State Court Docket Watch

League of United Latin American Citizens of Iowa v. Pate

December 17, 2020

Docket Watch 2020

By Drew Watkins

In League of United Latin American Citizens of Iowa v. Pate (LULAC v. Pate), the Iowa Supreme Court denied a request to block enforcement of a portion of Iowa’s absentee balloting law which requires county auditors to contact voters who submit defective absentee ballot applications in order to correct the errors.[1]

In June 2020, during the COVID-19 pandemic, the Iowa legislature passed, and the Governor signed into law, House File 2643 (HF 2643), which amended certain provisions of Iowa’s election law.[2] In particular, two sections of HF 2643, sections 123 and 124, altered Iowa Code section 53.2(4) to require that certain identifiable information must be provided by “a registered voter” in order to request an absentee ballot, and that county auditors must contact applicants within twenty-four hours to obtain or correct any deficient required information in an application.[3] Importantly, this law replaced a prior version that permitted county auditors to use “the best means available” to obtain missing information.[4]

Shortly after HF 2643 was enacted, plaintiffs—the League of United Latin American Citizens of Iowa and Majority Forward—brought suit seeking to block enforcement of the provision of HF 2643 that required county auditors to contact voters to cure flawed absentee ballot applications.[5] Alleging that Iowa’s law created an unconstitutional, severe burden on the right to vote, plaintiffs sought to allow county auditors to correct errors and omissions in applications sua sponte, without additional voter contact.[6] The district court denied plaintiffs’ request for a temporary injunction.[7]

In affirming the district court’s decision, the Iowa Supreme Court relied on its decision in Democratic Senatorial Campaign Committee v. Pate (DSCC v. Pate),[8] which upheld the requirement that the applicant provide his or her identifiable information, rather than having such information prefilled on forms mailed by county auditors. The Iowa Supreme Court determined that the “purpose of both requirements is to protect the integrity and security of the absentee ballot system.”[9]

Focusing on whether plaintiffs had demonstrated a likelihood of success on the merits to justify a temporary injunction, the Iowa Supreme Court applied the familiar Anderson-Burdick framework for evaluating statutes impacting state electoral processes.[10] Under this framework, when evaluating a state’s regulation of the voting process, the “rigorousness” of a court’s review “depends upon the extent to which a challenged regulation burdens” constitutional rights.[11] If a restriction is “severe” the regulation must survive strict scrutiny—that is, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’”[12] However, if a regulation imposes “only ‘reasonable, nondiscriminatory restrictions … the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”[13]

Applying the Anderson-Burdick framework, the Iowa Supreme Court determined the burden imposed by the Iowa statute on voters’ constitutional right to vote was not severe. In so doing, the Iowa Supreme Court determined that the challenged provisions in DSCC v. Pate and LULAC v. Pate, were “two sides of the same coin,” both intended to ensure that the voter completes the absentee ballot application “as a means of assuring the application comes from the voter.”[14] In effect, the Iowa Supreme Court determined, plaintiffs were attempting to relieve the responsibility on voters to complete the application (which the court found to be a nonsevere burden in DSCC v. Pate) by allowing the county auditor to correct any errors or omissions.[15] Instead, the law provided “the applicant a second chance to fill out the application correctly.”[16]

Weighing the nonsevere burden imposed by Iowa’s statute against Iowa’s interest in ensuring its elections are free from fraud, the court noted that under Iowa election law, “anyone can turn in an absentee ballot request on behalf of another person.”[17] Accordingly, incorrect and omitted information on an application “raise potential concerns about whether the person completing the form is in fact the registered voter.”[18] As such, “[t]he auditor’s direct communication with the voter furthers the integrity of absentee voting by helping to ‘ensure that the person submitting the request is the actual voter.’”[19]

Although the court recognized that HF 2643 was not passed in response to evidence of actual fraud, the court reasoned that the “legislature need not ignore potential threats, and ‘should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.’”[20] Moreover, the absence of actual fraud had “little significance” given the minimal burden imposed by the law.[21] As the court explained, the Iowa Supreme Court has long recognized the prevention of fraud to be a legitimate interest in regulating absentee ballot requests.[22]

In addition, the court took a dim view of the record established by plaintiffs in support of their case. First, the Iowa Supreme Court found that the plaintiffs had presented no evidence of anyone actually being stopped from voting as a result of the challenged statute.[23] Additionally, in response to plaintiffs’ hypothetical concern that voters could be confused about the status of their ballot request, the court pointed out that the Secretary of State allows voters to track their request online.[24] Also, pointing to public data that showed only a small percentage of absentee ballot requests had yet to be fulfilled, and that over 90% of unprocessed requests originated from two counties which had to recall unlawfully prepopulated ballot request forms, the Iowa Supreme Court questioned the magnitude of plaintiffs’ concerns.[25] In particular, the court noted that the data called into question plaintiffs’ expert witness who had predicted a “tsunami” of requests leading up to the request deadline when, in fact, “the actual data show[ed] daily decreases [sic] in ballot requests … [and] yet-to-be-mailed ballots.”[26]

Finally, the court summarily rejected plaintiffs’ claims that the statute violated the Iowa Constitution’s equal protection clause and procedural due process protections.  The court found that plaintiffs offered no evidence to support an equal protection claim and, in any event, it held that variations among county auditors’ in their cure practices did not, without more, establish an equal protection violation.[27] Additionally, in rejecting the procedural due process claim, the court noted that it largely overlapped with the court’s holding “as it relates to the permissible balance between election security and access to voting.”[28] The court also highlighted additional safeguards in place to protect the right to vote including that the Secretary of State mailed an absentee ballot application to every registered voter, that the ballot request forms contained clear instruction, that county auditors were compelled to contact voters to cure insufficient applications, and that Iowa had extensive early absentee and in-person voting periods in addition to election day voting.[29]

Writing in dissent, Justice Oxley distinguished between what she termed the “front-end process of filling out the form correctly,” and the “back-end process of timely correcting the errors … and getting an absentee ballot back to the voter in time to use it.”[30] In the dissent’s view, “[t]he front-end and back-end provisions impose significantly different burdens on Iowa voters’ ability to actually receive an absentee ballot,” and this difference “tips the scale differently in this case than it did in DSCC v. Pate.”[31] Applying a higher standard in light of a perceived higher burden on the right to vote, the dissent weighed “the evidence in the record” suggesting a likelihood that thousands of Iowa voters will not receive an absentee ballot in time, against the state’s “mere incantation of ‘integrity of the election system’ and ‘voter fraud’” to conclude that plaintiffs have shown a likelihood of success on the merits and are entitled to a temporary injunction.[32] In response, the majority countered that the dissent: (i) confused “the burden on the voter with the potential burden on county auditor;” (ii) mistook the “facts on the ground with the predictions of a party’s retained expert;” and (iii) overstated the distinction between “front-end” and “back-end” processes which are “really one verification method.”[33]

In LULAC v. Pate, the majority reaffirmed the state legislature’s prerogative to enact nonsevere burdens on the voting process in an effort to combat fraud in elections. The court even floated the notion that protecting “public confidence in the electoral process” may suffice to impose “minimally burdensome regulations” on the right to vote.[34] In the aftermath of the 2020 election cycle, and considering that absentee and early voting will likely sustain increased use in future elections, state legislatures will be looking at ways to ensure the integrity of their elections. It is likely that many of the changes state legislatures make to their voting process will be challenged, and the bounds of a state’s regulation of its elections may be tested.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at

[1] League of United Latin Am. Citizens v. Pate (LULAC v. Pate), No. 20-1249, 2020 Iowa Sup. LEXIS 89, at *3-4 (Oct. 21, 2020) (per curiam).

[2] Id. at *4.

[3] Id. at *4-5; see also Iowa Code § 53.2(4)(a) and (b).

[4] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *5.

[5] Id. at *5-6.

[6] Id. at *2.

[7] Id. at *6-7.

[8] Democratic Senatorial Campaign Comm. v. Iowa Sec’y of State (DSCC v. Pate), No. 20-1281, 2020 Iowa Sup. LEXIS 88 (Oct. 14, 2020) (per curiam).

[9] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *3.

[10] Id. at *9.

[11] Burdick v. Takushi, 504 U.S. 428, 434 (1992).

[12] Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).

[13] Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).

[14]  LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *10 (emphasis in original).

[15] Id.

[16] Id.

[17] Id. at *11 (citing Iowa Code § 53.17(1)(a)).

[18] Id.

[19] Id. at *12 (quoting DSCC v. Pate, 2020 Iowa Sup. LEXIS 88, at *8).

[20] Id. at *12-13 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986)).

[21] Id. at *12.

[22] Id. at *13 (citing Luse v. Wray, 254 N.W.2d 324, 329-30 (Iowa 1977) (en banc)).

[23] Id. at *16.

[24] Id. at *17.

[25] Id. at *18-19.

[26] Id. at *19-20.

[27] Id. at *23-24.

[28] Id. at *24.

[29] Id. at *25.

[30] Id. at *27 (Oxley, J., dissenting).

[31] Id. at *28-29.

[32] Id. at *29.

[33] Id. at *20-22.

[34] Id. at *14 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)).

Texas v. Hollins

December 17, 2020

Docket Watch 2020

By Cory Liu

In Texas v. Hollins, the Supreme Court of Texas unanimously enjoined the Harris County Clerk from mailing unsolicited applications for mail-in ballots to every registered voter in the county, regardless of whether the voter was legally eligible to vote by mail.

