2022 WI 64

SUPREME COURT OF WISCONSIN

CASE NO.: 2022AP91

COMPLETE TITLE: Richard Teigen and Richard Thom,

 Plaintiffs-Respondents-Petitioners,

 v.

Wisconsin Elections Commission,

 Defendant-Co-Appellant,

Democratic Senatorial Campaign Committee,

 Intervenor-Defendant-Co-Appellant,

Disability Rights Wisconsin, 

Wisconsin Faith Voices for Justice and 

League of Women Voters of Wisconsin,

 Intervenors-Defendants-Appellants.

ON BYPASS FROM THE COURT OF APPEALS 

OPINION FILED: July 8, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 13, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Waukesha 

JUDGE: Michael O. Bohren 

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court with respect to ¶¶4–10, 12–13, 52–63, and 73–85, in 

which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and 

an opinion with respect to ¶¶1–3, 11, 14–51, 64–72, 86, n.29, 

and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. 

ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL 

BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., 

and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring 

opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in 

which DALLET and KAROFSKY, JJ., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-co-appellant, there were briefs filed by 

Steven C. Kilpatrick, assistant attorney general, with whom on 
2

the briefs was Joshua L. Kaul, attorney general. There was an 

oral argument by Steven C. Kilpatrick. 

For the intervenor-defendant-co-appellant, there were 

briefs filed by Charles G. Curtis, Jr., Michelle M. (Umberger) 

Kemp, Will M. Conley, John M. Devaney, Elisabeth C. Frost, and 

Perkins COie, LLP, Madison and Washington, D.C., and Elias Law 

Group LLP, Washington, D.C. There was an oral argument by 

Charles G. Curtis. 

For the intervenors-defendants-appellants, there were 

briefs filed by Jeffrey A. Mandell, Douglas M. Poland, Rachel E. 

Snyder, Carly Gerads, Scott B. Thompson, Mel Barnes, and 

Stafford Rosenbaum LLP, Madison, and Law Forward, Inc., Madison. 

There was an oral argument by Jeffrey A. Mandell. 

For the plaintiffs-respondents-petitioners, there was a 

brief filed by Richard M. Esenberg, Brian W. McGrath, Luke N. 

Berg, Katherine D. Spitz, and Wisconsin Institute for Law & 

Liberty, Milwaukee. There was an oral argument by Richard M. 

Esenberg.

An amicus curiae brief was filed by James R. Troupis, 

Joseph W. Voiland, and Troupis Law Office, Cross Plains, and 

Veterans Liberty Law, Cedarburg, for Senator Ron Johnson. There 

was an oral argument by James R. Troupis. 

An amicus curiae brief was filed by James Bopp, Jr., 

Michael D. Dean, and James Madison Center for Free Speech, Terre 

Haute, and First Freedoms Foundation, Brookfield, for True the 

Vote, Inc.

An amicus curiae brief was filed by Cameron T. Norris, 

James P. McGlone, Matthew M. Fernholz, and Consovoy McCarthy 
3

PLLC, Arlington, and Gramer, Multhauf & Hammes, LLP, Racine, for 

Honest Elections Project. 

An amicus curiae brief was filed by Kurt A. Goehre and 

Conway, Olejniczak & Jerry S.C., Green Bay, for the Republican 

National Committee, the National Republican Senatorial 

Committee, and the Republican Party of Wisconsin.

An amicus curiae brief was filed by Claire Silverman and 

Maria Davis for the League of Wisconsin Municipalities. 
2022 WI 64

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2022AP91

(L.C. No. 2021CV958)

STATE OF WISCONSIN : IN SUPREME COURT

Richard Teigen and Richard Thom,

 Plaintiffs-Respondents-Petitioners,

 v.

Wisconsin Elections Commission,

 Defendant-Co-Appellant,

Democratic Senatorial Campaign Committee,

 Intervenor-Defendant-Co-Appellant,

Disability Rights Wisconsin, Wisconsin Faith 

Voices for Justice and League of Women Voters 

of Wisconsin,

 Intervenors-Defendants-Appellants.

FILED

JUL 8, 2022

Sheila T. Reiff

Clerk of Supreme Court

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court with respect to ¶¶4–10, 12–13, 52–63, and 73–85, in 

which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and 

an opinion with respect to ¶¶1–3, 11, 14–51, 64–72, 86, n.29, 

and 87, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. 

ROGGENSACK, J., filed a concurring opinion. REBECCA GRASSL 

BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., 

and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring 

opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in 

which DALLET and KAROFSKY, JJ., joined.
No. 2022AP91 

2

APPEAL from a judgment and an order of the Circuit Court 

for Waukesha County, Michael O. Bohren, Judge. Affirmed. 

¶1 REBECCA GRASSL BRADLEY, J. This case concerns two 

documents created by employees of the Wisconsin Elections 

Commission ("WEC"). These documents authorize municipal clerks 

and local election officials to establish ballot drop boxes. 

According to one of the documents:

A drop box is a secure, locked structure operated by 

local election officials. Voters may deposit their 

ballot in a drop box at any time after they receive it 

in the mail up to the time of the last ballot 

collection Election Day. Ballot drop boxes can be 

staffed or unstaffed, temporary or permanent.

The other document adds, "[a] family member or another person 

may . . . return the ballot on behalf of the voter," i.e., an 

agent of the voter may place the voter's absentee ballot in a 

drop box.

¶2 Two Wisconsin voters filed this case under Wis. Stat. 

§ 227.40 (2019–20),1 challenging the validity of these 

documents.2 They advanced two arguments: (1) the documents are 

unpromulgated administrative rules; and (2) under Wisconsin 

statutes, drop boxes are illegal because a voter must personally 

mail or deliver in person the voter's absentee ballot to the 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019–20 version unless otherwise indicated.

