Memorandum of WEC Defendants in Response to Motions for Preliminary Injunctions — DNC v. Bostelmann

Summary

The Commissioners of the Wisconsin Elections Commission and Administrator Meagan Wolfe (the WEC) respond to the plaintiffs' motions for preliminary injunctions in the four consolidated cases, in a memorandum dated July 20, 2020. The WEC states that it administers and enforces Wisconsin's election laws and has no authority to overrule, waive or otherwise disregard them, and that it takes no position on the specific relief requested. It describes steps taken for the April 7 election, including distributing sanitation supplies and protective equipment, updating WisVote and MyVote, and responding to a poll worker shortage. It reports 72 county clerks and 1,850 municipal clerks. The signature block names Daniel S. Lenz.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Memorandum of WEC Defendants in Response to Motions for Preliminary Injunctions — DNC v. Bostelmann.” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-wiwd-45522-444-0-15c45095fb/, SHA-256 a77ff1f759d149fc815dfb02803b95bd5e6e6b824190dc5e0ace20bbfaec36bf.

Full text

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.

JILL SWENSON, et al.,
Plaintiffs,

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

MEMORANDUM OF WEC DEFENDANTS IN RESPONSE TO
PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS

INTRODUCTION

Defendants Marge Bostelmann, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert

F. Spindell, Jr., Mark L. Thomsen, Commissioners of the Wisconsin Elections Commission and

Meagan Wolfe, Administrator1, in their official capacities (collectively, the “WEC”), by their

undersigned counsel, respond as follows and collectively to the Plaintiffs’2 Motion for Preliminary

Injunction.

The WEC administers and enforces Wisconsin’s election laws, except for laws regarding

campaign finance. Wis. Stat. § 5.05 (1)3. The WEC is a function of the Wisconsin statutes and has

no authority to overrule, waive or otherwise disregard Wisconsin’s election laws, including

statutes related to absentee ballots and the decentralized structure of Wisconsin election

administration.

1
Administrator Wolfe is a defendant in three of the four consolidated cases: Gear et al. v. Bostelmann et al., 3:20-cv-
278; Edwards et al. v. Vos et al., 3:20-cv-340; and Swenson et al. v. Bostelmann et al., 3:20-cv-459.
For purposes of this brief, and pursuant to the agreed-upon schedule in this case, the individual Commissioners and
Administrator Wolfe respond collectively to the motions for preliminary injunction.
2
Except as otherwise specified herein, “Plaintiffs” means, collectively, the plaintiffs in the four consolidated cases,
DNC et al. v. Bostelmann et al., Case No. 3:20-cv-249; Gear et al. v. Bostelmann et al., 3:20-cv-278; Edwards et
al. v. Vos et al., 3:20-cv-340; Swenson et al. v. Bostelmann et al., 3:20-cv-459.
3
All references are to the 2020 Statutes.

The November 2020 Election will be the fourth election conducted in Wisconsin since the

beginning of the COVID-19 crisis. [WECPFOF4 1-2]. One of those elections – the April 7 Spring

Election – was the subject of extensive proceedings before this Court, including a request to

postpone the election altogether. [See generally, ‘249 Case Dkt. No. 170; ‘284 Case, Dkt. No. 1].

The Plaintiffs have requested various relief, some of which was also before the Court in March.

[‘249 Case Dkt. Nos. 252, 369 and 395; ‘459 Case Dkt. No. 40]. Following the April 7 Election,

and in anticipation of a general election taking place during the ongoing COVID-19 crisis, the

WEC and its staff has undertaken steps which are outlined in the WEC’s June 25, 2020 Report to

the Court and described briefly below. [‘249 Case Dkt. No. 227]. The WEC does not take a position

on the specific relief requested in the Plaintiffs’ respective motions. Rather, this brief sets forth the

WEC’s position regarding its authority under Wisconsin statutes.

FACTS

I. The Wisconsin Elections Commission.

Defendants Marge Bostelmann, Dean Knudson, Ann Jacobs, Mark Thomsen, Robert

Spindell and Julie Glancy are the members of the Wisconsin Elections Commission. Wisconsin

statute authorizes the creation of the WEC and defines its duties. Wis. Stat. § 15.61; see generally

Wis. Stat. 5.05 (1). The WEC administers and enforces Wisconsin’s elections laws. In

administering elections, the WEC works in conjunction with the State’s county5 and municipal

clerks6. There are 72 county clerks and 1,850 municipal clerks. [WECPFOF 5]. Over 60% of the

4
WEC Defendants’ Additional Proposed Findings of Fact
5
As used herein, “county clerks” is intended to describe those officials described in Wisconsin Statute sections 7.10
and 5.02 (2) as well as boards of election for counties over 750,000 in population as described in Wisconsin
Statute section 7.20.
6
As used herein, “municipal clerks” is intended to include those officials described in Wisconsin Statute sections
7.15 and 5.02 (10) as well as boards of election for municipalities over 500,000 in population as described in
Wisconsin Statute section 7.20.

State’s municipal clerks are part-time. [WECPFOF 5]. The WEC has an Administrator, Meagan

Wolfe, and a staff of twenty-nine. [WECPFOF 2]; Wis. Stat. § 5.05 (3d).

II. Wisconsin Election Law.

Wisconsin election law is a product of the Wisconsin Constitution and statutes. The

Wisconsin Constitution guarantees the right to vote, subject to, “a legitimate field of legislative

activity in the nature of regulation.” League of Women Voters v. Walker, 2014 WI 97, ¶ 19, 357

Wis.2d 360 851 N.W. 2d 302, quoting McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910).

Wisconsin’s election laws are found in Chapters 5 through 10 and 12 of the Wisconsin statutes.

Those statutes include delineations of the duties of municipal and county clerks, as well as the

WEC. See generally, Wis. Stat. §§ 7.15; 7.10; 7.08. Wisconsin statutes also set the qualifications

for election officials; deadlines applicable to elections; registration requirements; and the rules

surrounding absentee ballots. See e.g. Wis. Stat. §§ 7.30; 7.15; 6.34; 6.28, 6.86 et seq. The statutes

also create specific rules regarding the standards for polling places. Wis. Stat. §§ 5.15; 5.25; 5.35.

More information regarding the WEC’s authority, as well as the independent statutory authority

of municipal clerks and boards of elections, is set forth below.

III. COVID-19 and the April 7 Election.

A. Background for the April 7 Election.

Wisconsin held its Spring Presidential Preference and Spring Election on April 7, 2020.

