Case: Swenson v. Bostelmann

3:20-cv-00459 | U.S. District Court for the Western District of Wisconsin

Filed Date: May 18, 2020

Closed Date: Jan. 20, 2021

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Case Summary

COVID-19 Summary: In this case, private plaintiffs and nonprofit organizations sued on May 19, 2020 to require election officials in Wisconsin to expand access to absentee voting for the November general election in response to the pandemic. The judge granted a preliminary injunction motion on September 21, 2021, but stayed the injunction pending appeal. Those appeals resulted in the Seventh Circuit vacating the stay on October 8, relying on Purcell v. Gonzalez to hold that, in order to preven…

COVID-19 Summary: In this case, private plaintiffs and nonprofit organizations sued on May 19, 2020 to require election officials in Wisconsin to expand access to absentee voting for the November general election in response to the pandemic. The judge granted a preliminary injunction motion on September 21, 2021, but stayed the injunction pending appeal. Those appeals resulted in the Seventh Circuit vacating the stay on October 8, relying on Purcell v. Gonzalez to hold that, in order to prevent confusion given the nearness of the injunction to the election, the court should not to step in and alter Wisconsin's voting rules. The Supreme Court upheld the stay on appeal, and the case is closed.

This case is about whether barriers to voting caused by the COVID-19 public health crisis merited a court injunction to prevent mass disenfranchisement. On May 19, 2020, two private plaintiffs along with nonprofit organizations Black Leaders Organizing for Communities (BLOC) and Disability Rights Wisconsin (DRW) filed a complaint in the U.S. District Court for the Western District of Wisconsin against the six Commissioners of the Wisconsin Elections Commission (WEC) and Megan Wolfe, the WEC Administrator. Represented by private counsel as well as attorneys from the Protect Democracy Project and the MacArthur Justice Center, the plaintiffs alleged that the Wisconsin state primary election held on April 7, 2020, during one of the most acute periods of the COVID-19 pandemic, disenfranchised Wisconsin voters on a massive scale. Specifically, the complaint alleged that by holding elections in which certain populations had to choose between exercising their right to vote and protecting their health, the defendants violated Section 11(b) of the Voting Rights Act, the First and Fourteenth Amendments, the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment—both substantive and procedural—and the Americans with Disabilities Act. The plaintiffs sought declaratory relief, injunctive relief to require the WEC to take affirmative measures in the then-forthcoming elections, injunctive relief preventing the enforcement of certain state statutes, and attorneys’ fees.

The case was assigned to District Judge William M. Conley and related to cases Democratic National Committee v. Bostelmann (consolidated with Gear v. Bostelmann (3:20-cv-00278) and Lewis v. Bostelmann (3:20-cv-00284) and Edwards v. Vos.

On June 8, 2020, the Republican National Committee, the Republican Party of Wisconsin, and the Wisconsin Legislature (in a separate motion) moved to intervene as defendants in the case, arguing they had interests at stake in the litigation and that the existing defendants would not adequately represent the proposed defendants’ interests. The plaintiffs opposed the RNC and Republican Party’s motion but did not oppose the Legislature’s. On June 23, 2020, Judge Conley granted both motions to intervene. He held that the Legislature had the right to intervene and allowed the RNC and Republican Party to intervene under permissive intervention because, among other reasons, they were already defendants in the above related cases.

Also on June 23, 2020, the plaintiffs amended their complaint, making minor changes to their factual allegations and removing their claim for relief under substantive due process. The next day, June 24, the plaintiffs moved for a preliminary injunction, arguing that they were likely to prevail on the merits of their claims and without a preliminary injunction they would suffer irreparable harm because the same disenfranchisement alleged to have occurred in the April 7 elections would happen again in the August and November elections. They further argued that the balance of hardships favored an injunction because without judicial intervention the election would be undermined, and the measures proposed would merely create an administrative burden of implementation for the state. The plaintiffs asked the court to prevent the enforcement of Wisconsin statutes pertaining to absentee voting and order the state to take measures to make in-person voting safe while ensuring the accessibility of absentee voting to all Wisconsin voters.

