Richard Teigen and Richard Thom, Plaintiffs-Respondents-Petitioners, v. Wisconsin Elections Commission, Defendant-Co-Appellant, Democratic Senatorial Campaign Committee, Intervenor-Defendant-Co-Appellant, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice and League of Women Voters of Wisconsin, Intervenors-Defendants-Appellants.
No. 2022AP91
Supreme Court of Wisconsin
July 8, 2022
2022 WI 64
Michael O. Bohren
ON BYPASS FROM THE COURT OF APPEALS; Oral Argument: April 13, 2022; (L.C. No. 2021CV958)
JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to ¶¶4-10, 12-13, 52-63, and 73-85, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶1-3, 11, 14-51, 64-72, 86, n.29, and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined. NOT PARTICIPATING:
ATTORNEYS: For the defendant-co-appellant, there were briefs filed by Steven C. Kilpatrick, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Steven C. Kilpatrick.
For the intervenor-defendant-co-appellant, there were briefs filed by Charles G. Curtis, Jr., Michelle M. (Umberger) Kemp, Will M. Conley, John M. Devaney, Elisabeth C. Frost, and Perkins Coie, LLP, Madison and Washington, D.C., and Elias Law Group LLP, Washington, D.C. There was an oral argument by Charles G. Curtis.
For the intervenors-defendants-appellants, there were briefs filed by Jeffrey A. Mandell, Douglas M. Poland, Rachel E. Snyder, Carly Gerads, Scott B. Thompson, Mel Barnes, and Stafford Rosenbaum LLP, Madison, and Law Forward, Inc., Madison. There was an oral argument by Jeffrey A. Mandell.
For the plaintiffs-respondents-petitioners, there was a brief filed by Richard M. Esenberg, Brian W. McGrath, Luke N. Berg, Katherine D. Spitz, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.
An amicus curiae brief was filed by James R. Troupis, Joseph W. Voiland, and Troupis Law Office, Cross Plains, and Veterans Liberty Law, Cedarburg, for Senator Ron Johnson. There was an oral argument by James R. Troupis.
An amicus curiae brief was filed by James Bopp, Jr., Michael D. Dean, and James Madison Center for Free Speech, Terre Haute, and First Freedoms Foundation, Brookfield, for True the Vote, Inc.
An amicus curiae brief was filed by Cameron T. Norris, James P. McGlone, Matthew M. Fernholz, and Consovoy McCarthy PLLC, Arlington, and Gramer, Multhauf & Hammes, LLP, Racine, for Honest Elections Project.
An amicus curiae brief was filed by Kurt A. Goehre and Conway, Olejniczak & Jerry S.C., Green Bay, for the Republican National Committee, the National Republican Senatorial Committee, and the Republican Party of Wisconsin.
An amicus curiae brief was filed by Claire Silverman and Maria Davis for the League of Wisconsin Municipalities.
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to ¶¶4-10, 12-13, 52-63, and 73-85, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶1-3, 11, 14-51, 64-72, 86, n.29, and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court for Waukesha County, Michael O. Bohren, Judge. Affirmed.
¶1 REBECCA
A drop box is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent.
The other document adds, “[a] family member or another person may . . . return the ballot on behalf of the voter,” i.e., an agent of the voter may place the voter‘s absentee ballot in a drop box.
¶2 Two Wisconsin voters filed this case under
municipal clerk, not to an inanimate object. The Democratic Senatorial Campaign Committee (“DSCC“) and Disability Rights Wisconsin et al. (“DRW“) intervened to defend WEC‘s documents.
¶3 The circuit court granted summary judgment in favor of the Wisconsin voters.3 The court declared the documents were administrative rules, which had not been properly promulgated, and, among other things, “the use of [ballot] drop boxes, as described in the [documents], is not permitted under Wisconsin law unless the drop box is staffed by the [municipal] clerk and located at the office of the clerk or a properly designated alternate site under
¶4 We hold the documents are invalid because ballot drop boxes are illegal under Wisconsin statutes. An 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. We do not address whether the documents constitute unpromulgated administrative rules because the documents are invalid regardless.
¶5 The circuit court declared: (1) “an elector must personally mail . . . his or her own absentee ballot“; and (2) only two lawful methods for casting an absentee ballot pursuant to
I. BACKGROUND
¶6 In spring 2020, many people wanted to minimize their time spent in public spaces due to the COVID-19 pandemic. For this reason, more voters wanted to vote absentee for the spring 2020 election than had voted absentee in past elections. In response, WEC Administrator Meagan Wolfe issued the first document (“Memo one“), which was directed to municipal clerks and other local election officials. The memo states: “[Ballot] drop boxes can be used for voters to return ballots but clerks should ensure they are secure, can be monitored for security purposes, and should be regularly emptied.” It also says, “[a] family member or another person may . . . return the [absentee]
ballot on behalf of a voter.” WEC‘s commissioners never voted to adopt this memo.
¶7 A few months later, Administrator Wolfe and the assistant administrator issued the second document (“Memo two“) ahead of the fall 2020 election. It encourages “creative solutions” to facilitate the use of ballot drop boxes. Specifically, Memo two informs municipal clerks that drop boxes can be “unstaffed,” and states “[a]t a minimum, you should have a drop box at your primary municipal building, such as the village hall.” WEC commissioners never voted on Memo two either.
¶8 Municipal clerks acted on these memos. Administrator Wolfe avers she is aware of 528 ballot drop boxes utilized for the fall 2020 election. By the spring 2021 election, Administrator Wolfe says municipal clerks and local election officials reported 570 drop boxes, spanning 66 of Wisconsin‘s 72 counties.
¶9 The Wisconsin voters filed a lawsuit challenging the validity of these memos. In resolving the suit, the circuit court declared, “WEC‘s Memos are administrative rules under
WEC‘s interpretation of state statutes in the Memos is inconsistent with state law, to the extent they conflict with the following: (1) an elector must personally mail or deliver his or her own absentee ballot, except where the law explicitly authorizes an agent to act on an elector‘s behalf, (2) the only
lawful methods for casting an absentee ballot pursuant to
Wis. Stat. § 6.87(4)(b)1. are for the elector to place the envelope containing the ballot in the mail or for the elector to deliver the ballot in person to the municipal clerk, (3) the use of drop boxes, as described in the Memos, is not permitted under Wisconsin law unless the drop box is staffed by the clerk and located at the office of the clerk or a properly designated alternate site underWis. Stat. § 6.855 .
The circuit court permanently enjoined WEC and ordered it to “withdraw the Memos and issue a statement to clerks notifying them that WEC‘s interpretation of
II. STANDARD OF REVIEW
¶10 Two threshold arguments have been raised. First, DSCC argues the Wisconsin
¶11 Second, DRW argues Wisconsin law bars this suit because the Wisconsin voters did not first file their complaint with WEC, which DRW claims
¶12 On the merits, we must interpret Wisconsin statutes to determine whether the memos correctly describe the law. Statutory interpretation presents a question of law. See T.L.E.-C., 397 Wis. 2d 462, ¶13 (citing Stephenson, 394 Wis. 2d 703, ¶18).
¶13 Lastly, DRW raises a federal preemption argument. Preemption presents a question of law. Town of Delafield v. Cent. Transp. Kriewaldt, 2020 WI 61, ¶4, 392 Wis. 2d 427, 944 N.W.2d 819
(citing Partenfelder v. Rohde, 2014 WI 80, ¶25, 356 Wis. 2d 492, 850 N.W.2d 896).
III. ANALYSIS
A. Threshold Issues
1. The Wisconsin Voters Have Standing
¶14 DSCC argues the Wisconsin voters lack standing, asserting they “have not demonstrated ‘a personal stake in the outcome of the controversy’ separate and apart from the public at large, nor have they shown they have ‘suffered or [are] threatened with an injury to an interest that is legally protectable.‘”6 We reject this argument because the Wisconsin voters do have a “stake in the outcome” and are “affected by the issues in controversy.” Wis. Legislature v. Palm, 2020 WI 42, ¶12, 391 Wis. 2d 497, 942 N.W.2d 900. WEC‘s memos “interfere[] with or impair,” or at the very least, “threaten[] to interfere with or impair,” the Wisconsin voters’ “legal rights and privileges“——specifically, their rights and privileges as registered voters. See
¶15 DSCC‘s argument appears to be grounded in the inaccurate assumption that Wisconsin courts follow federal law on standing. For example, DSCC cites a Fifth Circuit case from 2021 rejecting claims “that drive-thru voting hurt the
‘integrity’
¶16 While standing in federal court is constitutionally confined, in Wisconsin it is limited only by prudential considerations. The
¶17 Judicial policy favors hearing cases presenting “carefully developed and zealously argued” issues. McConkey,
326 Wis. 2d 1, ¶16. To ensure a full vetting of the issues, we typically require plaintiffs to possess some personal stake in the case: “the gist of the requirements relating to standing . . . is to assure that the party seeking relief has alleged a personal stake in the outcome of the controversy as to give rise to that adverseness necessary to sharpen the presentation of issues[.]” Moedern v. McGinnis, 70 Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975). This standard is quite liberal; even “‘a trifling interest’ may suffice” provided the asserted interest generates sufficient adversity. See McConkey, 326 Wis. 2d 1, ¶15 (quoting Fox v. DHSS, 112 Wis. 2d 514, 524, 334 N.W.2d 532 (1983)).
¶18 In resolving standing challenges, Wisconsin courts may also consider judicial efficiency. Id., ¶¶17-18. The judiciary has “inherent power to protect itself against any action that would . . . materially impair its efficiency.” State v. Holmes, 106 Wis. 2d 31, 40, 315 N.W.2d 703 (1982) (quoting In re Court Room, 148 Wis. 109, 121, 134 N.W. 490 (1912)). As a practical matter, courts should not devote time or resources to adjudicating disputes only to ultimately conclude a party is not entitled to any relief.8
¶19 Against the backdrop of these policies, we have developed a two-prong test for standing to challenge an agency action under
¶20 Under the first prong, “injury in fact,” “we ask ‘whether the petition alleges injuries that are a direct result of the agency action.‘” Friends of the Black River Forest, __ Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 13). This prong presents a low bar. “[A]n ‘[i]njury alleged, which is remote in time or which will only occur as an end result of a sequence of events set in motion by the agency action challenged, can be a sufficiently direct result of the agency‘s decision to serve as a basis for standing.‘” Id. (quoting WED, 69 Wis. 2d at 14 (second modification in the original)). Under the second prong, “we ask whether ‘the injury is to an interest which the law recognizes or seeks to regulate or protect.‘” Id., ¶23 (quoting Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 N.W.2d 685 (1988)). Recently, in Friends of the Black River
Forest, we recognized “the ‘zone of interests’ terminology [for the second prong] is untethered to the text of
¶21 The Wisconsin voters allege they have suffered an injury in fact to their right to vote. See
according to the laws enacted by the Legislature, reinforces the sanctity of the rule of law and reassures all Americans of the integrity of our elections.” We agree.
