In a straightforward interpretation and application of the Wisconsin Statutes and procedural standards governing writs of mandamus, on April 9, 2021, the Wisconsin Supreme Court ruled 5-2 in State of Wis. Ex rel. Timothy Zignego v. Wisconsin Elections Commission, 2021 WI 32, that the Wisconsin Elections Commission (“WEC”) was not obligated by Wisconsin Statutes Section 6.50(3) to conduct a massive deactivation of the registrations of nearly 230,000 Wisconsin voters, as three Wisconsin voters had alleged. Writing for the majority, Justice Brian Hagedorn characterized the plaintiffs’ interpretation of the relevant statutes as “plainly incorrect,” adding that the rationale they presented to the Court to support their interpretation was so tortured that it “disregards nearly every foundational principle of statutory interpretation.”  Applying the clear language used in the statute at issue, and harmonizing it with other statutes governing Wisconsin’s elections administration, the Court easily found that the plaintiffs failed to establish that the WEC has a “positive and plain duty” under Section 6.50(3) to deactivate voter registrations.

The background of the action reaches back to October 2019, when the WEC sent notices to approximately 230,000 registered Wisconsin voters, informing them that the state had received information suggesting that the voters might have moved from the residence where they were registered to vote. The letter further informed the recipients that they must either confirm with the WEC that they had not moved or update the address where they are registered to vote. The WEC had earlier determined that over a two-year period following the mailing of the letters, it would conduct further investigation to determine whether the recipients actually had moved or that the information that they had moved was incorrect. Three registered voters were not satisfied with the WEC’s approach, however. They filed an administrative complaint with the WEC, and when the WEC dismissed the complaint as being untimely filed, they filed suit in the state circuit court in Ozaukee County, Wisconsin.  They asked the trial judge to issue either an injunction or a writ of mandamus ordering the WEC immediately to deactivate the registrations of all notice recipients who had not taken responsive action. The basis for the plaintiffs’ lawsuit and injunction motion was Wisconsin Statutes Section 6.50(3), which obligates “the municipal clerk or board of elections commissioners” to deactivate the registrations of voters who are notified that they might have changed their residential address and gives them 30 days to take remedial action. Plaintiffs asserted that the WEC falls within the statutory mandate because it is a “board of election commissioners.”

Doug Poland, then at a different law firm but now co-chair of Stafford Rosenbaum’s Election and Political Law Team, joined co-counsel from the Fair Elections Center in Washington, D.C., seeking to intervene on behalf of the League of Women Voters of Wisconsin, and to oppose the motion for an injunction or writ of mandamus. The circuit court denied intervention and granted the writ of mandamus, holding that the WEC had a plain and positive duty under Section 6.50(3) to deactivate the registrations of all voters who had not responded to the WEC’s October 2019 notice. Rather than appeal the denial of the LWVWI’s motion to intervene, Poland and his co-counsel filed a collateral action in federal court, along with a motion for preliminary injunction, seeking to prevent the WEC from acting in conformance with the writ of mandamus.

In the meantime, the WEC had filed an emergency appeal and a motion to stay the trial court’s mandamus order. Jeff Mandell, also co-chair of Stafford Rosenbaum’s Election and Political Law Team, then sought to intervene in the case at the Court of Appeals on behalf of the Service Employees International Union Wisconsin State Council. Although that motion to intervene also was denied, Mandell filed an amicus brief in the Court of Appeals tracing the statutory evolution of the provision now found in Section 6.50(3). Both Poland and Mandell later filed amicus briefs in the Wisconsin Supreme Court in support of the WEC’s position. Through the end of December and most of January 2020, the WEC’s stay motion remained pending, and the WEC deadlocked on whether to comply before the appeal was heard. The trial judge responded to this deadlock by holding the WEC itself and the individual commissioners who voted against complying with the writ in contempt.

