Priorities USA v. Wisconsin Elections Commission

2024 WI 32

• Court: Wisconsin Supreme Court
• Decided: July 5, 2024
• Docket: 2024AP000164
• Status: Published

Opinion

2024 WI 32

SUPREME COURT OF WISCONSIN CASE NO.: 2024AP164

COMPLETE TITLE: Priorities USA, Wisconsin Alliance for Retired Americans and William Franks, Jr., Plaintiffs-Appellants, Governor Tony Evers, Intervenor-Appellant, v. Wisconsin Elections Commission, Defendant-Respondent, Wisconsin State Legislature, Intervenor-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 5, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 13, 2024

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Ann M. Peacock

JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and HAGEDORN, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants, there were briefs filed by Diane M. Welsh, and Pines Bach LLP, Madison; David R. Fox (pro hac vice), Justin Baxenberg (pro hac vice), Richard A. Medina (pro hac vice), Omeed Alerasool (pro hac vice), and Elias Law Group LLP, Washington, D.C. There was an oral argument by David R. Fox. For the intervenor-appellant, there were briefs filed by Erin K. Deeley, David P. Hollander, Rachel E. Snyder, Carly Gerads, and Stafford Rosenbaum LLP, Madison; Mel Barnes, and Office of Governor Tony Evers, Madison; Christine P. Sun (pro hac vice), Zack Goldberg (pro hac vice), and States United Democracy Center, New York, NY. There was an oral argument by Erin K. Deeley.

For the defendant-respondent, there was a brief filed by Charlotte Gibson, assistant attorney general, Faye B. Hipsman, assistant attorney general, Steven C. Kilpatrick, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Faye B. Hipsman, assistant attorney general.

For the intervenor-respondent, there was a brief filed by Misha Tseytlin, Kevin M. LeRoy, Sean T.H. Dutton, Emily A. O’Brien, and Troutman Pepper Hamilton Sanders LLP, Chicago, IL. There was an oral argument by Misha Tseytlin.

An amicus curiae brief was filed by Nicholas Fairweather, and Hawks Quindel, S.C., Madison; Graham Provost (pro hac vice), and Public Rights Project, Oakland, CA, on behalf of Wisconsin Election Officials.

An amicus curiae brief was filed by Lane E. Ruhland, and Ruhland Law and Strategy, LLC, Waunakee, on behalf of Center for Election Confidence.

An amicus curiae brief was filed by Matthew M. Fernholz, and Cramer Multhauf LLP, Waukesha; Thomas R. McCarthy (pro hac vice), Conor D. Woodfin (pro hac vice), R. Gabriel Anderson (pro hac vice), and Consovoy McCarthy PLLC, Arlington, VA, on behalf 2 of The Republican National Committee, The Republican Party of Wisconsin, and RITE PAC.

An amicus curiae brief was filed by Scott B. Thompson, Daniel S. Lenz, and Law Forward, Inc., Madison, on behalf of Disability Rights Wisconsin, The League of Women Voters of Wisconsin, and Wisconsin Faith Voices for Justice.

An amicus curiae brief was filed by Jason Myatt, Mark Cherry (pro hac vice), Zachary Goldstein (pro hac vice), Narayan Narasimhan (pro hac vice), and Gibson, Dunn & Crutcher LLP, New York, NY; Gregg J. Costa (pro hac vice), and Gibson, Dunn & Crutcher LLP, Houston, TX, on behalf of Common Cause Wisconsin.

An amicus curiae brief was filed by Richard M. Esenberg, Luke N. Berg, Nathalie E. Burgmeister, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee, on behalf of Richard Teigen, Richard Thom, and The Association of Mature American Citizens, Inc.

3 2024 WI 32 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2024AP164 (L.C. No. 2023CV1900)

STATE OF WISCONSIN : IN SUPREME COURT

Priorities USA, Wisconsin Alliance for Retired Americans and William Franks, Jr.,

Plaintiffs-Appellants,

Governor Tony Evers,

Intervenor-Appellant, FILED v. JUL 5, 2024 Wisconsin Elections Commission, Samuel A. Christensen Clerk of Supreme Court Defendant-Respondent,

Wisconsin State Legislature,

Intervenor-Respondent.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and HAGEDORN, J., joined.

APPEAL from an order of the Circuit Court for Dane County,

Ann M. Peacock, Judge. Reversed and remanded. No. 2024AP164

¶1 ANN WALSH BRADLEY, J. The petitioners, Priorities

USA, Alliance for Retired Americans, and William Franks, Jr.

(collectively, petitioners), have challenged several voting

requirements on statutory and constitutional grounds. Among

these was the requirement that absentee ballots be returned only

by mail or in person to the clerk's office and not to a secure

drop box.1 The circuit court concluded that it was bound by

Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis.

2d 607, 976 N.W.2d 519, in determining the legality of ballot

drop boxes and accordingly granted a motion to dismiss that

claim.2

¶2 After the petitioners sought bypass of the court of

appeals, we granted bypass on a single issue: "Whether to

overrule the Court's holding in Teigen v. Wisconsin Elections

Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, that

1 In addition to the drop-box ban at issue here, the petitioners also challenged the following: (1) the requirement that absentee voters vote in the presence of a witness, (2) the requirement that defects in absentee ballots be cured by election day, and (3) the interpretation of Wis. Stat. § 6.84 that purportedly treats "absentee votes as being less valuable and worthy of protection than in-person ballots cast on election day." None of these other challenges is at issue before us. 2 This case arose in the circuit court for Dane County, Ann M. Peacock, Judge.

2 No. 2024AP164

Wis. Stat. § 6.87 precludes the use of secure drop boxes for the

return of absentee ballots to municipal clerks."3

¶3 The petitioners, along with intervenor Governor Tony

Evers and respondent WEC, contend that Teigen was wrongly

decided and ask that we overrule it. They specifically assert

that Wis. Stat. § 6.87(4)(b)1. (2021-22),4 contrary to the

conclusion of the Teigen majority, allows the use of ballot drop

boxes.

¶4 In contrast, the Wisconsin Legislature advances that

we should reaffirm Teigen. It contends that the court's

statutory interpretation in that case was correct and that no

intervening changes should cause us to revisit that decision.

¶5 We conclude that Wis. Stat. § 6.87(4)(b)1. allows the

use of ballot drop boxes. For the reasons set forth below, we

determine that the court's contrary conclusion in Teigen was

unsound in principle, and as a consequence, we overrule it.

¶6 Our decision today does not force or require that any

municipal clerks use drop boxes. It merely acknowledges what

The petitioners sought bypass on two additional issues: 3

(1) "Whether laws that burden the right to vote, including by burdening absentee voting, are subject to strict scrutiny just like laws burdening other fundamental rights, such that the State must prove that the burden they impose is narrowly tailored to serve a compelling state interest," and (2) "Whether a voting law is immune from facial challenge where it imposes some unjustifiable burden on all voters it regulates, but some voters are more burdened than others." We denied bypass of these issues, and they are therefore not presently before the court.

All subsequent references to the Wisconsin Statutes are to 4

the 2021-22 version unless otherwise indicated.

3 No. 2024AP164

Wis. Stat. § 6.87(4)(b)1. has always meant: that clerks may

lawfully utilize secure drop boxes in an exercise of their

statutorily-conferred discretion. See Wis. Stat. § 7.15(1);

State ex rel. Zignego v. WEC, 2021 WI 32, ¶¶13, 15, 396

Wis. 2d 391, 957 N.W.2d 208.

¶7 Accordingly, we reverse the order of the circuit court

dismissing the petitioners' claim for a declaratory judgment

that Wis. Stat. § 6.87(4)(b)1. allows the use of drop boxes and

remand to the circuit court to reinstate the petitioners' drop-

box claim.

I

¶8 We begin by setting forth the procedural posture of

this case in greater detail. The petitioners challenged several

election procedures. Part of their claim was a contention that

"the Wisconsin Supreme Court should revisit its decision in

Teigen and confirm that § 6.87(4)(b)1. allows the use of drop

boxes consistent with the statutory text and constitutional

principles." ¶9 WEC and the legislature moved to dismiss the

complaint, arguing that the petitioners did not state a claim

upon which relief may be granted.5 The circuit court denied the

motion in part and granted it in part. As relevant here, it

agreed with WEC and the legislature and granted dismissal with

respect to the drop-box claim. Specifically, the circuit court

determined that it "doesn't have the authority to revisit the

5 See Wis. Stat. § 802.06(2)(a)6.

4 No. 2024AP164

soundness of the statutory interpretation in Teigen." It

continued: "Even if I agree that Teigen was incorrectly

decided, I must follow the Teigen precedent and I leave any

revisiting of that decision to the Wisconsin Supreme Court."

