And Democratic Party Of Wisconsin v. Case No.
Summary
Defendants' Brief in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction in Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann, et al., Case No. 20-CV-0249, in the U.S. District Court for the Western District of Wisconsin, filed March 20, 2020 as Document 26. The defendants are sued in their official capacities as Wisconsin Elections Commissioners. The brief argues that most Wisconsin voters can still vote absentee during COVID-19 and that changing election rules weeks before the April 7, 2020 election risks voter confusion and uneven statewide implementation. It describes the risks of reopening online registration after the March 18 deadline, extending by-mail registration, and altering proof of residency rules, citing Purcell. The 34-page brief is signed by Assistant Attorney General Brian P. Keenan.
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“And Democratic Party Of Wisconsin v. Case No.”
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DEMOCRATIC NATIONAL COMMITTEE
AND DEMOCRATIC PARTY OF WISCONSIN,
Plaintiffs,
v. Case No. 20-CV-0249
MARGE BOSTELMANN, JULIE M. GLANCEY,
ANN S. JACOBS, DEAN KNUDSON, ROBERT
F. SPINDELL, JR., AND MARK L. THOMSEN,
IN THEIR OFFICIAL CAPACITIES AS
WISCONSIN ELECTIONS COMMISSIONERS,
Defendants.
DEFENDANTS’ BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Defendants Marge Bostelmann, Julie M. Glancey, Ann. S. Jacobs, Dean
Knudson, Robert F. Spindell, Jr., and Mark L. Thomsen, by their attorneys,
Eric J. Wilson, Deputy Attorney General, and Brian P. Keenan, S. Michael
Murphy, and Jody J. Schmelzer, Assistant Attorneys General, submit this
response in opposition to Plaintiffs’ motion for temporary restraining order and
preliminary injunction.
INTRODUCTION
As the Court recognized at yesterday’s hearing, this case is not really
about deficiencies in Wisconsin’s systems for voter registration or requesting
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absentee ballots. Instead, the plaintiffs challenge that those systems have
become unconstitutional because voting on election day—and thus election-day
registration—is more burdensome than normal due to the COVID-19 virus.
While the virus is of great public concern, and has required significant
protective measures, most Wisconsin voters can still vote absentee if they no
longer wish to go to the polls. The burdens the plaintiffs allege apply to subsets
of the voting population, and they have not shown the number of voters
affected or the specific burdens those voters face. Given the risks of changing
election law within weeks of the election—voter confusion and inability to
ensure these changes are effectuated statewide—the Court should deny the
plaintiffs’ motion.
RELEVANT FACTS
WEC administers and enforces Wisconsin elections law. (Wolfe Decl.
¶ 3.) 1 In administering elections, WEC works with the State’s county and
municipal clerks. (Id.) In Wisconsin, there are 72 county clerks and 1,850
municipal clerks. Over 60 percent of the State’s municipal clerks are part-time.
(Id.)
1 WEC is and administrative agency that does not have the authority to delay,
cancel or reschedule our upcoming April 7 election, nor does it have the authority to
make changes to existing laws and regulations. (Wolfe Decl. ¶ 4.)
2
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While the WEC is tasked with the enforcement of chapters 5 to 10, and
12, Wis. Stats., due to the decentralized nature of election administration in
Wisconsin, voter registration, absentee balloting and administering the photo
ID law are all done by local election officials. (Id.) For example, the WEC issues
clerk communications, training materials and forms for local clerks, but
ultimately local clerks are tasked with implementing any changes in policy or
the law in their community. (Id.)
In Wisconsin, the presidential preference primary and spring election is
on April 7, 2020. (Wolfe Decl. ¶ 5.) In addition to the presidential primary,
there is an election for a Justice of the Wisconsin Supreme Court and elections
for many local offices including mayors and members of local governing bodies
in each of the state’s municipalities. (Id.)
In general, implementation of any changes to the rules for the April 7
election would be complicated due to Wisconsin’s decentralized election
administration structure discussed above. (Wolfe Decl. ¶ 6.) Approximately
two-thirds of the municipal clerks in Wisconsin municipalities responsible for
conducting elections are employed part-time. (Wolfe Decl. ¶ 7.) Communicating
significant changes to those clerks, making necessary modifications to IT
applications and ensuring consistent implementation across the state would
pose a significant challenge under the compressed timeline available. (Id.)
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I. Changes to the March 18 online and by-mail registration
deadline.
There are several different ways to register to vote in Wisconsin. (Wolfe
Decl. ¶ 8.) Prior to Election Day, voters can register in three different ways: (1)
electronic registration through https://myvote.wi.gov (MyVote), which is the
voter facing web application that is the public’s interface with election systems;
(2) by mailing the registration form and proof of residence document to the
appropriate local election official; or (3) in person at the office of the municipal
clerk, the municipal board of elections, or at another location authorized by the
municipality. (Id. ¶ 9.)
Under current law, the deadline for online and by-mail voter registration
is 20 days prior to the election. Wis. Stat. §6.28(1)(a). For the April 7 election,
that was the end of the day on Wednesday, March 18. (Id. ¶ 10.)
A. Reactivation of the online voter registration system.
Because the deadline for online voter registration has now passed, the
online system would have to be reactivated to accept new voter registrations.
(Wolfe Decl. ¶ 11.) From a technical standpoint, the reactivation of the online
registration process is possible, but not without significant risk. (Id.) There are
essentially three steps required that could be completed in approximately
48–72 hours:
Step 1: Modifying code in MyVote. This would effectively reset the
“clock” that tells MyVote to stop accepting on-line registration requests.
