2020 WI 91

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP2038

COMPLETE TITLE: Donald J. Trump, Michael R. Pence and Donald J. 

Trump for President, Inc.,

 Plaintiffs-Appellants,

 v.

Joseph R. Biden, Kamala D. Harris, Milwaukee 

County Clerk c/o George L. Christenson, 

Milwaukee County Board of Canvassers c/o Tim 

Posnanski, Wisconsin Elections Commission, Ann 

S. Jacobs, Dane County Clerk c/o Scott McDonell 

and Dane County Board of Canvassers c/o Alan 

Arnsten,

 Defendants-Respondents.

ON PETITION TO BYPASS COURT OF APPEALS, REVIEW 

OF DECISION OF THE CIRCUIT COURT

OPINION FILED: December 14, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 12, 2020 

SOURCE OF APPEAL:

COURT: Circuit Court 

COUNTY: Milwaukee 

JUDGE: Stephen A. Simanek 

JUSTICES:

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. 

DALLET and KAROFSKY, JJ., filed a concurring opinion. HAGEDORN, 

J., filed a concurring opinion, in which ANN WALSH BRADLEY, J., 

joined. ROGGENSACK, C.J., filed a dissenting opinion, in which 

ZIEGLER and REBECCA GRASSL BRADLEY, JJ., joined. ZIEGLER, J., 

filed a dissenting opinion, in which ROGGENSACK, C.J., and 

REBECCA GRASSL BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J., 

filed a dissenting opinion, in which ROGGENSACK, C.J., and 

ZIEGLER, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:
2

For the plaintiffs-appellants, a brief was filed by James R. 

Troupis and Troupis Law Office, Cross Plains, and R. George Burnett

and Conway, Olejniczak & Jerry S.C., Green Bay. Oral argument 

presented by James R. Troupis.

For the defendants-respondents Joseph R. Biden and Kamala D. 

Harris, a brief was filed by Matthew W. O’Neill and Fox, O’Neill 

& Shannon, S.C., Milwaukee, Charles G. Curtis, Jr., Michelle M. 

Umberger, Will M. Conley and Perkins Coie LLP, Madison, and John 

M. Devaney (pro hac vice) and Perkins Coie LLP, Washington, D.C. 

Oral argument was presented by John M. Devaney.

For the defendants-respondents Wisconsin Elections Commission

and Ann S. Jacobs, oral argument was presented by assistant 

attorney general Colin T. Roth.
2020 WI 91

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP2038

(L.C. No. 2020CV2514 & 2020CV7092)

STATE OF WISCONSIN : IN SUPREME COURT

Donald J. Trump, Michael R. Pence and Donald J. 

Trump for President, Inc.,

 Plaintiffs-Appellants,

 v.

Joseph R. Biden, Kamala D. Harris, Milwaukee 

County Clerk c/o George L. Christenson, 

Milwaukee County Board of Canvassers c/o Tim 

Posnanski, Wisconsin Elections Commission, Ann 

S. Jacobs, Dane County Clerk c/o Scott McDonell 

and Dane County Board of Canvassers c/o Alan 

Arnsten,

 Defendants-Respondents.

FILED

DEC 14, 2020

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the Court, in which 

ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. DALLET and 

KAROFSKY, JJ., filed a concurring opinion. HAGEDORN, J., filed a 

concurring opinion, which ANN WALSH BRADLEY, J., joined. 

ROGGENSACK, C.J., filed a dissenting opinion, in which ZIEGLER and 

REBECCA GRASSL BRADLEY, JJ., joined. ZIEGLER, J., filed a 

dissenting opinion, in which ROGGENSACK, C.J., and REBECCA GRASSL 

BRADLEY, J., joined. REBECCA GRASSL BRADLEY, J., filed a 

dissenting opinion, in which ROGGENSACK, C.J., and ZIEGLER, J., 

joined.

APPEAL from a judgment and an order of the Circuit Court for 

Milwaukee County, Stephen A. Simanek, Reserve Judge. Affirmed. 
No. 2020AP2038

2

¶1 BRIAN HAGEDORN, J. In the 2020 presidential election, 

the initial Wisconsin county canvasses showed that Wisconsin 

voters selected Joseph R. Biden and Kamala D. Harris as the 

recipients of Wisconsin's electoral college votes. The 

petitioners1 (collectively, the "Campaign") bring an action under 

Wis. Stat. § 9.01 (2017-18)2 seeking to invalidate a sufficient 

number of Wisconsin ballots to change Wisconsin's certified 

election results. Specifically, the Campaign seeks to invalidate 

the ballots——either directly or through a drawdown——of more than 

220,000 Wisconsin voters in Dane and Milwaukee Counties. 

¶2 The Campaign focuses its objections on four different 

categories of ballots——each applying only to voters in Dane County 

and Milwaukee County. First, it seeks to strike all ballots cast 

by voters who claimed indefinitely confined status since March 25, 

2020. Second, it argues that a form used for in-person absentee 

voting is not a "written application" and therefore all in-person 

absentee ballots should be struck. Third, it maintains that 

municipal officials improperly added witness information on 

absentee ballot certifications, and that these ballots are 

therefore invalid. Finally, the Campaign asserts that all ballots 

collected at "Democracy in the Park," two City of Madison events 

in late September and early October, were illegally cast. 

 

1 The petitioners are Donald J. Trump, Michael R. Pence, and 

Donald J. Trump for President, Inc.

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version.
No. 2020AP2038

3

¶3 We conclude the Campaign is not entitled to the relief 

it seeks. The challenge to the indefinitely confined voter ballots 

is meritless on its face, and the other three categories of ballots 

challenged fail under the doctrine of laches.

I. BACKGROUND

¶4 After all votes were counted and canvassing was 

completed for the 2020 presidential election contest, the results 

showed that Vice President Biden and Senator Harris won Wisconsin 

by 20,427 votes. The Campaign sought a recount in two of 

Wisconsin's 72 counties——Milwaukee and Dane. The Milwaukee County

Elections Commission and the Dane County Board of Canvassers 

conducted the recount and certified the results. The recount 

increased the margin of victory for Vice President Biden and 

Senator Harris to 20,682 votes.

¶5 The Campaign appealed those decisions in a consolidated 

appeal to the circuit court under Wis. Stat. § 9.01(6)(a), naming 

Vice President Biden, Senator Harris, the Wisconsin Elections 

Commission (WEC), and several election officials as respondents.3 

The circuit court4 affirmed the determinations of the Dane County 

Board of Canvassers and the Milwaukee County Elections Commission 

 

3 Also named were Milwaukee County Clerk c/o George L. 

Christenson, Milwaukee County Board of Canvassers c/o Tim 

Posnanski, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell, 

and Dane County Board of Canvassers c/o Alan Arnsten.

4 The consolidated appeals were assigned to Reserve Judge 

Stephen A. Simanek.
No. 2020AP2038

4

in full. The Campaign appealed and filed a petition for bypass, 

which we granted. 

II. DISCUSSION

¶6 The Campaign asks this court to reverse the 

determinations of the Dane County Board of Canvassers and the 

Milwaukee County Elections Commission with respect to four 

categories of ballots it argues were unlawfully cast.5 The 

respondents argue that all ballots were cast in compliance with 

the law, or at least that the Campaign has not shown otherwise. 

They further maintain that a multitude of legal doctrines——

including laches, equitable estoppel, unclean hands, due process, 

and equal protection——bar the Campaign from receiving its 

requested relief. We agree that the challenge to the indefinitely 

confined voter ballots is without merit, and that laches bars the 

relief the Campaign seeks on the three remaining categories of 

challenged ballots.

A. Indefinitely Confined Voters

¶7 Wisconsin allows voters to declare themselves 

indefinitely confined, provided they meet the statutory 

requirements. See Wis. Stat. § 6.86(2)(a).6 These individuals 

 

5 We may set aside or modify the determination if "a provision 

of law" is "erroneously interpreted" and "a correct interpretation 

compels a particular action." Wis. Stat. § 9.01(8). We accept 

the findings of fact unless a factual finding "is not supported by 

substantial evidence." Id.

6 Wisconsin Stat. § 6.86(2)(a) provides: 
No. 2020AP2038

5

are not required to provide photo identification to obtain an 

absentee ballot. Id. On March 25, 2020, the Dane and Milwaukee 

County Clerks issued guidance on Facebook suggesting all voters 

could declare themselves indefinitely confined because of the 

pandemic and the governor's then-existing Safer-at-Home Order. 

This court unanimously deemed that advice incorrect on March 31, 

2020, and we noted that "the WEC guidance . . . provides the 

clarification on the purpose and proper use of the indefinitely 

confined status that is required at this time." The county clerks 

immediately updated their advice in accordance with our decision.

¶8 The Campaign does not challenge the ballots of 

individual voters. Rather, the Campaign argues that all voters 

claiming indefinitely confined status since the date of the 

erroneous Facebook advice should have their votes invalidated, 

whether they are actually indefinitely confined or not. Although 

the number of individuals claiming indefinitely confined status 

has increased throughout the state, the Campaign asks us to apply 

this blanket invalidation of indefinitely confined voters only to 

ballots cast in Dane and Milwaukee Counties, a total exceeding

 

An elector who is indefinitely confined because of age, 

physical illness or infirmity or is disabled for an 

indefinite period may by signing a statement to that 

effect require that an absentee ballot be sent to the 

elector automatically for every election. The 

application form and instructions shall be prescribed by 

the commission, and furnished upon request to any 

elector by each municipality. The envelope containing 

the absentee ballot shall be clearly marked as not 

forwardable. If any elector is no longer indefinitely 

confined, the elector shall so notify the municipal 

clerk.
No. 2020AP2038

6

28,000 votes. The Campaign's request to strike indefinitely 

confined voters in Dane and Milwaukee Counties as a class without 

regard to whether any individual voter was in fact indefinitely 

confined has no basis in reason or law; it is wholly without merit.

B. Laches 

¶9 Three additional categories of ballots are challenged by 

the Campaign. In Milwaukee and Dane Counties, the Campaign asserts 

all in-person absentee votes were cast unlawfully without an 

application, and that all absentee ballots with certifications 

containing witness address information added by the municipal 

clerks were improperly counted. Additionally, the Campaign 

challenges all ballots returned at the City of Madison's "Democracy 

in the Park" events.

¶10 All three of these challenges fail under the 

longstanding and well-settled doctrine of laches. "Laches is 

founded on the notion that equity aids the vigilant, and not those 

who sleep on their rights to the detriment of the opposing party." 

State ex rel. Wren v. Richardson, 2019 WI 110, ¶14, 389 

Wis. 2d 516, 936 N.W.2d 587. Application of laches is within the 

court's discretion upon a showing by the party raising the claim 

of unreasonable delay, lack of knowledge the claim would be raised, 

and prejudice. Id., ¶15.

¶11 For obvious reasons, laches has particular import in the 

election context. As one noted treatise explains:

Extreme diligence and promptness are required in 

election-related matters, particularly where actionable 
No. 2020AP2038

7

election practices are discovered prior to the election. 

Therefore, laches is available in election challenges. 

In fact, in election contests, a court especially 

considers the application of laches. Such doctrine is 

applied because the efficient use of public resources 

demands that a court not allow persons to gamble on the 

outcome of an election contest and then challenge it 

when dissatisfied with the results, especially when the 

same challenge could have been made before the public is 

put through the time and expense of the entire election 

process. Thus if a party seeking extraordinary relief 

in an election-related matter fails to exercise the 

requisite diligence, laches will bar the action.

29 C.J.S. Elections § 459 (2020) (footnotes omitted).

¶12 Although it disagrees the elements were satisfied here, 

the Campaign does not dispute the proposition that laches may bar 

an untimely election challenge. This principle appears to be 

recognized and applied universally. See, e.g., Jones v. 

Markiewicz-Qualkinbush, 842 F.3d 1053, 1060–61 (7th Cir. 2016)

("The obligation to seek injunctive relief in a timely manner in 

the election context is hardly a new concept.").7 This case may 

 

7 See also Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir.

1990), cert. denied, 501 U.S. 1206 (1991) ("The candidate's and 

party's claims to be respectively a serious candidate and a serious 

party with a serious injury become less credible by their having 

slept on their rights."); Soules v. Kauaians for Nukolii Campaign 

Comm., 849 F.2d 1176, 1180 (9th Cir. 1988) ("Although adequate 

explanation for failure to seek preelection relief has been held 

to exist where, for example, the party challenging the election 

had no opportunity to seek such relief, if aggrieved parties, 

without adequate explanation, do not come forward before the 

election, they will be barred from the equitable relief of 

overturning the results of the election." (citation omitted)); 

Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 

(4th Cir. 1983) ("[F]ailure to require pre-election adjudication 

would 'permit, if not encourage, parties who could raise a claim 

to lay by and gamble upon receiving a favorable decision of the 

electorate and then, upon losing, seek to undo the ballot results 

in a court action.'"); Perry v. Judd, 471 Fed. App'x 219, 220 (4th 

Cir. 2012) ("Movant had every opportunity to challenge the various 
No. 2020AP2038

8

 

Virginia ballot requirements at a time when the challenge would 

not have created the disruption that this last-minute lawsuit 

has."); McClung v. Bennett, 235 P.3d 1037, 1040 (Ariz. 2010) 

("McClung's belated prosecution of this appeal . . . would warrant 

dismissal on the grounds of laches, because his dilatory conduct 

left Sweeney with only one day to file his response brief, 

jeopardized election officials' timely compliance with statutory 

deadlines, and required the Court to decide this matter on an 

unnecessarily accelerated basis." (citations omitted)); Smith v. 

Scioto Cnty. Bd. of Elections, 918 N.E.2d 131, 133-34 (Ohio 2009) 

("Appellees could have raised their claims in a timely pre-election 

protest to the petition. 'Election contests may not be used as a 

vehicle for asserting an untimely protest.'" (citations omitted));

Clark v. Pawlenty, 755 N.W.2d 293, 301 (Minn. 2008) (applying 

laches to bar election challenge where "[t]he processes about which 

petitioners complain are not new"); State ex rel. SuperAmerica 

Grp. v. Licking Cnty. Bd. of Elections, 685 N.E.2d 507, 510 (Ohio 

1997) ("In election-related matters, extreme diligence and 

promptness are required. Extraordinary relief has been routinely 

denied in election-related cases based on laches."); Tully v. 

