Appeals Court agrees to consider Robert F. Kennedy bid to be removed from Wisconsin ballot
(This story was updated to add new information.)
MADISON — A Wisconsin appeals court on Wednesday 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 — with an expedited briefing schedule as the clock winds down for clerks to mail absentee ballots ahead of the Nov. 5 election.
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.
Judges Mark Gundrum, Lisa Neubauer and Maria Lazar on the state's 2nd District Court of Appeals granted Kennedy's petition for 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 requires Kennedy to file a brief by 11 a.m. Thursday and requires a response from WEC by 11 a.m. Friday. Kennedy would then be allowed to file a response by 4 p.m. Friday.
WEC chair Ann Jacobs posted on X 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.
"So what does it all mean? It is unclear what will happen with RFK Jr's appeal. By the time the appellate court rules (I would guess no earlier than Monday, September 23), thousands upon thousands of ballots will have gone out," Jacobs wrote. "So stay tuned - it's always fun in Wisconsin at election time!"
Party-affiliated candidates had until 5 p.m. Sept. 3 to certify their candidacy, according to guidance from the Elections Commission, while independent candidates had until 5 p.m. Aug. 6. Kennedy ended his campaign on 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 compelled 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 that 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," WEC chairwoman Ann Jacobs, a Democrat, said last week. "The statute is absolutely clear on this."
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.
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 jessie.opoien@jrn.com.
This article originally appeared on Milwaukee Journal Sentinel: Court to hear RFK Jr. appeal to be removed from Wisconsin ballot