¶10 The petitioners appealed and subsequently petitioned

for bypass of the court of appeals.6 As stated, we granted

bypass of a single issue only: "Whether to overrule the Court's

holding in Teigen v. Wisconsin Elections Commission, 2022 WI 64,

403 Wis. 2d 607, 976 N.W.2d 519, that Wis. Stat. § 6.87

precludes the use of secure drop boxes for the return of

absentee ballots to municipal clerks."

II

¶11 We are called upon to review the circuit court's

determination on a motion to dismiss. Whether a motion to

dismiss was properly granted or denied is a question of law this

court reviews independently of the determinations of the circuit

court and court of appeals. State ex rel. City of Waukesha v.

City of Waukesha Bd. of Rev., 2021 WI 89, ¶11, 399 Wis. 2d 696, 967 N.W.2d 460. A complaint survives a motion to dismiss for

failure to state a claim upon which relief may be granted if it

pleads facts, which if true, would entitle the plaintiff to

relief. Cattau v. Nat'l Ins. Servs. of Wis., Inc., 2019 WI 46,

¶4, 386 Wis. 2d 515, 926 N.W.2d 756; Data Key Partners v.

Permira Advisers, LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665, 849

N.W.2d 693.

6 See Wis. Stat. § (Rule) 809.60.

5 No. 2024AP164

¶12 In our review, we interpret several Wisconsin

statutes. Statutory interpretation presents a question of law

we likewise review independently of the determinations rendered

by the circuit court and court of appeals. Brown County v.

Brown Cnty. Taxpayers Ass'n, 2022 WI 13, ¶19, 400 Wis. 2d 781,

971 N.W.2d 491.

III

¶13 We begin by addressing the relevant election statutes,

looking first to the language of those statutes. Next we

proceed to analyze the interpretation advanced in Teigen and

then engage in our independent examination of the statutory

language. Finally, we examine whether stare decisis compels us

to uphold Teigen.

A

¶14 In examining the subject statutes, we begin with the

statutory language. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶22,

397 Wis. 2d 431, 960 N.W.2d 384 (citing State ex rel. Kalal v.

Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110). If the meaning of the statute is plain, we need

not inquire further. Id.

¶15 We give statutory language its "common, ordinary, and

accepted meaning, except that technical or specially-defined

words or phrases are given their technical or special

definitional meaning." Id., ¶23. Additionally, we "interpret

statutory language 'in the context in which it is used; not in

isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to 6 No. 2024AP164

avoid absurd or unreasonable results.'" Id. (quoting Kalal, 271

Wis. 2d 633, ¶46).

¶16 Wisconsin Stat. § 6.87, entitled "Absent voting

procedure," sets forth requirements for the return of absentee

ballots and the envelopes containing those ballots. The

statutory language at the center of this case comes from Wis.

Stat. § 6.87(4)(b)1., and is not extensive: "The envelope shall

be mailed by the elector, or delivered in person, to the

municipal clerk issuing the ballot or ballots." There is no

assertion here that using a drop box is "mailing" a ballot, so

we focus on the requirement that the ballot be "delivered in

person, to the municipal clerk issuing the ballot or ballots."

¶17 In Teigen, the majority7 interpreted this provision to

ban drop boxes, concluding that "[a]n absentee ballot must be

returned by mail or the voter must personally deliver it to the

municipal clerk at the clerk's office or a designated alternate

site." Teigen, 403 Wis. 2d 607, ¶4. Specifically, the Teigen

majority highlighted the phrase "to the municipal clerk," determining that "[a]n inanimate object, such as a ballot drop

box, cannot be the municipal clerk. At a minimum, accordingly,

7Teigen was a split opinion, consisting of a majority/lead opinion, three concurrences, and a dissent. Although the entirety of the majority/lead opinion was not joined by a majority of justices, the portions of that opinion referred to here as the "majority" do represent the position of four justices. For further discussion of lead opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).

7 No. 2024AP164

dropping a ballot into an unattended drop box is not delivery

'to the municipal clerk[.]'" Id., ¶55.

¶18 It also looked to surrounding election statutes to

support its result. First, the Teigen majority looked to Wis.

Stat. § 6.84. Subsection (1) of this statute sets out the

legislative policy that "voting by absentee ballot is 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." Additionally, subsec. (2)

indicates that § 6.87(4)'s provisions "shall be construed as

mandatory." The Teigen majority took this to mean that it must

strictly construe § 6.87's requirements for absentee voting with

a skeptical eye, resulting in a prohibition against the use of

drop boxes. See Teigen, 403 Wis. 2d 607, ¶53.

¶19 The majority in Teigen also looked to Wis. Stat.

§ 6.855, which governs alternate absentee ballot sites, in an

attempt to bolster its analysis.8 An "alternate absentee ballot

site" is a location designated by the municipal clerk outside of the municipal clerk's office where voters may request, vote, and

return absentee ballots. Trump v. Biden, 2020 WI 91, ¶56, 394

Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J., concurring). It

8 Wisconsin Stat. § 6.855 allows the "governing body of a municipality" to "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" and provides requirements for such sites.

8 No. 2024AP164

concluded that an absentee ballot drop box is not an alternate

absentee ballot site under § 6.855 "because a voter can only

return the voter's absentee ballot to a drop box, while an

alternate site must also allow voters to request and vote

absentee at the site." Teigen, 403 Wis. 2d 607, ¶57. The

majority continued:

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. Teigen, 403 Wis. 2d 607, ¶58.

¶20 We begin our independent analysis of the language of

Wis. Stat. § 6.87(4)(b)1. by observing that the statute requires

that a completed absentee ballot be "mailed by the elector, or

delivered in person, to the municipal clerk issuing the ballot or ballots." In the petitioners' view, delivering a ballot to a

drop box is a means of delivering it in person "to the municipal

clerk." Taking a contrary position, the Teigen court drew a

distinction between an inanimate object like a drop box and a

"municipal clerk," a person to whom delivery must be made.

Teigen, 403 Wis. 2d 607, ¶55. Yet, it also dismissed a

distinction of even greater import——the distinction our statutes

make between a "municipal clerk" and the "municipal clerk's office."

9 No. 2024AP164

¶21 Throughout our election statutes there exist

references to the "office of the municipal clerk," "office of

the clerk," or the "clerk's office." When "office" is used in

conjunction with a reference to the clerk, such "office" is

specified as a place where a delivery or an action takes place.

See, e.g., Wis. Stat. §§ 5.81(3) (discussing ballots and

envelopes "voted in person in the office of the municipal

clerk"); 6.18 (requiring that a form "shall be returned to the

municipal clerk's office"); 6.32(2) (setting forth that an

elector "appear at the clerk's office"); 6.855(2) (addressing

the display of a notice "in the office of the municipal clerk");

12.035(3)(d) (discussing a "building containing the office of

the municipal clerk").9

¶22 On the other hand, "municipal clerk" is defined as

"the city clerk, town clerk, village clerk and the executive

director of the city election commission and their authorized

representatives. Where applicable, 'municipal clerk' also

includes the clerk of a school district." Wis. Stat. § 5.02(10). Synthesizing the above information regarding the

"office" of the clerk with the statutory definition of

"municipal clerk" leads to the conclusion that the two terms are

See 9 also Wis. Stat. §§ 6.15(2)(bm), 6.28(1)(b), 6.29(2)(a), 6.30(4), 6.32(3), 6.35(3), 6.45(1m), 6.47(2), 6.50(1), 6.55(2)(cm), 6.56(4), 6.86(1)(a)2., 6.86(3)(c), 6.87(3)(a), 6.87(4)(b)4., 6.88(1), 6.97(3)(b), 7.41(1), 7.53(1)(b), 7.53(2)(d), 8.10(6)(c), 12.03(1), 12.03(2)(a)2., 12.035(3)(c).

10 No. 2024AP164

distinct. Put simply, the "municipal clerk" is a person, while

the "office of the municipal clerk" is a location.

¶23 This principle must also apply to Wis. Stat. § 6.87

just as it does elsewhere in the statutes. "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 (quoting Oney v. Schrauth, 197

Wis. 2d 891, 902, 541 N.W.2d 229 (Ct. App. 1995)). Had the

legislature wanted to require delivery of an absentee ballot to

a specific location, i.e., the clerk's office, it could have

done so, and the wide usage of the term "clerk's office"

throughout the election statutes certainly indicates that the

legislature knew how to do so. See Southport Commons, LLC v.

DOT, 2021 WI 52, ¶32, 397 Wis. 2d 362, 960 N.W.2d 17 ("The

legislature is presumed to 'carefully and precisely' choose

statutory language to express a desired meaning."). ¶24 It even tried to do so. In 2021, the legislature

attempted to pass a revision to the language of Wis. Stat.

