Wisconsin Supreme Court to consider RFK Jr. bid for ballot removal

(This story was updated to add new information.)

MADISON — The Wisconsin Supreme Court on Friday agreed to consider independent candidate Robert F. Kennedy, Jr.’s case as he seeks to have his name removed from the state’s presidential ballot.

The court set an expedited briefing schedule as the clock winds down for clerks to mail absentee ballots ahead of the Nov. 5 election.

The liberal-majority court accepted a petition from the Wisconsin Elections Commission to bypass an appeals court and take the case directly.

Chief Justice Annette Kingsland Ziegler joined Justice Rebecca Grassl Bradley in dissent. The two are both conservative.

“Process matters. The members of the majority sometimes enforce a rule against ‘premature petitions’ but sometimes they don’t, without disclosing any standards by which they will choose whether to apply it. Such arbitrariness by courts is antithetical to the original understanding of the judicial role,” Bradley wrote.

“The majority’s arbitrariness in following its professed procedure in one case while discarding it in another sends a message to litigants that judicial process will be invoked or ignored based on the majority’s desired outcome in a politically-charged case.”

The order states that the appeals court’s existing expedited schedule will continue to apply as the state’s high court considers the case.

“Given the need for a prompt resolution of this appeal, the court does not contemplate holding oral argument in this matter. The court will endeavor to issue a written decision as expeditiously as possible,” the order states.

Kennedy filed the lawsuit against the Wisconsin Elections Commission earlier this month in Dane County, arguing independent candidates are treated unfairly because they operate under different deadlines from party-aligned candidates when it comes to ballot access.

On Wednesday, Judges Mark Gundrum, Lisa Neubauer and Maria Lazar on the state’s 2nd District Court of Appeals in Waukesha granted Kennedy’s petition to leave to appeal Dane County Circuit Judge Stephen Ehlke’s Monday decision rejecting the candidate’s request to be dropped from the ballot.

The appeals court’s order required Kennedy to file a brief by 11 am Thursday and required a response from WEC by 11 am Friday. Kennedy will then be allowed to file a response by 4 pm Friday.

WEC chair Ann Jacobs, a Democrat, posted on X earlier this week that no statutory deadlines were delayed by the court — emphasizing that the court’s deadlines for responses come after absentee ballots must be sent to voters. That deadline arrived this week, and hundreds of thousands of ballots have already been mailed.

Party-affiliated candidates had until 5 pm Sept. 3 to certify their candidacy, according to guidance from the Elections Commission, while independent candidates had until 5 pm Aug. 6. Kennedy ended his campaign Aug. 23.

The Kennedy lawsuit came just a week after the state’s election board denied a request from his campaign to be removed from the ballot after he dropped out of the presidential race last month and endorsed former President Donald Trump.

“In First Amendment parlance: it has forced him to not just speak, but to associate with a cause he doesn’t want to be part of,” attorneys for Kennedy wrote of WEC in the original suit. “In doing so, Kennedy’s rights have been violated. He has not been treated fairly or equally with the other presidential candidates who declared and ran for the presidency and have since wanted to withdraw.”

Attorneys for Kennedy, who ran as an independent, and several Republican members of the elections commission at the time argued Kennedy should be able to withdraw his name from the ballot before the commission officially set the ballot. But Wisconsin law holds that anyone who files nomination papers and qualifies to appear on the ballot — which Kennedy did — cannot decline nomination. The only exception to this provision is “in case of death of the person,” according to the law.

The commission voted 5-1 to keep Kennedy on the ballot after Democratic commissioners blocked their Republican counterparts from removing him in an earlier vote.

“The only way he gets to not be on the ballot is to up and die, which I’m assuming he has no plans on doing,” Jacobs said at the time. “The statute is absolutely clear on this.”

On behalf of the elections commission, state Department of Justice attorneys argued the commission’s decision, and Ehlke’s ruling, were appropriate in accordance with state law and should be upheld.

“Kennedy filed nomination papers and a declaration of candidacy to run for US President. Today, he prefers (at least in Wisconsin) to support a major party candidate. Kennedy’s request to remove his name from the ballot was barred by (state law) and so the Commission correctly denied it,” state attorneys argued.

Republicans have pushed to have Kennedy’s name removed from ballots in battleground states out of concerns his presence could draw votes away from Trump.

Kennedy’s attorneys centered their argument around the differing dates for party-affiliated and independent candidates to certify their declaration of candidacy. President Joe Biden, they noted, dropped out of the race on July 21 — before the party Sept. 3 deadline in Wisconsin.

The filing claimed both Kennedy and Biden have been “lifelong politicians” and said “both are dynamic speakers, and both have vast experiences within government — each having served decades in Congress.” Kennedy, however, never served in Congress.

“This Court has received a lot of briefing in the past week and the issues now focus on the question of remedy. This Court has the power to order that Kennedy’s name be covered up. Since placing stickers on the ballot is contemplated by law and would be done in other instances, it can and should be done here. To do so, again, cures the constitutional violation and gives Kennedy the relief he deserves,” Kennedy’s attorneys argued.

In Wisconsin, more Republicans than Democrats supported Kennedy, according to data from the Marquette University Law School Poll.

Without any changes, there will be eight presidential candidates on Wisconsin’s ballot in November, including Green Party candidate Jill Stein and independent candidate Cornel West.

Milwaukee Journal Sentinel reporter Lawrence Andrea contributed.

Jessie Opoien can be reached at [email protected].