Priorities USA v. Wisconsin Elections Commission ( 2024 )

2024 WI 32SUPREME COURT OF WISCONSIN
CASE NO.: 2024AP164
COMPLETE TITLE: Priorities USA, Wisconsin Alliance for Retired
Americans and William Franks, Jr.,
Plaintiffs-Appellants,
Governor Tony Evers,
Intervenor-Appellant,
v.
Wisconsin Elections Commission,
Defendant-Respondent,
Wisconsin State Legislature,
Intervenor-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 5, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: May 13, 2024
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Ann M. Peacock
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and HAGEDORN, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants, there were briefs filed by
Diane M. Welsh, and Pines Bach LLP, Madison; David R. Fox (pro
hac vice), Justin Baxenberg (pro hac vice), Richard A. Medina
(pro hac vice), Omeed Alerasool (pro hac vice), and Elias Law
Group LLP, Washington, D.C. There was an oral argument by David
R. Fox.
For the intervenor-appellant, there were briefs filed by
Erin K. Deeley, David P. Hollander, Rachel E. Snyder, Carly
Gerads, and Stafford Rosenbaum LLP, Madison; Mel Barnes, and
Office of Governor Tony Evers, Madison; Christine P. Sun (pro
hac vice), Zack Goldberg (pro hac vice), and States United
Democracy Center, New York, NY. There was an oral argument by
Erin K. Deeley.
For the defendant-respondent, there was a brief filed by
Charlotte Gibson, assistant attorney general, Faye B. Hipsman,
assistant attorney general, Steven C. Kilpatrick, assistant
attorney general, with whom on the brief was Joshua L. Kaul,
attorney general. There was an oral argument by Faye B. Hipsman,
assistant attorney general.
For the intervenor-respondent, there was a brief filed by
Misha Tseytlin, Kevin M. LeRoy, Sean T.H. Dutton, Emily A.
O’Brien, and Troutman Pepper Hamilton Sanders LLP, Chicago, IL.
There was an oral argument by Misha Tseytlin.
An amicus curiae brief was filed by Nicholas Fairweather,
and Hawks Quindel, S.C., Madison; Graham Provost (pro hac vice),
and Public Rights Project, Oakland, CA, on behalf of Wisconsin
Election Officials.
An amicus curiae brief was filed by Lane E. Ruhland, and
Ruhland Law and Strategy, LLC, Waunakee, on behalf of Center for
Election Confidence.
An amicus curiae brief was filed by Matthew M. Fernholz,
and Cramer Multhauf LLP, Waukesha; Thomas R. McCarthy (pro hac
vice), Conor D. Woodfin (pro hac vice), R. Gabriel Anderson (pro
hac vice), and Consovoy McCarthy PLLC, Arlington, VA, on behalf
2
of The Republican National Committee, The Republican Party of
Wisconsin, and RITE PAC.
An amicus curiae brief was filed by Scott B. Thompson,
Daniel S. Lenz, and Law Forward, Inc., Madison, on behalf of
Disability Rights Wisconsin, The League of Women Voters of
Wisconsin, and Wisconsin Faith Voices for Justice.
An amicus curiae brief was filed by Jason Myatt, Mark
Cherry (pro hac vice), Zachary Goldstein (pro hac vice), Narayan
Narasimhan (pro hac vice), and Gibson, Dunn & Crutcher LLP, New
York, NY; Gregg J. Costa (pro hac vice), and Gibson, Dunn &
Crutcher LLP, Houston, TX, on behalf of Common Cause Wisconsin.
An amicus curiae brief was filed by Richard M. Esenberg,
Luke N. Berg, Nathalie E. Burgmeister, and Wisconsin Institute
for Law & Liberty, Inc., Milwaukee, on behalf of Richard Teigen,
Richard Thom, and The Association of Mature American Citizens,
Inc.
3
2024 WI 32NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2024AP164
(L.C. No. 2023CV1900)
STATE OF WISCONSIN : IN SUPREME COURT
Priorities USA, Wisconsin Alliance for Retired
Americans and William Franks, Jr.,
Plaintiffs-Appellants,
Governor Tony Evers,
Intervenor-Appellant, FILED
v.
JUL 5, 2024
Wisconsin Elections Commission,
Samuel A. Christensen
Clerk of Supreme Court
Defendant-Respondent,
Wisconsin State Legislature,
Intervenor-Respondent.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and HAGEDORN, J., joined.
APPEAL from an order of the Circuit Court for Dane County,
Ann M. Peacock, Judge. Reversed and remanded.
No. 2024AP164
¶1 ANN WALSH BRADLEY, J. The petitioners, Priorities
USA, Alliance for Retired Americans, and William Franks, Jr.
(collectively, petitioners), have challenged several voting
requirements on statutory and constitutional grounds. Among
these was the requirement that absentee ballots be returned only
by mail or in person to the clerk's office and not to a secure
drop box.1 The circuit court concluded that it was bound by
Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis.
2d 607, 976 N.W.2d 519, in determining the legality of ballot
drop boxes and accordingly granted a motion to dismiss that
claim.2
¶2 After the petitioners sought bypass of the court of
appeals, we granted bypass on a single issue: "Whether to
overrule the Court's holding in Teigen v. Wisconsin Elections
Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, that
1 In addition to the drop-box ban at issue here, the
petitioners also challenged the following: (1) the requirement
that absentee voters vote in the presence of a witness, (2) the
requirement that defects in absentee ballots be cured by
election day, and (3) the interpretation of Wis. Stat. § 6.84that purportedly treats "absentee votes as being less valuable
and worthy of protection than in-person ballots cast on election
day." None of these other challenges is at issue before us.
2 This case arose in the circuit court for Dane County, Ann
M. Peacock, Judge.
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No. 2024AP164
Wis. Stat. § 6.87 precludes the use of secure drop boxes for the
return of absentee ballots to municipal clerks."3
¶3 The petitioners, along with intervenor Governor Tony
Evers and respondent WEC, contend that Teigen was wrongly
decided and ask that we overrule it. They specifically assert
that Wis. Stat. § 6.87(4)(b)1. (2021-22),4 contrary to the
conclusion of the Teigen majority, allows the use of ballot drop
boxes.
¶4 In contrast, the Wisconsin Legislature advances that
we should reaffirm Teigen. It contends that the court's
statutory interpretation in that case was correct and that no
intervening changes should cause us to revisit that decision.
¶5 We conclude that Wis. Stat. § 6.87(4)(b)1. allows the
use of ballot drop boxes. For the reasons set forth below, we
determine that the court's contrary conclusion in Teigen was
unsound in principle, and as a consequence, we overrule it.
¶6 Our decision today does not force or require that any
municipal clerks use drop boxes. It merely acknowledges what
The petitioners sought bypass on two additional issues:
3
(1) "Whether laws that burden the right to vote, including by
burdening absentee voting, are subject to strict scrutiny just
like laws burdening other fundamental rights, such that the
State must prove that the burden they impose is narrowly
tailored to serve a compelling state interest," and (2) "Whether
a voting law is immune from facial challenge where it imposes
some unjustifiable burden on all voters it regulates, but some
voters are more burdened than others." We denied bypass of
these issues, and they are therefore not presently before the
court.
All subsequent references to the Wisconsin Statutes are to
4
the 2021-22 version unless otherwise indicated.
3
No. 2024AP164
Wis. Stat. § 6.87(4)(b)1. has always meant: that clerks may
lawfully utilize secure drop boxes in an exercise of their
statutorily-conferred discretion. See Wis. Stat. § 7.15(1);
State ex rel. Zignego v. WEC, 2021 WI 32, ¶¶13, 15, 396
Wis. 2d 391, 957 N.W.2d 208.
¶7 Accordingly, we reverse the order of the circuit court
dismissing the petitioners' claim for a declaratory judgment
that Wis. Stat. § 6.87(4)(b)1. allows the use of drop boxes and
remand to the circuit court to reinstate the petitioners' drop-
box claim.
I
¶8 We begin by setting forth the procedural posture of
this case in greater detail. The petitioners challenged several
election procedures. Part of their claim was a contention that
"the Wisconsin Supreme Court should revisit its decision in
Teigen and confirm that § 6.87(4)(b)1. allows the use of drop
boxes consistent with the statutory text and constitutional
principles."
¶9 WEC and the legislature moved to dismiss the
complaint, arguing that the petitioners did not state a claim
upon which relief may be granted.5 The circuit court denied the
motion in part and granted it in part. As relevant here, it
agreed with WEC and the legislature and granted dismissal with
respect to the drop-box claim. Specifically, the circuit court
determined that it "doesn't have the authority to revisit the
5 See Wis. Stat. § 802.06(2)(a)6.
4
No. 2024AP164
soundness of the statutory interpretation in Teigen." It
continued: "Even if I agree that Teigen was incorrectly
decided, I must follow the Teigen precedent and I leave any
revisiting of that decision to the Wisconsin Supreme Court."
