Memorandum Of Law In Support Of: Democratic Party of Wisconsin, v. Marge Bostelmann, Julie M. Glancey,

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The Wisconsin Legislature's memorandum of law in support of its motion to intervene, filed March 20, 2020 as Document #21 in Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann, Case No. 3:20-cv-249-wmc, in the United States District Court for the Western District of Wisconsin. The memorandum states that the plaintiffs seek a temporary restraining order and preliminary injunction against the Wisconsin Elections Commissioners blocking Wis. Stat. §§ 6.28(1), 6.34(2), 6.86(1), and 6.87 on constitutional grounds. It argues that the Legislature may intervene as of right under Federal Rule of Civil Procedure 24(a)(2), relying on Sections 13.365 and 803.09(2m) of the Wisconsin Statutes, and that the Attorney General may not adequately represent the State's interest. In the alternative it seeks permissive intervention under Rule 24(b)(1)(B). The document is 12 pages.

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      Case: 3:20-cv-00249-wmc Document #: 21 Filed: 03/20/20 Page 1 of 12



                         UNITED STATES DISTRICT COURT
                         WESTERN DISTRICT OF WISCONSIN


Democratic National Committee and
Democratic Party of Wisconsin,
              Plaintiffs,
       v.
Marge Bostelmann, Julie M. Glancey,                      Case No. 3:20-cv-249-wmc
Ann S. Jacobs, Dean Knudson, Robert F.
Spindell, Jr., and Mark L. Thomsen, in
their official capacities as Wisconsin
Elections Commissioners,
              Defendants.


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


                                      INTRODUCTION

       The Wisconsin Legislature moves to intervene under Federal Rule of Civil

Procedure 24, to defend the State of Wisconsin’s interest in the enforcement of several

of Wisconsin’s election laws, including during an ongoing election. Plaintiffs1 have

sought a temporary restraining order and a preliminary injunction against the

Commissioners of the Wisconsin Elections Commission,2 blocking several duly

enacted election laws—Wis. Stat. §§ 6.28(1), 6.34(2), 6.86(1), and 6.87—on

constitutional grounds.       When Wisconsin laws are challenged on constitutional


  1 Democratic National Committee and Democratic Party of Wisconsin (collectively, “Plaintiffs”).

   2 This Memorandum collectively refers to Defendants Marge Bostelmann, Julie M. Glancey, Ann S.

Jacobs, Dean Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, all sued in their official
capacities as officials with the Wisconsin Elections Commission, as “the Commissioners,” unless
context requires otherwise.

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grounds in court, the State of Wisconsin has recognized, under Sections 13.365 and

803.09(2m) of the Wisconsin Statutes, that the Legislature can vindicate the State’s

interests in the constitutionality of those laws.

      The Legislature is entitled to intervene in this action, as a matter of right, if

the Attorney General declines to defend fully any of the laws at issue.             The

Legislature’s intervention motion is timely, the Legislature has a state-law

recognized right under Sections 13.365 and 803.09(2m) to vindicate the State’s

interests in the constitutionality of the election laws challenged here, and this lawsuit

plainly threatens that interest. And, depending on his approach to this case, the

Attorney General may well not adequately represent that interest. According to

public press reports, the Commissioners two days ago divided over the appropriate

approach to several of the issues in this case, and it is thus uncertain whether this

disagreement among the defendants here will permit the Attorney General to

vigorously defend all of the challenged laws.

      At a minimum, more limited permissive intervention is warranted. Plaintiffs

have challenged several state election laws during an ongoing election, which laws

further the State’s compelling interest in the orderly administration of that election

and in election integrity. The Legislature should, at minimum, be heard to defend

the important state interests that these laws embody without burdening the Court in

any way. To take one important option, this Court could permit the Legislature to

submit the attached proposed briefing, in a way no different than an amicus brief,

but also give the Legislature intervention status for the extremely limited purposes




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of filing an appeal from any adverse order blocking any of the challenged laws,

especially any order impacting Wisconsin’s photo ID and proof-of-residency

requirements. That would create no burden on either this Court or the parties, while

ensuring that the Seventh Circuit can review any order blocking any election law,

such as photo ID and proof-of-residency requirements, without delay or needless

complications resulting from arguing about intervention status on appeal. After all,

as the Seventh Circuit recently explained when discussing legislative intervention:

“No matter how many people can appeal a judgment on behalf of a state, there would

still be only a single appeal . . . that prejudices no one and causes no unjustified strain

on the courts.” Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 802–03 (7th

Cir. 2019).

