Disability Rights Wisconsin v. Bostelmann 20.

Summary

Plaintiffs' motion for a preliminary injunction in Gear v. Bostelmann, 20-cv-278-wmc, filed July 8, 2020 as Document 369 in the U.S. District Court for the Western District of Wisconsin. Brought under Federal Rule of Civil Procedure 65 by two organizations and individual voters, it seeks fail-safe absentee voting options for the November election. It asks the court to declare that Wis. Stat. § 6.87(3)(d) and the lack of a fail-safe option for voters who requested but did not receive a mail-in ballot violate the First and Fourteenth Amendments and the Americans with Disabilities Act. It also seeks to enjoin that provision and the witness requirement of Wis. Stat. § 6.87(4)(b)1., and to allow email or online delivery of replacement ballots. The 10-page motion states that nearly 62 percent of Wisconsin's voters voted by mail in the April 7 election.

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      Case: 3:20-cv-00249-wmc Document #: 369 Filed: 07/08/20 Page 1 of 10



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


DEMOCRATIC NATIONAL COMMITTEE
and DEMOCRATIC PARTY OF WISCONSIN,

             Plaintiffs,

       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

REPUBLICAN NATIONAL COMMITTEE
and REPUBLICAN PARTY OF WISCONSIN,

             Intervening Defendants.

______________________________________________________________________________

SYLVIA GEAR, CLAIRE WHELAN, WISCONSIN
ALLIANCE FOR RETIRED AMERICANS, LEAGUE
OF WOMEN VOTERS OF WISCONSIN, KATHERINE
KOHLBECK, DIANE FERGOT, GARY FERGOT,
BONIBET BAHR OLSAN, SHEILA JOZWIK, and
GREGG JOZWIK,

             Plaintiffs,

       v.                                             20-cv-278-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S.
JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR.,
MARK L. THOMSEN, and MEAGAN WOLFE,

            Defendants.
______________________________________________________________________________

CHRYSTAL EDWARDS, TERRON EDWARDS, JOHN
JACOBSON, CATHERINE COOPER, KILEIGH HANNAH,
KRISTOPHER ROWE, KATIE ROWE, CHARLES DENNERT,
JEAN ACKERMAN, WILLIAM LASKE, JAN GRAVELINE,

     Case: 3:20-cv-00249-wmc Document #: 369 Filed: 07/08/20 Page 2 of 10



TODD GRAVELINE, ANGELA WEST, DOUGLAS WEST,
and all others similarly situated,

              Plaintiffs,

       v.                                                        20-cv-340-wmc

ROBIN VOS, SCOTT FITZGERALD, WISCONSIN STATE
ASSEMBLY, WISCONSIN STATE SENATE, WISCONSIN
ELECTIONS COMMISSION, MARGE BOSTELMANN,
JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON,
ROBERT F. SPINDELL, JR., MARK L. THOMSEN, and
MEAGAN WOLFE,

              Defendants.

______________________________________________________________________________

JILL SWENSON, MELODY McCURTIS, MARIA NELSON,
BLACK LEADERS ORGANIZING FOR COMMUNITIES,
DISABILITY RIGHTS WISCONSIN

              Plaintiffs,

       v.                                                        20-cv-459-wmc

MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S.
JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR.,
MARK L. THOMSEN, and MEAGAN WOLFE,

              Defendants.


                    GEAR v. BOSTELMANN, 20-CV-278, PLAINTIFFS’
                     MOTION FOR PRELIMINARY INJUNCTION


       In accordance with Federal Rule of Civil Procedure 65 and this Court’s procedure for

motions seeking a preliminary injunction, Plaintiffs League of Women Voters of Wisconsin

(“LWVWI”), Wisconsin Alliance for Retired Americans (“Wisconsin Alliance”), Katherine

Kohlbeck, Diane Fergot, Gary Fergot, Bonibet Bahr Olsan, Sheila Jozwik, Gregg Jozwik, Claire

Whelan, and Sylvia Gear (collectively, the “Gear Plaintiffs”) respectfully move this Court for

preliminary injunctive relief. In support of this motion, and as more thoroughly set forth and


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supported in the accompanying Brief, Declarations, and Statement of Proposed Facts, the Gear

Plaintiffs state as follows:

        1.      The Covid-19 pandemic has changed the way we vote. Even consistently-applied

safety measures cannot make indoor places where people congregate—polling places among

them—substantially safe. With the disease spreading exponentially once again, there is every

reason to believe that the danger to voters will be real and substantial in the fall.

