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Motion for Stay Denied

7th Circuit Court of Appeals

Case Name: Democratic National Committee, et al., v. Marge Bostelmann, et al.,

Case No.: 20-2835; 20-2844

Officials: EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.

Focus: Motion for Stay Denied

The Democratic National Committee and other plaintiffs contend in this suit that statutes affecting the registration of voters and the conduct of this November’s election, although constitutional in principle, see Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), will abridge some voters’ rights during the SARS-CoV-2 pandemic. The state’s legislative branch, plus the Republican National Committee and the Republican Party of Wisconsin, intervened to defend the statutes’ application to this fall’s election.

A district judge held that many of the contested provisions may be used but that some deadlines must be extended and two smaller changes made. 2020 U.S. Dist. LEXIS 172330 (W.D. Wis. Sept. 21, 2020). In particular, the court extended the deadline for online and mail-in registration from October 14 (see Wis. Stat. §6.28(1)) to October 21, 2020; extended the deadline for delivery of absentee ballots by mail from October 22 (see Wis. Stat. §6.87(3)) by allowing for online delivery and access by October 29; and extended the deadline for the receipt of mailed ballots from November 3 (Election Day) to November 9, provided that the ballots are postmarked on or before November 3. Two other provisions of the injunction (2020 U.S. Dist. LEXIS 172330 at *98) need not be described. The three intervening defendants have appealed and asked us to issue a stay; the executive-branch defendants have not appealed. With the election only a few weeks away, the decision with respect to a stay will effectively decide the appeals on the merits.

We need not discuss the parties’ arguments about the constitutional rules for voting or the criteria for stays laid out in Nken v. Holder, 556 U.S. 418 (2009), because none of the three appellants has a legal interest in the outcome of this litigation.

This conclusion is straightforward with respect to the Republican National Committee and the Republican Party of Wisconsin. The district court did not order them to do something or forbid them from doing anything. Whether the deadline for online registration (for example) is October 14 or October 21 does not affect any legal interest of either organization. Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their members. The political organizations themselves do not suffer any injury caused by the judgment. See Transamerica Insurance Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997). Appeal by the state itself, or someone with rights under the contested statute, is essential to appellate review of a decision concerning the validity of a state law. See, e.g., Hollingsworth v. Perry, 570 U.S. 693 (2013); Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000). See also 1000 Friends of Wisconsin Inc. v. Department of Transportation, 860 F.3d 480 (7th Cir. 2017) (same when the validity of an administrative decision is at stake).

None of the appellants has suffered an injury to its own interests, and the state’s legislative branch is not entitled to represent Wisconsin’s interests as a polity. The suit in the district court presented a case or controversy because the plaintiffs wanted relief that the defendants were unwilling to provide in the absence of a judicial order. See Hollingsworth, 570 U.S. at 702, 705; United States v. Windsor, 570 U.S. 744, 756 (2013). But the appeals by the intervenors do not present a case or controversy within the scope of Article III, and we deny the motions for a stay. Cf. Republican National Committee v. Common Cause Rhode Island, No. 20A28 (S. Ct. Aug. 13, 2020) (denying a motion for a stay under similar circumstances). The interim stay previously entered is vacated. In addition to denying the motions, we give appellants one week to show cause why these appeals should not be dismissed for lack of appellate jurisdiction.

Vacated. Motion denied.

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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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