§ 6.87(4)(b)1. that would have seemingly accomplished the result

it seeks in this case. Namely, the legislature voted on

language requiring return of an absentee ballot "to the office

of the municipal clerk issuing the ballot or ballots." 2021

S.B. 203, § 3. However, such language was vetoed by the

Governor and accordingly never became law.

11 No. 2024AP164

¶25 By mandating that an absentee ballot be returned not

to the "municipal clerk's office," but "to the municipal clerk,"

the legislature disclaimed the idea that the ballot must be

delivered to a specific location and instead embraced delivery

of an absentee ballot to a person——the "municipal clerk." Given

this, the question then becomes whether delivery to a drop box

constitutes delivery "to the municipal clerk" within the meaning

of Wis. Stat. § 6.87(4)(b)1.

¶26 We conclude that it does. A drop box is set up,

maintained, secured, and emptied by the municipal clerk.10 This

is the case even if the drop box is in a location other than the

municipal clerk's office. As analyzed, the statute does not

specify a location to which a ballot must be returned and

requires only that the ballot be delivered to a location the

municipal clerk, within his or her discretion, designates. See

Wis. Stat. § 7.15(1).

¶27 Such an interpretation of Wis. Stat. § 6.87(4)(b)1. is

consistent with the discretion afforded to municipal clerks in running Wisconsin's elections at the local level. Election

administration in this state is "highly decentralized."

Zignego, 396 Wis. 2d 391, ¶13. "Rather than a top-down

arrangement with a central state entity or official controlling

10 Importantly, we observe that the statutory definition of "municipal clerk" includes "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." Wis. Stat. § 5.02(10) (emphasis added). Thus, a single person need not set up, maintain, secure, and empty all drop boxes in a municipality.

12 No. 2024AP164

local actors, Wisconsin gives some power to its state election

agency (the Commission) and places significant responsibility on

a small army of local election officials." Id.; see Wis. Stat.

§ 7.15(1) (setting forth that "[e]ach municipal clerk has charge

and supervision of elections and registration in the

municipality" and listing duties the clerk "shall perform,"

which includes "any others which may be necessary to properly

conduct elections or registration"). Those local election

officials, i.e., municipal clerks, are "primarily responsible

for election administration in Wisconsin." Zignego, 396

Wis. 2d 391, ¶15.

¶28 Reading "to the municipal clerk" to reference a person

rather than a location entrusts some discretion to municipal

clerks in how best to conduct elections in their respective

jurisdictions. Such discretion is consistent with the statutory

scheme as a whole, under which Wisconsin's 1,850 municipal

clerks serve the "primary role" in running elections via our

"decentralized" system. Id., ¶¶13, 15. By endorsing a one- size-fits-all approach, the Teigen court arrived at a conclusion

that runs counter to the statutory scheme as a whole. See Sw.

Airlines, 397 Wis. 2d 431, ¶23 (indicating that statutory

language must be interpreted "in the context in which it is

used" and "not in isolation but as part of a whole").

¶29 The surrounding election statutes relied upon by the

Teigen majority and proffered as support by the legislature here

do not change this result. To begin, Wis. Stat. § 6.855 is of little use to the question presented. Section 6.855 allows a 13 No. 2024AP164

municipality to designate alternate absentee ballot sites where

"electors of the municipality may request and vote absentee

ballots and to which voted absentee ballots shall be returned by

electors for any election." § 6.855(1). The Teigen majority

noted that drop boxes are not alternate absentee ballot sites

because ballots cannot be requested and voted at a drop box.

Teigen, 403 Wis. 2d 607, ¶57. This is true. But this

conclusion is ultimately of little consequence, as the statute

simply does not apply to drop boxes.

¶30 "An alternative absentee ballot site . . . must be a

location not only where voters may return absentee ballots, but

also a location where voters 'may request and vote absentee

ballots.'" Trump, 394 Wis. 2d 629, ¶56 (Hagedorn, J.,

concurring). On its face, this does not describe a drop box.

The fact that the legislature "enacted a detailed statutory

construct for alternate sites" while not doing the same for drop

boxes has nothing to say about the legality of drop boxes. See

Teigen, 403 Wis. 2d 607, ¶58. Indeed, the legislature would have no reason for enacting such a scheme because drop boxes are

already allowed by the plain language of § 6.87(4)(b)1.

¶31 Similarly, Wis. Stat. § 6.84 does not warrant the

import the Teigen court imparted on it. Contrary to the Teigen

court's suggestion that it directs us to take a "skeptical" view

of absentee voting, all § 6.84 does is set forth the

consequences of a statutory violation. As will be addressed

more fully infra, ¶¶41-46, § 6.84(2) states that the absentee ballot provisions must be construed as mandatory and that 14 No. 2024AP164

ballots cast "in contravention" of those procedures "may not be

counted." Construing a provision as mandatory rather than

directory does not change the provision's meaning, nor require

that any gloss, much less a "skeptical" one, be placed on its

interpretation.

¶32 Section 6.84(1) is merely a declaration of legislative

policy setting forth that "absentee balloting must be carefully

regulated." The subsequent statutes do just that. See Wis.

Stat. §§ 6.84-6.89. Again, nothing in subsec. (1) provides any

rule of interpretation applying to the statutes that follow.

¶33 Had the legislature wanted to impose a rule of

statutory construction on the absentee balloting statutes, it

certainly knows how to do that. In several other areas of the

law, the legislature has explicitly directed that statutes

should be either liberally or strictly construed. As an

example, Wis. Stat. § 19.81(4) does both within a single

statute. § 19.81(4) ("This subchapter shall be liberally

construed to achieve the purposes set forth in this section, and the rule that penal statutes must be strictly construed shall be

limited to the enforcement of forfeitures and shall not

otherwise apply to actions brought under this subchapter or to

15 No. 2024AP164

interpretations thereof."). Further examples are plentiful.11

The legislature did nothing of the sort with regard to absentee

balloting, and it would be error to read in such a restriction

where none is present. See Dawson v. Town of Jackson, 2011 WI

77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316 ("We decline to read

into the statute words the legislature did not see fit to

write.").

¶34 As the above analysis demonstrates, the Teigen court

incorrectly interpreted Wis. Stat. § 6.87(4)(b)1. Accordingly,

we conclude that Wis. Stat. § 6.87(4)(b)1. allows the use of

ballot drop boxes.

B

¶35 Having concluded that the Teigen majority incorrectly

interpreted the statute at issue, the next question becomes

whether stare decisis nevertheless requires this court to uphold

Teigen.

See, e.g., Wis. Stat. §§ 49.498(7)(b) (setting forth 11

assertions that a previous paragraph "may not be construed to do"); 70.109 (mandating that tax exemptions be strictly construed); 77.54(6)(cn) (directing that tax exemptions "under this subsection shall be strictly construed"); 111.15 (stating that in a statutory subchapter on employment relations, "nothing therein shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in this subchapter be so construed as to invade unlawfully the right to freedom of speech. Nothing in this subchapter shall be so construed or applied as to deprive any employee of any unemployment benefit which the employee might otherwise be entitled to receive under ch. 108").

16 No. 2024AP164

¶36 Stare decisis refers to the principle that requires

courts to "stand by things decided." Hinrichs v. DOW Chem. Co.,

2020 WI 2, ¶66 n.12, 389 Wis. 2d 669, 937 N.W.2d 37. Such a

principle is "fundamental to the rule of law." Johnson

Controls, Inc. v. Emp. Ins. of Wausau, 2003 WI 108, ¶94, 264

Wis. 2d 60, 665 N.W.2d 257.

¶37 "Fidelity to precedent ensures that existing law will

not be abandoned lightly. When existing law is open to revision

in every case, deciding cases becomes a mere exercise of

judicial will, with arbitrary and unpredictable results."

Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653

N.W.2d 266 (cleaned up). Accordingly, any departure from stare

decisis requires "special justification." Id.; State v.

Johnson, 2023 WI 39, ¶¶19-20, 407 Wis. 2d 195, 990 N.W.2d 174.

¶38 However, stare decisis is "neither a straightjacket

nor an immutable rule." Johnson Controls, 264 Wis. 2d 60, ¶100.

It is not an "inexorable command." State v. Denny, 2017 WI 17,

¶71, 373 Wis. 2d 390, 891 N.W.2d 144. Indeed, "[w]e do more damage to the rule of law by obstinately refusing to admit

errors, thereby perpetuating injustice, than by overturning an

erroneous decision." Johnson Controls, 264 Wis. 2d 60, ¶100.