In late-January 2020, the Court of Appeals stayed both the writ of mandamus and the contempt order, and the next month it issued an opinion reversing the circuit court’s ruling, dissolving the writ of mandamus, and clearing the WEC of contempt. State ex rel. Zignego v. Wisconsin Elections Commission, 2020 WI App 17, 391 Wis. 2d 441, 941 N.W.2d 284. The plaintiffs appealed to the Wisconsin Supreme Court, which agreed to hear the case. The Court started its opinion by framing the issue narrowly: “whether § 6.50(3) places a positive and plain duty on the Wisconsin Elections Commission … to do what the law requires.” The Court noted Wisconsin courts may only issue a writ of mandamus directing “a specific actor to take certain action … when the duty is positive and plain.”  2021 WI 32, ¶3. The Court then evaluated the text of the Section 6.50(3), noting that by its own express terms it applies only to “the municipal clerk or board of elections commissioners.”  Id., ¶4.  Both from the text of the statute itself, as well as the statutory framework regulating elections administration, the Court concluded that the plaintiffs’ argument that the statute applies to the WEC itself was “plainly incorrect,” and that the WEC therefore “has no statutory obligation, and therefore no positive and plain duty, to carry out the requirements of §6.50(3).”  Id. Consequently, the Court affirmed the Court of Appeals ruling vacating the circuit court’s writ of mandamus.

In addition to this holding, however, the Court made several noteworthy comments. First, addressing the WEC’s refusal to comply with the writ of mandamus (wrongly) issued by the circuit court, the Supreme Court “remind[ed] the Commission that waiting for an appellate court to grant a stay or reverse a circuit court order it disagrees with does not justify ignoring that order.”  Id. ¶5.  Although that comment might level unfair criticism at the WEC when viewed in light of procedural maneuvering at the time, including the defendants’ attempts to obtain a stay of the writ and the plaintiffs’ efforts to jump the case directly to the Supreme Court (and thereby freezing the Court of Appeals from deciding the emergency motion to stay in the meantime), the action it suggests the WEC should have taken would likely have been blocked anyway by the League of Women Voter’s federal court action and motion for preliminary injunction.

Second, the Supreme Court held that it need not reach a question as to the meaning and impact of language in Section 6.50(3) requiring deregistration of voters only upon the receipt of “reliable” information that the voters had moved.  Id., ¶12 n.7. Because the Court of Appeals not only reached but decided that issue, the Supreme Court withdrew “any language in the court of appeals decision deciding this issue.”  Id.

Third, the Supreme Court rejected the plaintiffs’ argument that because WEC previously had deactivated the registrations of voters to whom it had sent letters informing them they were suspected of having moved, that past practice bound them to do the same with the 2019 mailing. The Court commented that “even if those [previous] actions were unlawful, the remedy for alleged executive overreach is not a court order to continue acting unlawfully.”  Id., ¶32. In addressing the plaintiffs’ argument regarding the WEC’s actions of deactivating voter registrations in previous years, the Supreme Court held that it need not reach that issue, and consequently withdrew language from the Court of Appeals opinion concluding that the WEC’s earlier actions were unlawful. Id., ¶32 n.14.

Fourth, the Supreme Court rejected an argument first raised by an amicus supporting the plaintiffs, but not adopted by the plaintiffs until oral argument, that the WEC’s interpretation of Section 6.50(3) would put Wisconsin in violation of the Help America Vote Act of 2002 (“HAVA”).  The Court first noted that the argument sounded in federal preemption, but that no preemption argument had been raised.  It then dismissed the plaintiffs’ argument as “lack[ing] any sound basis,” holding that Wisconsin complies with HAVA because “HAVA provides that Wisconsin is to look to its own state law to ascertain how ineligible voters are removed from the statewide computerized list,” and the Court already had found that the WEC had complied with the “clear” Wisconsin law at issue. Id., ¶36.

One final point in the majority’s opinion is noteworthy, at least for those who follow election law in Wisconsin and especially the unique system of elections administration in the state.  A dissent argued that “the statutory duty of the [WEC] to create, maintain, and administer Wisconsin’s voter registration list means the [WEC] is responsible to ensure every law related to that list is carried out – whether the [WEC] is statutorily assigned the responsibility or not.”  Id., ¶39 n.17 (R.G. Bradley, J., dissenting). The majority found no merit in that interpretation of the WEC’s authority, observing that “[t]his would be a rather remarkable expansion of the [WEC’s] powers and responsibilities,” and that it “bears no resemblance to our election administration laws that give the [WEC] more limited duties.”  Id.

In sum, although the Wisconsin Supreme Court’s opinion in Zignego has been hailed as a victory for voting rights advocates (and it certainly is), the case is much more a product of the current Court’s approach to interpreting and applying Wisconsin’s statutes than it is a signal of where the current Court – or any of its constituent members – falls on the spectrum of political ideologies.

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