The SCOW docket: Drop-kicking dropboxes, part 3 (the Hagedorn concurrence)

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. 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 Brian Hagedorn (35 pages)

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 Hagedorn

Concurrence: Roggensack (14 pages)

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

​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.

Hagedorn

Concurrence

​The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that's it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written. 

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A careful study of the text, including its history, along with the supporting statutory context, reveals that unstaffed drop boxes for absentee ballot return are not permitted. Rather, this statute specifies return of absentee ballots through two and only two means: mailing by the voter to the municipal clerk, or personal delivery by the voter to the municipal clerk. And personal delivery to the clerk contemplates a person-to-person exchange between the voter and the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. The two (Wisconsin Elections Commission) memos advising otherwise therefore conflict with the law and are properly void. 

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Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present. 

Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy.

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Standing

​Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, "Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable."

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Teigen argues that Wis. Stat. § 5.06 gives voters like him a statutory right to have local election officials in the area where he lives comply with election laws. ...

Teigen has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law. The only question, then, is whether the memos at least threaten to interfere with or impair Teigen's right to have local election officials comply with the law. I conclude they do. 

The two memos challenged in this case provide local election officials advice on absentee ballot return – advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC's advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen's area, are likely to rely on and implement erroneous advice. Applying the plain terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at the very least threaten to interfere with or impair his right to have local election officials comply with the law. ... In this case, the question is whether WEC issued an allegedly unlawful rule or guidance document that makes it likely local election officials will not follow election laws. And on that question, Teigen has sufficiently alleged standing. ...

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Yet the majority/lead opinion suggests it creates broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law. Without tethering the analysis to an on-point text, this analysis is unpersuasive and does not garner the support of four members of this court.

Hagedorn writes that Teigen did not have to file a complaint with WEC before going to court.  

In addition, Wis. Stat. § 227.40(1) expressly opens the courthouse doors to those challenging administrative rules or guidance documents: "A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question." This seems to carve out a particular kind of legal claim – a challenge to rules and guidance documents – and relieves the petitioner of pleading one's case with the agency first. Applying this as written, and in the absence of other contrary arguments, I conclude Teigen was not required to take his case to WEC before seeking judicial relief. ... 

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Drop boxes and ballots

In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at (the) clerk's office or elsewhere, and that individuals other than the voter may deliver the voter's absentee ballot to the clerk. These three positions are inconsistent with Wisconsin's election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. Because WEC's memos conflict with these statutory directives, they are invalid.

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Wisconsin Stat. § 6.87(4)(b)1 was originally enacted as part of Wisconsin's earliest comprehensive absentee voting law in 1915. Regarding return of a ballot, the law provided: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in ​person." This wording, plainly read, suggests both the mailing and the delivery must be done by the voter, and directed to the ballot-issuing officer. 

When we construe statutes, we must read the words to mean what they were understood to mean at the time they were enacted, lest we find ourselves rewriting the law. Fortunately, we have clear evidence of how this language was originally read. Less than a year after enactment, the attorney general opined on the precise interpretive question before us today: "'Delivery in person' must mean handed directly by an elector to the officer; it means manual transmission by the one to the other." When enacted, the text we are considering today was understood to require a person-to-person interaction between the voter and the clerk. So far as I can tell, this reading went unchallenged for 40 years. 

In 1955, this court had occasion to examine the statute in an election dispute. In Sommerfeld v. Board of Canvassers of the City of St. Francis, 18 absentee ballots were returned to the clerk by a third person, and not by the voter. The question in that case concerned whether those ballots should be counted.  All seven justices took it as a given that the law had been violated; the statute required delivery from the voter to the clerk, not through a third person. The four-justice majority, however, concluded those votes should nonetheless be counted because the statute, though violated, was directory, not mandatory. Although legally binding, failure to comply with a directory statute may not produce the same consequence as a failure to comply with a mandatory statute. The Sommerfeld majority concluded that construing the in-person delivery requirement as mandatory for votes to count could disenfranchise some disabled voters – a result it did not think the legislature meant to produce. ... Sommerfeld's holding that the in-person delivery requirement is directory has since been abrogated. Section 6.84(2) now provides that the requirement "shall be construed as mandatory." What remains is what no justice doubted – that the "in person" delivery requirement means personal delivery, in the flesh, by the voter, to the municipal clerk. 

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Wisconsin Stat. § 6.88(1) prescribes what happens after an absentee ballot is received by the clerk. ... This statute ensures a strict chain of custody for ballots. Once a ballot is delivered by the voter, the clerk must take steps to secure it until the time comes to deliver it to the appropriate election officials. The next subsection, § 6.88(2), provides detailed instructions regarding the secure transfer of ballots from clerks to the proper election officials, ensuring there is no opportunity to tamper with the ballots. Although neither (statute) expressly state where the voter may deliver his or her ballot, reading the two sections together suggests that delivery must occur either at the clerk's office or an alternate site, if applicable. Given the detailed ballot custody regulations once the ballot arrives at the clerk's office or an alternate site, legislative silence with respect to ballots delivered anywhere else strongly indicates delivery is not permitted anywhere else. 

"The absence of any careful regulation governing ballot custody elsewhere leads me to conclude that clerks may not take custody of ballots at other locations unless otherwise specified."

Finally, we consider Wis. Stat. § 6.855, which authorizes the aforementioned "alternate sites" – i.e., designated locations besides the clerk's office where elections may be administered. ... The strict regulation of alternate sites reinforces the interpretation that ballots must be returned to either the clerk's office or a designated alternate site. Just as the statutes are not agnostic about who delivers ballots, a holistic reading indicates they are not agnostic about where those ballots are delivered either. Ballot custody is carefully regulated at both clerks' offices and at alternate sites. The absence of any careful regulation governing ballot custody elsewhere leads me to conclude that clerks may not take custody of ballots at other locations unless otherwise specified.

The respondents argue that the directive to deliver ballots "to the municipal clerk" ... does not restrict how the municipal clerk may receive the ballots. If the municipal clerk wishes to receive the ballots in a drop box, the argument goes, that is sufficient. Moreover, other statutes speak of delivery to the office of the municipal clerk, and this one does not. This is perhaps the best argument in the respondents' favor, but it is unpersuasive given the additional statutes that give great care to ballot security and custody. ...

Read together, these statutes direct that when voters choose to return an absentee ballot in person, they must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. With this interpretation in hand, the next task is to hold WEC's memos up against the statutes.

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Both WEC's March 2020 and August 2020 memos provide advice that is inconsistent with Wisconsin's election statutes. The court therefore rightly affirms the circuit court's order declaring the memos invalid.