        2.      Due to the pandemic, in the April 7 election, nearly 62 percent of Wisconsin’s

electorate chose to vote by mail. This unprecedented demand for mail-in voting strained and then

broke the systems by which absentee ballots are prepared and delivered to voters. At least

thousands of voters, including six of the Plaintiffs in this action, never received their timely-

requested ballots in the mail, because of administrative overload at municipal clerks’ offices, still-

unexplained U.S. Postal Service (“USPS”) delivery failures, and even a software update glitch.

Wisconsin’s municipal clerks’ offices were barely able to keep up with one million mail-in

absentee ballot requests, even as they worked overtime and, in desperation, enlisted other city

departments’ employees. If this year’s turnout is comparable to the level seen in the 2016

presidential election, the state will face 1.8 to 2 million mail-in absentee ballot requests for the

November general election.

        3.      To protect the rights of Plaintiffs, their constituents and members, and Wisconsin

voters generally under the U.S. Constitution and the Americans with Disabilities Act of 1990

(“ADA”), the Court should issue an order adopting certain specific voting procedures that

Plaintiffs will demonstrate are necessary as a fail-safe to prevent a repeat of the mass

disenfranchisement of absentee voters that occurred in the April 7 election. Plaintiffs offer three

options to provide a fail-safe plan for voters who do not receive a requested absentee ballot in the

mail. All three of these options would still require that the voter to first request a ballot by mail



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delivery and only use one of these options as a fail-safe; further, the voted replacement ballot must

be mailed in or dropped off. A remedy would simply give Plaintiffs a back-up plan so they can

still vote.

        4.     The best option is to extend the existing availability of the online access and

download option through the myvote.wi.gov (hereinafter, “MyVote”) portal from just overseas

civilian and military voters to domestic civilian voters who do not receive a requested absentee

ballot in the mail, putting a full replacement mail-in ballot in the hands of voters who do not receive

one in the mail. Another option would allow email delivery of replacement mail-in absentee

ballots. Up until the Seventh Circuit’s decision last week, email delivery was an option for regular

absentee voters, though it was discretionary for clerks to offer it and only offered sporadically

across and within municipalities. The final fail-safe option that this Court could afford to regular

absentee voters who do not receive a requested ballot in the mail is the ability to cast a Federal

Write-In Absentee Ballot (“FWAB”). Wisconsin already accepts and processes the FWAB for

overseas civilian and military voters, even if they have not previously requested a ballot be

delivered by mail.

        5.     As fail-safe options, Defendants would only need to make these alternatives

available to voters who have previously requested a mail-in absentee ballot, and only in the last

week or even just the last few days before Election Day. These limitations ensure the numbers of

voters exercising these options are manageable.

        6.     The Organizational Plaintiffs LWVWI and Wisconsin Alliance press their

challenge to the witness requirement and request that the Court permit voters to use alternatives to

it. This requirement has such minimal value to law enforcement that it cannot justify forcing voters

to take unreasonable steps to secure a witness. There are alternatives, some suggested by the




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Seventh Circuit panel in April, and they can and should be ordered as alternatives for Wisconsin

voters, particularly those at higher risk from Covid-19.

        7.      Plaintiffs are likely to succeed on the merits of their First and Fourteenth

Amendment Anderson/Burdick claims. The failure to prepare and deliver absentee mail-in ballots

timely or at all constitutes a complete denial of a voter’s constitutional right to cast a ballot, where

voters cannot safely vote in person due to the Covid-19 pandemic. Accordingly, the burden on the

right to vote is severe, and the state has no legitimate interest in disenfranchising a voter who does

not timely receive their timely-requested absentee ballot in the mail. Since in-person voting would

pose a severe risk to many voters’ health, bodily integrity, and lives, that option is simply not a

viable choice. Further, the witness requirement for mail-in absentee ballots has become unduly

burdensome because of the Covid-19 pandemic, and LWVWI and Wisconsin Alliance have been

forced and will continue to be forced to divert substantial resources, time, effort, and money to

helping and educating voters who are struggling to comply with this unconstitutional requirement.

The prevention of voter fraud is an important regulatory interest of Defendants, but any law

designed to prevent voter fraud must be balance against the burdens it imposes. Here, the witness

requirement is not an effective, reasonable tool to safeguard election integrity and, therefore, the

state’s interest is greatly attenuated and outweighed by the burdens imposed on LWVWI and

Wisconsin Alliance.

