No. 2020AP2038.

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¶61 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting).

Elections have consequences. One candidate wins and the other

loses, but in every case, it is critical that the public perceive

that the election was fairly conducted.

¶62 In the case now before us, a significant portion of the

public does not believe that the November 3, 2020, presidential

election was fairly conducted. Once again, four justices on this

court cannot be bothered with addressing what the statutes require

to assure that absentee ballots are lawfully cast. I respectfully

dissent from that decision. I write separately to address the

merits of the claims presented.1

¶63 The Milwaukee County Board of Canvassers and the Dane

County Board of Canvassers based their decisions on erroneous

advice when they concluded that changes clerks made to defective

witness addresses were permissible. And, the Dane County Board of

Canvassers erred again when it approved the 200 locations for

ballot collection that comprised Democracy in the Park. The

majority does not bother addressing what the boards of canvassers

did or should have done, and instead, four members of this court

throw the cloak of laches over numerous problems that will be

repeated again and again, until this court has the courage to

correct them. The electorate expects more of us, and we are

1 See Antonin Scalia, The Dissenting Opinion, 1994 J. Sup.

Ct. Hist. 33 (1994) ("Legal opinions are important, after all, for
the reasons they give, not the results they announce; results can
be announced in judgment orders without opinion. An opinion that
gets the reasons wrong gets everything wrong which is the function
of an opinion to produce.").

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capable of providing it.2 Because we do not, I respectfully

dissent.

I. BACKGROUND

¶64 On November 3, 2020, people across Wisconsin and across

the country exercised their constitutional right to vote. When

the initial Wisconsin canvass was completed on November 17, 2020,

Joseph R. Biden and Kamala D. Harris received 20,427 more votes

than Donald J. Trump and Michael R. Pence.

¶65 On November 18, 2020, President Trump, Vice President

Pence and the Trump campaign (the Petitioners) filed recount

petitions in Milwaukee and Dane Counties. The recount petitions

alleged that the following errors occurred during the election in

both counties:

(1) Municipal clerks improperly completed missing

information on absentee ballot envelopes related to
witness addresses;

(2) In-person absentee voters did not submit written

applications for an absentee ballot; and

(3) Voters who were not indefinitely confined claimed

"indefinitely confined" status for the purposes of
obtaining an absentee ballot without having to show
a photo identification.
¶66 In addition to the above allegations raised during both

recounts, in Dane County, the Petitioners alleged error in counting

2 See, e.g, Texas v. Pennsylvania, 592 U.S. ____, ____ (slip

op., at 1) (Dec. 11, 2020) (order denying motion to file bill of
complaint) (Alito and Thomas, J.J., statement on the denial of
Texas's motion to file a bill of complaint) ("In my view we do not
have discretion to deny the filing of a bill of complaint in a
case that falls within our original jurisdiction. . . . I would
therefore grant the motion to file the bill of complaint but would
not grant other relief, and I express no view on any other
issue")(internal citation omitted).

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all ballots received during Democracy in the Park events in Madison

on September 26, 2020, and October 3, 2020.

¶67 The recount lasted from November 20, 2020, to November

29, 2020.3 During the recount process, the Petitioners objected

to irregularities in how the voting was conducted pursuant to Wis.

Stat. § 9.01(5) (2017-18).4 Many irregularities were grounded in

Wisconsin Elections Commission (WEC) advice on voting process.

The boards of canvassers overruled all of the Petitioners'

irregularity objections.

¶68 As they relate to each alleged irregularity, the

counties rejected the Petitioners' arguments for the following

reasons:

(1) Municipal clerks improperly completed missing

information on absentee ballot envelopes related to witness

addresses.

The Milwaukee County Board of Canvassers moved to accept

ballots from envelopes with witness addresses that had
been completed by clerks consistent with specific
guidance by the WEC, which the Board viewed as consistent
with Wis. Stat. § 6.87(6d).

The Dane County Board of Canvassers also declined to

"exclude envelopes that had a witness address added by
the clerk."
(2) In-person absentee voters did not submit written

applications for an absentee ballot.

3Milwaukee County completed and certified its results on

November 27, 2020, and Dane County completed and certified its
recount results on November 29, 2020.
4All further references to the Wisconsin Statutes are to the
2017-18 version.

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The Milwaukee County Board of Canvassers determined that

there are multiple forms of application for an absentee
ballot that can be made by absentee in-person voters and
that the absentee ballot envelope provided to absentee
in-person voters – which has the word "application"
stated on it and must be completed by the voter – is an
application for an absentee ballot. The Milwaukee Board
thus rejected the Trump Campaign's challenge to ballots
cast by in-person absentee voters.

The Dane County Board of Canvassers voted not to exclude

or draw down any absentee ballots on the basis that they
"do not have an attached or identifiable
application." . . . The Dane County Board of Canvassers
concluded that review of absentee ballot applications is
not a part of the statutory recount process under Wis.
Stat. § 9.01(1)(b) and therefore the applications were
not relevant to the recount.
(3) Voters who were not indefinitely confined claimed

"indefinitely confined" status for the purposes of obtaining an

absentee ballot without having to show a photo identification.

The Milwaukee County Board of Canvassers found that "a

designation of an indefinitely confined status is for
each individual voter to make based upon their current
circumstances" and that "no evidence of any voter in
Milwaukee County [was] offered that has abused this
process and voted through this status . . . not even an
allegation that there was a single voter who abused this
process to vote without providing proof of their ID, but
eliminating proof that anyone did so. So there's no
allegation . . . no proof . . . no evidence." . . . The
Board voted to overrule any challenge to a voter with
the status of "indefinitely confined."

The Dane County Board of Canvassers also rejected the

Trump Campaign's challenge that would have required
invalidating the ballots of all electors in Dane County
who declared indefinitely confined status. The Board
specifically declined to separate or "draw down" the
ballots cast by electors who declared indefinitely
confined status.

(4) Ballots received during democracy in the park.

The Dane County Board of Canvassers denied the

challenge, ruling that the Democracy in the Park events
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were the equivalent of a human drop box and valid under

the statute.

¶69 On December 1, 2020, the Petitioners filed a petition

for leave to file an original action with us. We denied that

petition on December 3, 2020. That same day, the Petitioners filed

two notices of appeal of the recount determinations pursuant to

Wis. Stat. § 9.01(6)(a). Those cases were consolidated in

Milwaukee County and the Honorable Stephen Simanek was assigned to

the appeal pursuant to § 9.01(6)(b).

¶70 The circuit court held a hearing on December 11, 2020.

At the conclusion of oral argument, the circuit court affirmed the

recount determinations and, in so doing, adopted pages one through

thirty of the Respondents' Joint Proposed Findings of Fact and

Conclusions of Law. After the circuit court entered its final

written decision, the Petitioners filed a notice of appeal. The

Petitioners also filed a petition for bypass under Wis. Stat.

§ 809.60(1). Thereafter, we granted the petition for bypass and

assumed jurisdiction over this appeal.

II. DISCUSSION

A. Standard of Review

¶71 In a Wis. Stat. § 9.01 proceeding, post election

challenges "are permissible provided that they may affect the

election results." Logerquist v. Board of Canvassers for Town of

Nasewaupee, 150 Wis. 2d 907, 916, 442 N.W.2d 551 (Ct. App. 1989).

In such a proceeding, we review the determinations of the board of

canvassers, not those of the circuit court. Id. at 917. "On

appellate review of a [] § 9.01(1) proceeding, the question is

whether the board [of canvasser's] findings are supported by

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substantial evidence.5 Carlson v. Oconto Bd. of Canvassers, 2001

WI App 20, ¶5, 240 Wis. 2d 438, 623 N.W.2d 195 (citing Logerquist,

150 Wis. 2d at 912).

¶72 This appeal also requires us to interpret and apply

Wisconsin statutes. We interpret and apply statutes independently

as questions of law, while benefitting from the discussion of the

circuit court. Voces De La Frontera, Inc. v. Clarke, 2017 WI 16,

¶12, 373 Wis. 2d 348, 891 N.W.2d 803.

B. Alleged Irregularities

¶73 "If WEC has been giving advice contrary to statute, those

acts do not make the advice lawful. WEC must follow the law. We,

as the law declaring court, owe it to the public to declare whether

WEC's advice is incorrect. However, doing so does not necessarily

lead to striking absentee ballots that were cast by following

incorrect WEC advice. The remedy Petitioners seek may be out of

reach for a number of reasons." Trump v. Evers, No. 2020AP1917-

OA, unpublished order (Wis. Dec. 3, 2020) (Roggensack, C.J.,

dissenting from the denial of the petition for leave to commence

an original action).

