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7th Circuit Reverses Decision in Absentee Ballot Deadline Case

After initially denying an appeal from the Wisconsin Legislature challenging a trial court order extending the deadline for absentee ballots, the 7th Circuit reversed its decision Thursday, granting the legislature the right to appeal. The decision comes after an opinion written by the Wisconsin Supreme Court approving the legislature’s right to represent the state under Wis. Stat. § 803.09(2m).

The case arose after federal District Judge William Conley extended the deadline to return absentee ballots an additional five days after the election, citing COVID-19 concerns. A three-judge panel of the 7th Circuit Court of Appeals initially denied to hear the case after concluding that none of the three challengers could represent Wisconsin in the matter. Upon motion from the Wisconsin legislature, however, the issue of the legislature’s standing to challenge the order on behalf of the state went before the Wisconsin Supreme Court.

The Wisconsin Supreme Court ruled in favor of the Wisconsin legislature, holding “under § 803.09(2m), the Legislature does have the authority to represent the State of Wisconsin’s interest in the validity of state laws.”

With this ruling, the 7th Circuit panel reversed its decision 2-1 in respect to the Wisconsin Legislature’s standing and placed a stay on Judge Conley’s order, stating:

“The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid…We agree with both of those arguments, which means that a stay is appropriate.”

Further adding:

“Voters have had many months since March to register or obtain absentee ballots; reading the Constitution to extend deadlines near the election is difficult to justify when the voters have had a long time to cast ballots while preserving social distancing


“Deciding how best to cope with difficulties caused by disease is principally a task for the elected branches of government.”

The dissent argued against the decision, stating:

I submit that our foremost duty in this case is to protect the voting rights of Wisconsin citizens, which are seriously endangered, rather than discretionary action (or inaction) by one branch of state government, in the face of a pandemic.

The case is expected to go to the United States Supreme Court.