Richard Teigen v. Wisconsin Elections Commission ( 2022 )

2022 WI 64SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP91
COMPLETE TITLE: Richard Teigen and Richard Thom,
Plaintiffs-Respondents-Petitioners,
v.
Wisconsin Elections Commission,
Defendant-Co-Appellant,
Democratic Senatorial Campaign Committee,
Intervenor-Defendant-Co-Appellant,
Disability Rights Wisconsin,
Wisconsin Faith Voices for Justice and
League of Women Voters of Wisconsin,
Intervenors-Defendants-Appellants.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 8, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 13, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to ¶¶4–10, 12–13, 52–63, and 73–85, in
which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and
an opinion with respect to ¶¶1–3, 11, 14–51, 64–72, 86, n.29,
and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined.
ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring
opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in
which DALLET and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-co-appellant, there were briefs filed by
Steven C. Kilpatrick, assistant attorney general, with whom on
the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Steven C. Kilpatrick.
For the intervenor-defendant-co-appellant, there were
briefs filed by Charles G. Curtis, Jr., Michelle M. (Umberger)
Kemp, Will M. Conley, John M. Devaney, Elisabeth C. Frost, and
Perkins COie, LLP, Madison and Washington, D.C., and Elias Law
Group LLP, Washington, D.C. There was an oral argument by
Charles G. Curtis.
For the intervenors-defendants-appellants, there were
briefs filed by Jeffrey A. Mandell, Douglas M. Poland, Rachel E.
Snyder, Carly Gerads, Scott B. Thompson, Mel Barnes, and
Stafford Rosenbaum LLP, Madison, and Law Forward, Inc., Madison.
There was an oral argument by Jeffrey A. Mandell.
For the plaintiffs-respondents-petitioners, there was a
brief filed by Richard M. Esenberg, Brian W. McGrath, Luke N.
Berg, Katherine D. Spitz, and Wisconsin Institute for Law &
Liberty, Milwaukee. There was an oral argument by Richard M.
Esenberg.
An amicus curiae brief was filed by James R. Troupis,
Joseph W. Voiland, and Troupis Law Office, Cross Plains, and
Veterans Liberty Law, Cedarburg, for Senator Ron Johnson. There
was an oral argument by James R. Troupis.
An amicus curiae brief was filed by James Bopp, Jr.,
Michael D. Dean, and James Madison Center for Free Speech, Terre
Haute, and First Freedoms Foundation, Brookfield, for True the
Vote, Inc.
An amicus curiae brief was filed by Cameron T. Norris,
James P. McGlone, Matthew M. Fernholz, and Consovoy McCarthy
2
PLLC, Arlington, and Gramer, Multhauf & Hammes, LLP, Racine, for
Honest Elections Project.
An amicus curiae brief was filed by Kurt A. Goehre and
Conway, Olejniczak & Jerry S.C., Green Bay, for the Republican
National Committee, the National Republican Senatorial
Committee, and the Republican Party of Wisconsin.
An amicus curiae brief was filed by Claire Silverman and
Maria Davis for the League of Wisconsin Municipalities.
3
2022 WI 64NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP91
(L.C. No. 2021CV958)
STATE OF WISCONSIN : IN SUPREME COURT
Richard Teigen and Richard Thom,
Plaintiffs-Respondents-Petitioners,
v.
Wisconsin Elections Commission,
FILED
Defendant-Co-Appellant,
JUL 8, 2022
Democratic Senatorial Campaign Committee,
Sheila T. Reiff
Intervenor-Defendant-Co-Appellant, Clerk of Supreme Court
Disability Rights Wisconsin, Wisconsin Faith
Voices for Justice and League of Women Voters
of Wisconsin,
Intervenors-Defendants-Appellants.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to ¶¶4–10, 12–13, 52–63, and 73–85, in
which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and
an opinion with respect to ¶¶1–3, 11, 14–51, 64–72, 86, n.29,
and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined.
ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring
opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in
which DALLET and KAROFSKY, JJ., joined.
No. 2022AP91
APPEAL from a judgment and an order of the Circuit Court
for Waukesha County, Michael O. Bohren, Judge. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. This case concerns two
documents created by employees of the Wisconsin Elections
Commission ("WEC"). These documents authorize municipal clerks
and local election officials to establish ballot drop boxes.
According to one of the documents:
A drop box is a secure, locked structure operated by
local election officials. Voters may deposit their
ballot in a drop box at any time after they receive it
in the mail up to the time of the last ballot
collection Election Day. Ballot drop boxes can be
staffed or unstaffed, temporary or permanent.
The other document adds, "[a] family member or another person
may . . . return the ballot on behalf of the voter," i.e., an
agent of the voter may place the voter's absentee ballot in a
drop box.
¶2 Two Wisconsin voters filed this case under Wis. Stat.
§ 227.40 (2019–20),1 challenging the validity of these
documents.2 They advanced two arguments: (1) the documents are
unpromulgated administrative rules; and (2) under Wisconsin
statutes, drop boxes are illegal because a voter must personally
mail or deliver in person the voter's absentee ballot to the
1 All subsequent references to the Wisconsin Statutes are to
the 2019–20 version unless otherwise indicated.
2 The Wisconsin voters also sought relief under the Uniform
Declaratory Judgment Act, Wis. Stat. § 806.04. We do not
address whether relief would be proper had the Wisconsin voters
sought relief only under § 806.04.
2
No. 2022AP91
municipal clerk, not to an inanimate object. The Democratic
Senatorial Campaign Committee ("DSCC") and Disability Rights
Wisconsin et al. ("DRW") intervened to defend WEC's documents.
¶3 The circuit court granted summary judgment in favor of
the Wisconsin voters.3 The court declared the documents were
administrative rules, which had not been properly promulgated,
and, among other things, "the use of [ballot] drop boxes, as
described in the [documents], is not permitted under Wisconsin
law unless the drop box is staffed by the [municipal] clerk and
located at the office of the clerk or a properly designated
alternate site under Wis. Stat. § 6.855." The circuit court
also issued a permanent injunction, requiring WEC to rescind the
documents and enjoining WEC from issuing further interpretations
of law in conflict with the court's order. An appeal followed,
and we granted the Wisconsin voters' petition to bypass the
court of appeals.4
¶4 We hold the documents are invalid because ballot drop
boxes are illegal under Wisconsin statutes. An absentee ballot
must be returned by mail or the voter must personally deliver it
3 The Honorable Michael O. Bohren, Waukesha County Circuit
Court, presided.
4 "Elections are the foundation of American government and
their integrity is of such monumental importance that any threat
to their validity should trigger not only our concern but our
prompt action." Trump v. Biden, 2020 WI 91, ¶152, 394
Wis. 2d 629, 951 N.W.2d 568 (Rebecca Grassl Bradley, J.,
dissenting) (quoting State ex rel. Zignego v. Wis. Elec. Comm'n,
2020AP123-W, unpublished order (Wis. June 1, 2020) (Rebecca
Grassl Bradley, J., dissenting)).
3
No. 2022AP91
to the municipal clerk at the clerk's office or a designated
alternate site. We do not address whether the documents
constitute unpromulgated administrative rules because the
documents are invalid regardless.
¶5 The circuit court declared: (1) "an elector must
personally mail . . . his or her own absentee ballot"; and
(2) only two lawful methods for casting an absentee ballot
pursuant to Wis. Stat. § 6.87(4)(b)1. exist, one of which is
"for the elector to place the envelope containing the ballot in
the mail[.]" The documents do not address whether voters who
mail an absentee ballot must personally place the ballot into a
mailbox or if a voter's agent may do so. We therefore do not
decide at this time whether the law permits a voter's agent to
place an absentee ballot in the mail on the voter's behalf.
I. BACKGROUND
¶6 In spring 2020, many people wanted to minimize their
time spent in public spaces due to the COVID-19 pandemic. For
this reason, more voters wanted to vote absentee for the spring
2020 election than had voted absentee in past elections. In
response, WEC Administrator Meagan Wolfe issued the first
document ("Memo one"), which was directed to municipal clerks
and other local election officials. The memo states: "[Ballot]
drop boxes can be used for voters to return ballots but clerks
should ensure they are secure, can be monitored for security
purposes, and should be regularly emptied." It also says, "[a]
family member or another person may . . . return the [absentee]
4
No. 2022AP91
ballot on behalf of a voter." WEC's commissioners never voted
to adopt this memo.
¶7 A few months later, Administrator Wolfe and the
assistant administrator issued the second document ("Memo two")
ahead of the fall 2020 election. It encourages "creative
solutions" to facilitate the use of ballot drop boxes.
Specifically, Memo two informs municipal clerks that drop boxes
can be "unstaffed," and states "[a]t a minimum, you should have
a drop box at your primary municipal building, such as the
village hall." WEC commissioners never voted on Memo two
either.
¶8 Municipal clerks acted on these memos. Administrator
Wolfe avers she is aware of 528 ballot drop boxes utilized for
the fall 2020 election. By the spring 2021 election,
Administrator Wolfe says municipal clerks and local election
officials reported 570 drop boxes, spanning 66 of Wisconsin's 72
counties.
¶9 The Wisconsin voters filed a lawsuit challenging the
validity of these memos. In resolving the suit, the circuit
court declared, "WEC's Memos are administrative rules under
Chapter 227 of the Wisconsin statutes and are
invalid . . . because they should have been, but were not,
promulgated as rules." It also declared:
WEC's interpretation of state statutes in the Memos is
inconsistent with state law, to the extent they
conflict with the following: (1) an elector must
personally mail or deliver his or her own absentee
ballot, except where the law explicitly authorizes an
agent to act on an elector's behalf, (2) the only
5
No. 2022AP91
lawful methods for casting an absentee ballot pursuant
to Wis. Stat. § 6.87(4)(b)1. are for the elector to
place the envelope containing the ballot in the mail
or for the elector to deliver the ballot in person to
the municipal clerk, (3) the use of drop boxes, as
described in the Memos, is not permitted under
Wisconsin law unless the drop box is staffed by the
clerk and located at the office of the clerk or a
properly designated alternate site under Wis. Stat.
§ 6.855.
The circuit court permanently enjoined WEC and ordered it to
"withdraw the Memos and issue a statement to clerks notifying
them that WEC's interpretation of Wis. Stat. §§ 6.87 and 6.855
in the Memos has been declared invalid by this Court[.]" The
injunction also ordered WEC not to "issue any further
interpretations . . . that conflict[] with . . . §§ 6.87 and
6.855, as described above." The defendants appealed. The
Wisconsin voters filed a petition to bypass the court of
appeals, which we granted.
II. STANDARD OF REVIEW
¶10 Two threshold arguments have been raised. First, DSCC
argues the Wisconsin voters lack standing. The existence of
standing presents a question of law, which we review
independently, although we benefit from the circuit court's
analysis. Friends of the Black River Forest v. DNR, 2022 WI 52,
¶10, __ Wis. 2d __, __ N.W.2d __ (quoting City of Mayville v.
DOA, 2021 WI 57, ¶15, 397 Wis. 2d 496, 960 N.W.2d 416); see also
T.L.E.-C. v. S.E., 2021 WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d
391 (citing State v. Stephenson, 2020 WI 92, ¶18, 394
Wis. 2d 703, 951 N.W.2d 819).
6
No. 2022AP91
¶11 Second, DRW argues Wisconsin law bars this suit
because the Wisconsin voters did not first file their complaint
with WEC, which DRW claims Wis. Stat. § 5.06 requires. DRW
offers two independent bases for this argument: (1) sovereign
immunity and (2) competence.5 Whether sovereign immunity bars
this lawsuit is a question of law. Aesthetic & Cosmetic Plastic
Surgery Ctr., LLC v. Wis. Dep't of Trans., 2014 WI App 88, ¶12,
356 Wis. 2d 197, 853 N.W.2d 607 (quoting Canadian Nat'l R.R. v.
Noel, 2007 WI App 179, ¶5, 304 Wis. 2d 218, 222–23, 736
N.W.2d 900). Likewise, whether the circuit court was competent
to adjudicate this case is a question of law. City of Cedarburg
v. Hansen, 2020 WI 11, ¶13, 390 Wis. 2d 109, 938 N.W.2d 463,
modified on reconsideration, 2020 WI 45, 391 Wis. 2d 671, 943
N.W.2d 544 (citing City of Eau Claire v. Booth, 2016 WI 65, ¶6,
370 Wis. 2d 595, 882 N.W.2d 738).
¶12 On the merits, we must interpret Wisconsin statutes to
determine whether the memos correctly describe the law.
Statutory interpretation presents a question of law. See
T.L.E.-C., 397 Wis. 2d 462, ¶13 (citing Stephenson, 394
Wis. 2d 703, ¶18).
¶13 Lastly, DRW raises a federal preemption argument.
Preemption presents a question of law. Town of Delafield v.
Cent. Transp. Kriewaldt, 2020 WI 61, ¶4, 392 Wis. 2d 427, 944
5 DRW conflated these two bases, but we resolve them
independently.
7
No. 2022AP91
N.W.2d 819 (citing Partenfelder v. Rohde, 2014 WI 80, ¶25, 356
Wis. 2d 492, 850 N.W.2d 896).
III. ANALYSIS
A. Threshold Issues
1. The Wisconsin Voters Have Standing
¶14 DSCC argues the Wisconsin voters lack standing,
asserting they "have not demonstrated 'a personal stake in the
outcome of the controversy' separate and apart from the public
at large, nor have they shown they have 'suffered or [are]
threatened with an injury to an interest that is legally
protectable.'"6 We reject this argument because the Wisconsin
voters do have a "stake in the outcome" and are "affected by the
issues in controversy." Wis. Legislature v. Palm, 2020 WI 42,
¶12, 391 Wis. 2d 497, 942 N.W.2d 900. WEC's memos "interfere[]
with or impair," or at the very least, "threaten[] to interfere
with or impair," the Wisconsin voters' "legal rights and
privileges"——specifically, their rights and privileges as
registered voters. See Wis. Stat. § 227.40(1). For this
reason, the Wisconsin voters have standing under Wisconsin's
permissive, policy-oriented approach toward standing.
¶15 DSCC's argument appears to be grounded in the
inaccurate assumption that Wisconsin courts follow federal law
on standing. For example, DSCC cites a Fifth Circuit case from
2021 rejecting claims "that drive-thru voting hurt the
Quoting Marx v. Morris, 2019 WI 34, ¶35, 386 Wis. 2d 122,
6
925 N.W.2d 112 (emphasis added).
8
No. 2022AP91
'integrity' of the election process," in violation of the United
States Constitution, because the claims were "far too
generalized to warrant standing." See Hotze v. Hudspeth, 16
F.4th 1121, 1124 (5th Cir. 2021).
¶16 While standing in federal court is constitutionally
confined, in Wisconsin it is limited only by prudential
considerations. The United States Constitution extends "[t]he
judicial power" only to "cases" and "controversies." U.S.
Const. art. III, § 2, cl. 1. No similar language exists in the
Wisconsin Constitution. See Wis. Const. art. VII, § 8
(creating, as a general rule, "original jurisdiction" in the
circuit courts over "all matters civil and criminal within this
state"). "Because our state constitution lacks the
jurisdiction-limiting language of its federal counterpart,
'standing in Wisconsin is not a matter of jurisdiction, but of
sound judicial policy.'" Friends of the Black River Forest, __
Wis. 2d __, ¶17 (quoting McConkey v. Van Hollen, 2010 WI 57,
¶15, 326 Wis. 2d 1, 783 N.W.2d 855).7
¶17 Judicial policy favors hearing cases presenting
"carefully developed and zealously argued" issues. McConkey,
7 Although Justice Brian Hagedorn now criticizes this
court's well-established consideration of judicial policy in
determining standing, Justice Hagedorn's Concurrence, ¶160, he
just joined the majority's expression of the test in Friends of
the Black River Forest v. DNR, 2022 WI 52, ¶17, __ Wis. 2d __,
__ N.W.2d __ (quoting McConkey v. Van Hollen, 2010 WI 57, ¶15,
326 Wis. 2d 1, 783 N.W.2d 855). Perhaps the court should
reconsider its jurisprudence on standing but no party has asked
us to do so in this case.
9
No. 2022AP91
326 Wis. 2d 1, ¶16. To ensure a full vetting of the issues, we
typically require plaintiffs to possess some personal stake in
the case: "the gist of the requirements relating to
standing . . . is to assure that the party seeking relief has
alleged a personal stake in the outcome of the controversy as to
give rise to that adverseness necessary to sharpen the
presentation of issues[.]" Moedern v. McGinnis, 70
Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975). This standard is
quite liberal; even "'a trifling interest' may suffice" provided
the asserted interest generates sufficient adversity. See
McConkey, 326 Wis. 2d 1, ¶15 (quoting Fox v. DHSS, 112
Wis. 2d 514, 524, 334 N.W.2d 532 (1983)).
¶18 In resolving standing challenges, Wisconsin courts may
also consider judicial efficiency. Id., ¶¶17–18. The judiciary
has "inherent power to protect itself against any action that
would . . . materially impair its efficiency." State v. Holmes,
106 Wis. 2d 31, 40, 315 N.W.2d 703 (1982) (quoting In re Court
Room, 148 Wis. 109, 121, 134 N.W. 490 (1912)). As a practical
matter, courts should not devote time or resources to
adjudicating disputes only to ultimately conclude a party is not
entitled to any relief.8
While courts should consider whether relief may be
8
granted, they should not turn an issue of standing into a full
adjudication on the merits. See Wis. Voters Alliance v. Wis.
Elec. Comm'n, No. 2020AP1930-OA, unpublished order, at 4 (Wis.
Dec. 4, 2020) (Roggensack C.J., dissenting) ("We grant petitions
to exercise our jurisdiction based on whether the legal issues
presented are of state wide concern, not based on the remedies
requested." (citation omitted)).
10
No. 2022AP91
¶19 Against the backdrop of these policies, we have
developed a two-prong test for standing to challenge an agency
action under chapter 227 of the Wisconsin statutes. See Friends
of the Black River Forest, __ Wis. 2d __, ¶18 (quoting
Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n of Wis.
(WED), 69 Wis. 2d 1, 10, 230 N.W.2d 243 (1975)). In WED, this
court described the elements of the inquiry as follows:
"(1) Does the challenged action cause the petitioner injury in
fact? and (2) is the interest allegedly injured arguably within
the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question?" Id. (citing
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 153 (1970)).
¶20 Under the first prong, "injury in fact," "we ask
'whether the petition alleges injuries that are a direct result
of the agency action.'" Friends of the Black River Forest, __
Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 13). This prong
presents a low bar. "[A]n '[i]njury alleged, which is remote in
time or which will only occur as an end result of a sequence of
events set in motion by the agency action challenged, can be a
sufficiently direct result of the agency's decision to serve as
a basis for standing.'" Id. (quoting WED, 69 Wis. 2d at 14(second modification in the original)). Under the second prong,
"we ask whether 'the injury is to an interest which the law
recognizes or seeks to regulate or protect.'" Id., ¶23 (quoting
Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424
N.W.2d 685 (1988)). Recently, in Friends of the Black River
11
No. 2022AP91
Forest, we recognized "the 'zone of interests' terminology [for
the second prong] is untethered to the text of Wis. Stat.
ch. 227[.]"9 Id., ¶25. We explained, "determination of whether
a statute protects, recognizes, or regulates the asserted
interest is a purely statutory inquiry, from which the
judicially subjective consideration of the 'zone of interests'
is properly omitted." Id.
¶21 The Wisconsin voters allege they have suffered an
injury in fact to their right to vote. See Wis. Stat. § 6.84(1)
("The legislature finds that voting is a constitutional right,
the vigorous exercise of which should be strongly encouraged.").
As the Wisconsin voters argue, "voters[] are entitled to have
the elections in which they participate administered properly
under the law. Allowing WEC to administer the 2022 elections in
a manner other than that required by law causes doubts about the
fairness of the elections and erodes voter confidence in the
electoral process." Similarly, the Republican National
Committee et al., an amicus curiae, emphasizes, "[e]lections are
one of the most important features of our Republic, and
upholding the rules and procedures prescribed for elections,
Friends of the Black River Forest involved a challenge to
9
an agency action under Wis. Stat. §§ 227.52 and 227.53. With
respect to standing, the case is analogous to this dispute.
Many of the cases on which we relied in Friends of the Black
River Forest discuss standing under chapter 227 of the Wisconsin
statutes generally. See Foley-Ciccantelli v. Bishop's Grove
Condominium Ass'n, Inc., 2011 WI 36, ¶¶43–44, 333 Wis. 2d 402,
797 N.W.2d 789 (lead op.) (suggesting the same framework applies
for "an administrative rule or decision").
12
No. 2022AP91
according to the laws enacted by the Legislature, reinforces the
sanctity of the rule of law and reassures all Americans of the
integrity of our elections." We agree.
¶22 If the right to vote is to have any meaning at all,
elections must be conducted according to law. Throughout
history, tyrants have claimed electoral victory via elections
conducted in violation of governing law. For example, Saddam
Hussein was reportedly elected in 2002 by a unanimous vote of
all eligible voters in Iraq (11,445,638 people).10 Examples of
such corruption are replete in history. In the 21st century,
North Korean leader Kim Jong-un was elected in 2014 with 100% of
the vote while his father, Kim Jong-il, previously won 99.9% of
the vote.11 Former President of Cuba, Raul Castro, won 99.4% of
the vote in 2008 while Syrian President Bashar al-Assad was
elected with 97.6% of the vote in 2007. Even if citizens of
such nations are allowed to check a box on a ballot, they
possess only a hollow right.12 Their rulers derive their power
from force and fraud, not the people's consent. By contrast, in
Saddam Scores 100% in Leadership Ballot, The Guardian
10
(Oct. 16, 2002),
https://www.theguardian.com/world/2002/oct/16/iraq.
The World of 100% Election Victories, BBC (Mar. 11,
11
2014), https://www.bbc.com/news/blogs-magazine-monitor-26527422.
Justice Hagedorn seems to disagree, indicating the right
12
to vote encompasses nothing more than the mere ability to cast a
ballot. He fails to recognize that a lawful vote loses its
operative effect if the election is not conducted in accordance
with the rule of law.
13
No. 2022AP91
Wisconsin elected officials "deriv[e] their just powers from the
consent of the governed." See Wis. Const. art. I, § 1.
¶23 The right to vote presupposes the rule of law governs
elections. If elections are conducted outside of the law, the
people have not conferred their consent on the government. Such
elections are unlawful and their results are illegitimate. "If
an election . . . can be procured by a party through artifice or
corruption, the Government may be the choice of a party for its
own ends, not of the nation for the national good." John Adams,
Inaugural Address in the City of Philadelphia (Mar. 4, 1797),
reprinted in Inaugural Addresses of the Presidents of the United
States at 10 (1989).
¶24 The Wisconsin voters' injury in fact is substantially
more concrete than the "remote" injuries we have recognized as
sufficient in the past. Friends of the Black River Forest, __
Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 14). The record
indicates hundreds of ballot drop boxes have been set up in past
elections, prompted by the memos, and thousands of votes have
been cast via this unlawful method, thereby directly harming the
Wisconsin voters. The illegality of these drop boxes weakens
the people's faith that the election produced an outcome
reflective of their will. The Wisconsin voters, and all lawful
voters, are injured when the institution charged with
administering Wisconsin elections does not follow the law,
leaving the results in question.
¶25 DSCC misunderstands the nature of the Wisconsin
voters' injury in fact. It argues the Wisconsin voters cannot
14
No. 2022AP91
show their votes were diluted by unlawful votes. It states, "it
is equally likely that any such [unlawful] voters may vote for
the same candidates who[m] [the Wisconsin voters] support, which
would seem to benefit, not harm them." The Wisconsin voters'
injury, however, is more nuanced than DSCC suggests. DSCC's
claim about "equal" likelihood is pure speculation. In
contrast, the failure to follow election laws is a fact which
forces everyone——even DSCC——to question the legitimacy of
election results. Electoral outcomes obtained by unlawful
procedures corrupt the institution of voting, degrading the very
foundation of free government. Unlawful votes do not dilute
lawful votes so much as they pollute them, which in turn
pollutes the integrity of the results. See Clark v. Quick, 36
N.E.2d 563, 566 (Ill. 1941) ("There is nothing in the record
before us to indicate that any of [the absentee ballots] were
actually tampered with by any unauthorized person, but it is
entirely obvious that the opportunity to do so was present.").
When the level of pollution is high enough, the fog creates
obscurity, and the institution of voting loses its credibility
as a method of ensuring the people's continued consent to be
governed. See State ex rel. Bell v. Conness, 106 Wis. 425, 428,
82 N.W. 288 (1900) ("He failed to show that he received a
majority of the votes cast at the election, but he succeeded in
showing a condition of affairs that taints the whole proceeding
and calls for careful consideration. The purity and integrity
of elections is a matter of such prime importance, and affects
so many important interests, that the courts ought never to
15
No. 2022AP91
hesitate, when the opportunity is offered, to test them by the
strictest legal standards."). A man with an obscured vote may
as well be "a man without a vote," and without the opportunity
for judicial review, such a man "is without protection; he is
virtually helpless." See 106 Cong. Rec. 5082, 5117 (1960)
(statement of Sen. Lyndon B. Johnson).
