3d at 671-72 (emphasis added). Such an analysis confirms this Court should again extend the election-day receipt deadline and the online and by-mail voter registration deadline in order to alleviate these “severe” systemic problems.
• Luft also strongly reaffirmed the emphasis in Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) (Frank II) and Frank III on the “personal” nature of the right to vote and the “individual” entitlement to accommodation by the State. Luft and these earlier decisions emphasize that “voting rights are personal”; that this “personal” right “is not defeated by the fact that 99% of other people can [meet challenged requirements] easily”; that “[e]very citizen” has a “strong” right to receive “individual treatment”; that the State must “ensur[e] that every eligible voter” can vote with no more than “reasonable effort”; that the State cannot make it “unreasonably difficult” for anyone to vote; and that voters facing “high hurdles” must be provided with a genuine, functioning “safety net” so they can vote. Luft, 963 F.3d at 677-80; Frank III, 835 F.3d at 651; Frank II, 819 F.3d at 386; see also Luft, 963 F.3d at 669 (“the state must
5

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accommodate voters who cannot [comply with voting requirements] with reasonable effort”) (emphasis added). It is remarkable that, in a 125-page brief that cites Luft well over 100 times as a “controlling” decision, the Legislature never once uses the key phrases “safety net,” “voting rights are personal,” “individual treatment,” “entitled to an accommodation,” “high hurdles,” or “unreasonably difficult”―not once. The Luft that it describes is a caricature of the decision’s emphasis on “[e]very citizen’s interest in individual treatment.” 963 F.3d at 680.4
The Legislature takes similar liberties with other recent appellate decisions. In fact, it
claims that “every case” in the federal system that has reached appeal has “rejected any court-
ordered changes” in election procedures due to COVID-19. Leg. Br. at 3 (emphasis in original).
That is not so. Begin with the Supreme Court’s decision in RNC v. DNC, 140 S. Ct. 1205 (2020).
While that decision stayed part of this Court’s injunctive relief, it left intact this Court’s six-day
extension of the ballot-receipt deadline and approvingly relied on that extension in rejecting further
relief. Id. at 1206, 1208. And the Court of Appeals scorecard is mixed: some decisions have
rejected requests for temporary modifications in election procedures in response to the pandemic;
some have accepted such requests; some have stayed district court orders granting such relief and some have denied such stays.5
As-applied relief. The Legislature also badly mischaracterizes the nature of relief the
DNC and DPW are seeking, claiming they have not asked for any “as-applied relief.” Leg. Br. at
26; see also id. at 24, 27, 40. To the contrary, this entire case is an as-applied action―the DNC
and DPW do not seek to enjoin the challenged provisions in all circumstances and all elections,
4 To be fair, although the Legislature never once uses Judge Easterbrook’s key “safety net” phrase, Frank II, 819 F.3d at 387, it occasionally refers to the possible availability of a “failsafe” or “bypass.” Leg. Br. at 25, 40, 43, 45, 47, 49, 116-17. To the extent the Legislature means these as synonyms for “safety net,” we prefer and will use the Seventh Circuit’s own terminology.
5 See the Sixth and Seventh Circuit decisions discussed on pages 26-27 of this brief, together with the Ninth Circuit’s rejection of a motion to stay district court injunctive relief against certain petition signature requirements during the pandemic. See People Not Politicians Or. v. Clarno, 2020 WL 3960440, 6:20-cv-1053-MC (D. Or. July 13, 2020), stay denied, Order, No. 2035630 (9th Cir. July 23, 2020), ECF No. 14.
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but only as applied in the context and for the duration of the current global COVID-19 pandemic.
See Second Amend. Compl. ¶¶ 8-9; see also id. at 38-39, ECF No. 198-1. Moreover, although the
as-applied relief extending the challenged deadlines would apply to “all voters generally,” Leg.
Br. at 24, the DNC and DPW only seek partial relief from the witness-certification, voter ID, and
proof-of-residence provisions for the minority of voters who cannot meet these requirements with
“reasonable effort” under the standards of Frank II, Frank III, and Luft. See Second Amend.
Compl. ¶¶ 59, 64, 68. In other words, the DNC and DPW accept the general applicability of these
provisions, even in the midst of the pandemic, but seek as-applied relief for the subset of voters
who, at least for the duration of the pandemic, need the “safety net” promised in Frank II and
subsequent decisions.
The Legislature’s response is to question whether any such voters even exist and to assure
that any such “hypothetical” voters will be able to seek “individual,” as-applied relief if they
actually encounter problems voting in November. Leg. Br. at 40. The Legislature insists that such
an as-applied “failsafe” is available, but it nowhere explains what that “failsafe” might possibly
be. The Legislature reasons as follows:
Luft’s treatment of Frank II merely reaffirms that the rare, individual voter who objectively demonstrates that he or she cannot comply with a voting provision with reasonable effort is entitled to, at most, individual, as-applied relief as to that provision. … The DNC Plaintiffs have not pursued this narrow, as-applied relief on behalf of any identifiable voter, and nothing in the evidence that they have presented even indicates that such a voter exists. …
If an extremely rare series of events transpires to make those paths reasonably unavailable to a specific voter in November, that voter may seek targeted, asapplied relief under Frank II at that time. …
In all events, the as-applied failsafe that the Seventh Circuit discussed in Frank II and Luft remains available for individual voters challenging a specific provision of Wisconsin law that, even after considering Wisconsin’s election system “as a whole,” … actually prevents the voter from casting a ballot after expending “reasonable effort” …. If that parade of unlikely hypotheticals were to
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afflict a specific, extremely unlucky voter, that voter can then seek—at the very most—narrow, as-applied relief under Frank II, limited to that voter, for this election.” Leg. Br. at 26-27 (citations omitted, emphasis added). Note that the Legislature never explains what “as-applied failsafe” supposedly “remains available for individual voters” to use “at th[e] time” of the election, if needed. What is that “failsafe”? Is the Legislature referring to some kind of undisclosed petition process for such voters, similar to the IDPP? An emergency lawsuit in Circuit Court “limited to that voter”? Id. at 40. A petition for leave to file an original action in the Wisconsin Supreme Court, or a petition to the Legislature? What about other voters who face similar problems? How could any voters possibly obtain effective relief if they had to wait until the election to sue, and then only individually? The answer, of course, is that there is no such additional “as-applied failsafe” for the witness-certification, voter ID, or proof-of-residence provisions that “remains available for individual voters” who encounter “high hurdles” in attempting to meet these requirements. Id. at 40. That is the whole point of the DNC and DPW’s as-applied claims targeted at these requirements. We accept the general applicability of these statutory provisions and seek relief under the standards of Frank II, Frank III, and Luft only for those who cannot through reasonable efforts do what the other so-called 99% can do without much effort. Those voters are constitutionally entitled to a genuine “safety net” that is “reliably implemented,” ensures “individual treatment” and fulfillment of the “personal” right to vote, and is subject to federal judicial oversight and enforcement. Frank II, 819 F.3d at 386; Luft, 963 F.3d at 679-80 (emphasis added). The Legislature’s “as-applied failsafe” that supposedly “remains available to individual voters,” to the extent it exists at all, meets none of these requirements.
REPLY STATEMENT OF FACTS This section addresses several of the intervening defendants’ most important (and
8