[WECPFOF 8]. In addition to the presidential primary, there was also a race for Justice of the

Wisconsin Supreme Court and many local offices. [WECPFOF 8]. At the time, Wisconsin was the

only state to conduct a statewide election while operating under a “stay at home” order related to

the COVID-19 pandemic. [WECPFOF 9]. Ballots for the April 7 Election became available on

February 20, 2020. [WECPFOF 8]. Governor Evers issued his first executive order related to

COVID-19 on March 12, proclaiming a health emergency and directing the Wisconsin Department

of Health Services as the lead agency to respond. See e.g. Wisconsin Legislature v. Palm, 2020 WI

42, ¶ 5, 391 Wis.2d 497, 942 N.W.2d 900. On March 22, 2020, Governor Evers and Lieutenant

Governor Barnes issued a letter which, among other things, encouraged people to cast absentee

ballots in the upcoming election. [WECPFOF 10]. On March 24, the Governor and the Secretary-

Designee of Wisconsin’s Department of Health Services issued “Emergency Order # 12: Safer at

Home Order,” restricting certain forms of travel and activities in the state in response to COVID-

19 [‘249 Case Dkt. No. 170, p. 7 n 4]; Palm, 2020 WI 42, ¶ 7.

The day before the election, Governor Evers issued an additional emergency order –

Executive Order # 74 - to postpone in-person voting. The Wisconsin Supreme Court enjoined that

order later the same day. Wisconsin Legislature v. Evers, No. 2020AP608-OA (Apr. 6, 2020).

a. Preparations for the April 7 Election

In anticipation of the April 7 Election, the WEC undertook projects to change its own

processes and provide assistance to municipal clerks throughout the state. [WECPFOF 11]. In

addition to its normal duties, the WEC did the following in response to the COVID-19 pandemic:

1. Sanitation and PPE. The WEC staff worked with the State Emergency

Operations Center (“SEOC”) to find, procure and distribute sanitation supplies

and personal protective equipment to polling places throughout Wisconsin.

Those supplies included over 8,000-liter bottles of ethyl alcohol solution for use

as a hand and surface sanitizer; 10,000 plastic spray bottles; 500,000 isopropyl

alcohol wipes; surgical masks, latex gloves; 1.5 million ballpoint pens;

approximately 2,000 rolls of painter’s tape; and over 10,000 social distancing

and public health signs. The Wisconsin National Guard then helped package

and distribute supplies to regional facilities around the state. County

governments distributed the supplies from the regional facilities. [WECPFOF

12-14].

2. Encouraging Absentee Voting. On March 13, 2020, the WEC issued a press

release encouraging anyone who was concerned about COVID-19 exposure to

make plans to vote absentee for the April 7, 2020 Election, describing how

voters could request an absentee ballot and providing information about

indefinitely confined voters, photo ID requirements and the absentee ballot

receipt deadline. [WECPFOF 15].

3. Updates to WisVote. WEC staff performed updates on WisVote, Wisconsin’s

statewide voter registration database and election administration system.

WEC’s staff performed updates to WisVote to accommodate changes to the

deadlines for absentee ballot requests and online registration. As a result of

increased absentee ballot requests and uploaded photo ID’s, WEC staff made

multiple memory increases to WisVote and continuously monitored its

capacity. The WEC staff also created a new report within WisVote to assist

jurisdictions with consolidated polling places. [WECPFOF 16-17].

4. Updates to MyVote. The WEC staff increased capacity and made changes to

MyVote, the WEC’s public-facing website. The circumstances of the April 7

Election and COVID-19 crisis resulted in an unprecedented use of MyVote

features. WEC staff also had to make coding changes to MyVote to adjust

deadlines and workflows because of court orders. Due to the pandemic, the

WEC was unable to conduct usability tests of these changes. Finally, the WEC

adjusted load testing plans to address the high volume of MyVote traffic and

changes in voter behavior. [WECPFOF 18-20].

5. Envelopes and Postage. Municipal clerks had purchased absentee ballot

supplies, including envelopes and supplies, prior to the start of the COVID-19

crisis in Wisconsin based on pre-2020 absentee ballot behavior. As voters

increasingly shifted to voting by absentee ballot by mail, clerks ran out of

supplies and were unable to purchase more due to supply chain issues. The

WEC, with help from the SEOC, procured and distributed additional envelopes.

By March 30, the WEC had distributed 1.2 million absentee ballot envelopes to

municipal clerks. [WECPFOF 20-22].

6. Poll Worker Shortage. At the beginning of the COVID-19 crisis, municipal

clerks began reporting a shortage of poll workers. According to statewide

surveys, most poll workers are typically over the age of 60. Many municipal

clerks were unable to fill-in on an emergency basis as poll workers because they

were also in a vulnerable demographic. Prior to the April 7 Election,

municipalities reported a statewide shortage of over 7,000 poll workers. The

WEC requested poll worker personnel from the state operations center. It also

engaged in a public campaign to encourage those who were able to serve as poll

workers, and distributed recruitment material to municipalities for their use.

WEC staff added a “become a poll worker” function to MyVote to put potential

poll workers in touch with municipal clerks. State employees were encouraged

to serve. The WEC also developed online, video-based training that could be

used by municipalities to meet their statutory duty to train poll workers. Finally,

on April 2, Governor Evers authorized the Wisconsin National Guard to serve

as poll workers. The WEC worked with the National Guard and local election

officials to coordinate deployment, as well as developing online poll worker

and election public health training for service members of the National Guard.

Nearly 2,500 members of the National Guard were put on active duty on April

6 to begin screening and training. [WECPFOF 23-30].

7. Guidance to Clerks. The WEC communicates regularly with the 1,850

municipalities and 72 counties who administer elections in Wisconsin. Given

the unprecedented difficulties of the April 7 Election, the WEC sent more than

50 communications and guidance documents to clerks between March 12 and

April 7. Normally, the WEC sends 10 such communications in that period and

avoids communications in the week before an election. WEC staff prepared and

distributed specific public health documents and held numerous webinars. On

March 29, 2019, the WEC issued additional guidance regarding the

“indefinitely confined” designation considering the COVID-19 pandemic. Wis.

Stat. § 6.82 (2)(a). [WECPFOF 31-33].

8. Consolidation of Polling Places. As a result of unknown in-person turnout and

poll worker shortages, some jurisdictions consolidated polling places, moving

multiple wards into the same polling place. Wisconsin Statute § 5.25 requires

that polling places be established at least 30 days in advance of the election by

the local governing body. Wis. Stat. § 5.25 (1). Due to the timing of the public

health emergency and emergency orders, as well as public health guidance

regarding who could enter certain types of care facilities, the WEC adopted a

motion stating that municipal clerks may relocate or move polling places that

were to be located in nursing homes, care facilities and other facilities as

determined by the Wisconsin Department of Health Services or other local

health officials without obtaining prior approval of the local governing body or

municipal elections commission. [WECPFOF 34-35].

9. Postmarks. Pursuant to Republican National Committee v. Democratic

National Committee, a ballot had to be returned by 8:00 pm on April 7 or

postmarked no later than April 7 and received by the clerk by April 13 to be

counted. RNC v. DNC, 140 S. Ct. 1205 (April 6, 2020) (per curiam). Following

the Court’s decision, the WEC worked with local election officials and

representatives of the USPS to understand the way various postmarks are used.

[WECPFOF 36].

10. Other Postal Issues. Following the April 7 Election, WEC staff sent a letter to

local, state, regional and national USPS representatives regarding ballots not

received and outgoing ballots returned to municipalities, to which there has not

been a response. [WECPFOF 37].

11. Public Guidance. During the lead-up to the April 7 Election, the WEC issued

frequent public guidance, including “Top 10 Things Voters Should Know about

the April 7 Spring Election and Presidential Primary - COVID-19” which

provided information on polling place consolidation and double-checking your

polling place, deadlines to return absentee ballots following the Supreme

Court’s decision, public health guidelines, curbside voting and a voter’s ability

to return an absentee ballot to a polling place on Election Day. [WECPFOF 38].

b. Litigation Related to the April 7 Election

On March 19, 2020, the Democratic National Committee and Democratic Party of

Wisconsin filed their complaint for declaratory and injunctive relief. [‘249 Case, Dkt. No. 1]. Two

other lawsuits regarding the administration of the April 7 Election followed in short order. [’278

Case, Dkt. No. 1; ‘284 Case, Dkt. No. 1]. The Court and parties are well-aware of the proceedings

that followed, including proceedings before the Court of Appeals for the Seventh Circuit and the

United States Supreme Court. [see generally ‘249 Case, Dkt. No. 217, pp. 1-2]. Following the

decision of the United States Supreme Court on April 6, 2020, in order to be counted for the April

7 Election, a voter’s absentee ballot either (1) had to be postmarked by election day and received

by April 13, 2020 at 4:00 p.m. or (2) had to be hand-delivered to a polling place or clerk’s office

by April 7 at 8:00 p.m. RNC v. DNC, 140 S.Ct. 1205 (April 6, 2020) (per curiam). The WEC

issued immediate guidance to clerks and created new guidance to ensure that jurisdictions could

securely suspend voting equipment to comply with this Court’s injunction regarding early result

reporting, and followed up with an alert to all local election officials. [WECPFOF 39].

In addition to the litigation before this Court, plaintiffs sued in the United States District

Court for the Eastern District of Wisconsin, requesting among other things that the election be

postponed. Both suits were dismissed. City of Green Bay v. Bostelmann, No. 20-C-479, 2020 WL

1492975, *3 (E.D. Wis. March 27, 2020); Taylor v. Milwaukee Elec. Comm., No. 20-cv-545, 2020

WL 1695454 (E.D. Wis. April 6, 2020).

c. Absentee Ballots for the April 7 Election

Voters cast a total of 964,433 absentee ballots by mail in the April 7 Election. [WECPFOF

40.] Voters cast a total of 1,555,263 ballots in the April 7 Election, meaning over 60% of total

ballots were by-mail absentee. [WECPFOF 40.] Due to the combined increase of in-person and

by-mail absentee voting, some municipal clerks and their staff were nearly overwhelmed and had

to recruit assistance from other municipal departments or hire temporary staff. [WECPFOF 42.]

Of the 1,303,985 absentee ballots sent by municipal clerks, 1,159,800 (or 88.94%) were returned

and counted. Of those, 1,101,324 were returned on or before April 7. Seventy-nine thousand fifty-

four ballots were received between April 8 and April 13. According to reports from municipal

clerks, 2,659 absentee ballots were returned after April 13 and could not be counted. [WECPFOF

43.]

The WEC is unable to determine how many voters were unable to cast a ballot for the April

7 Election due to the COVID-19 Pandemic. Municipal clerks and local election officials rejected

14,042 ballots due to insufficient certification and 5,526 because they were postmarked after

election day. [WECPFOF 44.] There were 120,989 ballots which voters requested but did not

return, which includes ballot requests cancelled either by a municipal clerk or by the voter, as well

as 4,960 ballots that were returned as undeliverable. [WECPFOF 45.] The WEC investigated

reported issues both in fulfilling ballot requests and in the United States Postal Service delivering

those ballots. [WECPFOF 46.]

Municipal clerks faced the challenge of meeting this unprecedented demand for absentee

ballots, in addition to their other duties including administering in-person absentee voting,

preparing polling places and recruiting and training new election inspectors. [WECPFOF 41.]

Hundreds of municipal clerks work alone and part time. [WECPFOF 41.]

d. In-Person Election Day Voting

Subject to the consolidation described above, in-person election day voting was available

in every jurisdiction on April 7. Voters cast 397,664 ballots through in-person election day voting.

This represented 26% of the total ballots cast. Historically, that percentage is over 80%.

[WECPFOF 47.]

B. Plans for November Election

The WEC is underway with preparations for the November 3 Election, and is undertaking

additional steps in response to the COVID-19 crisis. Those steps are outlined in more detail in the

WEC’s June 25 Status Report and discussed below.

ARGUMENT

The WEC takes no position on the relief sought by the Plaintiffs in these consolidated

cases. The WEC will briefly set forth the relevant standards for the Plaintiffs’ claims, along with

a discussion of the relevant constitutional and statutory duties of the WEC, municipal clerks and

boards of election, and the other statutes at issue.

I. Standards

A. Preliminary Injunctions

To obtain an preliminary injunction, any plaintiff must show, “(1) that he will suffer

irreparable harm absent preliminary injunctive relief during the pendency of his action; (2)

inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits.”

[‘249 Case, Dkt. No. 37, p. 9, quoting Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1

Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017)]. 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, Inc. v. Barland, 751 F.3d 904, 830 (7th Cir. 2014)

(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. (internal citation omitted).

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).

B. Constitutional Claims.

a. Anderson-Burdick.

Each group of plaintiffs claims that Wisconsin imposes unconstitutional burdens on the

right to vote. That question is governed by the Anderson-Burdick framework. Common Cause Ind.

v. Individual Members of the Ind. Election Comm., 800 F.3d 913, 917 (7th Cir. 2015) citing

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

Anderson-Burdick is, “the proper standard under which to evaluate an equal protection challenge

to laws that allegedly burden the right to vote of certain groups of voters.” One Wisconsin Inst. v.

Thomsen, 198 F.Supp.3d 896, 929 (W.D. Wis. 2016) (internal citation omitted), aff’d in part, rev’d

in part sub nom. Luft v. Evers, No 16-3003, 2020 WL 3496860 (7th Cir. June 29, 2020).

States retain the power to regulate their own elections. Burdick, 504 U.S. at 433; Tashjian

v. Republican Party of Conn., 479 U.S. 208, 217 (1986). “A State indisputably has a compelling

interest in preserving the integrity of its election process.” Eu v. San Francisco County Democratic

Central Comm., 489 U.S. 214, 231 (1989). The public also has a “strong interest” in exercising the

constitutional right to vote. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). In recognition that election

laws “invariably impose some burden upon individual voters,” Burdick, 504 U.S. at 433, the

Anderson-Burdick framework involves a balancing of these interests, requiring this Court to

consider, “the character and magnitude of the asserted injury to the rights protected by the First

and Fourteenth Amendments that the plaintiff seeks to vindicate against ‘the precise interests put

forward by the State as justifications for the burden imposed by its rule,’ taking into consideration

the extent to which those interests make it necessary to burden the plaintiff's rights.” Id. at 434

(internal quotations omitted).

