Opinion and Order — Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann (Case 3:20-cv-00249-wmc Document 217)

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Opinion and Order, Document 217, filed 06/10/20 in Case No. 3:20-cv-00249-wmc in the United States District Court for the Western District of Wisconsin, in the case brought by the Democratic National Committee and Democratic Party of Wisconsin against Marge Bostelmann and others. The court states that plaintiffs seek to update their claims in light of the alleged impacts of COVID-19 on obtaining and counting absentee ballots, with relief sought for the August 2020 primary election and November 2020 general elections. It grants plaintiffs' motion for leave to file a second amended complaint and denies the Wisconsin Legislature's motion to dismiss as moot. Defendants and intervening defendants have until June 30, 2020 to respond, and a status conference is set for Monday, June 29, 2020, at 10:00 a.m. The order was entered on the 9th day of June, 2020 by William M. Conley, District Judge.

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Date: 2020-06-10

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“Opinion and Order — Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann (Case 3:20-cv-00249-wmc Document 217).” Original at archive.org, dated 2020-06-10. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-wiwd-45522-217-0-0454aad27a/, SHA-256 319cf59405fa1620caed4ef90bedb2f3386c4b3734374a00a8888a83223fc462.

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Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE
and DEMOCRATIC PARTY OF WISCONSIN,

Plaintiffs, OPINION AND ORDER
v.
20-cv-249-wmc
MARGE BOSTELMANN, JULIE M. GLANCEY,
ANN S. JACOBS, DEAN KNUDSON, ROBERT
F. SPINDELL, JR. and MARK L. THOMSEN,

Defendants,
and

WISCONSIN LEGISLATURE, REPUBLICAN
NATIONAL COMMITTEE, and REPUBLICAN
PARTY OF WISCONSIN,

Intervening Defendants.

Within a few weeks of Wisconsin’s April 2020 election, the Democratic National

Committee and the Democratic Party of Wisconsin (jointly, “the DNC/DPW”) filed this

lawsuit, seeking a preliminary injunction against the enforcement of certain election laws

on federal constitutional grounds due to the impacts of the unfolding COVID-19 health

crisis. With lightening speed, the case made it to the United States Supreme Court and

back. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. ____ (2020) (per

curiam). Now that the April election has come and gone, intervening defendant, the

Wisconsin Legislature, has moved to dismiss this case (dkt. #197), while plaintiffs have

moved to file a second amended complaint (dkt. #198), seeking to update their claims in

light of the alleged impacts of COVID-19 on the ability to obtain and count a record

number of absentee ballots during that election and similar, other challenges facing the

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 2 of 20

Wisconsin Election Commission (“WEC”) in the impending August and November

elections. 1 For the reasons discussed below, the court will grant plaintiffs’ motion and deny

intervening-defendant’s motion as moot.

BACKGROUND

Shortly after the emergence of the COVID-19 health crisis in Wisconsin, the

DNC/DPW filed this lawsuit, a temporary restraining order, and a preliminary injunction,

seeking to enjoin enforcement of various provisions of Wisconsin’s elections laws before

Wisconsin’s April 7, 2020, primary election. This court granted narrow injunctive relief a

few weeks before the April election, and this injunctive relief was further narrowed on

appeal to the Seventh Circuit and the United States Supreme Court.

The Wisconsin Legislature has now moved to dismiss the DNC/DPW’s complaint,

arguing primarily that the claims became moot after the passage of the April election.

While the DNC/DPW maintain that their original claims were not mooted, plaintiffs also

seek to “fine-tune[]” their claims in an amended complaint “to take account of the rulings

over the past two months by this court, the Seventh Circuit, and the Supreme Court.”

(Pls.’ Reply (dkt. #203) 2.) The DNC/DPW’s proposed second amended complaint also

1
This case was previously consolidated with two other related cases. (See dkt. #86 (consolidating
cases 20-cv-249, 20-cv-278, and 20-cv-284).) Still, “actions which have been consolidated do not
lose their separate identity.” Ivanov-McPhee v. Washington Nat. Ins. Co., 719 F.2d 927, 928 (7th Cir.
1983). The two motions presently before the court concern only the 20-cv-249 case. (See Wis.
Leg. Mot. to Dismiss (dkt. #197); DNC/DPW Mot. for Leave to File Second Am. Compl. (dkt.
#198).) Accordingly, this opinion and order applies only to the 20-cv-249 case and all references
to “plaintiffs” refer only to the DNC/DPW. The court will take up the more recently filed motions
in the ‘284 case and ‘278 cases by separate order.

