Background

Wisconsin was one of the few swing states in 2016 and was considered a key battleground state again in 2020. In 2016, President Donald Trump carried Wisconsin by 22,748 votes. With such a razor-thin margin separating the top two presidential candidates, in 2020 the major parties were concerned about which candidates would qualify to appear on the general election ballot. Green Party candidate Jill Stein received 31,006 votes in Wisconsin in 2016.

On August 7, 2020, Allen Arnsten filed a complaint with the Wisconsin Elections Commission (Commission) challenging numerous signatures submitted by the Green Party presidential and vice presidential candidates. Specifically, the challenger alleged that the Green Party nominee for vice president, Angela Walker, listed an incorrect home address on her nomination forms that included 1,834 signatures filed with the Commission. Wisconsin law requires 2,000 valid signatures for nominees for president and vice president to be certified and placed on the ballot. The Green Party candidates filed a total of 3,966 signatures.

The Commission, a six-member board that includes three Democratic and three Republican commissioners, deadlocked 3-3 on whether the signatures were invalid, with the Democrats voting to strike the signatures and the Republicans approving the signatures.[1] The Republican commissioners noted during the hearing that Ms. Walker voluntarily notified the Commission of her recent move and that she sought guidance from the Commission on how to proceed. The Commission staff responded to Ms. Walker as follows:

If Ms. Walker has previously filed a declaration of candidacy [] with the Wisconsin Elections Commission, it can be amended to reflect the address change. Technically speaking, however, federal candidates are not required to list an address of their declaration of candidacy. So, if Ms. Walker chooses to list her address on her declaration of candidacy, she can include the most current one.[2]

On August 20, the Commission ultimately voted on a motion that 1) certified 1,789 signatures for the Green Party candidates and 2) stated that the Commission was deadlocked on the remaining 1,834 signatures that included Ms. Walker’s previous address. Based on this motion, the Commission staff notified the Green Party candidates that they were not certified and ordered that ballots be printed without the Green Party candidates appearing on the 2020 general election ballot.[3]

On September 3, 2020, two days after the Commission voted to confirm the presidential and vice presidential candidates that would appear on the ballot, the Green Party candidates filed a petition for leave to commence an original action[4] with the Wisconsin Supreme Court seeking to overturn the Commission’s actions.

Wisconsin Supreme Court Decision

In a 4-3 order issued on September 14, 2020, the Wisconsin Supreme Court upheld the Commission’s decision to exclude the Green Party candidates from appearing on the ballot. The per curiam majority opinion was not signed by any of the justices, but since Chief Justice Patience Roggensack and Justices Annette Ziegler and Rebecca Bradley wrote dissenting opinions, it is clear that Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Brian Hagedorn were in the majority.

The majority’s decision to “exercise [its] discretion to deny the petition for leave to commence an original action” turned on its determination that the Green Party waited too long to file its lawsuit.[5] According to the majority, “[a]lthough we do not render any decision on whether the respondents have proven that the doctrine of laches applies,” the Green Party candidates “delayed in seeking relief in a situation with very short deadlines,” and therefore it was “too late to grant petitioners any form of relief that would be feasible and that would not cause confusion and undue damage to Wisconsin electors.”[6] The majority’s order did not address whether the challenged signatures were lawful or whether the Commission properly excluded the Green Party candidates.

Dissenting Opinions

In dissenting opinions, Chief Justice Roggensack and Justices Ziegler and Rebecca Bradley rebuked the majority’s decision. Chief Justice Roggensack opined that the “people of Wisconsin have the right to know the acts of the Commission that took the right of ballot access away from candidates of a small independent party” which “followed all the requirements of Wisconsin law necessary for ballot access.”[7]

Justice Ziegler in her dissenting opinion criticized the Commission for failing to follow Wisconsin law and procedures. According to Justice Ziegler, under Wisconsin law, when a motion of the Commission deadlocks 3-3, the motion fails and no action should be taken.[8] On multiple votes, the three Democratic commissioners voted to exclude 1,824 signatures submitted by the Green Party candidates, while the three Republican commissioners voted to approve the signatures. Therefore, the 1,824 signatures should have been approved, as the Commission had no authority to remove the signatures absent “an affirmative vote of at least two-thirds of the members.”[9] Had the 1,824 signatures been included, Justice Ziegler continued, the Green Party candidates would have easily met the 2,000 signature threshold and been placed on the ballot. And “[n]ot only did the Green Party candidates have a right to appear on the ballot, but the Commission had a statutory obligation to place them on the ballot, which the Commission violated.”[10] The dissent further argued that the “Commission did not just fail the Green Party candidates . . . it failed the people of Wisconsin.”[11]

Finally, Justice Ziegler’s dissent took aim at the majority’s “too late” analysis, noting that the majority did not apply a legal analysis of the laches doctrine, which was argued as a defense by the Commission. According to the dissent, the reason the majority did not address laches is that the Commission would have been unable to meet the three elements of the defense needed to bar a claim under Wisconsin law: 1) a party unreasonably delays in bringing a claim; 2) a second party lacks knowledge that the first party would raise that claim; and 3) the second party is prejudiced by the delay.[12] Justice Ziegler’s opinion explained that, as to the first element, the Green Party filed a lawsuit with the Wisconsin Supreme Court two days after the Commission denied the presidential candidates access to the ballot.[13] As to the second element regarding the Commission’s knowledge of a potential lawsuit, the Green Party specifically announced it planned to file a lawsuit at the Commission hearing.[14] Additionally, during the public hearing, the three Republican commissioners explained they crafted the final motion in order to narrow the issues for a court when the Green Party files its lawsuit.[15] Finally, there was plenty of time to print and issue the ballots with the Green Party candidates well in advance of the election.[16]

In a third dissenting opinion, Justice Rebecca Bradley stated that in “dodging its responsibility to uphold the rule of law, the majority ratifies a grave threat to our republic, suppresses the votes of Wisconsin citizens, irreparably impairs the integrity of Wisconsin’s elections, and undermines the confidence of American citizens in the outcome of a presidential election.”[17]

 

Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.


[1] Hawkins v. Wisconsin Elections Commission, et al., 2020 WI 75 (Sept. 14, 2020).

[2] Hawkins, 2020 WI at ¶ 37.

[3] Id. at ¶ 2.

[4] Emergency Petition, Hawkins v. Wisconsin Elections Commission, et al., 393 Wis.2d 629 (2020), available at https://howiehawkins.us/wp-content/uploads/2020/09/Petition-1.pdf.

[5] Hawkins, 2020 WI at ¶ 5.

[6] Id.

[7] Id. at ¶ 14.

[8] Wis. Stat. § 5.05(1e) (“Any action by the commission … requires the affirmative vote of at least two-thirds of the members.”).

[9] Hawkins, 2020 WI at ¶ 40.  

[10] Id. ¶ 48.

[11] Id.

[12] Id. at ¶ 55.

[13] Id. at ¶ 58.

[14] Id. at ¶ 65.

[15] Id. at ¶ 41.

[16] Id. at ¶ 34 (“Both state and federal law allow for corrections to be made and dates to be adjusted when ballots are improper or the law is not followed . . . . The record before the court demonstrates that the errors can be corrected, yet our court stands silent.”).

[17] Id. at ¶ 17.