¶39 Case law has identified several situations in which

this court will overturn a prior case. "First, changes or

developments in the law have undermined the rationale behind a

decision." Id., ¶98. "Second, there is a need to make a

decision correspond to newly ascertained facts." Id. "Third, there is a showing that the precedent has become detrimental to 17 No. 2024AP164

coherence and consistency in the law." Id. We also consider

"whether the prior decision is unsound in principle, whether it

is unworkable in practice, and whether reliance interests are

implicated." Id., ¶99.

¶40 Mere disagreement with the Teigen court's rationale is

insufficient to overturn it——something more is required. Id.,

¶93; Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶46, 281

Wis. 2d 300, 697 N.W.2d 417. Here, something more is present.

¶41 The "something more," which permeated the entirety of

the Teigen majority's analysis, was its misinterpretation of

Wis. Stat. § 6.84 and the "skeptical" gloss with which the court

examined § 6.87(4)(b)1. As is partially explained above, see

supra, ¶¶31-32, the Teigen court took what is a statute stating

a legislative policy and dictating the consequences for a

violation of the absentee balloting statutes and turned it into

something else entirely. Instead, it treated § 6.84 as a

principle of statutory interpretation that resulted in the

distortion of the language of § 6.87 and that could have consequences for other election procedures.

¶42 Section 6.84 has two subsections. The first, entitled

"Legislative policy," provides:

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

18 No. 2024AP164

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. Wis. Stat. § 6.84(1). The second, entitled "Interpretation,"

sets forth:

Notwithstanding s. 5.01(1), with respect to matters relating to the absentee ballot process, ss. 6.86, 6.87(3) to (7) and 9.01(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. § 6.84(2).

¶43 The Teigen majority determined that these provisions

together mandate a "skeptical" view of absentee voting. It saw

the statement of legislative policy set forth in subsec. (1) as

one that "cannot be reconciled with the statements of policy

contained in WEC's memos" authorizing drop boxes. Teigen, 403

Wis. 2d 607, ¶53. Further, it divined from subsec. (2) the

uncontroversial proposition that mandatory election requirements

must be "strictly adhered to" and "strictly observed." Id. (citing State ex rel. Ahlgrimm v. State Elections Bd., 82

Wis. 2d 585, 592-93, 263 N.W.2d 152 (1978)).

¶44 Again, § 6.84 cannot carry the weight the Teigen

majority assigns it. Subsection 1 provides that absentee

balloting must be "carefully regulated." Indeed it is

"carefully regulated"——through statutes passed by the

legislature and signed by the governor, and which we have determined above permit the use of drop boxes. It is not up to

19 No. 2024AP164

this court to "regulate" absentee voting. Such "regulation"

falls to the legislative process and Wisconsin's 1,850 municipal

clerks through our decentralized system of election

administration. Further, by framing its analysis as a

comparison between the "statement of legislative policy" in

§ 6.84(1) and the "statements of policy contained in WEC's

memos" allowing drop boxes, Teigen, 403 Wis. 2d 607, ¶53, the

Teigen court allowed policy concerns to alter the lens through

which it viewed the statutory language, if not completely

supplant the plain language of § 6.87(4)(b)1.

¶45 Subsection 2 indicates that any votes cast "in

contravention of" the statutory procedures "may not be counted."

This provision says nothing about what is prohibited——it merely

sets out the consequence should a ballot be cast in a prohibited

manner. In other words, § 6.84 gives us no principles of

interpretation that give any insight into the actual meaning of

the absentee balloting statutes that follow it. Observing that

a statute must be "strictly adhered to," as the Teigen majority portrays, does not inform the meaning of the statute. We still

must interpret it, and after we do, then we must ensure that it

is being followed "strictly."12 Our determination here is that

12 The ramifications of the Teigen majority's "skeptical" view are evidenced by the apparent confusion it has caused among both parties and lower courts. An amicus brief filed in the present case by the Teigen plaintiffs contends that Wis. Stat. § 6.84 "command[s] that absentee ballot procedures are to be 'carefully regulated' and strictly construed . . . ." (Emphasis added). However, as described, there is a difference between strict adherence and strict construction, and the statute does not provide for the latter.

20 No. 2024AP164

drop boxes are not "in contravention" of the statutory

procedures, and § 6.84 does nothing to alter the statutory

interpretation that led to this conclusion.

¶46 The Teigen court's error in this regard permeated its

analysis to such a degree that its analysis was not merely

wrong, but was unsound in principle. Essential to its

conclusion was the assertion that "[i]nterpreting Wis. Stat.

§ 6.87(4)(b)1. to permit such methods of casting an absentee

ballot would contravene the legislative policy expressed in Wis.

Stat. § 6.84(1) and border on the absurd." Teigen, 403

Wis. 2d 607, ¶62. Additionally, it relied on the "detailed and

unambiguous language of Wis. Stat. §[] 6.84" in determining that

drop boxes are prohibited because they are a "mechanism not

specified by the legislature." Id., ¶63. As a result of

misinterpreting § 6.84, the Teigen court, despite the word

"skeptical" appearing nowhere in the Wisconsin statutes, applied

a "skeptical" gloss permeating its analysis, leading it astray

and causing its analysis to be "unsound in principle." ¶47 We have previously stated a general principle that

"stare decisis concerns are paramount where a court has

Similarly, WEC advances that circuit courts have interpreted the Teigen court's "skeptical" view as a broadly applicable principle of interpretation. See Brown v. WEC, Racine County Case No. 2022CV1324 (Jan. 10, 2024) (describing Teigen and Wis. Stat. § 6.84 as "suppl[ying] the lens through which absentee voting statues are to be viewed"); Kormanik v. WEC, Waukesha County Case No. 2022CV1395 (Nov. 29, 2023) (stating that the legislative policy language in § 6.84 "needs to be recognized as setting very firm guardrails to curb the analysis").

21 No. 2024AP164

authoritatively interpreted a statute because the legislature

remains free to alter its construction." Progressive N. Ins.,

281 Wis. 2d 300, ¶45. Assuming such a principle applies here,

stare decisis does not require us to uphold Teigen in this

instance.13

¶48 An underlying purpose of strong adherence to stare

decisis where a statute is involved is to protect reliance

interests attendant to a precedential opinion. See id., ¶¶46-

47; cf. Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 457

(2015). Here, no such reliance interests counsel in favor of

upholding an erroneous interpretation of Wis. Stat.

§ 6.87(4)(b)1. Teigen has neither fostered reliance nor created

a settled body of law.

¶49 Accordingly, we determine that the court's conclusion

in Teigen, 403 Wis. 2d 607, that the subject statutes prohibit

ballot drop boxes was unsound in principle, and as a

consequence, we overrule it. Because the complaint sets forth

allegations, which if true, would entitle the plaintiff to relief, the motion to dismiss the drop-box claim was wrongly

denied.

13Contrary to the suggestion of the Legislature at oral argument, our decision in this case does not portend the death of statutory stare decisis. We strongly stand by our principles of stare decisis and our decision in this case to depart from precedent was not made casually. See State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring).

22 No. 2024AP164

¶50 We therefore reverse the order of the circuit court

dismissing the petitioners' claim for a declaratory judgment

that Wis. Stat. § 6.87(4)(b)1. allows the use of drop boxes and

remand to the circuit court to reinstate the petitioners' drop-

By the Court.—The order of the circuit court is reversed

and the cause is remanded to the circuit court.

23 No. 2024AP164.rgb

¶51 REBECCA GRASSL BRADLEY, J. (dissenting). The

majority again forsakes the rule of law in an attempt to advance

its political agenda. The majority began this term by tossing

the legislative maps adopted by this court in Johnson v.

Wisconsin Elections Commission, 2022 WI 19, 401 Wis. 2d 198, 972

N.W.2d 559, for the sole purpose of facilitating "the

redistribution of political power in the Wisconsin legislature."

Clarke v. Wis. Elections Comm'n, 2023 WI 79, ¶302, 410 Wis. 2d

1, 998 N.W.2d 370 (Hagedorn, J., dissenting). The majority ends

the term by loosening the legislature's regulations governing

the privilege of absentee voting in the hopes of tipping the

scales in future elections.1

¶52 Just two years ago, in Teigen v. Wisconsin Elections

Commission, this court held "ballot drop boxes are illegal under

Wisconsin statutes[,] [and] [a]n absentee ballot must be

returned by mail or the voter must personally deliver it to the

1This case is not about whether drop boxes improve or hinder any political party's electoral fortunes or whether using drop boxes is a good policy. Those questions are reserved for resolution by the people's representatives in the legislature and irrelevant for purposes of statutory interpretation. See Teigen v. Wis. Elections Comm'n, 2022 WI 64, ¶52 n.25, 403 Wis. 2d 607, 976 N.W.2d 519 ("While the dissenters would permit ballot drop boxes, the court must respect the constitutional restraints on our power and refuse to act as a super- legislature. It poses a grave threat to democracy to mislead the people into believing we are one."); id., ¶151 (Hagedorn, J., concurring) ("Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular."). It is "lamentable" my colleagues indulge their policy preferences at the expense of the law. See id., ¶¶205-07 (Ann Walsh Bradley, J., dissenting).

