Jefferson v. Dane Cnty.

394 Wis.2d 602

951 N.W.2d 556

2020 WI 90

Mark JEFFERSON and the Republican Party of Wisconsin, Petitioners,

v.DANE COUNTY, Wisconsin and Scott McDonell in his official capacity as Dane County Clerk, Respondents,Disability Rights Wisconsin, Intervenor-Respondent.

No. 2020AP557-OA

Supreme Court of Wisconsin.

Oral Argument: September 29, 2020

Opinion Filed: December 14, 2020

For the petitioners briefs were filed by Eric M. McLeod, Lane E. Ruhland, Lisa M. Lawless and Husch Blackwell LLP, Madison and Milwaukee. Oral argument presented by Eric M. McLeod.

For the respondents a brief was filed by David R. Gault, Office of the Dane County Corporation Counsel, Madison. Oral argument presented by David R. Gault.

For the intervenor-respondent, a brief was filed by Jeffrey A. Mandell, Douglas M. Poland, Kurt M. Simatic and Stafford Rosenbaum LLP, Madison. Oral Argument was presented by Jeffrey A. Mandell.

An amicus curiae brief was filed on behalf of the Legislature by Misha Tseytlin, Kevin M. Leroy, and Troutman Sanders LLP.

ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with respect to Parts II.C. and II.D.1. ANN WALSH BRADLEY, J., filed an opinion concurring in part, and dissenting in part. DALLET, J., filed an opinion concurring in part, and dissenting in part, in which KAROFSKY, J., joined.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review Mark Jefferson and the Republican Party of Wisconsin's (collectively "Petitioners") Petition for Original Action that seeks a declaration that (1) Respondents lack the authority to issue an interpretation of Wisconsin's election law allowing all electors in Dane County to obtain an absentee ballot without a photo identification and (2) Governor Evers' Emergency Order #12 ("Emergency Order #12") did not authorize all Wisconsin voters to obtain an absentee ballot without a photo identification.

¶2 To answer these questions, we interpret Wis. Stat. § 6.86(2)(a) (2017–18).¹ In so doing, we conclude § 6.86(2)(a) requires that (1) each individual elector make his or her own determination as to whether the elector is indefinitely confined; (2) an elector's determination may be based only upon age, physical illness or infirmity; and (3) an elector is indefinitely confined for his or her own age, physical illness or infirmity, not those of another person.

¶3 Accordingly, we conclude that the Respondents' interpretation of Wisconsin election laws was erroneous. Additionally, we conclude that Emergency Order #12 did not render all Wisconsin electors "indefinitely confined," thereby obviating the requirement of a valid photo identification to obtain an absentee ballot.

I. BACKGROUND

¶4 On March 25, 2020, and in response to the COVID-19 pandemic and Governor Evers' Emergency Order #12, the Dane County Clerk, Scott McDonell, issued the following statement on his personal Facebook page:

I have informed Dane County Municipal Clerks that during this emergency and based on the Governors Stay at Home order I am declaring all Dane County voters may indicate as needed that they are indefinitely confined due to illness. This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times. I urge all voters who request a ballot and have trouble presenting a[ ] valid ID to indicate that they are indefinitely confined.

People are reluctant to check the box that says they are indefinitely confined but this is a pandemic. This feature in our law is here to help preserve everyone's right to vote.

The process works like this:

• A voter visit's [sic] myvote.wi.gov to request a ballot.

• A voter can select a box that reads "I certify that I am indefinitely confined due to age [,] illness, infirmity or disability and request ballots be sent to me for every election until I am no longer confined or fail to return a ballot.["]

• The voter is then able to skip the step of uploading an ID in order to receive a ballot for the April 7 election.

Voters are confined due to the COVID-19 illness. When the Stay at Home order by the Governor is lifted, the voter can change their designation back by contacting their clerk or updating their information in myvote.wi.gov.

Voters who are able to provide a copy of their ID should do so and not indicate that they are indefinitely confined.

¶5 The Milwaukee County Clerk issued a nearly identical declaration on Facebook later that same day. The Milwaukee County Clerk "urge[d] all voters who request a ballot and do not have the ability or equipment to upload a valid ID to indicate that they are indefinitely confined." The county clerks circulated these statements to their municipal clerks.

