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  • February 09, 2022

    In 4-3 Decision, Wisconsin Supreme Court Grants Bypass for Ballot Boxes Case

    An appeal from a circuit court’s decision in a lawsuit over ballot drop boxes will go directly to the Wisconsin Supreme Court under an order issued by the supreme court on Jan. 28, 2022.

    Jeff M. Brown

    Drunk Driving

    Feb. 9, 2022 – An appeal from a circuit court’s decision in a lawsuit over ballot drop boxes will go directly to the Wisconsin Supreme Court under a recent order issued by the supreme court on Jan. 28, 2022.

    The supreme court issued the order in Richard Teigen v. Wisconsin Elections Commission, 2022AP91 (Jan. 28, 2022). In the order, the supreme court granted an emergency petition to bypass the court of appeals but declined to vacate a stay issued by the Wisconsin Court of ​(on Feb. 10, the supreme court ordered that the stay run only through the Feb. 15 election).

    The decision came on a 4-3 vote. The order, which did not list an auth​​​​​​​or, was joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, Justice Jill Karofsky, and Justice Brian Hagedorn. Justice Hagedorn wrote a separate concurrence.

    Justice Rebecca Grassl Bradley concurred in part and dissented in part, joined by Chief Justice Annette Ziegler and Justice Patience Roggensack.

    Court of Appeals Granted Stay

    In June 2021, Richard Teigen and Richard Thom filed a lawsuit in Waukesha County Circuit Court challenging guidance issued to local election officials in 2020 by the Wisconsin Elections Commission (WEC).

    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.

    The guidance included advice about ballot drop boxes, the collection of absentee ballots, and whether electors must mail or deliver absentee ballots themselves.

    The circuit court granted summary judgment for the plaintiffs in January 2022. The circuit court ruled that the WEC guidance violated state statutes, and that guidance documents were administrative rules but were not properly promulgated.

    The circuit court directed WEC to withdraw the guidance and ordered WEC to advise local clerks by Jan. 27, 2022 that the guidance was invalid.

    WEC joined several defendants in a motion asking the circuit court to stay the order pending appeal. The circuit court denied the motion and the defendants appealed. The court of appeals then stayed the circuit court’s order through Feb. 15, 2022.

    The plaintiffs filed an emergency petition, asking the supreme court to vacate the stay and bypass the court of appeals and hear the case directly.

    Waity Decision Governs

    The majority held that its recent decision in Waity v. Lemahieu governed its analysis of whether the circuit court had properly decided not to grant a stay.

    In Waity, the supreme court held that a circuit court’s relying on its own statutory interpretation as basis for not staying its order and injunction ignored the fact that the court of appeals or the supreme court might interpret the statutes differently.

    Given that, the majority wrote, “[w]e thus conclude that the circuit court’s analysis of the likelihood of success on the merits was too brief to satisfy what is required … under Waity.”

    Election Already Underway

    Additionally, the majority held that vacating the stay would likely cause the defendants substantial harm and hurt the public interest, given that the process for the February 15, 2022 election had already begun.

    For instance, the deadline for delivering ballots to municipal clerks had passed, and according to filings in the lawsuit, 88,252 ballots had been mailed to electors, with 61,266 delivered.

    “Withdrawal of existing guidance while an election is underway is likely to result in voter confusion and uncertainty in the administration of the election,” the majority wrote.

    The majority granted the plaintiff’s emergency petition for bypass without discussion.

    Don’t ‘Muddy the Waters’

    In his concurrence, Justice Hagedorn amplified the reasoning behind the majority’s holding.

    “The voting process is even further along now than it was last week when the circuit court made its decision,” Justice Hagedorn wrote. “As a general rule, this court should not muddy the waters during an ongoing election …Reversing the stay now would do precisely that.”

    No Transcript

    Justice R.G. Bradley concurred with the majority’s decision to bypass the court of appeals. But the supreme court should have vacated the stay, Justice R.G. Bradley explained.

    State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995) and other case law hold that the court of appeals may only stay a circuit court’s order where the circuit court employed an erroneous legal standard or made a conclusion that was not reasonably supported by the facts, Justice R.G. Bradley noted.

    “The court of appeals could not possibly have properly applied the factors set forth in Gudenschwager, or reviewed the circuit court’s exercise of its discretion, because (among other things) the court of appeals did not even have a transcript of the January 21, 2022 hearing at which the circuit court explained the basis for its ruling before it stayed the circuit court’s order,” Justice R.G. Bradley wrote.

    ‘The Majority Will Do Nothing’

    By refusing to vacate the stay issued by the court of appeals, Justice R.G. Bradley wrote, “the majority allows another election to proceed under the ‘guidance’ of the Wisconsin Elections Commission … rather than ensuring the election proceeds in accordance with the law, a substantial harm to the public interest the majority neglects to consider.”  

    Justice R.G. Bradley, dissenting, explained that Justice Hagedorn’s reliance on the fact that the process for the Feb. 15, 2022 election had already begun was misplaced.

    “In Wisconsin, there is always an impending election,” Justice R.G. Bradley wrote. “Under the logic of his concurrence, WEC may declare the rules as it wishes, the court of appeals may disregard the law when it wishes, and the majority will do nothing in response.”


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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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