IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION 

TEXAS DEMOCRATIC PARTY, GILBERTO §

HINOJOSA, Chair of the Texas Democratic § 

Party, JOSEPH DANIEL CASCINO, § 

SHANDA MARIE SANSING, and § 

BRENDA LI GARCIA § 

Plaintiffs, § 

§ 

v. § Case No. 5:20-cv-00438

§ 

GREG ABBOTT, Governor of Texas; RUTH § 

HUGHS, Texas Secretary of State, DANA § 

DEBEAUVOIR, Travis County Clerk, and § 

JACQUELYN F. CALLANEN, Bexar County § 

Elections Administrator § 

§ 

Defendants. § 

BRIEF OF THE REPUBLICAN PARTY OF TEXAS AS AMICUS CURIE

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

INTEREST OF AMICUS CURIAE

Amicus Curiae,

1 the Republican Party of Texas (“RPT”), is a political party recognized by 

the Texas Election Code. We believe that elections are fair when the process by which elections 

are conducted is consistent and predictable. We support elections free from the flames of fear and 

1 Amicus Curiae and its counsel state that none of the parties to this case, including the intervening parties, nor their 

counsel authored this brief in whole or in part, nor made any monetary contribution for the preparation or submission 

of this brief.

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2

uncertainty fanned by the Texas Democratic Party and liberal activists, whose true goal is to create 

a voting environment where checks and balances are few, and voter fraud can thrive. Our focus is 

to ensure that elections are conducted safely and consistently with the letter and spirit of the laws 

of Texas. Challenges to duly enacted election procedures, such as those brought by Plaintiffs in 

the present case, can only damage the integrity and legitimacy of the election results. After all, 

“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). The Republican Party of Texas thus has a significant interest in this important 

case.

INTRODUCTION

This Court should deny Plaintiffs’ claims that seek to have this Court prohibit the State of 

Texas from enforcing duly enacted state election laws that prevent voter fraud and preserve voter 

confidence in the integrity of elections. Specifically, Plaintiffs challenge section 82.002 of the 

Texas Election Code and seek to prohibit the State of Texas from enforcing the requirements 

necessary to receive a mail ballot for the runoff election on July 14, 2020 (“Challenged Provision”).

The Court should not enjoin the Challenged Provision because the State of Texas has valid 

interests in preventing voter fraud and in protecting voter confidence in the integrity of its elections, 

and the U.S. Constitution specifically delegates to state legislatures responsibility for determining 

the “Times, Places and Manner” of federal elections. U.S. Const. art I, § 4, cl. 1; Crawford v. 

Marion Cty. Election Bd., 553 U.S. 181, 194-197 (2008). Further, enjoining the Challenged 

Provision so close in time before an election would wreak havoc among election administrators, 

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who would have scant time and possibly very few resources to implement new procedures. See 

Purcell v. Gonzalez, 849 U.S. 1, 4-6 (2006).

It is important during these uncertain times that the fundamental pillars of our form of 

government, such as separation of powers and honest elections, remain intact. While Amicus 

Curiae recognize that adjustments have been made for upcoming elections, Plaintiffs’ requested 

injunction is not the proper way to protect the integrity of the electoral process. Judicial 

intervention and inappropriate and burdensome injunctions will only lead to confusion and chaos 

in upcoming elections when steadiness and adherence to proper procedures are needed now more 

than ever.

Finally, as this Court noted, because the runoff election is set for July 14, 2020, the timing 

of Plaintiffs’ request will likely render any requested relief moot. A stay and appeal of this Court’s 

ruling, if necessary, would likely go beyond the mail ballot request deadline, rendering moot any 

relief.

ARGUMENT

I. THE COURT SHOULD DENY PLAINITIFFS’ MOTION FOR PRELIMINARY 

INJUNCTION BECAUSE THEY HAVE NO LIKELIHOOD OF SUCCESS ON 

THE MERITS AND IT IS CONTRARY TO THE PUBLIC INTEREST.

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be 

granted unless the movement, by a clear showing, carries the burden of persuasion.” Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (alteration in original) (citation omitted). 

Among other things, a movant requesting a preliminary injunction must prove the likelihood of 

success on the merits of their underlying claims and that granting their requested injunction is in 

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 3 of 40
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the public interest. Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018). Here, Plaintiffs are not 

only unlikely to succeed on the merits of their underlying claims, but are also requesting an 

injunction that is contrary to the public interest.

A. The State of Texas has a Valid Interest in Preventing Voter Fraud and in 

Protecting Voter Confidence in the Integrity of Elections.

When analyzing an alleged burden on the right to vote from a challenged law, the wellestablished Anderson/Burdick framework applies. See Burdick v. Takushi, 504 U.S. 428 (1992); 

Anderson v. Celebrezze, 460 U.S. 780 (1983). Under Anderson/Burdick, “election laws generally 

are not subject to strict scrutiny, even though voting rights are fundamental under the 

Constitution.” Lee v. Va. State Bd. of Elections, 843 F.3d 592, 605 (4th Cir. 2016); see also

Burdick, 504 U.S. at 433. In reviewing a reasonable, nondiscriminatory restriction on voting rights, 

such as the Challenged Provision here, the restriction is justified by a state’s “important regulatory 

interests.” Lee, 843 F.3d at 606 (quoting Burdick, 504 U.S. at 434). Further, as voting by absentee 

ballot is not a fundamental right, challenges to absentee voting laws are not subject to a strict 

scrutiny analysis. See McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969).

