A recent 7th Circuit decision means ballots postmarked by Election Day will count for the upcoming election provided they arrive by November 9th.
Normally, Wisconsin law requires absentee ballots to be returned by 8 p.m. on Election Day. Federal District Judge William Conley extended the deadline in September, citing COVID-19 concerns. The Wisconsin Legislature, Republican National Committee, and the Republican Party of Wisconsin immediately appealed the decision to the 7th Circuit. But after an initial stay, the circuit court upheld Judge Conley’s order.
The unanimous ruling came from a three-judge panel of the 7th Circuit Court of Appeals and centered entirely on the procedural grounds of the appeal, with the court stating: “We need not discuss the parties’ arguments about the constitutional rules for voting or the criteria for stays…because none of the three appellants has a legal interest in the outcome of this litigation.”
The court later added: “The political organizations themselves do not suffer any injury caused by the judgment. Appeal by the state itself, or someone with rights under the contested statute, is essential to appellate review of a decision concerning the validity of a state law.”
Most disconcerting, the court based its decision to exclude the Wisconsin Legislature on Service Employees International Union, Local 1 v. Vos, 2020 WI 67, claiming: it stood for the “holding that, as a matter of Wisconsin law, the legislature cannot represent the state’s interest, controls in federal court too. Under Vos the legislature may represent its own interest…but that proviso does not allow the legislature to represent a general state interest in the validity of enacted legislation. That power belongs to Wisconsin’s executive branch under the holding of Vos.”
In response, the Wisconsin Legislature motioned for a formal request to the Wisconsin Supreme Court to rule on whether the Legislature has authority to litigate for the state on these issues, adding: “With all respect, the Wisconsin Supreme Court would be surprised, to put it mildly, to learn of this misunderstanding of its careful, narrow decision.”
The 7th Circuit agreed and the case is before the Wisconsin Supreme Court.
If the parties appeal, the case could go to the United States Supreme Court, much like this past spring. If it did so, the case could join several others states challenging similar provisions abrogating election deadlines.
