Complying with Kennedy’s request at this late date would be impossible, the state said.
Officials in swing state Wisconsin told the U.S. Supreme Court on Oct. 28 that they oppose Robert F. Kennedy Jr.’s emergency application asking to remove his name from the ballot.
Early in-person absentee voting began in the state on Oct. 22.
The application in Kennedy v. Wisconsin Elections Commission was filed on Oct. 23 and directed to U.S. Supreme Court Justice Amy Coney Barrett, who oversees emergency litigation from Wisconsin.
Kennedy, a Democrat-turned-independent, suspended his campaign on Aug. 23 and endorsed former President Donald Trump, the Republican presidential candidate.
Kennedy has tried to remove his name from ballots in hotly contested states since then.
He previously said he was doing this to avoid siphoning votes away from Trump in swing states while leaving room for a longshot bid for the presidency in a possible so-called contingent election, which would put the presidency in the hands of the U.S. House of Representatives in the event of an electoral college deadlock.
Wisconsin told the U.S. Supreme Court in its new filing that because ballots have already been printed and voting is currently in progress, it would be too difficult at this point to strike Kennedy’s name from the ballot.
Removing Kennedy’s name “one week before the general election … would require the county and municipal clerks of Wisconsin to handcraft and apply millions of stickers to Wisconsin ballots in order to cover his name—at least those ballots that have not already gone to voters and been returned,” the state said.
“The absurdity of this proposal is evident on its face, and Applicant comes nowhere close to showing why it would be appropriate.”
The state said the relief Kennedy is seeking from the nation’s highest court would also violate the so-called Purcell principle “at its most fundamental level.”
The Supreme Court previously held in Purcell v. Gonzalez (2006) that courts should not change rules or procedures close to an election because doing so creates a risk of confusing voters.
The state said Wisconsin Elections Commission staffers and county election clerks have given evidence that implementing the sticker plan would have “disastrous impacts.”
“Today, it is not possible to affix tiny stickers to the ballots remaining with clerks, and hundreds of thousands of ballots have been sent to voters, with many already returned.”
The Supreme Court should also deny the application because Kennedy is “very unlikely to succeed on the merits of his claims,” the state said.
On Sept. 27, the Wisconsin Supreme Court rejected Kennedy’s appeal of a lower state court ruling holding that candidates may only be taken off the ballot if they die.
The state supreme court “unanimously decided his … appeal on independent and adequate state law grounds,” and Kennedy failed to present “a developed theory of why Wisconsin’s statutes are unconstitutional under equal protection or First Amendment principles,” the state said.
In his Oct. 23 application, Kennedy said it was his “absolute right” to endorse Trump for president. Not appearing on the ballot in the “critical swing state of Wisconsin” helps convey his constitutionally-protected message that “he wants everyone who will listen to him to vote for Trump.”
“That is core political speech, and it’s protected under the First Amendment,” he said.
Kennedy added that he has “diligently pursued” getting off the Wisconsin ballot for the last two months.
Wisconsin election officials say early in-person absentee voting in the first four days of balloting is up almost 40 percent compared to the same period in the 2020 election.
Voting began on Oct. 22 and as of early Oct. 25, 292,702 individuals had voted early in-person, compared with 209,665 who had voted by the morning of Oct. 23, 2020.
In 2020, candidate Joe Biden, a Democrat, beat then-President Trump in the state’s popular vote by a margin of 49.5 percent to 48.8 percent, or 20,608 votes.
The Associated Press contributed to this report.