State, 574 N.E.2d 659, 663 (Ill. 1991) (applying laches to bar 

challenge to an automatic retirement statute where a retired judge 

"was at least constructively aware of the fact that his seat was 

declared vacant" and an election had already taken place to replace 

him); Lewis v. Cayetano, 823 P.2d 738, 741 (Haw. 1991) ("We apply 

the doctrine of laches . . . because efficient use of public 

resources demand that we not allow persons to gamble on the outcome 

of the election contest then challenge it when dissatisfied with 

the results, especially when the same challenge could have been 

made before the public is put through the time and expense of the 

entire election process."); Evans v. State Election Bd. of State 

of Okla., 804 P.2d 1125, 1127 (Okla. 1990) ("It is well settled 

that one who seeks to challenge or correct an error of the State 

Election Board will be barred by laches if he does not act with 

diligence."); Thirty Voters of Kauai Cnty. v. Doi, 599 P.2d 286, 

288 (Haw. 1979) ("The general rule is that if there has been 

opportunity to correct any irregularities in the election process 

or in the ballot prior to the election itself, plaintiffs will 

not, in the absence of fraud or major misconduct, be heard to 

complain of them afterward."); Harding v. State Election Board,

170 P.2d 208, 209 (Okla. 1946) (per curiam) ("[I]t is manifest 

that time is of the essence and that it was the duty of the 

petitioner to proceed with utmost diligence in asserting in a 

proper forum his claimed rights. The law favors the diligent 

rather than the slothful."); Mehling v. Moorehead, 14 N.E.2d 15, 

20 (Ohio 1938) ("So in this case, the election, having been held, 
No. 2020AP2038

9

be a paradigmatic example of why. The relevant election officials, 

as well as Vice President Biden and Senator Harris, had no 

knowledge a claim to these broad categories of challenges would 

occur. The Campaign's delay in raising these issues was 

unreasonable in the extreme, and the resulting prejudice to the 

election officials, other candidates, voters of the affected 

counties, and to voters statewide, is obvious and immense. Laches 

is more than appropriate here; the Campaign is not entitled to the 

relief it seeks.

 

should not be disturbed when there was full opportunity to correct 

any irregularities before the vote was cast."); Kewaygoshkum v. 

Grand Traverse Band Election Bd., 2008-1199-CV-CV, 2008-1200-CVCV, 2008 WL 6196207, at *7 (Grand Traverse Band of Ottawa and 

Chippewa Indians Tribal Judiciary 2008) (en banc) ("In the instant 

case, nearly all of the allegations by both Plaintiffs against the 

Election Board relate to actions taken (or not taken) by the 

Election Board prior to the general election . . . . [T]hey are 

not timely raised at this point and should be barred under the 

doctrine of laches."); Moore v. City of Pacific, 534 S.W.2d 486, 

498 (Mo. Ct. App. 1976) ("Where actionable election practices are 

discovered prior to the election, injured persons must be diligent 

in seeking relief."); Kelly v. Commonwealth, No. 68 MAP 2020, 2020 

WL 7018314, at *1 (Penn. Nov. 28, 2020) (applying laches to bar a 

challenge to a mail-in voting law where challengers could have 

brought their claim anytime after the law's enactment more than a 

year prior but instead waited until after the 2020 General 

Election); Bowyer v. Ducey, CV-20-02321-PHX-DJH, 2020 WL 7238261, 

at *10 (D. Ariz. Dec. 9, 2020) (applying laches to bar claims where 

"affidavits or declarations upon which Plaintiffs rely clearly 

shows that the basis for each of these claims was either known 

well before Election Day or soon thereafter"); King v. Witmer, 

Civ. No. 20-13134, 2020 WL 7134198, at *7 (E.D. Mich. Dec. 7, 2020) 

("If Plaintiffs had legitimate claims regarding whether the 

treatment of election challengers complied with state law, they 

could have brought their claims well in advance of or on Election 

Day——but they did not.").
No. 2020AP2038

10

1. Unreasonable Delay

¶13 First, the respondents must prove that the Campaign 

unreasonably delayed in bringing the challenge. What constitutes 

an unreasonable delay varies and "depends on the facts of a 

particular case." Wis. Small Bus. United, Inc. v. Brennan, 2020 

WI 69, ¶14, 393 Wis. 2d 308, 946 N.W.2d 101. As we have explained:

[U]nreasonable delay in laches is based not on what 

litigants know, but what they might have known with the 

exercise of reasonable diligence. This underlying 

constructive knowledge requirement arises from the 

general rule that ignorance of one's legal rights is not 

a reasonable excuse in a laches case. Where the question 

of laches is in issue, the plaintiff is chargeable with 

such knowledge as he might have obtained upon inquiry, 

provided the facts already known by him were such as to 

put a man of ordinary prudence upon inquiry. To be sure, 

what we expect will vary from case to case and litigant 

to litigant. But the expectation of reasonable diligence 

is firm nonetheless.

Wren, 389 Wis. 2d 516, ¶20 (citations and quotation marks 

omitted). Here, the Campaign unreasonably delayed with respect to 

all three categories of challenged ballots.

¶14 Regarding the Campaign's first challenge, Wisconsin law 

provides that a "written application" is required before a voter 

can receive an absentee ballot, and that any absentee ballot issued 

without an application cannot be counted. See Wis. Stat. 

§ 6.86(1)(ar); Wis. Stat. § 6.84(2). The Campaign argues all inperson absentee votes in Dane and Milwaukee Counties were cast 

without the required application. 

¶15 But both counties did use an application form created, 

approved, and disseminated by the chief Wisconsin elections 

agency. This form, now known as EL-122, is entitled "Official 
No. 2020AP2038

11

Absentee Ballot Application/Certification." It was created in 

2010 in an effort to streamline paperwork following the 2008 

election, and has been available and in use ever since. 

¶16 The Campaign does not challenge that any individual 

voters' ballots lacked an application——an otherwise appropriate 

and timely issue. Rather, the Campaign argues this "application"

is not an application, or that municipal clerks do not give this 

form to voters before distributing the ballot, in contravention of 

the statutes.8 Regardless of the practice used, the Campaign would 

like to apply its challenge to the sufficiency of EL-122 to strike 

170,140 votes in just two counties——despite the form's use in 

municipalities throughout the state.9 Waiting until after an 

election to challenge the sufficiency of a form application in use 

statewide for at least a decade is plainly unreasonable. 

¶17 The second category of ballots challenged are those with 

certificates containing witness address information added by a 

municipal clerk. Absentee ballots must be witnessed, and the 

witness must provide their name, signature, and address on the 

certification (printed on the back side of the envelope in which 

the absentee ballot is ultimately sealed). Wis. Stat. § 6.87(2), 

(4)(b)1., (6d). While a witness address must be provided on the 

 

8 According to the findings of fact, the practice in Dane and 

Milwaukee Counties is that the application portion of the envelope 

is completed and shown to an official before the voter receives a 

ballot.

9 In its findings of fact, the circuit court concluded that 

651,422 voters throughout the state used Form EL-122 in the 2020 

presidential election.
No. 2020AP2038

12

certification for the corresponding ballot to be counted, the 

statute is silent as to what portion of an address the witness 

must provide. § 6.87(6d). 

¶18 The process of handling missing witness information is 

not new; election officials followed guidance that WEC created, 

approved, and disseminated to counties in October 2016. It has 

been relied on in 11 statewide elections since, including in the 

2016 presidential election when President Trump was victorious in 

Wisconsin. The Campaign nonetheless now seeks to strike ballots

counted in accordance with that guidance in Milwaukee and Dane 

Counties, but not those counted in other counties that followed 

the same guidance. The Campaign offers no reason for waiting years 

to challenge this approach, much less after this election. None 

exists. 

¶19 Finally, the City of Madison held events on September 

27, 2020, and October 3, 2020, dubbed "Democracy in the Park." At 

these events, sworn city election inspectors collected completed 

absentee ballots. The city election inspectors also served as 

witnesses if an elector brought an unsealed, blank ballot. No 

absentee ballots were distributed, and no absentee ballot 

applications were accepted or distributed at these events. 

¶20 The Campaign characterizes these events as illegal early 

in-person absentee voting. When the events were announced, an 

attorney for the Wisconsin Legislature sent a warning letter to 

the City of Madison suggesting the events were illegal. The City 

of Madison responded that the events were legally compliant, 

offering reasons why. Although these events and the legislature's 
No. 2020AP2038

13

concerns were widely publicized, the Campaign never challenged 

these events, nor did any other tribunal determine they were 

unlawful. 

¶21 The Campaign now asks us to determine that all 17,271

absentee ballots collected during the "Democracy in the Park" 

events were illegally cast. Once again, when the events were 

announced, the Campaign could have challenged its legality. It 

did not. Instead, the Campaign waited until after the election——

after municipal officials, the other candidates, and thousands of 

voters relied on the representations of their election officials 

that these events complied with the law. The Campaign offers no 

justification for this delay; it is patently unreasonable. 

¶22 The time to challenge election policies such as these is 

not after all ballots have been cast and the votes tallied. 

Election officials in Dane and Milwaukee Counties reasonably 

relied on the advice of Wisconsin's statewide elections agency and 

acted upon it. Voters reasonably conformed their conduct to the 

voting policies communicated by their election officials. Rather 

than raise its challenges in the weeks, months, or even years 

prior, the Campaign waited until after the votes were cast. Such 

delay in light of these specific challenges is unreasonable. 

2. Lack of Knowledge

¶23 The second element of laches requires that the 

respondents lacked knowledge that the Campaign would bring these 
No. 2020AP2038

14

claims.10 The respondents all assert they were unaware that the 

Campaign would challenge various election procedures after the 

election, and nothing in the record suggests otherwise. On the 

record before us, this is sufficient to satisfy this element. See

Brennan, 393 Wis. 2d 308, ¶18.

3. Prejudice

¶24 Finally, the respondents must also prove that prejudice 

results from the Campaign's unreasonable delay. "What amounts to 

prejudice . . . depends upon the facts and circumstances of each 

case, but it is generally held to be anything that places the party 

in a less favorable position." Wren, 389 Wis. 2d 516, ¶32.

¶25 With respect to in-person absentee ballot applications, 

local election officials used form EL-122 in reliance on 

longstanding guidance from WEC. Penalizing the voters election 

officials serve and the other candidates who relied on this 

longstanding guidance is beyond unfair. The Campaign sat on its 

hands, waiting until after the election, despite the fact that 

this "application" form was in place for over a decade. To strike 

 

10 While our cases have identified this element as a general 

requirement for laches, it does not always appear to be applicable. 

To some extent, this requirement focuses on the ability of the 

asserting party to mitigate any resulting prejudice when notice is 

provided. But this may not be possible in all types of claims. 

Most jurisdictions do not identify lack of knowledge as a separate, 

required element in every laches defense. See, e.g., Hart v. King, 

470 F. Supp. 1195, 1198 (D. Haw. 1979) (holding that laches barred 

relief in federal court notwithstanding plaintiffs' unsuccessful 

pre-election suit in state court). In any event, we have no 

difficulty finding this element satisfied here.
No. 2020AP2038

15

ballots cast in reliance on the guidance now, and to do so only in 

two counties, would violate every notion of equity that undergirds 

our electoral system. 

¶26 As for the ballots to which witness address information 

was added, the election officials relied on this statewide advice 

and had no reason to question it. Waiting until after the election 

to raise the issue is highly prejudicial. Applying any new 

processes to two counties, and not statewide, is also unfair to 

nearly everyone involved in the election process, especially the 

voters of Dane and Milwaukee Counties. 

¶27 Finally, the respondents, and indeed all voters, are 

prejudiced if the ballots collected at the "Democracy in the Park" 

events are invalidated. Voters were encouraged to utilize the 

events, and 17,000 voters did so in reliance on representations 

that the process they were using complied with the law. Striking 

these ballots would disenfranchise voters who did nothing wrong 

when they dropped off their ballot where their local election 

officials told them they could. 

¶28 In short, if the relief the Campaign sought was granted, 

it would invalidate nearly a quarter of a million ballots cast in 

reliance on interpretations of Wisconsin's election laws that were 

well-known before election day. It would apply new interpretive 

guidelines retroactively to only two counties. Prejudice to the 

respondents is abundantly clear. Brennan, 393 Wis. 2d 308, ¶25.
No. 2020AP2038

16

4. Discretion

¶29 Whether to apply laches remains "within our equitable 

discretion." Id., ¶26. Doing so here is more than equitable; it 

is the only just resolution of these claims.

¶30 To the extent we have not made this clear in the past, 

we do so now. Parties bringing election-related claims have a 

special duty to bring their claims in a timely manner. 

Unreasonable delay in the election context poses a particular 

danger——not just to municipalities, candidates, and voters, but to 

the entire administration of justice. The issues raised in this 

case, had they been pressed earlier, could have been resolved long 

before the election. Failure to do so affects everyone, causing 

needless litigation and undermining confidence in the election 

results. It also puts courts in a difficult spot. Interpreting 

complicated election statutes in days is not consistent with best 

judicial practices. These issues could have been brought weeks, 

months, or even years earlier. The resulting emergency we are 

asked to unravel is one of the Campaign's own making.11 

¶31 The claims here are not of improper electoral activity. 

Rather, they are technical issues that arise in the administration 

of every election. In each category of ballots challenged, voters 

 

11 Our decision that the Campaign is not entitled to the relief 

it seeks does not mean the legal issues presented are foreclosed 

from further judicial scrutiny. Wisconsin law provides sufficient 

mechanisms for challenging unlawful WEC guidance or unlawful 

municipal election practices. Nothing in our decision denying 

relief to the Campaign would affect the right of another party to 

raise substantive challenges. 
No. 2020AP2038

17

followed every procedure and policy communicated to them, and 

election officials in Dane and Milwaukee Counties followed the 

advice of WEC where given. Striking these votes now——after the 

election, and in only two of Wisconsin's 72 counties when the 

disputed practices were followed by hundreds of thousands of 

absentee voters statewide——would be an extraordinary step for this 

court to take.12 We will not do so.

III. CONCLUSION

¶32 Our laws allow the challenge flag to be thrown regarding 

various aspects of election administration. The challenges raised 

by the Campaign in this case, however, come long after the last 

play or even the last game; the Campaign is challenging the 

rulebook adopted before the season began. Election claims of this

type must be brought expeditiously. The Campaign waited until 

after the election to raise selective challenges that could have 

been raised long before the election. We conclude the challenge 

to indefinitely confined voter ballots is without merit, and that 

laches bars relief on the remaining three categories of challenged 

ballots. The Campaign is not entitled to relief, and therefore 

 

12 Granting the relief requested by the Campaign may even by 

unconstitutional. See Bush v. Gore, 531 U.S. 98, 104-05 (per 

curiam) ("The right to vote is protected in more than the initial 

allocation of the franchise. Equal protection applies as well to 

the manner of its exercise. Having once granted the right to vote 

on equal terms, the State may not, by later arbitrary and disparate 

treatment, value one person's vote over that of another.").
No. 2020AP2038

2

does not succeed in its effort to strike votes and alter the 

certified winner of the 2020 presidential election. 

