Timothy Zignego v. Wisconsin Elections Commission ( 2021 )

2021 WI 32SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2397 & 2020AP112
COMPLETE TITLE: State of Wisconsin ex rel. Timothy Zignego,
David W. Opitz and Frederick G. Luehrs, III,
Plaintiffs-Respondents-Petitioners,
v.
Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean
Knudsen and Mark Thomsen,
Defendants-Appellants.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 391 Wis. 2d 441,941 N.W.2d 284PDC No:2020 WI App 17 - Published
OPINION FILED: April 9, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 29, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Paul V. Malloy
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, DALLET, and KAROFSKY,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which ZIEGLER, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-respondents-petitioners, there were
briefs filed by Lucas T. Vebber, Richard M. Esenberg, Brian
McGrath, Anthony LoCoco, and Wisconsin Institute for Law &
Liberty, Milwaukee. There was an oral argument by Richard M.
Esenberg.
For the defendants-appellants, there was a brief filed by
Karla Z. Keckhaver, Steven C. Kilpatrick, and Colin T. Roth,
assistant attorneys general; with whom on the brief was Joshua
L. Kaul, attorney general. There was an oral argument by Joshua
L. Kaul.
An amicus curiae brief was filed on behalf of Felicia
Ellzey, Marangelly Quintana Feliciano, Jennifer Hagen & SEIU
Wisconsin State Council by Jeffrey A. Mandell, Kurt M. Simatic,
and Stafford Rosenbaum LLP, Madison; with whom on the brief was
Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee.
An amicus curiae brief was filed on behalf of League of
Women Voters of Wisconsin by Douglas M. Poland and Rathje
Woodward LLC, Madison; with whom on the brief was Jon Sherman
and Fair Elections Center, Washington, District of Columbia.
An amicus curiae brief was filed on behalf of The Public
Interest Legal Foundation by Eric J. Hatchell and Foley &
Lardner LLP, Madison; with whom on the brief was Kaylan Phillips
and Public Interest Legal Foundation, Indianapolis, Indiana.
2
2021 WI 32NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2019AP2397 & 2020AP112
(L.C. No. 2019CV449)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Timothy Zignego,
David W. Opitz and Frederick G. Luehrs, III,
Plaintiffs-Respondents-Petitioners, FILED
v.
APR 9, 2021
Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean Sheila T. Reiff
Clerk of Supreme Court
Knudsen and Mark Thomsen,
Defendants-Appellants.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, DALLET, and KAROFSKY,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which ZIEGLER, J., joined.
REVIEW of a decision of the Court of Appeals. Modified,
and as modified, affirmed and cause remanded.
¶1 BRIAN HAGEDORN, J. Wisconsin law requires that its
statewide voter registration list be updated regularly. Before
us is a dispute over one kind of voter-registration cleanup
prescribed by law: a statute requiring that the registration
status of eligible voters ("electors" in the words of the
statute) be changed when officials receive reliable information
Nos. 2019AP2397 & 2020AP112
that the elector moved out of their municipality. Wis. Stat.
§ 6.50(3) (2017-18).1 This case does not concern the validity of
this law or whether it should be complied with. Instead, the
question we address today is whether § 6.50(3) places a positive
and plain duty on the Wisconsin Elections Commission (the
"Commission") to do what the law requires. We conclude it does
not.
¶2 Wisconsin Stat. § 6.50(3) directs "the municipal clerk
or board of election commissioners" to act when they receive
"reliable information that a registered elector has changed his
or her residence to a location outside of the municipality." In
particular, "the municipal clerk or board of election
commissioners" must send a letter regarding the move to the
elector, and if the registered elector does not respond within
30 days, the "clerk or board of election commissioners shall
change the elector's registration from eligible to ineligible
status." § 6.50(3).
¶3 With limited exceptions, the judicial branch
ordinarily does not order the executive branch to do its job.
One limited vehicle by which it may do so is what is called a
writ of mandamus. This is a remedy whereby a court may order a
specific actor to take a certain action; but a court may do this
only when the duty is positive and plain. The petitioners2 in
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated.
The petitioners in this case are Timothy Zignego, David W.
2
Opitz, and Frederick G. Luehrs, III, all of whom are registered
electors and taxpayers in Wisconsin.
2
Nos. 2019AP2397 & 2020AP112
this case (collectively, "Zignego") sought a writ of mandamus
against the Commission and its commissioners3 to carry out the
commands of Wis. Stat. § 6.50(3) and change the registration of
electors who may have moved. The circuit court4 granted the
writ, and later found the Commission and several commissioners
in contempt after the Commission failed to comply.
¶4 The court of appeals reversed, concluding the writ of
mandamus was granted in error, and we agree. Under Wis. Stat.
§ 6.50(3), the responsibility to change the registration of
electors who may have moved out of their municipality is given
to "the municipal clerk or board of election commissioners."
Zignego argues that the Commission is a "board of election
commissioners." This is plainly incorrect. Our election laws
tell us how they will refer to the Commission: by use of the
term "commission" (or occasionally "elections commission").
Wis. Stat. § 5.025. The "board of election commissioners"
refers to a different kind of entity under our laws, one whose
province is local. See Wis. Stat. §§ 7.20, 7.21, 7.22. In
short, Zignego's argument that the Commission is required to
carry out the mandates of § 6.50(3) is contrary to what the
The respondents are the Wisconsin Elections Commission and
3
Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen, and
Mark Thomsen, five of the six commissioners sued solely in their
official capacities. The sixth commissioner at the time of
these events was Jodi Jensen, but she resigned prior to the
initiation of this suit and her successor is not named as a
party to this case.
The Honorable
4 Paul V. Malloy, Ozaukee County Circuit
Court, presiding.
3
Nos. 2019AP2397 & 2020AP112
statute says because the statute assigns its duties to municipal
election officials. The Commission has no statutory obligation,
and therefore no positive and plain duty, to carry out the
requirements of § 6.50(3). The circuit court therefore erred by
issuing a writ of mandamus ordering it to do so.
¶5 The circuit court's contempt order against the
Commission and several of its commissioners likewise must be
reversed. The contempt order imposed remedial sanctions aimed
at present and future compliance with the writ——a daily
forfeiture beginning the date the contempt order was signed.
But remedial sanctions cannot remain for failure to obey what we
have determined was an unlawful writ of mandamus. That said,
while we reverse the contempt order, we remind the Commission
that waiting for an appellate court to grant a stay or reverse a
circuit court order it disagrees with does not justify ignoring
that order.
¶6 In sum, while Wis. Stat. § 6.50(3) requires that the
registration status be changed for those who move out of their
municipality, it gives this responsibility to municipal election
officials, not to the Commission. Therefore, we affirm5 the
decision of the court of appeals reversing the circuit court's
writ of mandamus and contempt orders.
5While we affirm the underlying decision of the court of
appeals to reverse both orders issued by the circuit court, we
withdraw portions of the court of appeals decision, as explained
below.
4
Nos. 2019AP2397 & 2020AP112
I. BACKGROUND
¶7 The issues in this case arose when the Commission
received a "movers report" from the Electronic Registration
Information Center, Inc. (ERIC), a multi-state consortium
created to improve the accuracy of voter registration systems.
This report identifies currently registered voters who may no
longer be eligible to vote at their registered address because
they either died or moved. After receiving the report, the
Commission conducted internal vetting and, in October 2019, sent
notices to approximately 230,000 Wisconsin voters who the report
suggested may no longer reside at their registered address.
These notices informed the recipients that they could affirm
their address by: (1) doing so at myvote.wi.gov; (2) returning
the attached postcard to their municipal clerk; or (3) voting at
the next election.
¶8 Less than two weeks after the notices were mailed,
Zignego filed a verified complaint with the Commission pleading
that the Commission deactivate non-responsive electors pursuant
to the 30-day timeframe outlined in Wis. Stat. § 6.50(3). The
Commission dismissed this complaint without prejudice as
untimely filed, in part because the Commission considered and
discussed the mailings at its meetings in March and June of
2019.
¶9 Zignego then filed suit against the Commission and
five of its commissioners seeking a declaration and temporary
and permanent injunctive relief, or in the alternative, a writ
of mandamus. The circuit court conducted a hearing on December
5
Nos. 2019AP2397 & 2020AP112
13, 2019, and orally ruled that a writ of mandamus would issue
ordering the Commission to comply with Wis. Stat. § 6.50(3).
The written mandamus order followed shortly thereafter
compelling the Commission to "deactivate the registration of
those electors who have failed to apply for continuation of
their registration within 30 days of the date the notice was
mailed."