Texas has more than 16 million registered voters, roughly 2.4 million of whom reside in Harris County.[1] Under Texas law, there are five categories of voters who are eligible to vote by mail: (1) those who expect to be absent from the county during the voting period;[2] (2) those with a disability;[3] (3) those who will be 65 or older on election day;[4] (4) those confined to jail at the time their application is submitted;[5] and (5) crime victims whose addresses are confidential by law.[6]

On August 25, 2020, the official Twitter account of the Harris County Clerk’s Office wrote: “Update: our office will be mailing every registered voter an application to vote by mail.” Two days later, the Texas Secretary of State’s Director of Elections, Keith Ingram, sent a letter to the Harris County Clerk demanding that he “immediately halt” this plan.[7] The letter asserted that the plan was contrary to the Secretary of State’s guidance, would confuse voters about their eligibility to vote by mail, and could clog up the vote-by-mail infrastructure with millions of applications from persons who are not legally eligible to vote by mail.[8] The letter gave the Harris County Clerk until noon on August 31 to announce the retraction of his plan.[9] The Clerk informed Ingram that he would not comply, so the State of Texas went to court.[10]

The question presented to the Supreme Court was whether the district court abused its discretion by denying the State a temporary injunction.[11] In a unanimous per curiam opinion, the Supreme Court held that the State was entitled to a temporary injunction.

To obtain a temporary injunction, the State had to establish: “(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”[12] The Harris County Clerk did not dispute that the State had a cause of action, so the court’s analysis focused on the second and third factors.[13]

The court’s analysis began with a discussion of background principles for interpreting the scope of the Harris County Clerk’s powers. In Texas, political subdivisions such as counties, municipalities, and school districts are creations of the State and may exercise only powers granted to them by state law.[14] As the court explained nearly a century ago in Foster v. City of Waco, a political subdivision has only three categories of powers: (1) those that are granted to it in “express words”; (2) those that are “necessarily or fairly implied in” an express grant of power; and (3) those that are “indispensable” to the accomplishment of its objectives.[15] Subsequent caselaw has “clarified” that powers “necessarily or fairly implied” must also be “indispensable.”[16] Foster also articulated a canon of interpretation requiring ambiguities about a political subdivision’s powers to be resolved against the political subdivision: “Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the [political subdivision], and the power is denied.”[17]

Turning to the question of whether the State had a right to relief, the court observed: “The Election Code does not expressly authorize [the Harris County Clerk] Hollins’ proposed mass mailing, and he does not argue to the contrary. Thus the question is whether the authority is implied.”[18] The Harris County Clerk argued that his duties to “conduct the early voting in each election,”[19] to manage polling locations,[20] and to “make printed forms . . . readily and timely available,[21] authorized his plan to mail unsolicited applications to vote by mail to all voters.

The court rejected these arguments for several reasons. First, the Harris County Clerk’s plan was not “necessary” and “indispensable” to the carrying out of these duties, as evidenced by every other Texas county’s decision to abide by the usual practice of mailing applications to only those who request them.[22] Second, numerous provisions of the Election Code contemplate that applications to vote by mail are to be requested by voters.[23] Third, the Election Code requires the Secretary of State to ensure uniformity throughout the State in the implementation of the election laws.[24] Finally, the Election Code demonstrates a general “expectation that most Texans will vote in person,” with voting by mail being “the exception, rather than the rule,” as evidenced by the strict legal requirements for applying to vote by mail.[25] For these reasons, the court concluded that the Harris County Clerk’s plan was unlawful and that the State had established a probable right to relief.

The court went on to conclude that in a lawsuit by the State to enjoin an unlawful action by a political subdivision, “a showing of likelihood of success on the merits is sufficient to satisfy the irreparable-injury requirement for a temporary injunction.”[26] Because the State satisfied all the requirements for a temporary injunction, the court reversed the court of appeals and directed the entry of a temporary injunction prohibiting the Harris County Clerk from mailing unsolicited applications to vote by mail.[27]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Texas v. Hollins, No. 20-0729, slip. op. at 3 (Tex. Oct. 7, 2020) (per curiam).

[2] Tex. Elec. Code § 82.001.

[3] Id. § 82.002.

[4] Id. § 82.003.

[5] Id. § 82.004.

[6] Id. § 82.007.

[7] Texas v. Hollins, No. 20-0729, slip. op. at 4 (Tex. Oct. 7, 2020) (per curiam).

[8] Id.

[9] Id. at 4–5.

[10] Id. at 5.

[11] Id. at 6.

[12] Id. (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).

[13] Id.

[14] Id. at 6–7.

[15] Id. at 7. (quoting Foster v. City of Waco, 255 S.W. 1104, 1105–06 (Tex. 1923)).

[16] Id. (citing Tri-City Fresh Water Supply Dist. No. 2 of Harris Cty. v. Mann, 142 S.W.2d 945, 947 (Tex. 1940)).

[17] Foster, 255 S.W. at 1106.

[18] Texas v. Hollins, No. 20-0729, slip. op. at 8 (Tex. Oct. 7, 2020) (per curiam).

[19] Tex. Elec. Code § 83.001(a).

[20] Id. § 83.001(c) (giving the clerk the same duties as a presiding election judge, which are set forth in § 32.071, for early voting).

[21] Id. § 1.010(a).

[22] Texas v. Hollins, No. 20-0729, slip. op. at 8–9, 13 (Tex. Oct. 7, 2020) (per curiam).

[23] Id. at 9–11 (citing Tex. Elec. Code §§ 1.010(b)–(c), 84.012, 84.013).

[24] Id. at 11.

[25] Id. at 11–12.

[26] Id. at 14.

[27] Id.

Adams v. McMaster

December 17, 2020

Docket Watch 2020

By Stafford (Mac) J. McQuillin, III


In early March, South Carolina’s Governor, Henry McMaster, issued a State of Emergency following the President’s national emergency declaration due to the public health risks posed by the coronavirus. By the end of March, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which appropriated $30.75 billion to the Education Stabilization Fund, was passed by Congress and signed by the President.[1] One of the provisions in the Act ordered the Secretary of Education to allocate money to the Governor’s Emergency Education Relief (“GEER”) Fund.[2] The Governor applied for a GEER Fund grant, and South Carolina was awarded $48,467,924 from the Department of Education.[3] The Governor later announced the creation of the Safe Access to Flexible Education (“SAFE”) Grants Program, which used $32,000,000 of the CARES award “to provide one-time, need-based grants of up to $6,500 per student to cover the cost of tuition for eligible students to attend participating private or independent schools in South Carolina for the 2020-2021 academic year.”[4] Following the initiation of the program, public educators challenged the program as violating Article XI, Section 4 of the South Carolina Constitution, which prohibits public funding of private schools.[5] In early October of this year, the South Carolina Supreme Court issued an opinion addressing these claims in Adams v. McMaster.


The first issue considered by the court was whether petitioners—a group of public school teachers—had standing to sue. The Governor moved to dismiss the petitioners’ claims because they lacked standing. Specifically, the Governor asserted that petitioners failed to identify a statute that would give them standing, and he argued they lacked constitutional standing because they could not demonstrate an injury-in-fact. Petitioners claimed they had standing under the public importance exception, which does not require a showing of a concrete or particularized injury. The court found that petitioners established public importance standing because of the nature of the case. The court reasoned, “[t]he COVID-19 pandemic that has plagued our State in recent months has posed unprecedented challenges in every area of life and severely disrupted essential governmental operations.”[6]

Constitutionality under Article XI, Section 4

The next issue before the court was whether the Governor’s use of GEER funds for the SAFE Grants Program violated Article XI, Section 4 of the South Carolina Constitution because it allocated public funds to the direct benefit of private schools. Pursuant to Article XI, Section 4, “[n]o money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”[7]

a. Public Funds

The court first looked to whether the GEER Funds constituted “public funds” within the meaning of the constitutional provision. Petitioners argued that since the state code required the money to be deposited in the state treasury, this indicated that the GEER Funds were “public funds.”[8] Additionally, petitioners argued the funds were not passively flowing through the state, but that the state—through the Governor—was actively using the funds for the purpose of funding the SAFE program.[9] The court agreed with this rationale and found that “when the GEER funds are received in the State Treasury and distributed through it, the funds are converted into ‘public funds’ within the meaning of Article XI, Section 4.”[10]

b. Direct Benefit

The most controversial component of the constitutional issue before the court was whether the GEER Funds issued to benefit students who chose to attend private schools directly benefitted the private institution. Petitioners claimed the Governor’s allocation of the GEER funds to create grants for students to attend private schools violated the Constitution’s prohibition on using public funds for the “direct benefit” of a “private educational institution.”[11] The Governor claimed the SAFE Grants Program did not benefit participating private schools but instead, provided a direct benefit to the student recipient and his or her family. The Governor argued that Article XI, Section 4 did not prohibit this sort of benefit and that it was, in fact, amended in 1972 specifically to remove a prohibition on indirect financial aid.[12] The Governor’s position was reiterated in several amicus briefs, including those submitted by the American Center for Law and Justice (ACLJ) and the Institute for Justice, which emphasized that the students were the ones who directly benefitted from the funds, not the schools.[13] The court rejected the Governor’s argument based on the fact that the SAFE grants were not transferred directly to the student, but instead were transferred from the state treasury to the selected school. Further, it explained that the direct payment to private schools was contrary to the framers’ intention not to grant public funds “outrightly” to such institutions.[14]

Lastly, the Governor claimed the CARES Act granted him absolute discretion in using the GEER funds such that the federal law preempts the state constitutional provision under the Supremacy Clause. In its amicus brief, the ACLJ supported this position and argued that “[the Governor’s] actions were precisely within the intent of Congress in passing the CARES Act.”[15] The language establishing the GEER Fund provides that the funds may be available to an “education related entity within the State that the Governor deems essential for carrying out emergency educational services to students.”[16] The Governor claimed this language illustrated the intent of Congress to grant him broad discretion in distributing the funds.[17]

However, the court held that “there is no clear congressional intent in the education provisions of the CARES Act to allow the Governor to allocate the GEER funds in his discretion in contravention of our State Constitution.” [18] “If that were the case, Congress certainly understood how to make such intention clear . . . .”[19] Accordingly, the court found the Governor’s SAFE Grants Program to be in violation of Article XI, Section 4 of the state’s constitution.[20]


The Governor’s use of GEER funds for the SAFE Grants Program was ultimately deemed to be in violation of the South Carolina constitution. The South Carolina Supreme Court found that despite giving students the ability to choose which private school they wished to attend, the schools were being directly benefited because the funds were transferred from the state treasury directly to the private institution. Finally, the court held that Congress did not intend to allow Governor McMaster to distribute GEER funds at his discretion in contravention of the state constitution.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Pub. L. No. 116-136, 134 Stat. 281 (2020).

