The Wisconsin Legislature’S Motion To: Democratic Party of Wisconsin, v. Marge Bostelmann, Julie M. Glancey,

Summary

The Wisconsin Legislature's Motion to Dismiss the Amended Complaint in DNC, filed April 16, 2020 as Document #: 197 in Democratic National Committee and Democratic Party of Wisconsin v. Marge Bostelmann, et al., Case No. 3:20-cv-249-wmc, consolidated with Case Nos. 3:20-cv-278-wmc and 3:20-cv-284-wmc, in the U.S. District Court for the Western District of Wisconsin. The Legislature, an intervenor-defendant, moves to dismiss under Rules 12(b)(1) and 12(b)(6) based on Burford abstention and mootness. It argues the claims are moot because they challenged election laws only as applied to the April 7, 2020 Spring Election, and that the exception for claims capable of repetition yet evading review does not apply. It notes the next election on May 12, 2020 and that the Safer at Home Order is set to expire on April 24, 2020. It is signed by Misha Tseytlin of Troutman Sanders LLP.

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



                      UNITED STATES DISTRICT COURT
                      WESTERN DISTRICT OF WISCONSIN

Democratic National Committee and
Democratic Party of Wisconsin,
              Plaintiffs,
       v.
Marge Bostelmann, Julie M. Glancey,
Ann S. Jacobs, Dean Knudson, Robert F.
Spindell, Jr., and Mark L. Thomsen, in           Case No. 3:20-cv-249-wmc
their official capacities as Wisconsin           (consolidated with Case Nos.
Elections Commissioners,                         3:20-cv-278-wmc and
                                                 3:20-cv-284-wmc)
              Defendants,
       and
Republican      National    Committee,
Republican Party of Wisconsin, and the
Wisconsin State Legislature,
       Intervenor-Defendants.

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


      Under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

Intervenor-Defendant the Wisconsin Legislature (“Legislature”) hereby moves to

dismiss the Amended Complaint, Dkt.55, in DNC v. Bostelmann. The Legislature

moves to dismiss the Amended Complaint based on Burford abstention and mootness.

      In support of the Burford abstention grounds, the Legislature incorporates the

arguments it made in its previous submissions in support of its prior Proposed

Motions to Dismiss in these consolidated cases. See Dkts.23 at 17–19; 149 at 2–9; see

also Dkt.143 at 17–19 (Legislature’s brief in support of Proposed Motion to Dismiss

the Lewis Complaint).     The Legislature respectfully submits that those same

      Case: 3:20-cv-00249-wmc Document #: 197 Filed: 04/16/20 Page 2 of 6



arguments are fully applicable to the Amended Complaint, requiring this Court to

dismiss that complaint.

      In support of the mootness grounds for dismissal, the Legislature states the

following:

      The Court must dismiss a case as “nonjusticiable” when it becomes “moot,”

meaning that the case “no longer presents a live case or controversy.” Tobin for

Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001). A plaintiff’s

challenge to the application of election laws in a particular election, like the challenge

here, often becomes moot once the “election ha[s] come and gone by,” since any post-

election remedy ordered by the Court “would have no impact on the parties to th[e]

suit or on the results of the [now-past] election.” Id. This rule, of course, applies to

requests for injunctive relief during an upcoming election, since the passing of the

election makes any “requested injunction [ ] now worthless.” Stone v. Bd. of Election

Comm’rs for City of Chicago, 643 F.3d 543, 545 (7th Cir. 2011).

      In some cases, “the passage of an election does not necessarily render an

election-related challenge moot,” if the case falls within the mootness exception for

challenges that are “capable of repetition yet evad[e] review.” Tobin for Governor,

268 F.3d at 528 (citations omitted); see also Stone, 643 F.3d at 545. However, that

exception will only apply, if at all, when the plaintiff specifically challenges the

continued application of a statute in future elections. See Tobin for Governor, 268

F.3d at 529 (distinguishing “one-time decision[s]” by the government). If the plaintiff

has brought such a challenge, the plaintiff must then further demonstrate that:




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



“(1) the challenged action is too short in duration to be fully litigated prior to its

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subjected to the same action again.” Id. Election-law

challenges that “traditionally” satisfy this limited exception to mootness “involve[ ]

challenges to the validity of statutory provisions that will continue to operate past

the election in question and that will burden future candidates in future elections,”

id. at 528–29 (emphasis added)—for example, “ballot-access cases.” Acevedo v. Cook

Cty. Officers Electoral Bd., 925 F.3d 944, 947 (7th Cir. 2019).