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seeks relief with respect to the August 2020 primary election and November 2020 general

elections. Specifically, plaintiffs again request that, “in the context of the current

coronavirus crisis,” the court declare unconstitutional and enjoin in part the following

statutory provisions (“the challenged provisions”): (1) the current by-mail and electronic

registration deadlines, Wis. Stat. § 6.28(1); (2) the requirements that copies of proof of

residence and voter photo ID accompany electronic and by-mail voter registration and

absentee applications, Wis. Stat. §§ 6.34, 6.86, respectively; (3) the requirement that

polling places receive absentee ballots by 8:00 p.m. on election day to be counted, Wis.

Stat. § 6.87; and (4) the requirement that an absentee voter obtain the signature of a

witness attesting to the accuracy of personal information on an absentee ballot, Wis. Stat.

§ 6.87(2). (Proposed Second Am. Compl. (“Proposed SAC”) (dkt. #198-1) 38-39.)

Plaintiffs also seek to “ensure safe and sufficient in-person registration and voting facilities

for all voters throughout the State.” (Id. ¶ 83.) These requests are brought under the First

and Fourteenth Amendment’s guarantee against undue burdens on the right to vote, the

Fourteenth Amendment’s procedural due process clause, and the Fourteenth Amendment’s

equal protection clause. (Id. at 31-38.)

Intervening defendants the Republic National Committee and the Republican Party

of Wisconsin (jointly, “the RNC/RPW”) have since joined in the Wisconsin Legislature’s

opposition to plaintiffs’ motion for leave to amend their complaint (dkt. #201), although

the originally-named defendants, the Commissioners of the Wisconsin Election

Commission (“WEC”), do not appear to oppose plaintiffs’ motion, and neither the

Commissioners nor the RNC/RPW have joined in the Legislature’s motion to dismiss.

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OPINION

The Federal Rules of Civil Procedure provide that leave to amend a complaint

should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court

may, however, “deny leave to amend where there is undue delay, bad faith, dilatory motive,

repeated failure to cure deficiencies, undue prejudice to the defendants, or where the

amendment would be futile.” Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC,

870 F.3d 682, 693 (7th Cir. 2017) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th

Cir. 2008)). “In the face of that uncertainty, applying the liberal standard for amending

pleadings, especially in the early stages of a lawsuit, is the best way to ensure that cases will

be decided justly and on their merits.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago

& Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015).

The Legislature opposes plaintiffs’ motion to amend on grounds of futility. 2

Specifically, the Legislature contends that: (1) plaintiffs’ new claims are not yet ripe; (2)

plaintiffs have alleged no claim upon which relief can be granted; and (3) all of plaintiffs’

claims should be dismissed under the Burford abstention doctrine. 3 Unsurprisingly, the

DNC/DPW responds by emphasizing the liberal standard generally applicable to requests

for leave to amend and argue that their new claims are not futile.

2
The Legislature also argued that the court should stay the case pending resolution of various
interlocutory appeals before the Seventh Circuit. (Wis. Leg. Opp’n (dkt. #200) 37-39.) However,
the Seventh Circuit has since dismissed the appeals, rendering this argument moot. See Democratic
Nat’l Comm. v. Republican Nat’l Comm., No. 20-1538 (7th Cir. May 14, 2020).

3
In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that federal courts had
the discretion to abstain from intervening in certain matters that would result in an impermissibly
disruptive effect on state policies.