¶22 If the right to vote is to have any meaning at all, elections must be conducted according to law. Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law. For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people).10 Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il,
Wisconsin elected officials “deriv[e] their just powers from the consent of the governed.” See
¶23 The right to vote presupposes the rule of law governs elections. If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate. “If an election . . . can be procured by a party through artifice or corruption, the Government may be the choice of a party for its own ends, not of the nation for the national good.” John Adams, Inaugural Address in the City of Philadelphia (Mar. 4, 1797), reprinted in Inaugural Addresses of the Presidents of the United States at 10 (1989).
¶24 The Wisconsin voters’ injury in fact is substantially more concrete than the “remote” injuries we have recognized as sufficient in the past. Friends of the Black River Forest, __ Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 14). The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters. The illegality of these drop boxes weakens the people‘s faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.
¶25 DSCC misunderstands the nature of the Wisconsin voters’ injury in fact. It argues the Wisconsin voters cannot
show their votes were diluted by unlawful votes. It states, “it is equally likely that any such [unlawful] voters may vote for the same candidates who[m] [the Wisconsin voters] support, which would seem to benefit, not harm them.” The Wisconsin voters’ injury, however, is more nuanced than DSCC suggests. DSCC‘s claim about “equal” likelihood is pure speculation. In contrast, the failure to follow election laws is a fact which forces everyone——even DSCC——to question the legitimacy of election results. Electoral outcomes obtained by unlawful procedures corrupt the institution of voting, degrading the very foundation of free government. Unlawful votes do not dilute lawful votes so much as they pollute them, which in turn pollutes the integrity of the results. See Clark v. Quick, 36 N.E.2d 563, 566 (Ill. 1941) (“There is nothing in the record before us to indicate that any of [the absentee ballots] were actually tampered with by any unauthorized person, but it is entirely obvious that the opportunity to do so was present.“). When the level of pollution is high enough, the fog creates obscurity, and the institution of voting loses its credibility as a method of ensuring the people‘s continued consent to be governed. See State ex rel. Bell v. Conness, 106 Wis. 425, 428, 82 N.W. 288 (1900) (“He failed to show that he received a majority of the votes cast at the election, but he succeeded in showing a condition of affairs that taints the whole proceeding and calls for careful consideration. The purity and integrity of elections is a matter of such prime importance, and affects so many important interests, that the courts ought never to
hesitate, when the opportunity is offered, to test them by the strictest legal standards.“). A man with an obscured vote may as well be “a man without a vote,” and without the opportunity for judicial review, such a man “is without protection; he is virtually helpless.” See 106 Cong. Rec. 5082, 5117 (1960) (statement of Sen. Lyndon B. Johnson).
¶26 DSCC quotes this court‘s statement in McConkey that it was “troubled” by “broad general voter standing[.]” 326 Wis. 2d 1, ¶17. For context, that case involved a voter challenge to a process by which the people of Wisconsin adopted the following constitutional amendment in 2006:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
¶27 McConkey does not support DSCC‘s argument. While this court was “troubled,” it nonetheless proceeded to decide the case: “whether as a matter of judicial policy, or because McConkey has at least a trifling interest in his voting rights, we believe the unique circumstances of this case render the merits of McConkey‘s claim fit for adjudication.” Id., ¶17. The injury in fact McConkey claimed to suffer is analogous to the injury in fact suffered by the Wisconsin voters; both plaintiffs claim proper voting procedures were not followed.
¶28 DSCC also argues “[t]heir voting rights are in no sense ‘diluted’ by other voters’ reliance on carefully monitored secure [ballot] drop boxes under local municipal clerks’ jurisdiction, custody, and control.” The memos, however, purport to authorize unstaffed drop boxes as lawful means of returning ballots. Even if secured and monitored, a drop box falls short of the statutorily-recognized security surrounding a polling place. See
¶29 The Wisconsin voters satisfy the second standing prong as well. “[T]he law recognizes” and “seeks to . . . protect” the Wisconsin voters’ right to vote. See Friends of the Black River Forest, __ Wis. 2d __, ¶23 (quoting Waste Mgmt., 144 Wis. 2d at 505).
¶31 Lastly, “as a law development court,” we owe the public an answer to the important questions of law this case raises.13 Id. “The right of voting for representatives is the primary right by which other rights are protected.” Thomas Paine, Dissertation on First Principles of Government (1795), reprinted in Thomas Paine: Rights of Man, Common Sense and Other Political Writings 398 (2008). As the United States Supreme Court has recognized, “[n]o right is more precious in a free country than that of having a voice in the election of those who make laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Unlawfully conducted elections threaten to diminish or even eliminate some voices, destabilizing the very foundation of free government. The Wisconsin voters have standing to ensure they retain their electoral voices. See generally Trump v. Evers, No. 2020AP1971-OA, unpublished order, at 6 (Wis. Dec. 3, 2020) (Rebecca Grassl Bradley, J., dissenting) (“[T]he integrity of every election will be tarnished by the public‘s mistrust until the Wisconsin Supreme Court accepts its responsibility to declare what the election laws say.“).
¶32 Justice Brian Hagedorn disagrees with our standing analysis, proffering an alternative basis for standing divined from searching the penumbra of
¶33
¶34 If
The portion of the Wisconsin voters’ response brief dealing with standing is about two pages. Those two pages have two sentences on
¶35 Justice Hagedorn‘s cognitively dissonant criticisms of our standing analysis apply equally to his own. He says our standing analysis “suggests [we] create[] broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law.”18 But Justice Hagedorn articulates an indistinguishably broad basis for standing, concluding the Wisconsin voters have “a legal right protected by
2. The Law Does Not Require Wisconsin Voters to File Their Complaint Against WEC with WEC
¶37
¶38 Importantly, the only party that could claim to represent the sovereign in this case——WEC——has abandoned any sovereign immunity argument. In its answer, WEC asserted, “[s]ome of [the Wisconsin voters‘] claims are barred by sovereign immunity,” but it did not say which ones. WEC did not discuss sovereign immunity at all in its briefing. When asked for WEC‘s position on this issue during oral argument before this court, WEC‘s attorney responded:
Counsel: Well, to be consistent we did not take a position on it one way or the other in briefing, and I‘m not going to take a position on behalf of the Commission in oral argument either, so it‘s a “no position” type of response, for standing and for sovereign immunity, because although we raised it, we‘re content with the other parties pushing that forward. We chose for strategic purposes to focus our briefs on other things.
Court: That leaves me perplexed. Do you agree with their standing and sovereign immunity arguments, even though you are not advancing them? I don‘t want to necessarily pin you down, but I do want clarity. Revisit that answer, if you will.
Counsel: I understand you don‘t like the non-answer that I provided. But the position of the Commission is, yes, we raised them in the answer, but we chose not to put them forward in our brief. We did not choose to adopt by incorporation or by reference those
arguments; we did not say we are in disagreement with them either.
DRW‘s argument fails because a private party cannot raise and maintain an affirmative defense that belongs to the State.
¶39 “Sovereign immunity is a defense which can be raised by the state alone and does not go to the merits or primary object of the action. For this reason, sovereign immunity is a defense to personal jurisdiction which can be waived.” City of Kenosha v. State, 35 Wis. 2d 317, 328, 151 N.W.2d 36 (1967) (emphasis added); Cords v. State, 62 Wis. 2d 42, 46, 214 Wis. 2d 405 (1974) (“The general rule in Wisconsin . . . is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived. Objection to personal jurisdiction must be raised specifically or be deemed waived. It is not sufficient to make a general demurrer that the complaint does not state facts sufficient to constitute a cause of action.“).
¶40 DRW does not address City of Kenosha or Cords, instead claiming in conclusory fashion, “because sovereign immunity is a jurisdictional bar to the court‘s jurisdiction, it is properly raised at any juncture, and, once raised, must be adjudicated before the merits.” The two cases DRW cites in support of this proposition have nothing to do with sovereign immunity (the phrase does not even appear in the opinions), and the cases are actually about subject matter jurisdiction, not personal jurisdiction.
¶41 The first case DRW cites, Bartus v. DHSS, states:
Jurisdictional challenges may be raised at any juncture during a court proceeding. In the instant case, the circuit court was reviewing the propriety of a Department decision to revoke a probationer‘s term for failure to pay restitution. Bartus‘s jurisdictional challenge to the 1988 sentence which imposed the restitution, was therefore central to the subject matter jurisdiction of the court on review.
176 Wis. 2d 1063, 1082–83, 501 N.W.2d 419 (1993) (emphasis added). Bartus merely recites a well-known rule, repeated in many cases, that arguments against subject matter jurisdiction cannot be forfeited or waived. See City of Cedarburg, 390 Wis. 2d 109, ¶49 (citing Booth, 370 Wis. 2d 595, ¶1); see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction, because it involves a court‘s power to hear a case, can never be forfeited or waived.“). Equally well established is the rule that personal jurisdiction can be forfeited or waived.
¶42 The only other case DRW cites in support of its claim that sovereign immunity can raised at any juncture similarly demonstrates DRW‘s failure to distinguish between subject matter jurisdiction and personal jurisdiction. See Harrigan v. Gilchrist, 121 Wis. 127, 224, 99 N.W. 909 (1904) (“A challenge to the jurisdiction of the trial court of the subject matter of the action is proper at any time[.]” (Emphasis added)).
¶43 DRW is not a state agency, so it cannot assert sovereign immunity. Although WEC asserted in its answer that sovereign immunity barred “some” of the Wisconsin voters’ claims, it did not say which ones. No reasonable judge could view WEC‘s briefing and answers at oral argument as maintaining a sovereign immunity defense. WEC‘s attorney even said at oral argument that WEC takes “no position” on the matter. Although DRW argued sovereign immunity in its brief, WEC‘s attorney demurred at oral argument: “We did not choose to adopt by incorporation or by reference those arguments.” Such statements conflict with any
¶44 At best, DRW‘s objection implicates the court‘s competency, which lacks any constitutional importance. “[S]ubject matter jurisdiction and competence are related but distinct concepts.” City of Cedarburg, 390 Wis. 2d 109, ¶49. “Subject matter jurisdiction . . . refers ‘to the power of a . . . court to decide certain types of actions.‘” Booth, 370 Wis. 2d 595, ¶7 (quoting State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508). “In other words, subject matter jurisdiction is about the type or category of case brought.” City of Cedarburg, 390 Wis. 2d 109, ¶49. In contrast, “[c]ompetence . . . is about a court‘s ability to exercise its jurisdiction in an individual case.” Id. With few exceptions, “a circuit court is never without subject matter jurisdiction;” however, “[a] circuit court‘s ability to exercise its subject matter jurisdiction in individual cases . . . may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction.” See Booth, 370 Wis. 2d 595, ¶12 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶1–2, 273 Wis. 2d 76, 681 N.W.2d 190). Noncompliance with a required statutory procedure can trigger a competence question, but a lack of competence is not jurisdictional. City of Cedarburg, 390 Wis. 2d 109, ¶47 (citing Mikrut, 273 Wis. 2d 76, ¶¶12, 34).
