DEMOCRATIC NATIONAL COMMITTEE, et al.
Nos. 20-2835 & 20-2844
United States Court of Appeals, Seventh Circuit
OCTOBER 8, 2020
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2835 & 20-2844
DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs-Appellees,
v.
MARGE BOSTELMANN, SECRETARY OF THE WISCONSIN
ELECTIONS COMMISSION, et al.,
Defendants,
and
WISCONSIN STATE LEGISLATURE, REPUBLICAN NATIONAL
COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 20-cv-249-wmc, et al. — William M. Conley, Judge.
____________________
SUBMITTED OCTOBER 6, 2020 — DECIDED OCTOBER 8, 2020
____________________
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
denying the motions for a stay in these appeals, because we
concluded that Wisconsin’s legislative branch has not been
authorized to represent the state’s interest in defending its
statutes. On October 2, in response to a request for reconsideration, we certified to the Supreme Court of Wisconsin the
question “whether, under
Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws.” That court accepted the certification and replied that the State Legislature
indeed has that authority. Democratic National Committee v.
Bostelmann, 2020 WI 80 (Oct. 6, 2020). In light of that conclusion, we grant the petition for reconsideration and now address the Legislature’s motion on the merits. (The other intervenors have not sought reconsideration.)
As we explained last week, a district judge held that
many provisions in the state’s elections code may be used
during the SARS-CoV-2 pandemic but that some deadlines
must be extended, additional online options must be added,
and two smaller changes made. 2020 U.S. Dist. LEXIS 172330
(W.D. Wis. Sept. 21, 2020). In particular, the court extended
the deadline for online and mail-in registration from October
14 (see
one week (October 22 to October 29) enforcement of the requirement that the clerk mail all ballots, but only for those
voters who timely requested an absentee ballot but did not
receive one, and authorized online delivery during this time;
and extended the deadline for the receipt of mailed ballots
from November 3 (Election Day) to November 9, provided
that the ballots are postmarked on or before November 3.
Two other provisions of the injunction (2020 U.S. Dist. LEXIS
172330 at *98) need not be described.
The State Legislature offers two principal arguments in
suрport of a stay: first, that a federal court should not change
the rules so close to an election; second, that political rather
than judicial officials are entitled to decide when a pandemic
justifies changes to rules that are otherwise valid. See Luft v.
Evers, 963 F.3d 665 (7th Cir. 2020) (sustaining Wisconsin’s
rules after reviewing the elections code as a whole). We
agree with both of those arguments, which means that a stay
is appropriate under the factors discussed in Nken v. Holder,
556 U.S. 418, 434 (2009).
For many years the Supreme Court has insisted that federal courts not change electoral rules close to an election
date. One recent instance came in an earlier phase of this
case. After the district judge directed Wisconsin to change
some of its rules close to the April 2020 election, the Supreme
Court granted a stay (to the extent one had been requested)
and observed that the change had come too late. Republican
National Committee v. Democratic National Committee, 140 S. Ct.
1205, 1207 (2020). One of the decisions cited in that opinion
is another from Wisconsin: Frank v. Walker, 574 U.S. 929
(2014). In Frank this court had permitted Wisconsin to put its
photo-ID law into effect, staying a district court’s injunction.
But the Supreme Court deemed that change (two months
before the election) too late, even though it came at the
state’s behest. (Frank did not give reasons, but Republican
National Committee treated Frank as an example of a change
made too late.) Here the district court
on September 21, only six weeks before the election and less
than four weeks before October 14, the first of the deadlines
that the district court altered. If the orders of last April, and
in Frank, were too late, so is the district court’s September
order in this case. See also Purcell v. Gonzalez, 549 U.S. 1
(2006).
The Justices have deprecated but not forbidden all
change close to an election. A last-minute event may require
a last-minute reaction. But it is not possible to describe
COVID-19 as a last-minute event. The World Health Organization declared a pandemic seven months ago, thе State of
Wisconsin closed many businesses and required social distancing last March, and the state has conducted two elections (April and August) during the pandemic. If the judge
had issued an order in May based on April’s experience, it
could not be called untimely. By waiting until September,
however, the district court acted too close to the election.
The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice Kavanaugh observed in connection with the
Supreme Court’s recent stay of another injunction issued
close to the upcoming election. Andino v. Middleton, No.