[2] See id. at 564.

[3] Adams v. McMaster, No. 2020-001069, 2020 WL 5939936, at 2 (S.C. 2020).

[4] Id.

[5] S.C. Const. art. XI, § 4.

[6] Adams, 2020 WL 5939936, at 3.

[7] S.C. Const. art. XI, § 4.

[8] Adams, 2020 WL 5939936, at 3.

[9] Id.

[10] Id. at 4.

[11] Id.

[12] Adams, 2020 WL 5939936, at 4.

[13] See Brief for the American Center for Law & Justice as Amicus Curiae, at 1, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020); Brief for the Institute for Justice as Amicus Curiae, at 6, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020).

[14] Adams, 2020 WL 5939936, at 5.

[15] Brief for the ACLJ as Amicus Curiae, supra note 13, at 3, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020).

[16] Pub. L. No. 116-136, 134 Stat. 281 (2020).

[17] Adams, 2020 WL 5939936, at 5.

[18] Id.

[19] Id.

[20] Id.

In Re Individuals in Custody of the State of Hawai’i

December 17, 2020

Docket Watch 2020

By Jeremiah Mosteller

As COVID-19 spread across our country, many jurisdictions struggled with how to protect those in our prisons and jails. Many jurisdictions responded by, among other things, seeking to reduce the number of people entering the system while also finding ways to safely release more individuals into the community.[1] Nevertheless, there has been litigation arguing that these efforts have not been extensive enough, and judges have weighed in about how we should protect those who are medically vulnerable or at high risk of contracting COVID-19 in our prisons and jails.[2]

One petition, filed by the Hawaii Office of the Public Defender, asked the state’s supreme court to order additional action by the Hawaii Department of Public Safety and the Hawaii Paroling Authority in response to the risk of COVID-19.[3] This petition sought expedited release for those incarcerated for any nonviolent offense without individualized hearings, a temporary suspension of cash bail, and the release through parole of individuals who are over age 65, pregnant, or detained for a technical violation of parole.[4] The Department of Public Safety, Paroling Authority, and four county prosecutors all filed answers stating significant objections to those requests and suggesting alternative courses of action.[5]

Supreme Court Order

The Hawaii Supreme Court ordered a variety of temporary policy changes across the Aloha State’s justice system, reasoning that the court must balance the interests of public health and public safety. These changes applied to any individual who was not charged with or convicted of a list of offenses including homicide, assault, kidnapping, sexual offenses, child abuse, burglary, and violating a quarantine requirement.[6]

The changes included:

  1. Suspending intermittent jail sentences and discouraging courts from imposing new intermittent jail sentences.
  2. Releasing anyone arrested or detained solely for misdemeanor offenses.
  3. Barring all courts from imposing bail for misdemeanor offenses.
  4. Discouraging courts from imposing bail for defendants charged with a felony not on the exclusion list and encouraging the release of such defendants to home confinement or electronic monitoring.
  5. Discouraging the detention of persons who violate their probation terms unless they pose “a significant risk to public health or safety.”
  6. Clarifying that individuals incarcerated in state prisons who test positive for COVID-19 can be released without taking another test if they meet CDC contagion guidelines.

These actions are not unusual by the standard of temporary policy changes adopted by many courts, prosecutors, law enforcement agencies, and corrections departments in response to COVID-19.

The Hawaii Supreme Court issued a second order a few days after the first, rejecting a motion from the Office of the Public Defender to preemptively issue an order to compel compliance. The court found that this motion was not “sufficiently supported” and “not within the scope of the relief previously ordered.”[7] These two orders superseded a variety of other orders issued by the Hawaii Supreme Court during the preceding weeks.[8]

Concurring Opinion

Justice Sabrina McKenna’s concurring opinion raises concerns about the inclusion of “violation of interstate or intrastate travel quarantine requirements” in the list of excluded crimes.[9] She notes that the majority’s order allows the incarceration of those who violate quarantine procedures.[10] But unlike the other crimes in the exclusion list, violations of quarantine requirements are not the violation of a criminal statute. Rather, they are violations of executive orders authorized by Hawaii’s emergency management statutes.[11]

These statutes delegate extensive powers to the governor when the state is facing “disasters or emergencies of unprecedented size and destructiveness.”[12] They provide the governor with the sole power to declare the existence of an emergency and then adopt rules that “have the force and effect of law,” including a quarantine requirement for people exposed to an infectious disease.[13] These statutes allow criminal sanctions for violations of quarantine requirements, but they neither include nor require a mens rea standard, and they only provide minimal requirements for how the public should be informed of these new rules.[14] This could present serious overcriminalization and due process problems because under the order, a person could be incarcerated without any actual knowledge of the state’s current quarantine requirements.

Commentators across the political spectrum have expressed concern that government responses to COVID-19 might rely too much on the heavy hand of criminal sanctions, exacerbating preexisting overcriminalization problems.[15] Local law enforcement has already used the Hawaii Supreme Court order to jail at least one person.[16]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] See e.g. Dave Minsky, Sheriff has booked, released nearly half of those arrested since coronavirus emergency order, Santa Maria Times (Oct. 28, 2020),; 646 more Kentucky inmates released from prison to prevent COVID-19 spread, WLKY (Aug. 25, 2020),; Jordan Rubin, Will Pandemic Be ‘Tipping Point’ For Justice Reform?, The Crime Report (June 4, 2020),; Xerxes Wilson, Why Delaware Arrests Have Plummeted During the Pandemic, U.S. News and World Report (May 2, 2020),; James Mayse, Arrests have declined dramatically due to effort to reduce COVID-19 exposure, Messenger-Inquirer (Apr. 17, 2020),; Kenneth Lipp, Jail inmate roster halved, News Times (Apr. 16, 2020),; Heather Walker, Coronavirus prompts prisons to parole inmates more quickly, WOOD TV (Apr. 14, 2020),; James Baron, Some non-violent inmates released from area jails amidst coronavirus pandemic, The Free Lance-Star (Mar. 28, 2020),; Memorandum from Attorney General William Barr to Director of Bureau of Prisons (Mar. 26, 2020), available at; Jody Godoy & Stewart Bishop, Federal Prisons Can Send More Inmates Home. Will They?, Law 360 (Mar. 26, 2020),; Kerri O’Brien, Area jails releasing inmates to prevent COVID-19 outbreak behind bars, ABC 8 News (Marc. 23, 2020),

[2] See, e.g.,United States v. Zukerman, No. 16 Cr. 194 (AT) (S.D.N.Y. Apr. 3, 2020); United States v. Ramos, 450 F. Supp. 3d 63 (D. Mass. Mar. 26, 2020); Burton Bentley II, The Growing Litigation Battle Over COVID-19 in the Nation’s Prisons and Jails, (Aug. 25, 2020),; Matthew Santoni, Inmates Say Pittsburgh Jail Not Following COVID-19 Guidance, Law360 (Apr. 9, 2020),; ACLU Sues Oakdale Federal Prison For Release Of Those Most At Risk From Covid-19, ACLU (Apr. 6, 2020),

[3] Petition for Extraordinary Writ Pursuant to H.R.S. §§ 602-4, 602-5(5), and 602-5(6) and/or For Writ of Mandamus, In the Matter of Individuals in Custody of the State of Hawai‘i, No. SCPW-20-0000509 (Haw. Aug. 12, 2020) [Hereinafter “Petition”]; See also John Burnett, Surge in COVID-19 cases spurs petition from Office of Public Defender seeking the release of some inmates, Hawaii Tribune-Herald (Aug. 14, 2020),

[4] Petition supra note 3 at 14-16.

[5] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants, 2 (Haw. Aug. 27, 2020), available at

[6] Id at 3-5.

[7] Order Denying Petitioner’s Motion to Compel Compliance with this Court’s Orders, 2 (Haw. Sep. 1, 2020), available at

[8] Order Granting in Part and Denying in Part Motion for Clarification and/or Reconsideration (Haw. Aug 26, 2020), available at;Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants at the Maui Community Correctional Center, the Hawai‘i Community Correctional Center, and the Kaua‘i Community Correctional Center (Haw. Aug. 24, 2020), available at;Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 19, 2020), available at; Amended Order Re: Felony Defendants (Haw. Aug. 18, 2020), available at; Amended Order Re: Petty Misdemeanor and Misdemeanor Defendants (Haw. Aug. 17, 2020), available at; Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 14, 2020), available at; Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 13, 2020), available at

[9] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants (Haw. Aug. 27, 2020) (McKenna, J., concurring and dissenting), available at

[10] Id.

[11] Haw. Rev. Stat. § 127A-1-32 (2020).

[12] Haw. Rev. Stat. § 127A-1; 127A-12; 127A-13; 127A-14; 127A-15; 127A-25 (2020).

