Rise, Inc. v. Wis. Elections Comm'n

1

RISE, INC. AND JASON RIVERA, PLAINTIFFS-RESPONDENTS, v. WISCONSIN ELECTIONS COMMISSION; MARIBETH WITZEL-BEHL, CITY CLERK FOR THE CITY OF MADISON, WISCONSIN; TARA MCMENAMIN, CITY CLERK FOR CITY OF RACINE, WISCONSIN; AND CELESTINE JEFFREYS, CITY CLERK FOR THE CITY OF GREEN BAY, WISCONSIN, DEFENDANTS, WISCONSIN STATE LEGISLATURE, INTERVENOR-APPELLANT.

No. 2024AP165

Court of Appeals of Wisconsin, District IV

July 11, 2024

APPEAL FROM AN ORDER OF THE CIRCUIT COURT FOR DANE COUNTY, NO 2022CV2446 RYAN D. NILSESTUEN, JUDGE.

Before Blanchard, Graham, and Taylor, JJ.

TAYLOR, J.

¶1 For more than a century, Wisconsin voters have been statutorily permitted to cast absentee ballots in some form in elections.^[1]Wisconsin's current absentee voting laws require absentee ballots to be witnessed. WIS. Stat § 6.87(4)(b)l. (2021-22).^[2] The witness must complete a certificate on the absentee ballot envelope by providing among other things, their "address." Sec. 6.87(2). An absentee ballot certificate missing the address of a witness may not be counted. Sec. 6.87(6d). Municipal clerks who receive an absentee ballot with an improperly completed certificate may return the ballot to the voter so that the voter can correct the defect and return the ballot within the appropriate time. Sec. 6.87(9).

¶2 The word "address," as used in relation to absentee ballot witness requirements in WIS. STAT. § 6.87, is not specifically defined in § 6.87 or elsewhere in the statutes governing elections, WIS. STAT. chs. 5 to 12, and prior to this case, it has not been interpreted by Wisconsin courts. The circuit court declared that the word "address" as used in § 6.87 regarding an absentee ballot witness's address means "a place where the witness may be communicated with" and that a witness's address complies with § 6.87's requirements if "the face of the certificate contains sufficient information to allow a reasonable person in the community to identify a location where the witness may be communicated with." On appeal, the Wisconsin State Legislature (when referred to as a party in this case, "the Legislature") argues that the court erred in adopting this definition of address and that we should vacate the circuit court's judgment without interpreting the word "address." In the alternative, the Legislature argues that, should this court adopt a definition of the word "address," the word "is best understood as a witnesses] street number, street name and municipality."

¶3 We affirm the portion of the circuit court's order declaring that the word "address" in WIS. STAT. § 6.87 in relation to an absentee ballot witness means "a place where the witness may be communicated with." However, we conclude that the standard for applying the definition of "address" must be viewed from the perspective of the municipal clerk, in the reasonable performance of the clerk's duties, rather than from the perspective of a "reasonable person in the community" as adopted by the circuit court. Accordingly, we reverse the circuit court's decision to the extent that it adopted the "reasonable person in the community" standard and remand for the court to enter an amended declaratory judgment and injunction consistent with this opinion.

BACKGROUND

I. Absentee Voting in Wisconsin

¶4 In Wisconsin, the earliest comprehensive electoral absentee voting law was enacted in 1915 and was relatively restrictive. 1915 Wis. Laws, ch. 461, § 1.

Under this law, voters (who, at that time, and with some exceptions, did not legally include women)^[3] could qualify to cast an absentee ballot only if they were planning on being absent from the county on election day because of "the nature of [their] business." Id. The 1915 law also required the absentee voter to mark the ballot, fold and place the ballot in an envelope, and sign an "affidavit" on the ballot envelope before a notary public. Id. The notary was required to sign a separate affidavit on the ballot envelope, which did not require the notary's address. Id.^[4]

¶5 Over time, the legislature transformed absentee voting into a broadly available method of casting a ballot in an election. By the end of the twentieth century, absentee voting was available to any voter who was unable to appear at the polling place on election day because of military service, age, sickness, handicap, physical disability, jury duty, service as an election official, or religious reasons. WIS. STAT. § 6.85 (1997-98). Requiring specific reasons for a voter to cast an absentee ballot was eventually eliminated altogether. Today, absentee voting is available to "any otherwise qualified [voter] who for any reason is unable or unwilling to appear at the polling place in his or her ward." Sec. 6.85 (2021-22); see also 1999 Wis. Act 182, § 90m. Absentee voting has become such a broad privilege that the legislature's authority to allow absentee voting is provided for in the Wisconsin Constitution. WIS. CONST, art. Ill. § 2.^[5]

