Donald J. Trump v. Joseph R. Biden ( 2020 )

2020 WI 91
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2038
COMPLETE TITLE: Donald J. Trump, Michael R. Pence and Donald J.
Trump for President, Inc.,
Plaintiffs-Appellants,
v.
Joseph R. Biden, Kamala D. Harris, Milwaukee
County Clerk c/o George L. Christenson,
Milwaukee County Board of Canvassers c/o Tim
Posnanski, Wisconsin Elections Commission, Ann
S. Jacobs, Dane County Clerk c/o Scott McDonell
and Dane County Board of Canvassers c/o Alan
Arnsten,
Defendants-Respondents.
ON PETITION TO BYPASS COURT OF APPEALS, REVIEW
OF DECISION OF THE CIRCUIT COURT
OPINION FILED: December 14, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 12, 2020
SOURCE OF APPEAL:
COURT: Circuit Court
COUNTY: Milwaukee
JUDGE: Stephen A. Simanek
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined.
DALLET and KAROFSKY, JJ., filed a concurring opinion. HAGEDORN,
J., filed a concurring opinion, in which ANN WALSH BRADLEY, J.,
joined. ROGGENSACK, C.J., filed a dissenting opinion, in which
ZIEGLER and REBECCA GRASSL BRADLEY, JJ., joined. ZIEGLER, J.,
filed a dissenting opinion, in which ROGGENSACK, C.J., and
REBECCA GRASSL BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J.,
filed a dissenting opinion, in which ROGGENSACK, C.J., and
ZIEGLER, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants, a brief was filed by James R.
Troupis and Troupis Law Office, Cross Plains, and R. George Burnett
and Conway, Olejniczak & Jerry S.C., Green Bay. Oral argument
presented by James R. Troupis.
For the defendants-respondents Joseph R. Biden and Kamala D.
Harris, a brief was filed by Matthew W. O’Neill and Fox, O’Neill
& Shannon, S.C., Milwaukee, Charles G. Curtis, Jr., Michelle M.
Umberger, Will M. Conley and Perkins Coie LLP, Madison, and John
M. Devaney (pro hac vice) and Perkins Coie LLP, Washington, D.C.
Oral argument was presented by John M. Devaney.
For the defendants-respondents Wisconsin Elections Commission
and Ann S. Jacobs, oral argument was presented by assistant
attorney general Colin T. Roth.
2
2020 WI 91
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2038
(L.C. No. 2020CV2514 & 2020CV7092)
STATE OF WISCONSIN : IN SUPREME COURT
Donald J. Trump, Michael R. Pence and Donald J.
Trump for President, Inc.,
Plaintiffs-Appellants,
v. FILED
Joseph R. Biden, Kamala D. Harris, Milwaukee
County Clerk c/o George L. Christenson, DEC 14, 2020
Milwaukee County Board of Canvassers c/o Tim
Posnanski, Wisconsin Elections Commission, Ann Sheila T. Reiff
Clerk of Supreme Court
S. Jacobs, Dane County Clerk c/o Scott McDonell
and Dane County Board of Canvassers c/o Alan
Arnsten,
Defendants-Respondents.
HAGEDORN, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. DALLET and
KAROFSKY, JJ., filed a concurring opinion. HAGEDORN, J., filed a
concurring opinion, which ANN WALSH BRADLEY, J., joined.
ROGGENSACK, C.J., filed a dissenting opinion, in which ZIEGLER and
REBECCA GRASSL BRADLEY, JJ., joined. ZIEGLER, J., filed a
dissenting opinion, in which ROGGENSACK, C.J., and REBECCA GRASSL
BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion, in which ROGGENSACK, C.J., and ZIEGLER, J.,
joined.
APPEAL from a judgment and an order of the Circuit Court for
Milwaukee County, Stephen A. Simanek, Reserve Judge. Affirmed.
No. 2020AP2038
¶1 BRIAN HAGEDORN, J. In the 2020 presidential election,
the initial Wisconsin county canvasses showed that Wisconsin
voters selected Joseph R. Biden and Kamala D. Harris as the
recipients of Wisconsin's electoral college votes. The
petitioners1 (collectively, the "Campaign") bring an action under
Wis. Stat. § 9.01 (2017-18)2 seeking to invalidate a sufficient
number of Wisconsin ballots to change Wisconsin's certified
election results. Specifically, the Campaign seeks to invalidate
the ballots——either directly or through a drawdown——of more than
220,000 Wisconsin voters in Dane and Milwaukee Counties.
¶2 The Campaign focuses its objections on four different
categories of ballots——each applying only to voters in Dane County
and Milwaukee County. First, it seeks to strike all ballots cast
by voters who claimed indefinitely confined status since March 25,
2020. Second, it argues that a form used for in-person absentee
voting is not a "written application" and therefore all in-person
absentee ballots should be struck. Third, it maintains that
municipal officials improperly added witness information on
absentee ballot certifications, and that these ballots are
therefore invalid. Finally, the Campaign asserts that all ballots
collected at "Democracy in the Park," two City of Madison events
in late September and early October, were illegally cast.
1The petitioners are Donald J. Trump, Michael R. Pence, and
Donald J. Trump for President, Inc.
2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
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No. 2020AP2038
¶3 We conclude the Campaign is not entitled to the relief
it seeks. The challenge to the indefinitely confined voter ballots
is meritless on its face, and the other three categories of ballots
challenged fail under the doctrine of laches.
I. BACKGROUND
¶4 After all votes were counted and canvassing was
completed for the 2020 presidential election contest, the results
showed that Vice President Biden and Senator Harris won Wisconsin
by 20,427 votes. The Campaign sought a recount in two of
Wisconsin's 72 counties——Milwaukee and Dane. The Milwaukee County
Elections Commission and the Dane County Board of Canvassers
conducted the recount and certified the results. The recount
increased the margin of victory for Vice President Biden and
Senator Harris to 20,682 votes.
¶5 The Campaign appealed those decisions in a consolidated
appeal to the circuit court under Wis. Stat. § 9.01(6)(a), naming
Vice President Biden, Senator Harris, the Wisconsin Elections
Commission (WEC), and several election officials as respondents.3
The circuit court4 affirmed the determinations of the Dane County
Board of Canvassers and the Milwaukee County Elections Commission
3Also named were Milwaukee County Clerk c/o George L.
Christenson, Milwaukee County Board of Canvassers c/o Tim
Posnanski, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell,
and Dane County Board of Canvassers c/o Alan Arnsten.
4The consolidated appeals were assigned to Reserve Judge
Stephen A. Simanek.
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No. 2020AP2038
in full. The Campaign appealed and filed a petition for bypass,
which we granted.
II. DISCUSSION
¶6 The Campaign asks this court to reverse the
determinations of the Dane County Board of Canvassers and the
Milwaukee County Elections Commission with respect to four
categories of ballots it argues were unlawfully cast.5 The
respondents argue that all ballots were cast in compliance with
the law, or at least that the Campaign has not shown otherwise.
They further maintain that a multitude of legal doctrines——
including laches, equitable estoppel, unclean hands, due process,
and equal protection——bar the Campaign from receiving its
requested relief. We agree that the challenge to the indefinitely
confined voter ballots is without merit, and that laches bars the
relief the Campaign seeks on the three remaining categories of
challenged ballots.
A. Indefinitely Confined Voters
¶7 Wisconsin allows voters to declare themselves
indefinitely confined, provided they meet the statutory
requirements. See Wis. Stat. § 6.86(2)(a).6 These individuals
We may set aside or modify the determination if "a provision
5
of law" is "erroneously interpreted" and "a correct interpretation
compels a particular action." Wis. Stat. § 9.01(8). We accept
the findings of fact unless a factual finding "is not supported by
substantial evidence." Id.
6 Wisconsin Stat. § 6.86(2)(a) provides:
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No. 2020AP2038
are not required to provide photo identification to obtain an
absentee ballot. Id. On March 25, 2020, the Dane and Milwaukee
County Clerks issued guidance on Facebook suggesting all voters
could declare themselves indefinitely confined because of the
pandemic and the governor's then-existing Safer-at-Home Order.
This court unanimously deemed that advice incorrect on March 31,
2020, and we noted that "the WEC guidance . . . provides the
clarification on the purpose and proper use of the indefinitely
confined status that is required at this time." The county clerks
immediately updated their advice in accordance with our decision.
¶8 The Campaign does not challenge the ballots of
individual voters. Rather, the Campaign argues that all voters
claiming indefinitely confined status since the date of the
erroneous Facebook advice should have their votes invalidated,
whether they are actually indefinitely confined or not. Although
the number of individuals claiming indefinitely confined status
has increased throughout the state, the Campaign asks us to apply
this blanket invalidation of indefinitely confined voters only to
ballots cast in Dane and Milwaukee Counties, a total exceeding
An elector who is indefinitely confined because of age,
physical illness or infirmity or is disabled for an
indefinite period may by signing a statement to that
effect require that an absentee ballot be sent to the
elector automatically for every election. The
application form and instructions shall be prescribed by
the commission, and furnished upon request to any
elector by each municipality. The envelope containing
the absentee ballot shall be clearly marked as not
forwardable. If any elector is no longer indefinitely
confined, the elector shall so notify the municipal
clerk.
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No. 2020AP2038
28,000 votes. The Campaign's request to strike indefinitely
confined voters in Dane and Milwaukee Counties as a class without
regard to whether any individual voter was in fact indefinitely
confined has no basis in reason or law; it is wholly without merit.
B. Laches
¶9 Three additional categories of ballots are challenged by
the Campaign. In Milwaukee and Dane Counties, the Campaign asserts
all in-person absentee votes were cast unlawfully without an
application, and that all absentee ballots with certifications
containing witness address information added by the municipal
clerks were improperly counted. Additionally, the Campaign
challenges all ballots returned at the City of Madison's "Democracy
in the Park" events.
¶10 All three of these challenges fail under the
longstanding and well-settled doctrine of laches. "Laches is
founded on the notion that equity aids the vigilant, and not those
who sleep on their rights to the detriment of the opposing party."
State ex rel. Wren v. Richardson, 2019 WI 110, ¶14, 389
Wis. 2d 516, 936 N.W.2d 587. Application of laches is within the
court's discretion upon a showing by the party raising the claim
of unreasonable delay, lack of knowledge the claim would be raised,
and prejudice. Id., ¶15.
¶11 For obvious reasons, laches has particular import in the
election context. As one noted treatise explains:
Extreme diligence and promptness are required in
election-related matters, particularly where actionable
6
No. 2020AP2038
election practices are discovered prior to the election.
Therefore, laches is available in election challenges.
In fact, in election contests, a court especially
considers the application of laches. Such doctrine is
applied because the efficient use of public resources
demands that a court not allow persons to gamble on the
outcome of an election contest and then challenge it
when dissatisfied with the results, especially when the
same challenge could have been made before the public is
put through the time and expense of the entire election
process. Thus if a party seeking extraordinary relief
in an election-related matter fails to exercise the
requisite diligence, laches will bar the action.
29 C.J.S. Elections § 459 (2020) (footnotes omitted).
¶12 Although it disagrees the elements were satisfied here,
the Campaign does not dispute the proposition that laches may bar
an untimely election challenge. This principle appears to be
recognized and applied universally. See, e.g., Jones v.
Markiewicz-Qualkinbush, 842 F.3d 1053, 1060–61 (7th Cir. 2016)
("The obligation to seek injunctive relief in a timely manner in
the election context is hardly a new concept.").7 This case may
7 See also Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir.
1990), cert. denied, 501 U.S. 1206 (1991) ("The candidate's and
party's claims to be respectively a serious candidate and a serious
party with a serious injury become less credible by their having
slept on their rights."); Soules v. Kauaians for Nukolii Campaign
Comm., 849 F.2d 1176, 1180 (9th Cir. 1988) ("Although adequate
explanation for failure to seek preelection relief has been held
to exist where, for example, the party challenging the election
had no opportunity to seek such relief, if aggrieved parties,
without adequate explanation, do not come forward before the
election, they will be barred from the equitable relief of
overturning the results of the election." (citation omitted));
Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182
(4th Cir. 1983) ("[F]ailure to require pre-election adjudication
would 'permit, if not encourage, parties who could raise a claim
to lay by and gamble upon receiving a favorable decision of the
electorate and then, upon losing, seek to undo the ballot results
in a court action.'"); Perry v. Judd, 471 Fed. App'x 219, 220 (4th
Cir. 2012) ("Movant had every opportunity to challenge the various
7
No. 2020AP2038
Virginia ballot requirements at a time when the challenge would
not have created the disruption that this last-minute lawsuit
has."); McClung v. Bennett, 235 P.3d 1037, 1040 (Ariz. 2010)
("McClung's belated prosecution of this appeal . . . would warrant
dismissal on the grounds of laches, because his dilatory conduct
left Sweeney with only one day to file his response brief,
jeopardized election officials' timely compliance with statutory
deadlines, and required the Court to decide this matter on an
unnecessarily accelerated basis." (citations omitted)); Smith v.