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At this point, the court is unable to conclude that the entirety of plaintiffs’ proposed

amended complaint is futile and, having been presented with no other reason to deny leave

to amend, the court will grant plaintiffs’ motion. Because plaintiffs’ second amended

complaint is now the operative pleading, the Legislature’s motion to dismiss plaintiffs’ first

amended complaint is rendered moot and, therefore, will be denied. See Wright & Miller,

6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.) (“[I]f the first complaint is considered superseded

by the amendment, the court is not required to dismiss the suit when a motion points up

the weaknesses of the earlier pleading.”). Inevitably, however, the court addresses The

Legislature’s arguments for dismissal in considering its opposition to plaintiffs’ motion for

leave to amend on futility grounds.

I. Ripeness

The Legislature first argues that plaintiffs’ motion to amend is futile because their

new claims are not yet ripe. Ripeness is a justiciability concern regarding the appropriate

timing of judicial intervention. 4 Renne v. Geary, 501 U.S. 312, 320 (1991). The rationale

4
In the past, the ripeness doctrine has been said to have both constitutional and prudential
dimensions. Nat’l Park Hosp. Ass’n v. DOI, 538 U.S. 803, 808 (2003). Recently, however, the
Supreme Court called into question the “continuing vitality of the prudential ripeness doctrine.”
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (respondents’ assertion that a claim is
nonjusticiable on prudential ripeness grounds was in “some tension” with more recent cases
reaffirming that a federal court’s obligation to hear cases within its jurisdiction is “virtually
unflagging”). Even so, the line between prudential and constitutional ripeness remains unclear. See
Wright & Miller, 13B Fed. Prac. & Proc. Juris. § 3532.1 (3d ed.) (“Although the dual [prudential
and constitutional] origins of ripeness doctrine are clear, the line between them is far from clear.”).
And without further guidance from the Supreme Court or the Seventh Circuit, this court will
continue to apply traditional ripeness doctrine principles. Cf. Skyline Wesleyan Church v. California
Dep’t of Managed Health Care, No. 18-55451, 2020 WL 2464926, at *10 n.9 (9th Cir. May 13,
2020) (“Because the Supreme Court has not yet had occasion to resolve the continuing vitality of
the prudential ripeness doctrine, we apply it here regardless of any uncertainty about its life
expectancy.”) (internal citations and quotations omitted).

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behind this doctrine is to avoid premature adjudication and prevent courts from

“entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136,

148 (1967). Because ripeness affects justiciability, courts have held that affidavits and

other evidence may be considered in determining whether or not a claim is ripe. See, e.g.,

Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1290 & n.7 (3d Cir. 1993); St. Clair

v. City of Chico, 880 F.2d 199, 201-02 (9th Cir. 1989).

Courts have traditionally considered two factors in determining ripeness: (1) “the

fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding

court consideration.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,

461 U.S. 190, 201 (1983) (quoting Abbott Labs., 387 U.S. at 149). A claim is not fit for

judicial review if “the parties point only to hypothetical, speculative, or illusory disputes as

opposed to actual, concrete conflicts.” Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th

Cir. 1992). In evaluating a claim of hardship, courts consider whether “irremediably

adverse consequences” would flow from requiring a later challenge. Toilet Goods Ass’n v.

Gardner, 387 U.S. 158, 164 (1967).

Here, the Legislature argues that plaintiffs’ claims are not presently fit for judicial

review “because those claims depend on both the health risks that COVID-19 may cause

during those elections and the government’s response to those risks.” (Wis. Leg. Opp’n

(dkt. #200) 18.) Notably, although the Legislature suggests that the WEC and the state

and federal governments might take steps that affect plaintiffs’ claims, it does not argue

that any of the challenged provisions will not be enforced in the upcoming elections. (See

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id. at 18-21.) The Legislature also argues that plaintiffs will suffer no hardship if the court

requires a later challenge because “voters in Wisconsin have ample avenues to vote,

including under Wisconsin’s generous absentee-voting regime.” (Id. at 21.) Plaintiffs

counter that: (1) numerous reliable sources predict that the risks presented by COVID-19

will continue at least through the November election; and (2) there is no reason to expect

that the challenged election laws will not be enforced. (Pls.’ Reply (dkt. #203) 10-12.)

Indeed, they point out that a delay in litigation will impose an increasing hardship: as the

later the court’s decision, the more likely relief will be barred by the Purcell doctrine. (Id.

at 15.)