¶6 As the legislature has expanded the permissible reasons for absentee voting, it has simultaneously eased the procedural requirements in the absentee voting process. For example, many of the absentee ballot witness requirements from the 1915 law were relaxed in 1966 as part of a major overhaul of Wisconsin's voting laws. 1965 Wis. Laws, ch. 666, § 1. Under the newly-created WIS. STAT. § 6.87 (1967-68), instead of voters being required to have the ballot envelope notarized, voters were given the additional option of marking the ballot, folding and placing the ballot in the envelope, and signing a "certificate" on the ballot envelope before two witnesses. Sec. 6.87(2), (4) (1967-68). These witnesses were required to be "qualified [voters] of the state of Wisconsin," and each witness was required to write their "name" and "address" on the ballot envelope certificate. Sec. 6.87(2) (1967-68). What constituted a witness "address" was undefined. Eventually, the notary option was eliminated entirely, and the number of required witnesses was reduced to one. 1999 Wis. Act 182, §§ 95p, 98p. The law was also amended to allow any adult U.S. citizen to serve as a witness. 2005 Wis. Act 451, §§ 79, 83.^[6]

¶7 In addition to relaxing the requirements for absentee voting, the legislature enacted WIS. STAT. § 6.87(9). 1985 Wis. Act 304, § 74. This statutory provision, which is still in effect today, authorizes municipal clerks who receive an absentee ballot with "an improperly completed certificate or with no certificate" to return the ballot to the voter for correction, provided there is enough time for the voter to correct the defect before election day. Sec. 6.87(9).

¶8 Despite the relaxation of the absentee ballot witness certificate requirements with the 1966 statutory changes and in the years since, the requirement for a witness to provide their address has not been modified. As a result, the current version of WIS. STAT. § 6.87(2) still requires the witness to provide an "address" when completing the absentee ballot certificate, and the word "address" in this context remains undefined in the statutes and prior case law.

II. Procedural History

¶9 The litigation in this appeal traces its roots to the enactment of WIS. STAT. § 6.87(6d) in March 2016. See 2015 Wis. Act 261, § 78. In the absentee ballot context, this statute provides: "If a certificate is missing the address of a witness, the ballot may not be counted." Sec. 6.87(6d). There is no evidence in the record that, prior to the enactment of this provision, any absentee ballots were disqualified based on the insufficiency of a witness's address.

¶10 In October 2016, a few months after the enactment of WIS. STAT. § 6.87(6d), the Wisconsin Elections Commission ("the Commission") issued a non-binding guidance document to help municipal clerks apply this new statute (the "2016 guidance document").^[7] The guidance document provided that, for the purposes of the absentee ballot witness address certificate, a "complete address" contains three components: a street number, street name, and name of municipality. The guidance document instructed municipal clerks to "take corrective actions in an attempt to remedy a witness address [insufficiency]." Accordingly, clerks who were "reasonably able to discern any missing [witness address] information from [extrinsic] sources [were] not required to contact the voter before making that correction directly to the absentee certificate envelope." If municipal clerks "were not able to remedy the address insufficiency from extrinsic sources," they could contact the voter and notify them of the address insufficiency and that the ballot would not be counted unless the insufficiency was remedied. Four years later, in October 2020, the Commission issued another guidance document titled "Spoiling Absentee Ballot Guidance." Although this guidance document is not in the record, neither party in this appeal disputes that it merely reiterated the witness address recommendations from the Commission's 2016 guidance document. Both guidance documents remained in effect through August 2022.

¶11 In October 2022, the Waukesha County Circuit Court entered an order enjoining the 2016 and 2020 guidance documents and prohibiting the Commission from communicating information to clerks that they "have the duty or ability to modify or add information to incomplete absentee ballot certifications." White v. WEC, Waukesha Cnty. No. 2022CV1008 (order issued Oct. 3, 2022). The order granting final judgment states that it "applies to portions" of the Commission's 2016 and 2020 guidance documents "that contain[] or indicate[] that municipal clerks or local election officials can modify or add information to absentee ballot certifications." Id. However, the court's order left in place the...