Evers v. Wis. Elec. Comm'n (In re Priorities USA)

412 Wis. 2d 594

Priorities USA, Wisconsin Alliance for Retired Americans and William Franks, Jr., Plaintiffs-Appellants,

Governor Tony Evers, Intervenor-Appellant,

v.Wisconsin Elections Commission, Defendant-Respondent,Wisconsin State Legislature, Intervenor-Respondent.

Supreme Court

No. 2024AP164. Oral argument May 13, 2024.—Decided July 5, 2024.

2024 WI 32

(Also reported in 8 N.W.3d 429.)

APPEAL from an order of the Circuit Court for Dane County, Ann M. Peacock, Judge. Reversed and remanded.

For the plaintiffs-appellants, there were briefs filed by Diane M. Welsh, and Pines Bach LLP, Madison; David R. Fox (pro hac vice), Justin Baxenberg (pro hac vice), Richard A. Medina (pro hac vice), Omeed Alerasool (pro hac vice), and Elias Law Group LLP, Washington, D.C. There was an oral argument by David R. Fox.

For the intervenor-appellant, there were briefs filed by Erin K. Deeley, David P Hollander, Rachel E. Snyder, Carly Gerads, and Stafford Rosenbaum LLP, Madison; Mel Barnes, and Office of Governor Tony Evers, Madison; Christine P Sun (pro hac vice), Zack Goldberg (pro hac vice), and States United Democracy Center, New York, NY. There was an oral argument by Erin K. Deeley.

For the defendant-respondent, there was a brief filed by Charlotte Gibson, assistant attorney general, Faye B. Hipsman, assistant attorney general, Steven C. Kilpatrick, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Faye B. Hipsman, assistant attorney general.

For the intervenor-respondent, there was a brief filed by Misha Tseytlin, Kevin M. LeRoy, Sean T.H. Dutton, Emily A. O'Brien, and Troutman Pepper Hamilton anders LLP, Chicago, IL. There was an oral argument by Misha Tseytlin.

An amicus curiae brief was filed by Nicholas Fairweather, and Hawks Quindel, S.C., Madison; Graham Provost (pro hac vice), and Public Rights Project, Oakland, CA, on behalf of Wisconsin Election Officials.

An amicus curiae brief was filed by Lane E. Ruhland, and Ruhland Law and Strategy, LLC, Waunakee, on behalf of Center for Election Confidence.

An amicus curiae brief was filed by Matthew M. Fernholz, and Cramer Multhauf LLP, Waukesha; Thomas R. McCarthy (pro hac vice), Conor D. Woodfin (pro hac vice), R. Gabriel Anderson (pro hac vice), and Consovoy McCarthy PLLC, Arlington, VA, on behalf of The Republican National Committee, The Republican Party of Wisconsin, and RITE PAC.

An amicus curiae brief was filed by Scott B. Thompson, Daniel S. Lenz, and Law Forward, Inc., Madison, on behalf of Disability Rights Wisconsin, The League of Women Voters of Wisconsin, and Wisconsin Faith Voices for Justice.

An amicus curiae brief was filed by Jason Myatt, Mark Cherry (pro hac vice), Zachary Goldstein (pro hac vice), Narayan Narasimhan (pro hac vice), and Gibson, Dunn & Crutcher LLP, New York, NY; Gregg J. Costa (pro hac vice), and Gibson, Dunn & Crutcher LLP, Houston, TX, on behalf of Common Cause Wisconsin.

An amicus curiae brief was filed by Richard M. Esenberg, Luke N. Berg, Nathalie E. Burgmeister, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee, on behalf of Richard Teigen, Richard Thom, and The Association of Mature American Citizens, Inc.

¶ 1. ANN WALSH BRADLEY, J. The petitioners, Priorities USA, Alliance for Retired Americans, and William Franks, Jr. (collectively, petitioners), have challenged several voting requirements on statutory and constitutional grounds. Among these was the requirement that absentee ballots be returned only by mail or in person to the clerk's office and not to a secure drop box.¹ The circuit court concluded that it was bound by Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, in determining the legality of ballot drop boxes and accordingly granted a motion to dismiss that claim.²

¶ 2. After the petitioners sought bypass of the court of appeals, we granted bypass on a single issue: "Whether to overrule the Court's holding in Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, that Wis. Stat. § 6.87 precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks."³

¶ 3. The petitioners, along with intervenor Governor Tony Evers and respondent WEC, contend that Teigen was wrongly decided and ask that we overrule it. They specifically assert that Wis. Stat. § 6.87(4)(b)1. (2021–22),⁴ contrary to the conclusion of the Teigen majority, allows the use of ballot drop boxes.

