Hawkins v. Wis. Elections Comm'n

393 Wis.2d 629

948 N.W.2d 877

2020 WI 75

Howie HAWKINS and Angela Walker, Petitioners,

v.WISCONSIN ELECTIONS COMMISSION, Ann S. Jacobs, in her official capacity as Chair of the Wisconsin Elections Commission, Mark L. Thomsen, in his official capacity as Vice-Chair of the Wisconsin Elections Commission, Marge Bostelmann, in her official capacity as Secretary of the Wisconsin Elections Commission, Julie M. Glancey, in her official capacity as Commissioner of the Wisconsin Elections Commission, Dean Knudson, in his official capacity as Commissioner of the Wisconsin Elections Commission, Robert F. Spindell, Jr., in his official capacity as Commissioner of the Wisconsin Elections Commission and Allen Arntsen, Respondents.

No. 2020AP1488-OA

Supreme Court of Wisconsin.

FILED SEPTEMBER 14, 2020

The Court entered the following order on this date:

¶1 Petitioners, Howie Hawkins and Angela Walker, the Green Party's candidates for President and Vice President of the United States, have filed a petition for leave to commence an original action pursuant to Wis. Stat. § (Rule) 809.70 and a motion for temporary injunctive relief. They ask this court to order that their names be placed on Wisconsin's 2020 fall general election ballot. Responses have been received from respondent Allen Arntsen and from respondents Wisconsin Elections Commission (Commission), Ann Jacobs, Mark Thomsen, Marge Bostelmann, Julie Glancey, Dean Knudson, and Robert Spindell. Petitioners filed a letter replying to the responses, accompanied by a supplemental affidavit. The respondents filed a motion to strike the letter reply and supplemental affidavit. On September 10, 2020, this court issued an order directing the Commission to obtain certain information from the county clerks and municipal clerks of this state, including how many absentee ballots had already been mailed to electors. The September 10, 2020 order also directed the Commission to advise all municipal clerks in this state not to mail any additional absentee ballots pending further order of this court. The Commission filed a response to the order indicating that hundreds, if not thousands, of absentee ballots have already been mailed to electors.

¶2 The underlying facts of the case are as follows. On August 4, 2020, the petitioners filed nomination papers with the Commission to be placed on the ballot for the November 3, 2020 general election. On August 7, 2020, respondent Arntsen filed a verified complaint with the Commission alleging that 2046 of the signatures appearing on the petitioners’ nomination papers did not list a correct address for Walker. On August 20, 2020, the Commission voted 6-0 to sustain Arntsen's challenge to 57 signatures, and the Commission also voted 6-0 to reject Arntsen's challenge to 48 signatures. The Commission then deadlocked 3-3 on Arntsen's challenge to the validity of 1834 signatures. On August 21, 2020, the Administrator for the Commission sent the petitioners a letter stating that since the Commission had only certified a total of 1789 valid signatures, less than the 2000 required for ballot access under Wis. Stat. § 8.20(4) and (8), the petitioners’ names would not appear on Wisconsin's 2020 general election ballot.

¶3 On August 26, 2020, the Commission certified the list of independent candidates for President and Vice President who would appear on Wisconsin's 2020 fall general election ballot. The petitioners had opted to proceed as independent candidates, but their names did not appear on this certified list. On September 1, 2020, the Commission certified the remainder of the list of candidates for President and Vice President that would appear on that ballot. The petitioners’ names also did not appear on this certified list.

¶4 The petitioners filed their petition for leave to commence an original action and motion for temporary injunctive relief on September 3, 2020. In addition to urging this court to reject the petitioners’ arguments on the merits, both Arntsen and the Commission point out that the petitioners waited two weeks after the Commission's failure to certify at least 2000 valid signatures at its August 20, 2020 meeting before asking this court for relief. The respondents argue, among other things, that the petitioners unreasonably delayed in seeking relief and that this court should decline to assume jurisdiction due to laches.