¶26 DSCC quotes this court's statement in McConkey that it
was "troubled" by "broad general voter standing[.]" 326
Wis. 2d 1, ¶17. For context, that case involved a voter
challenge to a process by which the people of Wisconsin adopted
the following constitutional amendment in 2006:
Only a marriage between one man and one woman shall be
valid or recognized as a marriage in this state. A
legal status identical or substantially similar to
that of marriage for unmarried individuals shall not
be valid or recognized in this state.
Wis. Const. art. XIII, § 13, superseded by Obergefell v. Hodges,
576 U.S. 644 (2015). "McConkey claimed that the two sentences
of the marriage amendment constituted two amendments, not one,
and that because voters were not able to vote for or against
each sentence, the marriage amendment was not validly adopted."
McConkey, 326 Wis. 2d 1, ¶2. McConkey conceded if he would have
been able to vote on each individual sentence, he would have
voted "no" on both. Id., ¶14. On this basis, the attorney
general challenged McConkey's standing, claiming, "he suffered
no actual injury to a legally protectable interest." Id.
McConkey maintained his "basic voting . . . rights" were
violated. Id.
16
No. 2022AP91
¶27 McConkey does not support DSCC's argument. While this
court was "troubled," it nonetheless proceeded to decide the
case: "whether as a matter of judicial policy, or because
McConkey has at least a trifling interest in his voting rights,
we believe the unique circumstances of this case render the
merits of McConkey's claim fit for adjudication." Id., ¶17.
The injury in fact McConkey claimed to suffer is analogous to
the injury in fact suffered by the Wisconsin voters; both
plaintiffs claim proper voting procedures were not followed.
¶28 DSCC also argues "[t]heir voting rights are in no
sense 'diluted' by other voters' reliance on carefully monitored
secure [ballot] drop boxes under local municipal clerks'
jurisdiction, custody, and control." The memos, however,
purport to authorize unstaffed drop boxes as lawful means of
returning ballots. Even if secured and monitored, a drop box
falls short of the statutorily-recognized security surrounding a
polling place. See Wis. Stat. § 6.84(1) ("[V]oting by absentee
ballot is a privilege exercised wholly outside the traditional
safeguards of the polling place.").
¶29 The Wisconsin voters satisfy the second standing prong
as well. "[T]he law recognizes" and "seeks to . . . protect"
the Wisconsin voters' right to vote. See Friends of the Black
River Forest, __ Wis. 2d __, ¶23 (quoting Waste Mgmt., 144
Wis. 2d at 505). Wisconsin Stat. § 227.40(1) affords them
relief because the memos "interfere[] with or impair[]," or at
the very least, "threaten[] to interfere with or impair," their
"legal rights and privileges[.]"
17
No. 2022AP91
¶30 A broader review of judicial policy supports our
application of the two-prong test. Like McConkey, this case has
been "zealously argued," demonstrating the Wisconsin voters'
interest in their right to vote is more than merely
"trifling[.]" See 326 Wis. 2d 1, ¶18. We can discern no
negative impact on "judicial efficiency" stemming from our
decision to resolve it. Id.¶31 Lastly, "as a law development court," we owe the
public an answer to the important questions of law this case
raises.13 Id. "The right of voting for representatives is the
primary right by which other rights are protected." Thomas
Paine, Dissertation on First Principles of Government (1795),
reprinted in Thomas Paine: Rights of Man, Common Sense and
Other Political Writings 398 (2008). As the United States
Supreme Court has recognized, "[n]o right is more precious in a
free country than that of having a voice in the election of
those who make laws under which, as good citizens, we must live.
Other rights, even the most basic, are illusory if the right to
vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17
(1964). Unlawfully conducted elections threaten to diminish or
even eliminate some voices, destabilizing the very foundation of
"Since the 2020 presidential election, many Wisconsin
13
voters have raised serious concerns about the conduct of
elections because of directives given by the Wisconsin Elections
Commission (WEC) to the municipal clerks who run the elections.
We have been petitioned repeatedly to accept cases that address
very similar concerns." Kleefisch v. Wis. Elections Comm'n,
No. 2021AP1976-OA, unpublished order, at 1–2 (Wis. Feb. 4, 2022)
(Roggensack, J., dissenting).
18
No. 2022AP91
free government. The Wisconsin voters have standing to ensure
they retain their electoral voices. See generally Trump v.
Evers, No. 2020AP1971-OA, unpublished order, at 6 (Wis. Dec. 3,
2020) (Rebecca Grassl Bradley, J., dissenting) ("[T]he integrity
of every election will be tarnished by the public's mistrust
until the Wisconsin Supreme Court accepts its responsibility to
declare what the election laws say.").
¶32 Justice Brian Hagedorn disagrees with our standing
analysis, proffering an alternative basis for standing divined
from searching the penumbra of Wis. Stat. § 5.06.14 Although
§ 5.06 appears nowhere in the complaint15 and sets forth specific
procedures that were never invoked, Justice Hagedorn concludes
it nevertheless confers standing on the Wisconsin voters.16 It
can't.
14 Justice Hagedorn's Concurrence, ¶164.
15Pointing out that § 5.06 appears nowhere in the complaint
isn't a "complaint"; it's just a fact. Id., ¶164 n.3.
16Justice Hagedorn asserts the Wis. Stat. § 5.06 standing
argument is "in their brief[.]" Id. He continues, "[they]
unquestionably" "raise[d]" this argument. Id.19
No. 2022AP91
¶33 Wisconsin Stat. § 5.06(1) allows "any elector" to file
"a written sworn complaint" with WEC if the elector "believes
that a decision or action" of "an election official" related to
the "conduct of elections is contrary to law[.]" "The
commission may conduct a hearing on the matter in the manner
prescribed for treatment of contested cases under ch. 227 if it
believes such action to be appropriate." § 5.06(1). The
Wisconsin voters, however, have not brought a case against any
local election official but only against WEC—-in circuit court.
As we explain in greater detail below, it would be nonsensical
to have WEC adjudicate a claim against itself under Wis. Stat.
§ 5.06(1).
¶34 If Wis. Stat. § 5.06(1) is the only source of the
Wisconsin voters' legal right to sue, their failure to first
file the complaint with WEC is no minor matter. Section 5.06(2)
declares, "[n]o person who is authorized to file a complaint
The portion of the Wisconsin voters' response brief dealing
with standing is about two pages. Those two pages have two
sentences on Wis. Stat. § 5.06: (1) "Wis. Stat. § 5.06recognizes that 'any elector' has an interest in raising
violations of the election laws"; and (2) "The § 5.06 process
does not apply here, for reasons explained below, infra Part
IV.B, but § 5.06 shows that electors have a 'right' and interest
in elections conducted in accordance with state law." § 5.06
"recognizes" or "shows" that the electors have a "right" to
ensure local election officials comply with the law, but on its
face the statute simply does not confer a right relevant to the
claims brought in this case. In contrast, Wis. Stat. § 6.84(1)
includes a legislative "find[ing]" that "voting is a
constitutional right[.]" Justice Hagedorn dismisses this
language as merely an expression of policy, with apparently no
operative effect. A right that lacks a vehicle for vindication
is a hollow one.
20
No. 2022AP91
under sub. (1), other than the attorney general or a district
attorney, may commence an action or proceeding to test the
validity of any decision, action or failure to act on the part
of any election official with respect to any matter specified in
sub. (1) without first filing a complaint under sub. (1), nor
prior to disposition of the complaint by the commission." No
one suggests the Wisconsin voters are not
"person[s] . . . authorized to file a complaint under sub. (1)."
§ 5.06(2). As Justice Hagedorn acknowledges, "§ 5.06 gives
[Wisconsin voters] a statutory right to have local election
officials in the area[s] where [they] live[] comply with
election laws."17 That statute says "the elector may file a
written sworn complaint with the commission requesting that the
official be required to conform his or her conduct to the law,
be restrained from taking any action inconsistent with the law
or be required to correct any action or decision inconsistent
with the law or any abuse of the discretion vested in him or her
by law." § 5.06 (emphasis added). But § 5.06 says nothing
about filing a complaint in order to force WEC to correct any
action it make take or any decision it may make, which are
inconsistent with the law. If § 5.06 does not apply to the
Wisconsin voters' complaint against WEC, then how could it
confer standing? Justice Hagedorn does not explain.
¶35 Justice Hagedorn's cognitively dissonant criticisms of
our standing analysis apply equally to his own. He says our
17 Justice Hagedorn's Concurrence, ¶164.
21
No. 2022AP91
standing analysis "suggests [we] create[] broad voter standing
against any election official or WEC by any elector for nearly
any purported violation of any election law."18 But Justice
Hagedorn articulates an indistinguishably broad basis for
standing, concluding the Wisconsin voters have "a legal right
protected by Wis. Stat. § 5.06 to have local election officials
in [their] area comply with the law."19 He complains our
standing analysis is not "tether[ed] . . . to an on-point
text[.]"20 But our analysis is "tethered" to Wis. Stat.
§ 6.84(1), which incontrovertibly applies to the Wisconsin
voters, while Justice Hagedorn's analysis is tethered only to a
concededly inapplicable statute. Unlike our standing analysis,
Justice Hagedorn's penumbra standing is not limited to election
disputes but logically extends across the Wisconsin statutes.21
¶36 Even under the stricter standing test federal courts
apply, impairment of the right to vote has been deemed
sufficient to confer standing. While so-called "generalized
grievances" "do not normally constitute a particularized injury
necessary to establish standing," "the fact that 'a harm is
18 Id., ¶167.
19 Id., ¶165.
20 Id., ¶167.
Justice Hagedorn insists his "standing analysis applies
21
only to challenges under Wis. Stat. § 227.40(1) to WEC rules and
guidance documents when that guidance threatens to cause local
election officials to behave illegally[.]" Id., ¶167 n.8. His
reasoning logically extends further, notwithstanding his
artificial narrowing in a footnote.
22
No. 2022AP91
widely shared does not necessarily render it a generalized
grievance.'" Donald J. Trump for President, Inc. v. Bullock,
491 F. Supp. 3d 814, 828 (D. Mont. 2020) (quoting Novak v.
United States, 795 F.3d 1012, 1018 (9th Cir. 2015)). "In fact,
the [United States] Supreme Court has been clear that 'where a
large number of voters suffer interference with voting rights'
the interests related to that are sufficiently concrete to
obtain the standing necessary to seek redress in an Article III
Court." Id. (quoting F.E.C. v. Akins, 524 U.S. 11, 24 (1998));
see also id. ("Because the alleged injuries to the members'
voting rights at issue in this case could conceivably be
asserted by any Montanan does not eradicate the standing
necessary to assert these claims. On the contrary, the Supreme
Court has repeatedly enumerated the principle that claims
alleging a violation of the right to vote can constitute an
injury in fact despite the widespread reach of the conduct at
issue."). Wisconsin voters have alleged an injury to their
right to vote sufficient to confer standing.
2. The Law Does Not Require Wisconsin Voters to File Their
Complaint Against WEC with WEC
¶37 Article IV, Section 27 of the Wisconsin Constitution
provides: "The legislature shall direct by law in what manner
and in what courts suits may be brought against the state."
"From this provision the rule developed that the state cannot be
sued without its consent." Lister v. Bd. of Regents of Univ. of
Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976). DRW,
quoting part of this sentence from Lister, argues sovereign
23
No. 2022AP91
immunity bars this lawsuit because the Wisconsin voters did not
first file their complaint with WEC, which DRW asserts is a
jurisdictional prerequisite under Wis. Stat. § 5.06(1).
¶38 Importantly, the only party that could claim to
represent the sovereign in this case——WEC——has abandoned any
sovereign immunity argument. In its answer, WEC asserted,
"[s]ome of [the Wisconsin voters'] claims are barred by
sovereign immunity," but it did not say which ones. WEC did not
discuss sovereign immunity at all in its briefing. When asked
for WEC's position on this issue during oral argument before
this court, WEC's attorney responded:
Counsel: Well, to be consistent we did not take a
position on it one way or the other in
briefing, and I'm not going to take a position
on behalf of the Commission in oral argument
either, so it's a "no position" type of
response, for standing and for sovereign
immunity, because although we raised it, we're
content with the other parties pushing that
forward. We chose for strategic purposes to
focus our briefs on other things.
Court: That leaves me perplexed. Do you agree with
their standing and sovereign immunity
arguments, even though you are not advancing
them? I don't want to necessarily pin you
down, but I do want clarity. Revisit that
answer, if you will.
Counsel: I understand you don't like the non-answer
that I provided. But the position of the
Commission is, yes, we raised them in the
answer, but we chose not to put them forward
in our brief. We did not choose to adopt by
incorporation or by reference those arguments;
we did not say we are in disagreement with
them either.
24
No. 2022AP91
DRW's argument fails because a private party cannot raise and
maintain an affirmative defense that belongs to the State.
¶39 "Sovereign immunity is a defense which can be raised
by the state alone and does not go to the merits or primary
object of the action. For this reason, sovereign immunity is a
defense to personal jurisdiction which can be waived." City of
Kenosha v. State, 35 Wis. 2d 317, 328, 151 N.W.2d 36 (1967)
(emphasis added); Cords v. State, 62 Wis. 2d 42, 46, 214
Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that
sovereign immunity is a defense to the personal jurisdiction of
the court which can be waived. Objection to personal
jurisdiction must be raised specifically or be deemed waived.
It is not sufficient to make a general demurrer that the
complaint does not state facts sufficient to constitute a cause
of action.").
¶40 DRW does not address City of Kenosha or Cords, instead
claiming in conclusory fashion, "because sovereign immunity is a
jurisdictional bar to the court's jurisdiction, it is properly
raised at any juncture, and, once raised, must be adjudicated
before the merits." The two cases DRW cites in support of this
proposition have nothing to do with sovereign immunity (the
phrase does not even appear in the opinions), and the cases are
actually about subject matter jurisdiction, not personal
jurisdiction.
¶41 The first case DRW cites, Bartus v. DHSS, states:
Jurisdictional challenges may be raised at any
juncture during a court proceeding. In the instant
25
No. 2022AP91
case, the circuit court was reviewing the propriety of
a Department decision to revoke a probationer's term
for failure to pay restitution. Bartus's
jurisdictional challenge to the 1988 sentence which
imposed the restitution, was therefore central to the
subject matter jurisdiction of the court on review.
176 Wis. 2d 1063, 1082–83, 501 N.W.2d 419 (1993) (emphasis
added). Bartus merely recites a well-known rule, repeated in
many cases, that arguments against subject matter jurisdiction
cannot be forfeited or waived. See City of Cedarburg, 390
Wis. 2d 109, ¶49 (citing Booth, 370 Wis. 2d 595, ¶1); see also
United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-
matter jurisdiction, because it involves a court's power to hear
a case, can never be forfeited or waived."). Equally well
established is the rule that personal jurisdiction can be
forfeited or waived. Wis. Stat. § (Rule) 802.06(8)(a).
¶42 The only other case DRW cites in support of its claim
that sovereign immunity can raised at any juncture similarly
demonstrates DRW's failure to distinguish between subject matter
jurisdiction and personal jurisdiction. See Harrigan v.
Gilchrist, 121 Wis. 127, 224, 99 N.W. 909 (1904) ("A challenge
to the jurisdiction of the trial court of the subject matter of
the action is proper at any time[.]" (Emphasis added)).
¶43 DRW is not a state agency, so it cannot assert
sovereign immunity. Although WEC asserted in its answer that
sovereign immunity barred "some" of the Wisconsin voters'
claims, it did not say which ones. No reasonable judge could
view WEC's briefing and answers at oral argument as maintaining
a sovereign immunity defense. WEC's attorney even said at oral
26
No. 2022AP91
argument that WEC takes "no position" on the matter. Although
DRW argued sovereign immunity in its brief, WEC's attorney
demurred at oral argument: "We did not choose to adopt by
incorporation or by reference those arguments." Such statements
conflict with any claimed refusal to submit to a court's
jurisdiction. We conclude WEC knowingly abandoned, and
therefore waived, sovereign immunity.
¶44 At best, DRW's objection implicates the court's
competency, which lacks any constitutional importance.
"[S]ubject matter jurisdiction and competence are related but
distinct concepts." City of Cedarburg, 390 Wis. 2d 109, ¶49.
"Subject matter jurisdiction . . . refers 'to the power of
a . . . court to decide certain types of actions.'" Booth, 370
Wis. 2d 595, ¶7 (quoting State v. Smith, 2005 WI 104, ¶18, 283
Wis. 2d 57, 699 N.W.2d 508). "In other words, subject matter
jurisdiction is about the type or category of case brought."
City of Cedarburg, 390 Wis. 2d 109, ¶49. In contrast,
"[c]ompetence . . . is about a court's ability to exercise its
jurisdiction in an individual case." Id. With few exceptions,
"a circuit court is never without subject matter jurisdiction;"
however, "[a] circuit court's ability to exercise its subject
matter jurisdiction in individual cases . . . may be affected by
noncompliance with statutory requirements pertaining to the
invocation of that jurisdiction." See Booth, 370 Wis. 2d 595,
¶12 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶1–
2, 273 Wis. 2d 76, 681 N.W.2d 190). Noncompliance with a
required statutory procedure can trigger a competence question,
27
No. 2022AP91
but a lack of competence is not jurisdictional. City of
Cedarburg, 390 Wis. 2d 109, ¶47 (citing Mikrut, 273 Wis. 2d 76,
¶¶12, 34).
¶45 DRW's argument is underdeveloped, perhaps because it
spent large swaths of its briefing trying to create a
constitutional issue when one does not exist. We need not
address underdeveloped arguments. Papa v. Wis. Dep't of Health
Servs., 2020 WI 66, ¶42 n.15, 393 Wis. 2d 1, 946 N.W.2d 17. We
nonetheless choose to resolve this one because of the issue's
importance in the context of election law.
¶46 DRW cites Wis. Stat. § 5.06, which states, in relevant
part:
(1) Whenever any elector of a jurisdiction or district
served by an election official believes that a
decision or action of the official or the failure
of the official to act with respect to any matter
concerning . . . election administration or conduct
of elections is contrary to law, or the official
has abused the discretion vested in him or her by
law with respect to any such matter, the elector
may file a written sworn complaint with the
commission requesting that the official be required
to conform his or her conduct to the law, be
restrained from taking any action inconsistent with
the law or be required to correct any action or
decision inconsistent with the law or any abuse of
the discretion vested in him or her by law.
(2) No person who is authorized to file a complaint
under sub. (1), other than the attorney general or
a district attorney, may commence an action or
proceeding to test the validity of any decision,
action or failure to act on the part of any
election official with respect to any matter
specified in sub. (1) without first filing a
complaint under sub. (1), nor prior to disposition
of the complaint by the commission. . . .
28
No. 2022AP91
According to DRW, the law bars the Wisconsin voters' complaint
against WEC because they did not first file it with WEC.
Section 5.06, read in context, does not mean what DRW claims.
See Brey v. State Farm Mut. Auto Ins. Co., 2022 WI 7, ¶11, 400
Wis. 2d 417, 970 N.W.2d 1 (explaining statutes are read in
context).
¶47 First, Wis. Stat. § 5.06(1) applies only to complaints
against "election official[s]." "Election officials" are
specific "individuals" (not "person[s]")22 who are "charged with
any duties relating to the conduct of an election." Wis. Stat.
§ 5.02(4e). The Wisconsin voters brought this lawsuit against
WEC, not any individual, alleging WEC's memos do not comport
with the law. "In chs. 5 to 10 and 12 [of the Wisconsin
statutes]," the word "commission" is used to refer to WEC. Wis.
Stat. § 5.025. Section 5.06 does not require voters to complain
to the "commission" when they believe WEC has violated the law——
only when they believe an "election official" has. Intuitively,
this distinction makes sense: "No man is allowed to be a judge
in his own cause; because his interest will certainly bias his
judgment, and, not improbably, corrupt his integrity." The
Federalist No. 10, at 107 (James Madison) (John C. Hamilton ed.,
1882); see also The Code of Justinian 3.5.1 (Valens, et al. 378)
("[N]o one shall act as judge in his own case, or interpret the
law for himself, as it would be very unjust to give anyone the
See Wis. Stat. § 990.01(26) ("'Person' includes all
22
partnerships, associations and bodies politic or corporate.").
29
No. 2022AP91
right to render a decision in an affair which is his own.").
DRW's reliance on cases involving claims against election
officials——not WEC——is misplaced. See Kuechmann v. Sch. Dist.
of La Crosse, 170 Wis. 2d 218, 487 N.W.2d 639 (Ct. App. 1992).
¶48 Second, the remedies WEC can impose under Wis. Stat.
§ 5.06(6) would be senseless if they were applied by WEC against
itself. Is WEC supposed to "order" itself to "conform" its (not
"his or her") "conduct to the law"? § 5.06(1). Can WEC order
itself "restrain[ed]" or "require[]" itself to "correct any
action or decision" it has taken that is "inconsistent with the
law"? Id. The plain language of § 5.06(6) does not contemplate
giving an election official a chance to reconsider the
official's position; it contemplates WEC issuing binding
directives to such officials.
¶49 Third, the legislature knows how to write a statute
accomplishing the work DRW would have Wis. Stat. § 5.06 perform.
See State v. Yakich, 2022 WI 8, ¶24, 400 Wis. 2d 549, 970
N.W.2d 12 (explaining plain meaning may be derived by looking at
differences between two statutes and noting "the legislature
knew how to draft [different] language" (quoting Milwaukee J.
Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶36–37, 341
Wis. 2d 607, 815 N.W.2d 367) (modification in the original)).
For example, Wis. Stat. § 68.09(2), which governs municipal
administrative review, states, "[a] review under this section
may be made by the officer, employee, agent, agency, committee,
board, commission or body who made the initial determination."
No similar explicit language appears in § 5.06. The
30
No. 2022AP91
commissioners of WEC guard elections; if the legislature wanted
the guards to guard themselves, it would have drafted § 5.06 to
mirror § 68.09(2).23
¶50 Fourth, the Wisconsin voters filed this case under
Wis. Stat. § 227.40. Subsection (1) of that statute states,
"[a] declaratory judgment may be rendered whether or not the
plaintiff has first requested the agency to pass upon the
validity of the rule or guidance document in question."
Although Wis. Stat. § 5.06 could be construed to conflict with
§ 227.40(1), such a reading would be erroneous. When reasonably
possible, we read statutes in harmony, and a harmonious reading
is quite reasonable in this case. See T.L.E.-C., 397
Wis. 2d 462, ¶30 ("The statutory provisions we construe exist in
harmony."); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 180 (2012) ("The provisions of a
text should be interpreted in a way that renders them
compatible, not contradictory."). Accordingly, we need not
consider DRW's argument that § 5.06 is a more specific statute
that trumps § 227.40.24 See Milwaukee Dist. Council 48 v.
The
23 Wisconsin voters ask, "quis custodiet ipsos
custodes?" Translated to English, "who will be guarding the
guards?" See The Satires of Juvenal 78 (Rolfe Humphries trans.,
1958) (emphasis removed).
If we were to address the specific-general canon on which
24
defendants rely, which statute should govern is unclear.
Wisconsin Stat. § 5.06 is more specific in the sense that it
references election disputes, but Wis. Stat. § 227.40 is more
specific in governing judicial review of administrative rules
and guidance documents.
31
No. 2022AP91
Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924
N.W.2d 153 ("Therefore, statutory language is interpreted in the
context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
unreasonable results." (quoting State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681
N.W.2d 110)); Scalia & Garner, Reading Law, at 183 (explaining
the general-specific canon applies "when conflicting provisions
simply cannot be reconciled").
¶51 For each of these reasons, we reject DRW's argument.
Whether framed in terms of sovereign immunity or competency, it
fails. Neither the statutes nor judicial policy precludes this
court from resolving the Wisconsin voters' claims against WEC.
B. The Merits
¶52 WEC's staff may have been trying to make voting as
easy as possible during the pandemic, but whatever their
motivations, WEC must follow Wisconsin statutes. Good
intentions never override the law.25
25Justice Ann Walsh Bradley accuses the court of
"erect[ing] yet another barrier for voters," dissent, ¶205, but
to the extent any "barriers" to voting exist, they are of the
legislature's making. Establishing rules governing the casting
of ballots outside of election day rests solely within the power
of the people's representatives because such regulations affect
only the privilege of absentee voting and not the right to vote
itself. Justice Ann Walsh Bradley says "[a] ballot drop box is
a simple and perfectly legal solution to make voting easier[.]"