¶45 DRW‘s argument is underdeveloped, perhaps because it spent large swaths of its briefing trying to create a constitutional issue when one does not exist. We need not address underdeveloped arguments. Papa v. Wis. Dep‘t of Health Servs., 2020 WI 66, ¶42 n.15, 393 Wis. 2d 1, 946 N.W.2d 17. We nonetheless choose to resolve this one because of the issue‘s importance in the context of election law.
¶46 DRW cites
(1) Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning . . . election administration or conduct of elections is contrary to law, or the official has abused the discretion vested in him or her by law with respect to any such matter, the elector may file a written sworn complaint with the commission requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law.
(2) No person who is authorized to file a complaint under sub. (1), other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1) without first filing a complaint under sub. (1), nor prior to disposition of the complaint by the commission. . . .
According to DRW, the law bars the Wisconsin voters’ complaint against WEC because they did not first file it with WEC. Section 5.06, read in context, does not mean what DRW claims. See Brey v. State Farm Mut. Auto Ins. Co., 2022 WI 7, ¶11, 400 Wis. 2d 417, 970 N.W.2d 1 (explaining statutes are read in context).
¶47 First,
¶48 Second, the remedies WEC can impose under
¶49 Third, the legislature knows how to write a statute accomplishing the work DRW would have
¶50 Fourth, the Wisconsin voters filed this case under
¶51 For each of these reasons, we reject DRW‘s argument. Whether framed in terms of sovereign immunity or competency, it fails. Neither the statutes nor judicial policy precludes this court from resolving the Wisconsin voters’ claims against WEC.
B. The Merits
¶52 WEC‘s staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.25
1. Legislative Policy Directs Us to Take a Skeptical View of Absentee Voting
¶53 Subchapter IV of chapter 6 of the Wisconsin statutes begins with a statement of legislative policy that cannot be reconciled with the statements of policy contained in WEC‘s memos:
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.
INTERPRETATION. 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. and 4. shall be construed as mandatory. Ballots cast in contravention of the procedures specified in those provisions may not be counted. Ballots counted in contravention of the procedures specified in those provisions may not be included in the certified result of any election.
¶54 Despite these provisions, no defendant can point to any statute authorizing ballot drop boxes; instead, the defendants argue no statute expressly prohibits them. The absence of an express prohibition, however, does not mean drop boxes comport with “the procedures specified” in the election laws.
2. Ballot Drop Boxes Are Unauthorized by Law
¶55
¶56
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 beconducted in the office of the municipal clerk or board of election commissioners.
Subsection (3) declares an alternate absentee ballot site must be “staffed by the municipal clerk or the executive director of the board of election commissioners, or employees of the clerk or the board of election commissioners.” Subsection (5) allows the establishment of multiple alternate sites.
¶57 Ballot drop boxes are not alternate absentee ballot sites under
¶58 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.
¶59
¶60 Other election statutes are similarly silent on any other method of voting absentee other than by mail or at the office of the municipal clerk.
¶61 In
clerk to perform any official duties related to the acceptance of ballots at any location beyond those statutorily prescribed.
¶62 The fairest interpretation of the phrase “to the municipal clerk” means mailing or delivering the absentee ballot to the municipal clerk at her office or, if designated under
¶63 Notwithstanding the detailed and unambiguous language of
¶64 WEC and DRW argue the drop box “elephant” is, in fact, no elephant at all. WEC claims “the Commission did not create [ballot] drop boxes. The March 2020 memorandum provided guidance in response to clerks’ inquiries about their use, and there is testamentary evidence that drop boxes were used in Wisconsin before the August 2020 memorandum.” Of course “there is . . . evidence” drop boxes were used before the issuance of Memo two because WEC issued Memo one in March, which comes before August.
¶65 The record evidence WEC cited does not support its argument that ballot drop boxes have been in common and longstanding use in this state. First, WEC cites Memo one, which says, “clerks have inquired about options for ensuring that the maximum number of ballots are returned to be counted for the April 7, 2020 election.” This statement suggests a state of uncertainty surrounding the legality of drop boxes, rather than documenting their ostensibly extensive use.
¶66 Second, WEC cites a third memo prepared by WEC‘s staff, responding to a
¶67 Third, WEC cites its own website, which has a page that is not significantly different than the third memo. The page bears the heading “[w]hy did WEC allow clerks to use drop boxes for absentee ballots?” WEC offers the following conclusory statement: “some clerks have used them prior to 2020” but supplies no evidence.
¶68 Lastly, WEC (along with DRW) cites an affidavit from Administrator Wolfe as evidence of the supposedly “extensive history” of ballot drop boxes in Wisconsin. The affidavit merely says, “[t]he use of absentee ballot drop boxes in the United States predates the [COVID-19] pandemic.” Again, Administrator Wolfe offers no evidence to support this statement. Even if the assertions regarding the historical use of ballot boxes were true, they are irrelevant. Longstanding noncompliance with the law does not cure its illegality.
¶69 Perhaps realizing “delivery in person[] to the municipal clerk” does not mean nor has it been historically understood to mean delivery to an unattended ballot drop box, the defendants analogize these boxes to a mailbox. Of course, the law expressly allows a voter to place an absentee ballot in a mailbox.
¶70 The ordinary meaning of “mailed by the elector” in
¶72 We conclude WEC‘s staff erred by authorizing a voting mechanism not authorized by law. The memos created a ballot drop box scheme entirely absent from Wisconsin‘s election code. The legislature‘s “carefully regulated” procedures for absentee voting do not permit voting via ballot drop boxes.
3. “[I]n Person” Absentee Voting Requires the Voter to Personally Deliver the Ballot to the Municipal Clerk
¶73 WEC‘s staff also erred in Memo one by stating “[a] family member or another person may . . . return the ballot on behalf of the voter,” i.e., an agent of the voter may place the voter‘s absentee ballot in a drop box. The law does not permit this.
¶75 As used throughout Wisconsin‘s election code, the phrase “in person” refers to a voter acting directly, not through an agent. See 5 Wis. Att‘y Gen. 591, 592 (1916) (“The statute says: ‘Application for such ballot shall be made in person.’ (Sec. 11.56.) The ordinary meaning of the phrase ‘in person’ is that the request must come directly from the elector who was corporally present before the clerk.“). For example,
(a) Any elector of a municipality who is registered to vote whenever required and who qualifies under ss. 6.20 and 6.85 as an absent elector may make written application to the municipal clerk of that municipality
for an official ballot by one of the following methods:
- By mail.
- In person at the office of the municipal clerk or at an alternate site under s. 6.855, if applicable.
. . . .- By agent as provided in sub. (3).
(Emphasis added.) Section 6.86(1)(a) unequivocally distinguishes between “in person” and “by agent.” Subsection (3) then begins by stating, “[a]ny elector who is registered and who is hospitalized, may apply for and obtain an official ballot by agent.”
¶76 Other election statutes also explicitly describe an agency relationship. For example, the phrase “municipal clerk” includes “authorized representatives.”
¶77 Unlike “municipal clerk,” the definition of “elector” does not encompass an agency relationship.
¶78 WEC does not address this dispositive statutory distinction between “in person” and “by agent,” instead primarily emphasizing the presence of the passive voice in
It‘s true that a legislature‘s use of the passive voice sometimes reflects indifference to the actor. See Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (“The passive voice focuses on an event that occurs without respect to a specific actor. . . .“). But attributing indifference to Congress in this instance would be inconsistent with the FSIA‘s statutory declaration of purpose, which explicitly invokes the international law understanding of foreign sovereign immunity: “Under international law, states are not immune from the
jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities.” 28 U.S.C. § 1602 .
Id. (emphasis added). Rubin suggests the statement of legislative policy in
¶79 A case cited by DRW is likewise unpersuasive because it pre-dates
If our statute is construed to mean that the voter shall himself mail the ballot or personally deliver it to the clerk, then the statute would defeat itself in the case of those who are sick or physically disabled. They would be unable to mail ballots except through an agent. Having made provision that these unfortunate people can vote, we cannot believe that the legislature meant to disenfranchise them by providing a condition that they could not possibly perform.
Id. at 303. To the extent Sommerfeld has any relevance, it too undercuts the defendants’ arguments.
¶80 First, the legislature superseded Sommerfeld‘s conclusion in 1986 by adopting
¶81 The Sommerfeld majority deemed the in person delivery requirement “directory only,” so it reasoned “a delivery of ballots by agent is a substantial compliance” permitting the counting of the ballots. Id. at 304. In election law, “[t]he difference between mandatory and directory provisions of election statutes lies in the consequence of nonobservance: an act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while improper, may nevertheless be valid.” Id. at 303 (quoting 29 C.J.S. § 214). Much of the majority opinion in Sommerfeld is spent explaining why the majority deemed the relevant statute merely directory and describing the “complaint” as “purely technical.” Id. at 304. This entire discussion of how to classify a statute——mandatory or directory——seemed to rest on the assumption that the statute was not followed; if the
¶82 Three justices dissented, offering a statutory interpretation consistent with our reading of
¶83 Reading the election statutes in context and as a whole, we conclude an absentee ballot delivered in person under
IV. FEDERAL PREEMPTION
¶84 DRW argues federal law preempts the circuit court‘s interpretation of Wisconsin statutes. It cites 52
If the absent elector declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot, the elector may select any individual, except the elector‘s employer or an agent of that employer or an officer or agent of a labor organization which represents the elector, to assist in marking the ballot, and the assistant shall then sign his or her name to a certification on the back of the ballot, as provided under s. 5.55.
The language of this subsection is similar to
¶85 DRW also cites the Americans with Disabilities Act (ADA), but, similarly, its discussion of the ADA is limited to a single paragraph in its opening brief. DRW does not cite any binding cases supporting its preemption argument, nor does DRW discuss preemption in its reply brief, even though the Wisconsin voters complained the argument was underdeveloped.
¶86 As far as we can discern, DRW‘s argument largely rests on the practical impact of the circuit court‘s declarations on disabled voters who may be physically unable to vote if someone cannot place an absentee ballot in the mail on a voter‘s behalf. We agree with the Wisconsin
V. CONCLUSION29
¶87 Only the legislature may permit absentee voting via ballot drop boxes. WEC cannot. Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC‘s authorization of ballot drop boxes was unlawful, and we therefore affirm the circuit court‘s declarations and permanent injunction of WEC‘s erroneous interpretations of law except to the extent its remedies required absentee voters to personally mail their ballots, an issue we do not decide at this time, and we decline to decide at this time whether the memos are also invalid as unpromulgated administrative rules.