¶10 The petitioners appealed and subsequently petitioned
for bypass of the court of appeals.6 As stated, we granted
bypass of a single issue only: "Whether to overrule the Court's
holding in Teigen v. Wisconsin Elections Commission, 2022 WI 64,
403 Wis. 2d 607, 976 N.W.2d 519, that Wis. Stat. § 6.87precludes the use of secure drop boxes for the return of
absentee ballots to municipal clerks."
II
¶11 We are called upon to review the circuit court's
determination on a motion to dismiss. Whether a motion to
dismiss was properly granted or denied is a question of law this
court reviews independently of the determinations of the circuit
court and court of appeals. State ex rel. City of Waukesha v.
City of Waukesha Bd. of Rev., 2021 WI 89, ¶11, 399 Wis. 2d 696,
967 N.W.2d 460. A complaint survives a motion to dismiss for
failure to state a claim upon which relief may be granted if it
pleads facts, which if true, would entitle the plaintiff to
relief. Cattau v. Nat'l Ins. Servs. of Wis., Inc., 2019 WI 46,
¶4, 386 Wis. 2d 515, 926 N.W.2d 756; Data Key Partners v.
Permira Advisers, LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665, 849
N.W.2d 693.
6 See Wis. Stat. § (Rule) 809.60.
5
No. 2024AP164
¶12 In our review, we interpret several Wisconsin
statutes. Statutory interpretation presents a question of law
we likewise review independently of the determinations rendered
by the circuit court and court of appeals. Brown County v.
Brown Cnty. Taxpayers Ass'n, 2022 WI 13, ¶19, 400 Wis. 2d 781,
971 N.W.2d 491.
III
¶13 We begin by addressing the relevant election statutes,
looking first to the language of those statutes. Next we
proceed to analyze the interpretation advanced in Teigen and
then engage in our independent examination of the statutory
language. Finally, we examine whether stare decisis compels us
to uphold Teigen.
A
¶14 In examining the subject statutes, we begin with the
statutory language. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶22,
397 Wis. 2d 431, 960 N.W.2d 384 (citing State ex rel. Kalal v.
Cir. Ct. 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 need
not inquire further. Id.¶15 We give statutory language its "common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶23. Additionally, we "interpret
statutory language 'in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
6
No. 2024AP164
avoid absurd or unreasonable results.'" Id. (quoting Kalal, 271
Wis. 2d 633, ¶46).
¶16 Wisconsin Stat. § 6.87, entitled "Absent voting
procedure," sets forth requirements for the return of absentee
ballots and the envelopes containing those ballots. The
statutory language at the center of this case comes from Wis.
Stat. § 6.87(4)(b)1., and is not extensive: "The envelope shall
be mailed by the elector, or delivered in person, to the
municipal clerk issuing the ballot or ballots." There is no
assertion here that using a drop box is "mailing" a ballot, so
we focus on the requirement that the ballot be "delivered in
person, to the municipal clerk issuing the ballot or ballots."
¶17 In Teigen, the majority7 interpreted this provision to
ban drop boxes, concluding that "[a]n absentee ballot must be
returned by mail or the voter must personally deliver it to the
municipal clerk at the clerk's office or a designated alternate
site." Teigen, 403 Wis. 2d 607, ¶4. Specifically, the Teigen
majority highlighted the phrase "to the municipal clerk,"
determining that "[a]n inanimate object, such as a ballot drop
box, cannot be the municipal clerk. At a minimum, accordingly,
7Teigen was a split opinion, consisting of a majority/lead
opinion, three concurrences, and a dissent. Although the
entirety of the majority/lead opinion was not joined by a
majority of justices, the portions of that opinion referred to
here as the "majority" do represent the position of four
justices. For further discussion of lead opinions, see Koss
Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922
N.W.2d 20 (Ann Walsh Bradley, J., concurring).
7
No. 2024AP164
dropping a ballot into an unattended drop box is not delivery
'to the municipal clerk[.]'" Id., ¶55.
¶18 It also looked to surrounding election statutes to
support its result. First, the Teigen majority looked to Wis.
Stat. § 6.84. Subsection (1) of this statute sets out the
legislative policy that "voting by absentee ballot is a
privilege exercised wholly outside the traditional safeguards of
the polling place" that "must be carefully regulated to prevent
the potential for fraud or abuse." Additionally, subsec. (2)
indicates that § 6.87(4)'s provisions "shall be construed as
mandatory." The Teigen majority took this to mean that it must
strictly construe § 6.87's requirements for absentee voting with
a skeptical eye, resulting in a prohibition against the use of
drop boxes. See Teigen, 403 Wis. 2d 607, ¶53.
¶19 The majority in Teigen also looked to Wis. Stat.
§ 6.855, which governs alternate absentee ballot sites, in an
attempt to bolster its analysis.8 An "alternate absentee ballot
site" is a location designated by the municipal clerk outside of
the municipal clerk's office where voters may request, vote, and
return absentee ballots. Trump v. Biden, 2020 WI 91, ¶56, 394
Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J., concurring). It
8 Wisconsin Stat. § 6.855 allows the "governing body of a
municipality" to "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" and
provides requirements for such sites.
8
No. 2024AP164
concluded that an absentee ballot drop box is not an alternate
absentee ballot site under § 6.855 "because a voter can only
return the voter's absentee ballot to a drop box, while an
alternate site must also allow voters to request and vote
absentee at the site." Teigen, 403 Wis. 2d 607, ¶57. The
majority continued:
If ballot drop boxes are not alternate absentee ballot
sites, 'what [are] they?' Trump v. Biden, 2020 WI 91,
¶101, 394 Wis. 2d 629, 951 N.W.2d 568 (Roggensack,
C.J., dissenting). Existing outside the statutory
parameters for voting, drop boxes are a novel creation
of executive branch officials, not the legislature.
The legislature enacted a detailed statutory construct
for alternate sites. In contrast, the details of the
drop box scheme are found nowhere in the statutes, but
only in memos prepared by WEC staff, who did not cite
any statutes whatsoever to support their invention.
Teigen, 403 Wis. 2d 607, ¶58.
¶20 We begin our independent analysis of the language of
Wis. Stat. § 6.87(4)(b)1. by observing that the statute requires
that a completed absentee ballot be "mailed by the elector, or
delivered in person, to the municipal clerk issuing the ballot
or ballots." In the petitioners' view, delivering a ballot to a
drop box is a means of delivering it in person "to the municipal
clerk." Taking a contrary position, the Teigen court drew a
distinction between an inanimate object like a drop box and a
"municipal clerk," a person to whom delivery must be made.
Teigen, 403 Wis. 2d 607, ¶55. Yet, it also dismissed a
distinction of even greater import——the distinction our statutes
make between a "municipal clerk" and the "municipal clerk's
office."
9
No. 2024AP164
¶21 Throughout our election statutes there exist
references to the "office of the municipal clerk," "office of
the clerk," or the "clerk's office." When "office" is used in
conjunction with a reference to the clerk, such "office" is
specified as a place where a delivery or an action takes place.
See, e.g., Wis. Stat. §§ 5.81(3) (discussing ballots and
envelopes "voted in person in the office of the municipal
clerk"); 6.18 (requiring that a form "shall be returned to the
municipal clerk's office"); 6.32(2) (setting forth that an
elector "appear at the clerk's office"); 6.855(2) (addressing
the display of a notice "in the office of the municipal clerk");
12.035(3)(d) (discussing a "building containing the office of
the municipal clerk").9
¶22 On the other hand, "municipal clerk" is defined as
"the city clerk, town clerk, village clerk and the executive
director of the city election commission and their authorized
representatives. Where applicable, 'municipal clerk' also
includes the clerk of a school district." Wis. Stat.
§ 5.02(10). Synthesizing the above information regarding the
"office" of the clerk with the statutory definition of
"municipal clerk" leads to the conclusion that the two terms are
See
9 also Wis. Stat. §§ 6.15(2)(bm), 6.28(1)(b),
6.29(2)(a), 6.30(4), 6.32(3), 6.35(3), 6.45(1m), 6.47(2),
6.50(1), 6.55(2)(cm), 6.56(4), 6.86(1)(a)2., 6.86(3)(c),
6.87(3)(a), 6.87(4)(b)4., 6.88(1), 6.97(3)(b), 7.41(1),
7.53(1)(b), 7.53(2)(d), 8.10(6)(c), 12.03(1), 12.03(2)(a)2.,
12.035(3)(c).
10
No. 2024AP164
distinct. Put simply, the "municipal clerk" is a person, while
the "office of the municipal clerk" is a location.
¶23 This principle must also apply to Wis. Stat. § 6.87just as it does elsewhere in the statutes. "If a word or words
are used in one subsection but are not used in another
subsection, we must conclude that the legislature specifically
intended a different meaning." Responsible Use of Rural and
Agr. Land v. Pub. Serv. Comm'n, 2000 WI 129, ¶39, 239
Wis. 2d 660, 619 N.W.2d 888 (quoting Oney v. Schrauth, 197
Wis. 2d 891, 902, 541 N.W.2d 229 (Ct. App. 1995)). Had the
legislature wanted to require delivery of an absentee ballot to
a specific location, i.e., the clerk's office, it could have
done so, and the wide usage of the term "clerk's office"
throughout the election statutes certainly indicates that the
legislature knew how to do so. See Southport Commons, LLC v.