Scioto Cnty. Bd. of Elections, 918 N.E.2d 131, 133-34 (Ohio 2009)
("Appellees could have raised their claims in a timely pre-election
protest to the petition. 'Election contests may not be used as a
vehicle for asserting an untimely protest.'" (citations omitted));
Clark v. Pawlenty, 755 N.W.2d 293, 301 (Minn. 2008) (applying
laches to bar election challenge where "[t]he processes about which
petitioners complain are not new"); State ex rel. SuperAmerica
Grp. v. Licking Cnty. Bd. of Elections, 685 N.E.2d 507, 510 (Ohio
1997) ("In election-related matters, extreme diligence and
promptness are required. Extraordinary relief has been routinely
denied in election-related cases based on laches."); Tully v.
State, 574 N.E.2d 659, 663 (Ill. 1991) (applying laches to bar
challenge to an automatic retirement statute where a retired judge
"was at least constructively aware of the fact that his seat was
declared vacant" and an election had already taken place to replace
him); Lewis v. Cayetano, 823 P.2d 738, 741 (Haw. 1991) ("We apply
the doctrine of laches . . . because efficient use of public
resources demand that we not allow persons to gamble on the outcome
of the election contest then challenge it when dissatisfied with
the results, especially when the same challenge could have been
made before the public is put through the time and expense of the
entire election process."); Evans v. State Election Bd. of State
of Okla., 804 P.2d 1125, 1127 (Okla. 1990) ("It is well settled
that one who seeks to challenge or correct an error of the State
Election Board will be barred by laches if he does not act with
diligence."); Thirty Voters of Kauai Cnty. v. Doi, 599 P.2d 286,
288 (Haw. 1979) ("The general rule is that if there has been
opportunity to correct any irregularities in the election process
or in the ballot prior to the election itself, plaintiffs will
not, in the absence of fraud or major misconduct, be heard to
complain of them afterward."); Harding v. State Election Board,
170 P.2d 208, 209 (Okla. 1946) (per curiam) ("[I]t is manifest
that time is of the essence and that it was the duty of the
petitioner to proceed with utmost diligence in asserting in a
proper forum his claimed rights. The law favors the diligent
rather than the slothful."); Mehling v. Moorehead, 14 N.E.2d 15,
20 (Ohio 1938) ("So in this case, the election, having been held,
8
No. 2020AP2038
be a paradigmatic example of why. The relevant election officials,
as well as Vice President Biden and Senator Harris, had no
knowledge a claim to these broad categories of challenges would
occur. The Campaign's delay in raising these issues was
unreasonable in the extreme, and the resulting prejudice to the
election officials, other candidates, voters of the affected
counties, and to voters statewide, is obvious and immense. Laches
is more than appropriate here; the Campaign is not entitled to the
relief it seeks.
should not be disturbed when there was full opportunity to correct
any irregularities before the vote was cast."); Kewaygoshkum v.
Grand Traverse Band Election Bd., 2008-1199-CV-CV, 2008-1200-CV-
CV, 2008 WL 6196207, at *7 (Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Judiciary 2008) (en banc) ("In the instant
case, nearly all of the allegations by both Plaintiffs against the
Election Board relate to actions taken (or not taken) by the
Election Board prior to the general election . . . . [T]hey are
not timely raised at this point and should be barred under the
doctrine of laches."); Moore v. City of Pacific, 534 S.W.2d 486,
498 (Mo. Ct. App. 1976) ("Where actionable election practices are
discovered prior to the election, injured persons must be diligent
in seeking relief."); Kelly v. Commonwealth, No. 68 MAP 2020, 2020
WL 7018314, at *1 (Penn. Nov. 28, 2020) (applying laches to bar a
challenge to a mail-in voting law where challengers could have
brought their claim anytime after the law's enactment more than a
year prior but instead waited until after the 2020 General
Election); Bowyer v. Ducey, CV-20-02321-PHX-DJH, 2020 WL 7238261,
at *10 (D. Ariz. Dec. 9, 2020) (applying laches to bar claims where
"affidavits or declarations upon which Plaintiffs rely clearly
shows that the basis for each of these claims was either known
well before Election Day or soon thereafter"); King v. Witmer,
Civ. No. 20-13134, 2020 WL 7134198, at *7 (E.D. Mich. Dec. 7, 2020)
("If Plaintiffs had legitimate claims regarding whether the
treatment of election challengers complied with state law, they
could have brought their claims well in advance of or on Election
Day——but they did not.").
9
No. 2020AP2038
1. Unreasonable Delay
¶13 First, the respondents must prove that the Campaign
unreasonably delayed in bringing the challenge. What constitutes
an unreasonable delay varies and "depends on the facts of a
particular case." Wis. Small Bus. United, Inc. v. Brennan, 2020
WI 69, ¶14, 393 Wis. 2d 308, 946 N.W.2d 101. As we have explained:
[U]nreasonable delay in laches is based not on what
litigants know, but what they might have known with the
exercise of reasonable diligence. This underlying
constructive knowledge requirement arises from the
general rule that ignorance of one's legal rights is not
a reasonable excuse in a laches case. Where the question
of laches is in issue, the plaintiff is chargeable with
such knowledge as he might have obtained upon inquiry,
provided the facts already known by him were such as to
put a man of ordinary prudence upon inquiry. To be sure,
what we expect will vary from case to case and litigant
to litigant. But the expectation of reasonable diligence
is firm nonetheless.
Wren, 389 Wis. 2d 516, ¶20 (citations and quotation marks
omitted). Here, the Campaign unreasonably delayed with respect to
all three categories of challenged ballots.
¶14 Regarding the Campaign's first challenge, Wisconsin law
provides that a "written application" is required before a voter
can receive an absentee ballot, and that any absentee ballot issued
without an application cannot be counted. See Wis. Stat.
§ 6.86(1)(ar); Wis. Stat. § 6.84(2). The Campaign argues all in-
person absentee votes in Dane and Milwaukee Counties were cast
without the required application.
¶15 But both counties did use an application form created,
approved, and disseminated by the chief Wisconsin elections
agency. This form, now known as EL-122, is entitled "Official
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No. 2020AP2038
Absentee Ballot Application/Certification." It was created in
2010 in an effort to streamline paperwork following the 2008
election, and has been available and in use ever since.
¶16 The Campaign does not challenge that any individual
voters' ballots lacked an application——an otherwise appropriate
and timely issue. Rather, the Campaign argues this "application"
is not an application, or that municipal clerks do not give this
form to voters before distributing the ballot, in contravention of
the statutes.8 Regardless of the practice used, the Campaign would
like to apply its challenge to the sufficiency of EL-122 to strike
170,140 votes in just two counties——despite the form's use in
municipalities throughout the state.9 Waiting until after an
election to challenge the sufficiency of a form application in use
statewide for at least a decade is plainly unreasonable.
¶17 The second category of ballots challenged are those with
certificates containing witness address information added by a
municipal clerk. Absentee ballots must be witnessed, and the
witness must provide their name, signature, and address on the
certification (printed on the back side of the envelope in which
the absentee ballot is ultimately sealed). Wis. Stat. § 6.87(2),
(4)(b)1., (6d). While a witness address must be provided on the
8 According to the findings of fact, the practice in Dane and
Milwaukee Counties is that the application portion of the envelope
is completed and shown to an official before the voter receives a
ballot.
9 In its findings of fact, the circuit court concluded that
651,422 voters throughout the state used Form EL-122 in the 2020
presidential election.
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No. 2020AP2038
certification for the corresponding ballot to be counted, the
statute is silent as to what portion of an address the witness
must provide. § 6.87(6d).
¶18 The process of handling missing witness information is
not new; election officials followed guidance that WEC created,
approved, and disseminated to counties in October 2016. It has
been relied on in 11 statewide elections since, including in the
2016 presidential election when President Trump was victorious in
Wisconsin. The Campaign nonetheless now seeks to strike ballots
counted in accordance with that guidance in Milwaukee and Dane
Counties, but not those counted in other counties that followed
the same guidance. The Campaign offers no reason for waiting years
to challenge this approach, much less after this election. None
exists.
¶19 Finally, the City of Madison held events on September
27, 2020, and October 3, 2020, dubbed "Democracy in the Park." At
these events, sworn city election inspectors collected completed
absentee ballots. The city election inspectors also served as
witnesses if an elector brought an unsealed, blank ballot. No
absentee ballots were distributed, and no absentee ballot
applications were accepted or distributed at these events.
¶20 The Campaign characterizes these events as illegal early
in-person absentee voting. When the events were announced, an
attorney for the Wisconsin Legislature sent a warning letter to
the City of Madison suggesting the events were illegal. The City
of Madison responded that the events were legally compliant,
offering reasons why. Although these events and the legislature's
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No. 2020AP2038
concerns were widely publicized, the Campaign never challenged
these events, nor did any other tribunal determine they were
unlawful.
¶21 The Campaign now asks us to determine that all 17,271
absentee ballots collected during the "Democracy in the Park"
events were illegally cast. Once again, when the events were
announced, the Campaign could have challenged its legality. It
did not. Instead, the Campaign waited until after the election——
after municipal officials, the other candidates, and thousands of
voters relied on the representations of their election officials
that these events complied with the law. The Campaign offers no
justification for this delay; it is patently unreasonable.
¶22 The time to challenge election policies such as these is
not after all ballots have been cast and the votes tallied.
Election officials in Dane and Milwaukee Counties reasonably
relied on the advice of Wisconsin's statewide elections agency and
acted upon it. Voters reasonably conformed their conduct to the
voting policies communicated by their election officials. Rather
than raise its challenges in the weeks, months, or even years
prior, the Campaign waited until after the votes were cast. Such
delay in light of these specific challenges is unreasonable.
2. Lack of Knowledge
¶23 The second element of laches requires that the
respondents lacked knowledge that the Campaign would bring these
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No. 2020AP2038
claims.10 The respondents all assert they were unaware that the
Campaign would challenge various election procedures after the
election, and nothing in the record suggests otherwise. On the
record before us, this is sufficient to satisfy this element. See
Brennan, 393 Wis. 2d 308, ¶18.
3. Prejudice
¶24 Finally, the respondents must also prove that prejudice
results from the Campaign's unreasonable delay. "What amounts to
prejudice . . . depends upon the facts and circumstances of each
case, but it is generally held to be anything that places the party
in a less favorable position." Wren, 389 Wis. 2d 516, ¶32.
¶25 With respect to in-person absentee ballot applications,
local election officials used form EL-122 in reliance on
longstanding guidance from WEC. Penalizing the voters election
officials serve and the other candidates who relied on this
longstanding guidance is beyond unfair. The Campaign sat on its
hands, waiting until after the election, despite the fact that
this "application" form was in place for over a decade. To strike
10 While our cases have identified this element as a general
requirement for laches, it does not always appear to be applicable.
To some extent, this requirement focuses on the ability of the
asserting party to mitigate any resulting prejudice when notice is
provided. But this may not be possible in all types of claims.
Most jurisdictions do not identify lack of knowledge as a separate,
required element in every laches defense. See, e.g., Hart v. King,
470 F. Supp. 1195, 1198 (D. Haw. 1979) (holding that laches barred
relief in federal court notwithstanding plaintiffs' unsuccessful
pre-election suit in state court). In any event, we have no
difficulty finding this element satisfied here.
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No. 2020AP2038
ballots cast in reliance on the guidance now, and to do so only in
two counties, would violate every notion of equity that undergirds
our electoral system.
¶26 As for the ballots to which witness address information
was added, the election officials relied on this statewide advice
and had no reason to question it. Waiting until after the election
to raise the issue is highly prejudicial. Applying any new
processes to two counties, and not statewide, is also unfair to
nearly everyone involved in the election process, especially the
voters of Dane and Milwaukee Counties.
¶27 Finally, the respondents, and indeed all voters, are
prejudiced if the ballots collected at the "Democracy in the Park"
events are invalidated. Voters were encouraged to utilize the
events, and 17,000 voters did so in reliance on representations
that the process they were using complied with the law. Striking
these ballots would disenfranchise voters who did nothing wrong
when they dropped off their ballot where their local election
officials told them they could.
¶28 In short, if the relief the Campaign sought was granted,
it would invalidate nearly a quarter of a million ballots cast in
reliance on interpretations of Wisconsin's election laws that were
well-known before election day. It would apply new interpretive
guidelines retroactively to only two counties. Prejudice to the
respondents is abundantly clear. Brennan, 393 Wis. 2d 308, ¶25.
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No. 2020AP2038
4. Discretion
¶29 Whether to apply laches remains "within our equitable
discretion." Id., ¶26. Doing so here is more than equitable; it
is the only just resolution of these claims.
¶30 To the extent we have not made this clear in the past,
we do so now. Parties bringing election-related claims have a
special duty to bring their claims in a timely manner.
Unreasonable delay in the election context poses a particular
danger——not just to municipalities, candidates, and voters, but to
the entire administration of justice. The issues raised in this
case, had they been pressed earlier, could have been resolved long
before the election. Failure to do so affects everyone, causing
needless litigation and undermining confidence in the election
results. It also puts courts in a difficult spot. Interpreting
complicated election statutes in days is not consistent with best
judicial practices. These issues could have been brought weeks,
months, or even years earlier. The resulting emergency we are
asked to unravel is one of the Campaign's own making.11
¶31 The claims here are not of improper electoral activity.
