Mark Jefferson v. Dane County, Wisconsin

2020 WI 90
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP557-OA
COMPLETE TITLE: Mark Jefferson and the Republican Party of
Wisconsin,
Petitioners,
v.
Dane County, Wisconsin and Scott McDonell in his
official capacity as Dane County Clerk,
Respondents,
Disability Rights Wisconsin,
Intervenor-Respondent.
ORIGINAL ACTION
OPINION FILED: December 14, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 29, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
ROGGENSACK, C.J., delivered the majority opinion of the Court,
in which ZIEGLER, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined, and in which DALLET and KAROFSKY, JJ., joined with
respect to Parts II.C. and II.D.1. ANN WALSH BRADLEY, J., filed
an opinion concurring in part, and dissenting in part. DALLET,
J., filed an opinion concurring in part, and dissenting in part,
in which KAROFSKY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners briefs were filed by Eric M. McLeod, Lane
E. Ruhland, Lisa M. Lawless and Husch Blackwell LLP, Madison and
Milwaukee. Oral argument presented by Eric M. McLeod.
For the respondents a brief was filed by David R. Gault,
Office of the Dane County Corporation Counsel, Madison. Oral
argument presented by David R. Gault.
For the intervenor-respondent, a brief was filed by Jeffrey
A. Mandell, Douglas M. Poland, Kurt M. Simatic and Stafford
Rosenbaum LLP, Madison. Oral Argument was presented by Jeffrey A.
Mandell.
An amicus curiae brief was filed on behalf of the Legislature
by Misha Tseytlin, Kevin M. Leroy, and Troutman Sanders LLP.
2
2020 WI 90
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP557-OA
STATE OF WISCONSIN : IN SUPREME COURT
Mark Jefferson and the Republican Party of
Wisconsin,
Petitioners,
v.
FILED
Dane County, Wisconsin and Scott McDonell in DEC 14, 2020
his official capacity as Dane County Clerk,
Sheila T. Reiff
Clerk of Supreme Court
Respondents,
Disability Rights Wisconsin,
Intervenor-Respondent.
ROGGENSACK, C.J., delivered the majority opinion of the Court, in
which ZIEGLER, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined,
and in which DALLET and KAROFSKY, JJ., joined with respect to Parts
II.C. and II.D.1. ANN WALSH BRADLEY, J., filed an opinion
concurring in part, and dissenting in part. DALLET, J., filed an
opinion concurring in part, and dissenting in part, in which
KAROFSKY, J., joined.
ORIGINAL ACTION. Rights declared.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review Mark
Jefferson and the Republican Party of Wisconsin's (collectively
No. 2020AP557-OA
"Petitioners") Petition for Original Action that seeks a
declaration that (1) Respondents lack the authority to issue an
interpretation of Wisconsin's election law allowing all electors
in Dane County to obtain an absentee ballot without a photo
identification and (2) Governor Evers' Emergency Order #12
("Emergency Order #12") did not authorize all Wisconsin voters to
obtain an absentee ballot without a photo identification.
¶2 To answer these questions, we interpret Wis. Stat.
§ 6.86(2)(a) (2017–18).1 In so doing, we conclude § 6.86(2)(a)
requires that (1) each individual elector make his or her own
determination as to whether the elector is indefinitely confined;
(2) an elector's determination may be based only upon age, physical
illness or infirmity; and (3) an elector is indefinitely confined
for his or her own age, physical illness or infirmity, not those
of another person.
¶3 Accordingly, we conclude that the Respondents'
interpretation of Wisconsin election laws was erroneous.
Additionally, we conclude that Emergency Order #12 did not render
all Wisconsin electors "indefinitely confined," thereby obviating
the requirement of a valid photo identification to obtain an
absentee ballot.
I. BACKGROUND
¶4 On March 25, 2020, and in response to the COVID-19
pandemic and Governor Evers' Emergency Order #12, the Dane County
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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Clerk, Scott McDonell, issued the following statement on his
personal Facebook page:
I have informed Dane County Municipal Clerks that during
this emergency and based on the Governors Stay at Home
order I am declaring all Dane County voters may indicate
as needed that they are indefinitely confined due to
illness. This declaration will make it easier for Dane
County voters to participate in this election by mail in
these difficult times. I urge all voters who request a
ballot and have trouble presenting a[] valid ID to
indicate that they are indefinitely confined.
People are reluctant to check the box that says they are
indefinitely confined but this is a pandemic. This
feature in our law is here to help preserve everyone's
right to vote.
