GOP lawmakers, federal judges ask state Supreme Court to weigh in on ballot case

MADISON – A panel of federal judges changed course Friday and asked the Wisconsin Supreme Court to clarify one of its rulings as the federal judges decide how to handle absentee ballots this fall.   

The change in approach from the panel of the 7th Circuit Court of Appeals came just hours after Wisconsin Republicans made a request directly with the state Supreme Court to get involved in the case. 

Republicans hope to get the case in front of the state’s conservative-led high court after facing setbacks from the panel of three federal judges, all of whom were nominated by Republican presidents.

If the state’s high court gets involved, it will have to act quickly because of the fast-approaching Nov. 3 election.

The stakes are high because Wisconsin is a battleground. President Donald Trump narrowly won Wisconsin in 2016 but has trailed Democrat Joe Biden in recent polls in the state.

U.S. District Judge William Conley two weeks ago ruled municipal clerks can count absentee ballots they receive after Election Day as long as they are postmarked by then. Ordinarily, absentee ballots in Wisconsin can be counted only if they are in clerks’ hands by the time polls close. 

Conley made several other changes to Wisconsin’s election laws because of the coronavirus pandemic, including allowing poll workers to serve in any county. His ruling was in response to four lawsuits brought by Democrats, their allies and nonpartisan groups.  

Republicans appealed, but the panel from the 7th Circuit Court of Appeals unanimously concluded they didn’t have the authority to challenge Conley’s ruling. 

The panel determined Republicans couldn’t pursue their appeal because of a July ruling by the state Supreme Court.

Republicans asked the appeals panel to send the case to the state Supreme Court so it could weigh in directly on what its July ruling meant. The panel declined to do that Wednesday.

On Friday, the Republicans asked the state’s high court itself to issue an explanation of its July ruling. Hours later, the federal appeals panel reversed itself and made the same request of the state court. 

If the state Supreme Court gives Republicans a favorable ruling, they can use it before the federal appeals judges. After the setbacks from the panel of three judges, the Republicans have tried to get the case before the full 11-member federal court.

Republicans have maintained they have the ability to pursue their appeal and have said the federal judges misunderstand the state Supreme Court’s July ruling, which was issued in response to a challenge to lame-duck laws that limited the power of Democratic Gov. Tony Evers.

The appeals panel’s views on the July decision “will impose grievous harm upon our polity,” GOP attorney Misha Tseytlin wrote in Friday’s filing to the state Supreme Court.

“This Court can and should immediately avert that train wreck by simply saying what Wisconsin law plainly means: the Legislature has standing to speak on behalf of the State’s sovereign interest in the validity of state law and to litigate in defense of state law…,” he wrote. 

In Friday’s filing, Tseytlin wrote that GOP lawmakers would take the case to the U.S. Supreme Court if necessary.

That’s a costly proposition for taxpayers. Tseytlin is being paid $500 an hour. Two other law firms hired by Republicans are being paid by taxpayers, including one, Husch Blackwell, that includes lawyers who make as much as $820 an hour. 

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