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Municipal Officials Brief in Support of Motion To UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION DONALD J. TRUMP, Candidate for President of the United States of America, Plaintiff, v. Case No.: 2:20-cv-01785-BHL THE WISCONSIN ELECTIONS COMMISSION, and its Members, ANN S. JACOBS, MARK L. THOMSEN, MARGE BOSTELMANN, DEAN KNUDSON, ROBERT F. SPINDELL, JR., in their official capacities, SCOTT MCDONELL in his official capacity as the Dane County Clerk, GEORGE L. CHRISTENSON in his official capacity as the Milwaukee County Clerk, JULIETTA HENRY in her official capacity as the Milwaukee Election Director, CLAIRE WOODALL- VOGG in her official capacity as the Executive Director of the Milwaukee Election Commission, MAYOR TOM BARRETT, JIM OWCZARSKI, MAYOR SATYA RHODES-CONWAY, MARIBETH WITZEL-BEHL, MAYOR CORY MASON, TARA COOLIDGE, MAYOR JOHN ANTARAMIAN, MATT KRAUTER, MAYOR ERIC GENRICH, KRIS TESKE, in their official capacities; DOUGLAS J. LA FOLLETTE, Wisconsin Secretary of State, in his official capacity, and TONY EVERS, Governor of Wisconsin, in his official capacity, Defendants. COMBINED BRIEF OF WISCONSIN MUNICIPAL OFFICIALS IN SUPPORT OF THEIR RESPECTIVE MOTIONS TO DISMISS AND IN OPPOSITION TO REQUEST FOR EMERGENCY RELIEF Case 2:20-cv-01785-BHL Filed 12/08/20 Page 1 of 33 Document 70 TABLE OF CONTENTS Page INTRODUCTION ...............................................................................................................1 STATEMENT OF FACTS ..................................................................................................2 ARGUMENT .......................................................................................................................3 I. THE PLAINTIFF LACKS STANDING TO ASSERT VIOLATIONS OF THE CONSTITUTION’S ELECTOR AND ELECTION CLAUSES ..............3 A. The Standing Doctrine .................................................................................3 B. The Plaintiff Has Not Suffered a Concrete, Particularized and Non-Speculative Injury and Therefore Lacks Standing to Bring Claims Under the Elections and Electors Clauses .......................................5 C. The Plaintiff Lacks Standing to Assert Equal Protection and Due Process Violations ........................................................................................6 II. THIS ACTION SHOULD BE DISMISSED UNDER PRINCIPLES OF LACHES ............................................................................................................7 III. THIS ACTION IS MOOT ...............................................................................11 IV. THE COURT SHOULD DISMISS THIS ACTION UNDER ABSTENSION PRINCIPLES ...................................................................................................13 A. The Court Should Dismiss This Action Under Wilton/Brillhart Abstention Principles .................................................................................13 1. The Wilton/Brillhart Abstension Doctrine...........................................13 2. A Parallel State Court Proceeding Is Pending .....................................14 B. Alternatively, the Court Should Stay This Action Under Pullman Abstention Principle...................................................................................16 V. PLAINTIFF IS NOT ENTITLED TO THE RELIEF SOUGHT.....................16 VI. THE ELECTION WAS CONDUCTED CONSISTENT WITH WISCONSIN LAW .........................................................................................18 i Case 2:20-cv-01785-BHL Filed 12/08/20 Page 2 of 33 Document 70 A. No Complaint Was Filed With the Wisconsin Election Commission .......18 B. The Standards For Challenges to Elections Are Rigorous .........................19 C. Defendants Followed the Law on Indefinitely Confined Voters ...............21 D. Absentee Ballots ........................................................................................22 E. Drop Boxes Are Legal ...............................................................................23 F. The Mayors Should Not Be In This Case and All of Their Actions Were Legal .................................................................................................24 G. Correction of Absentee Ballots ..................................................................25 H. Access to Observations of Voting..............................................................25 CONCLUSION ..................................................................................................................25 ii Case 2:20-cv-01785-BHL Filed 12/08/20 Page 3 of 33 Document 70 TABLE OF AUTHORITIES Page(s) Cases Allen v. Wright, abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126-27 (2014). 468 U.S. 737 (1984) ..................................................................................................................... 5 Bodine v. Elkhart County Election Board, 788 F. 2d 1270 (7th Cir. 1988) ................................................................................................... 20 Bognet v. Sec’y Commonwealth of Pennsylvania, 2020 WL 6686120 (3rd Cir. Nov. 13, 2020) ................................................................................ 5 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, (1942) ............................................................................................................ 13, 14 Bryant v. Compass Group USA, Inc., 958 F.3d 617 ................................................................................................................................. 4 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S.Ct. 1138 (2013) ....................................................................................... 4, 7 Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ................................................................ 20 Duncan v. Poythress, 657 F.2d 691 (5th Cir.Unit B., 1981) ......................................................................................... 20 Environmental Defense Fund, Inc. v. Alexander, 614 F.2d 474 (5th Cir. 1980) ........................................................................................................ 7 Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983 (7th Cir. 2010) ................................................................................................ 14, 15 Foster v. Love, 522 U.S. 67 (1997) ....................................................................................................................... 2 Gamza v. Aguirre, 619 F.2d 449 (5th Cir.1980) ................................................................................................. 20, 21 Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir. 1979) ........................................................................................................ 8 Griffin v. Burns, 570 F.2d 1065 (1st Cir.1978) ..................................................................................................... 20 iii Case 2:20-cv-01785-BHL Filed 12/08/20 Page 4 of 33 Document 70 Hendon v. North Carolina State Board of Elections, 710 F.2d 177 (4th Cir.1983) ....................................................................................................... 20 Hennings v. Grafton, 523 F.2d 861 (7th Cir.1975) ................................................................................................. 20, 21 In the Matter of an Appeal from Recount in the Election Contest of Charles Hayden and George Johnson, 105 Wis. 2d 468, 313 N.W. 2d 869 (Ct. App. 1981) ................................................................. 19 Jefferson v. Dane County, 2020 AP557-OA, 2020 AP557-OA, dated March 31, 2020.................................................................................... 21 Knox v. Milwaukee County Bd of Election Commissioners, 581 F. Supp. 399 (E.D. Wis. 1984) .............................................................................................. 8 King v. Whitmer, No. 20-13134 (E.D. Mich., Dec 7, 2020) ................................................................... 6, 11, 12, 17 Lance v. Coffman, 549 U.S. 437 (2007) ..................................................................................................................... 5 Lanser v. Koconis, 62 Wis. 2d 86, 214 N. W. 2d 425 (1974) ................................................................................... 19 Lingenfelter v. Keystone Consol. Industries, Inc., 691 F.2d 339 (7th Cir. 1982) .................................................................................................... 7, 8 Logerquist v. Board of Canvassers for Town of Nasewaupee, 150 Wis.2d 907, 442 N.W.2d 551 (Ct. App. 1989) ................................................................... 20 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ..................................................................................................................... 4 Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825 (1st Cir.1980) ....................................................................................................... 20 Pettengill v. Putnam County R-1 School District, 472 F.2d 121 (8th Cir.1973) ....................................................................................................... 21 Powell v. Power, 436 F.2d 84 (2d Cir. 1970) ........................................................................................................... 7 R.R. St. & Co. v. Vulcan Materials Co., 569 F.3d 711 (7th Cir. 2009) .....................................................................................................
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