20A55 (U.S. Oct. 5, 2020) (Kavanaugh, J., concurring). The
Supreme Court has held that the design of electoral procedures is a legislative task. See, e.g., Rucho v. Common Cause,
139 S. Ct. 2484 (2019); Burdick v. Takushi, 504 U.S. 428 (1992).
Voters have had many months since March to register or
obtain absentee ballots; reading the Constitution to extend
deadlines near the election is difficult to justify when the
voters have had a long time to cast ballots while preserving
social distancing. The pandemic has had consequences (and
appropriate governmental responses) that change with time,
but the fundamental proposition that social distancing is
necessary has not changed since March. The district court
did not find that any person who wants to avoid voting in
person on Election Day would be unable to cast a ballot in
Wisconsin by planning ahead and taking advantage of the
opportunities allowed by state law. The problem that concerned the district judge, rather, was the difficulty that could
be encountered by voters who do not plan ahead and wait
until the last day that state law allows for certain steps. Yet,
as the Supreme Court observed last April in this very case,
voters who wait until the last minute face problems with or
without a pandemic.
The Court has consistently stayed orders by which federal judges have used COVID-19 as a reason to displace the
decisions of the policymaking branches of government. It
has stayed judicial orders about elections, prison management, and the closure of businesses. We have already mentioned Andino and Republican National Committee. See also
Clarno v. People Not Politicians Oregon, No. 20A21 (U.S. Aug.
11, 2020) (staying an injunction that had altered a state’s signature and deadline requirements for placing initiatives on
the ballot during the pandemic); Merrill v. People First of Alabama,
No. 19A1063 (U.S. July 2, 2020) (staying an injunction
that had suspended some state anti-fraud rules for absentee
voting during the pandemic); Barnes v. Ahlman, 140 S. Ct.
2620 (2020) (staying an order that overrode a prison warden’s decision about how to cope with the pandemic); Little
that changed the rules for ballot initiatives during the pandemic); South Bay United Pentecostal Church v. Newsom, 140 S.
Ct. 1613 (2020) (declining to suspend state rules limiting
public gatherings during the pandemic).
Deciding how best to cope with difficulties caused by
disease is principally a task for the elected branches of gov-
ernment. This is one implication of Jacobson v. Massachusetts,
197 U.S. 11 (1905), and has been central to our own decisions
that have addressed requests for the Judicial Branch to supersede political officials’ choices about how to deal with the
pandemic. See, e.g., Tully v. Okeson, No. 20-2605 (7th Cir. Oct.
6, 2020) (rejecting a contention that the Constitution entitles
everyone to vote by mail during a pandemic); Illinois Republican Party v. Pritzker, No. 20-2175 (7th Cir. Sept. 3, 2020) (rejecting a constitutional challenge to limits on the size of political gatherings during the pandemic); Peterson v. Barr, 965
F.3d 549 (7th Cir. 2020) (reversing an injunction that had alterеd procedures for executions during the pandemic); Morgan v. White, 964 F.3d 649 (7th Cir. 2020) (social distancing
during a pandemic does not require, as a constitutional
matter, a change in the rules for qualifying referenda for the
ballot); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d
341 (7th Cir. 2020) (rejecting a constitutional challenge to
limits on the size of religious gatherings during the pandemic). Cf. Mays v. Dart, No. 20-1792 (7th Cir. Sept. 8, 2020) (reversing, for legal errors, an injunction that specified how
prisons must be managed during the pandemic).
The injunction issued by the district court is stayed pending final disposition of these appeals.
DEMOCRATIC NATIONAL COMMITTEE, et al.
Nos. 20-2835 & 20-2844
United States Court of Appeals, Seventh Circuit
OCTOBER 8, 2020
ROVNER, Circuit Judge, dissenting. In the United States of
America, a beacon of liberty founded on the right of the people to rule themselves, no citizen should have to choose between her health and her right to vote. An election system designed for in-person voting, coupled with an uncontrolled
pandemic that is unprecedented in our lifetimes, confronts
Wisconsin voters with that very choice. In the April 2020 election, Wisconsin voters sought overwhelmingly to protect
themselves by voting absentee. Yet at least 100,000 of them,
despite timely requests, did not receive their ballots in time to
return them by election day, as the Wisconsin election code
requires. Only as a result of judicial intervention in the April
2020 election were some 80,000 absentee ballots, their return
delayed by an overwhelmed election apparatus and Postal
Service, rescued from the trash bin. Thousands of additional
voters who never received their ballots were forced to stand
in line for hours on election day waiting to vote in person,
risking their well-being by doing so.