1 No. 2024AP164.rgb

municipal clerk at the clerk's office or a designated alternate

site." 2022 WI 64, ¶4, 403 Wis. 2d 607, 976 N.W.2d 519. Three

of the justices making up today's majority dissented. Id.,

¶¶205-48 (Ann Walsh Bradley, J., dissenting) (joined by Dallet

and Karofsky, JJ.). The same dissenters, joined by the newest

member of the court, form a majority in this case to overrule

Teigen, converting the Teigen dissent into the new majority

opinion and holding absentee ballots may be delivered virtually

anywhere a municipal clerk designates. To reach this

conclusion, the majority misrepresents the court's decision in

Teigen, replaces the only reasonable interpretation of the law

with a highly implausible one, and tramples the doctrine of

stare decisis. I dissent.

¶53 Stare decisis——"to stand by the thing decided and not

disturb the calm"2——is a foundational principle in the Anglo-

American legal system.

For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

2 Ramos v. Louisiana, 590 U.S. 83, 115 (2020) (Kavanaugh, J., concurring in part).

2 No. 2024AP164.rgb

1 William Blackstone, Commentaries *69. This venerable doctrine

exists for the sake of stability in the law, to restrain the

impulse of judges to overturn decisions with which they

disagree. When judges instead indulge their preferences, every

case is on the table as new judges take the bench, displacing

the rule of law with the whim of judges. To avoid such

volatility, "stare decisis beseeches judges to 'follow earlier

judicial decisions when the same points arise again in

litigation.'" Friends of Frame Park, U.A. v. City of Waukesha,

2022 WI 57, ¶55, 403 Wis. 2d 1, 976 N.W.2d 263 (Rebecca Grassl

Bradley, J., concurring) (quoting stare decisis, Black's Law

Dictionary 1696 (11th ed. 2019)). This court has articulated

many times that it abides by the doctrine "scrupulously" because

"respect for prior decisions is fundamental to the rule of law."

Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108,

¶94, 264 Wis. 2d 60, 665 N.W.2d 257.

¶54 This court has declared: "'Stare decisis is the

preferred course of judicial action because it promotes evenhanded, predictable, and consistent development of legal

principles,'" Id., ¶95 (quoting State v. Ferron, 219

Wis. 2d 481, 504, 579 N.W.2d 654 (1998)), and "permits society

to presume that bedrock principles are founded in the law rather

than in the proclivities of individuals . . . ." Vasquez v.

Hillery, 474 U.S. 254, 265 (1986). The decision-making process

of this court cannot "become[] a mere exercise of judicial

will . . . ." State v. Outagamie Cnty. Bd. of Adjustment, 2001 WI 78, ¶29, 244 Wis. 2d 613, 628 N.W.2d 376 (internal quotation

3 No. 2024AP164.rgb

marks omitted) (quoting Citizens Util. Bd. v. Klauser, 194

Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J.,

dissenting)). When the court "frequent[ly]" and "careless[ly]"

overrules its prior decisions, its credibility suffers. Johnson

Controls, 264 Wis. 2d 60, ¶95 (citing State v. Lindell, 2001 WI

108, ¶169, 245 Wis. 2d 689, 629 N.W.2d 223 (Abrahamson, C.J.,

dissenting)).

¶55 "'A court should not depart from precedent without

sufficient justification.'" Id., ¶94 (quoting State v. Stevens,

181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J.,

concurring)). Our cases make clear prior decisions should not

be "abandoned lightly." Outagamie Cnty., 244 Wis. 2d 613, ¶29

(citing Stevens, 181 Wis. 2d at 441 (Abrahamson, J.,

concurring)). "Overruling precedent is never a small matter."

Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015).

¶56 Our cases have customarily required a "special" or

"compelling" justification before overturning a prior decision

of this court. Johnson Controls, 264 Wis. 2d 60, ¶¶93, 96. In the past, this court has identified five special justifications

for overruling precedent:

(1) the law has changed in a way that undermines the prior decision's rationale; (2) there is a "need to make a decision correspond to newly ascertained facts;" (3) our precedent "has become detrimental to coherence and consistency in the law;" (4) the decision is "unsound in principle;" or (5) it is "unworkable in practice." State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d 195, 990

N.W.2d 174 (quoting State v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 717 N.W.2d 729). Predictably, the former dissenters, 4 No. 2024AP164.rgb

who now find themselves in the majority, abuse the rule of law,

replacing the majority opinion in Teigen with Justice Ann Walsh

Bradley's dissent. They decree the decision "unsound in

principle," emptying the phrase of any meaning and making it

merely a mechanism to tip the scales of justice toward their

preferred outcomes.

¶57 While the doctrine is the subject of much debate, the

members of the majority purport to adhere to our traditional

approach to stare decisis. By any measure, its decision

violates the principles the majority professes to apply. Under

its weakest application, stare decisis demands upholding Teigen.

¶58 Although the majority purports to "assum[e]" "'stare

decisis concerns are paramount where a court has authoritatively

interpreted a statute[,]'" the majority discards that principle

as an inconvenient obstacle to its policy preferences. Majority

op., ¶47 (quoting Progressive N. Ins. Co. v. Romanshek, 2005 WI

67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417). According to the

majority, stare decisis receives heightened force only if reliance interests are present because "[a]n underlying purpose

of strong adherence to stare decisis where a statute is involved

is to protect reliance interests attendant to a precedential

opinion." Id., ¶48. That is a gross misrepresentation of the

principle the majority claims to apply. As Justice Brett

Kavanaugh recently explained, stare decisis is "comparatively

strict" for statutory interpretation cases "because Congress and

the President can alter a statutory precedent by enacting new legislation." Ramos v. Louisiana, 590 U.S. 83, 118 (2020)

5 No. 2024AP164.rgb

(Kavanaugh, J., concurring in part). Like the United States

Supreme Court, this court has said stare decisis should receive

extra consideration in statutory interpretation cases because

the legislature may correct any errors in this court's

interpretation. See, e.g., Progressive N. Ins. Co., 281

Wis. 2d 300, ¶45 (citing Hilton v. S.C. Pub. Rys. Comm'n, 502

U.S. 197, 202 (1991)) ("[S]tare decisis concerns are paramount

where a court has authoritatively interpreted a statute because

the legislature remains free to alter its construction.");

Kimble, 576 U.S. at 456 (citing Patterson v. McLean Credit

Union, 491 U.S. 164, 172–73 (1989)) ("[S]tare decisis carries

enhanced force when a decision . . . interprets a statute.

Then, unlike in a constitutional case, critics of our ruling can

take their objections across the street, and Congress can

correct any mistake it sees."). Scholarly sources are in

accord. See, e.g., Bryan A. Garner et al., The Law of Judicial

Precedent 333-35, 409-10 (2016).

¶59 The majority does not cite a single case suggesting the protection of reliance interests is an "underlying purpose"

of according stare decisis additional weight in statutory

interpretation cases. Giving stare decisis added heft when

considering whether to overturn a decision that interpreted a

statute is not universally observed; the principle is debatable.

I have rejected the concept, "particularly when applied to

interpretations wholly unsupported by the statute's text." See

Manitowoc Co. v. Lanning, 2018 WI 6, ¶81 n.5, 379 Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl Bradley, J., concurring); see

6 No. 2024AP164.rgb

also Gamble v. United States, 587 U.S. 678, 723 (2019) (Thomas,

J., concurring). The author of the majority opinion in this

case has not. The majority's claim to adhere to this principle

of stare decisis is disingenuous, and it should be transparent

about changing the doctrine so dramatically. This case marks

the "death of statutory stare decisis" in Wisconsin. The fact

that the majority disputes the upshot of its decision only

serves to prove it. See majority op., ¶47 n.13. The purpose of

stare decisis is to protect the rule of law. Citizens United v.

FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring). By

refusing to apply its own purported principle, while distorting

it sub silentio, the majority perverts the rule of law.

¶60 Going forward, whether decisions that interpreted

statutes receive extra stare decisis protection will depend

solely on the will of four and the extent to which respecting or

discarding the doctrine favors their preferred outcome. The

majority may revive statutory stare decisis whenever the four

find it convenient. Such manipulations of the doctrine will only prove what a "result-oriented expedient" today's decision

is. Lawrence v. Texas, 539 U.S. 558, 592 (2003) (Scalia, J.,

dissenting).

¶61 Opinions that are "objectively wrong," Pagoudis v.

