Wisconsin State Legislature v. Marge Bostelmann

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2835 & 20-2844
DEMOCRATIC NATIONAL COMMITTEE, et al.,
Plaintiffs-Appellees,
v.
MARGE BOSTELMANN, SECRETARY OF THE WISCONSIN
ELECTIONS COMMISSION, et al.,
Defendants,
and
WISCONSIN STATE LEGISLATURE, REPUBLICAN NATIONAL
COMMITTEE, and REPUBLICAN PARTY OF WISCONSIN,
Intervening Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 20-cv-249-wmc, et al. — William M. Conley, Judge.
____________________
SUBMITTED SEPTEMBER 26, 2020 — DECIDED SEPTEMBER 29, 2020
____________________
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
PER CURIAM. The Democratic National CommiXee and
other plaintiffs contend in this suit that statutes affecting the
2 Nos. 20-2835 & 20-2844
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 legisla-
tive branch, plus the Republican National CommiXee 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 provi-
sions may be used but that some deadlines must be extend-
ed and two smaller changes made. 2020 U.S. Dist. LEXIS
172330 (W.D. Wis. Sept. 21, 2020). In particular, the court ex-
tended the deadline for online and mail-in registration from
October 14 (see Wis. Stat. §6.28(1)) to October 21, 2020; ex-
tended 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 ap-
pealed and asked us to issue a stay; the executive-branch de-
fendants have not appealed. With the election only a few
weeks away, the decision with respect to a stay will effec-
tively 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.
Nos. 20-2835 & 20-2844 3
This conclusion is straightforward with respect to the
Republican National CommiXee and the Republican Party of
Wisconsin. The district court did not order them to do some-
thing 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 or-
ganization. Neither group contends that the new deadlines
established by the district court would violate the constitu-
tional rights of any of their members. The political organiza-
tions 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 some-
one 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).
That leaves the legislature. Arizona State Legislature v. Ari-
zona Independent Redistricting Commission, 576 U.S. 787 (2015),
shows that a state legislature may litigate in federal court,
consistent with Article III of the Constitution, when it seeks
to vindicate a uniquely legislative interest. See also, e.g.,
Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793,
797–98 (7th Cir. 2019). The interest at stake here, however, is
not the power to legislate but the validity of rules established
by legislation. All of the legislators’ votes were counted; all
of the statutes they passed appear in the state’s code. Consti-
tutional validity of a law does not concern any legislative in-
terest, which is why the Supreme Court held in Virginia
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), that a
4 Nos. 20-2835 & 20-2844
state legislature is not entitled to litigate in federal court
about the validity of a state statute, even when that statute
concerns the apportionment of legislative districts. “This
Court has never held that a judicial decision invalidating a
state law as unconstitutional inflicts a discrete, cognizable
injury on each organ of government that participated in the
law’s passage.” Id. at 1953. State legislatures must leave to
the executive officials of the state, such as a governor or
aXorney general, the vindication of the state’s interest in the
validity of enacted legislation.
The legislature contends that the situation is different in
Wisconsin in light of Wis. Stat. §803.09(2m), which provides:
When a party to an action challenges in state or federal court the
constitutionality of a statute, facially or as applied, challenges a
statute as violating or preempted by federal law, or otherwise
challenges the construction or validity of a statute, as part of a
claim or affirmative defense, the assembly, the senate, and the
legislature may intervene … at any time in the action as a maXer
of right by serving a motion upon the parties … .
In an earlier stage of this litigation, we concluded that
§803.09(2m) permits the legislature to act as a representative
of the state itself, with the same rights as the AXorney Gen-
eral of Wisconsin. Democratic National CommiOee v. Bostel-
mann, No. 20-1538 (7th Cir. Apr. 3, 2020), stayed in part by
Republican National CommiOee v. Democratic National Com-
miOee, 140 S. Ct. 1205 (2020). The legislature contends that
our decision is the law of the case and that it may proceed as
a representative of Wisconsin under §803.09(2m).
Intervening authority can justify a departure from the
law of the case, and just such an event has occurred. Three
months after we concluded that §803.09(2m) permits the leg-
islature to represent the state, the Supreme Court of Wiscon-
Nos. 20-2835 & 20-2844 5
sin held that this statute, if taken as broadly as its language
implies, violates the state’s constitution, which commits to
the executive branch of government the protection of the
state’s interest in litigation. Service Employees International
Union, Local 1 v. Vos, 2020 WI 67 ¶¶ 50–73 (July 9, 2020). Ca-
pacity to sue or be sued is a maXer of state law, see Fed. R.
Civ. P. 17(b)(3); Bethune-Hill, 139 S. Ct. at 1952, so a holding
that, as a maXer of Wisconsin law, the legislature cannot rep-
resent the state’s interest, controls in federal court too. Under
Vos the legislature may represent its own interest, see ¶¶ 63–
72, which puts Wisconsin in agreement with federal deci-
sions such as Arizona Independent Redistricting Commission,
but that proviso does not allow the legislature to represent a
general state interest in the validity of enacted legislation.
That power belongs to Wisconsin’s executive branch under
the holding of Vos.
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 Com-
miOee v. Common Cause Rhode Island, No. 20A28 (S. Ct. Aug.
13, 2020) (denying a motion for a stay under similar circum-
stances). 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 dis-
missed for lack of appellate jurisdiction.