The process works like this:
 A voter visit's [sic] myvote.wi.gov to request a
ballot.
 A voter can select a box that reads "I certify that I
am indefinitely confined due to age [,] illness,
infirmity or disability and request ballots be sent
to me for every election until I am no longer confined
or fail to return a ballot.["]
 The voter is then able to skip the step of uploading
an ID in order to receive a ballot for the April 7
election.
Voters are confined due to the COVID-19 illness. When
the Stay at Home order by the Governor is lifted, the
voter can change their designation back by contacting
their clerk or updating their information in
myvote.wi.gov.
Voters who are able to provide a copy of their ID should
do so and not indicate that they are indefinitely
confined.
¶5 The Milwaukee County Clerk issued a nearly identical
declaration on Facebook later that same day. The Milwaukee County
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Clerk "urge[d] all voters who request a ballot and do not have the
ability or equipment to upload a valid ID to indicate that they
are indefinitely confined." The county clerks circulated these
statements to their municipal clerks.
¶6 Responding to the confusion that these two statements
caused, the Wisconsin Elections Commission ("WEC") issued proposed
guidance on when voters may declare themselves indefinitely
confined. The WEC's proposed guidance, issued on March 27, 2020,
reads as follows:
1. Designation of indefinitely confined status is for
each individual voter to make based upon their
current circumstance. It does not require permanent
or total inability to travel outside of the
residence. The designation is appropriate for
electors who are indefinitely confined because of
age, physical illness or infirmity or are disabled
for an indefinite period.
2. Indefinitely confined status shall not be used by
electors simply as a means to avoid the photo ID
requirement without regard to whether they are
indefinitely confined because of age, physical
illness, infirmity or disability.
¶7 McDonell went to Facebook again to express that he was
"[g]rateful that the Wisconsin Election Commission voted to agree
with me that the designation of indefinitely confined status is
for each individual voter to make based upon their current
circumstances. . . ." Later that night, McDonell posted the
following:
More from me on this topic. The Wisconsin Election
Commission met on Friday and issued further guidance to
clarify the purpose and proper use of the indefinitely
confined status under Wis[.] Stat[]. [§] 6.86(2) as
follows:
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No. 2020AP557-OA
1. Designation of indefinitely confined status is for
each individual voter to make based upon their current
circumstances. It does not require permanent or total
inability to travel outside of the residence. The
designation is appropriate for electors who are
indefinitely confined because of age, physical illness
or infirmity or are disabled for an indefinite period of
time.
2. Indefinitely confined status shall not be used by
electors simply as a means to avoid the photo ID
requirement without regard to whether they are
indefinitely confined because of age, physical illness,
infirmity, or disability.
Voters should follow this guidance when determining
whether they qualify to claim that they are indefinitely
confined as a result of the COVID-19 pandemic and
declared public health emergency.
¶8 Petitioners filed this Original Action on March 27,
2020, seeking declarations that (1) the Respondents'
interpretation of Wisconsin's election laws was erroneous and
(2) Emergency Order #12 did not render all Wisconsinites
indefinitely confined such that they could obtain an absentee
ballot without presenting a photo ID. Petitioners also sought a
preliminary injunction directing McDonell to remove his posts and
to issue a statement correcting his erroneous interpretation.
¶9 On March 31, 2020, we granted the Petitioners' request
for preliminary injunctive relief. In that Order, we concluded
"that clarification of the purpose and proper use of the
indefinitely confined status pursuant to Wis. Stat.
§ 6.86(2)[a] . . . [is] warranted." Additionally, we noted that
"the WEC's guidance . . . provides the clarification on the
purpose and proper use of the indefinitely confined status that is
required at this time." Further, we ordered "McDonell to refrain
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No. 2020AP557-OA
from posting advice as the County Clerk for Dane County
[inconsistent with] the . . . WEC guidance." We granted the
Petition for Original Action and assumed jurisdiction over this
case the following day.
¶10 While this case was pending, the April 7, 2020 election
occurred and Wisconsin saw an increase in absentee ballots cast by
electors who had claimed to be indefinitely confined. WEC records
show that there were 194,544 such absentee ballots cast by voters
in the 2020 Spring Election.2 In contrast, the 2016 Spring Election
saw 55,334 voters who obtained absentee ballots by claiming to be
indefinitely confined.
¶11 After we accepted review, the Respondents filed a
document that "stipulate[d] that the two propositions, as stated
by the Petitioners are an accurate statement of the law."
Disability Rights Wisconsin ("DRW") intervened later.
II. DISCUSSION
¶12 We review this case under our original jurisdiction
found in Article VII, Section 3(2) of the Wisconsin Constitution.
Within our original jurisdiction, we have granted declaratory
judgment when "a judgment by the court significantly affects the
The WEC's statistics for the April 7, 2020 Election are
2
available at https://elections.wi.gov/sites/elections.wi.gov/
files/2020-05/WEC%XXX-XX-XXXX%20PowerPoint%20Presentation.pdf
(hereinafter, WEC Statistics). We may take judicial notice of
these statistics because we determine the WEC's post-election
report is a source whose accuracy cannot be reasonably questioned.
See Wis. Stat. § 902.01(2); see also Sisson v. Hansen Storage Co.,
2008 WI App 111, ¶¶10–11, 313 Wis. 2d 411, 756 N.W.2d 667 (stating
that "appellate court[s] may take judicial notice
when . . . appropriate").
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No. 2020AP557-OA
community at large." Wisconsin Pro. Police Ass'n, Inc. v.
Lightbourn, 2001 WI 59, ¶4, 243 Wis. 2d 512, 627 N.W.2d 807.
A. Standard of Review
¶13 The interpretation and the application of Wis. Stat.
§ 6.86 present questions of law that we review independently.
Dawson v. Town of Jackson, 2011 WI 77, ¶17, 336 Wis. 2d 318, 801
N.W.2d 316. Although the WEC has issued official guidance, we
interpret § 6.86(2)(a) without deference to the agency's
interpretation. See Lamar Cent. Outdoor, LLC v. Div. of Hearings
& Appeals, 2019 WI 109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (citing
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914
N.W.2d 21).
B. Mootness
¶14 Respondents contend that their stipulation on questions
of law makes the issues presented herein moot. However, we are
not bound by stipulations on questions of law. State v. Olson,
127 Wis. 2d 412, 419, 380 N.W.2d 375 (Ct. App. 1985) (citing Swift
& Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917)). Rather,
we decide the legal issue at the heart of this controversy, i.e.,
the interpretation and application of Wis. Stat. § 6.86(2)(a) in
the context presented.
¶15 Respondents also contend that the issue presented is
moot because the clerk corrected his erroneous advice, the election
occurred and Executive Order #12 has expired. However, even in
cases where an issue is moot, we may nevertheless reach the merits
of the dispute. We may do so when "(1) the issue is of great
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No. 2020AP557-OA
public importance; (2) the situation occurs so frequently that a
definitive decision is necessary to guide circuit courts; (3) the
issue is likely to arise again and a decision of the court would
alleviate uncertainty; or (4) the issue will likely be repeated,
but evades appellate review because the appellate review process
cannot be completed or even undertaken in time to have a practical
effect on the parties." In re John Doe Proceeding, 2003 WI 30,
¶19, 260 Wis. 2d 653, 660 N.W.2d 260; see Fine v. Elections Bd.,
95 Wis. 2d 162, 166, 289 N.W.2d 823 (1980). Also, challenges to
the constitutionality of a statute may cause the court to reach
the merits of the contention. Portage Cnty. v. J.W.K., 2019 WI
54, ¶29, 386 Wis. 2d 672, 927 N.W.2d 509. Without correction, the
erroneous interpretation and application of Wis. Stat.
§ 6.86(2)(a), which affect matters of great public importance, are
capable of repetition. See Mueller v. Jensen, 63 Wis. 2d 362,
366-67, 217 N.W.2d 277 (1974). Accordingly, we choose to address
the issues presented.
C. Election Statutes
¶16 Before turning to the interpretation of Wis. Stat.
§ 6.86(2)(a) we provide a brief overview of Wisconsin's absentee
ballot laws. Chapter 6 of the Wisconsin Statutes governs "the
electors" and the processes by which Wisconsinites cast their
ballots. Voting is a constitutional right, the exercise of which
is "strongly encouraged." Wis. Stat. § 6.84(1). However, "voting
by absentee ballot is a privilege exercised wholly outside the
traditional safeguards of the polling place." Id. As such,
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"matters relating to the absentee ballot process . . . shall
be . . . mandatory." Wis. Stat. § 6.84(2). We have held that
where an election statute is mandatory, its exercise requires
strict compliance. See State ex rel. Ahlgrimm v. State Elections
Bd., 82 Wis. 2d 585, 597, 263 N.W.2d 152 (1978). Consequently,
"[b]allots counted in contravention of the procedures . . . may
not be included in the certified result of any election."
§ 6.84(2).
