Richard Teigen v. Wisconsin Elections Commission

2022 WI 64

• Court: Wisconsin Supreme Court
• Decided: July 8, 2022
• Docket: 2022AP000091
• Status: Published

Opinion

2022 WI 64

SUPREME COURT OF WISCONSIN CASE NO.: 2022AP91

COMPLETE TITLE: 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.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 8, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 13, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Waukesha JUDGE: Michael O. Bohren

JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to ¶¶4–10, 12–13, 52–63, and 73–85, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶1–3, 11, 14–51, 64–72, 86, n.29, and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-co-appellant, there were briefs filed by Steven C. Kilpatrick, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Steven C. Kilpatrick.

For the intervenor-defendant-co-appellant, there were briefs filed by Charles G. Curtis, Jr., Michelle M. (Umberger) Kemp, Will M. Conley, John M. Devaney, Elisabeth C. Frost, and Perkins COie, LLP, Madison and Washington, D.C., and Elias Law Group LLP, Washington, D.C. There was an oral argument by Charles G. Curtis.

For the intervenors-defendants-appellants, there were briefs filed by Jeffrey A. Mandell, Douglas M. Poland, Rachel E. Snyder, Carly Gerads, Scott B. Thompson, Mel Barnes, and Stafford Rosenbaum LLP, Madison, and Law Forward, Inc., Madison. There was an oral argument by Jeffrey A. Mandell.

For the plaintiffs-respondents-petitioners, there was a brief filed by Richard M. Esenberg, Brian W. McGrath, Luke N. Berg, Katherine D. Spitz, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

An amicus curiae brief was filed by James R. Troupis, Joseph W. Voiland, and Troupis Law Office, Cross Plains, and Veterans Liberty Law, Cedarburg, for Senator Ron Johnson. There was an oral argument by James R. Troupis.

An amicus curiae brief was filed by James Bopp, Jr., Michael D. Dean, and James Madison Center for Free Speech, Terre Haute, and First Freedoms Foundation, Brookfield, for True the Vote, Inc.

An amicus curiae brief was filed by Cameron T. Norris, James P. McGlone, Matthew M. Fernholz, and Consovoy McCarthy 2 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.

3 2022 WI 64 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP91 (L.C. No. 2021CV958)

STATE OF WISCONSIN : IN SUPREME COURT

Richard Teigen and Richard Thom,

Plaintiffs-Respondents-Petitioners,

v.

Wisconsin Elections Commission, FILED Defendant-Co-Appellant, JUL 8, 2022 Democratic Senatorial Campaign Committee, Sheila T. Reiff Intervenor-Defendant-Co-Appellant, Clerk of Supreme Court

Disability Rights Wisconsin, Wisconsin Faith Voices for Justice and League of Women Voters of Wisconsin,

Intervenors-Defendants-Appellants.

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. No. 2022AP91

APPEAL from a judgment and an order of the Circuit Court

for Waukesha County, Michael O. Bohren, Judge. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. 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

1 All subsequent references to the Wisconsin Statutes are to the 2019–20 version unless otherwise indicated. 2 The Wisconsin voters also sought relief under the Uniform Declaratory Judgment Act, Wis. Stat. § 806.04. We do not address whether relief would be proper had the Wisconsin voters sought relief only under § 806.04.

2 No. 2022AP91

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

3 The Honorable Michael O. Bohren, Waukesha County Circuit Court, presided. 4 "Elections are the foundation of American government and their integrity is of such monumental importance that any threat to their validity should trigger not only our concern but our prompt action." Trump v. Biden, 2020 WI 91, ¶152, 394 Wis. 2d 629, 951 N.W.2d 568 (Rebecca Grassl Bradley, J., dissenting) (quoting State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W, unpublished order (Wis. June 1, 2020) (Rebecca Grassl Bradley, J., dissenting)).

3 No. 2022AP91

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]

4 No. 2022AP91

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

5 No. 2022AP91

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).

6 No. 2022AP91

¶11 Second, DRW argues Wisconsin law bars this suit

because the Wisconsin voters did not first file their complaint

with WEC, which DRW claims Wis. Stat. § 5.06 requires. DRW

offers two independent bases for this argument: (1) sovereign

immunity and (2) competence.5 Whether sovereign immunity bars

this lawsuit is a question of law. Aesthetic & Cosmetic Plastic

Surgery Ctr., LLC v. Wis. Dep't of Trans., 2014 WI App 88, ¶12,

356 Wis. 2d 197, 853 N.W.2d 607 (quoting Canadian Nat'l R.R. v.

Noel, 2007 WI App 179, ¶5, 304 Wis. 2d 218, 222–23, 736

N.W.2d 900). Likewise, whether the circuit court was competent

to adjudicate this case is a question of law. City of Cedarburg

v. Hansen, 2020 WI 11, ¶13, 390 Wis. 2d 109, 938 N.W.2d 463,

modified on reconsideration, 2020 WI 45, 391 Wis. 2d 671, 943

N.W.2d 544 (citing City of Eau Claire v. Booth, 2016 WI 65, ¶6,

370 Wis. 2d 595, 882 N.W.2d 738).

¶12 On the merits, we must interpret Wisconsin statutes to

determine whether the memos correctly describe the law.

Statutory interpretation presents a question of law. See T.L.E.-C., 397 Wis. 2d 462, ¶13 (citing Stephenson, 394

Wis. 2d 703, ¶18).

¶13 Lastly, DRW raises a federal preemption argument.

Preemption presents a question of law. Town of Delafield v.

Cent. Transp. Kriewaldt, 2020 WI 61, ¶4, 392 Wis. 2d 427, 944

5 DRW conflated these two bases, but we resolve them independently.

7 No. 2022AP91

N.W.2d 819 (citing Partenfelder v. Rohde, 2014 WI 80, ¶25, 356

Wis. 2d 492, 850 N.W.2d 896).

III. ANALYSIS

A. Threshold Issues

1. The Wisconsin Voters Have Standing

¶14 DSCC argues the Wisconsin voters lack standing,

asserting they "have not demonstrated 'a personal stake in the

outcome of the controversy' separate and apart from the public

at large, nor have they shown they have 'suffered or [are]

threatened with an injury to an interest that is legally

protectable.'"6 We reject this argument because the Wisconsin

voters do have a "stake in the outcome" and are "affected by the

issues in controversy." Wis. Legislature v. Palm, 2020 WI 42,

¶12, 391 Wis. 2d 497, 942 N.W.2d 900. WEC's memos "interfere[]

with or impair," or at the very least, "threaten[] to interfere

with or impair," the Wisconsin voters' "legal rights and

privileges"——specifically, their rights and privileges as

registered voters. See Wis. Stat. § 227.40(1). For this reason, the Wisconsin voters have standing under Wisconsin's

permissive, policy-oriented approach toward standing.

¶15 DSCC's argument appears to be grounded in the

inaccurate assumption that Wisconsin courts follow federal law

on standing. For example, DSCC cites a Fifth Circuit case from

2021 rejecting claims "that drive-thru voting hurt the

Quoting Marx v. Morris, 2019 WI 34, ¶35, 386 Wis. 2d 122, 6

925 N.W.2d 112 (emphasis added).

8 No. 2022AP91

'integrity' of the election process," in violation of the United

States Constitution, because the claims were "far too

generalized to warrant standing." See Hotze v. Hudspeth, 16

F.4th 1121, 1124 (5th Cir. 2021).

¶16 While standing in federal court is constitutionally

confined, in Wisconsin it is limited only by prudential

considerations. The United States Constitution extends "[t]he

judicial power" only to "cases" and "controversies." U.S.

Const. art. III, § 2, cl. 1. No similar language exists in the

Wisconsin Constitution. See Wis. Const. art. VII, § 8

(creating, as a general rule, "original jurisdiction" in the

circuit courts over "all matters civil and criminal within this

state"). "Because our state constitution lacks the

jurisdiction-limiting language of its federal counterpart,

'standing in Wisconsin is not a matter of jurisdiction, but of

sound judicial policy.'" Friends of the Black River Forest, __

Wis. 2d __, ¶17 (quoting McConkey v. Van Hollen, 2010 WI 57,

¶15, 326 Wis. 2d 1, 783 N.W.2d 855).7 ¶17 Judicial policy favors hearing cases presenting

"carefully developed and zealously argued" issues. McConkey,

7 Although Justice Brian Hagedorn now criticizes this court's well-established consideration of judicial policy in determining standing, Justice Hagedorn's Concurrence, ¶160, he just joined the majority's expression of the test in Friends of the Black River Forest v. DNR, 2022 WI 52, ¶17, __ Wis. 2d __, __ N.W.2d __ (quoting McConkey v. Van Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855). Perhaps the court should reconsider its jurisprudence on standing but no party has asked us to do so in this case.

9 No. 2022AP91

326 Wis. 2d 1, ¶16. To ensure a full vetting of the issues, we

typically require plaintiffs to possess some personal stake in

the case: "the gist of the requirements relating to

standing . . . is to assure that the party seeking relief has

alleged a personal stake in the outcome of the controversy as to

give rise to that adverseness necessary to sharpen the

presentation of issues[.]" Moedern v. McGinnis, 70

Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975). This standard is

quite liberal; even "'a trifling interest' may suffice" provided

the asserted interest generates sufficient adversity. See

McConkey, 326 Wis. 2d 1, ¶15 (quoting Fox v. DHSS, 112

Wis. 2d 514, 524, 334 N.W.2d 532 (1983)).

¶18 In resolving standing challenges, Wisconsin courts may

also consider judicial efficiency. Id., ¶¶17–18. The judiciary

has "inherent power to protect itself against any action that

would . . . materially impair its efficiency." State v. Holmes,

106 Wis. 2d 31, 40, 315 N.W.2d 703 (1982) (quoting In re Court

Room, 148 Wis. 109, 121, 134 N.W. 490 (1912)). As a practical matter, courts should not devote time or resources to

adjudicating disputes only to ultimately conclude a party is not

entitled to any relief.8

While courts should consider whether relief may be 8

granted, they should not turn an issue of standing into a full adjudication on the merits. See Wis. Voters Alliance v. Wis. Elec. Comm'n, No. 2020AP1930-OA, unpublished order, at 4 (Wis. Dec. 4, 2020) (Roggensack C.J., dissenting) ("We grant petitions to exercise our jurisdiction based on whether the legal issues presented are of state wide concern, not based on the remedies requested." (citation omitted)).

10 No. 2022AP91

¶19 Against the backdrop of these policies, we have

developed a two-prong test for standing to challenge an agency

action under chapter 227 of the Wisconsin statutes. See Friends

of the Black River Forest, __ Wis. 2d __, ¶18 (quoting

Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n of Wis.

(WED), 69 Wis. 2d 1, 10, 230 N.W.2d 243 (1975)). In WED, this

court described the elements of the inquiry as follows:

"(1) Does the challenged action cause the petitioner injury in

fact? and (2) is the interest allegedly injured arguably within

the zone of interests to be protected or regulated by the

statute or constitutional guarantee in question?" Id. (citing

Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

150, 153 (1970)).

¶20 Under the first prong, "injury in fact," "we ask

'whether the petition alleges injuries that are a direct result

of the agency action.'" Friends of the Black River Forest, __

Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 13). This prong

presents a low bar. "[A]n '[i]njury alleged, which is remote in time or which will only occur as an end result of a sequence of

events set in motion by the agency action challenged, can be a

sufficiently direct result of the agency's decision to serve as

a basis for standing.'" Id. (quoting WED, 69 Wis. 2d at 14

(second modification in the original)). Under the second prong,

"we ask whether 'the injury is to an interest which the law

recognizes or seeks to regulate or protect.'" Id., ¶23 (quoting

Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 N.W.2d 685 (1988)). Recently, in Friends of the Black River 11 No. 2022AP91

Forest, we recognized "the 'zone of interests' terminology [for

the second prong] is untethered to the text of Wis. Stat.

ch. 227[.]"9 Id., ¶25. We explained, "determination of whether

a statute protects, recognizes, or regulates the asserted

interest is a purely statutory inquiry, from which the

judicially subjective consideration of the 'zone of interests'

is properly omitted." Id.

¶21 The Wisconsin voters allege they have suffered an

injury in fact to their right to vote. See Wis. Stat. § 6.84(1)

("The legislature finds that voting is a constitutional right,

the vigorous exercise of which should be strongly encouraged.").

As the Wisconsin voters argue, "voters[] are entitled to have

the elections in which they participate administered properly

under the law. Allowing WEC to administer the 2022 elections in

a manner other than that required by law causes doubts about the

fairness of the elections and erodes voter confidence in the

electoral process." Similarly, the Republican National

Committee et al., an amicus curiae, emphasizes, "[e]lections are one of the most important features of our Republic, and

upholding the rules and procedures prescribed for elections,

Friends of the Black River Forest involved a challenge to 9

an agency action under Wis. Stat. §§ 227.52 and 227.53. With respect to standing, the case is analogous to this dispute. Many of the cases on which we relied in Friends of the Black River Forest discuss standing under chapter 227 of the Wisconsin statutes generally. See Foley-Ciccantelli v. Bishop's Grove Condominium Ass'n, Inc., 2011 WI 36, ¶¶43–44, 333 Wis. 2d 402, 797 N.W.2d 789 (lead op.) (suggesting the same framework applies for "an administrative rule or decision").

12 No. 2022AP91

according to the laws enacted by the Legislature, reinforces the

sanctity of the rule of law and reassures all Americans of the

integrity of our elections." We agree.

¶22 If the right to vote is to have any meaning at all,

elections must be conducted according to law. Throughout

history, tyrants have claimed electoral victory via elections

conducted in violation of governing law. For example, Saddam

Hussein was reportedly elected in 2002 by a unanimous vote of

all eligible voters in Iraq (11,445,638 people).10 Examples of

such corruption are replete in history. In the 21st century,

North Korean leader Kim Jong-un was elected in 2014 with 100% of

the vote while his father, Kim Jong-il, previously won 99.9% of

the vote.11 Former President of Cuba, Raul Castro, won 99.4% of

the vote in 2008 while Syrian President Bashar al-Assad was

elected with 97.6% of the vote in 2007. Even if citizens of

such nations are allowed to check a box on a ballot, they

possess only a hollow right.12 Their rulers derive their power

from force and fraud, not the people's consent. By contrast, in

Saddam Scores 100% in Leadership Ballot, The Guardian 10

(Oct. 16, 2002), https://www.theguardian.com/world/2002/oct/16/iraq.

The World of 100% Election Victories, BBC (Mar. 11, 11

2014), https://www.bbc.com/news/blogs-magazine-monitor-26527422.

Justice Hagedorn seems to disagree, indicating the right 12

to vote encompasses nothing more than the mere ability to cast a ballot. He fails to recognize that a lawful vote loses its operative effect if the election is not conducted in accordance with the rule of law.

13 No. 2022AP91

Wisconsin elected officials "deriv[e] their just powers from the

consent of the governed." See Wis. Const. art. I, § 1.

¶23 The right to vote presupposes the rule of law governs

elections. If elections are conducted outside of the law, the

people have not conferred their consent on the government. Such

elections are unlawful and their results are illegitimate. "If

an election . . . can be procured by a party through artifice or

corruption, the Government may be the choice of a party for its

own ends, not of the nation for the national good." John Adams,

Inaugural Address in the City of Philadelphia (Mar. 4, 1797),

reprinted in Inaugural Addresses of the Presidents of the United

States at 10 (1989).

¶24 The Wisconsin voters' injury in fact is substantially

more concrete than the "remote" injuries we have recognized as

sufficient in the past. Friends of the Black River Forest, __

Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 14). The record

indicates hundreds of ballot drop boxes have been set up in past

elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the

Wisconsin voters. The illegality of these drop boxes weakens

the people's faith that the election produced an outcome

reflective of their will. The Wisconsin voters, and all lawful

voters, are injured when the institution charged with

administering Wisconsin elections does not follow the law,

leaving the results in question.

¶25 DSCC misunderstands the nature of the Wisconsin voters' injury in fact. It argues the Wisconsin voters cannot 14 No. 2022AP91

show their votes were diluted by unlawful votes. It states, "it

is equally likely that any such [unlawful] voters may vote for

the same candidates who[m] [the Wisconsin voters] support, which

would seem to benefit, not harm them." The Wisconsin voters'

injury, however, is more nuanced than DSCC suggests. DSCC's

claim about "equal" likelihood is pure speculation. In

contrast, the failure to follow election laws is a fact which

forces everyone——even DSCC——to question the legitimacy of

election results. Electoral outcomes obtained by unlawful

procedures corrupt the institution of voting, degrading the very

foundation of free government. Unlawful votes do not dilute

lawful votes so much as they pollute them, which in turn

pollutes the integrity of the results. See Clark v. Quick, 36

N.E.2d 563, 566 (Ill. 1941) ("There is nothing in the record

before us to indicate that any of [the absentee ballots] were

actually tampered with by any unauthorized person, but it is

entirely obvious that the opportunity to do so was present.").

When the level of pollution is high enough, the fog creates obscurity, and the institution of voting loses its credibility

as a method of ensuring the people's continued consent to be

governed. See State ex rel. Bell v. Conness, 106 Wis. 425, 428,

82 N.W. 288 (1900) ("He failed to show that he received a

majority of the votes cast at the election, but he succeeded in

showing a condition of affairs that taints the whole proceeding

and calls for careful consideration. The purity and integrity

of elections is a matter of such prime importance, and affects so many important interests, that the courts ought never to 15 No. 2022AP91

hesitate, when the opportunity is offered, to test them by the

strictest legal standards."). A man with an obscured vote may

as well be "a man without a vote," and without the opportunity

for judicial review, such a man "is without protection; he is

virtually helpless." See 106 Cong. Rec. 5082, 5117 (1960)

(statement of Sen. Lyndon B. Johnson).

¶26 DSCC quotes this court's statement in McConkey that it

was "troubled" by "broad general voter standing[.]" 326

Wis. 2d 1, ¶17. For context, that case involved a voter

challenge to a process by which the people of Wisconsin adopted

the following constitutional amendment in 2006:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. Wis. Const. art. XIII, § 13, superseded by Obergefell v. Hodges,

576 U.S. 644 (2015). "McConkey claimed that the two sentences

of the marriage amendment constituted two amendments, not one,

and that because voters were not able to vote for or against

each sentence, the marriage amendment was not validly adopted."

McConkey, 326 Wis. 2d 1, ¶2. McConkey conceded if he would have

been able to vote on each individual sentence, he would have

voted "no" on both. Id., ¶14. On this basis, the attorney

general challenged McConkey's standing, claiming, "he suffered

no actual injury to a legally protectable interest." Id.

McConkey maintained his "basic voting . . . rights" were violated. Id.

16 No. 2022AP91

¶27 McConkey does not support DSCC's argument. While this

court was "troubled," it nonetheless proceeded to decide the

case: "whether as a matter of judicial policy, or because

McConkey has at least a trifling interest in his voting rights,

we believe the unique circumstances of this case render the

merits of McConkey's claim fit for adjudication." Id., ¶17.

The injury in fact McConkey claimed to suffer is analogous to

the injury in fact suffered by the Wisconsin voters; both

plaintiffs claim proper voting procedures were not followed.

¶28 DSCC also argues "[t]heir voting rights are in no

sense 'diluted' by other voters' reliance on carefully monitored

secure [ballot] drop boxes under local municipal clerks'

jurisdiction, custody, and control." The memos, however,

purport to authorize unstaffed drop boxes as lawful means of

returning ballots. Even if secured and monitored, a drop box

falls short of the statutorily-recognized security surrounding a

polling place. See Wis. Stat. § 6.84(1) ("[V]oting by absentee

ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.").

¶29 The Wisconsin voters satisfy the second standing prong

as well. "[T]he law recognizes" and "seeks to . . . protect"

the Wisconsin voters' right to vote. See Friends of the Black

River Forest, __ Wis. 2d __, ¶23 (quoting Waste Mgmt., 144

Wis. 2d at 505). Wisconsin Stat. § 227.40(1) affords them

relief because the memos "interfere[] with or impair[]," or at

the very least, "threaten[] to interfere with or impair," their "legal rights and privileges[.]" 17 No. 2022AP91

¶30 A broader review of judicial policy supports our

application of the two-prong test. Like McConkey, this case has

been "zealously argued," demonstrating the Wisconsin voters'

interest in their right to vote is more than merely

"trifling[.]" See 326 Wis. 2d 1, ¶18. We can discern no

negative impact on "judicial efficiency" stemming from our

decision to resolve it. Id.

¶31 Lastly, "as a law development court," we owe the

public an answer to the important questions of law this case

raises.13 Id. "The right of voting for representatives is the

primary right by which other rights are protected." Thomas

Paine, Dissertation on First Principles of Government (1795),

reprinted in Thomas Paine: Rights of Man, Common Sense and

Other Political Writings 398 (2008). As the United States

Supreme Court has recognized, "[n]o right is more precious in a

free country than that of having a voice in the election of

those who make laws under which, as good citizens, we must live.

Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17

(1964). Unlawfully conducted elections threaten to diminish or

even eliminate some voices, destabilizing the very foundation of

"Since the 2020 presidential election, many Wisconsin 13

voters have raised serious concerns about the conduct of elections because of directives given by the Wisconsin Elections Commission (WEC) to the municipal clerks who run the elections. We have been petitioned repeatedly to accept cases that address very similar concerns." Kleefisch v. Wis. Elections Comm'n, No. 2021AP1976-OA, unpublished order, at 1–2 (Wis. Feb. 4, 2022) (Roggensack, J., dissenting).

18 No. 2022AP91

free government. The Wisconsin voters have standing to ensure

they retain their electoral voices. See generally Trump v.

Evers, No. 2020AP1971-OA, unpublished order, at 6 (Wis. Dec. 3,

2020) (Rebecca Grassl Bradley, J., dissenting) ("[T]he integrity

of every election will be tarnished by the public's mistrust

until the Wisconsin Supreme Court accepts its responsibility to

declare what the election laws say.").

¶32 Justice Brian Hagedorn disagrees with our standing

analysis, proffering an alternative basis for standing divined

from searching the penumbra of Wis. Stat. § 5.06.14 Although

§ 5.06 appears nowhere in the complaint15 and sets forth specific

procedures that were never invoked, Justice Hagedorn concludes

it nevertheless confers standing on the Wisconsin voters.16 It

can't.

