Filed Date: March 18, 2020
Closed Date: Jan. 20, 2021
Clearinghouse coding complete
In the midst of the COVID-19 crisis, states all around the country attempted to conduct presidential primary elections. Simultaneously, Americans were practicing “social distancing,” sheltering in place, and avoiding going out in public and interacting with others as much as possible. Individuals, especially those over the age of sixty and those with preexisting conditions like asthma and autoimmune disorders, were encouraged to stay home as much as possible. Schools and daycares closed across the country, “non-essential” businesses were shuttered, and Americans went into lockdown to try to slow the spread of the disease.
As of March 18, 2020, Wisconsin had reported 72 cases of the novel coronavirus, although a substantially larger number had likely already contracted it. The state had also received an unprecedented number of absentee ballots for its April 7, 2020 election, but with electronic and by-mail registration ending on March 18, the Democratic Party of Wisconsin and the Democratic National Convention filed this lawsuit in U.S. District Court for the Western District of Wisconsin. They sought an extension of that deadline and suspension of other normal voting requirements, such as the requirement to provide proof of residence. “Absent intervention by the Court,” the complaint alleged, “the electronic and by-mail registration deadline of today will pass, and the safety risks of COVID-19 will prevent countless eligible Wisconsinites from registering and voting altogether.”
The plaintiffs brought this suit against the Wisconsin Elections Commissioners under 42 U.S.C. § 1983, alleging that Wisconsin voting laws would prevent many Wisconsinites from voting in the election, or would require them to vote in person at great risk to themselves and others. Specifically, the plaintiffs challenged laws that established the electronic and by-mail registration deadline, that required proof of residence and scans or copies of photo ID to accompany remote registration, and the deadline of 8:00 pm on April 7 for absentee ballots to be received by polling places. The complaint alleged undue burdens on the constitutional right to vote, invoking the First and Fourteenth Amendment, and denial of procedural due process. The plaintiffs sought an emergency temporary restraining order and preliminary injunction extending the March 18 deadline to April 3 and suspending the proof-of-residence and photo ID requirements. Represented by private counsel, they also sought declaratory and injunctive relief and attorney’s fees. The case was assigned to Judge William M. Conley.
On March 19, the court received notice of the Wisconsin State Legislature’s intent to intervene, and the court conducted a telephone conference with the parties to discuss the proposed intervenor.
On March 20, the Wisconsin State Legislature moved to intervene as a defendant, and submitted a proposed motion to dismiss. The legislature expressed doubt that the Wisconsin Attorney General would adequately defend the constitutionality of the state’s laws, and asked leave to intervene solely for the purpose of filing an appeal from any court order blocking its laws. The legislature argued that it had a strong interest in ensuring that the election was conducted in an orderly fashion and that this proposed injunction would disrupt that process.
The same day, Judge Conley issued an order granting in part and denying in part the emergency motion for a temporary restraining order and preliminary injunction. Noting the “near certainty” of increased barriers to in-person voting on April 7, Judge Conley ordered the extension of the deadline for electronic voter registration to March 30. He denied the remainder of the plaintiffs’ requests. 2020 WL 1320819. The court left open the question of whether the deadline for absentee ballots to be received could be extended, and invited the plaintiffs to present sufficient evidence to support that motion.
On March 22, the Republican National Committee and the Republican Party of Wisconsin filed a motion to intervene as defendants, arguing that the plaintiffs’ request would “confuse voters and undermine confidence in the election process.”
On March 26, in light of Governor Evers' "Stay-at-Home" order, the plaintiffs filed an amended complaint, declaring that Wisconsinites, now mandated to stay at home, would rely on absentee ballots more than ever. The next day, the plaintiffs filed a motion for preliminary injunction and reconsideration of the court's ruling on the aspects of the prayer for relief that had been denied in the court's March 20 order. The plaintiffs again requested that the court extend the March 18 deadline for by-mail registration and asked the court to suspend the witness requirement of the absentee ballot procedure, since many voters would be unable to obtain a witness while sheltering in place.
Multiple parties requested to intervene, and on March 28, Judge Conley granted the motion of the Republican National Committee and the Republican Party of Wisconsin to intervene, but denied the Wisconsin Legislature's motion to intervene. 2020 WL 1505640. Not to be dissuaded, the legislature immediately filed a motion for leave to file an amicus brief. Judge Conley, the same day, consolidated this case with two other cases, Gear v. Bostelmann (3:20-cv-00278) and Lewis v. Bostelmann (3:20-cv-00284), since all three cases concerned elections issues in light of the COVID-19 crisis.
On March 30, 2020, the defendants filed declarations and a brief in reply to the plaintiffs' motions.
By March 30, 2020, the following parties had requested to intervene or to submit amicus briefs in support of the plaintiffs: City of Milwaukee, Honest Elections Project, City of Green Bay, Disability Rights Wisconsin, ACLU of Wisconsin, Wisconsin Conservation Voices, and the City of Racine. On April 1, Judge Conley denied the Wisconsin State Legislature's renewed motion to intervene as a defendant, but granted it leave to file an amicus brief.