¶6 Responding to the confusion that these two statements caused, the Wisconsin Elections Commission ("WEC") issued proposed guidance on when voters may declare themselves indefinitely confined. The WEC's proposed guidance, issued on March 27, 2020, reads as follows:

1. Designation of indefinitely confined status is for each individual voter to make based upon their current circumstance. It does not require permanent or total inability to travel outside of the residence. The designation is appropriate for electors who are indefinitely confined because of age, physical illness or infirmity or are disabled for an indefinite period.

2. Indefinitely confined status shall not be used by electors simply as a means to avoid the photo ID requirement without regard to whether they are indefinitely confined because of age, physical illness, infirmity or disability.

¶7 McDonell went to Facebook again to express that he was "[g]rateful that the Wisconsin Election Commission voted to agree with me that the designation of indefinitely confined status is for each individual voter to make based upon their current circumstances...." Later that night, McDonell posted the following:

More from me on this topic. The Wisconsin Election Commission met on Friday and issued further guidance to clarify the purpose and proper use of the indefinitely confined status under Wis[.] Stat[ ]. [§] 6.86(2) as follows:

1. Designation of indefinitely confined status is for each individual voter to make based upon their current circumstances. It does not require permanent or total inability to travel outside of the residence. The designation is appropriate for electors who are indefinitely confined because of age, physical illness or infirmity or are disabled for an indefinite period of time.

2. Indefinitely confined status shall not be used by electors simply as a means to avoid the photo ID requirement without regard to whether they are indefinitely confined because of age, physical illness, infirmity, or disability.

Voters should follow this guidance when determining whether they qualify to claim that they are indefinitely confined as a result of the COVID-19 pandemic and declared public health emergency.

¶8 Petitioners filed this Original Action on March 27, 2020, seeking declarations that (1) the Respondents' interpretation of Wisconsin's election laws was erroneous and (2) Emergency Order #12 did not render all Wisconsinites indefinitely confined such that they could obtain an absentee ballot without presenting a photo ID. Petitioners also sought a preliminary injunction directing McDonell to remove his posts and to issue a statement correcting his erroneous interpretation.

¶9 On March 31, 2020, we granted the Petitioners' request for preliminary injunctive relief. In that Order, we concluded "that clarification of the purpose and proper use of the indefinitely confined status pursuant to Wis. Stat. § 6.86(2) [a] ... [is] warranted." Additionally, we noted that "the WEC's guidance ... provides the clarification on the purpose and proper use of the indefinitely confined status that is required at this time." Further, we ordered "McDonell to refrain from posting advice as the County Clerk for Dane County [inconsistent with] the ... WEC guidance." We granted the Petition for Original Action and assumed jurisdiction over this case the following day.

¶10 While this case was pending, the April 7, 2020 election occurred and Wisconsin saw an increase in absentee ballots cast by electors who had claimed to be indefinitely confined. WEC records show that there were 194,544 such absentee ballots cast by voters in the 2020 Spring Election.² In contrast, the 2016 Spring Election saw 55,334 voters who obtained absentee ballots by claiming to be indefinitely confined.

¶11 After we accepted review, the Respondents filed a document that "stipulate[d] that the two propositions, as stated by the Petitioners are an accurate statement of the law." Disability Rights Wisconsin ("DRW") intervened later.

II. DISCUSSION

¶12 We review this case under our original jurisdiction found in Article VII, Section 3(2) of the Wisconsin Constitution. Within our original jurisdiction, we have granted declaratory judgment when "a judgment by the court significantly affects the community at large." Wisconsin Pro. Police Ass'n, Inc. v. Lightbourn, 2001 WI 59, ¶4, 243 Wis. 2d 512, 627 N.W.2d 807.

A. Standard of Review

¶13 The interpretation and the application of Wis. Stat. § 6.86 present questions of law that we review independently. Dawson v. Town of Jackson, 2011 WI 77, ¶17, 336 Wis. 2d 318, 801 N.W.2d 316. Although the WEC has issued official guidance, we interpret § 6.86(2)(a) without deference to the agency's interpretation. See Lamar Cent. Outdoor, LLC v. Div. of Hearings & Appeals, 2019 WI 109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 N.W.2d 21 ).

B. Mootness

¶14 Respondents contend that their stipulation on questions of law makes the issues presented herein moot. However, we are not bound by stipulations on questions of law. State v. Olson, 127 Wis. 2d 412, 419, 380 N.W.2d 375 (Ct. App. 1985) (citing Swift & Co. v. Hocking Valley Ry. Co., ...