As ballot deadline nears, RFK Jr. could ask clerks to cover his name

Independent candidate Robert F. Kennedy Jr. could ask Wisconsin clerks to cover his name instead of reprinting ballots for the November election.

Kennedy, who dropped out of the presidential race on Aug. 23, is suing the Wisconsin Elections Commission for keeping his name on the ballot.

Kennedy had requested his name be removed in Wisconsin and other swing states to avoid pulling votes from former President Donald Trump, whom he has endorsed.

In Wisconsin, the election commission voted Aug. 27 to keep Kennedy on the ballot. They pointed to a state law, which says anyone “who files nomination papers and qualifies to appear on the ballot may not decline nomination.”

In fighting that decision, Kennedy’s attorney Joseph Bugni has urged the court to act quickly ahead of a Sept. 18 deadline for county clerks to print and distribute ballots. A previous state Supreme Court case denied a lawsuit brought by Green Party candidates to get on the 2020 presidential ballot because clerks had already printed and mailed ballots.

During a scheduling conference Wednesday in Dane County Circuit Court, Bugni previewed his argument that local clerks could follow the same procedure for when a candidate dies, using stickers to cover Kennedy’s name.

After circuit court Judge Stephen Ehlke denied Kennedy’s request for an injunction, Bugni appealed the decision to a Waukesha-based state appeals court on Monday.

“We are hopeful that the Court of Appeals will provide a quick and definite ruling that Kennedy’s name should be struck from the ballot — whether that’s covering it up with stickers or deleting it all together,” Bugni said in an email to WPR.

Kennedy’s lawsuit argues the commission’s decision to put Kennedy’s name on the ballot violates his rights under the U.S. Constitution’s free speech protections. It also claims the Wisconsin law requiring independent candidates to file nomination papers one month before the major parties have to certify their nominees violates Kennedy’s rights under the Fourteenth Amendment’s Equal Protection Clause.

During the scheduling conference, Ehlke told attorneys in the case to file their arguments by the end of the day Friday. He plans to issue an oral ruling in the case on Tuesday, a day before the ballot deadline for clerks.

But Ehlke also said the court of appeals could decide to take up the case in the coming days instead.

Even with the expedited timeline, one county clerk said any order to reprint ballots would cause delays.

Portage County Clerk Maria Davis filed an affidavit in the appeals court case on Wednesday. She said her office started printing absentee ballots for the election on Sept. 5 and distributed them to local clerks on Sept. 9. 

Davis said if Portage County is forced to print new ballots, she will be unable to meet the state deadline for distributing ballots and municipal clerks would miss the Sept. 19 deadline to mail absentee ballots to military and overseas voters.