DOT, 2021 WI 52, ¶32, 397 Wis. 2d 362, 960 N.W.2d 17 ("The
legislature is presumed to 'carefully and precisely' choose
statutory language to express a desired meaning.").
¶24 It even tried to do so. In 2021, the legislature
attempted to pass a revision to the language of Wis. Stat.
§ 6.87(4)(b)1. that would have seemingly accomplished the result
it seeks in this case. Namely, the legislature voted on
language requiring return of an absentee ballot "to the office
of the municipal clerk issuing the ballot or ballots." 2021
S.B. 203, § 3. However, such language was vetoed by the
Governor and accordingly never became law.
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No. 2024AP164
¶25 By mandating that an absentee ballot be returned not
to the "municipal clerk's office," but "to the municipal clerk,"
the legislature disclaimed the idea that the ballot must be
delivered to a specific location and instead embraced delivery
of an absentee ballot to a person——the "municipal clerk." Given
this, the question then becomes whether delivery to a drop box
constitutes delivery "to the municipal clerk" within the meaning
of Wis. Stat. § 6.87(4)(b)1.
¶26 We conclude that it does. A drop box is set up,
maintained, secured, and emptied by the municipal clerk.10 This
is the case even if the drop box is in a location other than the
municipal clerk's office. As analyzed, the statute does not
specify a location to which a ballot must be returned and
requires only that the ballot be delivered to a location the
municipal clerk, within his or her discretion, designates. See
Wis. Stat. § 7.15(1).
¶27 Such an interpretation of Wis. Stat. § 6.87(4)(b)1. is
consistent with the discretion afforded to municipal clerks in
running Wisconsin's elections at the local level. Election
administration in this state is "highly decentralized."
Zignego, 396 Wis. 2d 391, ¶13. "Rather than a top-down
arrangement with a central state entity or official controlling
10 Importantly, we observe that the statutory definition of
"municipal clerk" includes "the city clerk, town clerk, village
clerk and the executive director of the city election commission
and their authorized representatives." Wis. Stat. § 5.02(10)
(emphasis added). Thus, a single person need not set up,
maintain, secure, and empty all drop boxes in a municipality.
12
No. 2024AP164
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 Wis. Stat.
§ 7.15(1) (setting forth that "[e]ach municipal clerk has charge
and supervision of elections and registration in the
municipality" and listing duties the clerk "shall perform,"
which includes "any others which may be necessary to properly
conduct elections or registration"). Those local election
officials, i.e., municipal clerks, are "primarily responsible
for election administration in Wisconsin." Zignego, 396
Wis. 2d 391, ¶15.
¶28 Reading "to the municipal clerk" to reference a person
rather than a location entrusts some discretion to municipal
clerks in how best to conduct elections in their respective
jurisdictions. Such discretion is consistent with the statutory
scheme as a whole, under which Wisconsin's 1,850 municipal
clerks serve the "primary role" in running elections via our
"decentralized" system. Id., ¶¶13, 15. By endorsing a one-
size-fits-all approach, the Teigen court arrived at a conclusion
that runs counter to the statutory scheme as a whole. See Sw.
Airlines, 397 Wis. 2d 431, ¶23 (indicating that statutory
language must be interpreted "in the context in which it is
used" and "not in isolation but as part of a whole").
¶29 The surrounding election statutes relied upon by the
Teigen majority and proffered as support by the legislature here
do not change this result. To begin, Wis. Stat. § 6.855 is of
little use to the question presented. Section 6.855 allows a
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No. 2024AP164
municipality to designate alternate absentee ballot sites where
"electors of the municipality may request and vote absentee
ballots and to which voted absentee ballots shall be returned by
electors for any election." § 6.855(1). The Teigen majority
noted that drop boxes are not alternate absentee ballot sites
because ballots cannot be requested and voted at a drop box.
Teigen, 403 Wis. 2d 607, ¶57. This is true. But this
conclusion is ultimately of little consequence, as the statute
simply does not apply to drop boxes.
¶30 "An alternative absentee ballot site . . . must be a
location not only where voters may return absentee ballots, but
also a location where voters 'may request and vote absentee
ballots.'" Trump, 394 Wis. 2d 629, ¶56 (Hagedorn, J.,
concurring). On its face, this does not describe a drop box.
The fact that the legislature "enacted a detailed statutory
construct for alternate sites" while not doing the same for drop
boxes has nothing to say about the legality of drop boxes. See
Teigen, 403 Wis. 2d 607, ¶58. Indeed, the legislature would
have no reason for enacting such a scheme because drop boxes are
already allowed by the plain language of § 6.87(4)(b)1.
¶31 Similarly, Wis. Stat. § 6.84 does not warrant the
import the Teigen court imparted on it. Contrary to the Teigen
court's suggestion that it directs us to take a "skeptical" view
of absentee voting, all § 6.84 does is set forth the
consequences of a statutory violation. As will be addressed
more fully infra, ¶¶41-46, § 6.84(2) states that the absentee
ballot provisions must be construed as mandatory and that
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No. 2024AP164
ballots cast "in contravention" of those procedures "may not be
counted." Construing a provision as mandatory rather than
directory does not change the provision's meaning, nor require
that any gloss, much less a "skeptical" one, be placed on its
interpretation.
¶32 Section 6.84(1) is merely a declaration of legislative
policy setting forth that "absentee balloting must be carefully
regulated." The subsequent statutes do just that. See Wis.
Stat. §§ 6.84-6.89. Again, nothing in subsec. (1) provides any
rule of interpretation applying to the statutes that follow.
¶33 Had the legislature wanted to impose a rule of
statutory construction on the absentee balloting statutes, it
certainly knows how to do that. In several other areas of the
law, the legislature has explicitly directed that statutes
should be either liberally or strictly construed. As an
example, Wis. Stat. § 19.81(4) does both within a single
statute. § 19.81(4) ("This subchapter shall be liberally
construed to achieve the purposes set forth in this section, and
the rule that penal statutes must be strictly construed shall be
limited to the enforcement of forfeitures and shall not
otherwise apply to actions brought under this subchapter or to
15
No. 2024AP164
interpretations thereof."). Further examples are plentiful.11
The legislature did nothing of the sort with regard to absentee
balloting, and it would be error to read in such a restriction
where none is present. See Dawson v. Town of Jackson, 2011 WI
77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316 ("We decline to read
into the statute words the legislature did not see fit to
write.").
¶34 As the above analysis demonstrates, the Teigen court
incorrectly interpreted Wis. Stat. § 6.87(4)(b)1. Accordingly,
we conclude that Wis. Stat. § 6.87(4)(b)1. allows the use of
ballot drop boxes.
B
¶35 Having concluded that the Teigen majority incorrectly
interpreted the statute at issue, the next question becomes
whether stare decisis nevertheless requires this court to uphold
Teigen.
See, e.g., Wis. Stat. §§ 49.498(7)(b) (setting forth
11
assertions that a previous paragraph "may not be construed to
do"); 70.109 (mandating that tax exemptions be strictly
construed); 77.54(6)(cn) (directing that tax exemptions "under
this subsection shall be strictly construed"); 111.15 (stating
that in a statutory subchapter on employment relations, "nothing
therein shall be construed so as to interfere with or impede or
diminish in any way the right to strike or the right of
individuals to work; nor shall anything in this subchapter be so
construed as to invade unlawfully the right to freedom of
speech. Nothing in this subchapter shall be so construed or
applied as to deprive any employee of any unemployment benefit
which the employee might otherwise be entitled to receive under
ch. 108").
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No. 2024AP164
¶36 Stare decisis refers to the principle that requires
courts to "stand by things decided." Hinrichs v. DOW Chem. Co.,
2020 WI 2, ¶66 n.12, 389 Wis. 2d 669, 937 N.W.2d 37. Such a
principle is "fundamental to the rule of law." Johnson
Controls, Inc. v. Emp. Ins. of Wausau, 2003 WI 108, ¶94, 264
Wis. 2d 60, 665 N.W.2d 257.
¶37 "Fidelity to precedent ensures that existing law will
not be abandoned lightly. When existing law is open to revision
in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results."
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (cleaned up). Accordingly, any departure from stare
decisis requires "special justification." Id.; State v.
Johnson, 2023 WI 39, ¶¶19-20, 407 Wis. 2d 195, 990 N.W.2d 174.
¶38 However, stare decisis is "neither a straightjacket
nor an immutable rule." Johnson Controls, 264 Wis. 2d 60, ¶100.
It is not an "inexorable command." State v. Denny, 2017 WI 17,
¶71, 373 Wis. 2d 390, 891 N.W.2d 144. Indeed, "[w]e do more
damage to the rule of law by obstinately refusing to admit
errors, thereby perpetuating injustice, than by overturning an
erroneous decision." Johnson Controls, 264 Wis. 2d 60, ¶100.
