Oct. 8, 2020 – On Tuesday, the Wisconsin Supreme Court ruled (4-3) that the Wisconsin Legislature has authority to represent the state’s interests in the validity of state laws, a win for Republicans seeking to block election deadline extensions granted amidst COVID-19.

That decision, coupled with a decision from the U.S. Court of Appeals for the Seventh Circuit today, means that a prior federal district court decision to extend certain deadlines related to the November general election is no longer applicable.

Today, the Seventh Circuit Court of Appeals (2-1) blocked the extended deadlines after granting reconsideration “in light of” the Wisconsin Supreme Court’s decision.

The Seventh Circuit’s three-judge panel agreed with the Wisconsin Legislature that a federal court should not change the rules so close to an election and “political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid.”

The federal appeals court panel rendered its decision within two days after the Wisconsin Supreme Court answered a certified question the Seventh Circuit asked it to answer concerning the Legislature's standing to appeal. The court had previously ruled the Wisconsin Legislature did not have standing.

On reconsideration, though, Seventh Circuit Court of Appeals Judges Frank Easterbrook and Amy St. Eve voted to block the extensions. Judge Illana Rovner dissented.

“The district court ordered five modest changes to Wisconsin’s election rules aimed at minimizing the number of voters who may be denied the right to vote,” Judge Rovner wrote.

“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices. Good luck and G-d bless, Wisconsin. You are going to need it.”

Deadline Dispute

In September, the Democratic National Committee and the Democratic Party of Wisconsin moved for a preliminary injunction against the Wisconsin Election Commission, an executive agency charged with enforcing Wisconsin’s election laws.

The plaintiff-Democrats argued that – during the COVID-19 pandemic – enforcement of Wisconsin election law deadlines pertaining to voter registration and absentee ballots, among other conduct of elections, would unduly burden voters’ right to vote.

The Republican-controlled Wisconsin Legislature, the Republican National Committee, and the Republican Party of Wisconsin intervened as defendants.

The U.S. District Court for the Western District of Wisconsin, on Sept. 21, granted the preliminary injunction and extended certain deadlines, including deadlines affecting voter registration and absentee ballots for the upcoming November general election.

For instance, the district judge granted an additional week, to Oct. 21, for online and mail-in voter registration, and extended the receipt deadline for absentee ballots to Nov. 9 (instead of Nov. 3), so long as the ballots were postmarked on or before Nov. 3.

But the judge stayed that decision for one week to give the Wisconsin Legislature an opportunity to file an emergency appeal to the Seventh Circuit Court of Appeals.

The Wisconsin Legislature did so, asking the appeals court to block the district court’s decision.

On Sept. 29, the Seventh Circuit Court of Appeals declined to block the extensions in a per curiam opinion, concluding the Legislature did not have standing to appeal.

Seventh Circuit Says No Standing

In a prior stage of related litigation, the Seventh Circuit Court of Appeals upheld Wis. Stat. section 803.09(2m), ruling it “permits the legislature to act as a representative of the state itself, with the same rights as the Attorney General of Wisconsin.”

Wis. Stat section 803.09(2m) – enacted in 2018 after Gov. Tony Evers won the gubernatorial election but before he took office – states that “the assembly, the senate, and the legislature may intervene” when a party challenges the constitutionality of a statute or challenges the construction or validity of a statute in state or federal court.

The legislature pointed to that ruling as a basis to appeal the district court’s decision, as the law of the case. But the Seventh Circuit Court of Appeals ruled that “intervening authority can justify a departure from the law of the case.” In this case, the intervening authority was a decision from the Wisconsin Supreme Court, the appeals court noted.

In July of last year, the Wisconsin Supreme Court – in SEIU v. Vos, 2020 WI 67 (July 9, 2020) – largely upheld the Wisconsin Legislature’s 2018 lame duck legislation.

The legislation granted and reserved to the Wisconsin Legislature more power with respect to litigation involving the State of Wisconsin’s interests while curtailing those same powers previously granted to the state’s attorney general, currently Josh Kaul.

On the question of the legislature’s involvement in litigation, a Wisconsin Supreme Court majority ruled that the separation of powers between the executive and legislative branches does not prohibit the legislature’s involvement in litigation involving the state.

That is, the majority found no constitutional violation in allowing the legislature to intervene in litigation concerning the validity of a statute, “at least where its institutional interests are implicated,” such as when litigation impacts the state’s treasury.

But the Seventh Circuit Court of Appeals ruled that the Wisconsin Legislature, in the current case, did not have an institutional interest in the litigation.

“Under Vos the legislature may represent its own interest … which puts Wisconsin in agreement with federal decisions such as Arizona Independent Redistricting Commission, but that proviso does not allow the legislature to represent a general state interest in the validity of enacted legislation,” the per curiam opinion states. “That power belongs to Wisconsin's executive branch under the holding of Vos.”

“None of the appellants has suffered an injury to its own interests, and the state's legislative branch is not entitled to represent Wisconsin's interests as a polity. The suit in the district court presented a case or controversy because the plaintiffs wanted relief that the defendants were unwilling to provide in the absence of a judicial order.”

The Seventh Circuit, in its Sept. 29 decision, gave the Wisconsin Legislature one week to show cause why the appeals should not be dismissed for lack of jurisdiction.

On reconsideration, the U.S. Court of Appeals for the Seventh Circuit decided that it would be appropriate to certify the following question of state law to the Wisconsin Supreme Court: “whether, under Wis. Stat. § 803.09(2m), the Wisconsin Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws.”

Back to the Wisconsin Supreme Court

In Democratic National Committee et al. v. Bostelmann et al., 2020 WI 80 (Oct. 6, 2020), a 4-3 majority of the Wisconsin Supreme Court ruled in the affirmative.

The majority opinion, by Justice Hagedorn, said the majority’s decision in Vos was limited. “This court did not hold or imply that the institutional interests discussed were the only circumstances in which these laws could be enforced consistent with the Wisconsin Constitution,” wrote Justice Hagedorn, joined by Chief Justice Patience Roggensack, Justice Annette Ziegler, and Justice Rebecca Bradley.

“Rather, we more narrowly concluded that certain institutional interests defeated the facial challenge,” he wrote. “While the institutional interests discussed were sufficient for us to conclude the statute survived a facial challenge, we never concluded those or any other interests were necessary for the statute to be constitutionally applied.”

The majority concluded that section 803.09(2m) “unmistakably grants the Legislature an interest in defending the validity of state law when challenged in court” and noted that intervenors have all the same rights as parties to the action, including appeal rights.

Justice Rebecca Dallet wrote a dissent, joined by Justices Ann Walsh Bradley and Jill Karofsky. The dissent concluded that section 803.09(2m) gives the legislature authority to represent its own interests, but not the state’s interests as a whole.

Today (Oct. 8), the U.S. Court of Appeals for the Seventh Circuit, in light of the Wisconsin Supreme Court’s answer, granted reconsideration and stayed the federal district court’s decision pending final disposition of the appeals.

That means the extended deadlines are not in play for the November general election, unless another decision says otherwise.