¶17 Ordinarily, when an elector chooses to vote by absentee
ballot, the elector must comply with the procedure set forth in
Wis. Stat. § 6.86(1). In most circumstances, the requirements to
obtain an absentee ballot are twofold: (1) apply3 with the
elector's municipal clerk and (2) provide a photo proof of
identification with the application. See Wis. Stat.
§§ 6.86(1)(a), (ac); see also Wis. Stat. § 6.87(1), and Wis. Stat.
§ 5.02(6m). After an elector has completed this process once and
has not changed his or her name or address since providing proof
of identification, the elector need not continuously provide proof
of identification for each election in which the elector votes
absentee. § 6.87(4)(b)3.
3WEC's form, "Application for Absentee Ballot," provides
electors with three options for receipt of an absentee ballot.
Electors may receive ballots (1) for a specific election; (2) for
all elections in a calendar year; or (3) automatically for all
elections, as an indefinitely confined voter. The application is
clear that the third option is "[f]or indefinitely-confined voters
only" and that making "false statements in order to obtain an
absentee ballot" is punishable by a fine of not more than $1,000,
not more than six-months imprisonment or both.
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No. 2020AP557-OA
¶18 Wisconsin Stat. § 6.86(2)(a) has different criteria. It
provides:
An elector who is indefinitely confined because of age,
physical illness or infirmity or is disabled for an
indefinite period may by signing a statement to that
effect require that an absentee ballot be sent to the
elector automatically for every election. The
application form and instructions shall be prescribed by
the commission, and furnished upon request to any
elector by each municipality. The envelope containing
the absentee ballot shall be clearly marked as not
forwardable. If any elector is no longer indefinitely
confined, the elector shall so notify the municipal
clerk.
As set out above, there are two classes of electors who can request
an absentee ballot pursuant to the provisions of
§ 6.86(2)(a): (1) an elector who is indefinitely confined or
(2) an elector who is disabled for an indefinite period.
¶19 If an elector qualifies to receive an absentee ballot
under either classification, the elector is not required to provide
photo identification to obtain that ballot. Wis. Stat.
§ 6.87(4)(b)2. Rather, the elector may "submit with his or her
absentee ballot a statement signed by the same individual who
witnesses voting of the ballot which contains the name and address
of the elector and verifies that the name and address are correct."
§ 6.87(4)(b)2.
¶20 In addition, when an elector qualifies to receive an
absentee ballot because he or she is indefinitely confined or
disabled for an indefinite period, the elector automatically
receives an absentee ballot for every election until the elector
notifies the municipal clerk that he or she is no longer
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No. 2020AP557-OA
indefinitely confined, fails to cast and return a ballot, or the
clerk receives reliable information that the "elector no longer
qualifies for the service." Wis. Stat. §§ 6.86(2)(a), (b).4
D. Indefinitely Confined
¶21 The crux of the issue before us is when may an elector
obtain a ballot as indefinitely confined pursuant to Wis. Stat.
§ 6.86(2)(a), rather than by way of the usual absentee ballot
process set out in § 6.86(1). The purpose of statutory
interpretation and application is to apply the meaning of the words
the legislature chose. State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
"Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Kalal, 271 Wis. 2d 633, ¶45. If the language chosen is
clear and unambiguous, we stop the inquiry and apply the plain
meaning of those words. Id., ¶¶45, 46. Important to the meaning
of a statute is the context in which it occurs, and we interpret
statutes to reasonably give effect to every word. Id., ¶46.
¶22 We conclude, as we explain below, that based on the plain
language of Wis. Stat. § 6.86(2)(a): (1) declaring oneself
4 Because an elector who qualifies to receive an initial
absentee ballot as indefinitely confined receives an absentee
ballot without providing photo identification, and because such an
elector continues to receive absentee ballots for each subsequent
election until the clerk changes the elector's status, such an
elector may vote in many elections without ever providing photo
identification.
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No. 2020AP557-OA
indefinitely confined or disabled for an indefinite period is an
individual determination that only an individual elector can make;
(2) an elector is indefinitely confined for purposes of
§ 6.86(2)(a) for only the enumerated reasons therein; and (3) an
elector is indefinitely confined due to his or her own age,
physical illness, or infirmity, not the age, physical illness, or
infirmity of another person.
1. Individual Determination
¶23 The plain language of Wis. Stat. § 6.86(2)(a) requires
that each elector make an individual assessment to determine
whether he or she qualifies as indefinitely confined or disabled
for an indefinite period. A county clerk may not "declare" that
any elector is indefinitely confined due to a pandemic. This
conclusion is supported by two distinct, but equally important,
reasons.