[13] Haw. Rev. Stat. § 127A-13; 127A-14; 127A-25 (2020).

[14] Haw. Rev. Stat. § 127A-15 (2020).

[15] Timothy Head, How the coronavirus is revealing America’s over criminalization problem, The Hill (June 1, 2020),; National Association of Criminal Defense Lawyers, NACDL Supplemental Statement of Principles and Further Call to Action Concerning COVID-19 and America’s Criminal Justice System (May 11, 2020),; Betsey Pearl, et al., The Enforcement of COVID-19 Stay-at-Home Orders, Center for American Progress (Apr. 2, 2020),

[16] Katie Dowd, San Francisco woman jailed for allegedly violating Hawaii COVID-19 rules, SFGate (Nov. 18, 2020),

State v. Harris

December 17, 2020

Docket Watch 2020

By Robert Alt

When does uncertainty regarding enforcement standards constitute an impermissible delegation of legislative authority such that a criminal law should be declared unconstitutionally vague? The Kansas Supreme Court addressed this important question in answering whether a small pocketknife meets the statutory definition of a prohibited knife in State v. Harris.[1]

Kansas law makes it a crime for a convicted felon to possess a “knife.” K.S.A. 2019 Supp. 21-6304 defines a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” In State v. Harris, the Kansas Supreme Court considered whether the statute’s catch-all clause—“or any other dangerous or deadly cutting instrument of like character”—was impermissibly and unconstitutionally vague. The Kansas high court’s July 2020 decision held that it is.

Christopher Harris, a convicted felon, brandished a pocketknife with a 3½ inch serrated blade during an altercation in Wichita. Kansas charged him with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a felon. At trial, Harris was acquitted of the first two charges, but the jury convicted him of the third.

Harris appealed on two grounds: first, that the law’s definition of a knife was unconstitutionally vague both facially and as applied to his case; and second, that the trial court erred in preventing Harris from introducing evidence that his parole officer told him that he could legally possess his serrated pocketknife. The appellate court rejected Harris’s constitutional challenge, holding that the statute was not “so vague that it [did not warn] people of ordinary intelligence of the prohibited conduct or that the statute is susceptible to arbitrary and discriminatory enforcement.”[2] The appellate court, however, reversed Harris’s conviction and remanded the case for a new trial after finding “a reasonable probability that the outcome of the trial would have been different had the court allowed Harris to introduce the parole officer’s testimony and the [Kansas Department of Corrections’] Handbook to the jury.”[3] Harris and Kansas appealed their respective appellate losses to the Kansas Supreme Court.

The Kansas Supreme Court’s majority ruled that the Kansas statute was unconstitutionally vague on its face, and therefore the majority declined to address the evidentiary question presented by the state.[4] Two justices joined Justice Daniel Biles in dissent.

Justice Caleb Stegall, writing for the Harris majority, observed that vagueness challenges raise two concerns: due process and separation of powers. Due process challenges ask whether “the statute fairly put people on notice as to the conduct proscribed? Are the words used common and understandable enough to allow persons of ordinary intelligence to easily grasp their meaning?”[5] The separation of powers concerns arise when the legislature “fails to ‘provide explicit standards’ for enforcement” such that the law “‘threaten[s] to transfer legislative power to’ police, prosecutors, judges, and juries, which leaves ‘them the job of shaping a vague statute’s contours through their enforcement decisions.’”[6] The majority focused on the second concern, and held that the statute’s “or any other dangerous or deadly cutting instrument of like character” clause violated this separation of powers doctrine and presented a “textbook example” of the arbitrary guesswork induced by vague laws because:

. . . [Kansas] enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?[7]

The dissent objected to such hypotheticals, but the majority countered that the “crucial question” was whether the law “invite[s] ‘varying and . . . unpredictable’ enforcement decisions ‘on an ad hoc and subjective basis,’” and that the state’s own inconsistent interpretations answered that question in Harris’s favor.[8] The majority noted that the state’s prosecutors believed that the statute was enforceable against Harris’s possession of the pocketknife, while the Department of Corrections through its Handbook and parole officer believed it was not. Thus, the majority concluded, “the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.”[9]

Justice Biles disagreed that the statute was unconstitutionally vague either facially or as applied to Harris. He argued in dissent that the majority was wrong to frame the challenge only as a facial one, and that “the statutory language does not insert subjective judgment unmoored from the statute’s specifics. Harris’ knife . . . falls well within this statute’s foreseeable bounds.”[10] The majority’s approach, according to Justice Biles, “goes too far” by transforming “the appropriate degree of specificity . . . from a requirement for commonsense adequate protections against arbitrary and discriminatory enforcement to an unbearably exacting requirement that all statutes making specific conduct criminal must be wholly expressed by the Legislature.”[11] Such an exacting standard, argued Justice Biles, plows new legal ground for Kansas.[12]

The dissent, however, would have reversed Harris’s conviction and afforded him a new trial in which to present his “mistake-of-law defense” with the previously excluded evidence that his parole officer and the Department of Corrections Handbook had advised Harris that he could legally possess a pocketknife with a blade shorter than 4 inches.[13]

The Harris decision opens the door for challenges to other statutes that might lack explicit standards for enforcement under principles of non-delegation and void for vagueness.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] State v. Harris, No. 116,515 (Kan. July 17, 2020).

[2] Id. slip op. at 4 (Kan. App. 2018) (unpublished opinion).

[3] Id. at 8.

[4] Id. at 6 (“Because we resolve this case in Harris’ favor on constitutional grounds, we need not reach the evidentiary issue raised by the State’s petition for review.”).

[5] Id. at 8.

[6] Id. (quoting Sessions v. Dimaya, 138 S. Ct. 1204, 1228 (2018) (Gorsuch, J., concurring)).

[7] Id. at 11.

[8] Id. (citations omitted).

[9] Id. at 12.

[10] Id. at 19 (Biles, J., dissenting).

[11] Id. at 23 (Biles, J., dissenting).

[12] Id. at 22 (Biles, J., dissenting).

[13] Id. at 13 (Biles, J., dissenting).

State of New Jersey v. Robert Andrews

December 17, 2020

Docket Watch 2020

By Billy Easley

Can law enforcement compel you to unlock your smartphone to access your texts, phone logs, and other private materials? State and federal courts are all over the place when it comes to this question.[1] In State of New Jersey v. Robert Andrews, New Jersey joined Massachusetts[2] in explicitly allowing police officers to compel defendants to enter their phone passcodes. Law enforcement in both states have a new rule: if police can 1) establish that they know a defendant owns the phone, 2) show that the defendant has the passcode, and 3) state with specificity what data is on the phone that’s relevant to the case, then they can compel an individual to unlock their phone.[3] The United States Court of Appeals for the Third Circuit adopted a similar rule.[4]The Indiana[5] and Pennsylvania[6] state supreme courts have rejected such a rule, for now. The Florida District Courts of Appeals have adopted competing rules.[7] Courts are struggling to answer this question consistently as they consider such difficult questions as how to apply old doctrine to new technology and how to preserve individual privacy. The Supreme Court of New Jersey’s recent decision demonstrates the difficulty in resolving these issues.

In State of New Jersey v. Robert Andrews, the Supreme Court of New Jersey held that the compelled production of an individual’s phone passcode is testimonial evidence under the Fifth Amendment. But the court also determined that the government can require a defendant to produce their passcodes under the Supreme Court’s foregone conclusion exception.

The defendant, Robert Andrews, was indicted for official misconduct, hindering, and obstruction related to a drug dealing investigation. The state already had testimony, phone records, and text messages suggesting that the defendant had been in contact with another individual involved in the scheme. The state secured a warrant that granted access to specific apps on the defendant’s iPhone, including the default Phone application and its messaging counterpart. However, the state could not access the phone’s contents due to Apple’s security protocols. When the trial court granted the state’s motion to compel the defendant to provide his phone’s passcode, the defendant refused and claimed that disclosure violated his Fifth Amendment right against self-incrimination, New Jersey’s analogous statutory right, and New Jersey common law’s broader privacy principles.

The court rejected the state’s argument that phone passcodes are mere numbers and recognized that they have testimonial value. However, testimonial evidence can be exempted from Fifth Amendment protection under the foregone conclusion doctrine if the existence, possession, and authentication of the testimony are already known to the government. Since the state already demonstrated at trial that the phone’s passcode exists, that the defendant owned and operated the smartphone associated with it, and the passcode itself simply authenticates this previously known knowledge, the court found that the foregone conclusion exception applies.[8]

Justice Jaynee LaVecchia dissented, focusing on two points. First, she argued that the majority’s particular application of the doctrine violates the fundamental privacy principles found within the U.S. Constitution and the state’s common law. The dissent preferred a broader conception of privacy than the one the majority adopted. As Justice LaVecchia put it, “the precept that one’s inner thoughts cannot be compelled to be disclosed because they are protected by the Fifth Amendment privilege against self-incrimination is still an accepted United States Supreme Court principle.”[9]

Secondly, the dissent believed it was unwise to expand the foregone conclusion doctrine to digital technologies. “The exception originated in the setting of the government ferreting out already existing, physical documents held by another person,” Justice LaVecchia wrote.[10] “It requires expansion to be used here. Its lineage does not merit its use in the present context of overriding the privilege to keep one’s thoughts and recollections to one’s self and not turn that over to the government for use in easing its investigatory efforts.”[11] Unlike the majority, the dissent saw a sharp distinction between compelling individuals to share specific bank account information—the type of physical documentation commonly seen in the Supreme Court’s limited foregone conclusion jurisprudence—and compelling them to open up access to their smartphones. LaVecchia urged the majority to wait for the U.S. Supreme Court to determine whether the foregone conclusion doctrine should be expanded. 