Case: 3:20-cv-00249-wmc Document #: 497 Filed: 07/31/20 Page 19 of 73 egregious) misstatements of fact, as well as several relevant developments since our opening submissions were filed on July 8.
A. The pandemic’s trajectory and magnitude. The Legislature insists that the worst of the pandemic is over, that “Wisconsin has largely reopened,” and that “the COVID-19 situation in Wisconsin will be much better in November than it was in April.” Leg. Br. at 39, 55 (emphasis added). A simple look at the trend lines for positive cases and total cumulative deaths in Wisconsin repudiates these rosy claims:6
6 Both charts reprinted here can be found at https://www.dhs.wisconsin.gov/covid19/data.htm (Suppl. Umberger Decl. Ex. 10).
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Though it is true that “Wisconsin has largely reopened,” that premature, judicially compelled reopening has led to a resurgence in positive cases throughout the State. Cases are now skyrocketing again, the death and hospitalization tolls are steadily increasing (934 Wisconsinites have died of COVID-19 thus far; 4,637 have required hospitalization), and Wisconsin counties continue to roll back their reopening plans in response to the spike in new cases. See DNCFOF ¶ 47; SDNCFOF ¶ 1. Governor Evers declared a new Public Health Emergency on July 30, also issuing an Executive Order that day requiring individuals to wear face coverings when indoors other than in a private residence. Id. ¶ 2. The Office of the Governor explained:
Wisconsin is seeing new and significant community spread and increase in cases of COVID-19 which requires that we declare a new public health emergency and require face coverings. Wisconsin has experienced a drastic rise in COVID-19 cases throughout the entire state, with 61 of 72 counties (84 percent) representing 96 percent of the state’s population experiencing high COVID-19 activity. All regions of Wisconsin have high COVID-19 activity levels. This is a dramatic increase from where Wisconsin was in June, when only 19 of 72 counties (26%) were experiencing high COVID-19 activity. As of the filing of this reply brief (July 31), nearly 4.59 million Americans already have tested positive for the COVID-19 virus, and over 155,000 Americans have been killed by it (conservatively estimated), with the numbers growing by the day. Id. ¶ 3. Even the President now acknowledges the pandemic “will probably, unfortunately, get worse before it gets better,” and
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“that’s the way it is.” Id. ¶ 4. (He should tell his lawyers.) There are growing warnings that the
pandemic’s toll will escalate in the coming months, potentially to catastrophic proportions. Id. ¶ 5.7
There is every reason to believe that Wisconsin’s November 3 election—particularly since
there may be at least double the number of absentee ballots as in April—is going to pose even
greater challenges than those seen in the April 7 election. The plans outlined in the WEC’s June
25 report to the Court do not resolve these issues, and, as the WEC conceded, it is not aware of
any steps the USPS has taken to prevent a repeat of the problems seen in April. DNCFOF ¶ 110,
132, 143-44. County clerks will continue to be overtaxed; issues posed by first-time absentee
voters will continue; and the problems of delays and mishandling of absentee ballots by the USPS
have not been fixed. Id. ¶ 87. The WEC itself concedes that its own forecasted demand for
absentee ballots will “present terrific challenges for Wisconsin election officials at all levels.” Id.
¶ 88. As a result, without this Court’s intervention, the widespread disenfranchisement of voters
that was averted in April will occur in November on a much larger and more consequential scale.
7 By comparison, the Great Influenza of 1918-20 is widely regarded as having “kill[ed] more people than any other outbreak of disease in human history” (between 50-100 million people worldwide). John M. Barry, The Great Influenza: The Epic Story of the Deadliest Plague in History, at 4 (2004). It was “the greatest massacre of the twentieth century”―“the greatest tidal wave of death since the Black Death, perhaps in the whole of human history.” Laura Spinney, Pale Rider: The Spanish Flu of 1918 and How It Changed the World, at 4 (2017); see also Catherine Arnold, Pandemic 1918: Eyewitness Accounts From the Greatest Medical Holocaust in Modern History, at 9 (2018) (“whatever the final tally, there is no doubt that the 1918 influenza outbreak was one of the deadliest natural disasters in human history”). That pandemic a century ago is estimated to have killed about 675,000 Americans. Barry, Deadliest Plague at 450. The American death toll in this pandemic surpassed 150,000 in late July and continues to rise steadily, and we are only five months into the crisis with over seven weeks of summer left before entering the deadly autumn flu season. SDNCFOF ¶ 3. Note that, in 1918, the “full horror” of the deadliest second wave did not reach its U.S. peak until October and November 1918, with deaths continuing through much of 1919 and finally trailing off in early 2020. Alfred W. Crosby, American’s Forgotten Pandemic: The Influenza of 1918, at 108 (2003); Spinney, Pale Rider, at 4.
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B. The State’s failure to prepare for the November election. The same detachment from reality that characterizes the Legislature’s depiction of the state of the pandemic is seen in its repeated representations that the State has taken all the necessary steps to prepare for the November election and that it will go off without a hitch—that it will be “easy” for everyone to vote either in person or by absentee ballot in the general election. Leg. Br. at 55. The truth of the matter, however, is that although the Legislature and the WEC had frontrow seats for the April election and saw first-hand all that can go wrong in an election conducted during a pandemic, little has been done to prevent a recurrence of the many problems that occurred and the unprecedented scale of disenfranchisement that Wisconsinites suffered. Knowing that thousands were unable to vote at all and that nearly 80,000 had their votes counted only because of this Court’s intervention, the State has failed to take the actions necessary to head off another electoral disaster that threatens a level of disenfranchisement that Wisconsin—indeed, the country—has never seen before. The consequences of the State’s inaction are nowhere more obvious and problematic than with the election-day ballot receipt deadline. The WEC’s own report on the April election establishes that because of the systemic inability of election officials and the USPS to handle the deluge of absentee ballots that voters cast, approximately 8% of them (81,713 out of more than 1.1 million total absentee ballots) arrived at election offices after election day. ECF No. 412-7, Ex. 57 at 7. WEC officials have testified that for the November election, the number of absentee ballots will increase dramatically and easily could reach 2 million—more than double the volume in April. ECF No. 475 at 33:18-34:8 (Chair Jacobs estimating “two million plus voters likely voting absentee” and “several hundred thousand voters” whose ballots arrive after election day); see also ECF No. 413 at 28:1-6 (Commissioner Spindell explaining that “certainly the number of absentee ballots that we will receive back [in November] will be greater than they were” in April).
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The experience of the April election, with 8% of absentee ballots arriving after election day, clearly
frames the scope of the problem presented by the likelihood of 2 million absentee ballots in the
November election, as the Chair of the WEC, Commissioner Jacobs, recognized in her recent
deposition testimony:
Q. If the ballot receipt deadline is not extended for the November election, do you have a sense of what volume of ballots would be discounted and thrown away?
A. We know that, I think it was 1.2 million absentee ballots were requested and 964 thousand were returned. Of those, we know that 79 thousand would not have been counted. So if you figure that's what, 8 to 10 percent of ballots cast by mail, you're looking at two million plus voters likely voting absentee, that's several hundred thousand voters if you just do the math.
Q. And so to be clear, it's several hundred thousand voters who are at risk of not having their ballots counted because of the confluence of the time it takes for mail and the election day receipt deadline, is that correct?
A. That's correct, and I want to make one point about the absentee ballot received deadline. The biggest problem with that is it takes the ability of a voter to return their ballot and have it be counted out of the hands of the voter. So the advance of a postmark is it says to the voter, if you do X by a certain date, your ballot will be counted. Get it in the mail by a certain date, your ballot will be counted. So the voter has a duty and if they follow that duty, their ballot gets counted. The problem with the receipt deadline is it says to the voter, put your ballot in the mail and cross your fingers and wish that it might get there on time, which is something you have no control over. So unless you have a voter who can drive and drop it off or someone who can drive and drop it off for them, although there's now threats that's going to be litigated, who knows? The voter can't control the receipt of their own ballot, and that's a problem, and I think it's legally a problem because it doesn't allow the voter to control whether or not their ballot is counted. And I have a problem with that based on a receipt deadline. …
So I think again, going back to my previous statement, the problem with the way Wisconsin has set this up is the voter doesn't have control over that process. If we say to the voter, get it in the mail stream by this date, then the vagaries of the Post Office become less urgent. Because chances are pretty good if they get an extra week to get it in, it will get there. And we know that actually based on some of the returns, even―there were very few late, late arriving ballots. There were very few that came in after the 13th. It was really a fairly small amount, especially if you look at the percentages. So that's the problem I see. We can take all of that out of the equation if we say to the voter, once you put it into that process, you've done your part, your ballot will be counted, and then we can address the Post Office in a separate way.
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ECF No. 475 at 33:18-35:20; 63:13-64:12 (emphases added). While it is of course not possible to know the precise number of ballots that will arrive after election day, Chair Jacobs’ forecast of massive disenfranchisement is supported not just by Wisconsin’s April election, but also by the very recent experiences of other states that also have absentee ballot receipt deadlines. Nearly 6% of the mail-in ballots for Virginia’s June primary were rejected for arriving too late. SDNCFOF ¶ 14. Pennsylvania rejected over 15,600 mail-in ballots for the same reason that month. Id. ¶ 15. Because of the widespread publicity surrounding the disenfranchising effects of ballot receipt deadlines in these elections and in Wisconsin’s spring election, many in our country are waking up to the fact that these deadlines pose a dire threat to the integrity and outcomes of the November election. Suppl. Umberger Decl. Exs. 32 and 9.
But, not so in Wisconsin. The Legislature has not taken any steps since April 7 to ameliorate the effects of the State’s election day receipt deadline, and the WEC has no plans to request the Legislature to take any action. The State’s refusal to address the problem is epitomized by WEC Commissioner Robert Spindell, who despite admitting that the problems of “ballots not sent to voters on time” and “ballots not returned on time” would “only multiple and create more chaos” in November, testified in baffling fashion that “everybody will be much better off” if the election-day receipt deadline is strictly enforced and ballots arriving after 8:00 p.m. on election day are not counted. ECF No. 413 at 67:17-68:20. The WEC’s Election Administrator, Meagan Wolfe, thus confirms that she is unaware of any plans the WEC has to address, or even discuss, the election-day receipt deadline before the November election. ECF No. 247 at 62:20-63:3.
The Legislature attempts in its brief to justify this stunning inaction by representing that the Court’s extension of the receipt deadline for the April 7 election caused myriad problems for election officials that must be avoided in November. But the Legislature does so only by twice
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quoting the deposition testimony of Ms. Wolfe out of context. See Leg. Br. at 57, 60. While Ms. Wolfe did testify that the extension of the deadline resulted in “an extremely tight turnaround” for election officials in meeting their post-election canvassing deadlines, she also said she does not “recall anyone not meeting their deadline.” ECF No. 247 at 48:8-16. The Legislature makes no mention of this acknowledgment nor of Ms. Wolfe’s testimony that the deadline extension allowed local election officials more time to count ballots and tabulate results and that election clerks told her that the volume of absentee ballots “was large enough that it warranted having multiple days to be able to count.” Id. at 16. Nor does the Legislature acknowledge the testimony of Chair Jacobs, who confirmed that election officials were able to meet canvassing and other post-election deadlines in the spring election and that they will be able to do so again in November if the Court again extends the receipt deadline:
Q. Chair Jacobs, with respect to the six to eight [day] extension for the deadline of the spring election, do you know, were election officials able to meet their post election canvassing responsibilities and deadlines notwithstanding that extension? A. Yes. Q. Do you expect that they would be able to meet those responsibilities and deadlines if there were an extension for November? A. Yes. Q. And why do you believe that? A. Well, because one of the things we allowed was the tallying of the ballots to begin after election day, after the close of the physical polls on election day, which allowed the municipalities to get their ballots tallied as they went through to that final day, and so everything was ready to go through I think it was April 13th, they're done, they're ready to go. There is no reason that couldn't be the same going into November. ECF No. 475 at 35:21-36:22. In other words, an unskewed look at the results of this Court’s extension of the deadline shows that nearly 80,000 votes were saved, election officials met their deadlines, clerks on the front lines benefited from the additional time to count ballots, the overall
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integrity of the election—and voters’ confidence in it—was vastly enhanced, and election officials are prepared to manage another extension of the deadline for the November election. And all of this was accomplished without a single known or suspected incident of voter fraud anywhere in the State. See DNCFOF ¶¶ 194-95.
The State’s lack of regard for the lessons learned from the April 7 election is also seen in its refusal to take any action to extend the October 14 deadline for voters to register on-line or by mail for the November election. As described, this Court’s 12-day extension of the online registration deadline prior to the spring election enabled an additional 57,187 voters to register without having to go to local election offices or the polls. Election officials acknowledge this modest extension caused few additional administrative tasks or other problems, SDNCFOF ¶ 25, and that the by-mail registration deadline could be similarly extended for the November 3 election without difficulty so long as mailed registrations are received by the Friday before the election (October 30)―the same day that in-person registration closes. Id. ¶ 24.8 As applied in this pandemic, it makes no rational sense to require by-mail and online registrations by October 14 while allowing in-person registrations to continue until October 30, particularly given the continuing need to engage in social distancing and avoid crowded indoor spaces. And, yet, neither the Legislature nor the WEC has taken any action to extend the deadlines and apparently has no plans to do so.
The same pattern of inaction can be seen when it comes to both the witness certification requirement for absentee ballots and the standard governing whether infection from the COVID
8 This Court’s expressed concern about moving the deadline for by-mail registrations to the Friday before the election―that envelopes mailed then would arrive too close to (if not after) the election―could be readily resolved by making October 30 a receipt deadline for all by-mail and on-line registration requests, rather than following a “postmark” rule that would allow this late-arriving problem to occur.
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virus or particular susceptibility to it triggers the “indefinitely confined” exception to the voter ID requirement for requesting an absentee ballot. In the April elections, election officials rejected more than 14,000 absentee ballots for insufficient witness certifications. DNCFOF ¶ 156. The inability of thousands of voters to obtain a witness certification during the pandemic is hardly surprising. Indeed, in addressing this issue, the Seventh Circuit recognized the importance of alternative methods for satisfying the witness and signature requirements “in light of the extraordinary challenges presented by the COVID-19 crisis.” DNC v. RNC, Nos. 20-1538 & 201546, slip op. at 4 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (Apr. 6, 2020). In that context, the Seventh Circuit emphasized that it had “every reason to believe” the WEC “will continue to consider yet other ways for voters to satisfy the statutory signature requirement” and that it is “best to leave these decisions and more particular prescriptions to the Commission.” Id.
Since the Seventh Circuit wrote those words, the spread of the pandemic in Wisconsin has increased exponentially, the “extraordinary challenges” presented by the pandemic continue to mount, and the need for safe alternatives to the witness requirement is greater than ever. And, yet, despite the Seventh Circuit’s trust that the WEC would act, it has done nothing to develop any alternatives. Commissioner Spindell explained that he sees no need to change the existing law, even to make allowance for people infected with COVID-19:
Q. And so it is your view as a commissioner, that if someone has COVID, that they should interact with a witness and they’re required to interact with a witness to have their absentee ballot signed? A. Yes. Until the law is changed. I don’t see a reason for changing the law, I guess that would be my answer. ECF No. 249 at 82:22-83:7. Accordingly, the WEC has no current plan even to discuss alternatives for satisfying the witness signature requirement, much less develop the types of “more particular prescriptions” the Seventh Circuit expected would be forthcoming. Id. at 89:6-9.
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Finally, with the Wisconsin Department of Health Services having just announced that more than 52,000 Wisconsinites have been diagnosed with COVID-19, the WEC has no plans to clarify whether the “indefinitely confined” exception to the photo ID requirement for requesting an absentee ballot applies to people infected by the coronavirus or people particularly vulnerable to it. ECF No. 247 at 44:15-21. As the Court will recall, the WEC’s guidance on this term provides that the determination “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.” ECF No. 170 at 16-17 (citation omitted). This “guidance” is beyond vague; there are no criteria, other than the reference to travel, for voters to apply to determine if their “current circumstances” qualify them for the exception. For those who have been infected by the coronavirus or exposed to it, or who are at high risk if they are infected, there is no assurance they qualify for the exception. And, for many of those people, obtaining a copy of a photo ID requires leaving their homes to find a printer or scanner. Some will choose not to vote over taking that risk.
C. The continuing USPS service problems. According to the Legislature, any problems with USPS absentee-ballot mail service in the April election are being investigated and corrected. The USPS “has already studied the errors that DNC Plaintiffs complain of,” and “will take measures to ensure that these isolated issues do not recur in November.” Leg. Br. at 29 (emphasis added). The Legislature adds that USPS “has engaged in substantial efforts to identify and correct possible errors,” and has “provided concrete solutions to problems that arose in April.” Id. at 74, 76 (emphasis added); see also id. at 4, 60. Far from having been “corrected,” the problems involving USPS absentee-ballot mail service are getting worse, not better. Since early April there repeatedly have been serious delays in mailed deliveries of absentee ballots, both to voters and back to election officials. Our opening
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brief addressed such postal delays in connection with elections in South Carolina, Georgia, New York, Pennsylvania, and Ohio. See DNC-DPW Br. at 32-33; DNCFOF ¶¶ 133-38; Burden Rep. (ECF No. 418) at 11-12. Since that brief was filed on July 8, there have been further reports of postal delays in the recent Texas and Louisiana elections and expressions of alarm from local, state, and federal officials about mail service in the numerous upcoming August primaries. See SDNCFOF ¶ 6. The Legislature responds that these postal difficulties in other States “have no bearing on the operation of Wisconsin’s election laws.” Leg. Br. at 61 (emphasis added). But these widespread difficulties with USPS absentee-ballot mail service throughout the Nation show that the postal delivery breakdown in Wisconsin was not an isolated one-time fluke, but a widespread and recurring systemic issue that will only grow worse with the much greater turnout in November.
Moreover, the July 7 IG Report (see full cite in footnote 3) expressly warns there is “a high risk” in Wisconsin’s upcoming elections that timely requested ballots once again will “not be[] delivered, completed by voters, and returned to the election offices in time.” Suppl. Umberger Decl. Ex. 30 at 7 (emphasis added); see id. at 12-13 (“[USPS] Management agrees that ballots requested less than seven days before an election are at high risk of not being completed and returned to election offices in time to be counted. … We endeavor to deliver ballots entered close to the election date as soon as possible. However, we cannot guarantee a specific delivery date or alter standards to comport with individual state election law.”) (emphasis added). The Report further warns that the State of Wisconsin has more “election offices” (1,929 separate offices) than any other State in the Nation, which makes it more “challenging” for the USPS and state and local election officials to “effectively communicate” with each other and more likely that local election officials will not follow “proper mailing processes.” Id. at 7-8 & Figure 2.
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On top of this sobering new evidence, the new Postmaster General, Louis DeJoy, “established major operational changes [on July 13] that could slow down mail delivery” even further, thereby “imperil[ing] access to mailed and absentee ballots” to an even greater degree in the November general election. Suppl. Umberger Decl., Ex. 28; SDNCFOF ¶ 7. This includes new restrictions on the ability of USPS employees to work overtime and instructions for mail trucks to leave loading stations at particular prescribed times even when waiting a few minutes would allow the trucks to carry a fuller load and to avoid leaving mail overnight. SDNCFOF ¶ 8. There also are growing reports of USPS employees requiring local election clerks to sign acknowledgments that mailed absentee ballots may not be delivered and returned through the mail before election day. Id. ¶ 9.
Coupled with the anticipated surge of absentee ballots going through the mail in late October and early November, these developments threaten an even greater breakdown in timely mail service than occurred in the April election, when this Court’s six-day extension of the ballotreceipt deadline saved the votes of nearly 80,000 Wisconsin voters whose valid and timely cast ballots would otherwise have been rejected. See ECF No. 420 at 2; ECF No. 419 ¶ 198.
These concerns about timely mail service are underscored in the accompanying declaration of Ronald A. Stroman, the former Deputy Postmaster General, who resigned from the USPS effective June 1, 2020, after nine years as its second highest-ranking official. See ECF No. 484. Mr. Stroman was involved with the USPS’s investigation into the problems with the delivery and receipt of absentee ballots in Wisconsin’s April 7 election; he is fully familiar with the election day receipt deadline and with the USPS’s mail delivery timelines in the State. Based on this knowledge, and as a preeminent expert in mail delivery and the USPS’s operations, Mr. Stroman’s opinion is that, without an extension of Wisconsin’s election day receipt deadline, “it
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is highly likely that in the November General Election, the absentee ballots of at least tens of thousands of voters will arrive at election offices after Election Day and will not be counted.” SDNCFOF ¶ 10.
Mr. Stroman’s conclusion that the election day receipt deadline poses substantial, imminent harm for Wisconsin voters and the November election is driven by multiple factors. First, he points out an irreconcilable conflict between USPS’s delivery service standards and Wisconsin’s voting regime that inevitably will lead to the disenfranchisement of large numbers of Wisconsin voters, particularly given the predicted surge in absentee voting. Specifically, the USPS has service standards for the two types of mail used for election-related materials: First Class Mail and Marketing Mail. The delivery service standard for First Class Mail is two to five days, while the standard for Marketing Mail is three to ten days. Meanwhile, Wisconsin law allows voters to request absentee ballots up to five days before election day, Wis. Stat. § 6.86(1)(b), and local election officials have an obligation to mail an absentee ballot to a voter within one business day after receiving such a request. Wis. Stat. § 7.15 (1) (cm). As Mr. Stroman explains, given the USPS service standards, it is nearly impossible for a voter who lawfully requests an absentee ballot within one week of an election to receive the ballot in the mail, complete it, and have that ballot delivered by a mail carrier to an election office by election day. SDNCFOF ¶ 11. The significance of this reality of the mail service is demonstrated by the large volume of absentee ballots that Wisconsin election officials mail to voters in the last week before an election; in the April election, officials mailed 246,139 absentee ballots to voters in the six days before the election. Id. ¶ 12. Mr. Stroman’s analysis shows that among this group, the votes of those who chose to mail their ballots back―probably tens of thousands of voters, at least―were almost certainly not received until after April 7. Those who request ballots in the
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last week before November election, as they are lawfully permitted to do, will suffer the same fate.
Second, Mr. Stroman explains that the USPS has an election mail service target of 96% on-time delivery. In the best of circumstances, this means that at least 4% of absentee ballots are delivered after the maximum 10-day delivery standard for Marketing Mail and after the maximum 5-day delivery standard for First Class mail. This additional reality of mail service means that if approximately two million Wisconsinites vote absentee in the November election, as is predicted, tens of thousands of voters will not even receive their ballots until somewhere between approximately six days (for election offices that use First Class mail) to more than 10 days (for election offices that use Marketing Mail) after election officials mail them. Id. ¶ 13.
Third, Mr. Stroman’s prediction of massive disenfranchisement resulting from the election day receipt deadline also rests on his knowledge of the significant challenges the USPS is facing, due in part to the effects of the pandemic. For example, the USPS has had significant challenges with employee availability, as many employees have tested positive for COVID-19. The resulting staffing shortages have led to slow-downs in mail delivery, which will increase if the number of COVID-19 cases in Wisconsin continues to rise or if there is a second wave of the disease in the fall. In addition, the USPS has experienced a dramatic decline in mail volume over the last decade and, in particular, since the start of the pandemic. The USPS apparently has responded to this decline by taking the measures described above, including cutting costs, ending employee overtime, and requiring all trucks to leave plants on time, regardless of whether all mail is loaded onto the trucks, all of which will result in further mail delivery delays. Id. ¶ 16.
Finally, Mr. Stroman confirms what the WEC itself has said―that the use of intelligent mail bar codes for absentee ballot envelopes easily facilitates relying on a postmark deadline
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instead of a receipt deadline. The use of these bar codes will allow election officials to determine when a ballot entered the mail stream and function as the equivalent of a postmark, thereby eliminating the problem of ballot envelopes that lack postmarks or legible postmarks. Id. ¶ 17.
ARGUMENT IN REPLY I. This Court should extend the injunctive relief granted for the April 7 election to the
November 3 general election. Although the Legislature grudgingly admits (at 57) they were “bearable,” this Court’s extensions of the election-day receipt and online registration deadlines in March and April were in fact a spectacular voting-rights and election-administration success. The extensions saved the votes of 79,054 Wisconsin citizens who cast valid, timely absentee ballots but would have been disenfranchised by the election-day receipt deadline, but for this Court’s intervention, as well as enabling an additional 57,187 Wisconsin voters to register online, safe and secure from the pandemic. State election administrators acknowledge these extensions were manageable and implemented with relatively modest administrative burdens, and emphasize that the extensions helped alleviate numerous problems. And no one has pointed to any evidence that these extensions led to any voter fraud or other systemic problems. On top of that, turnout will be vastly larger in November, local election officials will probably be overwhelmed by the additional volume, and the USPS at best will continue to face widespread challenges in providing timely election-mail service. And the pandemic will still be with us on November 3. There is, in short, nothing on the Anderson-Burdick scales to outbalance the many positive effects of this Court’s deadline extensions, including avoiding widespread disenfranchisements, helping to maintain at least some degree of public confidence that a ballot cast will be a ballot counted, and protecting public health in this time of global pandemic. “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a
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voting booth. The right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation omitted).
Luft does not change the analysis in the least. Deadlines are extended if there are systemic crises that threaten to undermine the electoral process. Luft reminds us that “[c]ourts weigh [any individual] burdens against the state’s interests by looking at the whole electoral system,” and that when an analysis of that “whole” system, taken together, shows that citizens’ voting rights are in danger of being “severely restricted” on a widespread basis, the State must have “compelling interests” for continuing to enforce its restrictions and ensure they are “narrowly tailored.” 963 F.3d at 671-72. As April 7 already has shown, the challenged deadlines “severely restrict” voting activity on a broad scale, and they serve no “compelling interests,” especially in the midst of the COVID-19 pandemic. Id. The Court should grant the same relief it previously granted, as modified on appeal. It also should include by-mail registration in its extension of the online registration deadline, which Wisconsin election officials have testified can be done without significant additional costs so long as mailed-in registrations are received by October 30 (the Friday before the election). See SDNCFOF ¶ 24.
A. This Court should again extend the election-day ballot-receipt deadline. The Anderson-Burdick balancing analysis is compellingly one-sided. This Court’s six-day extension of the ballot-receipt deadline saved the votes of nearly 80,000 citizens without causing any significant problems for Wisconsin election officials, without causing any canvassing or reporting deadlines to be missed, and without leading to any known or suspected incidents of voter fraud. See DNCFOF ¶¶ 194-95. And that extension operated to promote, not undermine, the “integrity” of the April 7 election and voter confidence in its results. See, e.g., id. ¶ 195. Nothing would undermine public confidence in the integrity of the election system more than the rejection of tens if not hundreds of thousands of ballots that were timely cast but late arriving.
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And that is precisely the scenario we are facing in November, given the anticipated surge of voter turnout, continuing problems with timely USPS election-mail service, the expected record number of first-time absentee voters, and the deadly trend of the pandemic. For all the reasons discussed above, we know the COVID-19 pandemic is unlikely to ebb before the election, that USPS service is unlikely to improve appreciably, and that absentee voting will be at record levels. In these circumstances, the case for a comparable extension of the November 3 ballot -receipt deadline by up to ten days is compelling.
The Legislature disagrees with these assessments. It contends this Court should not extend the election-day receipt deadline for several reasons even if that results in the rejection of tens, if not hundreds of thousands of otherwise-valid ballots that are postmarked on or before November 3 but arrive in the following days.
Efficient and orderly administration. The Legislature argues the election-day receipt deadline is necessary to provide “adequate time to canvass the election results, so as to accurately and timely report election-day winners.” Leg. Br. at 57. It claims the deadline is necessary to “ensure the ‘orderly administration’ and ‘efficient[ ]’ operation of [Wisconsin’s] elections.’” Id. at 53 (citations omitted). Yet as demonstrated above, state and local elections officials not only were able to accommodate the six-day extension, but in many instances benefitted from it. Wisconsin’s chief elections officials have testified they believe they can accommodate a similar extension in November without missing any certification deadlines. SDNCFOF ¶ 18. Wisconsin law gives counties until November 10 to begin their canvasses, and until November 17 to complete them. The State itself need not complete its canvass until December 1. Wis. Stat. § 7.70(3)(a). Accordingly, there would be ample time to extend the ballot-receipt deadline by up to ten days so that late-arriving absentee ballots may be counted so long as postmarked by November 3. The
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experience of the April 7 election proves that such an extension can be successfully carried out with a minimum of administrative inconvenience while avoiding the disenfranchisement of tens if not hundreds of thousands of voters. The WEC acknowledged in its Rule 30(b)(6) deposition that the administrative burdens caused by this Court’s prior deadline extensions were modest and manageable. DNCFOF ¶¶ 194-95. There is no reason to expect a difference now.
State action. The RNC and RPW once again argue that no election deadlines can be extended because there has been no “state action” here. RNC Br. at 1-2. They reason that “Wisconsin is not responsible for COVID-19 or private citizens’ responses to it,” and that any current “difficulties” with absentee voting “are not burdens imposed ‘by the State,’” but instead by the pandemic itself. Id. at 1 (emphasis in original). This is the identical argument the RNC and RPW made last time around, and it was squarely “dismissed” by this Court in its April 2 Opinion and Order:
The RNC/RPW also argue that plaintiffs' claims should be denied because the additional burdens placed on voters are due not to state action, but the COVID-19 pandemic itself. . . . This argument is quickly dismissed. The state action challenged here is the enforcement of Wisconsin's election laws; just as a state may not enforce an apportionment scheme that, although once constitutional, has through the passage of time resulted in uneven representation, Reynolds, 377 U.S. at 587, Wisconsin here cannot enforce laws that, even due to circumstances out of its control, impose unconstitutional burdens on voters. ECF No. 170 at 29 n.14. This reasoning was correct then and remains correct today. See also Miller v. Thurston, No. 20-2095, 2020 WL 4218245, at *6 (8th Cir. July 23, 2020) (“by blaming the pandemic, Arkansas has not changed the fact that enforcing its in-person signature requirement under current circumstances burdens the plaintiffs’ ability to engage in core political speech”); Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020) (upholding district court’s determination that ballot-access signature deadline, in the context of the pandemic, was “not narrowly tailored to the present circumstances,” and thus could not be enforced “unless
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the State provides some reasonable accommodations to aggrieved candidates”); Libertarian Party of Ill. v. Cadigan, No. 20-1961, 2020 WL 3421662, at **3-4 (7th Cir. June 21, 2020) (denying motion to stay preliminary injunction that moved statutory petition filing deadline from June 22 to August 7, 2020 because of the pandemic, where Illinois State Board of Elections initially had agreed to the terms of the preliminary injunction but then tried to back out on the grounds the extension would “harm” and “impede” the proper administration of the election); Obama for Am. v. Husted, 697 F.3d 423, 441 (6th Cir. 2012) (White, J., concurring) (“Anderson/Burdick balancing ... should not be divorced from reality, and [ ] both the burden and the legitimate regulatory interest should be evaluated in context.”); Goldstein v. Sec’y of Commonwealth, 142 N.E.3d 560, 570 (Mass. 2020) (“requirements that in ordinary times impose only modest burdens on [the electoral process] may significantly interfere with the fundamental right [to participate in the electoral process] in a time of pandemic”).9
RNC v. DNC. The intervening defendants rely heavily on RNC v. DNC where it suits them, but downplay the significance that the Supreme Court endorsed the six-day extension of the ballotreceipt deadline. The Legislature insists this was only because the intervening defendants elected not to challenge that part of this Court’s relief, focusing instead on their bogus argument that this
9 As this Court previously has recognized, see ECF No. 37 at 11, decisions involving the impacts of extreme-weather events on voting provide further support for judicial extensions of registration and voting deadlines in extreme circumstances. See, e.g., Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) (ordering Secretary to direct Supervisors to accept voter registration applications after statutory deadline because Hurricane Matthew prevented voters from registering prior to deadline); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016) (similar); Amended Order, Obama for Am. v. Cuyahoga Cty. Bd. of Elections, 1:08-cv-562-PAG, ECF No. 6 (N.D. Ohio Mar. 4, 2008) (extending voting deadline after heavy rain, flooding, and precincts ran out of ballots); In re Gen. Election 1985, 109 Pa. Commw. 604 (1987) (extending deadline to complete election after “extreme weather conditions that caused extensive flooding, loss of electricity, heat, and water”). Being in the midst of the worst global pandemic in over a century would seem to qualify as an extreme circumstance.
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Court had “unilaterally” and “on its own ordered yet an additional extension, which would allow
voters to mail their ballots after election day.” RNC v. DNC, 140 S. Ct. at 1208 (emphasis added).
This of course was a fabrication, as Justice Ginsburg and many legal scholars and national
commentators have pointed out. See id. at 1209-10 (Ginsberg, J., dissenting) (emphasizing that,
contrary to the majority’s assertion that this Court granted relief that “plaintiffs themselves did not
even ask for,” “plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots”).10
The five Justices in the majority may have been misled by the intervening defendants’
mischaracterizations, but the point is that the Justices affirmatively relied on the six-day ballot-
receipt extension in rejecting this Court’s supposed “additional extension.” The majority
approvingly relied on “the fact that the deadline for receiving ballots was already extended to
accommodate Wisconsin voters . . . to ensure [they] can cast their ballots and have their votes
count.” Id. at 1208 (emphasis added). The Court expressed no concerns about “afford[ing]
Wisconsin voters several extra days in which to mail their absentee ballots,” so long as those
ballots were “postmarked by election day.” Id. at 1206. Intervening defendants glaringly overlook
10 See also, e.g., Richard L. Hasen, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, 19 Election L.J. (forthcoming 2020) (Suppl. Umberger Decl. Ex. 32) (“odd” that Supreme Court majority emphasized “three times” that the DNC and DPW had not requested this Court’s relief, when of course plaintiffs had requested this relief); Linda Greenhouse, The Supreme Court Fails Us, N.Y. Times (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/opinion/wisconsin-primarysupreme-court.html (Suppl. Umberger Decl. Ex.33) (“[A]nyone reading only the Supreme Court’s majority opinion would come away thinking that the order was the act of a rogue judge, cramming an extreme remedy for a nonexistent problem down the throat of a resistant public. … [T]he justices in Monday’s majority were for some strange reason obsessed with the notion that the Democratic plaintiffs had not asked the judge for the precise remedy he ordered; the opinion mentions this on each of its four pages. But as the plaintiffs told the justices in their brief, and as Justice Ginsburg concluded from reading the transcript of the District Court hearing, that wasn’t true. The plaintiffs ‘specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots,’ she wrote.”).
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the Supreme Court’s material reliance on the ballot-receipt extension in arguing there is no appellate authority for such an extension. See Leg. Br. at 3.
Voters’ fault. As with every brief they have submitted thus far, one of intervening defendants’ repeated arguments is that any failure by voters to register before the online and bymail cutoff on October 14 or to mail their ballots in sufficient time to be received by the November 3 absentee-ballot receipt deadline will be their own fault. Intervening defendants argue that, unless a particular voter can prove it will be impossible to comply with the challenged deadlines, they have no legitimate claim. Intervening defendants cite decisions that, in the course of upholding challenged election-law deadlines, have observed that the plaintiff voters could comply with those deadlines but chose not to. Leg. Br. at 53-54, 56; RNC Br. at 3; see especially Rosario v. Rockefeller, 410 U.S. 752 (1973); Marston v. Lewis, 410 U.S. 679 (1973).
But the intervening defendants badly misread these and similar decisions. They hold that, even where a voter arguably can comply with a given deadline, the State still must demonstrate that the “particular deadline” is sufficiently “justified” and “necessary” under the circumstances to promote “a particularized legitimate purpose.” Rosario, 410 U.S. at 760-62; Marston, 410 U.S. at 681. In Rosario, the purpose was to prevent “large-scale [political party] raiding,” a welldocumented practice in which the members of one party voted in another party’s primary “so as to influence or determine the results of the other party’s primary”―a practice that was deemed to undermine “the integrity of the electoral process.” 410 U.S. 760-61. Moreover, the Court took care to determine that a shorter deadline “‘would not have the same deterrent effect’” on this practice. Id. at 761-62 (citation omitted). Marston upheld a voter registration deadline 50 days prior to the election, but only after ensuring that the State of Arizona had “demonstrated” this particular cut-off was “necessary to permit preparation of accurate voter lists,” given certain
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“realities” that were “complicating factors” in the registration process (recall that this was nearly 50 years ago, long before the Internet or the widespread use of computers). 410 U.S. at 681.
A challenged deadline cannot stand in the absence of such a “particularized” demonstration. Rosario, 410 U.S. at 762. One Supreme Court decision applying Rosario has emphasized that a deadline cannot be enforced if “the asserted state interest can be attained by ‘less drastic means,’ which do not unnecessarily burden the exercise of constitutionally protected activity.” Kusper v. Pontikes, 414 U.S. 51, 61 (1973). Another decision distinguishing Rosario has emphasized that a State may not “impose[] a restriction on the franchise having no perceptible purpose or effect in preserving the integrity of the electoral process.” Hill v. Stone, 421 U.S. 289, 300 n.9 (1975).
Thus, voters’ alleged ability to meet a given deadline is merely the first question, not the entire analysis. The State still must demonstrate the “particular deadline” is “necessary” under the circumstances to “preserv[e] the integrity of the electoral process.” Id.; Rosario, 410 U.S. at 761. Far from being “necessary” to the Wisconsin election system’s “integrity,” the record establishes that rigid enforcement of the election-day receipt deadline as applied in the context of the 2020 pandemic would undermine, not “preserve,” electoral integrity and voter confidence.
Potential national “limbo.” The Legislature also argues that, while the six-day extension of the ballot-receipt deadline in April may have been “bearable” (saving the votes of 80,000 citizens is just “bearable”?), a similar extension in November “would be intolerable.” Leg. Br. at 57 (emphasis added). The Legislature’s entire reasoning for why this would be “intolerable” is as follows (id., emphasis added):
Extending this deadline for the November Election would be far more harmful to the State’s and the Nation’s interests than the extension that this Court ordered in April, given that the November Election includes the Presidential race. As this Court previously recognized, an order extending the absentee ballot receipt
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deadline must be paired with an order prohibiting the release of any election results until the new, court-imposed deadline, in order to ensure election integrity and public confidence in the results. See Dkt. 179. Imposing this gap in November would delay the public announcement and completion of Wisconsin’s election results, including as to the Presidential race, for more than a week, potentially leaving the State and the Nation in needless limbo, given Wisconsin’s swing-state status. This reasoning is ridiculous. This Court amended its April 2 preliminary injunction order to bar release of voting tallies prior to April 13 because, under its order, voters would still be casting ballots during that period and might be influenced by the early returns. That was the sole reason for barring release of returns prior to April 13. The Supreme Court agreed that any running disclosure of election tallies while absentee voting was still underway “would gravely affect the integrity of the election process,” but thought it “highly questionable” whether this Court’s order “suppress[ing] disclosure of the election results . . . would work.” 140 S. Ct. at 1207. (This Court’s order did, in fact, “work”). Once the Supreme Court had imposed its election-day postmark requirement, the justification for the non-disclosure portion of this Court’s relief evaporated. Perhaps because all parties were exhausted by that point in the run-up to April 7, no one asked this Court to lift this part of its injunctive relief after the Supreme Court ruled on the afternoon of April 6. The Legislature is therefore far off base in claiming this Court has “recognized” that an extension of the ballot-receipt deadline “must be paired” with a corresponding ban on releasing election results, even when all votes must be cast by election day given the Supreme Court’s postmark rule. This Court has never “recognized” such a “pair[ing],” and there is no need for one. The Legislature’s rhetoric that, if this Court extends the ballot-extension deadline again, it might “leave[e] the State and the Nation in needless limbo, given Wisconsin’s swing-state status,” is spurious. Fourteen other States (including some with “swing-state status”) and the District of
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Columbia follow a postmark-by-election-day rule (or a close variant) and count ballots that arrive in the days following the election so long as they are timely postmarked. SDNCFOF ¶ 19.11 The outcome could well be in “limbo” in several of these other jurisdictions while timely cast ballots are received and tabulated in the days following the November 3 election. This likely scenario has been extensively discussed; it is a national phenomenon and not peculiar to Wisconsin. Id. ¶ 22.
Our point is not that this Court should extend the election-day receipt deadline simply because many other States have chosen to do so, but that the consequences of counting timely cast but late-arriving absentee ballots are manageable and not at all unusual. A modest extension of Wisconsin-s election-day receipt deadline would be unlikely to create a national crisis―especially where that extension avoids the potential disenfranchisements of hundreds of thousands of eligible voters.
That leads to two final points in reply to the Legislature’s insistence that the election-day receipt deadline must not be deferred again.
First, the DNC and DPW demonstrated in their opening brief that it is unfair to make voters cast their absentee ballots several weeks before an election in order to ensure those ballots will be counted given that, as a simple practical reality, many people do not even decide who they will
11 These include Alaska (10 days following election); California (3 days following election); the District of Columbia (7 days); Illinois (14 days); Iowa (6 days if postmarked by the day before the election); Kansas (3 days); Maryland (no deadline for receipt so long as postmarked by election day); New Jersey (48 hours following closure of polls); New York (7 days following election if postmarked by the day before the election); North Carolina (3 days); Ohio (10 days if postmarked by the day before the election); Texas (1 day); Utah (7-14 days if postmarked by the day before the election); Vermont (3 days); and West Virginia (5 days). SDNCFOF ¶ 20. Unless otherwise noted above, all these States require that absentee ballots be postmarked by election day in order to be counted when received in the days following the election. See generally Nat’l Conference of State Legislatures, VOPP: Table 11: Receipt and Postmark Deadlines for Absentee Ballots, (June 15, 2020), https://www.ncsl.org/research/elections-and-campaigns/vopp-table-11receipt-and-postmark-deadlines-for-absentee-ballots.aspx; SDNCFOF ¶ 21.
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vote for until late in the campaign (which one would expect from undecided swing voters); the all-
important presidential debates continue until late October; and recent presidential campaign
history abounds with examples of legendary late-October “surprises” that changed, or very nearly
changed, the election results by causing late-deciders to break one way or the other. DNC Br. at 32-33; Burden Rep.at 12-13.12 The Legislature repeatedly insists these practical political realities
are “constitutionally irrelevant” and “of no constitutional import.” Leg. Br. at 54 n.10, 60
(emphasis added). Says who? Anderson-Burdick analysis is all about the “flexible” balancing of
the real-world “interests” involved and the practical benefits and burdens of a challenged
provision. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Telling voters that, to be “prudent,”
they must vote absentee two or three weeks before the election imposes real-world costs that most
certainly are “relevant” and of “import” to the Anderson-Burden analysis.
Second, for all its talk of system “integrity” and “voter confidence,” the Legislature fails
to acknowledge that nothing would destroy confidence in the integrity of our voting system more
than throwing out tens if not hundreds of thousands of valid ballots that were timely cast in good
faith but did not arrive until after election day. That is what would be “intolerable,” to borrow the
12 Professor Burden’s report discusses one example of an “October surprise”―the unexpected announcement by FBI Director James Comey on October 28, 2016 that the FBI was reviewing new evidence in its investigation of former Secretary of State Hillary Clinton’s email. See Burden Rep. at 12-13. Other examples of “October surprises” over the past half-century or so have included President Lyndon Johnson’s October 31, 1968 announcement of a complete bombing halt over North Vietnam; National Security Advisor Henry Kissinger’s October 26, 1972 announcement that “peace is at hand” in Vietnam; President Jimmy Carter’s announcement on November 2, 1980, that he had been unable to negotiate an end to the Iran hostage crisis; the October 30, 1992 indictment of former Secretary of Defense Caspar Weinberger as part of the Iran-Contra proceedings; Governor George Bush’s November 2, 2000 acknowledgment of his 1976 DUI charge; the October 29, 2004 broadcast by Al-Jazeera of a videotaped message from Osama bin Laden denouncing President George Bush; and the October 29, 2012 landfall of Hurricane Sandy near Atlantic City, New Jersey, and the next several days of destructive weather in the Northeast. See SDNCFOF ¶ 23.
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Legislature’s word. Leg. Br. at 57. B. This Court should again extend the online registration deadline, and should include by-mail registration in that extension. The Legislature’s arguments against any extension of the October 14 deadline for
registering by mail or online are, if anything, even weaker than its arguments against extension of the November 3 election-day receipt deadline. This Court’s 12-day extension of the online registration deadline prior to the April 7 election enabled an additional 57,187 voters to register without having to go to local election offices or the polls during a time of dangerous community spread. Wisconsin’s election administrators acknowledge that this modest extension caused relatively few additional administrative burdens. SDNCFOF ¶ 25. They also acknowledge that the by-mail registration deadline could be similarly extended for the November 3 election without difficulty so long as mailed registrations are received by the Friday before the election (October 30)―the same day that in-person registration closes. Id. ¶ 24.13 Thus, in-person, by-mail, and online registration would all be treated the same, which makes particular sense in the current public-health emergency. As applied in this pandemic, it makes no rational sense to require bymail and online registrations by October 14 while allowing in-person registrations to continue until October 30, particularly given the continuing need to engage in social distancing and avoid crowded indoor spaces.
The Legislature again lectures that deadlines help promote the “orderly administration” and “efficient operation” of Wisconsin elections, and that voters who fail to meet deadlines are not being “prudent” and have only themselves to blame. Leg. Br. at 53. But as discussed above, this
13 This Court’s expressed concern about moving the deadline for by-mail registrations to the Friday before the election―that envelopes mailed then would arrive too close to (if not after) the election—could be readily resolved by making October 30 a receipt deadline for all by-mail and on-line registration requests, rather than following a “postmark” rule that would allow this late-arriving problem to occur.
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entirely ignores the point of the decisions cited by the Legislature: even where a voter arguably could meet a challenged deadline, that “particular deadline” must still be sufficiently “justified” and “necessary” under the circumstances to promote “a particularized legitimate purpose” without “unnecessarily burden[ing]” the right to vote. Supra at 28-29; see also Rosario, 410 U.S. 760-62; Kusper, 414 U.S. at 61. In a variant of its blame-the-voter defense, the Legislature argues “[t]he Court’s justification for extending registration deadlines on March 20 for the April 7 election is no longer applicable,” because now there is sufficient time for each “prudent” unregistered voter to plan ahead to avoid having to register in person and, in any event, the conditions of March 20 no longer apply; “Wisconsin has largely reopened.” Leg. Br. at 54-55.
It is true we are no longer in late March; now July is turning to August and the pandemic has grown much worse, with the worst yet to come. As for the Legislature’s plea for “prudence,” we can readily agree that voters who are not yet registered to vote should do so as soon as possible. Both political parties, of course, are busy encouraging voters to do just that. It is in DNC and DPW’s best interests that as many as their supporters register as early as possible.
But it is a long-standing political reality that many voters do not register until shortly before or on election day, and many who are new to absentee voting may not realize they cannot register and vote at the same time by mail, as they have done before when voting in person. And though we can agree with the Legislature that people should not “procrastinate” (Leg. Br. at 54), the question is how should procrastinators and anyone else who miss the online and by-mail registration deadline be treated. Contrary to the Legislature, the result is not a forfeiture but an analysis of whether that “particular deadline,” as applied in the context of this pandemic, remains sufficiently “justified” and “necessary” under the circumstances to promote “a particularized legitimate purpose” without “unnecessarily burden[ing]” the right to vote. Rosario, 410 U.S. 760-
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62; Kusper, 414 U.S. at 61. As applied in our present context, no valid, reasonable state interests are served by the
disparity and discrimination between in-person registration, on the one hand, and by-mail and electronic registration on the other. If election officials can accommodate registrations as late as election day when done in person, there is no sufficient reason why they cannot accommodate bymail and electronic registrations much closer to the election than “the 3rd Wednesday preceding” it. Id. ¶ 191. II. This Court should again grant limited injunctive relief against Wisconsin’s witness-
certification requirement, modified to resolve the Seventh Circuit’s concerns. The DNC and DPW continue to believe this Court granted the right relief on the witnesscertification issue last time around, for all of the right reasons, and that the Court can meet the concerns expressed in the Seventh Circuit’s April 3 stay order through fairly modest (but nevertheless very important) adjustments to this Court’s earlier relief. Our opening brief demonstrated in detail that this modified approach not only is consistent with the Frank decisions and Luft v. Evers, but compelled by the logic of those decisions. DNC Br. at 5-6, 8, 34-44. The need for such relief was demonstrated by the rejection of over 14,000 absentee ballots in the April election for “insufficient certification.” See WEC Br. at 11 (ECF No. 444); SDNCFOF ¶ 26. And there are strong reasons to believe that many of the 135,417 unreturned ballots—over 10% of all ballots sent out—were not returned because the voters who had requested these ballots (many of them inexperienced with absentee voting) were simply unable to navigate the witness requirements in the midst of the pandemic and resulting isolation from others. DNCFOF ¶ 157. The Legislature purports to find our reliance on Luft “[r]emarkabl[e]” (Leg. Br. at 26), but what is “remarkable” is how much of the detailed analysis of Luft in our opening brief the Legislature simply ignores, including Luft’s reliance on the unanimous en banc decision in Frank
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III, the only en banc authority in this Circuit on the constitutionally required “safety net” and thus of particular significance. Luft, 963 F.3d at 669, 679-80; Frank III, 835 F.3d at 649; DNC Br. at 34-44. The Legislature also claims (at 43-44) our proposed relief would “flout” the Seventh Circuit’s April 3 stay order in RNC v. DNC as well as the Supreme Court’s July 2 stay order in the Alabama People First litigation. Neither stay order is inconsistent with, let alone “flouted” by, our proposed relief. We will address the alleged conflict with Luft first, and then turn to the recent stay orders.
A. Plaintiffs’ requested relief is fully consistent with Luft. The Legislature has caricatured the Luft decision, insisting it bars any relief from the witness-certification requirement even though the decision strongly reaffirms the focus in Frank II and Frank III on “[e]very citizen’s interest in individual treatment.” 963 F.3d at 680. Because of this “personal” constitutional right, the State must “ensur[e] that every eligible voter” can vote with no more than “reasonable effort,” which means “the state must accommodate voters who cannot [comply with voting requirements] with reasonable effort” by providing them with a “safety net.” Id. at 669-70. And the “constitutional question” for a federal court is whether the promised safety net is “reliably implemented.” Id. (emphasis added). Any such voter is constitutionally “entitled to an accommodation that will permit him or her to cast a ballot.” Id. at 678-79; see also Frank III, 835 F.3d at 651; Frank II, 819 F.3d at 386. It is striking that, while citing Luft over 100 times, the Legislature never once quotes the decision’s key phrases like “safety net,” “voting rights are personal,” “individual treatment,” “entitled to an accommodation,” or “reliably implemented.” Instead, the Legislature simply denies there are any such voters who require the constitutionally guaranteed “safety net” from the witness-certification requirement. This Court recognized there are such voters among us, and the massive evidentiary record documents the “high hurdles” faced by these fellow citizens. ECF No. 170 at 46; DNCFOF ¶¶ 111-16. The
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Legislature insists that, so long as voters are “prudent,” they all should be able to obtain witness certifications with only “reasonable effort.” Leg. Br. at 40-44.14 Perhaps recognizing the extremity of its position—no one needs a “safety net” from this requirement?—the Legislature goes on to assure that, if there are such “hypothetical” voters out there, “the as-applied failsafe that the Seventh Circuit discussed in Frank II and Luft remains available for individual voters,” so that if a “specific voter” has problems in November, “that voter may seek targeted, as-applied relief under Frank II at that time.” Leg. Br. at 27, 40 (emphasis added). But any such “narrow, as-applied relief under Frank II” will have to be “limited to that voter, for this election.” Id. at 40.
The Legislature does not identify what “as-applied failsafe” supposedly “remains available.” What “failsafe” is the Legislature talking about? How does it work, and who does the voter contact? Is the Legislature referring to individual lawsuits brought on election day to require that specific absentee ballots be counted? Does the Legislature have an administrative process in mind? And how is this Court supposed to answer “[t]he constitutional question under Frank II” of whether this supposed “as-applied failsafe” will be “reliably implemented,” Luft, 963 F.3d at 679 (emphasis added), if the Legislature will not even identify what “as-applied failsafe” that “remains available” it is talking about?
There is no such “failsafe,” and this Court correctly concluded in its April 2 Opinion and
14 Intervenors argue that certain witnesses, including two of the individuals who filed declarations in support of DNC-DPW’s motion, can satisfy the witness-signature requirement “consistent with their current level of social interaction.” Wisconsin Legislature and Legislative Defendants’ Proposed Supplemental Brief in Opposition to Plaintiffs’ Motions for Preliminary Injunction (ECF No. 474-1) at 2-4. Intervenors’ argument is based on the depositions of two out of the 116 voters who submitted sworn declarations in support of DNC and DPW’s motion. Moreover, as aptly pointed out Mr. Nunley when asked how going to the grocery store is any different from voting, even immunocompromised individuals must take some risks to obtain necessities, such as groceries. Nunley Dep. at 65:14-66:17 (“I shop for the groceries because I have to.”). Voters should not “have to” take additional, unnecessary risks to exercise their constitutional right to vote.
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Order that there must be some kind of safety net under Frank II for the minority of voters who cannot meet the certification requirements with “reasonable efforts.” ECF No. 170 at 44-47. Though its eleventh-hour effort was flawed in some respects and came too close to the election for Purcell purposes, this Court now has the time to engineer a proper safety net that follows guiding Supreme Court and Seventh Circuit principles.
The Legislature takes numerous potshots at the DNC-DPW’s proposed safety net―a courtordered, WEC-issued and publicized form for claiming an exemption from the witnesscertification requirement, based on objective standards and signed under penalty of perjury―without bothering to offer an alternative proposal of its own. It claims the DNC-DPW’s proposal “is, at bottom, not meaningfully different from” the voter ID declaration Judge Adelman adopted in 2016 in the Frank v. Walker litigation, which the Seventh Circuit “emphatically” rejected both in a 2016 stay of Judge Adelman’s order and in Luft’s June 2020 rejection of that order on the merits. Leg. Br. at 45. As discussed in detail in our opening brief, however, the DNCDPW’s proposed declaration differs in several important ways from Judge Adelman’s approach.
“Indiana’s affidavit option.” In discussing the constitutionally required “safety net,” Frank II pointed favorably to Indiana’s affidavit option that was integral to Justice Stevens’s controlling opinion in Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 202 (2008); see Frank II, 819 F.3d at 387. The Legislature contends our discussion of Crawford and the “affidavit option” is “self-defeating” because Luft “rejected it as a permissible remedy, emphatically.” Leg. Br. at 45. But Luft obviously could not “reject” a Supreme Court decision; instead, it held that Wisconsin was entitled to adopt its own version of a “safety net” so long as it was “reliably implemented” and demonstrably worked. 963 F.3d at 679. “One federal judge’s preference for using affidavits does not prevent a state legislature from implementing a different approach.” Id.
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Here, of course, the Legislature has not purported to “implement[] a different approach”; it has offered no alternative safety net at all. In the absence of a legislatively created “different approach” to the constitutionally required safety net, an affidavit/declaration option is entirely appropriate.
Lack of objective standards. The Seventh Circuit criticized Judge Adelman’s proposed affidavit as lacking any objective standards or requirements; “the district court has not attempted to distinguish genuine difficulties …, or any other variety of substantial obstacle to voting, from any given voter’s unwillingness to make the effort that the Supreme Court has held that a state can require.” Frank v. Walker, Nos. 16-3003 & 16-3052, 2016 WL 4224616, at *1 (7th Cir. Aug. 10, 2016). A voter could claim an exemption for any reason or no reason at all, “including a belief that spending a single minute to obtain a qualifying photo ID is not reasonable.” Id. “The injunction allowed a voter to make his or her choice about how much effort was too much―some people might deem even one trip to a governmental bureau excessive.” Luft, 963 F.3d at 678. Here, on the other hand, DNC and DPW have proposed that the statement asserting an individual exemption from the witness-certification requirement must present “an objectively reasonable explanation for why the voter needs the exemption.” DNC Br. at 43.
Inability to follow up with the declarant. Judge Adelman’s injunction also provided “that state officials are forbidden to dispute or question any reason the registered voter gives.” Frank v. Walker, 2016 WL 4224616, at *1. This was a non-starter for the Seventh Circuit, which emphasized that an applicant could not “declin[e] to cooperate with a request for information that is either readily available or obtainable with reasonable effort,” and could be rejected for a “failure to comply with reasonable requests for information that is material to voting eligibility.” Luft, 963 F.3d at 680. DNC-DPW’s proposed declaration respects this important principle; a voter must cooperate with any reasonable inquiries by local election officials.
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“Sovereign prerogative.” The Legislature claims that any analogies to the ID Petition Process (“IDPP”) are “deeply misleading,” since “Wisconsin created that petition process itself, as its sovereign prerogative, and Luft holds only that a district court can monitor this process to ensure that it is available even as to the rare individual, such as Mr. Randle, described in that decision―not that the Court can simply order such a procedure itself.” Leg. Br. at 45. But Wisconsin created the IDPP because it was constitutionally obligated to provide a “safety net” under federal law, and chose to attempt to satisfy that obligation through the IDPP. If this were simply a matter of state “sovereign prerogative,” a federal district court would have no jurisdiction to “monitor” such a state-law process to ensure it was compliant with state law.
Required information. The Legislature also argues that an IDPP applicant must “fill out two forms” with requested information, not simply the single form proposed by DNC and DPW. Leg. Br. at 46. And the IDPP applicant is asked to provide more information than we propose be asked of voters seeking a “safety net” exemption from the witness-certification requirement, and must “show up at a DMV.” Id. (citation omitted). Applicants seeking a “safety net” because they must isolate themselves from contact with others during the pandemic obviously cannot be expected to “show up at a DMV” or other government office building; that would defeat the purpose of the request. And if the Legislature believes our proposed voter declaration signed under penalty of perjury does not provide enough information for local election officials to follow up on, the Legislature is free to propose additional inquiries for the Court’s consideration. The point is that, under Frank II, Frank III, and Luft, the State must provide “individual treatment” and “accommodate” voters who require a “safety net,” even though 99% of the voting public needs no such help. That is the essential truth this Court recognized in its April 2 Opinion and Order, a truth
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the Legislature wholly ignores.15 B. Plaintiffs’ requested relief would not “flout” Seventh Circuit or Supreme Court stay orders. The Legislature also claims our arguments not only fail under Luft, but “flout” the Seventh
Circuit’s April 3 stay order in this case as well as the Supreme Court’s recent stay of an Alabama federal district court injunction in Merrill v. People First of Ala., No. 19A1063, 2020 WL 3604049 (July 2, 2020), staying People First of Ala. v. Merrill, Civil Action No. 2:20-cv-619-AKK, 2020 WL 3207824 (N.D. Ala. June 15, 2020). The Legislature is wrong about both stay orders.
Our opening brief demonstrated in detail why the RNC v. DNC stay order does not foreclose our requested relief. See DNC Br. at 34-35, 42-43. The stay was based on the Seventh Circuit’s conclusions that (a) “the district court did not give adequate consideration to the state’s interests in suspending this requirement”; (b) the Purcell principle counseled against relief given that the election was then only days away; and (c) the perceived “overbreadth of the district court’s order . . . categorically eliminates the witness requirement applicable to absentee ballots.” Order, DNC v. RNC, Nos. 20-1538 & 20-1546, at *3. The panel suggested the WEC’s “alternative suggestions” for fulfilling the witness requirement might be sufficient, especially given the extra time that voters had to obtain a witness signature because of this Court’s extension of the ballot-receipt deadline. Id. The Seventh Circuit also urged this Court to let the WEC try to fix the problems first, before further judicial action. Id. The stay did not purport to preclude further judicial relief.
15 The Legislature also argues (at 67) that the IDPP public education campaign ordered by Judge Peterson in One Wisconsin and endorsed by the en banc Seventh Circuit in Frank III was not constitutionally required, but instead “was a remedy for an underlying constitutional violation that the district court there had found” (emphasis added). That misreads both Judge Peterson’s reasoning as well as the emphasis in Frank III on the importance of public education by the State: a safety net cannot be a constitutionally adequate alternative unless “the State adequately informs the general public” about it. 835 F.3d at 651-52. Thus, whatever safety net this Court orders, the Court must ensure the State “adequately informs the general public” about what that safety net is, where they can find it, and how they can use it. Id.
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WEC’s proposed alternatives proved woefully inadequate, with over 14,000 ballots rejected for “insufficient certification” and many more never even returned because the process was simply too complicated for the voters who had requested them. WEC Br. at 11 (ECF No. 444); SDNCFOF ¶ 26; DNCFOF ¶ 156. Moreover, the WEC has not further evaluated the witnesscertification issue, or revised its guidance on this issue in any respect, or even addressed this critical issue in its June 25 Status Report (ECF No. 227) despite the Seventh Circuit’s urgings that it give the issue further attention. on remand. SDNCFOF ¶ 27. Since the Court has sufficient time under Purcell to fashion a safety net that complies with RNC v. DNC and Luft, before absentee voting even begins, the Seventh Circuit’s concerns about changing the witness-certification procedures while absentee voting already was underway do not apply here.
As for the Seventh Circuit’s concerns about the informality of this Court’s statement, which did not have to be signed under penalty of perjury and required no “magic words” of any kind, ECF No. 170 at 46, those concerns can be accommodated by providing objective standards for claiming an exemption, requiring the claim to be signed under penalty of perjury, and requiring the claimant to cooperate with any follow-up inquiries from local election officials. Far from “flouting” the Seventh Circuit’s concerns in RNC v. DNC, the DNC-DPW’s proposals have sought to address and honor those concerns. Again, if intervening defendants have a better idea for a genuine, reliable, and effective safety net for those who cannot satisfy the witness-certification requirement with reasonable effort they are welcome to propose it, but there must be an “adequate” safety net that is “reliably implemented.” Luft, 963 F.3d at 679 (emphasis in original).
The Legislature also claims that any as-applied relief with respect to the witnesscertification requirement would “flout” the Supreme Court’s July 2 decision to stay an Alabama federal district court’s injunction against the enforcement of Alabama’s certification requirement.
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Leg. Br. at 43-44 (citing Merrill v. People First of Alabama). The Legislature characterizes the Supreme Court’s stay order as a decision on the merits, asserting it demonstrates that any injunction by this Court dealing with Wisconsin’s witness-certification requirement “is sure to be stayed by the … Supreme Court once again.” Id. at 46 (emphasis added). That grossly exaggerates the meaning and significance of the Supreme Court’s order, which gave no reasons for the stay and in any event is now moot since Alabama’s July 14 primary has passed and the State has dismissed its appeal (without seeking to vacate the district court’s opinion). SDNCFOF ¶ 30. Although Alabama certainly raised the merits in its Supreme Court stay papers, its lead argument rested squarely on Purcell and had nothing to do with the merits: The district court had issued its injunction modifying the witness-certification requirement on June 15, only 29 days before the July 14 election, at a point when “voters were already voting absentee and had been since March.” Suppl. Umberger Decl. Ex. 12 at 16; see id. at 3 (arguing that changes in absentee-voting rules “while absentee voting is already taking place seriously threatens the integrity of the election”); id. at 19 (arguing that stay was warranted because district court “ha[d] not only altered rules on the eve of an election, but fundamentally changed voting requirements after voting has already begun”).
The timing here is entirely different. Absentee voting for the general election does not begin in Wisconsin until ballots are sent out beginning September 17.16 Thus, any partial, asapplied injunctive relief this Court might grant with respect to the witness-certification requirement can be crafted and implemented prior to the start of absentee voting. Though the Legislature and RNC-RPW ask this Court to read more into the People First stay, that would be
16 Absentee ballots are sent out 47 days before the election for existing applications. See https://elections.wi.gov/clerks/guidance-absentee; see also Wis. Stat. § 7.15(1)(cm).
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entirely speculative. Meantime, the intervening defendants entirely ignore the numerous cases
cited on pages 45-46, note 16 of our opening brief that have modified certification and similar
proof requirements because of the pandemic. These cases all remain good authority for narrowly
focused, as-applied modifications of witness requirements during the pandemic.17
III. This Court should partially enjoin the ID and proof-of-residency requirements as applied to those who attest under penalty of perjury that they cannot meet those requirements after reasonable efforts.
The DNC and DPW understand the Court’s admonition that we should not spend time
seeking to “overturn” decisions that have upheld the general applicability of Wisconsin’s voter ID
and proof-of-residency laws. ECF No. 217 at 13. We shall not do so. Instead, consistent with
Frank II, Frank III, and Luft, we ask the Court to ensure there is a genuine and “reliably
implemented” “safety net” available for the minority of eligible voters who face “high hurdles” in
complying with otherwise-reasonable requirements that 99% of voters can comply with. Frank II,
819 F.3d at 387. We ask the Court to consider two points with respect to this requested as-applied
17 We also call the Court’s attention to the Supreme Court’s newly issued stay in Little v. Reclaim Idaho, No. 20A18, 2020 WL 4360897 (July 30, 2020). In that case, Reclaim Idaho waited “more than a month after the deadline for submitting signatures” on petitions for ballot initiatives had expired before suing for “additional time to gather digital signatures through an online process of solicitation and submission never before used by the State.” Id. at *1 (Roberts, C.J., concurring in stay) (emphasis added). The District Court granted that request, ordering the “develop[ment] and implement[ation of] a new online system over the course of nine days.” Id. (emphasis added). County clerks were required to “learn, under extraordinary time pressures, how to verify digital signatures through an entirely new system mandated by the District Court.” Id. at *2. These were the circumstances in which the Supreme Court stayed the Idaho federal district court’s injunction pending appeal to the Ninth Circuit. Four Justices emphasized that Reclaim Idaho had “delayed unnecessarily” in filing suit. Id. (Roberts, C.J., concurring in stay). Moreover, the case was about ballot access for initiative petitions and was “not a case about the right to vote.” Id. (emphasis added).
The circumstances here are entirely different: this case is about the right to vote; no deadlines have passed or are close to passing; the DNC-DPW have not delayed in filing suit; and they are not trying to impose a new technology on local officials with little notice. And, like the People First stay order, the Little order does not purport to resolve the merits.
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relief. First, there is no principled basis for saying that some identification and proof requirements
are constitutionally required to have a “safety net,” while allowing similar requirements to be enforced rigidly with an iron fist and no exceptions allowed, notwithstanding every voter’s “personal” constitutional right to “individual treatment” and “accommodation that will permit him or her to cast a ballot.” Luft, 963 F,3d at 678 (quotations and citations omitted). For all the reasons discussed above in Part II, voters who believe in good faith they cannot satisfy the photo ID or proof-of-residency requirements challenged here should be allowed to seek an exemption subject to the same conditions discussed above―a signature under penalty of perjury claiming entitlement to a well-defined exemption, specific standards, suitable contact information, and required cooperation with local election officials. No more may constitutionally be required, especially in a time of pandemic.
Second, this Court previously denied injunctive relief on the photo ID requirement (without prejudice) because it was “satisfied that the current proof of ID requirement, as being applied under the [“indefinitely confined” exception], does not impose an undue burden on the right to vote.” ECF No. 170 at 49. The “indefinitely confined” issue is important; the WEC estimates that about 195,000 voters claimed to be “indefinitely confined” in the April 7 election, nearly 2-1/2 times the number who claimed that status the prior year. SDNCFOF ¶ 31. As demonstrated in our opening brief, “indefinitely confined” is not a self-defining term, and in the absence of explicit, prominent instructions on the absentee ballot request form, many voters will likely continue to misunderstand this confusing term. DNC Br. at 46-49.
The Legislature argues these concerns about the vagueness of the “indefinitely confined” standard are “obviously meritless,” because “[t]he law presumes that citizens know and apprise
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themselves of applicable legal rules.” Leg. Br. at 83; see also id. at 52 (“all citizens are presumed to know the law”). The only decision the Legislature cites for these bromides does not go nearly so far; rather, it says that a “statute or regulation is adequate notice in and of itself as long as it is clear.” Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597, 600 (7th Cir. 2016) (emphasis added). Thus, “regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit.” Id. (internal quotation marks and citation omitted). Rather than dismissing complaints about vague standards on the grounds that “all citizens are presumed to know the law,” Leg. Br. at 52, courts “insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (citations omitted); see Gresham v. Peterson, 225 F.3d 899, 937 (7th Cir. 2000) (due process “forbids the enforcement of a law that contains ‘terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application”). The undefined “indefinitely confined” standard is precisely the sort of vague rule that invites application “on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 109.
The record shows that many voters have misunderstood their entitlement to claim this status; those who even know about it have been given vague and conflicting guidance on what it means to be “indefinitely confined.” See DNCFOF ¶¶ 170-71; Burden Rep. at 12-13. The “indefinitely confined” option gets only passing fine-print the mention in WEC’s planned instructions to voters who request an absentee ballot for the November election. Id. ¶ 167. Those instructions do not tell voters that designation of indefinitely confined status is for each individual voter to make based on how they feel about their own current circumstances. Nor do those instructions tell voters that a claim of indefinitely confined status does not require permanent or
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total inability to travel outside of their residence. Id. ¶ 168. The instructions to voters do warn, however, that they may be fined $1,000 or imprisoned up to six months for falsely making an assertion in connection with the indefinitely confined option. Id. ¶ 169. And the WEC has no plans to modify its guidance on indefinitely confined status to clarify that being in a COVID-19 high-risk category is a qualifying condition. Id. ¶ 173. To the contrary, that is a sharply disputed issue and the subject of widely conflicting advice to voters, an illustration of the uneven, confusing, and inadequate use of this option, the supposed “safety net” for the ID requirement in this time of pandemic. See DNCFOF ¶¶ 165-73.
In the absence of explicit, prominent instructions on the absentee ballot request form, on the WEC’s website and in other informational materials, voters are likely to misunderstand the scope of their entitlement to claim this status and, if they are otherwise unable to copy or upload an acceptable photo ID, may forego attempting to obtain an absentee ballot. IV. This Court should order defendants to take further steps to ensure all Wisconsin
voters have access to safe and secure in-person voting opportunities. To reduce duplication, the DNC and DPW deferred in their opening brief to the comprehensive demonstration by the Swenson plaintiffs and their expert, Keven Kennedy, of the many measures the WEC can and should take to ensure safe and secure in-person voting opportunities, both through early voting and on election day. The DNC and DPW again defer to, and incorporate by reference, the Swenson plaintiffs’ arguments on these matters in their reply brief. This includes the Swenson plaintiffs’ reply to the defense arguments that these claims should be directed at local election officials rather than the state agency charged with “responsibility” for the “administration” of Wisconsin’s election laws. Wis. Stat. § 5.05(1). The WEC has the authority to set statewide rules “regulating the conduct of elections … or ensuring their proper administration.” Id. § 5.05(1)(f); see also ECF No. 420 at 50-53. That is precisely what the DNC
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and DPW seek, and they need not sue thousands of local election officials to ensure that the Commissioners exercise their responsibilities regarding the proper “conduct” and “administration” of the November 3 general election. V. The challenged provisions violate federal due process guarantees.
The Legislature argues the DNC and DPW only “half-heartedly contend” they have a distinct due process claim; that “the DNC Plaintiffs agree their procedural due process claim is duplicative of the Anderson/Burdick framework”; and that DNC and DPW concede a due process analysis is “not necessary.” Leg. Br. at 72 (citing Luft, emphases added). None of that is true. Our opening brief advised that we had found no election law case in which a court rejected an Anderson-Burdick claim while allowing a due process claim (or vice versa), but also cited numerous decisions that have elected to use due process analysis under the Mathews v. Eldridge framework rather than following an Anderson-Burdick analysis. See DNC Br. at 55 & n. 19.18 We explained why it sometimes makes more sense to view a voting rights issue through a due process lens rather than an Anderson-Burdick lens, as the cited decisions did in cases involving, e.g., adequacy of notice, whether post-deprivation notice and opportunity to cure are required, and the like. Id. at 55. The Legislature fails even to acknowledge any of these cited decisions, much less attempt to refute our reliance on them.19
18 See, e.g., Saucedo v. Gardner, 335 F. Supp. 3d 202, 222 (D.N.H. 2018) (enjoining law requiring rejection of ballots due to signature mismatch without giving voters opportunity to cure); Fla. Democratic Party v. Detzner, 4:16cv607-MW/CAS, 2016 WL 6090943, at *9 (N.D. Fla. Oct. 16, 2016) (same); Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *9 (N.D. Ill. Mar. 13, 2006) (“Once rejected, the ballot cannot be rehabilitated and cast after a post-deprivation hearing.”); see also id. (“It is apparent that the risk of erroneous deprivation of the protected interest in absentee voting is not enormous, but the probable value of an additional procedure is likewise great in that it serves to protect the fundamental right to vote.”).
19 For additional relevant decisions, see Martin v. Kemp, 341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018) (“Having created an absentee voter regime through which qualified voters can exercise
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Sufficiency of vague terms like “indefinitely confined.” Voters’ procedural due process rights are violated when they are required to comply with “a law that contains ‘terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application.’” Gresham, 225 F.3d at 907 (citations omitted). The Legislature dismisses these concerns about vagueness with the argument that “all citizens are presumed to know the law.” Leg. Br. at 52; see also id. at 83 (“The law presumes that citizens know and apprise themselves of applicable legal rules.”). But the only authority it cites contains the crucial caveat that a “statute or regulation is adequate notice in and of itself as long as it is clear.” Cochran, 828 F.3d at 600 (emphasis added). Thus, as discussed in greater detail in Part II supra, “regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit.” Cochran, 828 F.3d at 600 (internal quotation marks and citation omitted); see Gresham, 225 F.3d at 937 (due process “forbids the enforcement of a law that contains ‘terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application”). The undefined “indefinitely confined” standard is precisely the sort of vague rule that invites application “on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 109.
Deadline for mailing ballots. Unlike the deadline to vote in-person, which is clear—to participate, you must join the line by 8 p.m.—there is no clear instruction given to voters on how
their fundamental right to vote, the State must now provide absentee voters with constitutionally adequate due process protection.”); Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990) (invalidating Arizona’s practice of not notifying absentee voters of ballots’ rejection and recognizing that absentee voting “is deserving of due process” even though “voting absentee is a privilege and a convenience for those unable to vote in person,” and holding that “[s]uch due process is not provided when the election procedures do not give some form of post-deprivation notice to the affected individual so that any defect in eligibility can be cured ….”).
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to ensure their votes will be counted if they vote absentee. The time needed to send back a ballot is a moving target, changing depending on the postal service and guesswork of local elections officials. This is a constitutionally indefensible way to run an election—particularly when absentee ballots are how a record-breaking number of Wisconsin voters are likely to cast their ballots just over three months from now.
For procedural due process claims, “it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). This Court should ask: are voters receiving adequate notice of election procedures? Are elections officials providing specific guidance—such as a precise date—for voters to return their absentee ballots to ensure timely delivery? The answer is “no.”
What’s more, the DNC and DPW have shown that the “probable value” of “additional or substitute procedural safeguards,” Mathews v. Eldridge, 424 U.S. 319, 335 (1976), is enormous— a far cry from the intervenor defendants’ belittlement of these safeguards. See ECF No. 454 at 84. The precise “value” of extending the deadline is one this Court is familiar with; the additional procedural safeguards this Court ordered in April resulted in nearly 80,000 Wisconsin voters vindicating their liberty interest in the franchise. And a similar extension when even more voters will be casting their ballots may well be necessary to vindicate hundreds of thousands of voters’ protected liberty interests in the franchise. See ECF No. 475 at 34:10-35:20 (explanation by WEC Chair Jacobs of how absentee ballots cast by “several hundred thousand voters” are at risk of not being counted if they arrive after election day). Just as the injury caused by a lost vote is “irreparable,” the value of a rescued vote is priceless.
Opportunity to cure ballot errors. Wisconsin law permits—but does not require— municipal clerks to return to voters ballots with incomplete certificates or no certificates
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“whenever time permits” the voters “to correct the defect and return the ballot[s]” by 8 p.m. on Election Day. Wis. Stat. § 6.87(9). As a result, municipal clerks received guidance from the WEC stating, for example, “[i]f you receive an absentee back with the certificate not correctly completed, you can contact the voter.” SDNCFOF ¶ 28. (emphasis added).
This procedure is constitutionally inadequate in several ways. First, the municipal clerk “may” return a defective ballot to the voter. Wis. Stat. § 6.87(9). She does not have to. The WEC advised that a “[clerk] should make their best effort to contact the voter to advise them of their options” to cure deficiencies, but did not require them to. ECF No. 412-34, Ex. 84 at 4. During a time period when clerks will be sending out, receiving, and processing record numbers of absentee ballots, it is unlikely that reaching out to voters to cure their ballots’ deficiencies will be near at the top of their to-do lists, particularly when there is no requirement that they do so. And reaching out for cure opportunities can also be impossible. At least one clerk could only reach voters who provided phone numbers to the clerk’s office: “We acted like detectives trying to find and get a hold of these people.” Suppl. Umberger Decl. Ex. 1.
Second, even if the clerk decided to embark on a cure process, she must mail the ballot to the voter and the voter must return the correct ballot all before the 8:00 p.m. deadline on election night. This forecloses any hope of curing ballot errors for any voter who cast their ballot within the final week before election day, if not earlier. In other words, the vindication of voting rights depends not just on the mail functioning properly, but on the sole discretion of a municipal clerk. During the spring election, voters whose absentee ballots were received after April 7 had no opportunity to cure witness-related deficiencies. SDNCFOF ¶ 29. These grave problems culminated in the rejection of more than 14,000 ballots for witness certification deficiencies. WEC Br. at 11.
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While these are examples of constitutionally infirm examples of pre-deprivation processes, Wisconsin provides no post-deprivation process. Voters simply do not know their absentee ballots have been rejected for one of dozens of reasons: a lack of witness signature, the witness was not a U.S. citizen, the witness failed to write his address, the ballot arrived after 8:00 p.m. on election day, to name a few. As one federal court has observed, when a voter is not notified that his absentee ballot has been rejected, “due process is not provided . . . so that any defect in eligibility can be cured and the individual is not continually and repeatedly denied so fundamental a right.” Raetzel, 762 F. Supp. at 1358. Without any post-deprivation process, including any notice requirement, Wisconsin voters risk making the same mistakes in election after election. VI. The challenged provisions violate equal protection guarantees.
The Legislature continues to argue that Bush v. Gore, 531 U.S. 98 (2000), was, in effect, a judicial one-night stand, a decision better left undiscussed and forgotten whose equal protection holdings supposedly mean nothing thereafter. Leg. Br. at 79-84. They argue that “other courts have concluded that the Bush opinion is not applicable” to other election law cases, citing only a single decision. Id.at 79, citing Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) (internal punctuation omitted). But Lemons “concluded” no such thing. It reserved judgment on whether Bush v. Gore applied in that case and instead “concluded” that, “[e]ven were Bush applicable,” the challenged “standard” for verifying referendum signatures “would be sufficiently uniform and specific to ensure equal treatment of voters.” Id. at 1106. The Legislature also disregards the many decisions cited in our opening brief demonstrating that “[c]ourts repeatedly have relied on the equal protection principles enunciated in Bush v. Gore in a variety of election law circumstances.” DNC-DPW Br. at 56-57 (numerous citations omitted). Additional authorities refuting the Legislature’s false claim that Bush v. Gore has not been applied outside its specific
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context are included in the footnote below.20
The Legislature also seizes on the word “procedures” in Bush v. Gore, argues that the
decision is limited to arbitrary and disparate “procedures,” and spends several pages purporting to
show that the various matters challenged by the DNC and DPW under an equal protection
analysis―e.g., disparate application of the “postmarked by election day” requirement, disparate
definitions of “indefinitely confined,” disparate guidance on other absentee-voting requirements,
and the like―are not actually “election procedures,” but something else. “[D]isparate treatment
regarding voter registration and requests for absentee ballots”? Leg. Br. at 80. Not a “specific
election procedure[],” and thus not subject to equal protection guarantees. Id. (emphasis added).
The “indefinitely confined” exemption? That’s a “standard,” not a “procedure.” Id. at 83. And
the “postmark” deadline? That’s a judicially imposed “requirement,” and involves no “election
procedures.” Id. at 84.
With respect, these supposed distinctions between “procedures,” on the one hand, and
“standards” and “requirements,” on the other, are an invention, the result of nothing more than
20 See, e.g., Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 242 (6th Cir. 2011) (affirming district court determination that “the intrajurisdiction unequal treatment undertaken by the Hamilton County Board” in its disparate treatment of provisional ballots violated equal protection); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477–78 (6th Cir. 2008) (allegations of disproportionate allocation of voting machines among counties stated equal protection claim; “[v]oting machines were not allocated proportionately to the voting population, causing more severe wait times in some counties than in others”); Stewart v. Blackwell, 444 F.3d 843, 876-77 (6th Cir. 2006) (allegations of disproportionate use of unreliable voting equipment among counties stated equal protection violation), superseded as moot, 473 F.3d 692 (6th Cir. 2007) (case mooted after Ohio agreed to stop using the unreliable equipment); Black v. McGuffage, 209 F. Supp. 2d 889, 892, 899 (N.D. Ill. 2002) (allegations that votes in some counties were statistically less likely to be counted than votes in other counties because of disparate “systems” used among them stated equal protection claim); Common Cause S. Christian Leadership Conference of Greater L.A. v. Jones, 213 F. Supp. 2d 1106, 1109 (C.D. Cal. 2001) (allegations that some counties adopted more reliable voting procedures than others stated equal protection claim for “unreasonable and discriminatory” treatment).
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selective quotation from Bush v. Gore itself. To be sure, Bush emphasizes the equal protection entitlement to “minimum procedures necessary to protect the fundamental right of each voter.” 531 U.S. at 109. Among other things, this requires “uniform rules” and “specific standards” to ensure fair and equal “treatment” of voters. Id. at 106-07 (emphasis added). Whether characterized as “procedures,” “rules,” or “standards,” the underlying constitutional rule is that the State of Wisconsin may not “value one person’s vote over that of another.” Id. at 104-05. And as demonstrated in our opening brief, there is no “emergency exception” from this equal protection guarantee. Id. at 108-09.
Confusing “indefinite confinement” exemption. A further example of “arbitrary and disparate treatment [of] voters,” Bush, 531 U.S. at 104-05, is the interpretation adopted by the WEC and the Wisconsin Supreme Court of Wis. Stat. §§ 6.86(2)(a) and 6.87(4)(b)(2), which exempt voters who are “indefinitely confined because of age, physical illness or infirmity” from many of the absentee voting restrictions and conditions. As discussed above, in response to conflicting advice from county and local election officials about what it takes to be “indefinitely confined” by the pandemic within the meaning of these statutes, the Wisconsin Supreme Court, in an original action, adopted the WEC’s guidance that the “[d]esignation 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.” Jefferson v. Dane Cty., No. 2020AP557-OA, at *2 (Wis. 2020) (emphasis added). This “guidance” in no way provides “uniform” rather than “arbitrary and disparate treatment to voters.” Bush, 531 U.S. at 106-07. If using a standard that “might vary . . . from county to county” or “within a single county” violates equal protection, id. at 106, so much more the case where the interpretation and application of the standard varies from voter to voter. The record amply demonstrates the confusing and “piecemeal
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way” in which this exemption was administered. Wisconsin Election Protection, 2020 Spring Election Report at 9-10 (Ex. 59); DNCFOF ¶¶ 165-73, 207-09, 214.
Standardless “postmark” requirement. Another example of disparate and non-uniform treatment in the April election involved the interpretation and administration of the U.S. Supreme Court’s requirement that an absentee ballot be “postmarked by election day” in order to be counted. RNC, 140 S. Ct. at 1208. Wisconsin elections officials and the Postal Service do not follow uniform standards and procedures in postmarking absentee ballots. As a result, many absentee ballots were returned to local election officials by the Postal Service with either no postmarks at all, postmarks without dates, or illegible postmarks. The six Commissioners of the WEC, on a 33 tie vote, largely failed to agree on how election officials should address these issues, leaving local election officials throughout Wisconsin to make these decisions on a discretionary an ad hoc basis without any uniform standards ensuring consistent treatment throughout the State. DNCFOF ¶ 215.21
Disparate standards on notice and opportunity to cure faulty ballots. As explained above, see supra at 51-53, Wisconsin’s municipal clerks are only permitted—but not required— to reach out to voters “with an improperly completed certificate or with no certificate,” and only “whenever time permits” the voter to correct the issue and return it by 8:00 p.m. on election day. Wis. Stat. § 6.87(9). The result is a patchwork landscape of notices and voters’ opportunities to
21 The WEC is promoting the use of “intelligent bar codes” as a way to reduce if not eliminate the many uncertainties of the postmark rule. This is a promising development. As Ms. Wolfe testified, however, the decision whether to use these codes will be left entirely to the discretion of local election officials. ECF No. 247 (Wolfe Dep.) at 56:2-57:5. In addition, while most election offices have the equipment required to scan bar codes, some in rural areas do not. Id. at 59:22-60:9. Thus, this partial, optional switch to bar codes will not only fail to resolve the equal protection problems in those jurisdictions that do not adopt them, it will exacerbate the lack of uniformity among Wisconsin election jurisdictions.
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cure their ballots; whether one’s vote counts depends entirely on where they live and whether the municipal clerk in that specific locality has decided to exercise her discretion in contacting the voter or has the ability to do so. For example, when one absentee voter failed to include their date of birth on an absentee ballot, the WEC advised the municipal clerk to fill in the date herself and then advised “[i]f you have an email or phone number for this voter, I would also contact them and remind them to fill in their DOB . . . before they mail it back to you.” Suppl. Umberger Decl. Ex. 27. Of course, these communications depend entirely on whether the clerk decides to contact the voter, and the clerk’s discretion in this respect is essentially unchecked. Many clerks do not bother to contact voters at all. No wonder so many voters “expressed surprised that their ballots were not counted” when members of the press reached out to some of them. Suppl. Umberger Decl. Ex 1. VII. Plaintiffs meet all other requirements for their requested preliminary injunction
relief. A. Plaintiffs satisfy all other preliminary injunctive criteria. The DNC and DPW demonstrated in their opening brief that all additional requirements for injunctive relief are readily met here: they, their members, and their constituents face irreparable injury for which they have no adequate legal remedies; the balance of equities favors granting the requested relief; and the relief is strongly in the public interest. DNC Br. at 59-62. This Court concluded in March and then again in April that plaintiffs satisfied all these requirements for injunctive relief, and it should so conclude again for all the reasons discussed in its previous decisions. See ECF No. 37 at 18-20; ECF No. 170 at 24-28; see also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (emphasizing citizens’ “strong interest in exercising the ‘fundamental political right’ to vote”) (citation omitted). The other plaintiffs’ groups also amply discuss the various requirements for preliminary injunctive relief, and there is no need for further analyses of the issue.
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The DNC and DPW will, however, respond to the one argument directed at them on the issue of irreparable injury. The Legislature charges that “the DNC Plaintiffs,” in asking this Court to retain jurisdiction and require periodic reports on compliance with its injunction, are “essentially” asking this Court to take Wisconsin’s election system “into a federal receivership,” which “would gravely harm the State’s interests.” Leg. Br. at 114 (emphasis added). That of course is not true. Federal district courts routinely retain jurisdiction after granting injunctive relief to ensure proper compliance, and they routinely require enjoined parties to “report back on [their] progress.” Id. That’s exactly what the Seventh Circuit, sitting en banc, unanimously instructed Judge Peterson to do during the run-up to the last Presidential election. See Frank III, 835 F.3d at 652 (“The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election.”). That hardly amounts to a “federal receivership,” let alone “grave[] harm [to] the State’s interests.” Leg. Br. at 114.
B. As this Court repeatedly has ruled, it has Article III jurisdiction and should not abstain in favor of state remedies.
The Legislature again raises two Article III jurisdictional defenses―standing and ripeness―along with its now-familiar Burford abstention argument. See id. at 100-05, 108-12. This Court has rejected all these arguments before and should again.
Standing. The Legislature claims the DNC and DPW lack “standing” because they are suing the wrong parties. It argues that plaintiffs are “attack[ing] the actions and responsibilities of local election officials that they have declined to name as defendants, as well as the alleged actions of non-party USPS.” Leg. Br. at 100-01. And it even argues that “[a]ll” of DNC and DPW’s requests for relief “are properly directed at local officials and, in some cases, the USPS, not the Commission.” Id. at 101.
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This Court already has held that the DNC and DPW have Article III standing to assert their members’ rights as well as their own organizational interests. See ECF No. 37 at 6-7. DNC-DPW submitted updated evidence on July 8 demonstrating they continue to suffer both kinds of Article III injuries as the direct and proximate result of the state action in this litigation. See DNC Br. at 27 n.11; DNCFOF ¶¶ 16-22, 48 n.14. The Commissioners obviously are the proper defendants to sue for statewide declaratory and injunctive relief barring the enforcement of the challenged provisions in this case―Wis. Stats. §§ 6.28(1), 6.34, 6.86, 6.87, and 6.87(2). The Commissioners are the officials charged by law with “the responsibility for the administration of” these challenged provisions, and they have a variety of rulemaking, oversight, planning, guidance, and other tools for the “administration” of these provisions. Wis. Stat. § 5.05(1) (emphasis added); see DNC Br. at 50-53; ECF No. 85 at 7. There would be no basis for suing local election officials, let alone the USPS, for declaratory and injunctive relief against the enforcement of state statutes that the WEC is responsible for administering. Indeed, the WEC defendants have acknowledged that, if this Court enters renewed injunctive relief against any of the challenged provisions, “the WEC will be responsible for issuing appropriate guidance to implement that decision.” ECF No. 378 at 16.22
The only challenge brought by the DNC and DPW involving overlapping state and local authority concerns the safety and security of polling places. That challenge is addressed in Part IV supra and in the Swenson plaintiffs’ briefing. As shown there, despite the significant role delegated to local election officials, the WEC retains ample statutory authority and the duty to set and enforce standards and procedures to maximize the safety and security of in-person voting
22 The Legislature also appears to concede that the Commissioners (in their official capacities) are proper defendants to sue for an injunction against “statewide rules like voter ID,” as opposed to “those aspects of election administration unambiguously allotted only to local officials.” Leg. Br. at 103. Nearly all of the DNC and DPW’s claims focus on “statewide rules” that the WEC is responsible for administering.
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locations. Ripeness. This Court observed in its June 10 Opinion and Order that “the Legislature
appears to propose a rule in which it would either be ‘too soon’ or ‘too late’ to enforce voting rights”―that is, a voting rights claim is either not yet ripe or it comes “too late” and thus is barred under the Purcell principle. ECF No. 217 at 9. To avoid that contradiction, the Legislature this time focuses just on ripeness and leaves Purcell to the RNC and RPW.
The Legislature once again contends that the DNC and DPW’s claims are not “ripe” because the November 3 election is still over three months away, any decision now would require “[s]peculation about the course of COVID-19 in November,” and we cannot predict “how Wisconsin’s election administration will respond to the virus.” Leg. Br. at 108-10. The Legislature insists “[t]his is textbook unripeness.” Id. at 110. But the Legislature does not even acknowledge that this Court already has rejected these identical ripeness arguments, let alone attempt to engage the Court’s decision on its own terms and show why the Court should rule differently now. See ECF 217 at 7-8 (holding that “plaintiffs’ claims state an actual and concrete conflict premised on the near-certain enforcement of the challenged provisions in the context of the present and ongoing COVID-19 health care crisis,” and that plaintiffs “are likely to suffer adverse consequences if the court were to require a later challenge”). Nor does the Legislature bother citing, let alone distinguishing, the principal decisions this Court discussed in its ripeness analysis. Id. at 9-10 (discussing Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), and Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008)). It’s as if this Court had never ruled on the issue.
Meanwhile, the RNC and RPW don’t mention ripeness and instead invoke Purcell in arguing it is too late to grant any of plaintiffs’ requested relief because “any injunction in this case
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would issue less than three months before the election.” ECF No. 455 at 5. Thus, the Legislature claims an election in three months is too far from now to grant any relief, while RNC-RPW claim the same election is too close to grant any relief. Once again, in the world of the intervening defendants it always is either “too soon” or “too late” when it comes to the enforcement of voting rights protected under the U.S. Constitution.
Burford abstention. The Legislature once again invokes its threadbare Burford abstention defense, arguing this Court should “allow [!!] all Plaintiffs to take their claims to the Wisconsin courts” rather than continue to litigate those federal claims in federal court. Leg. Br. at 112 (emphasis added). This defense has repeatedly been briefed and rejected by this Court, and the Legislature offers nothing new this time around. See ECF No. 37 at 17 n.12; ECF No. 217 at 1618. Remarkably, the Legislature does not even acknowledge the Court’s previous decisions rejecting Burford abstention, attempt to show how the Court erred in its prior analyses, or try to distinguish the Seventh Circuit authority cited by the Court. For example, this Court has emphasized that Burford abstention is appropriate only where the state offers a “specialized tribunal[] with a special relationship with [the] issues” in dispute. ECF No. 217 at 18; see Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (“judicial review by state courts with specialized expertise is a prerequisite to Burford abstention”); Prop. & Cas. Ins. Ltd. v. Cent. Nat’l Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir. 1991) (Burford abstention appropriate only where the state forum “stand[s] in a special relationship of technical oversight or concentrated review to the evaluation of th[e] claims” in issue). The Legislature does not even mention the “specialized tribunal” issue, and it misleadingly cites Adkins for the proposition that “Wisconsin’s state election laws count as such a ‘state regulatory regime’” that deserve Burford deference from federal courts. Leg. Br. at 111 (citing Adkins ). Adkins said no such thing. It had nothing to do with election
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laws, but involved the interplay of federal and state environmental laws, and the Seventh Circuit rejected Burford abstention because the State of Indiana in that case did not provide for “concentrated” review in “specialized courts”―the “essential condition of Burford abstention.” 644 F.3d at 504-05. Neither does the State of Wisconsin, and that should be the end of any further discussion of Burford in this case.23
Moreover, the Seventh Circuit’s Frank III and Luft decisions are ringing re-endorsements of the federal district courts’ jurisdiction and responsibility to ensure that state election agencies comply with federal voting rights. See Frank III, 835 F.3d at 651-52 (en banc) (“The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election.”); Luft¸ 963 F.3d at 679-81 (discussing district court’s responsibility to ensure the State’s promised voter ID reforms are “reliably implemented,” and remanding for further proceedings). There is no room for Burford abstention in the enforcement of federal voting rights.
CONCLUSION For the reasons set forth above and in the DNC-DPW’s opening brief and other submissions; in the submissions of the Gear, Edwards, and Swenson plaintiffs; and in the evidence and argument to be presented in the upcoming preliminary injunction hearing, this Court should grant the DNC and DPW’s motion for a renewed preliminary injunction containing the terms set
23 Rather than addressing this Court’s Burford reasoning and the key Seventh Circuit decisions that support it, the Legislature instead quotes out of context (at 112) from the wholly inapposite SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010). That case applied Younger, not Burford abstention, and involved an effort to obtain federal injunctive relief targeted at “pending state eviction actions” in Illinois state court. Id. at 678. The Seventh Circuit rejected this effort “to have a federal court tell state courts how to manage and when to decide a category of cases pending in the state courts,” because federal courts may not “step in and tell the state courts how to manage their dockets.” Id. at 679-80. This of course has nothing to do with our case; there are no pending state proceedings and no basis to abstain.
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forth in the Prayers for Relief at the end of their motion (ECF No. 252) and opening brief (ECF
No. 420 at 62-64).
Respectfully submitted,
/s/ John Devaney Marc E. Elias John Devaney Bruce V. Spiva Amanda R. Callais Zachary J. Newkirk PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com jdevaney@perkinscoie.com bspiva@perkinscoie.com acallais@perkinscoie.com znewkirk@perkinscoie.com
Charles G. Curtis, Jr. Michelle M. Umberger Sopen B. Shah Brandon M. Lewis PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 CCurtis@perkinscoie.com MUmberger@perkinscoie.com SShah@perkinscoie.com BLewis@perkinscoie.com
Counsel for Plaintiffs in Case No. 20-cv-249-wmc
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
SYLVIA GEAR, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants, and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
CHRYSTAL EDWARDS, et al., Plaintiffs, v.
ROBIN VOS, et al., Defendants. and
REPUBLICAN NATIONAL COMMITTEE, et al., Intervening Defendants.
JILL SWENSON, et al., Plaintiffs, v.
MARGE BOSTELMANN, et al.,