¶74 This case is guided by Wis. Stat. § 6.84 which provides:

The legislature finds that voting is a constitutional

right, the vigorous exercise of which should be strongly
encouraged. In contrast, voting by absentee ballot is
a privilege exercised wholly outside the traditional
safeguards of the polling place. The legislature finds
that the privilege of voting by absentee ballot must be
carefully regulated to prevent the potential for fraud
or abuse; to prevent overzealous solicitation of absent

5 In the matter before us, the material facts are not

disputed. Rather, it is the legal consequences that follow from
these facts that forms the controversy.

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electors who may prefer not to participate in an

election; to prevent undue influence on an absent
elector to vote for or against a candidate or to cast a
particular vote in a referendum; or other similar
abuses.

Notwithstanding s. 5.01, with respect to matters

relating to the absentee ballot process, ss. 6.86,
6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed
as mandatory. Ballots cast in contravention of the
procedures specified in those provisions may not be
counted. Ballots counted in contravention of the
procedures specified in those provisions may not be
included in the certified result of any election.
Accordingly, the provisions that relate to obtaining and voting

absentee ballots must be carefully examined as a recount proceeds.6

C. Witness Addresses

¶75 Wisconsin Stat. § 6.87(2) provides that absentee ballots

must be accompanied by a certificate. The certificate may be

printed on the envelope in which an absentee ballot is enclosed.

Section 6.87(2) provides a model certificate, and directs that

certificates must be in "substantially" the same form as the model.

The model provides:

The witness shall execute the following:

I, the undersigned witness, subject to the

penalties of s. 12.60 (1)(b), Wis. Stats., for false
statements, certify that I am an adult U.S. citizen and
that the above statements are true and the voting
procedure was executed as there stated. I am not a
candidate for any office on the enclosed ballot (except
in the case of an incumbent municipal clerk). I did not
solicit or advise the elector to vote for or against any
candidate or measure.

6 See also Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th Cir.
2004) ("Voting fraud is a serious problem in U.S. elections
generally . . . and it is facilitated by absentee voting. In this
respect absentee voting is to voting in person as a take-home exam
is to a proctored one." (internal citations omitted)).

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....(Printed name)

....(Address)

Signed ...."[7]
Accordingly, the plain language of § 6.87(2) requires that it is

the witness who must affix his or her signature and write in his

or her name and address. Section 6.87(2) does not mention an

election official taking any action.

¶76 Wisconsin Stat. § 6.87(9) explains what an election

official may do if an absentee ballot is received with an

improperly completed certificate or no certificate:

[T]he clerk may return the ballot to the elector, inside

the sealed envelope when an envelope is received,
together with a new envelope if necessary, whenever time
permits the elector to correct the defect and return the
ballot within the period authorized under sub. (6).
Section 6.87(9)'s plain language authorizes election officials to

return the ballot to "the elector" to correct "the defect." It

does not authorize election officials to make corrections, i.e.,

to write anything on the certificate.

¶77 In addition, Wis. Stat. § 6.87(6d) provides that "[i]f

a certificate is missing the address of a witness, the ballot may

not be counted." This language is clear. And furthermore, its

legislative history confirms its plain meaning. Westmas v.

Creekside Tree Serv., Inc., 2018 WI 12, ¶20, 379 Wis. 2d 471, 907

N.W.2d 68 (quoting State v. Grunke, 2008 WI 82, ¶22, 311

Wis. 2d 439, 752 N.W.2d 769) (explaining that courts may consult

legislative history to confirm a statute's plain meaning). This

subsection was added by 2015 Wis. Act 261. A memorandum prepared

7 Asterisks removed.

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by the Legislative Council provides that "Act 261 . . . requires

an absentee ballot to have a witness address to be counted. An

absentee ballot voter must complete the certification and sign the

certification in the presence of a witness, and the witness must

sign the certificate and provide his or her name and address."

Wis. Legis. Council Act Memo, 2015 Wis. Act 261, at 2,

https://docs.legis.wiscinsin.gov/2015/related/lcactmemo/act261.p

df.

¶78 The contention that ballots with defective addresses

cannot be counted is supported by more than the plain meaning of

Wis. Stat. § 6.87(6d). The requirement that such ballots not be

counted is found in Wis. Stat. § 6.84(2), which provides that the

provisions in § 6.87(6d) are "mandatory."

¶79 Notwithstanding the plain, clear requirements of two

statutes, WEC's guidance explicitly directs municipal clerks that

they "must take corrective actions in an attempt to remedy a

witness address error." WEC guidance states, "municipal clerks

shall do all that they can reasonably do to obtain any missing

part of the witness address." Then in addition, the WEC instructs

clerks to add witness address information even though the guidance

acknowledges that "some clerks have expressed [concern] about

altering information on the certificate envelope, especially in

the case of a recount."

¶80 The WEC ignores that the legislature provided only one

act an election official may take in regard to a defective witness

address: mail the defective ballot back to the elector to correct

the error. Wis. Stat. § 6.87(9). That the legislature made one

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choice about correcting a defective witness address excludes other

methods of correction. "[T]he express mention of one matter

excludes other similar matters [that are] not mentioned." FAS,

LLC v. Town of Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733

N.W.2d 287 (quoting Perra v. Menomonee Mut. Ins. Co., 2000 WI App

215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (modifications in the

original). In addition, and similarly, § 6.87(2) states, "[t]he

witness shall execute the following . . . (Address)." It does not

state that clerks shall execute anything.

¶81 My conclusion that errors in the certification of

absentee ballots require discarding those ballots is consistent

with our precedent. In Kaufmann v. La Crosse City Bd. of

Canvassers, 8 Wis. 2d 182, 98 N.W.2d 422 (1959), absentee ballots

were returned to a municipal clerk without bearing a notary's

signature on the accompanying certificate envelope, as required by

statute at that time. The clerk added her signature to the

certificates. Id. at 183. We explained that the electors' failure

to ensure that the certificate complied with the statute

invalidated the ballots. Additionally, we stated, "[t]he fact

that the . . . clerk further complicated the matter by signing her

name to the . . . certificate cannot aid the voter. The two wrongs

cannot make a right." Id. at 186. The ballots were not counted.

Id. In the case at hand, a defective witness address cannot be

corrected by a clerk, just as the signature of the notary could

not be completed by the clerk in Kaufmann.

¶82 In Gradinjan v. Boho (In re Chairman in Town of

Worchester), 29 Wis. 2d 674, 139 N.W.2d 557 (1966), absentee

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ballots were issued without the municipal clerk's initials or

signature, as required by statute at that time. We concluded that

the ballots "should not have been counted." Id. at 683.

Furthermore, we said that the statute that obligated the

invalidation of these ballots survived constitutional attack. Id.

at 683–84. We emphasized that absentee voting is subject to

different statutory requirements than voting at a polling place,

i.e., while a ballot cast at a polling place without initials or

a signature may be countable, an absentee ballot subject to an

analogous defect is not. Id. at 684. As we stated, "[c]learly,

the legislature could determine that fraud and violation of the

sanctity of the ballot could much more readily be perpetrated by

use of an absentee ballot than under the safeguards provided at a

regular polling place." Id. In the case at hand, a witness

address is a statutory requirement, mandated by law, just as the

initials or signature of the municipal clerk was in Gradinjan.

¶83 The canvassing boards deferred to the WEC's guidance

about defective signatures and it appears that the circuit court

did so as well when interpreting Wis. Stat. § 6.87. The circuit

court stated:

Adding, the requisite information by the clerk has been

in effect since before the 2016 election. The election
which Trump prevailed in Wisconsin, I believe, after a
recount. It's longstanding, I believe it's not
prohibited by law, and it is therefore a reasonable
interpretation to make sure, as the as the Court
indicated earlier, that the will of the electors, the
voters, are brought to fruition.
It is unfortunate that WEC has such sway, especially when its
"guidance" is contrary to the plain meaning of two statutes.

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¶84 Furthermore, we do not defer to administrative agencies

when interpreting statutes. Wis. Stat. § 227.57(11); see also

Lamar Cent. Outdoor, LLC v. Div. of Hearings & Appeals, 2019 WI

109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (quoting Tetra Tech EC,

Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 N.W.2d 21).