2 The Wisconsin voters also sought relief under the Uniform 

Declaratory Judgment Act, Wis. Stat. § 806.04. We do not 

address whether relief would be proper had the Wisconsin voters 

sought relief only under § 806.04.
No. 2022AP91 

3

municipal clerk, not to an inanimate object. The Democratic 

Senatorial Campaign Committee ("DSCC") and Disability Rights 

Wisconsin et al. ("DRW") intervened to defend WEC's documents. 

¶3 The circuit court granted summary judgment in favor of 

the Wisconsin voters.3 The court declared the documents were 

administrative rules, which had not been properly promulgated, 

and, among other things, "the use of [ballot] drop boxes, as 

described in the [documents], is not permitted under Wisconsin 

law unless the drop box is staffed by the [municipal] clerk and 

located at the office of the clerk or a properly designated 

alternate site under Wis. Stat. § 6.855." The circuit court 

also issued a permanent injunction, requiring WEC to rescind the 

documents and enjoining WEC from issuing further interpretations 

of law in conflict with the court's order. An appeal followed, 

and we granted the Wisconsin voters' petition to bypass the 

court of appeals.4 

¶4 We hold the documents are invalid because ballot drop 

boxes are illegal under Wisconsin statutes. An absentee ballot 

must be returned by mail or the voter must personally deliver it 

 

3 The Honorable Michael O. Bohren, Waukesha County Circuit 

Court, presided.

4 "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 concern but our 

prompt action." Trump v. Biden, 2020 WI 91, ¶152, 394 

Wis. 2d 629, 951 N.W.2d 568 (Rebecca Grassl Bradley, J., 

dissenting) (quoting State ex rel. Zignego v. Wis. Elec. Comm'n, 

2020AP123-W, unpublished order (Wis. June 1, 2020) (Rebecca 

Grassl Bradley, J., dissenting)).
No. 2022AP91 

4

to the municipal clerk at the clerk's office or a designated 

alternate site. We do not address whether the documents 

constitute unpromulgated administrative rules because the 

documents are invalid regardless. 

¶5 The circuit court declared: (1) "an elector must 

personally mail . . . his or her own absentee ballot"; and 

(2) only two lawful methods for casting an absentee ballot 

pursuant to Wis. Stat. § 6.87(4)(b)1. exist, one of which is 

"for the elector to place the envelope containing the ballot in 

the mail[.]" The documents do not address whether voters who 

mail an absentee ballot must personally place the ballot into a 

mailbox or if a voter's agent may do so. We therefore do not 

decide at this time whether the law permits a voter's agent to 

place an absentee ballot in the mail on the voter's behalf. 

I. BACKGROUND

¶6 In spring 2020, many people wanted to minimize their 

time spent in public spaces due to the COVID-19 pandemic. For 

this reason, more voters wanted to vote absentee for the spring 

2020 election than had voted absentee in past elections. In 

response, WEC Administrator Meagan Wolfe issued the first 

document ("Memo one"), which was directed to municipal clerks 

and other local election officials. The memo states: "[Ballot] 

drop boxes can be used for voters to return ballots but clerks 

should ensure they are secure, can be monitored for security 

purposes, and should be regularly emptied." It also says, "[a] 

family member or another person may . . . return the [absentee] 
No. 2022AP91 

5

ballot on behalf of a voter." WEC's commissioners never voted 

to adopt this memo.

¶7 A few months later, Administrator Wolfe and the 

assistant administrator issued the second document ("Memo two") 

ahead of the fall 2020 election. It encourages "creative 

solutions" to facilitate the use of ballot drop boxes. 

Specifically, Memo two informs municipal clerks that drop boxes 

can be "unstaffed," and states "[a]t a minimum, you should have 

a drop box at your primary municipal building, such as the 

village hall." WEC commissioners never voted on Memo two 

either.

¶8 Municipal clerks acted on these memos. Administrator 

Wolfe avers she is aware of 528 ballot drop boxes utilized for 

the fall 2020 election. By the spring 2021 election, 

Administrator Wolfe says municipal clerks and local election 

officials reported 570 drop boxes, spanning 66 of Wisconsin's 72 

counties. 

¶9 The Wisconsin voters filed a lawsuit challenging the 

validity of these memos. In resolving the suit, the circuit 

court declared, "WEC's Memos are administrative rules under 

Chapter 227 of the Wisconsin statutes and are 

invalid . . . because they should have been, but were not, 

promulgated as rules." It also declared:

WEC's interpretation of state statutes in the Memos is 

inconsistent with state law, to the extent they 

conflict with the following: (1) an elector must 

personally mail or deliver his or her own absentee 

ballot, except where the law explicitly authorizes an 

agent to act on an elector's behalf, (2) the only 
No. 2022AP91 

6

lawful methods for casting an absentee ballot pursuant 

to Wis. Stat. § 6.87(4)(b)1. are for the elector to 

place the envelope containing the ballot in the mail 

or for the elector to deliver the ballot in person to 

the municipal clerk, (3) the use of drop boxes, as 

described in the Memos, is not permitted under 

Wisconsin law unless the drop box is staffed by the 

clerk and located at the office of the clerk or a 

properly designated alternate site under Wis. Stat. 

§ 6.855.

The circuit court permanently enjoined WEC and ordered it to 

"withdraw the Memos and issue a statement to clerks notifying 

them that WEC's interpretation of Wis. Stat. §§ 6.87 and 6.855 

in the Memos has been declared invalid by this Court[.]" The 

injunction also ordered WEC not to "issue any further 

interpretations . . . that conflict[] with . . . §§ 6.87 and 

6.855, as described above." The defendants appealed. The 

Wisconsin voters filed a petition to bypass the court of 

appeals, which we granted.