¶39 Case law has identified several situations in which
this court will overturn a prior case. "First, changes or
developments in the law have undermined the rationale behind a
decision." Id., ¶98. "Second, there is a need to make a
decision correspond to newly ascertained facts." Id. "Third,
there is a showing that the precedent has become detrimental to
17
No. 2024AP164
coherence and consistency in the law." Id. We also consider
"whether the prior decision is unsound in principle, whether it
is unworkable in practice, and whether reliance interests are
implicated." Id., ¶99.
¶40 Mere disagreement with the Teigen court's rationale is
insufficient to overturn it——something more is required. Id.,
¶93; Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶46, 281
Wis. 2d 300, 697 N.W.2d 417. Here, something more is present.
¶41 The "something more," which permeated the entirety of
the Teigen majority's analysis, was its misinterpretation of
Wis. Stat. § 6.84 and the "skeptical" gloss with which the court
examined § 6.87(4)(b)1. As is partially explained above, see
supra, ¶¶31-32, the Teigen court took what is a statute stating
a legislative policy and dictating the consequences for a
violation of the absentee balloting statutes and turned it into
something else entirely. Instead, it treated § 6.84 as a
principle of statutory interpretation that resulted in the
distortion of the language of § 6.87 and that could have
consequences for other election procedures.
¶42 Section 6.84 has two subsections. The first, entitled
"Legislative policy," 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 electors who may
18
No. 2024AP164
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). The second, entitled "Interpretation,"
sets forth:
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.
§ 6.84(2).
¶43 The Teigen majority determined that these provisions
together mandate a "skeptical" view of absentee voting. It saw
the statement of legislative policy set forth in subsec. (1) as
one that "cannot be reconciled with the statements of policy
contained in WEC's memos" authorizing drop boxes. Teigen, 403
Wis. 2d 607, ¶53. Further, it divined from subsec. (2) the
uncontroversial proposition that mandatory election requirements
must be "strictly adhered to" and "strictly observed." Id.(citing State ex rel. Ahlgrimm v. State Elections Bd., 82
Wis. 2d 585, 592-93, 263 N.W.2d 152 (1978)).
¶44 Again, § 6.84 cannot carry the weight the Teigen
majority assigns it. Subsection 1 provides that absentee
balloting must be "carefully regulated." Indeed it is
"carefully regulated"——through statutes passed by the
legislature and signed by the governor, and which we have
determined above permit the use of drop boxes. It is not up to
19
No. 2024AP164
this court to "regulate" absentee voting. Such "regulation"
falls to the legislative process and Wisconsin's 1,850 municipal
clerks through our decentralized system of election
administration. Further, by framing its analysis as a
comparison between the "statement of legislative policy" in
§ 6.84(1) and the "statements of policy contained in WEC's
memos" allowing drop boxes, Teigen, 403 Wis. 2d 607, ¶53, the
Teigen court allowed policy concerns to alter the lens through
which it viewed the statutory language, if not completely
supplant the plain language of § 6.87(4)(b)1.
¶45 Subsection 2 indicates that any votes cast "in
contravention of" the statutory procedures "may not be counted."
This provision says nothing about what is prohibited——it merely
sets out the consequence should a ballot be cast in a prohibited
manner. In other words, § 6.84 gives us no principles of
interpretation that give any insight into the actual meaning of
the absentee balloting statutes that follow it. Observing that
a statute must be "strictly adhered to," as the Teigen majority
portrays, does not inform the meaning of the statute. We still
must interpret it, and after we do, then we must ensure that it
is being followed "strictly."12 Our determination here is that
12 The ramifications of the Teigen majority's "skeptical"
view are evidenced by the apparent confusion it has caused among
both parties and lower courts. An amicus brief filed in the
present case by the Teigen plaintiffs contends that Wis. Stat.
§ 6.84 "command[s] that absentee ballot procedures are to be
'carefully regulated' and strictly construed . . . ." (Emphasis
added). However, as described, there is a difference between
strict adherence and strict construction, and the statute does
not provide for the latter.
20
No. 2024AP164
drop boxes are not "in contravention" of the statutory
procedures, and § 6.84 does nothing to alter the statutory
interpretation that led to this conclusion.
¶46 The Teigen court's error in this regard permeated its
analysis to such a degree that its analysis was not merely
wrong, but was unsound in principle. Essential to its
conclusion was the assertion that "[i]nterpreting Wis. Stat.
§ 6.87(4)(b)1. to permit such methods of casting an absentee
ballot would contravene the legislative policy expressed in Wis.
Stat. § 6.84(1) and border on the absurd." Teigen, 403
Wis. 2d 607, ¶62. Additionally, it relied on the "detailed and
unambiguous language of Wis. Stat. §[] 6.84" in determining that
drop boxes are prohibited because they are a "mechanism not
specified by the legislature." Id., ¶63. As a result of
misinterpreting § 6.84, the Teigen court, despite the word
"skeptical" appearing nowhere in the Wisconsin statutes, applied
a "skeptical" gloss permeating its analysis, leading it astray
and causing its analysis to be "unsound in principle."
¶47 We have previously stated a general principle that
"stare decisis concerns are paramount where a court has
Similarly, WEC advances that circuit courts have
interpreted the Teigen court's "skeptical" view as a broadly
applicable principle of interpretation. See Brown v. WEC,
Racine County Case No. 2022CV1324 (Jan. 10, 2024) (describing
Teigen and Wis. Stat. § 6.84 as "suppl[ying] the lens through
which absentee voting statues are to be viewed"); Kormanik v.
WEC, Waukesha County Case No. 2022CV1395 (Nov. 29, 2023)
(stating that the legislative policy language in § 6.84 "needs
to be recognized as setting very firm guardrails to curb the
analysis").
21
No. 2024AP164
authoritatively interpreted a statute because the legislature
remains free to alter its construction." Progressive N. Ins.,
281 Wis. 2d 300, ¶45. Assuming such a principle applies here,
stare decisis does not require us to uphold Teigen in this
instance.13
¶48 An underlying purpose of strong adherence to stare
decisis where a statute is involved is to protect reliance
interests attendant to a precedential opinion. See id., ¶¶46-
47; cf. Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 457
(2015). Here, no such reliance interests counsel in favor of
upholding an erroneous interpretation of Wis. Stat.
§ 6.87(4)(b)1. Teigen has neither fostered reliance nor created
a settled body of law.
¶49 Accordingly, we determine that the court's conclusion
in Teigen, 403 Wis. 2d 607, that the subject statutes prohibit
ballot drop boxes was unsound in principle, and as a
consequence, we overrule it. Because the complaint sets forth
allegations, which if true, would entitle the plaintiff to
relief, the motion to dismiss the drop-box claim was wrongly
denied.
13Contrary to the suggestion of the Legislature at oral
argument, our decision in this case does not portend the death
of statutory stare decisis. We strongly stand by our principles
of stare decisis and our decision in this case to depart from
precedent was not made casually. See State v. Stevens, 181
Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J.,
concurring).
22
No. 2024AP164
¶50 We therefore reverse the order of the circuit court
dismissing the petitioners' claim for a declaratory judgment
that Wis. Stat. § 6.87(4)(b)1. allows the use of drop boxes and
remand to the circuit court to reinstate the petitioners' drop-
box claim.
By the Court.—The order of the circuit court is reversed
and the cause is remanded to the circuit court.
23
No. 2024AP164.rgb
¶51 REBECCA GRASSL BRADLEY, J. (dissenting). The
majority again forsakes the rule of law in an attempt to advance
its political agenda. The majority began this term by tossing
the legislative maps adopted by this court in Johnson v.
Wisconsin Elections Commission, 2022 WI 19, 401 Wis. 2d 198, 972
N.W.2d 559, for the sole purpose of facilitating "the
redistribution of political power in the Wisconsin legislature."
Clarke v. Wis. Elections Comm'n, 2023 WI 79, ¶302, 410 Wis. 2d
1, 998 N.W.2d 370 (Hagedorn, J., dissenting). The majority ends
the term by loosening the legislature's regulations governing
the privilege of absentee voting in the hopes of tipping the
scales in future elections.1
¶52 Just two years ago, in Teigen v. Wisconsin Elections
Commission, this court held "ballot drop boxes are illegal under
Wisconsin statutes[,] [and] [a]n absentee ballot must be
returned by mail or the voter must personally deliver it to the
1This case is not about whether drop boxes improve or
hinder any political party's electoral fortunes or whether using
drop boxes is a good policy. Those questions are reserved for
resolution by the people's representatives in the legislature
and irrelevant for purposes of statutory interpretation. See
Teigen v. Wis. Elections Comm'n, 2022 WI 64, ¶52 n.25, 403
Wis. 2d 607, 976 N.W.2d 519 ("While the dissenters would permit
ballot drop boxes, the court must respect the constitutional
restraints on our power and refuse to act as a super-
legislature. It poses a grave threat to democracy to mislead
the people into believing we are one."); id., ¶151 (Hagedorn,
J., concurring) ("Our obligation is to follow the law, which may
mean the policy result is undesirable or unpopular."). It is
"lamentable" my colleagues indulge their policy preferences at
the expense of the law. See id., ¶¶205-07 (Ann Walsh Bradley,
J., dissenting).