Id., ¶207. While they might be a simple solution, the decision
to devise solutions to make voting easier belongs to the
legislature, not WEC and certainly not the judiciary. While the
dissenters would permit ballot drop boxes, the court must
32
No. 2022AP91
1. Legislative Policy Directs Us to Take a Skeptical View of
Absentee Voting
¶53 Subchapter IV of chapter 6 of the Wisconsin statutes
begins with a statement of legislative policy that cannot be
reconciled with the statements of policy contained in WEC's
memos:
LEGISLATIVE POLICY. The legislature finds that voting is
a constitutional right, the vigorous exercise of which
should be strongly encouraged. In contrast, voting by
absentee ballot is a privilege exercised wholly
outside the traditional safeguards of the polling
place. The legislature finds that the privilege of
voting by absentee ballot must be carefully regulated
to prevent the potential for fraud or abuse; to
prevent overzealous solicitation of absent electors
who may prefer not to participate in an election; to
prevent undue influence on an absent elector to vote
for or against a candidate or to cast a particular
vote in a referendum; or other similar abuses.
Wis. Stat. § 6.84(1); see also Mays v. LaRose, 951 F.3d 775, 792
(6th Cir. 2020) ("[T]here is no constitutional right to an
absentee ballot." (citing McDonald v. Bd. of Elections Comm'rs
of Chi., 394 U.S. 802, 807–09 (1969)). The statutory
requirements governing absentee voting must be completely
satisfied or ballots may not be counted:
INTERPRETATION. Notwithstanding s. 5.01 (1), with
respect to matters relating to the absentee ballot
process, ss. 6.86, 6.87 (3) to (7) and 9.01 (1) (b) 2.
and 4. shall be construed as mandatory. Ballots cast
in contravention of the procedures specified in those
provisions may not be counted. Ballots counted in
contravention of the procedures specified in those
provisions may not be included in the certified result
of any election.
respect the constitutional restraints on our power and refuse to
act as a super-legislature. It poses a grave threat to
democracy to mislead the people into believing we are one.
33
No. 2022AP91
§ 6.84(2). "[M]andatory" election requirements "must be
strictly adhered to" and "strictly observed." State ex rel.
Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 592–93, 263
N.W.2d 152 (1978).
¶54 Despite these provisions, no defendant can point to
any statute authorizing ballot drop boxes; instead, the
defendants argue no statute expressly prohibits them. The
absence of an express prohibition, however, does not mean drop
boxes comport with "the procedures specified" in the election
laws. Wis. Stat. § 6.84(2). Nothing in the statutory language
detailing the procedures by which absentee ballots may be cast
mentions drop boxes or anything like them.
2. Ballot Drop Boxes Are Unauthorized by Law
¶55 Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant
part, that absentee ballots "shall be mailed by the elector, or
delivered in person, to the municipal clerk issuing the ballot
or ballots." The prepositional phrase "to the municipal clerk"
is key and must be given effect. Wisconsin Stat. § 5.02(10)
defines "municipal clerk" as "the city clerk, town clerk,
village clerk and the executive director of the city election
commission and their authorized representatives. Where
applicable, 'municipal clerk' also includes the clerk of a school
district." An inanimate object, such as a ballot drop box,
cannot be the municipal clerk. At a minimum, accordingly,
dropping a ballot into an unattended drop box is not delivery
"to the municipal clerk[.]"
34
No. 2022AP91
¶56 Wisconsin Stat. § 6.855 further shows the unlawfulness
of ballot drop boxes. Subsection (1) of that statute states:
The governing body of a municipality may elect to
designate a site other than the office of the
municipal clerk or board of election commissioners as
the location from which electors of the municipality
may request and vote absentee ballots and to which
voted absentee ballots shall be returned by electors
for any election. The designated site shall be
located as near as practicable to the office of the
municipal clerk or board of election commissioners and
no site may be designated that affords an advantage to
any political party. An election by a governing body
to designate an alternate site under this section
shall be made no fewer than 14 days prior to the time
that absentee ballots are available for the primary
under s. 7.15 (1) (cm), if a primary is scheduled to
be held, or at least 14 days prior to the time that
absentee ballots are available for the election under
s. 7.15 (1) (cm), if a primary is not scheduled to be
held, and shall remain in effect until at least the
day after the election. If the governing body of a
municipality makes an election under this section, no
function related to voting and return of absentee
ballots that is to be conducted at the alternate site
may be conducted in the office of the municipal clerk
or board of election commissioners.
Subsection (3) declares an alternate absentee ballot site must
be "staffed by the municipal clerk or the executive director of
the board of election commissioners, or employees of the clerk
or the board of election commissioners." Subsection (5) allows
the establishment of multiple alternate sites.
¶57 Ballot drop boxes are not alternate absentee ballot
sites under Wis. Stat. § 6.855 because a voter can only return
the voter's absentee ballot to a drop box, while an alternate
site must also allow voters to request and vote absentee at the
site. If a drop box were an alternate ballot site, by the plain
35
No. 2022AP91
language of the statute, "no function related to voting and
return of absentee ballots that is to be conducted at the
alternate site may be conducted in the office of the municipal
clerk or board of election commissioners." § 6.855(1). The
defendants do not advance this construction of the statutes.
¶58 If ballot drop boxes are not alternate absentee ballot
sites, "what [are] they?" Trump v. Biden, 2020 WI 91, ¶101, 394
Wis. 2d 629, 951 N.W.2d 568 (Roggensack, C.J., dissenting).
Existing outside the statutory parameters for voting, drop boxes
are a novel creation of executive branch officials, not the
legislature. The legislature enacted a detailed statutory
construct for alternate sites. In contrast, the details of the
drop box scheme are found nowhere in the statutes, but only in
memos prepared by WEC staff, who did not cite any statutes
whatsoever to support their invention.
¶59 Wisconsin Stat. § 6.855 identifies the sites at which
in person absentee voting may be accomplished——either "the
office of the municipal clerk" or "an alternate site" but not
both. "An alternate site" serves as a replacement for "the
office of the municipal clerk" rather than an additional site
for absentee voting. Wisconsin Stat. § 6.87(4)(b)1. requires
the elector to mail the absentee ballot or deliver it in person,
"to the municipal clerk," which is defined to include
"authorized representatives." This subparagraph contemplates
only two ways to vote absentee: by mail and at "the office of
the municipal clerk" or "an alternate site" as statutorily
described. No third option exists.
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No. 2022AP91
¶60 Other election statutes are similarly silent on any
other method of voting absentee other than by mail or at the
office of the municipal clerk. Wisconsin Stat. § 5.81(3)
provides, in relevant part: "If a municipality utilizes an
electronic voting system in which ballots distributed to
electors are employed, absentee ballots may consist of ballots
utilized with the system or paper ballots and envelopes voted in
person in the office of the municipal clerk or voted by mail."
The statute states, "absentee ballots may consist of" and then
describes ballots cast "in person in the office of the municipal
clerk" and ballots "voted by mail." § 5.81(3). The legislature
did not contemplate absentee ballots "consist[ing]" of ballots
cast via a drop box.
¶61 In Wis. Stat. § 6.87(4)(b)1. the prepositional phrase,
"to the municipal clerk," modifies both the clause "mailed by
the elector," i.e., absentee ballots "shall be mailed by the
elector . . . to the municipal clerk" as well as "delivered in
person." The defendants contend "to the municipal clerk"
encompasses unstaffed drop boxes maintained by the municipal
clerk. A hyper-literal interpretation of this prepositional
phrase, taken out of context, would permit voters to mail or
personally deliver absentee ballots to the personal residence of
the municipal clerk or even hand the municipal clerk absentee
ballots at the grocery store. "Municipal clerk," however,
denotes a public office, held by a public official acting in an
official capacity when performing statutory duties such as
accepting ballots. The statutes do not authorize the municipal
37
No. 2022AP91
clerk to perform any official duties related to the acceptance
of ballots at any location beyond those statutorily prescribed.
¶62 The fairest interpretation of the phrase "to the
municipal clerk" means mailing or delivering the absentee ballot
to the municipal clerk at her office or, if designated under
Wis. Stat. § 6.855, an alternate site. "Properly applied, the
plain-meaning approach is not 'literalistic'; rather, the
ascertainment of meaning involves a 'process of analysis'
focused on deriving the fair meaning of the text itself." Brey,
400 Wis. 2d 417, ¶11 (quoting Kalal, 271 Wis. 2d 633, ¶¶46, 52).
Adopting a literalistic interpretation instead of applying the
fair meaning of "to the municipal clerk" would similarly subject
any "authorized representative" of the municipal clerk to the
same intrusions of accepting ballots wherever a voter may find
the municipal clerk's representative. Wis. Stat. § 5.02(10).
Interpreting Wis. Stat. § 6.87(4)(b)1. to permit such methods of
casting an absentee ballot would contravene the legislative
policy expressed in Wis. Stat. § 6.84(1) and border on the
absurd. See Scalia & Garner, Reading Law, at 217 ("A preamble,
purpose clause, or recital is a permissible indicator of
meaning.").
¶63 Notwithstanding the detailed and unambiguous language
of Wis. Stat. §§ 6.84 and 6.855, WEC asks this court to conclude
the legislature "hid[] [an] elephant[] in [a] mousehole[.]" See
Whitman v. Amer. Trucking Ass'n, 531 U.S. 457, 468 (2001)
(citations omitted). Coined by Justice Antonin Scalia, this
turn of phrase means the legislature "does not alter the
38
No. 2022AP91
fundamental details of a regulatory scheme in vague terms or
ancillary provisions[.]" Id.; see also Palm, 391 Wis. 2d 497,
¶¶53–56. WEC would have us believe, hiding within four words,
"to the municipal clerk," is an expansive conception of voting
methods never before recognized. We decline to read into the
statutes a monumentally different voting mechanism not specified
by the legislature. See E.P.A. v. EME Homer City Generation,
L.P., 572 U.S. 489, 528 (2014) (Scalia, J., dissenting) ("It
would be extraordinary for Congress, by use of the single word
'significantly,' to transmogrify a statute that assigns
responsibility on the basis of amounts of pollutants emitted
into a statute authorizing EPA to reduce interstate pollution in
the manner that it believes most efficient.").
¶64 WEC and DRW argue the drop box "elephant" is, in fact,
no elephant at all. WEC claims "the Commission did not create
[ballot] drop boxes. The March 2020 memorandum provided
guidance in response to clerks' inquiries about their use, and
there is testamentary evidence that drop boxes were used in
Wisconsin before the August 2020 memorandum." Of course "there
is . . . evidence" drop boxes were used before the issuance of
Memo two because WEC issued Memo one in March, which comes
before August.
¶65 The record evidence WEC cited does not support its
argument that ballot drop boxes have been in common and
longstanding use in this state. First, WEC cites Memo one,
which says, "clerks have inquired about options for ensuring
that the maximum number of ballots are returned to be counted
39
No. 2022AP91
for the April 7, 2020 election." This statement suggests a
state of uncertainty surrounding the legality of drop boxes,
rather than documenting their ostensibly extensive use.
¶66 Second, WEC cites a third memo prepared by WEC's
staff, responding to a recent study by the Legislative Audit
Bureau (LAB), a non-partisan institution. In this report, LAB
concluded WEC had overstepped its lawful authority by
authorizing ballot drop boxes.26 Citing no evidence, this third
memo proclaims "[t]he use of ballot drop boxes at the local
level in Wisconsin, and elsewhere in the country, predates the
Wisconsin Election Commission's . . . August 19, 2020,
memorandum on the topic[.]" For support, WEC noted, "no
Wisconsin court has foreclosed the idea of lawfully using
absentee ballot drop boxes," expressly referencing this very
case and adding, "[t]he case is ongoing and no resolution has
been reached at this time." For this third memo to be given any
weight would require us to hold a government agency can be sued
and then issue what amounts to a press release that it can cite
as support for its interpretation of law.
26 Legislative Audit Bureau, Elections Administration
(2021), https://legis.wisconsin.gov/lab/media/3288/21-
19full.pdf; see also Off. of the Special Couns., Second Interim
Investigative Report on the Apparatus & Procedures of the
Wisconsin Elections System 78 (Mar. 1, 2022),
https://legis.wisconsin.gov/assembly/22/brandtjen/media/1552/osc
-second-interim-report.pdf ("In Wisconsin, election officials'
unprecedented use of absentee ballot drop boxes facially
violated Wisconsin law.").
40
No. 2022AP91
¶67 Third, WEC cites its own website, which has a page
that is not significantly different than the third memo. The
page bears the heading "[w]hy did WEC allow clerks to use drop
boxes for absentee ballots?" WEC offers the following
conclusory statement: "some clerks have used them prior to
2020" but supplies no evidence.
¶68 Lastly, WEC (along with DRW) cites an affidavit from
Administrator Wolfe as evidence of the supposedly "extensive
history" of ballot drop boxes in Wisconsin. The affidavit
merely says, "[t]he use of absentee ballot drop boxes in the
United States predates the [COVID-19] pandemic." Again,
Administrator Wolfe offers no evidence to support this
statement. Even if the assertions regarding the historical use
of ballot boxes were true, they are irrelevant. Longstanding
noncompliance with the law does not cure its illegality.
¶69 Perhaps realizing "delivery in person[] to the
municipal clerk" does not mean nor has it been historically
understood to mean delivery to an unattended ballot drop box,
the defendants analogize these boxes to a mailbox. Of course,
the law expressly allows a voter to place an absentee ballot in
a mailbox. Wis. Stat. § 6.87(4)(b)1. ("shall be mailed by the
elector . . . ."). Ballot drop boxes, however, are not
mailboxes.
¶70 The ordinary meaning of "mailed by the elector" in
Wis. Stat. § 6.87(4)(b)1. contemplates involvement by a third-
party mail carrier. The very next sentence of the statute
declares, "[i]f the envelope is mailed from a location outside
41
No. 2022AP91
the United States, the elector shall affix sufficient postage
unless the ballot qualifies for delivery free of postage under
federal law." § 6.87(4)(b)1. To affix postage to an absentee
ballot placed in a ballot drop box would be a waste of a
perfectly good stamp. Similarly, § 6.87(3)(a) directs, in
relevant part, "the municipal clerk shall mail the absentee
ballot to the elector's residence . . . . If the ballot is
mailed, and the ballot qualifies for mailing free of postage
under federal free postage laws, the clerk shall affix the
appropriate legend required by U.S. postal regulation.
Otherwise, the clerk shall pay the postage required[.]" In
common parlance, "mail" may encompass delivery services by
private businesses such as FedEx or UPS, in addition to the
United States Postal Service.27
¶71 If there were any lingering doubt about the difference
between drop boxes and mailing, drop boxes trigger the very
concerns the legislature expressly seeks to avoid. "[V]oting by
absentee ballot is a privilege exercised wholly outside the
traditional safeguards of the polling place. The legislature
finds that the privilege of voting by absentee ballot must be
carefully regulated to prevent the potential for fraud or
abuse[.]" Wis. Stat. § 6.84(1). As the Wisconsin voters argue,
"a drop box contains only ballots, and lots of them in one place
27The plain meaning of "mail" supports this conclusion.
See Mail, The American Heritage Dictionary of the English
Language 1083 (3d ed. 1992) ("To send by mail;" "Materials, such
as letters and packages, handled in a postal system.").
42
No. 2022AP91
at the same time, making it a prime target for would-be
tamperers, whereas mailboxes may or may not contain ballots at
any given time." While the legislature has recognized absentee
voting has many benefits for voters, the legislature has also
enacted safeguards designed to minimize the possibility of
fraud. "Voting fraud is a serious problem in U.S.
elections[,] . . . and it is facilitated by absentee voting. In
this respect absentee voting is to voting in person as a take-
home exam is to a proctored one." Griffin v. Roupas, 385
F.3d 1128, 1130–31 (7th Cir. 2004) (internal citations omitted).
¶72 We conclude WEC's staff erred by authorizing a voting
mechanism not authorized by law. The memos created a ballot
drop box scheme entirely absent from Wisconsin's election code.
The legislature's "carefully regulated" procedures for absentee
voting do not permit voting via ballot drop boxes.
3. "[I]n Person" Absentee Voting Requires the Voter to
Personally Deliver the Ballot to the Municipal Clerk
¶73 WEC's staff also erred in Memo one by stating "[a]
family member or another person may . . . return the ballot on
behalf of the voter," i.e., an agent of the voter may place the
voter's absentee ballot in a drop box. The law does not permit
this. Wisconsin Stat. § 6.87(4)(b)1. states, in relevant part,
"[t]he envelope shall be mailed by the elector, or delivered in
person, to the municipal clerk issuing the ballot or ballots."
(Emphasis added.) The key phrase is "in person" and it must be
assigned its natural meaning.
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No. 2022AP91
¶74 "[I]n person" denotes "bodily presence" and the
concept of doing something personally. in person, The Oxford
English Dictionary 598 (2d. ed. 1989) (defining "in person" as
"with or by one's own action or bodily presence; personally;
oneself"); Person, Webster's Third New International Dictionary
1686 (2002) ("bodily presence —— usu. used in the phrase in
person"); in person, The Random House Dictionary of the English
Language 1445 (2d ed. 1987) ("in one's own bodily presence;
personally; Applicants are requested to apply in person.").
¶75 As used throughout Wisconsin's election code, the
phrase "in person" refers to a voter acting directly, not
through an agent. See 5 Wis. Att'y Gen. 591, 592 (1916) ("The
statute says: 'Application for such ballot shall be made in
person.' (Sec. 11.56.) The ordinary meaning of the phrase 'in
person' is that the request must come directly from the elector
who was corporally present before the clerk."). For example,
Wis. Stat. § 6.86(1)(a) states, in relevant part:
(a) Any elector of a municipality who is registered to
vote whenever required and who qualifies under ss.
6.20 and 6.85 as an absent elector may make written
application to the municipal clerk of that
municipality for an official ballot by one of the
following methods:
1. By mail.
2. In person at the office of the municipal clerk
or at an alternate site under s. 6.855, if
applicable.
. . . .
4. By agent as provided in sub. (3).
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No. 2022AP91
(Emphasis added.) Section 6.86(1)(a) unequivocally
distinguishes between "in person" and "by agent." Subsection
(3) then begins by stating, "[a]ny elector who is registered and
who is hospitalized, may apply for and obtain an official ballot
by agent." § 6.86(3)(a)1. (Emphasis added.) It then describes
the process of receiving a ballot by agent. The legislature
obviously knows how to authorize a voter to act through an
agent; it used such language in § 6.86 but not Wis. Stat.
§ 6.87. See Yakich, 400 Wis. 2d 549, ¶24 (quoting Milwaukee J.
Sentinel, 341 Wis. 2d 607, ¶¶36–37).
¶76 Other election statutes also explicitly describe an
agency relationship. For example, the phrase "municipal clerk"
includes "authorized representatives." Wis. Stat. § 5.02(10)
("'Municipal clerk' means the city clerk, town clerk, village
clerk and the executive director of the city election commission
and their authorized representatives. Where applicable,
'municipal clerk' also includes the clerk of a school
district."); see also § 5.02(2) ("'County clerk' includes the
executive director of the county board of election commissioners
and their authorized representatives.").
¶77 Unlike "municipal clerk," the definition of "elector"
does not encompass an agency relationship. Wis. Stat. § 6.02(1)
("Every U.S. citizen age 18 or older who has resided in an
election district or ward for 28 consecutive days before any
election where the citizen offers to vote is an eligible
elector."); see also Wis. Stat. § 6.85(1) ("An absent elector is
any otherwise qualified elector who for any reason is unable or
45
No. 2022AP91
unwilling to appear at the polling place in his or her ward or
election district."); Wis. Stat. § 5.02(12n) ("'Overseas
elector' means a U.S. citizen who is residing outside of the
United States, who is not disqualified from voting under s.
6.03, who has attained or will attain the age of 18 by the date
of an election at which the citizen proposes to vote, who was
last domiciled in this state or whose parent was last domiciled
in this state immediately prior to the parent's departure from
the United States, and who is not registered to vote or voting
in any other state, territory, or possession.").
¶78 WEC does not address this dispositive statutory
distinction between "in person" and "by agent," instead
primarily emphasizing the presence of the passive voice in Wis.
Stat. § 6.87(4)(b)1.: "The envelope shall be . . . delivered in
person[.]" In support of its argument, WEC quotes a Seventh
Circuit decision as stating: "a legislature's use of the
passive voice sometimes reflects indifference to the actor."
Rubin v. Islamic Republic of Iran, 830 F.3d 470, 479 (7th Cir.
2016), aff’d, 138 S. Ct. 816 (2018). The paragraph from which
WEC selectively seized that sentence defeats WEC's position:
It's true that a legislature's use of the passive
voice sometimes reflects indifference to the actor.
See Dean v. United States, 556 U.S. 568, 572, 129
S.Ct. 1849, 173 L.Ed.2d 785 (2009) ("The passive voice
focuses on an event that occurs without respect to a
specific actor. . . ."). But attributing indifference
to Congress in this instance would be inconsistent
with the FSIA's statutory declaration of purpose,
which explicitly invokes the international law
understanding of foreign sovereign immunity: "Under
international law, states are not immune from the
46
No. 2022AP91
jurisdiction of foreign courts insofar as their
commercial activities are concerned, and their
commercial property may be levied upon for the
satisfaction of judgments rendered against them in
connection with their commercial activities." 28
U.S.C. § 1602[.]
Id. (emphasis added). Rubin suggests the statement of
legislative policy in Wis. Stat. § 6.84 is a better indicator of
statutory meaning than the passive voice used in § 6.87(4)(b)1.
¶79 A case cited by DRW is likewise unpersuasive because
it pre-dates Wis. Stat. § 6.84. In Sommerfeld v. Board of
Canvassers of the City of St. Francis, 18 absentee "voters did
not return . . . absentee ballots in the envelopes by mail, or
deliver[] the same in person, as provided by [a predecessor
statute], but caused the same to be returned to the Clerk of the
City of St. Francis by a third person, who returned the sealed
envelopes to the said Clerk." 269 Wis. 299, 301, 69 N.W.2d 235(1955). A majority of this court concluded:
If our statute is construed to mean that the voter
shall himself mail the ballot or personally deliver it
to the clerk, then the statute would defeat itself in
the case of those who are sick or physically disabled.
They would be unable to mail ballots except through an
agent. Having made provision that these unfortunate
people can vote, we cannot believe that the
legislature meant to disenfranchise them by providing
a condition that they could not possibly perform.
Id. at 303. To the extent Sommerfeld has any relevance, it too
undercuts the defendants' arguments.
¶80 First, the legislature superseded Sommerfeld's
conclusion in 1986 by adopting Wis. Stat. § 6.84. 1985 Wis. Act
304, § 68n. Section 6.84(2) provides that "with respect to
matters relating to the absentee ballot process," several
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No. 2022AP91
statutes, including § 6.87(4), "shall be construed as mandatory.
Ballots cast in contravention of the procedures specified in
those provisions may not be counted. Ballots counted in
contravention of the procedures specified in those provisions
may not be included in the certified result of any election."
The adoption of § 6.84 renders Sommerfeld a nullity. The
majority in that case relied on a different statutory provision:
"Section 5.011 provides that Title II shall be construed so as
to give effect to the will of the electors, if that can be
ascertained, notwithstanding informality or failure to comply
with some of its provisions."28 Sommerfeld, 269 Wis. at 302.
¶81 The Sommerfeld majority deemed the in person delivery
requirement "directory only," so it reasoned "a delivery of
ballots by agent is a substantial compliance" permitting the
counting of the ballots. Id. at 304. In election law, "[t]he
difference between mandatory and directory provisions of
election statutes lies in the consequence of nonobservance: an
act done in violation of a mandatory provision is void, whereas
an act done in violation of a directory provision, while
improper, may nevertheless be valid." Id. at 303 (quoting 29
C.J.S. § 214). Much of the majority opinion in Sommerfeld is
spent explaining why the majority deemed the relevant statute
merely directory and describing the "complaint" as "purely
See Wis. Stat. § 5.01(1) ("Except
28 as otherwise provided,
chs. 5 to 12 shall be construed to give effect to the will of
the electors, if that can be ascertained from the proceedings,
notwithstanding informality or failure to fully comply with some
of their provisions.").
48
No. 2022AP91
technical." Id. at 304. This entire discussion of how to
classify a statute——mandatory or directory——seemed to rest on
the assumption that the statute was not followed; if the statute
were followed, the majority would not have needed to declare the
law merely directory.
¶82 Three justices dissented, offering a statutory
interpretation consistent with our reading of Wis. Stat.
§ 6.87(4)(b)1. The dissent defined "in person" as "[b]y one's
self; with bodily presence." Id. at 304 (Gehl, J., dissenting)
(quoting in person, Webster's New International Dictionary (2d
ed. 1934)). It then noted, "[h]ad the legislature intended that
the ballot might be delivered by a representative, it might
easily have so declared." Id. "Nothing is found in the
statutes concerning absentee voting that indicates legislative
disposition to permit the absentee ballot to be delivered by
agent." Id. at 305.