Judge Conley scheduled a videoconference on March 31, 2020, and held an evidentiary hearing on April 1, 2020.
On April 2, 2020, Judge Conley ordered that the deadline for receipt of absentee ballots be extended from 8:00 PM on election day to April 13, 2020 at 4:00 PM. He also ordered that the defendants be prevented from enforcing Wis. Stat. § 6.87(2) as to absentee voters who have provided a written affirmation or other statement that they were unable to safely obtain a witness certification despite reasonable efforts to do so, provided that the ballots are otherwise valid. The court subsequently made two minor amendments to the order. The Wisconsin State Legislature filed an emergency notice of appeal to the Seventh Circuit of the order denying intervention, docketed as 20-1539, and the preliminary injunction, docketed as 20-1545. The Republican National Committee also appealed the preliminary injunction order and the amended order, docketed as 20-1538 and 20-1546.
The next day, on April 3, the Seventh Circuit declined to stay the extension of the deadline for returning absentee ballots but stayed the portion of the order enjoining the defendants from enforcing Wis. Stat. § 6.87(2). 451 F.Supp.3d 952. In addition, they held that the district court erred in refusing to let the Wisconsin State Legislature intervene. After the appeal, the Wisconsin State Legislature filed a renewed motion to intervene, and the district court granted the motion.
The defendants then appealed to the Supreme Court of the United States seeking a stay of the modified absentee-ballot deadline. For a short time on April 6, it appeared that the Supreme Court’s involvement was unnecessary as Wisconsin Governor Tony Evers issued an executive order suspending the in-person voting scheduled for April 7 until June 9. However, the state's legislature asked the Wisconsin Supreme Court to overturn the order, and the Wisconsin Supreme Court blocked the Governor's order. Later that day, the Supreme Court granted the defendant's request in a 5-4 decision. The Supreme Court stayed the preliminary injunction "to the extent it requires the State to count absentee ballots postmarked after April 7, 2020." 140 S.Ct. 1205. The majority stressed that the “question before the Court is a narrow, technical question about the absentee ballot process” and that "lower federal courts should ordinarily not alter the election rules on the eve of an election.” In the dissent, Justice Ginsburg expressed concern that the stay would "result in massive disenfranchisement."
On April 16, 2020 the Wisconsin State Legislature filed a motion to dismiss based on mootness, since the April 7 Spring Election had passed. In response, the plaintiffs argued that their original and amended complaints clearly asked for injunctive relief both with respect to the April 7 election and for “any election that occurs while this crisis continues.” They proposed an amended complaint clarifying this matter on April 30. On May 18, the defendants filed a reply brief, claiming that any relief for the August and November elections should be dismissed as unripe.
On May 21, the plaintiffs from the consolidated case, Lewis v. Bostelmann (3:20-cv-00284), moved to voluntarily dismiss their claims, which had been rendered moot as they only sought injunctive relief regarding the April 7 election. The defendants then argued that the Lewis plaintiffs should not be awarded costs or attorney’s fees. The Seventh Circuit ordered the appeals be dismissed as moot on June 5. 2020 WL 3077047.
Back in the district court, the defendant's motion to dismiss was denied on June 9. 2020 WL 3077047.
On June 25, the WEC defendants submitted a status report detailing their COVID-19 related measures for the August and November Elections, including absentee ballot preparations, sanitation measures, increased funding for increased election costs due to the COVID-19 pandemic, a new Clerk Advisory Committee dedicated to Vote by Mail, testing, staff training, as well as voter and public health outreach.
The same day, the WEC defendants and the Gear plaintiffs met and conferred. On June 26, they jointly stipulated to a proposed amended complaint in which the plaintiffs sought additional relief that would permit certain voters to electronically access and download a mail-in absentee ballot, reducing the administrative burden on municipal clerks’ offices. They further agreed to abandon their respective positions with respect to the pending motion to dismiss the Gear Plaintiffs’ original Complaint.
On July 2, the Lewis plaintiffs sought to recover attorneys' fees and costs.
On July 8, the plaintiffs moved for a renewed preliminary injunction for the November General and Presidential Election. They noted that nearly 62 percent of Wisconsin’s electorate chose to vote by mail in the April 7 election and that the pandemic continues to worsen. The Wisconsin State Legislature opposed and sought to dismiss the complaints by the Gear and Swenson plaintiffs, arguing that unlike the April Election, Wisconsin voters had months to register to vote and to request an absentee ballot in advance of the November Election. On July 20, the Republican National Committee and the Republican Party of Wisconsin also joined in opposition of the preliminary injunction.
On September 21, the court granted the plaintiffs’ preliminary injunction and extended the mail-in ballot deadline, finding that: "(1) an unprecedented number of absentee ballots, which turned the predominance of in-person voting on its head in April, will again overwhelm the WEC and local officials despite their best efforts to prepare; (2) but for an extension of the deadlines for registering to vote electronically and for receipt of absentee ballots, tens of thousands of Wisconsin voters would have been disenfranchised in April; and (3) absent similar relief, will be again in November." 488 F. Supp. 3d. .
