Voting Rights—State-Created Liberty Faces Eternal Suspicion

Commentary

Introduction

Madison, Wisconsin — If you love your liberty to vote, you can thank your state Constitution.

In state constitutions, you will find affirmative declarations of foundational liberty to cast votes.

Wisconsin law, banter from state agencies and private partisans, all eventually answer to the Wisconsin Constitution when voting liberty is imperiled or chilled.

The United States Constitution has no express right to vote, and what little the U.S. Constitution says about voting rights, beyond amendments, leaves this liberty to states.

Thus, the liberty to vote is explicit and affirmative in state constitutions.

State-created voting liberty in the U.S. Constitution does enjoy protection from incursion by force of several amendments and liberties—First Amendment liberties, equal protection, Due Process, race, color, sex, poll tax, age, for example.

Voting and Prediction Market Betting in States

As Wisconsin campaigns continue into the November midterm elections, an odd social-media, anti-voting, anti-betting crusade waged by Wisconsin Elections Commission member Ann Jacobs, and threats made to the public by the Wisconsin Elections Commission (WEC) in June in official communications work to suppress voting liberty.

This voter suppression is accomplished by falsely claiming and warning that betting in prediction markets wagered from any state runs afoul of Wisconsin statute that forbids betting on elections in which a voter casts a ballot within Wisconsin borders. 

A July 21 declaration of sorts by the Wisconsin Elections Commission opines legal and regulatory clarity, free of all ambiguity, in asserting that predication-market betting on elections in which a voter also casts his ballot is illegal under Wisconsin's 1849 anti-betting statute; and secondly runs afoul of Wisconsin Statute § 12.13(1)(a) that makes it a Class I felony to intentionally vote in an election without being qualified to vote. 

The Wisconsin Elections Commission memo and press release are warnings, purposefully inducing fright into Wisconsin residents, falsely claiming both the state-foundational liberty to cast votes and the liberty not to become felonious slaves of the state, felons, are imperiled by legal conduct outside of Wisconsin, as the Elections Commission claims.

At issue are two Wisconsin statutes, presented and fused together by the Elections Commission.

Wisconsin Statute § 6.03(2) explicitly disqualifies electors from voting "in any election in which the person has made or become interested, directly or indirectly, in any bet or wager depending upon the result of the election."
Wisconsin Statute § 12.13(1)(a) makes it a Class I felony to intentionally vote in an election without being qualified to do so.

The Wisconsin Elections Commission is not a law enforcement agency, such as the Wisconsin Dept of Justice, and Wisconsin's county district attorneys.

Problems complicate the Elections Commission novel theory on voting and out-of-state betting, and the legal terrain vis prediction betting and voting that is ambiguous and volatile, the exact opposite of what the Wisconsin Elections Commission claims.

The Wisconsin Attorney General has not issued an opinion on out-of-state betting, likely because horizontal federalism among states is a fundamental tenet and Wisconsin Attorney General Joshua Kaul is looking for some clarity in a critical area in which no clarity exists.

Attorney General has not put forward any guidance regarding the WEC’s statement, though his office has been requested to do so by constituents and the state legislature.

Democratic Party officials can be counted on to take anti-betting political positions, to the point of telling voters what are 'correct' considerations made by voters in their exercise of their franchise.

State Jurisdiction 

Wisconsin statutes as with any state law apply to acts committed within Wisconsin jurisdiction, within Wisconsin boundaries.

Acts such as betting that are illegal in one state X, Wisconsin; committed legally within a different state Y, Nevada, have no bearing into state X. The taint of legal activity, legal conduct, in one state does not clash with the laws and sovereign police power of another state in which this conduct is illegal. Update: This is regarded as an unsettled constitutional question by some.

Elections Commissioner member and anti-betting crusader Ann Jacobs has taken a novel position on state jurisdiction, asserting, "What you cannot do is bet there [in other states] and vote here," (X.con).

Jacobs is saying, Wisconsin law follows a Wisconsin voter betting in prediction markets in Las Vegas for example, and then follows a voter back into Wisconsin when a Wisconsin resident casts a vote on the election on which he bets. 

Ann Jacobs is substituting her opinions on how and why Wisconsin citizens should exercise their voting state-liberty, asserting citizens ought not vote for their chosen candidates for the 'wrong reasons,' and for 'bad' reasons, (SpectrumNews).

"We don’t allow bribes for the same reason we want people to vote for the right reasons, not the wrong ones," Jacobs said. "If you’re voting because you think you’re going to make money instead of for who should be the best candidate, that’s bad," (SpectrumNews). 

Voter is in violation of Wisconsin law for legal conduct in Nevada, Wisconsin Elections Commission claims. 

Put another way, Jacobs believes a Wisconsin voter carries a taint of legal conduct back to Wisconsin whereupon it becomes illegal upon exercising a state foundational liberty to cast a vote.

Jacobs and the Wisconsin Elections Commission fail to address basic state co-equal, horizontal sovereign, jurisdictional principles.  

Are not Wisconsin voters who are acting legally in other states by betting in prediction markets beyond the reach of Wisconsin law and police power, and contemplated criminal prosecution? 

The answer is, yes, and Jacobs and the WEC do not acknowledge that betting in other states is activity beyond Wisconsin's territorial jurisdiction, again under horizontal-state sovereignty, horizontal federalism.

Wisconsin DoJ Seeks Judicial Clarity

The Wisconsin DoJ filed a lawsuit against several prediction markets in April 2026 in state court. (In linked press release, complaints' text is linked at bottom of press release.)

DoJ seeks judicial declaration that "Kalshi, Robinhood, Coinbase, Polymarket, Crypto.com, and their affiliates, to halt their alleged facilitation of illegal sports betting, a form of unlawful commercial gambling, in Wisconsin."

Horizontal state sovereignty is recognized in the Wisconsin DoJ April 2026 lawsuit against several prediction-betting platforms.

Federal Preemption and Prediction Markets
 
Wisconsin has had an anti-betting statute since 1849, shortly after Wisconsin's1848 inception as a state.

Kalshi and other betting platforms are regulated by the U.S. Commodity Futures Trading Commission (CFTC). Traders enter into binary-event contracts, (yes-or-no prediction contracts on real-world future outcomes).

People betting on Kalshi are traders executing financial derivatives, event contracts, on a federally regulated exchange.

The CFTC argues that under the Commodity Exchange Act (CEA), CEA holds exclusive jurisdiction over event contracts traded on designated contract markets, thereby occupying the field and blocking state gambling enforcement like Wisconsin's.

But to what extent ought this vertical-federalism, federal-state, block clear state prerogatives?