¶10 The issuance of the writ of mandamus triggered a
flurry of filings appealing the order to the court of appeals,
petitioning for bypass to this court, and seeking a stay. The
Commission, however, took no action to comply with the writ.
Zignego followed with a motion asking the circuit court to hold
the Commission and its commissioners in contempt. On January
13, 2020, the circuit court conducted a hearing and found the
Commission and several commissioners in contempt. The court
imposed, as a remedial sanction, a forfeiture of $50 per day
against the Commission and a forfeiture of $250 per day against
each of the three commissioners who voted to take no action to
comply with the writ.6
¶11 That same day, the Commission filed a notice of appeal
with respect to the contempt order and moved for a stay. Also
on the same day, this court denied Zignego's petition for
bypass. The next morning, the court of appeals stayed both the
The Commission met on December 16, 2019, and considered a
6
motion to comply with the circuit court's mandamus order, but
that motion failed in a 3-3 vote. The Commission met again on
December 30, 2019, and once more took no action to comply with
the mandamus order.
6
Nos. 2019AP2397 & 2020AP112
contempt order and the writ of mandamus, explaining that the
court's reasoning would be set forth in a subsequent order. A
week later, the court of appeals issued its opinion and reversed
the circuit court's writ of mandamus and contempt orders. State
ex rel. Zignego v. WEC, 2020 WI App 17, 391 Wis. 2d 441, 941
N.W.2d 284. Zignego petitioned this court for review, which we
granted.
II. DISCUSSION
¶12 The dispositive question in this case is whether the
Commission can be ordered to carry out the requirements of Wis.
Stat. § 6.50(3).7 This is a question of statutory interpretation
we review de novo. Mueller v. TL90108, LLC, 2020 WI 7, ¶11, 390
Wis. 2d 34, 938 N.W.2d 566. When interpreting statutes, we
focus primarily on the language of the statute, looking as well
to its statutory context and structure. State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-46, 271
Wis. 2d 633, 681 N.W.2d 110. We begin with the broader
7 The Commission argues Zignego does not have standing or a
statutory right to bring this challenge. Because we reverse the
mandamus and contempt orders on other grounds, we need not reach
these questions.
Additionally, the Commission asserts that whether the
movers report constituted sufficiently "reliable" information
under Wis. Stat. § 6.50(3) involves a matter of judgment and
discretion, meaning action based on this data cannot be
compelled by a writ of mandamus. We also need not reach this
question, and because we need not reach this question, we
withdraw any language in the court of appeals decision deciding
this issue.
7
Nos. 2019AP2397 & 2020AP112
statutory framework, and then apply these principles to the two
orders in this case.
A. Relevant Election Statutes
1. The Actors
¶13 Unlike many places around the country, Wisconsin has a
highly decentralized system for election administration.
Jefferson v. Dane County, 2020 WI 90, ¶24 n.5, 394 Wis. 2d 602,
951 N.W.2d 556. Rather than a top-down arrangement with a
central state entity or official controlling local actors,
Wisconsin gives some power to its state election agency (the
Commission) and places significant responsibility on a small
army of local election officials. Id.; see also
https://elections.wi.gov/index.php/clerks (explaining that
Wisconsin's 1,850 municipal clerks and 72 county clerks are each
"a partner in the process of carrying out open, fair and
transparent elections").
¶14 We begin in the same way the election statutes begin——
by defining who the main actors are in this delicate democratic
dance. The statutes regularly refer to and largely define three
primary actors for our purposes here: (1) a "municipal clerk";
(2) a "board of election commissioners"; and (3) "the
commission."
¶15 "Municipality" under the election statutes (chapters 5
through 12) refers to cities, towns, or villages. Wis. Stat.
§ 5.02(11). Consistent with this local focus, a "municipal
clerk" is also a defined term in our election laws, and it
8
Nos. 2019AP2397 & 2020AP112
"means the city clerk, town clerk, village clerk and the
executive director of the city election commission and their
authorized representatives." § 5.02(10). Municipal clerks are
the officials primarily responsible for election administration
in Wisconsin. As an instructional manual the Commission
provides to municipal clerks explains:
Elections in the State of Wisconsin are conducted at
the local level. As a municipal clerk you are
entrusted with the responsibility of ensuring fair,
accessible, and transparent elections. Our job at the
Wisconsin Elections Commission (WEC) is to provide you
with a range of resources to support you in carrying
out your duties.[8]
Our election laws give municipal clerks a vast array of duties
and responsibilities consistent with their primary role in
running Wisconsin elections.
¶16 The second main entity is a "board of election
commissioners," whose powers, duties, and composition the
statutes separately delineate in Wis. Stat. §§ 7.20, 7.21, and
7.22. Under § 7.20, "A municipal board of election
commissioners shall be established in every city over 500,000
population," and a "county board of election commissioners shall
be established in every county over 750,000 population."
§ 7.20(1). The statutes go on to describe their makeup and
operation, including how many members a board of election
commissioners shall have, how they are selected, and how long
8Wisconsin Elections Commission, Election Administration
Manual for Wisconsin Municipal Clerks 5 (2020),
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
10/Election%20Administration%20Manual%20%282020-09%29.pdf.
9
Nos. 2019AP2397 & 2020AP112
commissioners will serve. § 7.20(2)-(7). Under § 7.21, "All
powers and duties assigned to the municipal or county clerk or
the municipal or county board of canvassers under chs. 5 to 12
shall be carried out by the municipal or county board of
election commissioners or its executive director" unless
otherwise specified. And § 7.22 gives further duties and
responsibilities to a municipal board of election commissioners.9
¶17 To translate, a board of election commissioners is
established in our high population cities and counties——at this
point, only in the City of Milwaukee and Milwaukee County——to
carry out the duties otherwise accomplished by municipal and
county clerks everywhere else.10 It should therefore come as no
surprise that the phrase "municipal clerk or board of election
commissioners" appears in tandem all over our election statutes
because this describes the duties of local election officials.
9 Zignego argues that the phrase "board of election
commissioners" is not a technical or specially-defined word or
phrase. Therefore, Zignego maintains, it must be given its
common, ordinary, and accepted meaning, which is broad enough to
include the Commission. See State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. As we have explained, however, a "board of election
commissioners" is most certainly a technical term under our
statutes. See Wis. Stat. § 990.01(1) ("[T]echnical words and
phrases and others that have a peculiar meaning in the law shall
be construed according to such meaning.").
10"'County clerk' includes the executive director of the
county board of election commissioners and their authorized
representatives." Wis. Stat. § 5.02(2). County clerks have
distinct duties and responsibilities in administering
Wisconsin's elections, several of which are provided in Wis.
Stat. § 7.10.
10
Nos. 2019AP2397 & 2020AP112
In fact, this conjoined phrasing appears dozens of times in
chapter 6 alone.11
¶18 The final entity relevant for our purposes is the
Wisconsin Elections Commission. It has a separate defined
nomenclature located in Wis. Stat. § 5.025. In chapters five
through ten and 12 of the statutes, "'commission' means the
elections commission." § 5.025.12 Hundreds of times in the
chapters following, the legislature uses either "commission" or
occasionally, "elections commission," to denote the Commission.
Immediately following this definition, Wis. Stat. § 5.05extensively lays out various powers and duties of the Commission
(other statutes add to this list). Among them, the Commission
has general responsibility for administering chapters five
through ten and 12, the power to investigate and prosecute
violations of election laws, the duty and power to issue
guidance and formal advisory opinions, and the charge to conduct
voter education programs. § 5.05(1), (2m), (2w), (5t), (6a),
(12). Of some relevance here, the Commission is also
The administrative rules also tie these two together,
11
showing that a board of election commissioners refers to a local
body. In the Commission's administrative rules chapter on voter
registration, "'Municipal clerk' has the meaning given in
[§] 5.02(10), Stats., and includes the Milwaukee city board of
election commissioners." Wis. Admin. Code § EL 3.01(8) (Feb.
2017).
This definition of "commission" in Wis. Stat. § 5.025 was
12
cited and relied on extensively by the court of appeals in its
decision, yet it was not cited even once in Zignego's principal
brief, and received only one isolated mention in its reply
brief.
11
Nos. 2019AP2397 & 2020AP112
"responsible for the design and maintenance of the official
registration list" and "shall require all municipalities to use
the list in every election." § 5.05(15).