1
No. 2024AP164.rgb
municipal clerk at the clerk's office or a designated alternate
site." 2022 WI 64, ¶4, 403 Wis. 2d 607, 976 N.W.2d 519. Three
of the justices making up today's majority dissented. Id.,
¶¶205-48 (Ann Walsh Bradley, J., dissenting) (joined by Dallet
and Karofsky, JJ.). The same dissenters, joined by the newest
member of the court, form a majority in this case to overrule
Teigen, converting the Teigen dissent into the new majority
opinion and holding absentee ballots may be delivered virtually
anywhere a municipal clerk designates. To reach this
conclusion, the majority misrepresents the court's decision in
Teigen, replaces the only reasonable interpretation of the law
with a highly implausible one, and tramples the doctrine of
stare decisis. I dissent.
I
¶53 Stare decisis——"to stand by the thing decided and not
disturb the calm"2——is a foundational principle in the Anglo-
American legal system.
For it is an established rule to abide by former
precedents, where the same points come again in
litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new
judge's opinion; as also because the law in that case
being solemnly declared and determined, what before
was uncertain, and perhaps indifferent, is now become
a permanent rule, which it is not in the breast of any
subsequent judge to alter or vary from, according to
his private sentiments: he being sworn to determine,
not according to his own private judgment, but
according to the known laws and customs of the land;
not delegated to pronounce a new law, but to maintain
and expound the old one.
2 Ramos v. Louisiana, 590 U.S. 83, 115 (2020) (Kavanaugh,
J., concurring in part).
2
No. 2024AP164.rgb
1 William Blackstone, Commentaries *69. This venerable doctrine
exists for the sake of stability in the law, to restrain the
impulse of judges to overturn decisions with which they
disagree. When judges instead indulge their preferences, every
case is on the table as new judges take the bench, displacing
the rule of law with the whim of judges. To avoid such
volatility, "stare decisis beseeches judges to 'follow earlier
judicial decisions when the same points arise again in
litigation.'" Friends of Frame Park, U.A. v. City of Waukesha,
2022 WI 57, ¶55, 403 Wis. 2d 1, 976 N.W.2d 263 (Rebecca Grassl
Bradley, J., concurring) (quoting stare decisis, Black's Law
Dictionary 1696 (11th ed. 2019)). This court has articulated
many times that it abides by the doctrine "scrupulously" because
"respect for prior decisions is fundamental to the rule of law."
Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257.
¶54 This court has declared: "'Stare decisis is the
preferred course of judicial action because it promotes
evenhanded, predictable, and consistent development of legal
principles,'" Id., ¶95 (quoting State v. Ferron, 219
Wis. 2d 481, 504, 579 N.W.2d 654 (1998)), and "permits society
to presume that bedrock principles are founded in the law rather
than in the proclivities of individuals . . . ." Vasquez v.
Hillery, 474 U.S. 254, 265 (1986). The decision-making process
of this court cannot "become[] a mere exercise of judicial
will . . . ." State v. Outagamie Cnty. Bd. of Adjustment, 2001
WI 78, ¶29, 244 Wis. 2d 613, 628 N.W.2d 376 (internal quotation
3
No. 2024AP164.rgb
marks omitted) (quoting Citizens Util. Bd. v. Klauser, 194
Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J.,
dissenting)). When the court "frequent[ly]" and "careless[ly]"
overrules its prior decisions, its credibility suffers. Johnson
Controls, 264 Wis. 2d 60, ¶95 (citing State v. Lindell, 2001 WI
108, ¶169, 245 Wis. 2d 689, 629 N.W.2d 223 (Abrahamson, C.J.,
dissenting)).
¶55 "'A court should not depart from precedent without
sufficient justification.'" Id., ¶94 (quoting State v. Stevens,
181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J.,
concurring)). Our cases make clear prior decisions should not
be "abandoned lightly." Outagamie Cnty., 244 Wis. 2d 613, ¶29
(citing Stevens, 181 Wis. 2d at 441 (Abrahamson, J.,
concurring)). "Overruling precedent is never a small matter."
Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015).
¶56 Our cases have customarily required a "special" or
"compelling" justification before overturning a prior decision
of this court. Johnson Controls, 264 Wis. 2d 60, ¶¶93, 96. In
the past, this court has identified five special justifications
for overruling precedent:
(1) the law has changed in a way that undermines the
prior decision's rationale; (2) there is a "need to
make a decision correspond to newly ascertained
facts;" (3) our precedent "has become detrimental to
coherence and consistency in the law;" (4) the
decision is "unsound in principle;" or (5) it is
"unworkable in practice."
State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d 195, 990
N.W.2d 174 (quoting State v. Young, 2006 WI 98, ¶51 n.16, 294
Wis. 2d 1, 717 N.W.2d 729). Predictably, the former dissenters,
4
No. 2024AP164.rgb
who now find themselves in the majority, abuse the rule of law,
replacing the majority opinion in Teigen with Justice Ann Walsh
Bradley's dissent. They decree the decision "unsound in
principle," emptying the phrase of any meaning and making it
merely a mechanism to tip the scales of justice toward their
preferred outcomes.
¶57 While the doctrine is the subject of much debate, the
members of the majority purport to adhere to our traditional
approach to stare decisis. By any measure, its decision
violates the principles the majority professes to apply. Under
its weakest application, stare decisis demands upholding Teigen.
¶58 Although the majority purports to "assum[e]" "'stare
decisis concerns are paramount where a court has authoritatively
interpreted a statute[,]'" the majority discards that principle
as an inconvenient obstacle to its policy preferences. Majority
op., ¶47 (quoting Progressive N. Ins. Co. v. Romanshek, 2005 WI
67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417). According to the
majority, stare decisis receives heightened force only if
reliance interests are present because "[a]n underlying purpose
of strong adherence to stare decisis where a statute is involved
is to protect reliance interests attendant to a precedential
opinion." Id., ¶48. That is a gross misrepresentation of the
principle the majority claims to apply. As Justice Brett
Kavanaugh recently explained, stare decisis is "comparatively
strict" for statutory interpretation cases "because Congress and
the President can alter a statutory precedent by enacting new
legislation." Ramos v. Louisiana, 590 U.S. 83, 118 (2020)
5
No. 2024AP164.rgb
(Kavanaugh, J., concurring in part). Like the United States
Supreme Court, this court has said stare decisis should receive
extra consideration in statutory interpretation cases because
the legislature may correct any errors in this court's
interpretation. See, e.g., Progressive N. Ins. Co., 281
Wis. 2d 300, ¶45 (citing Hilton v. S.C. Pub. Rys. Comm'n, 502
U.S. 197, 202 (1991)) ("[S]tare decisis concerns are paramount
where a court has authoritatively interpreted a statute because
the legislature remains free to alter its construction.");
Kimble, 576 U.S. at 456 (citing Patterson v. McLean Credit
Union, 491 U.S. 164, 172–73 (1989)) ("[S]tare decisis carries
enhanced force when a decision . . . interprets a statute.
Then, unlike in a constitutional case, critics of our ruling can
take their objections across the street, and Congress can
correct any mistake it sees."). Scholarly sources are in
accord. See, e.g., Bryan A. Garner et al., The Law of Judicial
Precedent 333-35, 409-10 (2016).
¶59 The majority does not cite a single case suggesting
the protection of reliance interests is an "underlying purpose"
of according stare decisis additional weight in statutory
interpretation cases. Giving stare decisis added heft when
considering whether to overturn a decision that interpreted a
statute is not universally observed; the principle is debatable.
I have rejected the concept, "particularly when applied to
interpretations wholly unsupported by the statute's text." See
Manitowoc Co. v. Lanning, 2018 WI 6, ¶81 n.5, 379 Wis. 2d 189,
906 N.W.2d 130 (Rebecca Grassl Bradley, J., concurring); see
6
No. 2024AP164.rgb
also Gamble v. United States, 587 U.S. 678, 723 (2019) (Thomas,
J., concurring). The author of the majority opinion in this
case has not. The majority's claim to adhere to this principle
of stare decisis is disingenuous, and it should be transparent
about changing the doctrine so dramatically. This case marks
the "death of statutory stare decisis" in Wisconsin. The fact
that the majority disputes the upshot of its decision only
serves to prove it. See majority op., ¶47 n.13. The purpose of
stare decisis is to protect the rule of law. Citizens United v.
FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring). By
refusing to apply its own purported principle, while distorting
it sub silentio, the majority perverts the rule of law.
¶60 Going forward, whether decisions that interpreted
statutes receive extra stare decisis protection will depend
solely on the will of four and the extent to which respecting or
discarding the doctrine favors their preferred outcome. The
majority may revive statutory stare decisis whenever the four
find it convenient. Such manipulations of the doctrine will
only prove what a "result-oriented expedient" today's decision
is. Lawrence v. Texas, 539 U.S. 558, 592 (2003) (Scalia, J.,
dissenting).
¶61 Opinions that are "objectively wrong," Pagoudis v.
