The Wisconsin Supreme Court appears to have overlooked key arguments in hastily rejecting former independent presidential candidate Robert F. Kennedy Jr.’s appeal seeking to have his name removed from the Badger State’s November ballot. 

Late last month, the court shrugged off Kennedy’s request to block a Dane County Court ruling affirming the Wisconsin Elections Commission’s decision to keep the Trump-supporting RFK Jr. on the ballot. The leftist-led state Supreme Court claimed Kennedy failed “to address the merits of his appeal.” 

“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,” the majority wrote in its ruling. “We simply are unable to make such determinations, given the inadequate briefing presented to us.”

In a motion seeking reconsideration, RFK Jr.’s attorney respectfully — in legal parlance — argues that the court overlooked the detailed legal arguments filed in the case in coming to the conclusion that the briefing was “inadequate.”    

“Election cases, especially this time of year, are always rushed. And in this case’s haste, with two interlocutory appeals and a non-conventional briefing schedule from the Court of Appeals and a bypass petition, things can get lost,” Madison attorney Joseph Bugni, Kennedy’s legal counsel in the Wisconsin ballot case, wrote in the motion. 

The 11-page brief notes Kennedy’s legal arguments were by necessity truncated earlier in the appeals process on the court of appeal’s request. That’s where “the 61-pages of briefing were lost when this Court rendered its decision,” Bugni explained. 

But the original briefings, Kennedy’s attorney argues, were thorough and anything but “undeveloped.” 

Making sure they don’t get overlooked again, Bugni attached five pages “containing the heart” of Kennedy’s arguments — “everything the Court needs to know to grant the motion for reconsideration.” 

“This Court is the highest body in this State and the people come to it looking for fair and impartial justice. And sometimes, mistakes are made, a point is missed. Under these circumstances, it’s appropriate to vacate the order, allow Kennedy to present oral argument, and address the merits of his claim,” the motion argues. 

Dems’ Political Calculus 

As the motion lays out, Kennedy sought a preliminary injunction more than a month ago, alleging that his Equal Protection and First Amendment rights were violated by the Wisconsin Elections Commission’s decision to keep his name on the ballot. 

The Kennedy family scion originally campaigned for president as a Democrat, the party of his slain father, New York senator and 1968 presidential hopeful Bobby Kennedy, and his uncle, President John F. Kennedy. When the Democratic National Committee gamed the system to keep RFK Jr. from competing against its then-anointed candidate, President Joe Biden, Kennedy left the party and ran as an independent. 

After suspending his campaign and endorsing GOP presidential nominee and former President Donald Trump on Aug. 23, Kennedy sought to remove his name from the presidential ballot in swing states. Internal polling showed his presence on the ballot could siphon votes from Trump. Understanding the political calculus, the DNC fought to keep RFK Jr. on the ballot. 

He remains on in battleground Michigan, where Democrats fought to keep him on. Meanwhile, the self-appointed “defenders of democracy” have sought to kick Green Party presidential candidate Jill Stein and independent Cornel West off November’s ballot for fear the leftists will draw critical votes from Vice President Kamala Harris, the Democrats’ presidential nominee. 

Wisconsin’s election regulator voted 5-1 with the Democrats, citing state law on nominations. Liberal Dane County Judge Stephen Ehlke sided with the elections commission, insisting that Kennedy had “no one to blame but himself if he didn’t want to be on the ballot.” 

“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 highly partisan Democrat, said last month, according to the Milwaukee Journal Sentinel. “The statute is absolutely clear on this.”

An appeals court agreed to hear the case, which was quickly taken up by the Wisconsin Supreme Court at the request of the elections commission. 

‘The Damage is Real’

Wisconsin’s high court should have had access to the original briefs spelling out that RFK Jr. is being treated differently as a third-party candidate, among other arguments, according to Kennedy’s motion.  

“Here, Wisconsin deadlines for ballot access … hamstring third-party candidates, while giving Democrats and Republicans a greater opportunity to disassociate from a candidate or for a candidate to disassociate from the campaign —  as [President Joe] Biden did,” RFK Jr.’s attorney asserts in legal arguments. Biden, following his disastrous debate with Trump in late June, bowed out of the presidential contest despite having easily secured the delegates to win the Democrats’ nomination. He was replaced by his unpopular vice president, Kamala Harris.

Kennedy also has argued the issue could be remedied by placing stickers over his name on ballots. 

But it would seem the legal ship has sailed. Wisconsin elections officials began sending out absentee ballots last month, and the court’s highly partisan liberal majority isn’t likely to do anything to help Trump’s electoral chances in Wisconsin. 

Justice Rebecca Grassl Bradley wrote a concurring opinion, joined by fellow court conservative and Chief Justice Annette Ziegler. Bradley warned that the tight timelines under which the Wisconsin Elections Commission and the courts operate “hamstring candidates in Kennedy’s situation.” The schedule leaves little time for parties to brief and argue substantial issues, Bradley notes, before an election. 

Ultimately, Bradley argues, the voter is the one hurt by the process, including the lack of “predictable standards” in the Wisconsin Supreme Court’s decisions on whether to accept original action petitions. 

“The ramifications in this case are immense. Important constitutional claims go unreviewed. Voters may cast their ballots in favor of a candidate who withdrew his candidacy, thereby losing their right to cast a meaningful vote,” the justice wrote. “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.”