Feb. 14, 2024 – The Wisconsin Supreme Court has ordered that the Wisconsin Elections Commission (WEC) place former U.S. Representative Dean Phillips’ name on the 2024 presidential primary ballot.
In Phillips v. WEC, 2024 WI 8 (Feb. 2, 2024) the Supreme Court (per curiam opinion) held that a committee tasked under state law with choosing names for the ballot erred by keeping Phillips off the ballot, because there was no evidence the committee considered whether Phillips was “generally advocated or recognized in the national news media” as a presidential candidate.
Ballot Selection Committee
Under Wis. Stat. section 8.12(1), a selection committee (Committee) that includes (among others) the chairperson of each political party listed on the ballot for the last gubernatorial election must meet in January to decide which presidential candidates are “generally advocated or recognized in the national news media throughout the United States.”
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.
Under section 8.12(1), the committee must place on the presidential primary ballot the name of each candidate that it determines meets that standard.
Declared Candidate
Dean Phillips, formerly a Democratic Congressman from Minnesota, declared himself a presidential candidate in October 2023.
In December 2023, Phillips’ campaign told the Democratic Party of Wisconsin that Phillips wanted to appear on the Wisconsin presidential preference primary ballot.
Phillips’ name appeared on the ballot for the New Hampshire presidential primary, which was held on January 23.
Phillps Left off Ballot
The chair of the Democratic Party of Wisconsin served on the selection committee that met under section 8.12(1) on Jan. 24, 2024. He listed only Joe Biden’s name to be placed on the ballot.
During a five-minute meeting which included no discussion of Phillips or any other Democratic candidate, the committee adopted by unanimous vote a motion to place the names submitted by the party chairs on the ballot.
Original Action
On January 26, Phillips filed a petition to commence an original action in the Wisconsin Supreme Court.
In the petition, Phillps sought a writ of mandamus and asked the Supreme Court to declare that the Committee had erroneously exercised its discretion by leaving his name off the presidential primary ballot, because his candidacy was generally advocated or recognized in the national media.
The Committee and the Wisconsin Elections Commission (WEC) argued that the Supreme Court should decline to exercise original jurisdiction over the matter for the following reasons:
Phillips had waited too long to file for relief after the Committee met on January 2 (laches);
Phillips could have chosen to get his name on the ballot by collecting 8,000 signatures and then submitting a petition to the WEC to appear on the ballot; and
Phillips lacked standing because he had no interest protected by section 8.12(1).
‘Not a Pro Forma Exercise’
In a per curiam opinion, the Supreme Court held that its decision in McCarthy v. Elections Board, 166 Wis. 2d 481, 480 N.W.2d 241 (1992), governed Phillips’ petition.
In McCarthy, the Supreme Court held that the Committee in the 1992 presidential cycle erred by leaving the names of declared candidates, including former U.S. Senator Eugene McCarthy and perennial presidential candidates Lyndon LaRouche and David Duke, off the presidential primary ballot.
As in McCarthy, the Supreme Court found that there was no evidence that the Committee’s decision to leave Phillips’ name off the ballot was based on a proper application of the media advocacy/recognition standard established in section 8.12(1).
“McCarthy makes clear that the … Committee’s consideration of this statutory standard is not to be a pro forma or perfunctory exercise, but one that involves a consideration and weighing of the facts at hand as to ‘all candidates,’” the Supreme Court wrote. “That did not occur here.”
No Prejudice, No Laches
The Supreme Court concluded that laches was no bar to Phillips’ petition because there was still time to place his name on the ballot for the primary.
“While we do not condone Mr. Phillips’ delay in bringing this action, without a showing of prejudice laches cannot apply,” the Supreme Court wrote.
Directive to WEC
The Supreme Court concluded that the respondents’ arguments regarding standing and the alternate method of getting on the ballot by obtaining 8,000 signatures both missed the mark.
“These assertions are irreconcilable with the result in McCarthy, where we directed an identically situated petitioner’s name to be placed on the primary ballot after determining that the Presidential Preference Selection Committee failed to properly exercise the discretion conferred upon it by Wis. Stat. section 8.12(1)(b),” the Supreme Court wrote.
Reasoning that there wasn’t enough time for the Committee to meet again before the April 2 primary, the Supreme Court directed that the WEC place Phillips’ name on the 2024 Democratic presidential preference primary ballot.