¶83 Reading the election statutes in context and as a
whole, we conclude an absentee ballot delivered in person under
Wis. Stat. § 6.87(4)(b)1. must be delivered personally by the
voter. Unlike Wis. Stat. § 6.86, which allows the receipt of an
absentee ballot through an agent under particular circumstances
and subject to detailed procedures, no similar language
authorizes voters not meeting the exceptions outlined under
§ 6.86 to cast a ballot through delivery by an agent.
IV. FEDERAL PREEMPTION
¶84 DRW argues federal law preempts the circuit court's
interpretation of Wisconsin statutes. It cites 52
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No. 2022AP91
U.S.C. § 10508 (2018), which provides, "[a]ny voter who requires
assistance to vote by reason of blindness, disability, or
inability to read or write may be given assistance by a person
of the voter's choice[.]" DRW claims "[t]he assistance
addressed [in this statute] . . . extends to returning that
ballot so it may be counted." DRW's discussion of § 10508 is
limited to one paragraph in its opening brief. It cites nothing
more than a single source of legislative history for support.
DRW selectively quotes from this report, omitting the first
sentence of the paragraph on which it relies, which states:
"STATE PROVISIONS WOULD BE PREEMPTED ONLY TO THE EXTENT THAT
THEY UNDULY BURDEN THE RIGHT RECOGNIZED IN THIS SECTION, WITH
THAT DETERMINATION BEING A PRACTICAL ONE DEPENDENT UPON THE
FACTS." See S. Rep. No. 97-417 (1982), 97th Cong., 2d Sess. at
63. Additionally, DRW does not address Wis. Stat. § 6.87(5),
which states:
If the absent elector declares that he or she is
unable to read, has difficulty in reading, writing or
understanding English or due to disability is unable
to mark his or her ballot, the elector may select any
individual, except the elector's employer or an agent
of that employer or an officer or agent of a labor
organization which represents the elector, to assist
in marking the ballot, and the assistant shall then
sign his or her name to a certification on the back of
the ballot, as provided under s. 5.55.
The language of this subsection is similar to § 10508.
¶85 DRW also cites the Americans with Disabilities Act
(ADA), but, similarly, its discussion of the ADA is limited to a
single paragraph in its opening brief. DRW does not cite any
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No. 2022AP91
binding cases supporting its preemption argument, nor does DRW
discuss preemption in its reply brief, even though the Wisconsin
voters complained the argument was underdeveloped.
¶86 As far as we can discern, DRW's argument largely rests
on the practical impact of the circuit court's declarations on
disabled voters who may be physically unable to vote if someone
cannot place an absentee ballot in the mail on a voter's behalf.
We agree with the Wisconsin voters that DRW's argument is
underdeveloped. See State v. Gracia, 2013 WI 15, ¶28 n.13, 345
Wis. 2d 488, 826 N.W.2d 87 (explaining we do not have to address
underdeveloped arguments (cited source omitted)); see also In re
Disciplinary Proc. Against Johns, 2014 WI 32, ¶45, 353
Wis. 2d 746, 847 N.W.2d 179 (per curiam) ("The OLR ignores the
topic in its reply brief. . . . We take this lack of reply by
the OLR as a concession[.]" (cited source omitted)). Because
"[p]reemption . . . is disfavored 'in the absence of persuasive
reasons,'" the shallowness of the argument undermines it. See
Town of Delafield, 392 Wis. 2d 427, ¶6 (quoting Chi. & N.W.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981)).
Whatever accommodations federal law requires, Wis. Stat.
§ 6.87(5) seems to permit them. See also Wis. Stat.
§ 6.87(4)(b)1. ("The elector may receive assistance under sub.
(5)."). We address the argument no further.
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No. 2022AP91
V. CONCLUSION29
¶87 Only the legislature may permit absentee voting via
ballot drop boxes. WEC cannot. Ballot drop boxes appear
nowhere in the detailed statutory system for absentee voting.
WEC's authorization of ballot drop boxes was unlawful, and we
therefore affirm the circuit court's declarations and permanent
injunction of WEC's erroneous interpretations of law except to
the extent its remedies required absentee voters to personally
mail their ballots, an issue we do not decide at this time, and
we decline to decide at this time whether the memos are also
invalid as unpromulgated administrative rules.
By the Court.——The judgment and order of the Circuit Court
is affirmed.
29 "Finally, and most importantly, the dissent's resort to
[ad hominem attacks on the majority] is a poor substitute for
legal argument. Such personal aspersions have no place in a
judicial opinion. . . . [It] do[es] real damage to the public's
perception of this court's work. We must aspire to be better
models of respectful dialogue to preserve the public's
confidence on which this court's legitimacy relies." Becker v.
Dane County, 2022 WI __, ¶44, __ Wis. 2d __, __ N.W.2d __
(Karofsky, J.). Although Justice Jill J. Karofsky recently
complained about the tone of a dissent she deemed too harsh
(joined by Justice Hagedorn, who does not join this footnote),
she nevertheless joins a dissent that accuses her colleagues of
"blithely and erroneously seek[ing] to sow distrust in the
administration of our elections and through its faulty analysis
erect[ing] yet another barrier for voters[.]" Dissent, ¶205.
The dissent continues, "[s]uch a result, although lamentable, is
not a surprise from this court. It has seemingly taken the
opportunity to make it harder to vote or to inject confusion
into the process whenever it has been presented with the
opportunity. . . . [W]ithout justification [the majority] fans
the flames of electoral doubt that threaten our democracy."
Id., ¶¶206, 208. Political talking points are no substitute for
legal analysis.
52
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¶88 PATIENCE DRAKE ROGGENSACK, J. (concurring). The
majority opinion concludes that the Wisconsin Elections
Commission's (WEC) documents (hereinafter memos) are invalid
because ballot drop boxes are not legal in Wisconsin and because
absentee ballots must be personally delivered by the voter to
the municipal clerk at the clerk's office. I agree, and join
the majority opinion. I write further to explain that, under
Wisconsin statutes, it is the elector who shall mail the
absentee ballot to the municipal clerk. Accordingly, I
respectfully concur.
I. BACKGROUND1
¶89 During the COVID-19 pandemic, citizens of Wisconsin
were advised to avoid large crowds and to socially distance from
each other. This advice changed the way that many citizens
participated in personal tasks. For example, during the 2020
Spring election, many voters opted to vote absentee and absentee
voting increased.
¶90 The WEC issued multiple memos, which were directed at
municipal clerks and election officials. Relevant to our
discussion, the first memo stated, among other things, that "[a]
family member or another person may . . . return the ballot on
behalf of a voter." The "return" that was described referred to
returns to drop boxes. Both memos focused on drop boxes,
describing their appearance, their locations and that they may
be used by voters "without having to mail [ballots] back." Drop
1 The majority opinion capably sets out the background
underlying this controversy. Therefore, I describe here only
that which is necessary to understand my writing below.
1
No. 2022AP991.pdr
boxes were suggested as an alternative to mailing ballots for
"voters [] motivated by lack of trust in the postal process,
fear that their ballot could be tampered with, or concern that
their information will be exposed. Voters may also be concerned
about ensuring that their ballot is returned in time to be
counted."2
¶91 Based on the WEC memos, Richard Teigen and Richard
Thom (collectively Teigen), filed suit seeking, in part,
declaratory judgment under Wis. Stat. § 806.04, which provides
that any person "whose rights, status or other legal relations
are affected by a statute . . . may have determined any question
of construction or validity arising under
the . . . statute . . . and obtain a declaration of rights,
status or other legal relations thereunder." § 806.04(2).
Teigen asserted that the WEC's memos violated the provisions of
Wis. Stat. § 6.87(4)(b)1. and Wis. Stat. § 6.855(1); that his
voting rights were affected by these statutes; and Teigen sought
to have a court declare the correct construction of
§ 6.87(4)(b)1.
¶92 After intervention by the Democratic Senatorial
Campaign Committee (DSCC), as well as Disability Rights
Wisconsin, Wisconsin Faith Voices for Justice, and the League of
Women Voters of Wisconsin (collectively DRW), Teigen moved for
summary judgment, setting out what Teigen alleged was the proper
construction of Wis. Stat. § 6.87(4)(b)1. The circuit court
held a hearing in which it orally granted Teigen's motion in
2 WEC memo August 19, 2020.
2
No. 2022AP991.pdr
full. The court explained that, unlike voting in person, voting
by absentee ballot is "a privilege exercised wholly outside the
traditional safeguards of the polling place." It further
concluded that the legislature required that absentee voting
must be carefully regulated to "prevent the potential for fraud
or abuse, to prevent overzealous solicitation of absent electors
who may prefer not to participate in an election, to prevent
undue influence on the absent elector to vote for or against a
candidate, or to cast a particular vote in a referendum or other
similar abuses."
¶93 In regard to whom may return an absentee ballot, the
circuit court explained that "[it did not] see any language in
the statute that provides a basis for having agents, somebody
other than the elector, actually deliver the ballot." Further,
in quoting the portion of the memo that purported to allow
family members or other persons to return a ballot on behalf of
the voter, the court concluded that it did not "see anything in
the statute that says that. In reading the statute, the statute
is clear. It's not ambiguous. It's not necessary to go to
outside sources to determine how . . . return of the ballot is
addressed." In its judgment, the court was satisfied that the
"portions of the [memo] that address that other people may bring
the ballot in, it doesn't have to be the elector, are contrary
to the statute."
¶94 The court declared that the WEC's memos were
inconsistent with state statutes and specifically concluded that
an elector must personally mail or deliver his or her own
3
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absentee ballot, except when otherwise specifically authorized
by law. The defendants appealed this ruling to the court of
appeals. Teigen filed a petition to bypass the court of
appeals, which we granted.
II. DISCUSSION
A. Standard of Review
¶95 I review Teigen's claim for declaratory relief under
Wis. Stat. § 806.04 and I apply Wis. Stat. § 6.87(4)(b)1. in
regard to mailing absentee ballots. Therefore, I interpret the
statutes at issue. We interpret and apply statutes as questions
of law subject to our independent determination, while
benefitting from the decision of the circuit court. Townsend v.
ChartSwap, LLC, 2021 WI 86, ¶11, 399 Wis. 2d 599, 967 N.W.2d 21.
B. Statutory Interpretation
¶96 "[T]he purpose of statutory interpretation is to
determine what the statute means . . . ." State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. Judicial deference to the policy choices
enacted into law by the legislature requires that statutory
interpretation focus primarily on the language of the statute.
We assume that the legislature's intent is expressed in the
statutory language. Id. Therefore, statutory interpretation
begins with the words that the legislature chose. If the
meanings of the words are plain and unambiguous, the court's
inquiry ends and there is no need to consult extrinsic sources
of interpretation, such as legislative history. Id., ¶¶45, 46.
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¶97 In addition to examining the plain words of the text,
context is part of a plain meaning interpretation. "So, too, is
the structure of the statute in which the operative language
appears." Id., ¶46. Therefore, rather than in isolation,
"statutory language is interpreted in the context in which it is
used; . . . in relation to the language of surrounding or
closely-related statutes; . . . to avoid absurd or unreasonable
results; [and] read, where possible to give effect to every
word, in order to avoid surplusage." Id.
¶98 It is consistent with the plain-meaning rule "to
consider the intrinsic context in which statutory language is
used; a plain-meaning interpretation cannot contravene a
textually or contextually manifest statutory purpose." Id.,
¶49. However, in "construing or interpreting a statute the
court is not at liberty to disregard the plain, clear words of
[a] statute." Id., ¶46. Nor are courts permitted to read words
into a statute that the legislature did not insert itself.
Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801
N.W.2d 316.
1. Uniform Declaratory Judgment Act
¶99 The Uniform Declaratory Judgment Act is contained in
Wis. Stat. § 806.04, which provides:
(1) Scope. Courts of record within their
respective jurisdictions shall have power to declare
rights, status, and other legal relations whether or
not further relief is or could be claimed . . . . The
declaration may be either affirmative or negative in
form and effect; and such declarations shall have the
force and effect of a final judgment or decree, except
that finality for purposes of filing an appeal as of
5
No. 2022AP991.pdr
right shall be determined in accordance with
s. 808.03(1).
(2) Power to construe, etc. Any person
interested under a deed, will, written contract or
other writings constituting a contract, or whose
rights, status or other legal relations are affected
by a statute, municipal ordinance, contract or
franchise, may have determined any question of
construction or validity arising under the instrument,
statute, ordinance, contract or franchise and obtain a
declaration of rights, status or other legal relations
thereunder.
¶100 In order to obtain declaratory judgment, there must be
a justiciable controversy. See Loy v. Bunderson, 107 Wis. 2d
400, 410, 320 N.W.2d 175 (1982). A controversy is justiciable
when the following factors are present:
(1) A controversy in which a claim of right is
asserted against one who has an interest in contesting
it.
(2) The controversy must be between persons whose
interests are adverse.
(3) The party seeking declaratory relief must have a
legal interest in the controversy——that is to say, a
legally protectible interest.
(4) The issue involved in the controversy must be ripe
for judicial determination.
Putnam v. Time Warner Cable of Se. Wis., Ltd. P'ship, 2002 WI
108, ¶41, 255 Wis. 2d 447, 649 N.W.2d 626 (citing Loy, 107
Wis. 2d at 410). If all four factors are met, the controversy
is justiciable and a court may entertain an action for
declaratory judgment. Miller Brands-Milwaukee, Inc. v. Case,
162 Wis. 2d 684, 694, 470 N.W.2d 290 (1991).
¶101 Here, I conclude that all four factors are met.
First, Teigen's suit is a controversy that opposes the WEC's
6
No. 2022AP991.pdr
memos and intervenors' positions, each of whom have an interest
in contesting Teigen's position. Second, Teigen and the WEC
have adverse interests regarding the legality of the current
memos and the WEC's authority to continue issuing similar memos
in the future. Third, as the majority concludes, Teigen has a
legally protectable interest in making sure that his vote is not
"pollute[d]" and that proper election procedures are followed.3
And finally, Teigen's suit against the WEC is ripe for judicial
determination. The circuit court decided that the elector was
required to personally mail his or her own completed ballot to
the clerk's office.4 Affirming the circuit court's decision is
expressed in several briefs, as is the need for uniform
guidance.5 The WEC has issued memos that encourage drop boxes
over mail-in ballot returns, and municipal clerks and election
officials have acted on those memos. Teigen is a Wisconsin
voter who is affected by the WEC's memos. Because the
controversy is justiciable, I proceed to the merits of Teigen's
statutory interpretation claim with regard to mailing absentee
ballots, and conclude that the memos encourage drop boxes over
mailing completed ballots and are inconsistent with Wis. Stat.
§ 6.87(4)(b)1. Therefore, they are contrary to law.
2. Wisconsin Stat. § 6.87(4)(b)1.
3 Majority op., ¶25.
4 Teigen v. Wis. Elections Comm'n, No. 2022AP91, Order at 2
(Jan. 20. 2022).
5 See e.g., Briefs: League of Wis. Municipalities,
Republican National Committee and Honest Elections Project.
7
No. 2022AP991.pdr
¶102 As a foundational matter, we construe closely related
statutes in the context in which the legislature placed them.
City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24, 302
Wis. 2d 599, 734 N.W.2d 428. "[W]e examine the language of
surrounding or closely related statutes in order to interpret a
statute in the context in which it is used." Id. Accordingly,
we do not interpret Wis. Stat. § 6.87(4)(b)1. in isolation.
Rather, we interpret it with the assistance of closely related
statutes.
¶103 As we begin, it is important to note that the
legislature has supplied the lens through which absentee voting
statutes are to be viewed. Wisconsin Stat. § 6.84 provides:
[V]oting by absentee ballot is a privilege exercised
wholly outside the traditional safeguards of the
polling place. The legislature finds that the
privilege of voting by absentee ballot must be
carefully regulated to prevent the potential for fraud
or abuse; to prevent overzealous solicitation of
absent electors who may prefer not to participate in
an election; to prevent undue influence on an absent
elector to vote for or against a candidate or to cast
a particular vote in a referendum; or other similar
abuses.
§ 6.84. Furthermore, regarding interpretation of the absentee
voting statutes, the legislature has mandated that:
[W]ith respect to matters relating to the absentee
ballot process, ss. 6.86, 6.87(3) to (7) and
9.01(1)(b)2. and 4. shall be construed as mandatory.
Ballots cast in contravention of the procedures
specified in those provisions may not be counted.
Ballots counted in contravention of the procedures
specified in those provisions may not be included in
the certified result of any election.
§ 6.84(2).
8
No. 2022AP991.pdr
¶104 We have construed statutes relating to voting
procedures and have strictly enforced them. In State ex. rel.
Stearns, we concluded that the Secretary of State correctly
prohibited a candidate who turned in his nomination papers two
minutes after the statutory deadline from appearing on the
ballot. State ex. rel. Stearns v. Zimmerman, 257 Wis. 443, 444-
46, 43 N.W.2d 681 (1950). We reasoned that, by setting the 5
p.m. deadline within the statute, "no fact or situation
appear[ed] except those contemplated and provided for by the
legislature." Id. at 446. However, if we had decided to
enlarge the time which the legislature has designated for the
filing of nomination papers, we would be "amend[ing] the
statute, not [construing] it." Id.
¶105 Again, in State ex. rel. Ahlgrimm, we concluded that a
candidate who filed his nomination papers in the wrong office
was barred from appearing on the ballot by the terms of the
statute. State ex rel. Ahlgrimm v. State Elections Bd., 82
Wis. 2d 585, 595-96, 263 N.W.2d 152 (1978). The candidate
argued that, because the statute that outlined the place of
filing nomination papers did not specify that noncompliance was
fatal, we should have concluded that its prescriptions were
directory rather than mandatory. Id. at 593. We concluded that
this argument was "without merit" and, as with the time for
filing, the statute's instruction governing the place of filing
nomination papers was mandatory. Id. at 595.
¶106 Turning to the statute at issue, Wis. Stat.
§ 6.87(4)(b)1., it determines required procedures for absentee
9
No. 2022AP991.pdr
voting when specially identified circumstances do not exist.6
Section 6.87(4)(b)1. provides in regard to mailing that absentee
ballots "shall be mailed by the elector . . . to the municipal
clerk." Electors are statutorily defined as "[e]very U.S.
citizen age 18 or older who has resided in an election district
or ward for 28 consecutive days before any election where the
citizen offers to vote[.]" Wis. Stat. § 6.02. Accordingly,
when § 6.87(4)(b)1. says "the elector[,]" it means, the voter.
¶107 The plain statutory text, provides that if a ballot is
returned by mail, it is the "elector" who does the mailing.
Wisconsin Stat. § 6.87(4)(b)(1). requires that absentee ballots
"shall be mailed by the elector . . . to the municipal clerk."
The legislature could have said "may be mailed by the elector"
if it were not mandatory that the elector do the mailing. As
the circuit court correctly concluded, "the statute is clear.
It's not ambiguous. It's not necessary to go to outside sources
to determine how . . . return of the ballot is addressed."
Indeed, DRW concedes this point in its briefing.
¶108 DRW argues that, in spite of the unambiguous text, the
statutes allow an agent of an elector to mail the absentee
ballot on an elector's behalf. This argument is based on a 1955
case, Sommerfeld v. Bd. of Canvassers of the City of St.
Francis. In Sommerfeld, we concluded that "in order to fulfill
the spirit of our election laws the last sentence of section
11.59 [which required delivery by the elector] is directory
only, and that a delivery of ballots by agent is a substantial
6 See ¶¶109-111 below.
10
No. 2022AP991.pdr
compliance therewith." Sommerfeld v. Bd. of Canvassers of the
City of St. Francis, 269 Wis. 299, 304, 69 N.W.2d 235 (1955).
However, as the majority points out, Sommerfeld pre-dates Wis.
Stat. § 6.84.7 Its conclusion, that absentee voting procedures
were directory, contradicts § 6.84, which requires that absentee
voting procedures are "mandatory[,]" i.e., they must be
followed. Accordingly, to the extent that it described voting
procedures as directory and substantial compliance being
sufficient to satisfy § 6.84, Sommerfeld is no longer good law.8
¶109 Without Sommerfeld, DRW's argument falls apart. The
statutory definition of "elector" does not include agents;
rather, it defines a person who is eligible to vote. Wis. Stat.
§ 6.02. Wisconsin Stat. § 6.87(4)(b)1. requires that absentee
ballots be mailed by the elector; who, as I note, is statutorily
defined in § 6.02(1). In accord with the circuit court, I
conclude that the plain meaning of text is clear and
unambiguous; § 6.87(4)(b)1. does not permit an agent to mail an
absentee ballot for a voter.
¶110 That agents are not permitted by the terms of Wis.
Stat. § 6.87(4)(b)1. to mail absentee ballots is further
supported by comparing the language in § 6.87(4)(b)1. with other
statutes in which the legislature has explicitly allowed an
agent or non-elector to participate in the absentee voting
process. Those statutes, in keeping with the policy in Wis.
7 Majority op., ¶80.
8 Id.
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No. 2022AP991.pdr
Stat. § 6.84(1), have formalistic, regulated conditions
attached.
¶111 For example, when a voter is a member of a sequestered
jury, the legislature has provided very detailed instructions
about voting and returning the ballot where a non-voter
participates. Wisconsin Stat. § 6.86(1)(b) provides in relevant
part:
If the application indicates that the reason for
requesting an absentee ballot is that the elector is a
sequestered juror, the application shall be received
no later than 5 p.m. on election day. If the
application is received after 5 p.m. on the Friday
immediately preceding the election, the municipal
clerk or the clerk's agent shall immediately take the
ballot to the court in which the elector is serving as
a juror and deposit it with the judge. The judge
shall recess court, as soon as convenient, and give
the elector the ballot. The judge shall then witness
the voting procedure as provided in s. 6.87 and shall
deliver the ballot to the clerk or agent of the clerk
who shall deliver it to the polling place or, in
municipalities where absentee ballots are canvassed
under s. 7.52, to the municipal clerk as required in
s. 6.88.
§ 6.86(1)(b). Simply stated, voter assistance in voting and in
return of the ballot is clearly set out in § 6.86(1)(b). When
an agent is employed, the agent is identified.
¶112 Another example of the legislature's recognition of
agents involved in voting or ballot return is found in Wis.
Stat. § 6.86(3)(a) for hospitalized electors. It provides:
1. Any elector who is registered and who is
hospitalized, may apply for and obtain an official
ballot by agent. . . .
2. If a hospitalized elector is not registered,
the elector may register by agent under this
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No. 2022AP991.pdr
subdivision at the same time that the elector applies
for an official ballot by agent under subd. 1. . . . .
§ 6.86(3)(a)1. and 2. Once again, when an agent is permitted to
be involved in absentee voting, the legislature has clearly
defined the factual circumstances that permit it, has identified
who may function as an agent and has specified a procedure to
follow.
¶113 Wisconsin Stat. § 6.87(5) also permits the use of an
agent when the elector is disabled. It provides:
If the absent elector declares that he or she is
unable to read, has difficulty in reading, writing or
understanding English or due to disability is unable
to mark his or her ballot, the elector may select any
individual, except the elector's employer or an agent
of that employer or an officer or agent of a labor
organization which represents the elector, to assist
in marking the ballot . . . .
Once again, when the legislature decided that use of an agent in
voting was permissible, it specified the circumstances under
which an agent could be employed and defined criteria for
performing as an agent in regard to absentee ballots. I do not
review the entirety of the statutes that provide for the use of
an agent in voting because no party has raised them.
¶114 However, those examples cited above and others I do
not cite differ significantly from Wis. Stat. § 6.87(4)(b)1.
because § 6.87(4)(b)1. carries none of the factual criteria for
permitting the use of an agent and none of the factual
safeguards for who may function as an agent. Accordingly,
because the text and context of § 6.87(4)(b)1. instruct me to do
so, I conclude that no one but the elector may mail an absentee
ballot unless the elector and his or her designated agent fit
13
No. 2022AP991.pdr
within a different statutory circumstance that explicitly
permits it.
III. CONCLUSION
¶115 The majority opinion concludes that the WEC's memos
are invalid because ballot drop boxes are not legal under
Wisconsin statutes and because an absentee ballot must be
personally delivered by the voter to the municipal clerk at the
clerk's office. I agree, and I join the majority opinion. I
have written further to explain that, under Wisconsin statutes,
it is the elector who shall mail the absentee ballot to the
municipal clerk. Accordingly, I respectfully concur.
14
No. 2022AP91.rgb
¶116 REBECCA GRASSL BRADLEY, J. (concurring).
There should be a third Branch which . . . you may
call a Governor whom I would invest . . . the whole
Executive Power, after divesting it of most of those
Badges of Domination called prerogatives.
John Adams, Thoughts on Government (1776), in 11 The State
Records of North Carolina 325 (1895).
¶117 This court's binding precedent allows WEC——a creature
of the legislature authorized only to implement Wisconsin's
election laws——to make law by executive fiat, thereby granting
it a potent "Badge[] of Domination[.]" In Trump v. Biden, a
majority of this court gave WEC's "advice" the force of law.
