The SCOW docket: Drop-kicking drop boxes, part 4 (the Roggensack and Grassl Bradley concurrences)

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 concurrence; today we publish the second and third. 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

Concurrence: Justice Patience D. Roggensack (14 pages)

Concurrence: Justice Rebecca Grassl Bradley (17 pages), joined by Chief Justice Annette K. Ziegler and Roggensack

Concurrence: Justice Brian Hagedorn (35 pages)

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

Majority/Lead Opinion: Grassl Bradley (52 pages),  joined by Ziegler and Roggensack; joined in part by Hagedorn

​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.

Roggensack

The majority opinion concludes that the Wisconsin Elections Commission's (WEC) documents (hereinafter memos) are invalid because ballot drop boxes are not legal in Wisconsin and because absentee ballots must be personally delivered by the voter to the municipal clerk at the clerk's office. I agree, and join the majority opinion. I write further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur. 

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The circuit court decided that the elector was required to personally mail his or her own completed ballot to the clerk's office. Affirming the circuit court's decision is expressed in several briefs (sic), as is the need for uniform guidance. The WEC has issued memos that encourage drop boxes over mail-in ballot returns, and municipal clerks and election officials have acted on those memos. Teigen is a Wisconsin voter who is affected by the WEC's memos. Because the controversy is justiciable, I proceed to the merits of Teigen's statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over mailing completed ballots and are inconsistent with Wis. Stat. § 6.87(4)(b)1. Therefore, they are contrary to law. 

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The statute provides in regard to mailing that absentee ballots "shall be mailed by the elector . . . to the municipal clerk." Electors are statutorily defined as "[e]very U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote[.]"  Accordingly, when the statute says "the elector[,]" it means, the voter. 

The plain statutory text, provides that if a ballot is returned by mail, it is the "elector" who does the mailing. The legislature could have said "may be mailed by the elector" if it were not mandatory that the elector do the mailing. ...
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That agents are not permitted by the terms of Wis. Stat. § 6.87(4)(b)1 to mail absentee ballots is further supported by comparing the language in that statute with other statutes in which the legislature has explicitly allowed an agent or non-elector to participate in the absentee voting process. Those statutes, in keeping with the policy in Wis. Stat. § 6.84(1), have formalistic, regulated conditions attached. 

​For example, when a voter is a member of a sequestered jury, the legislature has provided very detailed instructions about voting and returning the ballot where a non-voter participates. ...

Another example of the legislature's recognition of agents involved in voting or ballot return is found in Wis. Stat. § 6.86(3)(a) for hospitalized electors. ...

Wisconsin Stat. § 6.87(5) also permits the use of an agent when the elector is disabled. ... Once again, when the legislature decided that use of an agent in voting was permissible, it specified the circumstances under which an agent could be employed and defined criteria for performing as an agent in regard to absentee ballots. 

Accordingly, because the text and context of § 6.87(4)(b)1. instruct me to do so, I conclude that no one but the elector may mail an absentee ballot unless the elector and his or her designated agent fit within a different statutory circumstance that explicitly permits it.

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Grassl Bradley

This court's binding precedent allows WEC – a creature of the legislature authorized only to implement Wisconsin's election laws – to make law by executive fiat, thereby granting it a potent "Badge[] of Domination[.]" In Trump v. Biden, a majority of this court gave WEC's "advice" the force of law. It declared this "advice" is "the rulebook" for elections – never mind what the statutes enacted by the legislature say. ...

Even properly promulgated administrative rules do not have this kind of weight; in the hierarchy of laws, rules fall beneath statutes (if rules may even be called law). I would overrule Trump, but it remains binding precedent under which the WEC memos have the force of law. Because a majority of this court accords them this effect, they must be rules. Because they were not promulgated according to statutorily prescribed procedures, they are invalid for this additional reason. ...

This court's decision in Trump gave WEC the power to materially alter how elections in this state are conducted – without a single procedural check. Trump should be overruled, but if the court continues to hold the memos need not be promulgated as administrative rules, they should at least be subject to the statutory procedures we struck down in SEIU (Service Employees International Union, Local 1 v. Vos). As the law stands, WEC's staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government.

In that case, Grassl Bradley writes, SCOW denied the legislature a role in previewing and clearing guidance documents issued by the administration.

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​Although the memos should not have the force of law, the majority erroneously concluded otherwise in Trump. In that case, Donald Trump, the incumbent President, and his campaign appealed the results of a recount in two Wisconsin counties. The ballots President Trump sought to strike fell into four categories; two are most relevant in this case. First, he argued "that a form used for in-person absentee voting [wa]s not a 'written application' and therefore all in-person absentee ballots should be struck." Second, President Trump argued "that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots [wer]e therefore invalid."