Accordingly, the issue is not whether the WEC adopted "a reasonable

interpretation," as the circuit court seems to have suggested. We

follow the plain meaning rule when interpreting statutes, which we

do independently. State ex rel. Kalal v. Circuit Court for Dane

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "If the

meaning of the statute is plain, we ordinarily stop the inquiry."

Id., ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d

211, 612 N.W.2d 659).

¶85 And finally, guidance documents "are not law, they do

not have the force or effect of law, and they provide no authority

for implementing or enforcing standards or conditions." Service

Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d

38, 946 N.W.2d 35. Guidance documents "impose no obligations, set

no standards, and bind no one." Id. "Functionally, and as a

matter of law, they are entirely inert." Id.

¶86 Administrative agencies, including the WEC, often treat

their guidance as if it were law, but that does not make it so.

Id., ¶143 (Roggensack, C.J, concurring/dissenting). Such

treatment is inappropriate——it confuses people by making them

think that they have a legally cognizable reliance interest in

WEC's guidance when they do not.

D. Written Applications

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¶87 The Petitioners assert that during the two weeks that

permit early in-person absentee voting 170,151 electors who did

not submit a sufficient "written application" before receiving an

absentee ballot cast votes. The crux of the Petitioners' argument

is that the written application must be "separate" from the ballot

and the certification.

¶88 The statutes provide that in the two weeks leading up to

an election, electors may go to the municipal clerk's office and

apply for an absentee ballot. Upon proof of identification, the

elector receives a ballot, marks the ballot, the clerk witnesses

the certification and the elector casts a vote by returning the

absentee ballot to the municipal clerk. Wis. Stat. § 6.86(1)(b).

¶89 Pursuant to Wis. Stat. § 6.86(1)(ar), "the municipal

clerk shall not issue an absentee ballot unless the clerk receives

a written application therefor from a qualified elector." Other

statutes provide for similar requirements. See, e.g., Wis. Stat.

§ 6.86(1)(a)1.-6. (stating that "[a]ny elector of a municipality

who is registered to vote . . . and who qualifies . . . as an

absent elector may make written application to the municipal clerk

of that municipality for an official ballot by one of the following

methods," which are then listed); Wis. Stat. § 6.86(1)(ac)

(stating that electors "may make written application to the

municipal clerk for an official ballot by means of facsimile

transmission or electronic mail").

¶90 We begin statutory interpretation with the language of

the statute. Kalal, 271 Wis. 2d 633, ¶45. "Statutory language is

given its common, ordinary, and accepted meaning, except that

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technical or specially-defined words or phrases are given their

technical or special definitional meaning." Id.

¶91 None of the statutes in question contain the word

"separate." Rather, a "written application" is required before

the elector's identity is established with a photo identification

and the elector receives an absentee ballot. See Wis. Stat.

§§ 6.86(1)(a), (ac), (ar), (b), 6.86(2m). Furthermore, § 6.86(2m)

provides that "The application form and instructions shall be

prescribed by the commission . . . ." Here, the statutes do not

provide a form application; the statutes do not define what is

required on an application, but simply that it be written. Form

EL 122 was employed here to apply for a ballot in-person.

¶92 Form EL 122 requires the applicant for an absentee ballot

to provide the applicant's name, street address, city, and zip

code. It also asks for the date of the election for which the

application is being made and the county and municipality in which

the applicant votes. The substantive information that the

application requests is substantially similar to form EL 121, which

is titled "Wisconsin Application for Absentee Ballot." Each of

these application forms requires writing prior to being submitted

by electors in advance of an elector receiving an absentee ballot.8

E. Indefinitely Confined

8This order of operations was confirmed in several

affidavits. The affiants asserted that before they received their
ballots the clerk's office verified their photo identification and
voter registration. The electors were then given an EL-122
envelope and instructed to complete it. Once the application was
completed, the voters received their ballots.

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¶93 Wisconsin Stat. § 6.86(2)(a) provides a manner by which

some electors may obtain an absentee ballot outside of the mode

outlined above. Those who are "indefinitely confined because of

age, physical illness or infirmity or are disabled for an

indefinite period" may apply for an absentee ballot on that basis.

Id. Those electors are then excused from the absentee ballot photo

identification requirement. Wis. Stat. § 6.87(4)(b)1.

¶94 The Petitioners contend that all votes cast by electors

claiming indefinitely confined status after March 25, 2020 (the

date of McDonell's Facebook post)9 are invalid. However, we have

discussed the indefinitely confined status in Jefferson v. Dane

Cnty., 2020 WI 90, ___ Wis. 2d ___, ___ N.W.2d ____, which is

released today, December 14, 2020.

¶95 In the pending matter, we do not have sufficient

information about the 28,395 absentee voters who claimed this

status in Milwaukee and Dane counties to determine whether they

lawfully asserted that they were indefinitely confined prior to

receiving an absentee ballot. Therefore, I go no further in

addressing this contention.

F. Democracy in the Park

¶96 On September 26, 2020 and October 3, 2020, at more than

200 City of Madison parks,10 the City of Madison held events called,

"Democracy in the Park." During those events, poll workers, also

On March 25, 2020, Dane County Clerk, Scott McDonell, stated

9

on Facebook that community members are encouraged to claim

indefinitely confined status due to COVID-19 and Governor Evers'
then-active Emergency Order #12.
10 Affidavit of Maribeth Witzel-Behl, Madison City Clerk.

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referred to as "election inspectors," helped in the completion of

ballot envelopes, acted as witnesses for voters and collected

completed ballots.11 17,271 absentee ballots were voted and

delivered to these poll workers.12

¶97 The poll workers who staffed Democracy in the Park were

volunteers. They were not employees of the City of Madison Clerk's

office.

¶98 Wisconsin Stat. § 6.87(4)(b)1. requires that when voting

an absentee ballot "[t]he envelope [containing the ballot] shall

be mailed by the elector, or delivered in person, to the municipal

clerk issuing the ballot or ballots." In addition, the plain words

of Wis. Stat. § 6.84(2) specifically direct that the provisions of

§ 6.87(4)(b)1. "shall be construed as mandatory." Notwithstanding

the use of "shall" in § 6.87(4)(b)1. and the "mandatory"

requirement to comply with the terms of § 6.87(4)(b)1. in

§ 6.84(2), the 17,271 ballots that were collected in Madison parks

did not comply with the statutes. Stated otherwise, they were not

"delivered in person, to the municipal clerk."

¶99 It is conceivable that the 200 sites for Democracy in

the Park could have become alternate absentee ballot sites. If

the Madison Common Council had chosen to designate a site other

than the municipal clerk's office as the location from which voters

could request and to which they could return absentee ballots, an

alternate absentee ballot site could have been established. Wis.

Stat. § 6.855(1). The statute also provides that the governing

11 Id.
12 Id.

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body of a municipality may designate more than one alternate site.

§ 6.855(5).13

¶100 However, if Democracy in the Park were held to be 200

alternate absentee ballot sites, then "no function related to

voting and return of absentee ballots. . . . may be conducted in

the office of the municipal clerk." Wis. Stat. § 6.855(1). This

requirement does not fit the facts because the Madison clerk's

office continued to provide and accept return of absentee ballots.

Therefore, these 200 park events do not meet the statutory criteria

set out in § 6.855 for alternate absentee ballot sites.

¶101 One wonders, what were they? It is contended that they

were "human drop boxes." That gives little comfort because drop

boxes are not found anywhere in the absentee voting statutes. Drop

boxes are nothing more than another creation of WEC to get around

the requirements of Wis. Stat. § 6.87(4)(b)1. The plain,

unambiguous words of § 6.87(4)(b)1. require that voted ballots

"shall be mailed by the elector, or delivered in person, to the

municipal clerk issuing the ballot or ballots." Drop boxes do not

meet the legislature's mandatory directive.

¶102 However, because drop boxes are not separately

identified as a source of illegal voting in this lawsuit, I will

not dwell on the accountability problems they create, but I do not

doubt that challenges to drop boxes in general and in specific

instances will be seen as problems in future elections. Therefore,

13 However, 200 alternate sites does seem a bit much.

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we may have the opportunity to examine them in a case arising from

a subsequent election.14

¶103 It is also Respondent's contention that the poll workers

who staffed these events were agents15 of the city clerk; and

therefore, delivery of ballots to them was personal delivery to

the clerk within the meaning of Wis. Stat. § 6.87(4)(b)1. This is

an amazing contention. Without question, delivery to voluntary

poll workers is not "delivered in person to the municipal clerk,"

as § 6.87(4)(b)1. requires.

