Motion of Plaintiffs Democratic National Committee — Democratic National Committee v. Marge Bostelmann (Document 252)

Summary

The Democratic National Committee and Democratic Party of Wisconsin move under Rule 65 of the Federal Rules of Civil Procedure for a renewed preliminary injunction, dated July 8, 2020, citing the November General Election. They seek to restrain enforcement of the Election Day Receipt Deadline, the absentee witness-signature requirement, the photo identification and proof-of-residence requirements and the registration deadlines, unless the State provides an appropriate safety net. The requested relief includes barring rejection of registrations received by October 30, 2020 and of ballots postmarked on or before November 3, 2020 that arrive within a minimum of ten days. The motion says the Court's earlier orders saved 79,054 voters from disenfranchisement. It is signed by John Devaney of Perkins Coie LLP.

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      Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 1 of 7




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



DEMOCRATIC NATIONAL COMMITTEE, et al.,
    Plaintiffs,
      v.
MARGE BOSTELMANN, et al.,
    Defendants,                               Civil Action No.: 3:20-cv-249-wmc
      and
REPUBLICAN NATIONAL COMMITTEE, et al.,
      Intervening Defendants.



SYLVIA GEAR, et al.,
      Plaintiffs,
      v.
MARGE BOSTELMANN, et al.,
                                              Civil Action No.: 3:20-cv-278-wmc
      Defendants,
      and
REPUBLICAN NATIONAL COMMITTEE, et al.,
      Intervening Defendants.



CHRYSTAL EDWARDS, et al.,
      Plaintiffs,
      v.
ROBIN VOS, et al.,
                                              Civil Action No. 3:20-cv-340-wmc
      Defendants.
      and
REPUBLICAN NATIONAL COMMITTEE, et al.,
      Intervening Defendants.

        Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 2 of 7




JILL SWENSON, et al.,
   Plaintiffs,
   v.
MARGE BOSTELMANN, et al.,
                                                            Civil Action No. 3:20-cv-459-wmc
   and
REPUBLICAN NATIONAL COMMITTEE, et al.,
   Intervening Defendants




          MOTION OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE
                   AND DEMOCRATIC PARTY OF WISCONSIN
                  FOR RENEWED PRELIMINARY INJUNCTION

         Plaintiffs DEMOCRATIC NATIONAL COMMITTEE (“DNC”) and DEMOCRATIC

PARTY OF WISCONSIN, by and through their attorneys, respectfully move the Court pursuant

to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction restraining

Defendants and their respective agents, officers, employees, and successors, and all persons

acting in concert with each or any of them, from enforcing (1) the requirement that polling places

receive absentee ballots by 8:00 p.m. on election day for ballots to be counted (“Election Day

Receipt Deadline”), Wis. Stat. § 6.87; (2) the requirement that absentee ballots be signed by a

witness, id. § 6.87(2), unless the State provides an appropriate “safety net” as described in the

accompanying brief; (3) the requirement that photo identification accompany absentee ballot

applications, id. §§ 6.86, 6.87, unless the State provides an appropriate “safety net” as described

in the accompanying brief; (4) the requirement that copies of proof of residence accompany

electronic and by-mail voter registration, id. § 6.34, unless the State provides an appropriate

“safety net” as described in the accompanying brief; and (5) the by-mail and electronic voter

registration deadlines, id. § 6.28(1). Plaintiffs also challenge the Defendants’ failure to provide


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       Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 3 of 7



sufficient financial, personnel, and other resources to ensure an adequate number of in-person

absentee voting sites and election-day polling places to accommodate voters in a safe and secure

manner pursuant to its authority to administer Wisconsin’s elections, id. § 5.05 (collectively,

these provisions are the “Challenged Provisions”).

       Since the election held on April 7, 2020, evidence continues pouring in that the COVID-

19 pandemic is getting worse, governmental responses are falling woefully short, and the

electoral process in place for the November General Election is threatened absent judicial

intervention. Plaintiffs are entitled to a preliminary injunction because they are substantially

likely to succeed on the merits of their claims that the Challenged Provisions severely burden the

rights of Wisconsin voters, deprive them of equal protection under the law, and deprive them of

their liberty interest in voting without due process.

       The United States’ unprecedented pandemic is getting worse—not better—as the number

of cases continue to rise. Wisconsinites continue to socially distance themselves to try to slow

the spread of the coronavirus. And, if the Spring Election taught the world anything, it is that

Wisconsin voters vastly prefer voting by mail during a pandemic than risking their health and the

health of their loved ones by congregating into polling places. Wisconsin voters—including

thousands of Plaintiffs’ members and constituents—should not again be forced to make the

untenable choice between violating governmental guidelines on self-isolation and social

distancing to exercise their fundamental right to vote. Yet, the Challenged Provisions continue to

do just that by forcing some voters but not others to resort to in-person registration—or depriving

them of any registration option whatsoever. Likewise, voters are forced to leave their homes to

copy documents or obtain witness signatures. Even more, the Challenged Provisions impose

arbitrary deadlines that simply cannot be met during this crisis.




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       Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 4 of 7



        Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief,

and traditional legal remedies will not adequately protect their rights. Further, the harm to

Plaintiffs and Wisconsin voters outweighs any potential harm to the State. Finally, it almost goes

without saying that Plaintiffs’ requested relief is in the public interest.

