A federal appeals court says a judge’s decision to delay the deadline for returning Wisconsin absentee ballots can proceed, finding GOP lawmakers and political parties didn’t have standing to challenge the extension.
The 7th Circuit Court of Appeals on Tuesday found the state and national Republican parties had suffered no injury in Judge William Conley’s decision to allow absentee ballots to be counted so long as they’re postmarked by Election Day and received no more than six days later.
Typically, absentee ballots must be returned by 8 p.m. on Election Day. But Conley ordered the extension to account for the expected crush of absentee ballots amid the COVID-19 pandemic. Already, voters have requested nearly 1.2 million absentee ballots for the Nov. 3 election after 140,000 were returned via mail for the November 2016 election.
The court also ruled GOP lawmakers, who filed their own appeal, don’t have the power to intervene in the case under a Wisconsin Supreme Court decision.
“None of the appellants has suffered an injury to its own interests, and the state’s legislative branch is not entitled to represent Wisconsin’s interests as a polity,” the panel concluded.
The decision, handed down late Tuesday, allows Conley’s ruling to take effect. Beyond the new deadline of Nov. 9 for absentee ballots, Conley extended by one week the deadline to register online or by mail to Oct. 21. He also allowed voters who request absentee ballots but don’t receive them in the mail to get a replacement electronically between Oct. 22 and Oct. 29.
While the court lifted its temporary stay, it also gave Republicans one week to file follow-up arguments on why the case shouldn’t be dismissed for lack of appellate jurisdiction.
GOP lawmakers were already back at the court Wednesday morning asking for a new stay.
The case could also end up before the U.S. Supreme Court, which embraced an extended deadline for absentee ballots during Wisconsin’s April election.
Then, Conley issued a ruling pushing back the deadline to the Monday after the election. His order didn’t include a postmark requirement, and the 7th Circuit upheld his new deadline for absentee ballots. The U.S. Supreme Court also OK’d the extension, but added the requirement that ballots had to be postmarked by the April election to count.
A spokesman for the state GOP didn’t have an immediate comment on the ruling.
In finding GOP lawmakers didn’t have standing, the federal court cited a state Supreme Court ruling from this summer that largely upheld the December 2018 lame-duck laws that sought to give legislators that very power.
Earlier in the suit, which was first filed ahead of the April election, the 7th Circuit found GOP lawmakers had standing “to act as a representative of the state itself, with the same rights as the Attorney General of Wisconsin.”
But the federal court ruled the state Supreme Court decision undercut that. While the ruling upheld much of those extraordinary session laws, the federal court noted it also restricts the Legislature to representing its own interest, but not the state’s. The state Supreme Court decision, which left the power to represent the state’s interest to the executive branch, is controlling in federal court, too. That means lawmakers aren’t entitled to defend the validity of a state law, according to the federal court.
In its filing Wednesday morning, a lawyer for GOP lawmakers argued the state Supreme Court “would be surprised, to put it mildly,” of the interpretation of its ruling in the lame-duck case. The motion urged the federal appeals court to ask the state Supreme Court for a definitive ruling on what its decision meant. Lawmakers proposed the appeals court send the request today with a deadline of Monday for the state Supreme Court to respond.
All three judges on the unanimous federal panel were appointed by GOP presidents, including one put on the appeals court by President Trump.
A coalition of groups that sued seeking changes to the November election hailed the ruling. The groups also warned voters not to rely on the new deadlines in case an appeal is filed with the U.S. Supreme Court.
“All Wisconsin voters — regardless of their party or where they live — benefit from election procedures designed to be safe and effective during the ongoing challenges of voting during a pandemic,” said Farbod Faraji, a lawyer for Protect Democracy. “Today’s decision paves the way from a safer, more inclusive election in November”