By the Court.——The judgment and order of the Circuit Court are affirmed.
¶88 PATIENCE DRAKE ROGGENSACK, J. (concurring). The majority opinion concludes that the Wisconsin Elections Commission‘s (WEC) documents (hereinafter memos) are invalid because ballot drop boxes are not legal in Wisconsin and because absentee ballots must be personally delivered by the voter to the municipal clerk at the clerk‘s office. I agree, and join the majority opinion. I write further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur.
I. BACKGROUND1
¶89 During the COVID-19 pandemic, citizens of Wisconsin were advised to avoid
¶90 The WEC issued multiple memos, which were directed at municipal clerks and election officials. Relevant to our discussion, the first memo stated, among other things, that “[a] family member or another person may . . . return the ballot on behalf of a voter.” The “return” that was described referred to returns to drop boxes. Both memos focused on drop boxes, describing their appearance, their locations and that they may be used by voters “without having to mail [ballots] back.” Drop boxes were suggested as an alternative to mailing ballots for “voters [] motivated by lack of trust in the postal process, fear that their ballot could be tampered with, or concern that their information will be exposed. Voters may also be concerned about ensuring that their ballot is returned in time to be counted.”2
¶91 Based on the WEC memos, Richard Teigen and Richard Thom (collectively Teigen), filed suit seeking, in part, declaratory judgment under
¶92 After intervention by the Democratic Senatorial Campaign Committee (DSCC), as well as Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin (collectively DRW), Teigen moved for summary judgment, setting out what Teigen alleged was the proper construction of
¶93 In regard to whom may return an absentee ballot, the circuit court explained that “[it did not] see any language in the statute that provides a basis for having agents, somebody other than the elector, actually deliver the ballot.” Further, in quoting the portion of the memo that purported to allow family members or other persons to return a ballot on behalf of the voter, the court concluded that it did not “see anything in the statute that says that. In reading the statute, the statute is clear. It‘s not ambiguous. It‘s not necessary to go to outside sources to determine how . . . return of the ballot is addressed.” In its judgment, the court was satisfied that the
¶94 The court declared that the WEC‘s memos were inconsistent with state statutes and specifically concluded that an elector must personally mail or deliver his or her own absentee ballot, except when otherwise specifically authorized by law. The defendants appealed this ruling to the court of appeals. Teigen filed a petition to bypass the court of appeals, which we granted.
II. DISCUSSION
A. Standard of Review
¶95 I review Teigen‘s claim for declaratory relief under
B. Statutory Interpretation
¶96 “[T]he purpose of statutory interpretation is to determine what the statute means . . . .” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature‘s intent is expressed in the statutory language. Id. Therefore, statutory interpretation begins with the words that the legislature chose. If the meanings of the words are plain and unambiguous, the court‘s inquiry ends and there is no need to consult extrinsic sources of interpretation, such as legislative history. Id., ¶¶45, 46.
¶97 In addition to examining the plain words of the text, context is part of a plain meaning interpretation. “So, too, is the structure of the statute in which the operative language appears.” Id., ¶46. Therefore, rather than in isolation, “statutory language is interpreted in the context in which it is used; . . . in relation to the language of surrounding or closely-related statutes; . . . to avoid absurd or unreasonable results; [and] read, where possible to give effect to every word, in order to avoid surplusage.” Id.
¶98 It is consistent with the plain-meaning rule “to consider the intrinsic context in which statutory language is used; a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” Id., ¶49. However, in “construing or interpreting a statute the court is not at liberty to disregard the plain, clear words of [a] statute.” Id., ¶46. Nor are courts permitted to read words into a statute that the legislature did not insert itself. Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316.
1. Uniform Declaratory Judgment Act
¶99 The Uniform Declaratory Judgment Act is contained in
(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed . . . . The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with
s. 808.03(1) .
(2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
¶100 In order to obtain declaratory judgment, there must be a justiciable controversy. See Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982). A controversy is justiciable when the following factors are present:
- (1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
- (2) The controversy must be between persons whose interests are adverse.
- (3) The party seeking declaratory relief must have a legal interest in the controversy——that is to say, a legally protectible interest.
- (4) The issue involved in the controversy must be ripe for judicial determination.
Putnam v. Time Warner Cable of Se. Wis., Ltd. P‘ship, 2002 WI 108, ¶41, 255 Wis. 2d 447, 649 N.W.2d 626 (citing Loy, 107 Wis. 2d at 410). If all four factors are met, the controversy is justiciable and a court may entertain an action for declaratory judgment. Miller Brands-Milwaukee, Inc. v. Case, 162 Wis. 2d 684, 694, 470 N.W.2d 290 (1991).
¶101 Here, I conclude that all four factors are met. First, Teigen‘s suit is a controversy that opposes the WEC‘s memos and intervenors’ positions, each of whom have an interest in contesting Teigen‘s position. Second, Teigen and the WEC have adverse interests regarding the legality of the current memos and the WEC‘s authority to continue issuing similar memos in the future. Third, as the majority concludes, Teigen has a legally protectable interest in making sure that his vote is not “pollute[d]” and that proper election procedures are followed.3 And finally, Teigen‘s suit against the WEC is ripe for judicial determination. The circuit court decided that the elector was required to personally mail his or her own completed ballot to the clerk‘s office.4 Affirming the circuit court‘s decision is expressed in several briefs, as is the need for uniform guidance.5 The WEC has issued memos that encourage drop boxes over mail-in ballot returns, and municipal clerks and election officials have acted on those memos. Teigen is a Wisconsin voter who is affected by the WEC‘s memos. Because the controversy is justiciable, I proceed to the merits of Teigen‘s statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over mailing completed ballots and are inconsistent with
2. Wisconsin Stat. § 6.87(4)(b)1.
¶102 As a foundational matter, we construe closely related statutes in the context in which the legislature placed them. City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24, 302 Wis. 2d 599, 734 N.W.2d 428. “[W]e examine the language of surrounding or closely related statutes in order to interpret a statute in the context in which it is used.” Id. Accordingly, we do not interpret
¶103 As we begin, it is important to note that the legislature has supplied the lens through which absentee voting statutes are to be viewed.
[V]oting 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.
[W]ith 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.
¶104 We have construed statutes relating to voting procedures and have strictly enforced them. In State ex. rel. Stearns, we concluded that the Secretary of State correctly prohibited a candidate who turned in his nomination papers two minutes after the statutory deadline from appearing on the ballot. State ex. rel. Stearns v. Zimmerman, 257 Wis. 443, 444-46, 43 N.W.2d 681 (1950). We reasoned that, by setting the 5 p.m. deadline within the statute, “no fact or situation appear[ed] except those contemplated and provided for by the legislature.” Id. at 446. However, if we had decided to enlarge the time which the legislature has designated for the filing of nomination papers, we would be “amend[ing] the statute, not [construing] it.” Id.
¶105 Again, in State ex. rel. Ahlgrimm, we concluded that a candidate who filed his nomination papers in the wrong office was barred from appearing on the ballot by the terms of the statute. State ex rel. Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 595-96, 263 N.W.2d 152 (1978). The candidate argued that, because the statute that outlined the place of filing nomination papers did not specify that noncompliance was fatal, we should have concluded that its prescriptions were directory rather than mandatory. Id. at 593. We concluded that this argument was “without merit” and, as with the time for filing, the statute‘s instruction governing the place of filing nomination papers was mandatory. Id. at 595.
¶106 Turning to the statute at issue,
¶107 The plain statutory text, provides that if a ballot is returned by mail, it is the
¶108 DRW argues that, in spite of the unambiguous text, the statutes allow an agent of an elector to mail the absentee ballot on an elector‘s behalf. This argument is based on a 1955 case, Sommerfeld v. Bd. of Canvassers of the City of St. Francis. In Sommerfeld, we concluded that “in order to fulfill the spirit of our election laws the last sentence of section 11.59 [which required delivery by the elector] is directory only, and that a delivery of ballots by agent is a substantial compliance therewith.” Sommerfeld v. Bd. of Canvassers of the City of St. Francis, 269 Wis. 299, 304, 69 N.W.2d 235 (1955). However, as the majority points out, Sommerfeld pre-dates
¶109 Without Sommerfeld, DRW‘s argument falls apart. The statutory definition of “elector” does not include agents; rather, it defines a person who is eligible to vote.
¶110 That agents are not permitted by the terms of
¶111 For example, when a voter is a member of a sequestered jury, the legislature has provided very detailed instructions about voting and returning the ballot where a non-voter participates.
If the application indicates that the reason for requesting an absentee ballot is that the elector is a sequestered juror, the application shall be received no later than 5 p.m. on election day. If the application is received after 5 p.m. on the Friday immediately preceding the election, the municipal clerk or the clerk‘s agent shall immediately take the ballot to the court in which the elector is serving as a juror and deposit it with the judge. The judge shall recess court, as soon as convenient, and give the elector the ballot. The judge shall then witness the voting procedure as provided in
s. 6.87 and shall deliver the ballot to the clerk or agent of the clerk who shall deliver it to the polling place or, in municipalities where absentee ballots are canvassed unders. 7.52 , to the municipal clerk as required ins. 6.88 .
¶112 Another example of the legislature‘s recognition of agents involved in voting or ballot return is found in
- 1. Any elector who is registered and who is hospitalized, may apply for and obtain an official ballot by agent. . . .
- 2. If a hospitalized elector is not registered, the elector may register by agent under this subdivision at the same time that the elector applies for an official ballot by agent under
subd. 1. . . . .
¶113
If the absent elector declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot, the elector may select any individual, except the elector‘s employer or an agent of that employer or an officer or agent of a labor organization which represents the elector, to assist in marking the ballot . . . .
Once again, when the legislature decided that use of an agent in voting was permissible, it specified the circumstances under which an agent could be employed and defined criteria for performing as an agent in regard to absentee ballots. I do not review the entirety of the statutes that provide for the use of an agent in voting because no party has raised them.
¶114 However, those examples cited above and others I do not cite differ significantly from
III. CONCLUSION
¶115 The majority opinion concludes that the WEC‘s memos are invalid because ballot drop boxes are not legal under Wisconsin statutes and because an absentee ballot must be personally delivered by the voter to the municipal clerk at the clerk‘s office. I agree, and I join the majority opinion. I have written further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur.
REBECCA GRASSL BRADLEY, J.
¶116 REBECCA GRASSL BRADLEY, J. (concurring).
