World Events

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

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 next month’s general election requires a postmark by Nov. 3, but adds more time for those ballots to reach election officials.

The Supreme Court is now shorthanded due to 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 spokesman 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 that the state’s executive officials were 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 only allowed 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 well-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 due to the relatively unusual scenario that played out in the Wisconsin case.

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