2. The Actors' Roles
¶19 With these three primary actors in mind, the statutes
establish various duties and responsibilities for each election
entity and official, often prescribing which actor is
responsible for which action. We see this on full display in
Wis. Stat. §§ 6.27-6.57, the subchapter concerning voter
registration. A sampling of these statutes illustrates this
delegation of responsibilities.
¶20 After elections, for example, "the municipal clerk or
board of election commissioners shall submit electronically a
report to the commission" and county election officials with
information on who voted, absentee voting, and various
statistics on voter registration. Wis. Stat. § 6.275(1). All
three of our primary actors have a role under this statute. The
two local entities, the municipal clerk and the board of
elections commissioners, are directed to submit their report to
the Commission.
¶21 Under Wis. Stat. § 6.36(1)(a), the Commission "shall
compile and maintain electronically an official registration
list." But editing the list is a different matter. The laws
specify that the list must "be designed in such a way that the
municipal clerk or board of election commissioners of any
municipality . . . may, by electronic transmission, add entries
12
Nos. 2019AP2397 & 2020AP112
to or change entries on the list for any elector who resides in,
or who the list identifies as residing in, that municipality and
no other municipality." § 6.36(1)(c). Again, all three
entities are mentioned. The Commission maintains the statewide
list, but the municipal clerk or board of election commissioners
must be able to change the registration status for individuals
within their municipality.
¶22 We see this same pattern in the statutory section at
issue in this case, Wis. Stat. § 6.50, which generally governs
revisions to the voter registration list.
¶23 Subsections (1), (2), and (2g) outline a procedure
whereby those who have not voted in the previous four years are
changed to an ineligible status on the statewide registration
list. Wis. Stat. § 6.50(1), (2), (2g). After a general
election, the "commission" is required to examine the
registration records and identify non-voting electors.
§ 6.50(1). The Commission then must mail a notice that tells
the elector that their registration will be suspended unless the
elector applies for continuation within 30 days. Id. If
continuation of registration is not applied for within 30 days,
"the commission shall change the registration status of that
elector from eligible to ineligible." § 6.50(2). However, the
"commission" may delegate changing of registration statuses "to
a municipal clerk or board of election commissioners of a
municipality." § 6.50(2g). Ultimately, the statutory
responsibility to change the registration status for non-voting
electors is squarely placed on the Commission.
13
Nos. 2019AP2397 & 2020AP112
¶24 Subsection (4) defines the process for removing
deceased electors. Wis. Stat. § 6.50(4). This responsibility
is given to the "municipal clerk or board of election
commissioners." Id. Deceased electors are identified "by means
of checking vital statistics reports," and "[n]o notice need be
sent" before making these registration changes. Id.¶25 Subsection (5) requires a change of registration
status when a building is condemned, following an investigation
"by the municipal clerk or board of election commissioners."
Wis. Stat. § 6.50(5). Once again, it is "the clerk or board of
election commissioners [that] shall change the elector's
registration status." Id.¶26 As these provisions make clear, Wis. Stat. § 6.50sometimes directs the Commission to act, and other times it
directs municipal officials to do so. And pursuant to
subsection (7), "the commission, municipal clerk, or board of
election commissioners shall make an entry on the registration
list" "[w]hen an elector's registration is changed from eligible
to ineligible status" and must "giv[e] the date and reason for
the change." § 6.50(7).
¶27 While additional statutory context could be considered
to reinforce the same themes, it is time we turn our attention
to the subsection at issue here, Wis. Stat. § 6.50(3), which
provides in full:
Upon receipt of reliable information that a registered
elector has changed his or her residence to a location
outside of the municipality, the municipal clerk or
board of election commissioners shall notify the
14
Nos. 2019AP2397 & 2020AP112
elector by mailing a notice by 1st class mail to the
elector's registration address stating the source of
the information. All municipal departments and
agencies receiving information that a registered
elector has changed his or her residence shall notify
the clerk or board of election commissioners. If the
elector no longer resides in the municipality or fails
to apply for continuation of registration within 30
days of the date the notice is mailed, the clerk or
board of election commissioners shall change the
elector's registration from eligible to ineligible
status. Upon receipt of reliable information that a
registered elector has changed his or her residence
within the municipality, the municipal clerk or board
of election commissioners shall change the elector's
registration and mail the elector a notice of the
change. This subsection does not restrict the right
of an elector to challenge any registration under
[Wis. Stat. §§] 6.325, 6.48, 6.925, 6.93, or 7.52(5).
(Emphasis added.) Zignego's primary argument in this case is
that the Commission is a "board of election commissioners" under
§ 6.50(3). This argument disregards nearly every foundational
principle of statutory interpretation.
¶28 The subsection begins by focusing its attention on
electors who have changed their "residence to a location outside
of the municipality." Wis. Stat. § 6.50(3) (emphasis added).
Thus, this subsection is not an instruction to update the
registration statuses of all movers; it is only directed to
those who have moved outside their municipality. This
demonstrates the local, rather than statewide, focus of
§ 6.50(3).
¶29 In four places, Wis. Stat. § 6.50(3) provides that the
obligations imposed by this subsection apply to the municipal
clerk or the board of election commissioners. Not once does it
refer to the Commission, despite references to the "commission"
15
Nos. 2019AP2397 & 2020AP112
seven times alone in the remainder of § 6.50.13 As the
surrounding context, definitions, and text make clear, these
duties are the responsibility of municipal clerks and a
municipal board of election commissioners. The Commission has
no mandatory duties under § 6.50(3), and therefore cannot be
compelled to act under this subsection.
3. Zignego's Counter-Arguments
¶30 Zignego responds with three additional arguments, none
of which override or even challenge the plain reading of the
law.
¶31 First, Zignego contends that Wisconsin's relationship
with ERIC suggests the Commission is required to deactivate
movers pursuant to Wis. Stat. § 6.50(3). Under Wisconsin law,
Wisconsin's "chief election officer"——the "commission
The Commission was created in 2015.
13 See 2015 Wis. Act
118. Previously, the responsibility to change the registration
status of non-voting electors in Wis. Stat. § 6.50(1) and (2)
was given to the Government Accountability Board (GAB), the
Commission's predecessor. Wis. Stat. § 6.50(1), (2) (2013-14);
2015 Wis. Act 118, § 266(10). The legislature amended § 6.50
and gave the responsibility to remove non-voting electors to the
Commission, but conspicuously did not change the responsible
governmental actor under subsection (3). 2015 Wis. Act 118,
§ 266(10); see also 2015 Wis. Act 118, §§ 76, 77 (amending
§ 6.50(2g) and (7) to replace "board" with "commission"); 2015
Wis. Act 261, § 63 (amending § 6.50(3) and making no change to
the entities delegated authority). This suggests the
legislature intended to leave this power with the municipalities
as it had during the life of the GAB. The legislature's choice
to amend only part, but not all, of § 6.50 illustrates the
legislature understood the "commission" to be distinct from a
"board of election commissioners."
16
Nos. 2019AP2397 & 2020AP112
administrator"——is required to "enter into a membership
agreement with [ERIC]." Wis. Stat. § 5.05(3g), § 6.36(1)(ae)1.
And the chief election officer must "comply with the terms of
the [ERIC] agreement." § 6.36(1)(ae)2. The ERIC membership
agreement, in turn, requires the Commission to initiate contact
with electors whose "record is deemed to be inaccurate or out-
of-date." This obligation, however, is different from the one
tasked to "the municipal clerk or board of election
commissioners" under § 6.50(3). To comply with the ERIC
agreement, the Commission need only contact the electors.
Section 6.50(3), on the other hand, requires much more than
simply notifying the elector. These two moving-related
requirements do not contradict each other. The Commission's
compliance with Wisconsin's ERIC agreement and its statutory
responsibilities under § 6.36 do not require or authorize
judicial rewriting of § 6.50(3) to impose extratextual mandates
on the Commission.
¶32 Second, Zignego points to the Commission's past
practice as support for its interpretation. Although it is
unclear from the record whether the Commission thought it was
bound by Wis. Stat. § 6.50(3), it is true that the Commission
cited that subsection when it sent out notices in 2017 and
changed the registration of thousands of electors in 2018.
Before us, the Commission refused to state whether it thought
17
Nos. 2019AP2397 & 2020AP112
its actions in 2018 were lawful.14 However, even if those
actions were unlawful, the remedy for alleged executive
overreach is not a court order to continue acting unlawfully.
