Extended ballot-receipt deadline

Appeals court lets extended ballot-receipt deadline take effect in Wisconsin

The panel found that Republican groups did not have standing to challenge the extended deadline.

By JOSH GERSTEIN

An appeals court has handed Democrats a temporary victory, turning down a bid by Republicans to block a federal judge’s order that mail-in ballots postmarked by Election Day be counted even if received up to six days after the election.

Tuesday’s ruling from the 7th Circuit Court of Appeals did not delve into the legal arguments for or against the extension and some other changes ordered by the district court, but held that the parties seeking to block the order on an emergency basis — the Wisconsin Legislature, the Wisconsin GOP and the Republican National Committee — lacked the legal standing to challenge the move.

“None of the three appellants has a legal interest in the outcome of this litigation,” the three-judge appeals court panel wrote in a brief, five-page, per curiam opinion. Assigned to the emergency appeal were Judges Frank Easterbrook, Ilana Rovner and Amy St. Eve.

The decision could set up a replay at the U.S. Supreme Court of a battle that played out in April, when the justices voted, 5-4, to overturn a pandemic-related order from the same district court judge in the same case, giving voters up to six extra days to return their absentee ballots in a state election and Democratic presidential primary taking place that month.

While the order for the April election would have allowed ballots to be counted even if cast after Election Day, the injunction for the general election requires a postmark by Nov. 3, but adds more time for those ballots to reach election officials.

The Supreme Court is shorthanded since the death of Justice Ruth Bader Ginsburg earlier this month, but the five-justice majority from the earlier decision remains intact.

Republicans had no immediate comment on whether they would press the appeal further. “We are considering our legal options,” Republican National Committee spokesperson Steve Guest said early Wednesday.

All three judges on the ruling issued Tuesday are Republican appointees. Easterbrook was appointed by President Ronald Reagan, Rovner by President George H.W. Bush and St. Eve by President Donald Trump. Their ruling lifted a temporary stay that the court granted without comment on Sunday.

The appeals court noted that the Wisconsin election officials sued in the case had not appealed the ruling from U.S. District Court Judge William Conley, an appointee of President Barack Obama. The 7th Circuit panel said the Supreme Court has held that a third party cannot challenge such a ruling unless it can show that its rights are being violated.

“The district court did not order them to do something or forbid them from doing anything. Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their member,” the court wrote in denying relief to the GOP entities.

“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,” the appeals judges added.

The 7th Circuit panel said the Wisconsin Legislature could go to court in certain circumstances, but not to defend a statute the state’s executive officials are declining to defend. The appeals court acknowledged that it had allowed the Legislature to represent the state in the April round of the litigation that eventually drew the intervention of the U.S. Supreme Court. However, the 7th Circuit judges said the Wisconsin Supreme Court ruled definitively in July in a separate case that the state’s Constitution allowed only executive branch officials to act for the state in litigation.

“A holding that, as a matter of Wisconsin law, the legislature cannot represent the state’s interest, controls in federal court, too,” the appeals panel wrote. “The state’s legislative branch is not entitled to represent Wisconsin’s interests as a polity.”

The apparently unanimous ruling from three respected, Republican-appointed appeals court judges is likely to hold significant sway at the U.S. Supreme Court and with other courts. The decision could indicate that Republicans face an uphill battle challenging court-ordered, pandemic-related changes where state officials have acquiesced in those moves.

However, the new ruling is not binding outside the 7th Circuit, and its impact in the slew of cases pending in other states could be limited because of the relatively unusual scenario that played out in the Wisconsin case.

The GOP-led Wisconsin Legislature responded to the ruling on Wednesday by asking the appeals court to formally request that the Wisconsin Supreme Court rule on whether the Legislature has authority to litigate for the state in the pair of cases that led to the recent injunction. Lawyers for the Legislature said they believe the 7th Circuit misread the July decision from the state’s highest court.

The Wisconsin Legislature also asked the federal appeals court to reimpose the stay it initially granted over the weekend.

The RNC and the Wisconsin GOP quickly joined in the legislature's motion, but the same 7th Circuit panel made short work of the effort, rejecting the request without comment less than two hours after it was filed.