                     INTEREST OF PROPOSED INTERVENOR

      The Wisconsin Legislature is made up of two Houses, the State Assembly and

the State Senate. See Wis. Const. art. IV, § 1. Wisconsin law recognizes that the

Legislature—the body “vested” with the “legislative power”—has an interest in

defending the State’s own sovereign interest in the constitutionality of state law in

court. Id. Specifically, Section 803.09(2m) of the Wisconsin Statutes states that

“[w]hen a party to an action challenges in state or federal court the constitutionality

of a statute . . . the legislature may intervene as set forth under [Section] 13.365.”

Section 13.365(3), in turn, provides that “[t]he joint committee on legislative

organization may intervene at any time in the action on behalf of the legislature” and

authorizes the hiring of counsel other than the Attorney General.              Wis. Stat.




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§ 13.365(3). These are the same statutes that made the Seventh Circuit “comfortable

adopting [this Court’s] assumption” that the Legislature has “standing as an agent of

the State of Wisconsin” in defense of the constitutionality of state law. Planned

Parenthood, 942 F.3d at 798; accord Va. House of Delegates v. Bethune-Hill, 139 S.

Ct. 1945, 1951 (2019).

                                     ARGUMENT

I. The Legislature Is Entitled To Intervene As A Matter Of Right Under
   Rule 24(a)(2) If The Attorney General Chooses To Decline To Vigorously Defend
   Any Of The Election Laws Challenged Here

      Federal Rule of Civil Procedure 24(a)(2) provides that “[o]n timely motion, the

court must permit anyone to intervene who . . . claims an interest relating to the

property or transaction that is the subject of the action, and is so situated that

disposing of the action may as a practical matter impair or impede the movant's

ability to protect its interest, unless existing parties adequately represent that

interest.” There are four elements for intervention as of right under Rule 24(a)(2):

“(1) timely application; (2) an interest relating to the subject matter of the action;

(3) potential impairment, as a practical matter, of that interest by the disposition of

the action; and (4) lack of adequate representation of the interest by the existing

parties to the action.” Planned Parenthood, 942 F.3d at 797 (citation omitted). The

Legislature satisfies each of these elements here.

      1. This intervention application is timely. “[F]our factors” govern “whether a

motion to intervene is timely: (1) the length of time the intervenor knew or should

have known of his interest in the case; (2) the prejudice caused to the original parties

by the delay; (3) the prejudice to the intervenor if the motion is denied; [and] (4) any


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other unusual circumstances.” Lopez-Aguilar v. Marion Cty. Sheriff’s Dep’t, 924 F.3d

375, 388 (7th Cir. 2019) (second brackets in original; citation omitted). The “most

important consideration in deciding whether a motion for intervention is untimely is

whether the delay in moving for intervention will prejudice the existing parties to the

case.” Id. at 389–90 (citation omitted).

      There is no question that this Motion to Intervene is timely, as the

Legislature has filed less than two days after Plaintiffs filed their Complaint, at a

time consistent with this Court’s oral instructions. Accordingly, there could be no

plausible assertion of prejudice to either Plaintiffs or the Commissioners, the

original parties to this case. Meanwhile, the prejudice to the Legislature from the

Court’s denial of intervention would be substantial, as it would potentially result in

the entry of a federal-court injunction against state election laws without full

adversarial presentation of the relevant issues.

      2. The Legislature has an interest in the enforcement of Wisconsin’s election

laws. An interest under Rule 24(a)(2) must “be direct, significant, and legally

protectable,” but the Seventh Circuit has “interpreted statements of the Supreme

Court as encouraging liberality in the definition of an interest.”      Id. at 391–92

(citations omitted).

      The Legislature has a state-law-recognized interest in defending against this

lawsuit, which challenges the constitutionality of multiple election laws, including

during the ongoing April 7 election. Like all States, Wisconsin has the sovereign

“cognizable interest” in the “continued enforceability of its laws,” including the




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election laws at issue here. Hollingsworth v. Perry, 570 U.S. 693, 709–10 (2013)

(citation omitted); Lopez-Aguilar, 924 F.3d at 392. By adopting Sections 13.365 and

803.09(2m), Wisconsin has made the sovereign choice that the Legislature may speak

for the State in court, as a party, in cases where plaintiffs seek orders blocking the

enforcement of state law on constitutional grounds.       Specifically, under Section

803.09(2m), “[w]hen a party to an action challenges in state or federal court the

constitutionality of a statute . . . the legislature may intervene as set forth under

[Section] 13.365.” Id. As the Seventh Circuit recently recognized when discussing

how Rule 24(a)(2)’s interest element interacts with Sections 13.365 and 803.09(2m),

the court was “comfortable adopting the . . . assumption that [Wis. Stat.] § 803.09(2m)

gives the Legislature standing as an agent of the State of Wisconsin” in defense of

state law. Planned Parenthood, 942 F.3d at 798; see Bethune-Hill, 139 S. Ct. at 1951.