In addressing the Anderson-Burdick analysis, the Seventh Circuit stressed recently that a

state’s election laws must be considered as a whole. Luft v. Evers, 2020 WL 3496860, *8. Quoting

Burdick, the Seventh Circuit noted that the “right to vote in any manner….(is not) absolute.” Id.,

quoting Burdick, 504 U.S. at 433. Election laws impose some burdens upon voters, and “(c)ourts

weigh those burdens against the state’s interests by looking at the whole electoral system” to

determine if voting rights have been “severely restricted.” Luft, 2020 WL 3496860, *3.

b. Procedural Due Process Claims.

The DNC and Swenson plaintiffs have made claims styled as procedural due process violations.

Due process analysis requires consideration of three distinct factors in this context: the private

interest that will be affected by the official action; the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards; and finally, the Government's interest, including the function involved and

the fiscal and administrative burdens that the additional or substitute procedural requirement would

entail. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

The Court has previously held that “all First and Fourteenth Amendment challenges to

state election laws” are analyzed under the Anderson-Burdick framework. [‘249 Case Dkt. No.

217, p. 14, quoting Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019)].

The Court’s language in Burdick indicates that the test was applicable to all Fourteenth

Amendment claims and did not provide a carve-out for claims of procedural due process violations.

Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Anderson, 460 U.S. at 789.

C. Statutory Claims.

a. Voting Rights Act.

The Swenson plaintiffs have asserted a claim under Section 11(b) of the Voting Rights Act,

52 U.S.C. § 10307 (b). In general, that section prohibits anyone acting under color of law from

engaging, or attempting to engage, in intimidating, threatening, or coercive conduct relative to

voting. 52 U.S.C. § 10307 (b).

b. Americans With Disabilities Act.

The Edwards plaintiffs and a subset of the Gear and Swenson plaintiffs have sought relief

pursuant to the ADA. Title II of the ADA provides that, “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. Discrimination in violation of Title II can be shown by the failure

to make “reasonable modifications in policies, practices, or procedures.” 28 C.F.R. § 35.130

(b)(7)(i). In order to prove discrimination in violation of Title II, “a plaintiff must show: (1) that

he is a qualified individual with a disability; (2) that he was denied the benefits of the services,

programs, or activities of a public entity or otherwise subjected to discrimination by such an entity;

and (3) that the denial or discrimination was by reason of his disability.” Lacy v. Cook County,

Illinois, 897 F.3d 847, 853 (7th Cir. 2018) (internal citations and quotations omitted).7

II. Plaintiffs’ Motions for Preliminary Injunctions

The WEC does not take a position on the elements of relief requested in the Plaintiffs’

respective motions for preliminary injunctions. In assessing those requests, however, the WEC

asks this Court to be mindful of its statutory role within Wisconsin’s election system. As this Court

is aware, the WEC does not have the authority to modify, waive or overrule Wisconsin’s election

statutes. Wisconsin’s election statutes govern each election. Wis. Stat. § 5.01 (2); [‘249 Case, Dkt.

No. 170, p. 6]. The WEC is charged with administering and enforcing those statutes. Wis. Stat. §

5.05; [WECPFOF 3]. Should this Court enter relief that is in effect as of the date of the November

2020 election, the WEC will be responsible for issuing appropriate guidance to implement that

decision. Wis. Stats. § 5.05 (5t).

A. WEC’s Role and Authority.

The WEC is made up of six members serving five-year terms. Wis. Stat. § 15.61 (1)(a).

Four members are appointed by specific members of the Wisconsin Legislature: the senate

majority leader, the senate minority leader, the speaker of the assembly and the assembly minority

leader. Wis. Stat. § 15.61 (1)(a). The two additional members are former county or municipal

clerks, who are nominated by the Governor from lists prepared by the legislative leadership of the

two major political parties. Wis. Stat. § 15.61 (1)(a)5. Any action by the WEC, except an action

relating to its own internal procedures, requires a two-thirds vote of the Commission. Wis. Stat. §

5.05 (1e). Subject to limited exceptions, WEC meetings are public and recordings of those

meetings are publicly available. Wis. Stat. §§ 19.81 (2); 19.83 (1); 19.851; 5.05 (6a) (a)1.

7
In addition to injunctive relief, the Edwards plaintiffs seek damages for alleged violations of the ADA relative to
the Spring Election. The WEC defendants oppose that claim, as discussed in their memoranda in support of their
Motion to Dismiss the Edwards plaintiffs’ amended complaint. [‘340 Case, Dkt. Nos. 14-15].

Deliberations regarding advisory opinions are not open to the public. [WECPFOF 4.] The WEC’s

Administrator, even as the chief elections officer in the state, is not statutorily empowered to

modify laws concerning the conduct of elections. Wis. Stat. § 5.05 (3d)-(3g). The Administrator

performs such duties as assigned by the WEC. Wis. Stat. § 5.05 (3d). The WEC Defendants will

be bound by any decision the Court makes which impacts the election laws implicated in this case,

and thereafter issue whatever guidance may be appropriate pursuant to Wis. Stat. § 5.05(5t).

The WEC has specific duties and authority pursuant to Wisconsin statutes, both generally

and for each election. Among those duties, WEC prescribes the ballot form, and must include on

each ballot form certain requirements. Wis. Stat. § 7.08 (1)(a). It also prescribes the necessary

forms on which canvassers can report results, as well as forms for registration (including overseas,

electronic, by-mail and same-day registration) and requesting an absentee ballot. Wis. Stat. §§ 7.08

(1)(c); 6.33 (1). The WEC publishes an election manual explaining the duties of election officials,

the election laws and district maps. Wis. Stat. § 7.08 (3)-(5).

The WEC provides technical and direct support to municipal clerks on all aspects of

election management. [WECPFOF 6.] This includes providing access to and maintaining the

WisVote system and MyVote website, along with technical assistance for both. [WECPFOF 6.]

WisVote allows clerks to track absentee requests across elections, creates records for issued

ballots, and records whether the voter participated in the election and by what method. This system

also permits the WEC to monitor compliance with Federal and State Uniformed Overseas Citizens

Absentee Voting Act requirements. [WECPFOF 7.] The WEC is required to conduct regular

information and training meetings for county and municipal clerks, as well as other election

officials. Wis. Stat. § 5.05 (7). The WEC determines the training requirements for municipal

clerks, as well as the content of the training that municipal clerks provide to inspectors. Wis. Stat.

§ 7.315 (2); (1)(a); Wis. Adm. Code § EL 11-12. The WEC is required to audit voting systems

used by the municipal clerks to determine the error rate and take or order remedial action if that

rate exceeds the stated rate. Wis. Stat. § 7.08 (6). The WEC is required to coordinate with and

assist local election officials and respond to inquiries. Wis. Stat. § 7.08 (11). It may also provide

financial assistance to municipalities and counties in accordance with a State Election

Administration Plan, which is subject to the approval of Legislature’s Joint Committee on Finance.