For purposes of the upcoming November election, the district court ordered a limited, reasonable set of modifications
to Wisconsin’s election rules designed to address the very
problems that manifested in the April election and to preserve
the precious right of each Wisconsin citizen to vote. Its two
most important provisions are comparable to those this very
court sustained six months ago. The Wisconsin Election Commission, whose members are appointed by the Legislature
and the Governor and are charged with administering the
State’s elections, has acceded to that injunction. It is not here
complaining of
court’s decision or any risk of voter confusion. Only the Wisconsin Legislature, which has chosen to make no accommodations in the election rules to accоunt for the burdens created
by the pandemic, seeks a stay of the injunction in furtherance
of its own power.
Today, by granting that stay, the court adopts a hands-off
approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote. It does so
on two grounds: (1) the Supreme Court’s Purcell doctrine, as
exemplified by the Court’s recent shadow-docket rulings, in
the majority’s view all but forbids alterations to election rules
in the run-up to an election; and (2) in times of pandemic, revisions to election rules are the province of elected state officials rather than the judiciary. With respect, I am not convinced that either rationale justifies a stay of the district
court’s careful, thorough, and well-grounded injunction. At a
time when judicial intervention is most needed to protect the
fundamental right of Wisconsin citizens to choose their
elected representatives, the court declares itself powerless to
do anything. This is inconsistent both with the stated rationale
of Purcell and with the Anderson-Burdick framework, which
recognizes that courts can and must intervene to address unacceptable burdens on the fundamental right to vote. The inevitable result of the court’s decision today will be that many
thousands of Wisconsin citizens will lose their right to vote
despite doing everything they reasonably can to exercise it.
This is a travesty.
On the facts of the case, I see no deviation from Purcell. In
all of two sentences, Purcell articulated not a rule but a caution: take care with last-minute changes to a state’s election
rules, lest voters become confused and discouraged from voting. Purcell v. Gonzalez, 549 U.S. 1, 4–5, 127 S. Ct. 5, 7 (2006)
(per curiam).1 In a series of stay rulings on its shadow docket
since that decision, the Supreme Court has evinced a pronounced skepticism of judicial intervention in the weeks prior
to an election, e.g. Andino v. Middleton, — S. Ct. —, 2020 WL
5887393 (U.S. Oct. 5, 2020), but has put little meat on the bones
of what has become known as the Purcell doctrine. See Nicholas Stephanopoulos, Freeing Purcell from the Shadows, Election
Law Blog (Sept. 27, 2020) (hereinafter, “Freeing Purcell”)
(“[d]espite all of this activity, the Purcell principle remains remarkably opaque”)2 Perhaps we can say at this point that
Purcell and its progeny establish a presumption against judicial interventiоn close in time to an election. See id. (“This is
the reading most consistent with Purcell’s actual language.”).
But how near? As to what types of changes? Overcome by
what showing? These and other questions remain unanswered.
The Supreme Court’s stay decision in this case regarding
the April 2020 election did little to clear things up. This court
had denied a stay as to two changes the district court ordered
for purposes of that spring election: extending the deadline
for requesting an absentee ballot, and extending the deadline
for receipt of completed absentee ballots. Dem. Nat’l Com. v.
Bostelmann, 2020 WL 3619499, at *1 (7th Cir. April 3, 2020). The
Wisconsin Legislature
last-minute change in rules ordered by the district court’s injunction (in part because the district court had ordered relief
beyond what the plaintiffs themselves had requested), it then
proceeded to impose one of its own, ordering that absentee
ballots must either be delivered or postmarked on or before
election day in order to be counted. Repub. Nat’l Com. v. Dem.
Nat’l Com., 140 S. Ct. 1205, 1207, 1208 (2020). The Court was
also at pains to emphasize that it was reserving judgment as
to “whether other reforms or modifications in election procedures in light of COVID-19 are appropriate.” Id. at 1208. Apart
from that, the Supreme Court’s pattern of staying similar sorts
of injunctions in recent months is long on signaling but short
on concrete principles that lower courts can apply to the specific facts before them.
Until the Supreme Court gives us more guidance than Purcell and an occasional sentence or two in its stay rulings have
provided, all that lower courts can do—and, I submit, must
do—is carefully evaluate emergent circumstances that
threaten to interfere with the right to vote and conscientiously
evaluate all of the factors that bear on the propriety of judicial
intervention to address those circumstances, including in particular the possibility of voter confusion.
A variety of factors should inform a court’s decision
whether or not to modify election rules. See Freeing Purcell. On
balance, these factors support rather than undermine the district court’s decision here.