Simply because an agency took action in the past does not mean
its actions were legal, nor would it provide authority for this
court to mandate agency action that the law itself does not
sanction. It is the statutory text, not agency practice, that
determines what the law requires an agency to do.15
¶33 Finally, Zignego raises a new argument not raised
below——namely, that reading Wis. Stat. § 6.50(3) as the
Commission frames it puts Wisconsin's election laws in violation
of federal election law, specifically the Help America Vote Act
of 2002 (HAVA). We normally do not consider arguments not
raised in the lower courts. See Serv. Emps. Int'l Union, Loc. 1
v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. Even
so, this is a nonstarter.
The court of appeals concluded the Commission's actions
14
in 2017 and 2018 were unlawful. State ex rel. Zignego v. WEC,
2020 WI App 17, ¶90, 391 Wis. 2d 441, 941 N.W.2d 284. However,
it is unclear whether the Commission has authority to undertake
the duties in Wis. Stat. § 6.50(3) on municipalities' behalf
based on some other statutory provision; the parties did not
brief this question. Therefore, we do not opine on whether any
other statutory sections may prove relevant in determining what
the Commission may do. The question before us is simply what it
must do under § 6.50(3). Accordingly, we withdraw the language
from the court of appeals opinion which concludes the
Commission's actions in 2017 and 2018 were unlawful.
Moreover, we do not defer to an agency's conclusion of
15
law. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 108, 382
Wis. 2d 496, 914 N.W.2d 21.
18
Nos. 2019AP2397 & 2020AP112
¶34 As an initial matter, to the extent the assertion is
that federal law conflicts with state law, that raises a
different kind of analysis, possibly implicating preemption.
See Town of Delafield v. Cent. Transp. Kriewaldt, 2020 WI 61,
¶¶5-7, 392 Wis. 2d 427, 944 N.W.2d 819 (setting out preemption
principles). No such arguments have been made here.
¶35 And on the merits, Zignego's argument lacks any sound
basis. HAVA requires each state to implement "a single,
uniform, official, centralized, interactive computerized
statewide voter registration list defined, maintained, and
administered at the State level." 52 U.S.C. § 21083(a)(1)(A).
Wisconsin has done so; the Commission created and maintains the
voter registration list. See Wis. Stat. § 5.05(15). Nothing
about this arrangement precludes assigning local officials
responsibility to make certain changes to the list. See Wis.
Stat. § 6.36(1)(c). Not only does Wisconsin law require that
local officials be allowed to make changes to the list, HAVA
does too. 52 U.S.C. § 21083(a)(1)(A)(v)-(vii) (explaining that
local election officials must be able to access and update the
list).
¶36 Additionally, under HAVA, states not subject to the
National Voter Registration Act——and Wisconsin is not16——"shall
remove the names of ineligible voters from the computerized list
in accordance with State law." 52 U.S.C. § 21083(a)(2)(A)(iii).
Wisconsin is not subject to National Voter Registration
16
Act of 1993 (NVRA) because it has election-day registration. 52
U.S.C. § 20503(b)(2); Wis. Stat. § 6.55(2).
19
Nos. 2019AP2397 & 2020AP112
Thus, HAVA provides that Wisconsin is to look to its own state
law to ascertain how ineligible voters are removed from the
statewide computerized list. In other words, HAVA simply points
us back to Wisconsin law, which, as we have explained, is clear.
Nothing in HAVA mandates the atextual reading Zignego advocates.
¶37 In short, according to the plain meaning supported by
its statutory context, "board of election commissioners" under
Wis. Stat. § 6.50(3) does not include the Commission. The
Commission has no mandatory duties under this provision. We now
apply this understanding to the two orders before us.
B. Writ of Mandamus
¶38 The circuit court granted a writ of mandamus based on
its interpretation that Wis. Stat. § 6.50(3) gave mandatory
duties to the Commission. This court has previously described
the basic principles of mandamus as follows:
Mandamus is an extraordinary legal remedy, available
only to parties that can show that the writ is based
on a clear, specific legal right which is free from
substantial doubt. A party seeking mandamus must also
show that the duty sought to be enforced is positive
and plain; that substantial damage will result if the
duty is not performed; and that no other adequate
remedy at law exists.
This court will uphold a trial court's granting or
denying a writ of mandamus unless the judge
erroneously exercised discretion. A judge's
discretion in issuing a writ of mandamus is
erroneously exercised if based on an erroneous
understanding of the law.
20
Nos. 2019AP2397 & 2020AP112
Lake Bluff Hous. Partners v. City of South Milwaukee, 197
Wis. 2d 157, 170, 540 N.W.2d 189 (1995) (citations and
quotations omitted).
¶39 As the preceding analysis makes clear, Wis. Stat.
§ 6.50(3) does not give any duty to the Commission, much less a
positive and plain duty. Therefore, the writ of mandamus
compelling the Commission to comply with § 6.50(3) was
erroneously granted and must be reversed.17
C. Contempt
¶40 The circuit court also found the Commission and
several commissioners in contempt for failing to comply with the
writ of mandamus. The "purpose of contempt is to uphold the
authority and dignity of the court." Carney v. CNH Health &
Welfare Plan, 2007 WI App 205, ¶20, 305 Wis. 2d 443, 740
The dissent agrees that the argument presented to us by
17
Zignego is incorrect; Wis. Stat. § 6.50(3) does not impose a
duty on the Commission. See dissent, ¶52. Instead, the dissent
crafts a new argument on Zignego's behalf. In essence, the
dissent argues that the statutory duty of the Commission to
create, maintain, and administer Wisconsin's voter registration
list means the Commission is responsible to ensure every law
related to that list is carried out——whether the Commission is
statutorily assigned the responsibility or not. Taking this
argument further, the dissent concludes a court can order the
Commission to carry out these duties through a writ of mandamus
whenever a municipal clerk or board of election commissioners
fails to fulfill a statutory duty assigned to these local
election officials. This would be a rather remarkable expansion
of the Commission's powers and responsibilities. More to the
point, it bears no resemblance to our election administration
laws that give the Commission more limited duties, as we have
explained at length.
21
Nos. 2019AP2397 & 2020AP112
N.W.2d 625. A party may be found in contempt for, among other
things, "intentional . . . [d]isobedience, resistance or
obstruction of the authority, process or order of a court."
Wis. Stat. § 785.01(1)(b); see also Ash Park, LLC v. Alexander &
Bishop, Ltd., 2010 WI 44, ¶78, 324 Wis. 2d 703, 783 N.W.2d 294("A party's unwillingness to obey a court order is the very
definition of contempt.").
¶41 When a party is found in contempt the court may impose
either punitive or remedial sanctions. Wis. Stat. § 785.02;
Carney, 305 Wis. 2d 443, ¶24. A punitive sanction is "imposed
to punish a past contempt of court for the purpose of upholding
the authority of the court," while a remedial sanction is
"imposed for the purpose of terminating a continuing contempt of
court." § 785.01(2)-(3).
¶42 Here, the circuit court imposed remedial sanctions.
That is, the court ordered the Commission and certain
commissioners who voted to take no action to comply with the
writ to pay a prospective daily forfeiture to force compliance.
The very next morning, the court of appeals stayed both the
mandamus and contempt orders, and issued its decision reversing
both orders promptly thereafter. Because we agree with the
court of appeals that the writ of mandamus must be reversed, we
must necessarily reverse the contempt order on which it was
based as well. Remedial sanctions may not be imposed when a
party is no longer in contempt of court. See Christensen v.
Sullivan, 2009 WI 87, ¶¶54-55, 320 Wis. 2d 76, 768 N.W.2d 798.
Zignego does not argue otherwise.
22
Nos. 2019AP2397 & 2020AP112
¶43 That said, we remind the Commission that its duty to
comply with the circuit court's writ of mandamus was not
relieved simply by seeking a stay before an appellate court.18
See Tensfeldt v. Haberman, 2009 WI 77, ¶41, 319 Wis. 2d 329, 768
N.W.2d 641 ("If a person to whom a court directs an order
believes that order is incorrect the remedy is to appeal, but,
absent a stay, he must comply promptly with the order pending
appeal." (quoted source omitted)). Nevertheless, because the
writ of mandamus was issued in error, we must affirm the court
of appeals' reversal of the circuit court's contempt order.
III. CONCLUSION
¶44 Wisconsin Stat. § 6.50(3) does not apply to the
Commission; there is no credible argument that it does.