II. STANDARD OF REVIEW

¶10 Two threshold arguments have been raised. First, DSCC 

argues the Wisconsin voters lack standing. The existence of 

standing presents a question of law, which we review 

independently, although we benefit from the circuit court's 

analysis. Friends of the Black River Forest v. DNR, 2022 WI 52, 

¶10, __ Wis. 2d __, __ N.W.2d __ (quoting City of Mayville v. 

DOA, 2021 WI 57, ¶15, 397 Wis. 2d 496, 960 N.W.2d 416); see also

T.L.E.-C. v. S.E., 2021 WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 

391 (citing State v. Stephenson, 2020 WI 92, ¶18, 394 

Wis. 2d 703, 951 N.W.2d 819).
No. 2022AP91 

7

¶11 Second, DRW argues Wisconsin law bars this suit 

because the Wisconsin voters did not first file their complaint 

with WEC, which DRW claims Wis. Stat. § 5.06 requires. DRW 

offers two independent bases for this argument: (1) sovereign 

immunity and (2) competence.5 Whether sovereign immunity bars 

this lawsuit is a question of law. Aesthetic & Cosmetic Plastic 

Surgery Ctr., LLC v. Wis. Dep't of Trans., 2014 WI App 88, ¶12, 

356 Wis. 2d 197, 853 N.W.2d 607 (quoting Canadian Nat'l R.R. v. 

Noel, 2007 WI App 179, ¶5, 304 Wis. 2d 218, 222–23, 736 

N.W.2d 900). Likewise, whether the circuit court was competent 

to adjudicate this case is a question of law. City of Cedarburg 

v. Hansen, 2020 WI 11, ¶13, 390 Wis. 2d 109, 938 N.W.2d 463, 

modified on reconsideration, 2020 WI 45, 391 Wis. 2d 671, 943 

N.W.2d 544 (citing City of Eau Claire v. Booth, 2016 WI 65, ¶6, 

370 Wis. 2d 595, 882 N.W.2d 738).

¶12 On the merits, we must interpret Wisconsin statutes to 

determine whether the memos correctly describe the law. 

Statutory interpretation presents a question of law. See

T.L.E.-C., 397 Wis. 2d 462, ¶13 (citing Stephenson, 394 

Wis. 2d 703, ¶18).

¶13 Lastly, DRW raises a federal preemption argument. 

Preemption presents a question of law. Town of Delafield v. 

Cent. Transp. Kriewaldt, 2020 WI 61, ¶4, 392 Wis. 2d 427, 944 

 

5 DRW conflated these two bases, but we resolve them 

independently. 
No. 2022AP91 

8

N.W.2d 819 (citing Partenfelder v. Rohde, 2014 WI 80, ¶25, 356 

Wis. 2d 492, 850 N.W.2d 896).

III. ANALYSIS

A. Threshold Issues

1. The Wisconsin Voters Have Standing

¶14 DSCC argues the Wisconsin voters lack standing, 

asserting they "have not demonstrated 'a personal stake in the 

outcome of the controversy' separate and apart from the public 

at large, nor have they shown they have 'suffered or [are] 

threatened with an injury to an interest that is legally 

protectable.'"6 We reject this argument because the Wisconsin 

voters do have a "stake in the outcome" and are "affected by the 

issues in controversy." Wis. Legislature v. Palm, 2020 WI 42, 

¶12, 391 Wis. 2d 497, 942 N.W.2d 900. WEC's memos "interfere[] 

with or impair," or at the very least, "threaten[] to interfere 

with or impair," the Wisconsin voters' "legal rights and 

privileges"——specifically, their rights and privileges as 

registered voters. See Wis. Stat. § 227.40(1). For this 

reason, the Wisconsin voters have standing under Wisconsin's 

permissive, policy-oriented approach toward standing.

¶15 DSCC's argument appears to be grounded in the 

inaccurate assumption that Wisconsin courts follow federal law 

on standing. For example, DSCC cites a Fifth Circuit case from 

2021 rejecting claims "that drive-thru voting hurt the 

 

6 Quoting Marx v. Morris, 2019 WI 34, ¶35, 386 Wis. 2d 122, 

925 N.W.2d 112 (emphasis added).
No. 2022AP91 

9

'integrity' of the election process," in violation of the United 

States Constitution, because the claims were "far too 

generalized to warrant standing." See Hotze v. Hudspeth, 16 

F.4th 1121, 1124 (5th Cir. 2021). 

¶16 While standing in federal court is constitutionally 

confined, in Wisconsin it is limited only by prudential 

considerations. The United States Constitution extends "[t]he 

judicial power" only to "cases" and "controversies." U.S. 

Const. art. III, § 2, cl. 1. No similar language exists in the 

Wisconsin Constitution. See Wis. Const. art. VII, § 8 

(creating, as a general rule, "original jurisdiction" in the 

circuit courts over "all matters civil and criminal within this 

state"). "Because our state constitution lacks the 

jurisdiction-limiting language of its federal counterpart, 

'standing in Wisconsin is not a matter of jurisdiction, but of 

sound judicial policy.'" Friends of the Black River Forest, __ 

Wis. 2d __, ¶17 (quoting McConkey v. Van Hollen, 2010 WI 57, 

¶15, 326 Wis. 2d 1, 783 N.W.2d 855).7

¶17 Judicial policy favors hearing cases presenting 

"carefully developed and zealously argued" issues. McConkey, 

 

