You Make a Difference!

Our mission and operations are funded entirely by Patriots like you! Please support the 2020 Year-End Campaign now.

Hans von Spakovsky / Oct. 20, 2020

7th Circuit Court Stays District Judge's Order and Provides a Civics Lesson on the Proper Role of Judges

What Wisconsin voters — and all of us — need are judges who don't usurp the authority of elected officials.

Editor’s note: This piece was coauthored by Zack Smith.

Many federal district court judges have an expansive view of their authority — which far too often ignores Supreme Court precedent.

Judge William Conley, a federal district court judge who was appointed by President Barack Obama, certainly seems to have an expansive view of his, as made evident by some election-related orders he gave that clearly surpass the appropriate power of a district court judge.

Fortunately for the voters of Wisconsin and their interests in the integrity of the election process, some members of the 7th U.S. Circuit Court of Appeals were having none of it, and stayed all of Conley’s election-related orders on Oct. 8.

As explained by the majority in its “per curiam” (meaning unsigned) opinion, Conley “extended the deadline for online and mail-in [voter] registration from Oct. 14 to Oct. 21, 2020; enjoined for one week (Oct. 22 to Oct. 29) enforcement of the requirement that the clerk mail all ballots, but only for those voters who timely requested an absentee ballot but did not receive one, and authorized online delivery during this time; and extended the deadline for the receipt of mailed ballots from Nov. 3 (Election Day) to Nov. 9, provided that the ballots are postmarked on or before Nov. 3,” among other changes.

After determining that the Wisconsin state Legislature had the authority to intervene to defend the state’s laws against the lawsuit filed by, among others, the Democratic National Committee, the 7th Circuit Court panel addressed the legislators’ two principal arguments in support of a stay:

First, that a federal court should not change the rules so close to an election; [and] second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid.

Two of the three judges on the panel voted to issue a stay, saying, “We agree with both of those arguments.”

But they went further, noting that this wasn’t the first time Conley had ordered changes so close to an election.

He had ordered changes in the lead-up to Wisconsin’s April 2020 primary election, and “the Supreme Court granted a stay (to the extent one had been requested) and observed that the change had come too late.”

The panel made clear that “for many years, the Supreme Court has insisted that federal courts not change electoral rules close to an election date.”

It noted that the justices have “not forbidden all changes close to an election. A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a last-minute event.” This is especially true since Wisconsin has already conducted two elections — one in April and one in August — during the pandemic.

More importantly, though, “The district judge also assumed that the design of adjustments during a pandemic is a judicial task. This is doubtful, as Justice [Brett] Kavanaugh observed in connection with the Supreme Court’s recent stay of another injunction issued close to the upcoming election … The Supreme Court has held that the design of electoral procedures is a legislative task.”

Moreover, said the majority, “The problem that concerned the district judge … was the difficulty that could be encountered by voters who do not plan ahead and wait until the last day that state law allows for certain steps. Yet, as the Supreme Court observed last April in this very case, voters who wait until the last minute face problems with or without a pandemic.”

The 7th Circuit Court emphasized, as had happened before in an election-related case before Conley, that “The Court has consistently stayed orders by which federal judges have used COVID-19 as a reason to displace the decision of the policymaking branches of government.”

The dissenting judge adopted Conley’s same activist and overbroad view of federal judges’ power, stating, hyperbolically, “This is a travesty.”

She claimed that the majority was adopting “a hands-off approach to election governance that elevates legislative prerogative over a citizen’s fundamental right to vote.”

She failed to acknowledge that the Constitution gives state legislators the authority to determine what rules govern the election process, including during a pandemic, not unelected federal judges.

She also ignored the practical problem that changing the rules just before an election will cause chaos and confusion for both voters and election officials.

She ended her opinion by saying, “Good luck and G-d bless, Wisconsin. You are going to need it.”

Actually, what Wisconsin voters — and all of us — need are judges who don’t usurp the authority of elected officials and who approach their judicial task with humility, understanding their proper role in our system of government. Thankfully, at least two judges on the 7th Circuit Court did just that.

Republished from The Daily Signal.

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


“Our cause is noble; it is the cause of mankind!” —George Washington

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2020 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.