Federal circuit and district courts are deeply divided. Some rulings (such as the Third Circuit in Kalshiex LLC v. Flaherty, No. 25-1922) have backed field preemption for federally regulated event contracts, while other federal judges have denied injunctions and ruled that federal law does not stop states from enforcing anti-gambling statutes.

The certainty with which the Elections Commission represents the law on prediction markets is misleading and under the circumstances, is absurd.

Howard Schweber on Federal Preemption and States' Power

Notes Howard Schweber, UW-Madison Law and Political Science lecturer, (emeritus):

"Polymarket, et al are arguing that they should be immune from the application of all of these laws as well as all other state laws regulating gambling as applied to them, as a matter of federal preemption."

"Federal preemption occurs when there is a conflict between federal and state laws; in that situation the federal law trumps and the state law is invalid. This can happen in a situation of direct conflict (something is legal under state law but illegal under federal law). It can also happen when the federal system of regulation is found to 'occupy the field' (known as 'field preemption') so that any regulation by states would be in conflict with the federal scheme." 

UW-Madison's Howard Schweber notes a complex, unresolved legal landscape in an email exchange, posted below:

There are two federal statutes that are potentially involved, [in this controversy of federal regulation conflicting with, and preempting state anti-gambling statues.]

The Unlawful Internet Gaming Act (UIEGA) makes it unlawful to engage in 'unlawful Internet gambling,' which means 'to place, receive or otherwise knowingly transmit a bet or wager by any means which involves the use ... of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.' 31 U.S.C. § 5362(10)(A). 
Note the 'where the bet or wager is unlawful' language. The statute specifically says that it does not preempt state law: 'the UIEGA at 31 U.S.C. 5362 (10)(D)(2) 'Rule of construction regarding preemption.--Nothing in this subchapter may be construed to preempt any State law prohibiting gambling.' 
An explicit disavowal of any preemptive effect of a federal law leaves the states entirely free to enact their own regulations of these markets as a form of gambling, and states have longstanding and well establish authority to define conditions on eligibility for voting. So Wisconsin steps in and says yes, under our gambling laws placing a bet on the outcome of an election is unlawful, and prediction markets' operations fit that description of gambling for state law purposes. And as far as the UIGEA is concerned, Wisconsin is absolutely free to do that.
But there is another federal statute, the Commodity Exchange Act,  that regulates futures trading (stock futures, derivatives, etc.) This law says that regulation of those kinds of investments is exclusively the province of an agency called the Commodity Futures Exchange Commission. That law has been held to preempt state regulation of such markets. So no, a state cannot declare that all investments in derivatives are a form of gambling and prosecute everyone involved nor even create restrictions on derivative investments taking place within their state boundaries because the regulation of those investments are preempted by federal law.
How do these two laws interact? The UIGEA explicitly excludes from its coverage any transactions "conducted on or subject to the rules of a registered entity or exempt board of trade under the Commodity Exchange Act” or “any other transaction that is excluded or exempt from regulation under the Commodity Exchange Act.” Id. §§ 5362(1)(E)(i), (iv)(I). So if prediction market bets are actually futures investments rather than wagers—i.e., if they are covered under the CEA rather than UIGEA—then state laws are preempted. 
Kalshi and Polymarket are registered with the CFEC based on their self-certification that their business does not involve gambling. In California, a district court judge has ruled that so long as the CFEC accepts their registration, this means that they are not subject to the UIGEA for federal law purposes.  (That ruling is currently on appeal to the 9th Circuit; at oral argument the panel of judges apparently expressed skepticism about the judge's ruling.) In April the Third Circuit — without ever mentioning the UIEGA at all — likewise held that prediction market trading falls under the category of futures contracts, so the only relevant federal statute is the Commodities Futures Act. 
As I mentioned, that federal law preempts all state regulation per se, including-but-not-limited-to anti-gambling laws. So if these rulings stand up at the Supreme Court then the federal law regulating futures contracts is the one that applies to prediction markets and states may not regulate them.
That would mean that states do not have the authority to regulate those markets because of preemption, including treating participation in prediction markets as a form of gambling.
On the other hand, these are just agency rules and agency certifications. The CFEC would have the authority to rule at any time that these markets are not proper participants in the system of futures trading by a simple administrative ruling, in which case the UIGEA kicks in and so do state laws against gambling. The issues involved here are not constitutional, they are about interpreting statutes and decisions by agencies. Kalshi is trying to argue that they have a right to be classified as futures traders by an administrative agency; it is a sign of how weird our constitutional politics have become that Kalshi et al are essentially gambling — er, "predicting" — that the Executive Branch will always be controlled by a President friendly to their interests who will appoint members to the CFEC who will continue to protect them as a form of futures investment market. 
Because if there is ever a Democratic administration in control of the CFEC or a Democratic Congress interested in revisiting the classification of prediction markets under the two federal statutes then Kalshi's case evaporates. Which is what makes their heated rhetoric of 'unconstitutional' and 'crazy' remarkable for its apparent lack of any connection to the legal issues that are being asserted.
32 states have laws against gambling on elections. The prediction markets want to render all of those laws ineffective, a sweeping rejection of state autonomy under the wild theory that a law that prevents states from regulating investments in futures contracts effectively ends states' ability to regulate gambling wholesale. (The Third Circuit noted this possibility in a footnote but declined to address it.)
BUT that's still not the end of the story.  
Even if Wisconsin and the other 31 states cannot prosecute or otherwise regulate betting on elections on prediction markets, that does not mean that the states lose their constitutional authority to define the qualifications for voting in federal elections (Article I, section 2 of the US Constitution) including what acts, if shown, would disqualify someone.  
A ruling that says otherwise would mean, for example, that states could not decide whether felons or those who commit particular felonies may have their eligibility for voting taken away. I have no idea how that logic is supposed to work. 
To summarize, Kalshi et al are making the extraordinary argument that:
     IF the Supreme Court accepts that predictions markets are futures markets rather than gambling so that the UIGEA does not apply,
    and IF the Supreme Court (following the Third Circuit) says that states are therefore precluded from applying their gambling laws to the placement of bets with prediction markets on the outcome of sporting events,
    THEN it will also follow that states are preempted from applying their gambling laws to the placement of bets with prediction markets on the outcome of elections, and
    THEN exercising their authority under Article I, section 2 of the Constitution to define the qualifications for voting.
That is a wild theory. It implies that federal statutes can change the federalism provisions of the Constitution, that preemption of criminal laws against gambling means preemption of any regulation having anything to do with gambling (imagine an age restriction, for example), and that 32 states' laws treating betting on elections as a special case have been rendered ineffective because of a federal law about the derivatives market. It was the deregulation of those markets that led directly to the Crash of 2008; why not try it with elections and see what happens?