¶104 The legislature prescribed the absentee voting procedure

in Wis. Stat. § 6.87(4)(b)1. and commanded that those procedures

are "mandatory" in Wis. Stat. § 6.84(2). Gatherings in 200 city

parks did not meet the statutory requirements for lawful absentee

voting. They also lack the safety and solemnity that are attached

to personally delivering absentee ballots to the municipal clerk.

III. CONCLUSION

¶105 The Milwaukee County Board of Canvassers and the Dane

County Board of Canvassers based their decisions on erroneous

advice when they concluded that changes clerks made to defective

witness addresses were permissible. And, the Dane County Board of

14We had the opportunity to examine the use of drop boxes in

Mueller v. Jacobs, 2020AP1958-OA, but the court refused to grant
review, from which decision Annette Kingsland Ziegler, J., Rebecca
Grassl Bradley, J. and I dissented.
15I would be amazed if the City of Madison agreed that all
the volunteer poll workers who staffed Democracy in the Park were
legally agents of the city clerk given the exposure to liability
such a determination would bring. Lang v. Lions Club of Cudahy
Wis., Inc., 2020 WI 25, ¶25, 390 Wis. 2d 627, 939 N.W.2d 582 (lead
opinion).

18
 No. 2020AP2038.pdr

Canvassers erred again when it approved the 200 locations for

ballot collection that comprised Democracy in the Park. The

majority does not bother addressing what the boards of canvassers

did or should have done, and instead, four members of this court

throw the cloak of laches over numerous problems that will be

repeated again and again, until this court has the courage to

correct them. The electorate expects more of us, and we are

capable of providing it. Because we do not, I respectfully

dissent.

¶106 I am authorized to state that Justices ANNETTE KINGSLAND

ZIEGLER, and REBECCA GRASSL BRADLEY join this dissent.

19
 No. 2020AP2038.akz

¶107 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). We are

called upon to declare what the law is. See Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province

and duty of the judicial department to say what the law is.").

Once again, in an all too familiar pattern, four members of this

court abdicate their responsibility to do so. They refuse to even

consider the uniquely Wisconsin, serious legal issues presented.

The issues presented in this case, unlike those in other cases

around the United States, are based on Wisconsin statutory election

law. Make no mistake, the majority opinion fails to even mention,

let alone analyze, the pertinent Wisconsin statutes. Passing

reference to other states' decisionmaking is of little relevance

given the Wisconsin legal issues at stake. See Roggensack, C.J.,

dissent, supra; Rebecca Grassl Bradley, J., dissent, infra. The

people of Wisconsin deserve an answer——if not for this election,

then at least to protect the integrity of elections in the future.

Instead of providing clarity, the majority opinion is, once again,

dismissive of the pressing legal issues presented.

¶108 The majority author's concurrence is even more

dismissive of the need for clarity in Wisconsin election law

stating that he "understand[s] the desire for at least some clarity

regarding the underlying election administration

issues . . . [but] its just not possible." Hagedorn, J.,

concurrence, ¶36. Indeed, we are presented with a rare opportunity

to meaningfully engage in, among other things, a known conflict

between guidance, given by an unelected committee, and what the

law requires. These are more than mere "election administration

1
 No. 2020AP2038.akz

issues." See Rebecca Grassl Bradley, J., dissent, infra. This

case presents not just a "desire" for clarity in the law, our

constitutional duty requires us to declare what the law is. Quite

obviously, defaulting to laches and claiming that it is "just not

possible," is directly contradicted by the majority author's own

undertaking. If it is important enough to address in his

concurrence, then it should also satisfy the discretionary

standard which overcomes the application of laches. Instead of

undertaking the duty to decide novel legal issues presented, this

court shirks its institutional responsibility to the public and

instead falls back on a self-prescribed, previously unknown

standard it calls laches.

¶109 Stated differently, the majority claims the petitioners

were too late, should have acted earlier and therefore, the court

is neutered from being able to declare what the law is. The

majority basically reiterates respondents' soundbites. In so

doing, the majority seems to create a new bright-line rule that

the candidates and voters are without recourse and without any
notice should the court decide to later conjure up an artificial

deadline concluding that it prefers that something would have been

done earlier. That has never been the law, and it should not be

today. It is a game of "gotcha." I respectfully dissent, because

I would decide the issues presented and declare what the law is.

I. ABDICATION OF CONSTITUTIONAL DUTY

¶110 Unfortunately, our court's adoption of laches as a means

to avoid judicial decisionmaking has become a pattern of conduct.

A majority of this court decided not to address the issues in this

2
 No. 2020AP2038.akz

case, when originally presented to us by way of an original action.

Trump v. Evers, No. 2020AP1971-OA, unpublished order (Wis. Dec. 3.

2020). In concluding that it is again paralyzed from engaging in

pertinent legal analysis, our court unfortunately provides no

answer or even any analysis of the relevant statutes, in the most

important election issues of our time. See Hawkins v. Wisconsin

Elections Comm'n, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877;

Trump v. Evers, No. 2020AP1971-OA (Rebecca Grassl Bradley, J.,

dissenting); Mueller v. Jacobs, No. 2020AP1958-OA, unpublished

order (Wis. Dec. 3, 2020) (Roggensack, C.J., Ziegler, and Rebecca

Grassl Bradley, JJ. dissenting); Wis. Voters Alliance v. Wisconsin

Elections Comm'n, No. 2020AP1930-OA, unpublished order (Wis. Dec.

4, 2020) (Roggensack, C.J., dissenting).

¶111 Instead, the majority relies on what only can be viewed

as a result-oriented application of the equitable doctrine of

laches to avoid declaring what the law is. To be clear, I am not

interested in a particular outcome. I am interested in the court

fulfilling its constitutional responsibility. While sometimes it

may be difficult to undertake analysis of hot-button legal

issues——as a good number of people will be upset no matter what

this court does——it is our constitutional duty. We cannot hide

from our obligation under the guise of laches. I conclude that

the rule of law and the equities demand that we answer these

questions for not only this election, but for elections to come.

I have concern over this court's pattern of indecision because

that leaves no court declaring what Wisconsin election law is.

See Roggensack, C.J., dissent, supra; Rebecca Grassl Bradley, J.,

3
 No. 2020AP2038.akz

dissent, infra. We can and should do better for the people of

Wisconsin and for the nation, which depends on Wisconsin following

its election laws.

¶112 Regarding this court's continued pattern of abdicating

its responsibility concerning election issues, earlier this term

in Hawkins, the same members of the court relied on laches, without

any analysis whatsoever of that doctrine, and denied a rightful

candidate the opportunity to be placed on the ballot as a

presidential candidate. Thus, the court likewise denied the voters

the opportunity to choose that candidate's name amongst the others

on the ballot. See Hawkins, 393 Wis. 2d 629 (Ziegler, J.,

dissenting).1 The court in Hawkins, about two months before the

November election, declared that it was unable to act, citing the

doctrine of laches, and applied a newly invented and previously

unknown, self-imposed, result-oriented, laches-based deadline as

an excuse for inaction. Id.

II. LACHES DOES NOT AND SHOULD NOT BAR THIS CASE

¶113 Once again, the majority imposes its definition of

laches, which is tailored to its judicial preference rather than

based on well-established legal principles. The majority must

know that under this court's previous laches jurisprudence, it

1In 2016, the Green Party candidates received 31,072 votes.

See Certificate of Ascertainment for President, Vice President and
Presidential Electors General Election – November 8, 2016,
available at https://www.archives.gov/files/electoral-
college/2016/ascertainment-wisconsin.pdf. In 2020, the Green
Party candidates received only 1,089 votes. See WEC Canvass
Results for 2020 General Election, available at
https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%
20Results%20All%20Offices%20%28pre-Presidential%20recount
%29.pdf.

4
 No. 2020AP2038.akz

should nonetheless address the merits of the issues. As this court

has consistently held, "[l]aches is an affirmative, equitable

defense designed to bar relief when a claimant's failure to

promptly bring a claim causes prejudice to the party having to

defend against that claim." Wisconsin Small Bus. United, Inc. v.

Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. In

Wisconsin, a defendant must prove three elements for laches to bar

a claim: "(1) a party unreasonably delays in bringing a claim;

(2) a second party lacks knowledge that the first party would raise

that claim; and (3) the second party is prejudiced by the delay."

Id., ¶12. Even if respondents carry their burden of proving all

three elements of laches, "application of laches is left to the

sound discretion of the court asked to apply this equitable bar."

Id.

¶114 The petitioners raised four allegations regarding

election administration: Absentee ballots lacking a separate

application; absentee envelopes that are missing or have a

defective witness address; indefinitely confined voters/faulty

advice from election officials; and ballots cast at Madison's

Democracy in the Park/ballot drop boxes. The respondents cannot

demonstrate that laches bars a single one of these claims, and,

even if they could, the court could still and should exercise its

discretion to hear these issues.

A. No Unreasonable Delay

¶115 The first element of a laches defense requires the

respondents to prove the petitioners unreasonably delayed in

making their allegations. "What constitutes a reasonable time

5
 No. 2020AP2038.akz

will vary and depends on the facts of a particular case."

Wisconsin Small Bus. United, 393 Wis. 2d 308, ¶14.

¶116 Convenient to its purpose, the majority frames this case

to meet its preferred outcome. The majority characterizes this

suit as a challenge to general election policies rather than what

it is: this lawsuit is a challenge to specific ballots that were

cast in this election, contrary to the law. The majority states,

"[t]he time to challenge election policies such as these is not

after all ballots in the election have been cast and the votes

tallied." Majority op., ¶22. According to the majority, "[s]uch

delay in light of these specific challenges is unreasonable." Id.

The majority misses the mark.

¶117 In other words, contrary to the majority's

characterizations, this case is not about general election

procedure: it is about challenging specific ballots. In

Wisconsin, while voting is a right, absentee voting is a privilege,

not a right. Wis. Stat. § 6.84(1). The Wisconsin Legislature has

created a set of mandatory rules to which the voters must adhere

for their absentee ballots to count.2 Consistent with express

mandatory rules, the petitioners allege that certain ballots were

cast that did not adhere to the law and, therefore, should not be

counted. It is a specific question: Were the ballots cast

See Wis. Stat. § 6.84(2) ("Notwithstanding s. 5.01(1), with

2

respect to matters relating to the absentee ballot process, ss.

6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed as
mandatory. Ballots cast in contravention of the procedures
specified in those provisions may not be counted. Ballots counted
in contravention of the procedures specified in those provisions
may not be included in the certified result of any election.").

6
 No. 2020AP2038.akz

according to the law as stated in the statutes and if not, what,

if any, remedy, exists?

¶118 With this proper framing of the issue, it is clear that

the petitioners did not unreasonably delay in challenging the

ballots. To somehow require that challenges must be made and legal

relief given before an election, before the ballots are cast and

before a recount is absurd. No recount would ever amount to relief

if that is the lodestar.

¶119 Thus, the petitioners did not unreasonably delay in

filing this suit, and this element of laches has not been

demonstrated as to any of the four allegations of election

irregularity.

B. Respondents Knew Ballots Would Be Challenged.

¶120 The second element of laches addresses the knowledge of

the party asserting laches. See Wis. Small Bus. United, 393

Wis. 2d 308, ¶18. If the party lacks knowledge of claim, the

respondents have satisfied this element. Id. The majority

summarily accepts, without any analysis, that "[t]he respondents

all . . . were unaware that the Campaign would challenge various

election procedures after the election . . . ." Majority op.,

¶23. Virtually nothing is in the record to support this assertion

other than the parties' statements. In other words, the majority

accepts one side's statements as fact in order to disallow the

other side its day in court.

¶121 As explained above, this is a challenge to the ballots

cast in this election. The President tweeted numerous times

shortly after Wisconsin announced the election results that he

7
 No. 2020AP2038.akz

would challenge the results and prove certain ballots were

impermissibly cast.3 The majority chose to accept the respondents'

assertion that they did not see this lawsuit coming despite the

record to the contrary.

¶122 Moreover, the majority is incorrect that "nothing in the

record suggests" that the respondents knew what the petitioners

would be challenging. Majority op., ¶23. In fact, Wisconsin law

mandates that the petitioners expressly declare on what grounds

they plan to challenge the ballots in a recount. Wis. Stat.

§ 9.01(1). In the petitioners' recount petition, the petitioners

specifically laid out these claims.

¶123 Thus, the majority's conclusion with respect to this

element is particularly lean given the record. It is at least

more than plausible that respondents had knowledge that the

petitioners would challenge the ballots in a lawsuit.

C. Respondents Lack Prejudice.

¶124 Even if the respondents could prove the first two

elements, the respondents themselves are not prejudiced by this

delay. "What amounts to prejudice . . . depends upon the facts

and circumstances of each case, but it is generally held to be

anything that places the party in a less favorable position." Wis.

Small Bus. United, 393 Wis. 2d 308, ¶19. The party seeking to

apply laches must "prove that the unreasonable delay" prejudiced

the party, not a third party. State ex rel. Wren v. Richardson,

2019 WI 110, ¶32, 389 Wis. 2d 516, 936 N.W.2d 587. This court

See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov.

3

28, 2020, 2:00 p.m.),

https://twitter.com/realDonaldTrump/status/1332776310196883461

8
 No. 2020AP2038.akz

recognizes two different types of prejudice: evidentiary and

economic. Id., ¶33. Evidentiary prejudice is where "the defendant

is impaired from successfully defending itself from suit given the

passage of time." Id., ¶33 n.26. Economic prejudice occurs when

"the costs to the defendant have significantly increased due to

the delay." Id.

¶125 The majority abandons these principles of laches and

instead focuses on the prejudice to third parties. The majority

states that "[t]o strike ballots cast in reliance on the guidance

now, and to do so in only in two counties, would violate every

notion of equity that undergirds our electoral system." Majority

op., ¶25. This is a new manner in which to approach the legal

analysis of prejudice. The majority does not explain how this

potential remedy prevents us from hearing the merits of this case.

The majority does not explain how these notions are either

evidentiary or economic prejudice, nor does it consider how it

prejudices the actual parties in this case. It is unusual to

conclude that overwhelming prejudice exists such that the court is

paralyzed from considering whether the law was followed. In other

words, the majority seems to be saying that they do not wish to

grant relief and therefore they will not analyze the law. This

remedy-focused analysis is not typical to laches.

¶126 Neither type of prejudice applies to the respondents in

this case. None of the respondents claimed that they were unable

to successfully defend themselves. All respondents filed briefs

in this court addressing the merits. The circuit court's opinion

addresses the merits. Accordingly, evidentiary prejudice does not

9
 No. 2020AP2038.akz

apply. Furthermore, no respondents have claimed that the costs of

defending this claim have "significantly increased due to the

delay." Accordingly, economic prejudice does not apply.

¶127 At a more fundamental level, the respondents must prove

each of the elements. The court cannot presume that the elements

are met. Similarly, the court cannot assume that a party cannot

successfully defend itself nor that a party faces "significantly

increased" costs. To do so forces this court to step out of our

role as a neutral arbiter. See Service Emp. Int'l Union, Loc. 1

v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d.

¶128 Therefore, the respondents cannot prove and did not even

allege that they are prejudiced. Accordingly, the majority

determination in this regard is flawed.

D. Equitable Discretion

¶129 Even if the majority was correct that the elements of

laches are met here, it still has the discretion to reach the

merits. See Wis. Small Bus. United, 393 Wis. 2d 308, ¶12. The

majority claims that the "only just resolution of these claims" is

to use laches to not address the merits of this case. Majority

op., ¶29. Not so. Our constitutional responsibility is to analyze

the law and determine if it was followed regardless of whether any

remedy might be available. In this way future elections benefit

from our analysis. Curiously, it is unclear whether there is an

actual majority given the fact that the writer does exercise his

discretion to address the issues——again, a lack of clarity.

¶130 This court should address the merits because we should

declare what the law is. The public has serious concerns about

10
 No. 2020AP2038.akz

the election and about our election laws. Recent polls suggest

that the American public, regardless of party affiliation, has

serious questions about the integrity of the November 2020

election.4 Our court has an opportunity to analyze the law and

answer the public's concerns, but it unfortunately declines this

opportunity for clarification.