On July 8, 2020, the plaintiffs of all the related cases, some of which were filed prior to the April 7 election, jointly moved for a renewed preliminary injunction for the November general 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. On July 20, 2020, the defendants opposed the motion, and the Wisconsin State Legislature sought to dismiss the Swenson plaintiffs’ complaints. They argued 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 September 21, 2020, 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.

The court did, however, stay the order for seven days to provide defendants the opportunity to seek an emergency appeal. The defendants filed an interlocutory appeal with the Seventh Circuit two days later, on September 23. On September 29, the Seventh Circuit held that the intervening defendants had no Article III standing to proceed, and denied the interlocutory appeal to stay the district court’s injunction. 976 F.3d 764. However, on October 2, in response to a request for reconsideration, the Seventh Circuit certified to the Supreme Court of Wisconsin 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 court accepted the certification and responded that the Wisconsin State Legislature did indeed have this authority. 949 N.W.2d 423. Thereafter, 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.”

On October 13, the plaintiffs applied to the Supreme Court of the United States to vacate the Seventh Circuit’s stay of the injunction. In an October 26 plurality decision, the Court held merely that the application to vacate the stay was denied. Chief Justice Roberts wrote a concurrence that agreed with the Seventh Circuit that the injunction was untimely given the nearness of the election. Justice Gorsuch, joined by Justice Kavanaugh, wrote a concurrence that argued the District Court’s original injunction was an inappropriate substitution of the court’s judgment for the Wisconsin Legislature’s as to how much protection from COVID-19 was sufficient to protect the voting rights of its citizens. In his own concurrence, Justice Kavanaugh added to the other Justices’ points above that he believed the normal deadline didn’t disenfranchise voters at all in the first place. In dissent, joined by Justices Sotomayor and Breyer, Justice Kagan pointed to the realities that COVID-19 was worse than it was in April, and would likely overwhelm election workers worse in November than it did then, to conclude that disenfranchisement would take place without the injunction. 141 S.Ct. 28.

Following final disposition of all appeals, the Seventh Circuit issued an order on December 18, 2020 vacating the district court’s injunction 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 on December 23, 2020, and the court terminated the case pursuant to Federal Rule of Civil Procedure 41(a)(1).

	Document
3:20-cv-00459	Docket [PACER]	Jan. 20, 2021	Jan. 20, 2021 Docket
1 3:20-cv-00459	Complaint and Prayer for Declaratory and Injunctive Relief	May 18, 2020	May 18, 2020 Complaint
19 3:20-cv-00459	MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE AS DEFENDANTS BY THE REPUBLICAN NATIONAL COMMITTEE AND REPUBLICAN PARTY OF WISCONSIN	June 8, 2020	June 8, 2020 Internal memorandum
38 3:20-cv-00459	Opinion and Order	June 23, 2020	June 23, 2020 Order/Opinion
37 3:20-cv-00459	First Amended Complaint and Prayer for Declaratory and Injunctive Relief	June 23, 2020	June 23, 2020 Complaint
40 3:20-cv-00459	PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION	June 24, 2020	June 24, 2020 Pleading / Motion / Brief
41 3:20-cv-00459	Brief in Support of Plaintiff's Motion for a Preliminary Injunction	June 24, 2020	June 24, 2020 Pleading / Motion / Brief
169 20-cv-00278	PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION	July 8, 2020	July 8, 2020 Pleading / Motion / Brief
52 3:20-cv-00459	MOTION OF PLAINTIFFS DEMOCRATIC NATIONAL COMMITTEE AND DEMOCRATIC PARTY OF WISCONSIN FOR RENEWED PRELIMINARY INJUNCTION	July 8, 2020	July 8, 2020 Pleading / Motion / Brief
539 3:20-cv-00459 0:20-00249 20-cv-00278 3:20-cv-00340	Preliminary Injunction Order	Sept. 21, 2020	Sept. 21, 2020 Order/Opinion