Turning to the first ripeness prong -- fitness for review -- the court concludes that

plaintiffs’ claims state an actual and concrete conflict premised on the near-certain

enforcement of the challenged provisions in the context of the present and ongoing

COVID-19 health care crisis. See Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d

1153, 1164 (11th Cir. 2008) (“The Supreme Court has long since held that where the

enforcement of a statute is certain, a preenforcement challenge will not be rejected on

ripeness grounds.”). Indeed, the WEC, the Legislature, and the Wisconsin Supreme Court

have already concluded that the election laws must be enforced as written. See WEC,

Memorandum, Update Regarding COVID-19 Election Planning (Mar. 18, 2020) (taking

the position that it did not have the authority to alter the election procedures set forth in

Wis. Stat. § 6.28(1)(a) (online voter registration deadline) and §§ 6.88(3) and 7.52(1)(a)

(absentee ballot return deadlines)); Wis. Leg. Proposed Mot. to Dismiss (dkt. #23) (taking

the position that Wisconsin’s elections statutes should be enforced in the April 2020

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election); Wis. Leg. Mot. to Dismiss (dkt. #197) (taking the position that Wisconsin’s

elections statutes should be enforced in the upcoming elections); Jeffersom v. Dane Cty., No

2020AP557-OA (Wis. Mar. 31, 2020) (directing enforcement of Wis. Stat. § 6.86

(absentee photo ID requirement) consistent with the WEC’s guidance on indefinitely

confined voters). This alone contrasts the present lawsuit from those where enforcement

is in some reasonable doubt. See Renne, 501 U.S. at 322 (claim unripe where there was “no

evidence of a credible threat that [the challenged law] will be enforced”); Toilet Goods Ass’n,

Inc., 387 U.S. at 163 (challenge to regulation authorizing penalties if plaintiffs did not

permit the FDA to inspect their facilities was unripe in part because the court had “no idea

whether or when” the challenged regulation might be enforced). Of course, in the event

that some unforeseen, future event were to extinguish, or even call into reasonable

question, plaintiffs’ claims for relief because of governmental action related to election

procedures, the Legislature is free to revisit and this court would be delighted to take up

its ripeness argument again as this litigation progresses. But for now, plaintiffs have

demonstrated that their claims rest on a real, substantial controversy, and not merely on a

hypothetical question.

Plaintiffs have also demonstrated that they are likely to suffer adverse consequences

if the court were to require a later challenge. The August election is less than three months

away, and the November election only three months after that. As was amply

demonstrated in the fire drill leading up to the April election, the longer this court delays,

the less likely constitutional relief to voters is going to be effective and the more likely that

relief may cause voter confusion and burden election officials charged with its

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administration. Further, any delay may ultimately preclude relief under the Purcell

doctrine, which cautions against court intervention in imminent elections. See Purcell v.

Gonzalez, 549 U.S. 1, 4-5 (2006); see also Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 300-01 n.12 (1979) (“Challengers to election procedures often have been left

without a remedy in regard to the most immediate election because the election is too far

underway or actually consummated prior to judgment.”). As plaintiffs point out, the

Legislature appears to propose a rule in which it would either be “too soon” or “too late”

to enforce voting rights.

In similar cases, other courts have found challenges to election laws to be ripe even

in the face of various factual uncertainties. In Miller v. Brown, 462 F.3d 312 (4th Cir.

2006), the Fourth Circuit held that a challenge to Virginia’s open primary law was ripe,

even though it was uncertain whether a candidate would run in the primary and be

subjected to the challenged provision. Id. at 319. The court reasoned that “[w]aiting until

at least two candidates file for office likely would provide insufficient time to decide the

case without disrupting the pending election,” causing the court to ultimately conclude

that “[t]he case is fit for judicial review despite this uncertainty.” Id. at 319-20. Similarly,

in Florida State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008), the

Eleventh Circuit concluded that plaintiffs’ challenge to a Florida voter registration law was

ripe even though it had not yet been enforced. Id. at 1164. According to that court,

potential voters would face hardship if they had to wait until after their applications had

been rejected to challenge the statute, as “there may not be enough time to reach a decision

on the merits before the actual election.” Id. The court further observed that state election

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officials would likewise be burdened if the court were to enjoin enforcement of the

challenged statute weeks or days before the election. Id. Regardless, this court does not

relish, nor will it be receptive to, any repeat of last minute requests for relief from any party

given that we have the luxury of months, rather than weeks, to address the merits of

plaintiffs’ claims and hard-earned lessons from which to draw in protecting the rights of

Wisconsin voters.

As in Miller and Browning, therefore, the court finds that plaintiffs have shown their

proposed claims are fit for judicial review and that they would suffer hardship if the court

were to withhold their consideration. Accordingly, the court rejects the Legislature’s

ripeness argument.

II. Failure to State a Claim

The Legislature next argues that plaintiffs’ proposed amendments are futile because

the allegations fail to state a claim. Plaintiffs’ proposed amended complaint challenges

various provisions of Wisconsin’s election laws set forth above, as well as an alleged failure

to ensure safe and sufficient opportunities to vote in person, on three federal constitutional

grounds: (1) an undue burden the right to vote in violation of the First and Fourteenth

Amendment; (2) violations of the procedural due process clause of the Fourteenth

Amendment; and (3) violations of the equal protection clause of the Fourteenth

Amendment. (Proposed SAC (dkt. #198-1) 31-38.) The Legislature argues that all three

grounds for relief fail as a matter of law, rendering plaintiffs’ motion for leave to amend

their complaint futile.

Certainly, “a district court is justified in denying an amendment if the proposed
10

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amendment could not withstand a motion to dismiss.” Glick v. Koenig, 766 F.2d 265, 268

(7th Cir. 1985). However, in considering such a motion, a court must accept all well-

pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Firestone

Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015). Indeed, “a well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,

and that a recovery is very remote and unlikely.” Id. (quoting Alam v. Miller Brewing Co.,

709 F.3d 662, 666 (7th Cir. 2013)). With these principles in mind, the court will review

the factual allegations for each of plaintiffs’ three constitutional claims.

A. Undue Burden on the Right to Vote

Plaintiffs’ first claim that the challenged provisions impose an undue burden on the

right to vote in violation of the First and Fourteenth Amendments. (Proposed SAC (dkt.

#198-1) 31.) This claim is governed by Anderson-Burdick framework, 5 requiring courts to

consider whether the burdens on the right to vote imposed by the challenged provisions

are justified by the state’s interests in enforcing the provision. See One Wisconsin Inst., Inc.

v. Thomsen, 198 F. Supp. 3d 896, 904 (W.D. Wis. 2016) (citing Anderson, 460 U.S. 780;

Burdick, 504 U.S. 428).

Plaintiffs’ proposed complaint identifies specific burdens that allegedly will be

imposed by each of the challenged provisions, and further avers that no state interest can

justify their enforcement in light of the alleged burdens. (Proposed SAC (dkt. #198-1)

31.) The Legislature argues generally that plaintiffs’ alleged burdens are not “plausible” or

5
Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).

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are “speculative” and, therefore, are insufficient to support their claims. (Wis. Leg. Opp’n

(dkt. #200) 26-30.) Yet the burdens on the right to vote that plaintiffs identify are based,

at least in part, on burdens that allegedly befell voters in the April 2020 election. For

example, plaintiffs allege that in the April election, thousands of voters did not receive

requested absentee ballots with adequate time to return them before the receipt deadline.

(Proposed SAC (dkt. #198-1) ¶ 50.) They further allege that a similar situation will occur

during the August and November elections, and that such a burden is not justified by any

state interest. (Id. ¶¶ 51-52.) They include similar allegations for all of the challenged

provisions. (See id. at 21-30.) Accordingly, the Legislature’s argument that such burdens

are not “plausible” falls flat in light of this past experience, although plaintiffs’ will

ultimately face a high bar in proving the allegations made in their complaint.