Accordingly, the circuit court erred in granting a writ of
mandamus based on an improper interpretation of § 6.50(3), and
its contempt order cannot survive the reversal of the writ of
18 We observe the Commission promptly sought a stay of the
writ of mandamus and, upon receiving no response, renewed its
motion to stay with the court of appeals immediately following
Zignego's motion for contempt. The court of appeals held the
motion to stay in abeyance pending a decision from this court on
the petition for bypass. We denied the petition for bypass on
the same day the circuit court issued its contempt order. The
court of appeals then stayed both the mandamus and contempt
orders the next morning.
23
Nos. 2019AP2397 & 2020AP112
mandamus. We affirm as modified19 the decision of the court of
appeals, and remand the cause to the circuit court for
dismissal.20
By the Court.—The decision of the court of appeals is
modified, and affirmed as modified, and the cause is remanded to
the circuit court for dismissal.
19Specifically, we withdraw language from the court of
appeals opinion deciding the legality of the Commission's
conduct in 2017 and 2018 and the reliability of the ERIC data
because these issues are not necessary to adjudicate this case.
See supra ¶12 n.7; ¶32 n.14.
20Both causes of action the Petitioners advanced in their
underlying complaint relied on the erroneous proposition that
the "board of election commissioners" in Wis. Stat. § 6.50(3)
includes the Commission. Because we conclude § 6.50(3) does not
apply to the Commission, the Petitioners' complaint must be
dismissed.
24
Nos. 2019AP2397 & 2020AP112.rgb
¶45 REBECCA GRASSL BRADLEY, J. (dissenting).
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 vs. Shipley, 21 St Tr 847 (K.B. 1784) (Lord
Mansfield presiding) (emphasis added). For years, the Wisconsin
Elections Commission (WEC) undertook responsibility for
notifying voters of WEC's receipt of information indicating they
had moved and therefore may need to register to vote using their
new addresses. If a voter failed to confirm the validity of the
registered address, WEC removed that voter from the rolls, in
accordance with state law. In 2019, WEC decided to disregard
the law and instead delay deactivation of ineligible voters for
up to two years. The majority relieves WEC of its statutory
obligations, determining that these duties actually belong to
local election officials and not WEC. The majority's decision
leaves the administration of Wisconsin's election law in flux,
at least with respect to ensuring the accuracy of the voter
rolls.
¶46 The majority is correct that, pursuant to Wis. Stat.
§ 6.50(3), "municipal clerk[s] or board[s] of election
commissioners" have a statutory obligation to change an
elector's registration from eligible to ineligible status if an
elector has moved. In reading the election statutes in
isolation, however, the majority misses the broader picture:
under the full statutory scheme of Wisconsin's election laws,
1
Nos. 2019AP2397 & 2020AP112.rgb
WEC——the state's chief election commission——also has a statutory
obligation to change the status of ineligible voters on the
statewide voter registration list.
¶47 Wisconsin Stat. § 5.05(15) makes WEC "responsible for
the design and maintenance of the official registration list"
statewide and § 5.05(2w) gives WEC "responsibility for the
administration of chs. 5 to 10 and 12." Recognizing WEC's
responsibility to ensure the accuracy of the voter rolls ensures
the state's compliance with the federal Help America Vote Act
(HAVA), which Wisconsin is bound to follow. Reading these
statutes as a whole reveals WEC's "positive and plain duty" to
fulfill its statutory responsibility to change the status of
ineligible voters; therefore, the circuit court properly issued
a writ of mandamus——a conclusion that should come as no surprise
to WEC considering it has routinely complied with this duty for
years. The majority's circumscribed statutory interpretation
leaves WEC off the hook for its violations of Wisconsin's
election laws. I respectfully dissent.
I
¶48 Wisconsin, along with 29 other states and the District
of Columbia, participates in a multi-state consortium designed
to improve the accuracy of voter registration data, called the
Electronic Registration Information Center (ERIC). As a member,
Wisconsin provides ERIC with information concerning current
driver's licenses and State ID cards issued by the Division of
Motor Vehicles, as well as a list of currently registered voters
in WEC's records. ERIC then compares this data to state and
2
Nos. 2019AP2397 & 2020AP112.rgb
national sources, including the Social Security Administration's
Death Master List and the United States Postal Services'
National Change of Address service. The data compiled in these
sources is based upon information personally sent to these
services by individual voters. ERIC then sends WEC a
maintenance report indicating those registered voters who may no
longer be eligible to vote at their registered addresses because
they have either moved or died.
¶49 As documented in the record in this case, in 2017 ERIC
sent WEC a maintenance report showing a list of registered
voters for whom ERIC received data indicating they had moved and
were no longer eligible to vote at their listed addresses.
After reviewing this list to ensure its accuracy, WEC sent
notices to those voters asking them to confirm whether they
still lived at their registered addresses. With respect to
voters who failed to confirm their addresses, WEC marked their
registration records as ineligible and required those
individuals to re-register before voting again. These actions
demonstrate that WEC understood and embraced its duty under
Wisconsin's election laws to maintain the voter rolls.
¶50 In 2019, ERIC sent WEC another maintenance report with
a list of registered voters who ostensibly had moved. Again,
WEC vetted this information to ensure its accuracy and
subsequently sent notices to the affected voters. This time,
however, for voters who did not confirm whether they still lived
at their registered addresses, WEC did not promptly change its
records to reflect these voters' ineligibility. Instead, WEC
3
Nos. 2019AP2397 & 2020AP112.rgb
decided to delay deactivation of these voters' registrations for
up to two years, thereby knowingly permitting voters to cast
ballots in multiple elections with invalid registrations.
Wisconsin's applicable election laws had not changed.
¶51 Petitioners sued WEC and its members seeking
declaratory and injunctive relief, as well as a writ a mandamus
in order to compel WEC to comply with Wisconsin's election laws.
In response, WEC alleged that "municipal clerk[s] and local
board[s] of election commissioners" have the sole responsibility
to change the eligibility of voters who have moved. The circuit
court rejected this argument, issued a writ of mandamus, and
ordered WEC to deactivate the registrations of electors who had
moved. After a long and winding procedural road, the court of
appeals reversed this decision, and we in turn granted review of
this case.1
1Rather than resolving this issue of first impression
promptly when presented to us, on January 13, 2020, this court
rejected a petition to bypass the court of appeals, leaving
"voter rights and election integrity in flux, with no final
resolution of the uncertainty in the law likely until after four
statewide elections and one special congressional election."
State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct.
Order issued January 13, 2020 (Rebecca Grassl Bradley, J.,
dissenting)). After the case returned to this court on March
11, 2020, the court refused to hear oral arguments until
September 29, 2020, denying Zignego's motion to expedite oral
argument. As predicted, "the people of Wisconsin" were denied
"a decision in this case until after every single one of
Wisconsin's 2020 elections" came and went "including the
presidential election in November" and more than "an entire year
after petitioners' commencement of this time-sensitive appellate
litigation." Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct.
Order issued June 1, 2020 (Rebecca Grassl Bradley, J.,
dissenting)).
4
Nos. 2019AP2397 & 2020AP112.rgb
¶52 The majority correctly concludes that Wis. Stat.
§ 6.50(3) requires "municipal clerk[s] and board[s] of election
commissioners" to "change the elector's registration from
eligible to ineligible status" "[u]pon receipt of reliable
information that a registered elector has changed his or her
residence to a location outside of the municipality." The
majority stops there, ignoring WEC's duties under Wisconsin's
election laws. See majority op., ¶32 n.14 (refusing to discuss
WEC's general duties because "the parties did not brief this
question"). Under the whole-text canon of statutory
construction, however, "[t]he text must be construed as a
whole." Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012); State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633,
681 N.W.2d 110 ("[S]tatutory language is interpreted . . . not
in isolation but as part of a whole.").
¶53 As a general matter, Wis. Stat. § 6.36(1)(a) requires
WEC "to compile and maintain electronically an official
registration list." (Emphasis added). Wisconsin Stat.
§ 5.05(15) expressly mandates that WEC "is responsible for the
design and maintenance of the official registration list under
s. 6.36." (Emphasis added). Although Wisconsin courts have
never directly interpreted this statute, its interpretation is
dispositive in this case. Indeed, "to maintain" is more than
just an obligation to create a registration list or to
electronically insert data; it is a duty to "maintain" its
accuracy. The ordinary meaning of "to maintain" is to "to keep
5
Nos. 2019AP2397 & 2020AP112.rgb
in a condition of good repair or efficiency." Maintain, The
American Heritage Dictionary (5th ed. 2011); see also Maintain,
Black's Law Dictionary (6th ed. 1990) ("acts of repairs and
other acts to prevent decline"); Kalal, 271 Wis. 2d 633, ¶53
(instructing courts to turn to dictionary definitions to
understand the "common and accepted meaning" of statutory
language).
