Sign In
  • InsideTrack
  • October 05, 2022

    Court Decisions Mean Changes for Conduct of 2022 General Election

    Recent decisions by state and federal courts will affect the administration of the upcoming November election. In this article, panelists from an upcoming State Bar of Wisconsin elections law seminar discuss the decisions.

    Jeff M. Brown

    election sticker

    Oct. 5, 2022 – The November 2022 election will be conducted differently from the November 2020 election in several ways, as the result of three court decisions handed down in the last three months.

    The first decision, issued by the Wisconsin Supreme Court in July, will likely affect the greatest number of voters.

    In Teigen v. WEC, 2022 WI 64 (July 8, 2022) the supreme court ruled (4-3) that Wisconsin law does not authorize the use of ballot drop boxes.

    The court also held that Wisconsin statutes require voters to either mail or personally return ballots to a municipal clerk’s office or a designated alternate site.

    Ballot boxes were widely used throughout Wisconsin beginning in 2020, to make it easier for voters worried about the pandemic to safely return absentee ballots. Nearly 2 million absentee ballots were cast in the November 2020 election.

    Dueling Definitions

    In her opinion for the Teigen majority, Justice Rebecca Bradley concluded that because state law requires absentee ballots be “mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots,” ballot boxes existed “outside statutory parameters.”

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    “An inanimate object, such as a ballot drop box, cannot be the municipal clerk,” Justice R.G. Bradley wrote. “At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery ‘to the municipal clerk.’”

    Justice R.G. Bradley concluded that guidance to the contrary, issued to municipal clerks by the Wisconsin Elections Commission (WEC), conflicted with the relevant statutes.

    In her dissent, Justice A.W. Bradley argued that the majority misinterpreted the term “municipal clerk” in Wis. Stat. section 6.87(4)(b)1, and ignored that in other statutes the legislature used the terms “office of the municipal clerk,” “office of the clerk,” or “the clerk’s office.”

    “Can delivery to a drop box constitute delivery ‘to the municipal clerk?’” Justice A.W. Bradley wrote. “Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk’s office.”

    No Drop Boxes

    Madison City Attorney Mike Haas will be one of the presenters at the State Bar’s elections law seminar on Oct. 12 at the State Bar Center.

    Haas pointed out that drop boxes staffed by municipal clerks remain legal under Teigen. But the City of Madison won’t be using drop boxes, he said.

    “Our drop boxes were secured but were located across the city, at fire stations mostly, with cameras to monitor them,” Haas said.

    “Communities around the state will need to adjust to the court decision and make sure that only drop boxes that are supervised are being used for the return of ballots.”

    Before becoming Madison City Attorney, Haas served as counsel to the WEC. He also served as the elections administrator for the Government Accountability Board, the predecessor to the WEC.

    Haas will also give a presentation on election law at the annual Wisconsin Solo and Small Firm Conference, Oct. 27-29, at Kalahari Resort in Wisconsin Dells.

    Joseph Kreye, chief counsel for the Legislative Reference Bureau, said that he expects clarification from the WEC in the wake of the Teigen decision.

    “I think you may still have guidance or potential rule-making,” said Kreye, noting “there’s still some opportunity for alternate places where you can drop off your ballot in person.”

    Kreye will moderate a panel discussion of the Teigen decision at the Oct. 12 elections law seminar.

    A Win for Voters with Disabilities

    Kreye said a decision handed down by the U.S. District Court for the Western District of Wisconsin in August muddies the waters that the Teigen decision seemingly cleared.

    In Carey v. Wisconsin Elections Commission, Civil Case No. 22-402 (July 22, 2022) , the U.S. District Court ruled that the Voting Rights Act (VRA) preempts state law to the extent that state law prohibits voters with disabilities from enlisting third parties to help them complete and/or deliver absentee ballots.

    “As far as the in-person delivery, what I anticipate happening is some person being confused on how they enforce that,” Kreye said. “I’m relying on you telling me that you’re delivering this ballot for somebody who is disabled, consistent with the VRA and that opinion.”

    Kreye said the WEC, a six-member body with membership split equally between Democrats and Republicans, was unable to agree on a process that would allow a person to certify that he or she was delivering an absentee ballot for a person with a disability.