Civil Action No.: 3:20-cv-249-wmc Civil Action No.: 3:20-cv-278-wmc Civil Action No. 3:20-cv-340-wmc Civil Action No. 3:20-cv-459-wmc

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and REPUBLICAN NATIONAL COMMITTEE, et al.,
Intervening Defendants.
EDWARDS PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION Time is not helping the Legislative Defendants’1 efforts to minimize the threat posed by COVID-19. The thrust of their defense on the facts is that it’s purely speculative whether the pandemic will even pose a public health threat come November, and even if it does, Wisconsin is fully equipped for safe in-person voting and has a fully functional absentee ballot process for those who do not wish to vote in person. Thus, the pandemic does not require any adaptations at all. Defendants’ contentions are at best irresponsible and at worst outright dangerous. More important, they are daily belied by more facts demonstrating that COVID-19 is persistent, spreading, and ever more dangerous. On July 8, 2020, the day that plaintiffs filed their motions for preliminary injunction, the PGA of America announced that the 2020 Ryder Cup, which was to have been contested at Whistling Straits in Sheboygan County September 22-27, 2020, was postponed to 2021 “based on guidance from the Centers for Disease Control and Prevention, and in conjunction with the state of Wisconsin and Sheboygan County, with the health and well-being of all as the top priority.”2 More recently, the events of ordinary life continue to be cancelled or postponed; we
1 We focus on the Legislative Defendants (including Intervenor Republican National Committee) because of Defendant WEC’s assertion in its brief that it “does not take a position on the specific relief requested” by plaintiffs. (WEC Br. 3.) 2 https://www.rydercup.com/updated-event-information.
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highlight just a few of those here. On Monday of this week, the Wisconsin Intercollegiate Athletic Conference – the conference that includes UW-Oshkosh, UW-Eau Claire, UW-La Crosse, UWPlatteville and other UW System schools – announced that the fall seasons for football, women’s soccer, women’s volleyball, and men’s and women’s cross-country are canceled for the 2020-21 academic year.3 On Thursday, July 30, 2020, based on “a surge of new COVID-19 cases” here, the City of Chicago added Wisconsin to a list of 22 states from which travelers entering Chicago must quarantine upon their arrival for 14 days.4
Also on Thursday, July 30, Governor Tony Evers issued Emergency Order #1, mandating that people indoors wear masks in nearly all situations.5 In shamefully typical Wisconsin fashion, several local law enforcement officials immediately announced that their offices would not enforce the Order.6 And in equally shamefully typical fashion, Defendant and Wisconsin Senate Majority Leader Scott Fitzgerald announced today that “Republicans in the State Senate stand ready to convene the body to end the Governor’s order, which includes the mask mandate.”7
After all this, perhaps the most remarkable cancellation occurred this morning. Major League Baseball is a multi-billion-dollar industry that is devoting extensive resources to prevent players and team personnel from exposure to COVID-19.8 It has literally billions of dollars at
3 https://wiacsports.com/news/2020/7/27/general-wiac-fall-statement-on-covid-19.aspx. 4 https://www.chicago.gov/city/en/sites/covid-19/home/emergency-travel-order.html. 5 https://evers.wi.gov/Documents/COVID19/EmO01-FaceCoverings.pdf. 6 https://www.channel3000.com/sheriffs-office-in-northern-wisconsin-refusing-to-enforce-mask-mandate/ (sheriffs of Grant, Dodge, Lafayette and Washburn Counties); https://urbanmilwaukee.com/pressrelease/statement-fromwaukesha-county-executive-paul-farrow-after-governor-evers-issues-mask-mandate/ (criticism by Paul Farrow, Waukesha County Executive); https://www.wisn.com/article/some-sheriffs-around-state-say-they-wont-enforcemask-mandate/33475941 (sheriffs of Racine and Washington Counties). 7 https://twitter.com/sbauerAP/status/1289235396514263040. 8 https://www.si.com/extra-mustard/2020/06/24/mlb-return-coronavirus-health-protocols.
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stake in completing its abbreviated regular season and crowning a World Series winner.9 People hoped that the outbreak that hit the Florida Marlins last weekend and forced them out of action through early August would prove to be an isolated incident.10
Unfortunately, it was not. Early this morning, the Milwaukee Brewers’ fan-less home opener against the St. Louis Cardinals, set to begin at 1:10 p.m., was postponed because several Cardinals players tested positive for COVID-19.11 Late in the afternoon of Friday July 31, MLB Commissioner Rob Manfred met with representatives of the Major League Baseball Players Association and warned that he could shut down the entire season as soon as Monday if players do not take more effective steps to eliminate positive tests.12 If Major League Baseball, with resources literally orders of magnitude greater than those available to the WEC and 1,800 cashstrapped Wisconsin municipalities, cannot crush the coronavirus, how can we hope to conduct early voting, absentee balloting, and the in-person November Election without life-threatening outbreaks – especially under the “business as usual” rules that Defendants insist are sufficient?
The only way Defendants can win this case is if this Court accepts their position that it involves nothing more than the application of ordinary legal rules to ordinary times. Unlike sporting events, the November Election cannot be cancelled or delayed. But Wisconsin’s political process is failing the plaintiffs. Every time a Wisconsin politician or administrator decrees a measure to protect public health, some officials declare they will refuse to enforce it, while litigants
9 Total MLB revenues in 2019 were almost $11 billion, much of which is generated by the playoffs and World Series television rights. https://www.forbes.com/sites/maurybrown/2019/12/21/mlb-sees-record-107-billion-inrevenues-for-2019/#4bc108535d78. 10 https://www.cbssports.com/mlb/news/marlins-covid-19-outbreak-another-player-tests-positive-friday-20-totalreported-cases-among-team/. 11 https://www.espn.com/mlb/story/_/id/29570869/source-mlb-calls-cardinals-brewers-game-due-coronavirus. 12 https://www.espn.com/mlb/story/_/id/29572885/sources-mlb-commissioner-warns-shutdown-players-do-betterjob-managing-coronavirus.
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run to court to block the measures and the Legislature either prepares to join in the blocking or refuses to adopt any remedies. This Court’s broad equitable powers are plaintiffs’ only hope to be freed from the untenable, illegal Hobson’s choice of either risking their lives by exercising their right to vote in person, or risking their franchise by participating in the November election through an absentee ballot system that will not be able to function as designed.
DISPOSITIVE FACTS Of course, Major League Baseball, the Wisconsin Intercollegiate Athletic Conference, and the Ryder Cup have it comparatively easy: they can cancel or postpone events. Likewise, Chicago and other cities can impose quarantine orders and let time reduce the risk that travelers from viral hot spots will cause a flareup of contamination. Not so Wisconsin and its sister states regarding the November Election. Under 3 U.S.C. § 1, they must hold the Presidential election “on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” That date will not change, even with COVID-19 raging. With the date carved in stone, the only way to ensure safe and effective voting is for the political branches to adopt, or the courts to decree, special measures designed to blunt the effects of the virus. Or, if you are the Legislative Defendants, you can assert that the problem isn’t all that bad in the first place, and in any event there is no proof that the pandemic will still be with us in November. They cite no persuasive authority for their contention, because there isn’t any. Not only do each new day’s cancellations, new case reports, and death statistics disprove the Legislative Defendants’ position, but it is simply inconsistent with the nature of infectious diseases: they smolder – or explode – until they have burned their way through a population. Plaintiffs’ experts Patrick Remington, M.D. and Megan Murray, M.D. explained this phenomenon at their depositions. Dr. Remington testified that
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given, in particular, what we know about the biology of COVID, how extremely communicable it is, its ability to go from person to person prior to symptom development, 40 percent or more of individuals infected are asymptomatic, most individuals who become symptomatic are contagious prior to symptoms. So I think for all of these reasons: The nature of the organism, the patterns of transmission globally, nationally, and within Wisconsin; and then, finally, I think despite having close to 50,000 cases, with 5 and a half million, or 5.8 million people in the state, we have a tremendous reserve, tremendous number of people who remain susceptible. And the evidence is that as long as you have susceptible populations and community transmission, that we will continue to see epidemics. . . . And the risk will be – of contracting and transmitting COVID-19 will be significant into November.
(Dkt. # 269, P. Remington M.D. Dep. Trans. at 36-37.)
For her part, Dr. Murray also testified that the trajectory of an epidemic doesn’t decline
unless some intervention or change to cause it:
So the things that alter the number of infectious people at any particular moment, the trajectory of an epidemic, are that you’ve either seen a change in the number of people who contact each other over time, then the transmissibility of an organism over time, and that’s where weather kind of, you know, was I think, a question. That seems to be less the question now, or that a vaccine is altering the risk of transmission. But we don’t – you know, of course anything is possible, the world might end, but from a reasonable perspective we’re not going to see a decline unless something happens to make that decline.
(Dkt. # 282, M. Murray M.D. Dep. Trans. at 116-117.)
As the Edwards Plaintiffs point out in their replies to the Defendants’ responses to the
Proposed Findings of Fact, neither the Legislative Defendants nor WEC mounts a significant
challenge to our factual contentions.13 The principal alleged dispute rests on the Legislative
Defendants’ attempt to deny that in-person voting is a threat to public health and safety. Yet they
have failed to show that in-person voting in the middle of a deadly pandemic is safe, and they have
not presented any evidence to contradict the overwhelming reality of epidemiological science that
COVID-19 is certain to remain a threat through the November Election. The Legislative
13 As to the Legislative Defendants, this is principally because many paragraphs are deemed admitted by virtue of Defendants’ failure to follow this Court’s rules setting forth the requirements for a contested fact.
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Defendants do not have evidence showing any reason to believe that the pandemic will have eased by November.
ARGUMENT I. FEDERAL COURTS HAVE POWER TO IMPOSE EXTRAORDINARY
REMEDIES BASED ON EXTRAORDINARY FACTS. It’s no surprise that the linchpin of the Legislative Defendants’ legal arguments is the Seventh Circuit’s very recent decision in Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), which generally confers wholesale approval on almost all of the Legislature’s recent changes to Wisconsin statutes governing the voting process. They cite it at least 100 times in their brief. And if this were an ordinary voting rights case, we would be concerned about Luft. It could foreclose a Constitutional or statutory challenge to many of the election statutes at issue in this case. But we are not bringing a frontal Constitutional assault on the statutes upheld in Luft, nor on the Legislature’s power to pass such changes. The relief we seek is limited to the November Election only. Our case is simply not an effort to relitigate Luft, or any of the other recent Supreme Court or Seventh Circuit decisions that affirm state legislatures’ power to restrict the right to vote. Instead, our argument is fundamentally different: we contend that based on the literally unprecedented impact that the COVID-19 pandemic is certain to have on all aspects of the November Election, in that factual context and in that context alone certain provisions of Wisconsin’s election statutes must be temporarily suspended because suspending their operation is the only means of preserving the fundamental right to vote while COVID-19 rages through the population. What defendants ignore, and what we urge this Court to conclude, is that federal courts have sweeping powers to impose drastic remedies in order to do justice in extraordinary situations. We used the example of prison reform litigation in our initial brief, citing the Supreme Court’s
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decision in Brown v. Plata, 563 U.S. 493 (2011), in which the Court upheld the truly extraordinary remedy of requiring California to release prisoners before their sentences were over in order to remedy longstanding unconstitutional conditions of confinement. More recently, in Braggs v. Dunn, 383 F. Supp.3d 1218 (M.D. Ala. 2019), in the wake of 15 prisoner suicides in 15 months, the District Court granted a permanent injunction implementing a suicide-prevention program in the Alabama prison system. Extraordinary situations compel extraordinary remedies.
Education is the quintessential local activity. Yet federal courts have consistently taken over school districts that engaged in persistent racial discrimination in order to bring to life the Constitutional guarantee barring segregated schools. Probably the most extreme case is the Supreme Court’s decision in Missouri v. Jenkins, 495 U.S. 33 (1990), holding that although federal courts lacked the power to directly impose a tax increase to fund school desegregation in a footdragging district, they “could have authorized or required the [school district] to levy property taxes at a rate adequate to fund the desegregation remedy and could have enjoined the operation of state laws that would have prevented [the district] from exercising this power.” Id. at 51. Faced with an extraordinary record of recalcitrance, the Supreme Court approved what might have seemed an intrusion into ordinary school district functions, but that was a remedy neatly tailored to the extraordinary facts.
Much more common – yet still intrusive – are the many decisions in which federal courts uphold continued judicial supervision over school districts that once operated “dual” systems that favored white students over black or Hispanic students as those districts worked their way into compliance with equal protection of the laws. E.g., Stout by Stout v. Jefferson County Bd. of Educ., 882 F.3d 988 (11th Cir. 2018)(reversing order allowing partial “secession” of newly formed school district because of evidence showing that district was formed to exclude black children); Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011) (ordering continued judicial supervision
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of district that had failed to implement desegregation obligations in good faith); Banks v. St. James Parish Sch. Bd., 2017 WL 2554472 (E.D. La., Jan. 30, 2017) (approving detailed consent order specifying many aspect of school operations necessary to achieve elimination of vestiges of segregation). In education, extraordinary facts empower federal courts to impose extraordinary remedies.
Last, and most important, federal courts have long imposed drastic, intrusive remedies – including invalidation of election results and ordering special elections – in order to preserve the fundamental right to vote. E.g., Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (when legislators fail to carry out reapportionment as required by Equal Protection Clause, “it becomes the ‘unwelcome obligation’ . . . of the federal court to do so and impose a reapportionment plan pending later legislative action”); Hadnott v. Amos, 394 U.S. 358 (1969); Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) (federal courts may order judicially supervised elections under federal law); Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966); Tucker v. Burford, 603 F. Supp. 276, 279 (N.D. Miss. 1985)(shortening office term of unconstitutionally elected officials and ordering special election to replace them); Ketchum v. City Council of City of Chicago, 630 F. Supp. 551, 565 (N.D. Ill. 1985) (“Federal courts have often ordered special elections to remedy violations of voting rights”); Donohoe v. Bd. of Elections, 435 F. Supp. 957, 968 (S.D.N.Y. 1976)(“[F]ederal courts in the past have not hesitated to take jurisdiction over constitutional challenges to the validity of local elections and, where necessary, order new elections); Cousins v. City Council of City of Chicago, 361 F. Supp. 530 (N.D. Ill. 1973); Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969); Perkins v. Matthews, 336 F. Supp. 6 (S.D. Miss. 1971). Extraordinary deprivations of fundamental rights justify extraordinary remedies.
This Court plainly has the power to temporarily suspend the application of Wisconsin’s ordinary voting rules in order to preserve the fundamental right to vote in what is literally a once-
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in-a-lifetime public health emergency. II. PLAINTIFFS WILL PREVAIL ON THEIR CLAIMS UNDER THE AMERICANS
WITH DISABILITIES ACT. The Legislative Defendants contend that the Edwards Plaintiffs’ claims under the Americans with Disabilities Act fail because they do not specify the accommodations that Plaintiffs are seeking. (Leg. Def. Br. 93-94.) Their real complaint is that they don’t like how Plaintiffs organized their brief. Although the substantive ADA section indeed does not mention Plaintiffs’ desired accommodations, Defendants ignore the ten-page section of Plaintiffs’ brief (Edwards Pl. Br. 44-53) that first reviews Plaintiffs’ individual situations, including some of their disabilities (id., 44-45), and then discusses the accommodations that Plaintiffs seek in great detail, again with reference to disabilities (id., 46-53). In fact, each change requested by the Edwards Plaintiffs is designed to limit exposure to COVID-19. Plaintiffs require accommodations to limit their exposure to COVID-19, because they are at an increased risk of severe illness or death from COVID-19. Therefore, every proposed change is a reasonable accommodation that will allow Plaintiffs to vote safely. Specifically, the Edwards Plaintiffs seek to enjoin voter identification laws to the extent they adversely impact persons with disabilities, and argue that statements under penalty of perjury, rather than witnesses or identification that may be impossible for persons with disabilities to obtain, are sufficient to satisfy the state’s legitimate needs. (Id. 47-48.) They contend that the witness requirement of Wis. Stat. § 6.87(2) improperly impairs the voting rights of immunocompromised persons, those with limited mobility, and those who are diagnosed with COVID-19 (all conditions suffered by one or more plaintiffs). (Id., 49-50.) Plaintiffs further contend that the time limit on early in-person voting (id., 51-52), the unduly early deadline for designating early in-person voting locations (id., 52), and the requirement that poll workers must
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reside in the county where they will serve (id., 53) all impose undue burdens on the right to vote, and seek the accommodation of suspending those requirements for the November Election alone.
Nothing more was required. The Edwards Plaintiffs’ ADA claims are valid and they will prevail on the merits. III. THE REMEDIES PLAINTIFFS SEEK ARE TEMPORARY, REASONABLE,
FEASIBLE, AND NOT BURDENSOME. The WEC Defendants emphasize that the Commission can act only if at least four commissioners agree; they further contend that this statutory requirement limits the relief this Court can order. (WEC Br. 16.) We submit that the majority-vote requirement is a bug, not a feature. As this Court noted in its June 10, 2020 decision denying defense motions to dismiss the DNC’s complaint, the Commission has a “recent history of strict adherence to the Wisconsin statutory requirements and deadlocking over any creative efforts to vindicate voter rights even if the statutes arguably allow them[.]” Democratic Nat’l Committee v. Bostelmann, 2020 WL 3077047 at *8 (W.D. Wis., June 10, 2020). Against this background, the Court rightly concluded that it “would be remiss in abstaining from exercising its role in protecting the federal constitutional rights of Wisconsin voters, if necessary.” Id. The same result should obtain here. Defendants contend that with so much time between now and the election, even the most reluctant in-person voter has more than enough time to meet the requirements for requesting an absentee ballot, fill it out, and return it in plenty of time for it to be timely counted. (Leg. Def. Br. 61.) We recognize that the WEC has advanced voters’ interests by mailing absentee ballot requests to all registered voters in Wisconsin.14 But the added convenience provided by this mailing does nothing to address the significant problems on the “back end” of the absentee voting process – that is, the potential delays in the Post Office for delivering and returning absentee ballots, and the
14 The Edwards Plaintiffs hereby withdraw their requested relief that the Court order WEC to have an absentee ballot mailed to every registered voter in the state.
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daunting challenge that municipalities will have in counting all absentee ballots and then completing their canvasses within the unmodified statutory time frame. Evidence to be presented at the hearing will show that delays in the Post Office are virtually certain, and the unprecedented volume of absentee voting is likely to tax the resources of municipalities beyond their capacities. Suspending application of Wis. Stat. § 6.87(3), which prohibits clerks from faxing or emailing absentee ballots to most voters, will permit voters who timely request absentee ballots but who do not receive them through the mail to obtain them electronically. Likewise, extending the statutory deadlines for receipt and tabulation of absentee ballots beyond the date of the in-person November Election will help relieve the pressure on municipalities. Similarly, suspending Wis. Stat. §§ 6.88 – 7.51-.52 in order to allow municipalities to begin reviewing absentee ballots before Election Day will enable absentee voters who have made easily curable mistakes to fix them and have their votes counted.
Taken as a whole, the common theme of the remedies that the Edwards Plaintiffs seek is breathing space for the fundamental right to vote during an unprecedented public health crisis. Our remedies will relieve pressure on voters so they will not have to choose between exercising their right to vote and preserving their life and health (and the lives and health of their loved ones). Our remedies allow breathing space so the probable delays in delivery on both ends of the absentee voting process will not impair the right to vote. Allowing more time for receipt and counting of absentee ballots allows breathing space for the likely otherwise overwhelming volume of absentee ballots so municipal officials can process them in an orderly way.
Business as usual allows for none of these benefits and ensures a constitutional deprivation that cuts to the core of what we are about.
Similarly, the in-person absentee voting and election day remedies sought by the Edwards Plaintiffs will allow breathing space in a literal sense for those who do vote in person. Suspending
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Wis. Stat. § 6.86(1)(b) to allow additional time for in-person absentee voting will allow municipalities to spread out such voting consistent with Centers for Disease Control Protocols, and enjoining enforcement of Wis. Stat. § 6.855(1) (pertaining to early designation of in-person absentee voting sites) and Wis. Stat. § 7.30(2) (requiring poll workers to be qualified electors of the county in which they are serving) will allow local elections officials flexibility to respond to local conditions as they arise. The Court only needs to look at the impact COVID-19 had on the ability to have a sufficient number of polls to appreciate why this reasonable modification for a single election could prove so vital.
Finally, the temporary suspension of the election statutes requested by the Edwards Plaintiffs will not impose a significant burden on the State of Wisconsin or on any of the Defendants. First and most important, the Edwards Plaintiffs do not seek to declare any of the statutes unconstitutional. The ordinary rules will spring back into place after COVID-19 passes. Second, several of the statutory limits we seek to suspend, such as the limited hours for in-person early voting, are enactments of recent vintage. If Wisconsin regularly conducted elections under the rules we seek in the past, there is literally no harm in temporarily restoring the previous regime to facilitate voting in a grave public health crisis.
CONCLUSION For the reasons stated in this brief and in their initial brief in support of their motion for preliminary injunction, the Edwards Plaintiffs respectfully request that the Court grant the relief requested in their motion for preliminary injunction, with the exception of the request that absentee ballots be mailed to all registered Wisconsin voters, which is withdrawn.
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Dated this 31st day of July, 2020.