7 Although Justice Brian Hagedorn now criticizes this 

court's well-established consideration of judicial policy in 

determining standing, Justice Hagedorn's Concurrence, ¶160, he 

just joined the majority's expression of the test in Friends of 

the Black River Forest v. DNR, 2022 WI 52, ¶17, __ Wis. 2d __, 

__ N.W.2d __ (quoting McConkey v. Van Hollen, 2010 WI 57, ¶15, 

326 Wis. 2d 1, 783 N.W.2d 855). Perhaps the court should 

reconsider its jurisprudence on standing but no party has asked 

us to do so in this case.
No. 2022AP91 

10

326 Wis. 2d 1, ¶16. To ensure a full vetting of the issues, we 

typically require plaintiffs to possess some personal stake in 

the case: "the gist of the requirements relating to 

standing . . . is to assure that the party seeking relief has 

alleged a personal stake in the outcome of the controversy as to 

give rise to that adverseness necessary to sharpen the 

presentation of issues[.]" Moedern v. McGinnis, 70 

Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975). This standard is 

quite liberal; even "'a trifling interest' may suffice" provided 

the asserted interest generates sufficient adversity. See

McConkey, 326 Wis. 2d 1, ¶15 (quoting Fox v. DHSS, 112 

Wis. 2d 514, 524, 334 N.W.2d 532 (1983)).

¶18 In resolving standing challenges, Wisconsin courts may 

also consider judicial efficiency. Id., ¶¶17–18. The judiciary 

has "inherent power to protect itself against any action that 

would . . . materially impair its efficiency." State v. Holmes, 

106 Wis. 2d 31, 40, 315 N.W.2d 703 (1982) (quoting In re Court 

Room, 148 Wis. 109, 121, 134 N.W. 490 (1912)). As a practical 

matter, courts should not devote time or resources to 

adjudicating disputes only to ultimately conclude a party is not 

entitled to any relief.8

 

8 While courts should consider whether relief may be 

granted, they should not turn an issue of standing into a full 

adjudication on the merits. See Wis. Voters Alliance v. Wis. 

Elec. Comm'n, No. 2020AP1930-OA, unpublished order, at 4 (Wis. 

Dec. 4, 2020) (Roggensack C.J., dissenting) ("We grant petitions 

to exercise our jurisdiction based on whether the legal issues 

presented are of state wide concern, not based on the remedies 

requested." (citation omitted)).
No. 2022AP91 

11

¶19 Against the backdrop of these policies, we have 

developed a two-prong test for standing to challenge an agency 

action under chapter 227 of the Wisconsin statutes. See Friends 

of the Black River Forest, __ Wis. 2d __, ¶18 (quoting 

Wisconsin's Env't Decade, Inc. v. Pub. Serv. Comm'n of Wis.

(WED), 69 Wis. 2d 1, 10, 230 N.W.2d 243 (1975)). In WED, this 

court described the elements of the inquiry as follows: 

"(1) Does the challenged action cause the petitioner injury in 

fact? and (2) is the interest allegedly injured arguably within 

the zone of interests to be protected or regulated by the 

statute or constitutional guarantee in question?" Id. (citing 

Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 

150, 153 (1970)). 

¶20 Under the first prong, "injury in fact," "we ask 

'whether the petition alleges injuries that are a direct result 

of the agency action.'" Friends of the Black River Forest, __ 

Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 13). This prong 

presents a low bar. "[A]n '[i]njury alleged, which is remote in 

time or which will only occur as an end result of a sequence of 

events set in motion by the agency action challenged, can be a 

sufficiently direct result of the agency's decision to serve as 

a basis for standing.'" Id. (quoting WED, 69 Wis. 2d at 14 

(second modification in the original)). Under the second prong, 

"we ask whether 'the injury is to an interest which the law 

recognizes or seeks to regulate or protect.'" Id., ¶23 (quoting 

Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 

N.W.2d 685 (1988)). Recently, in Friends of the Black River 
No. 2022AP91 

12

Forest, we recognized "the 'zone of interests' terminology [for 

the second prong] is untethered to the text of Wis. Stat. 

ch. 227[.]"9 Id., ¶25. We explained, "determination of whether 

a statute protects, recognizes, or regulates the asserted 

interest is a purely statutory inquiry, from which the 

judicially subjective consideration of the 'zone of interests' 

is properly omitted." Id.

¶21 The Wisconsin voters allege they have suffered an 

injury in fact to their right to vote. See Wis. Stat. § 6.84(1) 

("The legislature finds that voting is a constitutional right, 

the vigorous exercise of which should be strongly encouraged."). 

As the Wisconsin voters argue, "voters[] are entitled to have 

the elections in which they participate administered properly 

under the law. Allowing WEC to administer the 2022 elections in 

a manner other than that required by law causes doubts about the 

fairness of the elections and erodes voter confidence in the 

electoral process." Similarly, the Republican National 

Committee et al., an amicus curiae, emphasizes, "[e]lections are 

one of the most important features of our Republic, and 

upholding the rules and procedures prescribed for elections, 

 

9 Friends of the Black River Forest involved a challenge to 

an agency action under Wis. Stat. §§ 227.52 and 227.53. With 

respect to standing, the case is analogous to this dispute. 

Many of the cases on which we relied in Friends of the Black 

River Forest discuss standing under chapter 227 of the Wisconsin 

statutes generally. See Foley-Ciccantelli v. Bishop's Grove 

Condominium Ass'n, Inc., 2011 WI 36, ¶¶43–44, 333 Wis. 2d 402, 

797 N.W.2d 789 (lead op.) (suggesting the same framework applies 

for "an administrative rule or decision").
No. 2022AP91 

13

according to the laws enacted by the Legislature, reinforces the 

sanctity of the rule of law and reassures all Americans of the 

integrity of our elections." We agree. 