    According to Haas, the Carey ruling settles – at least for now – a question left open by the Teigen decision.

    “The Wisconsin Supreme Court somewhat took a pass on the issue of federal accessibility laws and how they might affect the return of absentee ballots,” Haas said. “The court said it was not fully briefed, so it was not going to take up that issue.

    “The court indicated that federal law guarantees that voters with disabilities have the right to vote and the right to return their ballot and in doing so could obtain assistance from other individuals to either mail their ballot or to have it returned to the municipal clerk’s office. There was a lot of concern among elections officials about voters with disabilities just simply not being able to get out to the mailbox, or get in the car and deliver their ballot on their own.”

    Clerks May Not Correct Absentee Ballots

    A third decision adds another layer of complexity for municipal clerks.

    On September 8, a Waukesha County Circuit Court judge ruled that under Wisconsin law, only a witness may complete or correct information in the section for a witness’s information and address on absentee ballot envelopes.

    The judge ordered the WEC to rescind guidance, issued in 2016, that advised municipal clerks to add information that was missing on absentee ballot envelopes.

    “If our system of laws is to have any meaning, it must mean that laws are binding and control over the unsupported whims of unelected bureaucrats periodically tasked with enforcing them,” wrote Circuit Court Judge Michael Aprahamian.

    The WEC issued guidance ahead of the 2020 election that directed clerks on how to add missing information or correct information on absentee ballot envelopes.

    The legislature’s Joint Committee for Review of Administrative Rules earlier this year directed the WEC to put the 2016 guidance on the correction of absentee ballot envelopes into the form of a rule. Then, in July, the committee by a party-line 6-4 vote suspended the WEC’s 2020 guidance on how to correct absentee ballot envelopes.

    Legal counsel for the WEC contended that the 2016 guidance remained in effect. In August, the WEC considered rescinding that guidance but deadlocked, 3-3.

    As a result, under Judge Aprahamian’s ruling, the only way to add information or correct information on an absentee ballot envelope is to send the ballot back to the voter.

    For more information on the 2022 elections, visit the Wisconsin Elections Commission website, which contains FAQs in multiple categories, including FAQs for voters.

    From the Archives: Disputed Election led to Landmark Decision

    A bitterly contested gubernatorial contest that took place shortly after Wisconsin statehood prompted a state supreme court decision that functions like a state analogue to Marbury v. Madison, according to a recent article in the Wisconsin Blue Book.1

    In the 1855 election, Democratic incumbent Gov. William A. Barstow faced Coles Bashford, the Republican nominee. The Republican Party was only two years old; it was founded in 1854 in Ripon by Wisconsinites angered by the potential expansion of slavery.

    As election day neared, the Republicans, who had brought to light alleged corruption by members of Barstow’s administration, seemed to have the upper hand. But the Republicans’ decision to support the prohibition of alcohol harmed their prospects with Wisconsin’s large immigrant population, especially beer-loving Germans.

    Many men who went to the polls on Nov. 6 cast handwritten ballots; others submitted pre-printed candidate lists, clipped from one of the famously partisan newspapers of the day. Polling places included private homes, general stores, and backwoods taverns.

    It took 40 days to complete the statewide vote count. In the meantime, newspapers printed unofficial vote counts and official county votes changed by the day as clerks received new information.

    Eight days before Christmas, the state canvassing board, made up of the secretary of state, the treasurer, and the attorney general – all Democrats – announced that Barstow had won reelection by 157 votes out of 72,553 cast.

    Barstow was sworn into office for a second term on Jan. 7, 1856. But Bashford also took the oath of office, administered by Wisconsin Supreme Court Chief Justice Edward Whiton, several hours before Barstow.

    Bashford alleged that the vote results in Chippewa, Dunn, Monroe, Polk, Sheboygan, and Waupaca counties had been falsified. He complained to the attorney general, who filed a quo warranto action, challenging Barstow’s right to office, in the supreme court.

    High-stakes Case

    Barstow argued that the supreme court lacked the authority to decide whether he properly held office. His lawyers argued that Bashford could remove Barstow only by force, because the state constitution provided no other remedy.

    Bashford’s lawyers pointed to Article I, Section 9 of the Wisconsin Constitution. That section specifies that “Every person is entitled to a certain remedy in the laws, for all injuries or wrongs which he may receive in his person, property, or character.”

