The state DOJ argued in a new filing with the 2nd District Court of Appeals that Robert F. Kennedy Jr. waited too long to file his suit seeking to be removed from Wisconsin ballots with printing already underway.
What’s more, the filing argues Kennedy’s suggestion to affix stickers to ballots to block out his name isn’t allowed under state law and would be a “logistical nightmare.”
Counties have already begun printing ballots with a deadline on Wednesday for clerks to deliver them to local election officials. Kennedy earlier this week argued if his arguments are successful, the courts could remedy the situation by having stickers affixed to ballots blocking out his name. He argued that remedy is used when a candidate dies.
But DOJ responded Wednesday in a filing with the 2nd District Court of Appeals that state law bars election officials from attaching any type of sticker to ballots unless a candidate has died after they’re printed. Even then, it’s left to the discretion of the municipal clerk.
The filing added the equipment being used for the upcoming election hasn’t been tested to see if they can accurately count ballots with stickers attached to them.
“The stickers could peel off, get jammed or stuck in the voting tabulator, or stick to and rip other ballots, to name a few possible likelihoods,” the agency argued.
Kennedy filed a response Thursday rejecting the DOJ argument, writing the Legislature created the mechanism that the independent suggested to accommodate his request to be removed from ballots even after they’ve been printed.
“The Commission and the clerks do not have free reign to ignore the legislature’s commands or brand them as difficult and thus to be ignored,” Kennedy’s attorneys argued. “And in all this, it has to be remembered that Kennedy asked to be removed far before the ballots were approved and printed.”
The conservative 2nd District Court of Appeals is weighing Kennedy’s request to hear his case and order his name removed from the ballot. A Dane County judge last week denied Kennedy’s request for a restraining order taking him off the ballot before first allowing the Elections Commission to weigh in. Judge Stephen Ehlke instead set a briefing schedule in the case with a Tuesday hearing for an oral ruling, unless the 2nd District takes over the suit.
Kennedy filed nomination papers last month to qualify for the ballot as an independent candidate. He then dropped out of the race and endorsed Donald Trump. But state law doesn’t include a mechanism for candidates to withdraw nomination papers once they’ve been submitted, and the Elections Commission voted 5-1 to add him to Wisconsin’s presidential ballot.
Kennedy’s suits in Dane County and the 2nd District both argue keeping him on the ballot is improper because it treats independent candidates differently than those from major parties, who had a later deadline to certify their presidential contenders. He also argues it violates his First Amendment rights.
DOJ argues the earlier deadline for independent candidates reflects the time needed to review their signatures, while major party candidates don’t file nomination papers.
