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  • February 10, 2022

    Wisconsin Supreme Court Declines Candidate’s Petition to Review Absentee Ballot Rules

    The Wisconsin Supreme Court has denied a petition filed by gubernatorial candidate Rebecca Kleefisch, who asked the court to review Wisconsin Election Commission (WEC) guidance as an original action.

    Jeff M. Brown

    Supreme Court entryway at the Madison Capitol

    Feb. 10, 2022 – The Wisconsin Supreme Court has denied a petition filed by gubernatorial candidate Rebecca Kleefisch, who asked the court to review Wisconsin Election Commission (WEC) guidance as an original action.

    In Kleefisch v. Wisconsin Election Commission, 2021AP1976-OA (Feb. 4, 2022), the supreme court denied the petition in a brief unsigned order.

    In her petition, Kleefisch claimed that WEC failed to follow state law in providing guidance on the use of unattended ballot drop boxes; the role of special voting deputies at nursing and retirement homes; and the consolidation of polling places.

    Kleefisch also claimed that in issuing the guidance, WEC had failed to follow procedures for promulgating administrative rules.

    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.

    Kleefisch petitioned the supreme court directly, asking it to exercise original jurisdiction over her claims. Under Article VII, section 3(2) of the Wisconsin Constitution, the supreme court “has appellate jurisdiction over all courts and may hear original actions and proceedings.”

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

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

    In another recent lawsuit over the WEC guidance, Tiegen v. WEC, the supreme court granted a petition to bypass the court of appeals.

    ‘Cry of Wisconsin Voters’

    Justice Roggensack began her dissent by explaining that conducting elections in a manner that’s supported by Wisconsin voters is “critically important.”

    “Since the 2020 presidential election, many Wisconsin voters have raised serious concerns about the conduct of elections because of directives given by the Wisconsin Elections Commission … to the municipal clerks who run the elections,” Justice Roggensack wrote.  

    The issue of whether WEC’s guidance accords with state statutes is one of publici juris (“belonging to the public”), Roggensack explained, because the guidance affects the conduct of statewide elections.

    “The legality of absentee ballot guidance from WEC has been simmering since 2020, and will likely continue until we thoroughly address absentee ballot issues generated by WEC,” Justice Roggensack wrote.

    The supreme court should have granted Kleefisch’s petition, Justice Roggensack wrote.

    “Because the majority sidesteps its obligation to hear the continuing cry of Wisconsin voters and addresses absentee ballot issues, I respectfully dissent.”

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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.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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