        According to Wisconsin Election Commission data, the Court’s modest deadline

extensions in its prior injunctive relief allowed 57, 187 Wisconsin voters to register online after

March 18 without having to venture out to register in-person. And the Court’s relief saved

79,054 voters from disenfranchisement by requiring that their timely-cast and mailed absentee

ballots be counted if received by April 13 (and were otherwise valid). In other words, if not for

the Court’s orders, tens of thousands of Wisconsinites—if not more—would have been deprived

of their voting rights. This Court’s orders resulted in the protection and expansion of democracy.

Regrettably, in the absence of effective leadership by Wisconsin’s elected leaders, this Court

must act again to prevent massive disenfranchisements in the November general election.

        For the foregoing reasons, and as set forth in the accompany Memorandum in Support of

Plaintiffs’ Renewed Motion for Preliminary Injunction, as well as accompanying Findings of

Facts, exhibits, expert report, and declarations, the DNC and Democratic Party of Wisconsin

respectfully request that this Court grant a Preliminary Injunction and enter judgment:

        A.      Declaring that in the context of the current coronavirus crisis, Wisconsin’s current

by-mail and electronic registration deadlines, Wisc. Stat. § 6.28(1); requirements that copies of

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

absentee applications, id. § 6.34, 6.86, respectively; requirement that polling places receive

absentee ballots by 8:00 p.m. on election day to be counted, id. § 6.87; and requirement that an

absentee voter obtain the signature of a witness attesting to the accuracy of personal information




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        Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 5 of 7



on an absentee ballot, id. § 6.87(2); together with defendants’ failure to ensure that all citizens

have safe and sufficient opportunities to register and vote in person, are unconstitutional in

violation of the First and Fourteenth Amendments;

        B.     Enjoining defendants and their respective agents, officers, employees, and

successors, and all persons acting in concert with each or any of them, from rejecting electronic

and by-mail registrations that are received by the relevant clerk’s office by Friday, October 30,

2020.

        C.     Enjoining defendants and their respective agents, officers, employees, and

successors, and all persons acting in concert with each or any of them, from rejecting ballots that

are postmarked on or before November 3, 2020 and arrive at the municipal clerk’s office within

a minimum of ten days thereafter, subject to the definition of “postmarked” discussed in the

accompany Memorandum in Support of Plaintiffs’ Renewed Motion for Preliminary Injunction;

        D.     Enjoining in part the enforcement of the witness requirement in Wis. Stat. §

6.87(2) as applied to those absentee voters who certify under penalty of perjury that they are

unable after making reasonable efforts to obtain a witness signature and provide contact

information for local election officials to follow up immediately if they have any questions or

concerns.

        E.     Enjoining in part the enforcement of the photo identification requirements in Wis.

Stat. §§ 6.86 and 6.87 and the proof of residency requirement in Wis. Stat. § 6.34 for voter

registrations until the COVID-19 crisis is over, as applied to those absentee voters who certify

under penalty of perjury that they are unable after making reasonable efforts to obtain a witness

signature and provide contact information for local election officials to follow up immediately if

they have any questions or concerns.




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       Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 6 of 7



       F.      Ordering defendants to exercise their statutory authority and responsibility, see

Wis. Stat. § 5.05(1), to develop and implement regulations, plans, and/or other administrative

steps to (a) coordinate available state, local, and private resources to ensure that all voters

throughout the State are able to cast early in-person absentee ballots and to vote in-person on

election day in a safe and secure manner; and (b) conduct a continuing public information

campaign informing voters of their in-person and absentee voting options and requirements, with

defendants required to report back to the Court on its progress in implementing this relief and

plans for future steps through the election;

       G.      Awarding plaintiff their costs, expenses, and reasonable attorneys’ fees pursuant

to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and

       H.      Granting such other relief as the Court deems just and proper.



Dated this 8th day of July, 2020
                                                  Respectfully submitted,

                                                  /s/ John Devaney
                                                  Marc E. Elias
                                                  John Devaney
                                                  Bruce V. Spiva
                                                  Amanda R. Callais
                                                  Zachary J. Newkirk
                                                  PERKINS COIE LLP
                                                  700 Thirteenth St., N.W., Suite 800
                                                  Washington, D.C. 20005-3960
                                                  Telephone: (202) 654-6200
                                                  Facsimile: (202) 654-9959
                                                  melias@perkinscoie.com
                                                  jdevaney@perkinscoie.com
                                                  bspiva@perkinscoie.com
                                                  acallais@perkinscoie.com
                                                  znewkirk@perkinscoie.com

                                                  Charles G. Curtis, Jr.
                                                  Michelle M. Umberger


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Case: 3:20-cv-00249-wmc Document #: 252 Filed: 07/08/20 Page 7 of 7



                                Sopen B. Shah
                                Brandon M. Lewis
                                PERKINS COIE LLP
                                33 East Main Street, Suite 201
                                Madison, Wisconsin 53703-3095
                                Telephone: (608) 663-7460
                                Facsimile: (608) 663-7499
                                CCurtis@perkinscoie.com
                                MUmberger@perkinscoie.com
                                SShah@perkinscoie.com
                                BLewis@perkinscoie.com

                                Counsel for Plaintiffs in Case No. 20-cv-249-wmc




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