There should be a third Branch which . . . you may call a Governor whom I would invest . . . the whole Executive Power, after divesting it of most of those Badges of Domination called prerogatives.
John Adams, Thoughts on Government (1776), in 11 The State Records of North Carolina 325 (1895).
¶117 This court‘s binding precedent allows WEC——a creature of the legislature authorized only to implement Wisconsin‘s election laws——to make law by executive fiat, thereby granting it a potent “Badge[]
¶118 The Trump majority‘s conversion of WEC‘s mere “advice” into “the rulebook” flouts the rule of law. Consistent with constitutional principles, the legislature explicitly declared that “[a] guidance document does not have the force of law.”
¶119 This court‘s decision in Trump exists in tension with Service Employees International Union, Local 1 v. Vos (SEIU), 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority op.). SEIU struck down statutes prescribing pre-issuance procedures for guidance documents as facially unconstitutional. Id., ¶88. We described guidance documents as “nothing but the written manifestations of the executive branch‘s thought processes[.]” Id., ¶122. Under the separation of powers, we denied the legislature a role in policing the executive‘s thoughts or preventing the executive from sharing its interpretations of law with the public. Id., ¶96 (explaining “[h]e who is to execute the laws must first judge for himself of their meaning” (quoting Alexander Hamilton, Letters of Pacificus No. 1 (June 29, 1793), reprinted in 4 The Works of Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904) (modification in the original)).
¶120 Because this court‘s later decision in Trump gave mere guidance documents the force of law, the legislature necessarily has an interest in regulating them to ensure the executive branch enforces the laws as written. Additionally, the legislature has an interest in the courts upholding the laws the legislature enacts, not elevating guidance written by executive branch employees above the law.
¶121 This court‘s decision in Trump gave WEC the power to materially alter how elections in this state are conducted——without a single procedural check. Trump should be overruled, but if the court continues to hold the memos need not be promulgated as administrative rules, they should at least be subject to the statutory procedures we struck down in SEIU. As the law stands, WEC‘s staff have absolute prerogative power. The constitution does not permit such corruption of the carefully
I. The Definition of “Rule”
¶122
“Rule” means a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.
Under this definition, a rule must meet five elements: “(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the [force] of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency as to govern the interpretation or procedure of such agency.”3 Wis. Legislature v. Palm, 2020 WI 42, ¶22, 391 Wis. 2d 497, 942 N.W.2d 900 (quoting Citizens for Sensible Zoning, Inc. v. Dep‘t of Nat. Res., 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979)).
¶123 In this case, no one has argued the memos are not “statements of policy,” of “general application,” issued by the WEC to “interpret” statutes “enforced or administrated” by the WEC. The parties dispute only the third element, whether the memos have the “force of law.”
II. The Majority‘s Error in Trump
¶124 Although the memos should not have the force of law, the majority erroneously concluded otherwise in Trump. In that case, Donald Trump, the incumbent President, and his campaign appealed the results of a recount in two Wisconsin counties. 394 Wis. 2d 629, ¶¶5–6 (majority op.). The ballots President Trump sought to strike fell into four categories; two are most relevant in this case. First, he argued “that a form used for in-person absentee voting [wa]s not a ‘written application’ and therefore all in-person absentee ballots should be struck.” Id., ¶2. Second, President Trump argued “that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots [wer]e therefore invalid.” Id.
¶125 As the majority acknowledged, “Wisconsin law provides that a ‘written application’ is required before a voter can receive an absentee ballot, and that any absentee ballot issued without an application cannot be counted.” Id., ¶14 (citing
¶126 Invoking the same rationalizations, the majority declined to examine whether election officials violated a statute by adding missing witness information to absentee ballot certifications.
¶127 Overall, the majority compared voting——the foundation of free government——to a football game:
[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . .
Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election.
Id., ¶¶31–32 (emphasis added); see also id., ¶34 (Dallet & Karofsky, JJ., concurring) (“The evidence does show that, despite a global pandemic, more than 3.2 million Wisconsinites performed their civic duty. More importantly as it relates to this lawsuit, these voters followed the rules that were in place at the time. To borrow Justice Hagedorn‘s metaphor, Wisconsin voters complied with the election rulebook. No penalties were committed and the final score was the result of a free and fair election.” (emphasis added)).
¶128 Under Trump, statements from WEC‘s staff were transformed into super-statutes, trumping the actual law. “Rather than fulfilling its duty to say what the law is, a majority of this court unconstitutionally converts the Wisconsin Elections Commission‘s mere advice into governing ‘law,’ thereby supplanting the actual election laws enacted by the people‘s elected representatives in the legislature and defying the will of Wisconsin‘s citizens. When the state‘s highest court refuses to uphold the law, and stands by while an unelected body of six commissioners rewrites it, our system of representative government is subverted.” Id., ¶140 (Rebecca Grassl Bradley, J., dissenting).
¶129 The holding in Trump requires a vote cast in reliance on a document produced by the WEC‘s staff to be counted even if the vote‘s counting is unlawful under the statute the staff purportedly interpreted. The majority did not ground its decision in constitutional law but in equity.5 Equitable powers may be broad, but
¶130 At the same time the majority aggrandized its “equitable” powers, it ceded its law declaring function to unelected bureaucrats. According to the Trump majority, the judiciary may not even opine on the validity of purported guidance once voters have relied on it. In so ruling, the majority neglected its constitutional duty to declare the meaning of law, instead elevating “guidance[] given by an unelected committee” to the status of supreme law, which must be followed in derogation of enacted statutes. Trump, 394 Wis. 2d 629, ¶108 (Ziegler, J., dissenting); see also State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) (“[I]t is this court‘s function to develop and clarify the law.” (citations omitted)).
¶131 The majority achieved these results by declaring WEC‘s guidance to be “the rulebook.” Trump, 394 Wis. 2d 629, ¶32 (majority op.) (emphasis added). “How astonishing that four justices of the Wisconsin Supreme Court must be reminded that it is THE LAW that constitutes ‘the rulebook’ for any election——not WEC guidance——and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men.” Id., ¶147 (Rebecca Grassl Bradley, J., dissenting). Notwithstanding SEIU‘s characterization of guidance as nothing more than executive branch “thought processes,” the majority permitted “WEC . . . [to] treat their guidance as if it were law“——and a form of supreme law capable of overriding statutory language. See id., ¶86 (Roggensack, C.J., dissenting) (citing SEIU, 393 Wis. 2d 38, ¶143 (Roggensack, C.J., concurring/dissenting)). The majority‘s reinvention of guidance as something on par with the constitution is antithetical to the constitutional separation of powers and deprives the people of power over their own government.
¶132 Without offering any explanation, WEC has changed its position on the status of its so-called guidance. WEC did not file a brief in Trump, but in the case‘s precursor, Trump v. Evers,6 WEC argued in its brief, “[t]hese challenges come too late and would unconstitutionally punish voters who relied in good faith on election officials’ guidance.” Not only did WEC argue its guidance was the law, it argued that following the actual law instead of WEC‘s erroneous interpretations would be unconstitutional. In Trump v. Biden, the majority avoided the constitutional issue, but it nonetheless adopted the thrust of the WEC‘s argument about fairness by abusing this court‘s equitable powers. In contrast with its previous position, WEC now characterizes its memos as inert, merely providing information to local officials who are free to ignore them as they please. WEC cannot have it both ways. Either disregarding these documents offends the constitution or they are mere “thoughts” of executive-branch employees. This court chose the former in Trump, which means these documents must be
¶133 With no convincing response to Trump, WEC primarily argues the memos lack the force of law because they do not require municipal clerks to establish ballot drop boxes. But see Off. of the Special Couns., Second Interim Investigative Report on the Apparatus & Procedures of the Wisconsin Elections System 116 (Mar. 1, 2022) (“Surprisingly, many clerks have expressed to the OSC that they are under the impression that WEC guidance is binding, even when they believe such guidance (say, on drop boxes) is unlawful.“). Nonetheless, these memos purport to authorize drop boxes. Under Trump, once a vote is placed in a drop box in reliance on a WEC document that has not been rescinded, it must be counted regardless of whether any statute actually authorizes drop boxes. At least during and after an election, a majority of this court will not consider whether a statute authorizes drop boxes, effectively establishing the memos as the authorizing device.
¶134 As the Wisconsin voters accurately argue, “there are different kinds of laws——some impose duties, others prohibit conduct, and still others authorize conduct. WEC‘s memos fall into the latter category[.]” Since the time of Sir Edward Coke, “unlawful prerogative legislation” has included both legislation constraining the public and the “alteration” of “legally binding duties” “more generally,” including their “relax[ation.]” Philip Hamburger, Is Administrative Law Unlawful? 84 (2014). At
a minimum, the Trump decision allowed WEC to relax legal duties. Specifically, the Trump decision endorsed WEC‘s elimination of duties prescribed by law by counting ballots unlawfully cast in accordance with WEC‘s extra-legal directions. See
¶135 WEC also misses another critical point. While the memos may not require municipal clerks to set up ballot drop boxes, if they do so, Memo two regulates their use with clear, unambiguous, and mandatory language. For example, WEC says: “Ballot drop boxes must be secured and locked at all times” and “[c]hain of custody logs must be completed every time ballots are collected.”7 The fact that these requirements attach only if a municipal clerk decides to set up drop boxes makes no difference. Laws often take the form of “if/then” statements. A person may choose not to drive, but if the person chooses to drive, the person is bound to wear a seat belt by a statute with the force of law.
¶136 The two propositions resulting from the Trump decision cannot both be true:
-
Documents produced by WEC‘s staff——not the Wisconsin statutes——comprise “the rulebook” for elections; and - WEC‘s memos are not administrative rules because they do not have the force of law.
No other agency‘s guidance——or even its properly promulgated rules, for that matter——has been given such pseudo-constitutional force. The Trump decision glorified WEC‘s purported guidance with a supremacy over real law. This court should overrule its erroneous holding in Trump, restoring WEC‘s documents to their proper, and quite limited, role.
¶137 The way we described guidance documents in SEIU in 2020 simply cannot be reconciled with the Trump decision of 2021. In SEIU, we correctly concluded guidance documents “are not law, they do not have the force or effect of law, and they provide no authority for implementing standards or conditions.” 393 Wis. 2d 38, ¶102 (Kelly, J., majority op.). “They impose no obligations, set no standards, and bind no one.” Id. “Functionally, and as a matter of law, they are entirely inert. That is to say, they represent nothing more than the knowledge and intentions of their authors. It is readily apparent, therefore, that the executive need not borrow any legislative authority, nor seek the legislature‘s permission, to create guidance documents.” Id. (emphasis added).