The first consideration is whether the proposed modifications might confuse voters. That risk is minimal here. Only
two of the five modifications that Judge Conley ordered alter
what is expected of voters: the extension of the deadline to
register online or by mail, and the extension of the deadline
for receipt of absentee ballots. Both of these modifications redound to the benefit of voters, and certainly do not lay a trap
for the unwary. We upheld (i.e., denied a stay as to) comparable changes for the April election, and the Supreme Court
modified the latter only to the extent of requiring that an
absentee ballot be delivered or postmarked on or before
election day.3 Neither we nor our superiors would have done
so had there been a substantial risk of confusing voters. The
other three changes are directed to election officials and what
they must do. By their nature, these changes will not impact
voter decisions.
A second consideration is whether the changes to election
rules will burden election officials and increase the odds that
they make mistakes. Judge Conley gave careful attention to
whether state election officials would have the time and ability to implement the changes he ordered. The Wisconsin Election Commission signaled a preparedness and ability to comply with these modifications (more on these points below),
and the State Executive is not here to contend otherwise.
We must consider, third, the likelihood that voter disenfranchisement will ensue from the changes Judge Conley ordered.
contrary, his directives are aimed at preventing disenfranchisement. And as detailed below, thе results of the April
election in Wisconsin demonstrate that only in the absence of
judicial intervention will voters be disenfranchised.
Fourth, there has been no lack of diligence on the part of
the plaintiffs in seeking relief. They sought relief in advance
of the April election, as the pandemic was heating up, succeeded in part as to that election, and promptly renewed their
pursuit of relief in the immediate aftermath of that election.
After they defeated the Legislature’s attempt to dismiss their
claims, see Dem. Nat’l Com. v. Bostelmann, 2020 WL 3077047
(W.D. Wis. June 10, 2020), they proceeded with discovery,
presented their case at an evidentiary hearing in August, and
obtained a favorable ruling in September. There has been no
dallying on the plaintiffs’ part. For its part, the district judge
responded with both alacrity and attention to detail. But according to this court, which has retroactively announced a
May deadline for any changes to election rules, it was all for
naught—their work was over before it began.
Fifth and finally, although the election is drawing close,
the district judge issued his injunction six weeks prior to the
election, leaving ample time for Wisconsin election officials to
alter election practices as ordered and communicate the
changes to the public, and for his judgment to be reviеwed by
this court and, if necessary, by the Supreme Court.4 This is a
far cry from April, when the court’s injunction was issued just
eighteen days prior to the election and was modified to grant
additional relief just five days prior to the election. The Covid-
19 pandemic is no longer new but neither is it a static phenomenon; infection rates have ebbed and surged in multiple
waves around the country and it is only now that Wisconsin
is facing crisis-level conditions. I suppose that the district
court could have issued a preliminary injunction in May
based on the experience with the April election, as my colleagues suggest, but the defendants no doubt would have argued that it was premature to deem modifications to the election code warranted so far in advance of the election,5 and
there is a fair chance that this court might have agreed with
them. Wisconsin infection rates in early May were less than
one quarter of what they are now. Nothing in Purcell or its
progeny forecloses modifications of the kind the district court
ordered in the worsening circumstances that confront Wisconsin as the election draws nigh. Otherwise, courts would
never be able to ordеr relief addressing late-developing circumstances that threaten interference with the right to vote.6
design of adjustments during a pandemic” is a task for elected
officials rather than the judiciary—announces an ad hoc
carve-out from the Anderson-Burdick framework for the review of state election rules. See Anderson v. Celebrezze, 460 U.S.
780, 103 S. Ct. 1564 (1983); Burdick v. Takushi, 504 U.S. 428, 112
S. Ct. 2059 (1992). That framework does call for deference to
state officials, depending upon the degree of restriction that
state election rules impose on the right to vote: severe restrictions demand strict judicial scrutiny, whereas modest, unexceptional restrictions enjoy a presumption of validity. Id.
at 434, 112 S. Ct. at 2063–64. But what the majority proposes
is total deference to state officials in the context of pandemic,
with no degree of judicial scrutiny at all. That I cannot endorse. Communicable diseases can impose real and substantial obstacles to voting, and voting rules that are unobjeсtionable in normal conditions may become unreasonable during
a pandemic, when leaving one’s home and joining other voters at the polls carries with it a genuine risk of becoming seriously ill.
Notably, the Wisconsin Election Commission, whose
members are appointed by two sets of elected officials—the
Legislature and the Governor—was represented in the litigation below. As I noted at the outset, the Commission has acceded to the district court’s injunction and has not sought a
stay. As long as we are discussing deference to state officials,
the views of the Commission, which is charged with enforcing Wisconsin’s election rules, ought to count for something.