Wis. Stat. §§ 5.05(10); 5.05(11). The WEC issues clerk communications, training materials and

forms for local clerks, but ultimately municipal clerks are tasked with implementing any changes

in policy or the law in their community.

The WEC is also required to conduct educational programs for voters. Wis. Stat. § 5.05

(12). The WEC maintains telephone and electronic systems by which voters can report voting

fraud and voting rights violations, obtain general election information, and access information

regarding registration status, polling locations and other election information. Wis. Stat. § 5.05

(13). The WEC provides information regarding registration and absentee ballot procedures to

members of the uniformed services and overseas voters. Wis. Stat. § 6.06.

The WEC enforces certain standards related to elections. The WEC’s enforcement

authority is generally complaint-based and initiated by voters. Wis. Stat. §§ 5.06 (1); 5.05 (2m);

see also Wis. Adm. Code § EL 20.04. The WEC may also initiate investigations on its own motion.

Wis. Stat. § 5.06 (4). Upon a finding that the local election official has abused his or her discretion,

the WEC may issue an order to that official to conform to the law. Wis. Stat. § 5.06 (6). The WEC

may bring civil actions and require a forfeiture or seek injunctive or other specific relief for

violations of Wisconsin’s election statutes. Wis. Stat. § 5.05 (1)(c)-(d). The Attorney General or a

district attorney may also sue to compel compliance, including compliance with section 2 of the

Voting Rights Act. Wis. Stat. § 5.061; 5.08; 5.081. Under certain circumstances, the WEC may

make referrals to a district attorney in a county in which an alleged violation occurred. Wis. Stat.

§ 5.05 (2m)(c)10-18.

The WEC’s mandate does not include an option to displace the authority of municipal

clerks or boards of election. The WEC has limited rulemaking authority to ensure the “proper

administration” of Wisconsin’s election statutes. Wis. Stat. § 5.05 (1)(f). As with other Wisconsin

agencies, the WEC must follow a statutory procedure prior to issuing any such order. Wis. Stat. §

227.01 et seq.; See e.g. Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 15, 391 Wis. 2d 497, 513,

942 N.W.2d 900, 908. The WEC promulgates rules pursuant to grants of authority from the

Wisconsin Legislature. Koschkee v. Taylor, 2019 WI 76, ¶ 15, 929 N.W.2d 600, 387 Wis. 2d 552.

State agencies in Wisconsin “ha[ve] no inherent constitutional authority to make rules, and,

furthermore, [their] rule-making powers can be repealed by the legislature.” Martinez v. DILHR,

165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992); Wis. Stat. § 227.19(1)(b)1. For example, the

WEC’s predecessor agency, the Wisconsin Government Accountability Board, promulgated

standards for the training and certification of election inspectors. Wis. Adm. Code § EL 11.01 et

seq. The corresponding rulemaking authority is found in section 7.31 of the statutes: “The

commission shall, by rule, prescript the contents of the training that municipal clerks must provide

to inspectors, other than chief inspectors, and to special voting deputies appointed under s. 6.875.”

Wis. Stat. § 7.31(1)(a).8 Chapter 227 does not provide plenary rule-making authority to

Wisconsin’s state agencies, including the WEC. Wis. Stat. § 227.11(1).

8
See also Wis. Stat. 7.315 (2) (“The commission shall, by rule, prescribe requirements for, and the content of, training
required of municipal clerks under s. 7.15 (1m). The commission may provide such training directly or arrange
for such training to be provided by other organizations. The rules shall provide a method for notifying the relevant
municipal governing body if a municipal clerk fails to attend required training.”); Wis. Adm. Code § EL 12,
Certification and Training of Municipal Clerks; Wis. Stat. 7; Wis. Stat. § 7.08 (1)(d) (the WEC shall “[p]romulgate
rules for the administration of the statutory requirements for voting machines and electronic voting systems and

Administrative agencies are creatures of the Legislature, with “only those powers
as are expressly conferred or necessarily implied from the statutory provisions
under which [they] operate.” Those statutes will be strictly construed to preclude
the exercise of power not expressly granted. Any reasonable doubt regarding an
agency’s implied power should be resolved against the agency. Since the
Legislature has discretion to grant power to an agency, it follows that the
Legislature can also retract that power.

Wis. Op. Att’y Gen. OAG-01-16 (2016),

https://docs.legis.wisconsin.gov/misc/oag/recent/oag_1_16 (internal citations and quotations

omitted).

Upon request, the WEC may issue formal or informal advisory opinions, “regarding the

propriety under chs. 5 to 10 or 12 of any matter to which the person is or may become a party.”

Wis. Stat. § 5.05 (6a)(a)1. To have legal effect, the WEC’s advisory opinions must be supported

by a specific legal authority. Wis. Stat. § 5.05 (6a)(a)2.

For each election, the WEC also produces and publishes the candidate list so that each

county clerk can produce a ballot. Wis. Stat. § 7.08 (2). The WEC collects nomination papers for

state office and seats on a metropolitan sewage commission, as well as petitions for names to be

included in the presidential and congressional primaries. Wis. Stat. §§ 8.10 (6)(a); 8.12 (1)(c); 8.15

(8). The WEC promulgates rules for use by election officials in determining the validity of

nominating papers. Wis. Stat. § 8.07; Wis. Adm. Code § EL 2, 6. The WEC then issues

standardized notices to the county clerks certifying the list of candidates for any election. Wis.

Stat. § 10.06 (1).

any other voting apparatus which may be introduced in this state for use at elections…”); Wis. Adm. Code § EL
7, Approval of Electronic Voting Equipment.

B. Municipal Clerks’ Role and Authority.

Like the WEC, municipalities in Wisconsin, including towns, villages and cities, have

duties and authorities derived from Wisconsin statutes. See generally Wis. Stat. chs. 60-62. Each

municipality is required to have a clerk who performs certain duties. Wis. Stat. §§ 60.33 (duties of

the town clerk); 61.25 (duties of the village clerk); 62.09 (11) (duties of the city clerk). Under

Wisconsin’s decentralized election system, municipal clerks largely run Wisconsin’s elections.

Wis. Stat. §§ 7.15 (1); 60.33 (4); 61.25 (1); 62.09 (7)(b). “Each municipal clerk has charge and

supervision of elections and registration in the municipality.” Wis. Stat. 7.15 (1). This structure is

consistent with Wisconsin’s status as a home rule state. Wis. Const. Art. 11, § 3; Wis. Stat. §

66.0101; see also Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶¶ 88-89, 358 Wis.2d 1, 851

N.W.2d 337. Wisconsin cities enjoy, “the largest measure of self-government compatible with the

constitution and general law...” Wis. Stat. § 62.04. Municipal clerks administer absentee by mail,

absentee in-person and election day in-person voting in their communities. Wis. Stat. § 7.15 (1),

(2), (2m). In the City of Milwaukee, these duties are performed by the municipal Board of Election

Commissioners. Wis. Stat. § 7.20 (1); Milwaukee Ord. 302-3.