¶138 Trump transformed purported guidance from “entirely inert” to imperviously potent. See id. Ironically, the legislature enacted pre-issuance procedures for guidance documents precisely because the nature of guidance documents is often misunderstood. “Guidance documents can have a practical effect similar to an unpromulgated rule.” Id., ¶142 (Roggensack, C.J., concurring/dissenting). Lawmakers have “frequently heard from constituents, small businesses [and] local government” about “how guidance documents have been abused as a vehicle to actually change the law.” Id., ¶143 (quoting Floor Speech by Andre Jacque, Floor Session on 2017 Assembly Bill 1072 (2017 Wis. Act 369), at 3:25, https://wiseye.org/2018/12/05/assembly-floor-session-part-2-8/ (last visited June 25, 2020)). The Trump majority contradicted the SEIU court‘s treatment of executive agency communications. In SEIU, the court said, “should an administrative agency employee treat a guidance document as a source of authority, that employee would be making a mistake, not defining the nature of a guidance document.” Id., ¶134 (Kelly, J., majority op.) (emphasis added). The court itself made a consequential mistake by declaring WEC‘s guidance not only a source of authority, but the supreme statement of election law.
¶139 In his concurrence, Justice Brian Hagedorn attempts to backtrack from the majority opinion he authored in Trump. Whether expressed metaphorically or otherwise, the Trump majority not only labeled WEC‘s guidance the “rulebook“——it treated it as such, elevating it over statutory law. See supra ¶¶124–26. This concurrence does not advance a new legal analysis; the dissent in Trump explained the upshot of the majority‘s treatment of WEC‘s pronouncements on the law, which the majority never disavowed: “the majority commits grave error by according WEC guidance the force of law . . . . How astonishing that four justices of the Wisconsin Supreme Court must be reminded that it is THE LAW that constitutes ‘the rulebook’ for any election——not WEC guidance——and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men.” Trump, 394 Wis. 2d 629, ¶¶141, 147 (Rebecca Grassl Bradley, J., dissenting).
III. CONCLUSION
¶140 “In Wisconsin, we have a constitution, and it reigns supreme in this state. ‘By section 1 of article 4 the power of the state to deal with elections except as limited by the Constitution is vested in the senate and assembly to be exercised under the provisions of the Constitution; therefore the power to prescribe the manner of conducting elections is clearly within the province of the Legislature.‘” Trump, 394 Wis. 2d 629, ¶141 (Rebecca Grassl Bradley, J., dissenting) (quoting State v. Kohler, 200 Wis. 518, 228 N.W. 895, 906 (1930)). In contravention of the Wisconsin Constitution, the majority‘s decision in Trump suppresses the power of the people‘s representatives in a manner reminiscent of a scene from William Shakespeare‘s Henry VI:
Dick: I have a suit unto your lordship.
Cade: Be it a lordship, thou shalt have it for that word.
Dick: Only that the laws of England may come out of your mouth.
Holland: [to Smith] Mass, ‘twill be sore law, then; for he was thrust in the mouth with a spear, and ‘tis not whole yet.
Smith: [to Holland] Nay, . . . it will be stinking law for his breath stinks with eating toasted cheese.
Cade: I have thought upon it, it shall be so. Away, burn all the records of the realm: my mouth shall be the parliament of England.
Holland: [to himself] Then we are like to have biting statutes, unless his teeth be pulled out.
William Shakespeare, Henry VI, Part II, act. 4, sc. 7, ll. 3–16. ¶141 When the “mouth” of an employee at the WEC supplants the legislature of Wisconsin, we are left with “sore” or “stinking” laws, irredeemably infected by their promulgation in violation of the constitution by an executive branch agency, and impervious to correction by our constitutional lawmakers. “Bicameralism and presentment are the crucible bills must overcome to become law. By design, it is much more difficult than rule by dictatorship.” In re Amending Wis. Stat. §§ 48.299 & 938.299 Regulating the Use of Restraints on Child. in Juv. Ct., 2022 WI 26, ¶55 n.11, __ Wis. 2d __, __ N.W.2d __ (Rebecca Grassl Bradley, J., dissenting).
¶142 A majority of this court permits Administrator Megan Wolfe‘s unilateral declarations regarding election procedures to have the force of law, subject only to judicial review (if the court even bothers to take the case). “No one man should have all that power.” Kanye West, Power (2010). “It is not the province [or the prerogative] of a state executive official to re-write the
¶143 “The Founders designed our ‘republic to be a government of laws, and not of men . . . bound by fixed laws, which the people have a voice in making, and a right to defend.‘” Trump, 394 Wis. 2d 629, ¶149 (quoting John Adams, Novanglus: A History of the Dispute with America, from Its Origin, in 1754, to the Present Time, in Revolutionary Writings of John Adams (C. Bradley Thompson ed. 2000)). A majority of this court defenestrated the people‘s ability to defend their laws. Trump should be overruled to restore the people‘s supremacy over their public servants. I respectfully concur.
¶144 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join this concurrence.
¶145 BRIAN HAGEDORN, J. (concurring). The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that‘s it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written.
¶146 The occasion for us to visit this question now is the issuance of two memos by the Wisconsin Elections Commission (WEC) in 2020. Those memos were prepared in response to questions from local clerks administering elections. In the beginning stages of the COVID-19 pandemic, many wondered whether the mail system would be able to return absentee ballots on time. The memos reflect that clerks asked for guidance, including whether ballot drop boxes could be established to receive completed ballots. WEC said yes, and offered detailed best practices on security and logistics and other such administrative questions. The 2020 spring and fall elections came and went; no significant legal challenges to the memos were raised at the time.
¶147 This lawsuit was filed in June 2021. It is a declaratory judgment action under
¶148 The law says this: absentee ballots can be mailed by the elector or “delivered in person, to the municipal clerk.”
¶150 Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present.
¶151 Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy.
I. BACKGROUND
¶152 Weeks before Wisconsin voters went to the polls in April 2020, the COVID-19 pandemic upended much of the world. Election administration was no exception. Due to the risk posed by the virus, exponentially more voters opted to vote by absentee ballot. Complicating things further, the pandemic strained the United States Postal Service, causing fear that it would not be able to deliver absentee ballots on a timely basis. Faced with these constraints, local election officials reached out to WEC for guidance on how they could ensure all absentee ballots would be received in time to be counted. In response to these questions, WEC issued a memo on March 31, 2020, entitled, “FAQs: Absentee Ballot Return Options: USPS Coordination and Drop Boxes.” The memo advised in relevant part that “drop boxes can be used for voters to return ballots but clerks should ensure they are secure.” It also noted its view that a “family member or another person may also return the ballot on behalf of the voter.” The April election proceeded without apparent legal controversy over these matters.
¶153 As preparations began for the November 2020 election, WEC issued another memo. Dated August 19, 2020, it was entitled, “Absentee Ballot Drop Box Information.” The document was “intended to provide information and guidance on drop box options for secure absentee ballot return for voters.” The memo explained:
A ballot drop box provides a secure and convenient means for voters to return their by mail absentee ballot. A drop box
is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent.
¶154 In June 2021, Waukesha County voters Richard Teigen and Richard Thom (collectively “Teigen“) sued WEC “seeking a declaratory judgment regarding the proper construction of state statutes that set forth the legal methods for Wisconsin voters to cast absentee ballots.” In his complaint, Teigen contended: “The March 2020 and August 2020 Memos are invalid because they exceed the statutory authority of WEC and because they were promulgated without compliance with statutory procedures.” Several parties intervened to defend the memos, including the Democratic Senatorial Campaign Committee (DSCC) and Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters for Wisconsin (collectively “DRW“).
¶155 Teigen moved for summary judgment, and the circuit court granted his motion. The circuit court declared the memos invalid because they conflicted with three principles it drew from the statutes: (1) “an elector must personally mail or deliver his or her own absentee ballot, except where the law explicitly authorizes an agent to act on an elector‘s behalf“; (2) the only ways to cast an absentee ballot under
¶156 After the circuit court‘s ruling, WEC, DRW, and DSCC appealed to the court of appeals. Teigen petitioned this court for bypass. We granted Teigen‘s petition and received briefing on three issues: (1) whether Teigen‘s case is procedurally proper, (2) whether WEC‘s memos are inconsistent with Wisconsin election law, and (3) whether WEC‘s memos are unpromulgated administrative rules.
II. PROCEDURAL ISSUES
¶157 The intervening parties raise two procedural challenges they contend forbid Teigen from bringing this suit. DSCC asserts Teigen lacks standing to seek declaratory relief. And DRW argues Teigen‘s claim must be dismissed because he failed to exhaust the available administrative remedies. Both challenges fall short.
A. Standing
¶158 Teigen seeks declaratory relief under
¶159 Chapter 227‘s broad right to declaratory relief is not without limits. In particular, the statute requires that the challenged rule or guidance document have some practical and adverse effect on the party seeking relief:
The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff.
¶160 Standing is the foundational principle that those who seek to invoke the court‘s power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766 N.W.2d 517. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, “Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable.” Foley-Ciccantelli v. Bishop‘s Grove Condo. Ass‘n, Inc., 2011 WI 36, ¶131, 333 Wis. 2d 402, 797 N.W.2d 789 (Prosser, J., concurring). The judiciary does not serve as a roving legal advisor, answering any questions about the law that may arise. The power we have is “judicial.”
¶161 It is also important to give careful attention to standing because the legislature has, in many instances, prescribed the ground rules for judicial review. The rule of law requires that we pay heed to the procedural law enacted by the legislature no less than other laws.
¶162 Thus, the question is whether WEC‘s memos harm or threaten harm to any of Teigen‘s “legal rights and privileges.” Teigen proffers two legal rights which he contends are implicated by the memos: his right as a taxpayer to challenge unlawful expenditures, and his right as a voter to have election officials comply with election laws.
¶163 We have held that taxpayers have a legal right “to contest governmental actions
¶164 Teigen‘s second argument, however, is more compelling. Teigen argues that
Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning . . . election administration or conduct of elections is contrary to law . . . the elector may file a written sworn complaint with [WEC] requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law.
¶165 Returning to the standing question here,
¶166 The two memos challenged in this case provide local election officials advice on absentee ballot return——advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC‘s advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen‘s area, are likely to rely on and implement erroneous advice. Applying the plain terms of
¶167 The majority/lead opinion concludes Teigen has standing, but for a different reason. It says Teigen alleged an injury to his constitutional right to vote as recognized in
B. Exhaustion
¶168 One procedural matter remains. DRW argues Teigen failed to exhaust his administrative remedies because he did not first challenge the guidance under
¶169 DRW makes reasonable arguments supporting the proposition that these statutes apply to claimed failures of WEC as well. But on balance, I conclude that these statutes do not apply here.
¶170 In addition,
III. BALLOT DELIVERY & DROP BOXES
¶171 In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at clerk‘s office or elsewhere, and that individuals other than the voter may deliver the voter‘s absentee ballot to the clerk. These three positions are inconsistent with Wisconsin‘s election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk‘s authorized representative at either the clerk‘s office or a designated alternate site.