LAFFEY, LEITNER & GOODE LLC Attorneys for Plaintiffs
By: s/ Joseph S. Goode Joseph S. Goode Mark M. Leitner John J. Laffey Sarah E. Thomas Pagels Jessica L. Farley 325 E. Chicago Street, Suite 200 Milwaukee, WI 53202 (414) 312-7003 (414) 755-7089 (facsimile) jgoode@llgmke.com mleitner@llgmke.com jlaffey@llgmke.com stpagels@llgmke.com jfarley@llgmke.com
URBAN & TAYLOR, S.C. Jay A. Urban Urban Taylor Law Building 4701 N. Port Washington Road Milwaukee, WI 53212 (414) 906-1700 (414) 704-7207 (facsimile) jurban@wisconsinjury.com
HALLING & CAYO, S.C. Stacie H. Rosenzweig 320 East Buffalo Street, Suite 700 Milwaukee, WI 53202 (414) 238-0197 (414) 271-3841 (facsimile) shr@hallingcayo.com
SALAWDEH LAW OFFICE, LLC Rebecca L. Salawdeh 7119 W. North Avenue Wauwatosa, WI 53213 (414) 455-0117 (414) 918-4517 rebecca@salawdehlaw.com

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 Case: 3:20-cv-00249-wmc Document #: 505 Filed: 07/31/20 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs,

v.

Case No. 20-cv-249-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,

and

REPUBLICAN NATIONAL COMMITTEE and REPUBLICAN PARTY OF WISCONSIN,

Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN ALLIANCE FOR RETIRED AMERICANS, LEAGUE OF WOMEN VOTERS OF WISCONSIN, KATHERINE KOHLBECK, DIANE FERGOT, GARY FERGOT, BONIBET BAHR OLSAN, SHEILA JOZWIK, and GREGG JOZWIK,

Plaintiffs,

v.

Case No. 20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants. ______________________________________________________________________________

CHRYSTAL EDWARDS, TERRON EDWARDS, JOHN JACOBSON, CATHERINE COOPER, KILEIGH HANNAH,

Case: 3:20-cv-00249-wmc Document #: 505 Filed: 07/31/20 Page 2 of 59

KRISTOPHER ROWE, KATIE ROWE, CHARLES DENNERT, JEAN ACKERMAN, WILLIAM LASKE, JAN GRAVELINE, TODD GRAVELINE, ANGELA WEST, DOUGLAS WEST, and all others similarly situated,

Plaintiffs,

v.

Case No. 20-cv-340-wmc

ROBIN VOS, SCOTT FITZGERALD, WISCONSIN STATE ASSEMBLY, WISCONSIN STATE SENATE, WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

______________________________________________________________________________

JILL SWENSON, MELODY McCURTIS, MARIA NELSON, BLACK LEADERS ORGANIZING FOR COMMUNITIES, DISABILITY RIGHTS WISCONSIN

Plaintiffs,

v.

Case No. 20-cv-459-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and MEAGAN WOLFE,

Defendants.

GEAR v. BOSTELMANN, 20-cv-278, PLAINTIFFS’ COMBINED REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION AND BRIEF IN
OPPOSITION TO INTERVENOR-DEFENDANTS’ MOTION TO DISMISS

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INTRODUCTION & SUMMARY From the Covid-19 pandemic itself to the foreseeable, crushing burden of preparing and delivering an estimated two million mail-in absentee ballots, Intervenor-Defendants have a standard, Panglossian response—wait and see. But adopting a wait-and-see approach will leave voters disenfranchised. In the run-up to the April 7 election, there was not time to institute failsafe options for absentee ballot delivery failures and delays, train municipal clerks to offer them, and educate voters to request them. The full scope of the problems associated with conducting an election during a pandemic was also unknown at the time. The lack of alternative, back-up ballot delivery methods for regular absentee voters living through this public health emergency needlessly deprived at least thousands of Wisconsin voters of their right to vote. Absent injunctive relief, the same will happen again in November when turnout and the demand for mail-in absentee ballots will double. Fortunately, there are readily available remedies to prevent a repeat of April through systems already in place that the Wisconsin Elections Commission (“WEC” or “the Commission”) just needs to adapt or reinstate. If state lawmakers and executive officials need not wait until electoral fraud actually occurs to create and enforce requirements they believe will prevent such crimes, see Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-96 (2008) (holding that a state has an interest in preventing voter fraud even when there is “no evidence of any such fraud actually occurring”), then, by the same token, voters need not wait until they suffer grievous injury to their right to vote, health, or bodily integrity before securing preliminary injunctive relief. See, e.g., Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 (11th Cir. 2019) (granting a motion for preliminary injunction because “Florida’s signature-match scheme subjects vote-by-mail and provisional electors to the risk of disenfranchisement . . .”) (emphasis added). To hold otherwise, as Intervenor-Defendants
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advocate, would eviscerate the Anderson-Burdick framework, privileging credible risks to the state’s legitimate interest in protecting election integrity while dismissing credible risks to voters’ rights to participate in their democracy. More generally, such disparate treatment of the competing interests would run counter to the Supreme Court’s precedent which emphasizes that preliminary injunctive relief is warranted “to prevent a substantial risk of serious injury from ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994); see also Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to await the consummation of a threatened injury to obtain preventive relief.”) (citation and quotation omitted).
Well-settled precedent on the factors for issuance of a preliminary injunction holds that such relief is warranted when the plaintiffs establish that “irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis added). Certainty is not required to overcome a ripeness objection or to secure preliminary injunctive relief protecting voters’ rights but, as the record demonstrates, there is a very strong likelihood that the absentee ballot delivery failures observed in the April 7 election will recur in November. Intervenor-Defendants imagine that the ripeness doctrine is more stringent and unforgiving than the likely irreparable injury factor in Winter, but that is not the law. See, e.g., Gov’t Suppliers Consolidating Servs., Inc. v. Bayh, 734 F. Supp. 853, 861 (S.D. Ind. 1990) (“The doctrine of ripeness addresses only a court’s jurisdictional authority to hear a case. The decision to grant a preliminary injunction involves myriad additional factors, including the timing of the threatened conduct and the immediacy and irreparability of the harm likely to result.”). As will be shown below, Plaintiffs clear both hurdles.
In their opposition briefs, none of the Defendants or Intervenor-Defendants seriously dispute or introduce evidence in opposition to the feasibility, benefits, or security of extending
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alternative mail-in absentee ballot delivery methods to regular domestic civilian voters. The perpetually-deadlocked Defendants neither endorse nor oppose the relief sought in the Gear action, and the Intervenor-Defendants argue (1) that the harm is speculative, i.e. that disenfranchisement due to ballot delivery failures is not concrete and imminent, and (2) that the law forecloses the relief sought in this case. They are mistaken on both counts.
First, in state after state this year, from Wisconsin to Pennsylvania to Indiana to Maryland to Ohio to New York, election officials and the U.S. Postal Service have collectively failed to timely deliver mail-in absentee ballots to voters in primary elections with significantly lower turnout than a typical presidential election. This is not speculative; this is the consistent reality of voting during the Covid-19 pandemic. Second, Plaintiffs in this action and the other consolidated cases have adduced evidence that foretells another surge in demand for mail-in voting and another shortfall in capacity to meet that demand. Some of Defendants’ reforms will hopefully streamline the processing and preparation of ballots, forestall technical glitches, and allow voters and election officials alike to better track ballots. But these measures and procedures are newly-implemented and untested, and municipal clerks will now face double the requests for mail-in absentee ballots in the November election. Additionally, just 24 days ago, the U.S. Postal Service’s Office of the Inspector General finally issued a report (“the USPS OIG report”), attempting to explain the widespread shortcomings and shortfalls in service during the April election and to make recommendations for improvement.1 These reforms are only just beginning less than 90 days out from the start of voting in Wisconsin, and there is no evidence in the record that they will cure the problems observed in April, which left voters, particularly Covid-19-vulnerable voters, without
1 See dkt. 503, Sherman Reply Decl., Ex. 1, https://www.uspsoig.gov/sites/default/files/documentlibrary-files/2020/20-235-R20.pdf.
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any recourse. Indeed, the USPS OIG report notes inherent structural defects in the interaction between certain election laws and the practical demands of the postal service—glaring defects that the Legislature could but has declined to address. Additionally, former Deputy Postmaster General Ronald Stroman states in his declaration that his “experience with voting by mail and my extensive work with election officials leads me to conclude that Wisconsin’s Spring Election is a predictor of what may occur in Wisconsin’s November General Election, absent necessary changes . . .” See dkt. 484, Declaration of Ronald Stroman (“Stroman Decl.”) ¶ 8.
Even if the Court were to conclude that the injury as to the individual Plaintiffs in this action is speculative or unlikely to occur, Plaintiffs League of Women Voters of Wisconsin (“LWVWI” or “the League”) and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) (collectively, “the Organizational Plaintiffs”) will necessarily be forced to help and educate voters who are facing disenfranchisement due to ballot delivery failures and will necessarily suffer a constitutional injury due to the state’s failure to offer fail-safe alternative delivery methods to regular absentee voters, such as online access and downloading via the MyVote portal or email delivery. This diversion of resources, staff time, and money from core mission activities would not occur but for the unconstitutional failure to offer domestic civilian absentee voters electronic transmission options to receive their mail-in absentee ballots and, therefore, confers standing on LWVWI and Wisconsin Alliance. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
Second, Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), a case decided on a pre-pandemic record, in no way forecloses this action. “Courts weigh these burdens against the state’s interests by looking at the whole electoral system,” id. at 671-72, but if no part of the election code addresses a particular burden or outright denial of the right to vote, as here, then unrelated provisions such
4

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as no-excuse absentee voting and Election Day registration logically provide no defense against an Anderson-Burdick claim. When voters inevitably face disenfranchisement due to the confluence of absentee ballot delivery failure or delay and a Covid-19 risk factor that makes voting in person unduly dangerous, then there is no part of the Wisconsin election code that “offsets” or cures this constitutional violation, as Defendants contend. See dkt. 454 at 25-26; see also id. at 128 (“Even a burdensome individual election law passes constitutional muster if other provisions in the State’s election code allow voters to exercise their franchise by other means, with reasonable efforts.”).2 Assuming the mail-in absentee ballot request deadline has not passed, such a voter’s only recourse is to request a replacement mail-in absentee ballot, once again by mail delivery, and to hope that it arrives faster than the first ballot they requested. Of course, many voters will continue to wait for their initially-requested mail-in ballot’s arrival until after the deadline to request a ballot has passed or when it is far too late to guarantee that a ballot can arrive timely in the mail. Because there is no part of the Wisconsin election code that can remedy this problem, Luft’s instruction to analyze the election code holistically offers the Intervenor-Defendants no aid. Plaintiffs’ counsel have reviewed the Wisconsin election code as a whole and find that the entire scheme fails to safeguard the right to vote in the context of this pandemic, necessitating this Court’s intervention and fail-safe options.
Nevertheless, the Intervenor-Defendants disingenuously argue that the individual Plaintiffs in Gear can, at a later date, simply seek narrow, as-applied relief if their ballots do not arrive in the mail. Due to Purcell, at that late stage, it would be much less likely for the Courts to order an extension of the requested fail-safe ballot delivery methods to voters who have a higher risk of complications or death from Covid-19. Intervenor-Defendants well know this and would argue
2 All docket references are to the 20-cv-249 docket, unless otherwise expressly noted. 5

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against such cases or motions, if they were brought weeks or days before the election—as they did in April, see dkt. 96 at 9-10. Additionally, with respect to online access via the MyVote portal, it would be impossible to upgrade the WisVote and MyVote systems at that point, though it is feasible right now.
The relief that the Gear Plaintiffs seek is feasible, narrow, secure, and beneficial to voters and municipal clerks alike. As to Plaintiffs’ requested upgrade to WisVote and MyVote, WEC’s Training and Technology Director has testified: “absolutely, it is possible.” See dkt. 489, Transcript of Deposition of Robert Kehoe (“Kehoe Tr.”) at 72:7-8. Plaintiffs have requested that this Court order Defendants to provide alternative ways to receive a replacement mail-in absentee ballot, if and only if: (1) the voter timely requests a mail-in absentee ballot, and (2) the voter’s ballot does not arrive in the mail. Further, as Plaintiffs themselves have suggested, this Court could require that the voter’s mail-in absentee ballot request be made a certain number of days in advance of exercising one of the fail-safe options, e.g. online access and downloading at myvote.wi.gov (hereinafter “MyVote” or “the MyVote portal”), and could also restrict the time period in which a voter could exercise one of these fail-safe options. The Intervenor-Defendants’ argument that ballot delivery failures in the November election will be “extremely rare,” see dkt. 454 at 31, and that affected voters can seek as-applied relief later, is self-defeating. Effectively, this is that asapplied relief; it is simply being sought months in advance of the election, not at the last minute. If, contrary to the overwhelming weight of the evidence, Intervenor-Defendants correctly predict that absentee ballot delivery failures and delays will be “extremely rare,” then only a very few
6

