Dec. 14, 2020 – The Wisconsin Supreme Court has clarified that a “stay-at-home” order amid a pandemic is not a basis, on its own, for voters to declare “indefinitely confined” status and vote by absentee ballot without showing photo identification.

The Republican Party of Wisconsin filed an original action to the state supreme court in March, seeking a preliminary injunction and a declaration of rights against Dane County.

Prior to the April primary election, the Dane County city clerk posted on Facebook that “during this emergency and based on the Governors Stay at Home order I am declaring that all Dane County voters may indicate as needed that they are indefinitely confined due to illness.” Milwaukee County’s clerk issued a similar statement.

Wisconsin law, Wis. Stat. section 6.86(2)(a), requires voters to show photo identification when requesting an absentee ballot. However, a voter is not required to show photo identification if the voter indicates he or she is “indefinitely confined because of age, physical illness or infirmity or is disabled for an indefinite period.”

In its filing, the Republican Party of Wisconsin argued that the clerk’s interpretation of the “indefinitely confined” provision was wrong because it suggested that voters could elect the “indefinitely confined” status based on the threat of contracting COVID-19.

The supreme court granted a preliminary injunction before the primary election, blocking the Dane County clerk from posting advice that is inconsistent with guidance from the Wisconsin Election Commission (WEC). WEC had issued notice that voters could not use the “indefinitely confined” status as a means to avoid the photo ID requirement.

Majority Opinion

In Republican Party of Wisconsin v. Dane County, 2020 WI 90 (Dec. 14, 2020), the supreme court issued a final decision to clarify that neither a government order nor guidance from county clerks can declare persons indefinitely confined for any reason.

The statute, the court unanimously ruled, requires a voter – not government officials – to make that determination based solely on whether he or she indefinitely confined because of age, physical illness or infirmity or disability for an indefinite period.

In addition, a majority ruled that a third party – such as a caregiver – cannot make that decision for the voter, and the third party cannot claim indefinitely confined status based on the indefinite confinement of the person for whom he or she is caring.

Disability Rights Wisconsin (DRW), which intervened, argued that third parties such as caregivers or elderly couples should be able to use the designation to vote if someone they are caring for is indefinitely confined, making it easier for them to vote absentee.

The majority disagreed with that position and clarified that voters cannot not make an indefinitely confined status designation based solely on fear of contracting COVID-19.

“First, the presence of a communicable disease such as COVID-19, in and of itself, does not entitle all electors in Wisconsin to obtain an absentee ballot under Wis. Stat. §6.86(2)(a),” wrote Chief Justice Patience Roggensack.

“Similarly, an emergency order that required all Wisconsinites to remain in their homes except for limited circumstances, standing alone, was not a condition based on age, a physical illness, or an infirmity.”

Finally, the chief justice wrote, “having trouble uploading or providing proof of a photo identification does not permit electors to avoid both the absentee voting laws and the voter identification laws.”

The majority noted a declaration of rights was warranted even though there is no longer a statewide government shutdown order in place, raising a mootness issue, since the case affects a matter of great public importance and it could come up again.

Separate Writings

Justice Ann Walsh Bradley concurred in part and dissented in part. She agreed that only the voters themselves can elect indefinitely confined status and the statewide safer-at-home order “did not render all Wisconsin electors indefinitely confined.”

But Justice A.W. Bradley said the majority went too far in concluding that a voter cannot request an absentee ballot and make the “indefinitely confined” status election based on someone else’s age, physical illness or infirmity, or indefinite disability.

The statute, A.W. Bradley wrote, does not say whose age, physical illness, or infirmity is the trigger. “[A]n examination of the statute in question leads to the conclusion that it is the majority, and not DRW, that impermissibly inserts words into the statute,” she noted.

She said the plain text of the statute does not prohibit a person from designating the status based on the age, illness, or disability of someone in their own household.

“In addition to being consistent with the plain statutory language, which provides no limitation, such a conclusion is consistent with common sense and responsible public health practices in the midst of a global pandemic,” Justice A.W. Bradley wrote.

Justice A.W. Bradley noted the example of an elderly couple who live in a rural area without good internet service and thus cannot present their photo IDs online to request absentee ballots.

If one partner is indefinitely confined, A.W. Bradley said the majority’s decision forces the other to risk contracting COVID-19 and bringing it home, or forego voting.

“The fear of contracting COVID-19 is real and the risk, for some, of contracting the virus is simply too daunting,” Justice A.W. Bradley wrote.

Justice Rebecca Dallet also concurred in part and dissented in part, joined by Justice Jill Karofsky. She agreed with the majority that individual voters, not the government, must make their own determination on whether they are indefinitely confined.

But Dallet said the decision should have ended there.

Justice Dallet wondered why the majority highlighted an increase in absentee ballot requests with indefinitely confined designations. The majority had noted that more than 194,000 primary voters cast absentee ballots claiming the “indefinitely confined” status, much higher than then 55,000 voters who made the designation in the 2016 primary.

Dallet said petitioners presented no evidence that any voters obtained absentee ballots claiming indefinitely confined status based on guidance from the city clerk.

“[T]he number of absentee-ballot requests based on indefinite confinement or disability tells us nothing about how we should interpret § 6.86(2) because that number does not tell us why any voter determined she was indefinitely confined,” Justice Dallet wrote.

“Without those facts, the majority opinion's interpretation of § 6.86(2) rests on hypothetical voters who are indefinitely confined for hypothetical reasons. That is not how we decide cases.”