Municipal clerks have the statutory responsibility for, inter alia: equipping polling places;

purchasing and maintaining equipment; sending absentee ballots; and reassigning inspectors to

address staffing shortages. Wis. Stat. § 7.15 (1)(a-k). The governing body of a municipality, or the

board of elections, determines the number and location of polling places. Wis. Stat. § 5.25 (2).

Municipal clerks staff polling places, train election officials, pay election officials and are charged

with discharging election officials when required. Wis. Stat. §§ 7.30 (1); 7.03 (1)(a); 7.15 (1)(f).

Wisconsin statutes define the requirements that municipal clerks must meet in establishing polling

places. Wis. Stat. §§ 5.15; 5.25; 5.35. This includes rules on the minimum number of voting booths

and ballot boxes, the layout and organization of the polling place and what must be posted. Wis.

Stat. § 5.35. Municipalities determine whether to use electronic voting systems, subject to statutory

and regulatory requirements, including rules to ensure the security of those systems. Wis. Stat. §§

5.76; 5.77-5.95; 5.905 (3); Wis. Adm. Code § EL 7. The Municipal clerks are required to “make

reasonable efforts to comply with requests for voting accommodations made by individuals with

disabilities whenever feasible.” Wis. Stat. § 7.15 (14). Polling places must be accessible to

individuals with disabilities. Wis. Stat. § 5.25 (4)(a).

The statutes also mandate the number of inspectors for each polling place at each election,

which is either five or seven, depending on whether voting machines are used. Wis. Stat. § 7.30

(1)(a). Municipal governing bodies may, by ordinance, permit the municipal clerk to establish

different working hours, increase the number of inspectors if there is more than one voting machine

being used or provide for sets of inspectors to work at different times. Wis. Stat. § 7.30 (1).

Inspectors maintain order in the polling place, distribute ballots to voters, are in charge of the poll

lists, examine electronic voting systems and resolve certain challenges to voters, among other

duties. Wis. Stat. § 7.37. Inspectors also process election-day registrations and provisional ballots

for voters who do not provide proof of identification or residence. Wis. Stat. §§ 6.55; 6.97.

Municipalities may reduce the number of election officials, but there must be three at any polling

place. Wis. Stat. § 7.32. Municipalities may also authorize the municipal clerk to employ

tabulators, who assist the election inspectors after the polls close. Wis. Stat. § 7.30 (3). In the

limited circumstances in which the WEC employs an individual who performs duties which are

the responsibility of a county or municipality, the WEC passes along that cost to the county or

municipality. Wis. Stat. § 7.03 (2).

Municipal clerks are required to mail a registration form upon request to any elector, as

well as review registrations for sufficiency and notify proposed voters of any deficiencies. Wis.

Stat. §§ 6.30 (4); 6.32. The WEC facilitates electronic registration through WisVote and notifies

municipal clerks of each completed application. Wis. Stat. § 6.30. Conversely, municipal clerks,

upon receipt of a new registration, change in registration, or change in a registration status, are

required to enter that information into the official registration list maintained by the WEC. Wis.

Stat. § 6.33 (5)(b); 6.50. The municipal clerk makes copies of the registration list for use in

elections and provides copies to the candidates, subject to certain limitations. Wis. Stat. § 6.45.

Municipal clerks also resolve challenges regarding registration. Wis. Stat. § 6.48.

Municipal clerks process, send and receive absentee ballots in Wisconsin. This includes

ballots for military electors and overseas electors, as well as federal write-in absentee ballots. Wis.

Stat. §§ 6.22 (4), (6); 6.24; 6.25. It also includes both in-person absentee voting and by-mail

absentee voting. Wis. Stat. § 6.855; 6.86 (a). Municipal clerks are charged with confirming that an

application for an absentee ballot is accompanied by proof of identification. Wis. Stat. § 6.86(1)(b);

6.87 (1); 6.87 (4)(b)2-4. Municipal clerks also process absentee ballot requests pursuant to specific

procedures for voters who are indefinitely confined because of age, physical illness or disability;

are hospitalized; or are a sequestered juror. Wis. Stat. § 6.86 (1)(b), (2), (3). Under Wisconsin

statutes as written, municipal clerks also send absentee ballots to military or overseas voters via

facsimile or e-mail. Wis. Stat. § 6.87 (3)(d)9. The WEC provides uniform instructions for absentee

voters. Wis. Stat. § 6.869. The statutes prescribe the language of absentee ballot certifications,

both by the voter and the witness. Wis. Stat. § 6.87 (2). Municipal clerks and inspectors are

9
This provision was modified by this Court’s decision One Wisconsin Institute v. Thomsen. 198 F. Supp. 3d at 904,
order enforced, 351 F. Supp. 3d 1160 (W.D. Wis. 2019). The Court of Appeals for the Seventh Circuit recently
issued its ruling in that case, reversing in part. Luft v. Evers, No. 16-3003, 2020 WL 3496860. The Court of
Appeals has yet to issue its mandate. Fed. R. App. P. 41.

responsible for processing returned absentee ballots including delivering those ballots to polling

places or boards of absentee ballot canvassers on election day to be counted. Wis. Stat. § 6.88 (1)-

(2). Either the inspectors or canvassers review the absentee ballot envelope for, among other

things, a properly completed certification. Wis. Stat. § 6.88 (3)(a)-(c); 7.52 (3).

C. County Clerks’ Role and Authority.

Like the WEC and municipal clerks, county clerks in Wisconsin have election duties

defined by statute. Wis. Stat. § 59.23 (2)(i) (county clerks are the chief election officer of the

county). County clerks are responsible for providing ballots for every election in the county for

national, state and county offices and state and county referenda. Wis. Stat. § 7.10 (1)(a). County

clerks are required to distribute ballots to municipal clerks no later than 48 days before partisan

primaries and general elections and no later than 22 days before each other election. Wis. Stat. §

7.10 (3)(a). County clerks must distribute an adequate number of ballots to meet the municipal

clerks’ obligation to supply absentee ballots. Wis. Stat. § 7.10 (3)(b). Ballot forms are subject to

specific statutes. Wis. Stat. § 5.51 – 5.56 (general requirements for ballots, and requirements for

spring primary, spring election, partisan primary and general election ballots). Any person shall

be given an opportunity to register to vote at the office of the county clerk for the county in

which the person's residence is located. Wis. Stat. § 6.28 (4). Some county clerks, by mutual

consent, also provide voter registration services on behalf of municipalities within their county,

including assistance with data entry into the WisVote system. See Wis. Stat. § 6.33 (5)(b), Apart

from their responsibility to prepare and distribute ballots, county clerks also assist the WEC with

voter education, elections information and training election officials. Wis. Stat. § 7.10 (7)-(9).

