The SCOW docket: Drop-kicking drop boxes, part 2 (the dissent)

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Here's the first one. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Justice Brian Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

Concurrence: Hagedorn (35 pages)

Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.​

Walsh Bradley

Dissent
​
While Grassl Bradley, in her lead opinion, refers to Teigen and Thom as "Wisconsin voters," Walsh Bradley refers to them together simply as "Teigen." Walsh Bradley explains in a footnote: "The majority/lead opinion refers to Teigen and Thom as the "Wisconsin voters" throughout its opinion. This could be misleading to the reader. True enough, Teigen and Thom are voters who live in Wisconsin. But the use of the term could lead the reader to believe that the plaintiffs here represent a wider swath of people than they actually do. Thus, I refer to the two plaintiffs collectively as 'Teigen. ' "

Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.

A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic.

But it is apparently a bridge too far for a majority of this court, which once again rejects a practice that would expand voter participation.

The majority/lead opinion's analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy. 

                                                                               ***
Standing

Teigen has suffered an "injury in fact" to his constitutional right to vote, the majority/lead opinion says, merely because he alleges that election law was not followed. In accepting Teigen's standing to bring this suit, it further states: "the failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results."

The majority/lead opinion says that Teigen's "rights and privileges as [a] registered voter[]" give him standing to bring this action challenging the statewide administration of elections. Taken to its logical conclusion, the majority/lead opinion indicates that any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of voter standing is breathtaking and especially acute at a time of increasing, unfounded challenges to election results and election administrators.

                                                                               ***
Statutory interpretation

The majority/lead opinion's interpretation of Wis. Stat. § 6.87(4)(b)1. ignores an important distinction. Section 6.87(4)(b)1. uses the phrase "municipal clerk." It does not say "municipal clerk's office." 

This is important because elsewhere the Wisconsin Statutes are replete with references to the "office of the municipal clerk," the "office of the clerk," or the "clerk's office." Not only is such an "office" referenced, but it is specified as a place where a delivery or an action takes place. ... 

We also know that a "municipal clerk" under the statutes is distinct from the "office of the municipal clerk," because "municipal clerk" is specifically defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." In other words, the "municipal clerk" is a person, and the "office of the municipal clerk" is a location. ...

If the legislature wanted to require return of a ballot to the clerk's office, it certainly could have done so, as it did in the litany of provisions using such language. ...

Can delivery to a drop box constitute delivery "to the municipal clerk?" Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk's office. As stated, the "municipal clerk" in the statutes is a person, and the "office of the municipal clerk" is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk's designee sets up, maintains, and empties, is simply another way to deliver a ballot "to the municipal clerk." The majority/lead opinion's attempt to avoid the statute's plain language fails.

                                                                               ***

On its face, Wis. Stat. § 6.855 (governing alternate absentee ballot sites) sets forth that alternate voting sites "must be a location not only where voters may return absentee ballots, but also a location where voters 'may request and vote absentee ballots.'" Thus, as the majority/lead opinion acknowledges, "[b]allot drop boxes are not alternate absentee ballot sites under (the statute) because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site." 

The majority/lead opinion reads into (the law) an implication beyond the statute's language. Although the majority/lead opinion correctly acknowledges that (the statute) does not describe drop boxes, it seeks support for its result in the assertion that "[t]he legislature enacted a detailed statutory construct for alternate sites" while at the same time "the details of the drop box scheme are found nowhere in the statutes." This argument falls flat for the same reason the majority/lead opinion's statutory analysis of Stat. § 6.87(4)(b)1 fails: the legislature did not include a detailed scheme for drop boxes in the statutes because it did not need to do so. As analyzed above, (state law) already authorizes them. 

                                                                               ***

State law allows local election officials some discretion on how elections in their communities should be run, Walsh Bradley writes.

---

"Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible."

Instead of this common sense reading that is consistent with the decentralized manner in which Wisconsin elections are run, the majority/lead opinion severely limits the return of absentee ballots in all municipalities regardless of their circumstances. Some voters will be unlucky enough to live in a jurisdiction without a full-time clerk, and others will be forced to go to only a single location to return their ballots where they previously had numerous options. Does the majority/lead think everyone in this state lives in urban areas with full-time clerks and standard office hours? If so, it ignores reality and puts rural voters at a disadvantage. 

                                                                               ***

Contravening the plain language of the statute to prohibit ballot drop boxes is bad enough. But the majority/lead opinion further erroneously determines that a voter cannot have a family member or friend return their ballot to the municipal clerk for them. 

The brunt of this holding will fall on those who are homebound. If a voter is disabled or sick, and someone the voter lives with is taking their own absentee ballot to the clerk's office, that roommate, spouse, or family member can't, under the majority/lead opinion's analysis, simply pick up another validly voted ballot from the kitchen table and take it with them. 

Section 6.87(4)(b)1. does not say "delivered in person by the elector." It says "delivered in person." The majority/lead opinion transposes the phrase "by the elector," placing it not where the legislature placed it (after "mailed"), but instead writing it into the statute where the majority/lead opinion prefers it to be placed in order to bolster its erroneous conclusion. Yet, the statute says nothing at all about who may return a ballot to the municipal clerk. Rather, the statute is written in the passive voice and does not indicate who the actor is who must deliver the ballot "in person."

A voter's spouse, child, or roommate can deliver a ballot "in person" just as the voter can, and the statute draws no distinction. Yet the majority/lead opinion manufactures one, going outside the words the legislature wrote to place yet another obstacle in the way of voters simply seeking to exercise their cherished right to vote.

Election integrity

There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction. ...

But concerns about drop boxes alone don't fuel the fires questioning election integrity. Rather, the kindling is primarily provided by voter suppression efforts and the constant drumbeat of unsubstantiated rhetoric in opinions like this one, not actual voter fraud.