Rather, they are technical issues that arise in the administration
of every election. In each category of ballots challenged, voters
11Our 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. Wisconsin law provides sufficient
mechanisms for challenging unlawful WEC guidance or unlawful
municipal election practices. Nothing in our decision denying
relief to the Campaign would affect the right of another party to
raise substantive challenges.
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No. 2020AP2038
followed every procedure and policy communicated to them, and
election officials in Dane and Milwaukee Counties followed the
advice of WEC where given. Striking these votes now——after the
election, and in only two of Wisconsin's 72 counties when the
disputed practices were followed by hundreds of thousands of
absentee voters statewide——would be an extraordinary step for this
court to take.12 We will not do so.
III. CONCLUSION
¶32 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. We conclude the challenge
to indefinitely confined voter ballots is without merit, and that
laches bars relief on the remaining three categories of challenged
ballots. The Campaign is not entitled to relief, and therefore
12 Granting the relief requested by the Campaign may even by
unconstitutional. See Bush v. Gore, 531 U.S. 98, 104-05 (per
curiam) ("The right to vote is protected in more than the initial
allocation of the franchise. Equal protection applies as well to
the manner of its exercise. Having once granted the right to vote
on equal terms, the State may not, by later arbitrary and disparate
treatment, value one person's vote over that of another.").
17
No. 2020AP2038
does not succeed in its effort to strike votes and alter the
certified winner of the 2020 presidential election.
By the Court.—The judgment of the circuit court is affirmed.
2
No. 2020AP2038.rfd&jjk
¶33 REBECCA FRANK DALLET and JILL J.
KAROFSKY, JJ. (concurring). As acknowledged by the President's
counsel at oral argument, the President would have the people of
this country believe that fraud took place in Wisconsin during the
November 3, 2020 election. Nothing could be further from the
truth. The President failed to point to even one vote cast in
this election by an ineligible voter; yet he asks this court to
disenfranchise over 220,000 voters. The circuit court, whose
decision we affirm, found no evidence of any fraud.
¶34 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 committed and the final score
was the result of a free and fair election.
¶35 For the foregoing reasons, we concur.
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No. 2020AP2038.bh
¶36 BRIAN HAGEDORN, J. (concurring). I agree, of course,
with the majority opinion I authored holding that the petitioners1
(collectively, the "Campaign") are not entitled to the relief they
seek. But I understand the desire for at least some clarity
regarding the underlying election administration issues. A
comprehensive analysis is not possible or appropriate in light of
the abbreviated nature of this review and the limited factual
record in an action under Wis. Stat. § 9.01 (2017-18).2 However,
I do think we can be of some assistance, and will endeavor to
address in some measure the categories of ballots the majority
opinion properly applies laches to.
¶37 Beyond its challenge to indefinitely confined voters, an
issue the court's opinion quickly and appropriately dispenses
with, the Campaign raises challenges to three categories of
ballots: (1) all in-person absentee ballots in Dane and Milwaukee
Counties for want of an absentee ballot application; (2) all
absentee ballots in Dane and Milwaukee Counties where municipal
officials added witness address information on the certification;
and (3) all ballots collected at two City of Madison "Democracy in
the Park" events occurring in late September and early October. I
begin with some background, and address each while remaining
mindful of the limited nature of this review.
1 The petitioners are Donald J. Trump, Michael R. Pence, and
Donald J. Trump for President, Inc.
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
1
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I. LEGAL BACKGROUND
¶38 Elections in Wisconsin are governed by Chapters five
through 12 of the Wisconsin Statutes. In applying these laws, we
have a long history of construing them to give effect to the
ascertainable will of the voter, notwithstanding technical
noncompliance with the statutes. Roth v. Lafarge Sch. Dist. Bd.
of Canvassers, 2004 WI 6, ¶19, 268 Wis. 2d 335, 677 N.W.2d 599.3
This longstanding practice is confirmed in statute. Wisconsin
Stat. § 5.01(1) says, "Except 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." So generally, when ballots are challenged, they are
counted if the will of the voter can be ascertained.
¶39 Wisconsin looks quite a bit more skeptically, however,
at absentee ballots. Wisconsin Stat. § 6.84(2) provides:
Notwithstanding [Wis. Stat. §] 5.01(1), with respect to
matters relating to the absentee ballot process, [Wis.
Stat. §§] 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4.
shall be construed as mandatory. Ballots cast in
3 See also State ex rel. Wood v. Baker, 38 Wis. 71, 89 (1875)
("It would be a fraud on the constitution to hold them
disfranchised without notice or fault. They went to the election
clothed with a constitutional right of which no statute could strip
them, without some voluntary failure on their own part to furnish
statutory proof of right. And it would be monstrous in us to give
such an effect to the registry law, against its own spirit and in
violation of the letter and spirit of the constitution."); State
ex rel. Blodgett v. Eagan, 115 Wis. 2d 417, 421, 91 N.W. 984 (1902)
("when the intention of the voter is clear, and there is no
provision of statute declaring that such votes shall not be
counted, such intention shall prevail"); Roth v. Lafarge Sch. Dist.
Bd. of Canvassers, 2004 WI 6, ¶¶19-25, 268 Wis. 2d 335, 677
N.W.2d 599 (collecting cases).
2
No. 2020AP2038.bh
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.
This tells us that, to the extent an absentee ballot does not
comply with certain statutory requirements, it may not be counted.4
¶40 Our review in this case is of the determinations of the
board of canvassers and elections commission. The determination
shall be "set aside or modif[ied]" if the board of canvassers or
elections commission "has erroneously interpreted a provision of
law and a correct interpretation compels a particular action."
§ 9.01(8)(d). We "may not substitute [our] judgment for that of
the board of canvassers . . . as to the weight of the evidence on
any disputed findings of fact." Id. However, findings of fact
"not supported by substantial evidence" shall be set aside. Id.
Legal conclusions made by the board of canvassers or elections
commission are reviewed independently. Roth, 268 Wis. 2d 335,
¶15.
¶41 With this framework in mind, I turn to the three specific
categories of ballots challenged here.
II. IN-PERSON ABSENTEE BALLOT APPLICATIONS
¶42 Wisconsin Stat. § 6.86(1)(ar) says that "the municipal
clerk shall not issue an absentee ballot unless the clerk receives
Wisconsin courts have had few opportunities to opine on this
4
statute. The court appeals noted in a 2001 case: "Section
6.84(2)'s strict construction requirement, applicable to statutes
relating to the absentee ballot process, is consistent with the
guarded attitude with which the legislature views that process."
Lee v. Paulson, 2001 WI App 19, ¶7, 241 Wis. 2d 38, 623 N.W.2d 577.
3
No. 2020AP2038.bh
a written application therefor from a qualified elector of the
municipality." The mandatory requirement is that each ballot be
matched with an application.
¶43 The Wisconsin Elections Commission (WEC) has designed,
approved, and distributed forms for statewide use by local election
officials. Among the forms are a separate absentee ballot
application (form EL-121) and a combined application and
certification (form EL-122). Milwaukee and Dane Counties, like
many other communities around the state, use form EL-122 for in-
person absentee voters. The Campaign argues that form EL-122 is
not an application, and that all 170,140 in-person absentee ballots
cast in Dane and Milwaukee Counties therefore lacked the required
"written application." This argument is incorrect.
¶44 "Written application" is not specially defined in the
election statutes, nor is any particular content prescribed. EL-
122 is entitled "Official Absentee Ballot
Application/Certification." (Emphasis added). Beyond containing
basic voter information also present on EL-121, Form EL-122
requires the elector to sign, stating: "I further certify that I
requested this ballot." This would appear to satisfy the ordinary
meaning of a written ballot application. See Quick Charge Kiosk
LLC v. Kaul, 2020 WI 54, ¶18, 392 Wis. 2d 35, 944 N.W.2d 598 ("When
statutory language is not specially defined or technical, it is
given its 'common, ordinary, and accepted meaning.'" (quoting
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110)).
4
No. 2020AP2038.bh
¶45 The record further bears out its function as an
application. In both Milwaukee and Dane Counties, voters completed
the application portion of EL-122 and showed it to an election
official before receiving a ballot.5 Then, after completing the
ballot, the voter signed the certification portion of the form,
which the clerk witnessed. Section 6.86(1)(ar) contains no
requirement that the application and certification appear on
separate documents, and the facts demonstrate that the application
was completed before voters received a ballot. As best I can
discern from this record, EL-122 is a "written application" within
the meaning of § 6.86(1)(ar). That it also serves as a ballot
certification form does not change its status as an application.6
¶46 Therefore, on the merits and the record before us, in-
person absentee voters using form EL-122 in Dane and Milwaukee
Counties did so in compliance with Wisconsin law.7
5 The Campaign appears to suggest a different sequence of
events, but that is not what the record before us reflects.
6 It is not unusual or inherently problematic for
administrative forms to have multiple functions. The MV1, for
example, serves as both an application for registration under Wis.
Stat. § 341.08 and an application for a certificate of title under
Wis. Stat. § 342.06. See https://wisconsindot.gov/
Documents/formdocs/mv1.pdf.
7 It is presently unclear whether the statutes would be better
or more clearly effectuated by separating the application and
certification, or whether certain retention practices may be
problematic. The expedited nature of our review of this case does
not permit a full examination of this question. But the mandatory
procedure insofar as the voter is concerned——that he or she fill
out a written application——is surely satisfied.
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No. 2020AP2038.bh
III. WITNESS ADDRESSES
¶47 The Campaign also challenges several thousand absentee
ballots cast in Milwaukee and Dane Counties where election
officials added missing witness address information to the
certification. This challenge is oddly postured and seems to miss
the statutory requirements.
¶48 Absentee ballots cast in Wisconsin must be witnessed.
Wis. Stat. § 6.87(4)(b)1. In order to comply with this
requirement, voters place absentee ballots in an unsealed
envelope, the back of which includes a certificate. § 6.87(2).
The certificate must include a statement for the witness to
certify, along with space for the witness's signature, printed
name, and "[a]ddress." Id. The law states that the "witness shall
execute" the relevant witness information——including, one would
presume, the required address. Id. "If a certificate is missing
the address of a witness, the ballot may not be counted."
§ 6.87(6d).
¶49 Although Wis. Stat. § 6.87(6d) requires an address,
§ 6.87(2) and (6d) are silent on precisely what makes an address
sufficient. This is in stark contrast to other provisions of the
election statutes that are more specific. For example, Wis. Stat.
§ 6.34(3)(b)2. requires an identifying document to contain "[a]
current and complete residential address, including a numbered
street address, if any, and the name of the municipality" for the
document to be considered proof of residence. Similarly, Wis.
Stat. § 6.18 requires former residents to swear or affirm their
Wisconsin address as follows: "formerly residing at . . . in
6
No. 2020AP2038.bh
the . . . ward . . . aldermanic district (city, town, village)
of . . . County of . . . ."8 While the world has surely faced more
pressing questions, the contours of what makes an address an
address has real impact. Would a street address be enough, but no
municipality? Is the state necessary? Zip code too? Does it
matter if the witness uses their mailing address and not the
residential address (which can be different)?
¶50 Based on the record before the court, it is not clear
what information election officials added to what number of
certifications. Wisconsin Stat. § 6.87(6d) would clearly prohibit
counting a ballot if the entire address is absent from the
certification. However, if the witness provided only part of the
address——for example, a street address and municipality, but no
state name or zip code——it is at least arguable that this would
satisfy § 6.87(6d)'s address requirement. And, to the extent
clerks completed addresses that were already sufficient under the
"And 'absent textual or structural clues to the contrary' a
8
particular word or phrase used more than once in the same act is
understood 'to carry the same meaning each time.'" Town of
Delafield v. Central Transport Kriewaldt, 2020 WI 61, ¶15 n.6, 392
Wis. 2d 427, 944 N.W.2d 819 (quoting State ex rel. DNR v. Wis.
Court of Appeals, Dist. IV, 2018 WI 25, ¶30, 380 Wis. 2d 354, 909
N.W.2d 114).
7
No. 2020AP2038.bh
statute, I am not aware of any authority that would allow such
votes to be struck.9
¶51 The parties did not present comprehensive arguments
regarding which components of an address are necessary under the
statute. It would not be wise to fully address that question now.
But I do not believe the Campaign has established that all ballots
where clerks added witness address information were necessarily
insufficient and invalid; the addresses provided directly by the
witnesses may very well have satisfied the statutory directive.
The circuit court's findings of fact reflect that many of these
ballots contained additions of the state name and/or zip code. I
conclude the Campaign failed to provide sufficient information to
show all the witness certifications in the group identified were
improper, or moreover, that any particular number of ballots were
improper.
¶52 Although I do not believe the Campaign has offered
sufficient proof on this record to strike ballots, this broader
issue appears to be a valid election administration concern. WEC,
other election officials, the legislature, and others may wish to
9 The statute seems to suggest only the witness should fill
in the information necessary to comply with the statute. See Wis.
