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Why Wisconsin judges are increasingly involved in elections [1]

['Jack Kelly', 'Wisconsin Watch', 'More Jack Kelly', 'Statehouse Reporter', '.Wp-Block-Co-Authors-Plus-Coauthors.Is-Layout-Flow', 'Class', 'Wp-Block-Co-Authors-Plus', 'Display Inline', '.Wp-Block-Co-Authors-Plus-Avatar', 'Where Img']

Date: 2024-01-29 17:00:00+00:00

Reading Time: 4 minutes

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Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team. Let’s get you prepared for the week.

Elections used to be about winning the hearts and minds of voters. These days, they’re increasingly about winning over judges.

Courts have become heavily involved in the administration of Wisconsin elections, something that will continue to play out in a Dane County courtroom on Tuesday.

In 2022, there were at least 13 lawsuits filed related to election administration, according to a tally from the University of Wisconsin Law School’s State Democracy Research Initiative. Some of that litigation resulted in changes to the way elections are conducted in Wisconsin, including outlawing the use of unstaffed absentee ballot drop boxes and barring election clerks from filling in missing information on absentee ballot envelopes.

In other recent instances, judges have allowed Meagan Wolfe, the state’s top election official, to keep her job, said the use of a mobile early voting van in Racine was illegal, decided and then two years later tossed out the boundaries of legislative districts and been asked to overturn the results of a presidential election.

Questions of election administration landing in court isn’t a new phenomenon, said Derek Clinger, a senior staff attorney with the University of Wisconsin Law School’s State Democracy Research Initiative. But there’s been an uptick in such cases since the 2000 presidential election, when a razor-thin margin in Florida “brought attention to the actual defects in how we run our elections.” The U.S. Supreme Court in Bush v. Gore halted a Florida recount because of time constraints, effectively awarding the presidency to George W. Bush.

One recent study, published in the Election Law Journal, found election litigation rates nationwide have almost tripled since the 2000 presidential election.

Clinger pointed to research from two of his colleagues that shows that, while election litigation nationwide hit a peak in 2020, with 543 cases, it also remained high in 2022, when there were 407 lawsuits. In other words, a flurry of election year lawsuits might be the new normal.

Recent litigation has stemmed partly from legitimate bugs in election administration, but also efforts to gain a partisan electoral advantage by changing voting rules, Clinger said. Frivolous election-related lawsuits also have become more common, especially after the 2020 election.

Staunch partisanship has hampered lawmakers’ ability to find solutions for legitimate issues plaguing states’ election administration systems, Clinger said.

“Anywhere you’re going to have divided government, like Wisconsin, you’re going to have disagreements between the branches over what the election rules should be,” he said.

In the aftermath of the 2020 presidential election, Democratic Gov. Tony Evers vetoed, at least in part, at least seven bills that would affect election rules. As a result, Republicans have sought to enact certain changes by amending Wisconsin’s constitution.

The Wisconsin Constitution, shown on display in the Capitol rotunda in Madison, has been amended nearly 150 times since the state’s founding in 1848. Republicans want to enshrine additional conservative policies in the founding document. (Coburn Dukehart / Wisconsin Watch)

The election administration litigation marathon continued earlier this month, when a Dane County judge ruled that the definition of address — for the purposes of a witness signature on an absentee ballot envelope — is “a place where a person or organization may be communicated with.” That means that as long as clerks can discern where the witness who signs an envelope lives, they can count the ballot.

Judge Ryan Nilsestuen, Evers’ former chief legal counsel, will hear arguments Tuesday on how to proceed in the lawsuit. Rise, Inc. and its attorneys from Elias Law Group, a Democratic-aligned election law firm, will ask the judge to require the Wisconsin Elections Commission to notify clerks across the state of the ruling and the court’s definition of “address,” according to a proposed order filed with the court.

Nilsestuen noted in his decision that the ruling was necessary because state law does not define “address” in this context, something lawmakers could remedy. The Legislature has approved a bill that would specify the elements of an address, among other things. Evers’ office did not respond to questions about whether he’ll sign the legislation.

Dane County Clerk Scott McDonell has expressed concerns that requiring specific information on the certificate is a ploy to allow more ballots to be thrown out.

McDonell told Wisconsin Watch last year that the point of the witness address is to be able to track down a witness and verify that the person did, in fact, witness someone sign a ballot certificate, “not to play a Mickey Mouse game of let’s see if we can kick this ballot out because we think it’s probably a Democratic ballot.”

Elias Law Group has also filed a federal lawsuit challenging the witness signature requirement. In that case, the plaintiffs argue requiring a witness signature violates a portion of the Voting Rights Act that prohibits requiring “any test or device” to vote. It cites how, after the Civil War, southern states used witness requirements to disenfranchise Black voters.