      While the Legislature can speak on behalf of Wisconsin’s interest in defense of

any law that the Legislature has enacted, see Planned Parenthood, 942 F.3d at 798,

election laws like Sections 6.28(1), 6.34(2), 6.86(1), and 6.87 especially deserve a

vigorous defense. A “State indisputably has a compelling interest in preserving the

integrity of its election process,” Eu v. San Francisco Cty. Democratic Cent. Comm.,

489 U.S. 214, 231 (1989), in the “orderly administration” of its elections, and in

“carefully identifying all voters [who may] participat[e] in the election process,”

Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008) (controlling plurality

of Stevens, J.). The election laws at issue here further these crucial state interests,

as explained in the Legislature’s simultaneously filed Memorandum.




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      3. This lawsuit plainly impairs the Legislature’s interest. As explained above,

Wisconsin has a sovereign interest in defending the constitutionality of duly enacted

state election laws. Further, the State has bestowed upon the Legislature, the branch

that enacted those election laws, the authority to defend this interest on behalf of the

State in federal court. See Wis. Stat. §§ 13.365, 803.09(2m). Plaintiffs’ lawsuit here,

if successful, would directly impair that interest, prohibiting the enforcement of these

election laws, including during the April 7 election. Accordingly, the Legislature’s

interest is squarely at issue here. See Wis. Stat. §§ 13.365, 803.09(2m); Planned

Parenthood, 942 F.3d at 798; accord Lopez-Aguilar, 924 F.3d at 385.

      4. The Commissioners, speaking through the Attorney General, cannot

adequately represent the Legislature’s interest. Rule 24(a)(2) imposes different

adequate-representation standards for proposed intervenors, depending on whether

“the prospective intervenor and the named party have the same goal” and whether

“the representative party is a governmental body charged by law with protecting the

interests of the proposed intervenors.”      Planned Parenthood, 942 F.3d at 799

(citations omitted). When the proposed intervenor does not share the “same goal”

with the named party, the proposed intervenor need only make a “‘minimal’ showing,”

WEAC, 705 F.3d at 659 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538

n.10 (1972)), that the “representation of his interest ‘may be’ inadequate,” Planned

Parenthood, 942 F.3d at 799 (quoting Trbovich, 404 U.S. at 538 n.10). However, when

they do share the “same goal,” and the named party “is [the Attorney General]

charged by law with protecting the interests of the proposed intervenors,” the




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proposed intervenor must make “a concrete showing of the Attorney General’s bad

faith or gross negligence.” Id. at 799, 801.

      Here, the Legislature may well satisfy this inadequacy prong in two respects,

depending on the approach that the Attorney General takes to this case.

      First, and independently sufficient to satisfy this prong of the intervention

analysis, the Legislature and the Attorney General may not share the “same goal,”

id. at 799, since the Commissioners here have apparently divided over the

appropriate resolution of several of the issues in this case.     Two days ago, the

Commissioners met in a special meeting, where they agreed on a number of actions,

like requesting additional funding for absentee-ballot supplies. See Declaration of

Misha Tseytlin (“Tseytlin Decl.”) Ex. 7 (Wis. Elec. Comm’n, Special Teleconference

Meeting COVID-19 (Mar. 18, 2020)). According to public press reports, however, the

Commissioners divided over whether to request that the Governor and the

Legislature convene a special session to give the Commissioners more authority to

modify current election laws and procedures in light of COVID-19, including as to

several of the specific issues Plaintiffs raise here. See Tseytlin Decl. Ex. 6. It is

unclear how the Attorney General will seek to navigate this apparent disagreement

among the defendants here. In particular, it is unclear whether this disagreement

among the Commissioners will cause the Attorney General to decline to defend some

or all of the laws challenged here, or cause him to put forward a less-than-vigorous

defense as a compromise among his clients. If that were to occur, then the Legislature

would clearly make the “‘minimal’ showing,” WEAC, 705 F.3d at 659 (citation




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omitted), needed to demonstrate that the Attorney General’s representation “‘may be’

inadequate,” Planned Parenthood, 942 F.3d at 799, since its interest is in the full,

vigorous enforcement of each of these election-law provisions.

      Second, if the Attorney General chooses not to defend fully the constitutionality

of any of the laws here, the Legislature would also plainly satisfy the inadequacy

prong’s “bad faith or gross negligence” standard, if that standard is held to apply. Id.

at 799, 801. The Attorney General failing to defend challenged state law is the

paradigmatic example of when this standard has been met. Id.