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A software developer would have to set a new deadline, if ordered by the
Court.
Step 2: Testing of the new code. This step is more critical and
requires more time to complete correctly. Moving on from this step
should be based on meeting appropriate testing standards and not based
on passage of time. Testing evaluates the proper function of code
changes to validate correct operation and the absence of errors or other
defects. Because the registration process includes an interface (API)
with the Department of Transportation (DOT) (see Paragraph 23,
below), testing may require collaboration with DOT. If necessary,
debugging would occur before testing is complete. This step also includes
testing of the statewide voter registration system to ensure that the
voter registration is entered into the system with the correct status and
that information is mapped correctly to the pollbook.
Step 3: Deployment. The final step is to release and activate the new
code, making it accessible to the public. This process would also include
the deployment of public notices on both MyVote and the WEC website
indicating the system changes
(Id.)
There is significant risk involved in deploying software changes to the
election systems that function as the backbone of election management in the
state in the weeks preceding a statewide election. (Wolfe Decl. ¶ 12.) Such a
change would violate a statewide enterprise level change freeze enacted to
protect critical elections operations from unintentional disruption. (Id.) During
a change freeze, all state agencies are prohibited from making changes to any
state agency information technology services and servers in order to mitigate
the risk that errors or security vulnerabilities are introduced to state election
systems. (Id.) Deployment of any software changes can produce unanticipated
consequences. The changes freeze guards against that possibility. (Id.)
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When the system is functioning properly, online registrations are
processed immediately and would ordinarily be completed with little
discernable delay. (Wolfe Decl. ¶ 13.) But reactivation of online registration
capabilities would have various impacts on local election officials and voters.
(Id.) The most significant effect for clerks and other election would be on
municipal poll books. (Wolfe Decl. ¶ 14.) Most large municipalities, and many
counties, send their poll books to publishers for printing immediately after the
online registration deadline passes. (Id.) In these jurisdictions, this means that
any voter who registered after March 18 would not appear in these poll books.
(Id.) Instead, voters registering after March 18 would appear in either the
supplemental or post-supplemental poll book. (Id.) In communities using
electronic pollbooks, the voter file needs to be uploaded at least a week prior to
the election so that it can be tested. (Id.)
The reactivation of on-line registration would also produce more
registration list alerts for clerks. (Wolfe Decl. ¶ 15.) These electronic notices
require clerks to validate, and sometimes process, changes to voter records in
their jurisdictions. (Id.) Processing these alerts ensures the correct voters
appear on the poll list. (Id.)
For voters, the risk of confusion would likely present the greatest
challenge to reactivation of the electronic database. (Wolfe Decl. ¶ 16.) The
registration deadline is referenced in dozens of documents, forms, and web
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pages. (Id.) Locating and changing all the existing language would be
impractical and introduce problems for future elections, including the May 12,
2020 election in Congressional District 7. (Id.)
An extended deadline for online and by-mail voter registration would
likely impact municipal clerk’s opportunity to cure defects. (Wolfe Decl. ¶ 19.)
By-mail applications are more likely to be missing information than online
applications. (Id.) When applications are received weeks ahead of the election,
clerks have time to contact voters and obtain missing information. (Id.) But
busy clerks in the days immediately prior to an election may be unable to
contact voters to correct defects, or voters may lack adequate time to respond
to clerk inquiries. (Id.) Voters appearing at a polling location expecting to be
registered but not appearing on any poll list due to a defect that was not cured,
is a real issue that could affect voter’s confidence in the entire process, not to
mention the possibility that the voter may not be able to cast a ballot if they
are unable to register at the polls. (Id.)
Lastly, communicating changes to the online and by-mail registration
deadlines to 1,850 municipal clerks and 72 county clerks and to voters would
be challenging, as would attaining consistent application throughout the state.
(Wolfe Decl. ¶ 20.)
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B. Processing online and by-mail voter registrations if the
deadline was extended.
The process for by-mail voter registrations would not change
significantly if deadlines were extended to April 3. (Wolfe Decl. ¶ 17.) As with
online registrations, these voters could appear on supplemental or post-
supplemental poll books. (Id.)
The primary election administration concern would be practical
implementation of a new deadline imposed by the Court. (Id. ¶ 18.) The
problem is that a mailing-date based deadline does not account for mail delays.
(Id.) Poll books need to be final at some point before the election, and it is
impossible to know whether a timely-sent registration with a later deadline is
still in the mail at the time of poll book finalization. (Id.) Currently, mailed
registrations must be postmarked by March 18. (Id.) A postmark-based
deadline, however, may not work for an extended deadline. (Id.) This is because
mailed registration forms that arrive after April 3 would risk that the voter
does not appear in the poll book on April 7. (Id.) Clerks would need to process
these registration forms and, with the April 7 election approaching,
registration forms received after April 3 may not be able to be processed. (Id.)
Instead, a new deadline for by-mail registrations would need to be defined by
the arrival date or, alternatively, be set so early as to effectively eliminate the
risk that by-mail registrations would arrive after April 3. (Id.) Further, given
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that this lawsuit assumes that these new registrants would be requesting
absentee ballots, applications received very close to the election would likely
not allow time for the ballot to be sent to and returned by the voter. (Id.)