Stat. § 6.87(2) ("the witness shall execute . . . "). If a zip
code is not required under the statute, for example, I'm not sure
clerks would be prohibited from adding the zip code. Then again,
I'm not sure why they would want to add anything to an already
sufficient ballot, or what their authority would be to do so. It's
possible WEC guidance to add witness information is aimed at
complying with related WEC guidance that all aspects of a mailing
address——including city, state, and zip code——should be included
in the witness certification (arguably, information the statute
does not always require). Regardless, this case is not well-
postured to answer these questions.
8
No. 2020AP2038.bh
examine the requirements of the statute and measure them against
the guidance and practice currently in place to avoid future
problems.
IV. DEMOCRACY IN THE PARK
¶53 Finally, the Campaign challenges 17,271 ballots the City
of Madison collected at "Democracy in the Park" events on September
27, 2020, and October 3, 2020. According to the record, at these
events, sworn city election inspectors collected already completed
absentee ballots and served as witnesses for absentee voters who
brought an unsealed, blank ballot with them. During the events,
no absentee ballots were distributed, and no absentee ballot
applications were distributed or received.
¶54 Under the law, when a voter requests an absentee ballot,
the voter must return the absentee ballot in a sealed envelope by
mail or "in person, to the municipal clerk issuing the ballot or
ballots." Wis. Stat. § 6.87(4)(b)1. The phrase "municipal clerk"
has a specific meaning in the election statutes. It is 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).10 A
sworn city election inspector sent by the clerk to collect ballots
would seem to be an authorized representative as provided in the
definition. Even if "municipal clerk" were not a specially-defined
10When words are "specially-defined" they are given their
"special definitional meaning." State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110.
9
No. 2020AP2038.bh
term, the only reasonable reading of the law would allow those
acting on a clerk's behalf to receive absentee ballots, not just
the clerk by him or herself. After all, many clerks manage a full
office of staff to assist them in carrying out their duties.
Accordingly, voters who returned ballots to city election
inspectors at the direction of the clerk returned their absentee
ballots "in person, to the municipal clerk" as required by
§ 6.87(4)(b)1.
¶55 The Campaign, however, asserts that the "Democracy in
the Park" events were illegal in-person absentee voting sites that
failed to meet the statutory requirements under Wis. Stat. § 6.855.
Section 6.855(1) provides in relevant part:
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. . . . 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) (emphasis added).
¶56 An alternative absentee ballot site, then, must be a
location not only where voters may return absentee ballots, but
also a location where voters "may request and vote absentee
ballots." Id. On the facts before the court, this is not what
occurred at "Democracy in the Park" locations. Ballots were not
requested or distributed. Therefore, Wis. Stat. § 6.855 is not on
point.
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No. 2020AP2038.bh
¶57 In short, based on the record before the court and the
arguments presented, I see no basis to conclude the ballots
collected at "Democracy in the Park" events were cast in
contravention of Wisconsin law. This challenge fails.
V. CONCLUSION
¶58 The people of Wisconsin deserve confidence that our
elections are free and fair and conducted in compliance with the
law. Our elected leaders and election officials, including those
at WEC, should continue to earn the trust of all Wisconsinites.
The claims made by the Campaign in this case are not of widespread
fraud or serious election improprieties. These are ordinary sorts
of election administration issues——for example, challenging
whether an "application" form in use statewide for a decade
constitutes a sufficient application (it does). While this does
not diminish the importance of the election procedures the
legislature has chosen, Wisconsin's electorate should be
encouraged that the issues raised in this case are focused on
rather technical issues such as whether a witness must include
their zip code as part of their address.
¶59 That does not mean there is nothing to improve or clarify
or correct. But as explained in the majority opinion, the Campaign
waited far too long to challenge guidance and practices established
weeks, months, or years earlier. Laches rightly bars the relief
the Campaign seeks. Even on the merits, however, the Campaign is
either incorrect on the law, or does not provide sufficient proof
to identify particular ballots that were improperly cast. At the
11
No. 2020AP2038.bh
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.
While the Campaign has every right to challenge ballots cast out
of compliance with the law, its efforts to make that showing in
this case do not succeed.
¶60 I am authorized to state that Justice ANN WALSH BRADLEY
joins this concurrence.
12
No. 2020AP2038.pdr
¶61 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting).
Elections have consequences. One candidate wins and the other
loses, but in every case, it is critical that the public perceive
that the election was fairly conducted.
¶62 In the case now before us, a significant portion of the
public does not believe that the November 3, 2020, presidential
election was fairly conducted. Once again, four justices on this
court cannot be bothered with addressing what the statutes require
to assure that absentee ballots are lawfully cast. I respectfully
dissent from that decision. I write separately to address the
merits of the claims presented.1
¶63 The Milwaukee County Board of Canvassers and the Dane
County Board of Canvassers based their decisions on erroneous
advice when they concluded that changes clerks made to defective
witness addresses were permissible. And, the Dane County Board of
Canvassers erred again when it approved the 200 locations for
ballot collection that comprised Democracy in the Park. The
majority does not bother addressing what the boards of canvassers
did or should have done, and instead, four members of this court
throw the cloak of laches over numerous problems that will be
repeated again and again, until this court has the courage to
correct them. The electorate expects more of us, and we are
1 See Antonin Scalia, The Dissenting Opinion, 1994 J. Sup.
Ct. Hist. 33 (1994) ("Legal opinions are important, after all, for
the reasons they give, not the results they announce; results can
be announced in judgment orders without opinion. An opinion that
gets the reasons wrong gets everything wrong which is the function
of an opinion to produce.").
1
No. 2020AP2038.pdr
capable of providing it.2 Because we do not, I respectfully
dissent.
I. BACKGROUND
¶64 On November 3, 2020, people across Wisconsin and across
the country exercised their constitutional right to vote. When
the initial Wisconsin canvass was completed on November 17, 2020,
Joseph R. Biden and Kamala D. Harris received 20,427 more votes
than Donald J. Trump and Michael R. Pence.
¶65 On November 18, 2020, President Trump, Vice President
Pence and the Trump campaign (the Petitioners) filed recount
petitions in Milwaukee and Dane Counties. The recount petitions
alleged that the following errors occurred during the election in
both counties:
(1) Municipal clerks improperly completed missing
information on absentee ballot envelopes related to
witness addresses;
(2) In-person absentee voters did not submit written
applications for an absentee ballot; and
(3) Voters who were not indefinitely confined claimed
"indefinitely confined" status for the purposes of
obtaining an absentee ballot without having to show
a photo identification.
¶66 In addition to the above allegations raised during both
recounts, in Dane County, the Petitioners alleged error in counting
2 See, e.g, Texas v. Pennsylvania, 592 U.S. ____, ____ (slip
op., at 1) (Dec. 11, 2020) (order denying motion to file bill of
complaint) (Alito and Thomas, J.J., statement on the denial of
Texas's motion to file a bill of complaint) ("In my view we do not
have discretion to deny the filing of a bill of complaint in a
case that falls within our original jurisdiction. . . . I would
therefore grant the motion to file the bill of complaint but would
not grant other relief, and I express no view on any other
issue")(internal citation omitted).
2
No. 2020AP2038.pdr
all ballots received during Democracy in the Park events in Madison
on September 26, 2020, and October 3, 2020.
¶67 The recount lasted from November 20, 2020, to November
29, 2020.3 During the recount process, the Petitioners objected
to irregularities in how the voting was conducted pursuant to Wis.
Stat. § 9.01(5) (2017-18).4 Many irregularities were grounded in
Wisconsin Elections Commission (WEC) advice on voting process.
The boards of canvassers overruled all of the Petitioners'
irregularity objections.
¶68 As they relate to each alleged irregularity, the
counties rejected the Petitioners' arguments for the following
reasons:
(1) Municipal clerks improperly completed missing
information on absentee ballot envelopes related to witness
addresses.
The Milwaukee County Board of Canvassers moved to accept
ballots from envelopes with witness addresses that had
been completed by clerks consistent with specific
guidance by the WEC, which the Board viewed as consistent
with Wis. Stat. § 6.87(6d).
The Dane County Board of Canvassers also declined to
"exclude envelopes that had a witness address added by
the clerk."
(2) In-person absentee voters did not submit written
applications for an absentee ballot.
3Milwaukee County completed and certified its results on
November 27, 2020, and Dane County completed and certified its
recount results on November 29, 2020.
4All further references to the Wisconsin Statutes are to the
2017-18 version.
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No. 2020AP2038.pdr
The Milwaukee County Board of Canvassers determined that
there are multiple forms of application for an absentee
ballot that can be made by absentee in-person voters and
that the absentee ballot envelope provided to absentee
in-person voters – which has the word "application"
stated on it and must be completed by the voter – is an
application for an absentee ballot. The Milwaukee Board
thus rejected the Trump Campaign's challenge to ballots
cast by in-person absentee voters.
The Dane County Board of Canvassers voted not to exclude
or draw down any absentee ballots on the basis that they
"do not have an attached or identifiable
application." . . . The Dane County Board of Canvassers
concluded that review of absentee ballot applications is
not a part of the statutory recount process under Wis.
Stat. § 9.01(1)(b) and therefore the applications were
not relevant to the recount.
(3) Voters who were not indefinitely confined claimed
"indefinitely confined" status for the purposes of obtaining an
absentee ballot without having to show a photo identification.
The Milwaukee County Board of Canvassers found that "a
designation of an indefinitely confined status is for
each individual voter to make based upon their current
circumstances" and that "no evidence of any voter in
Milwaukee County [was] offered that has abused this
process and voted through this status . . . not even an
allegation that there was a single voter who abused this
process to vote without providing proof of their ID, but
eliminating proof that anyone did so. So there's no
allegation . . . no proof . . . no evidence." . . . The
Board voted to overrule any challenge to a voter with
the status of "indefinitely confined."
The Dane County Board of Canvassers also rejected the
Trump Campaign's challenge that would have required
invalidating the ballots of all electors in Dane County
who declared indefinitely confined status. The Board
specifically declined to separate or "draw down" the
ballots cast by electors who declared indefinitely
confined status.
(4) Ballots received during democracy in the park.
The Dane County Board of Canvassers denied the
challenge, ruling that the Democracy in the Park events
4
No. 2020AP2038.pdr
were the equivalent of a human drop box and valid under
the statute.
¶69 On December 1, 2020, the Petitioners filed a petition
for leave to file an original action with us. We denied that
petition on December 3, 2020. That same day, the Petitioners filed
two notices of appeal of the recount determinations pursuant to
Wis. Stat. § 9.01(6)(a). Those cases were consolidated in
Milwaukee County and the Honorable Stephen Simanek was assigned to
the appeal pursuant to § 9.01(6)(b).
¶70 The circuit court held a hearing on December 11, 2020.
At the conclusion of oral argument, the circuit court affirmed the
recount determinations and, in so doing, adopted pages one through
thirty of the Respondents' Joint Proposed Findings of Fact and
Conclusions of Law. After the circuit court entered its final
written decision, the Petitioners filed a notice of appeal. The
Petitioners also filed a petition for bypass under Wis. Stat.
§ 809.60(1). Thereafter, we granted the petition for bypass and
assumed jurisdiction over this appeal.
II. DISCUSSION
A. Standard of Review
¶71 In a Wis. Stat. § 9.01 proceeding, post election
challenges "are permissible provided that they may affect the
election results." Logerquist v. Board of Canvassers for Town of
Nasewaupee, 150 Wis. 2d 907, 916, 442 N.W.2d 551 (Ct. App. 1989).
In such a proceeding, we review the determinations of the board of
canvassers, not those of the circuit court. Id. at 917. "On
appellate review of a [] § 9.01(1) proceeding, the question is
whether the board [of canvasser's] findings are supported by
5
No. 2020AP2038.pdr
substantial evidence.5 Carlson v. Oconto Bd. of Canvassers, 2001
WI App 20, ¶5, 240 Wis. 2d 438, 623 N.W.2d 195 (citing Logerquist,
150 Wis. 2d at 912).
¶72 This appeal also requires us to interpret and apply
Wisconsin statutes. We interpret and apply statutes independently
as questions of law, while benefitting from the discussion of the
circuit court. Voces De La Frontera, Inc. v. Clarke, 2017 WI 16,
¶12, 373 Wis. 2d 348, 891 N.W.2d 803.
B. Alleged Irregularities
¶73 "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." 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).
¶74 This case is guided by Wis. Stat. § 6.84 which provides:
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
5 In the matter before us, the material facts are not
disputed. Rather, it is the legal consequences that follow from
these facts that forms the controversy.
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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.
Notwithstanding s. 5.01, 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.
Accordingly, the provisions that relate to obtaining and voting
absentee ballots must be carefully examined as a recount proceeds.6
C. Witness Addresses
¶75 Wisconsin Stat. § 6.87(2) provides that absentee ballots
must be accompanied by a certificate. The certificate may be
printed on the envelope in which an absentee ballot is enclosed.
Section 6.87(2) provides a model certificate, and directs that
certificates must be in "substantially" the same form as the model.
The model provides:
The witness shall execute the following:
I, the undersigned witness, subject to the
penalties of s. 12.60 (1)(b), Wis. Stats., for false
statements, certify that I am an adult U.S. citizen and
that the above statements are true and the voting
procedure was executed as there stated. I am not a
candidate for any office on the enclosed ballot (except
in the case of an incumbent municipal clerk). I did not
solicit or advise the elector to vote for or against any
candidate or measure.