¶54 Applying the legislature's plain language, to
"maintain" the official registration list means WEC must ensure
its accuracy. An interpretation that permits WEC to escape its
statutory obligation to ensure the accuracy of the voter rolls
would be absurd. Kalal, 271 Wis. 2d 633, ¶46 (stating that
statutory language should be construed "reasonably, to avoid
absurd or unreasonable results"). Among the express mandates of
Wis. Stat. § 6.36, WEC must include in its list "the name and
address of each registered elector in the state." Wis. Stat.
§ 6.36(1)(a)1. (emphasis added). If WEC receives reliable
information from ERIC that a voter's address information is
invalid (e.g., the voter has moved away from a municipality or
from the state entirely, as ERIC informs), and in response WEC
does nothing, WEC thereby fails to "maintain" this list in any
substantive regard. WEC's neglect of the state's voter list
threatens not only the rule of law but the integrity of
Wisconsin's elections.
¶55 In addition to assigning WEC the responsibility for
maintaining the voter registration list under Wis. Stat.
§ 5.05(15), the legislature also required WEC to accurately
6
Nos. 2019AP2397 & 2020AP112.rgb
maintain this list at the time it instructed WEC to join ERIC.
In particular, Wisconsin's election laws require WEC "to enter
into a membership agreement with Electronic Registration
Information Center, Inc. [ERIC], for the purpose of maintaining
the official registration list." Wis. Stat. § 6.36(ae)1
(emphasis added). The purpose of ERIC is "[to] assist state and
local government units in making their voter registration lists
and processes more accurate, more complete, and fully compliant
with federal, state and local laws." Accordingly, by requiring
WEC to enter into an agreement with ERIC, the legislature
ensured that WEC would bear responsibility for maintaining an
accurate registration list.
¶56 The membership agreement between WEC and ERIC reflects
this obligation. In relevant part, the membership agreement
states: "When the Member [WEC] receives credible ERIC Data
(meaning the state has validated the data) indicating that
information in an existing voter's record is deemed to be
inaccurate or out-of-date, the Member [WEC] shall, at minimum,
initiate contact with that voter in order to correct the
inaccuracy or obtain information sufficient to inactivate or
update the voter's record." (Emphasis added). The agreement
defines "Member" as the chief election body in Wisconsin——not
the municipal clerks or the municipal election commissions.2
At
2 the time of this agreement, the Government
Accountability Board (GAB) administered Wisconsin's election
laws. Accordingly, under the agreement, "Member" refers to the
GAB. However, in 2015 Wisconsin dissolved the GAB, replacing it
with WEC, which assumed the GAB's responsibilities under the
agreement with ERIC.
7
Nos. 2019AP2397 & 2020AP112.rgb
Under the agreement, ERIC provides such data to WEC to enable
WEC to reach out to voters, correct inaccurate information, and
inactivate voter registrations in accordance with the law.3 The
agreement does not impose any responsibilities on municipal
clerks or local boards of election commissioners. Instead, the
legislature expressly tasked WEC with maintaining the list, and
the ERIC agreement reflects this.
¶57 Both Wis. Stat. § 5.05(15) and the ERIC Agreement
instruct WEC to inactivate ineligible voters, and Wis. Stat.
§ 5.05(2w) reinforces this responsibility. In full, § 5.05(2w)
states that WEC "has the responsibility for the administration
of chs. 5 to 10 and 12." (Emphasis added). This statute
requires WEC to administer the mandates of Wis. Stat. § 6.50(3)—
—the statute requiring local entities to deactivate voters
pursuant to ERIC's data. "Administration" does not mean WEC may
stand idly by when it receives information indicating the
ineligibility of voters to cast ballots using addresses where
they no longer reside; rather, WEC must "carry on or execute"
the legislature's explicit statutory directives. Administer,
Oxford English Dictionary (6th ed. 2007); see Kalal, 271 Wis. 2d
633, ¶53. While municipal clerks and local boards of election
commissioners have a duty under § 6.50(3), it is incumbent upon
WEC to administer this law, which means WEC must execute it.
The very fact that ERIC sends the data to WEC signals
3
WEC's obligation to ensure the accuracy of voter rolls. If WEC
does not share this data with local entities, the municipal
clerks and boards of election commissioners could not possibly
fulfill their statutory duties under Wis. Stat. § 6.50(3).
8
Nos. 2019AP2397 & 2020AP112.rgb
¶58 WEC understood this, at one point in time. For
example, in 2017 WEC itself "follow[ed] the statutory process
related to voters for whom there is reliable information that
they no longer reside at their registration address (Wis. Stat.
§ 6.50(3))" as documented in a March 11, 2019 WEC memorandum to
its members from Megan Wolfe, then interim administrator of WEC.
The memorandum goes on to detail how "Commission staff vetted
the [ERIC] list" and "WEC mailed a postcard to flagged voters
directing them to reregister if they had moved or to sign and
return the card to keep their registration current." The
registrations of any voters "who did not return the postcard or
update their registrations were deactivated" by WEC in January
2018, as were the registrations of voters "whose postcards were
returned to the clerk as undeliverable." Notwithstanding Wis.
Stat. § 6.50(3)'s applicability to municipal clerks and board of
election commissioners, WEC once recognized its own, independent
obligation under state and federal law to ensure the accuracy of
Wisconsin's voter rolls.
¶59 In restricting its review of WEC's statutory
obligations to Wis. Stat. § 6.50(3) alone, the majority commits
a common but consequential error:
Perhaps no interpretive fault is more common than the
failure to follow the whole-text canon, which calls on
the judicial interpreter to consider the entire text,
in view of its structure and of the physical and
logical relation of its many parts. Sir Edward Coke
explained the canon in 1628: "[I]t is the most natural
and genuine exposition of a statute to construe one
part of the statute by another part of the same
statute, for that best expresseth the meaning of the
makers."
9
Nos. 2019AP2397 & 2020AP112.rgb
Scalia & Garner, supra, at 167 (quoting 1 Edward Coke, The First
Part of the Institutes of the Laws of England § 728, at 381a
(1628; 14th ed. 1791)). This canon of statutory construction
has endured for centuries, and it counsels against reading a
single statutory section in isolation. "In ascertaining the
plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language
and design of the statute as a whole." Id. Application of the
canon in this case reveals WEC's statutory duty to maintain an
accurate voter list statewide, and to execute the legislature's
directives to remove ineligible voters from that list.
¶60 By establishing a centralized body tasked with
maintaining and administering the statewide voter list, the
legislature can "ensure that citizens are only registered in one
place." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
193 (2008) (quoted source omitted). Imposing such "safeguards"
"inspires public confidence" in the election system and
"confirms the identity of voters" in our state. League of Women
Voters of Wisconsin Educ. Network, Inc. v. Walker, 2014 WI 97,
¶52, 357 Wis. 2d 360, 851 N.W.2d 302 (quoted source omitted).
"Increased confidence in the elector system, in turn, encourages
citizen participation in the democratic process." Id. (quoted
source and internal marks omitted). For this reason,
"[c]onfidence 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). When WEC neglects
its duty to properly administer the mandates of Wis. Stat.
10
Nos. 2019AP2397 & 2020AP112.rgb
§ 6.50(3), it jeopardizes the functioning of our participatory
democracy. While WEC only now identifies municipal clerks and
boards of election commissioners as the entities responsible for
changing ineligible voters' registrations, WEC (and the
majority) disregard WEC's role as the centralized election body
in the state, which means the buck stops there.4 See Scott v.
Schedler, 771 F.3d 831, 839 (5th Cir. 2014).
¶61 This reading of Wis. Stat. §§ 5.05(15) and (2w) is
buttressed by Wisconsin's obligations under HAVA. Although
federal law does not dictate our interpretation of state law, it
can nonetheless confirm our analysis. Cf. Wisconsin's Envtl.
Decade, Inc. v. Pub. Serv. Comm'n, 79 Wis. 2d 409, 416-24, 256
N.W.2d 149 (1977) (confirming this court's interpretation of the
Wisconsin Environmental Policy Act, which is "substantially
patterned" after federal regulation). HAVA imposes on states a
mandatory duty to deactivate ineligible voters, independent of
state law.
