Wisconsin Statute Section 6.87(4)(b)1 provides that an absentee ballot “shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”[1] A 2022 Wisconsin Supreme Court decision, Teigen v. Wisconsin Elections Commission, had held that this statute prohibited dropping absentee ballots in a secure ballot drop box.[2]

Nevertheless, several groups challenged the prohibition on returning absentee ballots to secure drop boxes.[3] In Priorities USA v. Wisconsin Election Commission, the Wisconsin Supreme Court agreed to decide “[w]hether to overrule the Court’s holding in Teigen v. Wisconsin Elections Commission, that Wis. Stat. § 6.87 precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks.”[4]

The court in Priorities USA overruled Teigen because it was “unsound in principle,” and it held that “Wis. Stat. § 6.87(4)(b)1 allows the use of ballot drop boxes.”[5] The Priorities USA majority did not “force or require” drop box usage but “merely acknowledge[d] . . . that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion.”[6]

Justice Ann Walsh Bradley wrote the majority opinion, which Justices Rebecca Frank Dallet, Jill Karofsky, and Janet Protasiewicz joined.[7] The majority began with the language of the relevant election statutes, analyzed Teigen, conducted its own statutory interpretation, and then evaluated whether stare decisis required upholding Teigen.[8]

The majority began by noting that it evaluates statutory language under its ordinary meaning in context.[9] It quoted the statute and focused its analysis on whether ballot drop boxes satisfied its “delivered-in-person” requirement.[10]

The court then explained its view of Teigen’s statutory analysis. In Teigen, the majority held that the statute banned drop boxes because it provides that “absentee ballot[s] must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk’s office or a designated alternate site.”[11] Teigen’s majority reasoned that an “inanimate object, such as a ballot drop box, cannot be the municipal clerk.”[12] And it held that surrounding statutes supported its holding: First, Section 6.84[13] prescribes a legislative policy that absentee voting is a privilege to be carefully regulated.[14] Second, Section 6.855[15] governs alternative absentee ballot sites, and because drop boxes do not satisfy the statutory requirements for an alternative site, they were “a novel creation of executive branch officials, not the legislature.”[16]

After describing the Teigen court’s view, the Priorities USA majority conducted its “independent analysis” of the statute’s text.[17] It first found a difference in how Wisconsin statutes treat the “municipal clerk” and the “municipal clerk’s office.”[18] It analyzed the different terms and concluded, “the ‘municipal clerk’ is a person, while the ‘office of the municipal clerk’ is a location.”[19] Because the statute requires absentee ballots to be returned “to the municipal clerk,”[20] the majority explained, the legislature must not have “wanted to require delivery of an absentee ballot to a specific location.”[21] Furthermore, the majority noted that a bill that would have revised the statute to require delivery specifically to the office of the municipal clerk had failed to become law.[22] Because the statute mandated return “to the municipal clerk” and not the clerk’s office, the majority said, “the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person—the ‘municipal clerk.’”[23]

The majority then analyzed whether “delivery to a drop box constitutes delivery ‘to the municipal clerk’ within the meaning of Wis. Stat. § 6.87(4)(b)1.”[24] It concluded it did for a few reasons.

First, the municipal clerk sets up, maintains, secures, and empties the drop box.[25] Municipal clerks generally have the discretion to run elections as they see fit.[26] This discretion permits delivery “to a location the municipal clerk . . . designates.”[27] If a municipal clerk designates delivery to a drop box, then that is within their discretion.

Second, the Teigen majority’s analysis of other statutes did not contradict this view.[28] Teigen’s use of Section 6.855 was “of little use to the question presented” because “the statute simply does not apply to drop boxes.”[29] “The fact that the legislature ‘enacted a detailed statutory construct for alternate sites’ while not doing the same for drop boxes has nothing to say about the legality of drop boxes.”[30] And the majority held that Teigen had overemphasized Section 6.84(1) because it does not “provide[] any rule of interpretation applying to the statutes that follow.”[31] If the legislature had wanted to impose a rule of interpretation for the ballot delivery statute, it could have imposed one as it does elsewhere.[32] But the “legislature did nothing of the sort with regard to absentee balloting, and it would be error to read in such a restriction where none is present.”[33]

The majority concluded that “the Teigen court incorrectly interpreted Wis. Stat. § 6.87(4)(b)1,” and that the statute rather “allows the use of ballot drop boxes.”[34] It turned to whether stare decisis counseled overturning Teigen. The court explained that stare decisis is “fundamental to the rule of law”[35] and that ignoring it requires “special justification.”[36] But it maintained that “obstinately refusing to admit errors”[37] inflicts “more damage to the rule of law.”[38] It explained that caselaw counsels “[m]ere disagreement with the Teigen court’s rationale is insufficient to overturn it—something more is required.”[39]