Title	Description		External URL Date / External URL
Swenson v. Bostelmann COVID-Related Election Litigation Tracker	Action by group of citizens alleging denial of right to vote in 4/7/20 Wisconsin Presidential Primary and Spring Election. Complaint seeks damages and injunctive and declaratory relief to establish r…	Dec. 20, 2020	Dec. 20, 2020 https://healthyelections-case-tracker.stanford.edu/...
Democratic National Committee v. Bostelmann SCOTUS Blog	Whether the coronavirus pandemic requires a number of changes to Wisconsin's election procedures, such as extending the deadline to return absentee ballots, permitting electronic delivery of those ba…	Oct. 26, 2020	Oct. 26, 2020 https://www.scotusblog.com/...
Swenson v. Bostelmann Moritz College of Law	Plaintiffs are suing to obtain an order requiring Defendants to administer impending elections in a manner that will not, as Plaintiffs contend the state did in April, violate eligible voters’ federa…	Aug. 3, 2020	Aug. 3, 2020 https://law.osu.edu/...

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT AND PRAYER FOR DECLARATORY AND INJUNCTIVE RELIEF against Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. ( Filing fee $ 400 receipt number 0758-2679400.), filed by Maria Nelson, Melody McCurtis, Black Leaders Organizing for Communities, Jill Swenson, Disability Rights Wisconsin. (Attachments: # 1 JS-44 Civil Cover Sheet, # 2 Summons Bostelmann, # 3 Summons Glancey, # 4 Summons Jacobs, # 5 Summons Knudson, # 6 Summons Spindell, # 7 Summons Thomsen, # 8 Summons Wolfe) (Godesky, Leah) (Entered: 05/18/2020) 1 JS-44 Civil Cover Sheet View on PACER 2 Summons Bostelmann View on PACER 3 Summons Glancey View on PACER 4 Summons Jacobs View on PACER 5 Summons Knudson View on PACER 6 Summons Spindell View on PACER 7 Summons Thomsen View on PACER 8 Summons Wolfe View on PACER	May 18, 2020	May 18, 2020 Clearinghouse
2	Notice of Appearance filed by Jeffrey Adam Mandell for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Mandell, Jeffrey) (Entered: 05/18/2020)	May 18, 2020	May 18, 2020 PACER
3	Notice of Appearance filed by Douglas Maynard Poland for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Poland, Douglas) (Entered: 05/18/2020)	May 18, 2020	May 18, 2020 PACER
	Standard Attachments Sent	May 19, 2020	May 19, 2020 PACER
	Add Judge for Shell Case Opening	May 19, 2020	May 19, 2020 PACER
	Case non-randomly assigned to District Judge William M. Conley and Magistrate Judge Stephen L. Crocker. See related cases 20-cv-249-wmc, 20-cv-278-wmc, 20-cv-284-wmc, and 20-cv-340-wmc. (kwf)	May 19, 2020	May 19, 2020 PACER
	Standard attachments for District Judge William M. Conley required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement. (kwf)	May 19, 2020	May 19, 2020 PACER
4	Acknowledgment of Service Executed as to 1 Complaint,, Admission of Service by Defendants filed by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Mandell, Jeffrey) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
5	Notice of Appearance filed by Laurence Michael Schwartztol for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Schwartztol, Laurence) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
6	Notice of Appearance filed by Cameron Oatman Kistler for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Kistler, Cameron) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
7	Notice of Appearance filed by Rachel Goodman for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Goodman, Rachel) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
8	Summons Issued as to Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (kwf) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
9	Notice of Appearance filed by Farbod Kaycee Faraji for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Faraji, Farbod) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
10	Notice of Appearance filed by Dixon R. Gahnz for Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (Gahnz, Dixon) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
11	Notice of Appearance filed by Daniel P. Bach for Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (Bach, Daniel) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
12	Notice of Appearance filed by Daniel Spector Lenz for Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (Lenz, Daniel) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
13	Notice of Appearance filed by Terrence M. Polich for Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (Polich, Terrence) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
