Dean Phillips v. Wisconsin Elections Commission ( 2024 )

2024 WI 8SUPREME COURT OF WISCONSIN
CASE NO.: 2024AP138-OA
COMPLETE TITLE: Dean Phillips,
Petitioner,
v.
Wisconsin Elections Commission and Wisconsin
Presidential
Preference Selection Committee,
Respondents.
PETITION FOR ORIGINAL ACTION
OPINION FILED: February 2, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
ATTORNEYS:
2024 WI 8NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2024AP138-OA
STATE OF WISCONSIN : IN SUPREME COURT
Dean Phillips,
Petitioner, FILED
v.
FEB 2, 2024
Wisconsin Elections Commission and Wisconsin
Presidential Preference Selection Committee, Samuel A. Christensen
Clerk of Supreme Court
Respondents.
ORIGINAL ACTION. Rights declared; mandamus relief granted.
¶1 PER CURIAM. This court is asked to exercise its
original jurisdiction to review the decision of the Wisconsin
Presidential Preference Selection Committee (the Selection
Committee) and issue a writ of mandamus directing the Wisconsin
Elections Commission (the Commission) to place the name of Dean
Phillips on the 2024 Democratic presidential preference primary
ballot.1 As in McCarthy v. Elections Board, 166 Wis. 2d 481, 480
N.W.2d 241 (1992), and Labor & Farm Party v. Elections Board, 117
1When the Selection Committee and the Commission are
referenced collectively in this opinion, we will refer to them as
"the respondents."
No. 2024AP138-OA
Wis. 2d 351, 344 N.W.2d 177 (1984), we conclude that this matter
is publici juris, and we exercise our original jurisdiction. We
further conclude that the 2024 Selection Committee failed to
demonstrate that it exercised discretion in applying the
standard in Wis. Stat. § 8.12(1)(b)(2021-22)2 to Dean Phillips,
and we direct that the name of Dean Phillips be placed on the
2 All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated. Section
8.12(1)(b), Stats., provides:
On the first Tuesday in January of each year, or
the next day if Tuesday is a holiday, in which
electors for president and vice president are to be
elected, there shall be convened in the capitol a
committee consisting of, for each party filing a
certification under this subsection, the state
chairperson of that state party organization or the
chairperson's designee, one national committeeman
and one national committeewoman designated by the
state chairperson; the speaker and the minority
leader of the assembly or their designees, and the
president and the minority leader of the senate or
their designees. All designations shall be made in
writing to the commission. This committee shall
organize by selecting an additional member who
shall be the chairperson and shall determine, and
certify to the commission, no later than on the
Friday following the date on which the committee
convenes under this paragraph, the names of all
candidates of the political parties represented on
the committee for the office of president of the
United States. The committee shall place the names
of all candidates whose candidacy is generally
advocated or recognized in the national news media
throughout the United States on the ballot, and
may, in addition, place the names of other
candidates on the ballot. The committee shall have
sole discretion to determine that a candidacy is
generally advocated or recognized in the national
news media throughout the United States.
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No. 2024AP138-OA
Democratic presidential preference ballot as a candidate for the
office of President of the United States.
¶2 Section 8.12(1)(b), Stats., prescribes the members of
the Selection Committee. Those members include the chairs of the
political parties (or their designees), a number of legislative
leaders (or their designees), a number of political party
representatives, and an additional member chosen by other members
to serve as the chair of the Selection Committee. The statute
assigns one task to the Selection Committee —— to determine which
candidates have candidacies that are "generally advocated or
recognized in the national news media throughout the United States"
(the media advocacy or recognition standard). Wis. Stat.
§ 8.12(1)(b).3 The Selection Committee is granted discretion in
determining whether a particular candidacy meets that standard,
but it is statutorily mandated to perform that analysis. If the
Selection Committee concludes that a candidacy meets that
standard, the statute says that it "shall place" that candidate's
name on the presidential preference primary ballot. Id.¶3 The relevant facts underlying the present action are
undisputed. Dean Phillips is a United States representative
serving the 3rd District of Minnesota. He is a declared candidate
for the Democratic Party's nomination for the 2024 presidential
election. Phillips recently appeared on the New Hampshire
According to the statute, the Selection Committee may place
3
other names on the presidential preference primary ballot in
addition to the names of those candidates who meet the media
advocacy or recognition standard.
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No. 2024AP138-OA
Democratic presidential primary ballot and wishes to appear on
Wisconsin's presidential preference primary ballot. In early
December 2023, Phillips' campaign advised the Democratic Party of
Wisconsin of his desire to appear on the presidential preference
primary ballot. As noted above, the chair of that party served as
a member of the 2024 Selection Committee.