There is no way to establish a uniform “drop dead” cutoff date for new
by-mail voter registrations, because what works for one municipality may not
work for all 1,850 municipalities. (Wolfe Decl. ¶ 21.) For example, the City of
Milwaukee will soon start printing poll books. (Id.)
II. The proof of residency requirement for new voter registrations.
In registering to vote, an elector needs to fill out a form containing
information showing that he or she meets the qualifications for voting in Wis.
Stat. § 6.02 and submit proof of the elector’s residence per Wis. Stat. § 6.34.
(Wolfe Decl. ¶ 22.) There are many acceptable forms of proof of residency,
including common documents like a gas, electric, or telephone service
statement (utility bill) for the period commencing no earlier than 90 days
before Election Day or a bank or credit card statement. (Id. ¶ 23.) Voters may
present a proof of residency document as a hard copy, paper document or an
electronic document on your smartphone, tablet, or computer. (Id. ¶ 24.)
Voters registering at the polls on election day do not need to make a
photocopy of their proof of residency document. (Id. ¶ 25.) They only need to
show the proof of residency document to the poll worker. (Id.)
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Only voters with a valid, unexpired Wisconsin driver license or
Wisconsin state ID card may register to vote online. (Wolfe Decl. ¶ 26.) To
register online, the address at which the voter is registering must match the voters’
address with DOT. (Id.) When the website is active, these voters can complete
their online registration immediately. (Id.) If the address at which the voter
wishes to register is different from that with the DOT, then the voter needs to
update their address with DOT before registering online. (Id.) A person can
change their address with DOT online. (Id.) For those that attempt to register
but whose voting addresses or other data do not match information in the DOT
database, the website directs them to the DOT website. (Id.) When the online
registration system is running, the DOT address change occurs quickly, and
the voter can then proceed complete their online voter registration. (Id.) For
these individuals, no proof of residency is needed because the DMV matching
with the voter’s name, date of birth, address, and driver license number
provided for voting purposes serves as the voter’s proof of residency. (Id.)
People unable to register online, because they do not have a Wisconsin
driver license or state ID card or because their DMV product is invalid or
cannot match, can fill out the voter registration form online, then print it, sign
it and mail or deliver it to their municipal clerk’s office along with a copy of a
proof of residence document. (Wolfe Decl. ¶ 27.) Voters can send an original of
any proof of residency document if they no longer need the document. (Id.)
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Voters may also deliver the registration form (with proof of residence) to
their municipal clerk’s office by the Friday before the election, or they may
bring it to their polling place on election day. (Wolfe Decl. ¶ 28.) For either of
these options, the voter need only show the document to the municipal clerk or
poll worker and does not need a copy of the proof of residency document. (Id.)
Once an individual is registered to vote, that registration is valid until
they move, change their name or otherwise no longer meet the qualifications
of an elector under Wis. Stat. § 6.02, or become disqualified under Wis. Stat.
§ 6.03. (Wolfe Decl. ¶ 29.) If an individual were permitted to register to vote
without submitting the required proof of residency document, that
requirement would essentially be waived for as long as their registration is
valid, unless a court order or legislation required submission of such
documentation at a later date. (Id.)
III. Voter ID requirements for absentee ballots.
Individuals must be registered to vote to request an absentee ballot.
(Wolfe Decl. ¶ 30.) The deadline for registered voters to request an absentee
ballot be mailed to them is the Thursday before the election, which is April 2
for the upcoming April 7 spring election. (Id.)
There are several ways registered voters can request absentee ballots.
(Wolfe Decl. ¶ 31.) The easiest way is to sign up at MyVote website. (Id.) If the
elector has a photo ID on file with their clerk’s office due to a previous absentee
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by-mail request, they do not need to upload or mail a copy of their ID to get an
absentee ballot. (Id.) If the elector does not already have a photo ID on file with
their clerk’s office, they must upload a copy. (Id.) The elector can take a picture
and upload it on the MyVote website with the same device used to access the
website. (Id.) Devices such as a computer, tablet, or phone can take a picture
and upload it. (Id.) The entire process of requesting a ballot, taking a picture
of an ID, and uploading the picture can be done with a smart phone. (Id.)
Voters can also request absentee ballots by mailing, emailing or faxing
their municipal clerk’s office. (Wolfe Decl. ¶ 32.) See also Wis. Stat. § 6.86(a)1,
(ac). Voters can find their clerk’s contact information on MyVote. (Id.) Just as
with online requests, if voters already have a photo ID on file from previous
absentee requests under their current registration, they will not need to
provide it again. (Id.) If voters do not have a photo on file, their request must
be accompanied by a copy of their photo ID. (Id.)
Voters who are indefinitely confined, meaning they may have difficulty
getting to the polls for reason of age, illness, infirmity, or disability are not
required to provide a photo ID. (Wolfe Decl. ¶ 33.) Voters in care facilities can
have a representative of the facility confirm the resident's identity instead of
providing a photo ID. (Id.)
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IV. Relevant deadlines after the April 7 election.
After the polls close on April 7, 2020, election inspectors tabulate the
votes received at the polling place, municipal clerks report the returns within
two hours after tabulation, and the county clerks post the results within two
hours after receiving the returns. (Wolfe Decl. ¶ 34.) See Wis. Stat. §§ 7.51(1),
(4), 7.60(1). Municipalities have two ways to count absentee ballots. (Id.) In
some municipalities, absentee ballots are counted at the polling places. (Id.)