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regular domestic civilian voters will qualify to use this alternative form of ballot delivery, currently reserved by statute for military and overseas voters. Wis. Stat. § 6.87(3)(d).3
Confronted with a deadlocked state election authority that cannot adequately protect the right to vote—and vote safely during this pandemic—and a legislature that has expended far more effort and taxpayer dollars in resisting the common-sense, last-resort solutions the Gear Plaintiffs have advanced instead of legislating to guarantee voter access during the deadliest pandemic in one hundred years, it falls to this Court to intervene and safeguard the rights of voters in the November election.
ARGUMENT I. Standing
a. The Gear Plaintiffs are threatened with a non-speculative, concrete, and imminent injury in the November election. 1. The Covid-19 pandemic
Intervenor-Defendants make only three arguments in opposition to the epidemiological evidence. First, they argue that a single study that Dr. Murray cites, the Cotti paper (dkt. 370, Murray Decl. ¶ 63), which attempts to demonstrate an association between in-person voting and higher incidence of Covid-19 cases in the wake of the April 7 election, is methodologically flawed. See dkt. 454 at 37. Dr. Murray’s opinions on the risk to in-person voters posed by Covid-19 do not hinge on whether or not this single study that Intervenor-Defendants cherry-pick from the plethora upon which Dr. Murray relies was able to conclusively establish a causal link between in-person voting and increased Covid-19 transmission. See dkt. 440, Transcript of Deposition of Dr. Murray
3 Section 6.87(3)(d) appears to only restrict email or fax delivery, but it is not worth debating whether the statute restricts online access and downloading via the MyVote portal as well; this Court can enjoin the provision in any event, as needed to afford the relief the Gear Plaintiffs have requested.
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(“Murray Tr.”) at 117:21-118:3. During her deposition, Dr. Murray offered explanations for why she believed the study was reliable and based on a reasonable, sound methodology, while acknowledging some of its potential limitations. Id. at 31:1-97:6. Nevertheless, the wealth of epidemiological and medical studies upon which Dr. Murray’s declaration is based have gone unchallenged and uncontroverted by Intervenor-Defendants. Intervenor-Defendants could have retained an expert in infectious disease transmission dynamics and epidemiology to rebut Dr. Murray’s conclusions but, understandably, they came up empty-handed. And they could have moved in limine to exclude Dr. Murray’s opinions as inadmissible under Federal Rule of Evidence 702 and Daubert. But they did not, choosing instead to argue to the Court the weight of the scientific evidence Plaintiffs offer through Dr. Murray, rather than its admissibility.
Second, the Intervenor-Defendants argue that in-person voting can be made safe, a view borne from their rosy view of the pandemic and their willful blindness to Covid-19’s extremely serious clinical manifestations, some of which include long-lasting health complications, and persistent transmission in Wisconsin. This evidence is severely undermined by the gathering scientific consensus on aerosolized transmission, see infra, and by evidence in the record of unsafe conditions at polling places. See, e.g. dkt. 386, Keresty Decl. ¶¶ 3- 7.
The Covid-19 pandemic poses an extremely serious danger to in-person voters, particularly those most vulnerable to complications and death from the pandemic.4 The threat of airborne transmission of SARS-CoV-2, the virus that causes Covid-19, in indoor settings where people congregate, like a polling place, is real, substantial, and not meaningfully mitigated by any of the available protective measures. See dkt. 370, Murray Decl. ¶¶ 6-20, 32-44. Forcing voters to take
4 See dkt. 503, Sherman Reply Decl., Ex. 5, CDC, Coronavirus Disease 2019 (COVID-19), People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last updated July 30, 2020).
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this risk is per se a severe burden on the right to vote. Due to the pre-symptomatic and asymptomatic transmission of SARS-CoV-2, voters will cast their ballots in person at the polls not knowing that they are Covid-19-positive and further shed and transmit viral particles in large respiratory droplets and aerosolized droplet nuclei that can stay suspended in the air for much longer. Id. ¶¶ 8-9, 32-42.
During her deposition, Dr. Murray testified that there are three separate routes of SARSCoV-2/Covid-19 transmission: (1) respiratory droplet; (2) aerosols or microdroplets; and (3) fomite transmission from contaminated surfaces. See dkt. 440, Murray Tr. at 120:22-125:8. Respiratory droplet transmission happens “when a person speaks or coughs or sneezes or sings” and “they put into the environment droplets that consist of a mixture of mucous, saliva, and then that’s what viral particles are -- and there’s viral particles on those droplets.” Id. at 121:7-121:22. If the droplets are “large they fall out of the environment because of gravity, and that happens at a one to two meter distance.” Id. at 121:22-122:2. If the droplets are smaller, however, then they function as aerosols, or desiccated “droplet nuclei” that can stay suspended in the air and “move[ ] with the turbulence and the air flow within a room.” Id. at 122:15-123:11. Dr. Murray explained that aerosolized transmission poses “a somewhat more dangerous issue because it can go further than the two meters” and “can move throughout the room in ways that are not necessarily expected because it has to do with where furniture is and where air turbulence moves around in rooms.” Id. at 123:11-17. Because these aerosolized droplets are so tiny, neither cloth masks nor even surgical masks can prevent transmission of SARS-CoV-2. Id. at 124:2-6, 133:1-6. For this reason, aerosolized transmission is the hardest to control via interventions like sanitization or social distancing. Id. at 125:9-126:3. Effective countermeasures are much more limited, such as “improving ventilation in a very rigorous way by having either negative pressure rooms or
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something like UV germicidal radiation,” id. at 126:3-7, and there is no evidence in the record that either of these measures will be used in Wisconsin polling places. Finally, in her deposition testimony and in her Reply Declaration, Dr. Murray has referenced the Open Letter to the World Health Organization published on July 6, 2020, entitled “It is Time to Address Airborne Transmission of COVID-19,” which was signed by 239 scientists, noting that the authors
argue very convincingly that the WHO’s early sort of statements suggested that there was no aerosol, or that we didn’t need to worry about aerosol transmission and that by not focusing on the possibility of aerosol transmission, that we were giving people a false sense of security that masks and hand-washing would be adequate to protect people. So they’re really raising both the examples of -- specific examples of aerosol-based transmission that they know of and some of the engineering data that shows . . . how far particles actually go when people cough and sneeze, and the fact that SARS-CoV-2 can be on these particles to make that case that we should be really focusing a little more on aerosol-based transmission, and they have something like 240 scientists who signed on to this document. Dkt. 440, Murray Tr. at 126:15-127:22; dkt. 490, Reply Declaration of Dr. Megan Murray (“Murray Reply. Decl.”) ¶¶ 1-3; dkt. 490, Murray Reply Decl., Ex. 1 (Dr. Murray Deposition Exhibit 4). In her Reply Declaration, Dr. Murray writes that, “There is a gathering consensus in the epidemiological community that aerosolized transmission of Covid-19 is occurring, making the pandemic that much harder to control.” See dkt. 490, Murray Reply Decl. ¶ 2. In light of the evidence and studies Dr. Murray cites, she concludes that “[t]here is a substantial risk that an infection with Covid-19 acquired during voting at a poll place in Wisconsin in the fall of 2020 could result in symptomatic disease, hospitalization or death.” Dkt. 370, Murray Decl. ¶ 11. That is because “[t]o the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, move people through the process slowly, are poorly ventilated and/or involve people touching objects like pens, paper, or surfaces within the voting booth, they constitute a risk to voters.” Id. ¶ 47. As Dr. Murray put it during her deposition,
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[T]he risks are related to people gathering in an indoor, or in some cases outdoor space, and it will depend on how crowded those spaces are, how many people at the time have infectious – are infected with the virus, how many are symptomatically infected, because those people could stay home, how many are asymptomatically or presymptomatically infected, those people won't know they're sick, so they could be -- could come without actually, you know, knowing whether they did or not. So there's a risk when you bring any group of people together in a single place that there's going to be transmission.
See dkt. 440, Murray Tr. at 118:8-22.
COVID-19 cases continue to rise in Wisconsin, with less than 90 days left before the start
of early voting. There are currently more than 4.5 million confirmed cases in the United States, and there have been 152,431 deaths nationwide.5 As of this filing, the Wisconsin Department of
Health Services had confirmed 52,108 positive cases of coronavirus in Wisconsin, with over 1,000 new cases from the prior day, 4,590 hospitalizations, and 919 deaths.6 In response to the climbing
cases and deaths, just yesterday, Governor Tony Evers declared a Public Health Emergency and
issued an Emergency Order requiring individuals to wear face coverings when indoors and not in
a private residence, effective at 12:01 a.m. on Saturday, August 1, 2020, through September 28,
2020. Dkt. 503, Sherman Reply Decl., Ex. 3, Executive Order #82; id., Ex. 4, Emergency Order
#1. According to the U.S. Centers for Disease Control and Prevention, (“CDC”), individuals are
at higher risk of severe complications and death from Covid-19 if they are 65 years old or older or
have underlying health conditions and diseases, including but not limited to cancer, chronic kidney
disease, COPD (chronic obstructive pulmonary disease), immunocompromised state (weakened
immune system) from solid organ transplant, obesity (body mass index [BMI] of 30 or higher),
5 Dkt. 503, Sherman Reply Decl., Ex. 1, Mitch Smith et al, Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html (last accessed July 31, 2020). 6 Dkt. 503, Sherman Reply Decl., Ex. 2, Wisconsin Department of Health Services, COVID-19: Wisconsin Summary Data, https://www.dhs.wisconsin.gov/covid-19/data.htm (last accessed July 31, 2020).
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serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies, sickle
cell disease, and Type 2 diabetes mellitus.7 A number of these are fairly common diseases and/or
conditions in Wisconsin: 32 percent of residents are obese, and 8 percent have diabetes mellitus.
See dkt. 370, Murray Decl. ¶ 79. For all the foregoing reasons, it is not safe for vulnerable people
of a certain age and/or who have certain underlying comorbidities to venture to polling places to
vote. Id. ¶ 47.
The efficacy of intervention measures such as sanitizing surfaces, the use of masks and
hand sanitizer, and maintaining a 6-foot distance from others is wildly variable and, even in the
best of circumstances with maximum compliance, cannot eliminate the risk of Covid-19
transmission in polling places. Id. ¶¶ 48-56. And these measures are not effective against
aerosolized transmission: “[A]irborne (or aerosol) transmission is less amenable to easily-
implemented infection control measures than is transmission through large respiratory droplets,
and this therefore makes polling booths and other closed spaces more dangerous than they might
be otherwise.” Id. ¶ 36. In her Reply Declaration, Dr. Murray writes that
Given the possibility of aerosol-based spread, precautions against Covid-19 should include those designed to reduce airborne spread. This point is made emphatically in the Letter to the WHO, see Ex. 1 (Murray Deposition Exhibit 4), from aerobiologists Lidia Morowska and Don Milton that was published in the journal, Clinical Infectious Diseases, and signed by 239 scientists. In it, the authors state: “It is understood that there is not as yet universal acceptance of airborne transmission of SARS-CoV2; but in our collective assessment there is more than enough supporting evidence so that the precautionary principle should apply. In order to control the pandemic, pending the availability of a vaccine, all routes of transmission must be interrupted.” Here, “the precautionary principle” refers to the assertion “that the burden of proof for potentially harmful actions by industry or government rests on the assurance of safety and that when there are threats of serious damage, scientific uncertainty must be resolved in favor of prevention.” See Exhibit 2 (Murray Deposition Exhibit 6), Goldstein, “The Precautionary Principle Also Applies to Public Health Actions,” American Journal of Public Health | September 2001, Vol 91, No.
7 Dkt. 503, Sherman Reply Decl., Ex. 5, CDC, Coronavirus Disease 2019 (COVID-19), People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last updated July 30, 2020).
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9, at 1. In this context, the precautionary principle prescribes that measures be put into place to reduce the possibility of infection through the aerosol route. Such measures would include use of N95 respirators that filter out small droplet nuclei and ensuring adequate ventilation within rooms such as polling places. But many public buildings where polling places are located are generally insufficiently ventilated to prevent aerosolized transmission, Murray Tr. at 140:5-141:10, and N95 masks that can block aerosols are “in short supply” and not broadly accessible to and worn by the general population. Id. at 129:9-130:6. Accordingly, if more vulnerable voters cannot vote safely absentee by mail, they cannot vote at all, and it is per se unreasonable for the state to require them to do so.8 Third and finally, the Intervenor-Defendants argue that it is speculative that the pandemic will continue to pose a threat to in-person voters in less than 90 days when early voting begins in Wisconsin, but offer no expert testimony or other evidence to indicate the situation will be improved in October and November. Dr. Murray does not believe the prevalence of Covid-19, vaccine development and administration, herd immunity, and pharmaceutical development are likely to change sufficiently over the next 90 days to minimize or significantly alter the persistent risk to voters from voting in person. See dkt. 440, Murray Tr. at 163:11-173:16; dkt. 370, Murray Decl. ¶¶ 82-86. Defendants’ arguments to the contrary are unsubstantiated.
2. Absentee ballot preparation and delivery failures As in the April 7 election, Wisconsin election officials and the U.S. Postal Service remain unprepared to meet the unprecedented demand for 1.8 to 2 million mail-in absentee ballots. Three sets of evidence demonstrate this unfortunate reality: (1) municipal clerks’ insufficient capacity to handle 2 million-plus ballot requests from data entry to preparation for mailing; (2) the U.S. Postal
8 This Court theoretically restrict its remedy to voters who have one of the CDC’s risk factors, but it is not appropriate for Defendants to be policing which voters have what diseases and health conditions.
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Service’s widespread and continuing delivery failures and delays during this public health emergency; and (3) the evidence of a nationwide pattern of election officials and USPS being overwhelmed by and unable to meet the demand for mail-in absentee ballots.
First, municipal clerks and the WEC remain unprepared for the deluge of mail-in absentee ballots. WEC creates the infrastructure and implements the laws for absentee ballot preparation and delivery, but municipal clerks must do (most of) the work, and two of the municipal clerks who have submitted declarations in these consolidated proceedings do not believe they have been given the resources they need to process two times as many mail-in absentee ballots as they saw requested for the April 7 election. Madison City Clerk Ms. Witzel-Behl states that her office “has not been given the resources and money necessary to meet the anticipated demand for mail-in absentee ballots in November” and that “with other departments going back to work, [her] staff now only has a few dozen League of Women Voters volunteers available to help.” See dkt. 382, Declaration of Maribeth Witzehl-Behl Decl. (“Witzel-Behl Decl.”) ¶ 6. With respect to IMBs, she states that “better tracking of ballots with anticipated delivery dates listed on myvote.wi.gov can only do so much to alleviate the burden on [her] staff. Although we anticipate that the intelligent bar codes may reduce the number of telephone inquiries we receive, this will not make it easier to process a massive volume of absentee ballot requests—according to the WEC, an estimated 1.8 million statewide.” Id.; dkt. 384, Declaration of Debra Salas (“Salas Decl.”) ¶ 8 (same).
Municipal clerks’ office staff of course cannot devote all of their time to mail-in absentee ballots, without damaging other critical election functions. As Administrator Wolfe states in her declaration, clerks must somehow manage “the unprecedented demand for absentee ballots, in addition to their other duties including administering in-person absentee voting, preparing polling places and recruiting and training new election inspectors.” See dkt. 446, Wolfe Decl. ¶ 28. The
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hardships of large municipalities’ clerks are significant, but so too are the hardships of the “[h]undreds of municipal clerks [who] work alone and part-time.” Id. The crushing burden of processing so many absentee ballot requests forced clerks to make difficult trade-offs. For instance, in Kenosha, “[d]ue to the volume of absentee ballot requests and the Covid-19 precautions we were taking, in-person absentee voting was limited to the two weeks before the election by appointment only during a limited number of hours from 7:00 a.m. to 9:00 a.m. Monday through Friday.” See dkt. 384, Salas Decl. ¶ 4. No municipal clerk in Wisconsin has ever encountered presidential election turnout with over 50-60 percent of the electorate voting by mail. In the April 7 election, they were already stretched beyond their maximum capacity, and it still was not sufficient to timely meet the demand. For example, notwithstanding all of the Madison City Clerk’s office’s and their volunteers’ efforts, Madison still “received thousands of calls and emails from voters in Madison informing us that they had never received their requested absentee ballot in the mail” and still “sent thousands of replacement ballots to such voters in the weeks before the election.” Dkt. 382, Witzel-Behl Decl. ¶ 4. Hundreds of voters contacted Racine city clerk’s office complaining that their ballots had not arrived. Dkt. 383, Coolidge Decl. ¶ 4.
Additionally, hundreds of thousands of voters will likely submit their request on or after the 47th day before the election. Wis. Stat. § 7.15(1)(cm). That total could climb over 1 million. A spike in Covid-19 transmission could also suddenly deter more voters from voting in person, triggering a spike in mail-in absentee ballot requests. See 20-cv-459, dkt. 44, Declaration of Dr. Patrick Remington (“Remington Decl.”) at 12-13. Many of these requests are submitted in the final weeks and days before the deadline, when municipal clerks’ offices will be busy conducting inperson absentee voting and making other preparations for Election Day. The Commission notes in its report that: “Statewide, the volume of absentee requests received remained high in the week
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prior to April 7. Clerks received over 60,000 requests on the Friday before Election Day alone. Even if all these requests were mailed on Saturday, it is unknown how long those ballots took to reach voters.”9 With significant USPS delays, it is highly likely that a substantial portion did not arrive in time for voters to cast them, forcing voters to either gamble with their health at the polls or lose their right to vote. Furthermore, 80,593 requests for mail-in absentee ballots were submitted on March 31, 2020, 66,482 on April 1, 79,921 on April 2, and 62,172 on April 3, which, by this Court’s order, was the last day to request a mail-in absentee ballot.10 See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020). A total of 289,168 requests were received on just those four days alone. A proportionate surge in the final week of November’s much higher-turnout election might well strain the system of ballot preparation and delivery beyond the breaking point.
To be sure, WEC has been working to prevent a relapse of April 7 and, on June 25, 2020, the WEC Defendants submitted a status report outlining the various measures and projects aimed at improving these systems in advance of the August and November elections. See dkt. 227. Unfortunately, beyond the subgrants to Wisconsin’s 1,850 municipal clerks for additional staffing, id. at 5, not many of these items can have a significant impact on mail-in absentee ballot preparation and delivery delays. Data entry will be somewhat reduced for clerks as WEC staff and contractors take on some of that burden, dkt. 227, at 3-4. The WEC’s efforts to modify the state’s voter information database, WisVote, “to identify which method of processing absentee ballot requests, ballot records, and absentee address labels is best in managing high volumes of requests,
9 See dkt. 423, Sherman Decl., Ex. 1, Wisconsin Elections Commission, April 7, 2020 Absentee Voting Report (“Post-Election Absentee Voting Report”), at 17 (May 15, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/202005/April%202020%20Absentee%20Voting%20Report.pdf. 10 Id.
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and [to] train exclusively on this method,” id. a 9, are ongoing, but the WEC has not set forth evidence that this project has been completed, let alone successful. The proposed WisVote modification “to implement additional tracing procedures and audit tools in WisVote to enable early detection of issues that could occur during the high volume of absentee ballot request processing,” is designed to prevent a reprise of the disastrous computer glitch observed in Milwaukee. Id. at 9-10; dkt. 423, Sherman Decl., Ex. 1, Wisconsin Elections Commission April 7, 2020 Absentee Voting Report, at 18-20. But as to the intelligent mail barcodes (“IMBs”) that Intervenor-Defendants cite frequently, Defendants expressly note that it will not have a meaningful impact on the burden of processing and mailing so many ballots: “Use of IMBs will not change the preparation of absentee ballots in any significant way, but they will allow for more precise population of tracking information in WisVote/MyVoteWI.” Id. at 6.
Second, the U.S. Postal Service is not prepared to timely deliver over two million mail-in absentee ballots this fall. Former Deputy Postmaster General Ronald Stroman states in his declaration that his “experience with voting by mail and my extensive work with election officials leads me to conclude that Wisconsin’s Spring Election is a predictor of what may occur in Wisconsin’s November General Election, absent necessary changes . . .” See dkt. 484, Stroman Decl. ¶ 8. Mr. Stroman goes on to argue that “[t]he USPS has an Election Mail target of 96 percent on-time delivery. While this is a high target for some types of mail, even if this target is achieved, 4 percent of mailed ballots—which could represent at least tens of thousands of ballots in the November election—will be at high risk of untimely delivery.” Id. ¶ 12. Mr. Stroman concludes that Wisconsin law, which permits a voter to request a ballot as late as five days before an election but requires it be returned by 8:00 p.m. on Election Day, induces voters to rely to their detriment on the false assurance that they can receive and cast a ballot by mail in such a short time-frame.
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Id. ¶¶ 13-15. While this “entrapment” argument is of less immediate relevance to the Gear
Plaintiffs’ proposed remedy, Mr. Stroman’s testimony, as a recent high-ranking official in USPS
with nearly a decade of experience, id. ¶ 2, is compelling evidence that the embattled USPS is
woefully underprepared for November:
[T]he high probability of broad disenfranchisement resulting from the state’s Ballot Receipt Deadline is increased by the significant challenges the USPS is facing. For example, in various cities during the COVID-19 pandemic, the USPS has had significant challenges with employee availability. As employees tested positive for COVID-19, in some locations, large numbers of employees were out on leave. This led to a slowing of mail delivery because with limited staffing, the Postal Service began prioritizing the delivery of packages to ensure the timely delivery of life-saving pharmaceuticals and personal protective equipment. With health-care experts predicting a possible second wave of COVID-19 in the fall, along with the seasonal flu, employee availability could be a significant issue.
The USPS also has experienced a dramatic decline in mail volume over the last decade. In addition, since the middle of March of this year, the Postal Service has seen about a 25 percent decline in mail volume over the same period as last year, as a result of the COVID19 pandemic. In responding to this decline, it appears the USPS has chosen to cut costs by ending employee overtime, and requiring all trucks to leave plants on time, regardless of whether all mail is loaded onto the trucks. This new policy will likely delay mail delivery. If the policy is still in effect in October and November, it could delay the delivery of mailin ballots.
Id. ¶¶ 16-17; see also dkt. 503, Sherman Reply Decl., Ex. 6, U.S. Postal Service Mandatory Stand-
up Talk (July 10, 2020).
The USPS OIG Report on the April 7 election absentee ballot delivery failures and delays
is consistent with Mr. Stroman’s account. See dkt. 503, Sherman Reply Decl., Ex. 1. It reviews
and tries to offer explanations as to what went wrong in April and then draws some conclusions
and makes some recommendations. The bottom-line conclusion in this report is not reassuring at
all:
The Postal Service generally followed its procedures for processing and delivering ballots for the Wisconsin spring election and presidential preference primary of April 7, 2020. However, we identified opportunities to improve communication and coordination between the Postal Service and election offices and strengthen adherence to procedures.
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We also identified potential nationwide issues integrating election office’s vote by mail processes with the Postal Service processes which could impact future elections. Specifically, for ballots processed in the Milwaukee area, we found issues related to the timeliness of ballots being mailed to voters, correcting misdelivery of ballots, an inability to track ballots, and inconsistent postmarking of ballots. Nationally, we noted potential concerns with the deadlines set by the states to request absentee ballots, ballots postmarks, ballots mailed without mail tracking technology, and the ratio of Political and Election Mail coordinators to election offices in certain locations. Id. at 3-4 (emphasis added). The USPS OIG report concludes that USPS by and large followed its procedures, and that they need to focus on communication and coordination. This summary does not state unequivocally that the task of processing mail-in absentee ballots in the November general election can be accomplished; nor does it forcefully argue that absent increased resources and staff, they will be unable to meet the demand for absentee ballot delivery and return. Instead, it indicts state election laws and notes “nationwide issues integrating election office’s vote by mail processes with the Postal Service processes which could impact future elections.” Id. at 3. The Wisconsin-specific recommendations, three in total, just call for better communication and coordination with WEC and municipal clerks’ offices and use of the political mail log for ballot mail. Id. at 5-6. Moreover, these reforms are only just beginning less than 90 days out from the start of voting in Wisconsin, and there is no evidence in the record that they will cure the problems seen in Wisconsin. The USPS OIG report concludes by noting inherent structural tensions between late absentee ballot request deadlines and the logistical difficulties USPS is facing. Id. at 6-7. Finally, it is also worth noting that, as of July 20, the WEC had still received no response to its inquiries with the USPS: “Following the April 7 Election, WEC staff sent a letter to local, state, regional and national USPS representatives regarding ballots not received and outgoing ballots returned to municipalities, to which there has not been a response.” See dkt. 446, Wolfe Decl. ¶ 28. This is does not bode well for the new plan to improve communication between WEC and USPS.
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Further, Wisconsin has already had a history of problems with USPS mail delivery. The seven lowest-performing mail processing centers examined in the wake of the 2018 election cycle, including facilities in Florida, Ohio and Wisconsin, delivered an average of 84.2% of election mail on time. See dkt. 503, Sherman Reply Decl., Ex. 8, U.S. Postal Service Office of the Inspector General, Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections, Report Number 19XG010NO000-R20 (Nov. 4, 2019), https://www.uspsoig.gov/sites/default/files/document-library-files/2019/19XG010NO000.pdf. This is part of a nationwide trend. The U.S. Post Office has recently struggled to meet its own goals for on-time delivery of first-class mail. Last year, the USPS delivered only 80.88 percent of its three-to-five-day single-piece first-class mailings on time, missing its goal by 14.37 percentage points. Dkt. 503, Sherman Reply Decl., Ex. 9, Postal Regulatory Comm’n, Analysis of the Postal Service’s FY 2019 Annual Performance Report and FY 2020 Performance Plan (Jun. 1, 2020), https://www.prc.gov/docs/113/113321/FY%202019%20Report%20FY%202020%20Plan.pdf. Even USPS’s own website states that “the Postal Service cannot guarantee a specific delivery date or alter standards to comport with individual state election laws.” Dkt. 503, Sherman Reply Decl., Ex. 10, U.S. Postal Service Provides Recommendations for Successful 2020 Election Mail Season, United States Postal Service (May 29, 2020), https://about.usps.com/newsroom/nationalreleases/2020/0529-usps-provides-recommendations-for-successful-2020-election-mailseason.htm.
Third, as further evidence of these systemic delivery problems, it must be noted that in state after state this year, from Wisconsin to Pennsylvania to Indiana to Maryland to Ohio to New York, election officials and the U.S. Postal Service have collectively failed to timely deliver mailin absentee ballots to voters in lower-turnout primary elections. In Pennsylvania, the day before
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the June 2 primary election, Delaware County announced that, “As of June 1, the County has sent out approximately 80,000 absentee or mail-in ballots. The County has made arrangements with the United State Postal Service to send 6,000 ballots today. Those applications will be delivered to homes by tomorrow. There are approximately 400 ballots that will not be mailed due to the timing and staffing constraints. Residents who do not receive their mail in ballot can vote provisionally at their polling location.” Dkt. 503, Sherman Reply Decl., Ex. 11, June 1 Update on the Primary Election in Delaware County, Delaware County, Pa. (June 1, 2020), https://www.delcopa.gov/publicrelations/releases/2020/primaryupdate_june1.html. In Indiana, the Marion County Clerk informed the Secretary of State that they had “experienced significant delays with the U.S. Postal Service in mailing ballots” and there had “been instances in which a ballot [was] received by the voter two weeks after” it was mailed. Dkt. 503, Sherman Reply Decl., Ex. 12, Letter from Marion County Clerk Myla Eldridge to Indiana Secretary of State Connie Lawson (May 28, 2020), https://fox59.com/wp-content/uploads/sites/21/2020/05/5.28.20.-ClerkEldridge-Second-Letter-to-Secretary-Lawson.pdf. “There was a delay in the post office delivery of many ballots to Frederick County voters from the Maryland State Board of Elections.” Dkt. 503, Sherman Reply Decl., Ex. 13, Frederick County Ballots Mailed for June 2, 2020 Presidential Primary Election Ballot, Frederick County Board of Elections (May 13, 2020), https://www.frederickcountymd.gov/DocumentCenter/View/326089/Ballot-Mailing---WrongDate-on-Ballot---5-13-2020. “In Ohio, more than 37,000 absentee ballots were mailed out on the Saturday before the Tuesday primary, a time frame that the USPS reported a ‘high likelihood’ that ballots would not arrive on time.” Dkt. 503, Sherman Reply Decl., Ex. 14, Jennifer Friedmann, Mohit Mookim, Michelle Ly, Cristopher Maximos, and VinhHuy Le, “The 2020 Ohio Primary.” Healthyelections.org (June 16, 2020). https://healthyelections.org/sites/default/files/2020-
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07/Ohio%20Primary%20Memo(2).pdf. “And more than 29,000 residents of New York City who requested a ballot [had] yet to receive a ballot or envelope from the city’s Board of Elections with three days left before primary elections on Tuesday.” Dkt. 503, Sherman Reply Decl., Ex. 15, Nick Corasaniti & Stephanie Saul, Vote-by-Mail Ballot Requests Overwhelm New York City Elections Agency, N.Y. Times (June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/nyc-voteby-mail.html.
Fourth and finally, even if the Court were to conclude that the anticipated injury as to the individual Plaintiffs in this action is speculative or unlikely to occur, Plaintiffs League of Women Voters of Wisconsin (“LWVWI” or “the League”) and Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”) (collectively, “the Organizational Plaintiffs”) will necessarily be forced to help and educate voters who are facing disenfranchisement due to ballot delivery failures and will necessarily suffer a constitutional injury due to the state’s failure to offer fail-safe alternative delivery methods such as online access and downloading via the MyVote portal or email delivery. This diversion of resources, staff time, and money from core mission activities would not occur but for the unconstitutional failure to offer domestic civilian absentee voters electronic transmission options to receive their mail-in absentee ballots, and therefore confers standing on LWVWI and Wisconsin Alliance. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (holding an organization suffers an injury in fact when defendant’s actions impede the organization’s efforts to carry out its mission requiring it to “devote significant resources to identify and counteract” legal violations).
3. Witnessing Given the many ballots rejected in the April 7 election for lack of a witness, and the fact that the Organizational Plaintiffs have already diverted and will further divert resources as a result
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of the requirement, their harm is concrete, imminent and not speculative. LWVWI and Wisconsin Alliance have standing to challenge the witness requirement because they have already expended resources, time, and money educating and helping voters that would not need help but for the unconstitutional enforcement of the witness requirement and will continue to do so through the November general election. See dkt. 380, Cronmiller Decl. ¶¶ 9, 11-12; dkt. 381, Mitchell Decl. ¶¶ 11-14. Havens Realty, 455 U.S. at 379; see also Common Cause Indiana, 937 F.3d at 952 (agreeing with sister circuits which “upheld the standing of voter-advocacy organizations that challenged election laws . . . [and] demonstrated the necessary injury in fact in the form of the unwanted demands on their resources.”).
b. The Gear Plaintiffs’ claims are ripe. In assessing the ripeness of a plaintiff’s claims, courts must evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (citing Abbott Labs v. Gardner, 387 U.S. 136 (1967)); Texas v. United States, 523 U.S. 296, 301 (1998). “[L]egal questions are ‘quintessentially fit’ for judicial decision.” E.F. Transit v. Cook, 878 F.3d 606, 610 (7th Cir. 2018) (quoting Metro. Milwaukee Ass’n of Commerce v. Milwaukee Cty., 325 F.3d 879 (7th Cir. 2003)). In its June 10 Order, this Court set forth the Abbott Labs ripeness test and added that: A claim is not fit for judicial review if “the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992). In evaluating a claim of hardship, courts consider whether “irremediably adverse consequences” would flow from requiring a later challenge. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 3077047, at *3 (W.D. Wis. June 10, 2020).
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Here, as this Court held just last month in the consolidated DNC v. Bostelmann case, the Plaintiffs’ claims and requests for relief are ripe for adjudication as the restriction on the requested alternative fail-safe ballot delivery methods to military and overseas voters and the witness certification requirement are nearly certain to be enforced in the November general election and fit for judicial review at this time. Id. (“[T]he court concludes that plaintiffs’ claims state an actual and concrete conflict premised on the near-certain enforcement of the challenged provisions in the context of the present and ongoing COVID-19 health care crisis.”).
The Intervenor-Defendants argue that no harm will come to Plaintiffs if the Court determines their claims are not ripe for adjudication now, and that they can bring an as-applied challenge at a later date if their ballots do not arrive in the mail. See dkt. 454 at 52-53. But as the Court already has signaled in voicing its concerns about Purcell and the timing of granting relief too close to Election Day, Plaintiffs would face “irremediably adverse consequences” if forced to bring these claims as later as-applied challenges. Toilet Goods Ass’n, 387 U.S. at 164. Facing the Purcell headwinds legally and the extreme practical difficulties of reprogramming MyVote and WisVote and training municipal clerks on new procedures just days before a high-turnout election, Plaintiffs would not stand much of a chance of persuading this or any Court to order the proposed fail-safe options at that late date, and the Intervenor-Defendants know this. This Court explained this in its June 10 Order:
As was amply demonstrated in the fire drill leading up to the April election, the longer this court delays, the less likely constitutional relief to voters is going to be effective and the more likely that relief may cause voter confusion and burden election officials charged with its administration. Further, any delay may ultimately preclude relief under the Purcell doctrine, which cautions against court intervention in imminent elections. As plaintiffs point out, the Legislature appears to propose a rule in which it would either be “too soon” or “too late” to enforce voting rights.
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Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 3077047, at *4 (W.D.
Wis. June 10, 2020) (citations omitted). This Court also noted that “[i]n similar cases, other courts
have found challenges to election laws to be ripe even in the face of various factual uncertainties”,
explaining:
In Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), the Fourth Circuit held that a challenge to Virginia’s open primary law was ripe, even though it was uncertain whether a candidate would run in the primary and be subjected to the challenged provision. Id. at 319. The court reasoned that “[w]aiting until at least two candidates file for office likely would provide insufficient time to decide the case without disrupting the pending election,” causing the court to ultimately conclude that “[t]he case is fit for judicial review despite this uncertainty.” Id. at 319-20. Similarly, in Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008), the Eleventh Circuit concluded that plaintiffs’ challenge to a Florida voter registration law was ripe even though it had not yet been enforced. Id. at 1164. According to that court, potential voters would face hardship if they had to wait until after their applications had been rejected to challenge the statute, as “there may not be enough time to reach a decision on the merits before the actual election.” Id. The court further observed that state election officials would likewise be burdened if the court were to enjoin enforcement of the challenged statute weeks or days before the election. Id.
Id.
Nothing has changed about the ripeness doctrine since then. Now—with the benefit of
months, not mere days, before an election—there is a real possibility of affording adequate and
timely relief to voters who will face disenfranchisement from the twin effects the pandemic is
having on safe voter access to a ballot and the operation of election administration and the postal
service. Defendants argued in the spring that the consolidated Plaintiffs’ claims were unripe; they
have argued the same this summer; and they will continue to argue unripeness through the fall
until such time as they would argue Purcell—in their view, Plaintiffs are always either too late or
too early. This argument has been repeatedly rejected and cannot be credited now.
Intervenor-Defendants imagine that the ripeness doctrine is more stringent and unforgiving
than the likely irreparable injury factor in Winter, but the law is otherwise. See, e.g., Gov’t
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Suppliers Consolidating Servs., Inc. v. Bayh, 734 F. Supp. 853, 861 (S.D. Ind. 1990) (“Although there exists a ripe controversy with respect to each of the three statutory provisions under attack, this is not to say that the timing is appropriate for a preliminary injunction decision on each of the provisions. The doctrine of ripeness addresses only a court’s jurisdictional authority to hear a case. The decision to grant a preliminary injunction involves myriad additional factors, including the timing of the threatened conduct and the immediacy and irreparability of the harm likely to result.”). Ripeness is a more lenient standard than the Winter factor of likelihood of irreparable harm for issuance of a preliminary injunction. And even with respect to the Winter factors, Intervenor-Defendants seem to misunderstand the test, which calls for a likelihood of irreparable harm, not certainty: “The Gear Plaintiffs similarly admit that they believe it only ‘likely’ that ‘Wisconsin election officials will remain unable to satisfy . . . demand for mail-in absentee ballots in the fall.’” See dkt. 454 at 122.
c. The Gear Plaintiffs’ injuries are directly traceable to and redressable by Defendants.
First, there can be no reasonable dispute that for the limited and targeted declaratory and injunctive relief the Gear Plaintiffs seek in their First Amended Complaint against certain specific Wisconsin statutes with statewide application, Wis. Stat. § 6.87(3)(d) and Wis. Stat. § 6.87(4)(b)1., the WEC Defendants are the proper parties. The Intervenor-Defendants nonetheless appear to argue that because municipal clerks are doing the work of preparing and mailing out absentee ballots, they must be sued to enjoin state laws governing that process. See dkt. 454 at 103 (“Even assuming Judge Adelman’s vacated decision could be persuasive authority on points not discussed by the Seventh Circuit in Luft, whatever enforcement authority the Commission has on statewide rules like photo ID has no bearing whatsoever on those aspects of election administration unambiguously allotted only to local officials, such as those for staffing and equipping polling
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places, preparing and delivering ballots, and the like, see, e.g., Wis. Stat. §§ 5.25(2), 7.15(1)(a), (b), (c), (cm), (k).”) (emphasis added). As shown below, this is incorrect for the simple reason that WEC administers Wisconsin election laws and creates, deploys, oversees, and trains municipal clerks on how to use the infrastructure necessary to prepare and mail absentee ballots.
An injury can be traced to a defendant when they contribute – even modestly – to a plaintiff’s injury. See Bennett v. Spear, 520 U.S. 154, 171 (1997); Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.) (holding that Article III “requires no more than de facto causality”); Banks v. Secretary of Ind. Family and Soc. Serv. Admin., 997 F.2d 231, 239 (7th Cir. 1993) (noting that standing can exist even the causal connection between the defendant’s action and the plaintiff’s injury is “weak”). Moreover, even state inaction can be constitutionally cognizable if it produces a “coercive or determinative effect” on the behavior of third parties. Bennett, 520 U.S. at 169; see also Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 501 (7th Cir. 2005). Here, that bar is clearly met. WEC enforces Wisconsin election laws that govern how municipal clerks process and deliver absentee ballots and creates the infrastructure in the MyVote database to do so; the latter take their direction, training, and supervision on Wisconsin laws and policies from the former. See, e.g., dkt. 444 at 16 (“The WEC is required to conduct regular information and training meetings for county and municipal clerks, as well as other election officials. Wis. Stat. § 5.05 (7).”); id. at 8 (describing WEC’s directives to and communications with municipal clerks). Additionally, WEC indisputably manages, upgrades, and trains clerks on how to use WisVote and MyVote, the statewide voter information database and its public interface, respectively, see, e.g., id. at 6-7 (describing WEC’s upgrades to WisVote and MyVote), and if Plaintiffs’ requested relief were granted, it is those systems that would need to be modified. Municipal clerks use but are not the architects of those systems. Indeed, the
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Intervenors themselves concede that WEC plays an instrumental role in whether or not ballot delivery is successful. Dkt 454 at 41 (“[T]he Commission . . . ha[s] already taken significant steps to ensure timely absentee-ballot delivery.”).
As such, the Intervenor-Defendants’ assertion that Plaintiffs “admit that ‘[m]unicipal clerks prepare absentee ballots for delivery to voters that request them,’ that municipal clerks and the USPS are responsible for delivery and return of mailed ballots, Dkt. 213-1 ¶¶ 71, 74, as is clear under Wisconsin law, see, e.g., Wis. Stat. § 7.15(1)(a), (b), (c), (cm), (k),” dkt. 454 at 135, is of no legal significance. For statewide laws, systems, and procedures, the WEC Commissioners and Defendant are the proper defendants. Even the WEC Defendants do not argue to the contrary, contending only, as Plaintiffs of course agree, that an order from this Court is required before WEC could make the changes the Gear Plaintiffs have requested and train municipal clerks on them. See dkt. 444 at 32. Accordingly, the constitutional violations alleged are directly traceable to the Defendants and redressable by an injunction that runs against them enjoining these particular statutory requirements in part, and mandating that Defendants utilize alternatives to both the restricted ballot delivery methods for regular absentee voters and alternatives to the witness requirement.
Second, Intervenor-Defendants Republican National Committee and Republican Party of Wisconsin argue that there is no state action that can be challenged here, just a virus wreaking havoc. This is plainly untrue, as Wisconsin’s state legislators have made a choice not to offer alternatives to regular domestic civilian voters in Wisconsin to cast a ballot, should their absentee ballot not arrive on time. Importantly, if this Court granted Plaintiffs their requested relief, it would also by no means be the first time that a federal court has found an unconstitutional burden on the right to vote under the First and Fourteenth Amendments to the U.S. Constitution in the context of
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a natural disaster. When Hurricane Matthew struck Florida just weeks before the November 2016
general election, a federal court ordered an extension of the voter registration deadline by a week
“to afford a full opportunity to register for those who may have been affected by Hurricane
Matthew’s destruction.” Fla. Democratic Party v. Scott, No. 4:16-CV-626-MW/CAS, 2016 WL
6080225, at *1 (N.D. Fla. Oct. 12, 2016). The first claim in Plaintiffs’ Complaint was an Anderson-
Burdick claim. See dkt. 160-1.
Similarly, in Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d
1344, 1344–45 (S.D. Ga. 2016), the plaintiffs argued:
Plaintiffs contend that the mandatory evacuations imposed due to hurricane Matthew prevented potential voters in Chatham County from registering for the upcoming election on November 8, 2016. The registration deadline in Georgia is October 11, 2016. However, the Chatham County Board of Elections office was closed from October 6 to October 12, 2016. Moreover, post office closures and the suspension of mail service during this period also potentially prevented individuals from submitting their registration applications. Finally, many individuals were potentially unable to register, either in person or electronically, due to evacuation or recovery efforts. Given all these events, Plaintiffs argue that Defendants’ failure to extend the voter registration deadline violates the 1st and 14th Amendments of the United States Constitution . . .
Id. at 1344–45. Their first claim was an Anderson-Burdick claim. See dkt. 160-2. The Court
granted Plaintiffs’ request for relief pursuant to their Anderson-Burdick claim and extended the
voter registration deadline for a week. Id. at 1345–46. While the Court acknowledged that the
extension “would present some administrative difficulty,” it nevertheless ultimately concluded that
those administrative hurdles pale in comparison to the physical, emotional, and financial strain Chatham County residents faced in the aftermath of Hurricane Matthew. Extending a small degree of common courtesy by allowing impacted individuals a few extra days to register to vote seems like a rather small consolation on behalf of their government.
Id. The same reasoning holds true here where public health authorities have urged Plaintiffs to
stay at home, with very limited exceptions, and avoid all unnecessary interactions or gatherings
with people not in their households. Whether it is a mandatory evacuation or a mandatory
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quarantine, federal courts have found an undue burden on the right to vote under the First and Fourteenth Amendments where, as here, a natural disaster not of the state’s making interacts with a preexisting state law or policy to create a severe burden on the right to vote. And again, for the purposes of Article III standing, the defendant need not be the sole cause of plaintiff’s injury. Norton, 422 F.3d at 500. So long as the government’s regulatory choice constitutes a but-for cause of the constitutional deprivation, Plaintiffs’ injury is traceable to it.
II. Merits a. The Gear Plaintiffs are likely to prevail on the merits of their AndersonBurdick claims and will suffer irreparable harm, absent a preliminary injunction. 1. Luft does not foreclose or even weaken the Anderson-Burdick claims the Gear Plaintiffs have asserted.
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), a case decided on a pre-pandemic record, in no way forecloses this action. “Courts weigh these burdens against the state’s interests by looking at the whole electoral system,” id. at 671-72, but if no part of the election code addresses a particular burden or outright denial of the right to vote, as here, then unrelated provisions such as no-excuse absentee voting and Election Day voter registration provide no defense against an AndersonBurdick claim. When voters inevitably face disenfranchisement due to the confluence of absentee ballot delivery failure or delay and a Covid-19 risk factor that makes voting in person unduly dangerous, then there is no part of the Wisconsin election code that “offsets” or cures this constitutional violation, as Defendants contend. See dkt. 454 at 25-26; see also id. at 128 (‘Even a burdensome individual election law passes constitutional muster if other provisions in the State’s election code allow voters to exercise their franchise by other means, with reasonable efforts.”). Assuming the mail-in absentee ballot request deadline has not passed, that voter’s only recourse is to request a replacement mail-in absentee ballot, again by mail delivery, and to hope that it arrives
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faster than the first ballot they requested. Of course, many voters will reasonably continue to wait for their initially-requested mail-in ballot’s arrival until after the deadline to request a ballot has passed and/or when it is far too late in the game to guarantee that a ballot can arrive timely in the mail. They will also reasonably conclude that they cannot safely vote in person due to Covid-19 and its transmission via aerosolized viral particles. See infra at 8-13. Because there is no part of the Wisconsin election code that can remedy this problem, Luft’s instruction to analyze the election code holistically offers the Intervenor-Defendants no aid. In any event, Plaintiffs’ counsel have reviewed the Wisconsin election code holistically and find that the entire scheme fails to safeguard the right to vote in the context of this pandemic, necessitating this Court’s intervention and failsafe options.
The Intervenor-Defendants fail to mention or address two of Plaintiffs’ three requested failsafe options: permitting regular absentee voters to access and download their mail-in absentee ballots online at myvote.wi.gov or to cast a Federal Write-in Absentee Ballot (“FWAB”). Perhaps this omission is inadvertent, or perhaps, in mentioning only email delivery,11 they are trying to persuade the Court that Luft’s reinstatement of the state law restriction on ballot delivery by email and fax to anyone but military and overseas voters forecloses all of these options which involve electronic transmission of a mail-in absentee ballot. If it is the latter, nothing could be further from the truth. The claim in the One Wisconsin Institute case attacking Wis. Stat. § 6.87(3)(d)’s restriction of email and fax delivery to military and absentee voters was based purely on the disparate treatment, not the burdens imposed upon voters trying to vote safely during a pandemic, as in this case. Luft, 963 F.3d at 676 (“The district court determined that 2011 Wis. Act 75, which
11 The Intervenor-Defendants also mention fax delivery, but Plaintiffs have not sought to extend fax delivery to regular absentee voters.
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prohibits election officials from sending absentee ballots via email or fax to all but a few categories of voters, Wis. Stat. § 6.87(3), violates the Constitution. 198 F. Supp. 3d at 948. We reverse this aspect of the decision. The district court identified some voters who might be inconvenienced by this rule—road warriors who may be out of state, or leisure travelers who don’t plan ahead.”). The district court’s opinion in One Wisconsin Institute, Inc. v. Thomsen makes this even clearer: “Act 75, passed in 2011, prevents municipal clerks from faxing or emailing absentee ballots, except to military or overseas electors. Plaintiffs contend that this provision unjustifiably burdens voters who are traveling but who do not qualify as overseas electors.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 946 (W.D. Wis. 2016), order enforced, 351 F. Supp. 3d 1160 (W.D. Wis. 2019), and aff’d in part, vacated in part, rev’d in part sub nom. Luft v. Evers, 963 F.3d 665 (7th Cir. 2020). The Gear case is focused on the burdens facing all voters trying to cast their ballots safely during the pandemic, but particularly those who due to underlying comorbidities and age are more vulnerable to Covid-19. This is not a challenge based on the disparate availability of email delivery but rather based on the unique challenges of voting during this pandemic and the evidence of what has happened to election administration and mail delivery of ballots during this pandemic. This evidence was of course not before the Court when it decided One Wisconsin Institute.
2. The Gear Plaintiffs’ proposed remedy for mail-in absentee ballot delivery failures is narrow, beneficial to voters and municipal clerks alike, feasible, and secure.
Because the particular remedies the Gear Plaintiffs have proposed are directly relevant to the Anderson-Burdick analysis balancing the voters’ burdens against and any purported state interest, Plaintiffs discuss the relief first and then the constitutional inquiry second. The claim cannot be considered in the abstract, as Defendants prefer. As the Gear Plaintiffs must consider
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the whole Wisconsin election code, so too the Intervenor-Defendants must consider the whole claim and the whole proposed remedy. See Crawford, 553 U.S. at 199-200 (considering whether the burden on some voters is “sufficient to establish petitioners’ right to the relief they seek” and concluding otherwise) (emphasis added); Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 596 (6th Cir. 2012) (considering and rejecting state’s argument that a district court’s “limited remedy” will facilitate fraud). Intervenor-Defendants’ argument to the contrary, dkt. 454 at 64-65, which seeks to separate cause of action from the prayer for relief, is contradicted by the Supreme Court’s decision in Crawford, and unsupported by any other case, including Luft, as demonstrated by their failure to cite anything after the crucial phrase “not the proposed remedy from a challenger to the law.” See dkt. 454 at 64.
The Gear Plaintiffs have endeavored to propose a remedy that will benefit both voters and municipal clerks’ offices alike. The fail-safe options, all of which involve alternative ballot delivery methods that rely on electronic transmission of a ballot, would cure the constitutional violation by giving voters safe, easy, and fast ways to access a replacement mail-in absentee ballot, while minimizing any additional burden on clerks’ staff to process and send replacement ballots by mail. Fail-safe measures are vital, familiar tools in guaranteeing the right to vote. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 193 (2008) (citing the Help America Vote Act, 42 U.S.C. § 1543, which provided fail-safe provisional ballots for those voters whose names do not appear on rolls, did not meet identification requirements, or whose eligibility was challenged); see also Welker v. Clarke, 239 F.3d 596, 599 (3d Cir. 2001) (citing National Voter Registration Act, 52 U.S.C. § 20501, which provides several fail-safe provisions, including for those who need to update their registration or address on election day in federal election).
i. The proposed relief is narrow.
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As Plaintiffs stated in their opening brief, this is a last resort, not a first resort. In addition to limiting the relief to regular absentee voters who have previously requested but not received a mail-in absentee ballot by mail delivery, Plaintiffs have further proposed that extending MyVote access to a mail-in ballot to regular voters can be (1) limited to a single week, for instance the last seven days of the election up to and including Election Day, and (2) limited to just those voters who have requested a ballot a certain number of days (perhaps in the range of 7 to 10 days, given the USPS’s anticipated delivery times) in advance of their exercise of these fail-safe delivery methods. These restrictions on the proposed remedy would generally restrict the pool of regular absentee voters who could exercise these fail-safe options and specifically restrict the voters eligible for these back-up options to those who had diligently requested their mail-in absentee ballot more than a few days in advance of Election Day.
ii. The proposed relief is mutually beneficial. Not only will this relief benefit voters facing disenfranchisement due to delivery failures, but several municipal clerks from large municipalities have endorsed this particular form of relief for the additional benefits it would afford clerks who will inevitably have to process a substantial volume of replacement ballot requests and mail those ballots out. Current and former clerks from Madison, Racine, and Kenosha have all endorsed extending online access and downloading through the MyVote portal to regular absentee voters. Dkt. 382, Declaration of Maribeth WitzelBehl (“Witzel-Behl Decl.”) ¶ 15; Dkt. 383, Declaration of Tara Coolidge (“Coolidge Decl.”) ¶¶ 812; Dkt. 384, Declaration of Debra Salas (“Salas Decl.”) ¶¶ 11-13, 17-18. As opposed to mail delivery—or even email delivery—of a replacement mail-in ballot, this back-up option would only require the municipal clerk’s staff to cancel the prior request for a mail-delivered ballot. Dkt. 423, Sherman Decl., Ex. 2, Wolfe Tr. at 143:22-144:17; see also Dkt. 382, Witzel-Behl Decl. ¶ 12; Dkt.
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383, Coolidge Decl. ¶ 11; Dkt. 384, Salas Decl. ¶ 14; dkt. 423, Sherman Decl., Ex. 2, Wolfe Tr. at 137:5-12 (noting that municipal clerks “do nothing” and “it’s all a voter initiated process”); dkt. 489, Kehoe Tr. at 23:8-16 (same). Furthermore, as Robert Kehoe, the WEC’s Training and Technology Director testified at his deposition, their photo ID would have been previously verified by the clerk’s office with the initial request for a ballot by mail delivery. Id. at 7:18-9:6; see also dkt. 384, Salas Decl. ¶ 14.
iii. The proposed relief is feasible. Though WEC Training and Technology Director Robert Kehoe noted in his deposition that there are some open questions to resolve, he largely believed it was feasible to upgrade WisVote and MyVote so that a limited number of regular absentee voters who need a fail-safe method to secure a replacement ballot can download that ballot at the MyVote portal, just like military and permanent overseas voters do. The code or programming logic already exists for: the full range of absentee ballot delivery methods that military and overseas voters enjoy, including the MyVote download option, dkt. 489, Kehoe Tr. at 20:7-21:1; the functionality of the online access and downloading of mail-in absentee ballots through the MyVote portal, at least for military and overseas voters, id. at 23:17-22; determining when photo ID is required or already on file for regular absentee voters, id. at 18:20-19:2; and both voter-initiated and clerk-initiated cancellation of prior absentee ballot requests, so the voter can request a replacement with a different delivery method, id. at 43:1-4, 50:6-12. Mr. Kehoe testified as follows: Q. Okay, the issues we identified above seem to indicate that the Commission has the ability to at least quickly implement some features with the logic Plaintiffs are asking for, correct? A. Yes. Q. And that you would not be starting from scratch and extending this capability for online access and downloading to all regular absentee voters, correct?
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A. That’s correct. We would certainly be able to use some of the existing processes. Id. at 45:17-46:7. Additionally, Mr. Kehoe explained that for this proposed upgrade extending the MyVote portal ballot download’s functionality, “the technical processes are not terribly elaborate” and “[f]rom a technical and development standpoint, [it] wouldn’t be terribly difficult.” Id. at 49:22-50:1; 53:4-6. In terms of WEC’s bandwidth, the IT staff has already completed complex upgrades to WisVote “over a matter of weeks.” See dkt. 489, Kehoe Tr. at 39:3-40:11; id. at 40:1242:22; id. at 44:14-18. Even subsequent “testing to include load testing,” id. at 68:13, which simulates user access and tests the traffic WisVote and MyVote can withstand, id. at 64:2-67:8, would only take “a week,” id. at 67:9-17. The WEC’s IT staff could accomplish this project in an estimated “couple hundred hours of work,” which would be divided amongst 3 to 4 staff members. Id. at 71:18-21. Ultimately, while noting some questions for resolution and trade-offs over the course of his deposition, Mr. Kehoe’s bottom-line conclusion on Plaintiffs’ proposed extension of the MyVote access and downloading function to regular voters seeking a replacement absentee ballot was: “But is it possible, absolutely, it is possible.” Id. 72:7-8.
Furthermore, Intervenor-Defendants’ objections to this proposed remedy as unduly burdensome are directly contradicted by the people in the best position to know: municipal clerks from large municipalities who processed enormous volumes of mail-in absentee ballots in the April election. Municipal clerks (two current, one former) from three of Wisconsin’s largest municipalities, Kenosha, Madison, and Racine, have all endorsed this proposed relief, citing the reduction in their and their staffs’ administrative burdens in processing replacement ballot requests in the final weeks of the election. Dkt. 382, Witzel-Behl Decl. ¶ 10; dkt. 383, Coolidge Decl. ¶ 8; dkt. 384, Salas Decl. ¶ 12. They acknowledge the increased burden of duplicating or re-making absentee ballots on the back end during canvassing, but each believes that this is far outweighed
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by the benefits to voters and the reduced administrative burden on the front end. Dkt. 382, WitzelBehl Decl. ¶ 14; Dkt. 383, Coolidge Decl. ¶ 10, Dkt. 384, Salas Decl. ¶ 16. And Racine City Clerk Tara Coolidge urges a cut-off before Election Day, so that her office has “advance notice of how many downloaded absentee ballots have been requested and are to be expected for each polling location,” in which case she “do[es] not foresee any difficulties in staffing polling places to adequately process such ballots once they are cast.” Dkt. 383, Coolidge Decl. ¶ 9. Accordingly, any administrative burden on the back end when these ballots are received is far outweighed by the reduced burden on the front end when clerks will struggle to mail out replacement ballots while conducting in-person absentee voting and preparing for Election Day, and by the voters’ interest in casting a ballot safely. These fail-safe measures will also alleviate the strain on early voting and Election Day polling sites, which also benefits election administrators and voters alike. Dkt. 382, Witzel-Behl Decl. ¶ 14; dkt. 383, Coolidge Decl. ¶ 10; dkt. 384, Salas Decl. ¶ 17. The IntervenorDefendants have presented zero declarations from municipal clerks taking a different view of the relief the Gear Plaintiffs seek.
iv. The proposed relief is secure WEC Training and Technology Director Mr. Kehoe has testified that to authenticate regular absentee voters, it is “certainly a possibility” that they could use a second round of photo ID verification. Dkt. 489, Kehoe Tr. at 34:20-35:8. He also noted that he did not have concerns “about the concept” of extending online access to mail-in ballots to regular voters. Id. at 74:1-2. Because no Defendant or Intervenor-Defendant challenges this, Plaintiffs will simply refer the Court back to Matt Bernhard’s declaration, see dkt. 371, and the discussion in Plaintiffs’ opening brief in support of their motion for preliminary injunction. See dkt. 421 at 39-41. Plaintiffs will just note Mr. Bernhard’s bottom-line conclusion:
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To summarize, because the pool of voters who will be eligible to receive their ballots through MyVote will be limited, said pool of voters will have already had their identities verified by their clerk, the window of time in which voters can access MyVote to request a replacement ballot is short, because fraud is known to be practically non-existent, and because Wisconsin has significant defense-in-depth measures to prevent fraud and other attacks, extending the usage of the MyVote portal to domestic civilian voters who do not receive their mail-in ballot in time to cast it in the November election does not pose a risk to the integrity of that election. See dkt. 371, Bernhard Decl. ¶ 25. Additionally, all absentee ballot certificate envelopes bear a unique identifying number and bar code, and clerks will cancel the previously-requested absentee ballot, so there is a safeguard that prevents the voter from casting more than one ballot. Dkt. 423, Sherman Decl., Ex. 2, Wolfe Tr. at 149:15-151:7; 169:20-170:6; dkt. 384, Salas Decl. ¶¶ 11, 13. Intervenor-Defendants of course oppose this relief, but beyond their legal arguments, they fail to even wrestle with the proposed remedy, including Plaintiffs’ proposed limitations on who can exercise these fail-safe options and when. This kneejerk opposition is not based on any evidence or facts. They have not argued or marshalled any evidence to suggest that this proposed remedy is administratively infeasible or would harm the integrity of the November election in any way. The sole exception is that the Intervenor-Defendants note that municipal clerks would have to duplicate replacement ballots delivered to voters by these alternative, electronic means of transmission so that the voter’s choices can be scanned and tabulated, and that means additional work on the back end. But their arguments are self-defeating. The Intervenor-Defendants claim that absentee ballot preparation and delivery failures will be “extremely rare,” dkt. 454 at 43. If that proves true—and all evidence points to the contrary—then it will be a very small addition to the regular workload of canvassing the ballots once the polls close and overwhelmingly worth the additional burden on the back end, in order to ensure voters, particularly those most vulnerable to
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Covid-19, can cast a ballot in the November election. Intervenor-Defendants cannot have it both ways; it cannot be both “rare” and a monumental additional burden.
3. The Gear Plaintiffs are entitled to a preliminary injunction on their Anderson-Burdick claims. i. Absentee Ballot Preparation and Delivery Failures
As a threshold matter, Plaintiffs will address the Intervenor-Defendants’ spurious argument that there is no constitutional right to vote absentee by mail. See dkt. 454 at 31-32. For this proposition, they cite McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), and the Fifth Circuit’s recent—and inapposite—stay order issued in Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). First, no Supreme Court or Seventh Circuit decision has ever endorsed the idea that the 1969 decision in McDonald fully supersedes all of the later-intime jurisprudence that developed the Anderson-Burdick framework over the last 50 years, when a restriction on absentee voting is implicated. The district court in Thomas v. Andino persuasively rejected this argument, noting that where “‘other means of exercising the right’ to vote are not easily available,” restrictions on absentee voting do impede voting rights and must be analyzed under Anderson-Burdick. No. 3:20-cv-01552-JMC, --- F.Supp.3d ---- , 2020 WL at 2617329, at *17 n.20 (D.S.C. May 25, 2020). The court notes that:
In-person voting, while still technically an available option, forces voters to make the untenable and illusory choice between exercising their right to vote and placing themselves at risk of contracting a potentially terminal disease. . . . [D]uring this pandemic, absentee voting is the safest tool through which voters can use to effectuate their fundamental right to vote. To the extent that access to that tool is unduly burdened, then no matter the label, “denial of the absentee ballot is effectively an absolute denial of the franchise [and fundamental right to vote].” O'Brien, 414 U.S. at 533, 94 S.Ct. 740 (Justice Marshall concurring). As such, in these circumstances, absentee voting impacts voters’ fundamental right to vote. Id.
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Moreover, the Texas Democratic Party stay order is readily distinguishable from the instant case because that case solely concerned a challenge to a single, age-based excuse for absentee voting, not a set of claims alleging that certain voting laws interact with the Covid-19 pandemic to severely burden voters’ rights. Effectively, the Fifth Circuit was confronted with a broad discrimination challenge on behalf of all 18-to-64-year-old voters. Texas Democratic Party, 961 F.3d at 395, 402. Plaintiffs’ claims here, by contrast, do not sound in discrimination. Though the Legislative Defendants would prefer a more abstract, pre-pandemic review, the challenged laws must all be analyzed against the epidemiological evidence of Covid-19’s transmission dynamics and reviewed under Anderson-Burdick’s burdens-interests balancing test.
Having established that restrictions on mail-in absentee voting can violate voters’ right to be free of undue burdens on their right to vote, Plaintiffs turn to the Intervenor-Defendants’ arguments that the Gear Plaintiffs have not established an undue burden on their right to vote. If state lawmakers and executive officials need not wait until electoral fraud actually occurs to create and enforce requirements they believe will prevent such crimes, see Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-96 (2008) (holding that a state has an interest in preventing voter fraud even when there is “no evidence of any such fraud actually occurring . . .”), then, by the same token, voters need not wait until they suffer grievous injury to their right to vote, health, or bodily integrity before securing injunctive relief. See, e.g., Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 (11th Cir. 2019) (granting a motion for preliminary injunction because “Florida’s signature-match scheme subjects vote-by-mail and provisional electors to the risk of disenfranchisement . . .”) (emphasis added). To hold otherwise, as Intervenor-Defendants advocate, would eviscerate the Anderson-Burdick framework, privileging credible risks to the state’s legitimate interest in protecting election integrity while dismissing credible risks to voters’
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rights to participate in their democracy. More generally, such disparate treatment of the competing interests would run counter to the Supreme Court’s precedent which emphasizes that preliminary injunctive relief is warranted “to prevent a substantial risk of serious injury from ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994); see also Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (“[O]ne does not have to await the consummation of a threatened injury to obtain preventive relief.”) (citation and quotation omitted).
Because the Intervenor-Defendants have conflated some of their responses to the claims in these consolidated cases, they do not spend time analyzing the Gear Plaintiffs’ Anderson-Burdick claims on their own terms. For instance, they do not clearly identify what state interest is advanced by failing to afford the relief Plaintiffs seek for voters who cannot vote safely at the polls and whose mail-in absentee ballot does not arrive timely in the mail. Where voters cannot safely vote in person due to the Covid-19 pandemic, the failure to prepare and deliver mail-in absentee ballots timely or at all constitutes a complete denial of a voter’s right to cast a ballot. Denial of the right to vote is the most severe and total burden on the right to vote possible, so the state must identify a compelling interest. Luft, 963 F.3d at 672. Neither the WEC Defendants nor the Wisconsin Legislature have articulated what compelling interest supports refusing to offer alternative and fail-safe ballot delivery methods to voters whose ballots do not arrive timely in the mail. The relief requested is important here, because Plaintiffs have already suggested restricting the exercise of this last resort to only those voters who diligently requested their ballots some amount of time in advance, and to a specific time window, say just one week.
Accordingly, it is wholly inadequate for the Intervenor-Defendants to consider Section 6.87(3)(d)’s restriction of electronic transmission of ballots to military and overseas voters in the abstract, without considering the specific relief proposed and identifying the state interest or
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justification for rejecting it. The Gear Plaintiffs’ claims cannot be divorced and analyzed separately from the proposed relief, because Plaintiffs are not seeking full invalidation of the challenged laws but limited alternatives to them. See supra at 32-33. Accordingly, the only legitimate state interests that can be asserted here must be directed to Plaintiffs’ proposed fail-safe options. Under the dire circumstances of the Covid-19 pandemic, which are lightly mentioned in the Intervenor-Defendants’ briefs, there is no “compelling,” “important,” or “legitimate” interest, Burdick, 504 U.S. at 434, that can justify this disenfranchisement and the refusal to implement these common-sense work-arounds. Given the proposed relief is narrow, feasible, beneficial to voters and clerks alike, and secure, see supra at 33-39, the effect the pandemic is having on the operation of election administration and mail delivery systems, as documented by the record in these consolidated cases, and the lack of any compelling state interest, it is unreasonable not to provide these fail-safes to voters, particularly those most vulnerable to Covid-19.
Plaintiffs cannot necessarily alleviate the burden by requesting their ballot immediately. See dkt. 454 at 29-30, 63. Despite Intervenor-Defendants’ rosy assertions to the contrary, even requesting an absentee ballot by mail delivery weeks in advance of an election does not guarantee that the voter will receive it timely or ever. See dkt. 396, Braun Decl. ¶ 4 (requested mail-in ballot “well in advance” of the election); dkt. 387, Wood Decl. ¶ 4 (requested ballot on March 16); dkt. 389, Krejci Decl. ¶¶ 2,6 (requested ballot “within days of entering quarantine” in mid-March); dkt. 390, Harrell Decl. ¶ 5 (requested ballot in mid-March); dkt. 388, Ackerbauer Decl. ¶ 6 (same); dkt. 375, Bahr Olsan Decl. ¶ 6 (same); dkt. 391, Newby Decl. ¶ 6 (same); dkt. 376, Sheila Jozwik Decl. ¶ 4 (requested ballot on March 17); dkt. 377, Gregg Jozwik Decl. ¶ 4 (same); dkt. 374, Gary Fergot Decl. ¶ 5 (requested ballot on two weeks before election); dkt. 373, Diane Fergot Decl. ¶ 5 (same); dkt. 392, Lohrenz Decl. ¶ 5 (requested ballot on March 22); dkt. 394, Thompson Decl. ¶ 7
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(requested ballot “at least three days before” the deadline). Some of these voters, despite their timely request, received their ballots too late to cast and deliver or postmark them by April 7th, dkt. 388, Ackerbauer Decl. ¶ 11, dkt. 394, Thompson Decl. ¶¶ 5, 7, while others never received them at all, even weeks or months later. Dkt. 372, Kohlbeck Decl. ¶ 9; dkt. 373, Diane Fergot Decl. ¶ 7; dkt. 374, Gary Fergot Decl. ¶ 7; dkt. 375, Bahr Olsan Decl. ¶ 6; dkt. 376, Sheila Jozwik Decl. ¶ 7; dkt. 377, Gregg Jozwik Decl. ¶ 7; dkt. 390, Harrell Decl. ¶ 5; dkt. 389, Krejci Decl. ¶ 7; dkt. 392, Lohrenz Decl. ¶ 5; dkt. 391, Newby Decl. ¶ 5; dkt. 387, Wood Decl. ¶ 6.
Whether or not, outside the context of the pandemic, Wisconsin could reasonably conclude under Luft that military and overseas voters face special problems in the voting process is not at issue, nor is the example of overseas voters used to identify a disparate treatment issue resolved by a rational basis analysis. Instead, here, the special circumstances of the confluence of the pandemic with a high-turnout election means that Plaintiffs’ voting rights are denied, and the comparison to military and overseas voters merely demonstrates the feasibility of relief. While voting in Wisconsin outside the context of a pandemic may or may not be “easy,” here, in this context, without relief it may be impossible. To remedy this disenfranchisement, the Court should afford relief to voters who otherwise cannot safely vote during the pandemic if they do not receive their duly requested mail ballot and there is no failsafe in place.
Lastly Republican National Committee and Republic Party of Wisconsin argue the Court cannot focus only on the inconvenience or disruption to certain individual voters. See dkt. 155 at 4 (“‘Some [voters’] potential inconvenience does not permit a court to override the state’s judgment that other interests predominate.’” (quoting Luft, 963 F.3d at 677)). They argue that the Court cannot focus only on the inconvenience or disruption to certain individual voters. But the ballot delivery failures encountered in the April 7 election were not isolated incidents, but were a
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systemic failure that disenfranchised at least thousands of voters. They add that states like Wisconsin must make legislative determinations for their population as a whole and could not possibly anticipate every potential effect on each and every voter. Id. But the combined effects of the pandemic on elections and the postal service are not felt by just a few random voters, but rather by thousands, if not tens of thousands come October and November. Six of the eight individual Plaintiffs have already been disenfranchised once this year and seek to prevent a recurrence.
Plaintiffs’ are likely to suffer irreparable harm absente injunctive relief and likely to succeed on the merits of their Anderson-Burdick claim over absentee ballot preparation and delivery failures.
ii. The Witness Requirement Contrary to Defendants’ and Intervenor-Defendants’ arguments, Luft does not foreclose Plaintiffs’ request for a “reasonable efforts certification” in lieu of a witness signature. The witness requirement for mail-in absentee ballots has become unduly burdensome specifically in the context of the Covid-19 pandemic because its burdens, in this context, far outweigh its efficacy in advancing the state’s interests. See Thomas, 2020 WL 2617329, at *19, *21. Eligible Wisconsin voters who live alone or who do not have an adult U.S. citizen in their household, and particularly those who are at higher risk from Covid-19, will struggle to safely satisfy the witness requirement through reasonable efforts. The unreasonable lengths to which self-isolating voters would have to go to satisfy the witness requirement during the pandemic are not justified by the minimal value to the State of the witness signature. Luft’s ruling on a facial voter ID challenge outside the pandemic context has no bearing on the fact-specific weighing of burdens in the current circumstances under Anderson-Burdick. Here, when there are reasonable alternatives such as this Court’s own preliminary injunction providing a certification alternative or the Seventh Circuit’s
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panel suggestion of remote witnessing with the recording of a witness name, without a physical signature from that witness, there is no justification for the witness signature requirement as it currently stands during the pandemic. Defendants point to no evidence in the record contrary to Plaintiffs’ showing that the requirement holds only minimal benefits for law enforcement. See Tutor Decl. ¶¶ 6-9.
Other arguments raised by Intervenor-Defendants warrant further scrutiny. First, they propose ways that voters can satisfy the witness requirement, such as “using a family or household member and mail-delivery persons or medical professionals, having a witness observe over Skype or FaceTime, and signing after sanitizing and social distancing.” Dkt. 454 at 54–55. The first recommended method overlooks voters who do not live with another U.S. citizen, and ignores the fact that few voters are likely to pay a copay and congregate in their doctors’ offices for the purpose of getting their ballot witnessed—or that medical professionals would even assent to them doing so during a pandemic. Having a delivery person witness the ballot would seem to undercut the alleged anti-fraud purpose of the witness requirement, unless the delivery person is familiar with the voter and can say with certainty that the person completing the ballot is the person to whom the ballot was issued. Furthermore, applications like FaceTime and Skype require voters to have access to a computer with an Internet connection or a smartphone, but according to a study by Pew Research Center, 27 percent of Americans aged 65 or older, 18 percent of people making less than $30,000 a year, 15 percent of Black Americans, 14 percent of Hispanic Americans, and 15 percent of rural residents report not using the Internet.12 These statistics demonstrate the burden that enforcing the witness requirement during the pandemic will place on certain populations, some of
12 Dkt. 503, Sherman Reply Decl., Ex. 16, Monica Anderson et al., 10% of Americans don’t use the internet. Who are they?, PEW RES. CTR. (Apr. 22, 2019), https://www.pewresearch.org/facttank/2019/04/22/some-americans-dont-use-the-internet-who-are-they/.
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which have been particularly hard hit by Covid-19. See dkt. 370, Murray Decl. ¶¶ 27-30. And the final suggestion—using sanitizing measures and social distancing—ignores information put out by the Wisconsin Department of Health Services, finding that novel coronavirus can survive on paper for up to five days,13 and that using sanitizing products on one’s ballot may spoil it.
Second, Intervenor-Defendants treat the state’s interest in preventing voter fraud as absolute, without balancing the burden on voters during the Covid-19 pandemic, as required under the Anderson-Burdick standard. Dkt. 454 at 55. In so doing, they mischaracterize the evidence offered by LWVWI’s executive director, Debra Cronmiller, in her declaration. IntervenorDefendants state that her declaration “demonstrates the ease of compliance with the witnesssignature requirement,” id. at 56, when in fact Ms. Cronmiller’s declaration said the exact opposite, explaining: “While League volunteers offering such assistance will attempt to assist using appropriate social distancing, I would expect that some voters will not be able to accept such help because of self-quarantine and other compromising situations. In addition, we do not have enough volunteers across the state to assist all of the thousands of voters who live alone in Wisconsin.” Cronmiller Decl. ¶ 6. She also said that, for the first time in its century-long history, LWVWI had to divert resources to educate and assist voters in meeting the witness requirement, id. ¶ 9, thereby belying Intervenor-Defendants’ arguments as to the alleged ease in satisfying the requirement during the pandemic. Tellingly, the Intervenor-Defendants offer no explanation for how the witness requirement protects against voter fraud, or why a witness signature is required and why adopting the Seventh Circuit’s proposed alternative of remote witnessing would not serve the exact same purpose, at no risk to the voter. They do not discuss how, if at all, clerks ensure that witness
13 Dkt. 503, Sherman Reply Decl., Ex. 17, COVID-19: Avoid Illness, WIS. DEPT. OF HEALTH SERVS., https://www.dhs.wisconsin.gov/covid-19/protect.htm (last visited July 31, 2020).
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signatures belong to the person purporting to sign the voter’s ballot, or how the signatures are otherwise used to detect fraud. Crawford may not require states to find the actual presence of voter fraud to justify imposing anti-fraud measures, but at a bare minimum, they should be required to justify the requirements and methods chosen. The Intervenor-Defendants have completely failed to do so here.
b. Unconstitutional Conditions Claim The Intervenor-Defendants’ only response to this claim is that the Plaintiffs’ discussion of it is “lengthy” and “a legally irrelevant distraction.” Dkt. 454 at 59. These are not substantive responses, and Intervenor-Defendants fail to develop them further. Plaintiffs will rest on their opening brief in support of this part of their preliminary injunction motion.
c. Title II of the Americans with Disabilities Act Plaintiffs will not reiterate the standard for assessing ADA Title II claims but will instead address Intervenor-Defendants’ proposed defenses to their ADA claim. Notably, they do not contest that Plaintiffs Kohlbeck, Whelan, Fergot, and LWVWI’s similarly-situated members have disabilities within the meaning of the ADA. First, Intervenor-Defendants argue that having a replacement ballot sent by email or fax would be an unreasonable accommodation because clerks would have to reconstruct ballots printed by voters on official ballots before counting them and because WEC would have to modify the MyVote and WisVote systems to make this option available to clerks and voters. See dkt. 454 at 91-92. As noted previously, the only municipal clerks who have submitted declarations in this case do not agree that this will be unduly burdensome; they think the benefit to voters justifies the inconvenience on the back end. Plaintiffs seek online access to mail-in ballots, email delivery, and the Federal Write-in Absentee Ballots (“FWABs”) as a back-up for the subset of timely-requested absentee ballots that do not reach voters, not as the
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original form of delivery for all ballots requested by voters with disabilities. Additionally, clerks will save a comparable amount of labor by not having to print and mail these replacement ballots to voters in the days before the election, when demand is at its peak. In determining whether an accommodation is reasonable, “it is necessary that the court take into consideration all of the costs to both parties.” Wis. Cmty. Servs. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006). The modest administrative burdens this form of relief would impose on elections officials are dwarfed by the grave cost of disenfranchisement faced by at-risk voters, absent such relief. The record also shows that the software change on WEC’s part would be less burdensome than Defendants suggest.
Intervenor-Defendants also point to other ways to vote should an at-risk voter’s ballot fail to arrive by mail, such as “curbside voting; in-person absentee voting; as a hospitalized elector; or simply in-person at the polls, following all safety precautions” suffice as reasonable accommodations, obviating the need for additional relief. Dkt. 454 at 92. This suggestion wholly ignores—and fails to respond to—the thrust of the Gear Plaintiffs’ injury—that they cannot vote in person because it would force them to risk contracting Covid-19 and, by extension, risk severe illness or even death. Moreover, the record reveals the difficulties of maintaining safety during curbside and in-person voting. See Keresty Decl. ¶¶ 3, 7 (noting that poll workers were unable to maintain 6 feet of distance from voters during curbside voting and polling places were too crowded to allow for proper social distancing). In-person absentee voting still requires voters to expose themselves to other potential carriers of Covid-19. And while the WEC has expanded the definition of “hospitalized” elector to include those quarantining due to Covid-19, that definition is limited to “people who were exposed to a contagious disease,” excluding people who are isolating to avoid exposure in the first instance. Dkt. 503, Sherman Reply Decl., Ex. 18, Meagan Wolfe, Hospitalized Electors and Public Health Guidance, WIS. ELEC. COMM’N (March 29, 2020),
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https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/Hospitalized%20Electors.pdf. Even if the hospitalized elector procedure were made available to voters in preventative quarantine, allowing them to receive and return an absentee ballot by agent would still require the same exposure that the challenged witness requirement would entail for isolating voters who live alone, not to mention defeat the entire purpose of the quarantine.
Lastly on this point, and confusingly, Intervenor-Defendants claim: [T]he Gear Plaintiffs have not argued that their receipt of mailed absentee ballots is likely to prohibit them from voting, see Dkt. 421 at 65–66, thus they have waived this essential element of their claim, Stadfield, 689 F.3d at 712. Given their lack of developed argument, the Gear Plaintiffs have failed to present any evidence that any voter will likely be unable to vote if required to obtain an absentee ballot through the mail, rather than via fax or email. Dkt. 454 at 104 (emphasis in original). Once again, they misstate the Gear Plaintiffs’ claims because they cannot refute them directly. The Gear Plaintiffs have not argued that they will be unable to vote if required to receive an absentee ballot by mail—indeed, the ideal situation would be for the individual Plaintiffs to receive their first requested ballot by mail, without having to request a new one by mail, fax, or email from their clerk. Instead, they have argued that their injury lies in not receiving their requested ballots by mail because their health conditions make it too dangerous for them to vote in person during the pandemic. This injury was realized for six of the individual Gear Plaintiffs in the April 7 election, and the WEC’s own assessments offer little hope that the failures causing them to never receive their ballots will be cured or even mitigated before November. The evidence in the record supports the strong likelihood that this injury will recur. Next, Intervenor-Defendants again mischaracterize the nature of the Gear Plaintiffs’ ADA claims by arguing that any failure to receive a requested absentee ballot by mail would not be due to Plaintiffs’ disabilities. This argument deliberately misses the point. Should these voters fail to receive their requested ballots by mail, and absent electronic transmission of replacement ballots,
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they will be disenfranchised because vote by mail remains their only viable means of voting due to their disabilities. Stated another way, their health conditions put them at increased risk of severe illness or death from Covid-19 and accordingly prevent them from voting in person. But for their disabilities, they would be able to cast their ballots using any one of the methods highlighted by Intervenor-Defendants. It is therefore the failure to provide an alternative means of absentee ballot delivery that would disenfranchise them as a direct consequence of their disabilities.
As to the witness requirement, Intervenor-Defendants contend that they need not suspend the witness requirement for voters with disabilities because doing so would “fundamentally alter Wisconsin’s electoral system by undercutting the State’s ‘substantial interest in combatting voter fraud.’” See dkt. 454 at 118 (internal citations omitted). But a public entity is only relieved of the obligation to provide a reasonable accommodation when it “can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity,” 28 C.F.R. 35.130(b)(7), which Intervenor-Defendants’ bare assertion, unsupported by any evidence, fails to accomplish. They do not describe how, if at all, modifying the witness requirement to permit remote witnessing or a certification alternative for Covid-19-vulnerable voters who live alone would fundamentally alter Wisconsin’s election system, or why other anti-fraud requirements imposed by Wisconsin law are inadequate to meet the State’s interest in election integrity. As such, they have not met their burden under the ADA framework, and this defense cannot prevail.
It also bears mentioning that while the case Intervenor-Defendants cite in support of this failed defense does not purport to define a “fundamental alteration” within the meaning of Title II, see dkt. 454 at 118 (citing Tennessee v. Lane, 541 U.S. 509, 532 (2004)), other cases have held that this defense applies when the proposed modification fundamentally alters the protected service, program, or activity for participants, not for the public entity providing it. See Olmstead
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v. L. C. by Zimring, 527 U.S. 581, 604 (1999) (“Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.”); Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410 (1979) (holding that exempting a deaf prospective nursing student from clinical requirements would fundamentally alter the nursing program because she “would not receive even a rough equivalent of the training a nursing program normally gives”). For voters with disabilities, the nature of the protected activity—voting—is fundamentally preserved rather than fundamentally altered by the suspension of the witness requirement as to at-risk voters. Were it sufficient for a state entity to assert an abstract state interest in preserving a particular requirement in order to avoid providing a reasonable accommodation, the entire function and efficacy of the ADA would collapse and litigants with disabilities would almost always fail to succeed on their claims.
III. Burford Abstention and Purcell Intervenor-Defendants ask this Court to reject, stay or dismiss this case, citing the Burford
abstention doctrine. Dkt. 454 at 123-24. At its core, in the rare case where it is applied, Burford abstention seeks to avoid competing interpretations of unsettled questions of state law by federal and state courts, where those interpretations would interrupt complex regulatory schemes. “Burford abstention is rarely, if ever, appropriate when ‘the state law to be applied appears to be settled.’” Int’l Coll. of Surgeons v. City of Chicago, 153 F.3d 356, 364 (7th Cir. 1998) (quoting Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976)). Burford abstention “may be appropriate when concurrent federal jurisdiction would ‘be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public
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concern.’” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 504 (7th Cir. 2011) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989)). Under the second set of circumstances in which courts may invoke Burford, “the mere existence of a statewide regulatory regime is not sufficient. The state must ‘offer some forum in which claims may be litigated,’ and this forum must ‘stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.’ In other words, judicial review by state courts with specialized expertise is a prerequisite to Burford abstention.” Id. (quoting Property & Cas. Ins. Ltd. v. Cen. Nat’l Ins. Co. of Omaha, 936 F.2d 319 (7th Cir. 1991) (emphasis in original) (internal citation omitted) (finding that district court abused its discretion in abstaining under Burford where Indiana law permitted courts of general jurisdiction to hear claims brought under state environmental law); see also Int’l Coll. of Surgeons, 153 F.3d at 364 (finding abstention under Burford inappropriate where Illinois law granted any county court of general jurisdiction the authority to review local landmark commission decisions). Accordingly, Burford abstention is not appropriate here. The Gear Plaintiffs have asserted federal constitutional and federal law violations, and a federal forum is therefore appropriate. That Wisconsin state courts could exercise jurisdiction over these federal claims is of no moment, because Burford applies when state law has created a specialized forum in which to hear claims arising under state law. Further, the Gear Plaintiffs claims manifestly do not seek to “undercut or completely remove Wisconsin’s election-integrity laws.” Dkt. 454 at 123. The Commission has not said that Section 6.87(3)(d) is intended to further election integrity. Further, proposing alternative ballot delivery methods and alternatives to a physical witness signature requirement are efforts to balance voters’ rights with election integrity, not to eviscerate the latter.
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After joining a brief that argues the Gear Plaintiffs’ claims are unripe, the Republican National Committee and Republican Party of Wisconsin argue that Purcell v. Gonzalez, 549 U.S. 1 (2006) instructs this Court to stay its hand this close to an election. Dkt. 455 at 4-6. As has become routine in this litigation, Intervenor-Defendants argue that Plaintiffs—who include voters who have already been disenfranchised once during this pandemic—are paradoxically both too early and too late to seek a modification of voting rules and procedures to prevent losing their right to vote once again. However, their argument is completely divorced from the animating concerns in the Supreme Court’s original decision in Purcell, which directed federal courts to weigh “considerations specific to election cases”—namely the risks of voter confusion, increased administrative burdens, and suppressed turnout—amongst the normal equitable factors for issuance of an injunction. 549 U.S. at 4-5. It did not create a per se rule mandating that courts reject any request for injunctive relief as to voting rules brought within a certain timeframe before an election.
First, Purcell does not apply in the same way when voters’ rights would be vindicated and voter confusion would be reduced by the injunctive relief sought. It “demands ‘careful consideration’ of any legal challenge that involves ‘the possibility that qualified voters might be turned away from the polls.’” U.S. Student Ass’n Fdn. v. Land, 546 F.3d 373, 387 (6th Cir. 2008) (quoting Purcell, 549 U.S. at 4). Accordingly, circuit courts have upheld injunctions issued shortly before an election where the challenged law or rule would have the effect of disenfranchising voters. See League of Women Voters of the United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (issuing injunction related to voter registration form less than two weeks before relevant registration deadlines); Obama for America v. Husted, 697 F.3d 423, 436–37 (6th Cir. 2012) (affirming entry of preliminary injunction approximately one month prior to early voting days at
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issue); Land, 546 F.3d at 387 (denying six days before Election Day defendants’ motion to stay district court’s order granting preliminary injunction, issued twenty-two days before Election Day). Purcell’s express language was deeply concerned with the risk of suppressing turnout, 549 U.S. at 4-5 (citing the “consequent incentive to remain away from the polls”), but the requested injunction here will facilitate and increase voter turnout.
Second, Intervenor-Defendants have no basis to claim that these proposed changes come too soon before an election. WEC is issuing new guidance, developing new policies, and updating WisVote and MyVote continuously, trying to prepare for the August and November elections. Additionally, in the run-up to the April 7 election, WEC issued over 50 communications and guidance documents to clerks to keep pace with the unprecedented and rapidly-evolving pandemic, and made changes to WisVote and MyVote up to Election Day. See dkt. 446, Wolfe Decl. ¶ 23. WEC was doing what it needed to do, but for this reason, the Intervenor-Defendants’ Purcell argument is dead on arrival. If such extensive and ever-evolving administrative responses to the Covid-19 pandemic by the WEC are manageable and not likely to unduly confuse voters, and Intervenor-Defendants have praised these efforts throughout their briefs, then the same should hold true of any relief this Court orders. If these ameliorative administrative efforts were not too late, then neither is ameliorative litigation.
Third, the purported risk of voter confusion cannot be invoked as support for rules that disenfranchise and burden voters during a pandemic—any confusion over a rule that facilitates voters’ participation hurts voters, not the Defendants or Intervenor-Defendants.
Fourth, the Supreme Court has soundly rejected arguments that increased administrative burdens override First Amendment rights. See Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 218 (1986). The same principle should apply with even greater force in a case that
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concerns voters’ rights to cast their ballots in the face of a deadly pandemic. While some of the requested relief will shift the administrative burdens on municipal clerks and those canvassing ballots, the net result will be less burdensome on the front end prior to Election Day, and far more votes will be cast and counted than if no injunctive relief issued.
CONCLUSION For the foregoing reasons, the Gear Plaintiffs respectfully request that this Court grant their motion for a preliminary injunction and deny the Intervenor-Defendants’ motion to dismiss this action.