Ambiguity in the law should be read in favor of the defendant, a principle that ought guide any contemplated state prosecution of voting bettors, (Rule of Lenity).

The Wisconsin DoJ's is seeking a measure of clarity in its lawsuit against several prediction markets filed in April 2026 in state court.

Criminal prosecution referrals and threats made against voting by the Wisconsin Elections Commission's are ill-advised, irrational and false.

Future of Prediction Markets

It's a good bet that the Wisconsin DoJ April 2026 lawsuit seeking clarity prevails in Wisconsin County Circuit court, and eventually at the Democrat-dominated Wisconsin Supreme Court.

It's an equally good bet that federal litigation pursued by the commercial gambling eventually prevails in federal court, and perhaps on First Amendment grounds.

Consider Citizens United v. Federal Election Commission (2010). 

Afterall, a 5-4 Court in 2010 held campaign donors are effectively people with First Amendment liberties that prohibit government from restricting campaign and political donations by corporations and unions.

Citizens United v. Federal Election Commission (2010). 
Held

(a) Although the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20–25. 

In light of Citizens United v. Federal Election Commission, it would seem bizarre but possible that federal courts would rule states hold power to dictate what are wrong considerations voters take under advisement in exercising their state-created liberty to vote, as courts consider proposition that political speech includes voters' liberty to put their money where their mouth is, without laws burdening free speech.

#

Wisconsin Democrats Try to Create New Constitutional Qualification to Vote without Amending State Constitution

Democrats: Vote and Go to Jail; New Shite Show

Commentary

Madison, Wisconsin—Wisconsin Democrats in the Wisconsin Elections Commission have issued decree that Wisconsin law creates a new qualification to vote supplanting Wisconsin Constitution without amending the Wisconsin Constitution.

"With prediction markets and online gambling platforms growing in popularity, the Wisconsin
Elections Commission is warning voters: if you bet on an election - it could cost you your vote," reads a WEC press release.

No ambiguity there.

This new Constitutional qualification— no betting by Wisconsin residents on Wisconsin elections from anywhere— to vote is created by two statutes, (one in the criminal code; one a voter eligibility statute), says the Wisconsin Elections Commission.

WEC is reacting to the emergence of trading and prediction markets, Kalsi and Polymarket, that are legal under federal regulation as financial derivatives, and legal in many states.

This is the Gov Tony Evers (D) administration at work in Wisconsin where mostly Democrat, anti-gambling dogma is claimed to supplant the Wisconsin Constitution on Suffrage (voting).

At issue are two Wisconsin statutes, cited by WEC today:

Wisconsin Statute § 6.03(2) explicitly disqualifies electors from voting “in any election in which the person has made or become interested, directly or indirectly, in any bet or wager depending upon the result of the election.”
Wisconsin Statute § 12.13(1)(a) makes it a Class I felony to intentionally vote in an election without being qualified to do so.

Wisconsin statutes above as with any state law apply to acts committed within Wisconsin jurisdiction, within Wisconsin boundaries.

But not according to Wisconsin Elections Commission.

And not according to Ann Jacobs, former Wisconsin Election Chair and Democrat: "What you cannot do is bet there [in other states] and vote here."

The Wisconsin Elections Commission, remarkably, fails to address basic state law jurisdiction principles, and creation of new constitutional qualification to vote without amending the Constitution.

Jurisdiction

Since when does commitment of a legal act in one state, X, come within the adjudicative power of another state, Y?

I posed this question to WEC this morning:

[O]n the matter of jurisdiction, are not Wisconsin voters who are acting legally in other states by betting, beyond the reach of Wisconsin law, and contemplated criminal prosecution?

If I smoke pot in Chicago, have I acted beyond jurisdiction of Wisconsin law, and does smoking or betting in legal jurisdictions of sovereign states not carry any criminal taint into Wisconsin?

No reply.

I did get replies in social media from the former Wisconsin Elections Commission Chair, Ann Jacobs, speaking as a private citizen. Below are questions and answers:

What about betting in a different state such as Missouri, Ohio or Nevada where this betting is legal? Are you really claiming jurisdiction of Wisconsin law extends beyond Wisconsin into other states? Betting here, no. But betting beyond Wisconsin border, no problem, correct?

— Michael Leon (@mal644) July 21, 2026

What about betting in a different state such as Missouri, Ohio or Nevada where this betting is legal? Are you really claiming jurisdiction of Wisconsin law extends beyond Wisconsin into other states? Betting here, no. But betting beyond Wisconsin border, no problem, correct?

— Michael Leon (@mal644) July 21, 2026

According to Wisconsin Democrat orthodoxy, Wisconsin law now extends to acts committed outside its territorial borders.

And administrative fiat is now sufficient to create a new Constitutional qualification to vote without amending the Wisconsin Constitution.

Jacobs did not acknowledge basic jurisdictional principles, that is that betting in other states is activity beyond Wisconsin's territorial jurisdiction.  

But, Jacobs finally acknowledged that "the [Wisconsin] act it applies to is not the betting occurring in another state," pretending Jacobs said this all along, (she did not, and is lying).

Then, in the next sentence Jacobs contradicted herself, saying, "What you cannot do is bet there and vote here."

Better than what the WEC is willing to acknowledge at least.

This is Wisconsin Democrats today.

— Ann Jacobs (@AnnJacobsMKE) July 21, 2026

Bottom line if you want to gamble on Wisconsin elections, go ahead, just do it in another state beyond the jurisdiction of Wisconsin law.

Whatever WEC Administrator Meagan Wolfe says, you can bet heavily on elections outside Wisconsin and Democrat nannies cannot do a thing about it.

Below is WEC July 21 press release reproduced in full.