14	Notice of Appearance filed by Jonathan Matthew Manes for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Manes, Jonathan) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
15	Corporate Disclosure Statement by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin. (Faraji, Farbod) (Entered: 05/19/2020)	May 19, 2020	May 19, 2020 PACER
16	Notice of Appearance filed by Jamila Benkato for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Benkato, Jamila) (Entered: 05/27/2020)	May 27, 2020	May 27, 2020 PACER
17	Notice of Appearance filed by Patrick Strawbridge for Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Strawbridge, Patrick) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 PACER
18	Motion to Intervene by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. Response due 6/15/2020. (Strawbridge, Patrick) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
19	Brief in Support of 18 Motion to Intervene by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin (Strawbridge, Patrick) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 Clearinghouse
20	Proposed ANSWER by Intervenor Defendants Republican National Committee, Republican Party Of Wisconsin. (Strawbridge, Patrick) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
21	ANSWER by Defendants Marge Bostelmann, Julie M. Glancey, Anne S. Jacobs, Dean Knudson, Robert F. Spindell, Jr., Mark L. Thomsen, Meagan Wolfe. (Lenz, Daniel) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 PACER
22	Notice of Appearance filed by Misha Tseytlin for Intervenor Defendant The Wisconsin Legislature. (Tseytlin, Misha) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 PACER
23	Notice of Appearance filed by Kevin Michael LeRoy for Intervenor Defendant The Wisconsin Legislature. (LeRoy, Kevin) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 PACER
24	Notice of Appearance filed by Sean Dutton for Intervenor Defendant The Wisconsin Legislature. (Dutton, Sean) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 PACER
25	Unopposed Motion to Intervene by Intervenor Defendant The Wisconsin Legislature. (Tseytlin, Misha) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
26	Brief in Support of 25 Motion to Intervene by Intervenor Defendant The Wisconsin Legislature (Tseytlin, Misha) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
27	Proposed MOTION TO DISMISS by Intervenor Defendant The Wisconsin Legislature. (Tseytlin, Misha) Modified on 6/10/2020. (kwf) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
28	Proposed Brief in Support of 27 Motion to Dismiss by Intervenor Defendant The Wisconsin Legislature (Tseytlin, Misha) (Entered: 06/08/2020)	June 8, 2020	June 8, 2020 RECAP
29	Notice of Appearance filed by Leah Godesky for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Godesky, Leah) (Entered: 06/09/2020)	June 9, 2020	June 9, 2020 PACER
30	Notice of Appearance filed by Anton Metlitsky for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Metlitsky, Anton) (Entered: 06/09/2020)	June 9, 2020	June 9, 2020 PACER
31	Notice of Appearance filed by Molly Manning Lens for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Lens, Molly) (Entered: 06/09/2020)	June 9, 2020	June 9, 2020 PACER
32	Notice of Appearance filed by Jason Zarrow for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Zarrow, Jason) (Entered: 06/09/2020)	June 9, 2020	June 9, 2020 PACER
33	Notice of Appearance filed by Yaira Dubin for Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson. (Dubin, Yaira) (Entered: 06/09/2020)	June 9, 2020	June 9, 2020 PACER
	Notice to Counsel: Disregard the briefing deadlines set for 27 Proposed MOTION TO DISMISS by Intervenor Defendant The Wisconsin Legislature. (kwf/nks)	June 10, 2020	June 10, 2020 PACER
	Notice to Counsel	June 10, 2020	June 10, 2020 PACER
34	Brief in Opposition by Plaintiffs Black Leaders Organizing for Communities, Disability Rights Wisconsin, Melody McCurtis, Maria Nelson, Jill Swenson re: 18 Motion to Intervene filed by Republican National Committee, Republican Party Of Wisconsin (Attachments: # 1 Declaration of Rachel E. Goodman in Support of Plaintiffs' Opposition, # 2 Exhibit Ex. A to Declaration of Rachel E. Goodman) (Benkato, Jamila) (Entered: 06/15/2020)	June 15, 2020	June 15, 2020 PACER

Case: Swenson v. Bostelmann

3:20-cv-00459 | U.S. District Court for the Western District of Wisconsin

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