That additional reason was the Teigen majority’s “misinterpretation” of the absentee ballot statute’s legislative policy section and the resultant “‘skeptical’ gloss with which the court examined § 6.87(4)(b)1.”[40] The Teigen court had erroneously interpreted the absentee ballot statute’s legislative policy section “as a principle of statutory interpretation.”[41] That error, the majority warned, “could have consequences for other election procedures.”[42] The majority accused the Teigen court of allowing “policy concerns to alter the lens through which it viewed the statutory language.”[43] And it said that error had “permeated its analysis to such a degree that its analysis was not merely wrong, but was unsound in principle.”[44]

Even more, the “general principle that ‘stare decisis concerns are paramount where a court has authoritatively interpreted a statute because the legislature remains free to alter its construction’” did not apply because “Teigen has neither fostered reliance nor created a settled body of law.”[45] “Accordingly,” the majority overruled Teigen.[46]

Justice Rebecca Grassl Bradley authored a dissent joined by Chief Justice Annette Kingsland Ziegler and Justice Brian Hagedorn. She argued that the majority “forsakes the rule of law in an attempt to advance its political agenda.”[47] She first focused on the majority’s stare decisis analysis. She reiterated the importance of stare decisis, calling it a “foundational principle” that promotes “stability” and requires “sufficient justification” to abandon.[48] But when “judges instead indulge their preferences, every case is on the table as new judges take the bench, displacing the rule of law with the whim of judges.”[49]

She argued the majority lacked sufficient justification to overturn Teigen but that it nevertheless “decree[d] the decision ‘unsound in principle,’ emptying the phrase of any meaning and making it merely a mechanism to tip the scales of justice toward their preferred outcomes.”[50] They did so, she argued, by wrongly claiming reliance interests were an underlying principle of statutory stare decisis.[51] This “perver[sion] [of] the rule of law” “marks the ‘death of statutory stare decisis’ in Wisconsin.”[52] “Going forward, whether decisions that interpreted statutes receive extra stare decisis protection will depend solely on the will of four and the extent to which respecting or discarding the doctrine favors their preferred outcome.”[53]

The dissent argued that stare decisis, properly applied, counsels that “when a prior decision interpreted the law ‘within the range of permissible interpretations,’ [then] the decision should generally stand.”[54] And Teigen was not only a permissible interpretation, she said; it was “the best . . . interpretation of” the statute.[55] She argued the majority overemphasized Teigen’s skeptical view of absentee voting.[56] And they misunderstood the absentee ballot statute’s role in statutory interpretation. “While statutory policy statements cannot be used to contravene a statute’s clear import, they may be used to inform the meaning of a statute’s text.”[57] The majority’s assertion to the contrary, she said, “is baseless.”[58]

Teigen’s interpretation was the best, the dissent argued, because the statute requires “person-to-person transmission of the ballot,” which “obviously precludes the use of unattended drop boxes.”[59] The majority’s assertion that Teigen “conflated the phrases ‘to the municipal clerk’ and ‘to the municipal clerk’s office’” is just a “straw man to attack Teigen.”[60] Instead, the majority “dismisses” or “ignores” the statutes Teigen analyzed “without ever grappling with the actual statutory text.”[61] All that does, the dissent argued, is “assume[] the majority’s conclusion rather than prove[] it.”[62]

The majority’s analysis, said the dissent, has “no limiting principle” and is “boundless by design” because its clerk-discretion argument “legitimize[s] any method of getting absentee ballots to a municipal clerk that the clerk may choose.”[63] “The majority would have us believe that buried within four innocuous words, ‘to the municipal clerk,’ is a delegation of vast power to municipal clerks to create an absentee voting regime unlike anything resembling the law. That is not how any reasonable reader—much less a judge—reads statutes.”[64]

Justice Bradley concluded that the majority opinion “does not deserve the title” of “opinion of a court” because the “only thing that has changed since Teigen is the court’s membership.”[65] Rather, the majority’s decision “will only fuel the fires of suspicion” that surround election legitimacy.[66]

Priorities USA v. Wisconsin Election Commission highlights the sharp swings in substantive law—including election law—that can happen because of state judicial elections. The decision expands voting access by overturning a recent decision that curtailed it. Each side accused the other of policy-driven motivations.[67] But the majority professed, “[i]t is not up to this court to ‘regulate’ absentee voting,” but that it must instead give effect to the legislature’s choice of words—no matter the “[i]ntense partisan politics [that] saturate our nation.”[68]

 

[1] Wis. Stat. § 6.87(4)(b)1 (2018).

[2] 976 N.W.2d 519 (Wis. 2022).

[3] See Priorities USA v. Wis. Elections Comm’n, 8 N.W.3d 429, 431 (Wis. 2024).

[4] Id. (internal citations omitted).

[5] Id. at 432.

[6] Id.

[7] Id. at 431.

[8] Id. at 433.