DATE: July 31, 2020

Respectfully submitted,
/s/ Jon Sherman
Jon Sherman* D.C. Bar No. 998271 Michelle Kanter Cohen* D.C. Bar No. 989164 Cecilia Aguilera* D.C. Bar No. 1617884 FAIR ELECTIONS CENTER 1825 K St. NW, Ste. 450 Washington, D.C. 20006 jsherman@fairelectionscenter.org mkantercohen@fairelectionscenter.org caguilera@fairelectionscenter.org (202) 331-0114
Douglas M. Poland State Bar No. 1055189 David P. Hollander State Bar No. 1107233 RATHJE WOODWARD LLC 10 E Doty Street, Suite 507 Madison, WI 53703 Phone: 608-960-7430 Fax: 608-960-7460 dpoland@rathjewoodward.com dhollander@rathjewoodward.com
55

Case: 3:20-cv-00249-wmc Document #: 505 Filed: 07/31/20 Page 58 of 59 Counsel for Plaintiffs *Admitted to the U.S. District Court for the Western District of Wisconsin
56

Case: 3:20-cv-00249-wmc Document #: 505 Filed: 07/31/20 Page 59 of 59 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on July 31, 2020, I caused the foregoing document to be served to all counsel of record via the Court’s CM/ECF System.
/s/ Jon Sherman
57

 
 Case: 3:20-cv-00249-wmc Document #: 538 Filed: 09/21/20 Page 1 of 69

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Plaintiffs, v.
MARGE BOSTELMANN, et al.,

OPINION AND ORDER 20-cv-249-wmc

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.

20-cv-278-wmc

Case: 3:20-cv-00249-wmc Document #: 538 Filed: 09/21/20 Page 2 of 69

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.,

20-cv-340-wmc

Plaintiffs, v.
MARGE BOSTELMANN, et al., Defendants,
and
WISCONSIN LEGISLATURE, REPUBLICAN NATIONAL COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN,
Intervening-Defendants.

20-cv-459-wmc

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,

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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 COVID19 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
1 In the Edwards case, the Wisconsin State Assembly, Senate and members of the Wisconsin Legislature were also named as direct defendants along with the WEC Commissioners.
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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 mailin 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
2 In a vain effort (in both senses of that word) at forestalling the inevitable judge-appointment and
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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
bias dialogue so prevalent in what remains of the independent press, among commentators and on the internet, let me stress, as I did with the parties during the August hearing, the limited relief awarded today is without regard to (or even knowledge of) who may be helped, except the average Wisconsin voter, be they party-affiliated or independent. Having grown up in Northern Wisconsin with friends across the political spectrum (and in some cases back again), my only interest, as it should be for all citizens, is ensuring a fair election by giving the overtaxed, small WEC staff and local election officials what flexibility the law allows to vindicate the right to vote during a pandemic. 3 Military and overseas voters are exempt from this proof of residence requirement. Wis. Stat. § 6.34(2). Also, proof of residence is not required if the voter registers online and provides the number of a current and valid Wisconsin operator’s license or state ID card, together with his or her name and date of birth, provided this information is verified. Wis. Stat. § 6.34(2m).
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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

4 For certain voters without an acceptable photo ID, there is also an “ID Petition Process” that has been the subject of substantial litigation unrelated to the current pandemic. See Luft v. Evers, 963 F.3d 665, 678 (7th Cir. 2020).

5 However, litigation on that issue is ongoing, with oral argument before the Wisconsin Supreme

Court scheduled for September 29, 2020. See Wis. Supreme Court Pending Cases (last accessed

Sept.

3,

2020),

https://www.wicourts.gov/sc/sccase/DisplayDocument.pdf?content=pdf&seqNo=285226. Because

all of the issues certified for review by the Wisconsin Supreme Court in Jefferson relate exclusively

to Wisconsin law, none overlap or conflict with the federal constitutional and statutory claims at

issue in the instant case.

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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 non-military/overseas voters may now receive an absentee ballot only by mail. See Luft v. Evers, 963 F.3d 665, 676-77 (7th Cir. 2020).
Once received, to cast an absentee ballot by mail, the voter must (1) complete the ballot in the presence of a witness, (2) enclose the ballot in the envelope provided, (3) sign the envelope and obtain a signature from the witness and (4) return the ballot for actual receipt no later than 8 p.m. on election day. Wis. Stat. § 6.87(2), (4)(b), (6). In light of the COVID-19 pandemic, the WEC further issued guidance on March 29, suggesting several options for voters to meet the witness signature requirement safely. See WEC, “Absentee Witness Signature Requirement Guidance” (Mar. 29, 2020),
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https://elections.wi.gov/node/6790. This guide outlines a multi-step process to acquire a signature while observing social distancing and other best health practices. Id. For example, the guide suggests that a voter could recruit a friend or neighbor to watch the voter mark their ballot through a window or over video chat, with the voter then placing the ballot outside for the witness to sign as well. Id. To return an absentee ballot, a voter may then mail it, hand deliver it to the clerk’s office or other designated site, or bring it to their polling place on election day. Some, though not all, localities also offer absentee ballot “drop boxes.” See WEC, “Absentee Ballot Return Options - COVID-19” (Mar. 31, 2020), https://elections.wi.gov/node/6798. In that instance, another person may deliver the ballot on behalf of the voter. Id. Finally, “[i]f a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may return the ballot to the elector . . . whenever time permits the elector to correct the defect and return the ballot.” Wis. Stat. § 6.87(9).6
3. Voting in person A registered voter may also vote absentee in-person, by simultaneously requesting and casting an absentee ballot at the clerk’s office or other designated location beginning two weeks before election day through the Sunday preceding that election, in this election meaning Sunday, November 1. Wis. Stat. §§ 6.85(1)(a)2, 6.855, 6.86(1)(b). Once an absentee ballot is received by a clerk, the ballot is sealed in a carrier envelope until election
6 Wisconsin law also permits a voter to receive up to three replacement ballots if they spoil or erroneously prepare their ballot, provided they return the defective ballot. Wis. Stat. §§ 6.80(2)(c), 6.86(5).
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day, at which point the ballots are canvassed like any other absentee ballot. Wis. Stat. §§ 6.88, 7.51-52.
Of course, on election day, a voter may cast a regular ballot in person at their designated, local polling station. See Wis. Stat. §§ 6.77, 6.79. These polls are staffed by various election officials and poll workers, all of whom are required by Wisconsin law to be “qualified elector[s] of a county in which the municipality where the official serves is located.” Wis. Stat. § 7.30(2)(a). As noted above, Wisconsin also offers same-day registration, so an unregistered voter or a voter who needs to change their registration may arrive, register and cast a ballot at the polls in person, all on election day. Wis. Stat. § 6.55(2).
Historically, Wisconsin voters have relied heavily on this election day registration process. For example, between 2008 and 2016, 10 to 15% of all registrations took place on election day. As Administrator Wolfe testified, Wisconsin has a “cultural tradition” of same-day registration, with approximately 80% of voter records having been impacted in some way by same-day registration. (8/5/20 Hr’g Tr. (dkt. #532) 57-58.)7
B. The COVID-19 Pandemic’s Impacts on Wisconsin’s April and August Elections 1. Growing problem and related litigation Since early 2020, Wisconsin and most of the rest of the world has been impacted
7 Unless otherwise noted, the docket entries are to the 20-cv-249 docket.
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to varying degrees by the novel coronavirus.8 On February 6, the first case of COVID-19 was diagnosed in Wisconsin, and as of September 17, 94,746 confirmed cases have been recorded in the state. Much is still unknown about the virus and the COVID-19 illness that it causes, but experts appear to agree that COVID-19 is mainly spread via person-toperson, respiratory droplets, and it is more likely to spread between people who are in close contact with one another for a sustained period. A person may also become infected by “touching a surface or object that has the virus on it and then touching their own nose, mouth, or possibly their eyes.” (Edwards Pls.’ PFOFs (dkt. #417) ¶ 27 (quoting Goode Decl., Ex. I (CDC, Targeting COVID-19’s Spread) (dkt. #415-9).) Certain individuals, such as those who are elderly, immunocompromised or suffer comorbidities, are at a greater risk for complications from COVID-19.
As the virus first started to spread in Wisconsin in February and March, even greater uncertainty surrounded the extent, seriousness and nature of COVID-19. By March 12, Governor Evers had issued a statewide health emergency; and on March 24, the Secretary of Wisconsin’s Department of Health Services had issued a “Safer at Home” order, which banned all public and private gatherings, closed nonessential businesses, and required that everyone maintain social distancing of at least six feet from any other person.
Obviously, all this occurred within just a few weeks of Wisconsin’s April 7, 2020, primary election. In mid-March, certain WEC Commissioners began expressing concern about the state’s ability to conduct a fair and safe election; local clerks reported that they
8 Technically, SARS-CoV-2 is the name of what has become known as the “coronavirus,” while COVID-19 is the name of the illness caused by that virus.
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were running out of absentee ballot materials and felt overwhelmed by the volume of absentee ballot requests; and various mayors urged that the election be delayed. Between March 18 and March 26, three lawsuits were also filed with this court requesting various relief relating to Wisconsin’s impending primary election.
Shortly after, this court granted the following narrow, preliminary relief: (1) extending the online registration deadline by 12 days to March 30; (2) extending by one day the window to request an absentee ballot; (3) adjusting the witness certification requirement under Wis. Stat. § 6.87(2); and (4) extending the absentee ballot receipt deadline by six days to April 13 at 4 p.m. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249 (W.D. Wis. Mar. 20, 2020); Democratic Nat’l Comm. v. Bostelmann, No. 20-cv249 (W.D. Wis. April 2, 2020). Most of this relief was challenged by emergency appeal to the Seventh Circuit (extension of the registration deadline being the exception). That court declined to stay relief granted as to the extension of absentee-ballot-requests and receipt deadlines by mail, but granted a stay as to the adjustment to the witness signature requirement. Democratic Nat’l Comm. v. Bostelmann, Nos. 20-1538, -1546, -1545, at * 3-4 (7th Cir. April 3, 2020). A further, emergency appeal was accepted by the U.S. Supreme Court, which sought a stay of this court’s injunction only to the extent that it permitted ballots postmarked after election day (April 7) to be counted if actually received by April 13. Brief of Petitioner, Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U. S. ____ (2020) (No. ___ ). The Supreme Court granted the stay, ordering that a voter’s absentee ballot must be either postmarked by election day and received by April 13 or handdelivered by election day. Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. ____
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(2020) (per curiam).
2. Effort to fulfill absentee ballot applications Meanwhile, the WEC and local clerks were undertaking admirable (and in some cases, heroic) efforts to administer absentee voting and prepare the polls for in-person voting on April 7 in the midst of the pandemic. Despite these efforts, unprecedented challenges confronted clerks and poll workers before and on election day. To begin, clerks received a flood of absentee ballot requests, ultimately receiving a total of 1,282,762 absentee ballot applications.9 A post-election report by the WEC explained that some inadequately staffed offices were “nearly overwhelmed” by this number of applications. (Swenson Pls.’ PFOFs (’459, dkt. #42) ¶ 56 (citing Goodman Decl., Ex. 18 (WEC May 20 Meeting Materials) (’459 dkt. #43-18) 6).) At one point, clerks even ran out of absentee certificate envelopes, although this shortage was ultimately rectified. Plaintiffs have produced numerous declarations from voters who testified that they timely -- often two or three weeks before the election -- requested an absentee ballot but never received it or received it after election day; some of these voters chose to vote in person, but others were unwilling or unable to go to the polls due to safety concerns with COVID-19, long lines or other problems. (See Swenson Pls.’ PFOFs (’459, dkt. #42) ¶¶ 51, 164, 176 (citing declarations); DNC Pls.’ PFOFs (dkt. #419) ¶ 73 (citing declarations); Edwards Pls.’ PFOFs (dkt. #417) ¶¶ 67-162, 177-81) (citing declarations); Gear Pls.’ PFOFs (dkt. #422) ¶¶ 37, 43, 81, 157-677 (citing declarations).)
9 In comparison, only 167,832 absentee ballots were sent in the April 2019 election.
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Moreover, between April 3 and April 6 (the day before the election), local officials were still in the process of mailing more than 92,000 absentee ballots to voters, virtually all of which the WEC acknowledges were sent too late to be filled out and mailed back by election day.10 On top of this group, data from the WEC as of April 7 indicates that at least an additional 9,388 ballots were applied for timely but were never even sent out. The WEC advises that due to a reporting lag this number was lower, but does not indicate by how much.
At least some of these problems were rooted in mail delivery issues, which led to some absentee ballots reaching voters or clerks late or not at all. For example, a WEC staff member received a call from a United States Postal Service (“USPS”) official in Chicago on April 8, who reported that “three tubs” of absentee ballots from the Appleton/Oshkosh area had been found undelivered in a post office in Chicago, although the Legislative defendants and the RNC/RPC point out that these tubs were dropped off at USPS at the end of the day on April 7 (see Leg. Defs.’ & RNC/RPW Resp. to DNC Pls.’ PFOFs (dkt. #450) ¶ 84). Similarly, in Fox Point, a bin containing about 175 unopened and undelivered ballots was inexplicably returned to the clerk’s office on the morning of election day.
Voters also reported problems with satisfying the requirements for requesting and
10 Administrator Wolfe testified that it may take 14 days for an absentee ballot to make its way through the mail from a clerk’s office to a voter and back again, and even under ideal conditions with a two-day first class mail delivery time, a mailed ballot would take at least four to six days to turn around. (Swenson Pls.’ Supp. PFOFs (dkt. #494) ¶ 62 (citing Wolfe Dep. (dkt. #247) 51:121).)
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casting their absentee ballots. For example, some voters testified that they had difficulties uploading their photo ID to the online system or otherwise providing the required ID needed to request an absentee ballot.11 (DNC Pls.’ PFOFs (dkt. #419) ¶ 68 (citing declarations).)
3. Efforts to count absentee ballots Further, while the WEC issued guidance regarding the safe execution of the witness signature requirement before voting and returning an absentee ballot itself, plaintiffs’ expert opined that this complicated advice was not easy to follow. (Swenson Pls.’ PFOFs (‘459, dkt. #42) ¶ 81 (citing Remington Expert Report (’459 dkt. #44)).) For example, plaintiff Jill Swenson testified that she spent two weeks trying to find someone to witness her ballot in a safe manner, ultimately to no avail. (See Swenson Decl. (’459 dkt. #47) ¶¶ 11-13.) Relying on this court’s preliminary injunction modifying the witness signature requirement in light of such issues, Swenson eventually mailed her ballot without a witness signature, only to find out later that this court’s order was stayed on appeal. (Id.) Other voters also testified that they did not cast their absentee ballot, or they cast their ballot without the proper certification, due to COVID-19-related safety concerns regarding the witness requirement. (See DNC Pls.’ PFOFs (dkt. #419) ¶¶ 157-60 (citing declarations).)12 In addition, although many ballots arrived with no postmarks, two postmarks or unclear
11 Defendants do not dispute that some voters testified to difficulties with uploading their photo ID to the online system (or could otherwise not provide the required ID needed to request an absentee ballot), but as discussed further in the opinion below, none of the declarations persuasively establish that the ID requirement was or will be difficult to satisfy for most desiring to vote absentee. 12 As was conceded in the hearing, none of the plaintiffs produced any evidence of a voter who was ultimately unable to meet the proof of residence requirement.
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postmarks, on this issue, the guidance issued by the WEC simply left it up to each municipality to determine whether a ballot was timely.
In the end, 120,989 voters who requested absentee ballots did not return them as of election day, although what portion of these voters ended up voting in-person on election day or why they did not is unknown. Even for those absentee ballots that did reach clerks’ offices, more than 14,000 ballots were rejected due to an “insufficient” witness certification and “thousands” were rejected for other reasons. (Swenson Pls.’ PFOFs (’459, dkt. #42) ¶ 90.) However, the WEC maintains that “the final election data conclusively indicate[d] that the election did not produce an unusual number [of] unreturned or rejected [absentee] ballots,” adjusting for the larger number of absentee votes submitted. (WEC Resp. to Swenson Pls.’ PFOFs (dkt. #439) ¶ 74.)
All told, absentee ballots represented 73.8% of all ballots counted. Approximately 61.8% of absentee ballots were mailed in, while the remaining 12% were cast in-person absentee or hand-delivered, meaning only roughly 26.2% were cast on election day. Absentee votes never comprised more 20% of all ballots in recent past elections, and often, they represented less than 10% of ballots cast. The WEC itself stated in a report that the increase in absentee voting “created resource issues for a system primarily designed to support polling place voting.” (Swenson Pls.’ PFOFs (’459, dkt. #42) ¶ 50 (quoting Goodman Decl., Ex. 18 (WEC May 20 Meeting Materials) (’459, dkt. #43-18) 19-21).)
4. Election day voting As for voting on the actual election day itself, April 7, 2020, severe shortages of poll workers caused significant problems in some jurisdictions. In particular, because of the age
15

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and health concerns of poll workers who declined to volunteer, Milwaukee was only able to open five of its usual 180 polling sites, and Green Bay reduced its usual 31 polling sites to just two. In part due to this consolidation, some individuals had to wait in long lines, sometimes for hours before being allowed to vote. While Governor Evers authorized the Wisconsin National Guard to serve as poll workers, he only did so on April 2, less than one week before the election. In addition, while the WEC was able to send sanitation and personal protective equipment (“PPE”) to all polling sites, some supplies were limited or inadequate. Some poll workers even reported that they had to rely on vodka as a sanitizer. Moreover, the WEC did not issue any particular mandate requiring specific public health measures to be taken by clerks or poll workers. Finally, voters and poll workers reported various perceived safety problems, including: (1) cramped polling locations that made it difficult to maintain social distancing; (2) no enforcement of social distancing by poll workers; (3) a lack of or improper mask-wearing by voters and poll workers; (4) poll workers’ reuse of paper towels to clean voter booths between voters; (5) a lack of sanitized pens; and (6) poll set-ups requiring poll workers to sit approximately two feet from each other.
Plaintiffs also cite to various declarations to highlight the difficulties faced by some citizens who sought to vote in-person in the April election. (See DNC Pls.’ PFOFs (dkt. #419) ¶¶ 62-66 (citing declarations).) For example, although Jeannie Berry-Matos requested and received an absentee ballot, it was for the wrong ward; unable to correct the error in time, she then was forced to vote in person on April 7 at Washington High School in Milwaukee. (DNC Pls.’ PFOFs (dkt. #419) ¶ 62 (citing Berry-Matos Decl. (dkt.
16