Courts across the country, including the United States Supreme Court, have routinely 

recognized that a state has important regulatory interests in preventing voter fraud and in protecting 

voter confidence in the integrity of elections. See e.g., Crawford, 553 U.S. at 194-197; Lee, 843 

F.3d at 606-607; Hoffman v. Maryland, 928 F.2d 646, 649 (4th Cir. 1991); see also Griffin v. 

Roupas, 385 F.3d 1128, 1130-32 (7th Cir. 2004). Here, just as in the above cited cases, the 

Challenged Provision is easily justified by those interests. For “[v]oting fraud is a serious problem 

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 4 of 40
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in U.S. elections generally ... and it is facilitated by absentee voting.” Griffin, 385 F.3d at 1130-

31.

Texas’ regulatory interest in preventing voter fraud is also supported by the fact that 

elections in Texas have been overturned on account of voter fraud. Recently, in De La Paz v. 

Gutierrez, a closely contested run-off election for a Justice of Peace seat in Kleberg County was 

overturned following a two-day hearing. No. 13-19-00377-CV, 2018 Tex. App. LEXIS 8687 (Tex. 

App.—Corpus Christi Oct. 25, 2018, no pet.) (mem. op.) (affirming judgment of the trail court).

After a recount narrowed the vote differential to just six votes, seven of the sixteen votes contested 

by Guiterrez were thrown out by the trial court because they were cast by relatives of De La Paz 

who lived outside the Precinct 4 boundaries. Id. at *1-8. The trial court went on to state that “on 

the whole the evidence overwhelmingly established [De La Paz’s] family and friends falsified their 

voter registration cards by claiming residence where they did not live . . . . Their individual and 

collective activities . . . so tainted this election that another is necessary.” Id. at *8. 

There are numerous other examples of elections being impacted by voter fraud in Texas. 

See, e.g., O’Cana v. Salinas, No. 13-18-00563-CV, 2019 Tex. App. LEXIS 2546 (Tex. App.—

Corpus Christi Mar. 29, 2019, pet. denied) (noting, while overturning the trial court which voided 

a mayoral run-off election, that “[t]his case has uncovered clear and convincing evidence of 

election fraud, resulting in at least 31 illegal ballots being cast.”); Tiller v. Martinez, 974 S.W.2d 

769, 771-72 (Tex. App.—San Antonio 1998, pet. dism’d w.o.j.) (affirming the trial court’s 

overturning of an election because 28 of 108 mail-in ballots were improperly invalidated, which 

changed the outcome of the election); Kelley v. Scott, 733 S.W.2d 312, 314 (Tex. App.—El Paso 

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 5 of 40
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1987, writ dism’d w.o.j.) (overturning trail court and voiding an election because in an election 

decided by one vote, a single illegal absentee ballot was improperly counted); Fuentes v. Howard, 

423 S.W.2d 420, 422, 427 (Tex. Civ. App.—El Paso 1967, writ dism’d w.o.j.) (reversing the trial 

court and holding that, while nine votes were illegally cast due to inappropriate assistance with 

absentee ballots, there were not a sufficient number of illegal ballots to change the outcome of the 

election).

Furthermore, individuals are routinely charged and convicted of voter fraud both in Texas

and throughout the United States. See, e.g., Tim Acosta, Roberstown resident pleads guilty to voter 

fraud, barred from helping in future elections, Caller Times (June 14, 2018, 5:38 p.m.), 

https://www.caller.com/story/news/local/2018/06/14/robstown-resident-pleads-guilty-voterfraud-barred-elections/703726002/; Tasha Tsiaperas, Bogus voter gets 180 days in Dallas jail for 

forging mail-in ballot, The Dallas Morning News (June 20, 2018, 5:05 p.m.), 

https://www.dallasnews.com/news/courts/2018/06/20/bogus-voter-gets-180-days-in-dallas-jailfor-forging-mail-in-ballot/; Jennifer Emily, Ellis County constable convicted of voter fraud, The 

Dallas Morning News (June 16, 2017, 6:12 p.m.), 

https://www.dallasnews.com/news/courts/2017/06/16/ellis-county-constable-convicted-of-voterfraud/ (convicted of six counts of voter fraud for improperly assisting with mail-in ballots); see 

also, e.g., A Sampling of Recent Election Fraud Cases from Across the United States, The Heritage 

Foundation, https://www.heritage.org/voterfraud (last accessed May 13, 2020).

Therefore, the Texas’ interests in preventing voter fraud and in protecting voter confidence 

in the integrity of elections justifies the existence and enforcement of the Challenged Provision 

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under the Anderson/Burdick framework. Plaintiffs’ underlying claims, therefore, are not likely to

succeed and their request for a preliminary injunction should be denied.

B. A Similar Case from Wisconsin Is Persuasive as to How this Court Should 

Address Plaintiffs’ Claims.

Last month, a group of plaintiffs filed suit in the United States District Court for the 

Western District of Wisconsin (the “Wisconsin Case”) where, among other things, they challenged 

a law that required a witness signature on Wisconsin absentee ballots due to COVID-19 related 

concerns. See Democratic Nat'l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 U.S. Dist. 

LEXIS 57918, at *5 (W.D. Wis. Apr. 2, 2020). Despite acknowledging “the state’s asserted 

interests in the witness requirement as a tool against voter fraud,” the Wisconsin court enjoined 

the state’s ability to enforce their absentee ballot witness requirement as enacted by the Wisconsin 

Legislature. Id. at *64, 75-76. With the Wisconsin elections fast approaching, upon review of the 

district court’s order, the Seventh Circuit promptly stayed multiple provisions from the district 

court’s order including the provisions that enjoined enforcement of the state’s absentee ballot 

witness requirement. Democratic Nat’l Comm. v. Bostelmann, No. 20-1538 (7th Cir. Apr. 3, 2020).