What we’re watching this week

Tuesday

The Senate Committee on Judiciary and Public Safety will hold a public hearing at 10 a.m. in Capitol Room 411S on SB11, which would expand alcohol and drug treatment programs to also treat Wisconsinites with any mental illness.

The Assembly Committee on Campaigns and Elections will hold a public hearing at 10 a.m. in Capitol Room 300NE on a constitutional amendment that would ban ranked-choice voting in the state. The committee will also vote on AB664, which would require political advertisements to state whether they use AI-generated material. Read our previous coverage here and here.

The Assembly Committee on the Judiciary will hold a public hearing at noon in the Capitol North Hearing Room on a constitutional amendment that would prohibit discrimination or preference in public hiring based on race, gender or other characteristics. Read our previous coverage on who’s behind Robin Vos’ anti-DEI crusade.

Gov. Tony Evers speaks at a WisPolitics luncheon at The Madison Club at noon.

A Dane County judge will hear arguments at 1 p.m. on how to proceed in a case about what constitutes an address for the purposes of an absentee ballot certificate. Dane County courthouse, 8th Floor, Courtroom 8C.

Wednesday

The Senate Committee on Universities and Revenue will hold a public hearing at 9:30 a.m. in Capitol Room 300SE on a constitutional amendment that would give the Legislature, not the governor, decision-making power over how the state spends certain federal funds. Read our previous coverage on GOP efforts to amend the constitution.

The Assembly Committee on Local Government will vote on AB957, which would block local governments from regulating CAFOs. Read our previous coverage here.

Thursday

The Senate Committee on Government Operations will hold a public hearing at 10 a.m. in Capitol Room 201SE on AB476/SB465 that would require vacancies in the offices of secretary of state, treasurer, attorney general and state superintendent of public instruction be filled by a special election. The governor currently appoints replacements.