2020 WI 91, ¶¶31–32, 394 Wis. 2d 629, 951 N.W.2d 568. It
declared this "advice" is "the rulebook" for elections——never
mind what the statutes enacted by the legislature say. See id.(emphasis added).
¶118 The Trump majority's conversion of WEC's mere "advice"
into "the rulebook" flouts the rule of law. Consistent with
constitutional principles, the legislature explicitly declared
that "[a] guidance document does not have the force of law."
Wis. Stat. § 227.112(3) (2019–20).1 Despite the constitutional
vesting of lawmaking power in the legislature,2 Trump requires us
to uphold documents produced by executive-branch employees,
notwithstanding their inconsistency with the plain meaning of
the statutes WEC employees purportedly interpreted. Trump, 394
Wis. 2d 629, ¶83 (Roggensack, C.J., dissenting); see also Tetra
All subsequent references to the Wisconsin Statutes are to
1
the 2019–20 version.
2 Wis. Const. art. IV, § 1.
1
No. 2022AP91.rgb
Tech EC, Inc. v. Wis. Dep't of Revenue, 2018 WI 75, ¶3, 382
Wis. 2d 496, 914 N.W.2d 21 (lead op.) (rejecting the "practice
of deferring to administrative agencies' conclusions of law").
Even properly promulgated administrative rules do not have this
kind of weight; in the hierarchy of laws, rules fall beneath
statutes (if rules may even be called law). I would overrule
Trump, but it remains binding precedent under which the memos
have the force of law. Because a majority of this court accords
them this effect, they must be rules. Because they were not
promulgated according to statutorily prescribed procedures, they
are invalid for this additional reason.
¶119 This court's decision in Trump exists in tension with
Service Employees International Union, Local 1 v. Vos (SEIU),
2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority
op.). SEIU struck down statutes prescribing pre-issuance
procedures for guidance documents as facially unconstitutional.
Id., ¶88. We described guidance documents as "nothing but the
written manifestations of the executive branch's thought
processes[.]" Id., ¶122. Under the separation of powers, we
denied the legislature a role in policing the executive's
thoughts or preventing the executive from sharing its
interpretations of law with the public. Id., ¶96 (explaining
"[h]e who is to execute the laws must first judge for himself of
their meaning" (quoting Alexander Hamilton, Letters of
Pacificus No. 1 (June 29, 1793), reprinted in 4 The Works of
Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904)
(modification in the original)).
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No. 2022AP91.rgb
¶120 Because this court's later decision in Trump gave mere
guidance documents the force of law, the legislature necessarily
has an interest in regulating them to ensure the executive
branch enforces the laws as written. Additionally, the
legislature has an interest in the courts upholding the laws the
legislature enacts, not elevating guidance written by executive
branch employees above the law.
¶121 This court's decision in Trump gave WEC the power to
materially alter how elections in this state are conducted——
without a single procedural check. Trump should be overruled,
but if the court continues to hold the memos need not be
promulgated as administrative rules, they should at least be
subject to the statutory procedures we struck down in SEIU. As
the law stands, WEC's staff have absolute prerogative power.
The constitution does not permit such corruption of the
carefully calibrated powers among the branches of government.
I. The Definition of "Rule"
¶122 Wisconsin Stat. § 227.01(13) states, in relevant part:
"Rule" means a regulation, standard, statement of
policy, or general order of general application that
has the force of law and that is issued by an agency
to implement, interpret, or make specific legislation
enforced or administered by the agency or to govern
the organization or procedure of the agency.
Under this definition, a rule must meet five elements: "(1) a
regulation, standard, statement of policy or general order;
(2) of general application; (3) having the [force] of law;
(4) issued by an agency; (5) to implement, interpret or make
specific legislation enforced or administered by such agency as
3
No. 2022AP91.rgb
to govern the interpretation or procedure of such agency."3 Wis.
Legislature v. Palm, 2020 WI 42, ¶22, 391 Wis. 2d 497, 942
N.W.2d 900 (quoting Citizens for Sensible Zoning, Inc. v. Dep't
of Nat. Res., 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979)).
¶123 In this case, no one has argued the memos are not
"statements of policy," of "general application," issued by the
WEC to "interpret" statutes "enforced or administrated" by the
WEC. The parties dispute only the third element, whether the
memos have the "force of law."
II. The Majority's Error in Trump
¶124 Although the memos should not have the force of law,
the majority erroneously concluded otherwise in Trump. In that
case, Donald Trump, the incumbent President, and his campaign
appealed the results of a recount in two Wisconsin counties.
394 Wis. 2d 629, ¶¶5–6 (majority op.). The ballots President
Trump sought to strike fell into four categories; two are most
relevant in this case. First, he argued "that a form used for
in-person absentee voting [wa]s not a 'written application' and
therefore all in-person absentee ballots should be struck."
Id., ¶2. Second, President Trump argued "that municipal
officials improperly added witness information on absentee
ballot certifications, and that these ballots [wer]e therefore
invalid." Id.
¶125 As the majority acknowledged, "Wisconsin law provides
that a 'written application' is required before a voter can
In 2017, the legislature changed "effect of law" to "force
3
of law," which is reflected in the modification of the quote.
2017 Wis. Act 369, § 32.
4
No. 2022AP91.rgb
receive an absentee ballot, and that any absentee ballot issued
without an application cannot be counted." Id., ¶14 (citing
Wis. Stat. §§ 6.84(2), 6.86(1)(ar)). A majority of this court
refused to consider whether the form utilized for in-person
absentee voting, EL-122, constituted a written application. It
noted, "both counties did use an application form created,
approved, and disseminated by the chief Wisconsin elections
agency." Id., ¶15. The majority emphasized "local election
officials used form EL-122 in reliance on longstanding guidance
from WEC." Id., ¶25. Therefore, it concluded, "[p]enalizing
the voters election officials serve and the other candidates who
relied on this longstanding guidance is beyond unfair." Id.
"To strike ballots cast in reliance on the guidance now, and to
do so in only two counties, would violate every notion of equity
that undergirds our electoral system." Id. In Trump, a
majority of this court allowed its notions of "equity" and
"unfair[ness]" to trump the law.
¶126 Invoking the same rationalizations, the majority
declined to examine whether election officials violated a
statute by adding missing witness information to absentee ballot
certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a
certificate is missing the address of a witness, the ballot may
not be counted." The majority defied this clear textual command
because it was concerned that "election officials followed
guidance that WEC created, approved, and disseminated to
counties in October 2016." Id., ¶18. It continued, "the
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election officials relied on this statewide advice and had no
reason to question it."4 Id., ¶26.
¶127 Overall, the majority compared voting——the foundation
of free government——to a football game:
[E]lection officials in Dane and Milwaukee Counties
followed the advice of WEC where given. . . .
Our laws allow the challenge flag to be thrown
regarding various aspects of election administration.
The challenges raised by the Campaign in this case,
however, come long after the last play or even the
last game; the Campaign is challenging the rulebook
adopted before the season began. Election claims of
this type must be brought expeditiously. The Campaign
waited until after the election to raise selective
challenges that could have been raised long before the
election. . . . The Campaign is not entitled to
relief, and therefore does not succeed in its effort
to strike votes and alter the certified winner of the
2020 presidential election.
Id., ¶¶31–32 (emphasis added); see also id., ¶34 (Dallet &
Karofsky, JJ., concurring) ("The evidence does show that,
despite a global pandemic, more than 3.2 million Wisconsinites
performed their civic duty. More importantly as it relates to
this lawsuit, these voters followed the rules that were in place
at the time. To borrow Justice Hagedorn's metaphor, Wisconsin
voters complied with the election rulebook. No penalties were
The majority also gave statements from Dane County
4
officials the status of supreme law based on the majority's
subjective conception of fairness. Trump v. Biden, 2020 WI 91,
¶27, 394 Wis. 2d 629, 951 N.W.2d 568 (explaining voters in Dane
County were "encouraged to utilize" "Democracy in the Park"
events and that "17,000 voters did so in reliance on
representations that the process they were using complied with
the law").
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committed and the final score was the result of a free and fair
election." (emphasis added)).
¶128 Under Trump, statements from WEC's staff were
transformed into super-statutes, trumping the actual law.
"Rather than fulfilling its duty to say what the law is, a
majority of this court unconstitutionally converts the Wisconsin
Elections Commission's mere advice into governing 'law,' thereby
supplanting the actual election laws enacted by the people's
elected representatives in the legislature and defying the will
of Wisconsin's citizens. When the state's highest court refuses
to uphold the law, and stands by while an unelected body of six
commissioners rewrites it, our system of representative
government is subverted." Id., ¶140 (Rebecca Grassl Bradley,
J., dissenting).
¶129 The holding in Trump requires a vote cast in reliance
on a document produced by the WEC's staff to be counted even if
the vote's counting is unlawful under the statute the staff
purportedly interpreted. The majority did not ground its
decision in constitutional law but in equity.5 Equitable powers
may be broad, but they must always be lawfully exercised. Just
5 Id., ¶73 (Roggensack, C.J., dissenting) ("If WEC has been
giving advice contrary to statute, those acts do not make the
advice lawful. WEC must follow the law. We, as the law
declaring court, owe it to the public to declare whether WEC's
advice is incorrect. However, doing so does not necessarily
lead to striking absentee ballots that were cast by following
incorrect WEC advice. The remedy Petitioners seek may be out of
reach for a number of reasons." (quoting Trump v. Evers, No.
2020AP1917-OA, unpublished order (Wis. Dec. 3, 2020)
(Roggensack, C.J., dissenting from the denial of the petition
for leave to commence an original action)).
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this term, we held this court lacks the equitable power to
rewrite statutes to enforce a subjective conception of fairness.
See Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶¶62, 67, 72,
399 Wis. 2d 623, 967 N.W.2d 469. The Trump majority abandoned
this fundamental constraint on the judicial power.
¶130 At the same time the majority aggrandized its
"equitable" powers, it ceded its law declaring function to
unelected bureaucrats. According to the Trump majority, the
judiciary may not even opine on the validity of purported
guidance once voters have relied on it. In so ruling, the
majority neglected its constitutional duty to declare the
meaning of law, instead elevating "guidance[] given by an
unelected committee" to the status of supreme law, which must be
followed in derogation of enacted statutes. Trump, 394
Wis. 2d 629, ¶108 (Ziegler, J., dissenting); see also State ex
rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424
N.W.2d 385 (1988) ("[I]t is this court's function to develop and
clarify the law." (citations omitted)).
¶131 The majority achieved these results by declaring WEC's
guidance to be "the rulebook." Trump, 394 Wis. 2d 629, ¶32
(majority op.) (emphasis added). "How astonishing that four
justices of the Wisconsin Supreme Court must be reminded that it
is THE LAW that constitutes 'the rulebook' for any election——not
WEC guidance——and election officials are bound to follow the
law, if we are to be governed by the rule of law, and not of
men." Id., ¶147 (Rebecca Grassl Bradley, J., dissenting).
Notwithstanding SEIU's characterization of guidance as nothing
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more than executive branch "thought processes," the majority
permitted "WEC . . . [to] treat their guidance as if it were
law"——and a form of supreme law capable of overriding statutory
language. See id., ¶86 (Roggensack, C.J., dissenting) (citing
SEIU, 393 Wis. 2d 38, ¶143 (Roggensack, C.J.,
concurring/dissenting)). The majority's reinvention of guidance
as something on par with the constitution is antithetical to the
constitutional separation of powers and deprives the people of
power over their own government.
¶132 Without offering any explanation, WEC has changed its
position on the status of its so-called guidance. WEC did not
file a brief in Trump, but in the case's precursor, Trump v.
Evers,6 WEC argued in its brief, "[t]hese challenges come too
late and would unconstitutionally punish voters who relied in
good faith on election officials' guidance." Not only did WEC
argue its guidance was the law, it argued that following the
actual law instead of WEC's erroneous interpretations would be
unconstitutional. In Trump v. Biden, the majority avoided the
constitutional issue, but it nonetheless adopted the thrust of
the WEC's argument about fairness by abusing this court's
equitable powers. In contrast with its previous position, WEC
now characterizes its memos as inert, merely providing
information to local officials who are free to ignore them as
they please. WEC cannot have it both ways. Either disregarding
these documents offends the constitution or they are mere
Trump v. Evers was an original action raising the same
6
arguments, which a majority of this court declined to hear just
days before Trump v. Biden.
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"thoughts" of executive-branch employees. This court chose the
former in Trump, which means these documents must be properly
promulgated, with checks and balances.
¶133 With no convincing response to Trump, WEC primarily
argues the memos lack the force of law because they do not
require municipal clerks to establish ballot drop boxes. But
see Off. of the Special Couns., Second Interim Investigative
Report on the Apparatus & Procedures of the Wisconsin Elections
System 116 (Mar. 1, 2022) ("Surprisingly, many clerks have
expressed to the OSC that they are under the impression that WEC
guidance is binding, even when they believe such guidance (say,
on drop boxes) is unlawful."). Nonetheless, these memos purport
to authorize drop boxes. Under Trump, once a vote is placed in
a drop box in reliance on a WEC document that has not been
rescinded, it must be counted regardless of whether any statute
actually authorizes drop boxes. At least during and after an
election, a majority of this court will not consider whether a
statute authorizes drop boxes, effectively establishing the
memos as the authorizing device.
¶134 As the Wisconsin voters accurately argue, "there are
different kinds of laws——some impose duties, others prohibit
conduct, and still others authorize conduct. WEC's memos fall
into the latter category[.]" Since the time of Sir Edward Coke,
"unlawful prerogative legislation" has included both legislation
constraining the public and the "alteration" of "legally binding
duties" "more generally," including their "relax[ation.]"
Philip Hamburger, Is Administrative Law Unlawful? 84 (2014). At
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a minimum, the Trump decision allowed WEC to relax legal duties.
Specifically, the Trump decision endorsed WEC's elimination of
duties prescribed by law by counting ballots unlawfully cast in
accordance with WEC's extra-legal directions. See Wis. Stat.
§ 6.84(2) ("Notwithstanding s. 5.01 (1), with respect to matters
relating to the absentee ballot process, ss. 6.86, 6.87 (3) to
(7) and 9.01 (1) (b) 2. and 4. shall be construed as mandatory.
Ballots cast in contravention of the procedures specified in
those provisions may not be counted. Ballots counted in
contravention of the procedures specified in those provisions
may not be included in the certified result of any election.").
To erase by executive fiat the legislature's duly enacted law is
no less an alteration of law merely because it authorizes the
unlawful rather than prohibits that which is lawful. See
generally Case of Proclamations, [1610] EWHC KB J22, (1611) 12
Co Rep 74, 75, 77 ER 1352 ("[T]he King cannot change any part of
the common law, nor create any offence by his proclamation,
which was not an offence before, without
Parliament. . . . [T]he King by his proclamation of other ways
cannot change any part of the common law, or statute law, or the
customs of the realm[.]" (citations omitted)).
¶135 WEC also misses another critical point. While the
memos may not require municipal clerks to set up ballot drop
boxes, if they do so, Memo two regulates their use with clear,
unambiguous, and mandatory language. For example, WEC says:
"Ballot drop boxes must be secured and locked at all times" and
"[c]hain of custody logs must be completed every time ballots
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are collected."7 The fact that these requirements attach only if
a municipal clerk decides to set up drop boxes makes no
difference. Laws often take the form of "if/then" statements.
A person may choose not to drive, but if the person chooses to
drive, the person is bound to wear a seat belt by a statute with
the force of law. Wis. Stat. § 347.48(2m)(b).
¶136 The two propositions resulting from the Trump decision
cannot both be true:
1. Documents produced by WEC's staff——not the Wisconsin
statutes——comprise "the rulebook" for elections; and
2. WEC's memos are not administrative rules because they do
not have the force of law.
No other agency's guidance——or even its properly promulgated
rules, for that matter——has been given such pseudo-
constitutional force. The Trump decision glorified WEC's
purported guidance with a supremacy over real law. This court
should overrule its erroneous holding in Trump, restoring WEC's
documents to their proper, and quite limited, role.
¶137 The way we described guidance documents in SEIU in
2020 simply cannot be reconciled with the Trump decision of
2021. In SEIU, we correctly concluded guidance documents "are
not law, they do not have the force or effect of law, and they
provide no authority for implementing standards or conditions."
393 Wis. 2d 38, ¶102 (Kelly, J., majority op.). "They impose no
obligations, set no standards, and bind no one." Id."Functionally, and as a matter of law, they are entirely inert.
7 Emphasis added.
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That is to say, they represent nothing more than the knowledge
and intentions of their authors. It is readily apparent,
therefore, that the executive need not borrow any legislative
authority, nor seek the legislature's permission, to create
guidance documents." Id. (emphasis added).
¶138 Trump transformed purported guidance from "entirely
inert" to imperviously potent. See id. Ironically, the
legislature enacted pre-issuance procedures for guidance
documents precisely because the nature of guidance documents is
often misunderstood. "Guidance documents can have a practical
effect similar to an unpromulgated rule." Id., ¶142
(Roggensack, C.J., concurring/dissenting). Lawmakers have
"frequently heard from constituents, small businesses [and]
local government" about "how guidance documents have been abused
as a vehicle to actually change the law." Id., ¶143 (quoting
Floor Speech by Andre Jacque, Floor Session on 2017 Assembly
Bill 1072 (2017 Wis. Act 369), at 3:25,
https://wiseye.org/2018/12/05/assembly-floor-session-part-2-8/
(last visited June 25, 2020)). The Trump majority contradicted
the SEIU court's treatment of executive agency communications.
In SEIU, the court said, "should an administrative agency
employee treat a guidance document as a source of authority,
that employee would be making a mistake, not defining the nature
of a guidance document." Id., ¶134 (Kelly, J., majority op.)
(emphasis added). The court itself made a consequential mistake
by declaring WEC's guidance not only a source of authority, but
the supreme statement of election law.
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¶139 In his concurrence, Justice Brian Hagedorn attempts to
backtrack from the majority opinion he authored in Trump.
Whether expressed metaphorically or otherwise, the Trump
majority not only labeled WEC's guidance the "rulebook"——it
treated it as such, elevating it over statutory law. See supra
¶¶124–26. This concurrence does not advance a new legal
analysis; the dissent in Trump explained the upshot of the
majority's treatment of WEC's pronouncements on the law, which
the majority never disavowed: "the majority commits grave error
by according WEC guidance the force of law . . . . How
astonishing that four justices of the Wisconsin Supreme Court
must be reminded that it is THE LAW that constitutes 'the
rulebook' for any election——not WEC guidance——and election
officials are bound to follow the law, if we are to be governed
by the rule of law, and not of men." Trump, 394 Wis. 2d 629,
¶¶141, 147 (Rebecca Grassl Bradley, J., dissenting). Regardless
of what WEC's pronouncements on the law are called, if this
court is going to allow them to control an election, they should
be promulgated as rules. It was a "serious legal argument" then
and remains so now. The majority grievously injured the rule of
law in Trump, which the court should acknowledge and correct.8
Justice Hagedorn now seems to minimize portions of his
8
Trump opinion as dicta. Justice Hagedorn's Concurrence, ¶202
("the court used the word 'rulebook' in a metaphor regarding
challenge flags in football."). Our court does not recognize
the concept of dicta, however. "Wisconsin does not consider
statements germane to a controversy as dicta." Brandenburg v.
Briarwood Forestry Servs., LLC, 2014 WI 37, ¶66 n.2, 354
Wis. 2d 413, 447, 847 N.W.2d 395, 413 (citing Zarder v. Humana
Ins. Co., 2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782
N.W.2d 682). Metaphors can be a powerful tool in legal writing,
but they should be used with care.
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III. CONCLUSION
¶140 "In Wisconsin, we have a constitution, and it reigns
supreme in this state. 'By section 1 of article 4 the power of
the state to deal with elections except as limited by the
Constitution is vested in the senate and assembly to be
exercised under the provisions of the Constitution; therefore
the power to prescribe the manner of conducting elections is
clearly within the province of the Legislature.'" Trump, 394
Wis. 2d 629, ¶141 (Rebecca Grassl Bradley, J., dissenting)
(quoting State v. Kohler, 200 Wis. 518, 228 N.W. 895, 906
(1930)). In contravention of the Wisconsin Constitution, the
majority's decision in Trump suppresses the power of the
people's representatives in a manner reminiscent of a scene from
William Shakespeare's Henry VI:
Dick: I have a suit unto your lordship.
Cade: Be it a lordship, thou shalt have it for that
word.
Dick: Only that the laws of England may come out of
your mouth.
Holland: [to Smith] Mass, 'twill be sore law, then; for
he was thrust in the mouth with a spear, and
'tis not whole yet.
Smith: [to Holland] Nay, . . . it will be stinking
law for his breath stinks with eating toasted
cheese.
Cade: I have thought upon it, it shall be so. Away,
burn all the records of the realm: my mouth
shall be the parliament of England.
Holland: [to himself] Then we are like to have biting
statutes, unless his teeth be pulled out.
William Shakespeare, Henry VI, Part II, act. 4, sc. 7, ll. 3–16.
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¶141 When the "mouth" of an employee at the WEC supplants
the legislature of Wisconsin, we are left with "sore" or
"stinking" laws, irredeemably infected by their promulgation in
violation of the constitution by an executive branch agency, and
impervious to correction by our constitutional lawmakers.
"Bicameralism and presentment are the crucible bills must
overcome to become law. By design, it is much more difficult
than rule by dictatorship." In re Amending Wis. Stat. §§ 48.299& 938.299 Regulating the Use of Restraints on Child. in Juv.
Ct., 2022 WI 26, ¶55 n.11, __ Wis. 2d __, __ N.W.2d __ (Rebecca
Grassl Bradley, J., dissenting).
¶142 A majority of this court permits Administrator Megan
Wolfe's unilateral declarations regarding election procedures to
have the force of law, subject only to judicial review (if the
court even bothers to take the case). "No one man should have
all that power." Kanye West, Power (2010). "It is not the
province [or the prerogative] of a state executive official to
re-write the state's election code[.]" See Carson v. Simon, 978
F.3d 1051, 1060 (8th Cir. 2020) (cited sources omitted). WEC's
"rulebook" should be subject to formal rulemaking under ch. 227.
¶143 "The Founders designed our 'republic to be a
government of laws, and not of men . . . bound by fixed laws,
which the people have a voice in making, and a right to
defend.'" Trump, 394 Wis. 2d 629, ¶149 (quoting John Adams,
Novanglus: A History of the Dispute with America, from Its
Origin, in 1754, to the Present Time, in Revolutionary Writings
of John Adams (C. Bradley Thompson ed. 2000)). A majority of
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this court defenestrated the people's ability to defend their
laws. Trump should be overruled to restore the people's
supremacy over their public servants. I respectfully concur.
¶144 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this concurrence.
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¶145 BRIAN HAGEDORN, J. (concurring). The principal
issue in this case involves the lawfulness of ballot drop boxes.
This case is not about the risk of fraudulent votes being cast
or inspiring confidence in elections. This is not about
ensuring everyone who wants to vote can, nor should we be
concerned with making absentee voting more convenient and
secure. Those are policy concerns, and where the law does not
speak, they are the business of the other branches, not the
judicial branch. This case is about applying the law as
written; that's it. To find out what the law is, we read it and
give the words of the statutes the meaning they had when they
were written.
¶146 The occasion for us to visit this question now is the
issuance of two memos by the Wisconsin Elections Commission
(WEC) in 2020. Those memos were prepared in response to
questions from local clerks administering elections. In the
beginning stages of the COVID-19 pandemic, many wondered whether
the mail system would be able to return absentee ballots on
time. The memos reflect that clerks asked for guidance,
including whether ballot drop boxes could be established to
receive completed ballots. WEC said yes, and offered detailed
best practices on security and logistics and other such
administrative questions. The 2020 spring and fall elections
came and went; no significant legal challenges to the memos were
raised at the time.
¶147 This lawsuit was filed in June 2021. It is a
declaratory judgment action under Wis. Stat. § 227.40, which
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authorizes "judicial review of the validity of a rule or
guidance document" issued by a state agency. § 227.40(1). The
focus is therefore on what the memos say, and whether their
prescriptions are consistent with the law.
¶148 The law says this: absentee ballots can be mailed by
the elector or "delivered in person, to the municipal clerk."
Wis. Stat. § 6.87(4)(b)1. A careful study of the text,
including its history, along with the supporting statutory
context, reveals that unstaffed drop boxes for absentee ballot
return are not permitted. Rather, this statute specifies return
of absentee ballots through two and only two means: mailing by
the voter to the municipal clerk, or personal delivery by the
voter to the municipal clerk. And personal delivery to the
clerk contemplates a person-to-person exchange between the voter
and the clerk or the clerk's authorized representative at either
the clerk's office or a designated alternate site. Wis. Stat.