____________________________________________________________________________________________________________
Wisconsin Elections Commissioners
Don M. Millis, chair | Marge Bostelmann | Ann S. Jacobs | Carrie Riepl | Robert Spindell | Mark L. Thomsen
_________________________________________________________________________________________________________
Administrator
Meagan Wolfe
Wisconsin Elections Commission
201 West Washington Avenue | Second Floor | P.O. Box 7984 | Madison, WI 53707-7984
(608) 266-8005 | elections@wi.gov | elections.wi.gov
FOR IMMEDIATE RELEASE: FOR MORE INFORMATION, CONTACT:
July 21, 2026 Emilee Miklas, emilee.miklas@wisconsin.gov
Don’t Bet on Your Ballot: WEC Warns Voters Against
Election Gambling
MADISON – With prediction markets and online gambling platforms growing in popularity, the Wisconsin
Elections Commission is warning voters: if you bet on an election - it could cost you your vote.
“We want voters to understand that they cannot legally make a bet on an election and cast a ballot in that
same election,” WEC Administrator Meagan Wolfe said. “We are not able to police someone placing a bet
on these platforms, but it’s important for voters to understand the consequences if they bet on an election
outcome.”
Wisconsin law is clear: a voter cannot, even indirectly, make a bet or wager on the outcome of an election
and then vote in that same election:
• Wisconsin Statute § 6.03(2) explicitly disqualifies electors from voting “in any election in which
the person has made or become interested, directly or indirectly, in any bet or wager depending upon
the result of the election.”
• Wisconsin Statute § 12.13(1)(a) makes it a Class I felony to intentionally vote in an election
without being qualified to do so.
Voters who place bets on elections and then try to vote in that election may be subject to voter qualification
administrative challenges, which, if successful, would prevent them from being able to cast their ballot and
could also result in a referral to the District Attorney.
Earlier this month, the bipartisan Commission unanimously voted and approved a memo during its July 9,
2026, meeting outlining legal ramifications and concerns about prediction markets and elections. You can
view the memo in the open session materials here (beginning on page 149).
Prediction markets, most prominently run by the companies Kalshi and Polymarket, have quickly emerged
and become popular across the United States. Users can trade and invest in “yes” or “no” outcomes, from
sporting events to what the President may do on a certain day.
Regulation of prediction markets has been a recent litigation topic at the state and federal levels.
There are currently no federal laws addressing prediction markets for elections, however the Stop Trading
On Predictions (STOP) Corrupt Bets Act of 2026 (H.R. 8123) which would ban prediction market bets on
elections has been introduced as a bill. The U.S. Senate also has banned its members and staff from
prediction market betting.
More than half of states (23) have laws that prohibit betting or wagering on elections, at least under certain
circumstances, according to a Pew Research Center analysis of data from the National Conference of State
Legislatures (NCSL).
Additionally, Governor Tony Evers signed Executive Order #294 to address the growing concern for
government officials’ use of prediction markets, which prohibits all Wisconsin state executive branch
employees from “disclosing or using any nonpublic information obtained due to their public service to
personally profit from, avoid loss from, or assist another person or entity, including spouses and family
members, in profiting or avoiding loss from participating in prediction markets.”
#

Wisconsin Early Voting Gets Surprise Boost from Ballot Mail-in Case, Watson v RNC

Molly McGrath (left), a voting rights attorney with the ACLU, 
works with Madison residents to get IDs they need to vote under 
Wisconsin’s strict voter-ID law. Early voting efforts by election 
clerks in metro voting districts increased voter turnout following
a pro-voting rights win in federal district court in One Wisconsin 
Institute v. Thomsen (2016) that swept away Wisconsin Republican 
voter-obstruction legislation. Today, early voting received another 
boost from the U.S. Supreme Court in the election law case that 
rejected Republicans' legal theory that federal law requires 
states to reject absentee ballots received after election day. Early 
voting was not at issue in Watson v Republican National Committee,
and came up in oral arguments in March 13, 2016.
(Photo courtesy of Molly McGrath) 

Republican Legal Theory Limiting Voting Is Rejected by U.S. Supreme Court

MADISON, WIS. — A  major front in Trump's war against voting was dealt a 5-4 defeat Monday in the closely watched election law case, Watson v. Republican National Committee.

The U.S. Supreme Court majority opinion is authored by Justice Amy Coney Barrett, and brought together Chief Justice John Roberts and the Court's three liberal justices.

Trump, the U.S. DoJ and national and state Republicans had decided states should only count mail-in ballots received on or before Election Day, federal law requires states to reject absentee ballots received after election day. Both propositions were rejected.

Republicans challenged a Mississippi statute that allows ballots postmarked by Election Day.

Mississippi is one of roughly 30 States that count some absentee ballots mailed by election day but received afterward, Barrett noted.

Republican Legal Theory Rejected

The Republican position is soundly rejected in Watson v. Republican National Committee, in which Justice Barrett concludes, "The question today is not whether requiring ballots to be received by election day is a good or bad idea; the question is whether the idea has made its way into the United States Code."

Early Voting Gets Explicitly Affirmed

Early voting efforts, especially in Wisconsin that has substantially utilized early voting efforts by election clerks in metro voting districts the last eight years, were given an unexpected affirmation by Watson v. Republican National Committee, after years of state partisan battle with Wisconsin Gov. Scott Walker, (2011-19).

The issue of early voting is not of issue in Watson, but arose in oral arguments and in briefing, in which litigants and the Court argued whether federal election-day statutes prevent states from counting mail-in ballots that are postmarked by Election Day, but arrive up to five days later, as in Mississippi.

In oral arguments justices frequently push lawyers to apply their legal theories to hypothetical situations. Both the Republican National Committee and U.S. Department of Justice attorneys agreed in oral arguments federal election-day statutes permit early voting, Barrett pointed out.

Paul D. Clement, Alexandria, Va.; and D. John Sauer, Solicitor General, U.S. Department of Justice, Washington, D. C. (for United States, as amicus curiae) argued the RNC's case at oral arguments as respondents.

Early Voting in Wisconsin

In federal district court in One Wisconsin Institute v. Thomsen (2016) a landmark voting rights win swept away much Wisconsin Republican voter-obstruction legislation, 2013 Wisconsin Act 146, that included curtailing in-person absentee voting, early voting, aimed at minorities in Madison and Milwaukee.

In One Wisconsin Institute v. Thomsen, (2016), U.S. District Judge James Peterson writes:

Plaintiffs (voting rights advocates) have adduced evidence that weekend and evening voting is particularly important for socioeconomically disadvantaged voters, and that, in Wisconsin and nationwide, African American and Latino voters have made particularly good use of various forms of early voting. 
Early voting in groups on Sundays—including church-supported “Souls to the Polls” efforts—is a widespread practice among African American voters, in Wisconsin and nationwide.
But again, a disparate impact, without more, does not prove intentional discrimination.
But plaintiffs have more. Statements by legislators show that Act 146 reduced the hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and, secondarily, in Madison. [State] Senator Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be “reined in.” On the floor of the senate, he said, “I want to nip this in the bud before too many other cities get on board.” 
Senate Majority Leader Scott Fitzgerald made similar comments. As he put it, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it's because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’ ...
The legislature's ultimate objective was political: Republicans sought to maintain control of the state government. But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee's residents, who are disproportionately African American and Latino. The legislature did not act out of pure racial animus; rather, suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve its political objective. But that, too, constitutes race discrimination.

Many Wisconsin cities did get on board promoting early voting in response to the District Court's 2016 evisceration of 2013 Wisconsin Act 146.