The Supreme Court will eventually have to resolve both these questions—whether phone passcodes are testimonial evidence and whether the foregone conclusion doctrine applies to them. And a firm rule may not be enough. The Court will also need to provide a proper framework to guide lower courts in analyzing compelled production cases. For instance, in G.A.Q.L. v. State, the Florida District Court of Appeals “reasoned that the evidence sought in a password production case . . . is not the password itself; rather it is the actual files or evidence on the locked phone.”[12] It therefore denied the defendant Fifth Amendment protection. Both the New Jersey Supreme Court and the Third Circuit disagreed with that approach. Instead, they “view the compelled act of production in this case to be that of producing the passcode.”[13] This distinction not only impacts the self-incrimination analysis but also related privacy questions.

It is highly likely that the Supreme Court will be asked to resolve these questions in the next few years. Until then, expect more splintering and confusion in the lower courts on these essential questions regarding privacy, self-incrimination, and modern technology.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] See Eunjoo Seo v. State, 148 N.E.3d 952, 968 (Ind. 2020).

[2] Com. v. Gelfgatt, 468 Mass. 512, 518, 11 N.E.3d 605, 611 (2014).

[3] Id.

[4] United States v. Apple MacPro Computer, 851 F.3d 238, 248 (3d Cir. 2017).

[5] Eunjoo Seo v. State, 148 N.E.3d 952, 962 (Ind. 2020).

[6]Com. v. Davis, 220 A.3d 534, 550 (Pa. 2019).

[7] See State v. Stahl, 206 So. 3d 124, 136 (Fla. Dist. Ct. App. 2016); G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. Dist. Ct. App. 2018).

[8] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).

[9] State v. Andrews, 243 N.J. 447, 489, 234 A.3d 1254, 1280 (2020).

[10] State v. Andrews, 243 N.J. 447, 502, 234 A.3d 1254, 1288 (2020).

[11] Id.

[12] G.A.Q.L. v. State, 257 So. 3d 1058, 1064 (Fla. Dist. Ct. App. 2018).

[13] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).

Midwest Institute of Health, PLLC v. Governor of Michigan

December 17, 2020

Docket Watch 2020

By Thomas J. Rheaume & Gordon J. Kangas

In the wake of Michigan’s first positive tests for the coronavirus, Governor Gretchen Whitmer declared a state of emergency pursuant to two state laws: the Emergency Powers of the Governor Act of 1945 (the EPGA)[1] and the Emergency Management Act of 1976 (the EMA).[2] In the weeks and months that followed, Governor Whitmer exercised her special emergency powers by issuing a number of executive orders imposing, among other things:

  • a requirement that all residents stay home, with limited exceptions;
  • a requirement that all residents wear face coverings in indoor public spaces and when outdoors if unable to consistently maintain a distance of six feet or more from individuals who are not members of their household,
  • a requirement that children wear face coverings while playing sports;
  • a requirement that businesses comply with numerous workplace safeguards;
  • a prohibition on the operation of dozens of industries; and
  • a prohibition on nonessential travel and in-person work not necessary to sustain or protect life.

One such order prohibited healthcare providers from performing “non-essential” surgeries, which led three healthcare providers and a man who wished to have knee surgery to file suit in federal court against the governor, the attorney general, and the director of the Michigan Department of Health and Human Services. The plaintiffs’ case rested, in part, on the claim that the EPGA violates provisions in the Michigan Constitution concerning the separation and delegation of powers.[3] The federal district court recognized that resolving plaintiffs’ claims would require the court to “interpret Michigan statutes that have never before been interpreted by the Michigan Courts” and therefore certified two questions to the Michigan Supreme Court.[4] The questions addressed whether Governor Whitmer had the statutory authority to issue or renew executive orders beyond a certain date, and whether the EPGA or the EMA violated the Michigan Constitution as alleged by plaintiffs. The Michigan Supreme Court unanimously agreed to certify both questions, but the justices varied in how to answer those questions.[5]

Writing for the majority, Justice Stephen J. Markman first addressed the EMA. Unlike the EPGA, the EMA imposes a time limit on the governor’s emergency powers. Once the governor declares the state of emergency, it continues “until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.”[6] If the state of emergency is to continue after that, both houses of the state legislature must approve a request from the governor that specifies the number of additional days.[7] Governor Whitmer initially declared the state of emergency on March 10, 2020, and the Michigan legislature approved an extension until April 30, 2020, but declined to extend it further. All members of the court agreed with Justice Markman that, after that date, the governor lacked authority under the EMA to issue executive orders relating to the coronavirus pandemic.[8] The court unanimously rejected the governor’s argument that she could “redeclare the same state of emergency” to avoid the time limit and rejected the argument that the time limit imposed a legislative veto.[9] Rather, the EMA’s provisions “impose nothing more than a durational limitation on the governor’s authority.”[10]

Justice Markman next addressed plaintiffs’ challenges to the EPGA, concluding at that outset that, contrary to the plaintiffs’ arguments, the EPGA applied to the coronavirus pandemic. Six of the court’s seven members rejected the contentions that an “emergency” under the act must be short-lived, or must be constrained to a local area, or that only certain types of emergencies qualified.[11] The EPGA enables the governor to “proclaim a state of emergency and designate the area involved” and refers to circumstances “when public safety is imperiled.”[12] Justice Markman relied on a dictionary definition to conclude that the “area involved” may “comprise the entire state, or it may comprise some more localized geographical part of the state.”[13] He took the same approach to interpreting “emergency.” Likening an epidemic to a fire that continues to burn, the justice wrote, “an emergency is an emergency for as long as it persists as an emergency.”[14]

Justice Markman further noted that prior cases, though not addressing the EPGA specifically, had treated epidemics as implicating “public safety” and not merely “public health.”[15] “The people of this state, as well as their public officials, deserve to be able to read and to comprehend their own laws,” wrote Justice Markman, and “we are not prepared to rewrite the EPGA or to construe it in an overly narrow or strained manner to avoid rendering it unconstitutional.”[16]

These conclusions led the majority to address the facial constitutionality of the EPGA. The Michigan Constitution includes an express provision regarding the separation of powers:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.[17]

The majority looked to both its own precedent and that of the U.S. Supreme Court to assess the contours of the nondelegation doctrine—i.e., “the settled maxim[] in constitutional law . . . that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.”[18] Citing precedent holding that Michigan’s nondelegation caselaw is similar to that developed in federal courts, Justice Markman explained that the legislative act in question must lay down “an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform[.]”[19] Ultimately, the majority concluded that the EPGA does not provide an intelligible principle because it requires only that the governor’s directives be “reasonable” and “necessary.”[20] Consequently, the majority held the EPGA was facially unconstitutional.

Justice David Viviano agreed with the majority that the EPGA violated the nondelegation doctrine, but he contended that reaching the question was unnecessary. In his view, “public health” and “public safety” are distinct terms of art.[21] Relying on the history and laws that followed the 1918 influenza epidemic, Justice Viviano concluded public health crises are the province of health codes and the legislature did not intend to regulate them with the EPGA.[22]

Chief Justice Bridget McCormack, joined by Justices Richard Bernstein and Megan Cavanagh, took the opposite position. They agreed with the majority that the EPGA does apply to pandemics, but they disagreed that it violated the nondelegation doctrine. Like Justice Markman, Chief Justice McCormack also turned to both state and federal precedent, but she concluded that only a delegation that provided “no standards to guide the decisionmaker’s discretion” would constitute an impermissible delegation.[23] The Chief Justice believed that the “particular standards in the EPGA are as reasonably precise as the statute’s subject matter permits,” and thus constitutionally permissible.

Finally, although Justice Bernstein joined Chief Justice McCormack’s opinion in full, he wrote separately to explain why. In his view, concluding that the EPGA did not violate the separation of powers was “inherently troubling” but consistent with state and federal precedent that has let the nondelegation doctrine lay dormant since the New Deal era.[24] Justice Bernstein explained that he “would leave to the Supreme Court of the United States to decide whether it is now time to revisit the nondelegation doctrine.”[25]

Ultimately, the justices were unanimous that the coronavirus pandemic is an exceptional situation posing exceptional risks. Although the majority held that the EPGA unlawfully delegates legislative power to the executive branch, the court emphasized that its ruling was not the final word on dealing with the health crisis. So long as the proper constitutional roles of each branch of government are respected, there remain “many avenues for the Governor and Legislature to work together to address this challenge and we hope that this will take place.”[26]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Mich. Comp. Laws 10.31 et seq.

[2] Mich. Comp. Laws 30.401 et seq.

[3] See Mich. Const. 1963, art. 3, § 2 (“The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”); Mich. Const. 1963, art. 4, § 1 (“[T]he legislative power of the State of Michigan is vested in a senate and a house of representatives.”).  The complaint and the federal district court referred to these provisions as the “Separation of Powers and Non-Delegation Clauses.” Compl. at 25–26, Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. May 12, 2020); Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414, slip op. at 1 (W.D. Mich. June 16, 2020).

[4] Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. June 16, 2020); see also Mich. Ct. R. 7.308(A)(2)(a) (“When a federal court, another state’s appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court.”).

[5] In re Certified Questions (Midwest Inst. of Health, PLLC v. Governor of Mich.), No. 161492, 2020 WL 5877599, at *4 (Mich. Oct. 2, 2020), available at

[6] Mich. Comp. Laws § 30.403(4).

[7] Id.

[8] In re Certified Question, 2020 WL 5877599, at *24 n.25.

[9] Id. at *7.

[10] Id.