        8.      Plaintiffs are also likely to prevail on their unconstitutional conditions doctrine

claim. The failure to provide fail-safe options to absentee voters who do not receive their ballots

in the mail and the witness requirement are both unconstitutional because they require voters to

forfeit their fundamental right to bodily integrity as a condition of exercising their right to vote.

Such state coercion violates the unconstitutional conditions doctrine. Because Wisconsin law bars

regular absentee voters from online access and downloading or email delivery options for absentee



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voting, Wis. Stat. § 6.87(3)(d), bars regular voters from casting a FWAB, and requires at-risk

absentee voters who live alone to satisfy a witness requirement during this pandemic, Defendants

place unconstitutional conditions on the right to vote that coerce Plaintiffs into forfeiting their right

to bodily integrity.

        9.      Plaintiffs are also likely to succeed on the merits of their ADA Claim. Several

plaintiffs here have health conditions that limit major life activities, thereby placing them under

the ADA’s protections and requiring Wisconsin election officials to make reasonable

accommodations so that they can participate in the November General Election.

        10.     In addition to their likelihood of success on the merits, Plaintiffs meet all of the

other equitable requirements for entry of a preliminary injunction. More specifically, absent relief

from this Court, Plaintiffs are certain to suffer irreparable harm because there is no way to regain

one’s right to vote after an election is held. Once the election is held and the results are certified,

the injury to these voters’ constitutional rights will of course be irreparable. There is no adequate

remedy at law—no damages—that can make a disenfranchised voter whole. In addition, the

LWVWI and the Wisconsin Alliance will both be irreparably harmed because their members will

be disenfranchised, and because both organizations have diverted resources to try to assist voters

with voting absentee under these circumstances.

        11.     The balance of hardships militates strongly in favor of an injunction. The

administrative aspects of extending existing election infrastructure to provide a fail-safe for

domestic civilian voters does not outweigh the hardship to voters in the absence of any back-up

plan if they do not receive their ballots and cannot vote safely at a polling place. If the Court fails

to grant a preliminary injunction in this case, thousands of Wisconsinites will be unable to cast a

ballot that counts, in light of the interaction between Wisconsin’s voting laws and the Covid-19

pandemic.



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         12.    A preliminary injunction to prevent the disenfranchisement of countless mail-in

absentee voters would serve the public interest by vindicating constitutional and statutory rights

and ensuring that the integrity and legitimacy of Wisconsin elections is not undermined or

destroyed by the unconstitutional and unconscionable failure to allow voters who are at higher risk

from Covid-19 to cast a ballot that counts.

         13.    Plaintiffs respectfully request that the Court enter an order granting the following

relief with respect to the November 4, 2020 general election:

         (a) Declare that the lack of a fail-safe option for voters who previously and timely requested

a mail-in absentee ballot by mail delivery but who do not receive that ballot in the mail in time to

cast it such that it will be counted in the November general election, and Wis. Stat. § 6.87(3)(d),

which restricts electronic access and downloading, as well as email delivery, of mail-in absentee

ballots to military and overseas voters, violate the First and Fourteenth Amendments to the U.S.

Constitution and Title II of the Americans with Disabilities Act, as enforced through 42 U.S.C. §

1983;

         (b) Preliminarily enjoining Wis. Stat. § 6.87(3)(d), which restricts to military and overseas

voters the ability to electronically access and download mail-in absentee ballots and the ability to

receive an absentee ballot by email delivery;

         (c) To remedy the constitutional and federal statutory violations caused by the lack of a

fail-safe option for voters who previously and timely requested a mail-in absentee ballot by mail

delivery but who do not receive that ballot in the mail, for the November general election, order:

                1.      Defendants to permit voters who previously and timely requested a mail-in

                absentee ballot by mail delivery but who do not receive that ballot in the mail in

                time to timely cast it, to request via email, myvote.wi.gov, or Form EL-121, the

                statewide uniform absentee ballot application, that a mail-in absentee ballot and its



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               certificate envelope be made available to such voters for online access and

               downloading, e.g. through myvote.wi.gov, and/or emailed to such voters;

               2.      Defendants to make mail-in absentee ballots available for online access and

               downloading, e.g. through myvote.wi.gov, and/or email mail-in absentee ballots,

               upon request via email, myvote.wi.gov, or Form EL-121, the statewide uniform

               absentee ballot application, to voters who previously and timely requested a mail-

               in absentee ballot by mail delivery but who do not receive that ballot in the mail;