Court has yet to adopt) should not be conclusive in assessing the propriety
of judicial intervention.
Justice Kavanaugh’s concurrence in Andino posits that a
state legislature’s decision whether or not to alter voting rules
in response to the Covid-19 pandemic ordinarily should not
be second-guessed by the judiciary, which lacks the legislature’s presumed expertise in matters of public health and is
not accountable to the people. 2020 WL 5887393, at *1. But
state legislatures do not possess a monopoly on matters of
public health, see, e.g., Elim Romanian Pentecostal Church v.
Pritzker, 962 F.3d 341 (7th Cir. 2020) (reviewing Governor’s
executive order restricting size of public assemblies in light of
public health emergenсy), and when state government is divided as it is in Wisconsin, stalemates occur. When a state
proves unwilling or unable to confront and adapt to external
forces that pose a real impediment to voting, it places into
jeopardy the most cherished right that its citizens enjoy. (The
debacle that occurred with respect to in-person voting in Wisconsin on April 7, as I discuss below, makes that point all too
clear.) The right to vote is a right of national citizenship. Dunn
v. Blumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 999–1000 (1972).
It is essential to the vitality of our democratic republic. E.g., Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535 (1964)
(“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.”).7 And no citizen of
Wisconsin should
in order to exercise this invaluable right. Wholesale deference
to a state legislature in this context essentially strips the right
to vote of its constitutional protection.
I submit that our foremost duty in this case is to protect
the voting rights of Wisconsin citizens, which are seriously
endangered, rather than discretionary action (or inaction) by
one branch of state government, in the face of a pandemic. My
evaluation of the district court’s injunction proceeds on that
understanding.
A central premise of the Legislature’s request for a stay of
the changes that Judge Conley ordered to Wisconsin’s election rules is that the ability to register and/or vote in person
remains a perfectly acceptable alternative to any Wisconsin
voter who is unable to register in advance of the election and
to return an absentee ballot prior to election day. Were these
ordinary times, I would have no difficulty agreeing with the
Legislature. But what the Legislature downplays—indeed,
barely acknowledges in its briefs—is the concrete risk that a
100-year pandemic, which at present is surging in Wisconsin,
poses to anyone who must brave long lines, possibly for
hours, in order to register and vote in person.
Historically, the vast majority of Wisconsin voters have
cast their ballots in person, and Wisconsin’s election system
has evolved against that backdrop, with provisions for absentee voting having served as a courtesy for the minority of voters whose work, travel, or other individual circumstances
presented an obstacle to voting in person on election day.
D. Ct. Op. 15, 39. Absеntee ballots have often constituted less
than 10 percent of ballots cast in Wisconsin, and, until this
year, never more than 20 percent. D. Ct. Op. 15. Voters have
also relied heavily on the State’s liberal provision for same-day voting registration, with some 80 percent of all Wisconsin
voter records reflecting some use of this feature. D. Ct. Op. 39
(citing R. 532 at 58.) The Covid-19 pandemic has turned this
in-person voting paradigm on its head, as Judge Conley emphasized. Whereas, in the April 2019 election, voters requested (and were sent) a total of 167,832 absentee ballots
(D. Ct. Op. 12 n.9), one year later, that total increased nearly
eight-fold to 1,282,762 (D. Ct. Op. 12), with absentee ballots
comprising 73.8 percent of ballots counted in the April 2020
election (D. Ct. Op. 15).
The strain that the pandemic and the sudden, unprecedented preference for absentee voting placed on state and local officials had predictablе results in the April 2020 election.
Election officials scrambled to keep up with the overwhelming demand for absentee ballots. 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, virtually
all of which were sent too late for them to be filled out and
mailed back by election day. D. Ct. Op. 13. Another 9,388 ballots were timely applied for but never sent. D. Ct. Op. 13. Approximately 80,000 absentee ballots were completed and postmarked on or before election day but were only received by
election officials in the six days after the statutory deadline for
such ballots. D. Ct. Op. 17. These ballots would not have been
counted but for the district court’s order, sustained by this
court and modified by the Supreme Court, extending the
deadline.