The Legislature also contends that plaintiffs’ alleged burdens on the right to vote

are insufficient as a matter of law to overcome the state’s interest in enforcing duly enacted

election laws. (Wis. Leg. Opp’n (dkt. #200) 26-30.) Plaintiffs counter that balancing tests

are “by the very nature, generally inappropriate for Rule 12(b)(6) dismissal for failure to

state a claim.” (Pls.’ Reply (dkt. #203) 16.) The court is again inclined to agree. As a

general matter, a motion to dismiss “is not an opportunity for the court to find facts or

weigh evidence.” My Health, Inc. v. Gen. Elec. Co., No. 15-CV-80-JDP, 2015 WL 9474293,

at *2 (W.D. Wis. Dec. 28, 2015). In a previous challenge to Wisconsin’s election laws,

this court explained that whether the laws at issue “actually burdened . . . voters, and if so,

to what degree, is a question of fact that cannot be resolved at the pleading stage.” One

Wisconsin Inst., Inc. v. Nichol, 155 F. Supp. 3d 898, 905 (W.D. Wis. 2015) (citing Cushing

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v. City of Chicago, 3 F.3d 1156, 1163 (7th Cir. 1993)); see also Baude v. Heath, 538 F.3d

608, 612 (7th Cir. 2008) (“[a]ny balancing approach . . . requires evidence,” and “without

understanding the magnitude of both burdens and benefits,” it is impossible to tell whether

a particular burden is excessive); Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014)

(resolution of “a fact-intensive balancing test” is “not ordinarily suitable [at] the Rule

12(b)(6) stage”). Indeed, various circuit courts have reversed the dismissal of election-

related challenges before the development of the evidentiary record. See, e.g., Soltysik v.

Padilla, 910 F.3d 438, 447 (9th Cir. 2018); Duke v. Cleland, 5 F.3d 1399, 1405-06 & n.6

(11th Cir. 1993); Wood v. Meadows, 117 F.3d 770, 776 (4th Cir. 1997). Here, plaintiffs

have plausibly alleged that each of the challenged provisions imposes a burden on voters

that is not justified by the state’s interests. Because these allegations are sufficient to

survive a motion to dismiss, the claim is not futile.

That being said, some of the provisions challenged in this suit have been repeatedly

upheld in federal court. See Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (upholding

Wisconsin’s voter ID law); One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 935

(W.D. Wis. 2016) (upholding law requiring Wisconsin voters to provide documentary

proof of residence when registering to vote). Absent some extraordinary showing as to the

impact of the current health crisis on those statutory provisions, this court is unlikely to

overturn those decisions. But, the court need not (and arguably cannot for the reasons set

forth above) consider likely short-comings in plaintiffs’ ultimate proof at the pleadings

stage, understanding that plaintiffs will ultimately bear a heavy burden of persuasion to

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obtain relief on any of their claims. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

200 (2008).

B. Procedural Due Process

Plaintiffs’ second proposed claim is that the challenged provisions violate the

Fourteenth Amendment’s procedural due process clause. (Proposed SAC (dkt. #198-1)

33.) In bringing this claim, plaintiffs invoke the test established in Mathews v. Eldridge, 424

U.S. 319 (1976), which requires the court to balance: (1) the interest that will be affected

by the state action; (2) the risk of erroneous deprivation of this interest through the

procedures used by the state and the probable value, if any, of additional procedural

safeguards; and (3) the state’s interest, including the fiscal and administrative burdens that

the additional procedure would entail. Id. at 340-49.

The Legislature argues that this claim is wholly duplicative of plaintiffs’ Anderson-

Burdick argument and should therefore be dismissed. (Wis. Leg. Opp’n (dkt. #200) 31.)

As this court observed in its previous order, the Supreme Court’s Anderson-Burdick balancing

test is grounded in both the Fourteenth and First Amendments. (See Order (dkt. #170)

27 n.15 (citing Burdick, 504 U.S. at 434).) Moreover, “[i]n Burdick v. Takushi, the Court

emphasized that [the Anderson-Burdick] test applies to all First and Fourteenth Amendment

challenges to state election laws.” Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944,

948 (7th Cir. 2019) (emphasis in original). Further, despite the Mathews and Anderson-

Burdick tests involving a similar balancing analysis, plaintiffs do not explain how, if at all,

their separate procedural due process claim is distinguished from their undue burden claim.