6 See also Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th Cir.
2004) ("Voting fraud is a serious problem in U.S. elections
generally . . . 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." (internal citations omitted)).
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....(Printed name)
....(Address)
Signed ...."[7]
Accordingly, the plain language of § 6.87(2) requires that it is
the witness who must affix his or her signature and write in his
or her name and address. Section 6.87(2) does not mention an
election official taking any action.
¶76 Wisconsin Stat. § 6.87(9) explains what an election
official may do if an absentee ballot is received with an
improperly completed certificate or no certificate:
[T]he clerk may return the ballot to the elector, inside
the sealed envelope when an envelope is received,
together with a new envelope if necessary, whenever time
permits the elector to correct the defect and return the
ballot within the period authorized under sub. (6).
Section 6.87(9)'s plain language authorizes election officials to
return the ballot to "the elector" to correct "the defect." It
does not authorize election officials to make corrections, i.e.,
to write anything on the certificate.
¶77 In addition, Wis. Stat. § 6.87(6d) provides that "[i]f
a certificate is missing the address of a witness, the ballot may
not be counted." This language is clear. And furthermore, its
legislative history confirms its plain meaning. Westmas v.
Creekside Tree Serv., Inc., 2018 WI 12, ¶20, 379 Wis. 2d 471, 907
N.W.2d 68 (quoting State v. Grunke, 2008 WI 82, ¶22, 311
Wis. 2d 439, 752 N.W.2d 769) (explaining that courts may consult
legislative history to confirm a statute's plain meaning). This
subsection was added by 2015 Wis. Act 261. A memorandum prepared
7 Asterisks removed.
8
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by the Legislative Council provides that "Act 261 . . . requires
an absentee ballot to have a witness address to be counted. An
absentee ballot voter must complete the certification and sign the
certification in the presence of a witness, and the witness must
sign the certificate and provide his or her name and address."
Wis. Legis. Council Act Memo, 2015 Wis. Act 261, at 2,
https://docs.legis.wiscinsin.gov/2015/related/lcactmemo/act261.p
df.
¶78 The contention that ballots with defective addresses
cannot be counted is supported by more than the plain meaning of
Wis. Stat. § 6.87(6d). The requirement that such ballots not be
counted is found in Wis. Stat. § 6.84(2), which provides that the
provisions in § 6.87(6d) are "mandatory."
¶79 Notwithstanding the plain, clear requirements of two
statutes, WEC's guidance explicitly directs municipal clerks that
they "must take corrective actions in an attempt to remedy a
witness address error." WEC guidance states, "municipal clerks
shall do all that they can reasonably do to obtain any missing
part of the witness address." Then in addition, the WEC instructs
clerks to add witness address information even though the guidance
acknowledges that "some clerks have expressed [concern] about
altering information on the certificate envelope, especially in
the case of a recount."
¶80 The WEC ignores that the legislature provided only one
act an election official may take in regard to a defective witness
address: mail the defective ballot back to the elector to correct
the error. Wis. Stat. § 6.87(9). That the legislature made one
9
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choice about correcting a defective witness address excludes other
methods of correction. "[T]he express mention of one matter
excludes other similar matters [that are] not mentioned." FAS,
LLC v. Town of Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733
N.W.2d 287 (quoting Perra v. Menomonee Mut. Ins. Co., 2000 WI App
215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (modifications in the
original). In addition, and similarly, § 6.87(2) states, "[t]he
witness shall execute the following . . . (Address)." It does not
state that clerks shall execute anything.
¶81 My conclusion that errors in the certification of
absentee ballots require discarding those ballots is consistent
with our precedent. In Kaufmann v. La Crosse City Bd. of
Canvassers, 8 Wis. 2d 182, 98 N.W.2d 422 (1959), absentee ballots
were returned to a municipal clerk without bearing a notary's
signature on the accompanying certificate envelope, as required by
statute at that time. The clerk added her signature to the
certificates. Id. at 183. We explained that the electors' failure
to ensure that the certificate complied with the statute
invalidated the ballots. Additionally, we stated, "[t]he fact
that the . . . clerk further complicated the matter by signing her
name to the . . . certificate cannot aid the voter. The two wrongs
cannot make a right." Id. at 186. The ballots were not counted.
Id. In the case at hand, a defective witness address cannot be
corrected by a clerk, just as the signature of the notary could
not be completed by the clerk in Kaufmann.
¶82 In Gradinjan v. Boho (In re Chairman in Town of
Worchester), 29 Wis. 2d 674, 139 N.W.2d 557 (1966), absentee
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ballots were issued without the municipal clerk's initials or
signature, as required by statute at that time. We concluded that
the ballots "should not have been counted." Id. at 683.
Furthermore, we said that the statute that obligated the
invalidation of these ballots survived constitutional attack. Id.
at 683–84. We emphasized that absentee voting is subject to
different statutory requirements than voting at a polling place,
i.e., while a ballot cast at a polling place without initials or
a signature may be countable, an absentee ballot subject to an
analogous defect is not. Id. at 684. As we stated, "[c]learly,
the legislature could determine that fraud and violation of the
sanctity of the ballot could much more readily be perpetrated by
use of an absentee ballot than under the safeguards provided at a
regular polling place." Id. In the case at hand, a witness
address is a statutory requirement, mandated by law, just as the
initials or signature of the municipal clerk was in Gradinjan.
¶83 The canvassing boards deferred to the WEC's guidance
about defective signatures and it appears that the circuit court
did so as well when interpreting Wis. Stat. § 6.87. The circuit
court stated:
Adding, the requisite information by the clerk has been
in effect since before the 2016 election. The election
which Trump prevailed in Wisconsin, I believe, after a
recount. It's longstanding, I believe it's not
prohibited by law, and it is therefore a reasonable
interpretation to make sure, as the as the Court
indicated earlier, that the will of the electors, the
voters, are brought to fruition.
It is unfortunate that WEC has such sway, especially when its
"guidance" is contrary to the plain meaning of two statutes.
11
No. 2020AP2038.pdr
¶84 Furthermore, we do not defer to administrative agencies
when interpreting statutes. Wis. Stat. § 227.57(11); see also
Lamar Cent. Outdoor, LLC v. Div. of Hearings & Appeals, 2019 WI
109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (quoting Tetra Tech EC,
Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 N.W.2d 21).
Accordingly, the issue is not whether the WEC adopted "a reasonable
interpretation," as the circuit court seems to have suggested. We
follow the plain meaning rule when interpreting statutes, which we
do independently. State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "If the
meaning of the statute is plain, we ordinarily stop the inquiry."
Id., ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d
211, 612 N.W.2d 659).
¶85 And finally, guidance documents "are not law, they do
not have the force or effect of law, and they provide no authority
for implementing or enforcing standards or conditions." Service
Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d
38, 946 N.W.2d 35. Guidance documents "impose no obligations, set
no standards, and bind no one." Id. "Functionally, and as a
matter of law, they are entirely inert." Id.
¶86 Administrative agencies, including the WEC, often treat
their guidance as if it were law, but that does not make it so.
Id., ¶143 (Roggensack, C.J, concurring/dissenting). Such
treatment is inappropriate——it confuses people by making them
think that they have a legally cognizable reliance interest in
WEC's guidance when they do not.
D. Written Applications
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¶87 The Petitioners assert that during the two weeks that
permit early in-person absentee voting 170,151 electors who did
not submit a sufficient "written application" before receiving an
absentee ballot cast votes. The crux of the Petitioners' argument
is that the written application must be "separate" from the ballot
and the certification.
¶88 The statutes provide that in the two weeks leading up to
an election, electors may go to the municipal clerk's office and
apply for an absentee ballot. Upon proof of identification, the
elector receives a ballot, marks the ballot, the clerk witnesses
the certification and the elector casts a vote by returning the
absentee ballot to the municipal clerk. Wis. Stat. § 6.86(1)(b).
¶89 Pursuant to Wis. Stat. § 6.86(1)(ar), "the municipal
clerk shall not issue an absentee ballot unless the clerk receives
a written application therefor from a qualified elector." Other
statutes provide for similar requirements. See, e.g., Wis. Stat.
§ 6.86(1)(a)1.-6. (stating that "[a]ny elector of a municipality
who is registered to vote . . . and who qualifies . . . 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," which are then listed); Wis. Stat. § 6.86(1)(ac)
(stating that electors "may make written application to the
municipal clerk for an official ballot by means of facsimile
transmission or electronic mail").
¶90 We begin statutory interpretation with the language of
the statute. Kalal, 271 Wis. 2d 633, ¶45. "Statutory language is
given its common, ordinary, and accepted meaning, except that
13
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technical or specially-defined words or phrases are given their
technical or special definitional meaning." Id.
¶91 None of the statutes in question contain the word
"separate." Rather, a "written application" is required before
the elector's identity is established with a photo identification
and the elector receives an absentee ballot. See Wis. Stat.
§§ 6.86(1)(a), (ac), (ar), (b), 6.86(2m). Furthermore, § 6.86(2m)
provides that "The application form and instructions shall be
prescribed by the commission . . . ." Here, the statutes do not
provide a form application; the statutes do not define what is
required on an application, but simply that it be written. Form
EL 122 was employed here to apply for a ballot in-person.
¶92 Form EL 122 requires the applicant for an absentee ballot
to provide the applicant's name, street address, city, and zip
code. It also asks for the date of the election for which the
application is being made and the county and municipality in which
the applicant votes. The substantive information that the
application requests is substantially similar to form EL 121, which
is titled "Wisconsin Application for Absentee Ballot." Each of
these application forms requires writing prior to being submitted
by electors in advance of an elector receiving an absentee ballot.8
E. Indefinitely Confined
8This order of operations was confirmed in several
affidavits. The affiants asserted that before they received their
ballots the clerk's office verified their photo identification and
voter registration. The electors were then given an EL-122
envelope and instructed to complete it. Once the application was
completed, the voters received their ballots.
14
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¶93 Wisconsin Stat. § 6.86(2)(a) provides a manner by which
some electors may obtain an absentee ballot outside of the mode
outlined above. Those who are "indefinitely confined because of
age, physical illness or infirmity or are disabled for an
indefinite period" may apply for an absentee ballot on that basis.
Id. Those electors are then excused from the absentee ballot photo
identification requirement. Wis. Stat. § 6.87(4)(b)1.
¶94 The Petitioners contend that all votes cast by electors
claiming indefinitely confined status after March 25, 2020 (the
date of McDonell's Facebook post)9 are invalid. However, we have
discussed the indefinitely confined status in Jefferson v. Dane
Cnty., 2020 WI 90, ___ Wis. 2d ___, ___ N.W.2d ____, which is
released today, December 14, 2020.
¶95 In the pending matter, we do not have sufficient
information about the 28,395 absentee voters who claimed this
status in Milwaukee and Dane counties to determine whether they
lawfully asserted that they were indefinitely confined prior to
receiving an absentee ballot. Therefore, I go no further in
addressing this contention.
F. Democracy in the Park
¶96 On September 26, 2020 and October 3, 2020, at more than
200 City of Madison parks,10 the City of Madison held events called,
"Democracy in the Park." During those events, poll workers, also
On March 25, 2020, Dane County Clerk, Scott McDonell, stated
9
on Facebook that community members are encouraged to claim
indefinitely confined status due to COVID-19 and Governor Evers'
then-active Emergency Order #12.
10 Affidavit of Maribeth Witzel-Behl, Madison City Clerk.
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referred to as "election inspectors," helped in the completion of
ballot envelopes, acted as witnesses for voters and collected
completed ballots.11 17,271 absentee ballots were voted and
delivered to these poll workers.12
¶97 The poll workers who staffed Democracy in the Park were
volunteers. They were not employees of the City of Madison Clerk's
office.
¶98 Wisconsin Stat. § 6.87(4)(b)1. requires that when voting
an absentee ballot "[t]he envelope [containing the ballot] shall
be mailed by the elector, or delivered in person, to the municipal
clerk issuing the ballot or ballots." In addition, the plain words
of Wis. Stat. § 6.84(2) specifically direct that the provisions of
§ 6.87(4)(b)1. "shall be construed as mandatory." Notwithstanding
the use of "shall" in § 6.87(4)(b)1. and the "mandatory"
requirement to comply with the terms of § 6.87(4)(b)1. in
§ 6.84(2), the 17,271 ballots that were collected in Madison parks
did not comply with the statutes. Stated otherwise, they were not
"delivered in person, to the municipal clerk."
¶99 It is conceivable that the 200 sites for Democracy in
the Park could have become alternate absentee ballot sites. If
the Madison Common Council had chosen to designate a site other
than the municipal clerk's office as the location from which voters
could request and to which they could return absentee ballots, an
alternate absentee ballot site could have been established. Wis.
Stat. § 6.855(1). The statute also provides that the governing
11 Id.
12 Id.
16
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body of a municipality may designate more than one alternate site.
§ 6.855(5).13
¶100 However, if Democracy in the Park were held to be 200
alternate absentee ballot sites, then "no function related to
voting and return of absentee ballots. . . . may be conducted in
the office of the municipal clerk." Wis. Stat. § 6.855(1). This
requirement does not fit the facts because the Madison clerk's
office continued to provide and accept return of absentee ballots.