[11] Justice David Viviano would have held that the EPGA does not apply to public health emergencies such as pandemics. Id. at *36 (Viviano, J., concurring in part and dissenting in part).

[12] Mich. Comp. Laws § 10.31(2).

[13] In re Certified Question, 2020 WL 5877599, at *9.

[14] Id.

[15] Id. at *11 (citing Jacobson v. Massachusetts, 197 U.S. 11, 37 (1905) and People ex rel. Hill v. Lansing Bd. of Ed., 224 Mich. 388, 391, 195 N.W. 95 (1923).

[16] Id. at *11–12.

[17] Mich. Const. 1963, art 3, § 2. 

[18] In re Certified Question, 2020 WL 5877599, at *12 (quoting Cooley, Constitutional Limitations 116–17 (1886)).

[19] Id. at *13 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)).

[20] Id. at *18.

[21] Id. at *27 (Viviano, J., concurring in part and dissenting in part).

[22] Id. at *29 (Viviano, J., concurring in part and dissenting in part).

[23] Id. at *42 (McCormack, C.J., concurring in part and dissenting in part).

[24] Id. at *46 (Bernstein, J., concurring in part and dissenting in part).

[25] Id. (citing Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”)).

[26] Id. at *3 n.1 (citing Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting)).

Service Employees International Union, Local 1 v. Vos

December 17, 2020

Docket Watch 2020

By Andrew C. Cook & Corydon James Fish

I. Introduction

In 2018, Wisconsin Governor Scott Walker and Attorney General Brad Schimel were unseated in the midterm elections by their Democratic opponents, while the Republicans in the legislature maintained full control of both the assembly and senate. A month after the 2018 gubernatorial and attorney general elections, the Republican-controlled legislature enacted three bills during an extraordinary session limiting the powers of incoming Democratic Governor Tony Evers and Attorney General Josh Kaul. The bills were signed into law by outgoing Governor Scott Walker just weeks before he left office.

The bills became 2017 Wisconsin Acts 368, 369, and 370. The new laws made numerous changes to Wisconsin’s Administrative Procedure Act[1] as well as laws governing interactions among the legislature, governor, and attorney general.

In response, several labor unions, political interest groups, and individual taxpayers (including the state senate assistant minority leader) filed a series of lawsuits in state and federal courts arguing the laws facially violated the Wisconsin Constitution’s separation of powers. On July 9, 2020, the Wisconsin Supreme Court issued its long-awaited decision. Instead of issuing one decision, the court issued two: the first upholding the majority of the laws limiting the powers of the governor and attorney general, and a second which struck down a portion of the laws that regulating state agency guidance documents.[2]

Justice Brian Hagedorn wrote the majority opinion on all issues except for the Act 369 provisions concerning guidance documents. Justice Hagedorn’s opinion was joined by Chief Justice Patience D. Roggensack, and Justices Annette Ziegler, Rebecca Bradley, and Daniel Kelly.[3] Justice Kelly wrote the majority opinion regarding the guidance document provisions. His opinion was joined by Justices R. Bradley, Ann Walsh Bradley, and Rebecca Dallet. Chief Justice Roggensack authored a separate opinion criticizing the court’s decision on the guidance documents issue. Justice Hagedorn, joined by Justice Ziegler also filed a dissenting opinion. Justice Kelly wrote an entire section in his majority decision addressing the significant criticisms contained in the dissenting opinions.

Given the breadth of the new laws and the court’s decision, this article focuses on those portions of the decision that dealt with the most noteworthy statutes.

II. Summary of Extraordinary Session Laws Limiting the Governor and Attorney General Powers

The 2018 extraordinary session laws were meant to provide the legislature more oversight authority of the governor and attorney general. Below is a summary of the main provisions of the laws that were challenged in court:

  • Suspension of Administrative Rules – Prior to the passage of Act 369, the Joint Committee for Review of Administrative Rules (JCRAR) could suspend an administrative rule for up to a single legislative session. The legislature could then pass a bill to make the suspension permanent. If the legislation was not enacted, then the rule would come back into effect and JCRAR could not suspend it again. Act 369 changed this procedure to allow JCRAR to suspend a rule multiple times prior to legislation being passed.[4] This in effect gave JCRAR the authority to indefinitely strike down a proposed administrative rule rather than requiring the full legislature to vote to strike down the rule.
  • Agency Deference – Act 369 codified the Wisconsin Supreme Court’s ruling in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, which held that Wisconsin courts must not accord any deference to a state agency’s interpretation of law.[5]
  • Guidance Documents – Wisconsin administrative agencies routinely provide plain language explanations of statutes and administrative rules. However, some assert that guidance documents might contain standards or requirements that are found nowhere in statute or rule, essentially creating new law. In Act 369, the legislature defined a “guidance document”[6] and created a series of protections against agency attempts to use guidance documents to avoid rulemaking. These protections include requirements that agencies cite to statutory and regulatory authorities discussed in the document, make these documents publicly available, allow public comment periods, and permit private parties to petition an agency to promulgate a rule instead of issuing a guidance document.[7]
  • Legislative Intervention – Act 369 gave the legislature, through the Joint Committee on Legislative Organization, authority to intervene in any lawsuit challenging the validity of a state statute.[8]
  • Attorney General’s Settlement Authority – Prior to Act 369, the attorney general had the authority to compromise or discontinue any civil action on behalf of the state of Wisconsin, provided the governor approved the action. Act 369 provided the legislature with oversight over both of these functions, requiring legislative, instead of gubernatorial, approval to compromise or discontinue a civil action. Specifically, in order to compromise or discontinue a case, the attorney general must now submit a proposed plan to the Joint Finance Committee for its approval.[9]

Further, the attorney general cannot submit a settlement agreement for approval to the Joint Finance Committee in which the unconstitutionality or invalidity of a state statute is conceded without the approval of the Joint Committee on Legislative Organization.[10]

III. The Court’s Decision – Separation of Powers

The plaintiffs facially challenged[11] the constitutionality of the provisions described above in Acts 369 and 370. They alleged the statutes violated the separation of powers doctrine.

In its opinion, the court explained that when the Wisconsin Constitution was adopted in 1848, government power was divided among three separate branches, each “vested” with a specific core government power.[12] The court noted that “[w]hile separation of powers is easy to understand in theory, it carries with it not-insignificant complications.”[13] The court further explained the Wisconsin Constitution “sometimes takes portions of one kind of power and gives it to another branch.”[14] As a result, determining “where the functions of one branch end and those of another begin” is not always clear.[15]

According to the court, a “separation of powers analysis begins by determining if the power in question is core or shared,” with core powers being those powers that are “conferred to a single branch by the constitution.”[16] If a power is “core,” “no other branch may take it up and use it as its own.”[17] Shared powers, on the other hand, are those that “lie at the intersections of these exclusive constitutional powers.”[18] The three branches of government “may exercise power within the borderlands but no branch may unduly burden or substantially interfere with another branch.”[19] Using this legal framework, the court addressed the various laws passed by the legislature to determine whether they “unduly burdened” or “substantially interfered” with the core powers of executive branch, and thus violated the separation of powers doctrine.

A. Decision Upholding Laws Limiting Governor and Attorney General Powers

1. Legislative Involvement in Litigation

The court addressed the legislature’s authority to involve itself in litigation through both intervention and approval authority over the settling or discontinuing of cases involving either revenues deposited in the treasury or the validity of a statute. The court noted that while the attorney general is an executive officer, and the Wisconsin Department of Justice is an agency created by the legislature residing in the executive branch, the Wisconsin Constitution gives the legislature the authority to proscribe the powers of the attorney general.[20]

The court discussed the history of the legislature carrying out certain powers alongside the attorney general, namely engaging in litigation.[21] The legislature did so in its first ever legislative session in 1848, giving the attorney general the power to represent the state in cases where the state is a party or may have an interest when required by the governor or either house of the legislature.[22] According to the court, the attorney general’s ability to engage in litigation is not always a core executive function because of the legislature’s institutional interest in various types of cases, especially those involving revenue and statutes passed by the legislature.[23] The court determined that these interests were sufficient to defeat the facial challenges regarding legislative intervention and the ability to review settlements and discontinuances of certain cases.

2. Suspension of Administrative Rules

The legislature delegates a portion of its legislative power to administrative agencies by allowing them to make rules. These delegations are subject to procedural constraints contained in Wisconsin’s Administrative Procedure Act. One such constraint is JCRAR’s authority to temporarily suspend a rule a single time, which was created in 1985 and subsequently upheld by the state supreme court in Martinez v. DIHLR.[24]

In upholding the constitutionality of the law empowering JCRAR to suspend a rule multiple times, the court explained that no party raised constitutional concerns with the holding or underlying principles in Martinez, which held that one three-month suspension was constitutionally permissible because of the safeguards put in place and the need for bicameralism and presentment to permanently suspend a rule. Here, the court held that if one three-month suspension is permissible, then surely a second suspension is permissible as well because, like in Martinez, the suspension would be temporary.[25]

3. Agency Deference

The court disposed of the plaintiffs’ challenge to the constitutionality of Act 369’s codification of the court’s holding in Tetra Tech in a few short sentences noting, “[g]iven our own decision that courts should not defer to the legal conclusions of an agency, a statute instructing agencies not to ask for such deference is facially constitutional.”[26]

B. Decision Striking Down Agency Guidance Document Provisions

Justice Kelly, joined by Justices R. Bradley, A. Bradley, and Dallet, wrote the majority opinion striking down most of Act 369’s guidance document provisions as a facially unconstitutional infringement on core executive branch powers.[27]According to the court, the executive branch’s authority to execute the law “encompasses determining what the law requires as well as applying it.”[28] The majority went on to find that guidance documents are not the law and do not have the force or effect of law and that therefore the executive branch has authority to issue guidance documents.