14 Justice Hagedorn's Concurrence, ¶164. 15Pointing out that § 5.06 appears nowhere in the complaint isn't a "complaint"; it's just a fact. Id., ¶164 n.3. 16Justice Hagedorn asserts the Wis. Stat. § 5.06 standing argument is "in their brief[.]" Id. He continues, "[they] unquestionably" "raise[d]" this argument. Id.

19 No. 2022AP91

¶33 Wisconsin Stat. § 5.06(1) allows "any elector" to file

"a written sworn complaint" with WEC if the elector "believes

that a decision or action" of "an election official" related to

the "conduct of elections is contrary to law[.]" "The

commission may conduct a hearing on the matter in the manner

prescribed for treatment of contested cases under ch. 227 if it

believes such action to be appropriate." § 5.06(1). The

Wisconsin voters, however, have not brought a case against any

local election official but only against WEC—-in circuit court.

As we explain in greater detail below, it would be nonsensical

to have WEC adjudicate a claim against itself under Wis. Stat.

§ 5.06(1).

¶34 If Wis. Stat. § 5.06(1) is the only source of the

Wisconsin voters' legal right to sue, their failure to first

file the complaint with WEC is no minor matter. Section 5.06(2)

declares, "[n]o person who is authorized to file a complaint

The portion of the Wisconsin voters' response brief dealing with standing is about two pages. Those two pages have two sentences on Wis. Stat. § 5.06: (1) "Wis. Stat. § 5.06 recognizes that 'any elector' has an interest in raising violations of the election laws"; and (2) "The § 5.06 process does not apply here, for reasons explained below, infra Part IV.B, but § 5.06 shows that electors have a 'right' and interest in elections conducted in accordance with state law." § 5.06 "recognizes" or "shows" that the electors have a "right" to ensure local election officials comply with the law, but on its face the statute simply does not confer a right relevant to the claims brought in this case. In contrast, Wis. Stat. § 6.84(1) includes a legislative "find[ing]" that "voting is a constitutional right[.]" Justice Hagedorn dismisses this language as merely an expression of policy, with apparently no operative effect. A right that lacks a vehicle for vindication is a hollow one.

20 No. 2022AP91

under sub. (1), other than the attorney general or a district

attorney, may commence an action or proceeding to test the

validity of any decision, action or failure to act on the part

of any election official with respect to any matter specified in

sub. (1) without first filing a complaint under sub. (1), nor

prior to disposition of the complaint by the commission." No

one suggests the Wisconsin voters are not

"person[s] . . . authorized to file a complaint under sub. (1)."

§ 5.06(2). As Justice Hagedorn acknowledges, "§ 5.06 gives

[Wisconsin voters] a statutory right to have local election

officials in the area[s] where [they] live[] comply with

election laws."17 That statute says "the elector may file a

written sworn complaint with the commission requesting that the

official be required to conform his or her conduct to the law,

be restrained from taking any action inconsistent with the law

or be required to correct any action or decision inconsistent

with the law or any abuse of the discretion vested in him or her

by law." § 5.06 (emphasis added). But § 5.06 says nothing about filing a complaint in order to force WEC to correct any

action it make take or any decision it may make, which are

inconsistent with the law. If § 5.06 does not apply to the

Wisconsin voters' complaint against WEC, then how could it

confer standing? Justice Hagedorn does not explain.

¶35 Justice Hagedorn's cognitively dissonant criticisms of

our standing analysis apply equally to his own. He says our

17 Justice Hagedorn's Concurrence, ¶164.

21 No. 2022AP91

standing analysis "suggests [we] create[] broad voter standing

against any election official or WEC by any elector for nearly

any purported violation of any election law."18 But Justice

Hagedorn articulates an indistinguishably broad basis for

standing, concluding the Wisconsin voters have "a legal right

protected by Wis. Stat. § 5.06 to have local election officials

in [their] area comply with the law."19 He complains our

standing analysis is not "tether[ed] . . . to an on-point

text[.]"20 But our analysis is "tethered" to Wis. Stat.

§ 6.84(1), which incontrovertibly applies to the Wisconsin

voters, while Justice Hagedorn's analysis is tethered only to a

concededly inapplicable statute. Unlike our standing analysis,

Justice Hagedorn's penumbra standing is not limited to election

disputes but logically extends across the Wisconsin statutes.21

¶36 Even under the stricter standing test federal courts

apply, impairment of the right to vote has been deemed

sufficient to confer standing. While so-called "generalized

grievances" "do not normally constitute a particularized injury necessary to establish standing," "the fact that 'a harm is

18 Id., ¶167.

19 Id., ¶165. 20 Id., ¶167.

Justice Hagedorn insists his "standing analysis applies 21

only to challenges under Wis. Stat. § 227.40(1) to WEC rules and guidance documents when that guidance threatens to cause local election officials to behave illegally[.]" Id., ¶167 n.8. His reasoning logically extends further, notwithstanding his artificial narrowing in a footnote.

22 No. 2022AP91

widely shared does not necessarily render it a generalized

grievance.'" Donald J. Trump for President, Inc. v. Bullock,

491 F. Supp. 3d 814, 828 (D. Mont. 2020) (quoting Novak v.

United States, 795 F.3d 1012, 1018 (9th Cir. 2015)). "In fact,

the [United States] Supreme Court has been clear that 'where a

large number of voters suffer interference with voting rights'

the interests related to that are sufficiently concrete to

obtain the standing necessary to seek redress in an Article III

Court." Id. (quoting F.E.C. v. Akins, 524 U.S. 11, 24 (1998));

see also id. ("Because the alleged injuries to the members'

voting rights at issue in this case could conceivably be

asserted by any Montanan does not eradicate the standing

necessary to assert these claims. On the contrary, the Supreme

Court has repeatedly enumerated the principle that claims

alleging a violation of the right to vote can constitute an

injury in fact despite the widespread reach of the conduct at

issue."). Wisconsin voters have alleged an injury to their

right to vote sufficient to confer standing.

2. The Law Does Not Require Wisconsin Voters to File Their Complaint Against WEC with WEC ¶37 Article IV, Section 27 of the Wisconsin Constitution

provides: "The legislature shall direct by law in what manner

and in what courts suits may be brought against the state."

"From this provision the rule developed that the state cannot be

sued without its consent." Lister v. Bd. of Regents of Univ. of

Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976). DRW, quoting part of this sentence from Lister, argues sovereign

23 No. 2022AP91

immunity bars this lawsuit because the Wisconsin voters did not

first file their complaint with WEC, which DRW asserts is a

jurisdictional prerequisite under Wis. Stat. § 5.06(1).

¶38 Importantly, the only party that could claim to

represent the sovereign in this case——WEC——has abandoned any

sovereign immunity argument. In its answer, WEC asserted,

"[s]ome of [the Wisconsin voters'] claims are barred by

sovereign immunity," but it did not say which ones. WEC did not

discuss sovereign immunity at all in its briefing. When asked

for WEC's position on this issue during oral argument before

this court, WEC's attorney responded:

Counsel: Well, to be consistent we did not take a position on it one way or the other in briefing, and I'm not going to take a position on behalf of the Commission in oral argument either, so it's a "no position" type of response, for standing and for sovereign immunity, because although we raised it, we're content with the other parties pushing that forward. We chose for strategic purposes to focus our briefs on other things.

Court: That leaves me perplexed. Do you agree with their standing and sovereign immunity arguments, even though you are not advancing them? I don't want to necessarily pin you down, but I do want clarity. Revisit that answer, if you will.

Counsel: I understand you don't like the non-answer that I provided. But the position of the Commission is, yes, we raised them in the answer, but we chose not to put them forward in our brief. We did not choose to adopt by incorporation or by reference those arguments; we did not say we are in disagreement with them either.

24 No. 2022AP91

DRW's argument fails because a private party cannot raise and

maintain an affirmative defense that belongs to the State.

¶39 "Sovereign immunity is a defense which can be raised

by the state alone and does not go to the merits or primary

object of the action. For this reason, sovereign immunity is a

defense to personal jurisdiction which can be waived." City of

Kenosha v. State, 35 Wis. 2d 317, 328, 151 N.W.2d 36 (1967)

(emphasis added); Cords v. State, 62 Wis. 2d 42, 46, 214

Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that

sovereign immunity is a defense to the personal jurisdiction of

the court which can be waived. Objection to personal

jurisdiction must be raised specifically or be deemed waived.

It is not sufficient to make a general demurrer that the

complaint does not state facts sufficient to constitute a cause

of action.").

¶40 DRW does not address City of Kenosha or Cords, instead

claiming in conclusory fashion, "because sovereign immunity is a

jurisdictional bar to the court's jurisdiction, it is properly raised at any juncture, and, once raised, must be adjudicated

before the merits." The two cases DRW cites in support of this

proposition have nothing to do with sovereign immunity (the

phrase does not even appear in the opinions), and the cases are

actually about subject matter jurisdiction, not personal

jurisdiction.

¶41 The first case DRW cites, Bartus v. DHSS, states:

Jurisdictional challenges may be raised at any juncture during a court proceeding. In the instant

25 No. 2022AP91

case, the circuit court was reviewing the propriety of a Department decision to revoke a probationer's term for failure to pay restitution. Bartus's jurisdictional challenge to the 1988 sentence which imposed the restitution, was therefore central to the subject matter jurisdiction of the court on review. 176 Wis. 2d 1063, 1082–83, 501 N.W.2d 419 (1993) (emphasis

added). Bartus merely recites a well-known rule, repeated in

many cases, that arguments against subject matter jurisdiction

cannot be forfeited or waived. See City of Cedarburg, 390

Wis. 2d 109, ¶49 (citing Booth, 370 Wis. 2d 595, ¶1); see also United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-

matter jurisdiction, because it involves a court's power to hear

a case, can never be forfeited or waived."). Equally well

established is the rule that personal jurisdiction can be

forfeited or waived. Wis. Stat. § (Rule) 802.06(8)(a).

¶42 The only other case DRW cites in support of its claim

that sovereign immunity can raised at any juncture similarly

demonstrates DRW's failure to distinguish between subject matter

jurisdiction and personal jurisdiction. See Harrigan v.

Gilchrist, 121 Wis. 127, 224, 99 N.W. 909 (1904) ("A challenge

to the jurisdiction of the trial court of the subject matter of

the action is proper at any time[.]" (Emphasis added)).

¶43 DRW is not a state agency, so it cannot assert

sovereign immunity. Although WEC asserted in its answer that

sovereign immunity barred "some" of the Wisconsin voters'

claims, it did not say which ones. No reasonable judge could

view WEC's briefing and answers at oral argument as maintaining a sovereign immunity defense. WEC's attorney even said at oral

26 No. 2022AP91

argument that WEC takes "no position" on the matter. Although

DRW argued sovereign immunity in its brief, WEC's attorney

demurred at oral argument: "We did not choose to adopt by

incorporation or by reference those arguments." Such statements

conflict with any claimed refusal to submit to a court's

jurisdiction. We conclude WEC knowingly abandoned, and

therefore waived, sovereign immunity.

¶44 At best, DRW's objection implicates the court's

competency, which lacks any constitutional importance.

"[S]ubject matter jurisdiction and competence are related but

distinct concepts." City of Cedarburg, 390 Wis. 2d 109, ¶49.

"Subject matter jurisdiction . . . refers 'to the power of

a . . . court to decide certain types of actions.'" Booth, 370

Wis. 2d 595, ¶7 (quoting State v. Smith, 2005 WI 104, ¶18, 283

Wis. 2d 57, 699 N.W.2d 508). "In other words, subject matter

jurisdiction is about the type or category of case brought."

City of Cedarburg, 390 Wis. 2d 109, ¶49. In contrast,

"[c]ompetence . . . is about a court's ability to exercise its jurisdiction in an individual case." Id. With few exceptions,

"a circuit court is never without subject matter jurisdiction;"

however, "[a] circuit court's ability to exercise its subject

matter jurisdiction in individual cases . . . may be affected by

noncompliance with statutory requirements pertaining to the

invocation of that jurisdiction." See Booth, 370 Wis. 2d 595,

¶12 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶1–

2, 273 Wis. 2d 76, 681 N.W.2d 190). Noncompliance with a required statutory procedure can trigger a competence question, 27 No. 2022AP91

but a lack of competence is not jurisdictional. City of

Cedarburg, 390 Wis. 2d 109, ¶47 (citing Mikrut, 273 Wis. 2d 76,

¶¶12, 34).

¶45 DRW's argument is underdeveloped, perhaps because it

spent large swaths of its briefing trying to create a

constitutional issue when one does not exist. We need not

address underdeveloped arguments. Papa v. Wis. Dep't of Health

Servs., 2020 WI 66, ¶42 n.15, 393 Wis. 2d 1, 946 N.W.2d 17. We

nonetheless choose to resolve this one because of the issue's

importance in the context of election law.

¶46 DRW cites Wis. Stat. § 5.06, which states, in relevant

part:

(1) Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning . . . election administration or conduct of elections is contrary to law, or the official has abused the discretion vested in him or her by law with respect to any such matter, the elector may file a written sworn complaint with the commission requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law.

(2) No person who is authorized to file a complaint under sub. (1), other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1) without first filing a complaint under sub. (1), nor prior to disposition of the complaint by the commission. . . .

28 No. 2022AP91

According to DRW, the law bars the Wisconsin voters' complaint

against WEC because they did not first file it with WEC.

Section 5.06, read in context, does not mean what DRW claims.

See Brey v. State Farm Mut. Auto Ins. Co., 2022 WI 7, ¶11, 400

Wis. 2d 417, 970 N.W.2d 1 (explaining statutes are read in

context).

¶47 First, Wis. Stat. § 5.06(1) applies only to complaints

against "election official[s]." "Election officials" are

specific "individuals" (not "person[s]")22 who are "charged with

any duties relating to the conduct of an election." Wis. Stat.

§ 5.02(4e). The Wisconsin voters brought this lawsuit against

WEC, not any individual, alleging WEC's memos do not comport

with the law. "In chs. 5 to 10 and 12 [of the Wisconsin

statutes]," the word "commission" is used to refer to WEC. Wis.

Stat. § 5.025. Section 5.06 does not require voters to complain

to the "commission" when they believe WEC has violated the law——

only when they believe an "election official" has. Intuitively,

this distinction makes sense: "No man is allowed to be a judge in his own cause; because his interest will certainly bias his

judgment, and, not improbably, corrupt his integrity." The

Federalist No. 10, at 107 (James Madison) (John C. Hamilton ed.,

1882); see also The Code of Justinian 3.5.1 (Valens, et al. 378)

("[N]o one shall act as judge in his own case, or interpret the

law for himself, as it would be very unjust to give anyone the

See Wis. Stat. § 990.01(26) ("'Person' includes all 22

partnerships, associations and bodies politic or corporate.").

29 No. 2022AP91

right to render a decision in an affair which is his own.").

DRW's reliance on cases involving claims against election

officials——not WEC——is misplaced. See Kuechmann v. Sch. Dist.

of La Crosse, 170 Wis. 2d 218, 487 N.W.2d 639 (Ct. App. 1992).

¶48 Second, the remedies WEC can impose under Wis. Stat.

§ 5.06(6) would be senseless if they were applied by WEC against

itself. Is WEC supposed to "order" itself to "conform" its (not

"his or her") "conduct to the law"? § 5.06(1). Can WEC order

itself "restrain[ed]" or "require[]" itself to "correct any

action or decision" it has taken that is "inconsistent with the

law"? Id. The plain language of § 5.06(6) does not contemplate

giving an election official a chance to reconsider the

official's position; it contemplates WEC issuing binding

directives to such officials.

¶49 Third, the legislature knows how to write a statute

accomplishing the work DRW would have Wis. Stat. § 5.06 perform.

See State v. Yakich, 2022 WI 8, ¶24, 400 Wis. 2d 549, 970

N.W.2d 12 (explaining plain meaning may be derived by looking at differences between two statutes and noting "the legislature

knew how to draft [different] language" (quoting Milwaukee J.

Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶36–37, 341

Wis. 2d 607, 815 N.W.2d 367) (modification in the original)).

For example, Wis. Stat. § 68.09(2), which governs municipal

administrative review, states, "[a] review under this section

may be made by the officer, employee, agent, agency, committee,

board, commission or body who made the initial determination." No similar explicit language appears in § 5.06. The 30 No. 2022AP91

commissioners of WEC guard elections; if the legislature wanted

the guards to guard themselves, it would have drafted § 5.06 to

mirror § 68.09(2).23

¶50 Fourth, the Wisconsin voters filed this case under

Wis. Stat. § 227.40. Subsection (1) of that statute states,

"[a] declaratory judgment may be rendered whether or not the

plaintiff has first requested the agency to pass upon the

validity of the rule or guidance document in question."

Although Wis. Stat. § 5.06 could be construed to conflict with

§ 227.40(1), such a reading would be erroneous. When reasonably

possible, we read statutes in harmony, and a harmonious reading

is quite reasonable in this case. See T.L.E.-C., 397

Wis. 2d 462, ¶30 ("The statutory provisions we construe exist in

harmony."); Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 180 (2012) ("The provisions of a

text should be interpreted in a way that renders them

compatible, not contradictory."). Accordingly, we need not

consider DRW's argument that § 5.06 is a more specific statute that trumps § 227.40.24 See Milwaukee Dist. Council 48 v.

The 23 Wisconsin voters ask, "quis custodiet ipsos custodes?" Translated to English, "who will be guarding the guards?" See The Satires of Juvenal 78 (Rolfe Humphries trans., 1958) (emphasis removed).

If we were to address the specific-general canon on which 24

defendants rely, which statute should govern is unclear. Wisconsin Stat. § 5.06 is more specific in the sense that it references election disputes, but Wis. Stat. § 227.40 is more specific in governing judicial review of administrative rules and guidance documents.

31 No. 2022AP91

Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924

N.W.2d 153 ("Therefore, statutory language is interpreted in the

context in which it is used; not in isolation but as part of a

whole; in relation to the language of surrounding or closely-

related statutes; and reasonably, to avoid absurd or

unreasonable results." (quoting State ex rel. Kalal v. Cir. Ct.

for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681

N.W.2d 110)); Scalia & Garner, Reading Law, at 183 (explaining

the general-specific canon applies "when conflicting provisions

simply cannot be reconciled").

¶51 For each of these reasons, we reject DRW's argument.

Whether framed in terms of sovereign immunity or competency, it

fails. Neither the statutes nor judicial policy precludes this

court from resolving the Wisconsin voters' claims against WEC.

B. The Merits

¶52 WEC's staff may have been trying to make voting as

easy as possible during the pandemic, but whatever their

motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.25

25Justice Ann Walsh Bradley accuses the court of "erect[ing] yet another barrier for voters," dissent, ¶205, but 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[.]" Id., ¶207. While they might be a simple solution, the decision to devise solutions to make voting easier belongs to the legislature, not WEC and certainly not the judiciary. While the dissenters would permit ballot drop boxes, the court must 32 No. 2022AP91

1. Legislative Policy Directs Us to Take a Skeptical View of Absentee Voting ¶53 Subchapter IV of chapter 6 of the Wisconsin statutes

begins with a statement of legislative policy that cannot be

reconciled with the statements of policy contained in WEC's

memos:

LEGISLATIVE POLICY. The legislature finds that voting is a constitutional right, the vigorous exercise of which should be strongly encouraged. In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses. Wis. Stat. § 6.84(1); see also Mays v. LaRose, 951 F.3d 775, 792

(6th Cir. 2020) ("[T]here is no constitutional right to an

absentee ballot." (citing McDonald v. Bd. of Elections Comm'rs

of Chi., 394 U.S. 802, 807–09 (1969)). The statutory

requirements governing absentee voting must be completely

satisfied or ballots may not be counted:

INTERPRETATION. 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.

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. 33 No. 2022AP91

§ 6.84(2). "[M]andatory" election requirements "must be

strictly adhered to" and "strictly observed." State ex rel.

Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 592–93, 263

N.W.2d 152 (1978).

¶54 Despite these provisions, no defendant can point to

any statute authorizing ballot drop boxes; instead, the

defendants argue no statute expressly prohibits them. The

absence of an express prohibition, however, does not mean drop

boxes comport with "the procedures specified" in the election

laws. Wis. Stat. § 6.84(2). Nothing in the statutory language

detailing the procedures by which absentee ballots may be cast

mentions drop boxes or anything like them.

2. Ballot Drop Boxes Are Unauthorized by Law

¶55 Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant

part, that absentee ballots "shall be mailed by the elector, or

delivered in person, to the municipal clerk issuing the ballot

or ballots." The prepositional phrase "to the municipal clerk"

is key and must be given effect. 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

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

district." An inanimate object, such as a ballot drop box,

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

dropping a ballot into an unattended drop box is not delivery

"to the municipal clerk[.]"

34 No. 2022AP91

¶56 Wisconsin Stat. § 6.855 further shows the unlawfulness

of ballot drop boxes. Subsection (1) of that statute states:

The governing body of a municipality may elect to designate a site other than the office of the municipal clerk or board of election commissioners as the location from which electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election. The designated site shall be located as near as practicable to the office of the municipal clerk or board of election commissioners and no site may be designated that affords an advantage to any political party. An election by a governing body to designate an alternate site under this section shall be made no fewer than 14 days prior to the time that absentee ballots are available for the primary under s. 7.15 (1) (cm), if a primary is scheduled to be held, or at least 14 days prior to the time that absentee ballots are available for the election 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. Subsection (3) declares an alternate absentee ballot site must

be "staffed by the municipal clerk or the executive director of

the board of election commissioners, or employees of the clerk

or the board of election commissioners." Subsection (5) allows

the establishment of multiple alternate sites.

¶57 Ballot drop boxes are not alternate absentee ballot

sites under Wis. Stat. § 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. If a drop box were an alternate ballot site, by the plain

35 No. 2022AP91

language of the statute, "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). The

defendants do not advance this construction of the statutes.

¶58 If ballot drop boxes are not alternate absentee ballot

sites, "what [are] they?" Trump v. Biden, 2020 WI 91, ¶101, 394

Wis. 2d 629, 951 N.W.2d 568 (Roggensack, C.J., dissenting).

Existing outside the statutory parameters for voting, drop boxes

are a novel creation of executive branch officials, not the

legislature. The legislature enacted a detailed statutory

construct for alternate sites. In contrast, the details of the

drop box scheme are found nowhere in the statutes, but only in

memos prepared by WEC staff, who did not cite any statutes

whatsoever to support their invention.

¶59 Wisconsin Stat. § 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. Wisconsin Stat. § 6.87(4)(b)1. requires

the elector to mail the absentee ballot or deliver it in person,

"to the municipal clerk," which is defined to include

"authorized representatives." This subparagraph contemplates

only two ways to vote absentee: by mail and at "the office of

the municipal clerk" or "an alternate site" as statutorily described. No third option exists. 36 No. 2022AP91

¶60 Other election statutes are similarly silent on any

other method of voting absentee other than by mail or at the

office of the municipal clerk. Wisconsin Stat. § 5.81(3)

provides, in relevant part: "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."

The statute states, "absentee ballots may consist of" and then

describes ballots cast "in person in the office of the municipal

clerk" and ballots "voted by mail." § 5.81(3). The legislature

did not contemplate absentee ballots "consist[ing]" of ballots

cast via a drop box.

¶61 In Wis. Stat. § 6.87(4)(b)1. the prepositional phrase,

"to the municipal clerk," modifies both the clause "mailed by

the elector," i.e., absentee ballots "shall be mailed by the

elector . . . to the municipal clerk" as well as "delivered in

person." The defendants contend "to the municipal clerk" encompasses unstaffed drop boxes maintained by the municipal

clerk. A hyper-literal interpretation of this prepositional

phrase, taken out of context, would permit voters to mail or

personally deliver absentee ballots to the personal residence of

the municipal clerk or even hand the municipal clerk absentee

ballots at the 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. The statutes do not authorize the municipal 37 No. 2022AP91

clerk to perform any official duties related to the acceptance

of ballots at any location beyond those statutorily prescribed.

¶62 The fairest interpretation of the phrase "to the

municipal clerk" means mailing or delivering the absentee ballot

to the municipal clerk at her office or, if designated under

Wis. Stat. § 6.855, an alternate site. "Properly applied, the

plain-meaning approach is not 'literalistic'; rather, the

ascertainment of meaning involves a 'process of analysis'

focused on deriving the fair meaning of the text itself." Brey,

400 Wis. 2d 417, ¶11 (quoting Kalal, 271 Wis. 2d 633, ¶¶46, 52).

Adopting a literalistic interpretation instead of applying the

fair meaning of "to the municipal clerk" would similarly subject

any "authorized representative" of the municipal clerk to the

same intrusions of accepting ballots wherever a voter may find

the municipal clerk's representative. Wis. Stat. § 5.02(10).

Interpreting 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. See Scalia & Garner, Reading Law, at 217 ("A preamble,

purpose clause, or recital is a permissible indicator of

meaning.").

¶63 Notwithstanding the detailed and unambiguous language

of Wis. Stat. §§ 6.84 and 6.855, WEC asks this court to conclude

the legislature "hid[] [an] elephant[] in [a] mousehole[.]" See

Whitman v. Amer. Trucking Ass'n, 531 U.S. 457, 468 (2001)

(citations omitted). Coined by Justice Antonin Scalia, this turn of phrase means the legislature "does not alter the 38 No. 2022AP91

fundamental details of a regulatory scheme in vague terms or

ancillary provisions[.]" Id.; see also Palm, 391 Wis. 2d 497,

¶¶53–56. WEC would have us believe, hiding within four words,

"to the municipal clerk," is an expansive conception of voting

methods never before recognized. We decline to read into the

statutes a monumentally different voting mechanism not specified

by the legislature. See E.P.A. v. EME Homer City Generation,

L.P., 572 U.S. 489, 528 (2014) (Scalia, J., dissenting) ("It

would be extraordinary for Congress, by use of the single word

'significantly,' to transmogrify a statute that assigns

responsibility on the basis of amounts of pollutants emitted

into a statute authorizing EPA to reduce interstate pollution in

the manner that it believes most efficient.").

¶64 WEC and DRW argue the drop box "elephant" is, in fact,

no elephant at all. WEC claims "the Commission did not create

[ballot] drop boxes. The March 2020 memorandum provided

guidance in response to clerks' inquiries about their use, and

there is testamentary evidence that drop boxes were used in Wisconsin before the August 2020 memorandum." Of course "there

is . . . evidence" drop boxes were used before the issuance of

Memo two because WEC issued Memo one in March, which comes

before August.

¶65 The record evidence WEC cited does not support its

argument that ballot drop boxes have been in common and

longstanding use in this state. First, WEC cites Memo one,

which says, "clerks have inquired about options for ensuring that the maximum number of ballots are returned to be counted 39 No. 2022AP91

for the April 7, 2020 election." This statement suggests a

state of uncertainty surrounding the legality of drop boxes,

rather than documenting their ostensibly extensive use.

¶66 Second, WEC cites a third memo prepared by WEC's

staff, responding to a recent study by the Legislative Audit

Bureau (LAB), a non-partisan institution. In this report, LAB

concluded WEC had overstepped its lawful authority by

authorizing ballot drop boxes.26 Citing no evidence, this third

memo proclaims "[t]he use of ballot drop boxes at the local

level in Wisconsin, and elsewhere in the country, predates the

Wisconsin Election Commission's . . . August 19, 2020,

memorandum on the topic[.]" For support, WEC noted, "no

Wisconsin court has foreclosed the idea of lawfully using

absentee ballot drop boxes," expressly referencing this very

case and adding, "[t]he case is ongoing and no resolution has

been reached at this time." For this third memo to be given any

weight would require us to hold a government agency can be sued

and then issue what amounts to a press release that it can cite as support for its interpretation of law.

26 Legislative Audit Bureau, Elections Administration (2021), https://legis.wisconsin.gov/lab/media/3288/21- 19full.pdf; see also Off. of the Special Couns., Second Interim Investigative Report on the Apparatus & Procedures of the Wisconsin Elections System 78 (Mar. 1, 2022), https://legis.wisconsin.gov/assembly/22/brandtjen/media/1552/osc -second-interim-report.pdf ("In Wisconsin, election officials' unprecedented use of absentee ballot drop boxes facially violated Wisconsin law.").

40 No. 2022AP91

¶67 Third, WEC cites its own website, which has a page

that is not significantly different than the third memo. The

page bears the heading "[w]hy did WEC allow clerks to use drop

boxes for absentee ballots?" WEC offers the following

conclusory statement: "some clerks have used them prior to

2020" but supplies no evidence.

¶68 Lastly, WEC (along with DRW) cites an affidavit from

Administrator Wolfe as evidence of the supposedly "extensive

history" of ballot drop boxes in Wisconsin. The affidavit

merely says, "[t]he use of absentee ballot drop boxes in the

United States predates the [COVID-19] pandemic." Again,

Administrator Wolfe offers no evidence to support this

statement. Even if the assertions regarding the historical use

of ballot boxes were true, they are irrelevant. Longstanding

noncompliance with the law does not cure its illegality.

¶69 Perhaps realizing "delivery in person[] to the

municipal clerk" does not mean nor has it been historically

understood to mean delivery to an unattended ballot drop box, the defendants analogize these boxes to a mailbox. Of course,

the law expressly allows a voter to place an absentee ballot in

a mailbox. Wis. Stat. § 6.87(4)(b)1. ("shall be mailed by the

elector . . . ."). Ballot drop boxes, however, are not

mailboxes.

¶70 The ordinary meaning of "mailed by the elector" in

Wis. Stat. § 6.87(4)(b)1. contemplates involvement by a third-

party mail carrier. The very next sentence of the statute declares, "[i]f the envelope is mailed from a location outside 41 No. 2022AP91

the United States, the elector shall affix sufficient postage

unless the ballot qualifies for delivery free of postage under

federal law." § 6.87(4)(b)1. To affix postage to an absentee

ballot placed in a ballot drop box would be a waste of a

perfectly good stamp. Similarly, § 6.87(3)(a) directs, in

relevant part, "the municipal clerk shall mail the absentee

ballot to the elector's residence . . . . If the ballot is

mailed, and the ballot qualifies for mailing free of postage

under federal free postage laws, the clerk shall affix the

appropriate legend required by U.S. postal regulation.

Otherwise, the clerk shall pay the postage required[.]" In

common parlance, "mail" may encompass delivery services by

private businesses such as FedEx or UPS, in addition to the

United States Postal Service.27

¶71 If there were any lingering doubt about the difference

between drop boxes and mailing, drop boxes trigger the very

concerns the legislature expressly seeks to avoid. "[V]oting by

absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature

finds that the privilege of voting by absentee ballot must be

carefully regulated to prevent the potential for fraud or

abuse[.]" Wis. Stat. § 6.84(1). As the Wisconsin voters argue,

"a drop box contains only ballots, and lots of them in one place

27The plain meaning of "mail" supports this conclusion. See Mail, The American Heritage Dictionary of the English Language 1083 (3d ed. 1992) ("To send by mail;" "Materials, such as letters and packages, handled in a postal system.").

42 No. 2022AP91

at the same time, making it a prime target for would-be

tamperers, whereas mailboxes may or may not contain ballots at

any given time." While the legislature has recognized absentee

voting has many benefits for voters, the legislature has also

enacted safeguards designed to minimize the possibility of

fraud. "Voting fraud is a serious problem in U.S.

elections[,] . . . and it is facilitated by absentee voting. In

this respect absentee voting is to voting in person as a take-

home exam is to a proctored one." Griffin v. Roupas, 385

F.3d 1128, 1130–31 (7th Cir. 2004) (internal citations omitted).

¶72 We conclude WEC's staff erred by authorizing a voting

mechanism not authorized by law. The memos created a ballot

drop box scheme entirely absent from Wisconsin's election code.

The legislature's "carefully regulated" procedures for absentee

voting do not permit voting via ballot drop boxes.

3. "[I]n Person" Absentee Voting Requires the Voter to Personally Deliver the Ballot to the Municipal Clerk ¶73 WEC's staff also erred in Memo one by stating "[a] family member or another person may . . . return the ballot on

behalf of the voter," i.e., an agent of the voter may place the

voter's absentee ballot in a drop box. The law does not permit

this. Wisconsin Stat. § 6.87(4)(b)1. states, in relevant part,

"[t]he envelope shall be mailed by the elector, or delivered in

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

(Emphasis added.) The key phrase is "in person" and it must be

assigned its natural meaning.

43 No. 2022AP91

¶74 "[I]n person" denotes "bodily presence" and the

concept of doing something personally. in person, The Oxford

English Dictionary 598 (2d. ed. 1989) (defining "in person" as

"with or by one's own action or bodily presence; personally;

oneself"); Person, Webster's Third New International Dictionary

1686 (2002) ("bodily presence —— usu. used in the phrase in

person"); in person, The Random House Dictionary of the English

Language 1445 (2d ed. 1987) ("in one's own bodily presence;

personally; Applicants are requested to apply in person.").

¶75 As used throughout Wisconsin's election code, the

phrase "in person" refers to a voter acting directly, not

through an agent. See 5 Wis. Att'y Gen. 591, 592 (1916) ("The

statute says: 'Application for such ballot shall be made in

person.' (Sec. 11.56.) The ordinary meaning of the phrase 'in

person' is that the request must come directly from the elector

who was corporally present before the clerk."). For example,

Wis. Stat. § 6.86(1)(a) states, in relevant part:

(a) Any elector of a municipality who is registered to vote whenever required and who qualifies under ss. 6.20 and 6.85 as an absent elector may make written application to the municipal clerk of that municipality for an official ballot by one of the following methods:

1. By mail.

2. In person at the office of the municipal clerk or at an alternate site under s. 6.855, if applicable.

. . . .

4. By agent as provided in sub. (3).

44 No. 2022AP91

(Emphasis added.) Section 6.86(1)(a) unequivocally

distinguishes between "in person" and "by agent." Subsection

(3) then begins by stating, "[a]ny elector who is registered and

who is hospitalized, may apply for and obtain an official ballot

by agent." § 6.86(3)(a)1. (Emphasis added.) It then describes

the process of receiving a ballot by agent. The legislature

obviously knows how to authorize a voter to act through an

agent; it used such language in § 6.86 but not Wis. Stat.

§ 6.87. See Yakich, 400 Wis. 2d 549, ¶24 (quoting Milwaukee J.

Sentinel, 341 Wis. 2d 607, ¶¶36–37).

¶76 Other election statutes also explicitly describe an

agency relationship. For example, the phrase "municipal clerk"

includes "authorized representatives." Wis. Stat. § 5.02(10)

("'Municipal clerk' means 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."); see also § 5.02(2) ("'County clerk' includes the executive director of the county board of election commissioners

and their authorized representatives.").

¶77 Unlike "municipal clerk," the definition of "elector"

does not encompass an agency relationship. Wis. Stat. § 6.02(1)

("Every U.S. citizen age 18 or older who has resided in an

election district or ward for 28 consecutive days before any

election where the citizen offers to vote is an eligible

elector."); see also Wis. Stat. § 6.85(1) ("An absent elector is any otherwise qualified elector who for any reason is unable or 45 No. 2022AP91

unwilling to appear at the polling place in his or her ward or

election district."); Wis. Stat. § 5.02(12n) ("'Overseas

elector' means a U.S. citizen who is residing outside of the

United States, who is not disqualified from voting under s.

6.03, who has attained or will attain the age of 18 by the date

of an election at which the citizen proposes to vote, who was

last domiciled in this state or whose parent was last domiciled

in this state immediately prior to the parent's departure from

the United States, and who is not registered to vote or voting

in any other state, territory, or possession.").

¶78 WEC does not address this dispositive statutory

distinction between "in person" and "by agent," instead

primarily emphasizing the presence of the passive voice in Wis.

Stat. § 6.87(4)(b)1.: "The envelope shall be . . . delivered in

person[.]" In support of its argument, WEC quotes a Seventh

Circuit decision as stating: "a legislature's use of the

passive voice sometimes reflects indifference to the actor."

Rubin v. Islamic Republic of Iran, 830 F.3d 470, 479 (7th Cir. 2016), aff’d, 138 S. Ct. 816 (2018). The paragraph from which

WEC selectively seized that sentence defeats WEC's position:

It's true that a legislature's use of the passive voice sometimes reflects indifference to the actor. See Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) ("The passive voice focuses on an event that occurs without respect to a specific actor. . . ."). But attributing indifference to Congress in this instance would be inconsistent with the FSIA's statutory declaration of purpose, which explicitly invokes the international law understanding of foreign sovereign immunity: "Under international law, states are not immune from the

46 No. 2022AP91

jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities." 28 U.S.C. § 1602[.] Id. (emphasis added). Rubin suggests the statement of

legislative policy in Wis. Stat. § 6.84 is a better indicator of

statutory meaning than the passive voice used in § 6.87(4)(b)1.

¶79 A case cited by DRW is likewise unpersuasive because

it pre-dates Wis. Stat. § 6.84. In Sommerfeld v. Board of Canvassers of the City of St. Francis, 18 absentee "voters did

not return . . . absentee ballots in the envelopes by mail, or

deliver[] the same in person, as provided by [a predecessor

statute], but caused the same to be returned to the Clerk of the

City of St. Francis by a third person, who returned the sealed

envelopes to the said Clerk." 269 Wis. 299, 301, 69 N.W.2d 235

(1955). A majority of this court concluded:

If our statute is construed to mean that the voter shall himself mail the ballot or personally deliver it to the clerk, then the statute would defeat itself in the case of those who are sick or physically disabled. They would be unable to mail ballots except through an agent. Having made provision that these unfortunate people can vote, we cannot believe that the legislature meant to disenfranchise them by providing a condition that they could not possibly perform. Id. at 303. To the extent Sommerfeld has any relevance, it too

undercuts the defendants' arguments.

¶80 First, the legislature superseded Sommerfeld's

conclusion in 1986 by adopting Wis. Stat. § 6.84. 1985 Wis. Act

304, § 68n. Section 6.84(2) provides that "with respect to matters relating to the absentee ballot process," several

47 No. 2022AP91

statutes, including § 6.87(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."

The adoption of § 6.84 renders Sommerfeld a nullity. The

majority in that case relied on a different statutory provision:

"Section 5.011 provides that Title II shall be construed so as

to give effect to the will of the electors, if that can be

ascertained, notwithstanding informality or failure to comply

with some of its provisions."28 Sommerfeld, 269 Wis. at 302.

¶81 The Sommerfeld majority deemed the in person delivery

requirement "directory only," so it reasoned "a delivery of

ballots by agent is a substantial compliance" permitting the

counting of the ballots. Id. at 304. In election law, "[t]he

difference between mandatory and directory provisions of

election statutes lies in the consequence of nonobservance: an

act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while

improper, may nevertheless be valid." Id. at 303 (quoting 29

C.J.S. § 214). Much of the majority opinion in Sommerfeld is

spent explaining why the majority deemed the relevant statute

merely directory and describing the "complaint" as "purely

See Wis. Stat. § 5.01(1) ("Except 28 as otherwise provided, chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions.").

48 No. 2022AP91

technical." Id. at 304. This entire discussion of how to

classify a statute——mandatory or directory——seemed to rest on

the assumption that the statute was not followed; if the statute

were followed, the majority would not have needed to declare the

law merely directory.

¶82 Three justices dissented, offering a statutory

interpretation consistent with our reading of Wis. Stat.

§ 6.87(4)(b)1. The dissent defined "in person" as "[b]y one's

self; with bodily presence." Id. at 304 (Gehl, J., dissenting)

(quoting in person, Webster's New International Dictionary (2d

ed. 1934)). It then noted, "[h]ad the legislature intended that

the ballot might be delivered by a representative, it might

easily have so declared." Id. "Nothing is found in the

statutes concerning absentee voting that indicates legislative

disposition to permit the absentee ballot to be delivered by

agent." Id. at 305.

¶83 Reading the election statutes in context and as a

whole, we conclude an absentee ballot delivered in person under Wis. Stat. § 6.87(4)(b)1. must be delivered personally by the

voter. Unlike Wis. Stat. § 6.86, which allows the receipt of an

absentee ballot through an agent under particular circumstances

and subject to detailed procedures, no similar language

authorizes voters not meeting the exceptions outlined under

§ 6.86 to cast a ballot through delivery by an agent.

IV. FEDERAL PREEMPTION

¶84 DRW argues federal law preempts the circuit court's interpretation of Wisconsin statutes. It cites 52 49 No. 2022AP91

U.S.C. § 10508 (2018), which provides, "[a]ny voter who requires

assistance to vote by reason of blindness, disability, or

inability to read or write may be given assistance by a person

of the voter's choice[.]" DRW claims "[t]he assistance

addressed [in this statute] . . . extends to returning that

ballot so it may be counted." DRW's discussion of § 10508 is

limited to one paragraph in its opening brief. It cites nothing

more than a single source of legislative history for support.

DRW selectively quotes from this report, omitting the first

sentence of the paragraph on which it relies, which states:

"STATE PROVISIONS WOULD BE PREEMPTED ONLY TO THE EXTENT THAT

THEY UNDULY BURDEN THE RIGHT RECOGNIZED IN THIS SECTION, WITH

THAT DETERMINATION BEING A PRACTICAL ONE DEPENDENT UPON THE

FACTS." See S. Rep. No. 97-417 (1982), 97th Cong., 2d Sess. at

63. Additionally, DRW does not address Wis. Stat. § 6.87(5),

which states:

If the absent elector declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot, the elector may select any individual, except the elector's employer or an agent of that employer or an officer or agent of a labor organization which represents the elector, to assist in marking the ballot, and the assistant shall then sign his or her name to a certification on the back of the ballot, as provided under s. 5.55. The language of this subsection is similar to § 10508.

¶85 DRW also cites the Americans with Disabilities Act

(ADA), but, similarly, its discussion of the ADA is limited to a single paragraph in its opening brief. DRW does not cite any

50 No. 2022AP91

binding cases supporting its preemption argument, nor does DRW

discuss preemption in its reply brief, even though the Wisconsin

voters complained the argument was underdeveloped.

¶86 As far as we can discern, DRW's argument largely rests

on the practical impact of the circuit court's declarations on

disabled voters who may be physically unable to vote if someone

cannot place an absentee ballot in the mail on a voter's behalf.

We agree with the Wisconsin voters that DRW's argument is

underdeveloped. See State v. Gracia, 2013 WI 15, ¶28 n.13, 345

Wis. 2d 488, 826 N.W.2d 87 (explaining we do not have to address

underdeveloped arguments (cited source omitted)); see also In re

Disciplinary Proc. Against Johns, 2014 WI 32, ¶45, 353

Wis. 2d 746, 847 N.W.2d 179 (per curiam) ("The OLR ignores the

topic in its reply brief. . . . We take this lack of reply by

the OLR as a concession[.]" (cited source omitted)). Because

"[p]reemption . . . is disfavored 'in the absence of persuasive

reasons,'" the shallowness of the argument undermines it. See

Town of Delafield, 392 Wis. 2d 427, ¶6 (quoting Chi. & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981)).

Whatever accommodations federal law requires, Wis. Stat.

§ 6.87(5) seems to permit them. See also Wis. Stat.

§ 6.87(4)(b)1. ("The elector may receive assistance under sub.

(5)."). We address the argument no further.

51 No. 2022AP91

V. CONCLUSION29

¶87 Only the legislature may permit absentee voting via

ballot drop boxes. WEC cannot. Ballot drop boxes appear

nowhere in the detailed statutory system for absentee voting.

WEC's authorization of ballot drop boxes was unlawful, and we

therefore affirm the circuit court's declarations and permanent

injunction of WEC's erroneous interpretations of law except to

the extent its remedies required absentee voters to personally

mail their ballots, an issue we do not decide at this time, and

we decline to decide at this time whether the memos are also

invalid as unpromulgated administrative rules.

By the Court.——The judgment and order of the Circuit Court

is affirmed.

29 "Finally, and most importantly, the dissent's resort to [ad hominem attacks on the majority] is a poor substitute for legal argument. Such personal aspersions have no place in a judicial opinion. . . . [It] do[es] real damage to the public's perception of this court's work. We must aspire to be better models of respectful dialogue to preserve the public's confidence on which this court's legitimacy relies." Becker v. Dane County, 2022 WI __, ¶44, __ Wis. 2d __, __ N.W.2d __ (Karofsky, J.). Although Justice Jill J. Karofsky recently complained about the tone of a dissent she deemed too harsh (joined by Justice Hagedorn, who does not join this footnote), she nevertheless joins a dissent that accuses her colleagues of "blithely and erroneously seek[ing] to sow distrust in the administration of our elections and through its faulty analysis erect[ing] yet another barrier for voters[.]" Dissent, ¶205. The dissent continues, "[s]uch a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity. . . . [W]ithout justification [the majority] fans the flames of electoral doubt that threaten our democracy." Id., ¶¶206, 208. Political talking points are no substitute for legal analysis. 52 No. 2022AP91

53 No. 2022AP991.pdr

¶88 PATIENCE DRAKE ROGGENSACK, J. (concurring). The

majority opinion concludes that the Wisconsin Elections

Commission's (WEC) documents (hereinafter memos) are invalid

because ballot drop boxes are not legal in Wisconsin and because

absentee ballots must be personally delivered by the voter to

the municipal clerk at the clerk's office. I agree, and join

the majority opinion. I write further to explain that, under

Wisconsin statutes, it is the elector who shall mail the

absentee ballot to the municipal clerk. Accordingly, I

respectfully concur.

I. BACKGROUND1

¶89 During the COVID-19 pandemic, citizens of Wisconsin

were advised to avoid large crowds and to socially distance from

each other. This advice changed the way that many citizens

participated in personal tasks. For example, during the 2020

Spring election, many voters opted to vote absentee and absentee

voting increased.

¶90 The WEC issued multiple memos, which were directed at municipal clerks and election officials. Relevant to our

discussion, the first memo stated, among other things, that "[a]

family member or another person may . . . return the ballot on

behalf of a voter." The "return" that was described referred to

returns to drop boxes. Both memos focused on drop boxes,

describing their appearance, their locations and that they may

be used by voters "without having to mail [ballots] back." Drop

1 The majority opinion capably sets out the background underlying this controversy. Therefore, I describe here only that which is necessary to understand my writing below.

1 No. 2022AP991.pdr

boxes were suggested as an alternative to mailing ballots for

"voters [] motivated by lack of trust in the postal process,

fear that their ballot could be tampered with, or concern that

their information will be exposed. Voters may also be concerned

about ensuring that their ballot is returned in time to be

counted."2

¶91 Based on the WEC memos, Richard Teigen and Richard

Thom (collectively Teigen), filed suit seeking, in part,

declaratory judgment under Wis. Stat. § 806.04, which provides

that any person "whose rights, status or other legal relations

are affected by a statute . . . may have determined any question

of construction or validity arising under

the . . . statute . . . and obtain a declaration of rights,

status or other legal relations thereunder." § 806.04(2).

Teigen asserted that the WEC's memos violated the provisions of

Wis. Stat. § 6.87(4)(b)1. and Wis. Stat. § 6.855(1); that his

voting rights were affected by these statutes; and Teigen sought

to have a court declare the correct construction of § 6.87(4)(b)1.

¶92 After intervention by the Democratic Senatorial

Campaign Committee (DSCC), as well as Disability Rights

Wisconsin, Wisconsin Faith Voices for Justice, and the League of

Women Voters of Wisconsin (collectively DRW), Teigen moved for

summary judgment, setting out what Teigen alleged was the proper

construction of Wis. Stat. § 6.87(4)(b)1. The circuit court

held a hearing in which it orally granted Teigen's motion in

2 WEC memo August 19, 2020.

2 No. 2022AP991.pdr

full. The court explained that, unlike voting in person, voting

by absentee ballot is "a privilege exercised wholly outside the

traditional safeguards of the polling place." It further

concluded that the legislature required that absentee voting

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 the absent elector to vote for or against a

candidate, or to cast a particular vote in a referendum or other

similar abuses."

¶93 In regard to whom may return an absentee ballot, the

circuit court explained that "[it did not] see any language in

the statute that provides a basis for having agents, somebody

other than the elector, actually deliver the ballot." Further,

in quoting the portion of the memo that purported to allow

family members or other persons to return a ballot on behalf of

the voter, the court concluded that it did not "see anything in

the statute that says that. In reading the statute, the statute is clear. It's not ambiguous. It's not necessary to go to

outside sources to determine how . . . return of the ballot is

addressed." In its judgment, the court was satisfied that the

"portions of the [memo] that address that other people may bring

the ballot in, it doesn't have to be the elector, are contrary

to the statute."

¶94 The court declared that the WEC's memos were

inconsistent with state statutes and specifically concluded that an elector must personally mail or deliver his or her own

3 No. 2022AP991.pdr

absentee ballot, except when otherwise specifically authorized

by law. The defendants appealed this ruling to the court of

appeals. Teigen filed a petition to bypass the court of

II. DISCUSSION

A. Standard of Review

¶95 I review Teigen's claim for declaratory relief under

Wis. Stat. § 806.04 and I apply Wis. Stat. § 6.87(4)(b)1. in

regard to mailing absentee ballots. Therefore, I interpret the

statutes at issue. We interpret and apply statutes as questions

of law subject to our independent determination, while

benefitting from the decision of the circuit court. Townsend v.

ChartSwap, LLC, 2021 WI 86, ¶11, 399 Wis. 2d 599, 967 N.W.2d 21.

B. Statutory Interpretation

¶96 "[T]he purpose of statutory interpretation is to

determine what the statute means . . . ." State ex rel. Kalal

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,

681 N.W.2d 110. Judicial deference to the policy choices enacted into law by the legislature requires that statutory

interpretation focus primarily on the language of the statute.

We assume that the legislature's intent is expressed in the

statutory language. Id. Therefore, statutory interpretation

begins with the words that the legislature chose. If the

meanings of the words are plain and unambiguous, the court's

inquiry ends and there is no need to consult extrinsic sources

of interpretation, such as legislative history. Id., ¶¶45, 46.

4 No. 2022AP991.pdr

¶97 In addition to examining the plain words of the text,

context is part of a plain meaning interpretation. "So, too, is

the structure of the statute in which the operative language

appears." Id., ¶46. Therefore, rather than in isolation,

"statutory language is interpreted in the context in which it is

used; . . . in relation to the language of surrounding or

closely-related statutes; . . . to avoid absurd or unreasonable

results; [and] read, where possible to give effect to every

word, in order to avoid surplusage." Id.

¶98 It is consistent with the plain-meaning rule "to

consider the intrinsic context in which statutory language is

used; a plain-meaning interpretation cannot contravene a

textually or contextually manifest statutory purpose." Id.,

¶49. However, in "construing or interpreting a statute the

court is not at liberty to disregard the plain, clear words of

[a] statute." Id., ¶46. Nor are courts permitted to read words

into a statute that the legislature did not insert itself.

Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316.

1. Uniform Declaratory Judgment Act

¶99 The Uniform Declaratory Judgment Act is contained in

Wis. Stat. § 806.04, which provides:

(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed . . . . The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of

5 No. 2022AP991.pdr

right shall be determined in accordance with s. 808.03(1).

(2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. ¶100 In order to obtain declaratory judgment, there must be

a justiciable controversy. See Loy v. Bunderson, 107 Wis. 2d

400, 410, 320 N.W.2d 175 (1982). A controversy is justiciable

when the following factors are present:

(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.

(2) The controversy must be between persons whose interests are adverse.

(3) The party seeking declaratory relief must have a legal interest in the controversy——that is to say, a legally protectible interest.

(4) The issue involved in the controversy must be ripe for judicial determination. Putnam v. Time Warner Cable of Se. Wis., Ltd. P'ship, 2002 WI

108, ¶41, 255 Wis. 2d 447, 649 N.W.2d 626 (citing Loy, 107

Wis. 2d at 410). If all four factors are met, the controversy

is justiciable and a court may entertain an action for

declaratory judgment. Miller Brands-Milwaukee, Inc. v. Case,

162 Wis. 2d 684, 694, 470 N.W.2d 290 (1991).

¶101 Here, I conclude that all four factors are met. First, Teigen's suit is a controversy that opposes the WEC's

6 No. 2022AP991.pdr

memos and intervenors' positions, each of whom have an interest

in contesting Teigen's position. Second, Teigen and the WEC

have adverse interests regarding the legality of the current

memos and the WEC's authority to continue issuing similar memos

in the future. Third, as the majority concludes, Teigen has a

legally protectable interest in making sure that his vote is not

"pollute[d]" and that proper election procedures are followed.3

And finally, Teigen's suit against the WEC is ripe for judicial

determination. The circuit court decided that the elector was

required to personally mail his or her own completed ballot to

the clerk's office.4 Affirming the circuit court's decision is

expressed in several briefs, as is the need for uniform

guidance.5 The WEC has issued memos that encourage drop boxes

over mail-in ballot returns, and municipal clerks and election

officials have acted on those memos. Teigen is a Wisconsin

voter who is affected by the WEC's memos. Because the

controversy is justiciable, I proceed to the merits of Teigen's

statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over

mailing completed ballots and are inconsistent with Wis. Stat.

§ 6.87(4)(b)1. Therefore, they are contrary to law.

2. Wisconsin Stat. § 6.87(4)(b)1.

3 Majority op., ¶25. 4 Teigen v. Wis. Elections Comm'n, No. 2022AP91, Order at 2 (Jan. 20. 2022). 5 See e.g., Briefs: League of Wis. Municipalities, Republican National Committee and Honest Elections Project.

7 No. 2022AP991.pdr

¶102 As a foundational matter, we construe closely related

statutes in the context in which the legislature placed them.

City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24, 302

Wis. 2d 599, 734 N.W.2d 428. "[W]e examine the language of

surrounding or closely related statutes in order to interpret a

statute in the context in which it is used." Id. Accordingly,

we do not interpret Wis. Stat. § 6.87(4)(b)1. in isolation.

Rather, we interpret it with the assistance of closely related

statutes.

¶103 As we begin, it is important to note that the

legislature has supplied the lens through which absentee voting

statutes are to be viewed. Wisconsin Stat. § 6.84 provides:

[V]oting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place. The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses. § 6.84. Furthermore, regarding interpretation of the absentee

voting statutes, the legislature has mandated that:

[W]ith 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).

8 No. 2022AP991.pdr

¶104 We have construed statutes relating to voting

procedures and have strictly enforced them. In State ex. rel.

Stearns, we concluded that the Secretary of State correctly

prohibited a candidate who turned in his nomination papers two

minutes after the statutory deadline from appearing on the

ballot. State ex. rel. Stearns v. Zimmerman, 257 Wis. 443, 444-

46, 43 N.W.2d 681 (1950). We reasoned that, by setting the 5

p.m. deadline within the statute, "no fact or situation

appear[ed] except those contemplated and provided for by the

legislature." Id. at 446. However, if we had decided to

enlarge the time which the legislature has designated for the

filing of nomination papers, we would be "amend[ing] the

statute, not [construing] it." Id.

¶105 Again, in State ex. rel. Ahlgrimm, we concluded that a

candidate who filed his nomination papers in the wrong office

was barred from appearing on the ballot by the terms of the

statute. State ex rel. Ahlgrimm v. State Elections Bd., 82

Wis. 2d 585, 595-96, 263 N.W.2d 152 (1978). The candidate argued that, because the statute that outlined the place of

filing nomination papers did not specify that noncompliance was

fatal, we should have concluded that its prescriptions were

directory rather than mandatory. Id. at 593. We concluded that

this argument was "without merit" and, as with the time for

filing, the statute's instruction governing the place of filing

nomination papers was mandatory. Id. at 595.

¶106 Turning to the statute at issue, Wis. Stat. § 6.87(4)(b)1., it determines required procedures for absentee

9 No. 2022AP991.pdr

voting when specially identified circumstances do not exist.6

Section 6.87(4)(b)1. provides in regard to mailing that absentee

ballots "shall be mailed by the elector . . . to the municipal

clerk." Electors are statutorily defined as "[e]very U.S.

citizen age 18 or older who has resided in an election district

or ward for 28 consecutive days before any election where the

citizen offers to vote[.]" Wis. Stat. § 6.02. Accordingly,

when § 6.87(4)(b)1. says "the elector[,]" it means, the voter.

¶107 The plain statutory text, provides that if a ballot is

returned by mail, it is the "elector" who does the mailing.

Wisconsin Stat. § 6.87(4)(b)(1). requires that absentee ballots

"shall be mailed by the elector . . . to the municipal clerk."

The legislature could have said "may be mailed by the elector"

if it were not mandatory that the elector do the mailing. As

the circuit court correctly concluded, "the statute is clear.

It's not ambiguous. It's not necessary to go to outside sources

to determine how . . . return of the ballot is addressed."

Indeed, DRW concedes this point in its briefing. ¶108 DRW argues that, in spite of the unambiguous text, the

statutes allow an agent of an elector to mail the absentee

ballot on an elector's behalf. This argument is based on a 1955

case, Sommerfeld v. Bd. of Canvassers of the City of St.

Francis. In Sommerfeld, we concluded that "in order to fulfill

the spirit of our election laws the last sentence of section

11.59 [which required delivery by the elector] is directory

only, and that a delivery of ballots by agent is a substantial

6 See ¶¶109-111 below.

10 No. 2022AP991.pdr

compliance therewith." Sommerfeld v. Bd. of Canvassers of the

City of St. Francis, 269 Wis. 299, 304, 69 N.W.2d 235 (1955).

However, as the majority points out, Sommerfeld pre-dates Wis.

Stat. § 6.84.7 Its conclusion, that absentee voting procedures

were directory, contradicts § 6.84, which requires that absentee

voting procedures are "mandatory[,]" i.e., they must be

followed. Accordingly, to the extent that it described voting

procedures as directory and substantial compliance being

sufficient to satisfy § 6.84, Sommerfeld is no longer good law.8

¶109 Without Sommerfeld, DRW's argument falls apart. The

statutory definition of "elector" does not include agents;

rather, it defines a person who is eligible to vote. Wis. Stat.

§ 6.02. Wisconsin Stat. § 6.87(4)(b)1. requires that absentee

ballots be mailed by the elector; who, as I note, is statutorily

defined in § 6.02(1). In accord with the circuit court, I

conclude that the plain meaning of text is clear and

unambiguous; § 6.87(4)(b)1. does not permit an agent to mail an

absentee ballot for a voter. ¶110 That agents are not permitted by the terms of Wis.

Stat. § 6.87(4)(b)1. to mail absentee ballots is further

supported by comparing the language in § 6.87(4)(b)1. with other

statutes in which the legislature has explicitly allowed an

agent or non-elector to participate in the absentee voting

process. Those statutes, in keeping with the policy in Wis.

7 Majority op., ¶80. 8 Id.

11 No. 2022AP991.pdr

Stat. § 6.84(1), have formalistic, regulated conditions

attached.

¶111 For example, when a voter is a member of a sequestered

jury, the legislature has provided very detailed instructions

about voting and returning the ballot where a non-voter

participates. Wisconsin Stat. § 6.86(1)(b) provides in relevant

If the application indicates that the reason for requesting an absentee ballot is that the elector is a sequestered juror, the application shall be received no later than 5 p.m. on election day. If the application is received after 5 p.m. on the Friday immediately preceding the election, the municipal clerk or the clerk's agent shall immediately take the ballot to the court in which the elector is serving as a juror and deposit it with the judge. The judge shall recess court, as soon as convenient, and give the elector the ballot. The judge shall then witness the voting procedure as provided in s. 6.87 and shall deliver the ballot to the clerk or agent of the clerk who shall deliver it to the polling place or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal clerk as required in s. 6.88. § 6.86(1)(b). Simply stated, voter assistance in voting and in

return of the ballot is clearly set out in § 6.86(1)(b). When

an agent is employed, the agent is identified.

¶112 Another example of the legislature's recognition of

agents involved in voting or ballot return is found in Wis.

Stat. § 6.86(3)(a) for hospitalized electors. It provides:

1. Any elector who is registered and who is hospitalized, may apply for and obtain an official ballot by agent. . . .

2. If a hospitalized elector is not registered, the elector may register by agent under this

12 No. 2022AP991.pdr

subdivision at the same time that the elector applies for an official ballot by agent under subd. 1. . . . . § 6.86(3)(a)1. and 2. Once again, when an agent is permitted to

be involved in absentee voting, the legislature has clearly

defined the factual circumstances that permit it, has identified

who may function as an agent and has specified a procedure to

follow.

¶113 Wisconsin Stat. § 6.87(5) also permits the use of an

agent when the elector is disabled. It provides:

If the absent elector declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot, the elector may select any individual, except the elector's employer or an agent of that employer or an officer or agent of a labor organization which represents the elector, to assist in marking the ballot . . . . Once again, when the legislature decided that use of an agent in

voting was permissible, it specified the circumstances under

which an agent could be employed and defined criteria for

performing as an agent in regard to absentee ballots. I do not

review the entirety of the statutes that provide for the use of an agent in voting because no party has raised them.

¶114 However, those examples cited above and others I do

not cite differ significantly from Wis. Stat. § 6.87(4)(b)1.

because § 6.87(4)(b)1. carries none of the factual criteria for

permitting the use of an agent and none of the factual

safeguards for who may function as an agent. Accordingly,

because the text and context of § 6.87(4)(b)1. instruct me to do

so, I conclude that no one but the elector may mail an absentee ballot unless the elector and his or her designated agent fit

13 No. 2022AP991.pdr

within a different statutory circumstance that explicitly

permits it.

III. CONCLUSION

¶115 The majority opinion concludes that the WEC's memos

are invalid because ballot drop boxes are not legal under

Wisconsin statutes and because an absentee ballot must be

personally delivered by the voter to the municipal clerk at the

clerk's office. I agree, and I join the majority opinion. I

have written further to explain that, under Wisconsin statutes,

it is the elector who shall mail the absentee ballot to the

municipal clerk. Accordingly, I respectfully concur.

14 No. 2022AP91.rgb

¶116 REBECCA GRASSL BRADLEY, J. (concurring).

There should be a third Branch which . . . you may call a Governor whom I would invest . . . the whole Executive Power, after divesting it of most of those Badges of Domination called prerogatives. John Adams, Thoughts on Government (1776), in 11 The State

Records of North Carolina 325 (1895).

¶117 This court's binding precedent allows WEC——a creature

of the legislature authorized only to implement Wisconsin's

election laws——to make law by executive fiat, thereby granting

it a potent "Badge[] of Domination[.]" In Trump v. Biden, a

majority of this court gave WEC's "advice" the force of law.

2020 WI 91, ¶¶31–32, 394 Wis. 2d 629, 951 N.W.2d 568. It

declared this "advice" is "the rulebook" for elections——never

mind what the statutes enacted by the legislature say. See id.

(emphasis added).

¶118 The Trump majority's conversion of WEC's mere "advice"

into "the rulebook" flouts the rule of law. Consistent with

constitutional principles, the legislature explicitly declared

that "[a] guidance document does not have the force of law." Wis. Stat. § 227.112(3) (2019–20).1 Despite the constitutional

vesting of lawmaking power in the legislature,2 Trump requires us

to uphold documents produced by executive-branch employees,

notwithstanding their inconsistency with the plain meaning of

the statutes WEC employees purportedly interpreted. Trump, 394

Wis. 2d 629, ¶83 (Roggensack, C.J., dissenting); see also Tetra

All subsequent references to the Wisconsin Statutes are to 1

the 2019–20 version. 2 Wis. Const. art. IV, § 1. 1 No. 2022AP91.rgb

Tech EC, Inc. v. Wis. Dep't of Revenue, 2018 WI 75, ¶3, 382

Wis. 2d 496, 914 N.W.2d 21 (lead op.) (rejecting the "practice

of deferring to administrative agencies' conclusions of law").

Even properly promulgated administrative rules do not have this

kind of weight; in the hierarchy of laws, rules fall beneath

statutes (if rules may even be called law). I would overrule

Trump, but it remains binding precedent under which the memos

have the force of law. Because a majority of this court accords

them this effect, they must be rules. Because they were not

promulgated according to statutorily prescribed procedures, they

are invalid for this additional reason.

¶119 This court's decision in Trump exists in tension with

Service Employees International Union, Local 1 v. Vos (SEIU),

2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority

op.). SEIU struck down statutes prescribing pre-issuance

procedures for guidance documents as facially unconstitutional.

Id., ¶88. We described guidance documents as "nothing but the

written manifestations of the executive branch's thought processes[.]" Id., ¶122. Under the separation of powers, we

denied the legislature a role in policing the executive's

thoughts or preventing the executive from sharing its

interpretations of law with the public. Id., ¶96 (explaining

"[h]e who is to execute the laws must first judge for himself of

their meaning" (quoting Alexander Hamilton, Letters of

Pacificus No. 1 (June 29, 1793), reprinted in 4 The Works of

Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904) (modification in the original)).

2 No. 2022AP91.rgb

¶120 Because this court's later decision in Trump gave mere

guidance documents the force of law, the legislature necessarily

has an interest in regulating them to ensure the executive

branch enforces the laws as written. Additionally, the

legislature has an interest in the courts upholding the laws the

legislature enacts, not elevating guidance written by executive

branch employees above the law.

¶121 This court's decision in Trump gave WEC the power to

materially alter how elections in this state are conducted——

without a single procedural check. Trump should be overruled,

but if the court continues to hold the memos need not be

promulgated as administrative rules, they should at least be

subject to the statutory procedures we struck down in SEIU. As

the law stands, WEC's staff have absolute prerogative power.

The constitution does not permit such corruption of the

carefully calibrated powers among the branches of government.

I. The Definition of "Rule"

¶122 Wisconsin Stat. § 227.01(13) states, in relevant part:

"Rule" means a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. Under this definition, a rule must meet five elements: "(1) a

regulation, standard, statement of policy or general order;

(2) of general application; (3) having the [force] of law;

(4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency as

3 No. 2022AP91.rgb

to govern the interpretation or procedure of such agency."3 Wis.

Legislature v. Palm, 2020 WI 42, ¶22, 391 Wis. 2d 497, 942

N.W.2d 900 (quoting Citizens for Sensible Zoning, Inc. v. Dep't

of Nat. Res., 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979)).

¶123 In this case, no one has argued the memos are not

"statements of policy," of "general application," issued by the

WEC to "interpret" statutes "enforced or administrated" by the

WEC. The parties dispute only the third element, whether the

memos have the "force of law."

II. The Majority's Error in Trump

¶124 Although the memos should not have the force of law,

the majority erroneously concluded otherwise in Trump. In that

case, Donald Trump, the incumbent President, and his campaign

appealed the results of a recount in two Wisconsin counties.

394 Wis. 2d 629, ¶¶5–6 (majority op.). The ballots President

Trump sought to strike fell into four categories; two are most

relevant in this case. First, he argued "that a form used for

in-person absentee voting [wa]s not a 'written application' and therefore all in-person absentee ballots should be struck."

Id., ¶2. Second, President Trump argued "that municipal

officials improperly added witness information on absentee

ballot certifications, and that these ballots [wer]e therefore

invalid." Id.

¶125 As the majority acknowledged, "Wisconsin law provides

that a 'written application' is required before a voter can

In 2017, the legislature changed "effect of law" to "force 3

of law," which is reflected in the modification of the quote. 2017 Wis. Act 369, § 32.

4 No. 2022AP91.rgb

receive an absentee ballot, and that any absentee ballot issued

without an application cannot be counted." Id., ¶14 (citing

Wis. Stat. §§ 6.84(2), 6.86(1)(ar)). A majority of this court

refused to consider whether the form utilized for in-person

absentee voting, EL-122, constituted a written application. It

noted, "both counties did use an application form created,

approved, and disseminated by the chief Wisconsin elections

agency." Id., ¶15. The majority emphasized "local election

officials used form EL-122 in reliance on longstanding guidance

from WEC." Id., ¶25. Therefore, it concluded, "[p]enalizing

the voters election officials serve and the other candidates who

relied on this longstanding guidance is beyond unfair." Id.

"To strike ballots cast in reliance on the guidance now, and to

do so in only two counties, would violate every notion of equity

that undergirds our electoral system." Id. In Trump, a

majority of this court allowed its notions of "equity" and

"unfair[ness]" to trump the law.

¶126 Invoking the same rationalizations, the majority declined to examine whether election officials violated a

statute by adding missing witness information to absentee ballot

certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a

certificate is missing the address of a witness, the ballot may

not be counted." The majority defied this clear textual command

because it was concerned that "election officials followed

guidance that WEC created, approved, and disseminated to

counties in October 2016." Id., ¶18. It continued, "the

5 No. 2022AP91.rgb

election officials relied on this statewide advice and had no

reason to question it."4 Id., ¶26.

¶127 Overall, the majority compared voting——the foundation

of free government——to a football game:

[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . .

Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election. Id., ¶¶31–32 (emphasis added); see also id., ¶34 (Dallet &

Karofsky, JJ., concurring) ("The evidence does show that,

despite a global pandemic, more than 3.2 million Wisconsinites

performed their civic duty. More importantly as it relates to

this lawsuit, these voters followed the rules that were in place at the time. To borrow Justice Hagedorn's metaphor, Wisconsin

voters complied with the election rulebook. No penalties were

The majority also gave statements from Dane County 4

officials the status of supreme law based on the majority's subjective conception of fairness. Trump v. Biden, 2020 WI 91, ¶27, 394 Wis. 2d 629, 951 N.W.2d 568 (explaining voters in Dane County were "encouraged to utilize" "Democracy in the Park" events and that "17,000 voters did so in reliance on representations that the process they were using complied with the law").

6 No. 2022AP91.rgb

committed and the final score was the result of a free and fair

election." (emphasis added)).

¶128 Under Trump, statements from WEC's staff were

transformed into super-statutes, trumping the actual law.

"Rather than fulfilling its duty to say what the law is, a

majority of this court unconstitutionally converts the Wisconsin

Elections Commission's mere advice into governing 'law,' thereby

supplanting the actual election laws enacted by the people's

elected representatives in the legislature and defying the will

of Wisconsin's citizens. When the state's highest court refuses

to uphold the law, and stands by while an unelected body of six

commissioners rewrites it, our system of representative

government is subverted." Id., ¶140 (Rebecca Grassl Bradley,

J., dissenting).

¶129 The holding in Trump requires a vote cast in reliance

on a document produced by the WEC's staff to be counted even if

the vote's counting is unlawful under the statute the staff

purportedly interpreted. The majority did not ground its decision in constitutional law but in equity.5 Equitable powers

may be broad, but they must always be lawfully exercised. Just

5 Id., ¶73 (Roggensack, C.J., dissenting) ("If WEC has been giving advice contrary to statute, those acts do not make the advice lawful. WEC must follow the law. We, as the law declaring court, owe it to the public to declare whether WEC's advice is incorrect. However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice. The remedy Petitioners seek may be out of reach for a number of reasons." (quoting Trump v. Evers, No. 2020AP1917-OA, unpublished order (Wis. Dec. 3, 2020) (Roggensack, C.J., dissenting from the denial of the petition for leave to commence an original action)).

7 No. 2022AP91.rgb

this term, we held this court lacks the equitable power to

rewrite statutes to enforce a subjective conception of fairness.

See Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶¶62, 67, 72,

399 Wis. 2d 623, 967 N.W.2d 469. The Trump majority abandoned

this fundamental constraint on the judicial power.

¶130 At the same time the majority aggrandized its

"equitable" powers, it ceded its law declaring function to

unelected bureaucrats. According to the Trump majority, the

judiciary may not even opine on the validity of purported

guidance once voters have relied on it. In so ruling, the

majority neglected its constitutional duty to declare the

meaning of law, instead elevating "guidance[] given by an

unelected committee" to the status of supreme law, which must be

followed in derogation of enacted statutes. Trump, 394

Wis. 2d 629, ¶108 (Ziegler, J., dissenting); see also State ex

rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424

N.W.2d 385 (1988) ("[I]t is this court's function to develop and

clarify the law." (citations omitted)). ¶131 The majority achieved these results by declaring WEC's

guidance to be "the rulebook." Trump, 394 Wis. 2d 629, ¶32

(majority op.) (emphasis added). "How astonishing that four

justices of the Wisconsin Supreme Court must be reminded that it

is THE LAW that constitutes 'the rulebook' for any election——not

WEC guidance——and election officials are bound to follow the

law, if we are to be governed by the rule of law, and not of

men." Id., ¶147 (Rebecca Grassl Bradley, J., dissenting). Notwithstanding SEIU's characterization of guidance as nothing

8 No. 2022AP91.rgb

more than executive branch "thought processes," the majority

permitted "WEC . . . [to] treat their guidance as if it were

law"——and a form of supreme law capable of overriding statutory

language. See id., ¶86 (Roggensack, C.J., dissenting) (citing

SEIU, 393 Wis. 2d 38, ¶143 (Roggensack, C.J.,

concurring/dissenting)). The majority's reinvention of guidance

as something on par with the constitution is antithetical to the

constitutional separation of powers and deprives the people of

power over their own government.

¶132 Without offering any explanation, WEC has changed its

position on the status of its so-called guidance. WEC did not

file a brief in Trump, but in the case's precursor, Trump v.

Evers,6 WEC argued in its brief, "[t]hese challenges come too

late and would unconstitutionally punish voters who relied in

good faith on election officials' guidance." Not only did WEC

argue its guidance was the law, it argued that following the

actual law instead of WEC's erroneous interpretations would be

unconstitutional. In Trump v. Biden, the majority avoided the constitutional issue, but it nonetheless adopted the thrust of

the WEC's argument about fairness by abusing this court's

equitable powers. In contrast with its previous position, WEC

now characterizes its memos as inert, merely providing

information to local officials who are free to ignore them as

they please. WEC cannot have it both ways. Either disregarding

these documents offends the constitution or they are mere

Trump v. Evers was an original action raising the same 6

arguments, which a majority of this court declined to hear just days before Trump v. Biden. 9 No. 2022AP91.rgb

"thoughts" of executive-branch employees. This court chose the

former in Trump, which means these documents must be properly

promulgated, with checks and balances.

¶133 With no convincing response to Trump, WEC primarily

argues the memos lack the force of law because they do not

require municipal clerks to establish ballot drop boxes. But

see Off. of the Special Couns., Second Interim Investigative

Report on the Apparatus & Procedures of the Wisconsin Elections

System 116 (Mar. 1, 2022) ("Surprisingly, many clerks have

expressed to the OSC that they are under the impression that WEC

guidance is binding, even when they believe such guidance (say,

on drop boxes) is unlawful."). Nonetheless, these memos purport

to authorize drop boxes. Under Trump, once a vote is placed in

a drop box in reliance on a WEC document that has not been

rescinded, it must be counted regardless of whether any statute

actually authorizes drop boxes. At least during and after an

election, a majority of this court will not consider whether a

statute authorizes drop boxes, effectively establishing the memos as the authorizing device.

¶134 As the Wisconsin voters accurately argue, "there are

different kinds of laws——some impose duties, others prohibit

conduct, and still others authorize conduct. WEC's memos fall

into the latter category[.]" Since the time of Sir Edward Coke,

"unlawful prerogative legislation" has included both legislation

constraining the public and the "alteration" of "legally binding

duties" "more generally," including their "relax[ation.]" Philip Hamburger, Is Administrative Law Unlawful? 84 (2014). At

10 No. 2022AP91.rgb

a minimum, the Trump decision allowed WEC to relax legal duties.

Specifically, the Trump decision endorsed WEC's elimination of

duties prescribed by law by counting ballots unlawfully cast in

accordance with WEC's extra-legal directions. See Wis. Stat.

§ 6.84(2) ("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.

contravention of the procedures specified in those provisions

may not be included in the certified result of any election.").

To erase by executive fiat the legislature's duly enacted law is

no less an alteration of law merely because it authorizes the

unlawful rather than prohibits that which is lawful. See

generally Case of Proclamations, [1610] EWHC KB J22, (1611) 12

Co Rep 74, 75, 77 ER 1352 ("[T]he King cannot change any part of

the common law, nor create any offence by his proclamation,

which was not an offence before, without Parliament. . . . [T]he King by his proclamation of other ways

cannot change any part of the common law, or statute law, or the

customs of the realm[.]" (citations omitted)).

¶135 WEC also misses another critical point. While the

memos may not require municipal clerks to set up ballot drop

boxes, if they do so, Memo two regulates their use with clear,

unambiguous, and mandatory language. For example, WEC says:

"Ballot drop boxes must be secured and locked at all times" and "[c]hain of custody logs must be completed every time ballots

11 No. 2022AP91.rgb

are collected."7 The fact that these requirements attach only if

a municipal clerk decides to set up drop boxes makes no

difference. Laws often take the form of "if/then" statements.

A person may choose not to drive, but if the person chooses to

drive, the person is bound to wear a seat belt by a statute with

the force of law. Wis. Stat. § 347.48(2m)(b).

¶136 The two propositions resulting from the Trump decision

cannot both be true:

1. Documents produced by WEC's staff——not the Wisconsin statutes——comprise "the rulebook" for elections; and

2. WEC's memos are not administrative rules because they do not have the force of law. No other agency's guidance——or even its properly promulgated

rules, for that matter——has been given such pseudo-

constitutional force. The Trump decision glorified WEC's

purported guidance with a supremacy over real law. This court

should overrule its erroneous holding in Trump, restoring WEC's

documents to their proper, and quite limited, role.

¶137 The way we described guidance documents in SEIU in 2020 simply cannot be reconciled with the Trump decision of

2021. In SEIU, we correctly concluded guidance documents "are

not law, they do not have the force or effect of law, and they

provide no authority for implementing standards or conditions."

393 Wis. 2d 38, ¶102 (Kelly, J., majority op.). "They impose no

obligations, set no standards, and bind no one." Id.

"Functionally, and as a matter of law, they are entirely inert.

7 Emphasis added.

12 No. 2022AP91.rgb

That is to say, they represent nothing more than the knowledge

and intentions of their authors. It is readily apparent,

therefore, that the executive need not borrow any legislative

authority, nor seek the legislature's permission, to create

guidance documents." Id. (emphasis added).

¶138 Trump transformed purported guidance from "entirely

inert" to imperviously potent. See id. Ironically, the

legislature enacted pre-issuance procedures for guidance

documents precisely because the nature of guidance documents is

often misunderstood. "Guidance documents can have a practical

effect similar to an unpromulgated rule." Id., ¶142

(Roggensack, C.J., concurring/dissenting). Lawmakers have

"frequently heard from constituents, small businesses [and]

local government" about "how guidance documents have been abused

as a vehicle to actually change the law." Id., ¶143 (quoting

Floor Speech by Andre Jacque, Floor Session on 2017 Assembly

Bill 1072 (2017 Wis. Act 369), at 3:25,

https://wiseye.org/2018/12/05/assembly-floor-session-part-2-8/ (last visited June 25, 2020)). The Trump majority contradicted

the SEIU court's treatment of executive agency communications.

In SEIU, the court said, "should an administrative agency

employee treat a guidance document as a source of authority,

that employee would be making a mistake, not defining the nature

of a guidance document." Id., ¶134 (Kelly, J., majority op.)

(emphasis added). The court itself made a consequential mistake

by declaring WEC's guidance not only a source of authority, but the supreme statement of election law.

13 No. 2022AP91.rgb

¶139 In his concurrence, Justice Brian Hagedorn attempts to

backtrack from the majority opinion he authored in Trump.

Whether expressed metaphorically or otherwise, the Trump

majority not only labeled WEC's guidance the "rulebook"——it

treated it as such, elevating it over statutory law. See supra

¶¶124–26. This concurrence does not advance a new legal

analysis; the dissent in Trump explained the upshot of the

majority's treatment of WEC's pronouncements on the law, which

the majority never disavowed: "the majority commits grave error

by according WEC guidance the force of law . . . . How

astonishing that four justices of the Wisconsin Supreme Court

must be reminded that it is THE LAW that constitutes 'the

rulebook' for any election——not WEC guidance——and election

officials are bound to follow the law, if we are to be governed

by the rule of law, and not of men." Trump, 394 Wis. 2d 629,

¶¶141, 147 (Rebecca Grassl Bradley, J., dissenting). Regardless

of what WEC's pronouncements on the law are called, if this

court is going to allow them to control an election, they should be promulgated as rules. It was a "serious legal argument" then

and remains so now. The majority grievously injured the rule of

law in Trump, which the court should acknowledge and correct.8

Justice Hagedorn now seems to minimize portions of his 8

Trump opinion as dicta. Justice Hagedorn's Concurrence, ¶202 ("the court used the word 'rulebook' in a metaphor regarding challenge flags in football."). Our court does not recognize the concept of dicta, however. "Wisconsin does not consider statements germane to a controversy as dicta." Brandenburg v. Briarwood Forestry Servs., LLC, 2014 WI 37, ¶66 n.2, 354 Wis. 2d 413, 447, 847 N.W.2d 395, 413 (citing Zarder v. Humana Ins. Co., 2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782 N.W.2d 682). Metaphors can be a powerful tool in legal writing, but they should be used with care. 14 No. 2022AP91.rgb

¶140 "In Wisconsin, we have a constitution, and it reigns

supreme in this state. 'By section 1 of article 4 the power of

the state to deal with elections except as limited by the

Constitution is vested in the senate and assembly to be

exercised under the provisions of the Constitution; therefore

the power to prescribe the manner of conducting elections is

clearly within the province of the Legislature.'" Trump, 394

Wis. 2d 629, ¶141 (Rebecca Grassl Bradley, J., dissenting)

(quoting State v. Kohler, 200 Wis. 518, 228 N.W. 895, 906

(1930)). In contravention of the Wisconsin Constitution, the

majority's decision in Trump suppresses the power of the

people's representatives in a manner reminiscent of a scene from

William Shakespeare's Henry VI:

Dick: I have a suit unto your lordship.

Cade: Be it a lordship, thou shalt have it for that word.

Dick: Only that the laws of England may come out of your mouth.

Holland: [to Smith] Mass, 'twill be sore law, then; for he was thrust in the mouth with a spear, and 'tis not whole yet.

Smith: [to Holland] Nay, . . . it will be stinking law for his breath stinks with eating toasted cheese.

Cade: I have thought upon it, it shall be so. Away, burn all the records of the realm: my mouth shall be the parliament of England.

Holland: [to himself] Then we are like to have biting statutes, unless his teeth be pulled out.

William Shakespeare, Henry VI, Part II, act. 4, sc. 7, ll. 3–16. 15 No. 2022AP91.rgb

¶141 When the "mouth" of an employee at the WEC supplants

the legislature of Wisconsin, we are left with "sore" or

"stinking" laws, irredeemably infected by their promulgation in

violation of the constitution by an executive branch agency, and

impervious to correction by our constitutional lawmakers.

"Bicameralism and presentment are the crucible bills must

overcome to become law. By design, it is much more difficult

than rule by dictatorship." In re Amending Wis. Stat. §§ 48.299

& 938.299 Regulating the Use of Restraints on Child. in Juv.

Ct., 2022 WI 26, ¶55 n.11, __ Wis. 2d __, __ N.W.2d __ (Rebecca

Grassl Bradley, J., dissenting).

¶142 A majority of this court permits Administrator Megan

Wolfe's unilateral declarations regarding election procedures to

have the force of law, subject only to judicial review (if the

court even bothers to take the case). "No one man should have

all that power." Kanye West, Power (2010). "It is not the

province [or the prerogative] of a state executive official to

re-write the state's election code[.]" See Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020) (cited sources omitted). WEC's

"rulebook" should be subject to formal rulemaking under ch. 227.

¶143 "The Founders designed our 'republic to be a

government of laws, and not of men . . . bound by fixed laws,

which the people have a voice in making, and a right to

defend.'" Trump, 394 Wis. 2d 629, ¶149 (quoting John Adams,

Novanglus: A History of the Dispute with America, from Its

Origin, in 1754, to the Present Time, in Revolutionary Writings of John Adams (C. Bradley Thompson ed. 2000)). A majority of

16 No. 2022AP91.rgb

this court defenestrated the people's ability to defend their

laws. Trump should be overruled to restore the people's

supremacy over their public servants. I respectfully concur.

¶144 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join

this concurrence.

17 No. 2022AP91.bh

¶145 BRIAN HAGEDORN, J. (concurring). The principal

issue in this case involves the lawfulness of ballot drop boxes.

This case is not about the risk of fraudulent votes being cast

or inspiring confidence in elections. This is not about

ensuring everyone who wants to vote can, nor should we be

concerned with making absentee voting more convenient and

secure. Those are policy concerns, and where the law does not

speak, they are the business of the other branches, not the

judicial branch. This case is about applying the law as

written; that's it. To find out what the law is, we read it and

give the words of the statutes the meaning they had when they

were written.

¶146 The occasion for us to visit this question now is the

issuance of two memos by the Wisconsin Elections Commission

(WEC) in 2020. Those memos were prepared in response to

questions from local clerks administering elections. In the

beginning stages of the COVID-19 pandemic, many wondered whether

the mail system would be able to return absentee ballots on time. The memos reflect that clerks asked for guidance,

including whether ballot drop boxes could be established to

receive completed ballots. WEC said yes, and offered detailed

best practices on security and logistics and other such

administrative questions. The 2020 spring and fall elections

came and went; no significant legal challenges to the memos were

raised at the time.

¶147 This lawsuit was filed in June 2021. It is a declaratory judgment action under Wis. Stat. § 227.40, which

1 No. 2022AP91.bh

authorizes "judicial review of the validity of a rule or

guidance document" issued by a state agency. § 227.40(1). The

focus is therefore on what the memos say, and whether their

prescriptions are consistent with the law.

¶148 The law says this: absentee ballots can be mailed by

the elector or "delivered in person, to the municipal clerk."

Wis. Stat. § 6.87(4)(b)1. A careful study of the text,

including its history, along with the supporting statutory

context, reveals that unstaffed drop boxes for absentee ballot

return are not permitted. Rather, this statute specifies return

of absentee ballots through two and only two means: mailing by

the voter to the municipal clerk, or personal delivery by the

voter to the municipal clerk. And personal delivery to the

clerk contemplates a person-to-person exchange between the voter

and the clerk or the clerk's authorized representative at either

the clerk's office or a designated alternate site. Wis. Stat.

§§ 5.02(10), 6.855, 6.87(4)(b)1., 6.88(1). The two memos

advising otherwise therefore conflict with the law and are properly void.

¶149 In Part II of this concurrence, I address the

important procedural questions before us regarding standing and

exhaustion of administrative remedies. While I agree that

Teigen may bring this claim, I do so on different grounds than

those proffered by the majority/lead opinion. In Part III, I

provide additional insight into the statutory context and

history of the relevant statutes governing where and how absentee ballots may be returned. Finally, in Part IV, I

2 No. 2022AP91.bh

address whether WEC's memos in this case are unpromulgated

administrative rules. I conclude they are not because they do

not have what the statute requires: the "force of law." See

Wis. Stat. § 227.01(13).1

¶150 Before diving into the law, I offer two observations.

First, the election law statutes we are asked to consider are by

no means a model of clarity. Many of the controlling provisions

were originally enacted over 100 years ago and have been layered

over with numerous amendments since. Reasonable minds might

read them differently. Significant questions remain despite our

decision in this case, especially as absentee voting has become

increasingly common. Although our adjudication of this case

will provide some assistance, the public is better served by

clear statutes than by clear judicial opinions interpreting

unclear statutes. The legislature and governor may wish to

consider resolving some of the open questions these statutes

present.

¶151 Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that

judicial decision-making and politics are different under our

constitutional order. Our obligation is to follow the law,

which may mean the policy result is undesirable or unpopular.

Even so, we must follow the law anyway. To the extent the

citizens of Wisconsin wish the law were different, the main

1 I join ¶¶4-10, 12-13, 52-63, 73-85 of the majority/lead opinion.

3 No. 2022AP91.bh

remedy is to vote and persuade elected officials to enact

different laws. This is the hard work of democracy.

¶152 Weeks before Wisconsin voters went to the polls in

April 2020, the COVID-19 pandemic upended much of the world.

Election administration was no exception. Due to the risk posed

by the virus, exponentially more voters opted to vote by

absentee ballot. Complicating things further, the pandemic

strained the United States Postal Service, causing fear that it

would not be able to deliver absentee ballots on a timely basis.

Faced with these constraints, local election officials reached

out to WEC for guidance on how they could ensure all absentee

ballots would be received in time to be counted. In response to

these questions, WEC issued a memo on March 31, 2020, entitled,

"FAQs: Absentee Ballot Return Options: USPS Coordination and

Drop Boxes." The memo advised in relevant part that "drop boxes

can be used for voters to return ballots but clerks should ensure they are secure." It also noted its view that a "family

member or another person may also return the ballot on behalf of

the voter." The April election proceeded without apparent legal

controversy over these matters.

¶153 As preparations began for the November 2020 election,

WEC issued another memo. Dated August 19, 2020, it was

entitled, "Absentee Ballot Drop Box Information." The document

was "intended to provide information and guidance on drop box

4 No. 2022AP91.bh

options for secure absentee ballot return for voters." The memo

explained:

A ballot drop box provides a secure and convenient means for voters to return their by mail absentee ballot. A drop box is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent. ¶154 In June 2021, Waukesha County voters Richard Teigen

and Richard Thom (collectively "Teigen") sued WEC "seeking a declaratory judgment regarding the proper construction of state

statutes that set forth the legal methods for Wisconsin voters

to cast absentee ballots." In his complaint, Teigen contended:

"The March 2020 and August 2020 Memos are invalid because they

exceed the statutory authority of WEC and because they were

promulgated without compliance with statutory procedures."

Several parties intervened to defend the memos, including the

Democratic Senatorial Campaign Committee (DSCC) and Disability

Rights Wisconsin, Wisconsin Faith Voices for Justice, and the

League of Women Voters for Wisconsin (collectively "DRW").

¶155 Teigen moved for summary judgment, and the circuit

court granted his motion. The circuit court declared the memos

invalid because they conflicted with three principles it drew

from the statutes: (1) "an elector must personally mail or

deliver his or her own absentee ballot, except where the law

explicitly authorizes an agent to act on an elector's behalf";

(2) the only ways to cast an absentee ballot under Wis. Stat. § 6.87(4)(b)1. "are for the elector to place the envelope

5 No. 2022AP91.bh

containing the ballot in the mail or for the elector to deliver

the ballot in person to the municipal clerk"; and (3) the use of

drop boxes "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 also held that the memos were

unpromulgated administrative rules, and therefore invalid.

Finally, the court enjoined WEC from issuing further

interpretations that conflict with Wisconsin law and ordered WEC

to withdraw the two memos.

¶156 After the circuit court's ruling, WEC, DRW, and DSCC

appealed to the court of appeals. Teigen petitioned this court

for bypass. We granted Teigen's petition and received briefing

on three issues: (1) whether Teigen's case is procedurally

proper, (2) whether WEC's memos are inconsistent with Wisconsin

election law, and (3) whether WEC's memos are unpromulgated

administrative rules.

II. PROCEDURAL ISSUES

¶157 The intervening parties raise two procedural

challenges they contend forbid Teigen from bringing this suit.

DSCC asserts Teigen lacks standing to seek declaratory relief.

And DRW argues Teigen's claim must be dismissed because he

failed to exhaust the available administrative remedies. Both

challenges fall short.

6 No. 2022AP91.bh

A. Standing

¶158 Teigen seeks declaratory relief under Wis. Stat.

§ 227.40. That statute permits "judicial review of the validity

of a rule or guidance document" issued by a state agency.

§ 227.40(1). Under such review, the court "shall declare" a

rule or guidance document invalid if it violates a

constitutional provision, exceeds the agency's statutory

authority, or was not issued in compliance with the relevant

statutory procedures. § 227.40(4)(a).

¶159 Chapter 227's broad right to declaratory relief is not

without limits. In particular, the statute requires that the

challenged rule or guidance document have some practical and

adverse effect on the party seeking relief:

The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. Wis. Stat. § 227.40(1). In legal parlance, this harm

requirement is called standing.

¶160 Standing is the foundational principle that those who

seek to invoke the court's power to remedy a wrong must face a

harm which can be remedied by the exercise of judicial power.

Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766

N.W.2d 517. Some of my colleagues have begun to describe

standing in far looser terms. It is a really nice thing to have

in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional

7 No. 2022AP91.bh

in the same sense as in federal courts and that its parameters

are a matter of sound judicial policy. But as Justice Prosser

put it, "Judicial policy is not, and has not been, carte blanche

for the courts of Wisconsin to weigh in on issues whenever the

respective members of the bench find it desirable." Foley-

Ciccantelli v. Bishop's Grove Condo. Ass'n, Inc., 2011 WI 36,

¶131, 333 Wis. 2d 402, 797 N.W.2d 789 (Prosser, J., concurring).

The judiciary does not serve as a roving legal advisor,

answering any questions about the law that may arise. The power

we have is "judicial." Wis. Const. art. VII, § 2. The judicial

power is the power decide disputes between parties about the law

where there is harm to a party that can be remedied through the

judicial process. Gabler v. Crime Victims Rights Bd., 2017

WI 67, ¶37, 376 Wis. 2d 147, 897 N.W.2d 384. In this sense, the

judicial policy buttressing our standing doctrine must stem from

our constitutional role. Standing is not a historical relic

that should be dispensed with in an age of judicial supremacy.

It serves as a vital check on unbounded judicial power. A judiciary that understands its limited and modest role in

constitutional governance will take it seriously. Doing so

brings our judgment to bear when necessary to resolve legal

disputes between parties, but allows many legal debates to take

place where the constitution places them: in the court of

public opinion and by and between the other branches of

government.

¶161 It is also important to give careful attention to standing because the legislature has, in many instances,

8 No. 2022AP91.bh

prescribed the ground rules for judicial review. The rule of

law requires that we pay heed to the procedural law enacted by

the legislature no less than other laws. Wisconsin Stat.

§ 227.40(1) is one such statute that imposes a statutory

standing requirement. Ordinarily and at common law, citizens

could not simply request and obtain a judicial declaration of

what the law is in a given scenario. Miller v. Currie, 208

Wis. 199, 203, 242 N.W. 570 (1932) ("Declaratory relief is a

creation of the statute and was unknown to the common law.").

Section 227.40(1) permits a declaration of rights, but only when

a "rule or guidance document or its threatened application

interferes with or impairs, or threatens to interfere with or

impair, the legal rights and privileges of the plaintiff."

¶162 Thus, the question is whether WEC's memos harm or

threaten harm to any of Teigen's "legal rights and privileges."

Teigen proffers two legal rights which he contends are

implicated by the memos: his right as a taxpayer to challenge

unlawful expenditures, and his right as a voter to have election officials comply with election laws.

¶163 We have held that taxpayers have a legal right "to

contest governmental actions leading to an illegal expenditure

of taxpayer funds." Fabick v. Evers, 2021 WI 28, ¶10, 396

Wis. 2d 231, 956 N.W.2d 856. Teigen maintains he has taxpayer

standing because tax dollars supported distribution of the memos

and the salaries of WEC staff who prepared them. Taxpayer

standing, however, does not extend as broadly as Teigen suggests. This argument, if accepted, would mark a radical

9 No. 2022AP91.bh

departure in the law. It would mean any taxpayer could

challenge almost any government action——as long as a government

employee devoted some time and attention to the matter. Since

that is nearly always true, this would practically eliminate

standing as a consideration in most challenges to government

action. It is true that the functional distance between an

illegal government expenditure and staff time spent drafting a

legally erroneous memo may be fuzzy, but it is meaningful and

clear from our cases.2 We have never described taxpayer standing

as broadly as Teigen asserts, and we should not grant Teigen's

entreaty now.

¶164 Teigen's second argument, however, is more compelling.

Teigen argues that Wis. Stat. § 5.06 gives voters like him a

2 Our taxpayer standing cases have always involved an alleged illegal expenditure distinct from staff time. See Hart v. Ament, 176 Wis. 2d 694, 698-99, 500 N.W.2d 312 (1993) (challenging the transfer of management of a county museum); Tooley v. O'Connell, 77 Wis. 2d 422, 439, 253 N.W.2d 335 (1977) (challenging the constitutionality of a taxing provision); Buse v. Smith, 74 Wis. 2d 550, 563, 247 N.W.2d 141 (1976) (challenging a negative-aid provision); Thompson v. Kenosha County, 64 Wis. 2d 673, 679-80, 221 N.W.2d 845 (1974) (challenging the adoption of a countywide assessor system); S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961) (challenging construction of a tunnel); Federal Paving Corp. v. Prudisch, 235 Wis. 527, 538, 293 N.W. 156 (1940) (challenging a city resolution directing that payment be made to a paving contractor); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 107-08, 99 N.W. 603 (1904) (challenging building of a bridge); J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 84, 336 N.W.2d 679 (Ct. App. 1983) (challenging the constitutionality of a statue resulting in public expenditures).

10 No. 2022AP91.bh

statutory right to have local election officials in the area

where he lives comply with election laws.3 That statute says:

Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning . . . election administration or conduct of elections is contrary to law . . . the elector may file a written sworn complaint with [WEC] requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law. § 5.06(1). According to this statute, if local election

officials in the area where a voter lives violate election laws,

the voter is empowered to have that conduct abated.4 This

establishes not only a process to compel compliance with the

law, but also a legal right held by the voter to have their

local election officials follow the law.5 Other provisions of

Chapter 5 work in similar ways.6

3The majority/lead opinion complains Wis. Stat. § 5.06 is not in the petitioner's complaint. But it is in their briefing, which is usually where we look for legal arguments. This was unquestionably an argument Teigen raised. 4Additional recourse to a court is available if WEC does not take action on the voter's complaint. See Wis. Stat. § 5.06(2). 5The majority/lead opinion misses this distinction, stating that this legal right may only be vindicated by following the procedures set forth in Wis. Stat. § 5.06. But Wis. Stat. § 227.40 provides an additional avenue to vindicate rights conferred in other statutes——including § 5.06——that are threatened by unlawful guidance documents and rules. 6See, e.g., Wis. Stat. § 5.08 (empowering voters who believe "that an election official has failed or is failing to 11 No. 2022AP91.bh

¶165 Returning to the standing question here, Wis. Stat.

§ 227.40(1) first requires the challenge be to a "rule or

guidance document." Teigen challenges two memos issued by WEC

which all agree are either guidance documents or rules. The

statute then inquires whether the memos or their "threatened

application interfere[] with or impair[], or threaten[] to

interfere with or impair, the legal rights and privileges of the

plaintiff." § 227.40(1). As I have explained, Teigen has a

legal right protected by Wis. Stat. § 5.06 to have local

election officials in his area comply with the law. The only

question, then, is whether the memos at least threaten to

interfere with or impair Teigen's right to have local election

officials comply with the law. I conclude they do.

¶166 The two memos challenged in this case provide local

election officials advice on absentee ballot return——advice

Teigen contends is unlawful. Regardless of whether the memos

are themselves binding on local election officials (a question

explored further below), they no doubt carry persuasive force with those administering elections. Many local election

officials will follow advice offered by WEC, even when that

advice is not legally binding. Indeed, the record in this case

comply with any law regulating the conduct of elections or election campaigns" to petition the district attorney with jurisdiction to prosecute the election official's failure); Wis. Stat. § 5.061 (directing voters to file a complaint if they observe a violation of the Help America Vote Act in a national election); Wis. Stat. § 5.081 (authorizing voters to contest perceived violations of § 2 of the Voting Rights Act by petitioning the attorney general, who then is directed to bring a lawsuit on the voters' behalf).

12 No. 2022AP91.bh

reveals that many local election officials employed drop boxes

consistent with WEC's advice after the memos issued. If that

advice is contrary to law, it stands to reason that many local

election officials, including those in Teigen's area, are likely

to rely on and implement erroneous advice. Applying the plain

terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at

the very least threaten to interfere with or impair his right to

have local election officials comply with the law. In other

words, unlawful WEC guidance can threaten harm to the legal

rights and privileges Wis. Stat. § 5.06 provides to voters like

Teigen. In this case, the question is whether WEC issued an

allegedly unlawful rule or guidance document that makes it

likely local election officials will not follow election laws.

And on that question, Teigen has sufficiently alleged standing

for purposes of § 227.40(1).7

¶167 The majority/lead opinion concludes Teigen has

standing, but for a different reason. It says Teigen alleged an

injury to his constitutional right to vote as recognized in Wis. Stat. § 6.84(1). Majority/lead op., ¶21. That subsection is a

statement of legislative policy. It provides in part, "The

legislature finds that voting is a constitutional right, the

vigorous exercise of which should be strongly encouraged."

7 Significantly, the challenge to Teigen's standing in this case was brought by one of the intervenors, DSCC. WEC——the agency that issued the challenged guidance——expressly declined to join DSCC's standing challenge, even when questioned about the challenge at oral argument. If there is a clear bar to voters challenging allegedly unlawful WEC guidance, WEC itself did not think it worth raising.

13 No. 2022AP91.bh

§ 6.84(1). This statute acknowledges the right to vote

protected in Article III, Section 1 of the Wisconsin

Constitution: "Every United States citizen age 18 or older who

is a resident of an election district in this state is a

qualified elector of that district." The majority/lead does not

explain why the text of § 6.84(1)——or Article III, Section 1 for

that matter——should be read to encompass a right for a voter to

challenge any and all election practices. Section 6.84 sets

forth rules of construction in a subchapter governing absentee

voting. Yet the majority/lead opinion suggests it creates broad

voter standing against any election official or WEC by any

elector for nearly any purported violation of any election law.8

Without tethering the analysis to an on-point text, this

analysis is unpersuasive and does not garner the support of four

members of this court.

B. Exhaustion

¶168 One procedural matter remains. DRW argues Teigen failed to exhaust his administrative remedies because he did not

first challenge the guidance under Wis. Stat. § 5.06.

Specifically, DRW points to subsec. (2) of that statute, which

says: "No person who is authorized to file a complaint under

The majority/lead opinion does not disagree with this 8

characterization of the import of its argument. But it wrongly suggests my analysis under Wis. Stat. § 5.06 does the same. My standing analysis applies only to challenges under Wis. Stat. § 227.40(1) to WEC rules and guidance documents when that guidance threatens to cause local election officials to behave illegally——a legal right protected by § 5.06. The majority/lead opinion brings heat, but little light, to the analysis.

14 No. 2022AP91.bh

[this section] . . . may commence an action or proceeding to

test the validity of any decision, action or failure to act on

the part of any election official . . . without first filing a

complaint under [this section.]" § 5.06(2). DRW also relies on

Wis. Stat. § 5.05(2m), which says WEC's "power to initiate civil

actions . . . for the enforcement of chs. 5 to 10 or 12 shall be

the exclusive remedy for alleged civil violations of chs. 5 to

10 or 12." § 5.05(2m)(k).

¶169 DRW makes reasonable arguments supporting the

proposition that these statutes apply to claimed failures of WEC

as well. But on balance, I conclude that these statutes do not

apply here. Wisconsin Stat. § 5.06 gives WEC an adjudicatory

role when an "election official" violates the law. An "election

official" in the elections statutes is "an individual who is

charged with any duties relating to the conduct of an election."

Wis. Stat. § 5.02(4e). However, WEC is separately defined

immediately following this as "the elections commission." Wis.

Stat. § 5.025. WEC's powers and duties are outlined in § 5.05 and include a direction to "investigate violations of laws

administered by the commission" and "prosecute alleged civil

violations of those laws." § 5.05(2m)(a). Similarly, § 5.06(4)

authorizes WEC to "investigate and determine whether any

election official . . . has failed to comply with the law."

With respect to both §§ 5.05(2m) and 5.06, DRW's reading would

mean WEC is directed to investigate and prosecute itself, which

makes little sense. That, along with the statutory distinction between an "election official" and the "commission" lead me to

15 No. 2022AP91.bh

conclude the better reading is that the § 5.06 complaint process

does not apply to complaints against acts of WEC as a body.9

¶170 In addition, Wis. Stat. § 227.40(1) expressly opens

the courthouse doors to those challenging administrative rules

or guidance documents: "A declaratory judgment may be rendered

whether or not the plaintiff has first requested the agency to

pass upon the validity of the rule or guidance document in

question." This seems to carve out a particular kind of legal

claim——a challenge to rules and guidance documents——and relieves

the petitioner of pleading one's case with the agency first.10

Applying this as written, and in the absence of other contrary

arguments, I conclude Teigen was not required to take his case

to WEC before seeking judicial relief under § 227.40(1). Thus,

Teigen has not failed to exhaust his administrative remedies

before bringing this claim. I therefore proceed to the merits.

III. BALLOT DELIVERY & DROP BOXES

¶171 In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or

unstaffed drop boxes, that drop boxes may be placed at clerk's

See also Note, Wis. Admin. Code ch. EL 20 (June 2016) 9

(referring to "complaints alleging a violation of election laws by a local election official under s. 5.06, Wis. Stat." (emphasis added)).

The availability of relief under Wis. Stat. § 227.40(1) 10

also means the State has waived its sovereign immunity from this type of claim——i.e., it has consented to suits of this type. See Wis. Const. art. IV, § 27; Lister v. Bd. of Regents of Univ. Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976) (explaining "the state cannot be sued without its consent").

16 No. 2022AP91.bh

office or elsewhere, and that individuals other than the voter

may deliver the voter's absentee ballot to the clerk. These

three positions are inconsistent with Wisconsin's election

statutes. The law requires that to return an absentee ballot in

person, voters must personally deliver their ballot to the clerk

or the clerk's authorized representative at either the clerk's

office or a designated alternate site. Wis. Stat. §§ 5.02(10),

6.855, 6.87(4)(b)1., 6.88(1). Because WEC's memos conflict with

these statutory directives, they are invalid.

A. Statutory Framework

¶172 Our interpretive task centers on three statutes that

together provide the framework for how absentee ballots may be

returned and how clerks are to receive them.

¶173 The first one, Wis. Stat. § 6.87(4)(b)1., details how

an absentee voter should complete a ballot, and then directs how

it should be returned: "The envelope shall be mailed by the

elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." § 6.87(4)(b)1. A "municipal clerk"

includes "authorized representatives" of the clerk. Wis. Stat.

§ 5.02(10).

¶174 Wisconsin Stat. § 6.87(4)(b)1. was originally enacted

as part of Wisconsin's earliest comprehensive absentee voting

law in 1915. § 1, ch. 461, Laws of 1915. Regarding return of a

ballot, the law provided: "Said envelope shall be mailed by

such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in

person." Id. This wording, plainly read, suggests both the

mailing and the delivery must be done by the voter, and directed

to the ballot-issuing officer.

¶175 When we construe statutes, we must read the words to

mean what they were understood to mean at the time they were

enacted, lest we find ourselves rewriting the law. Fortunately,

we have clear evidence of how this language was originally read.

Less than a year after enactment, the attorney general opined on

the precise interpretive question before us today: "'Delivery

in person' must mean handed directly by an elector to the

officer; it means manual transmission by the one to the other."

5 Wis. Op. Att'y Gen. 591, 593 (1916). When enacted, the text

we are considering today was understood to require a person-to-

person interaction between the voter and the clerk. So far as I

can tell, this reading went unchallenged for 40 years.

¶176 In 1955, this court had occasion to examine the

statute in an election dispute. In Sommerfeld v. Board of

Canvassers of the City of St. Francis, 18 absentee ballots were returned to the clerk by a third person, and not by the voter.

269 Wis. 299, 300-01, 69 N.W.2d 235 (1955), abrogated in part by

Wis. Stat. § 6.84(2). The question in that case concerned

whether those ballots should be counted. Id. at 300. All seven

justices took it as a given that the law had been violated; the

statute required delivery from the voter to the clerk, not

through a third person. Id. at 301; id. at 304-05 (Gehl, J.,

dissenting). The four-justice majority, however, concluded those votes should nonetheless be counted because the statute,

18 No. 2022AP91.bh

though violated, was directory, not mandatory. Id. at 304.

Although legally binding, failure to comply with a directory

statute may not produce the same consequence as a failure to

comply with a mandatory statute. See State v. Rosen, 72

Wis. 2d 200, 207, 240 N.W.2d 168 (1976). The Sommerfeld

majority concluded that construing the in-person delivery

requirement as mandatory for votes to count could disenfranchise

some disabled voters——a result it did not think the legislature

meant to produce. 269 Wis. at 303-04. Speaking for three

justices, Justice Gehl wrote in dissent that "in person" means

"[b]y one's self; with bodily presence," quoting a dictionary.

Id. at 304 (Gehl, J., dissenting). Voting by agent was not

permitted by this statute, the dissent explained, and votes cast

out of compliance with the law should not be counted. Id. at

305 (Gehl, J., dissenting). Sommerfeld's holding that the in-

person delivery requirement is directory has since been

abrogated. Section 6.84(2) now provides that the requirement

"shall be construed as mandatory." What remains is what no justice doubted——that the "in person" delivery requirement means

personal delivery, in the flesh, by the voter, to the municipal

clerk.

¶177 The legislature has instructed that a "revised statute

is to be understood in the same sense as the original unless the

change in language indicates a different meaning so clearly as

to preclude judicial construction." Wis. Stat. § 990.001(7).

There have been three significant iterations of the in-person delivery requirement; none convey a clear change in meaning from

19 No. 2022AP91.bh

the original.11 No statutory amendments, cases, or Attorney

General opinions since give cause to reconsider the long-held

view that Wis. Stat. § 6.87(4)(b)1.'s delivery provision

requires a person-to-person interaction between the voter and

the clerk.

¶178 WEC and DRW counter that because the statute is

written in the passive voice, the actor is indeterminate. While

that can be true at times, it is not the case here. Wisconsin

Stat. § 6.87(4)(b)1. is not agnostic as to the actor. It must

be the voter who delivers the ballot. The history confirms this

plain reading. WEC also argues that delivery in person does not

foreclose delivery by an agent. But statutory history shows

this is incorrect as well. In the same comprehensive 1915 law,

just two sections after the in-person-delivery requirement, the

law speaks of delivery of ballots from clerks to election

inspectors "in person or by duly deputized agent." Wis. Stat.

§ 44m——8 (1915). At the very least, this shows that the

legislature knew how to allow delivery by agent, but it chose not to provide for that form of delivery when it enacted this

11 The three versions are as follows:

 1915: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in person." Wis. Stat. § 44m——6 (1915).  1965: "The envelope shall be mailed by the elector, postage prepaid, or delivered in person, to the municipal clerk issuing the ballot." Wis. Stat. § 6.87(4) (1967-68).  Present: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." Wis. Stat. § 6.87(4)(b)1.

20 No. 2022AP91.bh

law. Our decision in Sommerfeld is in accord. I see no

evidence supporting a different reading in the current text

either.12

¶179 In the end, there are two ways to return an absentee

ballot under Wis. Stat. § 6.87(4)(b)1. A ballot may be "mailed

by the elector," or the voter may deliver it "in person" to the

clerk that issued it. § 6.87(4)(b)1. The elector is required——

the statute uses the word "shall"——to utilize one of these two

options. This contemplates an in-person interaction between the

voter and either the municipal clerk or an authorized

representative of the clerk.

¶180 We turn next to two statutes that inform where clerks

may receive absentee ballots. Wisconsin Stat. § 6.88(1)

prescribes what happens after an absentee ballot is received by

the clerk:

When an absentee ballot arrives at the office of the municipal clerk, or at an alternate site under s. 6.855, if applicable, the clerk shall enclose it, unopened, in a carrier envelope which shall be securely sealed and endorsed with the name and official title of the clerk, and [a statement

The dissent suggests that the use of the phrase "ballot 12

or ballots" means that one voter may return other voters' ballots. Dissent, ¶240 n.14. This phrasing, however, appears to be holdover from an earlier time when a single voter would cast separate ballots for separate races. The original absentee voting law enacted in 1915 routinely discussed a single voter receiving and casting multiple ballots. See Wis. Stat. § 44m—4 (1915) (providing that the municipal clerk "shall deliver said ballot or ballots to the applicant personally"); Wis. Stat. § 44m—6 (1915) (directing the voter to "mark such ballot or ballots" and that "such ballot or ballots shall then in the presence of such officer be folded by such voter so that each ballot will be separate and so as to conceal the marking").

21 No. 2022AP91.bh

regarding the contents of the envelope]. . . . The clerk shall keep the ballot in the clerk's office or at the alternate site, if applicable until delivered [to the appropriate election officials]. This statute ensures a strict chain of custody for ballots.

Once a ballot is delivered by the voter, the clerk must take

steps to secure it until the time comes to deliver it to the

appropriate election officials. The next subsection, § 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. Although

neither Wis. Stat. § 6.87(4)(b)1. nor § 6.88(1) expressly state

where the voter may deliver his or her ballot, reading the two

sections together suggests that delivery must occur either at

the clerk's office or an alternate site, if applicable. 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. See Alberte

v. Anew Health Care Servs., Inc., 2000 WI 7, ¶17, 232 Wis. 2d 587, 605 N.W.2d 515 (noting that statutory silence "is

strong evidence" that the legislature "simply did not

contemplate" a particular option).

¶181 Finally, we consider Wis. Stat. § 6.855, which

authorizes the aforementioned "alternate sites"——i.e.,

designated locations besides the clerk's office where elections

may be administered. It provides:

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 22 No. 2022AP91.bh

the location from which electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election. . . . If the governing body of a municipality makes an election under this section, no function related to voting and return of absentee ballots that is to be conducted at the alternate site may be conducted in the office of the municipal clerk or board of election commissioners. § 6.855(1).13 The strict regulation of alternate sites

reinforces the interpretation that ballots must be returned to

either the clerk's office or a designated alternate site. Just

as the statutes are not agnostic about who delivers ballots, a

holistic reading indicates they are not agnostic about where

those ballots are delivered either. Ballot custody is carefully

regulated at both clerks' offices and at alternate sites. 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.14

13Governing bodies "may designate more than one alternate site." Wis. Stat. § 6.855(5). 14In Trump v. Biden, among other issues, we were asked whether ballots delivered to certified election inspectors at temporary events in Madison parks were valid. 2020 WI 91, ¶¶9, 19-21, 394 Wis. 2d 629, 951 N.W.2d 568. The court concluded this claim was barred by the doctrine of laches and rejected it on that basis. Id., ¶¶10, 29-31. I authored a concurrence offering a preliminary review of the merits of the three claims rejected on the basis of laches, while recognizing that a "comprehensive analysis is not possible or appropriate in light of the abbreviated nature of this review and the limited factual record" in that case. Id., ¶36 (Hagedorn, J., concurring). Regarding the so-called "Democracy at the Park" events, I concluded those events were lawful "based on the record before the court and the arguments presented." Id., ¶57 (Hagedorn, J., concurring). With the benefit of more comprehensive briefing and careful study, I now conclude that the better reading of the statutory scheme is that ballots may only be returned to the clerk's office or a designated alternate site. To be clear, 23 No. 2022AP91.bh

¶182 The respondents argue that the directive to deliver

ballots "to the municipal clerk" in Wis. Stat. § 6.87(4)(b)1.

does not restrict how the municipal clerk may receive the

ballots. If the municipal clerk wishes to receive the ballots

in a drop box, the argument goes, that is sufficient. Moreover,

other statutes speak of delivery to the office of the municipal

clerk, and this one does not. This is perhaps the best argument

in the respondents' favor, but it is unpersuasive given the

additional statutes that give great care to ballot security and

custody. While § 6.87(4)(b)1. says how ballots must be

delivered and by whom, Wis. Stat. §§ 6.88(1) and 6.855(1) are

best read as limiting and defining where these ballots must be

delivered. Section 6.87(4)(b)1. requires in-person delivery by

the voter to the municipal clerk. And §§ 6.88(1) and 6.855(1)

specify where the municipal clerk can receive those ballots.15

¶183 Read together, these statutes direct that when voters

choose to return an absentee ballot in person, they must

personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a

designated alternate site. With this interpretation in hand,

the next task is to hold WEC's memos up against the statutes.

this conclusion would not have changed the court's decision in Trump.

As previously noted, these statutes are far from obvious. 15

While I conclude WEC's interpretation is incorrect, reasonable arguments can be made otherwise, especially with respect to the locations where ballots may be received. This lack of precision and certainty should serve as a call for our political branches to give clearer guidance to voters and those they have asked to administer elections.

24 No. 2022AP91.bh

B. Application

¶184 Teigen focuses his challenge to the March 2020 memo on

the following sentence: "A family member or another person may

also return the ballot on behalf of the voter." Teigen argues,

correctly, that this advice was contrary to Wis. Stat.

§ 6.87(4)(b)1. WEC's interpretation would permit an agent of

the voter to return a ballot on the voter's behalf, contrary to

§ 6.87(4)(b)1.'s requirement that there be a voter-to-clerk

interaction. And although Wis. Stat. § 5.02(10) permits an

agent to stand in for the clerk, no statute allows an agent to

stand in for the voter in this context.16 WEC's March 2020 memo

is invalid.

¶185 Teigen also seeks a declaration that Wis. Stat.

§ 6.87(4)(b)1. requires voters to personally place their own

ballots in the mail——a declaration the circuit court granted.

However, neither WEC's March 2020 memo nor its August 2020 memo

offer any advice about how a ballot may be "mailed by the

elector." Therefore, there simply is no guidance or rule for us to review under Wis. Stat. § 227.40(1). Accordingly, the court

should not and does not make any declaration on that question.17

16Other more specific laws that are not at issue here do permit agents to complete certain tasks on a voter's behalf. See, e.g., Wis. Stat. § 6.875 (absentee voting in certain residential care facilities); Wis. Stat. § 6.86(3) (hospitalized voters). 17 Justice Roggensack's concurring opinion contends we should decide this question pursuant to our authority under the general Declaratory Judgments Act, Wis. Stat. § 806.04. However, unlike Teigen's other claims, he presents no evidence that WEC has or will violate Wis. Stat. § 6.87(4)(b)1.'s directives on returning ballots by mail. Teigen therefore does 25 No. 2022AP91.bh

¶186 Finally, we turn to WEC's August 2020 memo, which

provides guidance on drop boxes. Teigen correctly contends the

August 2020 memo improperly advises clerks on how to administer

unstaffed drop boxes and drop boxes at locations other than the

clerk's office or alternate sites. WEC's guidance is contrary

to statute for two reasons. First, unstaffed drop boxes do not

satisfy Wis. Stat. § 6.87(4)(b)1.'s requirement that the voter

deliver his or her ballot to the municipal clerk or an

authorized representative of the clerk. The "in person"

interaction the statutes require is absent when a ballot is

delivered to an unstaffed drop box. Second, the August memo

offers incorrect guidance regarding drop boxes at locations

other than the municipal clerk's office or alternate sites.

Because Wis. Stat. §§ 6.88(1) and 6.855(1) contemplate delivery

occurring at the clerk's office or an alternate site, but not

elsewhere, this guidance is contrary to law. Accordingly, WEC's

August 2020 memo is also invalid.

¶187 Both WEC's March 2020 and August 2020 memos provide advice that is inconsistent with Wisconsin's election statutes.

The court therefore rightly affirms the circuit court's order

declaring the memos invalid pursuant to Wis. Stat. § 227.40(1).

IV. UNPROMULGATED RULE CHALLENGE

¶188 The foregoing analysis is sufficient to resolve the

appeal before us. I write further to address Teigen's argument

that WEC's memos were unpromulgated administrative rules.

not face any threatened harm which a declaration would remedy.

26 No. 2022AP91.bh

¶189 Not all statements that come from a state agency are

created equal. Wisconsin's Administrative Procedure Act

recognizes this and draws a distinction between what it terms

"guidance documents" on the one hand and administrative "rules"

on the other. Wis. Stat. § 227.01(3m) & (13).

¶190 A guidance document is just what it sounds like. It

is a "formal or official document or communication issued by an

agency"——such as "a manual, handbook, directive, or

informational bulletin"——that explains how a rule will be

implemented or advises the public on how the agency is likely to

apply a statute or rule to a class of similarly affected

persons. Wis. Stat. § 227.01(3m)(a). "A guidance document does

not have the force of law and does not provide the authority for

implementing or enforcing a standard, requirement, or

threshold." Wis. Stat. § 227.112(3). Agency guidance has

existed informally for some time. In 2018, the legislature

formalized guidance documents into law as a category of agency

communication and added procedures for challenging them. See 2017 Wis. Act 369, §§ 31, 65-71. The legislature also required

guidance documents to go through various processes to ensure

public input and legislative oversight. Id., § 38. However, a

majority of the court concluded several of these statutes were

facially unconstitutional——incorrectly so in my view. Serv.

Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶¶90-91, 393

Wis. 2d 38, 946 N.W.2d 35; id., ¶¶190-212 (Hagedorn, J.,

concurring in part, dissenting in part). Accordingly, agencies

27 No. 2022AP91.bh

may issue guidance documents without going through the

procedures described in Wis. Stat. ch. 227.

¶191 "Rules" are different. The statutory definition of a

rule has five elements: a "rule" is (1) "a regulation,

standard, statement of policy, or general order," (2) "of

general application," that (3) "has the force of law," and (4)

"is issued by an agency," to (5) "implement, interpret, or make

specific legislation enforced or administered by the agency or

to govern the organization or procedure of the agency." Wis.

Stat. § 227.01(13). If all five of these elements are

satisfied, the rule is subject to numerous promulgation

requirements, most notably those described in subchapter II of

Wis. Stat. ch. 227. Any rule "promulgated or adopted without

compliance with statutory rule-making or adoption procedures" is

invalid. Wis. Stat. § 227.40(4)(a).

¶192 Teigen contends that both of WEC's memos were rules

under the five-part definition just articulated, and that they

are invalid because WEC did not go through the steps required to promulgate a rule. The dispute revolves around whether these

memos have the force of law; rules by definition do, guidance

documents by definition do not.

¶193 Few cases interpret whether a directive has the force

of law. The court of appeals has observed that "[m]aterials

developed by an agency as a reference aid for its staff that are

couched in terms of advice and guidelines rather than setting

forth law-like pronouncements" do not have the force of law and are not rules. County of Dane v. Winsand, 2004 WI App 86, ¶11,

28 No. 2022AP91.bh

271 Wis. 2d 786, 679 N.W.2d 885 (cleaned up). By contrast,

materials "using express mandatory language are more than

informational." Milwaukee Area Joint Plumbing Apprenticeship

Comm. v. DILHR, 172 Wis. 2d 299, 321 n.12, 493 N.W.2d 744 (Ct.

App. 1992). In such documents, "the agency speaks with an

official voice intended to have the effect of law." Id. How an

agency uses a document can also indicate whether it has the

force of law. See Barry Lab'ys, Inc. v. Wis. State Bd. of

Pharmacy, 26 Wis. 2d 505, 516, 132 N.W.2d 833 (1965).

Additional instances where agency materials have been held to

have the force of law include "where criminal or civil sanctions

can result" or "where the interest of individuals in a class can

be legally affected through enforcement of the agency action."

Cholvin v. DHSF, 2008 WI App 127, ¶26, 313 Wis. 2d 749, 758

N.W.2d 118 (collecting cases).

¶194 While these cases are helpful, a more fundamental

question should be asked: what is a law? To be a law means to

be binding and enforceable. Durkee v. City of Janesville, 28 Wis. 464, 471 (1871) (laws are "binding"); State ex rel. Mayer

v. Schuffenhauer, 213 Wis. 29, 32, 250 N.W. 767 (1933) (laws

"must be followed"). A law orders and forbids and governs and

establishes in an authoritative way. See U.S. Fid. & Guar. Co.

v. Guenther, 281 U.S. 34, 37 (1930) (defining "law" as "the

rules of action or conduct duly prescribed by controlling

authority, and having binding legal force"). Here, the statutes

specify that a rule must have the "force of law." Wis. Stat. § 227.01(13). And "force" means to "compel by physical means or

29 No. 2022AP91.bh

by legal requirement." Black's Law Dictionary (11th ed. 2019).

This suggests something has the force of law if it compels

compliance in the same manner as other laws——like a statute or

constitutional provision. Administrative rules, once

promulgated, bind agencies and regulated entities alike. But

guidance documents do not; they inform and compel nothing.

¶195 Also important to our inquiry is the agency we are

talking about. Most agencies in state government operate with a

wide range of powers and have broad areas of regulatory

authority. WEC is different. Wisconsin's method for conducting

elections is unlike that of most other states in the union. Our

election administration system is highly decentralized. State

ex rel. Zignego v. WEC, 2021 WI 32, ¶13, 396 Wis. 2d 391, 957

N.W.2d 208. "Rather than a top-down arrangement with a central

state entity or official controlling local actors, Wisconsin

gives some power to its state election agency ([WEC]) and places

significant responsibility on a small army of local election

officials." Id. It is local clerks who have the "primary role in running Wisconsin elections." Id., ¶15. WEC is therefore

given authority and oversight over some things, and not others.

It may speak authoritatively at times, but not at all times.

¶196 Consistent with this structure, the statutes specific

to WEC establish a process by which WEC can adopt formal or

informal advisory opinions that "have legal force and effect."

Wis. Stat. § 5.05(6a)(a)2. This necessarily means some of WEC's

opinions and advice do not have legal force and effect, and therefore, cannot be administrative rules. Statutes must be

30 No. 2022AP91.bh

read together where possible, which means we must interpret the

rulemaking "force of law" requirement consistent with the

particular circumstances where WEC can issue advisory opinions

that "have legal force and effect." See § 5.05(6a)(a)1.

¶197 Considering all of this, the two memos in this case do

not have the force of law. The memos are self-labeled guidance

documents. They do not purport to be advisory opinions with

legal force issued pursuant to Wis. Stat. § 5.05(6a)(a)2. And

again, the legislature has specifically stated that WEC's

opinions have legal force and effect only under certain

circumstances; this is not one of them.

¶198 The language of the memos supports this view. The

March 2020 memo is structured as an FAQ document addressed to

local election officials. It begins by observing, "Due to the

increase in by-mail absentee ballots, clerks have inquired about

options for ensuring that the maximum number of ballots are

returned to be counted for the April 7, 2020 election." It

proceeds to advise clerks on how "to make ballot return more accessible and efficient," and says that it is "recommended"

that clerks take various actions to inform voters how their

ballots may be returned. The memo then shifts to question-and-

answer format, providing advice to clerks regarding drop boxes

and how to coordinate ballot return with the U.S. Postal

Service. Nothing in the documents suggests there are

consequences for noncompliance. No legal interests are altered

by the March 2020 memo.

31 No. 2022AP91.bh

¶199 The August 2020 memo is similarly entitled "Absentee

Ballot Drop Box Information" and is addressed to Wisconsin's

election officials. The very first line of the memo reveals its

limited purpose: "This document is intended to provide

information and guidance on drop box options for secure absentee

ballot return for voters." It indicates the information in the

memo was adapted from an advisory resource developed by the

Cybersecurity and Infrastructure Security Agency. It advises

election officials regarding various types of drop boxes, where

to place them, and how to keep the ballots collected in drop

boxes secure. Again, reading the August 2020 memo in full

reveals that it is an informational document, designed to

educate election officials regarding best practices. It was

never legally binding.

¶200 Teigen disagrees. He argues that when the state

entity responsible for administering Wisconsin election law says

something is permissible——like drop boxes——WEC's imprimatur

gives its statement the force of law. But widely-followed advice can still simply be advice. Even general acceptance does

not make guidance legally binding or otherwise give it the force

of law. Wisconsin's local election officials who lead the

charge in election administration have an independent

responsibility to read and follow the law. WEC's memos provided

advice and best practices which election officials could weigh

and consider. Many surely followed that advice. But the memos

did not themselves "authorize" drop boxes or any other election practice in a legally binding way.

32 No. 2022AP91.bh

¶201 Justice Rebecca Grassl's Bradley concurrence concludes

the memos are administrative rules, a position premised on a

confused interpretation of Trump v. Biden, 2020 WI 91, 394

Wis. 2d 629, 951 N.W.2d 568. In that case, the court used the

word "rulebook" in a metaphor regarding challenge flags in

football. Id., ¶32. The logic of Justice Bradley's concurrence

goes like this: The court said WEC's memos were a rulebook, so

the court held that WEC memos have the force of law and are

administrative rules under Wis. Stat. § 227.01(13).

¶202 To state the obvious, a metaphor is "a figure of

speech in which a term or phrase is applied to something to

which it is not literally applicable."18 The challenge flag

metaphor came in the concluding paragraph to reinforce the

importance of challenging election practices in a timely manner.

Yet the concurrence reasons that using the coincidentally

similar word "rulebook" means the court determined that all WEC

memos are "rules" within the statutory definition. Except the

court's decision in Trump did not involve administrative rulemaking at all. It did not cite Wis. Stat. § 227.01(13).

And no part of the analysis ascribed the force of law to WEC

guidance. Rather, the court's decision addressed whether the

Trump campaign was entitled to the relief it sought——the

striking of ballots cast in Dane and Milwaukee Counties. Trump,

https://www.dictionary.com/browse/metaphor 18 (emphasis added); see, e.g., Thurl Ravenscroft, You're a Mean One, Mr. Grinch, on How the Grinch Stole Christmas (Mercury Records 1966) (referring to Mr. Grinch as a "bad banana" and to his heart as an "empty hole").

33 No. 2022AP91.bh

394 Wis. 2d 629, ¶32. The court expressly withheld judgment on

whether the widely followed WEC guidance was correct or not.

Id., ¶30 n.11 ("Our decision that the Campaign is not entitled

to the relief it seeks does not mean the legal issues presented

are foreclosed from further judicial scrutiny."). Simply put,

neither the court's reasoning nor its concluding metaphor

suggested all such guidance has the force of law and must be

followed. It never even hinted this. The idea that we should

ascribe legal force to the two challenged memos in this case

because this was somehow settled by a one-sentence metaphor in

Trump v. Biden is not a serious legal argument.

¶203 In the end, neither the March 2020 memo nor the August

2020 memo are unpromulgated administrative rules because neither

have the force of law. The memos here are guidance documents.

They are not subject to Wis. Stat. ch. 227's promulgation

requirements and cannot be invalidated on that basis. They can,

however, be invalidated for being inconsistent with statute, as

we hold today.19

V. CONCLUSION

¶204 The majority/lead opinion correctly concludes that

WEC's March 2020 and August 2020 memos are invalid because they

are inconsistent with Wisconsin law. Wisconsin's election

statutes require that to return an absentee ballot in person,

Of course, if unstaffed drop boxes are not permitted by 19

statute, as a majority of this court holds today, then no rulemaking authorizing drop boxes would be permissible. An administrative rule cannot make lawful what the statutes forbid.

34 No. 2022AP91.bh

voters must personally deliver their ballot to the clerk or the

clerk's authorized representative at either the clerk's office

or a designated alternate site. Wis. Stat. §§ 5.02(10), 6.855,

6.87(4)(b)1., 6.88(1). WEC's memos conflict with these

statutory requirements by advising that individuals other than

the voter may return the voter's ballot to the municipal clerk,

that unstaffed drop boxes are permissible, and that drop boxes

may be located at places other than the municipal clerk's office

or alternate sites. I respectfully concur.

35 No. 2022AP91.awb

¶205 ANN WALSH BRADLEY, J. (dissenting). The right to

vote is a "sacred right of the highest character." State ex

rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910).

Yet the majority/lead opinion1 blithely and erroneously seeks to

sow distrust in the administration of our elections and through

its faulty analysis erects yet another barrier for voters to

exercise this "sacred right."

¶206 Although it pays lip service to the import of the

right to vote, the majority/lead opinion has the practical

effect of making it more difficult to exercise it. Such a

result, although lamentable, is not a surprise from this court.

It has seemingly taken the opportunity to make it harder to vote

or to inject confusion into the process whenever it has been

presented with the opportunity.2

¶207 A ballot drop box is a simple and perfectly legal

solution to make voting easier, especially in the midst of a

1 I refer to Justice Rebecca Grassl Bradley's opinion as the "majority/lead opinion" because not all of the opinion has been joined by a majority of the court. Justice Brian Hagedorn does not join the following paragraphs: 1-3, 11, 14-51, 64-72, 86, n.29, 87. Justice Hagedorn's concurrence, ¶149 n.1. Thus, those paragraphs do not constitute precedential authority. For further discussion of our procedure regarding 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). 2 See, e.g., Teigen v. Wis. Elections Comm'n, No. 2022AP91, unpublished order (Wis. S. Ct. Feb. 11, 2022); League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302; Milwaukee Branch of NAACP v. Walker, 2014 WI 98, 357 Wis. 2d 469, 851 N.W.2d 262. Each opinion had vigorous dissents.

1 No. 2022AP91.awb

global pandemic.3 But it is apparently a bridge too far for a

majority of this court, which once again rejects a practice that

would expand voter participation.

¶208 The majority/lead opinion's analysis is flawed in

three main ways. It expands the doctrine of standing beyond

recognition, is premised on a faulty statutory interpretation,

and without justification fans the flames of electoral doubt

that threaten our democracy.

¶209 Accordingly, I respectfully dissent.

I

¶210 At the outset, the majority/lead opinion makes a

significant misstep. It begins with a lengthy discussion of

3 A justice of the United States Supreme Court recently cited the existence of drop boxes in support of the assertion that "[r]eturning an absentee ballot in Wisconsin is . . . easy." Democratic Nat'l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 36 (2020) (Kavanaugh, J., concurring); see also id. at 29 (Gorsuch, J., concurring) ("Never mind that voters may return their ballots not only by mail but also by bringing them to a county clerk's office, or various 'no touch' drop boxes staged locally, or certain polling places on election day."). After the result in this case, the idea that returning a ballot is so "easy" becomes less defensible.