D. Canvassing.

Under Wisconsin’s statutory system, municipalities, counties and the WEC all have

separate but related authorities to conduct the canvass following an election. Inspectors

immediately begin the canvass after the polls close. Wis. Stat. § 7.51 (1). This process involves

comparing the poll lists and addressing any defective, blank, or challenged ballots. Wis. Stat. §

7.51 (2)(a)-(f). The inspectors then either count and record the number of votes or retrieve a record

of the votes cast from the voting machines. Wis. Stat. § 7.51 (e), (g)-(h). The chief inspector or

another inspector must then report that result to the municipal clerk. Wis. Stat. § 7.51 (4)(b).

The municipal clerk, in turn, must report results to the county clerk no later than two hours

after tabulation. Wis. Stat. § 7.51 (4)(c). The county clerk must receive those reports and post

returns on election night within two hours of receipt. Wis. Stat. § 7.60 (1). By statute, the municipal

canvass cannot begin until the municipal board of canvassers has received the returns from all

polling places in the municipality but must begin no later than 9 a.m. on the Monday after the

election. Wis. Stat. § 7.53(2)(d). The county board of canvass must begin its canvass no later than

9 a.m. on the Tuesday after each election and must gather any unreported returns from the

municipalities. Wis. Stat. § 7.60 (3). The county clerk then reports certain results of the county

canvass to the WEC. Wis. Stat. § 7.60(5)(a). On election night, the WEC is required to post links

to each county’s returns. Wis. Stat. § 5.05 (14)(c).

The WEC’s chairperson or the chairperson’s designee examines the certified statements of the

county boards of canvass for material mistakes. Wis. Stat. § 7.70 (3)(b). The chairperson or their

designee must begin the canvass no later than December 1 for the November Election, and must

complete it within ten days. Wis. Stat. § 7.70 (3)(a), (c).

III. WEC ROLE REGARDING RELIEF REQUESTED

The WEC does not take a position on the merits of the specific elements of relief requested

in the plaintiffs’ respective motions for preliminary injunctions. In assessing those requests,

however, the WEC asks this Court to be mindful of the WEC’s specific statutory role within

Wisconsin’s election system. As this Court is aware, the WEC does not have the authority to

modify, waive or overrule Wisconsin’s election statutes. To the contrary, the WEC is charged with

administering and enforcing those statutes. Wis. Stat. § 5.05(1), (2). In addition, the WEC has

limited authority over local officials, as state law provides that municipal clerks run elections and

voter registration in their respective municipalities. Wis. Stat. § 7.15 (1), (2), (2m).

Some forms of relief requested by certain plaintiffs are premised on allegations that the

WEC failed to perform its duties, when those “duties” are not within the purview of the WEC’s

statutory functions. For example, the DNC and Swenson plaintiffs contend that the WEC should

mandate that each municipality have an adequate number of polling places. By statute, the

authority to designate polling places is vested in either a board of election commissioners or other

local government officials. Wis. Stat. § 5.25 (2), (3). The same plaintiffs argue that the WEC must

ensure that polling places are safe, such as by providing expanded curbside voting, reduce

crowding at polling places, monitoring social distancing, providing appropriate sanitization, and

require that voters and poll workers take precautions to avoid the spread of COVID-19. The

Edwards plaintiffs request an order compelling the WEC defendants to adopt in-person election

hygiene protocols issued by the CDC, issue guidance in accordance with those protocols and

condition receipt of CARES Act grant funds upon a municipality’s written agreement to implement

those protocols.

Certainly, the WEC has undertaken measures to assist in safeguarding voting places, such

as by facilitating the delivery of sanitation supplies before the April Election and by directing staff

to spend federal CARES Act grant money to distribute sanitation supplies to all 72 counties in

Wisconsin. [WECPFOF 48.] The WEC also has worked with public health officials to produce

over 20 public health guidance documents for clerks, poll workers and the public. However,

municipal clerks are delegated with specific responsibilities in regard to polling places, such as

providing necessary equipment, and they are accorded the general responsibility to perform any

duties “which may be necessary to properly conduct elections or registration.” Wis. Stat. § 7.15(1).

Whatever injunctive relief, if any, that is granted in this case should be fashioned keeping in mind

those who are statutorily charged with matters such as selecting and staffing polling places, mailing

and processing absentee ballots, and running elections in general.

Other forms of relief sought are directed at problems the WEC has taken steps to address

in the months since the pandemic was unleashed. Among the various forms of injunctive relief

directed at the WEC defendants by the Swenson plaintiffs is an order to upgrade electronic voter

registration systems. WisVote and MyVote are websites operated by the WEC that work in

tandem. WisVote is the statewide voter registration data base where local officials enter voter

registration information, among other things. [WECPFOF 7.] MyVote is the user interface for

voters to be able to interact with that data. [WECPFOF 7.] Both are in the process of being

upgraded to make them more efficient and enable municipal clerks to better handle the volume of

absentee ballot requests in the upcoming elections. The changes to MyVote and WisVote are

further summarized in the June 25 Status Report filed with the Court.

Both the Gear and Swenson plaintiffs point to significant problems with the delivery and

return of absentee ballots in the Spring Election. The Swenson plaintiffs seek an order requiring

that the WEC, “take all appropriate actions to ensure that all voters who request and are qualified

to receive an absentee ballot in fact receive such absentee ballot…” [‘459 Case, Dkt. No. 40, p. 4].

The Gear plaintiffs contend that the WEC defendants “hold the ultimate responsibility to ensure

delivery” of the mail, [‘249 Case, Dkt. No. 421, p. 26], and ask that all voters who request absentee

ballots but do not receive them timely be able to access mail in ballots online. [‘249 Case, Dkt.

No. 369, pp. 8-9]. The latter appeal requires a change in state law that is addressed below.

Aside from the obvious point that delivery of the mail is the responsibility of the United

States Postal Service, the WEC did request information about the failed deliveries from the USPS,

as has at least one municipality. [WECPFOF 37.] The WEC is spending up to $400,000 of federal

CARES Act grant funds to develop Intelligent Mail Barcodes (IMBs). IMBs will enable clerks and

voters using WisVote and MyVote, respectively, to track absentee ballots through the mail stream.

The process is described in more detail in the Status Report submitted to the Court. [‘249 Case,

Dkt. No. 227, p. 6; [WECPFOF 48]. Finally, it is municipal clerks who process, send and receive

absentee ballots in Wisconsin. Wis. Stat. § 7.15 (1); 6.86 et seq. The WEC does not have the

statutory authority to assume that responsibility.