      Here, the DNC Plaintiffs’ claims in their Amended Complaint are now moot,

since the April 7, 2020 Spring Election “ha[s] come and gone by.” Tobin for Governor,

268 F.3d at 528. The DNC Plaintiffs’ claims in their Amended Complaint alleged

constitutional violations only with respect to this Spring Election. See Dkt.55. That

is, the DNC Plaintiffs’ challenged election laws establishing registration deadlines,

applying voter-integrity measures, and setting absentee-ballot-casting deadlines only

for this past Spring Election.

      With their First and Fourteenth Amendment right-to-vote claim, the DNC

Plaintiffs alleged that the “right to vote” of Wisconsinites “will be severely burdened

. . . in the upcoming April 7, 2020 election” unless the Court enjoins certain election

laws. Dkt.55 ¶ 47 (emphasis added). Specifically, the DNC Plaintiffs alleged that

the Governor’s “Safer-At-Home Order” made voters’ compliance with certain election

laws more difficult for the Spring Election only, see id. at ¶ 48, that those election

laws’ operation was excessively burdensome for this election only, see id. at ¶¶ 49–




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      Case: 3:20-cv-00249-wmc Document #: 197 Filed: 04/16/20 Page 4 of 6



50, and that the State could not justify those burdens in the context of the current

Spring Election, see id. at ¶ 51.

      Moving to their procedural-due-process claim, the DNC Plaintiffs claimed that

“Wisconsin must establish adequate procedures to ensure that voters . . . [may] cast

their ballots in the April 7, 2020 election.” Dkt.55 ¶ 57 (emphasis added). Here again,

the DNC Plaintiffs claimed solely that, “[u]nder the current circumstances” leading

up to the Spring Election, “Wisconsin’s election process is fundamentally unfair,” id.

at ¶ 56, which infringed voters’ “right[s] in the upcoming election,” id. at ¶ 57

(emphasis added).

      Finally, with their equal-protection claim, the DNC Plaintiffs alleged that

“different actions taken by Wisconsin cities and counties in response to the

coronavirus pandemic” violated equal-protection requirements. Dkt.55 ¶ 61. This

too relates only to the Spring Election, given that the DNC Plaintiffs challenged city

and county “actions” specific only to that election, such as: efforts to “deem[ ] [all]

voters ‘indefinitely confined’” for this election, and therefore exempt from certain

election-law requirements, see id.; guidance about satisfying witness-signature

requirements for this election, see id. at ¶ 62; and “inconsistent availability of in-

person registration and voting” for this election, see id. at ¶ 63.

      The DNC Plaintiffs’ claims in their Amended Complaint do not satisfy the

capable of repetition, yet evading review exception to mootness, thus that exception

does not save this case from dismissal on mootness grounds.




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      Case: 3:20-cv-00249-wmc Document #: 197 Filed: 04/16/20 Page 5 of 6



       To begin, the DNC Plaintiffs have not specifically challenged the application of

the relevant election laws here to any specific election in the future, thus the capable

of repetition, yet evading review exception is categorically unavailable. See Tobin for

Governor, 268 F.3d at 529. So, while Wisconsin is holding its next election on May

12, 2020—a Special Election for the 7th Congressional District—the DNC Plaintiffs

made no reference to this or any other future election in their Amended Complaint.

See Wis. Elections Comm’n, 7th Congressional District Special Election.*

       Further, the DNC Plaintiffs cannot satisfy the additional two requirements for

this mootness exception. See Tobin for Governor, 268 F.3d at 529.

       First, Wisconsin elections are not “too short in duration” for the DNC Plaintiffs

to litigate challenges to election laws prior to the “expiration” of any election—

including challenges before the state courts or the Wisconsin Elections Commission.

See id. (rejecting application of exception because “judicial review . . . is available . . .

[in] the state courts”); see generally Wis. Stat. § 5.05(1) (granting the Commission the

authority to administer Wisconsin’s election laws); Wis. Stat. § 227.52 (subjecting the

Commission’s actions to judicial review in state court).

       Second, and independently sufficient, there is no “reasonable expectation that

the same complaining party will be subjected to the same action again.” See Tobin

for Governor, 268 F.3d at 529. The DNC Plaintiffs themselves specifically noted that

the Wisconsin Governor’s “Safer at Home” Order is set to expire on April 24, 2020, id.




  * Available at https://elections.wi.gov/node/6577 (last visited Apr. 14, 2020).




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



at ¶ 2, which is prior to any other election in Wisconsin, including the 7th

Congressional District Special Election on May 12, 2020.


Dated this 16th day of April, 2020.

                                           Respectfully submitted,

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

                                          Counsel for Legislature in DNC, Gear,
                                          and Lewis

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

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

                                          Counsel for Legislature in DNC



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