¶24 First, as a fundamental matter, county clerks are not to
interpret Wisconsin's election laws and make declarations based on
those interpretations. It is the WEC that is responsible for
guidance in the administration and enforcement of Wisconsin's
election laws, not the county clerks. See generally Wis. Stat.
§ 5.05. County clerks have different responsibilities such as
(1) providing election supplies and ballots, (2) preparing
ballots, (3) adhering to the election time schedule, (4) resolving
doubts that relate to election notices, (5) certifying candidates
for municipal judges, (6) assisting the WEC in conducting the WEC's
voter education, (7) maintaining toll-free telephone lines to
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No. 2020AP557-OA
exchange voting information, (8) training election officials, and
(9) reporting information to the WEC. Wis. Stat. §§ 7.10(1)–(10).
Nowhere in these duties did the legislature include disseminating
information based on the clerk's interpretation of absentee voting
laws.5
¶25 Next, as we stated above, whether to declare oneself
indefinitely confined is an individual determination. The plain
language of the statute does not permit persons other than the
elector to make that decision. We will not add words into a
statute that the legislature did not see fit to employ. See
Dawson, 336 Wis. 2d 318, ¶42 (citing County of Dane v. LIRC, 2009
WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571). Therefore, neither
county clerks nor an order of the Governor may declare persons
indefinitely confined.
¶26 The remainder of Wis. Stat. § 6.86(2)(a) supports this
interpretation. For example, para. (2)(a) requires the elector to
inform the municipal clerk if the elector is no longer indefinitely
confined. If county clerks were permitted to declare all electors
within their county indefinitely confined due to COVID-19 and
Emergency Order #12, they would confuse when individual electors
are to follow § 6.86(2)(a)'s mandate that the elector notify the
5 This structure is part of Wisconsin's decentralized election
system. The legislature has delegated to the WEC the
responsibilities of, among others, administering, enforcing and
promulgating rules relating to the election laws. At the local
level, the legislature gave county clerks the responsibility of
ensuring that municipal clerks have the supplies and information
necessary to operate elections.
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No. 2020AP557-OA
clerk that he or she is no longer indefinitely confined.
Furthermore, if individual electors did not follow the statutory
mandate and continued to vote as indefinitely confined, despite no
longer meeting the statutory requirements, they would cast their
votes contrary to the statute. In turn, because compliance with
the absentee ballot process is mandatory, their ballots would not
count. Wis. Stat. §§ 6.84(1), (2).
¶27 Accordingly, we conclude that whether an elector
qualifies as indefinitely confined is a determination that
individual electors make, not third parties.
2. Indefinite Confinement
¶28 Having concluded that it is the individual elector who
decides whether that elector is indefinitely confined or disabled
for an indefinite period, we now turn to the statutory criteria
that may result in indefinite confinement pursuant to Wis. Stat.
§ 6.86(2)(a).
¶29 An elector is eligible to obtain an absentee ballot under
Wis. Stat. § 6.86(2)(a) if that elector is "indefinitely confined
because of age, physical illness or infirmity." The statute
enumerates three reasons sufficient to constitute indefinite
confinement. When the legislature explicitly includes certain
conditions in meeting a statutory standard, we may presume that
the legislature purposefully excluded others. FAS, LLC v. Town of
Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287 ("Under
the doctrine of expressio unius est exclusio alterius, 'the express
mention of one matter excludes other similar matters [that are]
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No. 2020AP557-OA
not included.'") (quoting Perra v. Menomonee Mut. Ins. Co., 2000
WI App 215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (alteration in
original).
¶30 It is not necessary to define each enumerated category
of indefinite confinement in the context of this case.
Nonetheless, we conclude that both the contention that electors
qualify as indefinitely confined solely as the result of the COVID-
19 pandemic and the declared public health emergency and the
contention that Wis. Stat. § 6.86(2)(a) could be used for those
who "have trouble presenting a valid ID" are erroneous because
those reasons do not come within the statutory criteria.
¶31 First, the presence of a communicable disease such as
COVID-19, in and of itself, does not entitle all electors in
Wisconsin to obtain an absentee ballot under Wis. Stat.
§ 6.86(2)(a). Similarly, an emergency order that required all
Wisconsinites to remain in their homes except for limited
circumstances, standing alone, was not a condition based on age,
a physical illness, or an infirmity. Finally, having trouble
uploading or providing proof of a photo identification does not
permit electors to avoid both the absentee voting laws and the
voter identification laws.