In staying the district court’s injunction pertaining to the state’s absentee ballot witness 

requirement, the Seventh Circuit found “that the district court did not give adequate consideration 

to the state’s interests” in preventing voter fraud and in protecting voter confidence in the integrity 

of elections. Id. at 3. The court went on to state that “‘[c]onfidence 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.’” Id. (quoting

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Purcell, 549 U.S. at 4). The Seventh Circuit stated that it was “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.” 

Id. (emphasis added). Here, just as Wisconsin’s interest in combatting voter fraud justified their 

absentee ballot witness requirement, so too are Texas’ laws which determine under what 

circumstances an absentee ballot will issue justified by their substantial interest in combatting voter 

fraud and in protecting voter confidence in the integrity of elections.

In addition, following the Wisconsin election, at least two studies have been published as 

“pre-prints” to evaluate the election’s impact on the spread of the virus. These two research studies 

show no effect. The first, titled “No Detectable Surge in SARS-CoV-2 Transmission due to the 

April 7, 2020 Wisconsin Election”,

2 is attached hereto as Exhibit A. That study concluded, 

“[t]aken together, it appears that voting in Wisconsin on April 7 was a low-risk activity.” Id. A 

second study examining Wisconsin found that the virus’ rate of spread actually declined following 

the election, and declined in the three most populated counties in Wisconsin. That study entitled 

“Wisconsin April 2020 Election Not Associated with Increase in COVID-19 Infection Rates”,

3 is

attached hereto as Exhibit B. That study concluded, “[t]here was no increase in COVID-19 new 

case daily rates observed for Wisconsin or its three largest counties following the election on April 

7, 2020, as compared to the US, during the post-incubation period.” Id. 

2 Available at https://www.medrxiv.org/content/10.1101/2020.04.24.20078345v1.full.pdf 3 Available at https://www.medrxiv.org/content/10.1101/2020.04.23.20074575v1.full.pdf

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 8 of 40
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Amicus Curiae agree with the Seventh Circuit when it wisely stated that “[i]t 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.” Democratic Nat’l Comm. v. 

Bostelmann, No. 20-1538, at 4 (7th Cir. Apr. 3, 2020). “[S]triking [] the balance between 

discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative 

judgment with which [] judges should not interfere unless strongly convinced that the legislative 

judgment is grossly awry.” Griffin, 385 F.3d at 1131. It is inappropriate “for a federal district court 

to act as the state’s chief health official by taking [] step[s] for them.” Democratic Nat'l Comm., 

No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 57918, at *52.

C. The Supreme Court’s Purcell Doctrine Counsels Against Granting the 

Plaintiffs’ Injunction.

The United States Supreme Court has repeatedly held that judicial intrusion into elections 

must take account of “considerations specific to election cases.” Purcell, 549 U.S. at 4. These 

considerations include the fact that “[c]ourt orders affecting elections ... can themselves result in 

voter confusion and consequent incentive to remain away from the polls.” Id. at 4-5. “As an 

election draws closer, that risk will increase.” Id. at 5. Courts must therefore weigh such factors as 

the harms associated with judicial action or inaction, the proximity of the upcoming election, the 

“possibility that the nonprevailing parties would want to seek” further review, and the risk of

“conflicting orders” from such review. Id. at 4-5.

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 9 of 40
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Just as Plaintiffs have done here, plaintiffs across the Country have filed suits claiming that 

due to COVID-19, federal courts should interfere with election procedures—particularly as it 

pertains to absentee ballots. In deciding these cases, many federal courts decided to follow the 

logic of Purcell and stay out of elections and denied requests for temporary or emergency 

injunctive relief. See, e.g., Order Den. Temp. Restraining Order, Williams v. DeSantis; 1:20-cv00067-RH-GRJ (Mar. 17, 2020), ECF No. 12; Order Den. Renewed Mot. for Temp. Restraining 

Order & In Part Mot. for Prelim. Inj., Williams v. DeSantis, 1:20-cv-00067-RH-GRJ (Mar. 18, 

2020), ECF No. 18; Order Den. Mot. for Temp. Restraining Order and Prelim. Inj., Mays v. 

Thurston, 4:20-cv-00341-JM (Mar. 30, 2020), ECF No. 11; Order Den. Mot. for Temp. Restraining 

Order and Prelim. Inj., League of Women Voters of Ohio v. LaRose, 2:20-cv-01638-MHW-EPD 

(Apr. 3, 2020), ECF No. 57. 

Recently, on April 6, 2020, in the Wisconsin Case discussed supra Section I.B, the United 

States Supreme Court stayed a district court order that permitted absentee ballots to be cast after 

the election deadline.4 See Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 

589 U.S. __, 2020 U.S. LEXIS 2195, at *1-2 (Apr. 6, 2020) (per curiam). The Supreme Court 

admonished the district court for “changing the election rules so close to the election date,” noting 

that such action “contravened” Supreme Court precedent, which “has repeatedly emphasized that 

4 The Seventh Circuit had declined to stay this portion of the district court’s order as they had done with the absentee 

ballot witness requirement provision discussed above. With this stay from the U.S. Supreme Court, the majority of 

the provisions from the Wisconsin district court’s order have now been stayed. Additionally, just days after the U.S. 