¶ 4. In contrast, the Wisconsin Legislature advances that we should reaffirm Teigen. It contends that the court's statutory interpretation in that case was correct and that no intervening changes should cause us to revisit that decision.

¶ 5. We conclude that Wis. Stat. § 6.87(4)(b)l. allows the use of ballot drop boxes. For the reasons set forth below, we determine that the court's contrary conclusion in Teigen was unsound in principle, and as a consequence, we overrule it.

¶ 6. Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what Wis. Stat. § 6.87(4)(b)1. has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion. See Wis. Stat. § 7.15(1); State ex rel. Zignego v. WEC, 2021 WI 32, ¶¶ 13, 15, 396 Wis. 2d 391, 957 N.W.2d 208.

¶ 7. Accordingly, we reverse the order of the circuit court dismissing the petitioners' claim for a declaratory judgment that Wis. Stat. § 6.87(4)(b)1. allows the use of drop boxes and remand to the circuit court to reinstate the petitioners' drop-box claim.

I

¶ 8. We begin by setting forth the procedural posture of this case in greater detail. The petitioners challenged several election procedures. Part of their claim was a contention that "the Wisconsin Supreme Court should revisit its decision in Teigen and confirm that § 6.87(4)(b)1. allows the use of drop boxes consistent with the statutory text and constitutional principles."

¶ 9. WEC and the legislature moved to dismiss the complaint, arguing that the petitioners did not state a claim upon which relief may be granted.⁵ The circuit court denied the motion in part and granted it in part. As relevant here, it agreed with WEC and the legislature and granted dismissal with respect to the drop-box claim. Specifically, the circuit court determined that it "doesn't have the authority to revisit the soundness of the statutory interpretation in Teigen." It continued: "Even if I agree that Teigen was incorrectly decided, I must follow the Teigen precedent and I leave any revisiting of that decision to the Wisconsin Supreme Court."

¶ 10. The petitioners appealed and subsequently petitioned for bypass of the court of appeals.⁶ As stated, we granted bypass of a single issue only: "Whether to overrule the Court's holding in Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, that Wis. Stat. § 6.87 precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks."

II

[1, 2]

¶ 11. We are called upon to review the circuit court's determination on a motion to dismiss. Whether a motion to dismiss was properly granted or denied is a question of law this court reviews independently of the determinations of the circuit court and court of appeals. State ex rel. City of Waukesha v. City of Waukesha Bd. of Rev., 2021 WI 89, ¶ 11, 399 Wis. 2d 696, 967 N.W.2d 460. A complaint survives a motion to dismiss for failure to state a claim upon which relief may be granted if it pleads facts, which if true, would entitle the plaintiff to relief. Cattau v. Nat’l Ins. Servs. of Wis., Inc., 2019 WI 46, ¶ 4, 386 Wis. 2d 515, 926 N.W.2d 756; Data Key Partners v. Permira Advisers, LLC, 2014 WI 86, ¶ 21, 356 Wis. 2d 665, 849 N.W.2d 693.

[3]

¶ 12. In our review, we interpret several Wisconsin statutes. Statutory interpretation presents a question of law we likewise review independently of the determinations rendered by the circuit court and court of appeals. Brown County v. Brown Cnty. Taxpayers Ass'n, 2022 WI 13, ¶ 19, 400 Wis. 2d 781, 971 N.W.2d 491.

III

¶ 13. We begin by addressing the relevant election statutes, looking first to the language of those statutes. Next we proceed to analyze the interpretation advanced in Teigen and then engage in our independent examination of the statutory language. Finally, we examine whether stare decisis compels us to uphold Teigen.

A

[4]

¶ 14. In examining the subject statutes, we begin with the statutory language. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶ 22, 397 Wis. 2d 431, 960 N.W.2d 384 (citing State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110). If the meaning of the statute is plain, we need not inquire further. Id.

[5, 6]

¶ 15. We give statutory language its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶ 23. Additionally, we "interpret statutory language 'in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.'" Id. (quoting Kalal, 271 Wis. 2d 633, ¶ 46).

¶ 16. Wisconsin Stat. § 6.87, entitled "Absent voting procedure," sets forth requirements for the return of absentee ballots and the envelopes containing those ballots. The statutory language at the center of this case comes from Wis. Stat. § 6.87(4)(b)1., and is not extensive: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." There is no assertion here that using a drop box is "mailing" a ballot, so we focus on the requirement that the ballot be "delivered in person, to the municipal clerk issuing the ballot or ballots."

¶ 17. In Teigen, the majority⁷ interpreted this provision to ban drop...