BLOC, Law Forward file brief urging Supreme Court to overrule decision on voting hours extension

The Republican National Committee appealed the ruling and in July the District 2 Court of Appeals ruled that circuit courts extending voting hours could undermine confidence in elections and that circuit courts don’t even have the authority to do so. The majority opinion came from conservative judges Mark Gundrum and Shelley Grogan. Judge Lisa Neubauer, a liberal, issued a concurring opinion that separately said courts should maintain the authority to extend voting hours. 

“It is critical that we also clarify that, while the legislature is entrusted with setting the time, place, and manner of elections, the applicable polling hours statutes are not immutable: extraordinary or emergency circumstances can support extension of polling hours when these statutes are applied in violation of the electors’ constitutional right to vote,” Neubauer wrote. 

The brief filed Wednesday by Black Leaders Organizing for Communities and Law Forward argued it is “unmistakable” that Wisconsin’s courts have a long history of asserting that a person’s right to vote should win out. 

In the brief, the two organizations point to “150 years of precedent — in at least 12 separate cases” that the Wisconsin Supreme Court has upheld the right to vote when election officials make mistakes. Those precedents include an 1875 case in which the Court found “it would be a fraud on the constitution” to disenfranchise voters by discounting votes due to the errors of election officials. 

“This line of precedent teaches that Wisconsin courts have always intervened, where necessary, to uphold the constitutional right to vote in the face of circumstances beyond the voter’s control,” the brief states. “But the decision below suggests otherwise. It holds that, regardless of what facts might have been adduced, “the circuit court still would not have had equitable authority for its order” extending poll hours. Such a blanket limitation is incompatible with the Wisconsin Constitution’s guarantee of the right to vote. It cannot stand.”

The brief also argues that by ruling that circuit courts can’t extend poll hours due to extenuating circumstances, the appeals court made the state’s court system subordinate to the Legislature and its election statutes — violating the state Constitution’s requirement that the three branches of government be co-equal. 

“The right to vote is fundamental. The Wisconsin Constitution shields it from erosion by legislative enactments and restrictive applications of the law alike,” the brief states. “And Wisconsin courts exist, in part, to effectuate and implement the protections afforded to voters by the Wisconsin Constitution. Yet, the Court of Appeals decision calls this into doubt, and even portends to close the courthouse doors from voters and from organizations who advocate on behalf of voters, on election day in Wisconsin. These substantial legal errors necessitate this Court’s prompt review.”

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