Now, the U.S. Supreme Court has given One Wisconsin Institute v. Thomsen precedent protection in a case that will control expected Republican legal and state counter offensives.

Notes Jacob Knutson on early voting in Watson v. Republican National Committee in Democracy Docket:

In the case, [Watson] the RNC argued that Mississippi’s law offering a grace period for late-arriving ballots mailed by Election Day violated the election-day statutes: a set of federal laws that designate 'the Tuesday next after the first Monday in November… as the day for the election' for federal elections. ...

[T]he Court disagreed, ruling that the states 'do not set a deadline for ballot receipt' and therefore 'do not prevent Mississippi from counting ballots postmarked after election day yet received afterward.'

Barrett added that if the Court adopted the RNC’s legal theory in the case, 'early voting would also be at risk.'

'At bottom, plaintiffs’ theory is that because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices,' she wrote. 

Going further, Barrett warned that, 'Carried to its logical conclusion, this theory would call into question the way modern elections work.'

Barrett noted in the opinion that the RNC and Department of Justice (DOJ) —  which joined the RNC in challenging Mississippi’s law — both agreed in oral arguments earlier this year that the election-day statutes permit early voting.

'Although the election-day statutes refer to a particular ‘day’ for the election, plaintiffs do not contend that everything must occur on that day,' Barrett wrote. 'For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day."

Though he dissented from the Court’s decision on late-arriving mail ballots, Justice Samuel Alito agreed with the majority that the election-day statutes permit early voting.          

Thus, we see a Supreme Court voting rights case deciding the issue presented—affirming states can allow one class of voters to be counted, those whose absentee ballots arrive after Election Day while being postmarked by Election Day—and explicitly protecting a different class of absentee voters, early voters, after discussion in oral arguments.

There will a reckoning from Republicans in Wisconsin, and across the nation.

Wisconsin's New Qualification for Voting: Physical Ability, Faces Constitutional, Federal-Law Challenge

Lawsuit: Carey et al v. Wisconsin Elections Commission et al (Civil  Case No: 22-402) Promises Legal-Moral Spectacle

Madison, Wisconsin — Wisconsin Republicans may have overplayed their political hand in their legal war against voting.

Many disabled Wisconsinites believe they may vote, though they need to vote absentee and physically cannot travel to election clerks and drop off their absentee ballots. They believe their voting franchise persists, irrespective of physical ability.

Wrong, say Republicans on the Wisconsin Supreme Court, (not really a Court, just a raw political body, protected by both Democrats and Republicans), in its July 2022 edict-opinion in Teigen v. Wisconsin Elections Commission (Case NO.: 2022AP91). (See Teigen opinion and Teigen case history.) (See also Law Forward.)

The Wisconsin Supreme Court ruled absentee ballot drop boxes are henceforth illegal and that only voters can return their absentee ballots in person to their clerk’s offices or official designated sites, drop boxes.

If physical ability prevents voters from returning their ballots without help, too bad is the effect of the ruling and a seemingly purposefully provocative statement of interpretation of Teigen from Meagan Wolfe, Democrat-leaning Administrator of the Wisconsin Elections Commission: "the voter is the one required to mail their ballot," (CBS News-Minnesota).

Disabled Wisconsinites and their supporters say corrupt Wisconsin justices are ignoring federal law and the United States Constitution, citing several Amendments, the powerful Americans with Disabilities Act (ADA), the Voting Rights Act, and other federal legislation. See also Associated Press.

Even Frank Easterbrook, ace Republican operative on the Court of Appeals for the Seventh Circuit, is thought to have a tough time [for his future anti-voting moves] with this new scheme to stop voters unpopular with Republicans.

The case is currently before the liberal-dominated U.S. District Court for the Western District of Wisconsin.

The case is Timothy Carey v Wisconsin Elections Commission.

The complaint reads in part:

Some voters with disabilities, including Plaintiffs, require ballot-return assistance and are physically incapable of voting in person on election day.
For these voters, Wisconsin’s absentee-voting program is not just a program available to every Wisconsin voter, regardless of their physical ability.
Rather, it is their only means of accessing the franchise. Unless redressed by this Court, the prohibition on ballot-return assistance announced by Administrator Wolfe will eliminate these voters’ right to vote altogether.
This is unlawful. Federal law guarantees that voters with disabilities enjoy full and equal access to state voting programs and thus that they are entitled to ballot-return assistance. And when a state makes it impossible for some voters with disabilities to vote at all, it violates the U.S. Constitution.
Following the Teigen ruling and Administrator Wolfe’s interpretation of that decision, Wisconsin voters with disabilities are in a glaringly unequal position.
They are prohibited under Teigen from using ballot-return assistance to deliver their ballot in person to the municipal clerk.

Perilous politics

Politically, and for many — morally, Republicans are on thin ice, challenging rights and humanity of fellow citizens, based on their physical ability.

It's okay to impugn, lie, defame and refuse issue dialogue in American politics. From Hillary Clinton to Joe Biden to Donald Trump, descents into politcal malice and inanity are legion.

The U.S. Centers for Disease Control and Prevention estimates some 900,000 Wisconsin residents suffer some kind of disability.

Even as legal forces defending the disabled work to stop other candidates from gaining ballot access, this latest effort of Republicans to stop voters from voting with minimal help of municipal clerks likely will not play legally or politically.

"Rank distortion" of statutes and unsubstantiated rhetoric define majority (Republican) opinion, notes dissent.

Wisconsin Attorney General Candidate, Eric Toney, Wages Abuse of Power Against Innocents

Eric Toney, candidate for Wisconsin attorney general, is so
"tough," he prosecutes innocent people.

Madison, Wisconsin — Fond du Lac County District Attorney Eric Toney (R) is on a mission.

Toney is using his office of public trust to propel his political candidacy, another in a line of Wisconsin prosecutors acting on whims, lies or political calculations to destroy innocent victims as means of achieving a political perch.

Eric Toney is a Republican Party candidate for attorney general.

Absentee and overseas voting has begun for the Aug. 9 Primary.

When political prosecutors like Toney strike, legal venom is delivered under color of law with the power of the state behind personal malice, absent moral considerations that guide most people.

Matt Mencarini reports in Wisconsin Watch that politician Eric Toney has now prosecuted five people for felony election fraud for making honest mistakes in listing their P.O. Box as a residential address.

In ‘A hammer in search of a nail’: Wisconsin AG candidate prosecutes eligible voters for address snafus, five innocents put down the wrong address.

There is no "intent" which would satify election fraud, as the state statute clearly lays out as the crucial element for a criminal offense. [See 12.13 "Election fraud. ... (b) Falsely procures registration or makes false statements to the municipal clerk, board of election commissioners or any other election official whether or not under oath."]

