Aug. 13, 2024 – The Wisconsin Elections Commission (WEC) properly applied a substantial compliance standard when accepting nomination papers that were blurred and omitted some words, the Wisconsin Court of Appeals (District I) has ruled in
Hess v. Wisconsin Elections Commission, 2023AP1350 (July 30, 2024).
In the spring of 2023, Paul Melotik began circulating nomination papers after Gov. Tony Evers called a special election to fill a vacancy in State Assembly District 24.
On May 23, 2023, Melotik submitted the nomination papers, containing 369 signatures, to the Wisconsin Elections Commission.
Three days later, Morgan Hess filed a verified complaint with the WEC under
Wis. Stat. section 5.06. In the complaint, Hess challenged several of the signatures Melotik submitted.
Hess also claimed that the poor resolution of the header, the signatory/elector certification, and the circulator certification obscured, blurred, or omitted words. As a result, she argued, the nomination papers didn’t meet statutory requirements.
Hess argued that because of those errors, only 75 of the signatures that Melotik submitted were valid.
Bad Copy Job
Melotik responded to Hess’s complaint. He explained that the visual defects in the nomination paper were caused by poor photocopying.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Melotik submitted with his response affidavits from himself and two other circulators stating that “I knew (to the best of my knowledge) that each elector singing the nomination form was [a proper elector].”
Substantial Compliance
WEC staff reviewed the nomination papers and recommended that the commission approve 352 of the signatures and place Melotik’s name on the ballot.
The staff acknowledged that there were letters and words missing from the nomination papers.
But they determined that, with one exception, the nomination papers substantially complied with the relevant statutory standards, and that missing letters and words didn’t omit anything essential.
WEC held a hearing on Hess’s complaint on June 1, 2023. WEC accepted the staff recommendation and dismissed Hess’s complaint.
WEC accepted 342 of the signatures submitted by Melotik and placed his name on the ballot.
Circuit Court Review
One week after the hearing, Hess filed for a review of the WEC decision in Dane County Circuit Court, under section 5.06(8).
On June 15, 2023, the circuit court affirmed WEC’s decision.
Hess appealed. After Hess appealed, Melotik won the election.
Election Didn’t Moot Issue
Judge Pedro Colon began his opinion for a three-judge panel by noting that the parties disagreed on whether the case had been mooted by Melotik’s election.
Colon explained that an issue is moot when resolution of the issue would have no practical effect on the controversy. But he pointed out that the Wisconsin Supreme Court has created five exceptions to the mootness doctrine.
Judge Colon concluded that one of those exceptions – an issue likely of repetition that evades review – applied to the issue raised by Hess in her complaint.
Colon reasoned that the submittal, review, and acceptance of nomination papers must occur quickly, so ballots can be prepared in time for an election.
“As a result, challenges to nomination papers are likely to evade court review when they arise because the nomination papers will be submitted, reviewed, and accepted, and the election will be held prior to resolution of any court proceedings,” Judge Colon wrote.
Hess Had Standing
WEC argued that Hess lacked standing because she wasn’t a candidate in the election and was not aggrieved by the decision to place Melotik’s name on the ballot.
But Colon pointed out that under section 5.06(1), “any elector” may file a complaint with the WEC if he or she believes that an election official’s decision or action violates the law or constitutes an abuse of discretion regarding a candidate’s nomination.
He also noted that the WEC had investigated Hess’s complaint and issued a decision dismissing the complaint.
“Contrary to WEC’s argument, nothing in the statute restricts standing to another candidate in the election,” Judge Colon wrote.
Substantial Compliance is Sufficient
Hess argued that state law required strict compliance, rather than substantial compliance, with requirements in
section 8.15 regarding candidate nomination papers.
Colon noted that those requirements include a circulator certification, a header, and a signatory/elector certification.
He also pointed out that under
section 8.07, the WEC “shall promulgate rules … for use by election officials in determining the validity of nomination papers and signatures thereon.”
Under those rules, Judge Colon explained: 1) any information appearing on a nomination paper is entitled to a presumption of validity; and 2) if any required information is incomplete, “the filing officer shall accept the information as complete if there has been substantial compliance with the law.”
Given the legislature’s authorization of WEC to promulgate rules under section 8.07, Colon concluded that section 8.15 does not require strict compliance.
“WEC has discretion to accept a candidate’s nomination papers in the case that the information substantially complies with the requirements of section 8.15 and has discretion to refuse to place a candidate’s name on the ballot in the case that nomination papers are not properly prepared, signed, and executed with the requirements of section 8.15,” Judge Colon wrote.
Hess argued that the legislature’s use of the mandatory word “shall” in sections 8.15(4)(a) and 8.15(5) required strict compliance.
But Colon concluded that “shall” in those two sections “merely signals that certain content be present on the nomination form, and it does not mandate a particular way … that the content must be presented on the nomination form.”
WEC Properly Applied Standard
The panel concluded that WEC had properly applied the substantial compliance mandated by its own rules.
Judge Colon pointed out that WEC staff had noted that, despite the poor quality of the photocopies, the information required by sections 8.15(4)(a) and 8.15(5) was either present or deducible by reading the surrounding wording.
“While the information may not have been as clear as it could have been … the required information was ultimately uncompromised and the obscured, blurry, or missing wording … was immaterial to meet the requirements of the statutes,” Colon wrote.
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