July 30, 2024 – Absentee ballots must be witnessed in Wisconsin, and the witness must provide an “address” on the witness certification. Recently, a state appeals court upheld a circuit court’s definition of “address” but clarified the standard for applying it.

In Rise, Inc. v. Wisconsin Elections Commission, 2024AP165 (July 11, 2024), a three-judge panel upheld the circuit court’s definition of address as “a place where the witness may be communicated with,” contrary to the Wisconsin Legislature’s view.

The circuit court also ruled that the “address” requirement is satisfied if “the face of the certificate contains sufficient information to allow a reasonable person in the community to identify a location where the witness may be communicated with.”

On that point, the appeals court reversed.

“[W]e conclude that the standard for applying the definition of ‘address’ must be viewed from the perspective of the municipal clerk, in the reasonable performance of the clerk’s duties, rather than from the perspective of a ‘reasonable person in the community’ as adopted by the circuit court,” wrote Judge Chris Taylor for the panel.

How it Got There

In March 2016, the Wisconsin Legislature enacted Wis. Stat. section 6.87(6d), which specifies that if an absentee ballot certificate is missing a witness address, the ballot may not be counted.

In October 2016, the Wisconsin Election Commission (WEC) issued a non-binding guidance document that a complete address for an absentee ballot witness address certificate contain a street number, a street name, and the name of a municipality.

The guidance document also said that municipal clerks who were able to discern any witness address information using extrinsic sources need not contact the voter before correcting a witness address certificate.

In 2022, a Waukesha County Circuit Court issued an injunction and barred WEC from telling clerks that they had the duty or power to change or add information to ballot certificates that were incomplete.

After that ruling, WEC told clerks that it had withdrawn the 2016 guidance document.

Rise Inc. (Rise) then sued WEC in Dane County Circuit Court, seeking a declaratory judgment regarding the proper definition of “address” in section 6.87.

The circuit court ruled that “address” in section 6.87 means a place where a witness can be communicated with. The state legislature, which had intervened in the case, appealed.

The legislature argued that the appeals court should vacate the circuit court’s decision without interpreting the term “address” or require that the witness include a street number, street name, and municipality on the witness certification.

Context and Purpose

Writing for the three-judge panel, Judge Taylor pointed out that “address” would be ambiguous as used in section 6.87(2) if a court relied only on dictionaries to define the word.

However, she explained that the Court of Appeals may also examine the context in which the statute used “address,” as well as the structure and purpose of section 6.87, to ascertain the meaning of “address.”

Judge Taylor noted that many statutes in the state’s election code contain the word “address.”

However, she noted that many of those statutes other than section 6.87 contain words that modify “address” – for instance, to require particular information about an address or a certain type of address.

The same was true, Judge Taylor noted, of statutes in Wis. Stat. Ch. 8 that list requirements for candidate nominating papers.

“This variation in the use of the word ‘address’ throughout the election statutes – especially with respect to other language in the same sub-section and other statutes that were enacted at the same time as section 6.87(2) – shows that the legislature knows how to require more specificity when requiring an individual to provide an address in the election context,” Taylor wrote.

Judge Taylor also pointed out that the legislature had in 2021 passed a bill that would have amended section 6.87(2) to require that an absentee ballot witness provide his or her “house or apartment number,” “street name,” and “municipality.” However, she noted, the governor vetoed the bill.

“This occurrence additionally supports the conclusion, when considered in context, that no particular address components are required to satisfy the absentee ballot witness address requirement,” Taylor wrote.

No Surplusage

Judge Taylor also reasoned that to adopt the legislature’s argument regarding the meaning of “address” would render parts of section 6.87(2) surplusage, violating a canon of statutory construction.

“If the legislature had intended the word ‘address’ in the election statutes to be universally defined as consisting of component parts, such as a street number, street name, and municipality, then it would not have needed to delineate any components in the statutes we have summarized above,” Taylor wrote.

Significant Omission

Judge Taylor noted that the legislature did not include section 6.87(2) in section 6.84(2), which specifies that an absentee ballot may not be counted if it does not comply with sections 6.86, 6.87(3)-(7), and section 9.01(1)(b)2. and 4.

​Taylor concluded that the legislature had left section 6.87(2) out of section 6.84(2) for a reason.

“This omission further supports the conclusion that … the purpose of the witness address requirement is not to limit or hinder the will of the absentee voter, if ascertainable, by an adherence to a strict, component-based definition of address in order for an absentee ballot to be counted,” Judge Taylor wrote.

Given the context, structure, and purpose of section 6.87(2), Taylor concluded the circuit court was correct to conclude that “address” in section 6.87(2) means a place where someone can communicate with a witness.

Reasonable Clerk Standard

However, Judge Taylor concluded that the circuit court had erred by holding that a witness address met the requirements of section 6.87(2) if it contained enough information for “a reasonable person in the community to identify a location where the witness may be communicated with.”

That standard, Taylor reasoned, found no support in the text of section 6.87(2).

Given the role of municipal clerks in Wisconsin’s de-centralized election system, Judge Taylor wrote that “it follows that the correct standard for properly defining ‘address’ in section 6.87 involves the perspective of each local, municipal clerk performing their duties in a reasonable manner, rather than from the perspective of a reasonable person in the community.

Beyond the Address Line

Judge Taylor, writing for the panel, also concluded that the circuit court was correct to conclude that a municipal clerk may use information appearing anywhere on the face of the absentee ballot certificate to communicate with the witness.

“Indeed, it would contravene the purpose of the witness address requirement if municipal clerks could not consider witness contact information simply because such information is not contained on the ‘address’ line,” Taylor wrote.

“The correct standard for applying the definition of address for the purposes of section 6.87 is whether the face of the absentee ballot witness certificate contains sufficient information to enable a municipal clerk to reasonably identify a place where they witness may be communicated with,” Judge Tayor wrote.

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