Appeals court delivers second blow to Republicans in Wisconsin voting case

MADISON - Republicans sought Wednesday to kick a lawsuit over Wisconsin's voting laws to the state Supreme Court, but a federal appeals court quickly blocked their effort. 

It was the second ruling against Republicans in less than 24 hours by a panel of three federal judges appointed by GOP presidents. Republican state lawmakers had hoped to get the case to the state Supreme Court, where conservatives hold a 4-3 majority.

On Tuesday, a panel of the U.S. 7th Circuit Court of Appeals in Chicago allowed extended deadlines for absentee voting to go into effect in Wisconsin after determining Republican lawmakers and arms of the Republican Party did not have the authority to pursue an appeal of a ruling by U.S. District Judge William Conley. 

The appeals court based its decision in part on a state Supreme Court decision from July that it said limited the ability of lawmakers to be involved in litigation involving the state. 

Within hours, attorneys for GOP lawmakers said they disagreed with the meaning of the state Supreme Court ruling and asked the appeals court to allow the state justices to weigh in directly on what they meant. 

"With all respect, the Wisconsin Supreme Court would be surprised, to put it mildly, to learn of this misunderstanding of its careful, narrow decision," wrote attorney Misha Tseytlin.

But the appeals panel quickly rejected the request from Republicans to send the case to the state Supreme Court. The judges did not explain their reasoning. 

The appeals panel consists of Judges Frank Easterbrook, Ilana Rovner and Amy St. Eve. Easterbrook was nominated to the bench by President Ronald Reagan, Rovner by President George H.W. Bush and St. Eve by President Donald Trump.

Late Wednesday, Republicans asked the full appeals court to review the panel's earlier decision that found they couldn't appeal the case. The court of 11 active judges includes Amy Coney Barrett, Trump's pick to replace Ruth Bader Ginsburg on the U.S. Supreme Court. 

In an interview, state Republican Party Chairman Andrew Hitt acknowledged time is short and said he is concerned the clock could run out before Republicans have a chance to halt the ruling that says ballots can be counted if clerks receive them after Election Day. 

"I’m worried about the clock, I’m worried about voter confusion, I’m worried about us changing the rules at the last minute and, mostly, I’m worried about the fact that this creates potential litigation issues and ballot-challenge issues after Election Day," he said. 

If the court ruling holds and the election is close, Republicans and Democrats will fight over whether to count absentee ballots that are missing postmarks or have illegible postmarks, he said. 

The case is being watched nationally because of Wisconsin's battleground status. Trump narrowly won Wisconsin in 2016 but has trailed Democrat Joe Biden in recent polls in the state.

The court rulings come in response to legal challenges from the Democratic National Committee, groups allied with them and nonpartisan entities. They contend voting rules should be eased because of the coronavirus pandemic, and they praised the appellate decision that established later deadlines.

“All Wisconsin voters — regardless of their party or where they live — benefit from election procedures designed to be safe and effective during the ongoing challenges of voting during a pandemic. (Tuesday's) decision paves the way (for) a safer, more inclusive election in November,” said a statement from Farbod Faraji, an attorney with Protect Democracy who helped with the litigation.

Under Conley's ruling, municipal clerks can count absentee ballots they receive from Nov. 4  to Nov. 9 if they are postmarked on or before Election Day, Nov. 3. Ordinarily, absentee ballots in Wisconsin can be counted only if they are in clerks' hands by the time polls close. 

Conley also gave people an extra week to register to vote through the mail or through the state's myvote.wi.gov website. The new deadline is Oct. 21 instead of Oct. 14.

His ruling allowed poll workers to serve in any community, not just the ones in the county where they live. That will make it easier for election officials to staff polling sites, which has been difficult during the pandemic. 

In addition, his decision said voters could get replacement absentee ballots by email if the ones they request through the mail are not delivered on time. 

In its unanimous ruling Tuesday, the appeals panel found that Republicans didn't have the authority to appeal Conley's decision. The panel did not address the merits of Conley's ruling. 

The judges wrote that Wisconsin lawmakers can challenge matters that directly affect their interests, but not other matters.

Republican lawmakers two years ago gave themselves more power to oversee state litigation with a set of lame-duck laws that curbed the autonomy of Democratic Gov. Tony Evers and Democratic Attorney General Josh Kaul. 

Courts have upheld most of the lame-duck laws, but the state Supreme Court chipped away at parts of them in July.

The federal appeals panel on Tuesday concluded that the state Supreme Court ruling meant lawmakers couldn't pursue their appeal in the lawsuit over voting — a finding GOP lawmakers disputed in their filing Wednesday.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.