Therefore, these 200 park events do not meet the statutory criteria
set out in § 6.855 for alternate absentee ballot sites.
¶101 One wonders, what were they? It is contended that they
were "human drop boxes." That gives little comfort because drop
boxes are not found anywhere in the absentee voting statutes. Drop
boxes are nothing more than another creation of WEC to get around
the requirements of Wis. Stat. § 6.87(4)(b)1. The plain,
unambiguous words of § 6.87(4)(b)1. require that voted ballots
"shall be mailed by the elector, or delivered in person, to the
municipal clerk issuing the ballot or ballots." Drop boxes do not
meet the legislature's mandatory directive.
¶102 However, because drop boxes are not separately
identified as a source of illegal voting in this lawsuit, I will
not dwell on the accountability problems they create, but I do not
doubt that challenges to drop boxes in general and in specific
instances will be seen as problems in future elections. Therefore,
13 However, 200 alternate sites does seem a bit much.
17
No. 2020AP2038.pdr
we may have the opportunity to examine them in a case arising from
a subsequent election.14
¶103 It is also Respondent's contention that the poll workers
who staffed these events were agents15 of the city clerk; and
therefore, delivery of ballots to them was personal delivery to
the clerk within the meaning of Wis. Stat. § 6.87(4)(b)1. This is
an amazing contention. Without question, delivery to voluntary
poll workers is not "delivered in person to the municipal clerk,"
as § 6.87(4)(b)1. requires.
¶104 The legislature prescribed the absentee voting procedure
in Wis. Stat. § 6.87(4)(b)1. and commanded that those procedures
are "mandatory" in Wis. Stat. § 6.84(2). Gatherings in 200 city
parks did not meet the statutory requirements for lawful absentee
voting. They also lack the safety and solemnity that are attached
to personally delivering absentee ballots to the municipal clerk.
III. CONCLUSION
¶105 The Milwaukee County Board of Canvassers and the Dane
County Board of Canvassers based their decisions on erroneous
advice when they concluded that changes clerks made to defective
witness addresses were permissible. And, the Dane County Board of
14We had the opportunity to examine the use of drop boxes in
Mueller v. Jacobs, 2020AP1958-OA, but the court refused to grant
review, from which decision Annette Kingsland Ziegler, J., Rebecca
Grassl Bradley, J. and I dissented.
15I would be amazed if the City of Madison agreed that all
the volunteer poll workers who staffed Democracy in the Park were
legally agents of the city clerk given the exposure to liability
such a determination would bring. Lang v. Lions Club of Cudahy
Wis., Inc., 2020 WI 25, ¶25, 390 Wis. 2d 627, 939 N.W.2d 582 (lead
opinion).
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Canvassers erred again when it approved the 200 locations for
ballot collection that comprised Democracy in the Park. The
majority does not bother addressing what the boards of canvassers
did or should have done, and instead, four members of this court
throw the cloak of laches over numerous problems that will be
repeated again and again, until this court has the courage to
correct them. The electorate expects more of us, and we are
capable of providing it. Because we do not, I respectfully
dissent.
¶106 I am authorized to state that Justices ANNETTE KINGSLAND
ZIEGLER, and REBECCA GRASSL BRADLEY join this dissent.
19
No. 2020AP2038.akz
¶107 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). We are
called upon to declare what the law is. See Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province
and duty of the judicial department to say what the law is.").
Once again, in an all too familiar pattern, four members of this
court abdicate their responsibility to do so. They refuse to even
consider the uniquely Wisconsin, serious legal issues presented.
The issues presented in this case, unlike those in other cases
around the United States, are based on Wisconsin statutory election
law. Make no mistake, the majority opinion fails to even mention,
let alone analyze, the pertinent Wisconsin statutes. Passing
reference to other states' decisionmaking is of little relevance
given the Wisconsin legal issues at stake. See Roggensack, C.J.,
dissent, supra; Rebecca Grassl Bradley, J., dissent, infra. The
people of Wisconsin deserve an answer——if not for this election,
then at least to protect the integrity of elections in the future.
Instead of providing clarity, the majority opinion is, once again,
dismissive of the pressing legal issues presented.
¶108 The majority author's concurrence is even more
dismissive of the need for clarity in Wisconsin election law
stating that he "understand[s] the desire for at least some clarity
regarding the underlying election administration
issues . . . [but] its just not possible." Hagedorn, J.,
concurrence, ¶36. Indeed, we are presented with a rare opportunity
to meaningfully engage in, among other things, a known conflict
between guidance, given by an unelected committee, and what the
law requires. These are more than mere "election administration
1
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issues." See Rebecca Grassl Bradley, J., dissent, infra. This
case presents not just a "desire" for clarity in the law, our
constitutional duty requires us to declare what the law is. Quite
obviously, defaulting to laches and claiming that it is "just not
possible," is directly contradicted by the majority author's own
undertaking. If it is important enough to address in his
concurrence, then it should also satisfy the discretionary
standard which overcomes the application of laches. Instead of
undertaking the duty to decide novel legal issues presented, this
court shirks its institutional responsibility to the public and
instead falls back on a self-prescribed, previously unknown
standard it calls laches.
¶109 Stated differently, the majority claims the petitioners
were too late, should have acted earlier and therefore, the court
is neutered from being able to declare what the law is. The
majority basically reiterates respondents' soundbites. In so
doing, the majority seems to create a new bright-line rule that
the candidates and voters are without recourse and without any
notice should the court decide to later conjure up an artificial
deadline concluding that it prefers that something would have been
done earlier. That has never been the law, and it should not be
today. It is a game of "gotcha." I respectfully dissent, because
I would decide the issues presented and declare what the law is.
I. ABDICATION OF CONSTITUTIONAL DUTY
¶110 Unfortunately, our court's adoption of laches as a means
to avoid judicial decisionmaking has become a pattern of conduct.
A majority of this court decided not to address the issues in this
2
No. 2020AP2038.akz
case, when originally presented to us by way of an original action.
Trump v. Evers, No. 2020AP1971-OA, unpublished order (Wis. Dec. 3.
2020). In concluding that it is again paralyzed from engaging in
pertinent legal analysis, our court unfortunately provides no
answer or even any analysis of the relevant statutes, in the most
important election issues of our time. See Hawkins v. Wisconsin
Elections Comm'n, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877;
Trump v. Evers, No. 2020AP1971-OA (Rebecca Grassl Bradley, J.,
dissenting); Mueller v. Jacobs, No. 2020AP1958-OA, unpublished
order (Wis. Dec. 3, 2020) (Roggensack, C.J., Ziegler, and Rebecca
Grassl Bradley, JJ. dissenting); Wis. Voters Alliance v. Wisconsin
Elections Comm'n, No. 2020AP1930-OA, unpublished order (Wis. Dec.
4, 2020) (Roggensack, C.J., dissenting).
¶111 Instead, the majority relies on what only can be viewed
as a result-oriented application of the equitable doctrine of
laches to avoid declaring what the law is. To be clear, I am not
interested in a particular outcome. I am interested in the court
fulfilling its constitutional responsibility. While sometimes it
may be difficult to undertake analysis of hot-button legal
issues——as a good number of people will be upset no matter what
this court does——it is our constitutional duty. We cannot hide
from our obligation under the guise of laches. I conclude that
the rule of law and the equities demand that we answer these
questions for not only this election, but for elections to come.
I have concern over this court's pattern of indecision because
that leaves no court declaring what Wisconsin election law is.
See Roggensack, C.J., dissent, supra; Rebecca Grassl Bradley, J.,
3
No. 2020AP2038.akz
dissent, infra. We can and should do better for the people of
Wisconsin and for the nation, which depends on Wisconsin following
its election laws.
¶112 Regarding this court's continued pattern of abdicating
its responsibility concerning election issues, earlier this term
in Hawkins, the same members of the court relied on laches, without
any analysis whatsoever of that doctrine, and denied a rightful
candidate the opportunity to be placed on the ballot as a
presidential candidate. Thus, the court likewise denied the voters
the opportunity to choose that candidate's name amongst the others
on the ballot. See Hawkins, 393 Wis. 2d 629 (Ziegler, J.,
dissenting).1 The court in Hawkins, about two months before the
November election, declared that it was unable to act, citing the
doctrine of laches, and applied a newly invented and previously
unknown, self-imposed, result-oriented, laches-based deadline as
an excuse for inaction. Id.
II. LACHES DOES NOT AND SHOULD NOT BAR THIS CASE
¶113 Once again, the majority imposes its definition of
laches, which is tailored to its judicial preference rather than
based on well-established legal principles. The majority must
know that under this court's previous laches jurisprudence, it
1In 2016, the Green Party candidates received 31,072 votes.
See Certificate of Ascertainment for President, Vice President and
Presidential Electors General Election – November 8, 2016,
available at https://www.archives.gov/files/electoral-
college/2016/ascertainment-wisconsin.pdf. In 2020, the Green
Party candidates received only 1,089 votes. See WEC Canvass
Results for 2020 General Election, available at
https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%
20Results%20All%20Offices%20%28pre-Presidential%20recount
%29.pdf.
4
No. 2020AP2038.akz
should nonetheless address the merits of the issues. As this court
has consistently held, "[l]aches is an affirmative, equitable
defense designed to bar relief when a claimant's failure to
promptly bring a claim causes prejudice to the party having to
defend against that claim." Wisconsin Small Bus. United, Inc. v.
Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. In
Wisconsin, a defendant must prove three elements for laches to bar
a claim: "(1) a party unreasonably delays in bringing a claim;
(2) a second party lacks knowledge that the first party would raise
that claim; and (3) the second party is prejudiced by the delay."
Id., ¶12. Even if respondents carry their burden of proving all
three elements of laches, "application of laches is left to the
sound discretion of the court asked to apply this equitable bar."
Id.
¶114 The petitioners raised four allegations regarding
election administration: Absentee ballots lacking a separate
application; absentee envelopes that are missing or have a
defective witness address; indefinitely confined voters/faulty
advice from election officials; and ballots cast at Madison's
Democracy in the Park/ballot drop boxes. The respondents cannot
demonstrate that laches bars a single one of these claims, and,
even if they could, the court could still and should exercise its
discretion to hear these issues.
A. No Unreasonable Delay
¶115 The first element of a laches defense requires the
respondents to prove the petitioners unreasonably delayed in
making their allegations. "What constitutes a reasonable time
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will vary and depends on the facts of a particular case."
Wisconsin Small Bus. United, 393 Wis. 2d 308, ¶14.
¶116 Convenient to its purpose, the majority frames this case
to meet its preferred outcome. The majority characterizes this
suit as a challenge to general election policies rather than what
it is: this lawsuit is a challenge to specific ballots that were
cast in this election, contrary to the law. The majority states,
"[t]he time to challenge election policies such as these is not
after all ballots in the election have been cast and the votes
tallied." Majority op., ¶22. According to the majority, "[s]uch
delay in light of these specific challenges is unreasonable." Id.
The majority misses the mark.
¶117 In other words, contrary to the majority's
characterizations, this case is not about general election
procedure: it is about challenging specific ballots. In
Wisconsin, while voting is a right, absentee voting is a privilege,
not a right. Wis. Stat. § 6.84(1). The Wisconsin Legislature has
created a set of mandatory rules to which the voters must adhere
for their absentee ballots to count.2 Consistent with express
mandatory rules, the petitioners allege that certain ballots were
cast that did not adhere to the law and, therefore, should not be
counted. It is a specific question: Were the ballots cast
See Wis. Stat. § 6.84(2) ("Notwithstanding s. 5.01(1), with
2
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.").
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No. 2020AP2038.akz
according to the law as stated in the statutes and if not, what,
if any, remedy, exists?
¶118 With this proper framing of the issue, it is clear that
the petitioners did not unreasonably delay in challenging the
ballots. To somehow require that challenges must be made and legal
relief given before an election, before the ballots are cast and
before a recount is absurd. No recount would ever amount to relief
if that is the lodestar.
¶119 Thus, the petitioners did not unreasonably delay in
filing this suit, and this element of laches has not been
demonstrated as to any of the four allegations of election
irregularity.
B. Respondents Knew Ballots Would Be Challenged.
¶120 The second element of laches addresses the knowledge of
the party asserting laches. See Wis. Small Bus. United, 393
Wis. 2d 308, ¶18. If the party lacks knowledge of claim, the
respondents have satisfied this element. Id. The majority
summarily accepts, without any analysis, that "[t]he respondents
all . . . were unaware that the Campaign would challenge various
election procedures after the election . . . ." Majority op.,
¶23. Virtually nothing is in the record to support this assertion
other than the parties' statements. In other words, the majority
accepts one side's statements as fact in order to disallow the
other side its day in court.
¶121 As explained above, this is a challenge to the ballots
cast in this election. The President tweeted numerous times
shortly after Wisconsin announced the election results that he
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would challenge the results and prove certain ballots were
impermissibly cast.3 The majority chose to accept the respondents'
assertion that they did not see this lawsuit coming despite the
record to the contrary.
