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.
Supreme Court of Wisconsin
July 5, 2024
2024 WI 32
ON BYPASS FROM THE COURT OF APPEALS. Oral Argument: May 13, 2024. Circuit Court: Dane County. 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
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
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.
STATE OF WISCONSIN : IN SUPREME COURT
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED JUL 5, 2024
Samuel A. Christensen Clerk of Supreme Court
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.
¶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
¶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
¶6 Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what
¶7 Accordingly, we reverse the order of the circuit court dismissing the petitioners’ claim for a declaratory judgment that
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
¶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
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
¶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, ¶14, 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.
¶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
avoid absurd or unreasonable results.‘” Id. (quoting Kalal, 271 Wis. 2d 633, ¶46).
¶16
¶17 In Teigen, the majority7 interpreted this provision to ban drop boxes, concluding
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
¶19 The majority in Teigen also looked to
concluded that an absentee ballot drop box is not an alternate absentee ballot site under
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.
¶20 We begin our independent analysis of the language of
¶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.,
¶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.”
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
¶24 It even tried to do so. In 2021, the legislature attempted to pass a revision to the language of
¶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
¶27 Such an interpretation of
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
¶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,
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.”
¶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
¶31 Similarly,
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
¶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,
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
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.
¶36 Stare decisis refers to the principle that requires courts to “stand by
¶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
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
¶42
The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.
Notwithstanding s. 5.01(1) , with respect to matters relating to the absentee ballot process,ss. 6.86 ,6.87(3) to(7) and9.01(1)(b)2. and4. 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.
¶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
¶44 Again,
¶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,
drop boxes are not “in contravention” of the statutory procedures,
¶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
¶47 We have previously stated a general principle that “stare decisis concerns are paramount where a court has 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
¶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.
¶50 We therefore reverse the order of the circuit court dismissing the petitioners’ claim for a declaratory judgment that
By the Court.—The order of the circuit court is reversed and the cause is remanded to the circuit court.
¶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
¶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 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.
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
¶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 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, 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
¶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 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 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 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
¶63 The majority‘s principal argument against Teigen focuses on the heading introducing
¶64 A second and more fatal blow to the majority‘s attempted take-down of Teigen is the majority‘s misunderstanding of
LEGISLATIVE POLICY. The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses.
(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
¶65 The majority‘s assertion that
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.
¶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
The governing body of a municipality may elect to designate a site other than the office of the municipal clerk or board of election commissioners as the location from which electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election. 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 unders. 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.
¶68 This conclusion is reinforced by
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.
¶69 The Legislature, as intervenor-respondent, points to another statute that lends support for Teigen‘s interpretation.
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 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.
¶70 Providing even further textual support, Justice Hagedorn‘s concurrence in Teigen highlighted
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,
¶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
¶72 The majority dismisses the relevance of
¶73 The majority‘s reading of
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
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., ¶¶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
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 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
I dissent.
¶82 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this dissent.
Notes
(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, 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.
See 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.“).
St. 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.).