Keidl, 2023 WI 27, ¶88, 406 Wis. 2d 542, 988 N.W.2d 606 (Rebecca
Grassl Bradley, J., concurring in part, dissenting in part)
(citing Manitowoc Co., 379 Wis. 2d 189, ¶81 n.5 (Rebecca Grassl
Bradley, J., concurring)), or "'demonstrably'" or "irrefutably"
erroneous, St. Augustine Sch. v. Taylor, 2021 WI 70, ¶125, 398
7
No. 2024AP164.rgb
Wis. 2d 92, 961 N.W.2d 635 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Gamble, 587 U.S. at 711 (Thomas, J.,
concurring)), are unsound in principle and may be overruled.
Koschkee v. Taylor, 2019 WI 76, ¶8 n.5, 387 Wis. 2d 552, 929
N.W.2d 600; State v. Reyes Fuerte, 2017 WI 104, ¶18, 378
Wis. 2d 504, 904 N.W.2d 773. But when a prior decision
interpreted the law "within the range of permissible
interpretations," the decision should generally stand. Gamble,
587 U.S. at 721 (Thomas, J., concurring); see St. Augustine
Sch., 398 Wis. 2d 92, ¶¶124-25 (Rebecca Grassl Bradley, J.,
dissenting). The majority in this case must show more than it
has been able to muster to justify overturning Teigen.
Discarding a decision requires something more than saying the
court was merely "mistaken" or the current majority sees the
statute differently. Wenke v. Gehl Co., 2004 WI 103, ¶21, 274
Wis. 2d 220, 682 N.W.2d 405; see Progressive N. Ins. Co., 281
Wis. 2d 300, ¶¶50-51; Kimble, 576 U.S. at 455. A "garden-
variety . . . disagreement does not suffice to overrule" a prior
decision. Ramos, 590 U.S. at 121-22 (Kavanaugh, J., concurring
in part). As one member of the current majority once put it,
"The outcome of a case should not turn on whether the current
members of the court find one legal argument more persuasive
but, rather, on whether today's majority has come forward with
the type of extraordinary showing that this court has
historically demanded before overruling one of its precedents."
State v. Roberson, 2019 WI 102, ¶97, 389 Wis. 2d 190, 935
N.W.2d 813 (Dallet, J., dissenting) (cleaned up) (quoting State
8
No. 2024AP164.rgb
v. Lynch, 2016 WI 66, ¶101, 371 Wis. 2d 1, 885 N.W.2d 89(Abrahamson & Ann Walsh Bradley, JJ., concurring in part,
dissenting in part)). Having become an inconvenient obstacle to
their agenda, the members of the new majority abandon yet
another principle they once espoused.3
II
¶62 Teigen provided the best (or "fairest," Teigen, 403
Wis. 2d 607, ¶62) interpretation of Wis. Stat. § 6.87(4)(b)1.,
and the new majority fails to demonstrate its alternative
interpretation is superior. It may prefer a different
construction than Teigen's, but stare decisis commands the new
majority nevertheless "acknowledge it as valid precedent"
"despite [its] disagreement" with the decision. Lindell, 245
Wis. 2d 689, ¶145 (Ann Walsh Bradley, J., concurring).
¶63 The majority's principal argument against Teigen
focuses on the heading introducing the discussion of Wis. Stat.
This court has overruled prior opinions with alarming
3
frequency this term. Of the fourteen opinions this court
released resolving the merits, three (including this one)
overruled at least one prior opinion of this court. Clarke v.
Wis. Elections Comm'n, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370(overruling Johnson v. Wisconsin Elections Commission, 2021 WI
87, 399 Wis. 2d 623, 967 N.W.2d 469, Johnson v. Wisconsin
Elections Commission, 2022 WI 14, 400 Wis. 2d 626, 971
N.W.2d 402, and Johnson v. Wisconsin Elections Commission, 2022
WI 19, 401 Wis. 2d 198, 972 N.W.2d 559); Waukesha Cnty. v.
M.A.C., 2024 WI ___, ___ Wis. 2d ___, ___ N.W.2d ___ (overruling
Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929
N.W.2d 140). That is, twenty-one percent of the opinions issued
by this court this term overruled a prior decision. Last term,
this court issued forty-four opinions resolving the merits, only
one of which overruled a prior opinion of this court. In other
words, only two percent of opinions last term overruled a prior
opinion.
9
No. 2024AP164.rgb
§ 6.84: "Legislative Policy Directs Us to Take a Skeptical View
of Absentee Voting." Majority op., ¶41. Teigen must be
overruled, the majority rationalizes, because taking a
"'skeptical' view" of absentee voting, as directed by § 6.84,
"permeated the entirety of the Teigen majority's analysis,"
rendering the decision somehow unsound in principle. Id., ¶¶41,
43; see also id., ¶46. That's a stretch. The word "skeptical"
appears once in the entire opinion——in a header no less——and the
term is merely shorthand for the legislative policy statement in
§ 6.84(1). Teigen mentions § 6.84 only twice in its analysis of
the legality of drop boxes, and only as additional support for
the analysis. Section 6.84 was in no sense "[e]ssential" for
the court's conclusions. Id., ¶46. If the legislative policy
statement did not exist, the court would have decided Teigen the
exact same way.4
¶64 A second and more fatal blow to the majority's
attempted take-down of Teigen is the majority's misunderstanding
of Wis. Stat. § 6.84's role in statutory interpretation.
Section 6.84(1) provides a statement of legislative policy for
absentee voting:
LEGISLATIVE POLICY. The legislature finds that voting
is a constitutional right, the vigorous exercise of
which should be strongly encouraged. In contrast,
4Although the majority opinion in this case rehashes the
arguments made by the dissent in Teigen——sometimes nearly word
for word——the dissent in Teigen made no mention of the
majority's invocation of Wis. Stat. § 6.84 in its analysis of
the legality of drop boxes. If Teigen's use of § 6.84 permeated
every aspect of the decision, rendering it unsound in principle,
it is curious the dissenters noticed only now. Notably, the
author of today's decision authored the dissent in Teigen too.
10
No. 2024AP164.rgb
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.
(Emphasis added.) While statutory policy statements cannot be
used to contravene a statute's clear import, they may be used to
inform the meaning of a statute's text. Milwaukee Dist. Council
48 v. Milwaukee Cnty., 2019 WI 24, ¶21, 385 Wis. 2d 748, 924
N.W.2d 153; Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 217 (2012) ("A preamble, purpose
clause, or recital is a permissible indicator of meaning.").
That is exactly how Teigen utilized § 6.84(1). Interpretations
directly contradicting § 6.84(1)'s statement that "voting by
absentee ballot must be carefully regulated" are less favored
than plausible interpretations of the statute in harmony with
the statement.
¶65 The majority's assertion that Wis. Stat. § 6.84 cannot
provide any interpretive insight because it does not
specifically direct the court to apply a liberal or strict
construction is baseless. See majority op., ¶32 (calling §
6.84(1) "merely a declaration of legislative policy" that does
not "provide[] any rule of interpretation applying to the
statutes that follow"). The majority cites nothing to support
this newly created rule, which contradicts the very same
majority's decision in Catholic Charities Bureau, Inc. v. LIRC,
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authored just months ago by the same author of the majority
opinion in this case. 2024 WI 13, ¶¶27-29, 411 Wis. 2d 1, 3
N.W.2d 666 (interpreting a tax exemption strictly because of a
statutory public policy statement, found in Wis. Stat. § 108.01,
that itself does not explicitly direct that the statutes should
be strictly or liberally construed). In short, Teigen's
reference to § 6.84 supplies no legitimate basis for overruling
a recent decision of this court.5
III
¶66 Aside from mischaracterizing Teigen in order to deem
it "unsound in principle," the majority fails to put a dent in
Teigen's interpretation of the statute. Wisconsin Stat.
§ 6.87(4)(b)1. requires an absentee ballot to be returned to the
municipal clerk one of two ways: "The envelope shall be mailed
by the elector, or delivered in person, to the municipal clerk
issuing the ballot or ballots." Teigen held the statute does
not allow offsite, unattended drop boxes. Wisconsin Stat.
§ 5.02(10) defines "municipal clerk" as "the city clerk, town
clerk, village clerk and the executive director of the city
election commission and their authorized representatives. Where
5To bolster its argument, the majority suggests Teigen has
caused "confusion" in the lower courts. Majority op., ¶45
n.12. This court recently accepted a petition for bypass in one
of the circuit court decisions the majority critiques. Brown v.
Wis. Elections Comm'n, No. 2024AP232, unpublished order (Wis.
May 3, 2024) (granting the petition for bypass). The majority's
criticism of the circuit court's decision is unnecessary. More
importantly, it is generally inappropriate to cast aspersions on
lower court decisions this court has only just agreed to review.
It is also inappropriate to hide behind a party while doing so.
See majority op., ¶45 n.12.