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If we send you a request to change or remove Wisconsin Watch content from your site, you must agree to do so immediately. *** Also, the code below will NOT copy the featured image on the page. You are welcome to download the main image as a separate element for publication with this story. *** You are welcome to republish our articles forusing the following ground rules. For questions regarding republishing rules please contact Jeff Bauer, digital editor and producer, at [email protected] Why Wisconsin judges are increasingly involved in elections <h1>Why Wisconsin judges are increasingly involved in elections</h1> by Jack Kelly / Wisconsin Watch, Wisconsin Watch January 29, 2024 Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team. Let’s get you prepared for the week. Elections used to be about winning the hearts and minds of voters. These days, they’re increasingly about winning over judges. Courts have become heavily involved in the administration of Wisconsin elections, something that will continue to play out in a Dane County courtroom on Tuesday. In 2022, there were at least 13 lawsuits filed related to election administration, according to a <a href="https://statedemocracy.law.wisc.edu/research/2022/election-litigation-research-data-october-2022/">tally</a> from the University of Wisconsin Law School’s State Democracy Research Initiative. Some of that litigation resulted in changes to the way elections are conducted in Wisconsin, including <a href="https://captimes.com/news/government/wisconsin-supreme-court-absentee-ballot-drop-boxes-illegal/article_f00e3c49-ae0b-5e56-ac11-0a51498a78a2.html">outlawing</a> the use of unstaffed absentee ballot drop boxes and <a href="https://apnews.com/article/2022-midterm-elections-wisconsin-lawsuits-voting-absentee-22ce95ea6172fa6e9a085dd5ca5fdacf">barring</a> election clerks from filling in missing information on absentee ballot envelopes. In other recent instances, judges have allowed Meagan Wolfe, the state’s top election official, to <a href="https://wisconsinwatch.org/2024/01/wisconsin-elections-meagan-wolfe-judge-republican-ruling/">keep her job</a>, said the use of a mobile <a href="https://wisconsinwatch.org/2024/01/wisconsin-absentee-voting-van-republican-racine-judge/">early voting van</a> in Racine was illegal, decided and then two years later tossed out the <a href="https://captimes.com/news/government/wisconsin-supreme-court-adopts-gop-drawn-legislative-maps/article_fbfefa90-82dd-588b-8f76-981d6421d793.html">boundaries</a> of legislative districts and been asked to <a href="https://apnews.com/article/wisonsin-supreme-court-trump-lawsuit-e6b3aa222b4141c0844d541c4b041964">overturn</a> the results of a presidential election. Questions of election administration landing in court isn’t a new phenomenon, said Derek Clinger, a senior staff attorney with the University of Wisconsin Law School’s State Democracy Research Initiative. But there’s been an uptick in such cases since the 2000 presidential election, when a razor-thin margin in Florida “brought attention to the actual defects in how we run our elections.” The U.S. Supreme Court in <a href="https://supreme.justia.com/cases/federal/us/531/98/">Bush v. Gore</a> halted a Florida recount because of time constraints, effectively awarding the presidency to George W. Bush. One recent <a href="https://www.liebertpub.com/doi/epdf/10.1089/elj.2021.0050">study</a>, published in the Election Law Journal, found election litigation rates nationwide have almost tripled since the 2000 presidential election. Clinger pointed to <a href="https://statedemocracy.law.wisc.edu/featured/2023/election-litigation-data-2018-2020-2022/">research</a> from two of his colleagues that shows that, while election litigation nationwide hit a peak in 2020, with 543 cases, it also remained high in 2022, when there were 407 lawsuits. In other words, a flurry of election year lawsuits might be the new normal. Recent litigation has stemmed partly from legitimate bugs in election administration, but also efforts to gain a partisan electoral advantage by changing voting rules, Clinger said. Frivolous election-related lawsuits also have become more common, especially after the 2020 election. Staunch partisanship has hampered lawmakers’ ability to find solutions for legitimate issues plaguing states’ election administration systems, Clinger said. “Anywhere you're going to have divided government, like Wisconsin, you're going to have disagreements between the branches over what the election rules should be,” he said. In the aftermath of the 2020 presidential election, Democratic Gov. Tony Evers vetoed, at least in part, <a href="https://captimes.com/news/government/wisconsin-republicans-race-to-reinvent-state-s-election-system-again/article_0c013800-2232-5095-a504-60c2f8d15daf.html">at least seven bills</a> that would affect election rules. As a result, Republicans have sought to enact certain changes by <a href="https://wisconsinwatch.org/2023/11/wisconsin-republican-constitution-amendments-conservative-agenda/">amending</a> Wisconsin’s constitution. <figure class="wp-block-image size-large"><img src="https://wisconsinwatch.org/wp-content/uploads/2023/10/constitutional-amendment1-782x521.jpeg" alt="The Wisconsin Constitution on display in the Capitol" class="wp-image-1283343" /><figcaption class="wp-element-caption">The Wisconsin Constitution, shown on display in the Capitol rotunda in Madison, has been amended nearly 150 times since the state’s founding in 1848. Republicans want to enshrine additional conservative policies in the founding document. (Coburn Dukehart / Wisconsin Watch)</figcaption></figure> The election administration litigation marathon continued earlier this month, when a Dane County judge <a href="https://www.democracydocket.com/wp-content/uploads/2022/09/Order-Jan.-2-2023.pdf">ruled</a> that the definition of address — for the purposes of a witness signature on an absentee ballot envelope — is “a place where a person or organization may be communicated with.” That means that as long as clerks can discern where the witness who signs an envelope lives, they can count the ballot. Judge Ryan Nilsestuen, Evers’ former chief legal counsel, will hear arguments <a href="https://wcca.wicourts.gov/caseDetail.html?caseNo=2022CV002446&countyNo=13&index=0">Tuesday</a> on how to proceed in the lawsuit. Rise, Inc. and its attorneys from Elias Law Group, a Democratic-aligned election law firm, will ask the judge to require the Wisconsin Elections Commission to notify clerks across the state of the ruling and the court’s definition of “address,” according to a <a href="https://www.documentcloud.org/documents/24377834-rise-v-wec-proposed-order">proposed order</a> filed with the court. Nilsestuen noted in his <a href="https://www.democracydocket.com/wp-content/uploads/2022/09/Order-Jan.