¶32 For these reasons, we conclude that in order to take
advantage of Wis. Stat. § 6.86(2)(a)'s photo identification bypass
and secure repetitive absentee ballot receipts, an elector must
strictly comply with § 6.86(2)(a)'s requirements.
3. Age, Physical Illness, or Infirmity
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No. 2020AP557-OA
¶33 Finally, we determine to whom the statutory conditions
apply. The Petitioners assert that the conditions apply only to
individual electors. Conversely, DRW contends that when an elector
is caring for someone who is indefinitely confined because of age,
physical illness or infirmity, the caretaker is indefinitely
confined for those reasons as well. We conclude that the plain
reading of Wis. Stat. § 6.86(2)(a) requires that the elector is
the person who must be indefinitely confined because of the
elector's own age, physical illness or infirmity.
¶34 As discussed above, we agree with DRW that it is for
each elector individually to decide whether to employ Wis. Stat.
§ 6.86(2)(a). However, we do not agree that electors may make
that decision based on someone else's age, physical illness or
infirmity. DRW accuses the Petitioners of violating a basic canon
of statutory interpretation by reading into the statute language
that the legislature did not employ.6
¶35 DRW's interpretation would have us read the statute
as: "An elector who is indefinitely confined because of [the
elector's or another's] age, physical illness or
infirmity . . . ." The underlined portion in the previous
sentence does not exist, and as we already explained, we will not
add words the legislature did not employ. Dawson, 336 Wis. 2d
6Specifically, DRW contends that the Petitioners are
impermissibly reading "his or her own" into the statute. DRW
argues that this is a limitation that the legislature did not
intend. As we discuss below, we do not see this as a limitation
but rather the reasonable reading of the statute based on its plain
language.
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No. 2020AP557-OA
318, ¶42. Just as one cannot declare another indefinitely
confined, one cannot be indefinitely confined because of the
conditions of another.
¶36 To support its argument, DRW asserts that by adding
"because of age, physical illness or infirmity" to the statute,
the legislature expanded "indefinitely confined" beyond conditions
that affect an individual elector. However, in the same breath,
DRW argues that "or is disabled for an indefinite period" is
limited to the elector as it does not contain a "because of"
modifier. This construction of the statute is untenable and leads
to a disjointed result; we decline to read the statute in such a
way. Kalal, 271 Wis. 2d 633, ¶46.
¶37 Rather, we see these prerequisites as two sides of the
same coin. Wisconsin Stat. § 6.86(2)(a) applies to "[a]n elector
who is indefinitely confined because of age, physical illness or
infirmity, or is disabled for an indefinite period . . . ." Each
applies to conditions that an elector may experience but under
different circumstances. An elector may be indefinitely confined
because of age, physical illness or infirmity and not necessarily
be disabled for an indefinite period of time. The converse is
also true: an elector may be temporarily disabled for an
indefinite period of time and need not be elderly, physically ill,
or infirm. Either way, the conditions apply to the individual
elector himself or herself, not to a third party caregiver.
¶38 Based on the foregoing, we conclude that the plain
meaning of Wis. Stat. § 6.86(2)(a) applies both indefinite
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confinement and disability for an indefinite period to the elector
who seeks to obtain an absentee ballot under § 6.86(2)(a).
III. CONCLUSION
¶39 We conclude Wis. Stat. § 6.86(2)(a) requires that
(1) each individual elector make his or her own determination as
to whether the elector is indefinitely confined; (2) an elector's
determination may be based only upon age, physical illness or
infirmity; and (3) an elector is indefinitely confined for his or
her own age, physical illness or infirmity, not those of another
person.
¶40 Accordingly, we conclude that the Respondents'
interpretation of Wisconsin's election laws is erroneous.
Additionally, we conclude that Emergency Order #12 did not render
all Wisconsin electors "indefinitely confined," thereby obviating
the requirement of a valid photo identification to obtain an
absentee ballot.
By the Court.—Rights declared.
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No. 2020AP557-OA.awb
¶41 ANN WALSH BRADLEY, J. (concurring in part, dissenting
in part). I agree with the majority that the determination of
whether electors are indefinitely confined is to be made by the
electors themselves. See majority op., ¶2. I further agree that
Emergency Order #12,1 the "safer at home" order, did not render
all Wisconsin electors indefinitely confined for purposes of Wis.
Stat. § 6.86(2)(a).2 Id., ¶3. However, I likewise agree with
Justice Dallet's separate writing that the majority should have
stopped there.
¶42 The majority, instead, ventures farther. It alters Wis.