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applicable, 'municipal clerk' also includes the clerk of a
school district." Interpreting the clear text, Teigen
recognized § 6.87(4)(b)1. requires an absentee voter to either
send the absentee ballot by mail or "deliver[]" the ballot "to
the municipal clerk"——a person, not an inanimate object——"in
person." Teigen, 403 Wis. 2d 607, ¶55. To "deliver[]"
something "to" another person, "in person," requires a person-
to-person exchange. Id. That is what the statute means, and
what it has always been understood to mean. Id., ¶175
(Hagedorn, J., concurring) (quoting 5 Wis. Op. Att'y Gen. 591,
593 (1916)) ("Less than a year after enactment [of the precursor
to § 6.87(4)(b)1.], the attorney general opined on the precise
interpretive question before us today: '"Delivery in person"
must mean handed directly by an elector to the officer; it means
manual transmission by the one to the other.'"); see also
Sommerfeld v. Bd. of Canvassers of the City of St. Francis, 269
Wis. 299, 69 N.W.2d 235 (1955) (taking for granted the law was
violated when voters returned absentee ballots through third
parties). Requiring person-to-person transmission of the ballot
under § 6.87(4)(b)1. obviously precludes the use of unattended
drop boxes.
¶67 As Teigen also observed, other statutes contemplate
only two locations at which a voter may deliver an absentee
ballot in person: At the municipal clerk's office or at a
designated "alternate site" under Wis. Stat. § 6.855.
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
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may request and vote absentee ballots and to which
voted absentee ballots shall be returned by electors
for any election. The designated site shall be
located as near as practicable to the office of the
municipal clerk or board of election commissioners and
no site may be designated that affords an advantage to
any political party. An election by a governing body
to designate an alternate site under this section
shall be made no fewer than 14 days prior to the time
that absentee ballots are available for the primary
under s. 7.15 (1) (cm), if a primary is scheduled to
be held, or at least 14 days prior to the time that
absentee ballots are available for the election under
s. 7.15 (1) (cm), if a primary is not scheduled to be
held, and shall remain in effect until at least the
day after the election. If the governing body of a
municipality makes an election under this section, no
function related to voting and return of absentee
ballots that is to be conducted at the alternate site
may be conducted in the office of the municipal clerk
or board of election commissioners.
§ 6.855(1) (emphasis added). As Teigen explained, § 6.855
"identifies the sites at which in person absentee voting may be
accomplished——either 'the office of the municipal clerk' or 'an
alternate site' but not both. 'An alternate site' serves as a
replacement for 'the office of the municipal clerk' rather than
an additional site for absentee voting." Teigen, 403
Wis. 2d 607, ¶59. Alternate sites are also carefully regulated
by the legislature. They must be "located as near as
practicable to the office of the municipal clerk or board of
election commissioners and no site may be designated that
affords an advantage to any political party." § 6.855(1).
Given this detailed statutory language, § 6.855 does not
contemplate in person absentee voting at a location other than
the office of the municipal clerk or an alternate site, and the
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explicit rules for alternate sites leave no reasonable room for
in person absentee voting at any other locations.
¶68 This conclusion is reinforced by Wis. Stat. § 5.81(3),
which like Wis. Stat. § 6.855(1), confirms that in person
absentee voting will occur "in person in the office of the
municipal clerk."
If a municipality utilizes an electronic voting system
in which ballots distributed to electors are employed,
absentee ballots may consist of ballots utilized with
the system or paper ballots and envelopes voted in
person in the office of the municipal clerk or voted
by mail.
§ 5.81(3)(emphasis added). "The legislature did not contemplate
absentee ballots 'consist[ing]' of ballots cast via a drop box."
Teigen, 403 Wis. 2d 607, ¶60 (alteration in original). The
legislature's policy choices, enacted in §§ 6.855(1) and
5.81(3), prescribe only two locations where in person absentee
ballots can be delivered——the office of the municipal clerk or a
designated alternate site.
¶69 The Legislature, as intervenor-respondent, points to
another statute that lends support for Teigen's interpretation.
Wisconsin Stat. § 7.41(1) provides members of the public the
right to observe in person absentee voting:
Any member of the public may be present at any polling
place, in the office of any municipal clerk whose
office is located in a public building on any day that
absentee ballots may be cast in that office, or at an
alternate site under s. 6.855 on any day that absentee
ballots may be cast at that site for the purpose of
observation of an election and the absentee ballot
voting process, except a candidate whose name appears
on the ballot at the polling place or on an absentee
ballot to be cast at the clerk's office or alternate
site at that election. The chief inspector or
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municipal clerk may reasonably limit the number of
persons representing the same organization who are
permitted to observe under this subsection at the same
time. Each person permitted to observe under this
subsection shall print his or her name in and sign and
date a log maintained by the chief inspector or
municipal clerk for that polling place, office, or
alternate site.
Like Wis. Stat. § 6.855(1), § 7.41(1) contemplates that absentee
voters may deliver their ballots only at the office of the
municipal clerk or an alternate site. The statutes simply do
not envision in person delivery of absentee ballots at any other
locations. The majority offers no response to the Legislature's
argument.
¶70 Providing even further textual support, Justice
Hagedorn's concurrence in Teigen highlighted Wis. Stat. § 6.88,6
6 Wisconsin Stat. § 6.88(1) and (2):
(1) When an absentee ballot arrives at the office of
the municipal clerk, or at an alternate site under s.
6.855, if applicable, the clerk shall enclose it,
unopened, in a carrier envelope which shall be
securely sealed and endorsed with the name and
official title of the clerk, and the words "This
envelope contains the ballot of an absent elector and
must be opened in the same room where votes are being
cast at the polls during polling hours on election day
or, in municipalities where absentee ballots are
canvassed under s. 7.52, stats., at a meeting of the
municipal board of absentee ballot canvassers under s.
7.52, stats." If the elector is a military elector,
as defined in s. 6.34 (1), or an overseas elector,
regardless of whether the elector qualifies as a
resident of this state under s. 6.10, and the ballot
was received by the elector by facsimile transmission
or electronic mail and is accompanied by a separate
certificate, the clerk shall enclose the ballot in a
certificate envelope and securely append the completed
certificate to the outside of the envelope before
enclosing the ballot in the carrier envelope. The
clerk shall keep the ballot in the clerk's office or
at the alternate site, if applicable until delivered,
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which "prescribes what happens after an absentee ballot is
received by the clerk." Teigen, 403 Wis. 2d 607, ¶180
(Hagedorn, J., concurring). As Justice Hagedorn observed,
§ 6.88(1) "ensures a strict chain of custody for ballots" once
delivered and § 6.88(2) "provides detailed instructions
regarding the secure transfer of ballots from clerks to the
proper election officials, ensuring there is no opportunity to
tamper with the ballots." Id. "Given the detailed ballot
custody regulations once the ballot arrives at the clerk's
office or an alternate site, legislative silence with respect to
ballots delivered anywhere else strongly indicates delivery is
not permitted anywhere else." Id. (citing Alberte v. Anew
Health Care Servs., Inc., 2000 WI 7, ¶17, 232 Wis. 2d 587, 605
N.W.2d 515).
as required in sub. (2).
(2) When an absentee ballot is received by the
municipal clerk prior to the delivery of the official
ballots to the election officials of the ward in which
the elector resides or, where absentee ballots are
canvassed under s. 7.52, to the municipal board of
absentee ballot canvassers, the municipal clerk shall
seal the ballot envelope in the carrier envelope as
provided under sub. (1), and shall enclose the
envelope in a package and deliver the package to the
election inspectors of the proper ward or election
district or, in municipalities where absentee ballots
are canvassed under s. 7.52, to the municipal board of
absentee ballot canvassers when it convenes under s.
7.52 (1). When the official ballots for the ward or
election district have been delivered to the election
inspectors before the receipt of an absentee ballot,
the clerk shall immediately enclose the envelope
containing the absentee ballot in a carrier envelope
as provided under sub. (1) and deliver it in person to
the proper election officials.
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¶71 The majority in this case builds a straw man to attack
Teigen. It insists Teigen conflated the phrases "to the
municipal clerk" and "to the municipal clerk's office." See
majority op., ¶20. Teigen did no such thing. That case held
Wis. Stat. § 6.87(4)(b)1. is best read as requiring a person-to-
person exchange of an absentee ballot between the voter and the
municipal clerk. The court explained how Wis. Stat. §§ 6.855(1)
and 5.81(3) restrict delivery of absentee ballots in person to
the municipal clerk's office or a designated alternate site.
Teigen never conflated the municipal clerk and the clerk's
office.
¶72 The majority dismisses the relevance of Wis. Stat.
§ 6.855(1)——and simply ignores Wis. Stat. §§ 5.81(3), 7.41(1),
and 6.88(1) and (2)——without ever grappling with the actual
statutory text: In person delivery of a ballot can occur only
at the municipal clerk's office or a designated alternate site.
The majority's argument that the detailed and restrictive
statute for the use of alternate sites says nothing about drop
boxes because "drop boxes are already allowed" under Wis. Stat.
§ 6.87(4)(b)1. merely assumes the majority's conclusion rather
than proves it. Id., ¶30. Given the detailed restrictions in
§ 6.855 on the use of alternate sites, the most plausible
reading of the statute would preclude unmentioned methods of
delivering absentee ballots; otherwise, there would be no reason
whatsoever for the legislature to enact textual restrictions.
The majority provides no rebuttal to this point.
