Wisconsin Supreme Court keeps Robert F. Kennedy Jr. on the presidential ballot

MADISON – Independent presidential candidate Robert F. Kennedy, Jr. will be listed on Wisconsin voters' ballots following a state Supreme Court decision Friday addressing his request to remove his name.

In its ruling, the court said Kennedy's briefing was "inadequate."

"We emphasize that we are not making any legal determinations on our own regarding the claims made by Kennedy and we are not agreeing with the circuit court’s legal conclusions on those claims," justices wrote in the order, which was released late Friday afternoon. "We simply are unable to make such determinations, given the inadequate briefing presented to us."

The liberal-majority court on Sept. 20 accepted a petition from the Wisconsin Elections Commission to bypass an appeals court and take the case directly. The court, with some justices dissenting, said it would not hear oral arguments on the case but gave Kennedy's legal team until noon Sept. 21 to file a brief no longer than 20 pages on the matter.

Chief Justice Annette Kingsland Ziegler joined Justice Rebecca Grassl Bradley in voting not to take the case. The two are both conservatives.

"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."

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.

His request to be removed from Wisconsin's ballot, however, came as he asked the U.S. Supreme Court to put him on the presidential ballot in New York.

Party-affiliated candidates had until 5 p.m. on Sept. 3 to certify their candidacy, according to guidance from the Elections Commission, while independent candidates had until 5 p.m. on Aug. 6. Kennedy ended his campaign Aug. 23. Election clerks faced a deadline last week to send absentee ballots to voters with requests on file, and hundreds of thousands of ballots listing Kennedy's name have been mailed out by clerks.

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.

Attorneys for Kennedy, and several Republican members of the elections commission at the time argued Kennedy should be able to withdraw his name 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 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 chair Ann Jacobs, a Democrat, said at the time. "The statute is absolutely clear on this."

On behalf of the elections commission, state Department of Justice attorneys argued Kennedy's name has been appropriately left on the ballot.

"Kennedy filed nomination papers and a declaration of candidacy to run for U.S. 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 state Supreme Court essentially said on Friday that Kennedy failed to make his case — and failed to prove the circuit court had ruled in error.

"While Kennedy’s appellate briefs do mention his constitutional arguments (equal protection, free speech, and freedom of association) in cursory terms, they fail to develop those arguments to even a minimal standard sufficient for us to consider their merits," the ruling read.

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.

Ziegler and Bradley concurred with the ruling but criticized the circumstances.

"The ramifications in this case are immense," they wrote. "Voters may cast their ballots in favor of a candidate who withdrew his candidacy, thereby losing their right to cast a meaningful vote. Ballots listing a non-candidate mislead voters and may skew a presidential election. In this case, the damage to voter participation in electoral democracy is real."

(This story was updated to add new information.)

Jessie Opoien can be reached at [email protected]. Mary Spicuzza can be reached at [email protected]

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court keeps RFK Jr. on the presidential ballot