By Rick Esenberg

Gov. Walker signed three bills into law on Friday that were passed during the extraordinary session, and on Monday, a liberal group requested that a Madison federal court judge overturn the new law that they claim “limits” early voting in violation of the judge’s previous order relating to a different law. The motion they filed is without merit. Those who challenged the previous statute claimed that it is unlawful because it limited both the days of the week and the hours of voting in a way that allegedly hurt urban voters. Those same groups now claim that the new law is the same as the previous law, but it is not.

While we at the Wisconsin Institute for Law & Liberty (WILL) disagree that the previous statute was unlawful, if those original limitations were legal problems, then the expansion of early voting that the legislature passed in December, fixes those problems by allowing municipalities to determine any hours of the day they wish to be open for voting and allows for voting on Saturdays and Sundays.

Moreover, the recent challenge to the new law raises a new set of problems. Rather than challenge the new law on its own merits, the liberal groups are asking the judge in Madison to determine that his rulings back in 2016 on the previous statute somehow apply to the new statute. This is extremely problematic for three different reasons.

First, it is blatant judge shopping. Because they realize that the new statute is substantially different than the previous one, the plaintiffs want to get the case in front of a judge that they believe will be friendly to them based on his rulings on a different statute.

Second, the new law expands the days and hours for early voting which the plaintiffs almost completely ignore. Determining whether the new law is valid will require a new trial based on the provisions of the new law and should not be based on the evidence developed in the previous case which dealt with a different law.

Third, the 2016 decision of the Madison federal judge being asked to rule on this is still on appeal to the Seventh Circuit Court of Appeals. Until that appeal is finished, taking the issue to the same judge whose decision is on appeal unduly complicates the matter.

How is it that these liberal groups think they can get away with this? Perhaps it has to do with the media’s misreporting on the changes made to early voting during the extraordinary session. As mentioned above, the legislature did not tighten early voting guidelines in an effort to hurt voter turnout. In fact, they did just the opposite and amended the previous statute to provide more days and hours of early voting.

National papers such as the New York Times, Wall Street Journal and USA Today were not the only ones to miss this. Local papers missed it as well with an article from the Racine Times Dec. 12 stating that “Based on the openly partisan nature of so much of the legislation in the lame-duck session, we feel it can be safely concluded that the Republicans’ decision to limit early voting is based on the presumption that early voting benefits Democrats.”

Whether the liberal groups will be successful in bringing this new challenge on these grounds is yet to be determined. But it also will be important for any judge looking at the case to consider whether their first principles are right. According to Charles Franklin, Director of the Marquette Law School poll, the two counties with the highest percentage of voters who participated in early voting in 2018 were actually Ozaukee and Waukesha counties, two GOP strongholds and not the urban centers of Milwaukee and Madison.

Moreover, Wisconsin is far more generous in regard to early voting than the 12 states, like New York, Rhode Island and Connecticut, which allow no early voting without some sort of excuse. Instead, the new legislation puts Wisconsin somewhere in the middle of what other states do. For the states that have early voting, the number of days on which early voting is allowed range in length from four days to 45 days, with the average length being 19 days. Further, with the most recent changes, Wisconsin will be one of slightly fewer than half of the states that allow early voting on weekends.

It is clear to us that these liberal groups are working on shaky grounds and it is our hope at WILL that the judge takes all of these factors into consideration.