Stat. § 6.86(2)(a) by inserting its own words into the statutory
text chosen by the legislature. Such a technique allows the
majority to arrive at an unnecessary and erroneous blanket
determination that "an elector is indefinitely confined for his or
her own age, physical illness or infirmity, not those of another
person." Id., ¶2.
¶43 Such a determination is not supported by the plain
language of Wis. Stat. § 6.86(2)(a). Further, for some, it may
imperil their fundamental right to vote.
1 Emergency Order #12, issued on March 24, 2020, by Department
of Health Services Secretary-designee Andrea Palm, ordered among
other things, "'[a]ll individuals present within the State of
Wisconsin . . . to stay at home or at their place of residence'
with certain delineated exceptions." Wisconsin Legislature v.
Palm, 2020 WI 42, ¶6, 391 Wis. 2d 497, 942 N.W.2d 900.
2 Dane County acknowledges that Emergency Order #12 did not
render all Wisconsin electors indefinitely confined.
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¶44 Accordingly, I respectfully concur in part and dissent
in part.
¶45 Wisconsin Stat. § 6.86(2)(a) provides in relevant part:
"An elector who is indefinitely confined because of age, physical
illness or infirmity or is disabled for an indefinite period may
by signing a statement to that effect require that an absentee
ballot be sent to the elector automatically for every election."3
¶46 In the majority's view, an elector may not claim
indefinitely confined status "based on someone else's age,
physical illness or infirmity." Majority op., ¶34. The majority
opinion criticizes the proffered contrary interpretation of
Disability Rights Wisconsin (DRW) because it "would have us read
the statute as: 'An elector who is indefinitely confined because
of [the elector's or another's] age, physical illness or
infirmity . . . ." Id., ¶35.
¶47 But an examination of the statute in question leads to
the conclusion that it is the majority, and not DRW, that
impermissibly inserts words into the statute. To explain, the
statute by its own terms applies to "[a]n elector who is
indefinitely confined because of age, physical illness or
infirmity . . . ." Wis. Stat. § 6.86(2)(a). It does not say whose
age, physical illness, or infirmity is the trigger. Indeed, there
3An elector who receives an absentee ballot in this manner,
and who has not previously provided proof of identification with
an absentee ballot request, "may, in lieu of providing proof of
identification, submit with his or her absentee ballot a statement
signed by the same individual who witnesses voting of the ballot
which contains the name and address of the elector and verifies
that the name and address are correct." Wis. Stat. § 6.87(4)(b)2.
& 3.
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is no modifier to "age, physical illness or infirmity" in the
statute.
¶48 In the absence of such a modifier, the majority reads in
"his or her own age, physical illness or infirmity." This
interpretation violates our precedent that indicates this court
"will not read into the statute a limitation the plain language
does not evidence." State v. Kozel, 2017 WI 3, ¶39, 373 Wis. 2d 1,
889 N.W.2d 423; see State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
¶49 Accordingly, the text of the statute does not preclude
a person from designating "indefinitely confined" under the
circumstances due to the "age, physical illness or infirmity" of
another in their household. In addition to being consistent with
the plain statutory language, which provides no limitation, such
a conclusion is consistent with common sense and responsible public
health practices in the midst of a global pandemic.
¶50 As an example, consider an elderly couple who live in a
rural area where internet service is sparse,4 and who do not possess
the necessary technology to make a copy of their photo
identification to apply for an absentee ballot. Both may be self-
quarantining due to the particular vulnerability of one with a
As of earlier this year, around 486,000 Wisconsin residents,
4
or "roughly 28 percent of the state's rural population," lacked
broadband access. Shamane Mills, "Demand For Broadband Internet
Remains High In Rural Wisconsin," Wisconsin Public Radio (Feb. 12,
2020), https://www.wpr.org/demand-broadband-internet-remains-
high-rural-wisconsin; see Lori S. Kornblum & Daniel Pollack, Out
of Luck: Need a Rural Family Law Attorney?, 92 Wis. Law. 34, 40
(Sept. 2019) ("Wisconsin and many other states have areas where
internet service is not easily available.").
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health condition that poses a distinct risk for dire consequences
should a partner contract COVID-19. Under the majority's
formulation, the healthy partner must make what for some amounts
to an impossible choice——leave the house to vote in person or make
a copy of a photo identification, thereby risking exposure to
COVID-19, or forgo participation in our democracy. The fear of
contracting COVID-19 is real and the risk, for some, of contracting
the virus is simply too daunting.