But Eric Toney gets to score some political points for the Aug. 9 Primary.

Wisconsin voters should reject Eric Toney, this guy is a piece of human garbage.

Three GOP-nominated Seventh Circuit Judges Rule Against Trump Wisconsin Election Challenge

Three Republican-appointed judges in the United States Court of Appeals for the Seventh Circuit affirmed a dismissal of the Trump campaign's challenge to Wisconsin's presidential election and electoral college votes.

Joe Biden defeated Donald Trump in Wisconsin by some 20,000 votes.

The case is Donald J Trump v. Wisconsin Elections Commission, (No. 20-3414).

The Trump campaign waited until two days after Wisconsin certified its results to challenge how the presidential elections were administered, notes the Trump v. Wisconsin Elections Commission opinion of the three-judge panel hearing the case.

The Trump campaign also invoked the Electors Clause of the United States Constitution in an argument many have called bizarre and without merit.

The three Republican-nominated appellate judges hearing the case are Judge Joel M. Flaum (Reagan), Ilana D. Rovner (H.W. Bush) and Michael Y. Scudder, Jr. (Trump). 

The opinion was released on Christmas Eve.

The Party identity of the president who nominated the judges is significant because Republican-nominated judges in the Seventh Circuit generally rule against voting rights and for Republican Party interests in federal election law litigation. 

The opinion was written by Judge Scudder.

In a specific consideration of Wisconsin voters vis a vis the Trump campaign, Scudder writes in part: "Allowing the President to raise his arguments, at this late date, after Wisconsin  has tallied  the  votes  and certified the election outcome, would impose unquestionable harm on the defendants, and the State’s voters, many of whom cast ballots in reliance on the guidance, procedures, and practices that the President challenges here (p. 9).

The legal news was trumpeted widely on social media.

🚨BREAKING: 7th Circuit AFFIRMS dismissal of Trump's lawsuit to overturn the results of the November election.

"Even on a broad reading of the Electors Clause, Wisconsin lawfully appointed its electors in the manner directed by its Legislature."

Trump and allies remain 1-59. pic.twitter.com/K7tamLl95m

— Marc E. Elias (@marceelias) December 24, 2020

The Progressive: Fucking Garbage, Piece of Shit Pig, Socialist, Tyrant, Woman, Say Callers to Wisc Supreme Court Judge Who Noted Racism in Trump Election Case

Madison, Wisconsin — Invective and hysteria describe several phone messages left to a Wisconsin Supreme Court justice following her characterization of a Trump campaign lawsuit as "racist," "shameful" and "un-American" in Dec 12 oral arguments.

The case, decided on Dec 14 against Trump's attempt to overturn the Wisconsin election, is: 2020AP2038 Donald J. Trump, Michael R. Pence and Donald J. Trump for President, Inc.,Plaintiffs-Appellants,v. Joseph R. Biden, Kamala D. Harris, Milwaukee County Clerk c/o George L. Christenson, Milwaukee County Board of Canvassers c/o Tim Posnanski, Wisconsin Elections Commission, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell and Dane County Board of Canvassers c/o Alan Arnsten,

In recordings obtained by Bill Lueders, editor of the The Progressive Magazine, through an open records request, voicemails message left for Wisconsin Supreme Court Justice Jill Karofsky are sometimes hysterical and hostile, accusing the "socialist tyrant bitch" judge of protecting voter fraud, among other imagined crimes.

The Republican Party has become openly racist for the last several decades, and now works against the rights of minorities in policy, the judiciary and political rhetoric.

Writes Lueders:

In the days following her astringent questioning and subsequent vote against an effort by President Donald Trump to subvert the will of the electorate by tossing out hundreds of thousands of Wisconsin votes, state Supreme Court Justice Jill Karofsky has received a flurry of angry voicemail messages on her official court phone line.

'You got a lot of guts,' one caller stated, as recorded in an MP3 file released Wednesday [Dec 16] to The Progressive in response to an open records request. 'You refer to Trump as a king? Yet you are the tyrant bitch. You are the tyrant bitch who allows cheating and fraud to put a socialist puppet of China in the White House. Trump is not a king. Trump is a President legally elected by the people, not the fraud you allow, you fucking bitch. You’re the socialist tyrant bitch. Trump is an American patriot. And you’re fucking garbage, you fucking piece of shit pig.'

The racist Trump campaign has been virtually shut out in the judiciary, and President Biden-elect Biden will assume office on Jan 20, 2021.

A Wisconsin Victory Feels Like We Are Mourning

Madison, Wisconsin - "Joe may win. But it feels like we lost something important last night," said Andrew Yang on social media this morning.

Joe may win. But it feels like we lost something important last night.

— Andrew Yang🧢🇺🇸 (@AndrewYang) November 4, 2020

Yang's sentiment seems widely held here as most of the people I have spoken to seem in mourning despite Biden's apparent victory here, and in the national Electoral College.

There is a major national Party that is racist and hostile to the idea of democracy.

But the Democratic Party's strategic project seems to be sabotaging progressive reformers in service to big money, virtue signaling and identity politics.

This is not healthy for a democratic republic. It's fatal.

"The richest and most powerful country on earth — whether due to ineptitude, choice or some combination of both — has no ability to perform the simple task of counting votes in a minimally efficient or confidence-inspiring manner. As a result, the credibility of the voting process is severely impaired, and any residual authority the U.S. claims to 'spread' democracy to lucky recipients of its benevolence around the world is close to obliterated," writes Glenn Greenwald this morning.

Election Day Is Sedate at Madison, Wisconsin Polls Staffed by Young People

Meadowridge Library in Madison Wisconsin
Election Day 2020 - No voters in sight

Updated - Madison, Wisconsin - A beautiful day and young, new faces greeted the veritable trickle of voters observed today.

On the southwest side, two polling places saw barely a trickle of voters at approximately 10 a.m., continuing a quiet morning across the city during this Pandemic election.

Polling workers skewed very young in a radical departure from a typically high number of folks of retired age. 

Increased number of turnout checks reported to the City Clerk includes scheduled counts at 9, 11 in the morning and  1, 4, 6 and 7 in the p,m., a poll worker said. 

The high turnout-reporting is a consequence of the mammoth number of early voting, and the resultant feeding of ballots into tabulators all day.

Some 20 young workers staffing the polls this morning vastly outnumbered observed voters present over a half-hour period at two separate southwest Madison polling sites.

Young poll workers saved this Election today. 

The City Clerk and other election officials have been sending out thank yous for weeks.

One observer and a poll worker say they expect results from the City to come no later than usual on presidential general election day.