Case: 3:20-cv-00249-wmc Document #: 538 Filed: 09/21/20 Page 17 of 69
#263)).) When Berry-Matos arrived, she found a line stretching several blocks, no available close parking, no poll workers enforcing social distancing, and no way to sanitize her pen or her photo ID. (Id.) All in all, it took her an hour and thirty-five minutes to vote in person. (Id.) Other voters who requested but did not receive absentee ballots similarly showed up at the polls to vote, but concerned about safety and confronted with long lines, they ultimately did not cast their vote. (DNC Pls.’ PFOFs (dkt. #419) ¶¶ 6366 (citing Wortham Decl. (dkt. #367); Moore Decl. (dkt. #330); Washington Decl. (dkt. #363)); see also Gear Pls.’ PFOFs (dkt. #422) ¶¶ 236-38, 468-70, 599-602, 627 (citing declarations).)
Overall, 1,555,263 votes were cast in the April election. This court’s injunction extending the absentee ballot physical receipt deadline from April 7 to April 13 appears to have resulted in approximately 80,000 ballots being counted that would have otherwise been rejected as untimely. (DNC Pls.’ PFOFs (dkt. #419) ¶ 10.) In addition, the court’s injunction extending the registration deadline arguably resulted in an estimated 57,187 voters successfully registering in advance. (Id. ¶ 197.) Of course, absent the court’s injunction some portion of those voters may have opted to register to vote in person on election day just before voting, rather than sending their absentee ballot by mail.
Plaintiffs point to expert reports concluding that COVID-19 and its effects reduced voter turnout in the election. (See Swenson Pls.’ PFOFs (’459 dkt. #41) ¶ 131 (citing Fowler Expert Report (’459 dkt. #46)); DNC Pls.’ PFOFs (dkt. #419) ¶ 111 (citing Burden Decl. (dkt. #418)).) Still, 34.3% of eligible voters cast a ballot in the April election; in comparison, the turnout for previous spring primary elections was 27.2% (2019), 22.3%
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(2018), 15.9% (2017), 47.4% (2016), 26.1% (2012), and 34.9% (2008).
5. COVID-19 impacts on in-person voting As for the relationship between Wisconsin’s April election and COVID-19 transmission in the state, the parties point to arguably conflicting reports on this subject. Plaintiffs note that a Wisconsin Department of Health Services analysis traced 71 cases of COVID-19 to in-person voting in April. (Edwards Pls.’ PFOFs (dkt. #417) ¶ 4; DNC Pls.’ PFOFs (dkt. #419) ¶ 6.) Similarly, expert witness Meagan Murry, M.D., an epidemiologist at Harvard School of Public Health, reported “71 confirmed cases of Covid-19 among people who may have been infected during the election.” (Swenson Pls.’ Supp. PFOFs (dkt. #494) ¶ 5 (quoting Murry Decl. (dkt. #370) ¶ 60).) They also reference a working paper, which concludes that in-person voting led to approximately 700 additional COVID19 cases in Wisconsin. (Edwards Pls.’ PFOFs (dkt. #417) ¶ 4.) The Legislative defendants and the RNC/RPW, for their part, point to two reports concluding that the April election was not associated with an increase in COVID-19 infection rates. (Leg. Defs.’ & RNC/RPC’s Resp. to Swenson Pls.’ PFOFs (dkt. #451) ¶¶ 7, 36 (citing Tseytlin Decl., Exs. 18, 19 (dkt. ##458-18, -19).)13 The Legislative
13 In particular, defendants cite to a report authored in part by two individuals affiliated with the World Health Organization Collaborating Centre for Infectious Disease Epidemiology and Control, which purported to analyze confirmed COVID-19 cases in the weeks surrounding the April 7 election, and found that the election was not associated with an increase in COVID-19 infection rates. (Tseytlin Decl., Ex. 18 (dkt. #458-18).) They also cite to a second report authored by individuals affiliated with the Larkin Community Hospitals in Miami, the Department of Math and Statistics at the University of South Alabama, and the Froedtert & The Medical College of Wisconsin in Milwaukee. (Tseytlin Decl., Ex. 19 (dkt. #458-19).) This report concluded that: “There was no increase in COVID-19 new case daily rates observed for Wisconsin or its 3 largest counties following the election on April 7, 2020, as compared to the US, during the post-incubation interval period.” (Id.)
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defendants and the RNC/RPW also point out that the Wisconsin DHS explained that it is “not clear how many of the infections may have been caused by the spring election because many of the people had other exposures.” (Leg. Defs.’ & RNC/RPW’s Resp. to Edwards Pls.’ PFOFs (dkt. #485) ¶ 3.)
After the court’s evidentiary hearing in this case, Wisconsin also held another primary election on August 11. Evidence presented by the parties prior to the election suggested that certain localities again had to consolidate polling locations due to poll worker shortages. For example, Sun Prairie expected to consolidate eight polling places down to one. The WEC told municipalities “not to plan on” assistance from the National Guard (Swenson Supp. Pls.’ PFOFs (dkt. #494) ¶ 94), but the parties represented that Governor Evers ultimately did deploy the Guard to assist with the election on August 5, less than one week before the election. In the end, both the April and August elections suggest that in-person voting can be conducted safely if the majority of votes are cast in advance, sufficient poll workers, polling places, and PPE are available, and social distancing and masking protocols are followed. Of course, the aged, those with comorbidities or those lacking confidence in the ability of local officials and the public to get all those factors right are understandably less confident in that assessment.
C. Plans for the November Election in Light of the Ongoing COVID-19 Pandemic While the exact trajectory of COVID-19 in Wisconsin is unknown, the unrebutted
public health evidence in the record demonstrates that COVID-19 will continue to persist, and may worsen, through November. Recent outbreaks, particularly among Wisconsin
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college students, and the onset of flu season continue to complicate assessments. For example, concern remains that the significant new infections reported on reopened college campuses may spread into the community. David Wahlberg, UW-Madison threatens ‘more drastic action’ as experts say COVID-19 outbreak impacting broader community, Wis. State Journal (Sept. 16, 2020), https://madison.com/wsj/news/local/education/university/uwmadison-threatens-more-drastic-action-as-experts-say-covid-19-outbreak-impactingbroader-community/article_dd00c9cc-5dc9-5924-99ca-40c94a0f6738.html. Indeed, with flu season yet to arrive, Wisconsin has already broken numerous new case records this month, with over 2,000 new cases reported on September 17, 2020, up from a daily average of 1,004 just one week prior. See WPR Staff, Wisconsin Sets New Daily Record with 2,034 Coronavirus Cases Reported Thursday, Wis. Public Radio (Sept. 17, 2020), https://www.wpr.org/wisconsin-sets-new-daily-record-2-034-coronavirus-cases-reportedthursday. Regardless, given the significantly higher voter turnout expected for the November election in comparison with April, there is little doubt that the WEC, clerks and voters will again face unique challenges in the upcoming election. As a result, the WEC is already urging as many people as possible to vote absentee in the hopes of avoiding large lines, shortages and attendant health risks on election day.
Moreover, the evidence suggests that Wisconsin voters will again rely heavily on the absentee voting system for the November election, with the WEC expecting some 1.8 to 2 million voters to request an absentee ballot, again smashing all records and turning historic voter patterns on their head. Unfortunately, Madison City Clerk Maribeth Witzel-Behl testified that at least her office “has not been given the resources and money necessary to
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meet the anticipated demand for mail-in absentee ballots in November,” and “with other departments going back to work, [her] staff now only has a few dozen League of Women Voters volunteers available to help.” (Gear Pls.’ Supp. PFOFs (dkt. #506) ¶ 20 (quoting Witzel-Behl Decl. (dkt. #382) ¶ 6).)
As previously discussed, the absentee ballot system in Wisconsin is also heavily reliant on the USPS, which has and continues to face its own challenges. WEC Administrator Wolfe in particular acknowledged “significant concerns about the performance of the postal service in connection with the April 7 election.” (DNC Pls.’ PFOFs (dkt. #419) ¶¶ 140, 142 (quoting Wolfe Dep. (dkt. #247) 89:10-15).) In addition, a report by the USPS Inspector General’s Office found that voters requesting ballots five days before the election -- the deadline set by Wisconsin statutes -- face a “high risk” that their ballot will not be delivered, completed and returned in time to be counted. (Swenson Pls.’ Supp. PFOFs (dkt. #494) ¶ 61 (quoting Second Goodman Decl., Ex. 17 (Timeliness of Ballot Mail) (dkt. #495-17) 6-7).) USPS also faces budget shortfalls, as well as challenges caused by increasing COVID-19 rates among postal workers themselves. Moreover, just a few weeks ago, the new Postmaster General established “major operational changes . . . that could slow down mail delivery,” including restricting the ability for USPS employees to work overtime. (DNC Pls.’ Supp. PFOFs (dkt. #501) ¶¶ 7-8.)
As to fulfilling the witness signature requirement, over 600,000 Wisconsinites live alone and even more live with an individual who is unqualified to be a witness. Prospective absentee voters in that situation will need to find someone outside of their household to witness their ballot before returning it. According to plaintiffs’ expert, a “significant”
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portion of voters who do not live with a qualified witness are senior citizens, who also face special risks of complications from COVID-19. (DNC Pls.’ PFOFs (dkt. #419) ¶ 153 (citing Fowler Rep. (’459 dkt. #46) 12-13).) Relatedly, another expert produced by plaintiffs opined that the WEC’s guidance on the witness signature requirement “may be difficult to understand by the homebound individual and witness” and “may be impractical in certain situations, such as for persons living in multi-level or multi-unit apartment complexes.” (Swenson Pls.’ PFOFs (’459 dkt. #42) ¶ 81 (citing Remington Rep. (’459 dkt. #44)).) That being said, notwithstanding a few, individual affiants who had experienced difficulties securing a witness signature requirement or submitting proof of ID for the April election, the Legislature points out that plaintiffs produced no evidence of voters who are still unable to meet the challenged requirements for November.14
In-person voting in November is also likely to be strained by a shortage of poll workers, despite more time to plan for that shortage than was available for the spring election. On the one hand, Milwaukee officials testified that they hope to be able to open all 180 polling sites (up from five in April), and Green Bay expects to have at least 13 polling locations (up from two in April). On the other hand, clerks are still reporting poll worker shortages for November. Similarly, WEC Administrator Wolfe testified that
14 The DNC plaintiffs also contend that: “many workplaces, public libraries, and copy shops may remain or become closed given the pandemic’s acceleration in the U.S., many voters will continue to face substantial burdens in obtaining the copies or scans they need to complete their absentee ballot applications and will continue to be prevented from voting. In addition, even if those establishments were open, many voters are fearful of leaving their homes because of the health risks of the coronavirus pandemic and the restrictions imposed under their respective County’s health orders.” (DNC Pls.’ PFOFs (dkt. #419) ¶ 164.) Again, however, the only evidence they cite in support is voter declarations expressing fear of in-person voting due to COVID-19, rather than a personal inability to arrange an effective witnessing of their ballot.
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“despite the advance warning [and] the greater time to plan for people who will opt-out because of COVID-19 risks, local municipalities are still having problems filling all their polling stations.” (8/5/20 Hr’g Tr. (dkt. #532) 82.) Because of this, Wolfe explained a lack of poll workers was the thing she “worr[ies] about the most” for the upcoming November election. (Id. at 83.)
More fundamentally, plaintiffs have produced a credible expert report that concludes in-person voting in November will continue to pose “a significant risk to human health” due to the COVID-19 pandemic. (Swenson Pls.’ PFOFs (’459 dkt. #42) ¶ 7 (citing Remington Expert Report (’459 dkt. #44)).) While not disputing this risk, the WEC counters with the general observation that the risk of transmission is “greatly reduced” if people are wearing masks and practicing social distancing. (WEC Resp. to Swenson Pls.’ PFOFs (dkt. #439) ¶ 7.) The Legislative defendants and the RNC/RPC further dispute any suggestion that in-person voting in November will be unsafe, again pointing to the two studies concluding that the April election was not associated with an increase in COVID19 infection rates. (See (Leg. & RNC/RPW’s Resp. to Swenson Pls.’ PFOFs (dkt. #451) ¶¶ 7, 36 (citing Tseytlin Decl., Ex. 18, 19 (dkt. ##458-18, -19)).) At minimum, the evidence continues to suggest that a large election day turnout will stretch safety protocols and increase risk of transmission particularly to poll workers, which is why the WEC has continued to promote voting by mail.
Regardless of the objective risks, plaintiffs have also produced declarations from various voters who aver that if unable to vote by mail, they will not vote in-person in November. (See Gear Pls.’ PFOFs (dkt. #422) ¶¶ 186, 215, 279, 323, 355, 387, 407 (citing
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various voter declarations).) Others declare that they intend to vote by mail in November, but would like a “back-up” option, because of their previous personal experiences in not receiving an absentee ballot for the April election despite requesting it timely. (See id. ¶¶ 445, 474, 501, 576, 633, 669 (citing various voter declarations).)
In preparation for these anticipated challenges in administering the November election, the WEC has taken a number of steps. Of particular note, the WEC mailed absentee ballot applications to nearly all registered voters. The application itself contains an information sheet, which among other things generally describes the “indefinitely confined” exception to the photo ID requirement, but does not indicate what constitutes “indefinitely confined” under Wisconsin law. Instead, the instructions warn a prospective voter may be fined $1,000 or imprisoned up to 6 months for falsely asserting that they are indefinitely confined. This mailer went out on September 1st.
In addition to encouraging Wisconsinites to vote absentee, the WEC has also: (1) directed staff to spend federal CARES Act grant money to distribute sanitation supplies to all 72 counties in Wisconsin; (2) planned to implement intelligent mail barcodes (“IMB”) to facilitate more detailed absentee-ballot tracking; (3) planned to spend up to $4.1 million on a CARES Act sub-grant to local election officials to help pay for increased elections costs caused by the pandemic; (4) made upgrades to the MyVote website; (5) issued guidance to local officials about providing drop boxes for the safe and easy return of absentee ballots; (6) made CARES Act subgrant money available for the purchase of additional, absentee ballot drop boxes; (7) urged localities to solicit election inspectors, create recruitment tools for local officials, and promote the need for poll workers; (8) produced content to educate
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voters on “unfamiliar aspects of voting” for use by local election officials, voter groups, and
the public; (9) worked with public health officials to produce public health guidance
documents for clerks, poll workers, and the public; and (10) developed a webinar series for
local officials to provide training on election procedures, including COVID-19-specific
training. Just as in April, what the WEC has not done is ease any of the statutory deadlines,
having again concluded on a 3-3 vote that it lacks the authority to do so even in the face
of the anticipated effects of the COVID-19 pandemic.
OPINION
I. Motions to Dismiss As an initial matter, the court will address certain issues raised in defendants’
pending motions to dismiss, considering first various jurisdictional challenges and then
arguments that some of plaintiffs’ claims must be dismissed for failure to state a claim on
which relief may be granted. 15
15 Specifically, the WEC moved to dismiss the Swenson plaintiffs’ complaint (see WEC’s Mot. to Dismiss (’340, dkt. #14)), and the Legislative defendants moved to dismiss the Gear, Edwards and Swenson plaintiffs’ operative complaints (see Leg. Defs.’ Mot. to Dismiss Gear Compl. (’278 dkt. #382); Leg. Defs.’ Mot to Dismiss Edwards Compl. (’340 dkt. #12); Leg. Defs.’ Mot to Dismiss Swenson Compl. (’459 dkt. ##27, 272)). Although the WEC also initially moved to dismiss the Gear plaintiffs’ original complaint, after the Gear plaintiffs’ filed a proposed, first amended complaint, plaintiffs filed a joint stipulation with the WEC, which withdrew the WEC’s pending motion to dismiss the first amended complaint, while reserving its right to answer, move or otherwise plead in response to the second amended complaint. (Joint Stipulation (dkt. #230).) Finally, although the Legislative defendants did not formally move to dismiss the DNC plaintiffs’ second amended complaint (the court having previously denied their motion to dismiss the DNC plaintiffs’ first amended complaint (6/10/20 Op. & Order (dkt. #217)), they argued in their briefing that “especially after Luft, the DNC Second Amended Complaint must be dismissed for many of the same reasons supporting dismissal of the operative complaints in Gear and Swenson.” (Leg. Defs.’ Omnibus Br. (dkt. #454) 5 n.3.)
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A. Jurisdictional Challenges In evaluating challenges to its subject matter jurisdiction, this court “must accept as
true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff.” Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993) (quoting Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)). Still, the court may “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co., 999 F.2d at 191.
The WEC argues that no actual controversy exists between that entity and plaintiffs’ since the WEC neither opposes nor supports plaintiffs’ requests for injunctive relief (WEC Br. (‘340, dkt. #15) 4-5), and for a case to be justiciable, there must be an actual dispute between adverse litigants. (See id. (citing Oneida Tribe of Indians v. Wisconsin, 951 F.2d 757, 760 (7th Cir. 1991).) However, as the U.S. Supreme Court held in United States v. Windsor, 570 U.S. 744 (2013), “even where ‘the Government largely agree[s] with the opposing party on the merits of the controversy,’ there is sufficient adverseness and an ‘adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.’” Id. at 759 (quoting INS v. Chadha, 462 U.S. 919, 940 n.12 (1983)). Similarly, in this litigation, the WEC has indicated its intention to enforce Wisconsin’s current elections laws unless otherwise directed by a state or federal court. Thus, regardless of its failure to dispute plaintiffs’ requested relief affirmatively, sufficient adverseness exists between the parties to create a justiciable dispute. Of course, by virtue of the intervention by multiple other defendants who are actively disputing plaintiffs’ right
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to any of the relief requested, there is little question that there is an actual dispute between the parties needing resolution by this court.
Next, both the WEC and the Legislative defendants attack plaintiffs’ claims on standing grounds. To establish standing, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Again, the WEC maintains that it has “no power to enact any changes to the election laws in regard to the Spring Election, and it has no authority to change the law relative to the conduct of future elections.” (WEC Br. (‘340, dkt. #15) 6.) After Windsor, however, this is just the same “case or controversy” argument in different clothing, since the WEC’s administration of Wisconsin’s elections, including the enforcement of its current election laws, is the cause of plaintiffs’ alleged injuries. Moreover, the WEC has the authority to implement a federal court order relating to election law to redress these alleged injuries. That the WEC maintains it lacks any independent authority under state law to make the changes requested by plaintiffs poses no jurisdictional barrier. If anything, it demonstrates the WEC is an indispensable party for plaintiffs to achieve the remedies they seek.
Relatedly, the Legislative defendants argue that many of plaintiffs’ claims challenge independent actions of third-parties who were not named as defendants -- specifically, the USPS and local election officials -- and thus plaintiffs’ lack standing to bring those claims. (Leg. Defs.’ Omnibus Br. (dkt. #454) 100.) Certainly, actions of both the USPS and local
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election officials appear to have contributed and may contribute to plaintiffs’ alleged injuries, and those third-parties may also have some power to redress those injuries, but this does not mean the WEC’s actions or inactions were not also causes of plaintiffs’ injuries. What matters for standing is that: (1) defendant’s conduct was one of the multiple causes; and (2) defendant can at least partially redress the wrong. See WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1157 (9th Cir. 2015) (“So long as a defendant is at least partially causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of multiple causes of the plaintiff's injury.”); Orangeburg v. Fed. Energy Reg. Comm’n, 862 F.3d 1071, 1077-84 (D.C. Cir. 2017) (“FERC contends that the causation element is not satisfied because Orangeburg’s injury is actually caused by NCUC, an absent third party, not the Commission. To be sure, NCUC -- a non-party -- is a key player in the causal story. But the existence of, perhaps, an equally important player in the story does not erase FERC’s role.”).
Similarly, here, the actions of the USPS and local election officials may be equally important players in the conduct of the November election but that does not erase the WEC’s overall statutory responsibility for the administration of Wisconsin’s elections. Wis. Stat. § 5.05(1). Regardless, it is the WEC’s role and specific authority to promulgate rules and guidance to localities in order to implement Wisconsin law (including any court order) related to elections and their proper administration under § 5.05(1)(f) that is in dispute. Moreover, should this court enter a binding order, the WEC will be required to issue updated rules, procedures, or formal advisory opinions under § 5.05(5t) to ensure its implementation. This is more than enough to establish standing.
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The Legislative defendants further lodge a narrower standing challenge against just one of the Swenson plaintiffs’ ADA claims. (See Leg. Defs.’ Omnibus Br. (dkt. #454) 10508.) Specifically, they contend the Swenson plaintiffs lack standing to pursue a claim that the WEC’s failure to provide accessible online ballots impermissibly discriminates against voters with vision or other print disabilities because none of the Swenson plaintiffs have such a disability. (See id.) As the Swenson plaintiffs point out, however, they have produced evidence that Disability Rights Wisconsin (one of the named plaintiffs in the Swenson complaint) has itself been injured by the alleged violation of the ADA, as it has had to divert its own resources to assist voters with those disabilities to both get access to and cast absentee ballots. (See Swenson Pls.’ Reply (dkt. #493) 21.) Because Disabilities Rights Wisconsin has alleged a concrete and particularized injury to its own interests, and advocate for the interests of others with relevant disabilities, the Swenson plaintiffs have established standing to pursue their claim regarding accessible online ballots. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-80 (1982) (holding that organization that had to divert resources to mitigate effects of allegedly discriminatory practices had standing bring suit).
Finally, the Legislative defendants contend that plaintiffs’ claims are unripe and should be dismissed under the Burford abstention doctrine. Little time need be spent on these contentions because the court previously addressed nearly identical arguments in an earlier opinion and order. (See 6/10/20 Op. & Order (dkt. #217).) The court finds no reason to depart from its earlier conclusion that plaintiffs’ claims are ripe and fit for judicial review, presenting an “actual and concrete conflict premised on the near-certain
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enforcement of the challenged provisions in the context of the present and ongoing COVID-19 health care crisis” and because plaintiffs are “likely to suffer adverse consequences if the court were to require a later challenge.” (Id. at 7-8.) Further, as previously explained, the Burford abstention doctrine is not applicable to any of the cases or controversies before this court because Wisconsin state courts “are not specialized tribunals with a special relationship with voting rights issues” and because Burford abstention is often “inappropriate in federal constitutional challenges to state elections laws.” (Id. at 17-18.)
B. Failure to State a Claim Dismissal under Rule 12(b)(6) is proper “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). To survive a motion to dismiss, a complaint must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Certain of plaintiffs’ claims are plainly barred by immunity doctrines, and thus, fail to state a claim. First, to the extent that any plaintiffs seek money damages pursuant to § 1983, such relief is barred by state sovereign immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 66 (1989). Second, the Edwards plaintiffs’ claims against Wisconsin State Assembly Speaker Robin Vos and Wisconsin State Senate Majority Leader Scott Fitzgerald are foreclosed by the doctrine of legislative immunity, which provides absolute immunity from liability for an official’s legitimate legislative activity. See Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Tenney v. Brandhove, 341 U.S. 367, 376
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(1951). The Edwards plaintiffs’ complaint faults Speaker Vos and Majority Leader Fitzgerald for failing to take action to postpone the April election or otherwise enact measures regarding Wisconsin’s elections in the face of the pandemic, but any decision not to act qualifies as legislative activity protected by absolute immunity. See NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 192 (2nd Cir. 2019) (decision not to introduce resolutions before city council was protected legislative activity).
The Edwards plaintiffs’ only response to defendants’ invocation of legislative immunity is to assert without legal authority that it applies only to state law claims. (See Edwards Pls.’ Br. (‘340, dkt. #25) 16.) To the contrary, the immunity doctrine is a creature of federal common law and applies to federal civil claims. See Bogan, 523 U.S. at 48 (explaining that the U.S. Constitution and federal common law “protect[s] legislators from liability for their legislative activities”); NRP Holdings LLC, 916 F.3d at 190 (describing the doctrine of absolute legislative immunity as a matter of common law created by the U.S. Supreme Court and applicable to federal civil claims).
Oddly, having asserted immunity on their behalf, the Legislative defendants nevertheless urge the court to permit Speaker Vos and Majority Leader Fitzgerald to remain as parties to defend state law. (Leg. Defs.’ Br. (‘340, dkt. #13) 30-31.) In doing so, they, too, cite to no legal basis for a defendant to be found immune from suit yet remain as a party. (See id.) Even if there were some legal basis to allow the defendants to remain, this court has previously held that an individual “legislator’s personal support [of a law he or she enacted] does not give him or her an interest sufficient to support intervention.” See One Wis. Inst., Inc. v. Nichol, 310 F.R.D. 394, 397 (W.D. Wis. 2015) (citing Buquer v. City
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of Indianapolis, No. 11–cv–00708, 2013 WL 1332137, at *3 (S.D. Ind. Mar. 28, 2013),
Am. Ass’n of People With Disabilities v. Herrera, 257 F.R.D. 236, 251 (D.N.M. 2008)).
Indeed, to their credit, defendants themselves readily admit that the Edwards plaintiffs
have “name[d] the Wisconsin Assembly and the Wisconsin Senate as parties, meaning
there is no practical need to retain Speaker Vos and Majority Leader Fitzgerald as
additional named Defendants here.” (Leg. Defs.’ Br. (‘340, dkt. #13) 31.) Having been
presented no legal or practical reason to grant immunity but retain Speaker Vos and
Majority Leader Fitzgerald as defendants, the court will dismiss them from this case.16
II. Motions for Preliminary Injunction17
To make out a prima facie case for a preliminary injunction, a party must show (1)
16 Defendants also move to dismiss the Edwards plaintiffs’ claim for monetary damages under the ADA. A required element of a compensatory damages claim for intentional discrimination under Title II of the ADA is deliberate indifference. See Lacy v. Cook Cty., Ill., 897 F.3d 847, 862-63 (7th Cir. 2018). This requires both “knowledge that a harm to a federally protected right is substantially likely” and “a failure to act upon that likelihood.” Id. at 863 (quoting S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)). The WEC and Legislative defendants both argue that the Edwards plaintiffs do not assert a cognizable claim for ADA damages because they failed to allege deliberate indifference explicitly. (WEC Defs.’ Mot. to Dismiss Br. (’340, dkt. #15) 8; Leg. Defs.’ Mot. to Dismiss Br. (’340, dkt. #14) 24.) Reading the Edwards plaintiffs’ complaint in the light most favorable to them, as this court must at the pleading stage, it is reasonable to infer this claim based on their allegations that defendants have (1) knowledge of the past and planned enforcement of Wisconsin’s election laws, as well as the dangers posed by the COVID-19 pandemic, and (2) have and are continuing to fail to act on that likelihood. Thus, plaintiffs have alleged sufficient facts to support their implicit claim for deliberate indifference and survive the defendants’ motions to dismiss. Of course, whether or not there was or is likely to be a violation of the ADA, much less a deliberate one, remains to be proven. Finally, as to defendants’ remaining grounds for dismissal based on plaintiffs’ failure to plead sufficient allegations to support their claims as a matter of law, the court will address these arguments in its substantive consideration of each of plaintiffs’ claims in the discussion that follows.
17 In addition to the parties’ briefs, the court received two amicus briefs from Common Cause (dkt. #251) and the American Diabetes Association (’340 dkt. #23). The policy of the Seventh Circuit is to “grant permission to file an amicus brief only when: (1) a party is not adequately represented (usually, is not represented at all); or (2) when the would-be amicus has a direct interest in another
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irreparable harm, (2) inadequate traditional legal remedies, and (3) some likelihood of success on the merits. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If all three threshold requirements are met, the court must then engage in a balancing analysis, weighing “the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017). The court must also “ask whether the preliminary injunction is in the public interest.” Id. “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984).
A. Anderson-Burdick Analysis In Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428
(1992), the Supreme Court set forth a balancing test to determine whether an election law unconstitutionally burdens a citizen’s right to vote. Under the Anderson-Burdick test, a court must weigh “the character and magnitude of the asserted injury to the rights” against “the precise interests put forward by the State as justifications for the burden imposed by its rule.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).18
case, and the case in which he seeks permission to file an amicus curiae brief, may by operation of stare decisis or res judicata materially affect that interest; or (3) when the amicus has a unique perspective, or information, that can assist the court of appeals beyond what the parties are able to do.” Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000). Following that same policy, the court concludes that these parties fall into the latter category, will grant their respective motions, and has considered their proposed briefs. 18 As a group, plaintiffs also invoke four additional, legal claims: (1) Title II of the Americans with
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The Seventh Circuit recently applied and elaborated on this merits test in its long-
awaited decision in Luft v. Evers, 963 F.3d 655, considering a series of challenges to
Wisconsin’s election laws, including some of the provisions at issue in this litigation.
Fundamentally, the Luft court cautioned that the burden of a specifically challenged
election provision must be considered against “the state’s election code as a whole” -- that
is, by “looking at the whole electoral system,” rather than “evaluat[ing] each clause in
isolation.” Id. at 671. Luft further “stressed” that “Wisconsin’s system as a whole is
accommodating.” Id. at 674. At the same time, the court reaffirmed its earlier holding
that “the right to vote is personal” and, therefore, “the state must accommodate voters”
who cannot meet the state’s voting requirements “with reasonable effort.” Id. at 669.
Having already addressed at length the scope of the state’s constitutional obligation
to accommodate voting rights during the COVID-19 pandemic in its April 2, 2020,
decision (4/2/20 Op. & Order (dkt. #170) 26-28), which was largely left unchallenged on
appeal to the Seventh Circuit, Democratic Nat’l Comm. v. Bostelmann, Nos. 20-1538, -1546,
-1545, (7th Cir. April 3, 2020), and U.S. Supreme Court, Republican Nat’l Comm. v.
Democratic Nat’l Comm., 589 U.S. ____ (2020) (per curiam), the court simply adopts it
Disabilities Act, 42 U.S.C. § 12132; (2) the Mathews v. Eldridge, 424 U.S. 319 (1976), procedural due process balancing test; (3) the Equal Protection Clause’s guarantee against arbitrary election administration; and (4) section 11(b) of the Voting Rights Act (“VRA”). The latter three legal claims either prove a poor fit for the relief plaintiffs are seeking, or plaintiffs fail to describe how these standards would advance their claims beyond the Anderson-Burdick test. Thus, for reasons addressed at the close of this opinion, the court concludes that plaintiffs have failed to demonstrate any likelihood of success on the merits as to those claims for relief beyond that available under the Anderson-Burdick test. Finally, three of the cases before the court also pursue claims for injunctive relief under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. At the hearing, plaintiffs specifically relied on the ADA to advance two of the requests for relief, to enjoin or modify the witness signature requirement and to provide an accessible, online absentee ballot. The court addresses those challenges where relevant below.
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again by reference. Instead, in considering plaintiffs’ requests for injunctive relief with respect to the November election, the court will stress the three, core concerns that drives its analysis here.
First, the court is mindful, as it must be, that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion,” and “[a]s an election draws closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). In weighing the individual requests for relief, the court must consider the risk that any of its actions may create confusion on the part of voters, either directly or indirectly, by creating additional burdens on the WEC and local election officials. To ameliorate that risk, the court has generally attempted to issue a decision far enough in advance to allow an appeal of the court’s decision, provide sufficient time for the WEC and local election officials to implement any modifications to existing election laws, and to communicate those changes to voters. Issuing the decision now, six weeks out, rather than two weeks as in the April election, does not come without its tradeoffs: the court must make certain, reasonable projections about what the pandemic and other events relevant to voting will be like by late October and early November. Of course, the court would prefer to be making these decisions with a more complete understanding of the record of voter behavior during that time, but that luxury does not exist. On the other hand, the court has a much better understanding of the likely impacts of the pandemic on voting behavior, as well as the State of Wisconsin’s capacity to address them, than it did in March.
Second, the court will focus solely on how the COVID-19 pandemic presents unique challenges to Wisconsin’s election system and burdens Wisconsin voters. The court is not
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interested in plaintiffs’ general challenges to Wisconsin elections, because those challenges have now been largely addressed in Luft or, to the extent left open, remain subject to further proceedings before Judge Peterson. On the other hand, the court rejects the Legislature’s attempts to paint plaintiffs’ claims as purely facial challenges, arguing that specific individuals who face insurmountable burdens due to the COVID-19 pandemic could bring as-applied challenges for relief at a later date. Still, recognizing that the line between a facial and an as-applied challenge can be hazy, see Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 475 (7th Cir. 2012), plaintiffs’ claims here are only viable to the extent they constitute as-applied challenges and, in particular, are compelling after fairly extrapolating from relevant voters’ and local election officials’ experiences during the pandemic in April to prove near certain burdens in November, particularly with respect to the availability of mail-in absentee, early absentee and in-person voting options.
To the extent that some of the relief requested -- for example, the extension of certain deadlines -- is substantial likely to provide needed relief to Wisconsin voters and poll workers burdened by the pandemic’s impact, and even likely to “severely restrict” an individual’s right to vote, the state may still articulate “compelling interests” for the challenged election laws and prove those laws have been “narrowly tailored.” Luft, 963 F.3d at 672. As to other requested relief, plaintiffs seek “safety nets” to ensure that the state is protecting the “personal” nature of the right to vote. Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”); Luft, 963 F.3d at 677-78 (reaffirming Frank II holding that “voting rights are personal,” requiring “that each eligible person must have a path to cast a vote”). Regardless of how it is characterized, the relief requested by plaintiffs
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must be consistent with the Seventh Circuit’s decisions in Luft and Frank II. The rub, as described in detail below, is whether plaintiffs have submitted sufficient evidence from which this court must conclude that certain individuals are unlikely to be able to exercise their right to vote despite reasonable effort.
Third, while the court will take up each of plaintiffs’ requested items of relief, after Luft, the court must consider each request in light of the election system as a whole. Here, the court principally considers the interplay between the WEC’s, local officials’ and voters’ expressed preference for absentee voting by mail in this election compared to the historic, overwhelming preference for in-person voting. Obviously, ensuring that mail-in, absentee voting is a tenable option for the majority of the electorate who are expected to vote this way in November, whether based on the WEC’s strongly-stated preference or on personal risk assessments, will decrease the number of individuals who will need to vote in-person. In turn, this will help ensure that there are adequate and safe, in-person voting sites for individuals unable or uninterested in voting by mail, whether because of a personal preference to exercise their right to vote in person or because of difficulties in providing the necessary photo ID, obtaining a required witness signature, or negotiating the U.S. mail system., Even so,, to the extent the State has had more time to address those issues before this election and chosen not to address them by virtue of a lack of political will or simple inertia, the court will only grant relief where this failure to act in the face of the pandemic is substantially likely to severely restrict the right to vote.
With those considerations in mind, the court addresses plaintiffs’ requests for preliminary injunctive relief in the following, four categories: registration, absentee voting,
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in-person voting, and miscellaneous relief.
1. Registration a. Extending Registration Deadlines
The DNC plaintiffs seek an order enjoining Wisconsin Statute § 6.28(1), which requires a mail-in registration to be received by the clerk or postmarked no later than the third Wednesday preceding the election (here, October 14), and requires electronic registrations to be received by 11:59 p.m. on the third Wednesday preceding the election. DNC argues that the court should extend both deadlines to the Friday before the election, October 30, to align with the deadline for registering in person before election day. As the DNC points out, the court granted similar, preliminary relief to that requested by plaintiffs here before the April election, extending the mail-in postmark date and electronic registration receipt deadline by 12 days to the Friday before the election. (3/20/20 Op. & Order (dkt. #37) 10-15.)
However, the six weeks leading up to this election are different than the week or two before the April 7 election, when the pandemic was a new phenomenon and demanded swift adjustments to the timetable to accommodate voting from the safety of one’s home, rather than venturing out into the public. As defendants persuasively argue, individuals are now sufficiently on notice of the pandemic’s risks, its impacts on their daily lives, and measures that can be taken to reduce those risks. So, to the extent individuals wish to register electronically or by mail to facilitate later voting by mail, defendants argue that voters must plan accordingly and complete their electronic and mail-in registrations by the established deadline of October 14.
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Of course, what the Legislature originally afforded as a convenience to in-person registration and voting has, at least for this election, become a necessity for some, as well as an important tool for WEC and local officials to reduce the number of people voting in person on the day of the election. Even more to the point, as WEC Administrator Wolfe testified at the hearing, registering in person on the day of the election not only risks longer lines, but increases the amount of time individuals are inside polling stations, as well as requiring person-to-person engagement in two separate processes, which are further prolonged by the additional, COVID-19 protections of social distancing and masking. (8/5/20 Hr’g Tr. (dkt. #532) 60-61, 98-100.) Facilitating early registration electronically and by mail will not only limits sustained interactions on election day, but will allow some, significant number of unwary individuals sufficient time to request absentee ballots and vote by mail (or by drop-off), rather than voting in person before or on the day of the election. For these reasons, WEC Administrator Wolfe testified at the hearing, the tradition of having a significant number of individuals register in person on the day of the election is incompatible with the goal of -- and projected, significant demand for -- voting by mail via absentee ballot. (Id. at 57.) Cutting off electronic and mail-in registrations three weeks before the election will not just thwart efforts to encourage Wisconsin voters to vote by mail via absentee ballots, but increase the burdens and risks on those choosing to vote in person. This is especially true in light of Wisconsin’s “cultural tradition” of registering on election day, with more than 80% of registered voters having engaged in that process in the past. (Id. at 58.)
Still, the recognized health benefits of driving the electorate to mail-in registration
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and absentee voting is probably insufficient alone to justify this court modifying an established deadline for doing so. The difference in April, and again this November, is the sheer number of new registrations and absentee voters who will rely on the U.S. mail to do so, especially as compared to past elections, and the risks of severely restricting that option during the pandemic for those who will come to the realization that the window has closed too soon for them to register and request an absentee ballot. Unless some relief is provided to the October 14 deadline, the likelihood of thousands of voters missing this window and choosing not to vote in person is quite high, and while that eventuality may be present in any election, the risks expand to tens of thousands of voters in the midst of the pandemic. For these reasons, plaintiffs have demonstrated that discontinuing electronic and mail registration options precipitously on October 14 will likely restrict many Wisconsin citizens’ freedom to exercise their right to vote, at least without having to take unnecessary risks of COVID-19 exposure by registering in person, and for some significant minority of citizens, will severely restrict that right because of age, comorbidities or other health concerns. See Luft, 963 F.3d at 671–72 (“Only when voting rights have been severely restricted must states have compelling interests and narrowly tailored rules.”) (citations omitted).
In contrast, the only interest in enforcing the October 14 deadline articulated by the defendants is providing sufficient time for election officials to prepare voter records. As WEC Administrator Wolfe testified at the hearing, however, this deadline could be extended an additional week until October 21, 2020, while still providing sufficient time for local election officials to print poll books. (8/5/20 Hr’g Tr. (dkt. #532) 62.) Indeed,
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the record reflects that local election officials were able to accommodate the court’s April 2020 extension of electronic registration by 12 days before the April election without significant impact of local officials’ ability to manage in-person voting. (Id. at 63-64; see also DNC Pls.’ PFOFs (dkt. #419) ¶ 194. )
Accordingly, the court concludes that plaintiffs have sufficiently demonstrated that the current electronic and mail-in registration deadline of October 14, 2020, will substantially (and in a smaller, but significant group, severely) restrict the right to vote during the ongoing pandemic, particularly after considering the likely impact of increased, in-person registration on the orderly, safe functioning of voting on Election Day. Moreover, by moving the deadline only one week to October 21st, rather than the twoweek extension requested by plaintiffs, the court has amply accounted for any arguable state interest in allowing sufficient time to prepare voter records. Finally, with this accommodation, the court finds that the balance of interests weighs heavily in favor of plaintiffs as to this narrow relief.
b. Proof-of-Residence Requirement The DNC plaintiffs also seek an order enjoining the proof-of-residence requirement under Wisconsin Statute § 6.34(2) for individuals who attest under penalty of perjury that they cannot meet the requirement after reasonable efforts. During the evidentiary hearing, the DNC plaintiffs acknowledged that they do not have any declarations establishing an actual instance of a voter being unable to meet this requirement. (8/5/20 Hr’g Tr. (dkt. #532) 200.) In light of the record evidence, this is unsurprising, since it is fairly easy to satisfy the requirement. For those requesting an absentee ballot electronically, a driver’s
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license also satisfies the proof-of-residence requirement. (8/5/20 Hr’g Tr. (dkt. #532) 80 (Wolfe testifying that “[i]f someone registers to vote online, they do not need to provide proof of residence because the match with their DMV record fulfills that requirement”).) If a person wishes to register by mail or early in person, a utility bill would suffice, and the voter would not even need to provide a copy of it. For some individuals, this requirement still may constitute a burden -- for example, as the DNC plaintiffs argued at the hearing, there may be college students not on a lease or on utility accounts -- but this is always the case and not specific to the pandemic.19 Finally, as the Seventh Circuit recognized in Luft, there is a significant state interest in ensuring that individuals are voting in their proper districts. Luft, 963 F.3d at 676. On this record, therefore, the court concludes that plaintiffs are not likely to succeed in demonstrating that the proof-of-residence requirement substantially burdens the right to vote or that this burden outweighs the State’s interests, even in light of the circumstances surrounding the COVID-19 pandemic.
2. Absentee Voting a. Counting of Absentee Ballots
Next, the Edwards and Swenson plaintiffs seek an order enjoining Wisconsin Statute §§ 6.88, 7.51-.52, which require that absentee ballots not be counted before election day. Plaintiffs argue that this requirement thwarts local election officials’ ability to address defects in absentee ballots -- particularly a voter’s failure to comply with the
19 While the DNC plaintiffs propose use of “an affidavit” as a possible “safety net,” Frank II, 819 F.3d at 387, they fall short of proposing specific language, much less describing how this exception would be administered. Regardless, the court is concerned about adding any additional burdens on the WEC’s electronic registration process or on the stretched resources of local election officials.
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witness certification requirement. If the court were to enjoin this requirement and allow counting before the election day, then local election officials could find defects, contact voters and give them a chance to fix them before it is too late.
The court is not persuaded by this argument. As the Legislature explains, Wisconsin law already provides procedures for absentee ballot voters to correct errors. Indeed, the errors typically will occur on the outside of the envelope, and therefore, it need not be opened, nor must the ballot be counted for an election official to alert a voter of a witness certification error or some other defect. Regardless, the court agrees with the Legislature that plaintiffs’ proposed solution is a poor fit for the general problem of absentee ballot errors. Finally, plaintiffs’ argument is insufficiently tied to the particular circumstances surrounding the pandemic. Indeed, to the extent that plaintiffs pursue this injunction to facilitate efficient counting of absentee ballots, the court’s extension of the absentee ballot receipt deadline sufficiently addresses this concern. If anything, by precluding early counting of absentee ballots during a period when they are likely to comprise 60 to 75% of all ballots cast, the state’s interest in securing the tallying process until after the election is closed is stronger. On this record, the court finds no basis to grant relief.
b. Witness Signature Requirement All four plaintiffs next seek an order enjoining the witness signature requirement under Wisconsin Statute § 6.87(2), although the plaintiffs again suggest various replacements for this requirement. In essence, the DNC plaintiffs seek to enjoin this requirement for those individuals who (1) attest under penalty of perjury that they cannot meet the requirement after reasonable efforts, (2) sign a form and provide contact
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information, and (3) cooperate with local election officials who may follow-up. The DNC argues that this process would satisfy Frank II and Luft. The Edwards plaintiffs similarly request that the court allow the small population of people who cannot secure a witness to sign a sworn statement to that effect. Next, the Gear plaintiffs propose an order following the Seventh Circuit’s opinion reviewing this court’s April preliminary injunction by allowing voters to write in the name and address of a witness but not require a signature. Finally, the Swenson plaintiffs argue that self-certification should be sufficient to satisfy the State’s interest.
In support of their various requests for relief from a witness signature, plaintiffs submit substantive evidence in the form of affidavits from individuals who recount difficulties they encountered in obtaining or attempting to obtain a witness signature during the April election. (See, e.g., DNC Pls.’ PFOFs (dkt. #419) ¶¶ 157-60 (citing declarations).) Plaintiffs also assert that the proposed alternatives in the April election (e.g., have someone witness it via a video call or through a window) obviously did not work in light of the roughly 14,000 ballots that were rejected because of insufficient witness certifications, and further suggest that some portion of the 135,000 unreturned ballots were not submitted because voters could not secure a witness.
While acknowledging the possible burden that the witness signature requirement will place on some voters, the Seventh Circuit reversed this court’s entry of preliminary relief from this requirement for the April 2020 election. Democratic Nat’l Comm. v. Bostelmann, Nos. 20-1538, -1546, -1545, (7th Cir. April 3, 2020). Moreover, it did so even though the arguable need was greater then, given (1) the compressed period for election
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officials to adjust to the COVID-19 restrictions, (2) increased uncertainty as to how the virus spreads and risks of contracting it, and (3) the dramatic increase in first-time absentee applications and voters. Further, the Seventh Circuit faulted this court for giving inadequate weight to the State’s interests behind the witness requirement and vacated that portion of this court’s preliminary injunction, rather than merely modifying it to require a more robust affidavit or a witness, but no signature. Finally, the Supreme Court recently signaled its own reticence to set aside such state law requirements by staying the effect of an Eleventh Circuit decision blocking photo-ID and witness-signature requirements for absentee ballots. See Merrill v. People First of Ala., No. 19A1063 (U.S. July 2, 2020).
To the extent, the Seventh Circuit left room for other possible workarounds to the witness-signature requirement, the WEC has again proposed a number of options for any voters having difficulty meeting the requirement for safety or other reasons all of which would allow a voter to maintain a safe distance from the witness. See WEC, “Absentee Witness Signature Requirement Guidance” (Mar. 29, 2020), https://elections.wi.gov/node/6790. Given a greater understanding as to the efficacy of masks and social distancing in substantially lowering the risk of transmitting the virus (and the seemingly reduced risks of its transmittal on surfaces than by aerosols), these options also appear more viable and safe for individuals wishing to vote via absentee ballot than they did in April; albeit for some, the requirement may still present a significant hurdle. Finally, under Purcell, there remains the challenge of fashioning and implementing an effective exception to this requirement in the shorter period for voting via absentee ballot in terms of: drafting an appropriate form, publicizing the option, managing its distribution
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to voters who cannot meet the requirement, and effecting the return of that form. Viewing the election system as a whole, including the flexibility surrounding this
requirement, coupled with additional options for voting in person, either early or on the day of the election, the court concludes that plaintiffs have failed to demonstrate a sufficient likelihood of success in proving that the burden placed on some voters by this requirement outweighs the State’s interests and possible disruption in the orderly processing of an unprecedented number of absentee ballots. Accordingly, the court will deny this request for relief under Anderson-Burdick.
As noted above, some of the plaintiffs assert claims under the ADA as well. At the hearing, the Swenson plaintiffs specifically argued that relief from the witness signature requirement was warranted in light of the ADA. To establish a violation of the ADA, a plaintiff “must prove that he is a ‘qualified individual with a disability,’ that he was denied ‘the benefits of the services, programs, or activities of a public entity’ or otherwise subjected to discrimination by such an entity, and that the denial or discrimination was ‘by reason of’ his disability.” Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42 U.S.C. § 12132). A defendant’s “failure to make reasonable modifications in policies, practices, or procedures can constitute discrimination under Title II.” Lacy v. Cook Cty., 897 F.3d 847, 853 (7th Cir. 2018) (citing 28 C.F.R. § 35.130(b)(7)(i)3). An accommodation is reasonable if “it is both efficacious and proportional to the costs to implement it.” Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). The ADA, however, does not require a modification that would “fundamentally alter the nature of the service, program, or activity.” P.F. by A.F. v. Taylor,
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914 F.3d 467, 472 (7th Cir. 2019) (quoting 28 C.F.R. § 35.130(b)(7)(i)). Here, for the same reason that the court concluded the risks of administering an
affidavit, self-certifying or other program outweigh the burden on voting rights, the court also concludes that the recommended accommodation is not reasonable under the ADA, because it is not “efficacious and proportional to the costs to implement it.” Oconomowoc Residential Programs, 300 F.3d at 784. As such, plaintiffs have not shown a likelihood of success in proving that the witness signature requirement violates the ADA.
c. Receipt Deadline of Absentee Ballots Next, the DNC plaintiffs and the Swenson plaintiffs seek an order enjoining the requirement that absentee ballots must be received by election day under Wisconsin Statute § 6.87(6), urging instead that the ballots again be postmarked by election day to be counted. In its prior opinion and order, the court extended the deadline for receipt of mailed-in absentee ballots until the Monday after the election day. On appeal, the Seventh Circuit upheld this same extension, as did the U.S. Supreme Court, except for requiring that the return envelope be postmarked before or on election day. The reasons for the court’s extension of the deadline for receipt of mailed-in absentee votes for the April 2020 election applies with almost equal force to the upcoming November 2020 election. The WEC is now projecting 1.8 to 2 million individuals will vote via absentee ballot, exceeding the number of absentees by a factor of three for any prior general, presidential elections and exceeding by as much as a million the number of absentee voters that overwhelmed election officials during the April 2020 election. As the court discussed during the August 5th hearing, Wisconsin’s election system also allows
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individuals to request ballots up to five days before the election. While this deadline has worked for the most part during a normal election cycle, the same statutory deadline is likely to disenfranchise a significant number of voters in the November election given the projected, record volume of absentee ballots. On top of the sheer volume of absentee ballot requests that election officials found difficult to manage, the record also establishes that the USPS’s delivery of mail has slowed due to budget constraints or other reasons, and will undoubtedly be overwhelmed again with ballots in November, as they were in April.
Regardless of cause, plaintiffs have established significant problems with fulfilling absentee ballot requests timely, and even greater problems in getting them back in time to be counted. Indeed, those problems would have resulted in the disenfranchisement of some 80,000 voters during the April election but for this court’s entry of a preliminary injunction, and there is no evidence to suggest that the fundamental causes of these problems have resolved or will be resolved in advance of the November election. To the contrary, the WEC acknowledges that the unprecedented numbers of absentee voters will again be very challenging for local election officials to manage in the compressed time frame under current law despite their best efforts to prepare for and manage this influx, and they have no reason to expect any better performance by the USPS.20
20 This is not to denigrate the ongoing efforts of the small staff at WEC and efforts of local election officials, nor of postal workers, just to reflect the systemic issues that will arise in a system never meant to accommodate massive mail-in voting. Indeed, in addition to its efforts to encourage staffing up locally, WEC worked with USPS to add bar codes to absentee ballots, but without increased USPS personnel or automated tracking equipment, this is unlikely to change the speed of receipt of applications or absentee ballots, much less receipt of executed ballots. At best, it may help to better track how thousands of applications and votes became misplaced long after completion of the November election.
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In response, the Legislature argues that individuals should request ballots now, so that they can receive, complete and mail them back well in advance of the statutory deadline, which requires receipt on or before election day. The court whole-heartedly agrees that Wisconsin voters should proactively manage their voting plans, request absentee ballots online or by mail now (or as soon as possible thereafter), if they wish to vote by absentee ballot, and then diligently complete and return them well in advance of the election. Everyone -- the WEC, the Legislature, other elected officials, and the political parties and affiliated groups -- should be advocating for and to a large extent are advocating for such action, although the latter entities are more targeted at best and subject mischief at worst. Nonetheless, given the sheer volume expected this November, there remains little doubt that tens of thousands of seemingly prudent, if unwary, would-be voters will not request an absentee ballot far enough in advance to allow them to receive it, vote, and return it for receipt by mail before the election day deadline despite acting well in advance of the deadline for requiring a ballot.
While the Legislature would opt to disregard the voting rights of these so-called procrastinators, Wisconsin’s election system sets them up for failure in light of the near certain impacts of this ongoing pandemic. If anything, the undisputed record demonstrates that unwary voters who otherwise reasonably wait up to two weeks before the October 29, 2020, deadline, to request an absentee ballot by mail face a significant risk of being disenfranchised because their executed, mailed ballot will not be received by officials on or before the current election day deadline. Moreover, it is particularly unreasonable to expect undecided voters to exercise their voting franchise by absentee ballot well before the
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end of the presidential campaign, especially when the Wisconsin’s statutory deadline is giving them a false sense of confidence in timely receipt.
Not really disputing the magnitude of this risk in light of the vast, unprecedented number of absentee ballots received after the deadline in April, the Legislature instead argues that a similar extension this time will somehow undermine the state’s interests in having prompt election results. Even this argument rings hollow during a pandemic, but it also ignores that some fourteen states, other than Wisconsin and the District of Columbia, follow a postmark-by-election-day rule (or a close variant) and count ballots that arrive in the days following the election, so long as they are timely postmarked. (DNC Pls.’ Supp. PFOFs (dkt. #501) ¶ 19.) As such, Wisconsin will not be an anomaly. Furthermore, by including a postmark-by-election-day requirement, there is no concern that initial election results will influence a voter’s decision. Moreover, unlike in April, the court will not require election officials to refrain from publishing results until after the extended absentee ballot deadline, since that requirement was only added because of this court’s original decision not to include a postmark deadline. With the guidance of the United States Supreme Court that a postmark deadline is warranted, any concern about early release of election results is mitigated.
Finally, while not addressed by defendants, plaintiffs offered evidence that the election day receipt requirement actually furthered the state’s interest in completing its canvass during the April election. Regardless, WEC Administrator Wolfe testified that election officials were able to meet all post-election canvassing deadlines notwithstanding this court’s six-day extension of the deadline in April, and the extension gave election
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officials time to tabulate and report election results more efficiently and accurately. (DNC
Pls.’ PFOFs (dkt. #419) ¶ 195.) Nor have defendants identified any other predicted or
unforeseen anomalies arise because of this extension. On the contrary, as previously
discussed, there is strong evidence that as many as 80,000 voters’ rights were vindicated
by the extension in the primary election, and a reasonable extrapolation for the general
election could well exceed 100,000.
Thus, on this record, the court concludes that plaintiffs have shown a likelihood of
success in demonstrating the risk of disenfranchisement of thousands of Wisconsin voters
due to the election day receipt deadline outweighs any state interest during this pandemic.
Accordingly, the court will grant this request, extending the receipt deadline for absentee
ballots until November 9, 2020, but requiring that the ballots be mailed and postmarked
on or before election day, November 3, 2020.21
21 The court is mindful that the addition of a postmark requirement by the U.S. Supreme Court created some unintended consequences in April 2020, since a small proportion of the absentee ballots returned by mail lacked a legible postmark, apparently as a result of processing anomalies at local post offices. The court was hopeful that the planned use of intelligent mail barcodes (“IMB”) would assuage this concern, although it appears that the presence of IMBs on most return envelopes is uncertain, if not unlikely. To the extent that the use of IMBs does not resolve this issue, the WEC will again need to provide guidance to local election officials, as it did for the April election. Given the political deadlock among WEC Commissioners and the apparent lack of state law guidance on this subject -- as well as the fact that this postmark requirement is federally mandated and the apparent importance of equal treatment of ballots after Bush v. Gore, 531 U.S. 98 (2000) -- it is this court’s view that local election officials should generally err toward counting otherwise legitimate absentee ballots lacking a definitive postmark if received by mail after election day but no later than November 9, 2020, as long as the ballot is signed and witnessed on or before November 3, 2020, unless there is some reason to believe that the ballot was actually placed in the mail after election day. See Shiflett v. U.S. Postal Serv., 839 F.2d 669, 672 (Fed. Cir. 1988) (discussing prior version of regulation when timing was triggered by mailing of appeal to the Merit Systems Protection Board, explaining that “[t]he date of a filing by mail shall be determined by the postmark date; if no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt”); Wells v. Peake, No. 07-913, 2008 WL 5111436, at *3 (Vet. App. Nov. 26, 2008) (relying on prior regulation where timing of appeal was triggered by its mailing, to
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d. Electronic Receipt of Absentee Ballots The Gear, Edwards and Swenson plaintiffs further request an injunction preventing enforcement of Wisconsin Statute § 6.87(3)(a), which limits delivery of absentee ballots to mail only for domestic civilian voters, while military and overseas civilian voters can receive an absentee ballot by fax or email delivery, or can even access a ballot electronically, then download and print it. Wis. Stat. § 6.87(3)(d). As explained above, Judge Peterson invalidated this ban on email delivery of absentee ballots for domestic civilians in One Wisconsin Institute, 198 F. Supp. at 946-48, but that order was reversed by the Seventh Circuit’s decision in Luft. Regardless, for the roughly four-year period of time that this court’s order was in place, local election officials were given the option to email or fax absentee ballots to voters to ensure timely and efficient delivery. Plaintiffs’ renewed request for this relief is limited to those voters who timely request an absentee ballot (having already timely submitted their photo ID and registered by mail), had their requests processed and an absentee ballot mailed to them, but because of issues with the USPS (or for some other reason), the voters did not actually receive an absentee ballot by mail in a timely fashion. The record is replete with such examples from the April 2020 election. (See Swenson Pls.’ PFOFs (‘459, dkt. #42) ¶¶ 51, 164, 176 (citing declarations); DNC Pls.’ PFOFs (dkt. #419) ¶ 73 (citing declarations); Edwards Pls.’ PFOFs (dkt. #417) ¶¶ 67-162, 177-81) (citing declarations); Gear Pls.’ PFOFs (dkt. #422)
explain that “[s]ince there was no postmark, the BVA applied 38 C.F.R. § 20.305(a), which presumes the postmark date to be five days before the date VA receives the document, excluding Saturdays, Sundays, and legal holidays”).
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¶¶ 37, 43, 81, 157-677 (citing declarations).)22 In response, the Legislature argues generally that there are no special circumstances
here to warrant granting this relief, even temporarily. The record strongly suggests otherwise. Specifically, the evidence is nearly overwhelming that the pandemic does present a unique need for relief in light of: (1) the experience during the Spring election, (2) much greater projected numbers of absentee ballot requests and votes in November, and (3) ongoing concerns about the USPS’s ability to process the delivery of absentee ballot applications and ballots timely. None of this was remotely contemplated by the Legislature in fashioning an election system based mainly in person voting, nor addressed by the Seventh Circuit’s recent decision in Luft. Moreover, the relief requested is narrowly tailored only to those voters who timely fulfilled all of the necessary steps to vote by mail, but were thwarted through no fault of their own. Indeed, this is exactly the “1% problem” that the Seventh Circuit indicated requires a safety net in both Luft and Frank II. The Gear plaintiffs further suggest that the court limit it to the week before the deadline for requesting absentee ballots, which for this election is October 29, 2020. Up until that deadline, voters may request a replacement ballot by mail. See Wis. Stat. § 6.86(5) (explaining process for requesting an absentee ballot).
The Legislature also argues that this solution may create significant administrative
22 The Swenson plaintiffs also request online ballot delivery for individuals with print disabilities under the ADA. While this request may have merit, plaintiffs have failed to explain adequately why the current options have proven inadequate in past elections or how the pandemic creates sufficient, additional burdens to warrant relief. Given the numerous requests for relief in these consolidated cases, the court must remain focused on those requests for which the need and solution are clear and circumstances surrounding the pandemic in particular warrant an injunction.
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hurdles for local election officials, specifically citing to the need by local election officials to recast the absentee ballot into a form that is readable by voting machines. However, local election officials themselves represent that this inconvenience is outweighed by the benefit of having fewer, in-person voters on election day. (Gear Br. (dkt. #421) 42.) Plus, Wisconsin has a four-year history when fax or electronic delivery was available to all voters at the discretion of local election officials without incident. In contrast, the court’s injunction will only apply to a narrow subset of those voters for whom an absentee ballot was not received timely by mail, who afterwards request a replacement ballot in the week leading up to the deadline for making such a request, and satisfy local election officials of the need for an alternative means of delivery. For all these reasons, this limited relief should not overtax election officials’ abilities to administer the November election.
Finding that plaintiffs are likely to succeed on their claim that limiting receipt of absentee ballots to mail delivery burdens voters’ rights who fail to receive their absentee ballot timely, and that this burden is not outweighed by the interests of the State, the court will grant that relief. As set forth below, however, the ban on allowing online access to replacement absentee ballots or emailing replacement ballots is only lifted for the narrow 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 in time to vote. For the limited number of disabled who truly require an electronic ballot to vote effectively under the ADA, and have failed to discern an effective means to vote using a hard absentee ballot, after meeting all the same requirements set forth above for all voters, this may also provide an alternative.
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e. Mail Absentee Ballots to All Registered Voters Finally, with respect to absentee ballots, the Edwards plaintiffs seek an order requiring the WEC to send out absentee ballots to all registered voters, or at least to all voters who previously voted absentee. This request was not pursued at the hearing, and for good reason, since it is neither narrowly tailored to the alleged violations to voting rights caused by the pandemic, nor considers the substantial burden it would place on the WEC and local election officials who have already begun responding to actual applications for absentee ballots. The court, therefore, denies this request.
3. In-Person Voting a. Early In-Person Voting
Plaintiffs further seek several injunctions relating to in-person voting. To begin, the Edwards plaintiffs seek to enjoin Wisconsin Statute § 6.86(1)(b), which limits in-person, absentee voting to the period beginning 14 days before the election and ending the Sunday before the election. This request warrants little discussion because the Edwards plaintiffs failed to develop the record as to why a 12-day period is not sufficient to provide voters an adequate opportunity to vote early in-person. Viewing the election system as whole, a twoweek period for in-person, early voting, is sufficient to protect voters’ constitutional rights, especially when considered in light of a robust mail-in absentee voting option and what will hopefully be a generally safe and adequate, in-person voting opportunity on the day of the election.
b. Selection of Early In-Person Voting Sites The Edwards and Swenson plaintiffs also seek to enjoin Wisconsin Statute §
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6.855(1), which requires municipalities to designate in-person, absentee voting site or sites (other than the clerk of board of election commissioners’ office) 14 days before absentee ballots are available for the primary. For the November election, this means the required designations were due by June 11, 2020. Plaintiffs contend that extending this deadline would (1) allow increased flexibility and (2) reduce crowds and encourage social distancing by allowing extra sites added. Here, again, plaintiffs have failed to develop any record to find that additional, in-person voting sites are necessary to meet the demand of voters who wish to vote in person before the election day, especially given that voters may do so over a 12-day period of time. Accordingly, the court will also deny this request.
a. Photo ID Requirement The DNC and Edwards plaintiffs both seek an order enjoining the photo ID requirement under Wisconsin Statute § 6.87(1), although the contours of the relief requested are different: the DNC plaintiffs seek to enjoin the requirement for those individuals who attest under penalty of perjury that they cannot meet those requirements after reasonable efforts; while the Edwards plaintiffs seek to enjoin the requirement for people with disabilities if they swear that they are unable to obtain the required ID. The DNC’s request for relief from the photo ID requirement falters for similar reasons as plaintiffs’ request for relief from the proof-of-residence requirement. When pressed at the hearing, the DNC plaintiffs listed four declarations from individuals who they represented were not able to vote in the April 2020 election because of the ID requirement. From the court’s review of these four declarations, only one -- the declaration of Shirley Powell (dkt. #341) -- actually provides support for the requested relief. Powell
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avers that she attempted to request an absentee ballot by mail, but could not do so because she did not want to leave her house to obtain the necessary copy of her photo ID. (Id. ¶ 5.)23 That proof falls well short of a substantial burden on her right to vote.
For their part, the Edward plaintiffs simply direct the court to a report about the difficulty in obtaining photo IDs for the 2016 election, offering neither evidence specific to the COVID-19 pandemic nor proof of any unique burdens it places on disabled voters under the ADA. While the court acknowledges that some voters like Powell may encounter difficulty in uploading a photo of their ID or obtaining a hard copy, this burden has likely diminished since April 2020, given both the additional time voters will have to obtain the necessary documents to request an absentee ballot electronically or by mail, coupled with the increased awareness of how COVID-19 spreads and efforts one can take to avoid transmission upon leaving the house.24
Even if not entitled to broader relief, plaintiffs argue, the creation of a “safe harbor” or “fail-safe” measure is called for by the Seventh Circuit’s decisions in Luft and Frank II. However, the court concludes that, while not a perfect solution, the “indefinitely confined” designation under Wisconsin Statute § 6.87(4)(b)2 provides such relief already for those
23 The other individuals -- Sue Rukamp, Sharon Gamm and Marlene Sorenson -- simply averred that they encountered difficulty in uploading a photo of their ID or submitting a hard copy via mail, but it appears that all three were eventually able to request an absentee ballot. (Dkt. ##349, 294, 355.) Not to diminish the burdens that they encountered, their declarations do not support providing relief from the photo ID requirement. Instead, the difficulties that they encountered are more appropriately addressed in providing electronic delivery of ballots for those individuals who do not timely receive absentee ballots by mail and by extending the deadline for receipt of absentee ballots to account for USPS delays. Both forms of relief are granted below. 24 Of course, the court is not definitively concluding such a burden cannot be proved, just that plaintiffs have not begun to proffer evidence of their likelihood of doing so given the work-arounds now available.
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unique individuals who are both (1) not able to upload a photograph of their ID or obtain a copy and (2) avoiding public outings because of legitimate COVID-19 concerns.
Apparently anticipating this outcome, plaintiffs further argue that if the court relies on the “indefinitely confined” status as a safety net for the photo ID requirement, then it should also define that term and direct the WEC to provide this definition in its materials explaining and promoting voting via absentee ballot. As it concluded in its earlier opinion and order, however, the plain language of the statute, coupled with the WEC’s March 2020 guidance that the term “does not require permanent or total inability to travel outside of the residence” provides sufficient, albeit imperfect, information to guide voters’ use of that safe harbor. See Wisconsin Election Commission, Guidance for Indefinitely Confined Electors COVID-19 (Mar. 29, 2020) ), https://elections.wi.gov/node/6788.
On this record, therefore, the court concludes that plaintiffs have failed to demonstrate a likelihood of succeeding in their claim that the COVID-19 pandemic amplifies the typical burden of requiring a photo ID, so as to outweigh the State’s repeatedly recognized interest in doing so. Because the court relies on the “indefinitely confined” option as a safety net or fail-safe for those legitimately unable to meet this requirement, however, the court will direct the WEC to include on the MyVote website (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.”
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b. Election Official Residence Requirement Next, the Edwards and Swenson plaintiffs seek to enjoin Wisconsin Statute § 7.30(2), which requires that each election official be an elector of the county in which the municipality is located. This request has significant more traction in light of the record. In particular, based on her past experience and unique perspective, Administrator Wolfe testified that her biggest worry in the administration of the November election is a lack of poll workers for in-person voting on election day. (8/5/20 Hr’g Tr. (dkt. #532) 83.) Both for the April and August 2020 elections, local municipalities struggled to recruit and retain sufficient poll workers, which resulted in some localities being severely limited in providing in-person voting opportunities. In fact, even with substantially greater warning and opportunity to plan, local election officials still had difficulty securing adequate people for Wisconsin’s much smaller August 2020 election. (Id. at 82-83.) At minimum, eliminating the residence requirement would provide greater flexibility across the state to meet unanticipated last-minute demands for staffing due to COVID-19 outbreaks or fear. In response, the Legislature simply argues that this requirement furthers the State’s interest in promoting a decentralized approach to election management. Without discounting the value of this interest, if a county or municipality lacks sufficient poll workers and wishes to recruit workers from other locations within the state, including accessing National Guard members who reside outside of their community (should the Governor choose to answer the repeated call by local officials to make them available sooner rather than later), the municipality or county has already conceded its inability to maintain that interest while still conducting a meaningful election, at least with respect to
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the location of residence of poll workers. Regardless, in light of the record evidence demonstrating that recruitment of poll workers will present a tricky and fluid barrier for adequate in-person voting options up to and during election day, plaintiffs have demonstrated a likelihood of success in proving that this requirement will burden their right to vote and that this burden outweighs any state interest in maintaining the requirement over expressed, local need.. As such, the court will grant this requested relief during the ongoing pandemic.
c. Ensure Safe and Adequate In-Person Voting Sites The DNC and Swenson plaintiffs seek an order requiring the WEC to provide safe and adequate, in-person voting options, including (1) adequate voting sites with sufficient number of poll workers, and (2) implementation of safety protocols like PPE, masks, social distancing requirements, hand washing and sanitizing steps. While the court agrees, and more importantly the WEC and, in turn, local election officials agree, that these are appropriate steps to be taken, the court sees no basis to order this requested relief. Specifically, the WEC has earmarked $4.1 million to provide increased safety measures at locations and has also designated $500,000 to secure and distribute sanitation supplies. WEC also is providing public health guidance and training to local election officials. Plaintiffs fail to describe how these measurers fall short. As for the concern about the number of voting locations, as previously described, local election officials in Milwaukee and Green Bay, in particular, have indicated their intent to open significantly more polling locations than that opened in April. Again, considering the election system as a whole, including the WEC’s, local officials’, and now the court’s efforts to ensure
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robust absentee voting options, the court concludes that plaintiffs have failed to demonstrate that the WEC and local election officials’ efforts to date with respect to ensuring safe and adequate election-day voting sites are inadequate.
4. Requests for Miscellaneous Relief Finally, the Swenson plaintiffs propose a number of other areas of relief, which all involve ordering the WEC to do more or do better. Specifically, the Swenson plaintiffs seek orders requiring the WEC to: (1) upgrade electronic voter registration systems and absentee ballot request systems; (2) engage in a public education drive; (3) ensure secure drop boxes for in-person return of absentee ballots; and (4) develop policies applicable to municipal clerks regarding coordinating with USPS to ensure timely delivery of and return of absentee ballots. Again, all of these are worthwhile requests, but the record reflects that the WEC is taking such steps or, at least, that a court order to the same effect is unlikely to do more before November 3 than hamper the ongoing state and local efforts. For example, in its June 25, 2020, report to the court, the WEC detailed its efforts to upgrade MyVote and WisVote, as well as provide federal funds to help municipalities with their IT needs. Moreover, the WEC described its development of various voter outreach videos, guides and surveys to help educate voters on unfamiliar aspects of voting. Further, as the Legislature points out, Wisconsin Statute § 6.869 already requires the WEC to prescribe uniform instructions on absentee voting. As for the request for more drop boxes, the WEC is providing funding from the CARES Act to municipalities to provide such boxes. Finally, as described above, the WEC is working with the USPS to implement intelligent mail barcodes to track absentee ballots.
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To the extent mail delivery issues persist despite these steps, the court has attempted by entry of the order below to accommodate these concerns by permitting online access, by emailing and faxing of absentee ballots for those individuals who do not receive their requested absentee ballots timely, and by extending the absentee ballot receipt date. Plaintiffs’ further requests for relief are either too vague to be meaningful or unnecessary because the WEC is already taking such steps.
B. Alternate Claims for Relief Under the Due Process and Equal Protection Clauses and Voting Rights Act As already discussed, constitutional challenges to laws that regulate elections are
generally analyzed under balancing test set forth by the U.S. Supreme Court in the Anderson-Burdick test. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008); Luft, 963 F.3d at 671; see also Samuel Issacharoff et al., The Law of Democracy 92127 (5th ed. 2016) (reviewing the general constitutional framework for challenges to election laws affecting the right to vote). This balancing test is rooted in both the First and Fourteenth Amendments to the U.S. Constitution. See Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at 788-89). In interpreting the Supreme Court’s election law jurisprudence, the Seventh Circuit has concluded that the Anderson-Burdick test “applies to all First and Fourteenth Amendment challenges to state election laws.” Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (emphasis in original); see also Harlan v. Scholz, 866 F.3d 754, 759 (7th Cir. 2017) (the Anderson-Burdick framework addresses “the constitutional rules that apply to state election regulations”).
As explained during oral argument, this court is exceedingly reluctant to apply more
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generalized constitutional tests to the election laws challenged here, at least without a specific legal and factual basis to do so. Indeed, in its order preceding completion of briefing and oral arguments on the motions for preliminary injunction, the court suggested that to proceed on claims under other constitutional frameworks, plaintiffs must adequately distinguish such claims from those brought under Anderson-Burdick. (See 6/10/20 Op. & Order (dkt. #217) 14-15.) Without ever adequately addressing this concern, some plaintiffs nevertheless maintain that this court should venture outside of the Anderson-Burdick framework and consider their claims under alternative procedural due process and equal protection clause standards.
Specifically, plaintiffs urge the court to apply the more general procedural due process balancing test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). That test requires the court to balance: (1) the interest that will be affected by the state action; (2) the risk of erroneous deprivation of this interest through the procedures used by the state and the probable value, if any, of additional procedural safeguards; and (3) the state’s interest, including the fiscal and administrative burdens that the additional procedure would entail. Id. at 340-49. The Swenson plaintiffs contend that the Anderson-Burdick and Mathews tests are “analytically distinct” because “[t]he focus of the procedural due process inquiry is what process is due before a statutorily protected liberty or property interest is deprived.” (Swenson Pls.’ Br. (‘459, dkt. #41) 47 n.188.) Similarly, the DNC plaintiffs contend that “Anderson-Burdick balances burdens on voting rights against states’ justifications, while due process claims focus on the sufficiency of the process involved before the State deprives someone of their right to vote.” (DNC Pls.’ Br. (dkt. #420) 55.)
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During initial briefing, no plaintiff could cite to any case law to support the nuanced differences suggested by their respective positions. To the contrary, the DNC plaintiffs acknowledged that “we have not yet found a decision in which a court accepted an Anderson-Burdick claim while rejecting a due process challenge to the same provision; or rejected an Anderson-Burdick challenge while striking down the same provision as violating due process.” (DNC Br. (dkt. #420) 54.) Since then, plaintiffs have pointed to three, recent election cases in which a district court applied the general Mathews test to election law challenges, all of which were considered in the context of the current pandemic. (See Notice of Supp. Authority (dkt. #536) (citing The New Georgia Project v. Raffensperger, 1:20cv-01986-ELR (N.D. Ga. Aug. 31, 2020)); Notice of Supp. Authority (dkt. #534) (citing Frederick v. Lawson, No. 19-cv-01959, 2020 WL 4882696 (S.D. Ind. Aug. 20, 2020)); Notice of Supp. Authority (dkt. #523) (citing Democracy N.C. v. N.C. State Bd. of Elections, No. 20-cv-457 (M.D.N.C. Jul. 27, 2020)).) However, even these cases fail to address the overlap between the Mathews and Anderson-Burdick standards, much less the exclusive role played by the latter test in the U.S. Supreme Court’s overall election law jurisprudence, thus providing little guidance as to the role, if any, of the Mathews test here. Accordingly, plaintiffs have not convinced this court that in the claims before it, an independent analysis under the Mathews test is necessary, much less appropriate.25
As for the equal protection claims, plaintiffs rely on the standard articulated by the
25 The DNC plaintiffs themselves admit that the “Anderson-Burdick and Mathews v. Eldridge analyses are both multi-factor balancing inquiries . . . and the results of the inquiries may often be the same.” (DNC Pls.’ Br. (dkt. #420) 55.)
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Supreme Court’s per curiam decision in Bush v. Gore, 531 U.S. 98 (2000). There, the Supreme Court explained that a state “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104-05.26 Notwithstanding that the Supreme Court took unusual pains to limit its “consideration” specifically to the “present circumstances” surrounding the 2000 Florida recount, id. at 109, other courts have appeared to rely on Gore in attempting to analyze subsequent election challenges. See, e.g., Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir. 2016) (redistricting); Obama for Am. v. Husted, 697 F.3d 423, 428–29 (6th Cir. 2012) (restrictions on early voting); Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 & n.7 (9th Cir. 2003) (ballot-initiative process).
Even if applicable, however, the Legislative defendants persuasively point out that this standard requires plaintiffs to prove that the arbitrary and disparate treatment is a result of specific election “procedures.” Bush, 531 U.S. at 105. Here, the alleged disparate treatment is rooted in poll closings and poll-worker shortages, lack of adequate personal protective equipment at some polling locations and disparate treatment regarding voter registration and requests for absentee ballots. Arguably, therefore, these allegations are not rooted in specific “procedures” at all. Even if they were, plaintiffs again fail to explain adequately what additional relief would or should be afforded under the equal protection
26 Plaintiffs also included a variety of facts regarding the disparate impact of COVID-19 on particular groups seeking to vote, such as specific racial minorities and the elderly. Without denigrating this impact in any way, plaintiffs’ equal protection claim is premised on a general “arbitrary treatment” theory, rather than an argument that defendants’ actions specifically discriminated against a particular protected class of voters, making many of these facts not relevant to, and thus not referenced further in, the court’s discussion.
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clause that is not already available under Anderson-Burdick. Finally, in addition to these constitutional arguments, the Swenson plaintiffs assert
a claim under Section 11(b) of the Voting Rights Act (“VRA”), which provides in relevant part that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting.” 52 U.S.C. § 10307(b). The Swenson plaintiffs argue that defendants’ inadequate response to the pandemic means that voters are intimidated to vote in person, for fear of catching COVID-19. (Swenson Pls.’ Br. (dkt. #41) 25.) Although admittedly a creative argument, such an interpretation seriously stretches the purpose and common-sense meaning of section 11(b).
The VRA was signed into law in 1965 against the backdrop of the civil rights movement and state resistance to enforcement of the Fifteenth Amendment. See generally Dep’t of Justice, History of Federal Voting Rights Laws (July 28, 2017), https://www.justice.gov/crt/history-federal-voting-rights-laws. While other sections of the VRA had enormous consequences on voting rights -- particularly section 2, which prohibits discriminatory voting practices, and section 5, which provides for federal “preclearance” of election changes in states with a history of discriminatory practices -- relatively little case law has explored the scope of section 11(b). See Ben Cady & Tom Glazer, Voters Strike Back: Litigating Against Modern Voter Intimidation, 39 N.Y.U. Rev. L. & Soc. Change 173, 190 (2015). Considering this background, there is no evidence that Congress contemplated extending the VRA to impose liability on states that do not take adequate action to reduce citizens’ “intimidation” of in-person voting due to an infectious virus.
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Moreover, the plain language of the statute itself suggests that the intimidation must be
caused by a “person,” not a disease or other natural force. Further, the parties disagree
over whether section 11(b) requires a mens rea -- plaintiffs argue that it does not, the
Legislature argues that it does -- and no definitive answer is found in case law. In light of
these various considerations and uncertainties, 11(b) also appears a poor fit for analyzing
the issues presented in this case, and the court finds that plaintiffs have presented no
likelihood of success on the merits of their claims under the VRA as well.
ORDER IT IS SO ORDERED:
1) Common Cause Wisconsin’s motion for leave to file a brief as amicus curiae (’249 dkt. #251; ’278 dkt. #186; ’340 dkt. #51; ’459 dkt. #75) is GRANTED.
2) Plaintiffs Democratic National Committee and Democratic Party of Wisconsin’s motion for preliminary injunction (’249 dkt. #252) is GRANTED IN PART AND DENIED IN PART as explained above and set forth below and in the separate preliminary injunction order.
3) The Wisconsin Legislature’s motion to dismiss the Gear complaint (’278 dkt. #382) is DENIED.
4) Plaintiffs Sylvia Gear, et al.’s motion for preliminary injunction (’278 dkt. #304) is GRANTED IN PART AND DENIED IN PART as explained above and set forth below and in the separate preliminary injunction order.
5) Defendants Scott Fitzgerald, Robin Vos, Wisconsin State Assembly, and Wisconsin State Senate’s motion to dismiss the Edwards complaint (’340 dkt. #12) is GRANTED IN PART AND DENIED IN PART. Plaintiffs’ claims against Scott Fitzgerald and Robin Vos are DISMISSED. In all other respects, the motion is denied.
6) Defendants the WEC Commissioners and Administrator’s motion to dismiss the Edwards complaint (’340 dkt. #14) is DENIED.
7) American Diabetes Association’s motion for leave to file an amicus curiae brief (’340 dkt. #23) is GRANTED. 67