¶62 "For many years, Congress left it up to the States to
maintain accurate [voting] lists," until Congress shifted
4 WEC also has a duty to investigate local entities'
statutory violations. In relevant part, Wis. Stat. § 5.05(2m)
states that "[t]he commission shall investigate violations of
laws administered by the commission[.]" As explained, WEC has
an affirmative duty to "administer" Wis. Stat. § 6.50(3);
therefore, if local entities failed to fulfill their
responsibilities under this provision, WEC had a duty to
investigate. Of course, the record reflects that WEC usurped
the duties statutorily assigned to municipal clerks and
municipal boards of election commissioners under § 6.50(3),
thereby ostensibly partaking in the violation of the laws WEC
was entrusted to administer.
11
Nos. 2019AP2397 & 2020AP112.rgb
course. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833,
1838 (2018). In 2002, Congress enacted HAVA, which in part was
created in order "to ensure that voter registration records in
the State are accurate and updated regularly." 52 U.S.C.
§ 21083(a)(4). Toward this end, HAVA requires "each State,
acting through the chief State election official, [to]
implement, in a uniform and nondiscriminatory manner, a single,
uniform, official, centralized, interactive computerized
statewide voter registration list defined, maintained, and
administered at the State level." 52 U.S.C. § 21083(a)(1)(A)
(emphasis added). Accordingly, when WEC receives information
from ERIC indicating that certain voters have moved and are
therefore ineligible to vote at their registered addresses, WEC
cannot simply sit on its hands. To the contrary, WEC has an
obligation under federal law to maintain and administer the
voter list, ensuring the accuracy of its content. Only WEC can
comply with federal mandates to maintain Wisconsin's voter
registration list "at the State level" and "in a uniform"
manner, something 1,850 municipal clerks and boards of elections
commissioners cannot possibly do separately and at the local
level.
¶63 Congress enacted HAVA "to plac[e] primary
responsibility [for voter registration lists] at the state level
of government." Arthur L. Burris & Eric A. Fisher, The Help
America Vote Act and Election Administration: Overview and
Selected Issues for the 2016 Election, Cong. Research Serv. 7
(Oct. 18, 2016). While "[e]arly U.S. elections were conducted
12
Nos. 2019AP2397 & 2020AP112.rgb
almost entirely locally," HAVA changed the game, "shift[ing]
some responsibility for conducting elections to the state
level." Karen K. Shanton, The State and Local Role in Election
Administration: Duties and Structures, Cong. Research Serv. 7
(March 4, 2019). As the United States Supreme Court has
recognized, Congress requires "[the] State to create and
maintain a computerized list of all registered voters" and to
"verify voter information contained in registration
applications." Crawford, 553 U.S. at 192 (emphasis added).
¶64 The purpose of these mandates is straightforward: "to
improve our country's election system." H.R. Rep. No. 107-329,
at 31 (2001). As the "chief State election official" in
Wisconsin, WEC has an essential role to play in this mission.
See 52 U.S.C. § 21083(a)(1)(A). In particular, removing
ineligible voters from the registration list is critical to
"prevent[ing] voter fraud." Ortiz v. City of Philadelphia
Office of the City Commissioners Voter Registration Div., 28
F.3d 306, 314 (3d Cir. 1994). A "State's interest in preserving
the integrity of the electoral process is undoubtedly
important," John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010),
and it has a "strong interest in ensuring that its elections are
run fairly and honestly." Taxpayers United for Assessment Cuts
v. Austin, 994 F.2d 291, 297 (6th Cir. 1993) (citing Anderson v.
Celebreeze, 460 U.S. 780, 788 (1983)). Indeed, retaining
thousands of potentially illegitimate registrations on
Wisconsin's voter lists substantially harms the integrity of
elections and dilutes or even cancels votes of validly
13
Nos. 2019AP2397 & 2020AP112.rgb
registered citizens. Removing ineligible voters from this
state's registration list is paramount if Wisconsin takes
seriously its obligation to ensure fair and honest elections.
¶65 Even though Wisconsin's election statutes and HAVA
require WEC to maintain the integrity and accuracy of the
statewide voter registration list, WEC flagrantly violated both.
Instead of making sure voter registrations were promptly
deactivated "[i]f the elector no longer resides in the
municipality or fails to apply for continuation of registration
within 30 days of the date the notice is mailed" WEC decided to
rewrite the law to give such voters "between 12 months and 24
months" after the notification was sent. Failing to follow the
legislature's mandate——as WEC did in this very case——opens the
door to voter fraud, erodes "[c]onfidence in the integrity of
our electoral processes, . . . drive[s] honest citizens out of
the democratic process, and breed[s] distrust of our
government." Purcell, 549 U.S. at 8; see also Milwaukee Branch
of NAACP v. Walker, 2014 WI 98, ¶72, 357 Wis. 2d 469, 851 N.W.2d
262 ("Protecting the integrity and reliability of the electoral
process, maintaining public confidence in election results, and
preventing voter fraud [are] significant and compelling [state]
interests.") (internal quotations omitted). Maintaining
accurate voter rolls is integral to the "functioning of our
participatory democracy," and WEC failed to fulfill its
statutory obligation to do so as the chief election body in this
state. See id.14
Nos. 2019AP2397 & 2020AP112.rgb
¶66 Reading Wis. Stat. §§ 5.05(15) and (2w) in harmony
with HAVA and the ERIC Agreement, WEC had a "positive and plain
duty" to change an elector's registration from eligible to
ineligible status if the elector had moved, according to ERIC's
data.5 WEC fully understood its duty and acted on it in prior
years. For example, in 2017 ERIC sent WEC a maintenance report
showing a list of registered voters who apparently had moved and
were no longer eligible to vote at their registered address.
WEC reviewed the accuracy of this list, sent notices to the
applicable voters, and changed the status of voters who did not
respond. In contrast, in 2019 and 2020 WEC refused to undertake
these mandatory updates, despite no intervening changes in
applicable law.
¶67 During oral argument, when Attorney General Josh Kaul
was asked whether WEC had a duty to deactivate voters regardless
of the duties of local entities, he equivocated. In particular,
he was asked: "The Commission still thinks it has the authority
5 The majority misconstrues my analysis to mean that "a
court can order the Commission to carry out" the statutory
duties of a municipal clerk or board of election commissioners.
Majority op., ¶39 n.17. Refusing to read Wisconsin's election
laws as a whole, the majority entirely ignores WEC's own
independent statutory duties. There is nothing "remarkable" in
concluding that a court may issue a writ of mandamus ordering
WEC to fulfill its obligations under the law. The majority
characterizes this analysis as "craft[ing] a new argument on
Zignego's behalf." Id. Construing the election statutes as a
whole is not making an argument for any party; it is fulfilling
this court's duty to interpret the law. "Statutes cannot be
read intelligently if the eye is closed to considerations
evidenced in affiliated statutes[.]" Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
539 (1947).
15
Nos. 2019AP2397 & 2020AP112.rgb
[to deactivate voters]; does it rely on [its] general
maintenance language in chapter 5?" Attorney General Kaul
dodged the question, merely noting that this issue "raised a
different question than the question here" and gave no answer
one way or the other. Attorney General Kaul was later asked to
clarify what duties WEC possesses under Wisconsin's election
laws: "Do you agree or disagree with memorandum for the March
11, 2019 commission meeting prepared [by WEC's chief official]
that . . . outlines the legal authority related to the
recommended process [for WEC deactivating voters]?"
Importantly, this memo acknowledged that "Wis. Stat. § 5.05(15)
provides a broader source of statutory authority to the
Commission for ensuring the integrity and maintenance of the
statewide voter registration list, which supports the process
[of deactivating voters] recommended by staff." Again, Attorney
General Kaul evaded the issue, stating that the memo does "point
to [WEC's] general maintenance obligation," but "how far this
extends is not at issue."
¶68 As these exchanges and WEC's briefing to this court
illustrate, we have been asked to disregard WEC's obligations
under Wisconsin election law, merely because local entities have
some role to play in deactivating voters. WEC's position is not
only disingenuous, it also upends the statutory hierarchy of
responsibilities. Both Wis. Stat. §§ 5.05(15) and (2w) require
WEC, as the state's chief election body, to inactivate voters
identified as ineligible by ERIC. Both HAVA as well as the ERIC
Agreement impose this requirement on WEC and no other entity.
16
Nos. 2019AP2397 & 2020AP112.rgb
"How far [these duties] extend" is precisely the issue in this
case. The law imposes a "positive and plain duty" on WEC to
deactivate certain ineligible voters——and WEC most assuredly
understood this, as its own conduct confirms, until its position
changed in order to avoid accountability in this litigation.