Supreme Court stayed the order in the Wisconsin Case, after discussing the unique circumstances in which we find 

ourselves with COVID-19, a different Wisconsin U.S. District Court declined to adjust election procedures, citing the 

recent U.S. Supreme Court stay and Purcell as controlling. Taylor v. Milwaukee Election Comm'n, No. 20-cv-545-pp, 

2020 U.S. Dist. LEXIS 60496 (E.D. Wis. Apr. 6, 2020).

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 10 of 40
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lower federal courts should ordinarily not alter the election rules on the eve of the election.” Id. at 

*2-3 (citing Purcell, 549 U.S. 1). Here, with the June election, and the printing and mailing-out of 

ballots, just weeks away, and with the all-but-certain upcoming appeals of this Court’s decision, 

any action from this Court granting the requested relief is contrary to the public interest because it 

would likely result in “voter confusion and consequent incentive” not to vote. Purcell, 549 U.S. at 

4-5. Therefore, given the United States Supreme Court’s decisions in Purcell and its progeny, 

including the recent decision regarding the judicial interference in the Wisconsin Case in the 

upcoming election and the Seventh Circuit’s reversal of the district court, this Court should not 

grant the requested relief for the upcoming Texas elections. Plaintiffs’ request for a preliminary 

injunction should be denied.

CONCLUSION

For the foregoing reasons, Amicus Curiae respectfully requests this Court deny the 

Plaintiffs’ Motion for Preliminary Injunction.

This the 13th day of May, 2020. Respectfully submitted, 

REPUBLICAN PARTY OF TEXAS

Wade Emmert*

General Counsel

Republican Party of Texas

Texas State Bar No. 00793688

Emmert Law Firm, PC

100 Crescent Court, Suite 700

By: /s/ Dallin B. Holt 

Dallin B. Holt

Texas State Bar No. 24099466

Holtzman Vogel Josefiak Torchinsky PLLC

34 N. Hill Dr., Suite 100

Warrenton, VA 20186

Telephone: (540) 341-8808

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 11 of 40
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Dallas, TX 76013

Telephone: (469) 607-4502

Facsimile: (469) 436-6378

wade@emmertlaw.com

*Counsel admitted but currently on inactive status. 

Readmission fee submitted.

ATTORNEYS FOR AMICUS CURIAE

Facsimile: (540) 341-8809

dholt@hvjt.law

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 12 of 40
Exhibit A

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 13 of 40

Finally,	the	Wisconsin	Department	of	Health	Services	announced	on	April	22	that	19	people	

who	either	voted	in	person	or	worked	at	the	polls	on	April	7	have	tested	positive	for	SARSCoV-2,	although	several	of	these	people	also	experienced	non-voting	exposures [8].	This	

fact	is	not	inconsistent	with	our	population-level	analysis,	because	19	cases	is	small	relative	

to	the	total	number	of	confirmed	cases	in	Wisconsin.	To	put	this	information	into	

perspective,	if	we	assume	that	the	SARS-CoV-2	fatality	rate	among	symptomatic	patients	

who	were	physically	capable	of	voting	in	person	on	April	7	(e.g.,	not	including	nursing	

home	residents)	is	1% (using	the	fatality	rate	of	known	cases	for	people	aged	<60	[9]),	then	

we	would	expect	0.19	deaths	out	of	300,000	people,	which	is	the	fatality	risk	of	driving	an	

automobile	approximately	50	miles [10].	However,	in	addition	to	the	individual	risk	of	

voting	on	April	7,	there	is	the	community	risk:	how	many	downstream	cases	will	these	19	

original	cases	generate?	According	to	Fig.	1B,	the	reproduction	number	in	Wisconsin	has	

been	hovering	near	the	value	of	one	for	all	of	April.	If	this	value	was	much	larger	than	one	

(as	it	was	in,	say,	January)	then	these	19	cases	would	cause	a	lot	of	downstream	damage,	

and	if	this	value	was	clearly	smaller	than	one	then	they	would	cause	minimal	damage.	But	a	

value	near	one,	coupled	with	the	small	number	of	cases,	means	that	it	is	very	difficult to	

reliably	predict	the	amount	of	downstream	damage.	

Taken	together,	it	appears	that	voting	in	Wisconsin	on	April	7	was	a	low-risk	activity.

It is made available under a CC-BY-NC-ND 4.0 International license . 

(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint 

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 15 of 40

1. 2020	spring	election	and	presidential	preference	vote	ballot	status	as	of	April	17,	2020.	

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

04/Ballot%20Data%20as%20of%20April%2017%202020.pdf

2. Wisconsin	Election	Commission.	Summary	of	April	7,	2020	election.	Accessed	at	

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

04/April%207%20Election%20Summary%20and%20Next%20Steps.pdf

3. Spicuzza	M.	‘A	very	sad	situation	for	voters’:	Milwaukeeans	brave	wait	times	as	long	as	

2	1⁄2	hours,	top	election	official	says.	Milwaukee	Journal	Sentinel,	April	7,	2020.	

4. Wisconsin	Department	of	Health	Services.	Coronavirus	Disease	2019	(COVID-19)	

Situation	Report.	Publication	P-02624,	March	25,	2020.	

5. Wallinga	J,	Teunis	P.	Different	epidemic	curves	for	severe	acute	respiratory	syndrome

reveal	similar	impacts	of	control	measures.	Am	J	Epidemiology	2004;160:509-516.

6. Cori	A,	Ferguson	NM,	Fraser	C,	Cauchemez	S.	A	new	framework	and	software	to	

estimate	time-varying	reproduction	numbers	during	epidemics.	Am	J	Epidemiol.	