Most of the remedies sought by the various plaintiffs are precluded under current state law

and, therefore, would require a court order or action by the Legislature. The DNC plaintiffs

concede that nearly all the relief they are seeking requires Court action “because there is nothing

left for the Commission to do.” [‘249 Case, Dkt. No. 420, p. 24]. The Swenson plaintiffs concur

that “(a)bsent judicial intervention, (the WEC) Defendants will be powerless to make necessary

adjustments that run afoul of these statutory mandates.” [‘459 Case, Dkt. No. 41, p. 23]. The

Edwards plaintiffs as well recognize the statutory constraints upon the WEC’s ability to provide

many of the remedies sought. [‘249 Case, Dkt. No. 397, p. 32]. Among the forms of relief sought

by one or more groups of plaintiffs that would require judicial intervention are the following:

• The DNC, Gear and Swenson plaintiffs assert that the WEC’s suggestions for

fulfilling the witness requirement for an absentee ballot are either insufficient or

unreasonable. The Edwards plaintiffs also seek relief from the witness requirement

for those who do not reside with a competent witness. The witness certification

language and witness requirement are mandated under state law. At present, the

WEC may not issue guidance or promulgate a rule that does not require a witness

certification and signature as prescribed in Wis. Stat. § 6.87(2), (4)(b).

• The DNC and Edwards plaintiffs seek to enjoin enforcement of the proof of

identification requirements to obtain absentee ballots set forth in Wis. Stats. §§

6.86(1)(ac) and 6.87(1). The Seventh Circuit has previously approved Wisconsin’s

Photo ID requirement, subject to certain qualifications. Frank v. Walker (Frank I),

768 F.3d 744 (2014); Frank v. Walker (Frank II), 819 F.3d 384 (2016); Luft, 2020

WL 3496860, *1. The DNC plaintiffs also seek to enjoin enforcement of the proof

of residency requirement set forth in Wis. Stat. § 6.34(3) until the COVID-19 crisis

is over. Luft, 2020 WL 3496860, *7.

• The Edwards and Swenson plaintiffs seek to enjoin enforcement of Wis. Stat. §

7.30(2), which requires each election official to be a qualified elector of the county

in which he or she is serving. The Swenson plaintiffs seek an order directing the

WEC to take appropriate actions to ensure that there are adequate numbers of poll

workers. The WEC is encouraging counties and municipalities to solicit election

officials for the upcoming elections, [‘249 Case, Dkt. No. 227, p. 11], but the role

of nominating and selecting election officials is delegated to local officials and the

political parties under Wis. Stat. § 7.30(4).

• The Swenson and DNC plaintiffs seek to enjoin enforcement of the requirement in

Wis. Stat. § 6.87(6) that absentee ballots not delivered to the polling place by 8 p.m.

on election day not be counted. Both groups offer alternatives, one which involves

counting all absentee ballots postmarked by election day or received within a week

of election day (Swenson), and the other requesting that absentee ballots be counted

up to ten days after election day, so long as they are postmarked (as defined in ‘249

Case, Dkt. No. 420, p. 7 n.7) by election day. Clearly, the relief sought by the DNC

plaintiffs will require a determination how to handle absentee ballots without a

postmark. The solution posed by them, a presumption of timely mailing absent a

preponderance of evidence to the contrary, may require further judicial guidance.

• The DNC plaintiffs seek to extend electronic and by mail voter registration

deadlines until October 30, 2020. Currently, state law requires mail in registrations

to be received by the clerk or postmarked no later than the third Wednesday

preceding the election. Electronic registrations must be received by 11:59 pm on

the third Wednesday preceding the election. Wis. Stat. § 6.28(1).

• The Swenson and Edwards plaintiffs request that the Court enjoin enforcement of

Wis. Stat. §§ 6.88, 7.51 and 7.52 to allow absentee ballots to be counted prior to

election day. Section 6.88 (3) requires that except where absentee ballots are

canvassed pursuant to § 7.52, envelopes containing absentee ballots be opened in

public view during polling hours on election day and examined to verify that the

elector is qualified and has not voted, that the ballot is properly endorsed and that

it is accompanied by proof of residence. Section 7.51 (1) provides that canvassing

of all votes shall begin after the polls close. Section 7.52 (1)(a) provides that by

municipal ordinance, canvassing of absentee ballots may be done on election day

between the opening of the polls and 10 p.m. by a board of absentee ballot

canvassers at a publicly noticed site.

• The Swenson and Edwards plaintiffs seek to enjoin enforcement of Wis. Stat. §

6.855 (1) insofar as it requires that sites other than the office of the municipal clerk

or board of election commissioners used to request and vote absentee ballots be

designated “no fewer than 14 days prior to the time that absentee ballots are

available for the primary” or, if there is no primary election, “at least 14 days prior

to the time that absentee ballots are available for the election.” The Court should be

aware that, pursuant to statute municipal clerks designated alternative absentee

ballot sites in June. [WECPFOF 49]

• The Edwards plaintiffs request that the Court enjoin enforcement of Wis. Stat. §

6.86 (1)(b), which they contend limits in-person absentee voting to the period 14

days before the election and ending the Sunday before the election. [‘249 Case,

Dkt. No. 395, p. 4]. The time limits referenced in that section set forth the period

within which in person applications for absentee ballots shall be made. Wis. Stat. §

6.86 (1)(b). See Luft, 2020 WL 3496860, *7.

• The Edwards plaintiffs seek an order compelling the WEC defendants to direct

municipal clerks to send absentee ballots to all registered voters on the voter rolls

as of September 30, 2020. Currently, Wis. Stat. § 6.86 sets forth methods by which

absentee ballots may be obtained and does not include any provision for sending

absentee ballots to all registered voters.

• The Gear plaintiffs request that the Court enjoin enforcement of Wis. Stat. § 6.87

(3)(d), which restricts electronic access to absentee ballots to military and overseas

voters. The Gear plaintiffs wish to extend electronic access to ballots to those who

timely requested, but did not receive, ballots by mail. After Luft v. Evers, municipal

clerks will be prohibited from sending ballots via facsimile or email to anyone other

than military or overseas voters. Wis. Stat. § 6.87 (3)(d); Luft, 2020 WL 3496860,

*7.

As stated, WEC defendants take no position with respect to the injunctive relief the plaintiffs seek

in regard to the statutes cited, but only wish to emphasize that the WEC is not allowed to afford

any aspect of such relief, including guidance or rule-making, absent legislative action or a judicial

order addressing the statutes at issue.

CONCLUSION

As set forth herein, the WEC defendants take no position with respect to the injunctive

relief the plaintiffs seek in the four consolidated cases. The WEC is a function of the Wisconsin

statutes and has no authority to overrule, waive or otherwise disregard Wisconsin’s election laws,

including statutes related to absentee ballots and the decentralized structure of Wisconsin election

administration. Wis. Stat. § 5.05. The WEC will be bound by any decision of the Court and will

take any steps or issue any guidance required. Wis. Stat. sec. 5.05 (5t).

Dated this 20th day of July, 2020. LAWTON & CATES, S.C.

/s/Daniel S. Lenz
Dixon R. Gahnz, SBN: 1024367
Daniel P. Bach, SBN: 1005751
Daniel S. Lenz, SBN: 1082058
Terrence M. Polich, SBN: 1031375

345 W. Washington Avenue, Suite 201
P.O. Box 2965
Madison, WI 53701-2965
Phone: (608) 282-6200
Fax: (608) 282-6252
dgahnz@lawtoncates.com
dbach@lawtoncates.com
dlenz@lawtoncates.com
tpolich@lawtoncates.com

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