¶69 Because WEC had a "positive and plain" duty under
Wisconsin election laws, the circuit court properly issued a
writ of mandamus.6 "Mandamus is an extraordinary legal remedy"
that is issued "to compel performance by a public officer of a
duty which he is bound by law to perform." Eisenberg v.
Estowski, 59 Wis. 2d 98, 102, 207 N.W.2d 874 (1973) (citation
omitted). It was WEC's extraordinary dereliction of duty that
warranted this extraordinary remedy. Certainly, Wis. Stat.
Although the circuit court issued the writ of mandamus
6
pursuant to Wis. Stat. § 6.50(3), WEC was nevertheless compelled
to act pursuant to Wis. Stat. §§ 5.05(15) and (2w). It is well-
settled law that even "[i]f a trial court reaches the proper
result for the wrong reason it will be affirmed." State v.
King, 120 Wis. 2d 285, 292, 354 N.W.2d 742 (Ct. App. 1984). "An
appellate court is concerned with whether the decision . . . is
correct, not whether . . . the circuit court's reasoning is. If
the holding is correct, it should be sustained and this court
may do so on a theory or on reasoning not presented to the lower
court." Liberty Trucking Co. v. Dep't of Indus., Lab & Hum.
Rels., 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973); see also
Mueller v. Mizia, 33 Wis. 2d 311, 318, 147 N.W.2d 269 (1967).
This general rule applies with equal force when circuit courts
grant or deny writs of mandamus. See, e.g., State ex rel. Morke
v. Record Custodian, Dep't of Health and Soc. Servs., 154
Wis. 2d 727, 454 N.W.2d 21 (Ct. App. 1990) (affirming the trial
court's decision to deny a writ of mandamus because, even though
the trial court relied on an erroneous interpretation of the
"substantial damages requirement," the petitioner nonetheless
did not have a "positive and plain duty" to act). Accordingly,
because WEC was compelled to act pursuant to §§ 5.05(15) and
(2w), even though the writ referenced § 6.50(3), the circuit
court's decision must be upheld.
17
Nos. 2019AP2397 & 2020AP112.rgb
§§ 5.05(15) and (2w) instruct WEC to perform its "positive,
plain, and unequivocal" responsibility to deactivate these
voters——a duty it abandoned. State ex rel. Althouse v. City of
Madison, 79 Wis. 2d 97, 106, 255 N.W.2d 449 (1977).
Accordingly, the circuit court did not erroneously exercise its
discretion when it issued the writ of mandamus. Lake Bluff
Hous. Partners v. City of S. Milwaukee, 197 Wis. 2d 157, 170,
540 N.W.2d 189 (1995).
II
¶70 As the majority notes, the circuit court found WEC in
contempt when it failed to comply with the writ of mandamus and
imposed remedial sanctions. Despite WEC's willful defiance of
the circuit court's order, the majority relieves WEC of those
sanctions and merely "remind[s]" WEC that just because a party
disagrees with a court order, it nevertheless must comply with
it. Majority op., ¶5. Astonishingly, the majority is not the
least bit troubled by WEC's refusal to obey a court order. The
majority's feckless response dangerously signals to all
litigants that they may defy circuit court orders without
penalty, so long as they prevail on appeal.
¶71 In December 2019, the Ozaukee County Circuit Court
issued a writ of mandamus ordering WEC "to comply with the
provisions of § 6.50(3) and deactivate the registrations of
those electors who have failed to apply for continuation of
their registration within 30 days of the date the notice was
mailed under that provision." The circuit court issued this
ruling orally from the bench on December 13, 2019, and signed a
18
Nos. 2019AP2397 & 2020AP112.rgb
written order on December 17, 2019. Although this was
indisputably an order of the court, WEC quite publicly refused
to comply with it, thereby undermining the authority of the
entire judicial branch.
¶72 Time was of the essence for WEC to comply with the
circuit court's order because of the elections scheduled for
February 18, 2020 and April 7, 2020——the first two of five
elections in Wisconsin last year. Although WEC appealed the
circuit court's order, a stay of the mandamus order was not in
effect and therefore WEC was bound to obey the circuit court's
order. See Wis. Stat. § 808.07(1) ("An appeal does not stay the
execution or enforcement of the judgment or order appealed from
except as provided in this section or as otherwise expressly
provided by law."). WEC did not obey the order; it openly
defied it.
¶73 As a result, petitioners returned to the circuit court
to force WEC to comply with the mandamus order via a contempt
motion. After a hearing on January 13, 2020, the circuit court
found WEC and three of its commissioners——Julie Glancey, Anne
Jacobs, and Mark Thomsen——in contempt for disobeying the writ of
mandamus. The circuit court imposed remedial sanctions ordering
each of those commissioners to pay a forfeiture of $250 and WEC
to pay $50 per day until WEC complied with the writ of mandamus.
The day after the circuit court issued the contempt order, on
January 14, 2020, the court of appeals stayed both the mandamus
order and the contempt order, without stating any reasons for
doing so, much less any legal basis.
19
Nos. 2019AP2397 & 2020AP112.rgb
¶74 In addition to contaminating Wisconsin's elections,
WEC's refusal to obey the circuit court's order harmed the
integrity of Wisconsin's justice system. The court of appeals'
stays in this case excused WEC's allegedly contemptuous conduct
and signaled to the public that no one is bound by a circuit
court order. Defiance of court orders, permitted by the court
of appeals and now condoned by this court, threatens the
integrity of our entire judicial system. "[T]he public interest
in the enforcement of court orders . . . is essential to the
effective functioning of our judicial process[.]" Valdez v.
City and County of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989).
An orderly society depends upon citizens and government
officials following the law. "If it is within the power of a
party to an action . . . to flout the judgments of a court and
act in contravention thereto, then our system of government is
wholly ineffectual to protect the rights of parties to actions
who have submitted themselves to the jurisdiction of its courts;
hence the duty of a citizen who is a litigant to obey the order
of the court." John F. Jelke Co. v. Hill, 208 Wis. 650, 662-63,
242 N.W. 576 (1932).
¶75 By imposing a stay on the contempt order before
deciding the merits as to WEC's contempt, the court of appeals
made a mockery of the rule of law in Wisconsin. While the court
of appeals stayed the contempt order one day after the circuit
court made it, WEC blatantly flouted the circuit court's writ
for 32 days before an appellate court relieved it of its
obligation to comply with it. "If a party can make himself a
20
Nos. 2019AP2397 & 2020AP112.rgb
judge of the validity of orders which have been issued, and by
his own act of disobedience set them aside, then are the courts
impotent, and what the Constitution now fittingly calls the
'judicial power of the United States' would be a mere mockery."
Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450 (1911).
The circuit court's contempt order should have remained in
effect until an appellate court decided the merits of the
circuit court's decision, and the sanctions should have been
upheld regardless of the outcome. Instead, the majority
effectively condones WEC's scorn for the judiciary by failing to
even admonish WEC's brazen disrespect for the authority of our
courts.
* * *
¶76 "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). Our
elections will not be perfectly pure until WEC is compelled to
comply with Wisconsin's election laws and held to account when
it fails to do so.
"Elections are 'of the most fundamental significance
under our constitutional structure.' Through them, we
exercise self-government. But elections enable self-
governance only when they include processes that
'giv[e] citizens (including the losing candidates and
their supporters) confidence in the fairness of the
election.'"
Republican Party of Pennsylvania v. Degraffenreid, ___ U.S. ___,
141 S. Ct. 732, 734 (2021) (Thomas, J., dissenting from denial
21
Nos. 2019AP2397 & 2020AP112.rgb
of certiorari) (quoting Illinois Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979) and Democratic National
Committee v. Wisconsin State Legislature, ___ U.S. ___, 141 S.
Ct. 28, 31 (Kavanaugh, J., concurring in denial of application
to vacate stay)).
¶77 Wisconsin citizens expect more from their chief
election body, and Wisconsin's election laws assuredly demand
more. "It should be beyond question that the State has a
significant and compelling interest in protecting the integrity
and reliability of the electoral process, as well as promoting
the public's confidence in elections." Milwaukee Branch of
NAACP, 357 Wis. 2d 469, ¶73. In this case, WEC shirked its
duty, flouted the circuit court's orders without consequences,
and knowingly left ineligible voters on Wisconsin's voter rolls.
WEC has a duty to maintain and administer Wisconsin's voter
registration list under both state and federal law. Because the
majority fails to recognize this or penalize WEC's contempt for
the judicial system, I respectfully dissent.
¶78 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
22
Nos. 2019AP2397 & 2020AP112.rgb
1