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Nevertheless, the Legislature also fails to point to any rule requiring the court to

dismiss plaintiffs’ claim simply because it appears to be duplicative. 6 Cf. Glenwood Halsted

LLC v. Vill. of Glenwood, 866 F. Supp. 2d 942, 948 (N.D. Ill. 2012) (“There is no need to

decide at the pleadings stage which constitutional provision necessarily governs

Plaintiff’s claims.”). Accordingly, the court will not hold that plaintiffs’ due process claim

is futile simply because it is largely, if not entirely, duplicative. At the same time, unless

plaintiffs are able to articulate a specific legal or factual rationale for applying the Mathews

test over the Anderson-Burdick test in evaluating a challenged provision, the court will

analyze their claims under the latter standard.

The Legislature argues that plaintiffs’ procedural due process claim should be

dismissed for the same reasons that their undue burden claim should be dismissed: they

fail to allege private burdens that, as a matter of law, overcome the state’s interest in

preserving the integrity of its elections. (Wis. Leg. Opp’n (dkt. #200) 31-32.) For the

same reasons identified above, however, the court concludes that plaintiffs have plausibly

stated a claim and any balancing analysis is better undertaken with the benefit of a more

developed evidentiary record.

C. Equal Protection Clause

Plaintiffs’ last proposed claim sounds under the equal protection clause and is

6
The Legislature cites generally to Albright v. Oliver, 510 U.S. 266 (1994), but that case stands only
for the proposition that a plaintiff cannot bring a generalized substantive due process claim where a
particular Amendment “provides an explicit textual source of constitutional protection.” Id. at 273
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 16 of 20

premised on the Supreme Court’s holding in Bush v. Gore, 531 U.S. 98 (2000) (per curiam),

that “[h]aving once granted the right to vote on equal terms,” a state may not “by later

arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at

104-05. Generally, plaintiffs claim here that voters were subject to arbitrary and disparate

treatment during the recent April election with respect to “[s]afe and sufficient in-person

registration, absentee voting, and election-day voting opportunities.” (Proposed SAC (dkt.

#198-1) ¶ 94.) More specifically, plaintiffs allege that: (1) the application of

documentation requirements varied broadly; (2) voters received conflicting guidance on

the witness requirement; (3) the standards for what constituted a valid postmark varied

across localities; and (4) the “indefinitely confined” exception is defined and enforced

differently by local election officials. (Id. ¶¶ 95-96.) Given these allegations, the court

cannot conclude that plaintiffs’ equal protection claim is futile.

III. Burford Abstention

Finally, the Legislature argues that plaintiffs’ motion to amend their complaint is

futile because Burford abstention requires that this court dismiss or stay all of plaintiffs’

proposed claims. Abstention under the Burford doctrine is appropriate where (1) “timely

and adequate state-court review is available” and (2) federal intervention would be

“disruptive of state efforts to establish a coherent policy with respect to a matter of

substantial public concern.” New Orleans Public Serv., Inc. v. Council of City of New Orleans,

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 17 of 20

491 U.S. 350, 361 (1989) (“NOPSI”). 7 In examining Burford and its progeny, the Seventh

Circuit has held that this abstention doctrine contains “two essential elements”: (1) “the

state must offer some forum in which claims may be litigated”; and (2) “that forum must

be special -- it must stand in a special relationship of technical oversight or concentrated

review to the evaluation of those claims.” Prop. & Cas. Ins. Ltd. v. Cent. Nat. Ins. Co. of

Omaha, 936 F.2d 319, 323 (7th Cir. 1991). The Supreme Court has further cautioned

that there is only a “narrow range of circumstances in which Burford can justify the

dismissal of a federal action.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726 (1996).

In particular, where federal issues eclipse state ones, the Seventh Circuit advised that

principles of federalism do not warrant deference to a state regulatory regime. Hammer v.

United States Dep’t of Health & Human Servs., 905 F.3d 517, 532 (7th Cir. 2018).