By the Court.—The judgment of the circuit court is affirmed.
No. 2020AP2038.rfd&jjk

1

¶33 REBECCA FRANK DALLET and JILL J. 

KAROFSKY, JJ. (concurring). As acknowledged by the President's 

counsel at oral argument, the President would have the people of 

this country believe that fraud took place in Wisconsin during the 

November 3, 2020 election. Nothing could be further from the 

truth. The President failed to point to even one vote cast in 

this election by an ineligible voter; yet he asks this court to 

disenfranchise over 220,000 voters. The circuit court, whose 

decision we affirm, found no evidence of any fraud. 

¶34 The evidence does show that, despite a global pandemic, 

more than 3.2 million Wisconsinites performed their civic duty. 

More importantly as it relates to this lawsuit, these voters 

followed the rules that were in place at the time. To borrow 

Justice Hagedorn's metaphor, Wisconsin voters complied with the 

election rulebook. No penalties were committed and the final score 

was the result of a free and fair election.

¶35 For the foregoing reasons, we concur.
No. 2020AP2038.bh

1

¶36 BRIAN HAGEDORN, J. (concurring). I agree, of course, 

with the majority opinion I authored holding that the petitioners1

(collectively, the "Campaign") are not entitled to the relief they 

seek. But I understand the desire for at least some clarity 

regarding the underlying election administration issues. A 

comprehensive analysis is not possible or appropriate in light of 

the abbreviated nature of this review and the limited factual 

record in an action under Wis. Stat. § 9.01 (2017-18).2 However, 

I do think we can be of some assistance, and will endeavor to 

address in some measure the categories of ballots the majority 

opinion properly applies laches to. 

¶37 Beyond its challenge to indefinitely confined voters, an 

issue the court's opinion quickly and appropriately dispenses 

with, the Campaign raises challenges to three categories of 

ballots: (1) all in-person absentee ballots in Dane and Milwaukee 

Counties for want of an absentee ballot application; (2) all 

absentee ballots in Dane and Milwaukee Counties where municipal 

officials added witness address information on the certification; 

and (3) all ballots collected at two City of Madison "Democracy in 

the Park" events occurring in late September and early October. I 

begin with some background, and address each while remaining 

mindful of the limited nature of this review.

 

1 The petitioners are Donald J. Trump, Michael R. Pence, and 

Donald J. Trump for President, Inc.

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version.
No. 2020AP2038.bh

2

I. LEGAL BACKGROUND

¶38 Elections in Wisconsin are governed by Chapters five 

through 12 of the Wisconsin Statutes. In applying these laws, we 

have a long history of construing them to give effect to the 

ascertainable will of the voter, notwithstanding technical 

noncompliance with the statutes. Roth v. Lafarge Sch. Dist. Bd. 

of Canvassers, 2004 WI 6, ¶19, 268 Wis. 2d 335, 677 N.W.2d 599.3 

This longstanding practice is confirmed in statute. Wisconsin 

Stat. § 5.01(1) says, "Except as otherwise provided, chs. 5 to 12 

shall be construed to give effect to the will of the electors, if 

that can be ascertained from the proceedings, notwithstanding 

informality or failure to fully comply with some of their 

provisions." So generally, when ballots are challenged, they are 

counted if the will of the voter can be ascertained.

¶39 Wisconsin looks quite a bit more skeptically, however, 

at absentee ballots. Wisconsin Stat. § 6.84(2) provides:

Notwithstanding [Wis. Stat. §] 5.01(1), with respect to 

matters relating to the absentee ballot process, [Wis. 

Stat. §§] 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4. 

shall be construed as mandatory. Ballots cast in 

 

3 See also State ex rel. Wood v. Baker, 38 Wis. 71, 89 (1875) 

("It would be a fraud on the constitution to hold them 

disfranchised without notice or fault. They went to the election 

clothed with a constitutional right of which no statute could strip 

them, without some voluntary failure on their own part to furnish 

statutory proof of right. And it would be monstrous in us to give 

such an effect to the registry law, against its own spirit and in 

violation of the letter and spirit of the constitution."); State 

ex rel. Blodgett v. Eagan, 115 Wis. 2d 417, 421, 91 N.W. 984 (1902) 

("when the intention of the voter is clear, and there is no 

provision of statute declaring that such votes shall not be 

counted, such intention shall prevail"); Roth v. Lafarge Sch. Dist. 

Bd. of Canvassers, 2004 WI 6, ¶¶19-25, 268 Wis. 2d 335, 677 

N.W.2d 599 (collecting cases).
No. 2020AP2038.bh

3

contravention of the procedures specified in those 

provisions may not be counted. Ballots counted in 

contravention of the procedures specified in those 

provisions may not be included in the certified result 

of any election.

This tells us that, to the extent an absentee ballot does not 

comply with certain statutory requirements, it may not be counted.4 

¶40 Our review in this case is of the determinations of the 

board of canvassers and elections commission. The determination 

shall be "set aside or modif[ied]" if the board of canvassers or 

elections commission "has erroneously interpreted a provision of 

law and a correct interpretation compels a particular action." 

§ 9.01(8)(d). We "may not substitute [our] judgment for that of 

the board of canvassers . . . as to the weight of the evidence on 

any disputed findings of fact." Id. However, findings of fact 

"not supported by substantial evidence" shall be set aside. Id. 

Legal conclusions made by the board of canvassers or elections 

commission are reviewed independently. Roth, 268 Wis. 2d 335, 

¶15.

¶41 With this framework in mind, I turn to the three specific 

categories of ballots challenged here. 

II. IN-PERSON ABSENTEE BALLOT APPLICATIONS

¶42 Wisconsin Stat. § 6.86(1)(ar) says that "the municipal 

clerk shall not issue an absentee ballot unless the clerk receives 

 

4 Wisconsin courts have had few opportunities to opine on this 

statute. The court appeals noted in a 2001 case: "Section 

6.84(2)'s strict construction requirement, applicable to statutes 

relating to the absentee ballot process, is consistent with the 

guarded attitude with which the legislature views that process." 

Lee v. Paulson, 2001 WI App 19, ¶7, 241 Wis. 2d 38, 623 N.W.2d 577.
No. 2020AP2038.bh

4

a written application therefor from a qualified elector of the 

municipality." The mandatory requirement is that each ballot be 

matched with an application. 

¶43 The Wisconsin Elections Commission (WEC) has designed, 

approved, and distributed forms for statewide use by local election 

officials. Among the forms are a separate absentee ballot 

application (form EL-121) and a combined application and 

certification (form EL-122). Milwaukee and Dane Counties, like 

many other communities around the state, use form EL-122 for inperson absentee voters. The Campaign argues that form EL-122 is 

not an application, and that all 170,140 in-person absentee ballots 

cast in Dane and Milwaukee Counties therefore lacked the required 

"written application." This argument is incorrect.

¶44 "Written application" is not specially defined in the 

election statutes, nor is any particular content prescribed. EL122 is entitled "Official Absentee Ballot 

Application/Certification." (Emphasis added). Beyond containing 

basic voter information also present on EL-121, Form EL-122 

requires the elector to sign, stating: "I further certify that I 

requested this ballot." This would appear to satisfy the ordinary 

meaning of a written ballot application. See Quick Charge Kiosk 

LLC v. Kaul, 2020 WI 54, ¶18, 392 Wis. 2d 35, 944 N.W.2d 598 ("When 

statutory language is not specially defined or technical, it is 

given its 'common, ordinary, and accepted meaning.'" (quoting 

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, 

¶45, 271 Wis. 2d 633, 681 N.W.2d 110)). 
No. 2020AP2038.bh

5

¶45 The record further bears out its function as an 

application. In both Milwaukee and Dane Counties, voters completed 

the application portion of EL-122 and showed it to an election 

official before receiving a ballot.5 Then, after completing the 

ballot, the voter signed the certification portion of the form, 

which the clerk witnessed. Section 6.86(1)(ar) contains no 

requirement that the application and certification appear on 

separate documents, and the facts demonstrate that the application 

was completed before voters received a ballot. As best I can 

discern from this record, EL-122 is a "written application" within 

the meaning of § 6.86(1)(ar). That it also serves as a ballot 

certification form does not change its status as an application.6 

¶46 Therefore, on the merits and the record before us, inperson absentee voters using form EL-122 in Dane and Milwaukee 

Counties did so in compliance with Wisconsin law.7 

 

5 The Campaign appears to suggest a different sequence of 

events, but that is not what the record before us reflects.

6 It is not unusual or inherently problematic for 

administrative forms to have multiple functions. The MV1, for 

example, serves as both an application for registration under Wis. 

Stat. § 341.08 and an application for a certificate of title under 

Wis. Stat. § 342.06. See https://wisconsindot.gov/

Documents/formdocs/mv1.pdf.

7 It is presently unclear whether the statutes would be better 

or more clearly effectuated by separating the application and 

certification, or whether certain retention practices may be 

problematic. The expedited nature of our review of this case does 

not permit a full examination of this question. But the mandatory 

procedure insofar as the voter is concerned——that he or she fill 

out a written application——is surely satisfied.
No. 2020AP2038.bh

6

III. WITNESS ADDRESSES

¶47 The Campaign also challenges several thousand absentee 

ballots cast in Milwaukee and Dane Counties where election 

officials added missing witness address information to the 

certification. This challenge is oddly postured and seems to miss 

the statutory requirements.

¶48 Absentee ballots cast in Wisconsin must be witnessed. 

Wis. Stat. § 6.87(4)(b)1. In order to comply with this 

requirement, voters place absentee ballots in an unsealed 

envelope, the back of which includes a certificate. § 6.87(2). 

The certificate must include a statement for the witness to 

certify, along with space for the witness's signature, printed 

name, and "[a]ddress." Id. The law states that the "witness shall 

execute" the relevant witness information——including, one would 

presume, the required address. Id. "If a certificate is missing 

the address of a witness, the ballot may not be counted." 

§ 6.87(6d).

¶49 Although Wis. Stat. § 6.87(6d) requires an address, 

§ 6.87(2) and (6d) are silent on precisely what makes an address 

sufficient. This is in stark contrast to other provisions of the 

election statutes that are more specific. For example, Wis. Stat. 

§ 6.34(3)(b)2. requires an identifying document to contain "[a] 

current and complete residential address, including a numbered 

street address, if any, and the name of the municipality" for the 

document to be considered proof of residence. Similarly, Wis. 

Stat. § 6.18 requires former residents to swear or affirm their 

Wisconsin address as follows: "formerly residing at . . . in 
No. 2020AP2038.bh

7

the . . . ward . . . aldermanic district (city, town, village) 

of . . . County of . . . ."8 While the world has surely faced more 

pressing questions, the contours of what makes an address an 

address has real impact. Would a street address be enough, but no 

municipality? Is the state necessary? Zip code too? Does it 

matter if the witness uses their mailing address and not the 

residential address (which can be different)?

¶50 Based on the record before the court, it is not clear 

what information election officials added to what number of 

certifications. Wisconsin Stat. § 6.87(6d) would clearly prohibit 

counting a ballot if the entire address is absent from the 

certification. However, if the witness provided only part of the 

address——for example, a street address and municipality, but no 

state name or zip code——it is at least arguable that this would 

satisfy § 6.87(6d)'s address requirement. And, to the extent 

clerks completed addresses that were already sufficient under the 

 

8 "And 'absent textual or structural clues to the contrary' a 

particular word or phrase used more than once in the same act is 

understood 'to carry the same meaning each time.'" Town of 

Delafield v. Central Transport Kriewaldt, 2020 WI 61, ¶15 n.6, 392 

Wis. 2d 427, 944 N.W.2d 819 (quoting State ex rel. DNR v. Wis. 

Court of Appeals, Dist. IV, 2018 WI 25, ¶30, 380 Wis. 2d 354, 909 

N.W.2d 114). 
No. 2020AP2038.bh

8

statute, I am not aware of any authority that would allow such 

votes to be struck.9 

¶51 The parties did not present comprehensive arguments 

regarding which components of an address are necessary under the 

statute. It would not be wise to fully address that question now. 

But I do not believe the Campaign has established that all ballots 

where clerks added witness address information were necessarily 

insufficient and invalid; the addresses provided directly by the 

witnesses may very well have satisfied the statutory directive. 

The circuit court's findings of fact reflect that many of these 

ballots contained additions of the state name and/or zip code. I 

conclude the Campaign failed to provide sufficient information to 

show all the witness certifications in the group identified were 

improper, or moreover, that any particular number of ballots were 

improper. 

¶52 Although I do not believe the Campaign has offered 

sufficient proof on this record to strike ballots, this broader 

issue appears to be a valid election administration concern. WEC, 

other election officials, the legislature, and others may wish to 

 

9 The statute seems to suggest only the witness should fill 

in the information necessary to comply with the statute. See Wis. 

Stat. § 6.87(2) ("the witness shall execute . . . "). If a zip 

code is not required under the statute, for example, I'm not sure 

clerks would be prohibited from adding the zip code. Then again, 

I'm not sure why they would want to add anything to an already 

sufficient ballot, or what their authority would be to do so. It's 

possible WEC guidance to add witness information is aimed at 

complying with related WEC guidance that all aspects of a mailing 

address——including city, state, and zip code——should be included 

in the witness certification (arguably, information the statute 

does not always require). Regardless, this case is not wellpostured to answer these questions.
No. 2020AP2038.bh

9

examine the requirements of the statute and measure them against 

the guidance and practice currently in place to avoid future 

problems. 

IV. DEMOCRACY IN THE PARK

¶53 Finally, the Campaign challenges 17,271 ballots the City 

of Madison collected at "Democracy in the Park" events on September 

27, 2020, and October 3, 2020. According to the record, at these 

events, sworn city election inspectors collected already completed 

absentee ballots and served as witnesses for absentee voters who 

brought an unsealed, blank ballot with them. During the events, 

no absentee ballots were distributed, and no absentee ballot 

applications were distributed or received.