Keidl, 2023 WI 27, ¶88, 406 Wis. 2d 542, 988 N.W.2d 606 (Rebecca

Grassl Bradley, J., concurring in part, dissenting in part)

(citing Manitowoc Co., 379 Wis. 2d 189, ¶81 n.5 (Rebecca Grassl

Bradley, J., concurring)), or "'demonstrably'" or "irrefutably" erroneous, St. Augustine Sch. v. Taylor, 2021 WI 70, ¶125, 398

7 No. 2024AP164.rgb

Wis. 2d 92, 961 N.W.2d 635 (Rebecca Grassl Bradley, J.,

dissenting) (quoting Gamble, 587 U.S. at 711 (Thomas, J.,

concurring)), are unsound in principle and may be overruled.

Koschkee v. Taylor, 2019 WI 76, ¶8 n.5, 387 Wis. 2d 552, 929

N.W.2d 600; State v. Reyes Fuerte, 2017 WI 104, ¶18, 378

Wis. 2d 504, 904 N.W.2d 773. But when a prior decision

interpreted the law "within the range of permissible

interpretations," the decision should generally stand. Gamble,

587 U.S. at 721 (Thomas, J., concurring); see St. Augustine

Sch., 398 Wis. 2d 92, ¶¶124-25 (Rebecca Grassl Bradley, J.,

dissenting). The majority in this case must show more than it

has been able to muster to justify overturning Teigen.

Discarding a decision requires something more than saying the

court was merely "mistaken" or the current majority sees the

statute differently. Wenke v. Gehl Co., 2004 WI 103, ¶21, 274

Wis. 2d 220, 682 N.W.2d 405; see Progressive N. Ins. Co., 281

Wis. 2d 300, ¶¶50-51; Kimble, 576 U.S. at 455. A "garden-

variety . . . disagreement does not suffice to overrule" a prior decision. Ramos, 590 U.S. at 121-22 (Kavanaugh, J., concurring

in part). As one member of the current majority once put it,

"The outcome of a case should not turn on whether the current

members of the court find one legal argument more persuasive

but, rather, on whether today's majority has come forward with

the type of extraordinary showing that this court has

historically demanded before overruling one of its precedents."

State v. Roberson, 2019 WI 102, ¶97, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting) (cleaned up) (quoting State

8 No. 2024AP164.rgb

v. Lynch, 2016 WI 66, ¶101, 371 Wis. 2d 1, 885 N.W.2d 89

(Abrahamson & Ann Walsh Bradley, JJ., concurring in part,

dissenting in part)). Having become an inconvenient obstacle to

their agenda, the members of the new majority abandon yet

another principle they once espoused.3

¶62 Teigen provided the best (or "fairest," Teigen, 403

Wis. 2d 607, ¶62) interpretation of Wis. Stat. § 6.87(4)(b)1.,

and the new majority fails to demonstrate its alternative

interpretation is superior. It may prefer a different

construction than Teigen's, but stare decisis commands the new

majority nevertheless "acknowledge it as valid precedent"

"despite [its] disagreement" with the decision. Lindell, 245

Wis. 2d 689, ¶145 (Ann Walsh Bradley, J., concurring).

¶63 The majority's principal argument against Teigen

focuses on the heading introducing the discussion of Wis. Stat.

This court has overruled prior opinions with alarming 3

frequency this term. Of the fourteen opinions this court released resolving the merits, three (including this one) overruled at least one prior opinion of this court. Clarke v. Wis. Elections Comm'n, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370 (overruling Johnson v. Wisconsin Elections Commission, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, Johnson v. Wisconsin Elections Commission, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402, and Johnson v. Wisconsin Elections Commission, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559); Waukesha Cnty. v. M.A.C., 2024 WI ___, ___ Wis. 2d ___, ___ N.W.2d ___ (overruling Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140). That is, twenty-one percent of the opinions issued by this court this term overruled a prior decision. Last term, this court issued forty-four opinions resolving the merits, only one of which overruled a prior opinion of this court. In other words, only two percent of opinions last term overruled a prior opinion.

9 No. 2024AP164.rgb

§ 6.84: "Legislative Policy Directs Us to Take a Skeptical View

of Absentee Voting." Majority op., ¶41. Teigen must be

overruled, the majority rationalizes, because taking a

"'skeptical' view" of absentee voting, as directed by § 6.84,

"permeated the entirety of the Teigen majority's analysis,"

rendering the decision somehow unsound in principle. Id., ¶¶41,

43; see also id., ¶46. That's a stretch. The word "skeptical"

appears once in the entire opinion——in a header no less——and the

term is merely shorthand for the legislative policy statement in

§ 6.84(1). Teigen mentions § 6.84 only twice in its analysis of

the legality of drop boxes, and only as additional support for

the analysis. Section 6.84 was in no sense "[e]ssential" for

the court's conclusions. Id., ¶46. If the legislative policy

statement did not exist, the court would have decided Teigen the

exact same way.4

¶64 A second and more fatal blow to the majority's

attempted take-down of Teigen is the majority's misunderstanding

of Wis. Stat. § 6.84's role in statutory interpretation. Section 6.84(1) provides a statement of legislative policy for

absentee voting:

LEGISLATIVE POLICY. The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast,

4Although the majority opinion in this case rehashes the arguments made by the dissent in Teigen——sometimes nearly word for word——the dissent in Teigen made no mention of the majority's invocation of Wis. Stat. § 6.84 in its analysis of the legality of drop boxes. If Teigen's use of § 6.84 permeated every aspect of the decision, rendering it unsound in principle, it is curious the dissenters noticed only now. Notably, the author of today's decision authored the dissent in Teigen too.

10 No. 2024AP164.rgb

voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses. (Emphasis added.) While statutory policy statements cannot be

used to contravene a statute's clear import, they may be used to

inform the meaning of a statute's text. Milwaukee Dist. Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶21, 385 Wis. 2d 748, 924

N.W.2d 153; Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 217 (2012) ("A preamble, purpose

clause, or recital is a permissible indicator of meaning.").

That is exactly how Teigen utilized § 6.84(1). Interpretations

directly contradicting § 6.84(1)'s statement that "voting by

absentee ballot must be carefully regulated" are less favored

than plausible interpretations of the statute in harmony with

the statement.

¶65 The majority's assertion that Wis. Stat. § 6.84 cannot

provide any interpretive insight because it does not

specifically direct the court to apply a liberal or strict

construction is baseless. See majority op., ¶32 (calling §

6.84(1) "merely a declaration of legislative policy" that does

not "provide[] any rule of interpretation applying to the

statutes that follow"). The majority cites nothing to support

this newly created rule, which contradicts the very same majority's decision in Catholic Charities Bureau, Inc. v. LIRC,

11 No. 2024AP164.rgb

authored just months ago by the same author of the majority

opinion in this case. 2024 WI 13, ¶¶27-29, 411 Wis. 2d 1, 3

N.W.2d 666 (interpreting a tax exemption strictly because of a

statutory public policy statement, found in Wis. Stat. § 108.01,

that itself does not explicitly direct that the statutes should

be strictly or liberally construed). In short, Teigen's

reference to § 6.84 supplies no legitimate basis for overruling

a recent decision of this court.5

¶66 Aside from mischaracterizing Teigen in order to deem

it "unsound in principle," the majority fails to put a dent in

Teigen's interpretation of the statute. Wisconsin Stat.

§ 6.87(4)(b)1. requires an absentee ballot to be returned to the

municipal clerk one of two ways: "The envelope shall be mailed

by the elector, or delivered in person, to the municipal clerk

issuing the ballot or ballots." Teigen held the statute does

not allow offsite, unattended drop boxes. Wisconsin Stat.

§ 5.02(10) defines "municipal clerk" as "the city clerk, town clerk, village clerk and the executive director of the city

election commission and their authorized representatives. Where

5To bolster its argument, the majority suggests Teigen has caused "confusion" in the lower courts. Majority op., ¶45 n.12. This court recently accepted a petition for bypass in one of the circuit court decisions the majority critiques. Brown v. Wis. Elections Comm'n, No. 2024AP232, unpublished order (Wis. May 3, 2024) (granting the petition for bypass). The majority's criticism of the circuit court's decision is unnecessary. More importantly, it is generally inappropriate to cast aspersions on lower court decisions this court has only just agreed to review. It is also inappropriate to hide behind a party while doing so. See majority op., ¶45 n.12.