A. Statutory Framework
¶172 Our interpretive task centers on three statutes that together provide the framework for how absentee ballots may be returned and how clerks are to receive them.
¶173 The first one,
¶174
¶175 When we construe statutes, we must read the words to mean what they were understood to mean at the time they were enacted, lest we find ourselves rewriting the law. Fortunately, we have clear evidence of how this language was originally read. Less than a year after enactment, the attorney general opined on the precise interpretive question before us today: “‘Delivery in person’ must mean handed directly by an elector to the officer; it means manual transmission by the one to the other.” 5 Wis. Op. Att‘y Gen. 591, 593 (1916). When enacted, the text we are considering today was understood to require a person-to-person interaction between the voter and the clerk. So far as I can tell, this reading went unchallenged for 40 years.
¶176 In 1955, this court had occasion to examine the statute in an election dispute.
¶177 The legislature has instructed that a “revised statute is to be understood in the same sense as the original unless the change in language indicates a different meaning so clearly as to preclude judicial construction.”
¶178 WEC and DRW counter that because the statute is written in the passive voice, the actor is indeterminate. While that can be true at times, it is not the case here.
¶179 In the end, there are two ways to return an absentee ballot under
¶180 We turn next to two statutes that inform where clerks may receive absentee ballots.
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 [a statement regarding the contents of the envelope]. . . . The clerk shall keep the ballot in the clerk‘s office or at the alternate site, if applicable until delivered [to the appropriate election officials].
This statute ensures a strict chain of custody for ballots. Once a ballot is delivered by the voter, the clerk must take steps to secure it until the time comes to deliver it to the appropriate election officials. The next subsection,
¶181 Finally, we consider
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. . . . 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.
¶182 The respondents argue that the directive to deliver ballots “to the municipal clerk” in
¶183 Read together, these statutes direct that when voters choose to return an absentee ballot in person, they must personally deliver their ballot to the clerk or the clerk‘s authorized representative at either the clerk‘s office or a designated alternate site. With this interpretation in hand, the next task is to hold WEC‘s memos up against the statutes.
¶184 Teigen focuses his challenge to the March 2020 memo on the following sentence: “A family member or another person may also return the ballot on behalf of the voter.” Teigen argues, correctly, that this advice was contrary to
¶185 Teigen also seeks a declaration that
¶186 Finally, we turn to WEC‘s August 2020 memo, which provides guidance on drop boxes. Teigen correctly contends the August 2020 memo improperly advises clerks on how to administer unstaffed drop boxes and drop boxes at locations other than the clerk‘s office or alternate sites. WEC‘s guidance is contrary to statute for two reasons. First, unstaffed drop boxes do not satisfy
¶187 Both WEC‘s March 2020 and August 2020 memos provide advice that is inconsistent with Wisconsin‘s election statutes. The court therefore rightly affirms the circuit court‘s order declaring the memos invalid pursuant to
IV. UNPROMULGATED RULE CHALLENGE
¶188 The foregoing analysis is sufficient to resolve the appeal before us. I write further to address Teigen‘s argument that WEC‘s memos were unpromulgated administrative rules. ¶189 Not all statements that come from a state agency are created equal. Wisconsin‘s Administrative Procedure Act recognizes this and draws a distinction between what it terms “guidance documents” on the
¶190 A guidance document is just what it sounds like. It is a “formal or official document or communication issued by an agency“——such as “a manual, handbook, directive, or informational bulletin“——that explains how a rule will be implemented or advises the public on how the agency is likely to apply a statute or rule to a class of similarly affected persons.
¶191 “Rules” are different. The statutory definition of a rule has five elements: a “rule” is (1) “a regulation, standard, statement of policy, or general order,” (2) “of general application,” that (3) “has the force of law,” and (4) “is issued by an agency,” to (5) “implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.”
¶192 Teigen contends that both of WEC‘s memos were rules under the five-part definition just articulated, and that they are invalid because WEC did not go through the steps required to promulgate a rule. The dispute revolves around whether these memos have the force of law; rules by definition do, guidance documents by definition do not.
¶193 Few cases interpret whether a directive has the force of law. The court of appeals has observed that “[m]aterials developed by an agency as a reference aid for its staff that are couched in terms of advice and guidelines rather than setting forth law-like pronouncements” do not have the force of law and are not rules. County of Dane v. Winsand, 2004 WI App 86, ¶11, 271 Wis. 2d 786, 679 N.W.2d 885 (cleaned up). By contrast, materials “using express mandatory language are more than informational.” Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299, 321 n.12, 493 N.W.2d 744 (Ct. App. 1992). In such documents, “the agency speaks with an official voice intended to have the effect of law.” Id.. How an agency uses a document can also indicate whether it has the force of law. See Barry Lab‘ys, Inc. v. Wis. State Bd. of Pharmacy, 26 Wis. 2d 505, 516, 132 N.W.2d 833 (1965). Additional instances where agency materials have been held to have the force of law include “where criminal or civil sanctions can result” or “where the interest of individuals in a class can be legally affected through enforcement of the agency action.” Cholvin v. DHSF, 2008 WI App 127, ¶26, 313 Wis. 2d 749, 758 N.W.2d 118 (collecting cases).
¶194 While these cases are helpful, a more fundamental question should be asked: what is a law? To be a law means to be binding and enforceable. Durkee v. City of Janesville, 28 Wis. 464, 471 (1871) (laws are “binding“); State ex rel. Mayer v. Schuffenhauer, 213 Wis. 29, 32, 250 N.W. 767 (1933) (laws “must be followed“). A law orders and forbids and governs and establishes in an authoritative way. See U.S. Fid. & Guar. Co. v. Guenther, 281 U.S. 34, 37 (1930) (defining “law” as “the rules of action or conduct duly prescribed by controlling authority, and having binding legal force“). Here, the statutes specify that a rule must have the “force of law.”
¶195 Also important to our inquiry is the agency we are talking about. Most agencies in state government operate with a wide range of powers and have broad areas of regulatory authority. WEC is different. Wisconsin‘s method for conducting elections is unlike that of most other states in the union. Our election administration system is highly decentralized. State ex rel. Zignego v. WEC, 2021 WI 32, ¶13, 396 Wis. 2d 391, 957 N.W.2d 208. “Rather than a top-down arrangement with a central state entity or official controlling local actors, Wisconsin gives some power to its state election agency ([WEC]) and places significant responsibility on a small army of local election officials.” Id.. It is local clerks who have the “primary role in running Wisconsin elections.” Id., ¶15. WEC is therefore given authority and oversight over some things, and not others. It may speak authoritatively at times, but not at all times.
¶196 Consistent with this structure, the statutes specific to WEC establish a process by which WEC can adopt formal or informal advisory opinions that “have legal force and effect.”
¶197 Considering all of this, the two memos in this case do not have the force of law. The memos are self-labeled guidance documents. They do not purport to be advisory opinions with legal force issued pursuant to
¶198 The language of the memos supports this view. The March 2020 memo is structured as an FAQ document addressed to local election officials. It begins by observing, “Due to the increase in by-mail absentee ballots, clerks have inquired about options for ensuring that the maximum number of ballots are returned to be counted for the April 7, 2020 election.” It proceeds to advise clerks on how “to make ballot return more accessible and efficient,” and says that it is “recommended” that clerks take various actions to inform voters how their ballots may be returned. The memo then shifts to question-and-answer
¶199 The August 2020 memo is similarly entitled “Absentee Ballot Drop Box Information” and is addressed to Wisconsin‘s election officials. The very first line of the memo reveals its limited purpose: “This document is intended to provide information and guidance on drop box options for secure absentee ballot return for voters.” It indicates the information in the memo was adapted from an advisory resource developed by the Cybersecurity and Infrastructure Security Agency. It advises election officials regarding various types of drop boxes, where to place them, and how to keep the ballots collected in drop boxes secure. Again, reading the August 2020 memo in full reveals that it is an informational document, designed to educate election officials regarding best practices. It was never legally binding.
¶200 Teigen disagrees. He argues that when the state entity responsible for administering Wisconsin election law says something is permissible——like drop boxes——WEC‘s imprimatur gives its statement the force of law. But widely-followed advice can still simply be advice. Even general acceptance does not make guidance legally binding or otherwise give it the force of law. Wisconsin‘s local election officials who lead the charge in election administration have an independent responsibility to read and follow the law. WEC‘s memos provided advice and best practices which election officials could weigh and consider. Many surely followed that advice. But the memos did not themselves “authorize” drop boxes or any other election practice in a legally binding way.
¶201 Justice Rebecca Grassl‘s Bradley concurrence concludes the memos are administrative rules, a position premised on a confused interpretation of Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951 N.W.2d 568. In that case, the court used the word “rulebook” in a metaphor regarding challenge flags in football. Id., ¶32. The logic of Justice Bradley‘s concurrence goes like this: The court said WEC‘s memos were a rulebook, so the court held that WEC memos have the force of law and are administrative rules under
¶202 To state the obvious, a metaphor is “a figure of speech in which a term or phrase is applied to something to which it is not literally applicable.”18 The challenge flag metaphor came in the concluding paragraph to reinforce the importance of challenging election practices in a timely manner. Yet the concurrence reasons that using the coincidentally similar word “rulebook” means the court determined that all WEC memos are “rules” within the statutory definition. Except the court‘s decision in Trump did not involve administrative rulemaking at all. It did not cite
394 Wis. 2d 629, ¶32. The court expressly withheld judgment on whether the widely followed WEC guidance was correct or not. Id., ¶30 n.11 (“Our decision that the Campaign is not entitled to the relief it seeks does not mean the legal issues presented are foreclosed from further judicial scrutiny.“). Simply put, neither the court‘s reasoning nor its concluding metaphor suggested all such guidance has the force of law and must be followed. It never even hinted this. The idea that we should ascribe legal force to the two challenged memos in this case because this was somehow settled by a one-sentence metaphor in Trump v. Biden is not a serious legal argument.
¶203 In the end, neither the March 2020 memo nor the August 2020 memo are unpromulgated administrative rules because neither have the force of law. The memos here are guidance documents. They are not subject to
V. CONCLUSION
¶204 The majority/lead opinion correctly concludes that WEC‘s March 2020 and August 2020 memos are invalid because they are inconsistent with Wisconsin law. Wisconsin‘s election statutes require that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk‘s authorized representative at either the clerk‘s office or a designated alternate site.
¶205 ANN WALSH BRADLEY, J. (dissenting). The right to vote is a “sacred right of the highest character.” State ex rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910). Yet the majority/lead opinion1 blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters to exercise this “sacred right.”
¶206 Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.2
¶208 The majority/lead opinion‘s analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy.