¶5 Although we do not render any decision on whether the respondents have proven that the doctrine of laches applies under these circumstances, having considered all of the parties’ filings, we conclude that the petitioners delayed in seeking relief in a situation with very short deadlines and that under the circumstances, including the fact that the 2020 fall general election has essentially begun, it is too late to grant petitioners any form of relief that would be feasible and that would not cause confusion and undue damage to both the Wisconsin electors who want to vote and the other candidates in all of the various races on the general election ballot.¹ Accordingly, we exercise our discretion to deny the petition for leave to commence an original action.

¶6 As both the petitioners and the respondents note, each county clerk is required by statute to deliver ballots for the 2020 general election to all of the municipal clerks in his or her county 48 days before the general election, i.e. by September 16, 2020. See Wis. Stat. § 7.10(3). Municipal clerks are statutorily required to deliver absentee ballots to electors who have previously requested them no later than 47 days before the general election, i.e. by September 17, 2020. See Wis. Stat. § 7.15(1). Under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 52 U.S.C. §§ 20301 - 20311, municipalities must send ballots to all military and overseas voters who previously requested them no later than 45 days prior to the election, i.e. by September 19, 2020.

¶7 Because of the global COVID-19 pandemic, municipalities have more absentee ballot requests on file than ever before. Unofficial tallies for the August 2020 primary election indicate that over 80% of voters participated by mail, and both the Commission and local election officials are preparing for a volume of absentee voting for the general election at around the 80% level. There are already over 968,000 absentee ballot requests on file for the general election, and those ballots must be sent to voters by September 17, 2020. Creating and printing ballots is a lengthy and laborious process. Almost all Wisconsin counties use specialized private vendors to print their ballots, and only a small number of those vendors are available. In order to meet the September 17, 2020 deadline, counties have been working to distribute ballots to municipalities earlier than usual, and municipalities may begin sending ballots to voters as soon as they receive them from their counties.

¶8 Many ballots that do not contain the petitioners’ names have already been printed. Given the Commission's response to this court's September 10, 2020 order, the most likely state of current affairs is that municipal clerks have already sent out hundreds, and more likely thousands, of those absentee ballots.² Ordering new ballots to be printed would be an expensive and time-consuming process that would not allow counties and municipalities to meet the statutory deadlines for delivering and sending ballots. In addition, for this court to order the printing and mailing of replacement ballots containing the petitioners’ names would create a substantial possibility of confusion among voters who had already received, and possibly returned, the original ballots. For these reasons, we decline to grant the petition for leave to commence an original action or the motion for temporary injunctive relief, and we do not reach the merits of the issues raised in the petition.

¶9 This is not the first occasion on which we have declined to exercise our original jurisdiction due to the lack of sufficient time to complete our review and award any effective relief. In Jensen v. Wisconsin Elections Bd., 2002 WI 13, ¶¶17, 21, 249 Wis. 2d 706, 639 N.W.2d 537, we noted, "There is no question but that this matter warrants this court's original jurisdiction .... Had our jurisdiction been invoked earlier, the public interest might well have been served by our hearing and deciding this case. As it stands, it is not." We also noted in Jensen that this court's involvement would take time, "and there is precious little of that left." While the statutes acknowledge that a court could order the correction of a ballot error, see Wis. Stat. § 7.10(3)(a), in this case the court realistically does not have even a "precious little" amount of time to reach a decision and potentially grant any form of relief that would be feasible. See also De La Fuente v. Wisconsin Government Accountability Board, No. 2016AP330, unpublished order (Wis. Feb. 22, 2016) (denying petition for review and petition for leave to commence an original action.)

¶10 Even if we would ultimately determine that the petitioners’ claims are meritorious, given their delay in asserting their rights, we would be unable to provide meaningful relief without completely upsetting the election. We agree with the Commission that requiring municipalities to print and send a second round of ballots to voters who already received, and potentially already returned, their first ballot would result in confusion and disarray and would undermine confidence in the general election results. Under the circumstances presented here, it would be unfair both to Wisconsin voters and to the other candidates on the general election ballot to interfere in an election that, for all intents and purposes, has already begun. For these reasons, we determine that the best exercise of our discretion is to deny the petitioners’ petition for leave to commence an original action and motion for temporary injunctive relief.

¶11 IT...