¶131 The majority should declare what the law is. Every

single voter in this state is harmed when a vote is cast in

4 See Rasmussen Reports, 61% Think Trump Should Concede to

Biden (Nov. 19, 2020) https://www.rasmussenreports.com/
public_content/politics/elections/election_2020/61_think_trump_s
hould_concede_to_biden (finding 47% of those who polled believe
that Democrats stole votes or destroy pro-Trump ballots in several
states to ensure that Biden would win); Politico, National Tracking
Poll, Project 201133 (Nov. 6-9, 2020),
https://www.politico.com/f/?id=00000175-b306-d1da-a775-
bb6691050000 (finding 34% of those polled believed the election
was not free and fair); Jill Darling et al., USC Dornsife Daybreak
Poll Topline at 14 (Nov. 19, 2020), Post-Election Poll UAS318,
https://dornsife-center-for-political-future.usc.edu/past-polls-
collection/2020-polling/ (finding that those polled are only 58%
confident that all votes in the election were accurately counted);
R. Michael Alvarez, et al., Voter Confidence in the 2020
Presidential Election: Nationwide Survey Results (Nov. 19, 2020),
The Caltech/MIT Voting Technology Project Monitoring the Election,
2020 Presidential Election Survey Reports & Briefs,
https://monitoringtheelection.us/2020-survey (finding 39% of
those polled are not confident that votes nationally were counted
as the voter intended); Yimeng Li, Perceptions of Election or Voter
Fraud in the 2020 Presidential Election: Nationwide Survey Results
(Nov. 23, 2020), The Caltech/MIT Voting Technology Project
Monitoring the Election, 2020 Presidential Election Survey Reports
& Briefs, https://monitoringtheelection.us/2020-survey (finding
between 29% and 34% of those polled believe voter fraud occurs);
Sharp Divisions on Vote Counts, as Biden Gets High Marks for His
Post-Election Conduct, Pew Research Center, U.S. Politics & Policy
(Nov. 20, 2020), https://www.pewresearch.org/politics/
2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-
marks-for-his-post-election-conduct/ (finding that 41% of hose
polled believe the elections were run and administered not well).

11
 No. 2020AP2038.akz

contravention of the statutes. See Wis. Stat. § 6.84(1). This

court should conduct a rigorous analysis, and determine whether

the law was followed.

¶132 To counter these clear equities counseling us to reach

the merits, the majority nonetheless seemingly declines the

opportunity in favor of a self-divined rule which would make it

nearly impossible to know when and how such a claim could be made.

The majority asserts that "[f]ailure to [raise these claims

earlier] affects everyone, causing needless litigation and

undermining confidence in the election results. It also puts

courts in a difficult spot. Interpreting complicated election

statutes in days is not consistent with best judicial practices."

Majority op., ¶30. A claim post-recount is always going to be

tight on timing.

¶133 Under the majority's new rule, a candidate will have to

monitor all election-related guidance, actions, and decisions of

not only the Wisconsin Elections Commission, but of the 1,850

municipal clerks who administer the election at the local level.

And that is just in one state! Instead of persuading the people

of Wisconsin through campaigning, the candidate must expend

precious resources monitoring, challenging, and litigating any

potential election-related issue hoping that a court might act on

an issue that may very well not be ripe. Moreover, it would be

nonsensical for a candidate, or worse, a disenfranchised voter, to

challenge an election law. Thus, the majority's new rule does not

prevent "needless litigation"; it spawns it in the form of

preventative lawsuits to address any possible infraction of our

12
 No. 2020AP2038.akz

election laws. We have the opportunity to answer important legal

questions now and should do so.

¶134 Similarly, the majority claims by not analyzing the law

it is bolstering public confidence. I disagree. As explained,

the American public has serious questions about the previous

election. See supra, ¶23 n.4. Instead of addressing these serious

questions, the majority balks and says some other party can bring

a suit at a later date. See majority op., ¶31 n.11. Lawsuits are

expensive and time-consuming and require that the person bringing

one has a claim. These issues are presented here before us today.

If they are important enough to answer at a later date, they are

important to answer in this pending lawsuit today. Addressing the

merits of this case would bolster confidence in this election and

future elections. Even if the court does not conclude that relief

should be granted, this lawsuit is the opportunity to declare what

the law is——which is our constitutional duty——and will help the

public have confidence in the election that just occurred and

confidence in future elections. An opinion of this court on the

merits would prevent any illegal or impermissible actions of

election officials going forward. See Roggensack, C.J., dissent,

supra; Rebecca Grassl Bradley, J., dissent, infra. Accordingly,

I fail to see how addressing the merits in this case would

undermine confidence in the election results. If anything,

addressing the merits will reassure the people of Wisconsin and

our nation that our elections comport with the law and to the

extent that the legislature might need to act, it is clear where

13
 No. 2020AP2038.akz

the law might be that needs correction. The court's indecision

creates less, not more clarity.

¶135 The majority's decision not to address the merits

suffers from an even more insidious flaw——it places the will of

this court and the will of the Wisconsin Elections Commission above

the express intent of the legislature. The majority uses the

potential remedy, striking votes, as an equitable reason to deny

this case. Majority op., ¶31. But the majority ignores that the

legislature specifically set forth a remedy that absentee ballots

cast in contravention of the statute not be counted. See Wis.

Stat. § 6.84(2). When the law is not followed, the counting of

illegal ballots effectively disenfranchises voters. This past

election, absentee voting was at an extraordinarily high level.5

Perhaps this is why it mattered more now than ever that the law be

followed. Also this might explain why the process has not been

objected to before in the form of a lawsuit like this one. The

majority gives virtually no consideration to this fact.

¶136 Despite the fact that the majority relies on laches to

not declare the law in nearly all respects of the challenges

raised, it nonetheless segregates out the indefinitely confined

voter claim to analyze. Notably absent is any explanation why

this claim is not treated like the other challenges.

¶137 Therefore, the majority's application of laches here is

unfortunate and doomed to create chaos, uncertainty, undermine

confidence and spawn needless litigation. Instead of declaring

5 In 2016, 830,763 electors voted using absentee ballots. In

2020, 1,957,514 electors voted using absentee ballots.

14
 No. 2020AP2038.akz

what the law is, the majority is legislating its preferred policy.

It disenfranchises those that followed the law in favor of those

who acted in contravention to it. This is not the rule of law; it

is the rule of judicial activism through inaction.

III. CONCLUSION

¶138 As I would not apply laches in the case at issue and

instead would analyze the statutes and available remedies as well

as the actions of the Wisconsin Elections Commission, I

respectfully dissent.

¶139 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice REBECCA GRASSL BRADLEY join this

dissent.

15
 No. 2020AP2038.rgb

¶140 REBECCA GRASSL BRADLEY, J. (dissenting). Once again,

the majority of the Wisconsin Supreme Court wields the

discretionary doctrine of laches as a mechanism to avoid answering

questions of law the people of Wisconsin elected us to decide.

Although nothing in the law compels its application, this majority

routinely hides behind laches in election law cases no matter when

a party asserts its claims. Whether election officials complied

with Wisconsin law in administering the November 3, 2020 election

is of fundamental importance to the voters, who should be able to

rely on the advice they are given when casting their ballots.

Rather than fulfilling its duty to say what the law is, a majority

of this court unconstitutionally converts the Wisconsin Elections

Commission's mere advice into governing "law," thereby supplanting

the actual election laws enacted by the people's elected

representatives in the legislature and defying the will of

Wisconsin's citizens. When the state's highest court refuses to

uphold the law, and stands by while an unelected body of six

commissioners rewrites it, our system of representative government

is subverted.
I

¶141 In Wisconsin, we have a constitution, and it reigns

supreme in this state. "By section 1 of article 4 the power of

the state to deal with elections except as limited by the

Constitution is vested in the senate and assembly to be exercised

under the provisions of the Constitution; therefore the power to

prescribe the manner of conducting elections is clearly within the

province of the Legislature." State v. Kohler, 200 Wis. 518, 228

N.W. 895, 906 (1930) (emphasis added). The Wisconsin Elections

1
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Commission (WEC) possesses no authority to prescribe the manner of

conducting elections; rather, this legislatively-created body is

supposed to administer and enforce Wisconsin's election laws. Wis.

Stat. §§ 5.05(1) and (2m). While WEC may not create any law, it

may "[p]romulgate rules under ch. 227 . . . for the purpose of

interpreting or implementing the laws regulating the conduct of

elections . . . ." Wis. Stat. § 5.05(1)(f) (emphasis added). It

is undisputed that the advice rendered by WEC was not promulgated

by rule but took the form of guidance. "A guidance document does

not have the force of law." Wis. Stat. § 227.112(3). WEC's

guidance documents are merely "communications about the law——they

are not the law itself." Serv. Employees Int'l Union, Local 1 v.

Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38, 946 N.W.2d 35. The majority

casts aside this black letter law, choosing to apply the majority's

subjective concept of "equity" in order to reach the outcome it

desires.1 In doing so, the majority commits grave error by

according WEC guidance the force of law.

¶142 Chapters 5 through 12 of the Wisconsin Statutes contain

the state's enacted election laws. Section 5.01(1) states that

"[e]xcept as otherwise provided, chs. 5 to 12 shall be construed

to give effect to the will of the electors, if that can be

ascertained from the proceedings, notwithstanding informality or

failure to fully comply with some of their provisions." This

1 During oral arguments in this case, Justice Jill J. Karofsky

made the following statement (among others) to the President's
attorney: "You want us to overturn this election so that your
king can stay in power, and that is so un-American." When a
justice displays such overt political bias, the public's
confidence in the integrity and impartiality of the judiciary is
destroyed.

2
 No. 2020AP2038.rgb

substantial compliance provision does not apply to absentee

balloting procedures, however: "Notwithstanding s. 5.01(1), with

respect to matters relating to the absentee ballot process,

ss. 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed

as mandatory. Ballots cast in contravention of the procedures

specified in those provisions may not be counted. Ballots counted

in contravention of the procedures specified in those provisions

may not be included in the certified result of any election." Wis.

Stat. § 6.84(2) (emphasis added).

¶143 "Section 6.84(2)'s strict construction requirement,

applicable to statutes relating to the absentee ballot process, is

consistent with the guarded attitude with which the legislature

views that process." Lee v. Paulson, 2001 WI App 19, ¶¶7-8, 241

Wis. 2d 38, 623 N.W.2d 577. The legislature expressed its "guarded

attitude" toward absentee balloting in no uncertain terms, drawing

a sharp distinction between ballots cast in person versus those

cast absentee: "The legislature finds that voting is a

constitutional right, the vigorous exercise of which should be

strongly encouraged. In contrast, voting by absentee ballot is a

privilege exercised wholly outside the traditional safeguards of

the polling place. The legislature finds that the privilege of

voting by absentee ballot must be carefully regulated to prevent

the potential for fraud or abuse; to prevent overzealous

solicitation of absent electors who may prefer not to participate

in an election; to prevent undue influence on an absent elector to

vote for or against a candidate or to cast a particular vote in a

referendum; or other similar abuses." Wis. Stat. § 6.84(1)

(emphasis added). While the ascertainable will of the election-

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day voter may prevail over a "failure to fully comply" with "some

of" the provisions governing conventional voting (§ 5.01), any

"[b]allots cast in contravention of" the law's absentee balloting

procedures "may not be counted." Wis. Stat. § 6.84(2). This court

has long recognized that in applying Wisconsin's election laws,

"an act done in violation of a mandatory provision is void."

Sommerfeld v. Bd. of Canvassers of City of St. Francis, 269 Wis.

299, 303, 69 N.W.2d 235 (1955) (emphasis added) (citation omitted).

¶144 In order "to prevent the potential for fraud or abuse"

associated with absentee voting, the legislature requires the laws

governing the absentee balloting process to be followed. Wis.

Stat. § 6.84(1). If an absentee ballot is cast "in contravention"

of the absentee balloting procedures, it "may not be counted."

Wis. Stat. § 6.84(2). If an absentee ballot is counted "in

contravention" of the absentee balloting procedures, it "may not

be included in the certified result of any election." Id. Long

ago, this court understood that "we are obliged to conclude that

if absentee ballots are improperly delivered in contravention of

[Wisconsin's statutes], the Board of Canvassers is under duty to

invalidate and not include such ballots in the total count, whether

they are challenged at the election, or not." Olson v. Lindberg,

2 Wis. 2d 229, 238, 85 N.W.2d 775 (1957) (emphasis added).

Accordingly, if absentee ballots were counted in contravention of

the law, the people of Wisconsin, through their elected

representatives, have commanded the board(s) of canvassers to

exclude those absentee ballots from the total count, independent

of any legal challenge an aggrieved candidate may (or may not)

bring.

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¶145 The majority carelessly accuses the President of asking

this court to "disenfranchise" voters. Majority op., ¶27; Justices

Rebecca Frank Dallet's and Jill J. Karofsky's concurrence, ¶33.

In the election context, "disenfranchise" means to deny a voter

the right to vote.2 Under Article III, Section 1 of the Wisconsin

Constitution, "[e]very United States citizen age 18 or older who

is a resident of an election district in this state is a qualified

elector of that district." This court possesses no authority to

remove any qualified elector's constitutionally-protected right to

vote. But it is not "disenfranchisement" to uphold the law. "It

is true that the right of a qualified elector to cast his ballot

for the person of his choice cannot be destroyed or substantially

impaired. However, the legislature has the constitutional power

to say how, when and where his ballot shall be cast . . . ." State

ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 472,

37 N.W.2d 473, 480 (1949). And the judiciary has the

constitutional responsibility to say whether a ballot was cast in

accordance with the law prescribed by the people's

representatives.
¶146 Each of the President's legal claims challenge the

counting of certain absentee ballots, which the President argues

were cast in contravention of the Wisconsin Statutes. The majority

misconstrues Wisconsin law in asserting that "[t]hese issues could

have been brought weeks, months, or even years earlier." Majority

op., ¶30. Section 9.01(11) of the Wisconsin Statutes provides

2 Disenfranchise: "To deprive (someone) of a right, esp. the

right to vote; to prevent (a person or group of people) from having
the right to vote. — Also termed disfranchise." Disenfranchise,
Black's Law Dictionary (11th ed. 2019).

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that "[t]his section constitutes the exclusive judicial remedy for

testing the right to hold an elective office as the result of an

alleged irregularity, defect or mistake committed during the

voting or canvassing process." Only a "candidate voted for at any

election who is an aggrieved party" may bring an action under

Chapter 9. Wis. Stat. § 9.01(1)(a). Surely the majority

understands the absurdity of suggesting that the President should

have filed a lawsuit in 2016 or anytime thereafter. Why would he?

He was not "an aggrieved party"——he won. Obviously, the President

could not have challenged any "irregularity, defect or mistake

committed during the voting or canvassing process" related to the

November 3, 2020 election until that election occurred.

¶147 The respondents recognize that under Chapter 9, the

"purpose of a recount . . . is to ensure that the voters, clerks

and boards of canvassers followed the rules in place at the time

of the election." Misunderstanding what the governing rules

actually are, the respondents argue that having this court declare

the law at this point would "retroactively change the rules" after

the election. Justice Brian Hagedorn embraces this argument, using

a misapplied football metaphor that betrays the majority's

contempt for the law: "the [President's] campaign is challenging

the rulebook adopted before the season began." Majority op., ¶32.

Justices Rebecca Frank Dallet and Jill J. Karofsky endorse the

idea that this court should genuflect before "the rules that were

in place at the time." Justices Dallet's and Karofsky's

concurrence, ¶34. 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——

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and election officials are bound to follow the law, if we are to

be governed by the rule of law, and not of men.

¶148 As the foundation for one of the President's claims,

Wis. Stat. § 6.87(6d) provides that "[i]f a certificate is missing

the address of a witness, the ballot may not be counted." The

only statutorily-prescribed means to correct that error is for the

clerk to "return the ballot to the elector, inside the sealed

envelope when an envelope is received, together with a new envelope

if necessary, whenever time permits the elector to correct the

defect and return the ballot within the period authorized." Wis.

Stat. § 6.87(9). Contrary to Wisconsin law, WEC guidance says

"the clerk should attempt to resolve any missing witness address

information prior to Election Day if possible, and this can be

done through reliable information (personal knowledge, voter

registration information, through a phone call with the voter or

witness)."3 WEC's "Election Administration Manual for Wisconsin

Municipal Clerks" erroneously provides that "[c]lerks may add a

missing witness address using whatever means are available. Clerks

should initial next to the added witness address."4 Nothing in

the election law statutes permits a clerk to alter witness address

information. WEC's guidance in this regard does not administer or

enforce the law; it flouts it.