¶51 To force such a Hobson's choice5 is inconsistent with
our understanding of the right to vote as a "sacred right of the
highest character." League of Women Voters of Wis. Educ. Network,
Inc. v. Walker, 2014 WI 97, ¶72, 357 Wis. 2d 360, 851 N.W.2d 302
(Abrahamson, C.J., dissenting) (citing State v. Phelps, 144 Wis.
1, 15, 128 N.W. 1041 (1910)).
¶52 Even if the majority's interpretation of Wis. Stat.
§ 6.86(2)(a) is reasonable, and the statute is susceptible to two
reasonable interpretations, I adopt the interpretation more
respectful of the sacred character and fundamental nature of the
right to vote. See Reynolds v. Sims, 377 U.S. 533, 562 (1964)
(citing Yick v. Hopkins, 118 U.S. 356, 370 (1886)) (referring to
voting as a "fundamental political right . . . preservative of all
rights"). The ability to exercise the fundamental right to vote
should not be imperiled by a loved one's frail health, and it
5 "A 'Hobson's choice' is 'an apparent freedom of choice when
there is no real alternative,' such as being put in the position
of having to accept 'one of two or more equally objectionable
things.'" McNally v. Capital Cartage, Inc., 2018 WI 46, ¶70 n.3,
381 Wis. 2d 349, 912 N.W.2d 35 (Ziegler, J., dissenting) (citation
omitted).
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No. 2020AP557-OA.awb
should not be contingent on one's access to the necessary
technology to make a photocopy of a photo identification.
¶53 For the foregoing reasons, I respectfully concur in part
and dissent in part.
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No. 2020AP557-OA.rfd
¶54 REBECCA FRANK DALLET, J. (concurring in part,
dissenting in part). I join the majority opinion to the extent
that it confirms our March 31, 2020 unpublished order, in which we
explained that electors were not automatically confined or
disabled under Wis. Stat. § 6.86(2) solely because of Emergency
Order #12 or the mere presence of COVID-19. The majority
reiterates that position, correctly stating that each elector must
make her own determination as to whether she is indefinitely
confined or disabled. Majority op., ¶¶25-27. If the majority
opinion stopped there, I would join it in its entirety. Since it
goes further, I join it only in part.1
¶55 We decide cases on the "facts in front of us," not
hypothetical ones. State v. Steffes, 2013 WI 53, ¶27, 347
Wis. 2d 683, 832 N.W.2d 101. Deciding cases on hypothetical facts
leads to impermissible advisory opinions, about which our position
has been steadfast: "[w]e will not do that." E.g., O'Bright v.
Lynch, No. 2020AP1761-OA, unpublished order (Wis. Oct. 29, 2020)
(Roggensack, C.J., concurring); Milwaukee Police Ass'n v. City of
Milwaukee, 2018 WI 86, ¶128, 383 Wis. 2d 247, 914 N.W.2d 597
(Abrahamson, J., dissenting); Smith v. Pershing, 10
Wis. 2d 352, 357, 102 N.W.2d 765 (1960).
¶56 Yet the majority's speculation as to what conditions
might render future voters indefinitely confined or disabled
results in just such an advisory opinion. We have before us no
1 I join Parts II.C. and II.D.1. of the majority opinion.
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No. 2020AP557-OA.rfd
facts regarding any elector's determination under Wis. Stat.
§ 6.86(2). Indeed, Jefferson does not allege that even one elector
actually requested or obtained an absentee ballot based on
McDonell's erroneous advice. That factual deficiency is not cured
by the majority's reaching outside the record to note an increase
in the number of electors who requested an absentee ballot because
they determined they were indefinitely confined or disabled. To
begin with, the increase in absentee-ballot requests is provided
without any context, such as the fact that electors in the 2020
Spring Election faced the once-in-a-generation challenge of voting
in the midst of a deadly pandemic. But more to the point, the
number of absentee-ballot requests based on indefinite confinement
or disability tells us nothing about how we should interpret
§ 6.86(2) because that number does not tell us why any voter
determined she was indefinitely confined.
¶57 Without those facts, the majority opinion's
interpretation of § 6.86(2) rests on hypothetical voters who are
indefinitely confined for hypothetical reasons. That is not how
we decide cases. See Tammi v. Porsche Cars N. Am., Inc., 2009
WI 83, ¶3, 320 Wis. 2d 45, 768 N.W.2d 783 (refusing to address a
"hypothetical situation"). I therefore concur in part, joining
the majority in its conclusion that individual electors must make
their own determination as to whether they are indefinitely
confined or disabled under Wis. Stat. § 6.86(2). I would go no
further.
¶58. I am authorized to state that Justice JILL J. KAROFSKY
joins this opinion.
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