Plaintiffs’ Response to Motion in Support of Leave to File Amicus Memorandum by the Cities of Milwaukee and Madison

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Plaintiffs' Response to Motion in Support of Leave to File Amicus Memorandum by the Cities of Milwaukee and Madison, Wisconsin (Document 45) in Democratic National Committee and Democratic Party of Wisconsin v. Bostelmann et al., Civil Action No. 3:20-cv-249-wmc. The plaintiffs state that on Friday, March 20 the two largest cities in Wisconsin submitted a motion and a sworn affidavit by Neil Albrecht, Executive Director of the Board of Election Commissioners for the City of Milwaukee. The plaintiffs support the filing of the proposed amicus brief. They say the filings show an election administration problem caused by the pandemic, including an unprecedented volume of absentee voters and a loss of polling sites and poll workers.

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        Case: 3:20-cv-00249-wmc Document #: 45 Filed: 03/24/20 Page 1 of 3



                            UNITED STATES DISTRICT COURT
                            WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE and
DEMOCRATIC PARTY OF WISCONSIN,                              Civil Action No. 3:20-cv-249-wmc

                        Plaintiffs,

        v.

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.


 PLAINTIFFS’ RESPONSE TO MOTION IN SUPPORT OF LEAVE TO FILE AMICUS
 MEMORANDUM BY THE CITIES OF MILWAUKEE AND MADISON, WISCONSIN

        On Friday, March 20, the two largest cities in Wisconsin, Milwaukee and Madison,

submitted a Motion in Support of Leave to File Amicus Memorandum by the Cities of Milwaukee

and Madison, Wisconsin (“Cities’ Motion”) and a sworn affidavit by Neil Albrecht, the Executive

Director of the Board of Election Commissioners for the City of Milwaukee (“Albrecht Affidavit”)

in support thereof. Plaintiffs support the filing of the proposed Amicus brief by the Cities of

Milwaukee and Madison. Indeed, Plaintiffs intend to give blanket consent to the filing of Amicus

briefs by any interested parties whether in support of or in opposition to Plaintiffs’ requested relief.

        Plaintiffs ask the Court to take note that the sworn facts set forth in the Cities’ Motion and

the supporting Albrecht Affidavit provide further concrete evidence of the burgeoning election

administration disaster caused by the COVID-19 pandemic, and the attendant severe threat to the

voting rights of Wisconsin residents. In particular, Madison and Milwaukee note that they are

receiving an “unprecedented volume of absentee voters” for the 2020 spring election and many

more than the number received in either 2012 or 2016. Cities’ Motion at 5. These numbers are

        Case: 3:20-cv-00249-wmc Document #: 45 Filed: 03/24/20 Page 2 of 3



likely only to go up given that the Cities have both declared a state of emergency that prohibits

gatherings of 10 or more. Id. at 1. Both cities are losing large numbers of Election Day polling

sites and poll workers as a direct result of the spreading virus. Id. at 3. Moreover, overseas voters

in several countries cannot get their ballots to the polls on time because the mail in their countries

has been shut down. Id. The experienced election administrators in Milwaukee and Madison, based

on what they are observing on the ground in real time, believe these factors create a “strong

probability that hundreds if not thousands of votes will be lost by late-arriving absentees (those

received after Election Day).” Id. at 5. 1 They support reinstating Wisconsin’s former policy, in

effect prior to August 2016, of counting absentee ballots that arrived after Election Day as long as

they were post-marked by Election Day and arrived by the Friday after the election. Id.

        This Court emphasized in Friday evening’s Order and Opinion that Plaintiffs’ request for

extending the deadline for receipt of absentee ballots “may have merit, and may be of assistance

for the Elections Commission and municipal clerks should state and local officials not fulfill their

promise to ensure sufficient staffing before and on election day.” ECF No. 37 at 17. Nevertheless,

the Court was unwilling to “speculate about the need for this relief on the limited record before

it.” Id. Plaintiffs respectfully submit that the facts set forth in the Cities’ Motion make clear that

the Cities will not be able to ensure adequate staffing either before or on Election Day as a direct

result of the worsening COVID-19 pandemic, and the resultant dropping out of numerous poll

workers in both cities. Given this and the huge surge in absentee ballots linked to COVID-19,

Milwaukee and Madison predict that “hundreds if not thousands of votes” will arrive after 8 p.m.

on Election Day. Cities’ Motion at 5. This provides powerful additional evidentiary support for



1
 In his Affidavit, Executive Director Albrecht attested that he had reviewed information provided by the City Clerk
of the City of Madison, Maribeth Witzel-Behl, and believed it was true and correct as stated in the Cities’ Motion.
The Cities’ Motion was of course submitted on behalf of both cities. Cities’ Motion at 1.

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       Case: 3:20-cv-00249-wmc Document #: 45 Filed: 03/24/20 Page 3 of 3



Plaintiffs’ requested extension. Per the Court’s instructions in its Opinion and Order at 17,

Plaintiffs intend as expeditiously as possible to continue to pursue an extended deadline for receipt

of absentee ballots in a motion for preliminary injunction, supported by additional evidence,

including the evidence set forth in the Cities’ Motion and accompanying Albrecht Declaration.


                                               Respectfully submitted,


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

                                                 Charles G. Curtis, Jr.
                                                 Sopen B. Shah
                                                 PERKINS COIE LLP
                                                 33 East Main Street, Suite 201
                                                 Madison, Wisconsin 53703-3095
                                                 Telephone: (608) 663-7460
                                                 Facsimile: (608) 663-7499
                                                 CCurtis@perkinscoie.com
                                                 SShah@perkinscoie.com

                                                 Counsel for the Plaintiffs
                                                *Motions for Admission Forthcoming




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