Teigen v. Wis. Elections Comm'n

• Decision Date: 08 July 2022
• Docket Number: 2022AP91
• Citation: 976 N.W.2d 519,2022 WI 64
• Parties: 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.
• Court: Wisconsin Supreme Court

976 N.W.2d 519

2022 WI 64

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.

Oral Argument: April 13, 2022

Opinion Filed: July 8, 2022

Motion for Reconsideration Filed July 28, 2022

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.

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.

REBECCA GRASSL BRADLEY, J.

¶1 This case concerns two documents created by employees of the Wisconsin Elections Commission ("WEC"). These documents authorize municipal clerks and local election officials to establish ballot drop boxes. According to one of the documents:

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 Wis. Stat. § 227.40 (2019–20),¹ challenging the validity of these documents.² They advanced two arguments: (1) the documents are unpromulgated administrative rules; and (2) under Wisconsin statutes, drop boxes are illegal because a voter must personally mail or deliver in person the voter's absentee ballot to the 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 Wis. Stat. § 6.855." The circuit court also issued a permanent injunction, requiring WEC to rescind the documents and enjoining WEC from issuing further interpretations of law in conflict with the court's order. An appeal followed, and we granted the Wisconsin voters’ petition to bypass the court of appeals.⁴

¶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 Wis. Stat. § 6.87(4)(b)1. exist, one of which is "for the elector to place the envelope containing the ballot in the mail[.]" The documents do not address whether voters who mail an absentee ballot must personally place the ballot into a mailbox or if a voter's agent may do so. We therefore do not decide at this time whether the law permits a voter's agent to place an absentee ballot in the mail on the voter's behalf.

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 Chapter 227 of the Wisconsin statutes and are invalid ... because they should have been, but were not, promulgated as rules." It also declared:

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 under Wis. 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 Wis. Stat. §§ 6.87 and 6.855 in the Memos has been declared invalid by this Court[.]" The injunction also ordered WEC not to "issue any further interpretations ... that conflict[ ] with ... §§ 6.87 and 6.855, as described above." The defendants appealed. The Wisconsin voters filed a petition to bypass the court of appeals, which we granted.

II. STANDARD OF REVIEW

¶10 Two threshold arguments have been raised. First, DSCC argues the Wisconsin voters lack standing. The existence of standing presents a question of law, which we review independently, although we benefit from the circuit court's analysis. Friends of the Black River Forest v. DNR, 2022 WI 52, ¶10, ––– Wis. 2d ––––, ––– N.W.2d –––– (quoting City of Mayville v. DOA, 2021 WI 57, ¶15, 397 Wis. 2d 496, 960 N.W.2d 416 ); see also T.L.E.-C. v. S.E., 2021 WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 391 (citing State v. Stephenson, 2020 WI 92, ¶18, 394 Wis. 2d 703, 951 N.W.2d 819 ).

¶11 Second, DRW argues Wisconsin law bars...