2013;178:1505-12.

7. Wisconsin	COVID-19	Historical	Cases	by	State	Boundary as	of	April	19. Accessed	at

https://data.dhsgis.wi.gov/datasets/wisconsin-covid-19-historical-cases-stateboundary

8. Stracqualursi	V,	Phillip A.	19	coronavirus	cases	connected	to	Wisconsin	primary	

election,	state	health	official	says.	cnn.com,	April	22,	2020.	Accessed	at	

https://www.cnn.com/2020/04/22/politics/wisconsin-april-7-election-coronaviruscases/index.html

9. Verity	R,	Dorigatti	I,	Winskill	P et	al.	Estimates	of	the	severity	of	coronavirus	disease	

2019:	a	model-based	analysis.	Lancet	2020;395:published	online	on	March	30,	2020.

10. National	Safety	Board.	Injury	facts.	Accessed	on	April	22,	2020	at	

https://injuryfacts.nsc.org/motor-vehicle/historical-fatality-trends/deaths-and-rates/

It is made available under a CC-BY-NC-ND 4.0 International license . 

(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint 

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It is made available under a CC-BY-NC-ND 4.0 International license . 

(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

medRxiv preprint doi: https://doi.org/10.1101/2020.04.24.20078345.this version posted April 29, 2020. The copyright holder for this preprint 

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 18 of 40

inferred	to	be	gamma with	mean	5.4 and	SD	4.7 days	from	the	dates	of	symptom	onset	of	

56	infector-infectee	pairs	from	mainland	China [4].

1. Goldstein	E,	Dushoff	J,	Ma	J	et	al.	Reconstructing	influenza	incidence	by	deconvolution	of	

daily	mortality	time	series.	PNAS	2009;106:21825-29.

2. Wu	JT,	Ho	A,	Ma	ESK	et	al.	Estimating	infection	attack	rates	and	severity	in	real	time	

during	an	influenza	pandemic:	analysis	of	serial	cross-sectional	serologic	surveillance	

data.	PLOS	Medicine	2011;8,10:e1001103.		

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coronavirus-infected	pneumonia.	N	Engl	J	Med	2020;382:1199-1207.

4. Leung	K,	Wu	JT,	Leung	GM.	First-wave	COVID-19	transmissibility	and	severity	in	China	

outside	Hubei	after	control	measures,	and	second-wave	scenario	planning:	a	modelling	

impact	assessment.	Lancet	2020;395:published	online	April	8.

5. Wallinga	J,	Teunis	P.	Different	epidemic	curves	for	severe	acute	respiratory	syndrome	

reveal	similar	impacts	of	control	measures.	Am	J	Epidemiology	2004;160:509-516.

6. Cori	A,	Ferguson	NM,	Fraser	C,	Cauchemez	S.	A	new	framework	and	software	to	

estimate	time-varying	reproduction	numbers	during	epidemics.	Am	J	Epidemiol.	

2013;178:1505-12.

It is made available under a CC-BY-NC-ND 4.0 International license . 

(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

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Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 20 of 40
Exhibit B

Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 21 of 40
1

Wisconsin April 2020 Election Not Associated with Increase in COVID-19 

Infection Rates 

Andrew C. Berry, D.O.1; Madhuri S. Mulekar, Ph.D2; Bruce B. Berry, M.D.3 

1 Department of Medicine, Division of Gastroenterology, Larkin Community Hospitals, South 

Miami, FL, USA##

2 Department of Mathematics and Statistics, University of South Alabama, Mobile, AL, USA 

3 Community Physicians, Froedtert & The Medical College of Wisconsin, Milwaukee, WI, 

USA#

April 23, 2020 

Abstract: 

Background: Wisconsin (WI) held a primary election in the midst of the COVID-19 pandemic. 

Live voting at polls was allowed despite concern over increasing the spread of COVID-19. In 

addition to 1.1 million absentee ballots cast, 453,222 persons voted live. The purpose of our 

study was to determine if an increase in COVID-19 activity was associated with the election. 

Methods: Using the voting age population for the United States (US), WI, and its 3 largest 

counties, and daily new COVID-19 case reports from various COVID-19 web-based dashboards, 

daily new case rates were calculated. With election day April 7, the incubation period included 

April 12-21. The new case activity in the rest of the US was compared with the Wisconsin 

activity during the incubation period.

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 2

Results: WI daily new case rates were lower than those of the rest of the US for the 10-day 

period before the election and remained lower during the post exposure incubation period. The 

ratio of Wisconsin new case rates to US new case rates was 0.34 WI: 1 US for the 10 days 

leading up to the election and declined to 0.28 WI: 1 US for the 10-day post-incubation period 

after the election. Similar analysis for Milwaukee county showed a pre-election ratio of 1.02 

Milwaukee: 1 US and after the election the ratio was 0.63 Milwaukee: 1 US. Dane county had a 

pre-election ratio of 0.21 Dane: 1 US case, and it fell to 0.13 Dane: 1 US after the election. 

Waukesha county had a pre-election ratio of 0.27 Waukesha: 1 US case and that fell to 0.19 

Waukesha: 1 US after the election. 

Conclusions: 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. 