[9] Id. (“We give statutory language its ‘common, ordinary, and accepted meaning’ . . . 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.’”) (quoting Sw. Airlines Co. v. DOR, 960 N.W.2d 384, 389 (Wis. 2021)).

[10] Id.

[11] Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519, 525 (Wis. 2022).

[12] Id. at 539.

[13] Wis. Stat. § 6.84(1) (2024) (“The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse . . . .”).

[14] Priorities USA, 8 N.W.3d at 434 (“The Teigen majority took this to mean that it must strictly construe § 6.87’s requirements for absentee voting with a skeptical eye, resulting in a prohibition against the use of drop boxes.”).

[15] Wis. Stat. § 6.855 (2024).

[16] Teigen, 976 N.W.2d at 540.

[17] Priorities USA, 8 N.W.3d at 434.

[18] Id. at 434–35.

[19] Id. at 435 (citing Wis. Stat. §§ 5.81(3) (office of the municipal clerk), 6.32(2) (appear at the clerk’s office), 6.855(2) (office of the municipal clerk), 12.035(3)(d) (office of the municipal clerk), 5.02(10) (municipal clerk)).

[20] Wis. Stat. § 6.87(b)1.

[21] Priorities USA, 8 N.W.3d at 435.

[22] Id. (“It even tried to do so. In 2021, the legislature attempted to pass a revision to the language of [the statute] . . . Namely, the legislature voted on language requiring return of an absentee ballot ‘to the office of the municipal clerk issuing the ballot or ballots.’ However, such language was vetoed by the Governor and accordingly never became law.”) (quoting 2021 S.B. 203, § 3).

[23] Id.

[24] Id.

[25] Id. at 436 (“We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk’s office.”).

[26] Id. (citing Zignego v. Wis. Elections Comm’n, 957 N.W.2d 208, 212 (Wis. 2021); Wis. Stat. § 7.15(1)); id. (“Reading ‘to the municipal clerk’ to reference a person rather than a location entrusts some discretion to municipal clerks in how best to conduct elections in their respective jurisdictions.”).

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 436–37 (quoting Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519, 540 (Wis. 2022)).

[31] Id. at 437.

[32] Id. (citing as an example Wis. Stat. § 19.81(4) (2024)).

[33] Id. (quoting Dawson v. Town of Jackson, 801 N.W.2d 316, 325 (Wis. 2011)) (“We decline to read into the statute words the legislature did not see fit to write.”).

[34] Id.

[35] Johnson Controls, Inc. v. Emps. Ins. of Wausau, 665 N.W.2d 257, 285 (Wis. 2003).

[36] Schultz v. Natwick, 653 N.W.2d 266, 275 (Wis. 2002) (internal quotation omitted).

[37] Johnson Controls, 665 N.W.2d at 288.

[38] Id.

[39] Priorities USA, 8 N.W.3d at 438 (citing Johnson Controls, 665 N.W.2d at 285).

[40] Id. (quoting Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519, 538 (Wis. 2022)).

[41] Id.

[42] Id.

[43] Id. at 439.

[44] Id. at 440.

[45] Id. (quoting Progressive N. Ins. Co. v. Romanshek, 697 N.W.2d 417, 430 (Wis. 2005)).

[46] Id.

[47] Id. (Bradley, J., dissenting).

[48] Id. at 441, 442 (quoting Johnson Controls, Inc. v. Emps. Ins. of Wausau, 665 N.W.2d 257, 285 (Wis. 2003)).

[49] Id. at 441.

[50] Id. at 442.

[51] Id. at 443 (“The majority does not cite a single case suggesting the protection of reliance interests is an ‘underlying purpose’ of according stare decisis additional weight in statutory interpretation cases.”).

[52] Id.

[53] Id.

[54] Id. (quoting Gamble v. United States, 587 U.S. 678, 721 (2019) (Thomas, J., concurring)).

[55] Id. at 444.

[56] Id. at 445 (“That’s a stretch. The word ‘skeptical’ appears once in the entire opinion—in a header no less—and the term is merely shorthand for the legislative policy statement in § 6.84(1).”).

[57] Id.

[58] Id.

[59] Id. at 446.

[60] Id. at 448.

[61] Id. at 448–49.

[62] Id. at 449.

[63] Id. (“An unattended cardboard box on the clerk’s driveway? An unsecured sack sitting outside the local library or on a college campus? Door-to-door retrieval from voters’ homes or dorm rooms? Under the majority’s logic, because the statute doesn’t expressly forbid such methods of ballot delivery, they are perfectly lawful.”).

[64] Id. at 450.

[65] Id.

[66] Id. at 451.

[67] Id. at 439 (“[T]he Teigen court allowed policy concerns to alter the lens through which it viewed the statutory language . . . .”); id. at 451 (“The majority disagrees with the decision [in Teigen] as a matter of policy and politics, not law.”).

[68] Id. at 439, 451.

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