MADISON – The Wisconsin Supreme Court kept the Green Party’s presidential ticket off the ballot Monday, disappointing party members but ensuring more than a million absentee ballots will be sent to voters Thursday as required by state law.
The ruling also bolsters hopes for Democrats, who feared presidential nominee Joe Biden could lose a small share of his votes to the liberal third party. Republicans had hoped the Green Party would shave just enough votes from Biden’s total to give President Donald Trump a victory this fall in a state he narrowly won in 2016.
Justice Brian Hagedorn broke with his fellow conservatives to form a majority with the court’s liberals that kept Green Party nominee Howie Hawkins off the ballot.
The majority found Hawkins and his running mate, Milwaukee native Angela Walker, waited too long to bring their legal challenge.
“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,” the majority wrote in its unsigned opinion.
The state Elections Commission split 3-3 last month on whether to put Hawkins and Walker on the ballot. The Republican members of the commission backed putting Hawkins on the ballot but the Democratic members opposed doing so because Walker had listed two addresses on her campaign paperwork.
Walker said she listed two addresses because she moved while the Green Party collected signatures to get on the ballot. She and Hawkins this month asked the Supreme Court to put them on the ballot, contending the state Elections Commission hadn’t followed the law.
“We were screwed,” Hawkins said in a statement. “Partisan hacks should not be running elections for their own parties.”
The justices on Thursday issued a 4-3 order telling election officials not to send absentee ballots while they decided whether to take the case.
That order was issued by conservatives who control the court. The court’s liberals dissented.
But in a second 4-3 decision, the court on Monday vacated its earlier order and determined ballots could be mailed now. This time, the majority consisted of Hagedorn and the court’s liberals, Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
In dissent were three conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler. (The Bradleys are not related.)
Roggensack called the Elections Commission “lawless” for keeping Hawkins and Walker off the ballot.
“This lawsuit is not about the Green Party sleeping on its rights,” she wrote in an opinion joined by the other dissenters. “It is about the treatment that independent candidates from a small political party received from the Commission, who repeatedly refused to follow the law relative to nomination papers.”
In a separate dissent, Ziegler wrote that keeping a worthy candidate off the ballot is “the ultimate voter suppression.”
The majority “deprives the Wisconsin people of a voice and strips them of one of the most fundamental tenets of this republic: the right to express one’s will at the ballot box,” Ziegler wrote.
The majority decided not to take the case because of looming deadlines. Clerks are required under state law to mail absentee ballots to those who have requested them by Thursday. A separate federal law sets a Saturday deadline for mailing absentee ballots to military and overseas voters.
The majority concluded some ballots may have already been sent, and found that confusion would reign if clerks had to send those voters a second ballot with the names of additional candidates.
The Milwaukee Journal Sentinel on Friday identified clerks across the state who together had prepared hundreds of thousands of absentee mailings. But none of the clerks reached by the newspaper said they had actually mailed any ballots yet.
Clerks will mail more than a million absentee ballots on Thursday and then send others as they receive requests from voters. Absentee voting this fall is expected to set a record because of the coronavirus pandemic.
Claire Woodall-Vogg, executive director of the Milwaukee Election Commission, expressed relief Monday that she would not have to reprint ballots.
“I’m just glad that they made a decision today and recognized the expediency that election administrators and voters need, that they didn’t delay any further,” she said.
The case had significant implications for this fall’s presidential race. Both Republicans and Democrats believe Hawkins could have siphoned off some of Biden’s support, hurting his chances of beating Trump in Wisconsin.
Trump beat Democrat Hillary Clinton in 2016 by fewer than 23,000 votes in Wisconsin. That year Green Party nominee Jill Stein received about 31,000 votes in the state.
Hawkins’ legal team has links to Republicans. One of his aides asked Robert Spindell, a Republican on the Elections Commission, for advice last month on who to hire as an attorney, according to emails between Spindell and Hawkins aide Kevin Zeese.
Hawkins’ lead attorney, Andrew Phillips of von Briesen & Roper, was hired last year by Republicans on the Legislature’s budget committee to help them sort out a long-running dispute with Democratic Attorney General Josh Kaul over how to handle court settlements.
Another attorney on the case, Jacob Curtis, has worked for Republican former Gov. Scott Walker, Republican state Sen. Duey Stroebel of Saukville and the conservative Wisconsin Institute for Law & Liberty.
Phillips also represents the Wisconsin Counties Association, and most counties didn’t want the Green Party ticket added to the ballot because they didn’t want to reprint ballots. Some supervisors in Milwaukee and Dane counties raised the prospect of quitting the association because its lawyers were working against their interests.
The court issued its ruling as rapper Kanye West also tries to get on Wisconsin’s ballot. West, who has praised Trump and gotten help from Republicans, was kept off the ballot after the state Elections Commission ruled 5-1 that his team missed a filing deadline by seconds or minutes.
West sued to get on the ballot, but a Brown County judge on Friday ruled he shouldn’t be on Wisconsin’s ballot because of the late filing.
He could appeal, but Monday’s ruling in the Green Party case suggests he would have little chance of getting on the ballot at this stage.
Hagedorn offers a swing vote
Hagedorn was elected in 2019 with the support of Republicans, but he has departed from his conservative colleagues at times.
In January, he sided with liberals on the court to decline quickly taking a lawsuit over whether people who are believed to have moved should be taken off the voter rolls. That initial decision means those voters are likely to stay on the rolls at least through the Nov. 3 election.
In May, Hagedorn, joined liberals in dissent over a ruling that struck down the stay-at-home order issued by Democratic Gov. Tony Evers’ administration to combat the pandemic.
Since then, the stakes have become higher for cases involving close votes. Karofsky last month was sworn in as a justice after defeating conservative Justice Daniel Kelly this spring.
Her victory narrowed the court’s conservative majority from 5-2 to 4-3. That means liberals can form a majority when they can pick off at least one conservative vote, as they did Monday.
Alison Dirr of the Journal Sentinel staff contributed to this report.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.