¶122 Moreover, the majority is incorrect that "nothing in the
record suggests" that the respondents knew what the petitioners
would be challenging. Majority op., ¶23. In fact, Wisconsin law
mandates that the petitioners expressly declare on what grounds
they plan to challenge the ballots in a recount. Wis. Stat.
§ 9.01(1). In the petitioners' recount petition, the petitioners
specifically laid out these claims.
¶123 Thus, the majority's conclusion with respect to this
element is particularly lean given the record. It is at least
more than plausible that respondents had knowledge that the
petitioners would challenge the ballots in a lawsuit.
C. Respondents Lack Prejudice.
¶124 Even if the respondents could prove the first two
elements, the respondents themselves are not prejudiced by this
delay. "What amounts to prejudice . . . depends upon the facts
and circumstances of each case, but it is generally held to be
anything that places the party in a less favorable position." Wis.
Small Bus. United, 393 Wis. 2d 308, ¶19. The party seeking to
apply laches must "prove that the unreasonable delay" prejudiced
the party, not a third party. State ex rel. Wren v. Richardson,
2019 WI 110, ¶32, 389 Wis. 2d 516, 936 N.W.2d 587. This court
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov.
3
28, 2020, 2:00 p.m.),
https://twitter.com/realDonaldTrump/status/1332776310196883461
8
No. 2020AP2038.akz
recognizes two different types of prejudice: evidentiary and
economic. Id., ¶33. Evidentiary prejudice is where "the defendant
is impaired from successfully defending itself from suit given the
passage of time." Id., ¶33 n.26. Economic prejudice occurs when
"the costs to the defendant have significantly increased due to
the delay." Id.
¶125 The majority abandons these principles of laches and
instead focuses on the prejudice to third parties. The majority
states that "[t]o strike ballots cast in reliance on the guidance
now, and to do so in only in two counties, would violate every
notion of equity that undergirds our electoral system." Majority
op., ¶25. This is a new manner in which to approach the legal
analysis of prejudice. The majority does not explain how this
potential remedy prevents us from hearing the merits of this case.
The majority does not explain how these notions are either
evidentiary or economic prejudice, nor does it consider how it
prejudices the actual parties in this case. It is unusual to
conclude that overwhelming prejudice exists such that the court is
paralyzed from considering whether the law was followed. In other
words, the majority seems to be saying that they do not wish to
grant relief and therefore they will not analyze the law. This
remedy-focused analysis is not typical to laches.
¶126 Neither type of prejudice applies to the respondents in
this case. None of the respondents claimed that they were unable
to successfully defend themselves. All respondents filed briefs
in this court addressing the merits. The circuit court's opinion
addresses the merits. Accordingly, evidentiary prejudice does not
9
No. 2020AP2038.akz
apply. Furthermore, no respondents have claimed that the costs of
defending this claim have "significantly increased due to the
delay." Accordingly, economic prejudice does not apply.
¶127 At a more fundamental level, the respondents must prove
each of the elements. The court cannot presume that the elements
are met. Similarly, the court cannot assume that a party cannot
successfully defend itself nor that a party faces "significantly
increased" costs. To do so forces this court to step out of our
role as a neutral arbiter. See Service Emp. Int'l Union, Loc. 1
v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d.
¶128 Therefore, the respondents cannot prove and did not even
allege that they are prejudiced. Accordingly, the majority
determination in this regard is flawed.
D. Equitable Discretion
¶129 Even if the majority was correct that the elements of
laches are met here, it still has the discretion to reach the
merits. See Wis. Small Bus. United, 393 Wis. 2d 308, ¶12. The
majority claims that the "only just resolution of these claims" is
to use laches to not address the merits of this case. Majority
op., ¶29. Not so. Our constitutional responsibility is to analyze
the law and determine if it was followed regardless of whether any
remedy might be available. In this way future elections benefit
from our analysis. Curiously, it is unclear whether there is an
actual majority given the fact that the writer does exercise his
discretion to address the issues——again, a lack of clarity.
¶130 This court should address the merits because we should
declare what the law is. The public has serious concerns about
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the election and about our election laws. Recent polls suggest
that the American public, regardless of party affiliation, has
serious questions about the integrity of the November 2020
election.4 Our court has an opportunity to analyze the law and
answer the public's concerns, but it unfortunately declines this
opportunity for clarification.
¶131 The majority should declare what the law is. Every
single voter in this state is harmed when a vote is cast in
4 See Rasmussen Reports, 61% Think Trump Should Concede to
Biden (Nov. 19, 2020) https://www.rasmussenreports.com/
public_content/politics/elections/election_2020/61_think_trump_s
hould_concede_to_biden (finding 47% of those who polled believe
that Democrats stole votes or destroy pro-Trump ballots in several
states to ensure that Biden would win); Politico, National Tracking
Poll, Project 201133 (Nov. 6-9, 2020),
https://www.politico.com/f/?id=00000175-b306-d1da-a775-
bb6691050000 (finding 34% of those polled believed the election
was not free and fair); Jill Darling et al., USC Dornsife Daybreak
Poll Topline at 14 (Nov. 19, 2020), Post-Election Poll UAS318,
https://dornsife-center-for-political-future.usc.edu/past-polls-
collection/2020-polling/ (finding that those polled are only 58%
confident that all votes in the election were accurately counted);
R. Michael Alvarez, et al., Voter Confidence in the 2020
Presidential Election: Nationwide Survey Results (Nov. 19, 2020),
The Caltech/MIT Voting Technology Project Monitoring the Election,
2020 Presidential Election Survey Reports & Briefs,
https://monitoringtheelection.us/2020-survey (finding 39% of
those polled are not confident that votes nationally were counted
as the voter intended); Yimeng Li, Perceptions of Election or Voter
Fraud in the 2020 Presidential Election: Nationwide Survey Results
(Nov. 23, 2020), The Caltech/MIT Voting Technology Project
Monitoring the Election, 2020 Presidential Election Survey Reports
& Briefs, https://monitoringtheelection.us/2020-survey (finding
between 29% and 34% of those polled believe voter fraud occurs);
Sharp Divisions on Vote Counts, as Biden Gets High Marks for His
Post-Election Conduct, Pew Research Center, U.S. Politics & Policy
(Nov. 20, 2020), https://www.pewresearch.org/politics/
2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-
marks-for-his-post-election-conduct/ (finding that 41% of hose
polled believe the elections were run and administered not well).
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No. 2020AP2038.akz
contravention of the statutes. See Wis. Stat. § 6.84(1). This
court should conduct a rigorous analysis, and determine whether
the law was followed.
¶132 To counter these clear equities counseling us to reach
the merits, the majority nonetheless seemingly declines the
opportunity in favor of a self-divined rule which would make it
nearly impossible to know when and how such a claim could be made.
The majority asserts that "[f]ailure to [raise these claims
earlier] affects everyone, causing needless litigation and
undermining confidence in the election results. It also puts
courts in a difficult spot. Interpreting complicated election
statutes in days is not consistent with best judicial practices."
Majority op., ¶30. A claim post-recount is always going to be
tight on timing.
¶133 Under the majority's new rule, a candidate will have to
monitor all election-related guidance, actions, and decisions of
not only the Wisconsin Elections Commission, but of the 1,850
municipal clerks who administer the election at the local level.
And that is just in one state! Instead of persuading the people
of Wisconsin through campaigning, the candidate must expend
precious resources monitoring, challenging, and litigating any
potential election-related issue hoping that a court might act on
an issue that may very well not be ripe. Moreover, it would be
nonsensical for a candidate, or worse, a disenfranchised voter, to
challenge an election law. Thus, the majority's new rule does not
prevent "needless litigation"; it spawns it in the form of
preventative lawsuits to address any possible infraction of our
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election laws. We have the opportunity to answer important legal
questions now and should do so.
¶134 Similarly, the majority claims by not analyzing the law
it is bolstering public confidence. I disagree. As explained,
the American public has serious questions about the previous
election. See supra, ¶23 n.4. Instead of addressing these serious
questions, the majority balks and says some other party can bring
a suit at a later date. See majority op., ¶31 n.11. Lawsuits are
expensive and time-consuming and require that the person bringing
one has a claim. These issues are presented here before us today.
If they are important enough to answer at a later date, they are
important to answer in this pending lawsuit today. Addressing the
merits of this case would bolster confidence in this election and
future elections. Even if the court does not conclude that relief
should be granted, this lawsuit is the opportunity to declare what
the law is——which is our constitutional duty——and will help the
public have confidence in the election that just occurred and
confidence in future elections. An opinion of this court on the
merits would prevent any illegal or impermissible actions of
election officials going forward. See Roggensack, C.J., dissent,
supra; Rebecca Grassl Bradley, J., dissent, infra. Accordingly,
I fail to see how addressing the merits in this case would
undermine confidence in the election results. If anything,
addressing the merits will reassure the people of Wisconsin and
our nation that our elections comport with the law and to the
extent that the legislature might need to act, it is clear where
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the law might be that needs correction. The court's indecision
creates less, not more clarity.
¶135 The majority's decision not to address the merits
suffers from an even more insidious flaw——it places the will of
this court and the will of the Wisconsin Elections Commission above
the express intent of the legislature. The majority uses the
potential remedy, striking votes, as an equitable reason to deny
this case. Majority op., ¶31. But the majority ignores that the
legislature specifically set forth a remedy that absentee ballots
cast in contravention of the statute not be counted. See Wis.
Stat. § 6.84(2). When the law is not followed, the counting of
illegal ballots effectively disenfranchises voters. This past
election, absentee voting was at an extraordinarily high level.5
Perhaps this is why it mattered more now than ever that the law be
followed. Also this might explain why the process has not been
objected to before in the form of a lawsuit like this one. The
majority gives virtually no consideration to this fact.
¶136 Despite the fact that the majority relies on laches to
not declare the law in nearly all respects of the challenges
raised, it nonetheless segregates out the indefinitely confined
voter claim to analyze. Notably absent is any explanation why
this claim is not treated like the other challenges.
¶137 Therefore, the majority's application of laches here is
unfortunate and doomed to create chaos, uncertainty, undermine
confidence and spawn needless litigation. Instead of declaring
5 In 2016, 830,763 electors voted using absentee ballots. In
2020, 1,957,514 electors voted using absentee ballots.
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what the law is, the majority is legislating its preferred policy.
It disenfranchises those that followed the law in favor of those
who acted in contravention to it. This is not the rule of law; it
is the rule of judicial activism through inaction.
III. CONCLUSION
¶138 As I would not apply laches in the case at issue and
instead would analyze the statutes and available remedies as well
as the actions of the Wisconsin Elections Commission, I
respectfully dissent.
¶139 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK and Justice REBECCA GRASSL BRADLEY join this
dissent.
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¶140 REBECCA GRASSL BRADLEY, J. (dissenting). Once again,
the majority of the Wisconsin Supreme Court wields the
discretionary doctrine of laches as a mechanism to avoid answering
questions of law the people of Wisconsin elected us to decide.
Although nothing in the law compels its application, this majority
routinely hides behind laches in election law cases no matter when
a party asserts its claims. Whether election officials complied
with Wisconsin law in administering the November 3, 2020 election
is of fundamental importance to the voters, who should be able to
rely on the advice they are given when casting their ballots.
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.
I
¶141 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." State v. Kohler, 200 Wis. 518, 228
N.W. 895, 906 (1930) (emphasis added). The Wisconsin Elections
1
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Commission (WEC) possesses no authority to prescribe the manner of
conducting elections; rather, this legislatively-created body is
supposed to administer and enforce Wisconsin's election laws. Wis.
Stat. §§ 5.05(1) and (2m). While WEC may not create any law, it
may "[p]romulgate rules under ch. 227 . . . for the purpose of
interpreting or implementing the laws regulating the conduct of
elections . . . ." Wis. Stat. § 5.05(1)(f) (emphasis added). It
is undisputed that the advice rendered by WEC was not promulgated
by rule but took the form of guidance. "A guidance document does
not have the force of law." Wis. Stat. § 227.112(3). WEC's
guidance documents are merely "communications about the law——they
are not the law itself." Serv. Employees Int'l Union, Local 1 v.
Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38, 946 N.W.2d 35. The majority
casts aside this black letter law, choosing to apply the majority's
subjective concept of "equity" in order to reach the outcome it
desires.1 In doing so, the majority commits grave error by
according WEC guidance the force of law.
¶142 Chapters 5 through 12 of the Wisconsin Statutes contain
the state's enacted election laws. Section 5.01(1) states that
"[e]xcept 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." This
1 During oral arguments in this case, Justice Jill J. Karofsky
made the following statement (among others) to the President's
attorney: "You want us to overturn this election so that your
king can stay in power, and that is so un-American." When a
justice displays such overt political bias, the public's
confidence in the integrity and impartiality of the judiciary is
destroyed.
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substantial compliance provision does not apply to absentee
balloting procedures, however: "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." Wis.
Stat. § 6.84(2) (emphasis added).