#

Article Guarantor Contact: Bruce B. Berry, M.D. Community Physicians, Froedtert & The 

Medical College of Wisconsin, Milwaukee, WI, USA. Email: bbberry2018@gmail.com 

##Corresponding Author and Media Contact: Andrew C Berry, D.O. Department of Medicine, 

Division of Gastroenterology, Larkin Community Hospitals. Email: ABerry5555@gmail.com 

 

 

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Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 23 of 40
 3

Introduction: 

Since the World Health Organization declared SARS-CoV-2 (COVID-19) a global pandemic on 

March 11, 2020, drastic social distancing measures have been declared across the United 

States1and in Wisconsin by Governor Evers Safer at Home Order 2. Many businesses and social 

activities have been closed and minimized, leading to unrest about individual freedoms. The 

intricate balance between constitutional voting rights and public health took front seat on April 7, 

2020, the scheduled primary election date for the state of Wisconsin. The presidential primary 

election, a key state Supreme Court justice election, and numerous local office elections were on 

the ballot for April 7. 

A U.S. District judge rejected a request to postpone the election, but provided an extension for 

absentee ballots. Later, the Supreme Court cancelled the extended period for absentee voting,3

and on April 7, the election occurred, a mixture of live and absentee mail in voting. Absentee 

ballots needed to be postmarked by April 7 to count, causing a change in many voter’s plans. 

We aimed to see whether a subsequent rise in COVID-19 cases followed the controversial inperson Wisconsin election on April 7, 2020. Not only may this impact local public health 

actions, but could impact future election behaviors. 

Methods: 

Websites for new COVID-19 daily cases were visited daily to obtain new case data for the 

United States (US)4, Wisconsin5, Milwaukee county6, Dane county7, and Waukesha county8. 

Those counties represented the largest 3 contingents of voter age adults in Wisconsin and were 

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 4

counties where COVID-19 was active during election time. The number of new cases reported 

by the websites daily were extracted, and the daily new case rates per 100,000 voting age (age 18 

or older) adults were calculated in those populations. Census data9 was used to obtain population 

data and age mix, then the number of voter age adults were calculated for the cohorts. The 

number of Wisconsin (WI) voters was subtracted from the US total, so the US data would 

represent all of the country excluding WI data. Daily new cases of COVID-19 infections 

extracted from the websites were then divided by the number of voter age adults in the cohorts to 

determine the daily new case rates. COVID-19 daily cases numbers from WI were removed to 

determine the number of new daily cases for US. The daily new COVID-19 cases were not 

adjusted for age (<3% under age 19)5. The study was exempt from IRB, it did not include 

protective health information and used data in the public domain exclusively. 

The median incubation period of the virus is 5 days10. With the election on April 7, we used 

April 12 as the first date to start monitoring the number of new COVID-19 cases that may be 

related to the election. We then continued the analysis for the full 14-day period following 

exposure, mimicking a self-quarantine period, as <1% are shown to develop symptoms after 14 

days10. Analysis of data from April 12-21 best represents the viral properties and course of action 

by the individual, from symptoms to testing to receiving results to being reported by the local 

health department. 

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Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 25 of 40
 5

Results:

Wisconsin’s April 7, 2020 election was completed and allowed live in-person voting, with 

subsequent voting characteristics listed in Table 1, for the three largest voting counties, state of 

Wisconsin, and US, which show considerably large number of live in-person voters. 

Figure 1 displays the daily rate of new cases of COVID-19 by day of the pandemic, for 

Wisconsin and the rest of the US, with curves visually mimicking each other. Figure 1 displays 

election day occurring on day 28 (highlighted), and the incubation period occurred during days 

33-42, five days post-election. Figure 2 provides a focused comparison between Wisconsin and 

the US for the 5-14 days post-election period. It does not suggest any spike in post-election cases 

in Wisconsin in relation to the rest of the US. 

The average rate of new cases of COVID-19 was 10.77 per 100,000 voting age adults (all rates 

are per 100,000 voting age adults) in the US for the 10 days leading up to the election on April 7, 

2020, and 11.62 for the 10-day incubation period following the election (April 12-21) (Table 2, 

Supplement A-B). Using the same time period, the average daily rate of new COVID-19 cases 

for Wisconsin was 3.65 before the election, and 3.23 for the 10-day incubation period following 

the election. 

The US and WI rates themselves, are of course different as the circumstances in the US are 

different than those in Wisconsin as it pertains to the course of pandemic, population mix, 

population densities, and many other factors. So, a ratio was determined to see if the correlation 

between the US and Wisconsin was consistent. Prior to the election, the Wisconsin daily rate of 

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Case 5:20-cv-00438-FB Document 41-1 Filed 05/13/20 Page 26 of 40
 6

new COVID-19 cases compared to that for the US rate was in a ratio of 0.34 WI:1 US (Table 2, 

Supplement A-B). The average daily new case rate after the election was 11.62 in the US 

compared to 3.23 in Wisconsin, with a ratio of 0.28 WI:1 US (Table 2, Supplement A-B). After 

the election the ratio of new daily case activity in Wisconsin compared to the rest of the US 

dropped from its pre-election level, suggesting the rate of development of new cases was 

decreasing following the election compared to what would have been expected if the relationship 

between Wisconsin and the rest of the US had continued at its pre-election ratio. 

The daily rate of new cases of COVID-19 by day of the pandemic for each of the three 

Wisconsin counties with the most voting age residents—Milwaukee, Dane, and Waukesha—are 

shown in Figure 3, Figure 4, and Figure 5, respectively. The figures do not suggest any 

significant spike in cases in any one of these three counties as compared to the US during that 

time. Milwaukee county’s average rate of daily new COVID-19 cases (10.97 ) was nearly the 

same as the US (10.77), but higher than the Wisconsin rate of 3.65 for the 10 days prior to the 

election (Table 2, Supplement A-B). Following the election, the Milwaukee county rate dropped 

to 7.28, while the US rate increased to 11.62. Prior to the election the ratio between Milwaukee 

county and the US was 1.02 Milwaukee: 1 US. After the election the ratio went down to 0.63 

Milwaukee: 1 US, which is consistent with a drop in rate of new cases in Milwaukee county 

beyond what would have been expected should the relationship between Milwaukee county data 

and the rest of the US had continued at the pre-election ratios. 