-2-2023.pdf">decision</a> that the ruling was necessary because state law does not define “address” in this context, something lawmakers could remedy. The Legislature has approved a <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ab570">bill</a> that would specify the elements of an address, among other things. Evers’ office did not respond to questions about whether he’ll sign the legislation. Dane County Clerk Scott McDonell has <a href="https://wisconsinwatch.org/2023/11/wisconsin-election-voters-absentee-ballots-assembly-lawmakers/">expressed concerns</a> that requiring specific information on the certificate is a ploy to allow more ballots to be thrown out. McDonell told Wisconsin Watch last year that the point of the witness address is to be able to track down a witness and verify that the person did, in fact, witness someone sign a ballot certificate, “not to play a Mickey Mouse game of let’s see if we can kick this ballot out because we think it’s probably a Democratic ballot.” Elias Law Group has also filed <a href="https://www.democracydocket.com/wp-content/uploads/2023/10/1-2023-10-02-Liebert-v.-WEC-Complaint-FILED38.pdf">a federal lawsuit</a> challenging the witness signature requirement. In that case, the plaintiffs argue requiring a witness signature violates a <a href="https://uscode.house.gov/view.xhtml?req=(title:52%20section:10501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section10501)&f=treesort&num=0&edition=prelim">portion</a> of the Voting Rights Act that prohibits requiring “any test or device” to vote. It cites how, after the Civil War, southern states used witness requirements to disenfranchise Black voters. <h2 class="wp-block-heading">What we’re watching this week</h2> <h4 class="wp-block-heading">Tuesday</h4> The Senate Committee on Judiciary and Public Safety will hold a <a href="https://docs.legis.wisconsin.gov/raw/cid/1773275">public hearing</a> at 10 a.m. in Capitol Room 411S on <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/sb11">SB11</a>, which would expand alcohol and drug treatment programs to also treat Wisconsinites with any mental illness. The Assembly Committee on Campaigns and Elections will hold a <a href="https://docs.legis.wisconsin.gov/raw/cid/1773583">public hearing</a> at 10 a.m. in Capitol Room 300NE on <a href="https://docs.legis.wisconsin.gov/2023/proposals/ajr101#:~:text=To%20create%20section%207%20of,partisan%20office%20(first%20consideration).">a constitutional amendment</a> that would ban ranked-choice voting in the state. The committee will also vote on <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ab664.pdf">AB664</a>, which would require political advertisements to state whether they use AI-generated material. Read our previous coverage <a href="https://wisconsinwatch.org/2024/01/wisconsin-republican-voting-senate-assembly-legislation-bill-watch/">here</a> and <a href="https://wisconsinwatch.org/2023/07/ai-elections-wisconsin-artificial-intelligence/">here.</a> The Assembly Committee on the Judiciary will hold a <a href="https://docs.legis.wisconsin.gov/raw/cid/1773525">public hearing</a> at noon in the Capitol North Hearing Room on <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ajr109.pdf">a constitutional amendment</a> that would prohibit discrimination or preference in public hiring based on race, gender or other characteristics. Read our <a href="https://wisconsinwatch.org/2024/01/wisconsin-robin-vos-diversity-equity-inclusion-assembly/">previous coverage</a> on who’s behind Robin Vos’ anti-DEI crusade. Gov. Tony Evers speaks at a WisPolitics luncheon at The Madison Club at noon. A Dane County judge will <a href="https://wcca.wicourts.gov/caseDetail.html?caseNo=2022CV002446&countyNo=13">hear arguments</a> at 1 p.m. on how to proceed in a case about what constitutes an address for the purposes of an absentee ballot certificate. Dane County courthouse, 8th Floor, Courtroom 8C. <h4 class="wp-block-heading">Wednesday</h4> The Senate Committee on Universities and Revenue will hold a <a href="https://docs.legis.wisconsin.gov/raw/cid/1773498">public hearing</a> at 9:30 a.m. in Capitol Room 300SE on a <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ajr6">constitutional amendment</a> that would give the Legislature, not the governor, decision-making power over how the state spends certain federal funds. Read our <a href="https://wisconsinwatch.org/2023/11/wisconsin-republican-constitution-amendments-conservative-agenda/">previous coverage</a> on GOP efforts to amend the constitution. The Assembly Committee on Local Government will vote on <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ab957">AB957</a>, which would block local governments from regulating CAFOs. Read our previous coverage <a href="https://wisconsinwatch.org/2024/01/wisconsin-agriculture-cafo-republican-legislation-animal-farms/">here</a>. <h4 class="wp-block-heading">Thursday</h4> The Senate Committee on Government Operations will hold a <a href="https://docs.legis.wisconsin.gov/raw/cid/1773207">public hearing</a> at 10 a.m. in Capitol Room 201SE on <a href="https://docs.legis.wisconsin.gov/2023/related/proposals/ab476">AB476/SB465</a> that would require vacancies in the offices of secretary of state, treasurer, attorney general and state superintendent of public instruction be filled by a special election. The governor currently appoints replacements. This <a target="_blank" href="https://wisconsinwatch.org/2024/01/wisconsin-elections-judges-politics-government-forward/">article</a> first appeared on <a target="_blank" href="https://wisconsinwatch.org">Wisconsin Watch</a> and is republished here under a Creative Commons license.<img src="https://i0.wp.com/wisconsinwatch.org/wp-content/uploads/2021/02/cropped-WCIJ_IconOnly_FullColor_RGB-1.png?fit=150%2C150&quality=100&ssl=1" style="width:1em;height:1em;margin-left:10px;"><img id="republication-tracker-tool-source" src="https://wisconsinwatch.org/?republication-pixel=true&post=1286699&ga4=G-D2S69Y9TDB" style="width:1px;height:1px;"> Copy to Clipboard

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