¶54 Under the law, when a voter requests an absentee ballot, 

the voter must return the absentee ballot in a sealed envelope by 

mail or "in person, to the municipal clerk issuing the ballot or 

ballots." Wis. Stat. § 6.87(4)(b)1. The phrase "municipal clerk" 

has a specific meaning in the election statutes. It is defined as 

"the city clerk, town clerk, village clerk and the executive 

director of the city election commission and their authorized 

representatives." Wis. Stat. § 5.02(10) (emphasis added).10 A 

sworn city election inspector sent by the clerk to collect ballots 

would seem to be an authorized representative as provided in the 

definition. Even if "municipal clerk" were not a specially-defined 

 

10 When words are "specially-defined" they are given their 

"special definitional meaning." State ex rel. Kalal v. Circuit 

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 

N.W.2d 110.
No. 2020AP2038.bh

10

term, the only reasonable reading of the law would allow those 

acting on a clerk's behalf to receive absentee ballots, not just 

the clerk by him or herself. After all, many clerks manage a full 

office of staff to assist them in carrying out their duties. 

Accordingly, voters who returned ballots to city election 

inspectors at the direction of the clerk returned their absentee 

ballots "in person, to the municipal clerk" as required by 

§ 6.87(4)(b)1.

¶55 The Campaign, however, asserts that the "Democracy in 

the Park" events were illegal in-person absentee voting sites that 

failed to meet the statutory requirements under Wis. Stat. § 6.855. 

Section 6.855(1) provides in relevant part:

The governing body of a municipality may elect to 

designate a site other than the office of the municipal 

clerk or board of election commissioners as the location 

from which electors of the municipality may request and 

vote absentee ballots and to which voted absentee 

ballots shall be returned by electors for any 

election. . . . If the governing body of a municipality 

makes an election under this section, no function 

related to voting and return of absentee ballots that is 

to be conducted at the alternate site may be conducted 

in the office of the municipal clerk or board of election 

commissioners.

§ 6.855(1) (emphasis added). 

¶56 An alternative absentee ballot site, then, must be a 

location not only where voters may return absentee ballots, but 

also a location where voters "may request and vote absentee 

ballots." Id. On the facts before the court, this is not what 

occurred at "Democracy in the Park" locations. Ballots were not 

requested or distributed. Therefore, Wis. Stat. § 6.855 is not on 

point. 
No. 2020AP2038.bh

11

¶57 In short, based on the record before the court and the 

arguments presented, I see no basis to conclude the ballots 

collected at "Democracy in the Park" events were cast in 

contravention of Wisconsin law. This challenge fails.

V. CONCLUSION

¶58 The people of Wisconsin deserve confidence that our 

elections are free and fair and conducted in compliance with the 

law. Our elected leaders and election officials, including those 

at WEC, should continue to earn the trust of all Wisconsinites. 

The claims made by the Campaign in this case are not of widespread 

fraud or serious election improprieties. These are ordinary sorts 

of election administration issues——for example, challenging 

whether an "application" form in use statewide for a decade 

constitutes a sufficient application (it does). While this does 

not diminish the importance of the election procedures the 

legislature has chosen, Wisconsin's electorate should be 

encouraged that the issues raised in this case are focused on 

rather technical issues such as whether a witness must include 

their zip code as part of their address. 

¶59 That does not mean there is nothing to improve or clarify 

or correct. But as explained in the majority opinion, the Campaign 

waited far too long to challenge guidance and practices established 

weeks, months, or years earlier. Laches rightly bars the relief 

the Campaign seeks. Even on the merits, however, the Campaign is 

either incorrect on the law, or does not provide sufficient proof 

to identify particular ballots that were improperly cast. At the 
No. 2020AP2038.bh

12

end of the day, nothing in this case casts any legitimate doubt 

that the people of Wisconsin lawfully chose Vice President Biden 

and Senator Harris to be the next leaders of our great country. 

While the Campaign has every right to challenge ballots cast out 

of compliance with the law, its efforts to make that showing in 

this case do not succeed.

¶60 I am authorized to state that Justice ANN WALSH BRADLEY 

joins this concurrence.
No. 2020AP2038.pdr

1

¶61 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). 

Elections have consequences. One candidate wins and the other 

loses, but in every case, it is critical that the public perceive 

that the election was fairly conducted. 

¶62 In the case now before us, a significant portion of the 

public does not believe that the November 3, 2020, presidential 

election was fairly conducted. Once again, four justices on this 

court cannot be bothered with addressing what the statutes require 

to assure that absentee ballots are lawfully cast. I respectfully 

dissent from that decision. I write separately to address the 

merits of the claims presented.1

¶63 The Milwaukee County Board of Canvassers and the Dane 

County Board of Canvassers based their decisions on erroneous 

advice when they concluded that changes clerks made to defective 

witness addresses were permissible. And, the Dane County Board of 

Canvassers erred again when it approved the 200 locations for 

ballot collection that comprised Democracy in the Park. The 

majority does not bother addressing what the boards of canvassers 

did or should have done, and instead, four members of this court 

throw the cloak of laches over numerous problems that will be 

repeated again and again, until this court has the courage to 

correct them. The electorate expects more of us, and we are 

 

1 See Antonin Scalia, The Dissenting Opinion, 1994 J. Sup. 

Ct. Hist. 33 (1994) ("Legal opinions are important, after all, for 

the reasons they give, not the results they announce; results can 

be announced in judgment orders without opinion. An opinion that 

gets the reasons wrong gets everything wrong which is the function 

of an opinion to produce."). 
No. 2020AP2038.pdr

2

capable of providing it.2 Because we do not, I respectfully 

dissent. 

I. BACKGROUND

¶64 On November 3, 2020, people across Wisconsin and across 

the country exercised their constitutional right to vote. When 

the initial Wisconsin canvass was completed on November 17, 2020, 

Joseph R. Biden and Kamala D. Harris received 20,427 more votes 

than Donald J. Trump and Michael R. Pence. 

¶65 On November 18, 2020, President Trump, Vice President 

Pence and the Trump campaign (the Petitioners) filed recount 

petitions in Milwaukee and Dane Counties. The recount petitions 

alleged that the following errors occurred during the election in 

both counties:

(1) Municipal clerks improperly completed missing 

information on absentee ballot envelopes related to 

witness addresses;

(2) In-person absentee voters did not submit written 

applications for an absentee ballot; and

(3) Voters who were not indefinitely confined claimed 

"indefinitely confined" status for the purposes of 

obtaining an absentee ballot without having to show 

a photo identification. 

¶66 In addition to the above allegations raised during both 

recounts, in Dane County, the Petitioners alleged error in counting 

 

2 See, e.g, Texas v. Pennsylvania, 592 U.S. ____, ____ (slip 

op., at 1) (Dec. 11, 2020) (order denying motion to file bill of 

complaint) (Alito and Thomas, J.J., statement on the denial of 

Texas's motion to file a bill of complaint) ("In my view we do not 

have discretion to deny the filing of a bill of complaint in a 

case that falls within our original jurisdiction. . . . I would 

therefore grant the motion to file the bill of complaint but would 

not grant other relief, and I express no view on any other 

issue")(internal citation omitted). 
No. 2020AP2038.pdr

3

all ballots received during Democracy in the Park events in Madison 

on September 26, 2020, and October 3, 2020.

¶67 The recount lasted from November 20, 2020, to November 

29, 2020.3 During the recount process, the Petitioners objected 

to irregularities in how the voting was conducted pursuant to Wis. 

Stat. § 9.01(5) (2017-18).4 Many irregularities were grounded in 

Wisconsin Elections Commission (WEC) advice on voting process. 

The boards of canvassers overruled all of the Petitioners' 

irregularity objections. 

¶68 As they relate to each alleged irregularity, the 

counties rejected the Petitioners' arguments for the following 

reasons:

(1) Municipal clerks improperly completed missing 

information on absentee ballot envelopes related to witness 

addresses. 

The Milwaukee County Board of Canvassers moved to accept 

ballots from envelopes with witness addresses that had 

been completed by clerks consistent with specific 

guidance by the WEC, which the Board viewed as consistent 

with Wis. Stat. § 6.87(6d).

The Dane County Board of Canvassers also declined to 

"exclude envelopes that had a witness address added by 

the clerk."

(2) In-person absentee voters did not submit written 

applications for an absentee ballot.

 

3 Milwaukee County completed and certified its results on 

November 27, 2020, and Dane County completed and certified its 

recount results on November 29, 2020.

4 All further references to the Wisconsin Statutes are to the 

2017-18 version.
No. 2020AP2038.pdr

4

The Milwaukee County Board of Canvassers determined that 

there are multiple forms of application for an absentee

ballot that can be made by absentee in-person voters and 

that the absentee ballot envelope provided to absentee 

in-person voters – which has the word "application"

stated on it and must be completed by the voter – is an 

application for an absentee ballot. The Milwaukee Board 

thus rejected the Trump Campaign's challenge to ballots 

cast by in-person absentee voters. 

The Dane County Board of Canvassers voted not to exclude 

or draw down any absentee ballots on the basis that they 

"do not have an attached or identifiable 

application." . . . The Dane County Board of Canvassers 

concluded that review of absentee ballot applications is 

not a part of the statutory recount process under Wis. 

Stat. § 9.01(1)(b) and therefore the applications were 

not relevant to the recount. 

(3) Voters who were not indefinitely confined claimed 

"indefinitely confined" status for the purposes of obtaining an 

absentee ballot without having to show a photo identification.

The Milwaukee County Board of Canvassers found that "a 

designation of an indefinitely confined status is for 

each individual voter to make based upon their current 

circumstances" and that "no evidence of any voter in 

Milwaukee County [was] offered that has abused this 

process and voted through this status . . . not even an 

allegation that there was a single voter who abused this 

process to vote without providing proof of their ID, but 

eliminating proof that anyone did so. So there's no 

allegation . . . no proof . . . no evidence." . . . The 

Board voted to overrule any challenge to a voter with 

the status of "indefinitely confined."

The Dane County Board of Canvassers also rejected the 

Trump Campaign's challenge that would have required 

invalidating the ballots of all electors in Dane County 

who declared indefinitely confined status. The Board 

specifically declined to separate or "draw down" the 

ballots cast by electors who declared indefinitely 

confined status.

(4) Ballots received during democracy in the park.

The Dane County Board of Canvassers denied the 

challenge, ruling that the Democracy in the Park events 
No. 2020AP2038.pdr

5

were the equivalent of a human drop box and valid under 

the statute.

¶69 On December 1, 2020, the Petitioners filed a petition 

for leave to file an original action with us. We denied that 

petition on December 3, 2020. That same day, the Petitioners filed 

two notices of appeal of the recount determinations pursuant to 

Wis. Stat. § 9.01(6)(a). Those cases were consolidated in 

Milwaukee County and the Honorable Stephen Simanek was assigned to 

the appeal pursuant to § 9.01(6)(b). 

¶70 The circuit court held a hearing on December 11, 2020. 

At the conclusion of oral argument, the circuit court affirmed the 

recount determinations and, in so doing, adopted pages one through 

thirty of the Respondents' Joint Proposed Findings of Fact and 

Conclusions of Law. After the circuit court entered its final 

written decision, the Petitioners filed a notice of appeal. The 

Petitioners also filed a petition for bypass under Wis. Stat. 

§ 809.60(1). Thereafter, we granted the petition for bypass and 

assumed jurisdiction over this appeal.

II. DISCUSSION

A. Standard of Review

¶71 In a Wis. Stat. § 9.01 proceeding, post election 

challenges "are permissible provided that they may affect the 

election results." Logerquist v. Board of Canvassers for Town of 

Nasewaupee, 150 Wis. 2d 907, 916, 442 N.W.2d 551 (Ct. App. 1989). 

In such a proceeding, we review the determinations of the board of 

canvassers, not those of the circuit court. Id. at 917. "On 

appellate review of a [] § 9.01(1) proceeding, the question is 

whether the board [of canvasser's] findings are supported by 
No. 2020AP2038.pdr

6

substantial evidence.5 Carlson v. Oconto Bd. of Canvassers, 2001 

WI App 20, ¶5, 240 Wis. 2d 438, 623 N.W.2d 195 (citing Logerquist, 

150 Wis. 2d at 912).

¶72 This appeal also requires us to interpret and apply 

Wisconsin statutes. We interpret and apply statutes independently 

as questions of law, while benefitting from the discussion of the 

circuit court. Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, 

¶12, 373 Wis. 2d 348, 891 N.W.2d 803.

B. Alleged Irregularities

¶73 "If WEC has been giving advice contrary to statute, those 

acts do not make the advice lawful. WEC must follow the law. We, 

as the law declaring court, owe it to the public to declare whether 

WEC's advice is incorrect. However, doing so does not necessarily 

lead to striking absentee ballots that were cast by following 

incorrect WEC advice. The remedy Petitioners seek may be out of 

reach for a number of reasons." Trump v. Evers, No. 2020AP1917-

OA, unpublished order (Wis. Dec. 3, 2020) (Roggensack, C.J., 

dissenting from the denial of the petition for leave to commence 

an original action). 

¶74 This case is guided by Wis. Stat. § 6.84 which provides:

The legislature finds that voting is a constitutional 

right, the vigorous exercise of which should be strongly 

encouraged. In contrast, voting by absentee ballot is 

a privilege exercised wholly outside the traditional 

safeguards of the polling place. The legislature finds 

that the privilege of voting by absentee ballot must be 

carefully regulated to prevent the potential for fraud 

or abuse; to prevent overzealous solicitation of absent 

 

5 In the matter before us, the material facts are not 

disputed. Rather, it is the legal consequences that follow from 

these facts that forms the controversy. 
No. 2020AP2038.pdr

7

electors who may prefer not to participate in an 

election; to prevent undue influence on an absent 

elector to vote for or against a candidate or to cast a 

particular vote in a referendum; or other similar 

abuses.

Notwithstanding s. 5.01, with respect to matters 

relating to the absentee ballot process, ss. 6.86, 

6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed 

as mandatory. Ballots cast in contravention of the 

procedures specified in those provisions may not be 

counted. Ballots counted in contravention of the 

procedures specified in those provisions may not be 

included in the certified result of any election. 

Accordingly, the provisions that relate to obtaining and voting 

absentee ballots must be carefully examined as a recount proceeds.6 

C. Witness Addresses

¶75 Wisconsin Stat. § 6.87(2) provides that absentee ballots 

must be accompanied by a certificate. The certificate may be 

printed on the envelope in which an absentee ballot is enclosed. 

Section 6.87(2) provides a model certificate, and directs that 

certificates must be in "substantially" the same form as the model. 

The model provides:

The witness shall execute the following:

I, the undersigned witness, subject to the 

penalties of s. 12.60 (1)(b), Wis. Stats., for false 

statements, certify that I am an adult U.S. citizen and 

that the above statements are true and the voting 

procedure was executed as there stated. I am not a 

candidate for any office on the enclosed ballot (except 

in the case of an incumbent municipal clerk). I did not 

solicit or advise the elector to vote for or against any 

candidate or measure.

 

6 See also Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th Cir. 

2004) ("Voting fraud is a serious problem in U.S. elections 

generally . . . and it is facilitated by absentee voting. In this 

respect absentee voting is to voting in person as a take-home exam 

is to a proctored one." (internal citations omitted)).
No. 2020AP2038.pdr

8

....(Printed name)

....(Address)

Signed ...."[7]

Accordingly, the plain language of § 6.87(2) requires that it is 

the witness who must affix his or her signature and write in his 

or her name and address. Section 6.87(2) does not mention an 

election official taking any action.

¶76 Wisconsin Stat. § 6.87(9) explains what an election 

official may do if an absentee ballot is received with an 

improperly completed certificate or no certificate: 

[T]he clerk may return the ballot to the elector, inside 

the sealed envelope when an envelope is received, 

together with a new envelope if necessary, whenever time 

permits the elector to correct the defect and return the 

ballot within the period authorized under sub. (6). 

Section 6.87(9)'s plain language authorizes election officials to 

return the ballot to "the elector" to correct "the defect." It 

does not authorize election officials to make corrections, i.e., 

to write anything on the certificate.

¶77 In addition, Wis. Stat. § 6.87(6d) provides that "[i]f 

a certificate is missing the address of a witness, the ballot may 

not be counted." This language is clear. And furthermore, its 

legislative history confirms its plain meaning. Westmas v. 

Creekside Tree Serv., Inc., 2018 WI 12, ¶20, 379 Wis. 2d 471, 907 

N.W.2d 68 (quoting State v. Grunke, 2008 WI 82, ¶22, 311 

Wis. 2d 439, 752 N.W.2d 769) (explaining that courts may consult 

legislative history to confirm a statute's plain meaning). This 

subsection was added by 2015 Wis. Act 261. A memorandum prepared 

 

7 Asterisks removed.
No. 2020AP2038.pdr

9

by the Legislative Council provides that "Act 261 . . . requires 

an absentee ballot to have a witness address to be counted. An 

absentee ballot voter must complete the certification and sign the 

certification in the presence of a witness, and the witness must 

sign the certificate and provide his or her name and address." 

Wis. Legis. Council Act Memo, 2015 Wis. Act 261, at 2, 

https://docs.legis.wiscinsin.gov/2015/related/lcactmemo/act261.p

df.

¶78 The contention that ballots with defective addresses 

cannot be counted is supported by more than the plain meaning of 

Wis. Stat. § 6.87(6d). The requirement that such ballots not be 

counted is found in Wis. Stat. § 6.84(2), which provides that the 

provisions in § 6.87(6d) are "mandatory." 

¶79 Notwithstanding the plain, clear requirements of two 

statutes, WEC's guidance explicitly directs municipal clerks that 

they "must take corrective actions in an attempt to remedy a 

witness address error." WEC guidance states, "municipal clerks 

shall do all that they can reasonably do to obtain any missing 

part of the witness address." Then in addition, the WEC instructs 

clerks to add witness address information even though the guidance 

acknowledges that "some clerks have expressed [concern] about 

altering information on the certificate envelope, especially in 

the case of a recount."

¶80 The WEC ignores that the legislature provided only one 

act an election official may take in regard to a defective witness 

address: mail the defective ballot back to the elector to correct 

the error. Wis. Stat. § 6.87(9). That the legislature made one 
No. 2020AP2038.pdr

10

choice about correcting a defective witness address excludes other 

methods of correction. "[T]he express mention of one matter 

excludes other similar matters [that are] not mentioned." FAS, 

LLC v. Town of Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 

N.W.2d 287 (quoting Perra v. Menomonee Mut. Ins. Co., 2000 WI App 

215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (modifications in the 

original). In addition, and similarly, § 6.87(2) states, "[t]he 

witness shall execute the following . . . (Address)." It does not 

state that clerks shall execute anything. 

¶81 My conclusion that errors in the certification of 

absentee ballots require discarding those ballots is consistent 

with our precedent. In Kaufmann v. La Crosse City Bd. of 

Canvassers, 8 Wis. 2d 182, 98 N.W.2d 422 (1959), absentee ballots 

were returned to a municipal clerk without bearing a notary's 

signature on the accompanying certificate envelope, as required by 

statute at that time. The clerk added her signature to the 

certificates. Id. at 183. We explained that the electors' failure 

to ensure that the certificate complied with the statute 

invalidated the ballots. Additionally, we stated, "[t]he fact 

that the . . . clerk further complicated the matter by signing her 

name to the . . . certificate cannot aid the voter. The two wrongs 

cannot make a right." Id. at 186. The ballots were not counted. 

Id. In the case at hand, a defective witness address cannot be 

corrected by a clerk, just as the signature of the notary could 

not be completed by the clerk in Kaufmann.

¶82 In Gradinjan v. Boho (In re Chairman in Town of 

Worchester), 29 Wis. 2d 674, 139 N.W.2d 557 (1966), absentee 
No. 2020AP2038.pdr

11

ballots were issued without the municipal clerk's initials or 

signature, as required by statute at that time. We concluded that 

the ballots "should not have been counted." Id. at 683. 

Furthermore, we said that the statute that obligated the 

invalidation of these ballots survived constitutional attack. Id.

at 683–84. We emphasized that absentee voting is subject to 

different statutory requirements than voting at a polling place, 

i.e., while a ballot cast at a polling place without initials or 

a signature may be countable, an absentee ballot subject to an 

analogous defect is not. Id. at 684. As we stated, "[c]learly, 

the legislature could determine that fraud and violation of the 

sanctity of the ballot could much more readily be perpetrated by 

use of an absentee ballot than under the safeguards provided at a 

regular polling place." Id. In the case at hand, a witness 

address is a statutory requirement, mandated by law, just as the 

initials or signature of the municipal clerk was in Gradinjan.

¶83 The canvassing boards deferred to the WEC's guidance 

about defective signatures and it appears that the circuit court 

did so as well when interpreting Wis. Stat. § 6.87. The circuit 

court stated:

Adding, the requisite information by the clerk has been 

in effect since before the 2016 election. The election 

which Trump prevailed in Wisconsin, I believe, after a 

recount. It's longstanding, I believe it's not 

prohibited by law, and it is therefore a reasonable 

interpretation to make sure, as the as the Court 

indicated earlier, that the will of the electors, the 

voters, are brought to fruition.

It is unfortunate that WEC has such sway, especially when its 

"guidance" is contrary to the plain meaning of two statutes. 
No. 2020AP2038.pdr

12

¶84 Furthermore, we do not defer to administrative agencies 

when interpreting statutes. Wis. Stat. § 227.57(11); see also

Lamar Cent. Outdoor, LLC v. Div. of Hearings & Appeals, 2019 WI 

109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (quoting Tetra Tech EC, 

Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 N.W.2d 21). 

Accordingly, the issue is not whether the WEC adopted "a reasonable 

interpretation," as the circuit court seems to have suggested. We 

follow the plain meaning rule when interpreting statutes, which we 

do independently. State ex rel. Kalal v. Circuit Court for Dane 

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "If the 

meaning of the statute is plain, we ordinarily stop the inquiry." 

Id., ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 

211, 612 N.W.2d 659).

¶85 And finally, guidance documents "are not law, they do 

not have the force or effect of law, and they provide no authority 

for implementing or enforcing standards or conditions." Service

Emps. Int'l Union, Local 1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d 

38, 946 N.W.2d 35. Guidance documents "impose no obligations, set 

no standards, and bind no one." Id. "Functionally, and as a 

matter of law, they are entirely inert." Id.

¶86 Administrative agencies, including the WEC, often treat 

their guidance as if it were law, but that does not make it so. 

Id., ¶143 (Roggensack, C.J, concurring/dissenting). Such 

treatment is inappropriate——it confuses people by making them 

think that they have a legally cognizable reliance interest in 

WEC's guidance when they do not. 

D. Written Applications
No. 2020AP2038.pdr

13

¶87 The Petitioners assert that during the two weeks that 

permit early in-person absentee voting 170,151 electors who did 

not submit a sufficient "written application" before receiving an 

absentee ballot cast votes. The crux of the Petitioners' argument 

is that the written application must be "separate" from the ballot 

and the certification. 

¶88 The statutes provide that in the two weeks leading up to 

an election, electors may go to the municipal clerk's office and 

apply for an absentee ballot. Upon proof of identification, the 

elector receives a ballot, marks the ballot, the clerk witnesses 

the certification and the elector casts a vote by returning the

absentee ballot to the municipal clerk. Wis. Stat. § 6.86(1)(b). 

¶89 Pursuant to Wis. Stat. § 6.86(1)(ar), "the municipal 

clerk shall not issue an absentee ballot unless the clerk receives 

a written application therefor from a qualified elector." Other 

statutes provide for similar requirements. See, e.g., Wis. Stat. 

§ 6.86(1)(a)1.-6. (stating that "[a]ny elector of a municipality 

who is registered to vote . . . and who qualifies . . . as an 

absent elector may make written application to the municipal clerk 

of that municipality for an official ballot by one of the following 

methods," which are then listed); Wis. Stat. § 6.86(1)(ac) 

(stating that electors "may make written application to the 

municipal clerk for an official ballot by means of facsimile 

transmission or electronic mail"). 

¶90 We begin statutory interpretation with the language of 

the statute. Kalal, 271 Wis. 2d 633, ¶45. "Statutory language is 

given its common, ordinary, and accepted meaning, except that 
No. 2020AP2038.pdr

14

technical or specially-defined words or phrases are given their 

technical or special definitional meaning." Id. 

¶91 None of the statutes in question contain the word 

"separate." Rather, a "written application" is required before

the elector's identity is established with a photo identification

and the elector receives an absentee ballot. See Wis. Stat. 

§§ 6.86(1)(a), (ac), (ar), (b), 6.86(2m). Furthermore, § 6.86(2m) 

provides that "The application form and instructions shall be 

prescribed by the commission . . . ." Here, the statutes do not 

provide a form application; the statutes do not define what is 

required on an application, but simply that it be written. Form 

EL 122 was employed here to apply for a ballot in-person. 

¶92 Form EL 122 requires the applicant for an absentee ballot 

to provide the applicant's name, street address, city, and zip 

code. It also asks for the date of the election for which the 

application is being made and the county and municipality in which 

the applicant votes. The substantive information that the 

application requests is substantially similar to form EL 121, which 

is titled "Wisconsin Application for Absentee Ballot." Each of 

these application forms requires writing prior to being submitted 

by electors in advance of an elector receiving an absentee ballot.8

E. Indefinitely Confined

 

8 This order of operations was confirmed in several 

affidavits. The affiants asserted that before they received their 

ballots the clerk's office verified their photo identification and 

voter registration. The electors were then given an EL-122 

envelope and instructed to complete it. Once the application was 

completed, the voters received their ballots. 
No. 2020AP2038.pdr

15

¶93 Wisconsin Stat. § 6.86(2)(a) provides a manner by which 

some electors may obtain an absentee ballot outside of the mode 

outlined above. Those who are "indefinitely confined because of 

age, physical illness or infirmity or are disabled for an 

indefinite period" may apply for an absentee ballot on that basis.

Id. Those electors are then excused from the absentee ballot photo 

identification requirement. Wis. Stat. § 6.87(4)(b)1. 

¶94 The Petitioners contend that all votes cast by electors 

claiming indefinitely confined status after March 25, 2020 (the 

date of McDonell's Facebook post)9 are invalid. However, we have 

discussed the indefinitely confined status in Jefferson v. Dane 

Cnty., 2020 WI 90, ___ Wis. 2d ___, ___ N.W.2d ____, which is 

released today, December 14, 2020. 

¶95 In the pending matter, we do not have sufficient 

information about the 28,395 absentee voters who claimed this 

status in Milwaukee and Dane counties to determine whether they 

lawfully asserted that they were indefinitely confined prior to 

receiving an absentee ballot. Therefore, I go no further in 

addressing this contention.

F. Democracy in the Park

¶96 On September 26, 2020 and October 3, 2020, at more than 

200 City of Madison parks,10 the City of Madison held events called, 

"Democracy in the Park." During those events, poll workers, also 

 

9 On March 25, 2020, Dane County Clerk, Scott McDonell, stated 

on Facebook that community members are encouraged to claim 

indefinitely confined status due to COVID-19 and Governor Evers' 

then-active Emergency Order #12. 

10 Affidavit of Maribeth Witzel-Behl, Madison City Clerk.
No. 2020AP2038.pdr

16

referred to as "election inspectors," helped in the completion of 

ballot envelopes, acted as witnesses for voters and collected 

completed ballots.11 17,271 absentee ballots were voted and 

delivered to these poll workers.12 

¶97 The poll workers who staffed Democracy in the Park were 

volunteers. They were not employees of the City of Madison Clerk's 

office. 

¶98 Wisconsin Stat. § 6.87(4)(b)1. requires that when voting 

an absentee ballot "[t]he envelope [containing the ballot] shall 

be mailed by the elector, or delivered in person, to the municipal 

clerk issuing the ballot or ballots." In addition, the plain words

of Wis. Stat. § 6.84(2) specifically direct that the provisions of 

§ 6.87(4)(b)1. "shall be construed as mandatory." Notwithstanding 

the use of "shall" in § 6.87(4)(b)1. and the "mandatory" 

requirement to comply with the terms of § 6.87(4)(b)1. in 

§ 6.84(2), the 17,271 ballots that were collected in Madison parks 

did not comply with the statutes. Stated otherwise, they were not 

"delivered in person, to the municipal clerk." 

¶99 It is conceivable that the 200 sites for Democracy in 

the Park could have become alternate absentee ballot sites. If 

the Madison Common Council had chosen to designate a site other 

than the municipal clerk's office as the location from which voters 

could request and to which they could return absentee ballots, an 

alternate absentee ballot site could have been established. Wis. 

Stat. § 6.855(1). The statute also provides that the governing 

 

11 Id.

12 Id.
No. 2020AP2038.pdr

17

body of a municipality may designate more than one alternate site. 

§ 6.855(5).13 

¶100 However, if Democracy in the Park were held to be 200 

alternate absentee ballot sites, then "no function related to 

voting and return of absentee ballots. . . . may be conducted in 

the office of the municipal clerk." Wis. Stat. § 6.855(1). This 

requirement does not fit the facts because the Madison clerk's 

office continued to provide and accept return of absentee ballots. 

Therefore, these 200 park events do not meet the statutory criteria 

set out in § 6.855 for alternate absentee ballot sites. 

¶101 One wonders, what were they? It is contended that they 

were "human drop boxes." That gives little comfort because drop 

boxes are not found anywhere in the absentee voting statutes. Drop 

boxes are nothing more than another creation of WEC to get around 

the requirements of Wis. Stat. § 6.87(4)(b)1. The plain, 

unambiguous words of § 6.87(4)(b)1. require that voted ballots 

"shall be mailed by the elector, or delivered in person, to the 

municipal clerk issuing the ballot or ballots." Drop boxes do not 

meet the legislature's mandatory directive. 

¶102 However, because drop boxes are not separately 

identified as a source of illegal voting in this lawsuit, I will 

not dwell on the accountability problems they create, but I do not 

doubt that challenges to drop boxes in general and in specific 

instances will be seen as problems in future elections. Therefore, 

 

13 However, 200 alternate sites does seem a bit much. 
No. 2020AP2038.pdr

18

we may have the opportunity to examine them in a case arising from 

a subsequent election.14 

¶103 It is also Respondent's contention that the poll workers 

who staffed these events were agents15 of the city clerk; and 

therefore, delivery of ballots to them was personal delivery to 

the clerk within the meaning of Wis. Stat. § 6.87(4)(b)1. This is 

an amazing contention. Without question, delivery to voluntary 

poll workers is not "delivered in person to the municipal clerk," 

as § 6.87(4)(b)1. requires. 

¶104 The legislature prescribed the absentee voting procedure 

in Wis. Stat. § 6.87(4)(b)1. and commanded that those procedures 

are "mandatory" in Wis. Stat. § 6.84(2). Gatherings in 200 city 

parks did not meet the statutory requirements for lawful absentee 

voting. They also lack the safety and solemnity that are attached 

to personally delivering absentee ballots to the municipal clerk. 

III. CONCLUSION

¶105 The Milwaukee County Board of Canvassers and the Dane 

County Board of Canvassers based their decisions on erroneous 

advice when they concluded that changes clerks made to defective 

witness addresses were permissible. And, the Dane County Board of 

 

14 We had the opportunity to examine the use of drop boxes in 

Mueller v. Jacobs, 2020AP1958-OA, but the court refused to grant 

review, from which decision Annette Kingsland Ziegler, J., Rebecca 

Grassl Bradley, J. and I dissented. 

15 I would be amazed if the City of Madison agreed that all 

the volunteer poll workers who staffed Democracy in the Park were 

legally agents of the city clerk given the exposure to liability 

such a determination would bring. Lang v. Lions Club of Cudahy 

Wis., Inc., 2020 WI 25, ¶25, 390 Wis. 2d 627, 939 N.W.2d 582 (lead 

opinion).
No. 2020AP2038.pdr

19

Canvassers erred again when it approved the 200 locations for 

ballot collection that comprised Democracy in the Park. The 

majority does not bother addressing what the boards of canvassers 

did or should have done, and instead, four members of this court 

throw the cloak of laches over numerous problems that will be 

repeated again and again, until this court has the courage to 

correct them. The electorate expects more of us, and we are 

capable of providing it. Because we do not, I respectfully 

dissent.

¶106 I am authorized to state that Justices ANNETTE KINGSLAND 

ZIEGLER, and REBECCA GRASSL BRADLEY join this dissent.
No. 2020AP2038.akz

1

¶107 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). We are 

called upon to declare what the law is. See Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province 

and duty of the judicial department to say what the law is."). 

Once again, in an all too familiar pattern, four members of this 

court abdicate their responsibility to do so. They refuse to even 

consider the uniquely Wisconsin, serious legal issues presented.

The issues presented in this case, unlike those in other cases 

around the United States, are based on Wisconsin statutory election 

law. Make no mistake, the majority opinion fails to even mention, 

let alone analyze, the pertinent Wisconsin statutes. Passing 

reference to other states' decisionmaking is of little relevance 

given the Wisconsin legal issues at stake. See Roggensack, C.J., 

dissent, supra; Rebecca Grassl Bradley, J., dissent, infra. The 

people of Wisconsin deserve an answer——if not for this election,

then at least to protect the integrity of elections in the future. 

Instead of providing clarity, the majority opinion is, once again, 

dismissive of the pressing legal issues presented. 

¶108 The majority author's concurrence is even more 

dismissive of the need for clarity in Wisconsin election law 

stating that he "understand[s] the desire for at least some clarity 

regarding the underlying election administration 

issues . . . [but] its just not possible." Hagedorn, J., 

concurrence, ¶36. Indeed, we are presented with a rare opportunity 

to meaningfully engage in, among other things, a known conflict 

between guidance, given by an unelected committee, and what the 

law requires. These are more than mere "election administration 
No. 2020AP2038.akz

2

issues." See Rebecca Grassl Bradley, J., dissent, infra. This 

case presents not just a "desire" for clarity in the law, our 

constitutional duty requires us to declare what the law is. Quite 

obviously, defaulting to laches and claiming that it is "just not 

possible," is directly contradicted by the majority author's own 

undertaking. If it is important enough to address in his 

concurrence, then it should also satisfy the discretionary 

standard which overcomes the application of laches. Instead of 

undertaking the duty to decide novel legal issues presented, this 

court shirks its institutional responsibility to the public and 

instead falls back on a self-prescribed, previously unknown

standard it calls laches. 

¶109 Stated differently, the majority claims the petitioners 

were too late, should have acted earlier and therefore, the court 

is neutered from being able to declare what the law is. The 

majority basically reiterates respondents' soundbites. In so 

doing, the majority seems to create a new bright-line rule that 

the candidates and voters are without recourse and without any 

notice should the court decide to later conjure up an artificial 

deadline concluding that it prefers that something would have been 

done earlier. That has never been the law, and it should not be 

today. It is a game of "gotcha." I respectfully dissent, because 

I would decide the issues presented and declare what the law is. 

I. ABDICATION OF CONSTITUTIONAL DUTY

¶110 Unfortunately, our court's adoption of laches as a means 

to avoid judicial decisionmaking has become a pattern of conduct. 

A majority of this court decided not to address the issues in this 
No. 2020AP2038.akz

3

case, when originally presented to us by way of an original action. 

Trump v. Evers, No. 2020AP1971-OA, unpublished order (Wis. Dec. 3. 

2020). In concluding that it is again paralyzed from engaging in 

pertinent legal analysis, our court unfortunately provides no 

answer or even any analysis of the relevant statutes, in the most 

important election issues of our time. See Hawkins v. Wisconsin 

Elections Comm'n, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877; 

Trump v. Evers, No. 2020AP1971-OA (Rebecca Grassl Bradley, J., 

dissenting); Mueller v. Jacobs, No. 2020AP1958-OA, unpublished 

order (Wis. Dec. 3, 2020) (Roggensack, C.J., Ziegler, and Rebecca 

Grassl Bradley, JJ. dissenting); Wis. Voters Alliance v. Wisconsin 

Elections Comm'n, No. 2020AP1930-OA, unpublished order (Wis. Dec. 

4, 2020) (Roggensack, C.J., dissenting). 

¶111 Instead, the majority relies on what only can be viewed 

as a result-oriented application of the equitable doctrine of 

laches to avoid declaring what the law is. To be clear, I am not 

interested in a particular outcome. I am interested in the court 

fulfilling its constitutional responsibility. While sometimes it

may be difficult to undertake analysis of hot-button legal 

issues——as a good number of people will be upset no matter what 

this court does——it is our constitutional duty. We cannot hide 

from our obligation under the guise of laches. I conclude that 

the rule of law and the equities demand that we answer these 

questions for not only this election, but for elections to come. 

I have concern over this court's pattern of indecision because 

that leaves no court declaring what Wisconsin election law is. 

See Roggensack, C.J., dissent, supra; Rebecca Grassl Bradley, J., 
No. 2020AP2038.akz

4

dissent, infra. We can and should do better for the people of 

Wisconsin and for the nation, which depends on Wisconsin following 

its election laws.

¶112 Regarding this court's continued pattern of abdicating

its responsibility concerning election issues, earlier this term 

in Hawkins, the same members of the court relied on laches, without 

any analysis whatsoever of that doctrine, and denied a rightful 

candidate the opportunity to be placed on the ballot as a 

presidential candidate. Thus, the court likewise denied the voters 

the opportunity to choose that candidate's name amongst the others

on the ballot. See Hawkins, 393 Wis. 2d 629 (Ziegler, J., 

dissenting).1 The court in Hawkins, about two months before the 

November election, declared that it was unable to act, citing the 

doctrine of laches, and applied a newly invented and previously

unknown, self-imposed, result-oriented, laches-based deadline as 

an excuse for inaction. Id.

II. LACHES DOES NOT AND SHOULD NOT BAR THIS CASE

¶113 Once again, the majority imposes its definition of 

laches, which is tailored to its judicial preference rather than 

based on well-established legal principles. The majority must 

know that under this court's previous laches jurisprudence, it 

 

1 In 2016, the Green Party candidates received 31,072 votes. 

See Certificate of Ascertainment for President, Vice President and 

Presidential Electors General Election – November 8, 2016, 

available at https://www.archives.gov/files/electoralcollege/2016/ascertainment-wisconsin.pdf. In 2020, the Green 

Party candidates received only 1,089 votes. See WEC Canvass 

Results for 2020 General Election, available at 

https://elections.wi.gov/sites/elections.wi.gov/files/Statewide%

20Results%20All%20Offices%20%28pre-Presidential%20recount

%29.pdf.
No. 2020AP2038.akz

5

should nonetheless address the merits of the issues. As this court 

has consistently held, "[l]aches is an affirmative, equitable 

defense designed to bar relief when a claimant's failure to 

promptly bring a claim causes prejudice to the party having to 

defend against that claim." Wisconsin Small Bus. United, Inc. v. 

Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. In 

Wisconsin, a defendant must prove three elements for laches to bar 

a claim: "(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."

Id., ¶12. Even if respondents carry their burden of proving all 

three elements of laches, "application of laches is left to the 

sound discretion of the court asked to apply this equitable bar." 

Id.

¶114 The petitioners raised four allegations regarding 

election administration: Absentee ballots lacking a separate 

application; absentee envelopes that are missing or have a 

defective witness address; indefinitely confined voters/faulty 

advice from election officials; and ballots cast at Madison's 

Democracy in the Park/ballot drop boxes. The respondents cannot 

demonstrate that laches bars a single one of these claims, and, 

even if they could, the court could still and should exercise its 

discretion to hear these issues. 

A. No Unreasonable Delay

¶115 The first element of a laches defense requires the 

respondents to prove the petitioners unreasonably delayed in 

making their allegations. "What constitutes a reasonable time 
No. 2020AP2038.akz

6

will vary and depends on the facts of a particular case." 

Wisconsin Small Bus. United, 393 Wis. 2d 308, ¶14. 

¶116 Convenient to its purpose, the majority frames this case 

to meet its preferred outcome. The majority characterizes this 

suit as a challenge to general election policies rather than what 

it is: this lawsuit is a challenge to specific ballots that were 

cast in this election, contrary to the law. The majority states, 

"[t]he time to challenge election policies such as these is not 

after all ballots in the election have been cast and the votes 

tallied." Majority op., ¶22. According to the majority, "[s]uch 

delay in light of these specific challenges is unreasonable." Id. 

The majority misses the mark. 

¶117 In other words, contrary to the majority's 

characterizations, this case is not about general election 

procedure: it is about challenging specific ballots. In 

Wisconsin, while voting is a right, absentee voting is a privilege, 

not a right. Wis. Stat. § 6.84(1). The Wisconsin Legislature has 

created a set of mandatory rules to which the voters must adhere 

for their absentee ballots to count.2 Consistent with express 

mandatory rules, the petitioners allege that certain ballots were 

cast that did not adhere to the law and, therefore, should not be 

counted. It is a specific question: Were the ballots cast 

 

2 See Wis. Stat. § 6.84(2) ("Notwithstanding s. 5.01(1), with 

respect to matters relating to the absentee ballot process, ss. 

6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed as 

mandatory. Ballots cast in contravention of the procedures 

specified in those provisions may not be counted. Ballots counted 

in contravention of the procedures specified in those provisions 

may not be included in the certified result of any election.").
No. 2020AP2038.akz

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according to the law as stated in the statutes and if not, what, 

if any, remedy, exists?

¶118 With this proper framing of the issue, it is clear that 

the petitioners did not unreasonably delay in challenging the 

ballots. To somehow require that challenges must be made and legal 

relief given before an election, before the ballots are cast and 

before a recount is absurd. No recount would ever amount to relief 

if that is the lodestar.

¶119 Thus, the petitioners did not unreasonably delay in 

filing this suit, and this element of laches has not been 

demonstrated as to any of the four allegations of election 

irregularity. 

B. Respondents Knew Ballots Would Be Challenged.

¶120 The second element of laches addresses the knowledge of 

the party asserting laches. See Wis. Small Bus. United, 393 

Wis. 2d 308, ¶18. If the party lacks knowledge of claim, the 

respondents have satisfied this element. Id. The majority 

summarily accepts, without any analysis, that "[t]he respondents 

all . . . were unaware that the Campaign would challenge various 

election procedures after the election . . . ." Majority op., 

¶23. Virtually nothing is in the record to support this assertion 

other than the parties' statements. In other words, the majority 

accepts one side's statements as fact in order to disallow the 

other side its day in court. 

¶121 As explained above, this is a challenge to the ballots 

cast in this election. The President tweeted numerous times 

shortly after Wisconsin announced the election results that he 
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8

would challenge the results and prove certain ballots were 

impermissibly cast.3 The majority chose to accept the respondents' 

assertion that they did not see this lawsuit coming despite the 

record to the contrary.

¶122 Moreover, the majority is incorrect that "nothing in the 

record suggests" that the respondents knew what the petitioners 

would be challenging. Majority op., ¶23. In fact, Wisconsin law 

mandates that the petitioners expressly declare on what grounds 

they plan to challenge the ballots in a recount. Wis. Stat. 

§ 9.01(1). In the petitioners' recount petition, the petitioners 

specifically laid out these claims. 

¶123 Thus, the majority's conclusion with respect to this 

element is particularly lean given the record. It is at least 

more than plausible that respondents had knowledge that the 

petitioners would challenge the ballots in a lawsuit. 

C. Respondents Lack Prejudice.

¶124 Even if the respondents could prove the first two 

elements, the respondents themselves are not prejudiced by this 

delay. "What amounts to prejudice . . . depends upon the facts 

and circumstances of each case, but it is generally held to be 

anything that places the party in a less favorable position." Wis. 

Small Bus. United, 393 Wis. 2d 308, ¶19. The party seeking to 

apply laches must "prove that the unreasonable delay" prejudiced 

the party, not a third party. State ex rel. Wren v. Richardson, 

2019 WI 110, ¶32, 389 Wis. 2d 516, 936 N.W.2d 587. This court 

 

3 See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 

28, 2020, 2:00 p.m.), 

https://twitter.com/realDonaldTrump/status/1332776310196883461
No. 2020AP2038.akz

9

recognizes two different types of prejudice: evidentiary and 

economic. Id., ¶33. Evidentiary prejudice is where "the defendant 

is impaired from successfully defending itself from suit given the 

passage of time." Id., ¶33 n.26. Economic prejudice occurs when 

"the costs to the defendant have significantly increased due to 

the delay." Id.

¶125 The majority abandons these principles of laches and 

instead focuses on the prejudice to third parties. The majority 

states that "[t]o strike ballots cast in reliance on the guidance 

now, and to do so in only in two counties, would violate every 

notion of equity that undergirds our electoral system." Majority 

op., ¶25. This is a new manner in which to approach the legal 

analysis of prejudice. The majority does not explain how this 

potential remedy prevents us from hearing the merits of this case. 

The majority does not explain how these notions are either 

evidentiary or economic prejudice, nor does it consider how it 

prejudices the actual parties in this case. It is unusual to 

conclude that overwhelming prejudice exists such that the court is 

paralyzed from considering whether the law was followed. In other 

words, the majority seems to be saying that they do not wish to 

grant relief and therefore they will not analyze the law. This 

remedy-focused analysis is not typical to laches.

¶126 Neither type of prejudice applies to the respondents in 

this case. None of the respondents claimed that they were unable 

to successfully defend themselves. All respondents filed briefs 

in this court addressing the merits. The circuit court's opinion 

addresses the merits. Accordingly, evidentiary prejudice does not 
No. 2020AP2038.akz

10

apply. Furthermore, no respondents have claimed that the costs of 

defending this claim have "significantly increased due to the 

delay." Accordingly, economic prejudice does not apply. 

¶127 At a more fundamental level, the respondents must prove

each of the elements. The court cannot presume that the elements 

are met. Similarly, the court cannot assume that a party cannot 

successfully defend itself nor that a party faces "significantly 

increased" costs. To do so forces this court to step out of our 

role as a neutral arbiter. See Service Emp. Int'l Union, Loc. 1 

v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d. 

¶128 Therefore, the respondents cannot prove and did not even 

allege that they are prejudiced. Accordingly, the majority 

determination in this regard is flawed. 

D. Equitable Discretion

¶129 Even if the majority was correct that the elements of 

laches are met here, it still has the discretion to reach the 

merits. See Wis. Small Bus. United, 393 Wis. 2d 308, ¶12. The 

majority claims that the "only just resolution of these claims" is 

to use laches to not address the merits of this case. Majority 

op., ¶29. Not so. Our constitutional responsibility is to analyze 

the law and determine if it was followed regardless of whether any 

remedy might be available. In this way future elections benefit 

from our analysis. Curiously, it is unclear whether there is an 

actual majority given the fact that the writer does exercise his 

discretion to address the issues——again, a lack of clarity.

¶130 This court should address the merits because we should 

declare what the law is. The public has serious concerns about 
No. 2020AP2038.akz

11

the election and about our election laws. Recent polls suggest 

that the American public, regardless of party affiliation, has 

serious questions about the integrity of the November 2020 

election.4 Our court has an opportunity to analyze the law and 

answer the public's concerns, but it unfortunately declines this 

opportunity for clarification. 

¶131 The majority should declare what the law is. Every 

single voter in this state is harmed when a vote is cast in 

 

4 See Rasmussen Reports, 61% Think Trump Should Concede to 

Biden (Nov. 19, 2020) https://www.rasmussenreports.com/

public_content/politics/elections/election_2020/61_think_trump_s

hould_concede_to_biden (finding 47% of those who polled believe 

that Democrats stole votes or destroy pro-Trump ballots in several 

states to ensure that Biden would win); Politico, National Tracking 

Poll, Project 201133 (Nov. 6-9, 2020), 

https://www.politico.com/f/?id=00000175-b306-d1da-a775-

bb6691050000 (finding 34% of those polled believed the election 

was not free and fair); Jill Darling et al., USC Dornsife Daybreak 

Poll Topline at 14 (Nov. 19, 2020), Post-Election Poll UAS318, 

https://dornsife-center-for-political-future.usc.edu/past-pollscollection/2020-polling/ (finding that those polled are only 58% 

confident that all votes in the election were accurately counted); 

R. Michael Alvarez, et al., Voter Confidence in the 2020 

Presidential Election: Nationwide Survey Results (Nov. 19, 2020), 

The Caltech/MIT Voting Technology Project Monitoring the Election, 

2020 Presidential Election Survey Reports & Briefs, 

https://monitoringtheelection.us/2020-survey (finding 39% of 

those polled are not confident that votes nationally were counted 

as the voter intended); Yimeng Li, Perceptions of Election or Voter 

Fraud in the 2020 Presidential Election: Nationwide Survey Results

(Nov. 23, 2020), The Caltech/MIT Voting Technology Project 

Monitoring the Election, 2020 Presidential Election Survey Reports 

& Briefs, https://monitoringtheelection.us/2020-survey (finding 

between 29% and 34% of those polled believe voter fraud occurs); 

Sharp Divisions on Vote Counts, as Biden Gets High Marks for His 

Post-Election Conduct, Pew Research Center, U.S. Politics & Policy 

(Nov. 20, 2020), https://www.pewresearch.org/politics/

2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-highmarks-for-his-post-election-conduct/ (finding that 41% of hose 

polled believe the elections were run and administered not well).
No. 2020AP2038.akz

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contravention of the statutes. See Wis. Stat. § 6.84(1). This 

court should conduct a rigorous analysis, and determine whether 

the law was followed. 

¶132 To counter these clear equities counseling us to reach 

the merits, the majority nonetheless seemingly declines the 

opportunity in favor of a self-divined rule which would make it 

nearly impossible to know when and how such a claim could be made. 

The majority asserts that "[f]ailure to [raise these claims 

earlier] affects everyone, causing needless litigation and 

undermining confidence in the election results. It also puts 

courts in a difficult spot. Interpreting complicated election 

statutes in days is not consistent with best judicial practices." 

Majority op., ¶30. A claim post-recount is always going to be 

tight on timing.

¶133 Under the majority's new rule, a candidate will have to 

monitor all election-related guidance, actions, and decisions of 

not only the Wisconsin Elections Commission, but of the 1,850 

municipal clerks who administer the election at the local level. 

And that is just in one state! Instead of persuading the people 

of Wisconsin through campaigning, the candidate must expend 

precious resources monitoring, challenging, and litigating any 

potential election-related issue hoping that a court might act on 

an issue that may very well not be ripe. Moreover, it would be 

nonsensical for a candidate, or worse, a disenfranchised voter, to 

challenge an election law. Thus, the majority's new rule does not 

prevent "needless litigation"; it spawns it in the form of 

preventative lawsuits to address any possible infraction of our 
No. 2020AP2038.akz

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election laws. We have the opportunity to answer important legal 

questions now and should do so. 

¶134 Similarly, the majority claims by not analyzing the law 

it is bolstering public confidence. I disagree. As explained, 

the American public has serious questions about the previous 

election. See supra, ¶23 n.4. Instead of addressing these serious 

questions, the majority balks and says some other party can bring 

a suit at a later date. See majority op., ¶31 n.11. Lawsuits are 

expensive and time-consuming and require that the person bringing 

one has a claim. These issues are presented here before us today. 

If they are important enough to answer at a later date, they are 

important to answer in this pending lawsuit today. Addressing the 

merits of this case would bolster confidence in this election and 

future elections. Even if the court does not conclude that relief 

should be granted, this lawsuit is the opportunity to declare what 

the law is——which is our constitutional duty——and will help the 

public have confidence in the election that just occurred and 

confidence in future elections. An opinion of this court on the 

merits would prevent any illegal or impermissible actions of 

election officials going forward. See Roggensack, C.J., dissent, 

supra; Rebecca Grassl Bradley, J., dissent, infra. Accordingly, 

I fail to see how addressing the merits in this case would 

undermine confidence in the election results. If anything, 

addressing the merits will reassure the people of Wisconsin and 

our nation that our elections comport with the law and to the 

extent that the legislature might need to act, it is clear where 
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14

the law might be that needs correction. The court's indecision 

creates less, not more clarity. 

¶135 The majority's decision not to address the merits 

suffers from an even more insidious flaw——it places the will of 

this court and the will of the Wisconsin Elections Commission above 

the express intent of the legislature. The majority uses the 

potential remedy, striking votes, as an equitable reason to deny 

this case. Majority op., ¶31. But the majority ignores that the 

legislature specifically set forth a remedy that absentee ballots 

cast in contravention of the statute not be counted. See Wis. 

Stat. § 6.84(2). When the law is not followed, the counting of 

illegal ballots effectively disenfranchises voters. This past 

election, absentee voting was at an extraordinarily high level.5

Perhaps this is why it mattered more now than ever that the law be 

followed. Also this might explain why the process has not been 

objected to before in the form of a lawsuit like this one. The 

majority gives virtually no consideration to this fact. 

¶136 Despite the fact that the majority relies on laches to 

not declare the law in nearly all respects of the challenges 

raised, it nonetheless segregates out the indefinitely confined 

voter claim to analyze. Notably absent is any explanation why 

this claim is not treated like the other challenges. 

¶137 Therefore, the majority's application of laches here is 

unfortunate and doomed to create chaos, uncertainty, undermine 

confidence and spawn needless litigation. Instead of declaring 

 

5 In 2016, 830,763 electors voted using absentee ballots. In 

2020, 1,957,514 electors voted using absentee ballots. 
No. 2020AP2038.akz

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what the law is, the majority is legislating its preferred policy. 

It disenfranchises those that followed the law in favor of those 

who acted in contravention to it. This is not the rule of law; it 

is the rule of judicial activism through inaction. 

III. CONCLUSION

¶138 As I would not apply laches in the case at issue and 

instead would analyze the statutes and available remedies as well 

as the actions of the Wisconsin Elections Commission, I 

respectfully dissent.

¶139 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK and Justice REBECCA GRASSL BRADLEY join this 

dissent. 
No. 2020AP2038.rgb

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¶140 REBECCA GRASSL BRADLEY, J. (dissenting). Once again, 

the majority of the Wisconsin Supreme Court wields the 

discretionary doctrine of laches as a mechanism to avoid answering 

questions of law the people of Wisconsin elected us to decide. 

Although nothing in the law compels its application, this majority 

routinely hides behind laches in election law cases no matter when 

a party asserts its claims. Whether election officials complied 

with Wisconsin law in administering the November 3, 2020 election 

is of fundamental importance to the voters, who should be able to 

rely on the advice they are given when casting their ballots. 

Rather than fulfilling its duty to say what the law is, a majority 

of this court unconstitutionally converts the Wisconsin Elections 

Commission's mere advice into governing "law," thereby supplanting 

the actual election laws enacted by the people's elected 

representatives in the legislature and defying the will of 

Wisconsin's citizens. When the state's highest court refuses to 

uphold the law, and stands by while an unelected body of six 

commissioners rewrites it, our system of representative government 

is subverted.

I

¶141 In Wisconsin, we have a constitution, and it reigns 

supreme in this state. "By section 1 of article 4 the power of 

the state to deal with elections except as limited by the 

Constitution is vested in the senate and assembly to be exercised 

under the provisions of the Constitution; therefore the power to 

prescribe the manner of conducting elections is clearly within the 

province of the Legislature." State v. Kohler, 200 Wis. 518, 228 

N.W. 895, 906 (1930) (emphasis added). The Wisconsin Elections 
No. 2020AP2038.rgb

2

Commission (WEC) possesses no authority to prescribe the manner of 

conducting elections; rather, this legislatively-created body is 

supposed to administer and enforce Wisconsin's election laws. Wis. 

Stat. §§ 5.05(1) and (2m). While WEC may not create any law, it 

may "[p]romulgate rules under ch. 227 . . . for the purpose of 

interpreting or implementing the laws regulating the conduct of 

elections . . . ." Wis. Stat. § 5.05(1)(f) (emphasis added). It 

is undisputed that the advice rendered by WEC was not promulgated 

by rule but took the form of guidance. "A guidance document does 

not have the force of law." Wis. Stat. § 227.112(3). WEC's 

guidance documents are merely "communications about the law——they 

are not the law itself." Serv. Employees Int'l Union, Local 1 v. 

Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38, 946 N.W.2d 35. The majority 

casts aside this black letter law, choosing to apply the majority's 

subjective concept of "equity" in order to reach the outcome it 

desires.1 In doing so, the majority commits grave error by 

according WEC guidance the force of law.

¶142 Chapters 5 through 12 of the Wisconsin Statutes contain 

the state's enacted election laws. Section 5.01(1) states that 

"[e]xcept as otherwise provided, chs. 5 to 12 shall be construed 

to give effect to the will of the electors, if that can be 

ascertained from the proceedings, notwithstanding informality or 

failure to fully comply with some of their provisions." This 

 

1 During oral arguments in this case, Justice Jill J. Karofsky 

made the following statement (among others) to the President's 

attorney: "You want us to overturn this election so that your 

king can stay in power, and that is so un-American." When a 

justice displays such overt political bias, the public's 

confidence in the integrity and impartiality of the judiciary is 

destroyed.
No. 2020AP2038.rgb

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substantial compliance provision does not apply to absentee 

balloting procedures, however: "Notwithstanding s. 5.01(1), with 

respect to matters relating to the absentee ballot process, 

ss. 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed 

as mandatory. Ballots cast in contravention of the procedures 

specified in those provisions may not be counted. Ballots counted 

in contravention of the procedures specified in those provisions 

may not be included in the certified result of any election." Wis. 

Stat. § 6.84(2) (emphasis added). 

¶143 "Section 6.84(2)'s strict construction requirement, 

applicable to statutes relating to the absentee ballot process, is 

consistent with the guarded attitude with which the legislature 

views that process." Lee v. Paulson, 2001 WI App 19, ¶¶7-8, 241 

Wis. 2d 38, 623 N.W.2d 577. The legislature expressed its "guarded 

attitude" toward absentee balloting in no uncertain terms, drawing 

a sharp distinction between ballots cast in person versus those 

cast absentee: "The legislature finds that voting is a 

constitutional right, the vigorous exercise of which should be 

strongly encouraged. In contrast, voting by absentee ballot is a 

privilege exercised wholly outside the traditional safeguards of 

the polling place. The legislature finds that the privilege of 

voting by absentee ballot must be carefully regulated to prevent 

the potential for fraud or abuse; to prevent overzealous 

solicitation of absent electors who may prefer not to participate 

in an election; to prevent undue influence on an absent elector to 

vote for or against a candidate or to cast a particular vote in a 

referendum; or other similar abuses." Wis. Stat. § 6.84(1) 

(emphasis added). While the ascertainable will of the election-
No. 2020AP2038.rgb

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day voter may prevail over a "failure to fully comply" with "some 

of" the provisions governing conventional voting (§ 5.01), any 

"[b]allots cast in contravention of" the law's absentee balloting 

procedures "may not be counted." Wis. Stat. § 6.84(2). This court 

has long recognized that in applying Wisconsin's election laws, 

"an act done in violation of a mandatory provision is void." 

Sommerfeld v. Bd. of Canvassers of City of St. Francis, 269 Wis. 

299, 303, 69 N.W.2d 235 (1955) (emphasis added) (citation omitted).

¶144 In order "to prevent the potential for fraud or abuse" 

associated with absentee voting, the legislature requires the laws 

governing the absentee balloting process to be followed. Wis. 

Stat. § 6.84(1). If an absentee ballot is cast "in contravention" 

of the absentee balloting procedures, it "may not be counted." 

Wis. Stat. § 6.84(2). If an absentee ballot is counted "in 

contravention" of the absentee balloting procedures, it "may not 

be included in the certified result of any election." Id. Long 

ago, this court understood that "we are obliged to conclude that 

if absentee ballots are improperly delivered in contravention of 

[Wisconsin's statutes], the Board of Canvassers is under duty to 

invalidate and not include such ballots in the total count, whether 

they are challenged at the election, or not." Olson v. Lindberg, 

2 Wis. 2d 229, 238, 85 N.W.2d 775 (1957) (emphasis added). 

Accordingly, if absentee ballots were counted in contravention of 

the law, the people of Wisconsin, through their elected 

representatives, have commanded the board(s) of canvassers to 

exclude those absentee ballots from the total count, independent 

of any legal challenge an aggrieved candidate may (or may not) 

bring. 
No. 2020AP2038.rgb

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¶145 The majority carelessly accuses the President of asking 

this court to "disenfranchise" voters. Majority op., ¶27; Justices 

Rebecca Frank Dallet's and Jill J. Karofsky's concurrence, ¶33. 

In the election context, "disenfranchise" means to deny a voter 

the right to vote.2 Under Article III, Section 1 of the Wisconsin 

Constitution, "[e]very United States citizen age 18 or older who 

is a resident of an election district in this state is a qualified 

elector of that district." This court possesses no authority to 

remove any qualified elector's constitutionally-protected right to 

vote. But it is not "disenfranchisement" to uphold the law. "It 

is true that the right of a qualified elector to cast his ballot 

for the person of his choice cannot be destroyed or substantially 

impaired. However, the legislature has the constitutional power 

to say how, when and where his ballot shall be cast . . . ." State 

ex rel. Frederick v. Zimmerman, 254 Wis. 600, 613, 37 N.W.2d 472, 

37 N.W.2d 473, 480 (1949). And the judiciary has the 

constitutional responsibility to say whether a ballot was cast in 

accordance with the law prescribed by the people's 

representatives.

¶146 Each of the President's legal claims challenge the 

counting of certain absentee ballots, which the President argues 

were cast in contravention of the Wisconsin Statutes. The majority 

misconstrues Wisconsin law in asserting that "[t]hese issues could 

have been brought weeks, months, or even years earlier." Majority 

op., ¶30. Section 9.01(11) of the Wisconsin Statutes provides 

 

2 Disenfranchise: "To deprive (someone) of a right, esp. the 

right to vote; to prevent (a person or group of people) from having 

the right to vote. — Also termed disfranchise." Disenfranchise, 

Black's Law Dictionary (11th ed. 2019).
No. 2020AP2038.rgb

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that "[t]his section constitutes the exclusive judicial remedy for 

testing the right to hold an elective office as the result of an 

alleged irregularity, defect or mistake committed during the 

voting or canvassing process." Only a "candidate voted for at any 

election who is an aggrieved party" may bring an action under 

Chapter 9. Wis. Stat. § 9.01(1)(a). Surely the majority 

understands the absurdity of suggesting that the President should 

have filed a lawsuit in 2016 or anytime thereafter. Why would he? 

He was not "an aggrieved party"——he won. Obviously, the President 

could not have challenged any "irregularity, defect or mistake 

committed during the voting or canvassing process" related to the 

November 3, 2020 election until that election occurred.

¶147 The respondents recognize that under Chapter 9, the 

"purpose of a recount . . . is to ensure that the voters, clerks 

and boards of canvassers followed the rules in place at the time 

of the election." Misunderstanding what the governing rules 

actually are, the respondents argue that having this court declare 

the law at this point would "retroactively change the rules" after 

the election. Justice Brian Hagedorn embraces this argument, using 

a misapplied football metaphor that betrays the majority's 

contempt for the law: "the [President's] campaign is challenging 

the rulebook adopted before the season began." Majority op., ¶32. 

Justices Rebecca Frank Dallet and Jill J. Karofsky endorse the 

idea that this court should genuflect before "the rules that were 

in place at the time." Justices Dallet's and Karofsky's 

concurrence, ¶34. How astonishing that four justices of the 

Wisconsin Supreme Court must be reminded that it is THE LAW that 

constitutes "the rulebook" for any election——not WEC guidance——
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and election officials are bound to follow the law, if we are to 

be governed by the rule of law, and not of men.

¶148 As the foundation for one of the President's claims, 

Wis. Stat. § 6.87(6d) provides that "[i]f a certificate is missing 

the address of a witness, the ballot may not be counted." The 

only statutorily-prescribed means to correct that error is for the 

clerk to "return the ballot to the elector, inside the sealed 

envelope when an envelope is received, together with a new envelope 

if necessary, whenever time permits the elector to correct the 

defect and return the ballot within the period authorized." Wis. 

Stat. § 6.87(9). Contrary to Wisconsin law, WEC guidance says 

"the clerk should attempt to resolve any missing witness address 

information prior to Election Day if possible, and this can be 

done through reliable information (personal knowledge, voter 

registration information, through a phone call with the voter or 

witness)."3 WEC's "Election Administration Manual for Wisconsin 

Municipal Clerks" erroneously provides that "[c]lerks may add a 

missing witness address using whatever means are available. Clerks 

should initial next to the added witness address."4 Nothing in 

the election law statutes permits a clerk to alter witness address 

information. WEC's guidance in this regard does not administer or 

enforce the law; it flouts it.

 

3 Memorandum from Meagan Wolfe to Wisconsin County and 

Municipal Clerks (Oct. 19, 2020), at 

https://elections.wi.gov/sites/elections.wi.gov/files/2020-

10/Spoiling%20Ballot%20Memo%2010.2020.pdf.

4 Wisconsin Elections Commission, Election Administration 

Manual for Wisconsin Municipal Clerks (Sept. 2020), at 

https://elections.wi.gov/sites/elections.wi.gov/files/2020-

10/Election%20Administration%20Manual%20%282020-09%29.pdf.
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II

¶149 Under the Wisconsin Constitution, "all governmental 

power derives 'from the consent of the governed' and government 

officials may act only within the confines of the authority the 

people give them. Wis. Const. art. I, § 1." Wis. Legislature v. 

Palm, 2020 WI 42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca 

Grassl Bradley, J., concurring). The confines of the authority

statutorily conferred on the WEC limit its function to 

administering and enforcing the law, not making it. The Founders 

designed our "republic to be a government of laws, and not of 

men . . . bound by fixed laws, which the people have a voice in 

making, and a right to defend." John Adams, Novanglus: A History 

of the Dispute with America, from Its Origin, in 1754, to the 

Present Time, in Revolutionary Writings of John Adams (C. Bradley 

Thompson ed. 2000) (emphasis in original). Allowing any person, 

or unelected commission of six, to be "bound by no law or 

limitation but his own will" defies the will of the people. Id. 

¶150 The judiciary is constitutionally compelled to safeguard 

the will of the people by interpreting and applying the laws duly 

enacted by the people's representatives in the legislature. "A 

democratic state must therefore have the power to . . . prevent 

all those practices which tend to subvert the electorate and 

substitute for a government of the people, by the people and for 

the people, a government guided in the interest of those who seek 

to pervert it." State v. Kohler, 200 Wis. 518, 228 N.W. 895, 905 

(1930). The majority's abdication of its judicial duty to apply 

the election laws of this state rather than the WEC's "rulebook" 
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precludes any legislative recourse short of abolishing the WEC 

altogether.

¶151 While some will either commend or condemn the court's 

decision in this case based upon its impact on their preferred 

candidate, the importance of this case transcends the results of 

this particular election. "A correct solution of the questions 

presented is of far greater importance than the personal or 

political fortunes of any candidate, incumbent, group, faction or 

party. We are dealing here with laws which operate in the 

political field——a field from which courts are inclined to hold 

aloof——a field with respect to which the power of the Legislature 

is primary and is limited only by the Constitution itself." Id. 

The majority's decision fails to recognize the primacy of the 

legislative power to prescribe the rules governing the privilege 

of absentee voting. Instead, the majority empowers the WEC to

continue creating "the rulebook" for elections, in derogation of 

enacted law.

¶152 "The purity and integrity of elections is a matter of 

such prime importance, and affects so many important interests, 

that the courts ought never to hesitate, when the opportunity is 

offered, to test them by the strictest legal standards." State v. 

Conness, 106 Wis. 425, 82 N.W. 288, 289 (1900). Instead of 

determining whether the November 3, 2020 election was conducted in 

accordance with the legal standards governing it, the majority 

denies the citizens of Wisconsin any judicial scrutiny of the 

election whatsoever. "Elections are the foundation of American 

government and their integrity is of such monumental importance 

that any threat to their validity should trigger not only our 
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concern but our prompt action." State ex rel. Zignego v. Wis. 

Elec. Comm'n, 2020AP123-W (S. Ct. Order issued June 1, 2020 

(Rebecca Grassl Bradley, J., dissenting)). The majority instead 

belittles the President's claims of law violations as merely 

"technical issues that arise in the administration of every 

election." Majority op., ¶31. The people of Wisconsin deserve a 

court that respects the laws that govern us, rather than treating 

them with such indifference. 

¶153 "Confidence in the integrity of our electoral processes 

is essential to the functioning of our participatory democracy." 

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). The majority takes a 

pass on resolving the important questions presented by the 

petitioners in this case, thereby undermining the public's 

confidence in the integrity of Wisconsin's electoral processes not 

only during this election, but in every future election. 

Alarmingly, the court's inaction also signals to the WEC that it 

may continue to administer elections in whatever manner it chooses, 

knowing that the court has repeatedly declined to scrutinize its 

conduct. Regardless of whether WEC's actions affect election 

outcomes, the integrity of every election will be tarnished by the 

public's mistrust until the Wisconsin Supreme Court accepts its 

responsibility to declare what the election laws say. 

"Only . . . the supreme court can provide the necessary clarity to 

guide all election officials in this state on how to conform their 

procedures to the law" going forward. State ex rel. Zignego v. 

Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 

2020 (Rebecca Grassl Bradley, J., dissenting)).
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¶154 This case represents only the majority's latest evasion 

of a substantive decision on an election law controversy.5 While 

the United States Supreme Court has recognized that "a state 

indisputably has a compelling interest in preserving the integrity

of its election process[,]" Burson v. Freeman, 504 U.S. 191, 199 

(1992), the majority of this court repeatedly demonstrates a lack 

of any interest in doing so, offering purely discretionary excuses 

like laches, or no reasoning at all. This year, the majority in 

Hawkins v. WEC declined to hear a claim that the WEC unlawfully 

kept the Green Party's candidates for President and Vice President 

off of the ballot, ostensibly because the majority felt the 

candidates' claims were brought "too late."6 But when litigants 

have filed cases involving voting rights well in advance of 

Wisconsin elections, the court has "take[n] a pass" on those as 

well, thereby unfailingly and "irreparably den[ying] the citizens 

of Wisconsin a timely resolution of issues that impact voter rights 

and the integrity of our elections." State ex rel. Zignego v. 

Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 

 

5 Hawkins v. WEC, 2020 WI 75, ¶¶84, 86, 393 Wis. 2d 629, 948 

N.W.2d 877 (Rebecca Grassl Bradley, J., dissenting) ("The majority 

upholds the Wisconsin Elections Commission's violation of 

Wisconsin law, which irrefutably entitles Howie Hawkins and Angela 

Walker to appear on Wisconsin's November 2020 general election 

ballot as candidates for President and Vice President of the United 

States . . . . 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.").

6 Hawkins v. Wis. Elec. Comm'n, 2020 WI 75, ¶5, 393 

Wis. 2d 629, 948 N.W.2d 877 (denying the petition for leave to 

commence an original action).
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2020 (Rebecca Grassl Bradley, J., dissenting)). Having neglected 

to identify any principles guiding its decisions, the majority 

leaves Wisconsin's voters and candidates guessing as to when, 

exactly, they should file their cases in order for the majority to 

deem them worthy of the court's consideration on the merits.

¶155 The consequence of the majority operating by whim rather 

than law is to leave the interpretation of multiple election 

statutes in flux——or worse yet, in the hands of the unelected 

members of the WEC. "To be free is to live under a government by 

law . . . . Miserable is the condition of individuals, danger is 

the condition of the state, if there is no certain law, or, which 

is the same thing, no certain administration of the law[.]" 

Judgment in Rex v. Shipley, 21 St Tr 847 (K.B. 1784) (Lord 

Mansfield presiding) (emphasis added). The Wisconsin Supreme 

Court has an institutional responsibility to interpret law——not 

for the benefit of particular litigants, but for citizens we were 

elected to serve. Justice for the people of Wisconsin means 

ensuring the integrity of Wisconsin's elections. A majority of 

this court disregards its duty to the people of Wisconsin, denying 

them justice.

* * *

¶156 "This great source of free government, popular election, 

should be perfectly pure." Alexander Hamilton, Speech at New York 

Ratifying Convention (June 21, 1788), in Debates on the Federal 

Constitution 257 (J. Elliot ed. 1876). The majority's failure to 

act leaves an indelible stain on our most recent election. It 

will also profoundly and perhaps irreparably impact all local, 

statewide, and national elections going forward, with grave 
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consequence to the State of Wisconsin and significant harm to the 

rule of law. Petitioners assert troubling allegations of 

noncompliance with Wisconsin's election laws by public officials 

on whom the voters rely to ensure free and fair elections. It is 

our solemn judicial duty to say what the law is. The majority's 

failure to discharge its duty perpetuates violations of the law by 

those entrusted to administer it. I dissent.

¶157 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK and Justice ANNETTE KINGSLAND ZIEGLER join this 

dissent.

 
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