Notwithstanding the fact that nearly three-quarters of the
votes cast in the April 2020 election were via absentee ballots,
in-person voting in that election presented
own. Poll workers were in short supply, as individuals who
would normally have staffed the polls (many of them
seniors8) stayed away in droves, particularly in urban locatiоns. Milwaukee, with a population of 592,025, normally operates 180 polling sites. The city could manage to open only
five on April 7. D. Ct. Op. 16. Green Bay, population 104,879,
normally operates 31 polling sites. On April 7, just two were
open. D. Ct. Op. 16. Lines of voters (thousands of whom had
timely applied for absentee ballots but had not received them)
stretched for blocks and people waited hours to vote.9 Some
were masked, many were not. Some number of voters (we do
not know how many) showed up to vote in person after not
receiving an absentee ballot prior to election day and, discouraged by the long lines and wait times, walked away without
casting a vote. D. Ct. Op. 17 (citing voter declarations). Those
who stayed in line faced a discernible risk of becoming
infected. Although the evidence on this point is mixed, public
health officials determined that 71 individuals contracted
Covid-19 after voting in-person or working at the polls on
April 710; one analysis extrapolates from the available data to
estimate that a ten percent increase in in-person voters per
polling location is associated with an eighteen percent increase in Covid-19 cases two to three weeks later.11
The district court, presented with largely undisputed evidence that (1) the demand for absentee ballots in the forthcoming general electiоn in November will be even greater
than it was in April (as many as 2 million absentee ballot requests are anticipated), (2) recent cutbacks at the U.S. Postal
Service and the resulting delays in mail delivery will present
an even greater obstacle to registering and voting by mail
than it did in the spring, and (3) persistent concerns about a
shortage of poll workers on election day again raise the specter of long lines to vote in person, ordered a set of five limited
modifications to Wisconsin election rules aimed at compensating for these conditions and ensuring, consistent with public health advice and voters’ obvious preference for absentee
voting, that voters who wish to vote by mail may do so.
two most significant of these conditions are comparable to
those sustained by this court, as modified in one respect by
the Supreme Court, for the April election. None are opposed
here by the Wisconsin Executive, which is charged with administering the election. See Repub. Nat’l Com. v. Common
Cause Rhode Island, — S. Ct. —, 2020 WL 4680151, at *1 (U.S.
Aug. 13, 2020) (noting, inter alia, in denying stay of judicially
ordered modifications to state election law, that “here the
state election officials support the challenged decree …”). To
the extent these modifications intrude modestly upon the
State’s ability to estаblish its own rules for conducting elections, they are more than justified by the present pandemic
and the unacceptable risks that in-person voting presents to
the citizens of Wisconsin.
The Legislature challenges Judge Conley’s exercise of discretion in ordering these modifications as if the Covid-19 pandemic presented a quotidian problem in an otherwise routine
election, where the options for voting in-person might represent an entirely adequate alternative to voting by mail. The
State’s experience with the April election and the current state
of the pandemic in Wisconsin demonstrate the fallacy in this
premise.
As I write this dissent, new infections are surging in Wisconsin and threatening to overwhelm the State’s hospitals.
Judge Conley noted that in the weeks prior to his decision,
new infections had doubled from 1,000 to 2,000 per day.
D. Ct. Op. 20. As of Tuesday, October 6, a seven-day average
of 2,346 new cases of Covid-19 was reported.12 The Governor
has declared a public health emergency.13 A draft report from the White House Coronavirus Task Force dated Monday of last week described a “rapid worsening of thе epidemic” in Wisconsin and placed the State in the “red zone” for Covid-19 cases, with the third-highest number of such cases per 100,000 population in the country and seventh-highest test positivity rate. Nearly half of all Wisconsin counties now have high levels of community transmission. Coronavirus Task Force, State Report—Wisconsin, at 1 (Sept. 27, 2020).14 Hospitalization rates are at record highs in the State, with facilities in northeast Wisconsin approaching capacity due to the surge in Covid-19 cases15; the State is now proceeding with plans to open a field hospital to address the shortage of hospital beds.16
Against this worsening backdrop, the district court credited
Presented with the evidence as to what occurred in April and what is happening now with respect to the pandemic, Judge Conley reasonably concluded that (1) a substantial number of eligible Wisconsin voters will not meet the October 14 deadline to register online or by mail, leaving them with only in-person options to register, (2) of the 1.8 to 2 million registered voters who are expected to timely request absentee ballots (D. Ct. Op. 20, 47), as many as 100,000 will not be able to return those ballots by еlection day through no fault of their own (D. Ct. Op. 51), and (3) when faced with the risks associated with registering or voting in-person, and potentially having to wait in line for hours in order to do so, some number of voters will deem the risk too great. These conclusions explain why he ordered modest adjustments to Wisconsin’s election rules in order to minimize that possibility.