               3.      Defendants to process and count mail-in absentee ballots that were accessed

               online and downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that

               are timely returned in any way permitted under Wisconsin law or court orders by

               voters who previously and timely requested a mail-in absentee ballot by mail

               delivery but do not receive that ballot in the mail; and

               4.      Preliminary injunctive relief prohibiting Defendants from rejecting and/or

               refusing to count mail-in absentee ballots that were accessed online and

               downloaded, e.g. through myvote.wi.gov, and/or emailed to voters that are timely

               returned in any way permitted under Wisconsin law or court orders by voters who

               previously and timely requested a mail-in absentee ballot by mail delivery but do

               not receive that ballot in the mail;

       (d) In the alternative or in addition to the relief outlined in subsection (c), for the November

general election, order:

               1.      Defendants to permit voters who previously and timely requested an

               absentee ballot by mail delivery, to download, vote, and return in any way permitted

               under Wisconsin law or court orders the Federal Write-in Absentee Ballot;




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               2.      Defendants to process and count Federal Write-in Absentee Ballots that are

               timely returned in any way permitted under Wisconsin law or court orders by voters

               who previously and timely requested a mail-in absentee ballot by mail delivery;

               and

               3.      Preliminary injunctive relief prohibiting Defendants from rejecting and/or

               refusing to count Federal Write-in Absentee Ballots cast by voters who previously

               and timely requested a mail-in absentee ballot by mail delivery and that are timely

               returned in any way permitted under Wisconsin law or court orders, but only if they

               are postmarked or dropped off at a municipal clerk’s office on or after the seventh

               day before Election Day through the deadline for returning absentee ballots;

       (e) Declare that Wis. Stat. § 6.87(4)(b)1. violates, in part, the First and Fourteenth

Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act, as

enforced through 42 U.S.C. § 1983, for the November general election;

       (f) To remedy the constitutional and federal statutory violations caused by enforcement of

the witness requirement, Wis. Stat. § 6.87(4)(b)1., without reasonable modification during the

course of the COVID-19 pandemic, preliminarily enjoin Defendants from enforcing Wis. Stat. §

6.87(4)(b)1., in part, for the November general election and from rejecting and/or refusing to

process and count an absentee mail-in ballot cast in the November general election on the basis

that it lacks a witness signature on the certificate envelope, if the mail-in absentee voter signs a

certification on the absentee ballot certificate envelope or on a pre-printed insert to be enclosed

with the absentee ballot, that affirms that the voter was unable to safely obtain a witness

certification through reasonable efforts, provided that the ballot is otherwise valid;

       (g) In the alternative or in addition to the relief outlined in subsection (f), preliminarily

enjoin Defendants from enforcing Wis. Stat. § 6.87(4)(b)1., in part, for the November general



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election and from rejecting and/or refusing to process and count an absentee mail-in ballot cast in

the November general election on the basis that it lacks a witness signature on the certificate

envelope, if the witness observes the voter casting the ballot remotely, e.g. by videoconference or

through a glass window, and the voter records in writing on the absentee ballot certificate envelope

or on a pre-printed insert to be enclosed with the absentee ballot the full name of the witness who

witnessed the voting of the ballot and enough of the witness’s address to identify the correct

residential address and contact that witness, provided that the ballot is otherwise valid.

Dated: July 8, 2020                         Respectfully submitted,

                                            /s/ Jon Sherman
                                            Jon Sherman*
                                            D.C. Bar No. 998271
                                            Michelle Kanter Cohen*
                                            D.C. Bar No. 989164
                                            Cecilia Aguilera*
                                            D.C. Bar No. 1617884
                                            FAIR ELECTIONS CENTER
                                            1825 K St. NW, Ste. 450
                                            Washington, D.C. 20006
                                            (202) 331-0114 (telephone)
                                            jsherman@fairelectionscenter.org
                                            mkantercohen@fairelectionscenter.org
                                            caguilera@fairelectionscenter.org

                                            Douglas M. Poland
                                            State Bar No. 1055189
                                            David P. Hollander,
                                            State Bar No. 1107233
                                            RATHJE WOODWARD LLC
                                            10 E Doty Street, Suite 507
                                            Madison, WI 53703
                                            (608) 960-7430 (telephone)
                                            (608) 960-7460 (facsimile)
                                            dpoland@rathjewoodward.com
                                            dhollander@rathjewoodward.com

                                            Attorneys for Plaintiffs in Case No. 20-cv-278-wmc

                                            *Admitted to the U.S. District Court for the Western
                                            District of Wisconsin



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