Our polling places are hopping today!

With most polling places reporting their 2pm numbers, we've processed 47.71% of absentee ballots.#MadisonVotes2020 #vote #elections2020

— Madison WI Clerk (@MadisonWIClerk) November 3, 2020

Early Voting Begins in Wisconsin

Madison, Wisconsin —  The Meadowridge Library early-voting site on Madison's southwest side saw the first trickle of voters casting their ballots late this morning.

It's a sight sure to annoy Republicans here as much of the early-voting electorate held in disfavor — non-Republicans and minorities — look likely to their cast votes at variance to what the the GOP regards as proper.

Judge Frank Easterbrook, the Republicans' go-to judge on the U.S Court of Appeals for the Seventh Circuit, penned a bizarre opinion in this appellate circuit now overrun with Republican-nominated judges.

Easterbrook writes that statutory discrimination against minorities is not discriminatory if discrete demographics vote in similar political fashion and reside prominently in urban jurisdictions, Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), (Marley, Milwaukee Journal-Sentinel). 

The opinion, in part, reinstates Republican-enacted restrictions on early, in-person voting. So, early voting began today, instead of late Sept. 

No matter, the massive pro-voting campaign by private and public interests blunts any depressive effect on turn-out here, as envisioned by Easterbrook.

We've issued 106,564 absentees, of which 82,309 are returned to be counted, including 4,542 cast at our in-person absentee sites, and 2,865 returned via drop box. We have 189,244 registered voters, including 29,524 who've registered since the Aug. Primary. #MadisonVotes2020

— Madison WI Clerk (@MadisonWIClerk) October 22, 2020

The nonpartisan counteroffensive against Republicans is joined by election clerks in metro voting districts notes In These Times, pointing to public-private partnerships that have emerged in reaction against the Republican Party, (WISC-TV).

This pro-voting phenomenon is a consequence of the most comprehensive and outrageous attack on voting rights in some 50 years by the Republicans.

In-person absentee voting continues today!

Find a location & time that works for you. Options available thru Nov 1: https://t.co/G7sxxnYQ62.#MadisonVotes2020 #vote #elections2020 pic.twitter.com/6ipEsGqgQ8

— Madison WI Clerk (@MadisonWIClerk) October 21, 2020

Wisconsin Presidential Election Is too Important to Be Left in Voters' Hands

Left Unexplained: How 2,177 Signatures on Green Party Nomination Disappeared

Madison, Wisconsin — Voter obstruction, dark money, corruption in public office; Democrats are adopting the ways of the Republican Party.

The Wisconsin Supreme Court delivered another political decision yesterday that attacks a foundational right of citizens to organize and place a candidate of their choosing on the ballot for voters' consideration.

In this case — Howie Hawkins and Angela Walker v. Wisconsin Elections Commission (No.  2020AP1488-OA) — the beneficiaries are the Democratic Party and their cheerleaders, Democratic-aligned election officials.

The Wisconsin Supreme Court issued an instantly infamous 4-3 decision that denied the Green Party petition challenging the Wisconsin Elections Commission staff decision that was imbued with the force of law, in error, by a Commission administrator.

The Green Party and its Wisconsin citizen supporters wanted the Green Party's presidential and vice-presidential candidates to appear on the General Election ballot.

In Dane County, Democratic Party-aligned municipal and county election officials issued several communications on social media specifically implying a preference in the Howie Hawkins - Green Party petition (litigation) before the Supreme Court of Wisconsin.

For example, some 25 minutes before the Supreme Court released its decision, the Madison City Clerk signaled its office's desire to mail out the specific ballots for which the Democratic Party fought — without the Green Party's presidential and vice-presidential nominees.

Writes the Madison City Clerk in its official Twitter feed:

A big thank you to the poll workers who have labeled absentee envelopes for 79,958 @CityofMadisonvoters. Once we are given the go-ahead to put ballots in the mail, track the status your absentee at https://myvote.wi.gov. #MadisonVotes2020

This and other local officials' communications make clear the Democratic Party-aligned election officials' preference on ballots, though Hawkins was being adjudicated after a Green Party petition to the Court. [See The Rachel Maddow Show, for example, for reporting on election clerks' stated preference on which ballot they mail out: With Green Party or without Green Party. Maddow's piece calls the Green Party and Wisconsin citizen efforts to place a candidate on the ballot a "scam," a position that is the consensus among Democratic Party allies (see Court foils Republican Green Party scam to sap Democratic votes).]

Election officials had no business expressing a ballot preference. This calls into question their neutrality in administering elections without bias when these same officials' political survival is contingent on the Party, the Democratic Party, that instigated dubious administrative action against the Democrats' political opponent.

Local officials should not express or even appear to imply desired outcomes of litigation that involve any private political party whose material benefit is dependent on the Court opinion and order.

Put another way, local election officials should have zipped it and let the litigation proceed without public, social-media comment.

But fealty to the Democratic Party outweighs the needs for unbiased administrations of elections, so social media communications rife with political positions were emitted, and traditional watchdogs were silent.

Howie Hawkins and Angela Walker v. Wisconsin Elections Commission

The Court issued blistering dissents to the majority opinion that let stand the decision of Wisconsin Elections Commission staff that sustained a Democratic Party complaint against the Hawkins-Green Party nomination paperwork.

One dissent written by Chief Justice Patience Drake Roggensack lays out why the Commission is in error and the concern that the liberty interests of Wisconsin citizens and voters should be taken into consideration in administrative and Court deliberation.

In normal functioning of the Commission, a complaint against a nomination is evaluated, an advisory memo is prepared by staff, and the commissioners vote.

Well, the commissioners voted on the complaint and it did not pass. No matter, the complaint was accepted with the force of law.

Writes Justice Roggensack in part:

¶19 It is important for the public to know that there are election  laws  that  bear  on  [Allen] Arntsen's  challenge,  which  the Commission refused to follow.  First, the Commission was required to presume that the addresses listed on the nomination papers were the  correct  addresses  for  the  dates  listed  because  Wis.  Admin. Code § EL 2.05(4) requires that "[a]ny information which appears on a nomination paper is entitled to a presumption of validity."Section EL 2.07(1) confirms that the Commission "shall apply the standards in § EL 2.05 to determine the sufficiency of nomination papers."Second, § EL 2.07(3)(a) requires that "[t]he burden is on the challenger to establish any insufficiency."

