July 11, 2022 – Wisconsin law does not authorize the use of ballot drop boxes, the Wisconsin Supreme Court has ruled in a 4-3 decision.
In Teigen v. WEC, 2022 WI 64 (July 8, 2022), the supreme court also held that Wisconsin statutes require voters to either mail or personally return ballots to a municipal clerk’s office or a designated alternate site.
Justice Rebecca Grassl Bradley wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Brian Hagedorn. Justice Roggensack, Justice R.G. Bradley, and Justice Hagedorn each wrote a concurrence.
Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Rebecca Dallet and Justice Jill Karofsky.
Challenge to WEC Guidance
In June 2021, Richard Teigen and Richard Thom filed a lawsuit under Wis. Stat. chapter 227 in Waukesha County Circuit Court, challenging guidance issued to local election officials in 2020 by the Wisconsin Elections Commission (WEC).
The guidance, which took the form of two memos, authorized the use of ballot drop boxes and allowed third parties to return ballots for voters.
The circuit court granted summary judgment for the plaintiffs in January 2022, ruling that the WEC guidance violated state statutes, and that the guidance documents were administrative rules but were not properly promulgated.
The circuit court also issued a permanent injunction that required WEC to rescind the two guidance documents it had issued authorizing the use of ballot drop boxes.
WEC joined several defendants in a motion asking the circuit court to stay the order pending appeal. The circuit court denied the motion and the defendants appealed. The court of appeals then stayed the circuit court’s order through Feb. 15, 2022.
The plaintiffs filed an emergency petition, asking the supreme court to vacate the stay, bypass the court of appeals, and hear the case directly. On Jan. 28, the court declined to vacate the stay but granted the petition to bypass.
Drop Boxes Weaken ‘People’s Faith’ in Elections
Justice R.G. Bradley began her opinion by explaining that plaintiffs had standing to bring the lawsuit.
R. G. Bradley pointed out that unlike the concept of standing in federal law, where Article III, Section 2 of the U.S. Constitution limits the judicial power to “cases and controversies,” standing under Wisconsin law is constrained only by judicial prudence.
Justice R.G. Bradley explained that the plaintiffs met the two-prong test – injury-in-fact and zone of interests – developed by the supreme court for analyzing standing issues for lawsuits brought under chapter 227.
The plaintiffs had suffered an injury-in-fact to their right to vote, R.G. Bradley wrote, because “the illegality of these drop boxes weakens the people’s faith that the election produce an outcome reflective of their will. The [plaintiffs], and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question.”
In making the point that “elections must be conducted according to law,” Justice R.G. Bradley cited examples from Iraq, North Korea, Cuba, and Syria where, she wrote, “tyrants have claimed electoral victory via elections conducted in violation of governing law.”
“Unlawful votes do not dilute lawful votes so much as they pollute them, which in turn pollute the integrity of the results,” R.G. Bradley wrote.
The injury alleged by plaintiffs – the WEC guidance on ballot boxes – was inside the zone of interests to be protected by the statute, Justice R.G. Bradley explained.
The plaintiffs were entitled to relief under Wis. Stat. section 227.40(1) because the WEC memos interfered with or impaired, or at the least threatened to interfere with or impair, their legal rights and privileges.
Drop Boxes Exist ‘Outside Statutory Parameters’
Justice R.G. Bradley noted that the statement of legislative policy at Wis. Stat. section 6.84(1) specifies that “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” The WEC guidance conflicts with that statement, R.G. Bradley explained.
No statute mentions drop boxes, Justice R.G. Bradley pointed out. Furthermore, section 6.87(4)(b)1. mandates that absentee ballots be “mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
“An inanimate object, such as a ballot drop box, cannot be the municipal clerk,” R.G. Bradley wrote. “At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery ‘to the municipal clerk.’”
Justice R.G. Bradley also explained that ballot drop boxes cannot be alternate absentee ballot sites, which are allowed under section 6.855, because alternate absentee ballots sites must allow voters to request and vote absentee at the site, two things not possible with a drop box.
“Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature,” R.G. Bradley wrote. “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.”
The defendants argued that the phrase “to the municipal clerk” in section 6.87(4)(b)1. modified both the clauses “mailed by the elector” and the phrase “delivered in person,” such that drop boxes were encompassed in the statute.