¶22 If the right to vote is to have any meaning at all, 

elections must be conducted according to law. Throughout 

history, tyrants have claimed electoral victory via elections 

conducted in violation of governing law. For example, Saddam 

Hussein was reportedly elected in 2002 by a unanimous vote of 

all eligible voters in Iraq (11,445,638 people).10 Examples of 

such corruption are replete in history. In the 21st century, 

North Korean leader Kim Jong-un was elected in 2014 with 100% of

the vote while his father, Kim Jong-il, previously won 99.9% of 

the vote.11 Former President of Cuba, Raul Castro, won 99.4% of 

the vote in 2008 while Syrian President Bashar al-Assad was 

elected with 97.6% of the vote in 2007. Even if citizens of

such nations are allowed to check a box on a ballot, they 

possess only a hollow right.12 Their rulers derive their power 

from force and fraud, not the people's consent. By contrast, in 

 

10 Saddam Scores 100% in Leadership Ballot, The Guardian 

(Oct. 16, 2002), 

https://www.theguardian.com/world/2002/oct/16/iraq.

11 The World of 100% Election Victories, BBC (Mar. 11, 

2014), https://www.bbc.com/news/blogs-magazine-monitor-26527422. 

12 Justice Hagedorn seems to disagree, indicating the right 

to vote encompasses nothing more than the mere ability to cast a 

ballot. He fails to recognize that a lawful vote loses its 

operative effect if the election is not conducted in accordance 

with the rule of law.
No. 2022AP91 

14

Wisconsin elected officials "deriv[e] their just powers from the 

consent of the governed." See Wis. Const. art. I, § 1.

¶23 The right to vote presupposes the rule of law governs 

elections. If elections are conducted outside of the law, the 

people have not conferred their consent on the government. Such 

elections are unlawful and their results are illegitimate. "If 

an election . . . can be procured by a party through artifice or 

corruption, the Government may be the choice of a party for its 

own ends, not of the nation for the national good." John Adams, 

Inaugural Address in the City of Philadelphia (Mar. 4, 1797), 

reprinted in Inaugural Addresses of the Presidents of the United 

States at 10 (1989).

¶24 The Wisconsin voters' injury in fact is substantially 

more concrete than the "remote" injuries we have recognized as 

sufficient in the past. Friends of the Black River Forest, __ 

Wis. 2d __, ¶21 (quoting WED, 69 Wis. 2d at 14). The record 

indicates hundreds of ballot drop boxes have been set up in past 

elections, prompted by the memos, and thousands of votes have 

been cast via this unlawful method, thereby directly harming the 

Wisconsin voters. The illegality of these drop boxes weakens 

the people's faith that the election produced an outcome 

reflective of their will. The Wisconsin voters, and all lawful 

voters, are injured when the institution charged with 

administering Wisconsin elections does not follow the law, 

leaving the results in question.

¶25 DSCC misunderstands the nature of the Wisconsin 

voters' injury in fact. It argues the Wisconsin voters cannot 
No. 2022AP91 

15

show their votes were diluted by unlawful votes. It states, "it 

is equally likely that any such [unlawful] voters may vote for 

the same candidates who[m] [the Wisconsin voters] support, which 

would seem to benefit, not harm them." The Wisconsin voters' 

injury, however, is more nuanced than DSCC suggests. DSCC's 

claim about "equal" likelihood is pure speculation. In 

contrast, the failure to follow election laws is a fact which 

forces everyone——even DSCC——to question the legitimacy of 

election results. Electoral outcomes obtained by unlawful 

procedures corrupt the institution of voting, degrading the very 

foundation of free government. Unlawful votes do not dilute 

lawful votes so much as they pollute them, which in turn 

pollutes the integrity of the results. See Clark v. Quick, 36 

N.E.2d 563, 566 (Ill. 1941) ("There is nothing in the record 

before us to indicate that any of [the absentee ballots] were 

actually tampered with by any unauthorized person, but it is 

entirely obvious that the opportunity to do so was present."). 

When the level of pollution is high enough, the fog creates 

obscurity, and the institution of voting loses its credibility 

as a method of ensuring the people's continued consent to be 

governed. See State ex rel. Bell v. Conness, 106 Wis. 425, 428, 

82 N.W. 288 (1900) ("He failed to show that he received a 

majority of the votes cast at the election, but he succeeded in 

showing a condition of affairs that taints the whole proceeding 

and calls for careful consideration. 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 
No. 2022AP91 

16

hesitate, when the opportunity is offered, to test them by the 

strictest legal standards."). A man with an obscured vote may 

as well be "a man without a vote," and without the opportunity 

for judicial review, such a man "is without protection; he is 

virtually helpless." See 106 Cong. Rec. 5082, 5117 (1960) 

(statement of Sen. Lyndon B. Johnson).

¶26 DSCC quotes this court's statement in McConkey that it 

was "troubled" by "broad general voter standing[.]" 326 

Wis. 2d 1, ¶17. For context, that case involved a voter 

challenge to a process by which the people of Wisconsin adopted 

the following constitutional amendment in 2006:

Only a marriage between one man and one woman shall be 

valid or recognized as a marriage in this state. A 

legal status identical or substantially similar to 

that of marriage for unmarried individuals shall not 

be valid or recognized in this state.

Wis. Const. art. XIII, § 13, superseded by Obergefell v. Hodges, 

576 U.S. 644 (2015). "McConkey claimed that the two sentences 

of the marriage amendment constituted two amendments, not one, 

and that because voters were not able to vote for or against 

each sentence, the marriage amendment was not validly adopted." 

McConkey, 326 Wis. 2d 1, ¶2. McConkey conceded if he would have 

been able to vote on each individual sentence, he would have 

voted "no" on both. Id., ¶14. On this basis, the attorney 

general challenged McConkey's standing, claiming, "he suffered 

no actual injury to a legally protectable interest." Id. 

McConkey maintained his "basic voting . . . rights" were 

violated. Id.
No. 2022AP91 

17

¶27 McConkey does not support DSCC's argument. While this 

court was "troubled," it nonetheless proceeded to decide the 

case: "whether as a matter of judicial policy, or because 

McConkey has at least a trifling interest in his voting rights, 

we believe the unique circumstances of this case render the 

merits of McConkey's claim fit for adjudication." Id., ¶17. 

The injury in fact McConkey claimed to suffer is analogous to 

the injury in fact suffered by the Wisconsin voters; both 

plaintiffs claim proper voting procedures were not followed.

¶28 DSCC also argues "[t]heir voting rights are in no 

sense 'diluted' by other voters' reliance on carefully monitored 

secure [ballot] drop boxes under local municipal clerks' 

jurisdiction, custody, and control." The memos, however, 

purport to authorize unstaffed drop boxes as lawful means of 

returning ballots. Even if secured and monitored, a drop box 

falls short of the statutorily-recognized security surrounding a 

polling place. See Wis. Stat. § 6.84(1) ("[V]oting by absentee 

ballot is a privilege exercised wholly outside the traditional 

safeguards of the polling place.").

¶29 The Wisconsin voters satisfy the second standing prong 

as well. "[T]he law recognizes" and "seeks to . . . protect" 

the Wisconsin voters' right to vote. See Friends of the Black 

River Forest, __ Wis. 2d __, ¶23 (quoting Waste Mgmt., 144 

Wis. 2d at 505). Wisconsin Stat. § 227.40(1) affords them 

relief because the memos "interfere[] with or impair[]," or at 

the very least, "threaten[] to interfere with or impair," their 

"legal rights and privileges[.]"
No. 2022AP91 

18

¶30 A broader review of judicial policy supports our 

application of the two-prong test. Like McConkey, this case has 

been "zealously argued," demonstrating the Wisconsin voters' 

interest in their right to vote is more than merely 

"trifling[.]" See 326 Wis. 2d 1, ¶18. We can discern no 

negative impact on "judicial efficiency" stemming from our 

decision to resolve it. Id. 

¶31 Lastly, "as a law development court," we owe the 

public an answer to the important questions of law this case 

raises.13 Id. "The right of voting for representatives is the 

primary right by which other rights are protected." Thomas 

Paine, Dissertation on First Principles of Government (1795), 

reprinted in Thomas Paine: Rights of Man, Common Sense and 

Other Political Writings 398 (2008). As the United States 

Supreme Court has recognized, "[n]o right is more precious in a 

free country than that of having a voice in the election of 

those who make laws under which, as good citizens, we must live. 

Other rights, even the most basic, are illusory if the right to 

vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 

(1964). Unlawfully conducted elections threaten to diminish or 

even eliminate some voices, destabilizing the very foundation of 

 

13 "Since the 2020 presidential election, many Wisconsin 

voters have raised serious concerns about the conduct of 

elections because of directives given by the Wisconsin Elections 

Commission (WEC) to the municipal clerks who run the elections. 

We have been petitioned repeatedly to accept cases that address 

very similar concerns." Kleefisch v. Wis. Elections Comm'n, 

No. 2021AP1976-OA, unpublished order, at 1–2 (Wis. Feb. 4, 2022) 

(Roggensack, J., dissenting).
No. 2022AP91 

19

free government. The Wisconsin voters have standing to ensure 

they retain their electoral voices. See generally Trump v. 

Evers, No. 2020AP1971-OA, unpublished order, at 6 (Wis. Dec. 3, 

2020) (Rebecca Grassl Bradley, J., dissenting) ("[T]he 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.").

¶32 Justice Brian Hagedorn disagrees with our standing 

analysis, proffering an alternative basis for standing divined 

from searching the penumbra of Wis. Stat. § 5.06.14 Although 

§ 5.06 appears nowhere in the complaint15 and sets forth specific 

procedures that were never invoked, Justice Hagedorn concludes 

it nevertheless confers standing on the Wisconsin voters.16 It 

can't.

 

14 Justice Hagedorn's Concurrence, ¶164.

15 Pointing out that § 5.06 appears nowhere in the complaint 

isn't a "complaint"; it's just a fact. Id., ¶164 n.3.

16 Justice Hagedorn asserts the Wis. Stat. § 5.06 standing 

argument is "in their brief[.]" Id. He continues, "[they] 

unquestionably" "raise[d]" this argument. Id.
No. 2022AP91 

20

¶33 Wisconsin Stat. § 5.06(1) allows "any elector" to file 

"a written sworn complaint" with WEC if the elector "believes 

that a decision or action" of "an election official" related to 

the "conduct of elections is contrary to law[.]" "The 

commission may conduct a hearing on the matter in the manner 

prescribed for treatment of contested cases under ch. 227 if it 

believes such action to be appropriate." § 5.06(1). The 

Wisconsin voters, however, have not brought a case against any 

local election official but only against WEC—-in circuit court. 

As we explain in greater detail below, it would be nonsensical 

to have WEC adjudicate a claim against itself under Wis. Stat. 

§ 5.06(1). 