¶20 Here, Arntsen's challenge was based on "information and belief."He had no personal knowledge of where Walker lived on what date; therefore his allegation is insufficient to overturn the presumption that the addresses listed on the nomination papers are correct.  Since Crane v. Wiley, 14 Wis. 658 (1861), we have held  that  allegations  based  upon  information  and  belief  in  a complaint  make  a  verification  insufficient  for  material  facts.  However,  the  Commission's  votes  showed  it  did  not  honor  the presumption of the nomination papers' facts as Wis. Admin. Code §EL 2.05(4) requires; it did not require Arntsen to prove that the  addresses  on  the  nomination  papers  were  incorrect  as  §EL 2.07(3)(a) requires; and it treated Arntsen's allegations made on information and belief as if they proved that Walker's address was incorrect on more than 1,800 nomination papers.   

 ¶21Mérida appeared on behalf of the Green Party candidates at the August 20, 2020 Commission meeting to present evidence about the dates that Walker lived at each address, as legal counsel for the Commission told her she could do.2However, Ann Jacobs, who served as chair of the Commission, prevented the presentation of evidence about the dates of Walker's move.  The Commission then voted  6-0  to  sustain  Arntsen's  challenge  to  57  signatures  and rejected  it  for  48  signatures.    The  Commission  also  voted  on whether  to  sustain  Arntsen's  challenge  to  1,834  signatures  on nomination papers that contained Walker's earlier address.  The Commission  deadlocked,  with  3  Democratic  appointees  voting  to sustain Arntsen's challenge and 3 Republican appointees voting to deny it.  Therefore, Arntsen failed to meet his burden to prove 2The   meeting   can   be   viewed   in   its   entirety   at https://wiseye.org/2020/08/20/wisconsin-elections-commission-special-teleconferencemeeting-10/.   any  insufficiency  of  the  addresses  for  Walker  listed  on  the nomination papers.  Wis. Admin. Code § EL 2.07(3)(a).  At that point, the Green Party candidates had 3,909 presumptively valid signatures pursuant to §EL 2.05(4) (3,966 filed less 57 signatures rejected by the Commission).

 ¶22However, notwithstanding the Commission's vote on August 20, 2020, on August 21, 2020, the Commission Administrator sent Hawkins and Walker a letter stating that since the Commission had certified a total of only 1,789 signatures, less than the 2,000 required for ballot access, Hawkins' and Walker's names would not be on the ballot for the November 3, 2020 general election.  There is no explanation in that communication about how the Commission disallowed an additional 2,177 signatures that were presumptively valid after the Commission voted to invalidate only 57 of the 3,966 signatures  submitted.    The  Commission  Administrator  must  have treated  Arntsen's  challenge  to  1,834  signatures  as  having  been proved, even though the Commission had voted not to sustain his challenge. 

¶23 On  August  26,  2020,  the  Commission  certified  the independent  candidates  for  President  and  Vice President.    On September 1, 2020, the Commission certified the party candidates for  President  and  Vice President  to  the  county  clerks.    The September 1, 2020 communication notified the county clerks of the legal challenge to ballot access that had been filed by Kanye West and Michelle Tidball and that there were media statements from the Green Party candidates that they intended to file a court action to gain ballot access.  Therefore, at least by September 1, 2020, the county clerks knew that the Commission's certification may not be the final ballot for the November 3, 2020 general election.

¶24 The  Green  Party  filed  suit  seeking  ballot  access  on September 3, 2020.  Perhaps, the Green Party could have filed suit on August 26, 2020, when the Commission certified the independent candidates.    However,  lawsuits  take  time  to  gather  relevant documents  and  affidavits  needed  to  proceed .    In  addition,  the county  clerks  were  on  notice  from  September  1,  2020,  when  the Commission  certified  the  final  ballot  for  the  November  3,  2020 election, that the Green Party would likely file suit and that Kanye West already had filed suit for ballot access.

¶25 This lawsuit is not about the Green Party sleeping on its rights.  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.

¶26 It has been said that transparency is the best medicine for curbing governmental practices that abuse the rights of those who  must  interact  with  government.    The  Commission  ignored  its legal  obligations  under  Wis.  Admin.  Code  §§EL  2.05(4)  and  EL 2.07(3)(a), and in so doing it suppressed the rights of voters to choose Green Party candidates for President and Vice President.  The court's Order is silent on the Commission's unlawful conduct and imposes no consequences for what it has done.  The court's silence not only affirms lawless conduct by the Commission, but also provides no directive for the required treatment of nomination papers in the future.  

¶27Silently affirming lawless conduct that has been brought to the court's attention is an abdication of the court's obligation to  stand  with  the  law,  even  when  doing  so  is  uncomfortable.  Accordingly, I respectfully dissent from the Order and join the opinion of Justice Annette Kingsland Ziegler that follows.
#

The national Green Party press release is reproduced in full below:

Greens Denounce Wisconsin Supreme Court Decision

(Syracuse, NY – September 14, 2020) Green Party nominees for President and Vice President, Howie Hawkins and Angela Walker, rejected the decision handed down earlier today by the Wisconsin Supreme Court, to deny placing them on the November 2020 ballot.  The Green Party has been on the ballot in Wisconsin for every presidential election since 1996.

Several years ago, the workers of Wisconsin occupied the state capitol building with shouts of “this is what democracy looks like.”  Angela Walker mobilized her Milwaukee transit workers local union into that defense of workers’ rights.  Unfortunately, today, the state Supreme Court demonstrated something completely different from what most people consider to be democracy: a choice on their ballot.

“The court majority failed to recognize the partisan Wisconsin Election Commission’s repeated unlawful actions, said Andrea Mérida, campaign manager.” Mérida continued, “now we have a dangerous precedent where a major party can effectively decide which minor parties can participate in elections, by conjuring up arbitrary requirements on the fly to remove its opposition. Regardless, the fact remains that we met all of the legal requirements for ballot access and followed the WEC’s instructions to the letter with regards to Angela Walker’s change of residence.”

“We were screwed. As the dissenting opinion explains, the actual facts and the law show that we are qualified for the ballot. Partisan hacks should not be running elections for their own parties. They set up the absentee ballot snafu. The decision is a travesty of justice,” said Hawkins.

“Our campaign rejects the idea that we should be punished for what the court majority considers an untimely legal response.  As noted in the dissenting opinion, our campaign filed only two days after the Commission certified their list of independent candidates.  As a working-class campaign that cannot afford attorneys on retainer, unlike the two major parties, it takes time for us to find legal representation, formulate a response and file documents,” Angela Walker said.

The campaign is currently weighing its legal options, and Wisconsinites may now have to write-in Howie Hawkins and Angela Walker in order to vote for the only presidential ticket that fights for a Green New Deal, Medicare for All, and fair elections and ballot access. The campaign vows to continue to fight alongside the Wisconsin Green Party to regain its ballot status, which will require one percent of the statewide vote, or about 20,000 votes.

###

See also: