Timothy Zignego v. Wisconsin Elections Commission

2021 WI 32, 957 N.W.2d 208, 396 Wis. 2d 391

• Court: Wisconsin Supreme Court
• Decided: April 9, 2021
• Docket: 2020AP000112
• Status: Published

Opinion

2021 WI 32

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2397 & 2020AP112

COMPLETE TITLE: State of Wisconsin ex rel. Timothy Zignego, David W. Opitz and Frederick G. Luehrs, III, Plaintiffs-Respondents-Petitioners, v. Wisconsin Elections Commission, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen and Mark Thomsen, Defendants-Appellants.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 391 Wis. 2d 441,941 N.W.2d 284 PDC No:2020 WI App 17 - Published

OPINION FILED: April 9, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 29, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Ozaukee JUDGE: Paul V. Malloy

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

ATTORNEYS:

For the plaintiffs-respondents-petitioners, there were briefs filed by Lucas T. Vebber, Richard M. Esenberg, Brian McGrath, Anthony LoCoco, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

For the defendants-appellants, there was a brief filed by Karla Z. Keckhaver, Steven C. Kilpatrick, and Colin T. Roth, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Joshua L. Kaul.

An amicus curiae brief was filed on behalf of Felicia Ellzey, Marangelly Quintana Feliciano, Jennifer Hagen & SEIU Wisconsin State Council by Jeffrey A. Mandell, Kurt M. Simatic, and Stafford Rosenbaum LLP, Madison; with whom on the brief was Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of League of Women Voters of Wisconsin by Douglas M. Poland and Rathje Woodward LLC, Madison; with whom on the brief was Jon Sherman and Fair Elections Center, Washington, District of Columbia.

An amicus curiae brief was filed on behalf of The Public Interest Legal Foundation by Eric J. Hatchell and Foley & Lardner LLP, Madison; with whom on the brief was Kaylan Phillips and Public Interest Legal Foundation, Indianapolis, Indiana.

2 2021 WI 32

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 2019AP2397 & 2020AP112 (L.C. No. 2019CV449)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Timothy Zignego, David W. Opitz and Frederick G. Luehrs, III,

Plaintiffs-Respondents-Petitioners, FILED v. APR 9, 2021 Wisconsin Elections Commission, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Sheila T. Reiff Clerk of Supreme Court Knudsen and Mark Thomsen,

Defendants-Appellants.

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

REVIEW of a decision of the Court of Appeals. Modified,

and as modified, affirmed and cause remanded.

¶1 BRIAN HAGEDORN, J. Wisconsin law requires that its

statewide voter registration list be updated regularly. Before

us is a dispute over one kind of voter-registration cleanup

prescribed by law: a statute requiring that the registration

status of eligible voters ("electors" in the words of the statute) be changed when officials receive reliable information Nos. 2019AP2397 & 2020AP112

that the elector moved out of their municipality. Wis. Stat.

§ 6.50(3) (2017-18).1 This case does not concern the validity of

this law or whether it should be complied with. Instead, the

question we address today is whether § 6.50(3) places a positive

and plain duty on the Wisconsin Elections Commission (the

"Commission") to do what the law requires. We conclude it does

not.

¶2 Wisconsin Stat. § 6.50(3) directs "the municipal clerk

or board of election commissioners" to act when they receive

"reliable information that a registered elector has changed his

or her residence to a location outside of the municipality." In

particular, "the municipal clerk or board of election

commissioners" must send a letter regarding the move to the

elector, and if the registered elector does not respond within

30 days, the "clerk or board of election commissioners shall

change the elector's registration from eligible to ineligible

status." § 6.50(3).

¶3 With limited exceptions, the judicial branch ordinarily does not order the executive branch to do its job.

One limited vehicle by which it may do so is what is called a

writ of mandamus. This is a remedy whereby a court may order a

specific actor to take a certain action; but a court may do this

only when the duty is positive and plain. The petitioners2 in

All subsequent references to the Wisconsin Statutes are to 1

the 2017-18 version unless otherwise indicated.

The petitioners in this case are Timothy Zignego, David W. 2

Opitz, and Frederick G. Luehrs, III, all of whom are registered electors and taxpayers in Wisconsin.

2 Nos. 2019AP2397 & 2020AP112

this case (collectively, "Zignego") sought a writ of mandamus

against the Commission and its commissioners3 to carry out the

commands of Wis. Stat. § 6.50(3) and change the registration of

electors who may have moved. The circuit court4 granted the

writ, and later found the Commission and several commissioners

in contempt after the Commission failed to comply.

¶4 The court of appeals reversed, concluding the writ of

mandamus was granted in error, and we agree. Under Wis. Stat.

§ 6.50(3), the responsibility to change the registration of

electors who may have moved out of their municipality is given

to "the municipal clerk or board of election commissioners."

Zignego argues that the Commission is a "board of election

commissioners." This is plainly incorrect. Our election laws

tell us how they will refer to the Commission: by use of the

term "commission" (or occasionally "elections commission").

Wis. Stat. § 5.025. The "board of election commissioners"

refers to a different kind of entity under our laws, one whose

province is local. See Wis. Stat. §§ 7.20, 7.21, 7.22. In short, Zignego's argument that the Commission is required to

carry out the mandates of § 6.50(3) is contrary to what the

The respondents are the Wisconsin Elections Commission and 3

Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudsen, and Mark Thomsen, five of the six commissioners sued solely in their official capacities. The sixth commissioner at the time of these events was Jodi Jensen, but she resigned prior to the initiation of this suit and her successor is not named as a party to this case.

The Honorable 4 Paul V. Malloy, Ozaukee County Circuit Court, presiding.

3 Nos. 2019AP2397 & 2020AP112

statute says because the statute assigns its duties to municipal

election officials. The Commission has no statutory obligation,

and therefore no positive and plain duty, to carry out the

requirements of § 6.50(3). The circuit court therefore erred by

issuing a writ of mandamus ordering it to do so.

¶5 The circuit court's contempt order against the

Commission and several of its commissioners likewise must be

reversed. The contempt order imposed remedial sanctions aimed

at present and future compliance with the writ——a daily

forfeiture beginning the date the contempt order was signed.

But remedial sanctions cannot remain for failure to obey what we

have determined was an unlawful writ of mandamus. That said,

while we reverse the contempt order, we remind the Commission

that waiting for an appellate court to grant a stay or reverse a

circuit court order it disagrees with does not justify ignoring

that order.

¶6 In sum, while Wis. Stat. § 6.50(3) requires that the

registration status be changed for those who move out of their municipality, it gives this responsibility to municipal election

officials, not to the Commission. Therefore, we affirm5 the

decision of the court of appeals reversing the circuit court's

writ of mandamus and contempt orders.

5While we affirm the underlying decision of the court of appeals to reverse both orders issued by the circuit court, we withdraw portions of the court of appeals decision, as explained below.

4 Nos. 2019AP2397 & 2020AP112

I. BACKGROUND

¶7 The issues in this case arose when the Commission

received a "movers report" from the Electronic Registration

Information Center, Inc. (ERIC), a multi-state consortium

created to improve the accuracy of voter registration systems.

This report identifies currently registered voters who may no

longer be eligible to vote at their registered address because

they either died or moved. After receiving the report, the

Commission conducted internal vetting and, in October 2019, sent

notices to approximately 230,000 Wisconsin voters who the report

suggested may no longer reside at their registered address.

These notices informed the recipients that they could affirm

their address by: (1) doing so at myvote.wi.gov; (2) returning

the attached postcard to their municipal clerk; or (3) voting at

the next election.

¶8 Less than two weeks after the notices were mailed,

Zignego filed a verified complaint with the Commission pleading

that the Commission deactivate non-responsive electors pursuant to the 30-day timeframe outlined in Wis. Stat. § 6.50(3). The

Commission dismissed this complaint without prejudice as

untimely filed, in part because the Commission considered and

discussed the mailings at its meetings in March and June of

2019.

¶9 Zignego then filed suit against the Commission and

five of its commissioners seeking a declaration and temporary

and permanent injunctive relief, or in the alternative, a writ of mandamus. The circuit court conducted a hearing on December 5 Nos. 2019AP2397 & 2020AP112

13, 2019, and orally ruled that a writ of mandamus would issue

ordering the Commission to comply with Wis. Stat. § 6.50(3).

The written mandamus order followed shortly thereafter

compelling the Commission to "deactivate the registration of

those electors who have failed to apply for continuation of

their registration within 30 days of the date the notice was

mailed."

¶10 The issuance of the writ of mandamus triggered a

flurry of filings appealing the order to the court of appeals,

petitioning for bypass to this court, and seeking a stay. The

Commission, however, took no action to comply with the writ.

Zignego followed with a motion asking the circuit court to hold

the Commission and its commissioners in contempt. On January

13, 2020, the circuit court conducted a hearing and found the

Commission and several commissioners in contempt. The court

imposed, as a remedial sanction, a forfeiture of $50 per day

against the Commission and a forfeiture of $250 per day against

each of the three commissioners who voted to take no action to comply with the writ.6

¶11 That same day, the Commission filed a notice of appeal

with respect to the contempt order and moved for a stay. Also

on the same day, this court denied Zignego's petition for

bypass. The next morning, the court of appeals stayed both the

The Commission met on December 16, 2019, and considered a 6

motion to comply with the circuit court's mandamus order, but that motion failed in a 3-3 vote. The Commission met again on December 30, 2019, and once more took no action to comply with the mandamus order.

6 Nos. 2019AP2397 & 2020AP112

contempt order and the writ of mandamus, explaining that the

court's reasoning would be set forth in a subsequent order. A

week later, the court of appeals issued its opinion and reversed

the circuit court's writ of mandamus and contempt orders. State

ex rel. Zignego v. WEC, 2020 WI App 17, 391 Wis. 2d 441, 941

N.W.2d 284. Zignego petitioned this court for review, which we

granted.

II. DISCUSSION

¶12 The dispositive question in this case is whether the

Commission can be ordered to carry out the requirements of Wis.

Stat. § 6.50(3).7 This is a question of statutory interpretation

we review de novo. Mueller v. TL90108, LLC, 2020 WI 7, ¶11, 390

Wis. 2d 34, 938 N.W.2d 566. When interpreting statutes, we

focus primarily on the language of the statute, looking as well

to its statutory context and structure. State ex rel. Kalal v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-46, 271

Wis. 2d 633, 681 N.W.2d 110. We begin with the broader

7 The Commission argues Zignego does not have standing or a statutory right to bring this challenge. Because we reverse the mandamus and contempt orders on other grounds, we need not reach these questions.

Additionally, the Commission asserts that whether the movers report constituted sufficiently "reliable" information under Wis. Stat. § 6.50(3) involves a matter of judgment and discretion, meaning action based on this data cannot be compelled by a writ of mandamus. We also need not reach this question, and because we need not reach this question, we withdraw any language in the court of appeals decision deciding this issue.

7 Nos. 2019AP2397 & 2020AP112

statutory framework, and then apply these principles to the two

orders in this case.

A. Relevant Election Statutes

1. The Actors

¶13 Unlike many places around the country, Wisconsin has a

highly decentralized system for election administration.

Jefferson v. Dane County, 2020 WI 90, ¶24 n.5, 394 Wis. 2d 602,

951 N.W.2d 556. 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.; see also

https://elections.wi.gov/index.php/clerks (explaining that

Wisconsin's 1,850 municipal clerks and 72 county clerks are each

"a partner in the process of carrying out open, fair and

transparent elections").

¶14 We begin in the same way the election statutes begin—— by defining who the main actors are in this delicate democratic

dance. The statutes regularly refer to and largely define three

primary actors for our purposes here: (1) a "municipal clerk";

(2) a "board of election commissioners"; and (3) "the

commission."

¶15 "Municipality" under the election statutes (chapters 5

through 12) refers to cities, towns, or villages. Wis. Stat.

§ 5.02(11). Consistent with this local focus, a "municipal clerk" is also a defined term in our election laws, and it 8 Nos. 2019AP2397 & 2020AP112

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

executive director of the city election commission and their

authorized representatives." § 5.02(10). Municipal clerks are

the officials primarily responsible for election administration

in Wisconsin. As an instructional manual the Commission

provides to municipal clerks explains:

Elections in the State of Wisconsin are conducted at the local level. As a municipal clerk you are entrusted with the responsibility of ensuring fair, accessible, and transparent elections. Our job at the Wisconsin Elections Commission (WEC) is to provide you with a range of resources to support you in carrying out your duties.[8] Our election laws give municipal clerks a vast array of duties

and responsibilities consistent with their primary role in

running Wisconsin elections.

¶16 The second main entity is a "board of election

commissioners," whose powers, duties, and composition the

statutes separately delineate in Wis. Stat. §§ 7.20, 7.21, and

7.22. Under § 7.20, "A municipal board of election

commissioners shall be established in every city over 500,000

population," and a "county board of election commissioners shall

be established in every county over 750,000 population."

§ 7.20(1). The statutes go on to describe their makeup and

operation, including how many members a board of election

commissioners shall have, how they are selected, and how long

8Wisconsin Elections Commission, Election Administration Manual for Wisconsin Municipal Clerks 5 (2020), https://elections.wi.gov/sites/elections.wi.gov/files/2020- 10/Election%20Administration%20Manual%20%282020-09%29.pdf.

9 Nos. 2019AP2397 & 2020AP112

commissioners will serve. § 7.20(2)-(7). Under § 7.21, "All

powers and duties assigned to the municipal or county clerk or

the municipal or county board of canvassers under chs. 5 to 12

shall be carried out by the municipal or county board of

election commissioners or its executive director" unless

otherwise specified. And § 7.22 gives further duties and

responsibilities to a municipal board of election commissioners.9

¶17 To translate, a board of election commissioners is

established in our high population cities and counties——at this

point, only in the City of Milwaukee and Milwaukee County——to

carry out the duties otherwise accomplished by municipal and

county clerks everywhere else.10 It should therefore come as no

surprise that the phrase "municipal clerk or board of election

commissioners" appears in tandem all over our election statutes

because this describes the duties of local election officials.

9 Zignego argues that the phrase "board of election commissioners" is not a technical or specially-defined word or phrase. Therefore, Zignego maintains, it must be given its common, ordinary, and accepted meaning, which is broad enough to include the Commission. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. As we have explained, however, a "board of election commissioners" is most certainly a technical term under our statutes. See Wis. Stat. § 990.01(1) ("[T]echnical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning."). 10"'County clerk' includes the executive director of the county board of election commissioners and their authorized representatives." Wis. Stat. § 5.02(2). County clerks have distinct duties and responsibilities in administering Wisconsin's elections, several of which are provided in Wis. Stat. § 7.10.

10 Nos. 2019AP2397 & 2020AP112

In fact, this conjoined phrasing appears dozens of times in

chapter 6 alone.11

¶18 The final entity relevant for our purposes is the

Wisconsin Elections Commission. It has a separate defined

nomenclature located in Wis. Stat. § 5.025. In chapters five

through ten and 12 of the statutes, "'commission' means the

elections commission." § 5.025.12 Hundreds of times in the

chapters following, the legislature uses either "commission" or

occasionally, "elections commission," to denote the Commission.

Immediately following this definition, Wis. Stat. § 5.05

extensively lays out various powers and duties of the Commission

(other statutes add to this list). Among them, the Commission

has general responsibility for administering chapters five

through ten and 12, the power to investigate and prosecute

violations of election laws, the duty and power to issue

guidance and formal advisory opinions, and the charge to conduct

voter education programs. § 5.05(1), (2m), (2w), (5t), (6a),

(12). Of some relevance here, the Commission is also

The administrative rules also tie these two together, 11

showing that a board of election commissioners refers to a local body. In the Commission's administrative rules chapter on voter registration, "'Municipal clerk' has the meaning given in [§] 5.02(10), Stats., and includes the Milwaukee city board of election commissioners." Wis. Admin. Code § EL 3.01(8) (Feb. 2017).

This definition of "commission" in Wis. Stat. § 5.025 was 12

cited and relied on extensively by the court of appeals in its decision, yet it was not cited even once in Zignego's principal brief, and received only one isolated mention in its reply brief.

11 Nos. 2019AP2397 & 2020AP112

"responsible for the design and maintenance of the official

registration list" and "shall require all municipalities to use

the list in every election." § 5.05(15).

2. The Actors' Roles

¶19 With these three primary actors in mind, the statutes

establish various duties and responsibilities for each election

entity and official, often prescribing which actor is

responsible for which action. We see this on full display in

Wis. Stat. §§ 6.27-6.57, the subchapter concerning voter

registration. A sampling of these statutes illustrates this

delegation of responsibilities.

¶20 After elections, for example, "the municipal clerk or

board of election commissioners shall submit electronically a

report to the commission" and county election officials with

information on who voted, absentee voting, and various

statistics on voter registration. Wis. Stat. § 6.275(1). All

three of our primary actors have a role under this statute. The two local entities, the municipal clerk and the board of

elections commissioners, are directed to submit their report to

the Commission.

¶21 Under Wis. Stat. § 6.36(1)(a), the Commission "shall

compile and maintain electronically an official registration

list." But editing the list is a different matter. The laws

specify that the list must "be designed in such a way that the

municipal clerk or board of election commissioners of any municipality . . . may, by electronic transmission, add entries 12 Nos. 2019AP2397 & 2020AP112

to or change entries on the list for any elector who resides in,

or who the list identifies as residing in, that municipality and

no other municipality." § 6.36(1)(c). Again, all three

entities are mentioned. The Commission maintains the statewide

list, but the municipal clerk or board of election commissioners

must be able to change the registration status for individuals

within their municipality.

¶22 We see this same pattern in the statutory section at

issue in this case, Wis. Stat. § 6.50, which generally governs

revisions to the voter registration list.

¶23 Subsections (1), (2), and (2g) outline a procedure

whereby those who have not voted in the previous four years are

changed to an ineligible status on the statewide registration

list. Wis. Stat. § 6.50(1), (2), (2g). After a general

election, the "commission" is required to examine the

registration records and identify non-voting electors.

§ 6.50(1). The Commission then must mail a notice that tells

the elector that their registration will be suspended unless the elector applies for continuation within 30 days. Id. If

continuation of registration is not applied for within 30 days,

"the commission shall change the registration status of that

elector from eligible to ineligible." § 6.50(2). However, the

"commission" may delegate changing of registration statuses "to

a municipal clerk or board of election commissioners of a

municipality." § 6.50(2g). Ultimately, the statutory

responsibility to change the registration status for non-voting electors is squarely placed on the Commission. 13 Nos. 2019AP2397 & 2020AP112

¶24 Subsection (4) defines the process for removing

deceased electors. Wis. Stat. § 6.50(4). This responsibility

is given to the "municipal clerk or board of election

commissioners." Id. Deceased electors are identified "by means

of checking vital statistics reports," and "[n]o notice need be

sent" before making these registration changes. Id.

¶25 Subsection (5) requires a change of registration

status when a building is condemned, following an investigation

"by the municipal clerk or board of election commissioners."

Wis. Stat. § 6.50(5). Once again, it is "the clerk or board of

election commissioners [that] shall change the elector's

registration status." Id.

¶26 As these provisions make clear, Wis. Stat. § 6.50

sometimes directs the Commission to act, and other times it

directs municipal officials to do so. And pursuant to

subsection (7), "the commission, municipal clerk, or board of

election commissioners shall make an entry on the registration

list" "[w]hen an elector's registration is changed from eligible to ineligible status" and must "giv[e] the date and reason for

the change." § 6.50(7).

¶27 While additional statutory context could be considered

to reinforce the same themes, it is time we turn our attention

to the subsection at issue here, Wis. Stat. § 6.50(3), which

provides in full:

Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the

14 Nos. 2019AP2397 & 2020AP112

elector by mailing a notice by 1st class mail to the elector's registration address stating the source of the information. All municipal departments and agencies receiving information that a registered elector has changed his or her residence shall notify the clerk or board of election commissioners. If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector's registration from eligible to ineligible status. Upon receipt of reliable information that a registered elector has changed his or her residence within the municipality, the municipal clerk or board of election commissioners shall change the elector's registration and mail the elector a notice of the change. This subsection does not restrict the right of an elector to challenge any registration under [Wis. Stat. §§] 6.325, 6.48, 6.925, 6.93, or 7.52(5). (Emphasis added.) Zignego's primary argument in this case is

that the Commission is a "board of election commissioners" under

§ 6.50(3). This argument disregards nearly every foundational

principle of statutory interpretation.

¶28 The subsection begins by focusing its attention on

electors who have changed their "residence to a location outside

of the municipality." Wis. Stat. § 6.50(3) (emphasis added). Thus, this subsection is not an instruction to update the

registration statuses of all movers; it is only directed to

those who have moved outside their municipality. This

demonstrates the local, rather than statewide, focus of

§ 6.50(3).

¶29 In four places, Wis. Stat. § 6.50(3) provides that the

obligations imposed by this subsection apply to the municipal

clerk or the board of election commissioners. Not once does it refer to the Commission, despite references to the "commission"

15 Nos. 2019AP2397 & 2020AP112

seven times alone in the remainder of § 6.50.13 As the

surrounding context, definitions, and text make clear, these

duties are the responsibility of municipal clerks and a

municipal board of election commissioners. The Commission has

no mandatory duties under § 6.50(3), and therefore cannot be

compelled to act under this subsection.

3. Zignego's Counter-Arguments

¶30 Zignego responds with three additional arguments, none

of which override or even challenge the plain reading of the

law.

¶31 First, Zignego contends that Wisconsin's relationship

with ERIC suggests the Commission is required to deactivate

movers pursuant to Wis. Stat. § 6.50(3). Under Wisconsin law,

Wisconsin's "chief election officer"——the "commission

The Commission was created in 2015. 13 See 2015 Wis. Act 118. Previously, the responsibility to change the registration status of non-voting electors in Wis. Stat. § 6.50(1) and (2) was given to the Government Accountability Board (GAB), the Commission's predecessor. Wis. Stat. § 6.50(1), (2) (2013-14); 2015 Wis. Act 118, § 266(10). The legislature amended § 6.50 and gave the responsibility to remove non-voting electors to the Commission, but conspicuously did not change the responsible governmental actor under subsection (3). 2015 Wis. Act 118, § 266(10); see also 2015 Wis. Act 118, §§ 76, 77 (amending § 6.50(2g) and (7) to replace "board" with "commission"); 2015 Wis. Act 261, § 63 (amending § 6.50(3) and making no change to the entities delegated authority). This suggests the legislature intended to leave this power with the municipalities as it had during the life of the GAB. The legislature's choice to amend only part, but not all, of § 6.50 illustrates the legislature understood the "commission" to be distinct from a "board of election commissioners."

16 Nos. 2019AP2397 & 2020AP112

administrator"——is required to "enter into a membership

agreement with [ERIC]." Wis. Stat. § 5.05(3g), § 6.36(1)(ae)1.

And the chief election officer must "comply with the terms of

the [ERIC] agreement." § 6.36(1)(ae)2. The ERIC membership

agreement, in turn, requires the Commission to initiate contact

with electors whose "record is deemed to be inaccurate or out-

of-date." This obligation, however, is different from the one

tasked to "the municipal clerk or board of election

commissioners" under § 6.50(3). To comply with the ERIC

agreement, the Commission need only contact the electors.

Section 6.50(3), on the other hand, requires much more than

simply notifying the elector. These two moving-related

requirements do not contradict each other. The Commission's

compliance with Wisconsin's ERIC agreement and its statutory

responsibilities under § 6.36 do not require or authorize

judicial rewriting of § 6.50(3) to impose extratextual mandates

on the Commission.

¶32 Second, Zignego points to the Commission's past practice as support for its interpretation. Although it is

unclear from the record whether the Commission thought it was

bound by Wis. Stat. § 6.50(3), it is true that the Commission

cited that subsection when it sent out notices in 2017 and

changed the registration of thousands of electors in 2018.

Before us, the Commission refused to state whether it thought

17 Nos. 2019AP2397 & 2020AP112

its actions in 2018 were lawful.14 However, even if those

actions were unlawful, the remedy for alleged executive

overreach is not a court order to continue acting unlawfully.

Simply because an agency took action in the past does not mean

its actions were legal, nor would it provide authority for this

court to mandate agency action that the law itself does not

sanction. It is the statutory text, not agency practice, that

determines what the law requires an agency to do.15

¶33 Finally, Zignego raises a new argument not raised

below——namely, that reading Wis. Stat. § 6.50(3) as the

Commission frames it puts Wisconsin's election laws in violation

of federal election law, specifically the Help America Vote Act

of 2002 (HAVA). We normally do not consider arguments not

raised in the lower courts. See Serv. Emps. Int'l Union, Loc. 1

v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. Even

so, this is a nonstarter.

The court of appeals concluded the Commission's actions 14

in 2017 and 2018 were unlawful. State ex rel. Zignego v. WEC, 2020 WI App 17, ¶90, 391 Wis. 2d 441, 941 N.W.2d 284. However, it is unclear whether the Commission has authority to undertake the duties in Wis. Stat. § 6.50(3) on municipalities' behalf based on some other statutory provision; the parties did not brief this question. Therefore, we do not opine on whether any other statutory sections may prove relevant in determining what the Commission may do. The question before us is simply what it must do under § 6.50(3). Accordingly, we withdraw the language from the court of appeals opinion which concludes the Commission's actions in 2017 and 2018 were unlawful.

Moreover, we do not defer to an agency's conclusion of 15

law. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 108, 382 Wis. 2d 496, 914 N.W.2d 21.

18 Nos. 2019AP2397 & 2020AP112

¶34 As an initial matter, to the extent the assertion is

that federal law conflicts with state law, that raises a

different kind of analysis, possibly implicating preemption.

See Town of Delafield v. Cent. Transp. Kriewaldt, 2020 WI 61,

¶¶5-7, 392 Wis. 2d 427, 944 N.W.2d 819 (setting out preemption

principles). No such arguments have been made here.

¶35 And on the merits, Zignego's argument lacks any sound

basis. HAVA requires each state to implement "a single,

uniform, official, centralized, interactive computerized

statewide voter registration list defined, maintained, and

administered at the State level." 52 U.S.C. § 21083(a)(1)(A).

Wisconsin has done so; the Commission created and maintains the

voter registration list. See Wis. Stat. § 5.05(15). Nothing

about this arrangement precludes assigning local officials

responsibility to make certain changes to the list. See Wis.

Stat. § 6.36(1)(c). Not only does Wisconsin law require that

local officials be allowed to make changes to the list, HAVA

does too. 52 U.S.C. § 21083(a)(1)(A)(v)-(vii) (explaining that local election officials must be able to access and update the

list).

¶36 Additionally, under HAVA, states not subject to the

National Voter Registration Act——and Wisconsin is not16——"shall

remove the names of ineligible voters from the computerized list

in accordance with State law." 52 U.S.C. § 21083(a)(2)(A)(iii).

Wisconsin is not subject to National Voter Registration 16

Act of 1993 (NVRA) because it has election-day registration. 52 U.S.C. § 20503(b)(2); Wis. Stat. § 6.55(2).

19 Nos. 2019AP2397 & 2020AP112

Thus, HAVA provides that Wisconsin is to look to its own state

law to ascertain how ineligible voters are removed from the

statewide computerized list. In other words, HAVA simply points

us back to Wisconsin law, which, as we have explained, is clear.

Nothing in HAVA mandates the atextual reading Zignego advocates.

¶37 In short, according to the plain meaning supported by

its statutory context, "board of election commissioners" under

Wis. Stat. § 6.50(3) does not include the Commission. The

Commission has no mandatory duties under this provision. We now

apply this understanding to the two orders before us.

B. Writ of Mandamus

¶38 The circuit court granted a writ of mandamus based on

its interpretation that Wis. Stat. § 6.50(3) gave mandatory

duties to the Commission. This court has previously described

the basic principles of mandamus as follows:

Mandamus is an extraordinary legal remedy, available only to parties that can show that the writ is based on a clear, specific legal right which is free from substantial doubt. A party seeking mandamus must also show that the duty sought to be enforced is positive and plain; that substantial damage will result if the duty is not performed; and that no other adequate remedy at law exists.

This court will uphold a trial court's granting or denying a writ of mandamus unless the judge erroneously exercised discretion. A judge's discretion in issuing a writ of mandamus is erroneously exercised if based on an erroneous understanding of the law.

20 Nos. 2019AP2397 & 2020AP112

Lake Bluff Hous. Partners v. City of South Milwaukee, 197

Wis. 2d 157, 170, 540 N.W.2d 189 (1995) (citations and

quotations omitted).

¶39 As the preceding analysis makes clear, Wis. Stat.

§ 6.50(3) does not give any duty to the Commission, much less a

positive and plain duty. Therefore, the writ of mandamus

compelling the Commission to comply with § 6.50(3) was

erroneously granted and must be reversed.17

C. Contempt

¶40 The circuit court also found the Commission and

several commissioners in contempt for failing to comply with the

writ of mandamus. The "purpose of contempt is to uphold the

authority and dignity of the court." Carney v. CNH Health &

Welfare Plan, 2007 WI App 205, ¶20, 305 Wis. 2d 443, 740

The dissent agrees that the argument presented to us by 17

Zignego is incorrect; Wis. Stat. § 6.50(3) does not impose a duty on the Commission. See dissent, ¶52. Instead, the dissent crafts a new argument on Zignego's behalf. In essence, the dissent argues that the statutory duty of the Commission to create, maintain, and administer Wisconsin's voter registration list means the Commission is responsible to ensure every law related to that list is carried out——whether the Commission is statutorily assigned the responsibility or not. Taking this argument further, the dissent concludes a court can order the Commission to carry out these duties through a writ of mandamus whenever a municipal clerk or board of election commissioners fails to fulfill a statutory duty assigned to these local election officials. This would be a rather remarkable expansion of the Commission's powers and responsibilities. More to the point, it bears no resemblance to our election administration laws that give the Commission more limited duties, as we have explained at length.

21 Nos. 2019AP2397 & 2020AP112

N.W.2d 625. A party may be found in contempt for, among other

things, "intentional . . . [d]isobedience, resistance or

obstruction of the authority, process or order of a court."

Wis. Stat. § 785.01(1)(b); see also Ash Park, LLC v. Alexander &

Bishop, Ltd., 2010 WI 44, ¶78, 324 Wis. 2d 703, 783 N.W.2d 294

("A party's unwillingness to obey a court order is the very

definition of contempt.").

¶41 When a party is found in contempt the court may impose

either punitive or remedial sanctions. Wis. Stat. § 785.02;

Carney, 305 Wis. 2d 443, ¶24. A punitive sanction is "imposed

to punish a past contempt of court for the purpose of upholding

the authority of the court," while a remedial sanction is

"imposed for the purpose of terminating a continuing contempt of

court." § 785.01(2)-(3).

¶42 Here, the circuit court imposed remedial sanctions.

That is, the court ordered the Commission and certain

commissioners who voted to take no action to comply with the

writ to pay a prospective daily forfeiture to force compliance. The very next morning, the court of appeals stayed both the

mandamus and contempt orders, and issued its decision reversing

both orders promptly thereafter. Because we agree with the

court of appeals that the writ of mandamus must be reversed, we

must necessarily reverse the contempt order on which it was

based as well. Remedial sanctions may not be imposed when a

party is no longer in contempt of court. See Christensen v.

Sullivan, 2009 WI 87, ¶¶54-55, 320 Wis. 2d 76, 768 N.W.2d 798. Zignego does not argue otherwise. 22 Nos. 2019AP2397 & 2020AP112

¶43 That said, we remind the Commission that its duty to

comply with the circuit court's writ of mandamus was not

relieved simply by seeking a stay before an appellate court.18

See Tensfeldt v. Haberman, 2009 WI 77, ¶41, 319 Wis. 2d 329, 768

N.W.2d 641 ("If a person to whom a court directs an order

believes that order is incorrect the remedy is to appeal, but,

absent a stay, he must comply promptly with the order pending

appeal." (quoted source omitted)). Nevertheless, because the

writ of mandamus was issued in error, we must affirm the court

of appeals' reversal of the circuit court's contempt order.

III. CONCLUSION

¶44 Wisconsin Stat. § 6.50(3) does not apply to the

Commission; there is no credible argument that it does.

Accordingly, the circuit court erred in granting a writ of

mandamus based on an improper interpretation of § 6.50(3), and

its contempt order cannot survive the reversal of the writ of

18 We observe the Commission promptly sought a stay of the writ of mandamus and, upon receiving no response, renewed its motion to stay with the court of appeals immediately following Zignego's motion for contempt. The court of appeals held the motion to stay in abeyance pending a decision from this court on the petition for bypass. We denied the petition for bypass on the same day the circuit court issued its contempt order. The court of appeals then stayed both the mandamus and contempt orders the next morning.

23 Nos. 2019AP2397 & 2020AP112

mandamus. We affirm as modified19 the decision of the court of

appeals, and remand the cause to the circuit court for

dismissal.20

By the Court.—The decision of the court of appeals is

modified, and affirmed as modified, and the cause is remanded to

the circuit court for dismissal.

19Specifically, we withdraw language from the court of appeals opinion deciding the legality of the Commission's conduct in 2017 and 2018 and the reliability of the ERIC data because these issues are not necessary to adjudicate this case. See supra ¶12 n.7; ¶32 n.14. 20Both causes of action the Petitioners advanced in their underlying complaint relied on the erroneous proposition that the "board of election commissioners" in Wis. Stat. § 6.50(3) includes the Commission. Because we conclude § 6.50(3) does not apply to the Commission, the Petitioners' complaint must be dismissed.

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¶45 REBECCA GRASSL BRADLEY, J. (dissenting).

To be free is to live under a government by law . . . . Miserable is the condition of individuals, danger is the condition of the state, if there is no certain law, or, which is the same thing, no certain administration of the law[.]

Judgment in Rex vs. Shipley, 21 St Tr 847 (K.B. 1784) (Lord

Mansfield presiding) (emphasis added). For years, the Wisconsin

Elections Commission (WEC) undertook responsibility for

notifying voters of WEC's receipt of information indicating they

had moved and therefore may need to register to vote using their

new addresses. If a voter failed to confirm the validity of the

registered address, WEC removed that voter from the rolls, in

accordance with state law. In 2019, WEC decided to disregard

the law and instead delay deactivation of ineligible voters for

up to two years. The majority relieves WEC of its statutory

obligations, determining that these duties actually belong to

local election officials and not WEC. The majority's decision

leaves the administration of Wisconsin's election law in flux, at least with respect to ensuring the accuracy of the voter

rolls.

¶46 The majority is correct that, pursuant to Wis. Stat.

§ 6.50(3), "municipal clerk[s] or board[s] of election

commissioners" have a statutory obligation to change an

elector's registration from eligible to ineligible status if an

elector has moved. In reading the election statutes in

isolation, however, the majority misses the broader picture: under the full statutory scheme of Wisconsin's election laws,

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WEC——the state's chief election commission——also has a statutory

obligation to change the status of ineligible voters on the

statewide voter registration list.

¶47 Wisconsin Stat. § 5.05(15) makes WEC "responsible for

the design and maintenance of the official registration list"

statewide and § 5.05(2w) gives WEC "responsibility for the

administration of chs. 5 to 10 and 12." Recognizing WEC's

responsibility to ensure the accuracy of the voter rolls ensures

the state's compliance with the federal Help America Vote Act

(HAVA), which Wisconsin is bound to follow. Reading these

statutes as a whole reveals WEC's "positive and plain duty" to

fulfill its statutory responsibility to change the status of

ineligible voters; therefore, the circuit court properly issued

a writ of mandamus——a conclusion that should come as no surprise

to WEC considering it has routinely complied with this duty for

years. The majority's circumscribed statutory interpretation

leaves WEC off the hook for its violations of Wisconsin's

election laws. I respectfully dissent. I

¶48 Wisconsin, along with 29 other states and the District

of Columbia, participates in a multi-state consortium designed

to improve the accuracy of voter registration data, called the

Electronic Registration Information Center (ERIC). As a member,

Wisconsin provides ERIC with information concerning current

driver's licenses and State ID cards issued by the Division of

Motor Vehicles, as well as a list of currently registered voters in WEC's records. ERIC then compares this data to state and

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national sources, including the Social Security Administration's

Death Master List and the United States Postal Services'

National Change of Address service. The data compiled in these

sources is based upon information personally sent to these

services by individual voters. ERIC then sends WEC a

maintenance report indicating those registered voters who may no

longer be eligible to vote at their registered addresses because

they have either moved or died.

¶49 As documented in the record in this case, in 2017 ERIC

sent WEC a maintenance report showing a list of registered

voters for whom ERIC received data indicating they had moved and

were no longer eligible to vote at their listed addresses.

After reviewing this list to ensure its accuracy, WEC sent

notices to those voters asking them to confirm whether they

still lived at their registered addresses. With respect to

voters who failed to confirm their addresses, WEC marked their

registration records as ineligible and required those

individuals to re-register before voting again. These actions demonstrate that WEC understood and embraced its duty under

Wisconsin's election laws to maintain the voter rolls.

¶50 In 2019, ERIC sent WEC another maintenance report with

a list of registered voters who ostensibly had moved. Again,

WEC vetted this information to ensure its accuracy and

subsequently sent notices to the affected voters. This time,

however, for voters who did not confirm whether they still lived

at their registered addresses, WEC did not promptly change its records to reflect these voters' ineligibility. Instead, WEC

3 Nos. 2019AP2397 & 2020AP112.rgb

decided to delay deactivation of these voters' registrations for

up to two years, thereby knowingly permitting voters to cast

ballots in multiple elections with invalid registrations.

Wisconsin's applicable election laws had not changed.

¶51 Petitioners sued WEC and its members seeking

declaratory and injunctive relief, as well as a writ a mandamus

in order to compel WEC to comply with Wisconsin's election laws.

In response, WEC alleged that "municipal clerk[s] and local

board[s] of election commissioners" have the sole responsibility

to change the eligibility of voters who have moved. The circuit

court rejected this argument, issued a writ of mandamus, and

ordered WEC to deactivate the registrations of electors who had

moved. After a long and winding procedural road, the court of

appeals reversed this decision, and we in turn granted review of

this case.1

1Rather than resolving this issue of first impression promptly when presented to us, on January 13, 2020, this court rejected a petition to bypass the court of appeals, leaving "voter rights and election integrity in flux, with no final resolution of the uncertainty in the law likely until after four statewide elections and one special congressional election." State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 2020 (Rebecca Grassl Bradley, J., dissenting)). After the case returned to this court on March 11, 2020, the court refused to hear oral arguments until September 29, 2020, denying Zignego's motion to expedite oral argument. As predicted, "the people of Wisconsin" were denied "a decision in this case until after every single one of Wisconsin's 2020 elections" came and went "including the presidential election in November" and more than "an entire year after petitioners' commencement of this time-sensitive appellate litigation." Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued June 1, 2020 (Rebecca Grassl Bradley, J., dissenting)).

4 Nos. 2019AP2397 & 2020AP112.rgb

¶52 The majority correctly concludes that Wis. Stat.

§ 6.50(3) requires "municipal clerk[s] and board[s] of election

commissioners" to "change the elector's registration from

eligible to ineligible status" "[u]pon receipt of reliable

information that a registered elector has changed his or her

residence to a location outside of the municipality." The

majority stops there, ignoring WEC's duties under Wisconsin's

election laws. See majority op., ¶32 n.14 (refusing to discuss

WEC's general duties because "the parties did not brief this

question"). Under the whole-text canon of statutory

construction, however, "[t]he text must be construed as a

whole." Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012); State ex rel. Kalal v.

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

681 N.W.2d 110 ("[S]tatutory language is interpreted . . . not

in isolation but as part of a whole.").

¶53 As a general matter, Wis. Stat. § 6.36(1)(a) requires

WEC "to compile and maintain electronically an official registration list." (Emphasis added). Wisconsin Stat.

§ 5.05(15) expressly mandates that WEC "is responsible for the

design and maintenance of the official registration list under

s. 6.36." (Emphasis added). Although Wisconsin courts have

never directly interpreted this statute, its interpretation is

dispositive in this case. Indeed, "to maintain" is more than

just an obligation to create a registration list or to

electronically insert data; it is a duty to "maintain" its accuracy. The ordinary meaning of "to maintain" is to "to keep

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in a condition of good repair or efficiency." Maintain, The

American Heritage Dictionary (5th ed. 2011); see also Maintain,

Black's Law Dictionary (6th ed. 1990) ("acts of repairs and

other acts to prevent decline"); Kalal, 271 Wis. 2d 633, ¶53

(instructing courts to turn to dictionary definitions to

understand the "common and accepted meaning" of statutory

language).

¶54 Applying the legislature's plain language, to

"maintain" the official registration list means WEC must ensure

its accuracy. An interpretation that permits WEC to escape its

statutory obligation to ensure the accuracy of the voter rolls

would be absurd. Kalal, 271 Wis. 2d 633, ¶46 (stating that

statutory language should be construed "reasonably, to avoid

absurd or unreasonable results"). Among the express mandates of

Wis. Stat. § 6.36, WEC must include in its list "the name and

address of each registered elector in the state." Wis. Stat.

§ 6.36(1)(a)1. (emphasis added). If WEC receives reliable

information from ERIC that a voter's address information is invalid (e.g., the voter has moved away from a municipality or

from the state entirely, as ERIC informs), and in response WEC

does nothing, WEC thereby fails to "maintain" this list in any

substantive regard. WEC's neglect of the state's voter list

threatens not only the rule of law but the integrity of

Wisconsin's elections.

¶55 In addition to assigning WEC the responsibility for

maintaining the voter registration list under Wis. Stat. § 5.05(15), the legislature also required WEC to accurately

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maintain this list at the time it instructed WEC to join ERIC.

In particular, Wisconsin's election laws require WEC "to enter

into a membership agreement with Electronic Registration

Information Center, Inc. [ERIC], for the purpose of maintaining

the official registration list." Wis. Stat. § 6.36(ae)1

(emphasis added). The purpose of ERIC is "[to] assist state and

local government units in making their voter registration lists

and processes more accurate, more complete, and fully compliant

with federal, state and local laws." Accordingly, by requiring

WEC to enter into an agreement with ERIC, the legislature

ensured that WEC would bear responsibility for maintaining an

accurate registration list.

¶56 The membership agreement between WEC and ERIC reflects

this obligation. In relevant part, the membership agreement

states: "When the Member [WEC] receives credible ERIC Data

(meaning the state has validated the data) indicating that

information in an existing voter's record is deemed to be

inaccurate or out-of-date, the Member [WEC] shall, at minimum, initiate contact with that voter in order to correct the

inaccuracy or obtain information sufficient to inactivate or

update the voter's record." (Emphasis added). The agreement

defines "Member" as the chief election body in Wisconsin——not

the municipal clerks or the municipal election commissions.2

At 2 the time of this agreement, the Government Accountability Board (GAB) administered Wisconsin's election laws. Accordingly, under the agreement, "Member" refers to the GAB. However, in 2015 Wisconsin dissolved the GAB, replacing it with WEC, which assumed the GAB's responsibilities under the agreement with ERIC.

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Under the agreement, ERIC provides such data to WEC to enable

WEC to reach out to voters, correct inaccurate information, and

inactivate voter registrations in accordance with the law.3 The

agreement does not impose any responsibilities on municipal

clerks or local boards of election commissioners. Instead, the

legislature expressly tasked WEC with maintaining the list, and

the ERIC agreement reflects this.

¶57 Both Wis. Stat. § 5.05(15) and the ERIC Agreement

instruct WEC to inactivate ineligible voters, and Wis. Stat.

§ 5.05(2w) reinforces this responsibility. In full, § 5.05(2w)

states that WEC "has the responsibility for the administration

of chs. 5 to 10 and 12." (Emphasis added). This statute

requires WEC to administer the mandates of Wis. Stat. § 6.50(3)—

—the statute requiring local entities to deactivate voters

pursuant to ERIC's data. "Administration" does not mean WEC may

stand idly by when it receives information indicating the

ineligibility of voters to cast ballots using addresses where

they no longer reside; rather, WEC must "carry on or execute" the legislature's explicit statutory directives. Administer,

Oxford English Dictionary (6th ed. 2007); see Kalal, 271 Wis. 2d

633, ¶53. While municipal clerks and local boards of election

commissioners have a duty under § 6.50(3), it is incumbent upon

WEC to administer this law, which means WEC must execute it.

The very fact that ERIC sends the data to WEC signals 3

WEC's obligation to ensure the accuracy of voter rolls. If WEC does not share this data with local entities, the municipal clerks and boards of election commissioners could not possibly fulfill their statutory duties under Wis. Stat. § 6.50(3).

8 Nos. 2019AP2397 & 2020AP112.rgb

¶58 WEC understood this, at one point in time. For

example, in 2017 WEC itself "follow[ed] the statutory process

related to voters for whom there is reliable information that

they no longer reside at their registration address (Wis. Stat.

§ 6.50(3))" as documented in a March 11, 2019 WEC memorandum to

its members from Megan Wolfe, then interim administrator of WEC.

The memorandum goes on to detail how "Commission staff vetted

the [ERIC] list" and "WEC mailed a postcard to flagged voters

directing them to reregister if they had moved or to sign and

return the card to keep their registration current." The

registrations of any voters "who did not return the postcard or

update their registrations were deactivated" by WEC in January

2018, as were the registrations of voters "whose postcards were

returned to the clerk as undeliverable." Notwithstanding Wis.

Stat. § 6.50(3)'s applicability to municipal clerks and board of

election commissioners, WEC once recognized its own, independent

obligation under state and federal law to ensure the accuracy of

Wisconsin's voter rolls. ¶59 In restricting its review of WEC's statutory

obligations to Wis. Stat. § 6.50(3) alone, the majority commits

a common but consequential error:

Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Sir Edward Coke explained the canon in 1628: "[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers."

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Scalia & Garner, supra, at 167 (quoting 1 Edward Coke, The First

Part of the Institutes of the Laws of England § 728, at 381a

(1628; 14th ed. 1791)). This canon of statutory construction

has endured for centuries, and it counsels against reading a

single statutory section in isolation. "In ascertaining the

plain meaning of the statute, the court must look to the

particular statutory language at issue, as well as the language

and design of the statute as a whole." Id. Application of the

canon in this case reveals WEC's statutory duty to maintain an

accurate voter list statewide, and to execute the legislature's

directives to remove ineligible voters from that list.

¶60 By establishing a centralized body tasked with

maintaining and administering the statewide voter list, the

legislature can "ensure that citizens are only registered in one

place." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

193 (2008) (quoted source omitted). Imposing such "safeguards"

"inspires public confidence" in the election system and

"confirms the identity of voters" in our state. League of Women Voters of Wisconsin Educ. Network, Inc. v. Walker, 2014 WI 97,

¶52, 357 Wis. 2d 360, 851 N.W.2d 302 (quoted source omitted).

"Increased confidence in the elector system, in turn, encourages

citizen participation in the democratic process." Id. (quoted

source and internal marks omitted). For this reason,

"[c]onfidence in the integrity of our electoral processes is

essential to the functioning of our participatory democracy."

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). When WEC neglects its duty to properly administer the mandates of Wis. Stat.

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§ 6.50(3), it jeopardizes the functioning of our participatory

democracy. While WEC only now identifies municipal clerks and

boards of election commissioners as the entities responsible for

changing ineligible voters' registrations, WEC (and the

majority) disregard WEC's role as the centralized election body

in the state, which means the buck stops there.4 See Scott v.

Schedler, 771 F.3d 831, 839 (5th Cir. 2014).

¶61 This reading of Wis. Stat. §§ 5.05(15) and (2w) is

buttressed by Wisconsin's obligations under HAVA. Although

federal law does not dictate our interpretation of state law, it

can nonetheless confirm our analysis. Cf. Wisconsin's Envtl.

Decade, Inc. v. Pub. Serv. Comm'n, 79 Wis. 2d 409, 416-24, 256

N.W.2d 149 (1977) (confirming this court's interpretation of the

Wisconsin Environmental Policy Act, which is "substantially

patterned" after federal regulation). HAVA imposes on states a

mandatory duty to deactivate ineligible voters, independent of

state law.

¶62 "For many years, Congress left it up to the States to maintain accurate [voting] lists," until Congress shifted

4 WEC also has a duty to investigate local entities' statutory violations. In relevant part, Wis. Stat. § 5.05(2m) states that "[t]he commission shall investigate violations of laws administered by the commission[.]" As explained, WEC has an affirmative duty to "administer" Wis. Stat. § 6.50(3); therefore, if local entities failed to fulfill their responsibilities under this provision, WEC had a duty to investigate. Of course, the record reflects that WEC usurped the duties statutorily assigned to municipal clerks and municipal boards of election commissioners under § 6.50(3), thereby ostensibly partaking in the violation of the laws WEC was entrusted to administer.

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course. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833,

1838 (2018). In 2002, Congress enacted HAVA, which in part was

created in order "to ensure that voter registration records in

the State are accurate and updated regularly." 52 U.S.C.

§ 21083(a)(4). Toward this end, HAVA requires "each State,

acting through the chief State election official, [to]

implement, in a uniform and nondiscriminatory manner, a single,

administered at the State level." 52 U.S.C. § 21083(a)(1)(A)

(emphasis added). Accordingly, when WEC receives information

from ERIC indicating that certain voters have moved and are

therefore ineligible to vote at their registered addresses, WEC

cannot simply sit on its hands. To the contrary, WEC has an

obligation under federal law to maintain and administer the

voter list, ensuring the accuracy of its content. Only WEC can

comply with federal mandates to maintain Wisconsin's voter

registration list "at the State level" and "in a uniform" manner, something 1,850 municipal clerks and boards of elections

commissioners cannot possibly do separately and at the local

level.

¶63 Congress enacted HAVA "to plac[e] primary

responsibility [for voter registration lists] at the state level

of government." Arthur L. Burris & Eric A. Fisher, The Help

America Vote Act and Election Administration: Overview and

Selected Issues for the 2016 Election, Cong. Research Serv. 7 (Oct. 18, 2016). While "[e]arly U.S. elections were conducted

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almost entirely locally," HAVA changed the game, "shift[ing]

some responsibility for conducting elections to the state

level." Karen K. Shanton, The State and Local Role in Election

Administration: Duties and Structures, Cong. Research Serv. 7

(March 4, 2019). As the United States Supreme Court has

recognized, Congress requires "[the] State to create and

maintain a computerized list of all registered voters" and to

"verify voter information contained in registration

applications." Crawford, 553 U.S. at 192 (emphasis added).

¶64 The purpose of these mandates is straightforward: "to

improve our country's election system." H.R. Rep. No. 107-329,

at 31 (2001). As the "chief State election official" in

Wisconsin, WEC has an essential role to play in this mission.

See 52 U.S.C. § 21083(a)(1)(A). In particular, removing

ineligible voters from the registration list is critical to

"prevent[ing] voter fraud." Ortiz v. City of Philadelphia

Office of the City Commissioners Voter Registration Div., 28

F.3d 306, 314 (3d Cir. 1994). A "State's interest in preserving the integrity of the electoral process is undoubtedly

important," John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010),

and it has a "strong interest in ensuring that its elections are

run fairly and honestly." Taxpayers United for Assessment Cuts

v. Austin, 994 F.2d 291, 297 (6th Cir. 1993) (citing Anderson v.

Celebreeze, 460 U.S. 780, 788 (1983)). Indeed, retaining

thousands of potentially illegitimate registrations on

Wisconsin's voter lists substantially harms the integrity of elections and dilutes or even cancels votes of validly

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registered citizens. Removing ineligible voters from this

state's registration list is paramount if Wisconsin takes

seriously its obligation to ensure fair and honest elections.

¶65 Even though Wisconsin's election statutes and HAVA

require WEC to maintain the integrity and accuracy of the

statewide voter registration list, WEC flagrantly violated both.

Instead of making sure voter registrations were promptly

deactivated "[i]f the elector no longer resides in the

municipality or fails to apply for continuation of registration

within 30 days of the date the notice is mailed" WEC decided to

rewrite the law to give such voters "between 12 months and 24

months" after the notification was sent. Failing to follow the

legislature's mandate——as WEC did in this very case——opens the

door to voter fraud, erodes "[c]onfidence in the integrity of

our electoral processes, . . . drive[s] honest citizens out of

the democratic process, and breed[s] distrust of our

government." Purcell, 549 U.S. at 8; see also Milwaukee Branch

of NAACP v. Walker, 2014 WI 98, ¶72, 357 Wis. 2d 469, 851 N.W.2d 262 ("Protecting the integrity and reliability of the electoral

process, maintaining public confidence in election results, and

preventing voter fraud [are] significant and compelling [state]

interests.") (internal quotations omitted). Maintaining

accurate voter rolls is integral to the "functioning of our

participatory democracy," and WEC failed to fulfill its

statutory obligation to do so as the chief election body in this

state. See id.

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¶66 Reading Wis. Stat. §§ 5.05(15) and (2w) in harmony

with HAVA and the ERIC Agreement, WEC had a "positive and plain

duty" to change an elector's registration from eligible to

ineligible status if the elector had moved, according to ERIC's

data.5 WEC fully understood its duty and acted on it in prior

years. For example, in 2017 ERIC sent WEC a maintenance report

showing a list of registered voters who apparently had moved and

were no longer eligible to vote at their registered address.

WEC reviewed the accuracy of this list, sent notices to the

applicable voters, and changed the status of voters who did not

respond. In contrast, in 2019 and 2020 WEC refused to undertake

these mandatory updates, despite no intervening changes in

applicable law.

¶67 During oral argument, when Attorney General Josh Kaul

was asked whether WEC had a duty to deactivate voters regardless

of the duties of local entities, he equivocated. In particular,

he was asked: "The Commission still thinks it has the authority

5 The majority misconstrues my analysis to mean that "a court can order the Commission to carry out" the statutory duties of a municipal clerk or board of election commissioners. Majority op., ¶39 n.17. Refusing to read Wisconsin's election laws as a whole, the majority entirely ignores WEC's own independent statutory duties. There is nothing "remarkable" in concluding that a court may issue a writ of mandamus ordering WEC to fulfill its obligations under the law. The majority characterizes this analysis as "craft[ing] a new argument on Zignego's behalf." Id. Construing the election statutes as a whole is not making an argument for any party; it is fulfilling this court's duty to interpret the law. "Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes[.]" Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539 (1947).

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[to deactivate voters]; does it rely on [its] general

maintenance language in chapter 5?" Attorney General Kaul

dodged the question, merely noting that this issue "raised a

different question than the question here" and gave no answer

one way or the other. Attorney General Kaul was later asked to

clarify what duties WEC possesses under Wisconsin's election

laws: "Do you agree or disagree with memorandum for the March

11, 2019 commission meeting prepared [by WEC's chief official]

that . . . outlines the legal authority related to the

recommended process [for WEC deactivating voters]?"

Importantly, this memo acknowledged that "Wis. Stat. § 5.05(15)

provides a broader source of statutory authority to the

Commission for ensuring the integrity and maintenance of the

statewide voter registration list, which supports the process

[of deactivating voters] recommended by staff." Again, Attorney

General Kaul evaded the issue, stating that the memo does "point

to [WEC's] general maintenance obligation," but "how far this

extends is not at issue." ¶68 As these exchanges and WEC's briefing to this court

illustrate, we have been asked to disregard WEC's obligations

under Wisconsin election law, merely because local entities have

some role to play in deactivating voters. WEC's position is not

only disingenuous, it also upends the statutory hierarchy of

responsibilities. Both Wis. Stat. §§ 5.05(15) and (2w) require

WEC, as the state's chief election body, to inactivate voters

identified as ineligible by ERIC. Both HAVA as well as the ERIC Agreement impose this requirement on WEC and no other entity.

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"How far [these duties] extend" is precisely the issue in this

case. The law imposes a "positive and plain duty" on WEC to

deactivate certain ineligible voters——and WEC most assuredly

understood this, as its own conduct confirms, until its position

changed in order to avoid accountability in this litigation.