The Legislature contends that this court “should abstain from adjudicating

Plaintiffs’ claims under Burford, due to the extreme disruption that such intervention would

cause to Wisconsin’s important interests in comprehensive election administration.” (Wis.

Leg. Opp’n (dkt. #200) 35.) This is not the first time that the Legislature has advanced

this argument, having previously urged this court to stay or dismiss this case under the

Burford abstention doctrine in response to plaintiffs’ first TRO request, albeit then in an

amicus brief. (See Wis. Leg. Br. (dkt. #23) 2, 17-20.) The court was not persuaded by the

Legislature’s argument then (see Order (dkt. #37) 17 n.12), nor is it persuaded now.

7
Burford abstention may also apply where a federal court is faced with “difficult state-law questions
bearing on policy problems of substantial public import.” NOPSI, 491 U.S. at 361. But the
Legislature does not argue that this type of Burford abstention is applicable to this case, nor could
it, as plaintiffs here bring exclusively federal law claims.

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 18 of 20

As plaintiffs point out, the Legislature’s assertion that plaintiffs’ claims may be

litigated by Wisconsin state courts ignores that these courts are not specialized tribunals

with a special relationship with voting rights issues. See Adkins v. VIM Recycling, Inc., 644

F.3d 483, 504 (7th Cir. 2011) (“judicial review by state courts with specialized expertise is a

prerequisite to Burford abstention”) (emphasis in original). Moreover, plaintiffs cite to

numerous decisions holding that Burford abstention is inappropriate in federal

constitutional challenges to state elections laws. E.g., Siegel v. LePore, 234 F.3d 1163, 1174

(11th Cir. 2000); Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981); Edwards v.

Sammons, 437 F.2d 1240, 1244 (5th Cir. 1971); League of Women Voters of Fla., Inc. v.

Detzner, 354 F. Supp. 3d 1280, 1283 (N.D. Fla. 2018); Mich. State A. Philip Randolph Inst.

v. Johnson, 209 F. Supp. 3d 935, 943 (W.D. Mich. 2016); Bogaert v. Land, 675 F. Supp. 2d

742, 747 (W.D. Mich. 2009). Accordingly, the court finds that plaintiffs’ amended

complaint is not futile due to the Burford abstention doctrine.

Still, the court is mindful of the special role assigned the Wisconsin Election

Commission in preparing for the August and November elections and will certainly take

into consideration its actions in determining what steps, if any, a federal court should or

may undertake in protecting the right of Wisconsin voters. Although given its recent

history of strict adherence to the Wisconsin statutory requirements and deadlocking over

any creative efforts to vindicate voter rights even if the statutes arguably allow them, this

court would be remiss in abstaining from exercising its role in protecting the federal

constitutional rights of Wisconsin voters, if necessary.

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 19 of 20

IV. Next Steps

In light of the impending August and November elections, and in an effort to

adjudicate the claims presented in this case efficiently, the court will set the following

schedule. If they have not already done so, the parties should commence expedited

discovery immediately. The parties should be restrained in their requests and should also

endeavor to turn around written responses within 7 to 10 days, as well as schedule any

needed depositions shortly thereafter.

On or before June 25, 2020, WEC is directed to file a statement addressing the

following issues: (1) what measures WEC is taking or anticipates taking to prepare for the

August and November 2020 elections; (2) whether WEC believes that any additional

requested relief would improve the administration of those elections; and (3) whether

WEC believes it has the statutory authority to provide any of the relief requested by

plaintiffs. The court will then hold a status conference with the parties on Monday, June

29, 2020, at 10:00 a.m..

ORDER

IT IS ORDERED that:

1) Plaintiffs’ motion for leave to file a second amended complaint (dkt. #198) is
GRANTED.

2) The Wisconsin Legislature’s motion to dismiss (dkt. #197) is DENIED as
moot and all defendants and intervening defendants may have until June 30,
2020, to answer, move to dismiss, or otherwise respond to plaintiffs’ second
amended complaint.

Case: 3:20-cv-00249-wmc Document #: 217 Filed: 06/10/20 Page 20 of 20

3) The schedule and deadlines as described in the opinion above is adopted.

Entered this 9th day of June, 2020.

BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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