A reduction in post-election new case rates was found for Dane county as well. Dane county 

started with an average new case daily rate of 3.68 which was lower than the US average (10.77) 

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 7

and it further dropped to 1.54 following the election. The ratio of new cases between Dane and 

the US was 0.21 Dane: 1 US before the election and 0.13 Dane: 1 US after the election (Table 2, 

Supplement A-B). Similarly, Waukesha county started with an average new daily case rate of 

2.92 prior to the election and it dropped to 2.16 after the election. The ratio of new case rates 

between Waukesha county and the rest of the US was 0.27 Waukesha: 1 US prior to the election 

and 0.19 Waukesha: 1 US after the election (Table 2, Supplement A-B). Both Dane and 

Waukesha counties showed a drop in new cases rates beyond what would have been expected 

should the relationship between the counties’ new case rates and the rest of the US had continued 

at the pre-election ratios. 

Discussion 

Our study did not find any significant increase in the rate of new COVID-19 cases following the 

April 7, 2020 election post-incubation period, for the state of Wisconsin or its three major voting 

counties, as compared to the US. Ethically, it is not possible to design a randomized study to 

investigate associations between an in-person voting event and the development of new COVID19 symptoms. The next best option would be to study two groups of people, matched for all the 

known risks factors for contracting COVID-19 such as age, gender, race, diabetes, hypertension, 

occupation, sick contacts, etc—but this remains an arduous task that is impractical. Our study 

compared the rate of new COVID-19 cases following the Wisconsin election to the rest of the 

US. Thus, we took a practical approach and observed that the COVID-19 activity in Wisconsin 

seemed to parallel the activity in the rest of the United States (Figure 1, Figure 2). Prior studies 

have shown that most people who are going to show symptoms do so between 5-14 days 

following an exposure9

. Thus, a 10-day period before the election was used to establish a ratio 

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 8

reflecting the relationship between Wisconsin and US rates and then was compared with the ratio 

observed during the 10-day incubation period following the potential COVID-19 exposure 

during the in-person election. 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 preelection ratios. Our initial hypothesis of an increase in COVID-19 activity following the live 

election was not supported. There is no scientific reason why the election would cause a 

reduction in COVID-19 cases and there is nothing about voting that seems protective against 

COVID-19. The explanation may lie in characteristics and behaviors of those involved. 

The concern that live voting in Wisconsin would cause a large spike in COVID-19 cases caused 

considerable turmoil in the days prior to election and an increase in absentee voting, that may 

have been a large factor in preventing an increase in COVID-19 activity. There were 1,551,711 

absentee ballots cast, but there were 453,222 ballots11 cast by voters who went to polls to vote 

and many stood in line for hours. With the heightened publicity around COVID-19 and the 

perceived risks associated with voting live, high-risk individuals may have self-selected 

themselves out of the live voting process. Protective measures at the polls may also have 

mitigated some of the risk associated with the increased social exposure. Maybe the 

characteristics of the live voters were more favorable to producing asymptomatic infections and 

many went undetected. A mixture of all those things likely contributed to the absence of an 

increase in daily new case daily rates following the election. In the three most populous 

Wisconsin counties, where 109,052 live ballots were cast, no significant increase in daily rates 

compared to the rest of the US (Figures 3-5) was observed. Similar to Wisconsin as a whole, 

those counties’ daily new case rates fell faster compared to the rest of the US as well. 

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 9

Individual cases of COVID-19 infections most likely occurred as a result of additional exposure 

from live voting. Contact tracing is very difficult at this time with potential for exposure virtually 

everywhere in the community, linking an individual to live voting as their sole risk is not 

possible. Although a designed experiment is not possible to answer the questions raised, the next 

best option would be a retrospective study where two groups of people are matched for all the 

known risks factors for contracting COVID-19 such as age, gender, race, diabetes, hypertension 

and many others. In a future retrospective study, one could extract characteristics about those 

people who voted live and those voted absentee, and then compare the new COVID-19 case rates 

for those with comparable characteristics. Even if the two groups could be matched for many of 

the known risk factors associated with developing COVID-19, it will still not be easy to control 

for their other exposures, activities of daily living, other household members, and the risk factors 

and behaviors of other household members. 

Conclusions: 

No evidence was found to support an increase in COVID-19 new daily case rates for the state of 

Wisconsin, nor its major voting counties, compared to the rest of the US following live voting on 

April 7,2020. We must continue to utilize our knowledge about COVID-19 and social distancing 

measures to create the safest and most effective voting environment for all. 

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Funding 

No funding by any organization or political member for this project or to any member of the 

research team. 

Contributions 

ACB and BBB both conceptualized and designed the study. MSM conducted data analysis. 

ACB, BBB, MSM designed, prepared, and finalized the manuscript. BBB is the article 

guarantor. 

Competing Interest 

ACB, BBB, MSM have nothing to declare. 

References 

1. WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 

March 2020. https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020. 11 March 2020. Accessed 

March 20, 2020. 