§§ 5.02(10), 6.855, 6.87(4)(b)1., 6.88(1). The two memos
advising otherwise therefore conflict with the law and are
properly void.
¶149 In Part II of this concurrence, I address the
important procedural questions before us regarding standing and
exhaustion of administrative remedies. While I agree that
Teigen may bring this claim, I do so on different grounds than
those proffered by the majority/lead opinion. In Part III, I
provide additional insight into the statutory context and
history of the relevant statutes governing where and how
absentee ballots may be returned. Finally, in Part IV, I
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address whether WEC's memos in this case are unpromulgated
administrative rules. I conclude they are not because they do
not have what the statute requires: the "force of law." See
Wis. Stat. § 227.01(13).1
¶150 Before diving into the law, I offer two observations.
First, the election law statutes we are asked to consider are by
no means a model of clarity. Many of the controlling provisions
were originally enacted over 100 years ago and have been layered
over with numerous amendments since. Reasonable minds might
read them differently. Significant questions remain despite our
decision in this case, especially as absentee voting has become
increasingly common. Although our adjudication of this case
will provide some assistance, the public is better served by
clear statutes than by clear judicial opinions interpreting
unclear statutes. The legislature and governor may wish to
consider resolving some of the open questions these statutes
present.
¶151 Second, some citizens will cheer this result; others
will lament. But the people of Wisconsin must remember that
judicial decision-making and politics are different under our
constitutional order. Our obligation is to follow the law,
which may mean the policy result is undesirable or unpopular.
Even so, we must follow the law anyway. To the extent the
citizens of Wisconsin wish the law were different, the main
1 I join ¶¶4-10, 12-13, 52-63, 73-85 of the majority/lead
opinion.
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remedy is to vote and persuade elected officials to enact
different laws. This is the hard work of democracy.
I. BACKGROUND
¶152 Weeks before Wisconsin voters went to the polls in
April 2020, the COVID-19 pandemic upended much of the world.
Election administration was no exception. Due to the risk posed
by the virus, exponentially more voters opted to vote by
absentee ballot. Complicating things further, the pandemic
strained the United States Postal Service, causing fear that it
would not be able to deliver absentee ballots on a timely basis.
Faced with these constraints, local election officials reached
out to WEC for guidance on how they could ensure all absentee
ballots would be received in time to be counted. In response to
these questions, WEC issued a memo on March 31, 2020, entitled,
"FAQs: Absentee Ballot Return Options: USPS Coordination and
Drop Boxes." The memo advised in relevant part that "drop boxes
can be used for voters to return ballots but clerks should
ensure they are secure." It also noted its view that a "family
member or another person may also return the ballot on behalf of
the voter." The April election proceeded without apparent legal
controversy over these matters.
¶153 As preparations began for the November 2020 election,
WEC issued another memo. Dated August 19, 2020, it was
entitled, "Absentee Ballot Drop Box Information." The document
was "intended to provide information and guidance on drop box
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options for secure absentee ballot return for voters." The memo
explained:
A ballot drop box provides a secure and convenient
means for voters to return their by mail absentee
ballot. A drop box is a secure, locked structure
operated by local election officials. Voters may
deposit their ballot in a drop box at any time after
they receive it in the mail up to the time of the last
ballot collection Election Day. Ballot drop boxes can
be staffed or unstaffed, temporary or permanent.
¶154 In June 2021, Waukesha County voters Richard Teigen
and Richard Thom (collectively "Teigen") sued WEC "seeking a
declaratory judgment regarding the proper construction of state
statutes that set forth the legal methods for Wisconsin voters
to cast absentee ballots." In his complaint, Teigen contended:
"The March 2020 and August 2020 Memos are invalid because they
exceed the statutory authority of WEC and because they were
promulgated without compliance with statutory procedures."
Several parties intervened to defend the memos, including the
Democratic Senatorial Campaign Committee (DSCC) and Disability
Rights Wisconsin, Wisconsin Faith Voices for Justice, and the
League of Women Voters for Wisconsin (collectively "DRW").
¶155 Teigen moved for summary judgment, and the circuit
court granted his motion. The circuit court declared the memos
invalid because they conflicted with three principles it drew
from the statutes: (1) "an elector must personally mail or
deliver his or her own absentee ballot, except where the law
explicitly authorizes an agent to act on an elector's behalf";
(2) the only ways to cast an absentee ballot under Wis. Stat.
§ 6.87(4)(b)1. "are for the elector to place the envelope
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containing the ballot in the mail or for the elector to deliver
the ballot in person to the municipal clerk"; and (3) the use of
drop boxes "is not permitted under Wisconsin law unless the drop
box is staffed by the clerk and located at the office of the
clerk or a properly designated alternate site under Wis. Stat.
§ 6.855." The circuit court also held that the memos were
unpromulgated administrative rules, and therefore invalid.
Finally, the court enjoined WEC from issuing further
interpretations that conflict with Wisconsin law and ordered WEC
to withdraw the two memos.
¶156 After the circuit court's ruling, WEC, DRW, and DSCC
appealed to the court of appeals. Teigen petitioned this court
for bypass. We granted Teigen's petition and received briefing
on three issues: (1) whether Teigen's case is procedurally
proper, (2) whether WEC's memos are inconsistent with Wisconsin
election law, and (3) whether WEC's memos are unpromulgated
administrative rules.
II. PROCEDURAL ISSUES
¶157 The intervening parties raise two procedural
challenges they contend forbid Teigen from bringing this suit.
DSCC asserts Teigen lacks standing to seek declaratory relief.
And DRW argues Teigen's claim must be dismissed because he
failed to exhaust the available administrative remedies. Both
challenges fall short.
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A. Standing
¶158 Teigen seeks declaratory relief under Wis. Stat.
§ 227.40. That statute permits "judicial review of the validity
of a rule or guidance document" issued by a state agency.
§ 227.40(1). Under such review, the court "shall declare" a
rule or guidance document invalid if it violates a
constitutional provision, exceeds the agency's statutory
authority, or was not issued in compliance with the relevant
statutory procedures. § 227.40(4)(a).
¶159 Chapter 227's broad right to declaratory relief is not
without limits. In particular, the statute requires that the
challenged rule or guidance document have some practical and
adverse effect on the party seeking relief:
The court shall render a declaratory judgment in the
action only when it appears from the complaint and the
supporting evidence that the rule or guidance document
or its threatened application interferes with or
impairs, or threatens to interfere with or impair, the
legal rights and privileges of the plaintiff.
Wis. Stat. § 227.40(1). In legal parlance, this harm
requirement is called standing.
¶160 Standing is the foundational principle that those who
seek to invoke the court's power to remedy a wrong must face a
harm which can be remedied by the exercise of judicial power.
Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766
N.W.2d 517. Some of my colleagues have begun to describe
standing in far looser terms. It is a really nice thing to have
in a case, they seem to say, but not important at the end of the
day. I disagree. We have said standing is not jurisdictional
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in the same sense as in federal courts and that its parameters
are a matter of sound judicial policy. But as Justice Prosser
put it, "Judicial policy is not, and has not been, carte blanche
for the courts of Wisconsin to weigh in on issues whenever the
respective members of the bench find it desirable." Foley-
Ciccantelli v. Bishop's Grove Condo. Ass'n, Inc., 2011 WI 36,
¶131, 333 Wis. 2d 402, 797 N.W.2d 789 (Prosser, J., concurring).
The judiciary does not serve as a roving legal advisor,
answering any questions about the law that may arise. The power
we have is "judicial." Wis. Const. art. VII, § 2. The judicial
power is the power decide disputes between parties about the law
where there is harm to a party that can be remedied through the
judicial process. Gabler v. Crime Victims Rights Bd., 2017
WI 67, ¶37, 376 Wis. 2d 147, 897 N.W.2d 384. In this sense, the
judicial policy buttressing our standing doctrine must stem from
our constitutional role. Standing is not a historical relic
that should be dispensed with in an age of judicial supremacy.
It serves as a vital check on unbounded judicial power. A
judiciary that understands its limited and modest role in
constitutional governance will take it seriously. Doing so
brings our judgment to bear when necessary to resolve legal
disputes between parties, but allows many legal debates to take
place where the constitution places them: in the court of
public opinion and by and between the other branches of
government.
¶161 It is also important to give careful attention to
standing because the legislature has, in many instances,
8
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prescribed the ground rules for judicial review. The rule of
law requires that we pay heed to the procedural law enacted by
the legislature no less than other laws. Wisconsin Stat.
§ 227.40(1) is one such statute that imposes a statutory
standing requirement. Ordinarily and at common law, citizens
could not simply request and obtain a judicial declaration of
what the law is in a given scenario. Miller v. Currie, 208
Wis. 199, 203, 242 N.W. 570 (1932) ("Declaratory relief is a
creation of the statute and was unknown to the common law.").
Section 227.40(1) permits a declaration of rights, but only when
a "rule or guidance document or its threatened application
interferes with or impairs, or threatens to interfere with or
impair, the legal rights and privileges of the plaintiff."
¶162 Thus, the question is whether WEC's memos harm or
threaten harm to any of Teigen's "legal rights and privileges."
Teigen proffers two legal rights which he contends are
implicated by the memos: his right as a taxpayer to challenge
unlawful expenditures, and his right as a voter to have election
officials comply with election laws.
¶163 We have held that taxpayers have a legal right "to
contest governmental actions leading to an illegal expenditure
of taxpayer funds." Fabick v. Evers, 2021 WI 28, ¶10, 396
Wis. 2d 231, 956 N.W.2d 856. Teigen maintains he has taxpayer
standing because tax dollars supported distribution of the memos
and the salaries of WEC staff who prepared them. Taxpayer
standing, however, does not extend as broadly as Teigen
suggests. This argument, if accepted, would mark a radical
9
No. 2022AP91.bh
departure in the law. It would mean any taxpayer could
challenge almost any government action——as long as a government
employee devoted some time and attention to the matter. Since
that is nearly always true, this would practically eliminate
standing as a consideration in most challenges to government
action. It is true that the functional distance between an
illegal government expenditure and staff time spent drafting a
legally erroneous memo may be fuzzy, but it is meaningful and
clear from our cases.2 We have never described taxpayer standing
as broadly as Teigen asserts, and we should not grant Teigen's
entreaty now.
¶164 Teigen's second argument, however, is more compelling.
Teigen argues that Wis. Stat. § 5.06 gives voters like him a
2 Our taxpayer standing cases have always involved an
alleged illegal expenditure distinct from staff time. See Hart
v. Ament, 176 Wis. 2d 694, 698-99, 500 N.W.2d 312 (1993)
(challenging the transfer of management of a county museum);
Tooley v. O'Connell, 77 Wis. 2d 422, 439, 253 N.W.2d 335 (1977)
(challenging the constitutionality of a taxing provision); Buse
v. Smith, 74 Wis. 2d 550, 563, 247 N.W.2d 141 (1976)
(challenging a negative-aid provision); Thompson v. Kenosha
County, 64 Wis. 2d 673, 679-80, 221 N.W.2d 845 (1974)
(challenging the adoption of a countywide assessor system); S.D.
Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15
Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961) (challenging
construction of a tunnel); Federal Paving Corp. v. Prudisch, 235
Wis. 527, 538, 293 N.W. 156 (1940) (challenging a city
resolution directing that payment be made to a paving
contractor); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85,
107-08, 99 N.W. 603 (1904) (challenging building of a bridge);
J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 84,
336 N.W.2d 679 (Ct. App. 1983) (challenging the
constitutionality of a statue resulting in public expenditures).
10
No. 2022AP91.bh
statutory right to have local election officials in the area
where he lives comply with election laws.3 That statute says:
Whenever any elector of a jurisdiction or district
served by an election official believes that a
decision or action of the official or the failure of
the official to act with respect to any matter
concerning . . . election administration or conduct of
elections is contrary to law . . . the elector may
file a written sworn complaint with [WEC] requesting
that the official be required to conform his or her
conduct to the law, be restrained from taking any
action inconsistent with the law or be required to
correct any action or decision inconsistent with the
law or any abuse of the discretion vested in him or
her by law.
§ 5.06(1). According to this statute, if local election
officials in the area where a voter lives violate election laws,
the voter is empowered to have that conduct abated.4 This
establishes not only a process to compel compliance with the
law, but also a legal right held by the voter to have their
local election officials follow the law.5 Other provisions of
Chapter 5 work in similar ways.6
3The majority/lead opinion complains Wis. Stat. § 5.06 is
not in the petitioner's complaint. But it is in their briefing,
which is usually where we look for legal arguments. This was
unquestionably an argument Teigen raised.
4Additional recourse to a court is available if WEC does
not take action on the voter's complaint. See Wis. Stat.
§ 5.06(2).
5The majority/lead opinion misses this distinction, stating
that this legal right may only be vindicated by following the
procedures set forth in Wis. Stat. § 5.06. But Wis. Stat.
§ 227.40 provides an additional avenue to vindicate rights
conferred in other statutes——including § 5.06——that are
threatened by unlawful guidance documents and rules.
6See, e.g., Wis. Stat. § 5.08 (empowering voters who
believe "that an election official has failed or is failing to
11
No. 2022AP91.bh
¶165 Returning to the standing question here, Wis. Stat.
§ 227.40(1) first requires the challenge be to a "rule or
guidance document." Teigen challenges two memos issued by WEC
which all agree are either guidance documents or rules. The
statute then inquires whether the memos or their "threatened
application interfere[] with or impair[], or threaten[] to
interfere with or impair, the legal rights and privileges of the
plaintiff." § 227.40(1). As I have explained, Teigen has a
legal right protected by Wis. Stat. § 5.06 to have local
election officials in his area comply with the law. The only
question, then, is whether the memos at least threaten to
interfere with or impair Teigen's right to have local election
officials comply with the law. I conclude they do.
¶166 The two memos challenged in this case provide local
election officials advice on absentee ballot return——advice
Teigen contends is unlawful. Regardless of whether the memos
are themselves binding on local election officials (a question
explored further below), they no doubt carry persuasive force
with those administering elections. Many local election
officials will follow advice offered by WEC, even when that
advice is not legally binding. Indeed, the record in this case
comply with any law regulating the conduct of elections or
election campaigns" to petition the district attorney with
jurisdiction to prosecute the election official's failure); Wis.
Stat. § 5.061 (directing voters to file a complaint if they
observe a violation of the Help America Vote Act in a national
election); Wis. Stat. § 5.081 (authorizing voters to contest
perceived violations of § 2 of the Voting Rights Act by
petitioning the attorney general, who then is directed to bring
a lawsuit on the voters' behalf).
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reveals that many local election officials employed drop boxes
consistent with WEC's advice after the memos issued. If that
advice is contrary to law, it stands to reason that many local
election officials, including those in Teigen's area, are likely
to rely on and implement erroneous advice. Applying the plain
terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at
the very least threaten to interfere with or impair his right to
have local election officials comply with the law. In other
words, unlawful WEC guidance can threaten harm to the legal
rights and privileges Wis. Stat. § 5.06 provides to voters like
Teigen. In this case, the question is whether WEC issued an
allegedly unlawful rule or guidance document that makes it
likely local election officials will not follow election laws.
And on that question, Teigen has sufficiently alleged standing
for purposes of § 227.40(1).7
¶167 The majority/lead opinion concludes Teigen has
standing, but for a different reason. It says Teigen alleged an
injury to his constitutional right to vote as recognized in Wis.
Stat. § 6.84(1). Majority/lead op., ¶21. That subsection is a
statement of legislative policy. It provides in part, "The
legislature finds that voting is a constitutional right, the
vigorous exercise of which should be strongly encouraged."
7 Significantly, the challenge to Teigen's standing in this
case was brought by one of the intervenors, DSCC. WEC——the
agency that issued the challenged guidance——expressly declined
to join DSCC's standing challenge, even when questioned about
the challenge at oral argument. If there is a clear bar to
voters challenging allegedly unlawful WEC guidance, WEC itself
did not think it worth raising.
13
No. 2022AP91.bh
§ 6.84(1). This statute acknowledges the right to vote
protected in Article III, Section 1 of the Wisconsin
Constitution: "Every United States citizen age 18 or older who
is a resident of an election district in this state is a
qualified elector of that district." The majority/lead does not
explain why the text of § 6.84(1)——or Article III, Section 1 for
that matter——should be read to encompass a right for a voter to
challenge any and all election practices. Section 6.84 sets
forth rules of construction in a subchapter governing absentee
voting. Yet the majority/lead opinion suggests it creates broad
voter standing against any election official or WEC by any
elector for nearly any purported violation of any election law.8
Without tethering the analysis to an on-point text, this
analysis is unpersuasive and does not garner the support of four
members of this court.
B. Exhaustion
¶168 One procedural matter remains. DRW argues Teigen
failed to exhaust his administrative remedies because he did not
first challenge the guidance under Wis. Stat. § 5.06.
Specifically, DRW points to subsec. (2) of that statute, which
says: "No person who is authorized to file a complaint under
The majority/lead opinion does not disagree with this
8
characterization of the import of its argument. But it wrongly
suggests my analysis under Wis. Stat. § 5.06 does the same. My
standing analysis applies only to challenges under Wis. Stat.
§ 227.40(1) to WEC rules and guidance documents when that
guidance threatens to cause local election officials to behave
illegally——a legal right protected by § 5.06. The majority/lead
opinion brings heat, but little light, to the analysis.
14
No. 2022AP91.bh
[this section] . . . may commence an action or proceeding to
test the validity of any decision, action or failure to act on
the part of any election official . . . without first filing a
complaint under [this section.]" § 5.06(2). DRW also relies on
Wis. Stat. § 5.05(2m), which says WEC's "power to initiate civil
actions . . . for the enforcement of chs. 5 to 10 or 12 shall be
the exclusive remedy for alleged civil violations of chs. 5 to
10 or 12." § 5.05(2m)(k).
¶169 DRW makes reasonable arguments supporting the
proposition that these statutes apply to claimed failures of WEC
as well. But on balance, I conclude that these statutes do not
apply here. Wisconsin Stat. § 5.06 gives WEC an adjudicatory
role when an "election official" violates the law. An "election
official" in the elections statutes is "an individual who is
charged with any duties relating to the conduct of an election."
Wis. Stat. § 5.02(4e). However, WEC is separately defined
immediately following this as "the elections commission." Wis.
Stat. § 5.025. WEC's powers and duties are outlined in § 5.05
and include a direction to "investigate violations of laws
administered by the commission" and "prosecute alleged civil
violations of those laws." § 5.05(2m)(a). Similarly, § 5.06(4)
authorizes WEC to "investigate and determine whether any
election official . . . has failed to comply with the law."
With respect to both §§ 5.05(2m) and 5.06, DRW's reading would
mean WEC is directed to investigate and prosecute itself, which
makes little sense. That, along with the statutory distinction
between an "election official" and the "commission" lead me to
15
No. 2022AP91.bh
conclude the better reading is that the § 5.06 complaint process
does not apply to complaints against acts of WEC as a body.9
¶170 In addition, Wis. Stat. § 227.40(1) expressly opens
the courthouse doors to those challenging administrative rules
or guidance documents: "A declaratory judgment may be rendered
whether or not the plaintiff has first requested the agency to
pass upon the validity of the rule or guidance document in
question." This seems to carve out a particular kind of legal
claim——a challenge to rules and guidance documents——and relieves
the petitioner of pleading one's case with the agency first.10
Applying this as written, and in the absence of other contrary
arguments, I conclude Teigen was not required to take his case
to WEC before seeking judicial relief under § 227.40(1). Thus,
Teigen has not failed to exhaust his administrative remedies
before bringing this claim. I therefore proceed to the merits.
III. BALLOT DELIVERY & DROP BOXES
¶171 In the two memos at issue here, WEC advised clerks
that absentee voters could cast their ballots via staffed or
unstaffed drop boxes, that drop boxes may be placed at clerk's
See also Note, Wis. Admin. Code ch. EL 20 (June 2016)
9
(referring to "complaints alleging a violation of election laws
by a local election official under s. 5.06, Wis. Stat."
(emphasis added)).
The availability of relief under Wis. Stat. § 227.40(1)
10
also means the State has waived its sovereign immunity from this
type of claim——i.e., it has consented to suits of this type.
See Wis. Const. art. IV, § 27; Lister v. Bd. of Regents of Univ.
Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976)
(explaining "the state cannot be sued without its consent").
16
No. 2022AP91.bh
office or elsewhere, and that individuals other than the voter
may deliver the voter's absentee ballot to the clerk. These
three positions are inconsistent with Wisconsin's election
statutes. The law requires that to return an absentee ballot in
person, voters must personally deliver their ballot to the clerk
or the clerk's authorized representative at either the clerk's
office or a designated alternate site. Wis. Stat. §§ 5.02(10),
6.855, 6.87(4)(b)1., 6.88(1). Because WEC's memos conflict with
these statutory directives, they are invalid.
A. Statutory Framework
¶172 Our interpretive task centers on three statutes that
together provide the framework for how absentee ballots may be
returned and how clerks are to receive them.
¶173 The first one, Wis. Stat. § 6.87(4)(b)1., details how
an absentee voter should complete a ballot, and then directs how
it should be returned: "The envelope shall be mailed by the
elector, or delivered in person, to the municipal clerk issuing
the ballot or ballots." § 6.87(4)(b)1. A "municipal clerk"
includes "authorized representatives" of the clerk. Wis. Stat.
§ 5.02(10).
¶174 Wisconsin Stat. § 6.87(4)(b)1. was originally enacted
as part of Wisconsin's earliest comprehensive absentee voting
law in 1915. § 1, ch. 461, Laws of 1915. Regarding return of a
ballot, the law provided: "Said envelope shall be mailed by
such voter, by registered mail, postage prepaid, to the officer
issuing the ballot, or if more convenient it may be delivered in
17
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person." Id. This wording, plainly read, suggests both the
mailing and the delivery must be done by the voter, and directed
to the ballot-issuing officer.
¶175 When we construe statutes, we must read the words to
mean what they were understood to mean at the time they were
enacted, lest we find ourselves rewriting the law. Fortunately,
we have clear evidence of how this language was originally read.
Less than a year after enactment, the attorney general opined on
the precise interpretive question before us today: "'Delivery
in person' must mean handed directly by an elector to the
officer; it means manual transmission by the one to the other."
5 Wis. Op. Att'y Gen. 591, 593 (1916). When enacted, the text
we are considering today was understood to require a person-to-
person interaction between the voter and the clerk. So far as I
can tell, this reading went unchallenged for 40 years.
¶176 In 1955, this court had occasion to examine the
statute in an election dispute. In Sommerfeld v. Board of
Canvassers of the City of St. Francis, 18 absentee ballots were
returned to the clerk by a third person, and not by the voter.
269 Wis. 299, 300-01, 69 N.W.2d 235 (1955), abrogated in part by
Wis. Stat. § 6.84(2). The question in that case concerned
whether those ballots should be counted. Id. at 300. All seven
justices took it as a given that the law had been violated; the
statute required delivery from the voter to the clerk, not
through a third person. Id. at 301; id. at 304-05 (Gehl, J.,
dissenting). The four-justice majority, however, concluded
those votes should nonetheless be counted because the statute,
18
No. 2022AP91.bh
though violated, was directory, not mandatory. Id. at 304.
Although legally binding, failure to comply with a directory
statute may not produce the same consequence as a failure to
comply with a mandatory statute. See State v. Rosen, 72
Wis. 2d 200, 207, 240 N.W.2d 168 (1976). The Sommerfeld
majority concluded that construing the in-person delivery
requirement as mandatory for votes to count could disenfranchise
some disabled voters——a result it did not think the legislature
meant to produce. 269 Wis. at 303-04. Speaking for three
justices, Justice Gehl wrote in dissent that "in person" means
"[b]y one's self; with bodily presence," quoting a dictionary.
Id. at 304 (Gehl, J., dissenting). Voting by agent was not
permitted by this statute, the dissent explained, and votes cast
out of compliance with the law should not be counted. Id. at
305 (Gehl, J., dissenting). Sommerfeld's holding that the in-
person delivery requirement is directory has since been
abrogated. Section 6.84(2) now provides that the requirement
"shall be construed as mandatory." What remains is what no
justice doubted——that the "in person" delivery requirement means
personal delivery, in the flesh, by the voter, to the municipal
clerk.
¶177 The legislature has instructed that a "revised statute
is to be understood in the same sense as the original unless the
change in language indicates a different meaning so clearly as
to preclude judicial construction." Wis. Stat. § 990.001(7).
There have been three significant iterations of the in-person
delivery requirement; none convey a clear change in meaning from
19
No. 2022AP91.bh
the original.11 No statutory amendments, cases, or Attorney
General opinions since give cause to reconsider the long-held
view that Wis. Stat. § 6.87(4)(b)1.'s delivery provision
requires a person-to-person interaction between the voter and
the clerk.