¶4 On January 2, 2024, at 10:00 a.m., the Selection
Committee convened the presidential candidate selection meeting as
required by Wis. Stat. § 8.12(1)(b). The two party chairs listed
the names of the candidates that their respective parties sought
to have listed on the presidential preference ballot. The chair
of the Democratic Party of Wisconsin listed only the name of Joseph
Biden to be placed on the Democratic presidential preference
primary ballot. Without any discussion, the Selection Committee
unanimously adopted a motion to place the names submitted by the
party chairs on the ballot. After adopting a procedural motion
regarding the minutes of the meeting, the Selection Committee
adjourned. The Selection Committee held no discussion about
Phillips or any other Democratic presidential primary candidate.
The entire meeting lasted just over five minutes.
¶5 On January 26, 2024, Phillips filed a petition for leave
to commence an original action under Wis. Stat. § (Rule) 809.70
and for a writ of mandamus asking this court to declare that the
Selection Committee erroneously exercised its discretion by
failing to consider whether Phillips should be placed on the ballot
for Wisconsin's 2024 Democratic presidential preference primary on
the ground that Phillips' "candidacy is generally advocated or
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No. 2024AP138-OA
recognized in the national news media throughout the United
States." Wis. Stat. § 8.12(1)(b).
¶6 On January 31, 2024, the respondents filed a response to
the original action petition arguing that this court should decline
to exercise its original jurisdiction because Phillips
unreasonably delayed in seeking relief from the actions taken by
the Selection Committee on January 2, 2024. The respondents
further argue that in the event this court were to exercise its
original jurisdiction, it should deny Phillips the relief he seeks.
The respondents assert that Phillips could have, but chose not to,
gather at least 8,000 signatures (1,000 from each Congressional
district) and submit a petition to the Commission to appear on the
ballot, see Wis. Stat. § 8.12(1)(c), and he also did not promptly
seek judicial relief. The respondents also argue that Phillips
lacks standing to bring his claim because § 8.12(1)(b) gives
Phillips no protected interest in having the Selection Committee
discuss whether he was a nationally recognized candidate
throughout the United States. The respondents assert:
To the contrary, the statute says nothing about how the
Committee decides whether an individual has that status,
and its decision on that question is left to its "sole
discretion." The statutes provide different recourse:
an individual who wishes to appear in the presidential
preference primary can simply gather 8,000 signatures
from Wisconsinites around the State and file a petition
with the Commission.
¶7 The respondents further assert that mandamus is not an
appropriate vehicle for the remedies Phillips seeks because
mandamus does not allow courts to step in to perform discretionary
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No. 2024AP138-OA
tasks the Legislature has assigned to others. The respondents
argue that Phillips is asking this court to act as the Selection
Committee and determine that he is a nationally recognized
candidate, but the statutes assign this task to the Selection
Committee in its sole discretion——not to the judiciary. The
respondents acknowledge that this court did utilize a mandamus
remedy in McCarthy, but they assert that case was wrongly decided
and ask the court to revisit it.
¶8 On February 1, 2024, we issued an order directing the
Commission not to transmit the certified list of presidential
preference primary candidates to county clerks until further order
of this court so that we could have time to consider the merits of
this matter and issue our written decision.4 That same day we
granted Phillips' motion to file a reply brief in support of his
petition. The reply states that if Phillips had obtained 8,000
signatures and had filed a petition with the Commission by the
statutorily imposed January 30, 2024 deadline,5 as the respondents
argue he should have done, that course of action would have delayed
4 Section 7.08(2)(d), Stats., requires the Commission to
transmit a certified list of candidates for president to be placed
on the presidential preference primary ballot "[a]s soon as
possible after the last Tuesday in January." After we had issued
our order, counsel for the Commission advised us that the
Commission had already transmitted a partial certified list
containing the names of the candidates for the Republican
presidential preference primary. The Commission, however, has not
transmitted the portion of the certified list containing the names
of the candidates for the Democratic presidential preference
primary, presumably recognizing that it should not do so while
this matter was pending before us.
5 See Wis. Stat. § 8.12(1)(c).
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No. 2024AP138-OA
the Commission's preparation and transmittal of a certified list
of candidates by several days, as Wisconsin's ballot access
regulations allow time for the Commission to review petitions; for
parties to challenge petitions; for candidates to oppose
challenges; and for the Commission to resolve challenges.