    The justices agreed. In a unanimous decision issued on Feb. 18, 1856, the supreme court both affirmed its authority to hear the case and held that Barstow had no right to the governorship if he hadn’t received the highest number of votes, as required by Article V, Section 3 of the state constitution. The opinion also set March 8 as the deadline for Bartsow to prove he’d received the most votes.

    Barstow made noise about ignoring the court’s decision. In Madison, armed supporters of both candidates grew restless, and the prospect of bloodshed on the Capitol Square seemed very real.

    But when March 8 came, Barstow dropped the case. Instead, he resigned, elevating Democratic Lieutenant Governor Arthur McArthur. Barstow hoped the move would convince the supreme court to drop the case.

    But the case moved forward, with the court taking evidence of election returns submitted from fictional polling places. On March 24, the supreme court issued another decision, holding that if the suspicious returns were omitted from the statewide count, Bashford was the rightful governor. McArthur handed the governorship over to Bashford the next day.

    ‘Trusting the Judicial Process’

    Staci Duros, a senior legislative analyst with the Legislative Reference Bureau, co-authored the recent Wisconsin Blue Book article on the disputed election of 1855.

    In researching the article, Duros said she was surprised at the raw and potentially dangerous nature of the dispute between the two would-be governors.

    “Our supreme court was under immense pressure in the form of the potential for partisan violence,” Duros said.

    According to Duros, state courts have cited Attorney General ex rel Bashford v. Barstow infrequently down through the years.

    “It’s mainly used in separation-of-powers arguments under the Wisconsin constitution,” said Duros, noting the Barstow case was most recently cited in Service Employees International Union v. Vos, 2021 WI 67 (July 9, 2020).

    In that case, the supreme court upheld a challenge to the constitutionality of laws relating to legislative involvement in litigation, capitol security, the suspension of administrative rules, and agency deference. The laws were enacted by the legislature in late 2018, after Gov. Tony Evers was elected but before he’d taken office.

    Duros said that Attorney ex rel Bashford v. Barstow holds lessons for today’s lawyers – and voters.

    “The lesson I hope that people would learn is the idea of trusting the judicial process,” Duros said. “And trusting the fact that elections are run in specific ways that account for potential irregularities like the one you see in this case. We’ve obviously gotten way better at it than we were 170 years ago.”

    Duros will participate in a panel discussion of Attorney General ex rel Bashford v. Barstow at the State Bar’s Oct. 12 elections law seminar​.

    Madison City Attorney Mike Haas has been busy this year advising city officials on changes in election law by recent state and federal court decisions. In one decision, Teigen v. WEC, the Wisconsin Supreme Court set strict limits on the use of ballot drop boxes.

    “Communities around the state will need to adjust to the court decisions and make sure that only drop boxes are supervised are being used for the return of ballots,” Haas said.

    Before becoming Madison City Attorney, Haas served as counsel to the Wisconsin Elections Commission (WEC). He also served as the elections administrator for the Government Accountability Board, the predecessor to the WEC.

    Haas will be a presenter at two upcoming seminars presented by the State Bar of Wisconsin: an elections law CLE on Oct. 12 (held at the State Bar Center) and the annual Wisconsin Solo and Small-Firm Conference (WSSFC) on Oct. 27-29 (held at Kalahari Resort in Wisconsin Dells), and virtually on Nov. 14-16, 2022.

    At both seminars, Haas will discuss the implications of the Teigen decision and the Carey v. WEC decision. In Carey, a federal judge ruled that under the Voting Rights Act, disabled voters in Wisconsin are entitled to assistance in casting their ballots.

    Registration is included for Ultimate Pass Gold subscribers; Ultimate Pass Silver subscribers will receive a substantial discount. Ultimate Pass FAQs.

    Attendees will receive to 8.5 CLE and 6.0 EPR credits by viewing complimentary webcast replays in November and December.


    1 Stephanie Duros, Louisa Kamps & Jillian Slate, Dueling Governors: How the Wisconsin Supreme Court Resolved the State’s First Political Crisis, Wisconsin Blue Book (2021-22).

Join the conversation! Log in to comment.

News & Pubs Search

Format: MM/DD/YYYY