¶178 WEC and DRW counter that because the statute is
written in the passive voice, the actor is indeterminate. While
that can be true at times, it is not the case here. Wisconsin
Stat. § 6.87(4)(b)1. is not agnostic as to the actor. It must
be the voter who delivers the ballot. The history confirms this
plain reading. WEC also argues that delivery in person does not
foreclose delivery by an agent. But statutory history shows
this is incorrect as well. In the same comprehensive 1915 law,
just two sections after the in-person-delivery requirement, the
law speaks of delivery of ballots from clerks to election
inspectors "in person or by duly deputized agent." Wis. Stat.
§ 44m——8 (1915). At the very least, this shows that the
legislature knew how to allow delivery by agent, but it chose
not to provide for that form of delivery when it enacted this
11 The three versions are as follows:
 1915: "Said envelope shall be mailed by such voter, by
registered mail, postage prepaid, to the officer issuing
the ballot, or if more convenient it may be delivered in
person." Wis. Stat. § 44m——6 (1915).
 1965: "The envelope shall be mailed by the elector,
postage prepaid, or delivered in person, to the municipal
clerk issuing the ballot." Wis. Stat. § 6.87(4) (1967-68).
 Present: "The envelope shall be mailed by the elector, or
delivered in person, to the municipal clerk issuing the
ballot or ballots." Wis. Stat. § 6.87(4)(b)1.
20
No. 2022AP91.bh
law. Our decision in Sommerfeld is in accord. I see no
evidence supporting a different reading in the current text
either.12
¶179 In the end, there are two ways to return an absentee
ballot under Wis. Stat. § 6.87(4)(b)1. A ballot may be "mailed
by the elector," or the voter may deliver it "in person" to the
clerk that issued it. § 6.87(4)(b)1. The elector is required——
the statute uses the word "shall"——to utilize one of these two
options. This contemplates an in-person interaction between the
voter and either the municipal clerk or an authorized
representative of the clerk.
¶180 We turn next to two statutes that inform where clerks
may receive absentee ballots. Wisconsin Stat. § 6.88(1)
prescribes what happens after an absentee ballot is received by
the clerk:
When an absentee ballot arrives at the office of the
municipal clerk, or at an alternate site under s.
6.855, if applicable, the clerk shall enclose it,
unopened, in a carrier envelope which shall be
securely sealed and endorsed with the name and
official title of the clerk, and [a statement
The dissent suggests that the use of the phrase "ballot
12
or ballots" means that one voter may return other voters'
ballots. Dissent, ¶240 n.14. This phrasing, however, appears
to be holdover from an earlier time when a single voter would
cast separate ballots for separate races. The original absentee
voting law enacted in 1915 routinely discussed a single voter
receiving and casting multiple ballots. See Wis. Stat. § 44m—4
(1915) (providing that the municipal clerk "shall deliver said
ballot or ballots to the applicant personally"); Wis. Stat.
§ 44m—6 (1915) (directing the voter to "mark such ballot or
ballots" and that "such ballot or ballots shall then in the
presence of such officer be folded by such voter so that each
ballot will be separate and so as to conceal the marking").
21
No. 2022AP91.bh
regarding the contents of the envelope]. . . . The
clerk shall keep the ballot in the clerk's office or
at the alternate site, if applicable until delivered
[to the appropriate election officials].
This statute ensures a strict chain of custody for ballots.
Once a ballot is delivered by the voter, the clerk must take
steps to secure it until the time comes to deliver it to the
appropriate election officials. The next subsection, § 6.88(2),
provides detailed instructions regarding the secure transfer of
ballots from clerks to the proper election officials, ensuring
there is no opportunity to tamper with the ballots. Although
neither Wis. Stat. § 6.87(4)(b)1. nor § 6.88(1) expressly state
where the voter may deliver his or her ballot, reading the two
sections together suggests that delivery must occur either at
the clerk's office or an alternate site, if applicable. Given
the detailed ballot custody regulations once the ballot arrives
at the clerk's office or an alternate site, legislative silence
with respect to ballots delivered anywhere else strongly
indicates delivery is not permitted anywhere else. See Alberte
v. Anew Health Care Servs., Inc., 2000 WI 7, ¶17, 232
Wis. 2d 587, 605 N.W.2d 515 (noting that statutory silence "is
strong evidence" that the legislature "simply did not
contemplate" a particular option).
¶181 Finally, we consider Wis. Stat. § 6.855, which
authorizes the aforementioned "alternate sites"——i.e.,
designated locations besides the clerk's office where elections
may be administered. It provides:
The governing body of a municipality may elect to
designate a site other than the office of the
municipal clerk or board of election commissioners as
22
No. 2022AP91.bh
the location from which electors of the municipality
may request and vote absentee ballots and to which
voted absentee ballots shall be returned by electors
for any election. . . . If the governing body of a
municipality makes an election under this section, no
function related to voting and return of absentee
ballots that is to be conducted at the alternate site
may be conducted in the office of the municipal clerk
or board of election commissioners.
§ 6.855(1).13 The strict regulation of alternate sites
reinforces the interpretation that ballots must be returned to
either the clerk's office or a designated alternate site. Just
as the statutes are not agnostic about who delivers ballots, a
holistic reading indicates they are not agnostic about where
those ballots are delivered either. Ballot custody is carefully
regulated at both clerks' offices and at alternate sites. The
absence of any careful regulation governing ballot custody
elsewhere leads me to conclude that clerks may not take custody
of ballots at other locations unless otherwise specified.14
13Governing bodies "may designate more than one alternate
site." Wis. Stat. § 6.855(5).
14In Trump v. Biden, among other issues, we were asked
whether ballots delivered to certified election inspectors at
temporary events in Madison parks were valid. 2020 WI 91, ¶¶9,
19-21, 394 Wis. 2d 629, 951 N.W.2d 568. The court concluded
this claim was barred by the doctrine of laches and rejected it
on that basis. Id., ¶¶10, 29-31. I authored a concurrence
offering a preliminary review of the merits of the three claims
rejected on the basis of laches, while recognizing that a
"comprehensive analysis is not possible or appropriate in light
of the abbreviated nature of this review and the limited factual
record" in that case. Id., ¶36 (Hagedorn, J., concurring).
Regarding the so-called "Democracy at the Park" events, I
concluded those events were lawful "based on the record before
the court and the arguments presented." Id., ¶57 (Hagedorn, J.,
concurring). With the benefit of more comprehensive briefing
and careful study, I now conclude that the better reading of the
statutory scheme is that ballots may only be returned to the
clerk's office or a designated alternate site. To be clear,
23
No. 2022AP91.bh
¶182 The respondents argue that the directive to deliver
ballots "to the municipal clerk" in Wis. Stat. § 6.87(4)(b)1.
does not restrict how the municipal clerk may receive the
ballots. If the municipal clerk wishes to receive the ballots
in a drop box, the argument goes, that is sufficient. Moreover,
other statutes speak of delivery to the office of the municipal
clerk, and this one does not. This is perhaps the best argument
in the respondents' favor, but it is unpersuasive given the
additional statutes that give great care to ballot security and
custody. While § 6.87(4)(b)1. says how ballots must be
delivered and by whom, Wis. Stat. §§ 6.88(1) and 6.855(1) are
best read as limiting and defining where these ballots must be
delivered. Section 6.87(4)(b)1. requires in-person delivery by
the voter to the municipal clerk. And §§ 6.88(1) and 6.855(1)
specify where the municipal clerk can receive those ballots.15
¶183 Read together, these statutes direct that when voters
choose to return an absentee ballot in person, they must
personally deliver their ballot to the clerk or the clerk's
authorized representative at either the clerk's office or a
designated alternate site. With this interpretation in hand,
the next task is to hold WEC's memos up against the statutes.
this conclusion would not have changed the court's decision in
Trump.
As previously noted, these statutes are far from obvious.
15
While I conclude WEC's interpretation is incorrect, reasonable
arguments can be made otherwise, especially with respect to the
locations where ballots may be received. This lack of precision
and certainty should serve as a call for our political branches
to give clearer guidance to voters and those they have asked to
administer elections.
24
No. 2022AP91.bh
B. Application
¶184 Teigen focuses his challenge to the March 2020 memo on
the following sentence: "A family member or another person may
also return the ballot on behalf of the voter." Teigen argues,
correctly, that this advice was contrary to Wis. Stat.
§ 6.87(4)(b)1. WEC's interpretation would permit an agent of
the voter to return a ballot on the voter's behalf, contrary to
§ 6.87(4)(b)1.'s requirement that there be a voter-to-clerk
interaction. And although Wis. Stat. § 5.02(10) permits an
agent to stand in for the clerk, no statute allows an agent to
stand in for the voter in this context.16 WEC's March 2020 memo
is invalid.
¶185 Teigen also seeks a declaration that Wis. Stat.
§ 6.87(4)(b)1. requires voters to personally place their own
ballots in the mail——a declaration the circuit court granted.
However, neither WEC's March 2020 memo nor its August 2020 memo
offer any advice about how a ballot may be "mailed by the
elector." Therefore, there simply is no guidance or rule for us
to review under Wis. Stat. § 227.40(1). Accordingly, the court
should not and does not make any declaration on that question.17
16Other more specific laws that are not at issue here do
permit agents to complete certain tasks on a voter's behalf.
See, e.g., Wis. Stat. § 6.875 (absentee voting in certain
residential care facilities); Wis. Stat. § 6.86(3) (hospitalized
voters).
17 Justice Roggensack's concurring opinion contends we
should decide this question pursuant to our authority under the
general Declaratory Judgments Act, Wis. Stat. § 806.04.
However, unlike Teigen's other claims, he presents no evidence
that WEC has or will violate Wis. Stat. § 6.87(4)(b)1.'s
directives on returning ballots by mail. Teigen therefore does
25
No. 2022AP91.bh
¶186 Finally, we turn to WEC's August 2020 memo, which
provides guidance on drop boxes. Teigen correctly contends the
August 2020 memo improperly advises clerks on how to administer
unstaffed drop boxes and drop boxes at locations other than the
clerk's office or alternate sites. WEC's guidance is contrary
to statute for two reasons. First, unstaffed drop boxes do not
satisfy Wis. Stat. § 6.87(4)(b)1.'s requirement that the voter
deliver his or her ballot to the municipal clerk or an
authorized representative of the clerk. The "in person"
interaction the statutes require is absent when a ballot is
delivered to an unstaffed drop box. Second, the August memo
offers incorrect guidance regarding drop boxes at locations
other than the municipal clerk's office or alternate sites.
Because Wis. Stat. §§ 6.88(1) and 6.855(1) contemplate delivery
occurring at the clerk's office or an alternate site, but not
elsewhere, this guidance is contrary to law. Accordingly, WEC's
August 2020 memo is also invalid.
¶187 Both WEC's March 2020 and August 2020 memos provide
advice that is inconsistent with Wisconsin's election statutes.
The court therefore rightly affirms the circuit court's order
declaring the memos invalid pursuant to Wis. Stat. § 227.40(1).
IV. UNPROMULGATED RULE CHALLENGE
¶188 The foregoing analysis is sufficient to resolve the
appeal before us. I write further to address Teigen's argument
that WEC's memos were unpromulgated administrative rules.
not face any threatened harm which a declaration would remedy.
26
No. 2022AP91.bh
¶189 Not all statements that come from a state agency are
created equal. Wisconsin's Administrative Procedure Act
recognizes this and draws a distinction between what it terms
"guidance documents" on the one hand and administrative "rules"
on the other. Wis. Stat. § 227.01(3m) & (13).
¶190 A guidance document is just what it sounds like. It
is a "formal or official document or communication issued by an
agency"——such as "a manual, handbook, directive, or
informational bulletin"——that explains how a rule will be
implemented or advises the public on how the agency is likely to
apply a statute or rule to a class of similarly affected
persons. Wis. Stat. § 227.01(3m)(a). "A guidance document does
not have the force of law and does not provide the authority for
implementing or enforcing a standard, requirement, or
threshold." Wis. Stat. § 227.112(3). Agency guidance has
existed informally for some time. In 2018, the legislature
formalized guidance documents into law as a category of agency
communication and added procedures for challenging them. See
2017 Wis. Act 369, §§ 31, 65-71. The legislature also required
guidance documents to go through various processes to ensure
public input and legislative oversight. Id., § 38. However, a
majority of the court concluded several of these statutes were
facially unconstitutional——incorrectly so in my view. Serv.
Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶¶90-91, 393
Wis. 2d 38, 946 N.W.2d 35; id., ¶¶190-212 (Hagedorn, J.,
concurring in part, dissenting in part). Accordingly, agencies
27
No. 2022AP91.bh
may issue guidance documents without going through the
procedures described in Wis. Stat. ch. 227.
¶191 "Rules" are different. The statutory definition of a
rule has five elements: a "rule" is (1) "a regulation,
standard, statement of policy, or general order," (2) "of
general application," that (3) "has the force of law," and (4)
"is issued by an agency," to (5) "implement, interpret, or make
specific legislation enforced or administered by the agency or
to govern the organization or procedure of the agency." Wis.
Stat. § 227.01(13). If all five of these elements are
satisfied, the rule is subject to numerous promulgation
requirements, most notably those described in subchapter II of
Wis. Stat. ch. 227. Any rule "promulgated or adopted without
compliance with statutory rule-making or adoption procedures" is
invalid. Wis. Stat. § 227.40(4)(a).
¶192 Teigen contends that both of WEC's memos were rules
under the five-part definition just articulated, and that they
are invalid because WEC did not go through the steps required to
promulgate a rule. The dispute revolves around whether these
memos have the force of law; rules by definition do, guidance
documents by definition do not.
¶193 Few cases interpret whether a directive has the force
of law. The court of appeals has observed that "[m]aterials
developed by an agency as a reference aid for its staff that are
couched in terms of advice and guidelines rather than setting
forth law-like pronouncements" do not have the force of law and
are not rules. County of Dane v. Winsand, 2004 WI App 86, ¶11,
28
No. 2022AP91.bh
271 Wis. 2d 786, 679 N.W.2d 885 (cleaned up). By contrast,
materials "using express mandatory language are more than
informational." Milwaukee Area Joint Plumbing Apprenticeship
Comm. v. DILHR, 172 Wis. 2d 299, 321 n.12, 493 N.W.2d 744 (Ct.
App. 1992). In such documents, "the agency speaks with an
official voice intended to have the effect of law." Id. How an
agency uses a document can also indicate whether it has the
force of law. See Barry Lab'ys, Inc. v. Wis. State Bd. of
Pharmacy, 26 Wis. 2d 505, 516, 132 N.W.2d 833 (1965).
Additional instances where agency materials have been held to
have the force of law include "where criminal or civil sanctions
can result" or "where the interest of individuals in a class can
be legally affected through enforcement of the agency action."
Cholvin v. DHSF, 2008 WI App 127, ¶26, 313 Wis. 2d 749, 758
N.W.2d 118 (collecting cases).
¶194 While these cases are helpful, a more fundamental
question should be asked: what is a law? To be a law means to
be binding and enforceable. Durkee v. City of Janesville, 28
Wis. 464, 471 (1871) (laws are "binding"); State ex rel. Mayer
v. Schuffenhauer, 213 Wis. 29, 32, 250 N.W. 767 (1933) (laws
"must be followed"). A law orders and forbids and governs and
establishes in an authoritative way. See U.S. Fid. & Guar. Co.
v. Guenther, 281 U.S. 34, 37 (1930) (defining "law" as "the
rules of action or conduct duly prescribed by controlling
authority, and having binding legal force"). Here, the statutes
specify that a rule must have the "force of law." Wis. Stat.
§ 227.01(13). And "force" means to "compel by physical means or
29
No. 2022AP91.bh
by legal requirement." Black's Law Dictionary (11th ed. 2019).
This suggests something has the force of law if it compels
compliance in the same manner as other laws——like a statute or
constitutional provision. Administrative rules, once
promulgated, bind agencies and regulated entities alike. But
guidance documents do not; they inform and compel nothing.
¶195 Also important to our inquiry is the agency we are
talking about. Most agencies in state government operate with a
wide range of powers and have broad areas of regulatory
authority. WEC is different. Wisconsin's method for conducting
elections is unlike that of most other states in the union. Our
election administration system is highly decentralized. State
ex rel. Zignego v. WEC, 2021 WI 32, ¶13, 396 Wis. 2d 391, 957
N.W.2d 208. "Rather than a top-down arrangement with a central
state entity or official controlling local actors, Wisconsin
gives some power to its state election agency ([WEC]) and places
significant responsibility on a small army of local election
officials." Id. It is local clerks who have the "primary role
in running Wisconsin elections." Id., ¶15. WEC is therefore
given authority and oversight over some things, and not others.
It may speak authoritatively at times, but not at all times.
¶196 Consistent with this structure, the statutes specific
to WEC establish a process by which WEC can adopt formal or
informal advisory opinions that "have legal force and effect."
Wis. Stat. § 5.05(6a)(a)2. This necessarily means some of WEC's
opinions and advice do not have legal force and effect, and
therefore, cannot be administrative rules. Statutes must be
30
No. 2022AP91.bh
read together where possible, which means we must interpret the
rulemaking "force of law" requirement consistent with the
particular circumstances where WEC can issue advisory opinions
that "have legal force and effect." See § 5.05(6a)(a)1.
¶197 Considering all of this, the two memos in this case do
not have the force of law. The memos are self-labeled guidance
documents. They do not purport to be advisory opinions with
legal force issued pursuant to Wis. Stat. § 5.05(6a)(a)2. And
again, the legislature has specifically stated that WEC's
opinions have legal force and effect only under certain
circumstances; this is not one of them.
¶198 The language of the memos supports this view. The
March 2020 memo is structured as an FAQ document addressed to
local election officials. It begins by observing, "Due to the
increase in by-mail absentee ballots, clerks have inquired about
options for ensuring that the maximum number of ballots are
returned to be counted for the April 7, 2020 election." It
proceeds to advise clerks on how "to make ballot return more
accessible and efficient," and says that it is "recommended"
that clerks take various actions to inform voters how their
ballots may be returned. The memo then shifts to question-and-
answer format, providing advice to clerks regarding drop boxes
and how to coordinate ballot return with the U.S. Postal
Service. Nothing in the documents suggests there are
consequences for noncompliance. No legal interests are altered
by the March 2020 memo.
31
No. 2022AP91.bh
¶199 The August 2020 memo is similarly entitled "Absentee
Ballot Drop Box Information" and is addressed to Wisconsin's
election officials. The very first line of the memo reveals its
limited purpose: "This document is intended to provide
information and guidance on drop box options for secure absentee
ballot return for voters." It indicates the information in the
memo was adapted from an advisory resource developed by the
Cybersecurity and Infrastructure Security Agency. It advises
election officials regarding various types of drop boxes, where
to place them, and how to keep the ballots collected in drop
boxes secure. Again, reading the August 2020 memo in full
reveals that it is an informational document, designed to
educate election officials regarding best practices. It was
never legally binding.
¶200 Teigen disagrees. He argues that when the state
entity responsible for administering Wisconsin election law says
something is permissible——like drop boxes——WEC's imprimatur
gives its statement the force of law. But widely-followed
advice can still simply be advice. Even general acceptance does
not make guidance legally binding or otherwise give it the force
of law. Wisconsin's local election officials who lead the
charge in election administration have an independent
responsibility to read and follow the law. WEC's memos provided
advice and best practices which election officials could weigh
and consider. Many surely followed that advice. But the memos
did not themselves "authorize" drop boxes or any other election
practice in a legally binding way.
32
No. 2022AP91.bh
¶201 Justice Rebecca Grassl's Bradley concurrence concludes
the memos are administrative rules, a position premised on a
confused interpretation of Trump v. Biden, 2020 WI 91, 394
Wis. 2d 629, 951 N.W.2d 568. In that case, the court used the
word "rulebook" in a metaphor regarding challenge flags in
football. Id., ¶32. The logic of Justice Bradley's concurrence
goes like this: The court said WEC's memos were a rulebook, so
the court held that WEC memos have the force of law and are
administrative rules under Wis. Stat. § 227.01(13).
¶202 To state the obvious, a metaphor is "a figure of
speech in which a term or phrase is applied to something to
which it is not literally applicable."18 The challenge flag
metaphor came in the concluding paragraph to reinforce the
importance of challenging election practices in a timely manner.
Yet the concurrence reasons that using the coincidentally
similar word "rulebook" means the court determined that all WEC
memos are "rules" within the statutory definition. Except the
court's decision in Trump did not involve administrative
rulemaking at all. It did not cite Wis. Stat. § 227.01(13).
And no part of the analysis ascribed the force of law to WEC
guidance. Rather, the court's decision addressed whether the
Trump campaign was entitled to the relief it sought——the
striking of ballots cast in Dane and Milwaukee Counties. Trump,
https://www.dictionary.com/browse/metaphor
18 (emphasis
added); see, e.g., Thurl Ravenscroft, You're a Mean One, Mr.
Grinch, on How the Grinch Stole Christmas (Mercury Records 1966)
(referring to Mr. Grinch as a "bad banana" and to his heart as
an "empty hole").
33
No. 2022AP91.bh
394 Wis. 2d 629, ¶32. The court expressly withheld judgment on
whether the widely followed WEC guidance was correct or not.
Id., ¶30 n.11 ("Our decision that the Campaign is not entitled
to the relief it seeks does not mean the legal issues presented
are foreclosed from further judicial scrutiny."). Simply put,
neither the court's reasoning nor its concluding metaphor
suggested all such guidance has the force of law and must be
followed. It never even hinted this. The idea that we should
ascribe legal force to the two challenged memos in this case
because this was somehow settled by a one-sentence metaphor in
Trump v. Biden is not a serious legal argument.
¶203 In the end, neither the March 2020 memo nor the August
2020 memo are unpromulgated administrative rules because neither
have the force of law. The memos here are guidance documents.
They are not subject to Wis. Stat. ch. 227's promulgation
requirements and cannot be invalidated on that basis. They can,
however, be invalidated for being inconsistent with statute, as
we hold today.19
V. CONCLUSION
¶204 The majority/lead opinion correctly concludes that
WEC's March 2020 and August 2020 memos are invalid because they
are inconsistent with Wisconsin law. Wisconsin's election
statutes require that to return an absentee ballot in person,
Of course, if unstaffed drop boxes are not permitted by
19
statute, as a majority of this court holds today, then no
rulemaking authorizing drop boxes would be permissible. An
administrative rule cannot make lawful what the statutes forbid.
34
No. 2022AP91.bh
voters must personally deliver their ballot to the clerk or the
clerk's authorized representative at either the clerk's office
or a designated alternate site. Wis. Stat. §§ 5.02(10), 6.855,
6.87(4)(b)1., 6.88(1). WEC's memos conflict with these
statutory requirements by advising that individuals other than
the voter may return the voter's ballot to the municipal clerk,
that unstaffed drop boxes are permissible, and that drop boxes
may be located at places other than the municipal clerk's office
or alternate sites. I respectfully concur.
35
No. 2022AP91.awb
¶205 ANN WALSH BRADLEY, J. (dissenting). The right to
vote is a "sacred right of the highest character." State ex
rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910).
Yet the majority/lead opinion1 blithely and erroneously seeks to
sow distrust in the administration of our elections and through
its faulty analysis erects yet another barrier for voters to
exercise this "sacred right."
¶206 Although it pays lip service to the import of the
right to vote, the majority/lead opinion has the practical
effect of making it more difficult to exercise it. Such a
result, although lamentable, is not a surprise from this court.
It has seemingly taken the opportunity to make it harder to vote
or to inject confusion into the process whenever it has been
presented with the opportunity.2
¶207 A ballot drop box is a simple and perfectly legal
solution to make voting easier, especially in the midst of a
1 I refer to Justice Rebecca Grassl Bradley's opinion as the
"majority/lead opinion" because not all of the opinion has been
joined by a majority of the court. Justice Brian Hagedorn does
not join the following paragraphs: 1-3, 11, 14-51, 64-72, 86,
n.29, 87. Justice Hagedorn's concurrence, ¶149 n.1. Thus,
those paragraphs do not constitute precedential authority. For
further discussion of our procedure regarding lead opinions, see
Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261,
922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
2 See, e.g., Teigen v. Wis. Elections Comm'n, No. 2022AP91,
unpublished order (Wis. S. Ct. Feb. 11, 2022); League of Women
Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, 357
Wis. 2d 360, 851 N.W.2d 302; Milwaukee Branch of NAACP v.
Walker, 2014 WI 98, 357 Wis. 2d 469, 851 N.W.2d 262. Each
opinion had vigorous dissents.
1
No. 2022AP91.awb
global pandemic.3 But it is apparently a bridge too far for a
majority of this court, which once again rejects a practice that
would expand voter participation.
¶208 The majority/lead opinion's analysis is flawed in
three main ways. It expands the doctrine of standing beyond
recognition, is premised on a faulty statutory interpretation,
and without justification fans the flames of electoral doubt
that threaten our democracy.
¶209 Accordingly, I respectfully dissent.
