Braun v. Vote.org

1

Richard Braun, Plaintiff-Respondent, Wisconsin Elections Commission, Defendant-Respondent, v. Vote.org, Proposed-Intervenor-Appellant.

No. 2023AP76

Court of Appeals of Wisconsin, District II

July 31, 2024

APPEAL from an order of the circuit court for Waukesha County: No 2022CV1336 MICHAEL P. MAXWELL, Judge.

Before Neubauer, Grogan and Lazar, JJ.

GROGAN, J.

¶1 Vote.org, the Proposed Intervenor, appeals from the circuit court's order denying its Motion to Intervene in a lawsuit Richard Braun filed against the Wisconsin Elections Commission (WEC) related to the WEC's approval of the National Mail Voter Registration Form (the Form) as an accepted method of voter registration in Wisconsin. On appeal, Vote.org asserts the court erred in denying its motion under both WIS. STAT. § 803.09(1) (2021-22)^[1](intervention as of right) and § 803.09(2) (permissive intervention). Because we conclude Vote.org does not meet the requirements for intervention as of right pursuant to § 803.09(1) and that the court did not erroneously exercise its discretion in denying Vote.org's motion for permissive intervention pursuant to §803.09(2), we affirm.

I. BACKGROUND

¶ 2 The merits of the underlying dispute regarding the WEC's approval of the Form and whether the Form complies with Wisconsin law are not at issue; however, the following facts related to that dispute are pertinent to our resolution of Vote.org's appeal.

¶ 3 On September 15, 2022, Braun filed an action against the WEC seeking a declaratory judgment that the WEC's approval of the Form violates WIS. STAT. §6.33(1) and WIS. STAT. §227.10. Braun also sought a permanent injunction that would require the "WEC [to] withdraw its approval of the [F]orm, cease and desist from failing to comply with WIS. STAT. §§ 6.33(1) and 227.10 and correct the information in Wisconsin's Election Administration Manual indicating that the ... Form is approved for use in Wisconsin[.]"

¶ 4 The Form is a national voter registration form the United States Election Assistance Commission makes available to voters seeking to register to vote,^[2] and the Form has existed since 1993. See 52 U.S.C. § 20501 et seq. Unlike most states, Wisconsin is not required to utilize the Form because Wisconsin allows for same-day voter registration. See 52 U.S.C. § 20503(b). At some point, the WEC (or its predecessor), which is responsible for administering Wisconsin's election laws, see Wis. STAT. § 5.05(1), approved use of the Form for voter registration purposes in Wisconsin; however, the circumstances under which it did so, including when it did so, are unclear. Nevertheless, it appears the WEC has accepted the Form for voter registration for many years. In his Complaint, Braun alleged the WEC erred in approving the Form for use in Wisconsin because the Form, he says, "is missing several items" that WIS. STAT. § 6.33(1) requires, and it therefore does not comply with Wisconsin law.^[3]

¶ 5 Vote.org, "a 501(c)(3) nonprofit, nonpartisan organization and technology platform dedicated to voter registration and get-out-the-vote efforts[,]" filed a motion seeking to intervene in the underlying action on September 28, 2022.^[4] In support of its motion, Vote.org asserted it should be allowed to intervene because if Braun succeeds on the merits-in other words, if the Form is no longer an acceptable method for registering voters in Wisconsin-it will directly impact Vote.org's ability to assist Wisconsin voters with registering to vote, particularly those who are unable to do so online, unless Vote.org "divert[s] significant resources to modify its procedures for registering Wisconsin voters[.]"

¶ 6 In its motion, Vote.org asserted it had met all of the requirements for intervention as of right pursuant to WIS. STAT. § 803.09(1) because: (1) its Motion to Intervene was timely; (2) its interest in using the Form as a method for assisting Wisconsin voters was "sufficiently related to" the declaratory judgment action seeking to prohibit use of the Form; (3) if Braun succeeded in challenging use of the Form in Wisconsin, it would be detrimental to Vote.org's ability to register Wisconsin voters unless it expended significant financial resources to update its technological platform; and (4) no other party would adequately represent Vote.org's interests. As to representation of its interests, Vote.org asserted that although both Vote.org and the WEC sought to preserve use of the Form, its interests nevertheless diverged because it, unlike the WEC, would be subject to financial harm (in the form of costs associated with modifying its platform for Wisconsin voters) and also because the WEC is a government entity.