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¶73 The majority's reading of Wis. Stat. § 6.87(4)(b)1. is
not impossible, just implausible, which is why a court committed
to declaring the law rejected it and preserved the statute's
historical meaning. For a more exhaustive exposition of the
law, see Teigen, 403 Wis. 2d 607, ¶¶52-63. For a clearer
glimpse of the policy preferences motivating the majority to
rewrite the law more to its liking, see Justice Ann Walsh
Bradley's dissent in Teigen, in which
Justice Ann Walsh Bradley accuses the court of
"erect[ing] yet another barrier for voters[.]" [B]ut
to the extent any "barriers" to voting exist, they are
of the legislature's making. Establishing rules
governing the casting of ballots outside of election
day rests solely within the power of the people's
representatives because such regulations affect only
the privilege of absentee voting and not the right to
vote itself. Justice Ann Walsh Bradley says "[a]
ballot drop box is a simple and perfectly legal
solution to make voting easier[.]" While they might
be a simple solution, the decision to devise solutions
to make voting easier belongs to the legislature, not
[the Wisconsin Elections Commission] and certainly not
the judiciary. While the dissenters would permit
ballot drop boxes, the court must respect the
constitutional restraints on our power and refuse to
act as a super-legislature. It poses a grave threat
to democracy to mislead the people into believing we
are one.
Id., ¶52 n.25 (some alterations in original) (internal citations
omitted).
¶74 Despite the deceptively narrow framing of the
majority's opinion, this case is not just about drop boxes. The
majority offers no limiting principle for its interpretation of
Wis. Stat. § 6.87(4)(b)1. The endeavor would fail because the
majority's reading of the statute is boundless by design. The
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majority dismantles the carefully regulated privilege of
absentee voting in order to legitimize any method of getting
absentee ballots to a municipal clerk that the clerk may choose.
"[T]he statute does not specify a location to which a ballot
must be returned and requires only that the ballot be delivered
to a location the municipal clerk, within his or her discretion,
designates." Majority op., ¶26. An unattended cardboard box on
the clerk's driveway? An unsecured sack sitting outside the
local library or on a college campus? Door-to-door retrieval
from voters' homes or dorm rooms? Under the majority's logic,
because the statute doesn't expressly forbid such methods of
ballot delivery, they are perfectly lawful. This case is
limited to the use of drop boxes "only if one entertains the
belief that principle and logic have nothing to do with the
decisions of this [c]ourt." Lawrence, 539 U.S. at 605 (Scalia,
J., dissenting). While true of the majority's decision in this
case, that's not how courts of law operate.
¶75 The majority's reading of Wis. Stat. § 6.87(4)(b)1.
allows municipal clerks to create "monumentally different voting
mechanism[s] not specified by the legislature." Teigen, 403
Wis. 2d 607, ¶63 (citing EPA v. EME Homer City Generation, L.P.,
572 U.S. 489, 528 (2014) (Scalia, J., dissenting)). The
majority would have us believe that buried within four innocuous
words, "to the municipal clerk," is a delegation of vast power
to municipal clerks to create an absentee voting regime unlike
anything resembling the law. That is not how any reasonable
reader——much less a judge——reads statutes. Legislatures do not
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"hide elephants in mouseholes," Whitman v. Am. Trucking Ass'ns,
531 U.S. 457, 468 (2001); that is, a reasonable reader assumes
"the legislature 'does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions[.]'"
Teigen, 403 Wis. 2d 607, ¶63 (alteration in original) (quoting
Whitman, 531 U.S. at 468). The majority makes the municipal
clerk the law giver.7 Having constitutionally vested the
legislative power in the legislature alone, the People never
authorized this court to give the lawmaking power to anyone
else.
IV
¶76 Nothing relevant has changed since this court decided
Teigen two years ago. There have been no intervening changes in
the facts or law to warrant overruling the decision. See
Johnson, 407 Wis. 2d 195, ¶20. Nor has any evidence emerged
demonstrating the decision is detrimental to the coherence of
the law or unworkable in practice. Id. The policy-laden
arguments against this court's decision in Teigen have not
changed either; the majority in this case has simply recycled
the dissent in Teigen, rebranding it the opinion of a court.
Compare majority op., ¶¶20-23, with Teigen, 403 Wis. 2d 607,
¶¶219-23 (Ann Walsh Bradley, J., dissenting), and majority op.,
7See Teigen, 403 Wis. 2d 607, ¶58 ("Existing outside the
statutory parameters for voting, drop boxes are a novel creation
of executive branch officials, not the legislature. The
legislature enacted a detailed statutory construct for alternate
sites. In contrast, the details of the drop box scheme are
found nowhere in the statutes, but only in memos prepared by WEC
staff, who did not cite any statutes whatsoever to support their
invention.").
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¶¶29-30, with Teigen, 403 Wis. 2d 607, ¶¶227-29 (Ann Walsh
Bradley, J., dissenting). It does not deserve the title.
¶77 The only thing that has changed since Teigen is the
court's membership. Cf. Clarke, 410 Wis. 2d 1, ¶¶258-61
(Rebecca Grassl Bradley, J., dissenting). As Justice Ann Walsh
Bradley put it in a different case, "There has been no change in
the relevant statutes, no change in the constitution, and no
change in the underlying principles. Nonetheless, the majority
substitutes its will over its obligation to stare decisis."
Lindell, 245 Wis. 2d 689, ¶148 (Ann Walsh Bradley, J.,
concurring).
¶78 Judicial elections do not change the law. See Clarke,
410 Wis. 2d 1, ¶¶258, 262 (Rebecca Grassl Bradley, J.,
dissenting); Garner, supra, 415-16. This court has made clear a
change in the membership of this court is an illegitimate basis
for reconsidering a prior decision——and at least two members of
the majority have emphatically reiterated that point in their
earlier writings,8 only to forsake the principle with alacrity.
8St. Croix Cnty. Dep't of Health & Hum. Servs. v. Michael
D., 2016 WI 35, ¶93, 368 Wis. 2d 170, 880 N.W.2d 107 (Abrahamson
& Ann Walsh Bradley, JJ., dissenting); State v. Lynch, 2016 WI
66, ¶102, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh
Bradley, JJ., concurring in part, dissenting in part); Koschkee
v. Taylor, 2019 WI 76, ¶¶62, 70, 387 Wis. 2d 552, 929 N.W.2d 600(Ann Walsh Bradley, J., dissenting) (joined by Dallet, J.);
State v. Lindell, 2001 WI 108, ¶146, 245 Wis. 2d 689, 629
N.W.2d 223 (Ann Walsh Bradley, J., concurring); Mayo v. Wis.
Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383
Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh Bradley, J., dissenting);
State v. Roberson, 2019 WI 102, ¶98, 389 Wis. 2d 190, 935
N.W.2d 813 (Dallet, J., dissenting) (joined by Ann Walsh
Bradley, J.).
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The justices forming the majority make no attempt to reconcile
their prior writings with today's opinion. "[P]rinciples
adopted when convenient, and ignored when inconvenient, are not
principles at all. It is precisely when one's principles are
tested and costly——yet are kept nonetheless——that they prove
themselves truly held." Clarke, 410 Wis. 2d 1, ¶268 (Hagedorn,
J., dissenting).
V
¶79 "[T]he Judge should never be the Legislator: Because,
then the Will of the Judge would be the Law[.]" Rogers v.
Tennessee, 532 U.S. 451, 476 (2001) (Scalia, J., dissenting)
(internal quotation marks omitted) (quoting 1 M. Horwitz,
Transformation of American Law 1780–1860, at 5 (1977)). The
members of the majority in this case make their will the law,
according four lawyers on the state's highest court the
unchecked power to say what the law shall be, rather than what
it is. The author of today's decree once deemed this court's
analysis of the law as "downright dangerous to our democracy,"
Teigen, 403 Wis. 2d 607, ¶246 (Ann Walsh Bradley, J.,
dissenting), but the real danger lies in the new majority's
arrogation of power the People never gave it. "[L]iberty can
have nothing to fear from the judiciary alone, but would have
every thing to fear from its union with either of the other
departments." The Federalist No. 78, at 523 (Alexander
Hamilton) (Jacob E. Cooke ed., 1961).
¶80 Intense partisan politics saturate our nation,
exacerbated by a lack of institutional trust. The legitimacy of
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elections continues to be questioned, each side accusing the
other of "election interference" and "threatening democracy" or
even the very foundation of our constitutional republic. The
majority's decision in this case will only fuel the fires of
suspicion.
¶81 Whatever can be said of the majority's decision, it
"is not the product of neutral, principled judging." Clarke,
410 Wis. 2d 1, ¶265 (Hagedorn, J., dissenting). Although the
majority attempts to package its disagreements with Teigen as
legal, the truth is obvious: The majority disagrees with the
decision as a matter of policy and politics, not law. The
members of the majority believe using drop boxes is good policy,
and one they hope will aid their preferred political party.
Teigen upheld the historical meaning of Wis. Stat.
§ 6.87(4)(b)1., which bars the use of offsite, unmanned drop
boxes. The majority in this case overrules Teigen not because
it is legally erroneous, but because the majority finds it
politically inconvenient. The majority's activism marks another
triumph of political power over legal principle in this court.
I dissent.
¶82 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this dissent.
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1