Memorandum from Meagan Wolfe to Wisconsin County

3 and
Municipal Clerks (Oct. 19, 2020), at
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
10/Spoiling%20Ballot%20Memo%2010.2020.pdf.

Wisconsin Elections Commission, Election Administration

4

Manual for Wisconsin Municipal Clerks (Sept. 2020), at

https://elections.wi.gov/sites/elections.wi.gov/files/2020-
10/Election%20Administration%20Manual%20%282020-09%29.pdf.

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II

¶149 Under the Wisconsin Constitution, "all governmental

power derives 'from the consent of the governed' and government

officials may act only within the confines of the authority the

people give them. Wis. Const. art. I, § 1." Wis. Legislature v.

Palm, 2020 WI 42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca

Grassl Bradley, J., concurring). The confines of the authority

statutorily conferred on the WEC limit its function to

administering and enforcing the law, not making it. The Founders

designed our "republic to be a government of laws, and not of

men . . . bound by fixed laws, which the people have a voice in

making, and a right to defend." John Adams, Novanglus: A History

of the Dispute with America, from Its Origin, in 1754, to the

Present Time, in Revolutionary Writings of John Adams (C. Bradley

Thompson ed. 2000) (emphasis in original). Allowing any person,

or unelected commission of six, to be "bound by no law or

limitation but his own will" defies the will of the people. Id.

¶150 The judiciary is constitutionally compelled to safeguard

the will of the people by interpreting and applying the laws duly
enacted by the people's representatives in the legislature. "A

democratic state must therefore have the power to . . . prevent

all those practices which tend to subvert the electorate and

substitute for a government of the people, by the people and for

the people, a government guided in the interest of those who seek

to pervert it." State v. Kohler, 200 Wis. 518, 228 N.W. 895, 905

(1930). The majority's abdication of its judicial duty to apply

the election laws of this state rather than the WEC's "rulebook"

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precludes any legislative recourse short of abolishing the WEC

altogether.

¶151 While some will either commend or condemn the court's

decision in this case based upon its impact on their preferred

candidate, the importance of this case transcends the results of

this particular election. "A correct solution of the questions

presented is of far greater importance than the personal or

political fortunes of any candidate, incumbent, group, faction or

party. We are dealing here with laws which operate in the

political field——a field from which courts are inclined to hold

aloof——a field with respect to which the power of the Legislature

is primary and is limited only by the Constitution itself." Id.

The majority's decision fails to recognize the primacy of the

legislative power to prescribe the rules governing the privilege

of absentee voting. Instead, the majority empowers the WEC to

continue creating "the rulebook" for elections, in derogation of

enacted law.

¶152 "The purity and integrity of elections is a matter of

such prime importance, and affects so many important interests,

that the courts ought never to hesitate, when the opportunity is

offered, to test them by the strictest legal standards." State v.

Conness, 106 Wis. 425, 82 N.W. 288, 289 (1900). Instead of

determining whether the November 3, 2020 election was conducted in

accordance with the legal standards governing it, the majority

denies the citizens of Wisconsin any judicial scrutiny of the

election whatsoever. "Elections are the foundation of American

government and their integrity is of such monumental importance

that any threat to their validity should trigger not only our

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concern but our prompt action." State ex rel. Zignego v. Wis.

Elec. Comm'n, 2020AP123-W (S. Ct. Order issued June 1, 2020

(Rebecca Grassl Bradley, J., dissenting)). The majority instead

belittles the President's claims of law violations as merely

"technical issues that arise in the administration of every

election." Majority op., ¶31. The people of Wisconsin deserve a

court that respects the laws that govern us, rather than treating

them with such indifference.

¶153 "Confidence in the integrity of our electoral processes

is essential to the functioning of our participatory democracy."

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). The majority takes a

pass on resolving the important questions presented by the

petitioners in this case, thereby undermining the public's

confidence in the integrity of Wisconsin's electoral processes not

only during this election, but in every future election.

Alarmingly, the court's inaction also signals to the WEC that it

may continue to administer elections in whatever manner it chooses,

knowing that the court has repeatedly declined to scrutinize its

conduct. Regardless of whether WEC's actions affect election

outcomes, the integrity of every election will be tarnished by the

public's mistrust until the Wisconsin Supreme Court accepts its

responsibility to declare what the election laws say.

"Only . . . the supreme court can provide the necessary clarity to

guide all election officials in this state on how to conform their

procedures to the law" going forward. State ex rel. Zignego v.

Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13,

2020 (Rebecca Grassl Bradley, J., dissenting)).

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¶154 This case represents only the majority's latest evasion

of a substantive decision on an election law controversy.5 While

the United States Supreme Court has recognized that "a state

indisputably has a compelling interest in preserving the integrity

of its election process[,]" Burson v. Freeman, 504 U.S. 191, 199

(1992), the majority of this court repeatedly demonstrates a lack

of any interest in doing so, offering purely discretionary excuses

like laches, or no reasoning at all. This year, the majority in

Hawkins v. WEC declined to hear a claim that the WEC unlawfully

kept the Green Party's candidates for President and Vice President

off of the ballot, ostensibly because the majority felt the

candidates' claims were brought "too late."6 But when litigants

have filed cases involving voting rights well in advance of

Wisconsin elections, the court has "take[n] a pass" on those as

well, thereby unfailingly and "irreparably den[ying] the citizens

of Wisconsin a timely resolution of issues that impact voter rights

and the integrity of our elections." State ex rel. Zignego v.

Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13,

5 Hawkins v. WEC, 2020 WI 75, ¶¶84, 86, 393 Wis. 2d 629, 948
N.W.2d 877 (Rebecca Grassl Bradley, J., dissenting) ("The majority
upholds the Wisconsin Elections Commission's violation of
Wisconsin law, which irrefutably entitles Howie Hawkins and Angela
Walker to appear on Wisconsin's November 2020 general election
ballot as candidates for President and Vice President of the United
States . . . . In dodging its responsibility to uphold the rule
of law, the majority ratifies a grave threat to our republic,
suppresses the votes of Wisconsin citizens, irreparably impairs
the integrity of Wisconsin's elections, and undermines the
confidence of American citizens in the outcome of a presidential
election.").
6 Hawkins v. Wis. Elec. Comm'n, 2020 WI 75, ¶5, 393
Wis. 2d 629, 948 N.W.2d 877 (denying the petition for leave to
commence an original action).

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2020 (Rebecca Grassl Bradley, J., dissenting)). Having neglected

to identify any principles guiding its decisions, the majority

leaves Wisconsin's voters and candidates guessing as to when,

exactly, they should file their cases in order for the majority to

deem them worthy of the court's consideration on the merits.

¶155 The consequence of the majority operating by whim rather

than law is to leave the interpretation of multiple election

statutes in flux——or worse yet, in the hands of the unelected

members of the WEC. "To be free is to live under a government by

law . . . . Miserable is the condition of individuals, danger is

the condition of the state, if there is no certain law, or, which

is the same thing, no certain administration of the law[.]"

Judgment in Rex v. Shipley, 21 St Tr 847 (K.B. 1784) (Lord

Mansfield presiding) (emphasis added). The Wisconsin Supreme

Court has an institutional responsibility to interpret law——not

for the benefit of particular litigants, but for citizens we were

elected to serve. Justice for the people of Wisconsin means

ensuring the integrity of Wisconsin's elections. A majority of

this court disregards its duty to the people of Wisconsin, denying

them justice.

* * *

¶156 "This great source of free government, popular election,

should be perfectly pure." Alexander Hamilton, Speech at New York

Ratifying Convention (June 21, 1788), in Debates on the Federal

Constitution 257 (J. Elliot ed. 1876). The majority's failure to

act leaves an indelible stain on our most recent election. It

will also profoundly and perhaps irreparably impact all local,

statewide, and national elections going forward, with grave

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consequence to the State of Wisconsin and significant harm to the

rule of law. Petitioners assert troubling allegations of

noncompliance with Wisconsin's election laws by public officials

on whom the voters rely to ensure free and fair elections. It is

our solemn judicial duty to say what the law is. The majority's

failure to discharge its duty perpetuates violations of the law by

those entrusted to administer it. I dissent.

¶157 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice ANNETTE KINGSLAND ZIEGLER join this

dissent.

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