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8) Plaintiffs Chrystal Edwards, et al.’s motion for preliminary injunction (’340 dkt. #195) is GRANTED IN PART AND DENIED IN PART as explained above and set forth below and in the separate preliminary injunction order.
9) The Wisconsin Legislature’s motion to dismiss the Swenson complaint (’459 dkt. ##27, 272) is DENIED.
10) Plaintiffs Jill Swenson, et al.’s motion for preliminary injunction (’459 dkt. #40) is GRANTED IN PART AND DENIED IN PART as explained above and set forth below and in the separate preliminary injunction order.
11) Defendants the Commissioners of the Wisconsin Election Commission and its Administrator are:
a) Enjoined from enforcing the deadline under Wisconsin Statute § 6.28(1), for online and mail-in registration. The deadline is extended to October 21, 2020.
b) Directed 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.”
c) Enjoined from enforcing the deadline for receipt of absentee ballots under Wisconsin Statute § 6.87(6), and the deadline is extended until November 9, 2020, for all ballots mailed and postmarked on or before election day, November 3, 2020.
d) Enjoined from enforcing Wisconsin Statute § 6.87(3)(a)’s ban on delivery of absentee ballots to mail only for domestic civilian voters, with that lifted to allow online access to replacement absentee ballots or emailing replacement ballots, for the period from October 22 to October 29, 2020, provided that 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.
e) Enjoined from enforcing Wisconsin Statute § 7.30(2), to the extend individuals need not be a resident of the county in which the municipality is located to serve as election officials for the November 3, 2020, election.
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Case: 3:20-cv-00249-wmc Document #: 538 Filed: 09/21/20 Page 69 of 69 12) The preliminary injunction order is STAYED for seven days to provide defendants and intervening defendants an opportunity to seek an emergency appeal of any portion of the court’s order. Entered this 21st day of September, 2020. BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge
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