However, the court stayed the order for seven days to provide defendants the opportunity to seek an emergency appeal. Two days later, the defendants filed an interlocutory appeal with the Seventh Circuit. On September 29, the Seventh Circuit held that the Wisconsin State Legislature had no Article III standing to proceed, and denied the interlocutory appeal to stay the district court’s injunction. However, on October 2, in response to a request for reconsideration, the Seventh Circuit certified the question of whether, under Wis. Stat. § 803.09(2m), the Wisconsin State Legislature had the authority to represent the State of Wisconsin’s interest in the validity of state laws. The Wisconsin Supreme Court accepted the certification and replied that the Wisconsin State Legislature did indeed have this authority. Therefore, the Seventh Circuit granted the petition for reconsideration and addressed the Wisconsin State Legislature’s motion on the merits.
On October 8, the Seventh Circuit issued an order staying the injunction issued by the district court pending final disposition of appeals. 977 F.3d 639. The court held that, under Purcell v. Gonzalez, “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.” Judge Rovner dissented, arguing that by granting the stay, the court “adopt[ed] a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote.”
Several days later, the Seventh Circuit dismissed the Republican National Committee and Republican Party of Wisconsin’s appeals because they were not aggrieved by the district court’s judgment. The court noted these parties were free to present their arguments in defense of the state statutes as amici curiae in the Wisconsin State Legislature’s appeal.
Following final disposition of all appeals, the Seventh Circuit issued an order vacating the district court’s injunction on December 1 and remanded with instructions to determine whether a case or controversy continues with respect to any aspect of the case, otherwise the suits should be dismissed as moot.
Returning to the district court, Judge Conley allowed the remaining plaintiffs until January 29, 2021 to explain why the court should not dismiss their case. Plaintiffs filed stipulations of dismissal, and the court terminated the case pursuant to Federal Rule of Civil Procedure 41(a)(1).
The case is closed.
Summary Authors
Elizabeth Helpling (4/1/2020)
Averyn Lee (9/25/2020)
Zoe Goldstein (3/10/2022)
Swenson v. Bostelmann, Western District of Wisconsin (2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/16989159/parties/democratic-national-committee-v-bostelmann-marge/
Aguilera, Cecilia (District of Columbia)
Benkato, Jamila (Wisconsin)
Bach, Daniel P. (Wisconsin)
Baltes, Alexa R. (Virginia)
Brist, Steven Carl (Wisconsin)
Aguilera, Cecilia (District of Columbia)
Callais, Amanda R. (District of Columbia)
Cohen, Michelle Kanter (District of Columbia)
Curtis, Charles G. Jr. (Wisconsin)
Devaney, John M. (District of Columbia)
Elias, Marc Erik (District of Columbia)
Faraji, Farbod Kaycee (District of Columbia)
Farley, Jessica L. (Wisconsin)
Goodman, Rachel E.. (New York)
Homer, Rachel F (District of Columbia)
Kemp, Michelle Marie (Wisconsin)
Kistler, Cameron Oatman (District of Columbia)
Lewis, Brandon Michael (Wisconsin)
Mandell, Jeffrey A (Wisconsin)
Newkirk, Zachary (District of Columbia)
Pagels, Sarah E. Thomas (Wisconsin)
Rosenzweig, Stacey H. (Wisconsin)
Salawdeh, Rebecca L. (Wisconsin)
Schwartztol, Laurence M (Massachusetts)
Sherman, Jonathan Lee (District of Columbia)
Spiva, Bruce V. (District of Columbia)
Takakjian, Katherine (Wisconsin)
Brist, Steven Carl (Wisconsin)
Browne, Robert Edward Jr. (Illinois)
Fech-Baughman, Sarah (Wisconsin)
Fischer, William E. (Wisconsin)
Hebda, Katarzyna Anna (Georgia)
Jurss, Hannah Schieber (Wisconsin)
Keller, Scott Allen (District of Columbia)
Phillips, Andrew Thomas (Wisconsin)
Stephens, Adam Boyd (Wisconsin)
Strang, Dean Arthur (Wisconsin)
Strawbridge, Patrick (Massachusetts)
Thome, Matthew Jeffrey (Wisconsin)
See docket on RECAP: https://www.courtlistener.com/docket/16989159/democratic-national-committee-v-bostelmann-marge/
Last updated May 4, 2025, 2:51 a.m.
State / Territory: Wisconsin
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: March 18, 2020
Closing Date: Jan. 20, 2021
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Democratic National Convention and Democratic Party of Wisconsin
Attorney Organizations:
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Robert F. Spindell, Jr., State
Republican National Committee (Washington, District of Columbia), Political Party
Wisconsin State Legislature, State
Republican Party of Wisconsin, Political Party
Wisconsin Elections Commissioners, State
Defendant Type(s):
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Constitutional Clause(s):
Due Process: Procedural Due Process
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Defendant
Nature of Relief:
Preliminary injunction / Temp. restraining order
Source of Relief:
Content of Injunction:
Order Duration: 2020 - 2020
Issues
COVID-19:
Voting: