On February 18, 2025, in a 4-3 vote, the Wisconsin Supreme Court ruled that Kenneth Brown, a voter who raised a number of claims challenging the Racine City Clerk’s use of 22 alternate absentee ballot sites to facilitate in-person absentee voting for the August 2022 primary election, lacked standing to seek judicial review of the Wisconsin Elections Commission’s decision dismissing his complaint. In Brown v. Wisconsin Elections Commission, 2025 WI 5, the Court squarely addressed what it means to be “aggrieved by an order” from WEC under Wis. Stat. § 5.06(8), and thus permitted to seek judicial review.
Within days of the August 2022 primary election, Brown filed a complaint with WEC against the Racine City Clerk under Wis. Stat. § 5.06(1). Brown alleged the City’s use of alternate absentee ballot sites, including a mobile election unit, was unlawful. After investigating the complaint, WEC determined that Brown failed to establish probable cause of a legal violation sufficient to warrant further proceedings and dismissed the complaint. Brown appealed WEC’s no-probable-cause decision to the Racine County circuit court. Several parties intervened. The circuit court concluded that Brown had standing to appeal the decision and ruled in his favor on several claims related to the City’s selection of alternate absentee ballot sites under Wis. Stat. § 6.855.
The Supreme Court granted bypass (skipping over the court of appeals) and held oral argument on September 10, 2024, during which the parties argued about Brown’s standing (or lack thereof) to appeal WEC’s no-probable-cause decision, as well as the underlying merits of Brown’s complaint to WEC about the City Clerk’s selection of certain alternate absentee ballot sites and the legality of a mobile election unit.
A majority of the Court held that Brown did not have standing to appeal WEC’s no-probable-cause decision because he was not “aggrieved by an order” from WEC within the meaning of Wis. Stat. § 5.06(8). After analyzing the statutory language, the Court concluded that the phrase “aggrieved by an order” means that an individual faces actual or threatened injury to a legally recognized interest—in essence, that the phrase encompasses the “well-established” two-step test for standing used in other statutes. Brown, 2025 WI 5, ¶¶4, 15-18, 20-25. As for the first step—actual or threatened injury—the Court concluded that just because a complainant receives an adverse decision from WEC and is the “losing party” does not mean the complainant has been injured. Id., ¶¶20-24. Rather, to be “aggrieved” by a WEC decision, a complainant must allege that they are injured by the election practice that their WEC complaint challenged and which WEC refused to correct—here, the Racine City Clerk’s selection of certain alternate absentee ballot sites and use of a mobile election unit. Id. The Court emphasized that complainants must allege a particularized injury from the challenged election practice and that simply alleging a generalized disagreement with an election practice is insufficient to confer standing. Id., ¶16. Applying that standard, the Court noted that Brown did not allege the City Clerk’s election practices personally affected him in any manner; for example, he did not allege that the practices affected his ability to vote. Id., ¶¶16-17. Instead, Brown only alleged that the City Clerk had violated the law. Id., ¶16. Therefore, when WEC dismissed his complaint, Brown “remain[ed] in the same uninjured position” as before and was not “aggrieved” by WEC’s no-probable-cause decision. Id., ¶23. At bottom, the Court concluded that Brown “fail[ed] at the first step of the standing inquiry—he d[id] not show that he [] personally suffered (or will suffer) an injury as a result of WEC’s decision.” Id., ¶16.
Because the majority concluded that Brown lacked standing to appeal WEC’s decision in the first instance, it did not address the underlying merits of Brown’s claims about the City’s use of certain alternate absentee ballot sites for the 2022 primary election and the legality of mobile election units. But the Court will likely again face these issues at some point in the near future. Municipalities’ expanded use of alternate absentee ballot sites, including mobile election units, will likely recur in future elections and continue to garner some of the same criticism lobbed by Brown. Assuming a complainant who can allege a personal injury from such election practices challenges their use, these issues will inevitably wind back up in front of the Court.
The opinion garnered two dissents—one by Chief Justice Annette Kingsland Ziegler and one by Justice Rebecca Grassl Bradley, which Chief Justice Ziegler and Justice Brian Hagedorn joined in part. Justice Rebecca Grassl Bradley’s dissent rejected the majority’s reading of Wis. Stat. § 5.06 and voiced concern that, under the majority’s statutory interpretation, Wisconsinites’ right of access to the courts in election law matters was effectively “gutted” and that WEC is now “[a]n unreviewable Supreme Court of Election Law.” Id., ¶31. That almost certainly overstates the impact of the Brown decision, as only certain people and groups who are unable to show personal injury will lack standing to appeal. As the majority opinion suggests, complainants who challenge election practices that personally affect or undermine their ability to vote would almost certainly have standing to appeal WEC’s dismissal of their complaints. One likely impact of the Brown decision is that plaintiffs will need to be carefully selected before filing suit to ensure that they can meet the standing requirement not only for the purpose of filing a complaint with WEC, but also to challenge WEC’s decision on appeal.
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