¶209 Accordingly, I respectfully dissent.
I
¶210 At the outset, the majority/lead opinion makes a significant misstep. It begins with a lengthy discussion of standing,4 and in the process extends the doctrine beyond recognition.
¶211 In the majority/lead opinion‘s view, Teigen5 has standing “under Wisconsin‘s permissive, policy-oriented approach toward standing” because he has a “stake in the outcome” and is “affected by the issues in controversy.” Majority/lead op., ¶14. Teigen has suffered an “injury in fact” to his constitutional right to vote, the majority/lead opinion says, merely because he alleges that election law was not followed. In accepting Teigen‘s standing to bring this suit, it further states: “the failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results.” Id., ¶25.
¶212 The majority/lead opinion attempts to create a free-for-all. It delineates no bounds whatsoever on who may challenge election laws. Instead, it relies on broad pronouncements regarding the import of our election laws and their general effect on all people. But just because all people are subject to a law does not mean that any and all people are entitled to challenge it.
¶213 Indeed, “Courts are not the proper forum to air generalized grievances about the administration of a governmental agency.” Cornwell Personnel Assocs., Ltd. v. DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App. 1979) (citations omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) (“We have consistently held that a plaintiff raising only a generally available grievance about government——claiming only harm to his and every citizen‘s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large——does not state an Article III case or controversy.“).
¶214 Yet a “generalized grievance” is just what Teigen brings to this court. The majority/lead opinion says that Teigen‘s “rights and privileges as [a] registered voter[]” give him standing to bring this action challenging the statewide administration of elections. Majority/lead op., ¶14. Taken to its logical conclusion, the majority/lead opinion indicates that any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of voter standing is breathtaking and especially acute at a time of increasing, unfounded challenges to election results and election administrators.6
¶215 Rather than opening wide the barn doors, the doctrine of standing is important “because it reins in unbridled attempts to go beyond the circumscribed boundaries that define the proper role of courts.” Fabick v. Evers, 2021 WI 28, ¶92, 396 Wis. 2d 231, 956 N.W.2d 856 (Ann Walsh Bradley, J., dissenting).7 “Unbridled” certainly describes the majority/lead opinion‘s approach to standing in this case. It follows a standard untethered to any limiting principle, which in effect renders the concept of standing merely illusory.
II
¶216 I turn next to the substance of the majority/lead opinion‘s statutory interpretation.8 Even assuming Teigen has standing to bring this claim, the majority/lead opinion falters in its examination of the relevant statutes.
A
¶217
¶218 In the majority/lead opinion‘s view, “[n]othing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them.” Majority/lead op., ¶54. Further, it interprets the phrase “to the municipal clerk” to mean “mailing or delivering the absentee ballot to the municipal clerk at her office” or an alternate site under
¶219 The majority/lead opinion‘s interpretation of
¶221 From these statutes we can take the principle that the office of the municipal clerk is a location. Indeed, a person “appear[s]” at a location. See
¶222 We also know that a “municipal clerk” under the statutes is distinct from the “office of the municipal clerk,” because “municipal clerk” is specifically defined as “the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives.”
¶223 “If a word or words are used in one subsection but are not used in another subsection, we must conclude that the legislature specifically intended a different meaning.” Responsible Use of Rural and Agr. Land v. Pub. Serv. Comm‘n, 2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888. If the legislature wanted to require return of a ballot to the clerk‘s office, it certainly could have done so, as it did in the litany of provisions using such language. See, e.g., Southport Commons, LLC v. DOT, 2021 WI 52, ¶31, 397 Wis. 2d 362, 960 N.W.2d 17 (indicating that when the legislature wants to accomplish an object in a manner used in other areas of the statutes, “it knows how to do so“).
¶224 But the legislature did not do that. Instead, it indicated that the ballot be delivered “to the municipal clerk,” not to the clerk‘s office. Conflating “municipal clerk” with “office of the municipal clerk” is not——as the majority/lead opinion claims——the “fairest interpretation” of the statute. See majority/lead op., ¶62. Instead, it is a rank distortion of the statutory text.
¶225 Can delivery to a drop box constitute delivery “to the municipal clerk?” Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk‘s office. As stated, the “municipal clerk” in the statutes is a person, and the “office of the municipal clerk” is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk‘s designee10 sets up, maintains,
¶226 The majority/lead opinion additionally invokes
¶227 To explain,
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.”
(Emphasis added).
¶228 On its face,
¶229 The majority/lead opinion reads into
¶230 Election administration in Wisconsin is decentralized. State ex rel. Zignego v. Wis. Elections Comm‘n, 2021 WI 32, ¶13, 396 Wis. 2d 391, 957 N.W.2d 208. “Rather than a top-down arrangement with a central state entity or official controlling local actors, Wisconsin gives some power to its state election agency (the Commission) and places significant responsibility on a small army of local election officials.” Id. Indeed, “Municipal clerks are the officials primarily responsible for election administration in Wisconsin.” Id., ¶15.
¶231 This significant responsibility is codified in the statutes.
¶232 Instead of an inexorable command that unstaffed drop boxes are banned,
¶233 The circuit court here allowed the use of staffed drop boxes in the office of a municipal clerk. But what good is this for a clerk in a rural area who may work only a few hours a week? In this context, it certainly makes sense for those clerks to have at least the discretion to place a drop box outside the office or in another location so voters can drop off absentee ballots outside of the limited hours the clerk‘s office is actually open.
¶234 Instead of this common sense reading that is consistent with the decentralized manner in which Wisconsin elections are run, the majority/lead opinion severely limits the return of absentee ballots in all municipalities regardless of their circumstances. Some voters will be unlucky enough to live in a jurisdiction without a full-time clerk, and others will be forced to go to only a single location to return their ballots where they previously had numerous options. Does the majority/lead think everyone in this state lives in urban areas with full-time clerks and standard office hours? If so, it ignores reality and puts rural voters at a disadvantage.
¶235 Our statutes and case law indicate that election administration in Wisconsin is not one-size-fits-all. See Zignego, 396 Wis. 2d 391, ¶13. Yet the majority/lead opinion fails to recognize this, making election administration more onerous for local clerks and the exercise of the franchise more difficult for voters.
B
¶236 Contravening the plain language of the statute to prohibit ballot drop boxes is bad enough. But the majority/lead opinion further erroneously determines that a voter cannot have a family member or friend return their ballot to the municipal clerk for them. Majority/lead op., ¶83.
¶237 The brunt of this holding will fall on those who are homebound. If a voter is disabled or sick, and someone the voter
¶238 As absurd as that sounds in practice,13 the majority/lead opinion‘s statutory interpretation to reach that result fares no better. Although at first blush the majority/lead opinion‘s interpretation may seem reasonable, a closer examination of the text reveals otherwise. Section
¶239
¶240 Section
¶241 The majority/lead opinion violates a cardinal rule of statutory interpretation by writing words into the statute the legislature did not write. See Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316. A voter‘s spouse, child, or roommate can deliver a ballot “in person” just as the voter can, and the statute draws no distinction. Yet the majority/lead opinion manufactures one, going outside the words the legislature wrote to place yet another obstacle in the way of voters simply seeking to exercise their cherished right to vote.15
However, despite its insistence that it is not addressing the issue, the majority/lead opinion proceeds to go on at length about Disability Rights Wisconsin‘s argument regarding federal law on ballot assistance and criticizes the argument as “undeveloped.” See majority/lead op., ¶¶84-86. As the majority/lead opinion acknowledges, this argument is directed at the “impact of the circuit court‘s declarations on disabled voters who may be physically unable to vote if someone cannot place an absentee ballot in the mail on a voter‘s behalf.” Id., ¶86. Accordingly, this sojourn is
Undeterred by the majority/lead opinion‘s statement that the WEC memos at issue “do not address” the issue, Justice Roggensack‘s concurrence forges ahead with that analysis anyway. Rather than engage on an issue that is not properly before the court in the first place, I simply observe that Justice Roggensack‘s concurrence is not the law, and that the issue of whether a family member or other person may place an absentee ballot in a mailbox on behalf of a voter is not resolved by this opinion.
III
¶242 As a final point, I address the majority/lead opinion‘s language casting doubt on the results of past elections conducted with drop boxes. The majority/lead opinion claims that “[t]he illegality of these drop boxes weakens the people‘s faith that the election produced an outcome reflective of their will.” Majority/lead op., ¶24; see also id., ¶25 (“[T]he failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results.“). It suggests that the use of drop boxes leaves electoral results “in question.” Id., ¶24.
¶243 Nonsense. First, accepting the majority/lead opinion‘s assertion requires either willful ignorance to the origin of the WEC August 19, 2020 memo or a lack of trust in its source. The August 19, 2020 memo was “adapted from a resource developed as part of the Cybersecurity and Infrastructure Security Agency (CISA) Elections Infrastructure Government Coordinating Council and Sector Coordinating Council‘s Joint COVID Working Group.” CISA is operated under the auspices of the Department of Homeland Security. Drop boxes were apparently secure enough for the federal Department of Homeland Security, yet the majority/lead opinion still contends that they cause people to lose faith in our elections.
¶244 There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.
¶245 It is true that the legislature has referred to absentee voting as a “privilege exercised wholly outside the traditional safeguards of the polling place” that must be “carefully regulated to prevent the potential for fraud or abuse.”
¶246 The majority/lead opinion‘s sky-is-falling rhetoric not only defies the facts, but also is downright dangerous to our democracy. Absent evidence that supports its statements, the majority/lead opinion still lends its imprimatur to efforts to destabilize and delegitimize recent elections.
¶248 For the foregoing reasons, I respectfully dissent.
¶249 I am authorized to state that Justices REBECCA FRANK DALLET and JILL J. KAROFSKY join this dissent.
Notes
- 1915: “Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in person.”
Wis. Stat. § 44m——6 (1915) . - 1965: “The envelope shall be mailed by the elector, postage prepaid, or delivered in person, to the municipal clerk issuing the ballot.”
Wis. Stat. § 6.87(4) (1967-68) . - Present: “The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
Wis. Stat. § 6.87(4)(b)1.
Nevertheless, footnote 29 of the majority/lead opinion takes this dissent to task and ridicules Justice Jill Karofsky for joining it, while at the same time partaking in the very conduct about which it is complaining.
What comes to mind is the adage of psychological projection——“the pot calling the kettle black.” Rather than detailing in response the several and recent examples illustrating the adage (and risking the undesirable escalation of hyperbole), I observe only that there is an obvious difference between attacking a public servant as a “tyrant” for merely doing her job, which elicited Justice Karofsky‘s objection in Becker, and simply pointing out this court‘s poor recent track record when it comes to protecting voting rights, as does this dissent. See Becker v. Dane County, 2022 WI 44, ¶44.