Of all of us, Judge Conley is the one judge who heard the evidence first-hand and is closest to the ground in Wisconsin. We owe deference to his judgment. He considered the Anderson-Burdick factors for constitutional challenges to state election rules. Consistent with Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020), he considered the Wisconsin election rules in their totality in assessing the burdens that those rules, under the present circumstances, impose on the right to vote. He considered Purcell’s admonition that judicial orders modifying election rules can result in voter confusion and an incentive not tо vote, especially as an election draws closer. 549 U.S. at 4–5, 127 S. Ct. at 7. He considered this court’s prior ruling in April granting a stay as to all but two of the modifications ordered for the April election. Bostelmann, 2020 WL 3619499. And he considered the Supreme Court’s ruling, issued one day prior to the April election, which both chastised the district court for altering Wisconsin’s election rules within days of the election but also modified the extension of the ballot-receipt deadline to require that mailed absentee ballots be delivered or postmarked on or before election day and accepted the deadline change as modified. Republican Nat’l Com., 140 S. Ct. at 1207, 1208.
In view of the fact that this court allowed extensions of the ballot-request deadline and ballot-receipt deadline to be implemented in the April election, it is not clear to me why the majority has decided to stay comparаble modifications (effectively nullifying them) for the November election. Yes, the Covid-19 virus is no longer a new menace and Wisconsin election officials have now had the experience of conducting two elections during the pandemic. But the Wisconsin election code remains one designed primarily for in-person voting, whereas the surge of Covid-19 cases in Wisconsin has only increased the risks associated with in-person voting since April. The logistical demands posed by absentee voting will if anything be greater for the November general election, with possibly a million additional absentee ballots to be sent and returned by mail; and
Having in mind the shortfalls with the April election and the current public health crisis posed by the pandemic, it is not unreasonable for Wisconsin voters to view the option of in-person registration and voting as a form of Russian roulette. For eligible voters who are unable to register by mail by the statutory deadline (and for the April election, there were more than 57,000 people who registered after that deadline, thanks to the district court’s extension of that deadline, D. Ct. Op. 17) and for voters who timely request an absentee ballot but who either do not receive it by election day or receive it too late to return it by election day (more than 120,000 absentee ballots were not returned by election, see D. Ct. Op. 15), the risks associated with in-person registration and voting amount to a concrete and unacceptable, and in my view, severe, restriction on the right to vote. See Luft, 963 F.3d at 672 (citing Burdick, 504 U.S. at 434, 112 S. Ct. at 2063; Anderson, 460 U.S. at 788, 103 S. Ct. at 1569–70; Acevedo v. Cook Cnty. Officers Electoral Bd., 925 F.3d 944 (7th Cir. 2019)). This is especially true of individuals who are 65 years of age or older (more than 900,000 peоple in Wisconsin19), obese (some 40 percent of Wisconsin adults20), or suffer from chronic health conditions that render them especially vulnerable to complications
Of course it is true that voters have the ability to plan ahead, register early if need be, and request absentee ballots early in order to ensure that they have adequate time to complete and return their ballots prior to election day.22 But voters may also reasonably rely on the State’s own deadlines for advance registration and requesting an absentee ballot as a guide to the amount of time necessary for their registrations to be processed and their ballots to be issued, completed, and returned. Voters do not run the State’s election apparatus or the U.S. Postal Service; they have no special insight into how quickly their timely requests to register and/or vote by mail will be processed by election officials and how quickly the Postal Service will deliver their ballots. It is not reasonable to insist that voters act more quickly than state deadlines require them to do in order to ensure that either the State or the Postal Service does not inadvertently disenfranchise them because they are overwhelmed with the volume of mail-in registrations and absentee ballots.
It is also true that voters who receive their ballots just prior to the election have the option of delivering their ballots to a dropbox or to the polls on election day. But significant numbers of Wisconsin voters lack a driver’s license (including roughly half of African American and Hispanic residents) and therefore cannot drive themselves to a poll or dropbox.23 Relying on public transportation, a taxi, a ride-sharing service, or a lift from a nеighbor to make the trip presents difficulties and risks of its own, which cannot be justified if the voter has timely complied with existing deadlines and yet cannot meet existing deadlines through no fault of her own.