2 No. 2022AP91.awb

standing,4 and in the process extends the doctrine beyond

recognition.

¶211 In the majority/lead opinion's view, Teigen5 has

standing "under Wisconsin's permissive, policy-oriented approach

toward standing" because he has a "stake in the outcome" and is

"affected by the issues in controversy." Majority/lead op.,

¶14. Teigen has suffered an "injury in fact" to his

constitutional right to vote, the majority/lead opinion says,

merely because he alleges that election law was not followed.

In accepting Teigen's standing to bring this suit, it further

states: "the failure to follow election laws is a fact which

forces everyone . . . to question the legitimacy of election

results." Id., ¶25.

The majority/lead opinion additionally devotes a great 4

deal of ink to analyzing whether Teigen needed to file a complaint with WEC under Wis. Stat. § 5.06 before commencing this suit. See majority/lead op., ¶¶37-51. It determines that this statute does not require a complaint to be filed against WEC, in part because such a procedure would cause WEC to "be a judge in [its] own cause." Id., ¶47. Rather than engage with each point the majority/lead opinion makes in its discussion, I simply observe that an agency reviewing its own decision at the beginning of an appeal process is a common occurrence and does not present the anomaly that the majority/lead opinion paints. See Wis. Stat. § 283.63 (providing for review by the Department of Natural Resources of a permit denial, modification, termination, or revocation decision made by the Department)

The majority/lead opinion refers to Teigen and Thom as the 5

"Wisconsin voters" throughout its opinion. This could be misleading to the reader. True enough, Teigen and Thom are voters who live in Wisconsin. But the use of the term could lead the reader to believe that the plaintiffs here represent a wider swath of people than they actually do. Thus, I refer to the two plaintiffs collectively as "Teigen."

3 No. 2022AP91.awb

¶212 The majority/lead opinion attempts to create a free-

for-all. It delineates no bounds whatsoever on who may

challenge election laws. Instead, it relies on broad

pronouncements regarding the import of our election laws and

their general effect on all people. But just because all people

are subject to a law does not mean that any and all people are

entitled to challenge it.

¶213 Indeed, "Courts are not the proper forum to air

generalized grievances about the administration of a

governmental agency." Cornwell Personnel Assocs., Ltd. v.

DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App. 1979)

(citations omitted); see also Lujan v. Defenders of Wildlife,

504 U.S. 555, 573-74 (1992) ("We have consistently held that a

plaintiff raising only a generally available grievance about

government——claiming only harm to his and every citizen's

interest in proper application of the Constitution and laws, and

seeking relief that no more directly and tangibly benefits him

than it does the public at large——does not state an Article III case or controversy.").

¶214 Yet a "generalized grievance" is just what Teigen

brings to this court. The majority/lead opinion says that

Teigen's "rights and privileges as [a] registered voter[]" give

him standing to bring this action challenging the statewide

administration of elections. Majority/lead op., ¶14. Taken to

its logical conclusion, the majority/lead opinion indicates that

any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of

4 No. 2022AP91.awb

voter standing is breathtaking and especially acute at a time of

increasing, unfounded challenges to election results and

election administrators.6

¶215 Rather than opening wide the barn doors, the doctrine

of standing is important "because it reins in unbridled attempts

to go beyond the circumscribed boundaries that define the proper

role of courts." Fabick v. Evers, 2021 WI 28, ¶92, 396

Wis. 2d 231, 956 N.W.2d 856 (Ann Walsh Bradley, J., dissenting).7

"Unbridled" certainly describes the majority/lead opinion's

approach to standing in this case. It follows a standard

untethered to any limiting principle, which in effect renders

the concept of standing merely illusory.

II

¶216 I turn next to the substance of the majority/lead

opinion's statutory interpretation.8 Even assuming Teigen has

standing to bring this claim, the majority/lead opinion falters

in its examination of the relevant statutes.

See Election Officials Under Attack: How to Protect 6

Administrators and Safeguard Democracy, Brennan Center for Justice and the Bipartisan Policy Center, https://www.brennancenter.org/our-work/policy- solutions/election-officials-under-attack (June 16, 2021).

Justice Hagedorn's concurrence likewise recognizes that 7

the doctrine of standing "serves as a vital check on unbounded judicial power." Justice Hagedorn's concurrence, ¶160.

Although I address the majority/lead opinion's statutory 8

analysis, my critique also largely applies to Justice Hagedorn's concurrence, which reaches the same conclusion.

5 No. 2022AP91.awb

A

¶217 Wisconsin Stat. § 6.87 addresses absentee voting

procedure. Subd. (4)(b)1., specifically at issue here, provides

in relevant part: "The envelope shall be mailed by the elector,

or delivered in person, to the municipal clerk issuing the

ballot or ballots."

¶218 In the majority/lead opinion's view, "[n]othing in the

statutory language detailing the procedures by which absentee

ballots may be cast mentions drop boxes or anything like them."

Majority/lead op., ¶54. Further, it interprets the phrase "to

the municipal clerk" to mean "mailing or delivering the absentee

ballot to the municipal clerk at her office" or an alternate

site under Wis. Stat. § 6.855. Id., ¶62.

¶219 The majority/lead opinion's interpretation of Wis.

Stat. § 6.87(4)(b)1. ignores an important distinction. Section

6.87(4)(b)1. uses the phrase "municipal clerk." It does not say

"municipal clerk's office."

¶220 This is important because elsewhere the Wisconsin Statutes are replete with references to the "office of the

municipal clerk," the "office of the clerk," or the "clerk's

office." Not only is such an "office" referenced, but it 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

6 No. 2022AP91.awb

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

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

the municipal clerk").9

¶221 From these statutes we can take the principle that the

office of the municipal clerk is a location. Indeed, a person

"appear[s]" at a location. See Wis. Stat. § 6.32(2). That the

"office of the municipal clerk" refers to a location is

confirmed by the fact that the statutes refer to it as

"contain[ed]" within a "building." See Wis. Stat.

§ 12.035(3)(d).

¶222 We also know that a "municipal clerk" under the

statutes is distinct from the "office of the municipal clerk,"

because "municipal clerk" is specifically defined as "the city

clerk, town clerk, village clerk and the executive director of

the city election commission and their authorized

representatives." Wis. Stat. § 5.02(10). In other words, the

"municipal clerk" is a person, and the "office of the municipal

clerk" is a location. ¶223 "If a word or words are used in one subsection but are

not used in another subsection, we must conclude that the

legislature specifically intended a different meaning."

Responsible Use of Rural and Agr. Land v. Pub. Serv. Comm'n,

2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888. If the

Further examples abound. 9 See 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).

7 No. 2022AP91.awb

legislature wanted to require return of a ballot to the clerk's

office, it certainly could have done so, as it did in the litany

of provisions using such language. See, e.g., Southport

Commons, LLC v. DOT, 2021 WI 52, ¶31, 397 Wis. 2d 362, 960

N.W.2d 17 (indicating that when the legislature wants to

accomplish an object in a manner used in other areas of the

statutes, "it knows how to do so").

¶224 But the legislature did not do that. Instead, it

indicated that the ballot be delivered "to the municipal clerk,"

not to the clerk's office. Conflating "municipal clerk" with

"office of the municipal clerk" is not——as the majority/lead

opinion claims——the "fairest interpretation" of the statute.

See majority/lead op., ¶62. Instead, it is a rank distortion of

the statutory text.

¶225 Can delivery to a drop box constitute delivery "to

the municipal clerk?" Absolutely. A drop box is set up by the

municipal clerk, maintained by the municipal clerk, and emptied

by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk's

office. As stated, the "municipal clerk" in the statutes is a

person, and the "office of the municipal clerk" is a location.

Applying this principle, there is nothing in the statute that

even hints that unstaffed drop boxes are impermissible. Rather,

a drop box, which the clerk or the clerk's designee10 sets up,

10As stated, "municipal clerk" is statutorily defined as "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, this job need not be accomplished by a single person. 8 No. 2022AP91.awb

maintains, and empties, is simply another way to deliver a

ballot "to the municipal clerk."11 The majority/lead opinion's

attempt to avoid the statute's plain language fails.

¶226 The majority/lead opinion additionally invokes Wis.

Stat. § 6.855 in an attempt to "show[] the unlawfulness of

ballot drop boxes." Id., ¶56. Again, the majority/lead opinion

flounders. This statute simply does not apply to drop boxes and

tells us nothing about whether their use is permissible.12

¶227 To explain, Wis. Stat. § 6.855 establishes the

procedures by which municipal clerks can set up "alternate

absentee ballot sites." These are commonly referred to as early

11The circuit court in this case drew a distinction between staffed and unstaffed drop boxes, determining that drop boxes are not permitted "unless the drop box is staffed by the clerk and located at the office of the clerk or a properly designated alternate site." See majority/lead op., ¶9. Yet the majority/lead opinion does not address this distinction, raising more questions than it answers. Does this distinction retain vitality? If so, does a drop box located directly outside the front door to a clerk's office count as a "staffed" drop box? Must a staff member from the clerk's office be standing outside next to the drop box? Or is it sufficient if the clerk can see the box from a window while inside the office? Once again, the majority/lead opinion leaves municipal clerks and voters guessing. 12Justice Hagedorn's concurrence also brings Wis. Stat. § 6.88 into the analysis. Justice Hagedorn's concurrence, ¶180. That statute likewise has no bearing on how ballots may be "delivered" to the municipal clerk. Rather, § 6.88(1) addresses what occurs when an absentee ballot "arrives at the office of the municipal clerk" (emphasis added), and subsec. (2) concerns what a clerk does with ballots after they are "received" by the clerk. In other words, § 6.88 speaks only of what happens to a ballot after it has been delivered to the municipal clerk, not how it gets there.

9 No. 2022AP91.awb

in person absentee voting, or simply "early voting." Section

6.855(1) provides:

The governing body of a municipality may elect to designate a site other than the office of the municipal clerk or board of election commissioners as the location from which electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election." (Emphasis added).

¶228 On its face, Wis. Stat. § 6.855 sets forth that

alternate voting sites "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 v. Biden, 2020

WI 91, ¶56, 394 Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J.,

concurring). Thus, as the majority/lead opinion acknowledges,

"[b]allot drop boxes are not alternate absentee ballot sites

under Wis. Stat. § 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." Majority/lead op., ¶57. ¶229 The majority/lead opinion reads into Wis. Stat.

§ 6.855 an implication beyond the statute's language. Although

the majority/lead opinion correctly acknowledges that § 6.855

does not describe drop boxes, it seeks support for its result in

the assertion that "[t]he legislature enacted a detailed

statutory construct for alternate sites" while at the same time

"the details of the drop box scheme are found nowhere in the

statutes." Id., ¶58. This argument falls flat for the same reason the majority/lead opinion's statutory analysis of Wis. 10 No. 2022AP91.awb

Stat. § 6.87(4)(b)1. fails: the legislature did not include a

detailed scheme for drop boxes in the statutes because it did

not need to do so. As analyzed above, § 6.87(4)(b)1. already

authorizes them.

¶230 Election administration in Wisconsin is decentralized.

State ex rel. Zignego v. Wis. Elections Comm'n, 2021 WI 32, ¶13,

396 Wis. 2d 391, 957 N.W.2d 208. "Rather than a top-down

arrangement with a central state entity or official controlling

local actors, Wisconsin gives some power to its state election

agency (the Commission) and places significant responsibility on

a small army of local election officials." Id. Indeed,

"Municipal clerks are the officials primarily responsible for

election administration in Wisconsin." Id., ¶15.

¶231 This significant responsibility is codified in the

statutes. Wisconsin Stat. § 7.15(1) specifically provides:

"Each municipal clerk has charge and supervision of elections

and registration in the municipality. The clerk shall perform

the following duties and any others which may be necessary to properly conduct elections or registration . . . ." See also

Wis. Stat. § 60.33(4)(a) ("The town clerk shall . . . [p]erform

the duties required by chs. 5 to 12 relating to elections.").

¶232 Instead of an inexorable command that unstaffed drop

boxes are banned, Wis. Stat. § 6.87(4)(b)1. gives some

discretion to municipal clerks to determine how best to run

elections in their respective jurisdictions. By using the

"municipal clerk" language rather than the "office of the municipal clerk" verbiage, the legislature necessarily entrusts

11 No. 2022AP91.awb

some discretion to the municipal clerk in a manner consistent

with the entirety of the statutory scheme. See DeWitt v.

Ferries, 2018 WI 117, ¶26, 385 Wis. 2d 1, 921 N.W.2d 188

(indicating that statutes are to be read in context, not in

isolation but as part of a whole, and in relation to the

language of closely-related statutes).

¶233 The circuit court here allowed the use of staffed drop

boxes in the office of a municipal clerk. But what good is this

for a clerk in a rural area who may work only a few hours a

week? In this context, it certainly makes sense for those

clerks to have at least the discretion to place a drop box

outside the office or in another location so voters can drop off

absentee ballots outside of the limited hours the clerk's office

is actually open.

¶234 Instead of this common sense reading that is

consistent with the decentralized manner in which Wisconsin

elections are run, the majority/lead opinion severely limits the

return of absentee ballots in all municipalities regardless of their circumstances. Some voters will be unlucky enough to live

in a jurisdiction without a full-time clerk, and others will be

forced to go to only a single location to return their ballots

where they previously had numerous options. Does the

majority/lead think everyone in this state lives in urban areas

with full-time clerks and standard office hours? If so, it

ignores reality and puts rural voters at a disadvantage.

¶235 Our statutes and case law indicate that election administration in Wisconsin is not one-size-fits-all. See

12 No. 2022AP91.awb

Zignego, 396 Wis. 2d 391, ¶13. Yet the majority/lead opinion

fails to recognize this, making election administration more

onerous for local clerks and the exercise of the franchise more

difficult for voters.

B

¶236 Contravening the plain language of the statute to

prohibit ballot drop boxes is bad enough. But the majority/lead

opinion further erroneously determines that a voter cannot have

a family member or friend return their ballot to the municipal

clerk for them. Majority/lead op., ¶83.

¶237 The brunt of this holding will fall on those who are

homebound. If a voter is disabled or sick, and someone the

voter lives with is taking their own absentee ballot to the

clerk's office, that roommate, spouse, or family member can't,

under the majority/lead opinion's analysis, simply pick up

another validly voted ballot from the kitchen table and take it

with them.

¶238 As absurd as that sounds in practice,13 the majority/lead opinion's statutory interpretation to reach that

result fares no better. Although at first blush the

majority/lead opinion's interpretation may seem reasonable, a

closer examination of the text reveals otherwise. Section

13 Not to mention that the majority/lead opinion's conclusion arguably violates federal law related to voters with disabilities. See 52 U.S.C. § 10508 ("Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union.").

13 No. 2022AP91.awb

6.87(4)(b)1. addresses only the manner for returning a ballot

("in person") and not who may return it.

¶239 Wisconsin Stat. § 6.87(4)(b)1., as stated above,

provides: "The envelope shall be mailed by the elector, or

delivered in person, to the municipal clerk issuing the ballot

or ballots." As relevant to this issue, we focus on the

placement of the words within the statute.

¶240 Section 6.87(4)(b)1. does not say "delivered in person

by the elector." It says "delivered in person."14 The

majority/lead opinion transposes the phrase "by the elector,"

placing it not where the legislature placed it (after "mailed"),

but instead writing it into the statute where the majority/lead

opinion prefers it to be placed in order to bolster its

erroneous conclusion. Yet, the statute says nothing at all

about who may return a ballot to the municipal clerk. Rather,

the statute is written in the passive voice and does not

indicate who the actor is who must deliver the ballot "in

person." See Juneau Cnty. Star-Times v. Juneau County, 2011 WI App 150, ¶15, 337 Wis. 2d 710, 807 N.W.2d 655.

¶241 The majority/lead opinion violates a cardinal rule of

statutory interpretation by writing words into the statute the

legislature did not write. See Dawson v. Town of Jackson, 2011

Further bolstering this interpretation of the statute is 14

the fact that the legislature used the plural in indicating that a completed ballot must be "delivered in person, to the municipal clerk issuing the ballot or ballots." Wis. Stat. § 6.87(4)(b)1. (emphasis added). Why would the legislature use the plural if it did not contemplate that one person could return an additional ballot?

14 No. 2022AP91.awb

WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316. A voter's spouse,

child, or roommate can deliver a ballot "in person" just as the

voter can, and the statute draws no distinction. Yet the

majority/lead opinion manufactures one, going outside the words

the legislature wrote to place yet another obstacle in the way

of voters simply seeking to exercise their cherished right to

vote.15

15As I end my discussion of this issue, I emphasize the limited nature of the court's determination. It applies to absentee ballots delivered in person to the municipal clerk, not to a family member or a friend placing a ballot in the mail on behalf of a voter. See majority/lead op., ¶5; Justice Hagedorn's concurrence, ¶185.

However, despite its insistence that it is not addressing the issue, the majority/lead opinion proceeds to go on at length about Disability Rights Wisconsin's argument regarding federal law on ballot assistance and criticizes the argument as "undeveloped." See majority/lead op., ¶¶84-86. As the majority/lead opinion acknowledges, this argument is directed at the "impact of the circuit court's declarations on disabled voters who may be physically unable to vote if someone cannot place an absentee ballot in the mail on a voter's behalf." Id., ¶86. Accordingly, this sojourn is completely unnecessary to both the majority/lead opinion's holding and its analysis. I highlight, however, the majority/lead opinion's own statement that we do not decide "whether the law permits a voter's agent to place an absentee ballot in the mail on the voter's behalf." Id., ¶5; see also Justice Hagedorn's concurrence, ¶185 (explaining that "the court should not and does not make any declaration on [this] question").

Undeterred by the majority/lead opinion's statement that the WEC memos at issue "do not address" the issue, Justice Roggensack's concurrence forges ahead with that analysis anyway. Rather than engage on an issue that is not properly before the court in the first place, I simply observe that Justice Roggensack's concurrence is not the law, and that the issue of whether a family member or other person may place an absentee ballot in a mailbox on behalf of a voter is not resolved by this opinion.

15 No. 2022AP91.awb

III

¶242 As a final point, I address the majority/lead

opinion's language casting doubt on the results of past

elections conducted with drop boxes. The majority/lead opinion

claims that "[t]he illegality of these drop boxes weakens the

people's faith that the election produced an outcome reflective

of their will." Majority/lead op., ¶24; see also id., ¶25

("[T]he failure to follow election laws is a fact which forces

everyone . . . to question the legitimacy of election

results."). It suggests that the use of drop boxes leaves

electoral results "in question." Id., ¶24.

¶243 Nonsense. First, accepting the majority/lead

opinion's assertion requires either willful ignorance to the

origin of the WEC August 19, 2020 memo or a lack of trust in its

source. The August 19, 2020 memo was "adapted from a resource

developed as part of the Cybersecurity and Infrastructure

Security Agency (CISA) Elections Infrastructure Government

Coordinating Council and Sector Coordinating Council's Joint COVID Working Group." CISA is operated under the auspices of

the Department of Homeland Security. Drop boxes were apparently

secure enough for the federal Department of Homeland Security,

yet the majority/lead opinion still contends that they cause

people to lose faith in our elections.

¶244 There is no evidence at all in this record that the

use of drop boxes fosters voter fraud of any kind. None. And

there certainly is no evidence that voters who used drop boxes

16 No. 2022AP91.awb

voted for one candidate or party or another, tilting elections

either direction.

¶245 It is true that the legislature has referred to

absentee voting as a "privilege exercised wholly outside the

traditional safeguards of the polling place" that must be

"carefully regulated to prevent the potential for fraud or

abuse." Wis. Stat. § 6.84(1). But despite the majority/lead

opinion's bald assertion that voter fraud is actually a "serious

problem," majority/lead op., ¶71, studies have demonstrated

extremely low rates of voter fraud in United States elections.16

¶246 The majority/lead opinion's sky-is-falling rhetoric

not only defies the facts, but also is downright dangerous to

our democracy. Absent evidence that supports its statements,

the majority/lead opinion still lends its imprimatur to efforts

to destabilize and delegitimize recent elections.

¶247 But concerns about drop boxes alone don't fuel the

fires questioning election integrity. Rather, the kindling is

primarily provided by voter suppression efforts and the constant

16See, e.g., Andrew C. Eggers, Haritz Garro, and Justin Grimmer, No evidence for systematic voter fraud: A guide to statistical claims about the 2020 election, Proc. of the Nat'l Acad. of Sci., https://www.pnas.org/doi/10.1073/pnas.2103619118 (Nov. 2, 2021); Justin Levitt, The Truth About Voter Fraud, Brennan Center for Justice, https://www.brennancenter.org/our- work/research-reports/truth-about-voter-fraud (Nov. 9, 2007); see also Trump v. Biden, 2020 WI 91, ¶59, 394 Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J., concurring) ("At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.").

17 No. 2022AP91.awb

drumbeat of unsubstantiated rhetoric in opinions like this one,

not actual voter fraud.17

¶248 For the foregoing reasons, I respectfully dissent.

¶249 I am authorized to state that Justices REBECCA FRANK

DALLET and JILL J. KAROFSKY join this dissent.

17As should be clear by now, this dissent's analysis is neither an "ad hominem attack" nor "political talking points" as the majority/lead opinion claims. See majority/lead op., ¶86 n.29. This court's poor track record on voting rights is well- established and the flaws in the majority/lead opinion's analysis that lead to an additional "barrier" to voting are set forth in this opinion.

Nevertheless, footnote 29 of the majority/lead opinion takes this dissent to task and ridicules Justice Jill Karofsky for joining it, while at the same time partaking in the very conduct about which it is complaining.

What comes to mind is the adage of psychological projection——"the pot calling the kettle black." Rather than detailing in response the several and recent examples illustrating the adage (and risking the undesirable escalation of hyperbole), I observe only that there is an obvious difference between attacking a public servant as a "tyrant" for merely doing her job, which elicited Justice Karofsky's objection in Becker, and simply pointing out this court's poor recent track record when it comes to protecting voting rights, as does this dissent. See Becker v. Dane County, 2022 WI __, ¶44, __ Wis. 2d __, __ N.W.2d __.

18 No. 2022AP91.awb