After determining that the creation of guidance documents is an executive power, the court next considered whether creation of guidance documents is a “core” executive power or a power “shared” with the legislature. The court determined it is a core executive power because (1) it is created by executive branch employees with executive branch authority, (2) it requires no legislative authority or personnel involvement, and (3) it does not affect what the law is, create policy or standards, or bind anyone or anything.[29] In other words, a guidance document is simply the executive saying what the law requires prior to executing it.[30]

Chief Justice Roggensack and Justices Hagedorn and Ziegler, in two different dissenting opinions, disagreed that the creation of guidance documents is a core executive power and that they do not, in practice, have the force of law. Chief Justice Roggensack’s dissent argued that while the execution of laws is a core executive power, the power to interpret laws is not, but is instead shared across all three branches of government. Interpretations of law, outside of court proceedings, are a shared constitutional function.[31] The Chief Justice further stated that guidance documents historically have been used by administrative agencies to circumvent rulemaking.[32] She explained that administrative agencies use guidance documents to avoid the procedural guardrails the legislature put on their delegations of legislative power.[33] Additionally, the Chief Justice argued that the legislature has a legitimate interest in providing these safeguards and that “Justice Kelly should not be so quick to dismiss the history that led to the enactment of [Act 369].”[34]

Justice Hagedorn, joined by Justice Zeigler, agreed with the Chief Justice that the creation of guidance documents is a shared power. Justice Hagedorn further argued that the legislature has long regulated the creation of certain executive branch communications on the law and that regulating the manner in which guidance documents are created does not regulate how the executive branch interprets the law but how that interpretation is documented.[35] According to Justice Hagedorn:

The majority’s abstract approach misses what’s actually going on here. The legislature is not invading the executive’s ability to read the law or think about the law when it regulates how agencies officially communicate to the public about what the law is and where in the statutes the law may be found.[36]

Rather than protect the separation of powers, Justice Hagedorn argued, the majority’s opinion undermines it “by removing power the people gave to the legislature through their constitution.”[37]


In SEIU, the Wisconsin Supreme Court continued its trend of upholding laws increasing legislative oversight of administrative agencies and legislative interaction with the executive branch. The court found that the legislature has a legitimate role in conducting and settling litigation that affects its institutional interests, the authority to temporarily suspend administrative rules, and the warrant to forbid judicial deference to agency interpretations. Even in striking down the legislature’s attempt to exert control over the publication of guidance documents, the court held that guidance documents do not have “the force or effect of law,” further reinforcing past decisions that agencies can only create law through rulemaking, a process heavily influenced by the legislature. While several minor contested provisions of the laws were not addressed by the court and remanded to the circuit court, this decision effectively ends the “extraordinary session” litigation that has been before Wisconsin courts for the past two and a half years.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Ch. 227, Wis. Stats.

[2] Service Employees Int’l Union (SEIU) v. Vos, 2020 WI 67 (2020).

[3] Justice Kelly was subsequently defeated in his election and replaced on the bench by Justice Jill Karofsky.

[4] Wis. Stat. § 227.26(2)(im).

[5] Wis. Stat. § 227.10(2)(g) (codifying Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, [citation]).

[6] Wis. Stat. § 227.01(3m).

[7] Wis. Stat. § 227.112.

[8] Wis. Stat. § 165.25(1m).

[9] Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.

[10] Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.

[11] A facial challenge is when a party seeks to strike down a law in its entirety as compared to an as-applied challenge which seeks to strike down a law “as applied to a given party or set of circumstances.” SEIU, 2020 WI at ¶ 4. The threshold for striking down a law in its entirety is high, as a party must show that “every single application of a challenged provision is unconstitutional.” Id.

[12] Id. at ¶ 31. See Wis. Const. art. IV, § 1 (“The legislative power shall be vested in a senate and assembly.”); id. art. V, § 1 (“The executive power shall be vested in a governor.”); id. art. VII, § 2 (“The judicial power of this state shall be vested in a unified court system.”).

[13] SEIU, 2020 WIat ¶ 32.

[14] Id. at ¶ 32.

[15] Id. at ¶ 34.

[16] Id. at ¶ 35.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at ¶¶ 57-62.

[21] Id. at ¶ 63.

[22] Id. at ¶ 65.

[23] Id. at¶¶ 67-71.

[24] Martinez v. DIHLR, 165 Wis. 2d 687, 699-700, 478 N.W.2d 582 (Wis. 1992).

[25] SEIU, 2020 WIat ¶ 82.

[26] Id. at ¶ 84.

[27] Id. at ¶ 88 (The court did not strike down the provisions that defined guidance documents and judicial review of guidance documents. Wis. Stat. §§ 227.01(3m), 227.40.).

[28] Id. at ¶ 99.

[29] Id. at ¶ 105.

[30] Id. at ¶¶ 96-97.

[31] Id. at ¶ 139 (citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶ 140-41, 382 Wis. 2d 496, 914 N.W.2d 21 (Ziegler, J., concurring)).

[32] Id. at ¶¶ 142-43 (citing Andrew C. Cook, Extraordinary Session Laws: New Limits on Governor and Attorney General, 92 Wis. Law. 26, 27 (2019)).

[33] Id. at ¶¶ 144-47.

[34] Id. at ¶ 145.

[35] Id. at ¶¶ 201-06.

[36] Id. at ¶ 204.

[37] Id. at ¶ 212.

Foster v. Commissioner of Correction

December 17, 2020

Docket Watch 2020

By Kymberlee Stapleton

Correctional facilities across the United States house and employ large numbers of people. Keeping these people safe during the COVID-19 pandemic has been a tremendous challenge. In April 2020, several incarcerated inmates and individuals civilly committed for substance abuse treatment filed a class action lawsuit in a Massachusetts court that alleged their conditions of confinement posed an unreasonable risk of COVID-19 exposure.[1] They claimed that the failure to reduce the number of confined individuals to allow for greater social distancing amounted to cruel and unusual punishment and violated their substantive due process rights.[2]

In Foster v. Commissioner of Correction (“Foster I), the Supreme Judicial Court of Massachusetts addressed the plaintiffs’ motion for a preliminary injunction that sought to require the Department of Correction (“DOC”) to take immediate steps to reduce the number of detained individuals while the suit proceeded to trial. To prevail, the plaintiffs would have to show a likelihood of success on the merits of their underlying claims.

The court first examined class certification and narrowed the plaintiffs into two smaller subgroups: (1) medically vulnerable inmates, and (2) individuals civilly committed for substance abuse treatment.[3] The court then addressed the constitutional claims of the two subclasses separately because only individuals being “punished” can assert claims of cruel and unusual punishment under the Eighth Amendment. Because the civilly committed individuals were not being punished, their claims were limited to substantive due process violations.[4]

Eighth Amendment Claims

The medically vulnerable inmate plaintiffs argued that their conditions of confinement and the failure to expedite the release of inmates violated their constitutional rights.[5] To succeed on this claim, the plaintiffs were required to satisfy a two-part test. The first element required an objective showing that their living conditions “pose a ‘substantial risk of serious harm.’”[6] The second element was subjective, requiring a showing that “prison officials acted or failed to act with deliberate indifference.”[7] The court found that the plaintiffs met the first element, but failed the second element.

Almost immediately after the governor declared a state of emergency in Massachusetts, the DOC implemented policies that included social distancing in all of its facilities, the elimination of almost all group programming and recreation time, increased sanitation, distribution of cleaning supplies and masks to all inmates and staff, lockdowns prohibiting access into the facilities by visitors, a mandatory two week quarantine for all new inmates, daily health screening for all staff, and widespread testing for all staff and inmates.[8]

The court acknowledged that despite these policies, it may not be feasible to maintain sufficient physical distancing in all instances, and thus the increased risk of contracting COVID-19 while incarcerated poses an objectively substantial health risk.[9] However, because prison officials took significant steps to reduce exposure to and protect inmates from the spread of COVID-19, it was unlikely the plaintiffs would be able to establish that the DOC acted with subjective “deliberate indifference.”[10]

Substantive Due Process Claims

In Massachusetts, individuals can be civilly committed to a secure facility for substance abuse treatment if they pose a danger to themselves or others.[11]  The purpose of inpatient substance abuse treatment is “to promote the health and safety of the individual committed[.]”[12] The second subclass of plaintiffs argued that civilly committing them during a pandemic violates their substantive due process rights under the federal and state constitutions. 

For such a claim to pass muster under the federal Constitution, a “reasonable relation” must exist between the “‘conditions and duration of confinement’” and “‘the purpose for which persons are committed.’”[13] Under this lenient standard, the government must simply show that confining an individual for treatment is reasonably related to the public safety needs of the state.[14] The state constitution, however, mandates a strict level of judicial review. The statute must be “‘narrowly tailored to further a legitimate and compelling governmental interest and [be] the least restrictive means available to vindicate that interest.’”[15]

The court found that the need for substance abuse treatment has not diminished during the pandemic. It then concluded that on the record before it, the civil commitment statute satisfied both levels of scrutiny and that the plaintiffs did not show a likelihood of success on the merits of their substantive due process claims.