¶34 If Wis. Stat. § 5.06(1) is the only source of the 

Wisconsin voters' legal right to sue, their failure to first 

file the complaint with WEC is no minor matter. Section 5.06(2) 

declares, "[n]o person who is authorized to file a complaint 

 

The portion of the Wisconsin voters' response brief dealing 

with standing is about two pages. Those two pages have two 

sentences on Wis. Stat. § 5.06: (1) "Wis. Stat. § 5.06 

recognizes that 'any elector' has an interest in raising

violations of the election laws"; and (2) "The § 5.06 process 

does not apply here, for reasons explained below, infra Part 

IV.B, but § 5.06 shows that electors have a 'right' and interest 

in elections conducted in accordance with state law." § 5.06 

"recognizes" or "shows" that the electors have a "right" to 

ensure local election officials comply with the law, but on its 

face the statute simply does not confer a right relevant to the 

claims brought in this case. In contrast, Wis. Stat. § 6.84(1) 

includes a legislative "find[ing]" that "voting is a 

constitutional right[.]" Justice Hagedorn dismisses this 

language as merely an expression of policy, with apparently no 

operative effect. A right that lacks a vehicle for vindication 

is a hollow one.
No. 2022AP91 

21

under sub. (1), other than the attorney general or a district 

attorney, may commence an action or proceeding to test the 

validity of any decision, action or failure to act on the part 

of any election official with respect to any matter specified in 

sub. (1) without first filing a complaint under sub. (1), nor 

prior to disposition of the complaint by the commission." No 

one suggests the Wisconsin voters are not 

"person[s] . . . authorized to file a complaint under sub. (1)." 

§ 5.06(2). As Justice Hagedorn acknowledges, "§ 5.06 gives 

[Wisconsin voters] a statutory right to have local election 

officials in the area[s] where [they] live[] comply with 

election laws."17 That statute says "the elector may file a 

written sworn complaint with the commission requesting that the 

official be required to conform his or her conduct to the law, 

be restrained from taking any action inconsistent with the law 

or be required to correct any action or decision inconsistent 

with the law or any abuse of the discretion vested in him or her 

by law." § 5.06 (emphasis added). But § 5.06 says nothing 

about filing a complaint in order to force WEC to correct any 

action it make take or any decision it may make, which are

inconsistent with the law. If § 5.06 does not apply to the 

Wisconsin voters' complaint against WEC, then how could it 

confer standing? Justice Hagedorn does not explain. 

¶35 Justice Hagedorn's cognitively dissonant criticisms of 

our standing analysis apply equally to his own. He says our 

 

17 Justice Hagedorn's Concurrence, ¶164.
No. 2022AP91 

22

standing analysis "suggests [we] create[] broad voter standing 

against any election official or WEC by any elector for nearly 

any purported violation of any election law."18 But Justice 

Hagedorn articulates an indistinguishably broad basis for 

standing, concluding the Wisconsin voters have "a legal right 

protected by Wis. Stat. § 5.06 to have local election officials 

in [their] area comply with the law."19 He complains our 

standing analysis is not "tether[ed] . . . to an on-point 

text[.]"20 But our analysis is "tethered" to Wis. Stat. 

§ 6.84(1), which incontrovertibly applies to the Wisconsin 

voters, while Justice Hagedorn's analysis is tethered only to a 

concededly inapplicable statute. Unlike our standing analysis, 

Justice Hagedorn's penumbra standing is not limited to election 

disputes but logically extends across the Wisconsin statutes.21 

¶36 Even under the stricter standing test federal courts 

apply, impairment of the right to vote has been deemed 

sufficient to confer standing. While so-called "generalized 

grievances" "do not normally constitute a particularized injury 

necessary to establish standing," "the fact that 'a harm is 

 

18 Id., ¶167.

19 Id., ¶165.

20 Id., ¶167.

21 Justice Hagedorn insists his "standing analysis applies 

only to challenges under Wis. Stat. § 227.40(1) to WEC rules and 

guidance documents when that guidance threatens to cause local 

election officials to behave illegally[.]" Id., ¶167 n.8. His 

reasoning logically extends further, notwithstanding his 

artificial narrowing in a footnote.
No. 2022AP91 

23

widely shared does not necessarily render it a generalized 

grievance.'" Donald J. Trump for President, Inc. v. Bullock, 

491 F. Supp. 3d 814, 828 (D. Mont. 2020) (quoting Novak v. 

United States, 795 F.3d 1012, 1018 (9th Cir. 2015)). "In fact, 

the [United States] Supreme Court has been clear that 'where a 

large number of voters suffer interference with voting rights' 

the interests related to that are sufficiently concrete to 

obtain the standing necessary to seek redress in an Article III 

Court." Id. (quoting F.E.C. v. Akins, 524 U.S. 11, 24 (1998)); 

see also id. ("Because the alleged injuries to the members'

voting rights at issue in this case could conceivably be 

asserted by any Montanan does not eradicate the standing 

necessary to assert these claims. On the contrary, the Supreme 

Court has repeatedly enumerated the principle that claims 

alleging a violation of the right to vote can constitute an 

injury in fact despite the widespread reach of the conduct at 

issue."). Wisconsin voters have alleged an injury to their 

right to vote sufficient to confer standing.

2. The Law Does Not Require Wisconsin Voters to File Their 

Complaint Against WEC with WEC

¶37 Article IV, Section 27 of the Wisconsin Constitution 

provides: "The legislature shall direct by law in what manner 

and in what courts suits may be brought against the state." 

"From this provision the rule developed that the state cannot be 

sued without its consent." Lister v. Bd. of Regents of Univ. of 

Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976). DRW, 

quoting part of this sentence from Lister, argues sovereign 
No. 2022AP91 

24

immunity bars this lawsuit because the Wisconsin voters did not 

first file their complaint with WEC, which DRW asserts is a 

jurisdictional prerequisite under Wis. Stat. § 5.06(1).

¶38 Importantly, the only party that could claim to 

represent the sovereign in this case——WEC——has abandoned any 

sovereign immunity argument. In its answer, WEC asserted, 

"[s]ome of [the Wisconsin voters'] claims are barred by 

sovereign immunity," but it did not say which ones. WEC did not 

discuss sovereign immunity at all in its briefing. When asked 

for WEC's position on this issue during oral argument before 

this court, WEC's attorney responded:

Counsel: Well, to be consistent we did not take a 

position on it one way or the other in 

briefing, and I'm not going to take a position 

on behalf of the Commission in oral argument 

either, so it's a "no position" type of 

response, for standing and for sovereign 

immunity, because although we raised it, we're 

content with the other parties pushing that 

forward. We chose for strategic purposes to 

focus our briefs on other things.