¶143 "Section 6.84(2)'s strict construction requirement,
applicable to statutes relating to the absentee ballot process, is
consistent with the guarded attitude with which the legislature
views that process." Lee v. Paulson, 2001 WI App 19, ¶¶7-8, 241
Wis. 2d 38, 623 N.W.2d 577. The legislature expressed its "guarded
attitude" toward absentee balloting in no uncertain terms, drawing
a sharp distinction between ballots cast in person versus those
cast absentee: "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)
(emphasis added). While the ascertainable will of the election-
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day voter may prevail over a "failure to fully comply" with "some
of" the provisions governing conventional voting (§ 5.01), any
"[b]allots cast in contravention of" the law's absentee balloting
procedures "may not be counted." Wis. Stat. § 6.84(2). This court
has long recognized that in applying Wisconsin's election laws,
"an act done in violation of a mandatory provision is void."
Sommerfeld v. Bd. of Canvassers of City of St. Francis, 269 Wis.
299, 303, 69 N.W.2d 235 (1955) (emphasis added) (citation omitted).
¶144 In order "to prevent the potential for fraud or abuse"
associated with absentee voting, the legislature requires the laws
governing the absentee balloting process to be followed. Wis.
Stat. § 6.84(1). If an absentee ballot is cast "in contravention"
of the absentee balloting procedures, it "may not be counted."
Wis. Stat. § 6.84(2). If an absentee ballot is counted "in
contravention" of the absentee balloting procedures, it "may not
be included in the certified result of any election." Id. Long
ago, this court understood that "we are obliged to conclude that
if absentee ballots are improperly delivered in contravention of
[Wisconsin's statutes], the Board of Canvassers is under duty to
invalidate and not include such ballots in the total count, whether
they are challenged at the election, or not." Olson v. Lindberg,
2 Wis. 2d 229, 238, 85 N.W.2d 775 (1957) (emphasis added).
Accordingly, if absentee ballots were counted in contravention of
the law, the people of Wisconsin, through their elected
representatives, have commanded the board(s) of canvassers to
exclude those absentee ballots from the total count, independent
of any legal challenge an aggrieved candidate may (or may not)
bring.
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¶145 The majority carelessly accuses the President of asking
this court to "disenfranchise" voters. Majority op., ¶27; Justices
Rebecca Frank Dallet's and Jill J. Karofsky's concurrence, ¶33.
In the election context, "disenfranchise" means to deny a voter
the right to vote.2 Under Article III, Section 1 of the Wisconsin
Constitution, "[e]very 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." This court possesses no authority to
remove any qualified elector's constitutionally-protected right to
vote. But it is not "disenfranchisement" to uphold the law. "It
is true that the right of a qualified elector to cast his ballot
for the person of his choice cannot be destroyed or substantially
impaired. However, the legislature has the constitutional power
to say how, when and where his ballot shall be cast . . . ." State
ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 472,
37 N.W.2d 473, 480 (1949). And the judiciary has the
constitutional responsibility to say whether a ballot was cast in
accordance with the law prescribed by the people's
representatives.
¶146 Each of the President's legal claims challenge the
counting of certain absentee ballots, which the President argues
were cast in contravention of the Wisconsin Statutes. The majority
misconstrues Wisconsin law in asserting that "[t]hese issues could
have been brought weeks, months, or even years earlier." Majority
op., ¶30. Section 9.01(11) of the Wisconsin Statutes provides
2 Disenfranchise: "To deprive (someone) of a right, esp. the
right to vote; to prevent (a person or group of people) from having
the right to vote. — Also termed disfranchise." Disenfranchise,
Black's Law Dictionary (11th ed. 2019).
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that "[t]his section constitutes the exclusive judicial remedy for
testing the right to hold an elective office as the result of an
alleged irregularity, defect or mistake committed during the
voting or canvassing process." Only a "candidate voted for at any
election who is an aggrieved party" may bring an action under
Chapter 9. Wis. Stat. § 9.01(1)(a). Surely the majority
understands the absurdity of suggesting that the President should
have filed a lawsuit in 2016 or anytime thereafter. Why would he?
He was not "an aggrieved party"——he won. Obviously, the President
could not have challenged any "irregularity, defect or mistake
committed during the voting or canvassing process" related to the
November 3, 2020 election until that election occurred.
¶147 The respondents recognize that under Chapter 9, the
"purpose of a recount . . . is to ensure that the voters, clerks
and boards of canvassers followed the rules in place at the time
of the election." Misunderstanding what the governing rules
actually are, the respondents argue that having this court declare
the law at this point would "retroactively change the rules" after
the election. Justice Brian Hagedorn embraces this argument, using
a misapplied football metaphor that betrays the majority's
contempt for the law: "the [President's] campaign is challenging
the rulebook adopted before the season began." Majority op., ¶32.
Justices Rebecca Frank Dallet and Jill J. Karofsky endorse the
idea that this court should genuflect before "the rules that were
in place at the time." Justices Dallet's and Karofsky's
concurrence, ¶34. 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——
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and election officials are bound to follow the law, if we are to
be governed by the rule of law, and not of men.
¶148 As the foundation for one of the President's claims,
Wis. Stat. § 6.87(6d) provides that "[i]f a certificate is missing
the address of a witness, the ballot may not be counted." The
only statutorily-prescribed means to correct that error is for the
clerk to "return the ballot to the elector, inside the sealed
envelope when an envelope is received, together with a new envelope
if necessary, whenever time permits the elector to correct the
defect and return the ballot within the period authorized." Wis.
Stat. § 6.87(9). Contrary to Wisconsin law, WEC guidance says
"the clerk should attempt to resolve any missing witness address
information prior to Election Day if possible, and this can be
done through reliable information (personal knowledge, voter
registration information, through a phone call with the voter or
witness)."3 WEC's "Election Administration Manual for Wisconsin
Municipal Clerks" erroneously provides that "[c]lerks may add a
missing witness address using whatever means are available. Clerks
should initial next to the added witness address."4 Nothing in
the election law statutes permits a clerk to alter witness address
information. WEC's guidance in this regard does not administer or
enforce the law; it flouts it.
Memorandum from Meagan Wolfe to Wisconsin County
3 and
Municipal Clerks (Oct. 19, 2020), at
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
10/Spoiling%20Ballot%20Memo%2010.2020.pdf.
Wisconsin Elections Commission, Election Administration
4
Manual for Wisconsin Municipal Clerks (Sept. 2020), at
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
10/Election%20Administration%20Manual%20%282020-09%29.pdf.
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II
¶149 Under the Wisconsin Constitution, "all governmental
power derives 'from the consent of the governed' and government
officials may act only within the confines of the authority the
people give them. Wis. Const. art. I, § 1." Wis. Legislature v.
Palm, 2020 WI 42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca
Grassl Bradley, J., concurring). The confines of the authority
statutorily conferred on the WEC limit its function to
administering and enforcing the law, not making it. 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." 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) (emphasis in original). Allowing any person,
or unelected commission of six, to be "bound by no law or
limitation but his own will" defies the will of the people. Id.
¶150 The judiciary is constitutionally compelled to safeguard
the will of the people by interpreting and applying the laws duly
enacted by the people's representatives in the legislature. "A
democratic state must therefore have the power to . . . prevent
all those practices which tend to subvert the electorate and
substitute for a government of the people, by the people and for
the people, a government guided in the interest of those who seek
to pervert it." State v. Kohler, 200 Wis. 518, 228 N.W. 895, 905
(1930). The majority's abdication of its judicial duty to apply
the election laws of this state rather than the WEC's "rulebook"
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precludes any legislative recourse short of abolishing the WEC
altogether.
¶151 While some will either commend or condemn the court's
decision in this case based upon its impact on their preferred
candidate, the importance of this case transcends the results of
this particular election. "A correct solution of the questions
presented is of far greater importance than the personal or
political fortunes of any candidate, incumbent, group, faction or
party. We are dealing here with laws which operate in the
political field——a field from which courts are inclined to hold
aloof——a field with respect to which the power of the Legislature
is primary and is limited only by the Constitution itself." Id.
The majority's decision fails to recognize the primacy of the
legislative power to prescribe the rules governing the privilege
of absentee voting. Instead, the majority empowers the WEC to
continue creating "the rulebook" for elections, in derogation of
enacted law.
¶152 "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 hesitate, when the opportunity is
offered, to test them by the strictest legal standards." State v.
Conness, 106 Wis. 425, 82 N.W. 288, 289 (1900). Instead of
determining whether the November 3, 2020 election was conducted in
accordance with the legal standards governing it, the majority
denies the citizens of Wisconsin any judicial scrutiny of the
election whatsoever. "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
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concern but our prompt action." State ex rel. Zignego v. Wis.
Elec. Comm'n, 2020AP123-W (S. Ct. Order issued June 1, 2020
(Rebecca Grassl Bradley, J., dissenting)). The majority instead
belittles the President's claims of law violations as merely
"technical issues that arise in the administration of every
election." Majority op., ¶31. The people of Wisconsin deserve a
court that respects the laws that govern us, rather than treating
them with such indifference.
¶153 "Confidence in the integrity of our electoral processes
is essential to the functioning of our participatory democracy."
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). The majority takes a
pass on resolving the important questions presented by the
petitioners in this case, thereby undermining the public's
confidence in the integrity of Wisconsin's electoral processes not
only during this election, but in every future election.
Alarmingly, the court's inaction also signals to the WEC that it
may continue to administer elections in whatever manner it chooses,
knowing that the court has repeatedly declined to scrutinize its
conduct. Regardless of whether WEC's actions affect election
outcomes, the 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.
"Only . . . the supreme court can provide the necessary clarity to
guide all election officials in this state on how to conform their
procedures to the law" going forward. State ex rel. Zignego v.
Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13,
2020 (Rebecca Grassl Bradley, J., dissenting)).
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¶154 This case represents only the majority's latest evasion
of a substantive decision on an election law controversy.5 While
the United States Supreme Court has recognized that "a state
indisputably has a compelling interest in preserving the integrity
of its election process[,]" Burson v. Freeman, 504 U.S. 191, 199
(1992), the majority of this court repeatedly demonstrates a lack
of any interest in doing so, offering purely discretionary excuses
like laches, or no reasoning at all. This year, the majority in
Hawkins v. WEC declined to hear a claim that the WEC unlawfully
kept the Green Party's candidates for President and Vice President
off of the ballot, ostensibly because the majority felt the
candidates' claims were brought "too late."6 But when litigants
have filed cases involving voting rights well in advance of
Wisconsin elections, the court has "take[n] a pass" on those as
well, thereby unfailingly and "irreparably den[ying] the citizens
of Wisconsin a timely resolution of issues that impact voter rights
and the integrity of our elections." State ex rel. Zignego v.
Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13,
5 Hawkins v. WEC, 2020 WI 75, ¶¶84, 86, 393 Wis. 2d 629, 948
N.W.2d 877 (Rebecca Grassl Bradley, J., dissenting) ("The majority
upholds the Wisconsin Elections Commission's violation of
Wisconsin law, which irrefutably entitles Howie Hawkins and Angela
Walker to appear on Wisconsin's November 2020 general election
ballot as candidates for President and Vice President of the United
States . . . . In dodging its responsibility to uphold the rule
of law, the majority ratifies a grave threat to our republic,
suppresses the votes of Wisconsin citizens, irreparably impairs
the integrity of Wisconsin's elections, and undermines the
confidence of American citizens in the outcome of a presidential
election.").
6 Hawkins v. Wis. Elec. Comm'n, 2020 WI 75, ¶5, 393
Wis. 2d 629, 948 N.W.2d 877 (denying the petition for leave to
commence an original action).
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2020 (Rebecca Grassl Bradley, J., dissenting)). Having neglected
to identify any principles guiding its decisions, the majority
leaves Wisconsin's voters and candidates guessing as to when,
exactly, they should file their cases in order for the majority to
deem them worthy of the court's consideration on the merits.
¶155 The consequence of the majority operating by whim rather
than law is to leave the interpretation of multiple election
statutes in flux——or worse yet, in the hands of the unelected
members of the WEC. "To be free is to live under a government by
law . . . . Miserable is the condition of individuals, danger is
the condition of the state, if there is no certain law, or, which
is the same thing, no certain administration of the law[.]"
Judgment in Rex v. Shipley, 21 St Tr 847 (K.B. 1784) (Lord
Mansfield presiding) (emphasis added). The Wisconsin Supreme
Court has an institutional responsibility to interpret law——not
for the benefit of particular litigants, but for citizens we were
elected to serve. Justice for the people of Wisconsin means
ensuring the integrity of Wisconsin's elections. A majority of
this court disregards its duty to the people of Wisconsin, denying
them justice.
* * *
¶156 "This great source of free government, popular election,
should be perfectly pure." Alexander Hamilton, Speech at New York
Ratifying Convention (June 21, 1788), in Debates on the Federal
Constitution 257 (J. Elliot ed. 1876). The majority's failure to
act leaves an indelible stain on our most recent election. It
will also profoundly and perhaps irreparably impact all local,
statewide, and national elections going forward, with grave
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consequence to the State of Wisconsin and significant harm to the
rule of law. Petitioners assert troubling allegations of
noncompliance with Wisconsin's election laws by public officials
on whom the voters rely to ensure free and fair elections. It is
our solemn judicial duty to say what the law is. The majority's
failure to discharge its duty perpetuates violations of the law by
those entrusted to administer it. I dissent.
¶157 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK and Justice ANNETTE KINGSLAND ZIEGLER join this
dissent.
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