I recognize that the district court’s decision to order modifications to Wisconsin’s election practices represents an intrusion into the domain of state government, but in my view it is a necessary one. We are seven months-plus into this pandemic. The Legislature has had ample time to make modifications of its own to the election code and has declined to do so. The Wisconsin Elections Commission, divided 3-3 along party lines, concluded that it lacks the authority to order such modifications. This leaves voters at the mercy of overworked state and local election officials, a hamstrung Postal Service, and a merciless virus. What we must ask, as Judge Conley did, is whether Wisconsin’s еlection rules, which were not drafted for pandemic conditions, effectively restrict a Wisconsin citizen’s right to vote under current conditions. The answer, I submit, is yes. Based on the State’s experience with the April election, we know it is likely that tens of thousands of voters will not meet the October 14 deadline to register online or by mail, especially if they are relying on the mail to complete that process. We know
I conclude with a just a few words about each of the individual modifications that the district court ordered. Individually and collectively, these modifications, in my view, represent a reasonable, proportional response to current conditions aimed at preserving the right to vote.
Of these, the most important, and in my view, the most essential of these modifications is the six-day extension of the deadline for the return of absentee ballots by mail to November 9, 2020, so long as the ballots are postmarkеd on or before election day. Of the five modifications ordered by the district court, none is more directly aimed at protecting the right to vote, in that it seeks to ensure that ballots that have been timely cast by voters will be counted. The circumstances that warranted a similar extension in April are even more serious now: the Covid-19 pandemic makes it more imperative that as many voters as possible vote by absentee ballot; the demand for absentee ballots is virtually certain to be even greater (record-shattering) than it was in April, placing unprecedented demands on election officials and the U.S. Postal Service alike; and cutbacks implemented by the U.S. Postal Service this summer (not all of which have been suspended or reversed) threaten recurrent if not worse delays in the delivery and return of absentee ballots. The fact that some 80,000 bаllots were received by mail after election day in April is all the proof necessary that an extension of the receipt deadline is vital as a means of protecting the voting rights of tens of thousands of Wisconsin voters—voters who, it cannot be said too often, will timely request and complete absentee ballots but are unable to return them by the election day deadline by no mistake or omission of their own. Against this, all that the Legislature offers is a wish to have the results of the election conclusively determined on election night. But weighed against the constitutional right to vote, this is thin gruel.
The one-week extension of the deadline to register online or by mail is reasonable in terms of both the worsening pandemic and the slowdown in mail service. As Judge Conley pointed out, Wisconsin voters are in the habit of using the State’s same-day registration option to register or update their registration on election day. Only as Covid-19 infections surge in Wisconsin may voters now realize that in-person registration on election day poses unique risks, particularly if lines at the polls turn out to be as long as they were in April. At the same time, voters seeking to register by mail may run into the same problems that absentee voters encountered in April with delays in the U.S. Mail. A brief extension of the advance registration deadline is an appropriate response, and the Wisconsin Election Commission conceded that the extension would still leave adequate time for election officials to update pollbooks with registration information in time for election day.
The order to permit replacement absentee ballots to be transmitted electronically to domestic civilian voters who have not received their ballots by mail in the penultimate week prior to the election (October 22–29) addresses a concrete problem that emerged in the April election: not all absentee ballots will reach voters in time for the election even if they have been timely requested. Recall that tens of thousands of ballots were still being mailed out within a few days of the election, making it impossible for voters to return them by mail (if they received them at all) by election day. Wisconsin law prohibits election officials from sending ballots by electronic means to anyone but military or overseas voters. That restriction was modified by judicial order in 2016, see One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 946–48 (W.D. Wis. 2016), and until our June 2020 decision in Luft reversing that modification, election officials were making absentee ballots available online or by fax as necessary to domestic civilian voters. Restoring that practice for a limited window of time in advance of the November election makes eminent sense as a means of protecting the right to vote by voters who have timely requested an absentee ballot but have not received it in the mail as the election approaches.
Finally, in view of the severe shortages of poll workers that hobbled the April election with numerous poll closings and massive voting delays, the order that local officials be allowed to employ poll workers who are not electors in the county where they will serve is both necessary and reasonable. Adequate staffing of the polls is essential to minimizing voter wait times and, in turn, public health risks. Allowing poll workers (be they civilians or National Guard reservists) to work outside of their own counties is a modest and entirely reasonable means of achieving that end, one that poses no risk to the integrity of the election. The Legislature has articulated no reason why this accommodation is either unnecessary or inappropriate.
Given the great care that the district court took in issuing its preliminary injunction and the ample factual record supporting its decision, I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages. 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. Today, in the midst of a
Good luck and G-d bless, Wisconsin. You are going to need it.