12 No. 2024AP164.rgb

applicable, 'municipal clerk' also includes the clerk of a

school district." Interpreting the clear text, Teigen

recognized § 6.87(4)(b)1. requires an absentee voter to either

send the absentee ballot by mail or "deliver[]" the ballot "to

the municipal clerk"——a person, not an inanimate object——"in

person." Teigen, 403 Wis. 2d 607, ¶55. To "deliver[]"

something "to" another person, "in person," requires a person-

to-person exchange. Id. That is what the statute means, and

what it has always been understood to mean. Id., ¶175

(Hagedorn, J., concurring) (quoting 5 Wis. Op. Att'y Gen. 591,

593 (1916)) ("Less than a year after enactment [of the precursor

to § 6.87(4)(b)1.], 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.'"); see also

Sommerfeld v. Bd. of Canvassers of the City of St. Francis, 269

Wis. 299, 69 N.W.2d 235 (1955) (taking for granted the law was

violated when voters returned absentee ballots through third parties). Requiring person-to-person transmission of the ballot

under § 6.87(4)(b)1. obviously precludes the use of unattended

drop boxes.

¶67 As Teigen also observed, other statutes contemplate

only two locations at which a voter may deliver an absentee

ballot in person: At the municipal clerk's office or at a

designated "alternate site" under Wis. Stat. § 6.855.

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 13 No. 2024AP164.rgb

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 under s. 7.15 (1) (cm), if a primary is not scheduled to be held, and shall remain in effect until at least the day after the election. If the governing body of a municipality makes an election under this section, no function related to voting and return of absentee ballots that is to be conducted at the alternate site may be conducted in the office of the municipal clerk or board of election commissioners. § 6.855(1) (emphasis added). As Teigen explained, § 6.855

"identifies the sites at which in person absentee voting may be

accomplished——either 'the office of the municipal clerk' or 'an

alternate site' but not both. 'An alternate site' serves as a

replacement for 'the office of the municipal clerk' rather than

an additional site for absentee voting." Teigen, 403

Wis. 2d 607, ¶59. Alternate sites are also carefully regulated by the legislature. They must 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." § 6.855(1).

Given this detailed statutory language, § 6.855 does not

contemplate in person absentee voting at a location other than

the office of the municipal clerk or an alternate site, and the

14 No. 2024AP164.rgb

explicit rules for alternate sites leave no reasonable room for

in person absentee voting at any other locations.

¶68 This conclusion is reinforced by Wis. Stat. § 5.81(3),

which like Wis. Stat. § 6.855(1), confirms that in person

absentee voting will occur "in person in the office of the

municipal clerk."

If a municipality utilizes an electronic voting system in which ballots distributed to electors are employed, absentee ballots may consist of ballots utilized with the system or paper ballots and envelopes voted in person in the office of the municipal clerk or voted by mail. § 5.81(3)(emphasis added). "The legislature did not contemplate

absentee ballots 'consist[ing]' of ballots cast via a drop box."

Teigen, 403 Wis. 2d 607, ¶60 (alteration in original). The

legislature's policy choices, enacted in §§ 6.855(1) and

5.81(3), prescribe only two locations where in person absentee

ballots can be delivered——the office of the municipal clerk or a

designated alternate site.

¶69 The Legislature, as intervenor-respondent, points to

another statute that lends support for Teigen's interpretation.

Wisconsin Stat. § 7.41(1) provides members of the public the

right to observe in person absentee voting:

Any member of the public may be present at any polling place, in the office of any municipal clerk whose office is located in a public building on any day that absentee ballots may be cast in that office, or at an alternate site under s. 6.855 on any day that absentee ballots may be cast at that site for the purpose of observation of an election and the absentee ballot voting process, except a candidate whose name appears on the ballot at the polling place or on an absentee ballot to be cast at the clerk's office or alternate site at that election. The chief inspector or 15 No. 2024AP164.rgb

municipal clerk may reasonably limit the number of persons representing the same organization who are permitted to observe under this subsection at the same time. Each person permitted to observe under this subsection shall print his or her name in and sign and date a log maintained by the chief inspector or municipal clerk for that polling place, office, or alternate site. Like Wis. Stat. § 6.855(1), § 7.41(1) contemplates that absentee

voters may deliver their ballots only at the office of the

municipal clerk or an alternate site. The statutes simply do

not envision in person delivery of absentee ballots at any other locations. The majority offers no response to the Legislature's

argument.

¶70 Providing even further textual support, Justice

Hagedorn's concurrence in Teigen highlighted Wis. Stat. § 6.88,6

6 Wisconsin Stat. § 6.88(1) and (2):

(1) When an absentee ballot arrives at the office of the municipal clerk, or at an alternate site under s. 6.855, if applicable, the clerk shall enclose it, unopened, in a carrier envelope which shall be securely sealed and endorsed with the name and official title of the clerk, and the words "This envelope contains the ballot of an absent elector and must be opened in the same room where votes are being cast at the polls during polling hours on election day or, in municipalities where absentee ballots are canvassed under s. 7.52, stats., at a meeting of the municipal board of absentee ballot canvassers under s. 7.52, stats." If the elector is a military elector, as defined in s. 6.34 (1), or an overseas elector, regardless of whether the elector qualifies as a resident of this state under s. 6.10, and the ballot was received by the elector by facsimile transmission or electronic mail and is accompanied by a separate certificate, the clerk shall enclose the ballot in a certificate envelope and securely append the completed certificate to the outside of the envelope before enclosing the ballot in the carrier envelope. The clerk shall keep the ballot in the clerk's office or at the alternate site, if applicable until delivered, 16 No. 2024AP164.rgb

which "prescribes what happens after an absentee ballot is

received by the clerk." Teigen, 403 Wis. 2d 607, ¶180

(Hagedorn, J., concurring). As Justice Hagedorn observed,

§ 6.88(1) "ensures a strict chain of custody for ballots" once

delivered and § 6.88(2) "provides detailed instructions

regarding the secure transfer of ballots from clerks to the

proper election officials, ensuring there is no opportunity to

tamper with the ballots." Id. "Given the detailed ballot

custody regulations once the ballot arrives at the clerk's

office or an alternate site, legislative silence with respect to

ballots delivered anywhere else strongly indicates delivery is

not permitted anywhere else." Id. (citing Alberte v. Anew

Health Care Servs., Inc., 2000 WI 7, ¶17, 232 Wis. 2d 587, 605

N.W.2d 515).

as required in sub. (2).

(2) When an absentee ballot is received by the municipal clerk prior to the delivery of the official ballots to the election officials of the ward in which the elector resides or, where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers, the municipal clerk shall seal the ballot envelope in the carrier envelope as provided under sub. (1), and shall enclose the envelope in a package and deliver the package to the election inspectors of the proper ward or election district or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers when it convenes under s. 7.52 (1). When the official ballots for the ward or election district have been delivered to the election inspectors before the receipt of an absentee ballot, the clerk shall immediately enclose the envelope containing the absentee ballot in a carrier envelope as provided under sub. (1) and deliver it in person to the proper election officials.

17 No. 2024AP164.rgb

¶71 The majority in this case builds a straw man to attack

Teigen. It insists Teigen conflated the phrases "to the

municipal clerk" and "to the municipal clerk's office." See

majority op., ¶20. Teigen did no such thing. That case held

Wis. Stat. § 6.87(4)(b)1. is best read as requiring a person-to-

person exchange of an absentee ballot between the voter and the

municipal clerk. The court explained how Wis. Stat. §§ 6.855(1)

and 5.81(3) restrict delivery of absentee ballots in person to

the municipal clerk's office or a designated alternate site.

Teigen never conflated the municipal clerk and the clerk's

office.

¶72 The majority dismisses the relevance of Wis. Stat.

§ 6.855(1)——and simply ignores Wis. Stat. §§ 5.81(3), 7.41(1),

and 6.88(1) and (2)——without ever grappling with the actual

statutory text: In person delivery of a ballot can occur only

at the municipal clerk's office or a designated alternate site.

The majority's argument that the detailed and restrictive

statute for the use of alternate sites says nothing about drop boxes because "drop boxes are already allowed" under Wis. Stat.

§ 6.87(4)(b)1. merely assumes the majority's conclusion rather

than proves it. Id., ¶30. Given the detailed restrictions in

§ 6.855 on the use of alternate sites, the most plausible

reading of the statute would preclude unmentioned methods of

delivering absentee ballots; otherwise, there would be no reason

whatsoever for the legislature to enact textual restrictions.

The majority provides no rebuttal to this point.