As the majority acknowledged, "Wisconsin law provides that a 'written application' is required before a voter can receive an absentee ballot, and that any absentee ballot issued without an application cannot be counted." A majority of this court refused to consider whether the form utilized for in-person absentee voting, EL-122, constituted a written application. It noted, "both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency." The majority emphasized "local election officials used form EL-122 in reliance on longstanding guidance from WEC." Therefore, it concluded, "[p]enalizing the voters election officials serve and the other candidates who relied on this longstanding guidance is beyond unfair." "To strike ballots cast in reliance on the guidance now, and to do so in only two counties, would violate every notion of equity that undergirds our electoral system." In Trump, a majority of this court allowed its notions of "equity" and "unfair[ness]" to trump the law. 

Invoking the same rationalizations, the majority declined to examine whether election officials violated a statute by adding missing witness information to absentee ballot certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a certificate is missing the address of a witness, the ballot may not be counted." The majority defied this clear textual command because it was concerned that "election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016." It continued, "the election officials relied on this statewide advice and had no reason to question it."

Overall, the majority compared voting – the foundation of free government – to a football game: "[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . . Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election." (Emphasis added by Grassl Bradley.)

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The holding in Trump requires a vote cast in reliance on a document produced by the WEC's staff to be counted even if the vote's counting is unlawful under the statute the staff purportedly interpreted. The majority did not ground its decision in constitutional law but in equity. Equitable powers may be broad, but they must always be lawfully exercised. Just this term, we held this court lacks the equitable power to rewrite statutes to enforce a subjective conception of fairness. The Trump majority abandoned this fundamental constraint on the judicial power. 

At the same time the majority aggrandized its "equitable" powers, it ceded its law declaring function to unelected bureaucrats. According to the Trump majority, the judiciary may not even opine on the validity of purported guidance once voters have relied on it. In so ruling, the majority neglected its constitutional duty to declare the meaning of law, instead elevating "guidance[] given by an unelected committee" to the status of supreme law, which must be followed in derogation of enacted statutes. 

The majority achieved these results by declaring WEC's guidance to be "the rulebook." "How astonishing that four justices of the Wisconsin Supreme Court must be reminded that it is THE LAW that constitutes 'the rulebook' for any election –  not WEC guidance –  and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men."  Notwithstanding SEIU's characterization of guidance as nothing more than executive branch "thought processes," the majority permitted "WEC . . . [to] treat their guidance as if it were law" – and a form of supreme law capable of overriding statutory language. The majority's reinvention of guidance as something on par with the constitution is antithetical to the constitutional separation of powers and deprives the people of power over their own government.

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With no convincing response to Trump, WEC primarily argues the memos lack the force of law because they do not require municipal clerks to establish ballot drop boxes. Nonetheless, these memos purport to authorize drop boxes. Under Trump, once a vote is placed in a drop box in reliance on a WEC document that has not been rescinded, it must be counted regardless of whether any statute actually authorizes drop boxes. At least during and after an election, a majority of this court will not consider whether a statute authorizes drop boxes, effectively establishing the memos as the authorizing device. ...

"As the law stands, WEC's staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government. ..."

.... Specifically, the Trump decision endorsed WEC's elimination of duties prescribed by law by counting ballots unlawfully cast in accordance with WEC's extra-legal directions. To erase by executive fiat the legislature's duly enacted law is no less an alteration of law merely because it authorizes the unlawful rather than prohibits that which is lawful. 

WEC also misses another critical point. While the memos may not require municipal clerks to set up ballot drop boxes, if they do so, Memo two regulates their use with clear, unambiguous, and mandatory language. For example, WEC says: "Ballot drop boxes must be secured and locked at all times" and "[c]hain of custody logs must be completed every time ballots are collected." (Emphasis added by Grassl Bradley.) The fact that these requirements attach only if a municipal clerk decides to set up drop boxes makes no difference. Laws often take the form of "if/then" statements. A person may choose not to drive, but if the person chooses to drive, the person is bound to wear a seat belt by a statute with the force of law.

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In his concurrence, Justice Brian Hagedorn attempts to backtrack from the majority opinion he authored in Trump. Whether expressed metaphorically or otherwise, the Trump majority not only labeled WEC's guidance the "rulebook" – it treated it as such, elevating it over statutory law. ... Regardless of what WEC's pronouncements on the law are called, if this court is going to allow them to control an election, they should be promulgated as rules. It was a "serious legal argument" then and remains so now. The majority grievously injured the rule of law in Trump, which the court should acknowledge and correct.

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A majority of this court permits Administrator Megan Wolfe's unilateral declarations regarding election procedures to have the force of law, subject only to judicial review (if the court even bothers to take the case). A majority of this court defenestrated the people's ability to defend their laws. Trump should be overruled to restore the people's supremacy over their public servants. ​