Feb. 20, 2022 – The Wisconsin Supreme Court has ordered that a circuit court ruling against ballot box guidance issued by the Wisconsin Elections Commission (WEC) be stayed only through the February 15 primary election.

The decision in Richard Teigen v. Wisconsin Elections Commission, 2022AP91 (Feb. 10, 2022) means that, absent further action by the supreme court, clerks will not be authorized to deploy ballot drop boxes at the April 5 primary election.

The decision came in an order approved by a 4-3 vote.

Chief Justice Chief Justice Annette Ziegler, Justice Rebecca Grassl Bradley, Justice Patience Roggensack, and Justice Brian Hagedorn formed the majority issuing the unsigned order.

Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet and Justice Jill Karofsky.

Ruling Stayed

In June 2021, Richard Teigen and Richard Thom filed a lawsuit in Waukesha County Circuit Court challenging guidance issued to local election officials in 2020 by the WEC.

The guidance included advice about ballot drop boxes, the collection of absentee ballots, and whether electors must mail or deliver absentee ballots themselves.

The circuit court granted summary judgment for the plaintiffs in January 2022. The circuit court ruled that the WEC guidance violated state statutes, and that guidance documents were administrative rules but were not properly promulgated.

WEC joined several defendants in a motion asking the circuit court to stay the order pending appeal. The circuit court denied the motion and the defendants appealed. The court of appeals then stayed the circuit court’s order through Feb. 15, 2022.

The plaintiffs filed an emergency petition, asking the supreme court to vacate the stay, bypass the court of appeals, and hear the case directly. On Jan. 28, the court declined to vacate the stay but granted the petition to bypass.

On Feb. 2, intervenors Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and League of Women Voters of Wisconsin asked the supreme court to extend the stay through the April 5 election.

Compliance Feasible by April 5

The majority held that three of the four factors for deciding whether a stay should be continued, established in State Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d. 225 (1995), weighed heavily against continuing the stay.

Neither WEC nor the intervenors showed that failure to continue to the stay beyond the February 15 election would cause irreparable injury or substantial harm to the parties or the public interest, the majority wrote.

The inquiry was different than the one that the supreme court engaged in when plaintiffs asked the supreme court to vacate the circuit court’s stay, the majority explained, because at that time clerks had sent 88,252 absentee ballots to voters for the Feb. 15 election.

“The record before us, including the timetable for making the necessary administrative changes as outline by the court of appeals, indicates that the Commission can comply with the circuit court’s order so as to ameliorate concerns about voter confusion and election administration before the April 5, 2022 election commences,” wrote the majority.

‘Eleventh Hour’

In her dissent, Justice A.W. Bradley wrote that the majority opinion would confuse the clerks.

“Once again, a majority of this court makes it more difficult to vote. With apparent disregard to the confusion it is causing, the majority provides next to no notice to municipal clerks, changing procedures at the eleventh hour and applying different procedures from those that applied to the primary in the very same election cycle.”

Voters too would be confused, she explained.

Furthermore, given that the supreme court would be hearing the merits of the lawsuit later this year, “why alter the status quo now if there remains the possibility that we will simply change it back again in several months’ time?” Justice A.W. Bradley wrote.

The majority failed to answer that question, she explained. It also limited “[i}ts entire substantive analysis … set forth in a single sentence tucked away in the middle of a paragraph toward the end of the order.”

‘Disenfranchisement’

Justice A.W. Bradley wrote that the majority did not adequately analyze the balancing of harms required by Gudenschwager.

“The second through fourth Gudenschwager factors ‘weight heavily in favor of relief pending appeal. Namely, the Commission and intervenors describe injuries related to voter confusion, disenfranchisement, and election administration that would be occasioned on movants themselves, as well as on the public interest.”

Justice A.W. Bradley pointed out that there are 1,800 clerks in Wisconsin, with some of them serving rural municipalities on a part-time basis.

“The majority’s order presents unnecessary obstacles for the hard-working clerks across Wisconsin who help make possible our free and fair elections,” she wrote.

April Election Too Close

Justice A.W. Bradley also pointed out that the stay granted by the circuit court might violate a federal law by disenfranchising disabled voters; she also reasoned that the harms caused by the majority’s order were wider than those likely to be suffered by the intervenors.   

“But the greatest harm of the majority’s misstep may be the undermining of the election process itself. Indeed, the only parties not harmed by today’s decision are those who would cast meritless doubt on our elections.”