¶ 7 Regarding permissive intervention pursuant to WIS. STAT. § 803.09(2), Vote.org asserted its motion was timely, there would be "no undue delay or prejudice" because the matter was "in its earliest stages" of litigation, and that it would "raise common questions of law and fact, including the core issue of whether the ... Form complies with Wisconsin's election laws for voter registration forms."

¶8 After hearing arguments at a December 2022 hearing, the circuit court denied Vote.org's motion. In doing so, the court began by addressing Vote.org's motion under WIS. STAT. § 803.09(1) (intervention as of right). Although the court determined that Vote.org had established it satisfied the first two criteria under § 803.09(1)-that its Motion to Intervene was timely and that Vote.org had an interest related to the subject of the action because it sought to maintain utilization of the Form in Wisconsin-the court nevertheless determined that Vote.org could not meet the third and fourth criteria.

¶9 As to the third criterion for intervention as of right-whether disposition of the action would impair or impede Vote.org's ability to protect its interest^[5]-the circuit court noted it had "concerns" because Vote.org "purposefully and intentionally created a system relying upon a card that may or may not be lawful under Wisconsin law," it "was Vote.org's choice ... to craft this system without utilizing the one form that [it] knew would be in compliance with Wisconsin law because it was a Wisconsin created form[,]" and the Record was insufficient to establish the potential cost to Vote.org if it had to reconfigure its user platform for Wisconsin voters.

¶10 The circuit court also expressed "concerns" regarding whether Vote.org could establish the fourth criterion-that the existing parties would not adequately represent its interests^[6]-and explained that it saw "the lawsuit [a]s a narrow question" of "whether or not [the Form] complies with Wisconsin law" and that it did not see how the WEC's "significant interest in arguing" that the Form complies with Wisconsin law differed from that of Vote.org even though the two parties may have had different reasons for desiring the same outcome. In the court's view, despite these differing reasons ("enforcing and protecting Wisconsin election law" as to the WEC and "protecting [its] system of operation as it relates to Wisconsin law and the ability to use the" Form as to Vote.org), both Vote.org and the WEC were "pursuing exactly the same outcome"-a determination that the Form "is acceptable under Wisconsin law." The court ultimately concluded there was no issue regarding inadequate representation, and it denied Vote.org's motion for intervention as of right based on Vote.org's failure to establish both the third and fourth criteria.

¶11 The circuit court likewise denied Vote.org's Motion to Intervene pursuant to WIS. STAT. § 803.09(2) (permissive intervention). The court noted "there isn't a great deal of standards or maps ... available in the case law" as to factors a court should consider under the permissive intervention statute, but it determined that "it can't simply be that you show a common interest or common issue of factor [sic], issue of law and that you timely file because if that were-if the bar was so low as to that, then there would be no reason" for intervention as of right, and also that if that were the case, there would never be a reason "to pursue intervention by right because you could always get in through permissive intervention." The court also acknowledged Vote.org's suggestion that exercising its discretion under the permissive intervention statute required it to consider many of the same criteria it was required to consider in regard to intervention as of right, and after reconsidering those same factors within Vote.org's suggested framework, along with the cited case law, the court ultimately determined there was no basis to grant permissive intervention.

¶12 Vote.org now appeals.^[7]

II. DISCUSSION

¶13 On appeal, Vote.org renews its arguments that it is entitled to intervene as of right pursuant to WIS. STAT. § 803.09(1) or, alternatively, pursuant to § 803.09(2) as a matter of permissive intervention. We address each in turn and ultimately affirm the circuit court's denial of Vote.org's motion as to both intervention as of right and permissive intervention.

A. Intervention as of Right

¶14 WISCONSIN STAT. § 803.09(1) governs intervention as of right and provides that:

Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.

Our supreme court has interpreted this statute as requiring that the movant meet the following four criteria: (1) "that the movant's motion to intervene is timely;" ...