      All that said, if the Attorney General does vigorously defend the election laws

at issue here, including as against Plaintiffs’ request for emergency relief, the

Legislature would respectfully take a back seat to the Attorney General in leading

the defense of the challenged laws. However, the Legislature would still ask to

permissively intervene under that circumstance, as discussed immediately below,

especially for purposes of filing any needed emergency appeals against any order

blocking Wisconsin’s photo ID and proof-of-residency requirements.

II.   Alternatively, This Court Should Afford The Legislature Permissive
      Intervention Under Rule 24(b)(1)(B)

      If the Court were to conclude that the Legislature has not made the required

showings for intervention as of right, then the Legislature respectfully requests that

the Court grant it permissive intervention under Rule 24(b)(1)(B), consistent with

“the needs of federal-state comity.” Planned Parenthood, 942 F.3d at 803.

      The Legislature satisfies the only two requirements for permissive

intervention: the intervenor “timely” files and “has a claim or defense that shares



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with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1).

Here, the Legislature’s motion is timely, described above. Supra, pp. 4–5. And the

Legislature has filed an attached proposed Motion to Dismiss and supporting

Memorandum, raising defenses to the claims in Plaintiffs’ Complaint, and so “shares

a question of law with the main action.” Planned Parenthood, 942 F.3d at 803.

       Moving to the other permissible intervention factors, the Seventh Circuit in

Planned Parenthood explained that Rule 24(b)(1)(B) “allows the district court to

consider a wide variety of factors” when deciding whether to grant permissive

intervention, including whether intervention would “overwhelm” the Court and

whether intervention would serve “the needs of federal-state comity.” See 942 F.3d

at 802–03. Here, the Legislature’s intervention may well be necessary for the Court

to receive full adversarial briefing against an injunction blocking multiple election

laws in the middle of an election. As noted, the Commissioners named as defendants

here are apparently divided over several of the issues in this lawsuit, making it

unclear whether the Attorney General can make a full, adversarial presentation. See

supra pp. 8–9. The election laws challenged here, moreover, further the Legislature’s

“compelling interest” in the “integrity of its election process,” Eu, 489 U.S. at 231, so

intervention clearly comports with “the needs of federal-state comity,” Planned

Parenthood, 942 F.3d at 803. And allowing the Legislature to intervene would pose

no practical difficulties, but would, instead, merely allow for full adversarial litigation

in this significant case.




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      If, however, this Court is concerned about any practical difficulties that may

arise with the Legislature’s intervention, the Seventh Circuit has held that a court

should stand “ready” to grant permissive intervention to the Legislature if it “is

willing to accept conditions” on its participation “that would reduce any disruption to

levels the court will tolerate.” Id. at 804. One important option is to accept the

Legislature’s simultaneously filed Memorandum in the same way that this Court

would accept the brief of an amicus, but to give the Legislature intervention status

for the extremely limited purposes of filing any needed emergency appeal from an

order blocking any of the challenged laws, especially any of Wisconsin’s photo ID and

proof-of-residency requirements. That would raise none of the practical issues that

troubled this Court and the Seventh Circuit in Planned Parenthood, while clearing

away needless complications—like the need to argue about intervention status during

an emergency appeal—from an immediate appeal impacting an ongoing election. “No

matter how many people can appeal a judgment on behalf of a state, there would still

be only a single appeal . . . that prejudices no one and causes no unjustified strain on

the courts.” Id. at 802–03.

                                   CONCLUSION

      This Court should grant the Legislature’s Motion to Intervene.




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Dated this 20th day of March, 2020.

                                Respectfully submitted,

                                  /s/Misha Tseytlin
                                  Misha Tseytlin (State Bar No. 1102199)
                                  Kevin M. LeRoy (State Bar No. 1105053)
                                  TROUTMAN SANDERS LLP
                                  227 W. Monroe Street, Suite 3900
                                  Chicago, IL 60606
                                  (608) 999-1240
                                  (312) 759-1939 (fax)
                                  misha.tseytlin@troutman.com
                                  kevin.leroy@troutman.com

                                  Eric M. McLeod (State Bar No. 1021730)
                                  Lane E. Ruhland (State Bar No. 1092930)
                                  HUSCH BLACKWELL LLP
                                  P.O. Box 1379
                                  33 East Main Street, Suite 300
                                  Madison, WI 53701-1379
                                  (608) 255-4440
                                  (608) 258-7138 (fax)
                                  eric.mcleod@huschblackwell.com
                                  lane.ruhland@huschblackwell.com

                                  Lisa M. Lawless (State Bar No. 1021749)
                                  HUSCH BLACKWELL LLP
                                  555 East Wells Street, Suite 1900
                                  Milwaukee, WI 53202-3819
                                  (414) 273-2100
                                  (414) 223-5000 (fax)
                                  lisa.lawless@huschblackwell.com

                                  Attorneys for the Wisconsin Legislature




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