¶9 We find this case to be on all fours with McCarthy, and
we grant the relief sought by Phillips. As in McCarthy, we
determine only whether the Selection Committee erroneously
exercised its discretion. We find that here, as was the case in
McCarthy, "there is no evidence" that the Selection Committee's
decision not to certify the subject candidate's name for ballot
placement "was based on the Selection Committee's having properly
applied the statutory standard of media advocacy or recognition"
to the candidate's candidacy. McCarthy, 166 Wis. 2d at 489.
McCarthy makes clear that the Selection Committee's consideration
of this statutory standard is not to be a pro forma or perfunctory
exercise, but one that involves a consideration and weighing of
the facts at hand as to "all candidates." That did not occur here.
As in McCarthy, we conclude that the Committee's "failure to
exercise at all the discretion conferred upon it by statute
constitutes an abuse of that discretion." Id. at 490. As we
explained in McCarthy:
The law governing the selection of names for ballot
placement in the presidential preference election is
inclusionary, not exclusionary. While requiring ballot
placement of the name of each candidate whose candidacy
the Selection Committee determines meets the news media
recognition advocacy or recognition test, the statute
gives the Selection Committee broad discretion to
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No. 2024AP138-OA
certify other candidates for ballot placement. The
proper exercise of the Selection Committee's discretion
does not permit it to ignore the names of persons known
to have declared their candidacy of the Republican, the
Democratic or any other party for the office of U.S.
President or who had expressed to the Selection
Committee interest in being placed on the preference
ballot.
Id.¶10 We find unavailing the respondents' laches defense.
Although the Commission indicates that there is a need to complete
the candidate certification process as quickly as possible, there
is no assertion before us that a resolution of this matter by
today's date will prohibit the proper, timely finalization and
distribution of primary ballots. Laches cannot possibly act as a
bar to the placement of Mr. Phillips' name on the primary ballot
when there is still sufficient time to do so. See Wisconsin Small
Businesses United, Inc. v. Brennan, 2020 WI 69, ¶12, 393 Wis. 2d
308, 946 N.W.2d 101 (holding that the party asserting laches must
show, among other things, prejudice resulting from the other
party's delay). While we do not condone Mr. Phillips' delay in
bringing this action, without a showing of prejudice laches cannot
apply.
¶11 Nor are we persuaded by respondents' assertions that Mr.
Phillips lacks standing to bring this action, or that the only
relief properly available to him was his statutorily authorized
opportunity to submit to the Commission a petition for ballot
placement with the requisite number of signatures. See Wis. Stat.
§ 8.12(1)(c). These assertions are irreconcilable with the result
in McCarthy, where we directed an identically situated
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No. 2024AP138-OA
petitioner's name to be placed on the primary ballot after
determining that the Presidential Preference Selection Committee
failed to properly exercise the discretion conferred upon it by
Wis. Stat. § 8.12(1)(b).
¶12 As in McCarthy, we conclude that the Presidential
Preference Selection Committee erroneously exercised its
discretion under Wis. Stat. § 8.12(1)(b) with respect to Phillips.
We ordinarily would remand the matter back to the Selection
Committee with directions for it to properly exercise its
discretion. The Commission, however, advises us that there is a
need for the certified list of candidates to be transmitted so
that the local election officials can begin the process of
preparing, printing, delivering, and mailing absentee ballots by
the statutorily required deadlines.6 We therefore conclude that
there is insufficient time to permit remand to the Selection
Committee for the proper exercise of discretion. Consequently,
we direct that the name of Dean Phillips be placed on the 2024
Democratic presidential preference primary ballot as a candidate
for the office of president of the United States. Our February 1,
2024 order directed to the Wisconsin Elections Commission is hereby
Pursuant to Wis. Stat. § 7.10(3)(a), each county clerk is
6
required to deliver presidential preference primary ballots to all
of the municipal clerks in his or her county 48 days before the
presidential preference primary, which in the present instance
would be February 14, 2024. Municipal clerks are then required to
mail presidential preference primary ballots to absentee voters
who have requested them by the 47th day before the preference
primary, which would be February 15, 2024. Wis. Stat.
§ 7.15(1)(cm).
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No. 2024AP138-OA
vacated. After Phillips' name is added to the certified list of
presidential preference primary candidates, the Wisconsin
Elections Commission shall promptly transmit the certified list of
the candidates for the Democratic presidential preference primary
to the county clerks pursuant to Wis. Stat. § 7.08(2)(d).
By the court.—Rights declared; mandamus relief granted.
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No. 2024AP138-OA
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