I
¶210 At the outset, the majority/lead opinion makes a
significant misstep. It begins with a lengthy discussion of
3 A justice of the United States Supreme Court recently
cited the existence of drop boxes in support of the assertion
that "[r]eturning an absentee ballot in Wisconsin
is . . . easy." Democratic Nat'l Comm. v. Wis. State
Legislature, 141 S. Ct. 28, 36 (2020) (Kavanaugh, J.,
concurring); see also id. at 29 (Gorsuch, J., concurring)
("Never mind that voters may return their ballots not only by
mail but also by bringing them to a county clerk's office, or
various 'no touch' drop boxes staged locally, or certain polling
places on election day."). After the result in this case, the
idea that returning a ballot is so "easy" becomes less
defensible.
2
No. 2022AP91.awb
standing,4 and in the process extends the doctrine beyond
recognition.
¶211 In the majority/lead opinion's view, Teigen5 has
standing "under Wisconsin's permissive, policy-oriented approach
toward standing" because he has a "stake in the outcome" and is
"affected by the issues in controversy." Majority/lead op.,
¶14. Teigen has suffered an "injury in fact" to his
constitutional right to vote, the majority/lead opinion says,
merely because he alleges that election law was not followed.
In accepting Teigen's standing to bring this suit, it further
states: "the failure to follow election laws is a fact which
forces everyone . . . to question the legitimacy of election
results." Id., ¶25.
The majority/lead opinion additionally devotes a great
4
deal of ink to analyzing whether Teigen needed to file a
complaint with WEC under Wis. Stat. § 5.06 before commencing
this suit. See majority/lead op., ¶¶37-51. It determines that
this statute does not require a complaint to be filed against
WEC, in part because such a procedure would cause WEC to "be a
judge in [its] own cause." Id., ¶47. Rather than engage with
each point the majority/lead opinion makes in its discussion, I
simply observe that an agency reviewing its own decision at the
beginning of an appeal process is a common occurrence and does
not present the anomaly that the majority/lead opinion paints.
See Wis. Stat. § 283.63 (providing for review by the Department
of Natural Resources of a permit denial, modification,
termination, or revocation decision made by the Department)
The majority/lead opinion refers to Teigen and Thom as the
5
"Wisconsin voters" throughout its opinion. This could be
misleading to the reader. True enough, Teigen and Thom are
voters who live in Wisconsin. But the use of the term could
lead the reader to believe that the plaintiffs here represent a
wider swath of people than they actually do. Thus, I refer to
the two plaintiffs collectively as "Teigen."
3
No. 2022AP91.awb
¶212 The majority/lead opinion attempts to create a free-
for-all. It delineates no bounds whatsoever on who may
challenge election laws. Instead, it relies on broad
pronouncements regarding the import of our election laws and
their general effect on all people. But just because all people
are subject to a law does not mean that any and all people are
entitled to challenge it.
¶213 Indeed, "Courts are not the proper forum to air
generalized grievances about the administration of a
governmental agency." Cornwell Personnel Assocs., Ltd. v.
DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App. 1979)
(citations omitted); see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 573-74 (1992) ("We have consistently held that a
plaintiff raising only a generally available grievance about
government——claiming only harm to his and every citizen's
interest in proper application of the Constitution and laws, and
seeking relief that no more directly and tangibly benefits him
than it does the public at large——does not state an Article III
case or controversy.").
¶214 Yet a "generalized grievance" is just what Teigen
brings to this court. The majority/lead opinion says that
Teigen's "rights and privileges as [a] registered voter[]" give
him standing to bring this action challenging the statewide
administration of elections. Majority/lead op., ¶14. Taken to
its logical conclusion, the majority/lead opinion indicates that
any registered voter would seemingly have standing to challenge
any election law. The impact of such a broad conception of
4
No. 2022AP91.awb
voter standing is breathtaking and especially acute at a time of
increasing, unfounded challenges to election results and
election administrators.6
¶215 Rather than opening wide the barn doors, the doctrine
of standing is important "because it reins in unbridled attempts
to go beyond the circumscribed boundaries that define the proper
role of courts." Fabick v. Evers, 2021 WI 28, ¶92, 396
Wis. 2d 231, 956 N.W.2d 856 (Ann Walsh Bradley, J., dissenting).7
"Unbridled" certainly describes the majority/lead opinion's
approach to standing in this case. It follows a standard
untethered to any limiting principle, which in effect renders
the concept of standing merely illusory.
II
¶216 I turn next to the substance of the majority/lead
opinion's statutory interpretation.8 Even assuming Teigen has
standing to bring this claim, the majority/lead opinion falters
in its examination of the relevant statutes.
See Election Officials Under Attack: How to Protect
6
Administrators and Safeguard Democracy, Brennan Center for
Justice and the Bipartisan Policy Center,
https://www.brennancenter.org/our-work/policy-
solutions/election-officials-under-attack (June 16, 2021).
Justice Hagedorn's concurrence likewise recognizes that
7
the doctrine of standing "serves as a vital check on unbounded
judicial power." Justice Hagedorn's concurrence, ¶160.
Although I address the majority/lead opinion's statutory
8
analysis, my critique also largely applies to Justice Hagedorn's
concurrence, which reaches the same conclusion.
5
No. 2022AP91.awb
A
¶217 Wisconsin Stat. § 6.87 addresses absentee voting
procedure. Subd. (4)(b)1., specifically at issue here, provides
in relevant part: "The envelope shall be mailed by the elector,
or delivered in person, to the municipal clerk issuing the
ballot or ballots."
¶218 In the majority/lead opinion's view, "[n]othing in the
statutory language detailing the procedures by which absentee
ballots may be cast mentions drop boxes or anything like them."
Majority/lead op., ¶54. Further, it interprets the phrase "to
the municipal clerk" to mean "mailing or delivering the absentee
ballot to the municipal clerk at her office" or an alternate
site under Wis. Stat. § 6.855. Id., ¶62.
¶219 The majority/lead opinion's interpretation of Wis.
Stat. § 6.87(4)(b)1. ignores an important distinction. Section
6.87(4)(b)1. uses the phrase "municipal clerk." It does not say
"municipal clerk's office."
¶220 This is important because elsewhere the Wisconsin
Statutes are replete with references to the "office of the
municipal clerk," the "office of the clerk," or the "clerk's
office." Not only is such an "office" referenced, but it is
specified as a place where a delivery or an action takes place.
See, e.g., Wis. Stat. §§ 5.81(3) (discussing ballots and
envelopes "voted in person in the office of the municipal
clerk"); 6.18 (requiring that a form "shall be returned to the
municipal clerk's office"); 6.32(2) (setting forth that an
elector "appear at the clerk's office"); 6.855(2) (addressing
6
No. 2022AP91.awb
the display of a notice "in the office of the clerk");
12.035(3)(d) (discussing a "building containing the office of
the municipal clerk").9
¶221 From these statutes we can take the principle that the
office of the municipal clerk is a location. Indeed, a person
"appear[s]" at a location. See Wis. Stat. § 6.32(2). That the
"office of the municipal clerk" refers to a location is
confirmed by the fact that the statutes refer to it as
"contain[ed]" within a "building." See Wis. Stat.
§ 12.035(3)(d).
¶222 We also know that a "municipal clerk" under the
statutes is distinct from the "office of the municipal clerk,"
because "municipal clerk" is specifically defined as "the city
clerk, town clerk, village clerk and the executive director of
the city election commission and their authorized
representatives." Wis. Stat. § 5.02(10). In other words, the
"municipal clerk" is a person, and the "office of the municipal
clerk" is a location.
¶223 "If a word or words are used in one subsection but are
not used in another subsection, we must conclude that the
legislature specifically intended a different meaning."
Responsible Use of Rural and Agr. Land v. Pub. Serv. Comm'n,
2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888. If the
Further examples abound.
9 See Wis. Stat. §§ 6.15(2)(bm),
6.28(1)(b), 6.29(2)(a), 6.30(4), 6.32(3), 6.35(3), 6.45(1m),
6.47(2), 6.50(1), 6.55(2)(cm), 6.56(4), 6.86(1)(a)2.,
6.86(3)(c), 6.87(3)(a), 6.87(4)(b)4., 6.88(1), 6.97(3)(b),
7.41(1), 7.53(1)(b), 7.53(2)(d), 8.10(6)(c), 12.03(1),
12.03(2)(a)2., 12.035(3)(c).
7
No. 2022AP91.awb
legislature wanted to require return of a ballot to the clerk's
office, it certainly could have done so, as it did in the litany
of provisions using such language. See, e.g., Southport
Commons, LLC v. DOT, 2021 WI 52, ¶31, 397 Wis. 2d 362, 960
N.W.2d 17 (indicating that when the legislature wants to
accomplish an object in a manner used in other areas of the
statutes, "it knows how to do so").
¶224 But the legislature did not do that. Instead, it
indicated that the ballot be delivered "to the municipal clerk,"
not to the clerk's office. Conflating "municipal clerk" with
"office of the municipal clerk" is not——as the majority/lead
opinion claims——the "fairest interpretation" of the statute.
See majority/lead op., ¶62. Instead, it is a rank distortion of
the statutory text.
¶225 Can delivery to a drop box constitute delivery "to
the municipal clerk?" Absolutely. A drop box is set up by the
municipal clerk, maintained by the municipal clerk, and emptied
by the municipal clerk. This is true even if the drop box is
located somewhere other than within the municipal clerk's
office. As stated, the "municipal clerk" in the statutes is a
person, and the "office of the municipal clerk" is a location.
Applying this principle, there is nothing in the statute that
even hints that unstaffed drop boxes are impermissible. Rather,
a drop box, which the clerk or the clerk's designee10 sets up,
10As stated, "municipal clerk" is statutorily defined as
"the city clerk, town clerk, village clerk and the executive
director of the city election commission and their authorized
representatives." Wis. Stat. § 5.02(10) (emphasis added).
Thus, this job need not be accomplished by a single person.
8
No. 2022AP91.awb
maintains, and empties, is simply another way to deliver a
ballot "to the municipal clerk."11 The majority/lead opinion's
attempt to avoid the statute's plain language fails.
¶226 The majority/lead opinion additionally invokes Wis.
Stat. § 6.855 in an attempt to "show[] the unlawfulness of
ballot drop boxes." Id., ¶56. Again, the majority/lead opinion
flounders. This statute simply does not apply to drop boxes and
tells us nothing about whether their use is permissible.12
¶227 To explain, Wis. Stat. § 6.855 establishes the
procedures by which municipal clerks can set up "alternate
absentee ballot sites." These are commonly referred to as early
11The circuit court in this case drew a distinction between
staffed and unstaffed drop boxes, determining that drop boxes
are not permitted "unless the drop box is staffed by the clerk
and located at the office of the clerk or a properly designated
alternate site." See majority/lead op., ¶9. Yet the
majority/lead opinion does not address this distinction, raising
more questions than it answers. Does this distinction retain
vitality? If so, does a drop box located directly outside the
front door to a clerk's office count as a "staffed" drop box?
Must a staff member from the clerk's office be standing outside
next to the drop box? Or is it sufficient if the clerk can see
the box from a window while inside the office? Once again, the
majority/lead opinion leaves municipal clerks and voters
guessing.
12Justice Hagedorn's concurrence also brings Wis. Stat.
§ 6.88 into the analysis. Justice Hagedorn's concurrence, ¶180.
That statute likewise has no bearing on how ballots may be
"delivered" to the municipal clerk. Rather, § 6.88(1) addresses
what occurs when an absentee ballot "arrives at the office of
the municipal clerk" (emphasis added), and subsec. (2) concerns
what a clerk does with ballots after they are "received" by the
clerk. In other words, § 6.88 speaks only of what happens to a
ballot after it has been delivered to the municipal clerk, not
how it gets there.
9
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in person absentee voting, or simply "early voting." Section
6.855(1) provides:
The governing body of a municipality may elect to
designate a site other than the office of the
municipal clerk or board of election commissioners as
the location from which electors of the municipality
may request and vote absentee ballots and to which
voted absentee ballots shall be returned by electors
for any election."
(Emphasis added).
¶228 On its face, Wis. Stat. § 6.855 sets forth that
alternate voting sites "must be a location not only where voters
may return absentee ballots, but also a location where voters
'may request and vote absentee ballots.'" Trump v. Biden, 2020
WI 91, ¶56, 394 Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J.,
concurring). Thus, as the majority/lead opinion acknowledges,
"[b]allot drop boxes are not alternate absentee ballot sites
under Wis. Stat. § 6.855 because a voter can only return the
voter's absentee ballot to a drop box, while an alternate site
must also allow voters to request and vote absentee at the
site." Majority/lead op., ¶57.
¶229 The majority/lead opinion reads into Wis. Stat.
§ 6.855 an implication beyond the statute's language. Although
the majority/lead opinion correctly acknowledges that § 6.855
does not describe drop boxes, it seeks support for its result in
the assertion that "[t]he legislature enacted a detailed
statutory construct for alternate sites" while at the same time
"the details of the drop box scheme are found nowhere in the
statutes." Id., ¶58. This argument falls flat for the same
reason the majority/lead opinion's statutory analysis of Wis.
10
No. 2022AP91.awb
Stat. § 6.87(4)(b)1. fails: the legislature did not include a
detailed scheme for drop boxes in the statutes because it did
not need to do so. As analyzed above, § 6.87(4)(b)1. already
authorizes them.
¶230 Election administration in Wisconsin is decentralized.
State ex rel. Zignego v. Wis. Elections Comm'n, 2021 WI 32, ¶13,
396 Wis. 2d 391, 957 N.W.2d 208. "Rather than a top-down
arrangement with a central state entity or official controlling
local actors, Wisconsin gives some power to its state election
agency (the Commission) and places significant responsibility on
a small army of local election officials." Id. Indeed,
"Municipal clerks are the officials primarily responsible for
election administration in Wisconsin." Id., ¶15.
¶231 This significant responsibility is codified in the
statutes. Wisconsin Stat. § 7.15(1) specifically provides:
"Each municipal clerk has charge and supervision of elections
and registration in the municipality. The clerk shall perform
the following duties and any others which may be necessary to
properly conduct elections or registration . . . ." See also
Wis. Stat. § 60.33(4)(a) ("The town clerk shall . . . [p]erform
the duties required by chs. 5 to 12 relating to elections.").
¶232 Instead of an inexorable command that unstaffed drop
boxes are banned, Wis. Stat. § 6.87(4)(b)1. gives some
discretion to municipal clerks to determine how best to run
elections in their respective jurisdictions. By using the
"municipal clerk" language rather than the "office of the
municipal clerk" verbiage, the legislature necessarily entrusts
11
No. 2022AP91.awb
some discretion to the municipal clerk in a manner consistent
with the entirety of the statutory scheme. See DeWitt v.
Ferries, 2018 WI 117, ¶26, 385 Wis. 2d 1, 921 N.W.2d 188(indicating that statutes are to be read in context, not in
isolation but as part of a whole, and in relation to the
language of closely-related statutes).
¶233 The circuit court here allowed the use of staffed drop
boxes in the office of a municipal clerk. But what good is this
for a clerk in a rural area who may work only a few hours a
week? In this context, it certainly makes sense for those
clerks to have at least the discretion to place a drop box
outside the office or in another location so voters can drop off
absentee ballots outside of the limited hours the clerk's office
is actually open.
¶234 Instead of this common sense reading that is
consistent with the decentralized manner in which Wisconsin
elections are run, the majority/lead opinion severely limits the
return of absentee ballots in all municipalities regardless of
their circumstances. Some voters will be unlucky enough to live
in a jurisdiction without a full-time clerk, and others will be
forced to go to only a single location to return their ballots
where they previously had numerous options. Does the
majority/lead think everyone in this state lives in urban areas
with full-time clerks and standard office hours? If so, it
ignores reality and puts rural voters at a disadvantage.
¶235 Our statutes and case law indicate that election
administration in Wisconsin is not one-size-fits-all. See
12
No. 2022AP91.awb
Zignego, 396 Wis. 2d 391, ¶13. Yet the majority/lead opinion
fails to recognize this, making election administration more
onerous for local clerks and the exercise of the franchise more
difficult for voters.
B
¶236 Contravening the plain language of the statute to
prohibit ballot drop boxes is bad enough. But the majority/lead
opinion further erroneously determines that a voter cannot have
a family member or friend return their ballot to the municipal
clerk for them. Majority/lead op., ¶83.
¶237 The brunt of this holding will fall on those who are
homebound. If a voter is disabled or sick, and someone the
voter lives with is taking their own absentee ballot to the
clerk's office, that roommate, spouse, or family member can't,
under the majority/lead opinion's analysis, simply pick up
another validly voted ballot from the kitchen table and take it
with them.
¶238 As absurd as that sounds in practice,13 the
majority/lead opinion's statutory interpretation to reach that
result fares no better. Although at first blush the
majority/lead opinion's interpretation may seem reasonable, a
closer examination of the text reveals otherwise. Section
13 Not to mention that the majority/lead opinion's
conclusion arguably violates federal law related to voters with
disabilities. See 52 U.S.C. § 10508 ("Any voter who requires
assistance to vote by reason of blindness, disability, or
inability to read or write may be given assistance by a person
of the voter's choice, other than the voter's employer or agent
of that employer or officer or agent of the voter's union.").
13
No. 2022AP91.awb
6.87(4)(b)1. addresses only the manner for returning a ballot
("in person") and not who may return it.
¶239 Wisconsin Stat. § 6.87(4)(b)1., as stated above,
provides: "The envelope shall be mailed by the elector, or
delivered in person, to the municipal clerk issuing the ballot
or ballots." As relevant to this issue, we focus on the
placement of the words within the statute.
¶240 Section 6.87(4)(b)1. does not say "delivered in person
by the elector." It says "delivered in person."14 The
majority/lead opinion transposes the phrase "by the elector,"
placing it not where the legislature placed it (after "mailed"),
but instead writing it into the statute where the majority/lead
opinion prefers it to be placed in order to bolster its
erroneous conclusion. Yet, the statute says nothing at all
about who may return a ballot to the municipal clerk. Rather,
the statute is written in the passive voice and does not
indicate who the actor is who must deliver the ballot "in
person." See Juneau Cnty. Star-Times v. Juneau County, 2011 WI
App 150, ¶15, 337 Wis. 2d 710, 807 N.W.2d 655.
¶241 The majority/lead opinion violates a cardinal rule of
statutory interpretation by writing words into the statute the
legislature did not write. See Dawson v. Town of Jackson, 2011
Further bolstering this interpretation of the statute is
14
the fact that the legislature used the plural in indicating that
a completed ballot must be "delivered in person, to the
municipal clerk issuing the ballot or ballots." Wis. Stat.
§ 6.87(4)(b)1. (emphasis added). Why would the legislature use
the plural if it did not contemplate that one person could
return an additional ballot?
14
No. 2022AP91.awb
WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316. A voter's spouse,
child, or roommate can deliver a ballot "in person" just as the
voter can, and the statute draws no distinction. Yet the
majority/lead opinion manufactures one, going outside the words
the legislature wrote to place yet another obstacle in the way
of voters simply seeking to exercise their cherished right to
vote.15
15As I end my discussion of this issue, I emphasize the
limited nature of the court's determination. It applies to
absentee ballots delivered in person to the municipal clerk, not
to a family member or a friend placing a ballot in the mail on
behalf of a voter. See majority/lead op., ¶5; Justice
Hagedorn's concurrence, ¶185.
However, despite its insistence that it is not addressing
the issue, the majority/lead opinion proceeds to go on at length
about Disability Rights Wisconsin's argument regarding federal
law on ballot assistance and criticizes the argument as
"undeveloped." See majority/lead op., ¶¶84-86. As the
majority/lead opinion acknowledges, this argument is directed at
the "impact of the circuit court's declarations on disabled
voters who may be physically unable to vote if someone cannot
place an absentee ballot in the mail on a voter's behalf." Id.,
¶86. Accordingly, this sojourn is completely unnecessary to
both the majority/lead opinion's holding and its analysis. I
highlight, however, the majority/lead opinion's own statement
that we do not decide "whether the law permits a voter's agent
to place an absentee ballot in the mail on the voter's behalf."
Id., ¶5; see also Justice Hagedorn's concurrence, ¶185
(explaining that "the court should not and does not make any
declaration on [this] question").
Undeterred by the majority/lead opinion's statement that
the WEC memos at issue "do not address" the issue, Justice
Roggensack's concurrence forges ahead with that analysis anyway.
Rather than engage on an issue that is not properly before the
court in the first place, I simply observe that Justice
Roggensack's concurrence is not the law, and that the issue of
whether a family member or other person may place an absentee
ballot in a mailbox on behalf of a voter is not resolved by this
opinion.
15
No. 2022AP91.awb
III
¶242 As a final point, I address the majority/lead
opinion's language casting doubt on the results of past
elections conducted with drop boxes. The majority/lead opinion
claims that "[t]he illegality of these drop boxes weakens the
people's faith that the election produced an outcome reflective
of their will." Majority/lead op., ¶24; see also id., ¶25
("[T]he failure to follow election laws is a fact which forces
everyone . . . to question the legitimacy of election
results."). It suggests that the use of drop boxes leaves
electoral results "in question." Id., ¶24.
¶243 Nonsense. First, accepting the majority/lead
opinion's assertion requires either willful ignorance to the
origin of the WEC August 19, 2020 memo or a lack of trust in its
source. The August 19, 2020 memo was "adapted from a resource
developed as part of the Cybersecurity and Infrastructure
Security Agency (CISA) Elections Infrastructure Government
Coordinating Council and Sector Coordinating Council's Joint
COVID Working Group." CISA is operated under the auspices of
the Department of Homeland Security. Drop boxes were apparently
secure enough for the federal Department of Homeland Security,
yet the majority/lead opinion still contends that they cause
people to lose faith in our elections.
¶244 There is no evidence at all in this record that the
use of drop boxes fosters voter fraud of any kind. None. And
there certainly is no evidence that voters who used drop boxes
16
No. 2022AP91.awb
voted for one candidate or party or another, tilting elections
either direction.
¶245 It is true that the legislature has referred to
absentee voting as a "privilege exercised wholly outside the
traditional safeguards of the polling place" that must be
"carefully regulated to prevent the potential for fraud or
abuse." Wis. Stat. § 6.84(1). But despite the majority/lead
opinion's bald assertion that voter fraud is actually a "serious
problem," majority/lead op., ¶71, studies have demonstrated
extremely low rates of voter fraud in United States elections.16
¶246 The majority/lead opinion's sky-is-falling rhetoric
not only defies the facts, but also is downright dangerous to
our democracy. Absent evidence that supports its statements,
the majority/lead opinion still lends its imprimatur to efforts
to destabilize and delegitimize recent elections.
¶247 But concerns about drop boxes alone don't fuel the
fires questioning election integrity. Rather, the kindling is
primarily provided by voter suppression efforts and the constant
16See, e.g., Andrew C. Eggers, Haritz Garro, and Justin
Grimmer, No evidence for systematic voter fraud: A guide to
statistical claims about the 2020 election, Proc. of the Nat'l
Acad. of Sci., https://www.pnas.org/doi/10.1073/pnas.2103619118
(Nov. 2, 2021); Justin Levitt, The Truth About Voter Fraud,
Brennan Center for Justice, https://www.brennancenter.org/our-
work/research-reports/truth-about-voter-fraud (Nov. 9, 2007);
see also Trump v. Biden, 2020 WI 91, ¶59, 394 Wis. 2d 629, 951
N.W.2d 568 (Hagedorn, J., concurring) ("At the end of the day,
nothing in this case casts any legitimate doubt that the people
of Wisconsin lawfully chose Vice President Biden and Senator
Harris to be the next leaders of our great country.").
17
No. 2022AP91.awb
drumbeat of unsubstantiated rhetoric in opinions like this one,
not actual voter fraud.17
¶248 For the foregoing reasons, I respectfully dissent.
¶249 I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this dissent.
17As should be clear by now, this dissent's analysis is
neither an "ad hominem attack" nor "political talking points" as
the majority/lead opinion claims. See majority/lead op., ¶86
n.29. This court's poor track record on voting rights is well-
established and the flaws in the majority/lead opinion's
analysis that lead to an additional "barrier" to voting are set
forth in this opinion.
Nevertheless, footnote 29 of the majority/lead opinion
takes this dissent to task and ridicules Justice Jill Karofsky
for joining it, while at the same time partaking in the very
conduct about which it is complaining.
What comes to mind is the adage of psychological
projection——"the pot calling the kettle black." Rather than
detailing in response the several and recent examples
illustrating the adage (and risking the undesirable escalation
of hyperbole), I observe only that there is an obvious
difference between attacking a public servant as a "tyrant" for
merely doing her job, which elicited Justice Karofsky's
objection in Becker, and simply pointing out this court's poor
recent track record when it comes to protecting voting rights,
as does this dissent. See Becker v. Dane County, 2022 WI __,
¶44, __ Wis. 2d __, __ N.W.2d __.
18
No. 2022AP91.awb
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