¶69 Because WEC had a "positive and plain" duty under

Wisconsin election laws, the circuit court properly issued a

writ of mandamus.6 "Mandamus is an extraordinary legal remedy"

that is issued "to compel performance by a public officer of a

duty which he is bound by law to perform." Eisenberg v.

Estowski, 59 Wis. 2d 98, 102, 207 N.W.2d 874 (1973) (citation

omitted). It was WEC's extraordinary dereliction of duty that

warranted this extraordinary remedy. Certainly, Wis. Stat.

Although the circuit court issued the writ of mandamus 6

pursuant to Wis. Stat. § 6.50(3), WEC was nevertheless compelled to act pursuant to Wis. Stat. §§ 5.05(15) and (2w). It is well- settled law that even "[i]f a trial court reaches the proper result for the wrong reason it will be affirmed." State v. King, 120 Wis. 2d 285, 292, 354 N.W.2d 742 (Ct. App. 1984). "An appellate court is concerned with whether the decision . . . is correct, not whether . . . the circuit court's reasoning is. If the holding is correct, it should be sustained and this court may do so on a theory or on reasoning not presented to the lower court." Liberty Trucking Co. v. Dep't of Indus., Lab & Hum. Rels., 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973); see also Mueller v. Mizia, 33 Wis. 2d 311, 318, 147 N.W.2d 269 (1967). This general rule applies with equal force when circuit courts grant or deny writs of mandamus. See, e.g., State ex rel. Morke v. Record Custodian, Dep't of Health and Soc. Servs., 154 Wis. 2d 727, 454 N.W.2d 21 (Ct. App. 1990) (affirming the trial court's decision to deny a writ of mandamus because, even though the trial court relied on an erroneous interpretation of the "substantial damages requirement," the petitioner nonetheless did not have a "positive and plain duty" to act). Accordingly, because WEC was compelled to act pursuant to §§ 5.05(15) and (2w), even though the writ referenced § 6.50(3), the circuit court's decision must be upheld.

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§§ 5.05(15) and (2w) instruct WEC to perform its "positive,

plain, and unequivocal" responsibility to deactivate these

voters——a duty it abandoned. State ex rel. Althouse v. City of

Madison, 79 Wis. 2d 97, 106, 255 N.W.2d 449 (1977).

Accordingly, the circuit court did not erroneously exercise its

discretion when it issued the writ of mandamus. Lake Bluff

Hous. Partners v. City of S. Milwaukee, 197 Wis. 2d 157, 170,

540 N.W.2d 189 (1995).

II

¶70 As the majority notes, the circuit court found WEC in

contempt when it failed to comply with the writ of mandamus and

imposed remedial sanctions. Despite WEC's willful defiance of

the circuit court's order, the majority relieves WEC of those

sanctions and merely "remind[s]" WEC that just because a party

disagrees with a court order, it nevertheless must comply with

it. Majority op., ¶5. Astonishingly, the majority is not the

least bit troubled by WEC's refusal to obey a court order. The

majority's feckless response dangerously signals to all litigants that they may defy circuit court orders without

penalty, so long as they prevail on appeal.

¶71 In December 2019, the Ozaukee County Circuit Court

issued a writ of mandamus ordering WEC "to comply with the

provisions of § 6.50(3) and deactivate the registrations of

mailed under that provision." The circuit court issued this ruling orally from the bench on December 13, 2019, and signed a

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written order on December 17, 2019. Although this was

indisputably an order of the court, WEC quite publicly refused

to comply with it, thereby undermining the authority of the

entire judicial branch.

¶72 Time was of the essence for WEC to comply with the

circuit court's order because of the elections scheduled for

February 18, 2020 and April 7, 2020——the first two of five

elections in Wisconsin last year. Although WEC appealed the

circuit court's order, a stay of the mandamus order was not in

effect and therefore WEC was bound to obey the circuit court's

order. See Wis. Stat. § 808.07(1) ("An appeal does not stay the

execution or enforcement of the judgment or order appealed from

except as provided in this section or as otherwise expressly

provided by law."). WEC did not obey the order; it openly

defied it.

¶73 As a result, petitioners returned to the circuit court

to force WEC to comply with the mandamus order via a contempt

motion. After a hearing on January 13, 2020, the circuit court found WEC and three of its commissioners——Julie Glancey, Anne

Jacobs, and Mark Thomsen——in contempt for disobeying the writ of

mandamus. The circuit court imposed remedial sanctions ordering

each of those commissioners to pay a forfeiture of $250 and WEC

to pay $50 per day until WEC complied with the writ of mandamus.

The day after the circuit court issued the contempt order, on

January 14, 2020, the court of appeals stayed both the mandamus

order and the contempt order, without stating any reasons for doing so, much less any legal basis.

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¶74 In addition to contaminating Wisconsin's elections,

WEC's refusal to obey the circuit court's order harmed the

integrity of Wisconsin's justice system. The court of appeals'

stays in this case excused WEC's allegedly contemptuous conduct

and signaled to the public that no one is bound by a circuit

court order. Defiance of court orders, permitted by the court

of appeals and now condoned by this court, threatens the

integrity of our entire judicial system. "[T]he public interest

in the enforcement of court orders . . . is essential to the

effective functioning of our judicial process[.]" Valdez v.

City and County of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989).

An orderly society depends upon citizens and government

officials following the law. "If it is within the power of a

party to an action . . . to flout the judgments of a court and

act in contravention thereto, then our system of government is

wholly ineffectual to protect the rights of parties to actions

who have submitted themselves to the jurisdiction of its courts;

hence the duty of a citizen who is a litigant to obey the order of the court." John F. Jelke Co. v. Hill, 208 Wis. 650, 662-63,

242 N.W. 576 (1932).

¶75 By imposing a stay on the contempt order before

deciding the merits as to WEC's contempt, the court of appeals

made a mockery of the rule of law in Wisconsin. While the court

of appeals stayed the contempt order one day after the circuit

court made it, WEC blatantly flouted the circuit court's writ

for 32 days before an appellate court relieved it of its obligation to comply with it. "If a party can make himself a

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judge of the validity of orders which have been issued, and by

his own act of disobedience set them aside, then are the courts

impotent, and what the Constitution now fittingly calls the

'judicial power of the United States' would be a mere mockery."

Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450 (1911).

The circuit court's contempt order should have remained in

effect until an appellate court decided the merits of the

circuit court's decision, and the sanctions should have been

upheld regardless of the outcome. Instead, the majority

effectively condones WEC's scorn for the judiciary by failing to

even admonish WEC's brazen disrespect for the authority of our

courts.

* * *

¶76 "This great source of free government, popular

election, should be perfectly pure." Alexander Hamilton, Speech

at New York Ratifying Convention (June 21, 1788), in Debates on

the Federal Constitution 257 (J. Elliot ed. 1876). Our

elections will not be perfectly pure until WEC is compelled to comply with Wisconsin's election laws and held to account when

it fails to do so.

"Elections are 'of the most fundamental significance under our constitutional structure.' Through them, we exercise self-government. But elections enable self- governance only when they include processes that 'giv[e] citizens (including the losing candidates and their supporters) confidence in the fairness of the election.'"

Republican Party of Pennsylvania v. Degraffenreid, ___ U.S. ___, 141 S. Ct. 732, 734 (2021) (Thomas, J., dissenting from denial

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of certiorari) (quoting Illinois Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 184 (1979) and Democratic National

Committee v. Wisconsin State Legislature, ___ U.S. ___, 141 S.

Ct. 28, 31 (Kavanaugh, J., concurring in denial of application

to vacate stay)).

¶77 Wisconsin citizens expect more from their chief

election body, and Wisconsin's election laws assuredly demand

more. "It should be beyond question that the State has a

significant and compelling interest in protecting the integrity

and reliability of the electoral process, as well as promoting

the public's confidence in elections." Milwaukee Branch of

NAACP, 357 Wis. 2d 469, ¶73. In this case, WEC shirked its

duty, flouted the circuit court's orders without consequences,

and knowingly left ineligible voters on Wisconsin's voter rolls.

WEC has a duty to maintain and administer Wisconsin's voter

registration list under both state and federal law. Because the

majority fails to recognize this or penalize WEC's contempt for

the judicial system, I respectfully dissent. ¶78 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this dissent.

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