2. State of Wisconsin Department of Health Services. Emergency Order #12 Safer at Home 

Order. March 12,2020 

3. URGENT -- Wisconsin Supreme Court Orders Election Day to Continue and U.S. 

Supreme Court Alters Ballot Receipt Deadline; Tallying and Reporting Results Still 

Prohibited Until April 13 - COVID-19. https://elections.wi.gov/node/6824. Accessed 

April 20 2020. 

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(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

medRxiv preprint doi: https://doi.org/10.1101/2020.04.23.20074575.this version posted April 28, 2020. The copyright holder for this preprint 

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4. University of Virginia COVID19 Dashboard. Accessed at 

https://nssac.bii.virginia.edu/covid-19/dashboard. Last accessed April 22,2020 

5. Wisconsin Department of Health Services. COVID-19. Available at 

https://www.dhs.wisconsin.gov/covid-19/index.htm. Accessed April 22,2020. 

6. Milwaukee County COVID-19 Dashboard. Available at 

https://www.arcgis.com/apps/opsdashboard/index.html Accessed April 22.2020. 

7. Public Health Madison and Dane county. COVID-19 Dashboard. Available at 

www.cityomadisonmaps.arcgis.com Accessed April 22,2020. 

8. Waukesha county Public Health. COVID-19 Dashboard. Available at 

www.waukeshacounty.maps.arcgis.com Accessed April 22, 2020. 

9. Census.gov 2019. Available at www.census.gov. Accessed April 22,2020. 

10. Lauer SA, Grantz KH, Bi Q, et al. The Incubation Period of Coronavirus Disease 2019 

(COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application. Ann 

Intern Med. 2020; [Epub ahead of print 10 March 2020]. 

11. Wisconsin Elections Commission. Spring election and presidential preference primary 

April 7, 2020. Available at www.elections.wi.gov. Accessed April 19, 2020 

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(which was not certified by peer review) is the author/funder, who has granted medRxiv a license to display the preprint in perpetuity. 

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 12

Table 1: Election Demographics for Wisconsin, Wisconsin Three Major Counties, and 

United States (US)

Wisconsin Milwaukee County Dane County Waukesha County US

Population 5,822,434 945,726 456,695 404,198 328,239,523

Voting Age Adults 4,360,176 737,666 356,222 315,274 254,713,870

Ballots Cast Total 1,551,711 210,068 201,613 140,068

Absentee Ballots Cast 1,098,489 168,882 155,195 118,620

Live Votes Cast 453,222 41,186 46,418 21,448

% Absentee Voting 70.8 80.4 77 84.7

Table 2: Pre and Post-Election Daily New Case Rates and Ratios Comparing United States 

(US), Wisconsin, and Wisconsin Three Major Counties 

Mean Daily Rate New Cases per 100,000 Voting Age Adults (with Ratios)

US WI WI:US Milwaukee Milwaukee:US Dane Dane:US Waukesha Waukesha:US

PRE-Election 10-Day Period 10.77 3.65 0.34 10.97 1.02 3.68 0.21 2.92 0.27

POST-Election 10-Day Period 11.62 3.23 0.28 7.28 0.63 1.54 0.13 2.16 0.19

(Days 5-14 Post Election)

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 13

Figure 1: 

Highlight: Election Day April 7, 2020 

3

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 14

Figure 2: 

4

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Figure 3: 

5

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 16

Figure 4: 

6

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 17

Figure 5: 

7

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 18

Supplement Table A: Complete Data of Pre and Post-Election Daily New Case Rates and 

Ratios Comparing United States (US) and Wisconsin 

Date Pre/Post US Daily New US Daily New US Mean Daily WI Daily New WI Mean Daily WI:US Ratio

Election April 7 Cases Cases Sans WI New Case Rate Cases New Case Rate New Case Rate

29-Mar 18403 18280 123

30 21569 21460 109

31 25130 25000 130

1-Apr 26962 26763 199

2 28874 28694 180

3 32856 32670 186

4 33761 33565 196

5 25693 25538 155

6 30507 30334 173

7 31481 31343 138

MEAN 27524 10.77 159 3.65 0.34

12-Apr 27834 27706 128

13 26240 26153 87

14 26867 26740 127

15 30059 29893 166

16 32557 32403 154

17 35534 35364 170

18 28615 28461 154

19 30012 29865 147

20 28891 28738 153

21 26388 26267 121

MEAN 29300 29599 11.62 141 3.23 0.28

WI: Wisconsin 

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 19

Supplement Table B: Complete Data of Pre and Post-Election Daily New Case Rates and 

Ratios Comparing United States (US) and Three Major Wisconsin Counties 

Date Pre/Post MKE Daily MKE Mean Daily MKE:US Ratio DANE Daily DANE Mean Daily DANE:US Ratio WAUK Daily WAUK Mean Daily WAUK:US Ratio

Election April 7 New Cases New Case Rate New Case Rate New Cases New Case Rate New Case Rate New Cases New Case Rate New Case Rate

29-Mar 50 11 12

30 72 9 7

31 95 22 7

1-Apr 84 18 13

2 80 6 9

3 93 14 16

4 101 17 6

5 92 11 6

6 42 12 8

7 100 11 8

MEAN 80.9 10.97 1.02 13.1 3.68 0.21 9.2 2.92 0.27

`

12 49 7 9

13 58 3 6

14 67 6 12

15 72 2 10

16 35 2 9

17 86 7 8

18 37 2 6

19 28 4 1

20 50 17 2

21 55 5 5

MEAN 53.7 7.28 0.63 5.5 1.54 0.13 6.8 2.16 0.19

MKE: Milwaukee 

WAUK: Waukesha 

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