However, the court went on to use its supervisory authority to prohibit lower court judges from civilly committing individuals during the state of emergency absent a written or oral finding on the record that the danger of an individual’s substance abuse disorder outweighs the risk of COVID-19 exposure and transmission. Committed individuals were given the ability to seek reconsideration of their commitment orders under this mandate.[16]

The court denied the motion for preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. Chief Justice Ralph D. Gants wrote a concurring opinion, joined by two other justices, to emphasize that the DOC is doing its best to manage the COVID-19 crisis under the circumstances. Justice Gants wrote separately to highlight three points. First, he said more can be done to reduce the prison population, such as releasing inmates on home confinement, increasing parole release, and providing more opportunities for inmates to earn good time credit.[17] Second, he emphasized the need to plan beyond the current lockdown policies that, if left unaltered, could become Eighth Amendment violations if continued long term.[18] Finally, he urged the DOC to prepare for a “second wave.”[19]

The same day it decided Foster I, the court also decided two motions to dismiss filed by the governor and the chair of the parole board in Foster v. Commissioner of Correction (Foster II).[20] The plaintiffs alleged that both “fail[ed] to implement an effective mechanism to reduce the incarcerated population to a safe level. . .”[21] 

In regard to the governor, the plaintiffs claimed he was liable because he refused to utilize his executive authority to pardon and grant clemency, and they sought to compel him to use that plenary emergency power to order a reduction in the prison population. The court proclaimed that it “should tread lightly in telling any Governor when or how to exercise his or her powers.”[22] The court then found that the “failure to act” claims against the governor were not actionable and granted his motion to dismiss.

In regard to the parole board, the plaintiffs argued that the board made little effort to increase the use of medical parole or to modify the criteria for release to better streamline the parole process in light of the virus. The court concluded that the plaintiffs alleged facts that were sufficient to state a claim if proven and denied the parole board’s motion.[23]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1]Foster v. Comm’r of Correction, 146 N.E.3d 372, 378 (Mass. 2020).


[3]Id. at 388.

[4]Id. at 390.


[6]Id. at 391 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

[7]Id. at 390-91.

[8]Id. at 394.

[9]Id. at 391-92.

[10]Id. at 395-96.

[11]Id. at 397-98; Mass. Gen. Laws ch. 123, § 35.

[12]Foster, 146 N.E.3d at 398.

[13]Id. at 397 (quoting Seling v. Young, 531 U.S. 250, 265 (2001)).

[14]Id. at 398.

[15]Id. (quoting Commonwealth v. Weston W., 455 Mass. 24, 35, 913 N.E.3d 832 (2009)).

[16]Id. at 401.

[17]Id. at 404 (Gants, J., concurring).

[18]Id. at 407-08.

[19]Id. at 408.

[20]Foster v. Comm’r of Correction, 146 N.E.3d 408 (Mass. 2020).

[21]Id. at 410.

[22]Id. at 412.

[23]Id. at 414.

Hawkins v. Wisconsin Elections Commission

December 17, 2020

Docket Watch 2020

By Andrew C. Cook

Wisconsin was one of the few swing states in 2016 and was considered a key battleground state again in 2020. In 2016, President Donald Trump carried Wisconsin by 22,748 votes. With such a razor-thin margin separating the top two presidential candidates, in 2020 the major parties were concerned about which candidates would qualify to appear on the general election ballot. Green Party candidate Jill Stein received 31,006 votes in Wisconsin in 2016.

On August 7, 2020, Allen Arnsten filed a complaint with the Wisconsin Elections Commission (Commission) challenging numerous signatures submitted by the Green Party presidential and vice presidential candidates. Specifically, the challenger alleged that the Green Party nominee for vice president, Angela Walker, listed an incorrect home address on her nomination forms that included 1,834 signatures filed with the Commission. Wisconsin law requires 2,000 valid signatures for nominees for president and vice president to be certified and placed on the ballot. The Green Party candidates filed a total of 3,966 signatures.

The Commission, a six-member board that includes three Democratic and three Republican commissioners, deadlocked 3-3 on whether the signatures were invalid, with the Democrats voting to strike the signatures and the Republicans approving the signatures.[1] The Republican commissioners noted during the hearing that Ms. Walker voluntarily notified the Commission of her recent move and that she sought guidance from the Commission on how to proceed. The Commission staff responded to Ms. Walker as follows:

If Ms. Walker has previously filed a declaration of candidacy [] with the Wisconsin Elections Commission, it can be amended to reflect the address change. Technically speaking, however, federal candidates are not required to list an address of their declaration of candidacy. So, if Ms. Walker chooses to list her address on her declaration of candidacy, she can include the most current one.[2]

On August 20, the Commission ultimately voted on a motion that 1) certified 1,789 signatures for the Green Party candidates and 2) stated that the Commission was deadlocked on the remaining 1,834 signatures that included Ms. Walker’s previous address. Based on this motion, the Commission staff notified the Green Party candidates that they were not certified and ordered that ballots be printed without the Green Party candidates appearing on the 2020 general election ballot.[3]

On September 3, 2020, two days after the Commission voted to confirm the presidential and vice presidential candidates that would appear on the ballot, the Green Party candidates filed a petition for leave to commence an original action[4] with the Wisconsin Supreme Court seeking to overturn the Commission’s actions.

Wisconsin Supreme Court Decision

In a 4-3 order issued on September 14, 2020, the Wisconsin Supreme Court upheld the Commission’s decision to exclude the Green Party candidates from appearing on the ballot. The per curiam majority opinion was not signed by any of the justices, but since Chief Justice Patience Roggensack and Justices Annette Ziegler and Rebecca Bradley wrote dissenting opinions, it is clear that Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Brian Hagedorn were in the majority.

The majority’s decision to “exercise [its] discretion to deny the petition for leave to commence an original action” turned on its determination that the Green Party waited too long to file its lawsuit.[5] According to the majority, “[a]lthough we do not render any decision on whether the respondents have proven that the doctrine of laches applies,” the Green Party candidates “delayed in seeking relief in a situation with very short deadlines,” and therefore it was “too late to grant petitioners any form of relief that would be feasible and that would not cause confusion and undue damage to Wisconsin electors.”[6] The majority’s order did not address whether the challenged signatures were lawful or whether the Commission properly excluded the Green Party candidates.

Dissenting Opinions

In dissenting opinions, Chief Justice Roggensack and Justices Ziegler and Rebecca Bradley rebuked the majority’s decision. Chief Justice Roggensack opined that the “people of Wisconsin have the right to know the acts of the Commission that took the right of ballot access away from candidates of a small independent party” which “followed all the requirements of Wisconsin law necessary for ballot access.”[7]

Justice Ziegler in her dissenting opinion criticized the Commission for failing to follow Wisconsin law and procedures. According to Justice Ziegler, under Wisconsin law, when a motion of the Commission deadlocks 3-3, the motion fails and no action should be taken.[8] On multiple votes, the three Democratic commissioners voted to exclude 1,824 signatures submitted by the Green Party candidates, while the three Republican commissioners voted to approve the signatures. Therefore, the 1,824 signatures should have been approved, as the Commission had no authority to remove the signatures absent “an affirmative vote of at least two-thirds of the members.”[9] Had the 1,824 signatures been included, Justice Ziegler continued, the Green Party candidates would have easily met the 2,000 signature threshold and been placed on the ballot. And “[n]ot only did the Green Party candidates have a right to appear on the ballot, but the Commission had a statutory obligation to place them on the ballot, which the Commission violated.”[10] The dissent further argued that the “Commission did not just fail the Green Party candidates . . . it failed the people of Wisconsin.”[11]

Finally, Justice Ziegler’s dissent took aim at the majority’s “too late” analysis, noting that the majority did not apply a legal analysis of the laches doctrine, which was argued as a defense by the Commission. According to the dissent, the reason the majority did not address laches is that the Commission would have been unable to meet the three elements of the defense needed to bar a claim under Wisconsin law: 1) a party unreasonably delays in bringing a claim; 2) a second party lacks knowledge that the first party would raise that claim; and 3) the second party is prejudiced by the delay.[12] Justice Ziegler’s opinion explained that, as to the first element, the Green Party filed a lawsuit with the Wisconsin Supreme Court two days after the Commission denied the presidential candidates access to the ballot.[13] As to the second element regarding the Commission’s knowledge of a potential lawsuit, the Green Party specifically announced it planned to file a lawsuit at the Commission hearing.[14] Additionally, during the public hearing, the three Republican commissioners explained they crafted the final motion in order to narrow the issues for a court when the Green Party files its lawsuit.[15] Finally, there was plenty of time to print and issue the ballots with the Green Party candidates well in advance of the election.[16]

In a third dissenting opinion, Justice Rebecca Bradley stated that in “dodging its responsibility to uphold the rule of law, the majority ratifies a grave threat to our republic, suppresses the votes of Wisconsin citizens, irreparably impairs the integrity of Wisconsin’s elections, and undermines the confidence of American citizens in the outcome of a presidential election.”[17]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Hawkins v. Wisconsin Elections Commission, et al., 2020 WI 75 (Sept. 14, 2020).

[2] Hawkins, 2020 WI at ¶ 37.

[3] Id. at ¶ 2.

[4] Emergency Petition, Hawkins v. Wisconsin Elections Commission, et al., 393 Wis.2d 629 (2020), available at

[5] Hawkins, 2020 WI at ¶ 5.

[6] Id.

[7] Id. at ¶ 14.

[8] Wis. Stat. § 5.05(1e) (“Any action by the commission … requires the affirmative vote of at least two-thirds of the members.”).

[9] Hawkins, 2020 WIat ¶ 40. 

[10] Id. ¶ 48.

[11] Id.

[12] Id. at ¶ 55.

[13] Id. at ¶ 58.

[14] Id. at ¶ 65.

[15] Id. at ¶ 41.

[16] Id. at ¶ 34 (“Both state and federal law allow for corrections to be made and dates to be adjusted when ballots are improper or the law is not followed . . . . The record before the court demonstrates that the errors can be corrected, yet our court stands silent.”).

[17] Id. at ¶ 86.