But Justice R.G. Bradley explained that such an interpretation – which she characterized as “hyper-literal” – would allow voters to hand absentee ballots to a municipal clerk in a grocery store.
“‘Municipal clerk,’ however, denotes a public office, held by a public official acting in an official capacity when performing statutory duties such as accepting ballots,” R.G. Bradley wrote.
“The statutes do not authorize the municipal clerk to perform any official duties related to the acceptance of ballots at any location beyond those statutorily prescribed.”
Voter, Not Agent, Must Return Ballot
State statutes do not authorize the delivery of a ballot by anyone other than the person who cast the ballot, Justice R.G. Bradley explained.
Section 6.87(4)(b)1. states that a ballot “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
R.G. Bradley noted that a survey of dictionaries revealed that “in person” denotes “bodily presence.” Furthermore, she wrote, “[a]s used throughout Wisconsin’s election code, the phrase ‘in person’ refers to a voter acting directly, not though an agent.”
Roggensack Concurrence: No Agents Allowed
In her concurrence, Justice Roggensack emphasized that if the legislature intended for the agent of an elector to return the elector’s ballot, it knew how to do so, and pointed to section 6.86(1)(b), which authorizes a judge to deliver the ballot of a sequestered juror to a municipal clerk or the agent of a municipal clerk.
Roggensack also pointed to section 6.86(3)(a), which allows an elector to both obtain a ballot and register to vote through an agent, and section 6.87(5), which allows a disabled elector to choose an agent to help him or her mark a ballot.
R.G. Bradley Concurrence: Trump Should Be Overruled
In her concurrence, which was joined by Chief Justice Annette Ziegler and Justice Roggensack, Justice R.G. Bradley argued that the supreme court majority erred in Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951 N.W.2d 568 by holding that WEC guidance has the force of law.
“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,” Justice R.G. Bradley wrote. “Trump should be overruled … As it stands, WEC’s staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government.”
In his concurrence, Justice Brian Hagedorn argued that the plaintiffs’ better argument to establish standing was that section 5.06 provides voters a statutory right to have local election officials follow state law by filing a written complaint with WEC.
On the issue of whether the drop boxes were authorized by state law, Justice Hagedorn pointed out that statutes strictly regulate voting at alternate voting sites.
“Ballot custody is carefully regulated at both clerks’ offices and at alternate sites,” Hagedorn wrote. “The absence of any careful regulation governing ballot custody elsewhere leads me to conclude that clerks may not take custody of ballots at other locations unless otherwise specified.”
Dissent: Majority ‘Pays Lip Service’ to Right to Vote
In her dissent, Justice A.W. Bradley argued that the court “pays lip service to the import of the right to vote” while making it harder for voters to exercise that right.
“Such a result, though lamentable, is not a surprise from this court,” A.W. Bradley wrote. “It has seemingly taken the opportunity to make it harder to vote or to inject confusion into a process whenever it has been presented with the opportunity.”
Justice A.W. Bradley wrote that the majority’s treatment of the standing issues “delineates no bounds whatsoever on who may challenge election laws.”
“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.”
Delivery to Drop Box is Delivery to Clerk
Justice A.W. Bradley argued that majority misinterpreted the term “municipal clerk” in section 6.87(4)(b)1. In numerous other election-related statutes, A.W. Bradley pointed out, the legislature used the terms “office of the municipal clerk,” “office of the clerk,” or “the clerk’s office.”
“In other words, the ‘municipal clerk’ is a person, and the ‘office of the municipal clerk’ is a location,” Justice A.W. Bradley wrote.
The majority conflated the term “municipal clerk” with the term “office of the municipal clerk,” A.W. Bradley argued.
“Can delivery to a drop box constitute delivery ‘to the municipal clerk?’” Justice A.W. Bradley wrote. “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.”
The majority further erred, Justice A.W. Bradley argued, by holding that an elector must deliver her ballot herself. That holding, A.W. Bradley pointed out, will fall disproportionately on the homebound, the disabled, and the sick.
“The statute says nothing at all about who may return a ballot to the municipal clerk,” Justice A.W. Bradley wrote. “Rather, that statute is written in the passive voice and does not indicate who the actor is who must deliver the ballot ‘in person.’”
Justice A.W. Bradley also argued that the majority opinion “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.”