18 No. 2024AP164.rgb

¶73 The majority's reading of Wis. Stat. § 6.87(4)(b)1. is

not impossible, just implausible, which is why a court committed

to declaring the law rejected it and preserved the statute's

historical meaning. For a more exhaustive exposition of the

law, see Teigen, 403 Wis. 2d 607, ¶¶52-63. For a clearer

glimpse of the policy preferences motivating the majority to

rewrite the law more to its liking, see Justice Ann Walsh

Bradley's dissent in Teigen, in which

Justice Ann Walsh Bradley accuses the court of "erect[ing] yet another barrier for voters[.]" [B]ut to the extent any "barriers" to voting exist, they are of the legislature's making. Establishing rules governing the casting of ballots outside of election day rests solely within the power of the people's representatives because such regulations affect only the privilege of absentee voting and not the right to vote itself. Justice Ann Walsh Bradley says "[a] ballot drop box is a simple and perfectly legal solution to make voting easier[.]" While they might be a simple solution, the decision to devise solutions to make voting easier belongs to the legislature, not [the Wisconsin Elections Commission] and certainly not the judiciary. While the dissenters would permit ballot drop boxes, the court must respect the constitutional restraints on our power and refuse to act as a super-legislature. It poses a grave threat to democracy to mislead the people into believing we are one.

Id., ¶52 n.25 (some alterations in original) (internal citations

omitted).

¶74 Despite the deceptively narrow framing of the

majority's opinion, this case is not just about drop boxes. The

majority offers no limiting principle for its interpretation of Wis. Stat. § 6.87(4)(b)1. The endeavor would fail because the

majority's reading of the statute is boundless by design. The 19 No. 2024AP164.rgb

majority dismantles the carefully regulated privilege of

absentee voting in order to legitimize any method of getting

absentee ballots to a municipal clerk that the clerk may choose.

"[T]he statute does not specify a location to which a ballot

must be returned and requires only that the ballot be delivered

to a location the municipal clerk, within his or her discretion,

designates." Majority op., ¶26. An unattended cardboard box on

the clerk's driveway? An unsecured sack sitting outside the

local library or on a college campus? Door-to-door retrieval

from voters' homes or dorm rooms? Under the majority's logic,

because the statute doesn't expressly forbid such methods of

ballot delivery, they are perfectly lawful. This case is

limited to the use of drop boxes "only if one entertains the

belief that principle and logic have nothing to do with the

decisions of this [c]ourt." Lawrence, 539 U.S. at 605 (Scalia,

J., dissenting). While true of the majority's decision in this

case, that's not how courts of law operate.

¶75 The majority's reading of Wis. Stat. § 6.87(4)(b)1. allows municipal clerks to create "monumentally different voting

mechanism[s] not specified by the legislature." Teigen, 403

Wis. 2d 607, ¶63 (citing EPA v. EME Homer City Generation, L.P.,

572 U.S. 489, 528 (2014) (Scalia, J., dissenting)). The

majority would have us believe that buried within four innocuous

words, "to the municipal clerk," is a delegation of vast power

to municipal clerks to create an absentee voting regime unlike

anything resembling the law. That is not how any reasonable reader——much less a judge——reads statutes. Legislatures do not

20 No. 2024AP164.rgb

"hide elephants in mouseholes," Whitman v. Am. Trucking Ass'ns,

531 U.S. 457, 468 (2001); that is, a reasonable reader assumes

"the legislature 'does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions[.]'"

Teigen, 403 Wis. 2d 607, ¶63 (alteration in original) (quoting

Whitman, 531 U.S. at 468). The majority makes the municipal

clerk the law giver.7 Having constitutionally vested the

legislative power in the legislature alone, the People never

authorized this court to give the lawmaking power to anyone

else.

IV

¶76 Nothing relevant has changed since this court decided

Teigen two years ago. There have been no intervening changes in

the facts or law to warrant overruling the decision. See

Johnson, 407 Wis. 2d 195, ¶20. Nor has any evidence emerged

demonstrating the decision is detrimental to the coherence of

the law or unworkable in practice. Id. The policy-laden

arguments against this court's decision in Teigen have not changed either; the majority in this case has simply recycled

the dissent in Teigen, rebranding it the opinion of a court.

Compare majority op., ¶¶20-23, with Teigen, 403 Wis. 2d 607,

¶¶219-23 (Ann Walsh Bradley, J., dissenting), and majority op.,

7See Teigen, 403 Wis. 2d 607, ¶58 ("Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature. The legislature enacted a detailed statutory construct for alternate sites. In contrast, the details of the drop box scheme are found nowhere in the statutes, but only in memos prepared by WEC staff, who did not cite any statutes whatsoever to support their invention.").

21 No. 2024AP164.rgb

¶¶29-30, with Teigen, 403 Wis. 2d 607, ¶¶227-29 (Ann Walsh

Bradley, J., dissenting). It does not deserve the title.

¶77 The only thing that has changed since Teigen is the

court's membership. Cf. Clarke, 410 Wis. 2d 1, ¶¶258-61

(Rebecca Grassl Bradley, J., dissenting). As Justice Ann Walsh

Bradley put it in a different case, "There has been no change in

the relevant statutes, no change in the constitution, and no

change in the underlying principles. Nonetheless, the majority

substitutes its will over its obligation to stare decisis."

Lindell, 245 Wis. 2d 689, ¶148 (Ann Walsh Bradley, J.,

concurring).

¶78 Judicial elections do not change the law. See Clarke,

410 Wis. 2d 1, ¶¶258, 262 (Rebecca Grassl Bradley, J.,

dissenting); Garner, supra, 415-16. This court has made clear a

change in the membership of this court is an illegitimate basis

for reconsidering a prior decision——and at least two members of

the majority have emphatically reiterated that point in their

earlier writings,8 only to forsake the principle with alacrity.

8St. Croix Cnty. Dep't of Health & Hum. Servs. v. Michael D., 2016 WI 35, ¶93, 368 Wis. 2d 170, 880 N.W.2d 107 (Abrahamson & Ann Walsh Bradley, JJ., dissenting); State v. Lynch, 2016 WI 66, ¶102, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ., concurring in part, dissenting in part); Koschkee v. Taylor, 2019 WI 76, ¶¶62, 70, 387 Wis. 2d 552, 929 N.W.2d 600 (Ann Walsh Bradley, J., dissenting) (joined by Dallet, J.); State v. Lindell, 2001 WI 108, ¶146, 245 Wis. 2d 689, 629 N.W.2d 223 (Ann Walsh Bradley, J., concurring); Mayo v. Wis. Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383 Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh Bradley, J., dissenting); State v. Roberson, 2019 WI 102, ¶98, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting) (joined by Ann Walsh Bradley, J.).

22 No. 2024AP164.rgb

The justices forming the majority make no attempt to reconcile

their prior writings with today's opinion. "[P]rinciples

adopted when convenient, and ignored when inconvenient, are not

principles at all. It is precisely when one's principles are

tested and costly——yet are kept nonetheless——that they prove

themselves truly held." Clarke, 410 Wis. 2d 1, ¶268 (Hagedorn,

J., dissenting).

V

¶79 "[T]he Judge should never be the Legislator: Because,

then the Will of the Judge would be the Law[.]" Rogers v.

Tennessee, 532 U.S. 451, 476 (2001) (Scalia, J., dissenting)

(internal quotation marks omitted) (quoting 1 M. Horwitz,

Transformation of American Law 1780–1860, at 5 (1977)). The

members of the majority in this case make their will the law,

according four lawyers on the state's highest court the

unchecked power to say what the law shall be, rather than what

it is. The author of today's decree once deemed this court's

analysis of the law as "downright dangerous to our democracy," Teigen, 403 Wis. 2d 607, ¶246 (Ann Walsh Bradley, J.,

dissenting), but the real danger lies in the new majority's

arrogation of power the People never gave it. "[L]iberty can

have nothing to fear from the judiciary alone, but would have

every thing to fear from its union with either of the other

departments." The Federalist No. 78, at 523 (Alexander

Hamilton) (Jacob E. Cooke ed., 1961).

¶80 Intense partisan politics saturate our nation, exacerbated by a lack of institutional trust. The legitimacy of

elections continues to be questioned, each side accusing the

other of "election interference" and "threatening democracy" or

even the very foundation of our constitutional republic. The

majority's decision in this case will only fuel the fires of

suspicion.

¶81 Whatever can be said of the majority's decision, it

"is not the product of neutral, principled judging." Clarke,

410 Wis. 2d 1, ¶265 (Hagedorn, J., dissenting). Although the

majority attempts to package its disagreements with Teigen as

legal, the truth is obvious: The majority disagrees with the

decision as a matter of policy and politics, not law. The

members of the majority believe using drop boxes is good policy,

and one they hope will aid their preferred political party.

Teigen upheld the historical meaning of Wis. Stat.

§ 6.87(4)(b)1., which bars the use of offsite, unmanned drop

boxes. The majority in this case overrules Teigen not because

it is legally erroneous, but because the majority finds it

politically inconvenient. The majority's activism marks another triumph of political power over legal principle in this court.

I dissent.

¶82 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this dissent.

24 No. 2024AP164.rgb