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Abuse of Discretion – Injunctive Relief

WI Supreme Court

Case Name: Howie Hawkins, et al., v. Wisconsin Elections Commission, et al.,

Case No.: 2020 WI 75

Focus: Abuse of Discretion – Injunctive Relief

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.

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.

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.

IT IS ORDERED that the respondents’ motion to strike petitioners’ letter reply brief and supplemental affidavit is denied; and IT IS FURTHER ORDERED that the directive in this court’s September 10, 2020 order that “the Wisconsin Elections Commission shall advise all municipal clerks in this state that they should not mail any absentee ballots until this court has issued a further order stating that absentee ballots may be mailed out or granting relief regarding the contents of the ballots for the November 3, 2020 general election” is hereby vacated; and IT IS FURTHER ORDERED that the petition for leave to commence an original action and the motion for temporary injunctive relief are denied. No costs.

Denied in part. Vacated in part.

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., PATIENCE DRAKE ROGGENSACK, C.J., ANNETTE KINGSLAND ZIEGLER, J.,

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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