See Wis. Stat. §§ 6.88, 7.51. In other municipalities, a municipal board of
absentee ballot canvassers counts all absentee ballots in the jurisdiction. (Id.)
See Wis. Stat. § 7.52. The official results of the elections are not determined
until each official board of canvassers (for the municipality, county, state,
school district, or other special purpose district) has met and completed the
official canvass of their respective offices. (Id. ¶ 35.)
After the April 7, 2020 election, municipal boards of canvass have until
April 13 to certify the results to the county. (Wolfe Decl. ¶ 36.) The municipal
boards of canvass must publicly declare the results for municipal contests by
the third Tuesday of April. (Id.) See Wis. Stat. § 7.53(2)(d). This is also the date
that the term begins for most local offices. (Id.) County boards of canvass have
10 days to certify their election results to WEC, which is April 17, 2020. (Id.)
See Wis. Stat. § 7.60(5). WEC then must publicly canvass the returns wherein
it aggregates the election results. WEC has until May 15, 2020, to certify the
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election results for state and federal contests. (Id.) See Wis. Stat. § 7.70(3)(a).
WEC plays no role in tabulating votes received at polling places; its role is to
aggregate and certify the results. (Id. ¶ 37.)
It would be problematic to count absentee ballots received up to ten days
after the election given the canvass and certification deadlines because it
would have a domino effect on all the canvass processes and statutory
deadlines for each unit of government. (Wolfe Decl. ¶ 38.)
PRELIMINARY INJUNCTION LEGAL STANDARD
A preliminary injunction is an extraordinary and drastic remedy, and is
never awarded as a matter of right. Munaf v. Geren, 553 U.S. 674, 689–90
(2008). “[A]n injunction requiring an affirmative act by the defendant” must be
“cautiously viewed” and granted only “sparingly.” Graham v. Med. Mut. of
Ohio, 130 F.3d 293, 295 (7th Cir. 1997). “Preliminary relief is properly sought
only to avert irreparable harm to the moving party.” Chi. United Indus., Ltd.
v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006).
A “moving party must show that it has ‘(1) no adequate remedy at law
and will suffer irreparable harm if a preliminary injunction is denied and
(2) some likelihood of success on the merits.’” Wis. Right To Life, Inc. v.
Barland, 751 F.3d 804, 830 (7th Cir. 2014) (citation omitted); Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “For preliminary relief to be
granted, the irreparable harm must . . . be likely. That is, there must be more
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than a mere possibility that the harm will come to pass . . . .” Michigan v.
U.S. Army Corps of Eng’rs, 667 F.3d 765, 788 (7th Cir. 2011).
Only if the moving party shows likelihood of success on the merits and a
suffering of irreparable harm if the injunction does not issue, then “the court
weighs the competing harms to the parties if an injunction is granted or denied
and also considers the public interest.” Wis. Right To Life, 751 F.3d at 830
(citation omitted). “The equitable balancing proceeds on a sliding-scale
analysis; the greater the likelihood of success on the merits, the less heavily
the balance of harms must tip in the moving party’s favor.” Id.
(citation omitted).
A preliminary injunction “may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
Granting a preliminary injunction involves the “exercise of a very far-reaching
power” and is “never to be indulged in except in a case clearly demanding it.”
Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984)
(citations omitted).
ARGUMENT
Plaintiffs cannot meet their burden of proving that they are entitled to
the extraordinary remedy of a preliminary injunction. First, they cannot show
that they will suffer irreparable harm if the injunction is not issued. That alone
prevents the Court from granting their motion. Second, even if they could prove
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irreparable harm, they cannot show some likelihood of success on the merits
under the Anderson/Burdick balancing test. The Court should deny Plaintiffs’
motion.
V. Plaintiffs are not likely to succeed on the merits of their claims.
The plaintiffs are not likely to succeed on the merits of their four claims
under the Anderson/Burdick test, and their procedural due process claim is
redundant to those claims.
A. The Anderson/Burdick balancing test.
The Constitution both protects the right to vote and “confers on the
states broad authority to regulate the conduct of elections, including federal
ones.” Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004); see also U.S.
Const. art. I, § 4, cl. 1 (permitting States to prescribe “[t]he Times, Places and
Manner of Holding Elections for Senators and Representatives”). “Election
laws will invariably impose some burden upon individual voters.” Burdick v.
Takushi, 504 U.S. 428, 433 (1992). The general “constitutional question is
whether the restriction and resulting exclusion are reasonable given the
interest the restriction serves.” Griffin, 385 F.3d at 1130.
The question is answered by applying the Anderson-Burdick test, which
has two steps. At the first step, courts identify any burden on the right to vote,
weigh its character and magnitude, and measure its severity. Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 358 (1997) (citation omitted). Courts
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evaluate a law’s impact not in isolation but “as a part of [the State’s] electoral
scheme” as a whole. Burdick, 504 U.S. at 441. Any burdens imposed by the law
are to be measured against the baseline of “the usual burdens of voting.”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008) (opinion of
Stevens, J.).
In the second step of the analysis, a court turns to the State’s interests.
“If the burden on the plaintiffs’ constitutional rights is ‘severe,’ a state’s
regulation must be narrowly drawn to advance a compelling state interest,”
satisfying strict scrutiny. Stone v. Bd. of Election Comm’rs, 750 F.3d 678, 681
(7th Cir. 2014) (citation omitted). But “[i]f the burden is merely ‘reasonable’
and ‘nondiscriminatory,’ by contrast, the government’s legitimate regulatory
interests will generally carry the day.” Id. (citation omitted). Under this
flexible analysis, “[l]esser burdens . . . trigger less exacting review.” Timmons,
520 U.S. at 358, and “minimally burdensome and nondiscriminatory
regulations” in particular “are subject to a less-searching examination closer
to rational basis.” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir.
2016) (citations omitted). A justification’s sufficiency is generally a “legislative
fact” that must be accepted if reasonable. Frank v. Walker, 768 F.3d 744
(7th Cir. 2014); see Crawford, 553 U.S. at 194–97 (opinion of Stevens, J.);
see also Husted, 834 F.3d at 632.
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1. Plaintiffs’ are not likely to succeed on their request to
extend the March 18 electronic and by-mail voter
registration deadline.
The state has a valid interest in cutting off electronic and mail
registration three weeks before the election. After that date, clerks can begin
printing their poll books for use at polling locations. For example, the City of
Milwaukee will begin printing its poll books in the next few days, after the
online and mail registration date has closed. (Wolfe Decl. ¶¶ 14, 21.) Later
registrations can be added to a supplemental pool book but, at a certain point,
registration needs to close so that poll books can be finalized. Thus, Wisconsin’s
voter registrations system, which in ordinary circumstances is “easy,” Frank,
768 F.3d at 748, serves legitimate state interests in the orderly administration
of elections.
Plaintiffs argue that the March 18 deadline for online and by-mail voter
registration is unconstitutional, during the COVID-19 pandemic, because they
hypothesize that “potentially thousands of citizens” will be prevented from
voting because “registering in person is simply not feasible.” (Pl. Br. 1.)
Defendants recognize that some voters may face difficulties registering during
this time, but many voters will not be affected. Most voters do not need to
register to vote because they have already registered, and some voters were
able to register before the March 18 deadline. In addition, voters can still
register in person either at the clerk’s office (where they can also cast an
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absentee ballot at the same time) or at the polling place on election day. While
the Governor has issued an executive order preventing gatherings of 10 or
more people, the order exempts government facilities. And in-person absentee
voting and registration can be accomplished under the “curbside voting”
provisions of Wis. Stat. § 6.82. That process allows an elector to both register
and complete a ballot without entering the municipal clerk’s office during
absentee voting or the polling place on election day. There is no order
preventing someone from registering at the clerk’s office. While some subset of
voters may be burdened in today’s special circumstances, Plaintiffs have not
established either the number of voters or the burdens those voters would face.
The Seventh Circuit has made it clear that a plaintiff is not entitled to a
preliminary injunction based upon speculative allegations of potential harm to
the plaintiff. See Goodman v. Ill. Dep’t. of Fin. & Prof’l Regulation, 430 F.3d
432, 437 (7th Cir. 2005) (stating that a preliminary injunction “should not be
granted unless the movant, by a clear showing, carries the burden of
persuasion”).
As a counter-vailing interest, extending the deadline could negatively
impact the elections process. First, as it relates to electronic registration,
changing a software program this close to the election presents significant
risks in the event something goes wrong. (Wolfe Aff. ¶ 12.) This system is the
backbone of election management in the state, and thus changes to the system
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risk negatively impacting the entire election. (Wolfe Aff. ¶ 12.) There is a
statewide enterprise level change freeze enacted to protect critical elections
operations from unintentional disruption and mitigate the risk that errors or
security vulnerabilities are introduced to state election systems. (Wolfe Aff.
¶ 12.) Deployment of any software changes would violate that freeze and risks
unanticipated consequences that might negatively affect the election.
Further, Defendants do not handle mail-in registrations; local clerks
handle those. Given that there are 1850 municipal election clerks in Wisconsin,
there is a risk that any injunction regarding mail-in ballots will not be applied
in the same manner by each and every clerk. Both the communication and the
implementation of such a significant change would be a challenge so close to
the election given Wisconsin’s decentralized system, and would create
potential confusion and increased likelihood of mistakes in other aspects of
conducting the election. And mail-in applications with errors will likely result
in a failure to register because clerks will not have time to help voters fix
mistakes in their applications. (Wolfe Decl. ¶ 19.) The Court should consider
these potential problems when ruling on this aspect of Plaintiffs’ claims.
And even if the Court were to grant some relief, it would need to set a
deadline by which mail-in registrations are received—by April 3 at the latest—
in order to allow clerks to process the application prior to the election and get
a person’s name on a poll list. (Wolfe Decl. ¶ 18.) But given that Plaintiffs want
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late registrations for purposes of absentee voting, in order to be practical, the
date would need to be sufficiently ahead of election day to allow the absentee
ballot to be delivered to the voter and returned to the clerk. Plaintiffs allege
that the mail is slow, (Pl. Br. 2); mail from the clerk would be delayed the same
as mail from a voter. At a certain point, absentee ballots could not practically
be postmarked by election day—the extended deadline Plaintiffs’ request.
2. Plaintiffs are not likely to succeed on their request for
relief from the proof of residency requirement for
new voter registrations.
Wisconsin has a legitimate state interest in requiring voters to prove
that they live at the address at which they register to vote. Proof of residency
helps “ensur[e] that voters actually reside in the municipalities where they
register to vote.” One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896,
937 (W.D. Wis. 2016). That interest is especially relevant to the April 7
election, which involves elections for many local offices and the elector’s
address determines which local races he may vote in. Further, this Court found
that, at least in normal circumstances, the proof of residency requirements
“impose only slight burdens on voters.” One Wisconsin Inst., Inc. v. Thomsen,
198 F. Supp. 3d 896, 935 (W.D. Wis. 2016). That same analysis would apply to
voters attempting to register in person today, either at the polling place or with
the clerk. Even in today’s circumstances, the burden of supplying proof of
residence is slight for the vast majority of voters, and Plaintiffs have not
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established that a significant number of voters would face a burden or whether
that burden would be severe.
The potential burdens are limited to those who cannot easily print or
copy a proof of residence document. Plaintiffs do not offer evidence as to the
number of people this may affect or the specific burdens such a person might
face. Those without the ability to copy or print a proof of residence document
at home may be able to secure copies at commercial establishments like FedEx
stores, UPS stores, convenience stores, and any other store offering copying
services. The Governor’s executive orders have not shut down all stores, and
Wisconsin is not subject to a “shelter in place” directive. Plaintiffs’ only
evidence of difficulty is that the Madison library has closed, (Spiva Decl. Ex.
2), but libraries are not the only source for copying services (and some libraries
are still open). Thus, Plaintiffs have not proven the burdens on the narrow set
of voters who cannot easily provide a proof of residence document even in
today’s circumstances.
While online registration and registration by mail are no longer
available, the proof of residence requirement would not be an issue should the
Court grant the plaintiffs’ motion to extend those deadlines. Those who register
to vote online do not need to provide a separate proof of residence document.
Online registration is limited to those who have a valid Wisconsin drivers’
license or ID card. (Wolfe Decl. ¶ 26.) To register online, a person’s voter
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registration address must match the address on file with the Wisconsin
Department of Transportation (DOT). (Wolfe Decl. ¶ 26.) If there is a successful
match, then the voter is immediately registered to vote without providing a
proof of residence document—the DOT address serves as proof of residence.
(Wolfe Decl. ¶ 26.) If a person’s DOT address is outdated, they can change that
address online at the DOT website. (Wolfe Decl. ¶ 26.) When the system is
active, that change becomes effective in short order such that the person can
then register to vote. (Wolfe Decl. ¶ 26.) Thus, the burdens for those able to
register electronically are very small.
The same is true of those who register by mail. These individuals need
to send in a completed registration form by mail to their clerk’s office. Wis.
Stat. § 6.33; (Wolfe Decl. ¶ 27.) Many of them will print the application form,
which is available online (Wolfe Decl. ¶ 27), and mail it in. If individuals can
print the form, then they should also be able to print a proof of residence
document. Wisconsin allows many forms of proof of residence, Wis. Stat.
§ 6.34(a), such as a utility bill (including electric, utility or phone bills) or a
bank statement (including a credit card statement). (Wolfe Decl. ¶ 23.) Many
voters would have these documents either available to print from an online
source or in hard copy to send along with the application.
Lastly, this Court should consider that Plaintiffs are requesting that
voters be allowed to register—which extends beyond this one election—based
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on circumstances affecting the current election. While extending voter
registration for one election can be considered temporary relief because it
would not apply to future elections, allowing voters to register without
following the law is a form of permanent relief because it does apply to future
elections. (Wolfe Decl. ¶ 28.) The low burdens on voters in normal
circumstances, the large number of voters who can still provide proof of
residence, and Plaintiffs’ failure to provide any evidence in support of their
claims, provide additional reasons to deny Plaintiffs’ motion.
3. Plaintiffs are not likely to succeed on their request for
relief from the voter ID requirement with new
absentee ballot requests.
The important state interests served by a photo ID requirement for
voting are well-established. The Supreme Court and Seventh Circuit have
discussed these interests, including election system modernization, deterring
voter fraud, and safeguarding voter confidence. Crawford v. Marion Cty.
Election Bd., 553 U.S. 181, 192–97, 203 (2008) (holding that these interests
were sufficient to defeat a challenge to a voter ID law) (quotations omitted). As
the Seventh Circuit has described, “[t]he Supreme Court thought that a photo
ID requirement has other benefits: it deters fraud (so that a low frequency
stays low); it promotes accurate record keeping (so that people who have moved
after the date of registration do not vote in the wrong precinct); it promotes
voter confidence. Frank, 768 F.3d at 750 (citations omitted).
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Against these important interests, Plaintiffs offer nothing more than
speculation, and misguided speculation at that. They first imply that all people
who wish to vote by absentee ballot must include a copy of a photo ID with
their request. (Pl. Br. 8.) But a copy of an ID is only required the first time you
request an absentee ballot after registering. (Wolfe Decl. ¶¶ 31–32.) If the
elector has a photo ID on file with their clerk’s office due to a previous absentee
by-mail request, he or she does not need to submit another copy. (Wolfe Decl.
¶ 31.) Thus, the measures taken to protect against COVID-19 do not add any
additional burdens to voters who have previously voted via absentee ballot and
thus already have a photo ID on file.
Additionally, voters who are indefinitely confined, meaning they may
have difficulty getting to the polls for reason of age, illness, infirmity, or
disability are not required to provide a photo ID. Wis. Stat. § 6.86(2)(a); (Wolfe
Decl. ¶ 33.) And voters in care facilities can have a representative of the facility
confirm the resident’s identity instead of providing a photo ID. (Wolfe Decl.
¶ 33.) It is not the case that everyone voting absentee needs to provide a copy
of an ID, and the law already makes exceptions that apply to the elderly, ill,
and infirm, who are the people that Plaintiffs identify as “specifically at risk in
this pandemic.” (Pl. Br. 8.)
Plaintiffs next argue that voters seeking to vote absentee “means a voter
must locate a copier, scanner, computer, and/or printer.” (Pl. Br. 8.) This is
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inaccurate; requesting an absentee ballot can be accomplished entirely on a
computer, tablet, or even a phone. All a voter must do is visit the MyVote
Wisconsin website, https://myvote.wi.gov, and enter the request. (Wolfe Decl.
¶ 31.) A voter can satisfy the ID requirement by taking a picture of their ID
with their computer, tablet, or phone, and uploading the photo to the website.
(Wolfe Decl. ¶ 31.) Thus, many voters can satisfy this requirement without
even leaving their homes or with assistance from a family member or friend
with a smartphone. Plaintiffs do not argue, let alone demonstrate, that
accessing a device such as a phone is unduly burdensome.
Thus, the burden Plaintiffs allege—but do not support with evidence
from any voters—is limited to those who cannot use the website for requesting
an absentee ballot. Those voters who merely choose to request an absentee
ballot by fax or mail, but could use the website, are not burdened at all. Those
that cannot use the website, and are not indefinitely confined, and do not
already have a copy of their ID on file with the clerk, are required to submit a
printed copy of their ID. But those that print out their form to mail in would
have access to some printing capability, and some subset of that group would
be able to also copy their ID or take a photograph and print the photograph.
And those without the ability to use a copy machine or print a copy may be able
to secure copies at commercial establishments like FedEx stores, UPS stores,
convenience stores, and any other store offering copying services. The
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Governor’s executive orders have not shut down all stores. Plaintiffs’ only
evidence of difficulty is that the Madison library has closed, (Spiva Decl. Ex.
2), but libraries are not the only source for copying services. Plaintiffs have
submitted no evidence of the number of people that (1) must obtain a paper
copy of their ID and (2) are not able to secure a copy.
4. Plaintiffs are not likely to succeed on their request to
extend the date to accept absentee ballots.
Plaintiffs request that this Court enter an injunction that “prohibits
defendants from rejecting ballots that are postmarked before or on Election
Day that arrive within ten days of Election Day.” (Pl. Br. 15–16.) As an initial
matter, that relief may not grant Plaintiffs what they want because it does not
require that these ballots actually be counted in the first instance. WEC does
not count ballots, absentee ballots or otherwise. Instead, ballot counting is done
at the local level, with absentee ballots counted at polling places, Wis. Stat.
§ 6.88, or by a municipal board of absentee ballot canvassers, Wis. Stat. § 7.52.
(Wolfe Decl. ¶ 34.) WEC is not involved in counting these votes. (Wolfe Decl.
¶ 37.) Thus, ordering WEC to accept absentee ballots received after April 7
does not require that the ballots be counted in the first instance. This could
result in different treatment of ballots depending on whether those ballots are
counted at the local level.
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Wisconsin has a state interest in counting ballots received on election
day. Extending the deadline for counting ballots had a domino effect on
canvassing and certifying election results. (Wolfe Decl. ¶ 38.) Municipal boards
of canvass have until April 13 to certify the results to the county and must
publicly declare the results for municipal contests by the third Tuesday of
April. Wis. Stat. § 7.53(2)(d). This is also the date that the term begins for most
local offices. (Wolfe Decl. ¶ 36.) County boards of canvass have 10 days to
certify their election results to WEC, which is April 17, 2020. Wis. Stat.
§ 7.60(5). WEC then must publicly canvass the returns wherein it aggregates
the election results. (Wolfe Decl. ¶ 36.) Extending the deadlines to receive
absentee ballots will delay all these deadlines, including for local elections
where terms start in mid-April.
Plaintiffs have not shown that there is an unconstitutional burden.
Instead, they merely hypothesize that because absentee voting is likely to
increase this year and “the strains that the coronavirus pandemic is already
placing on the mail system and postal workers, there is a strong likelihood that
large numbers of mail-in ballots” will be received after April 7. (Pl. Br. 2.) Nor
do Plaintiffs explain why ballots postmarked up to election day should be
counted when, even assuming no mail delays, a voter would need to mail the
ballot several days before election day to have it counted. This is insufficient
to show a burden on the right to vote and surely insufficient to support a
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temporary restraining order governing how ballots will be counted over two
weeks from now.
Lastly, the defendants also note that Plaintiffs’ request is overbroad in
asking for ballots received ten days after election day to be counted. They have
submitted no evidence that any ballots, let alone a significant number, would
be mailed on election day and received ten days later. And the greater the
number of days for ballots to be received, the larger the impact on the state’s
vote canvassing and certifying processes.
B. Plaintiffs’ procedural due process claim is duplicative and
should be dismissed.
Plaintiffs’ procedural due process claim is not viable because it is
redundant to their First and Fourteenth Amendment claim asserting an undue
burden on the right to vote. (See Compl., Dkt. 1 ¶¶ 42–47.) Constitutional
claims must be addressed under the most applicable provision. Graham v.
Connor, 490 U.S. 386, 395 (1989). “When a particular amendment provides an
explicit textual source of constitutional protection against a particular sort of
government behavior, that amendment, not the more generalized notion of
substantive due process must be the guide for analyzing these claims.” Albright
v. Oliver, 510 U.S. 266, 273 (1994). The Seventh Circuit holds that plaintiffs
cannot expand their claims by attaching additional constitutional labels to
them. Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). This premise applies
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equally to Plaintiffs’ procedural due process claim, which is redundant of their
claim under the First and Fourteenth Amendment.
Here, Plaintiffs challenge the same election law requirements in both
their First/Fourteenth Amendment claim and their procedural due process
claim. Plaintiffs allege the same facts in support of both claims, and they claim
the same injury—voter disenfranchisement. By inserting a procedural due
process claim into the mix, Plaintiffs are advocating for the application of two
different legal standards to the same set of operative facts. But the Supreme
Court has held that laws imposing a burden on the fundamental right to vote
are subject to the Anderson-Burdick test—not the test set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976). See Anderson, 460 U.S. at 788; Burdick,
504 U.S. at 434.
Plaintiffs have not indicated how their right under the First and
Fourteenth Amendments are different from their procedural due process
rights. Accordingly, Plaintiffs’ procedural due process claim should be
dismissed because it is redundant of the rights guaranteed by the more specific
First and Fourteenth Amendments governed by the Anderson-Burdick test.
VI. Plaintiffs have failed to meet their burden of showing that they
will suffer irreparable harm without a preliminary injunction.
A plaintiff seeking preliminary relief must “demonstrate that
irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at
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22. “Issuing a preliminary injunction based only on a possibility of irreparable
harm is inconsistent with [the Supreme Court’s] characterization of injunctive
relief as an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Id. Without proving
irreparable harm, the Court need not decide any other question. See Abbott
Labs v. Mead Johnson & Co., 971 F.2d 6, 19 & n.6 (7th Cir. 1992) (plaintiff's
failure to demonstrate irreparable harm “dooms a plaintiff's case and renders
moot any further inquiry”).
Plaintiffs’ motion fails for the same reasons their claims are unlikely to
succeed on the merits. Plaintiffs argue that they face irreparable harm if their
motion for preliminary injunction is denied because (1) voters will be
disenfranchised and (2) the laws will contribute to public health risks. (Pl. Br.
12–13.) As shown above, Plaintiffs have not shown a significant number of
voters will be disenfranchised or will have to risk their health in order to vote.
VII. There are public interest concerns with altering the election
rules within weeks of the election.
Before entering an injunction, the Court must consider whether the
injunction is in the public interest. In an election case, this Court must consider
“in addition to the harms attendant upon issuance or nonissuance of an
injunction, considerations specific to election cases and its own institutional
procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Specifically, “[c]ourt
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orders affecting elections, especially conflicting orders, can themselves result
in voter confusion and consequent incentive to remain away from the polls. As
an election draws closer, that risk will increase.” Id. at 4–5. The Court must
consider the effect on the election even when an injunction is intended to
eliminate an allegedly unconstitutional barrier to voting. In Purcell, the
Supreme Court reversed a Ninth Circuit injunction that prohibited Arizona
from enforcing a voter ID requirement.
Plaintiffs’ requests would change Wisconsin election law less than three
weeks before election day. Several of the potential negative effects have been
discussed above, such as the risk in changing Wisconsin’s electronic elections
systems so close to the election. And given that Wisconsin elections are run in
a decentralized manner through local clerks around the state, it will be
challenging to ensure that last-minute changes to the law are applied equally
throughout the State. While WEC can communicate any court-ordered changes
to the laws to the clerks, the clerks administer the elections at the ground level.
(Wolfe Decl. ¶ 4.) There is no guarantee that nearly 2000 clerks will uniformly
be able to adapt quickly to these changes, particularly when they are busy
preparing for the upcoming election. For example, even if this Court enjoined
the proof of residency requirement, clerks who are used to ensuring a proper
proof of residence document may still deny registration to a voter if they by fail
to change their procedures immediately after any WEC directive to do so.
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Similarly, clerks who are busy preparing for the election may not realize they
should accept a late application received by mail, or they may not have
sufficient staff to handle a new task added just for this election. And all
municipalities may not treat late-received absentee ballots in the same
manner. There is no guarantee that an injunction could be implemented in a
uniform manner statewide.
In addition, communicating these changes to voters will be difficult, and
voters may be confused as to what is allowed in terms of registration and
absentee ballots. The public information currently available on Defendants’
and clerks’ websites references current law, as one would expect. (Wolfe Aff.
¶ 16.) While some voters will hear about a court order, many will not. As in
Purcell, a change in the law this close to an election could “result in voter
confusion.” 549 U.S. at 4–5.
Defendants understand the Plaintiffs’ concerns that voting has become
more difficult during the time of the COVID-19 pandemic. If this Court finds
certain of the challenged laws impose burdens, it still needs to weigh the
potential remedy to those burdens against the concerns about the proper
functioning of the elections system as a whole, including voter confusion,
statewide application of any injunction, and the risk of mistakes when the law
is changed so closely to an election. Any relief must be tailored to alleviate
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burdens without causing unnecessary disruption to the elections system this
close to election day.
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiffs’ motion for
temporary restraining order and preliminary injunction.
Dated this 20th day of March 2020.
Respectfully submitted,
ERIC J. WILSON
Deputy Attorney General of Wisconsin
Electronically signed by:
s/ Brian P. Keenan
BRIAN P. KEENAN
Assistant Attorney General
State Bar #1056525
Attorneys for Defendants
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0020
(608) 267-2223 (Fax)
keenanbp@doj.state.wi.us
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