Court: That leaves me perplexed. Do you agree with 

their standing and sovereign immunity 

arguments, even though you are not advancing 

them? I don't want to necessarily pin you 

down, but I do want clarity. Revisit that 

answer, if you will.

Counsel: I understand you don't like the non-answer 

that I provided. But the position of the 

Commission is, yes, we raised them in the 

answer, but we chose not to put them forward 

in our brief. We did not choose to adopt by 

incorporation or by reference those arguments; 

we did not say we are in disagreement with 

them either.
No. 2022AP91 

25

DRW's argument fails because a private party cannot raise and 

maintain an affirmative defense that belongs to the State. 

¶39 "Sovereign immunity is a defense which can be raised 

by the state alone and does not go to the merits or primary 

object of the action. For this reason, sovereign immunity is a 

defense to personal jurisdiction which can be waived." City of 

Kenosha v. State, 35 Wis. 2d 317, 328, 151 N.W.2d 36 (1967) 

(emphasis added); Cords v. State, 62 Wis. 2d 42, 46, 214 

Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that 

sovereign immunity is a defense to the personal jurisdiction of 

the court which can be waived. Objection to personal 

jurisdiction must be raised specifically or be deemed waived. 

It is not sufficient to make a general demurrer that the 

complaint does not state facts sufficient to constitute a cause

of action.").

¶40 DRW does not address City of Kenosha or Cords, instead 

claiming in conclusory fashion, "because sovereign immunity is a 

jurisdictional bar to the court's jurisdiction, it is properly 

raised at any juncture, and, once raised, must be adjudicated 

before the merits." The two cases DRW cites in support of this 

proposition have nothing to do with sovereign immunity (the 

phrase does not even appear in the opinions), and the cases are 

actually about subject matter jurisdiction, not personal 

jurisdiction. 

¶41 The first case DRW cites, Bartus v. DHSS, states:

Jurisdictional challenges may be raised at any 

juncture during a court proceeding. In the instant 
No. 2022AP91 

26

case, the circuit court was reviewing the propriety of 

a Department decision to revoke a probationer's term 

for failure to pay restitution. Bartus's 

jurisdictional challenge to the 1988 sentence which 

imposed the restitution, was therefore central to the 

subject matter jurisdiction of the court on review.

176 Wis. 2d 1063, 1082–83, 501 N.W.2d 419 (1993) (emphasis 

added). Bartus merely recites a well-known rule, repeated in 

many cases, that arguments against subject matter jurisdiction 

cannot be forfeited or waived. See City of Cedarburg, 390 

Wis. 2d 109, ¶49 (citing Booth, 370 Wis. 2d 595, ¶1); see also

United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubjectmatter jurisdiction, because it involves a court's power to hear 

a case, can never be forfeited or waived."). Equally well 

established is the rule that personal jurisdiction can be 

forfeited or waived. Wis. Stat. § (Rule) 802.06(8)(a). 

¶42 The only other case DRW cites in support of its claim 

that sovereign immunity can raised at any juncture similarly 

demonstrates DRW's failure to distinguish between subject matter 

jurisdiction and personal jurisdiction. See Harrigan v. 

Gilchrist, 121 Wis. 127, 224, 99 N.W. 909 (1904) ("A challenge 

to the jurisdiction of the trial court of the subject matter of 

the action is proper at any time[.]" (Emphasis added)).

¶43 DRW is not a state agency, so it cannot assert 

sovereign immunity. Although WEC asserted in its answer that 

sovereign immunity barred "some" of the Wisconsin voters' 

claims, it did not say which ones. No reasonable judge could 

view WEC's briefing and answers at oral argument as maintaining 

a sovereign immunity defense. WEC's attorney even said at oral 
No. 2022AP91 

27

argument that WEC takes "no position" on the matter. Although 

DRW argued sovereign immunity in its brief, WEC's attorney 

demurred at oral argument: "We did not choose to adopt by 

incorporation or by reference those arguments." Such statements 

conflict with any claimed refusal to submit to a court's 

jurisdiction. We conclude WEC knowingly abandoned, and 

therefore waived, sovereign immunity. 

¶44 At best, DRW's objection implicates the court's 

competency, which lacks any constitutional importance. 

"[S]ubject matter jurisdiction and competence are related but 

distinct concepts." City of Cedarburg, 390 Wis. 2d 109, ¶49. 

"Subject matter jurisdiction . . . refers 'to the power of 

a . . . court to decide certain types of actions.'" Booth, 370 

Wis. 2d 595, ¶7 (quoting State v. Smith, 2005 WI 104, ¶18, 283 

Wis. 2d 57, 699 N.W.2d 508). "In other words, subject matter 

jurisdiction is about the type or category of case brought." 

City of Cedarburg, 390 Wis. 2d 109, ¶49. In contrast, 

"[c]ompetence . . . is about a court's ability to exercise its 

jurisdiction in an individual case." Id. With few exceptions, 

"a circuit court is never without subject matter jurisdiction;" 

however, "[a] circuit court's ability to exercise its subject 

matter jurisdiction in individual cases . . . may be affected by 

noncompliance with statutory requirements pertaining to the 

invocation of that jurisdiction." See Booth, 370 Wis. 2d 595, 

¶12 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶1–

2, 273 Wis. 2d 76, 681 N.W.2d 190). Noncompliance with a 

required statutory procedure can trigger a competence question, 
No. 2022AP91 

28

but a lack of competence is not jurisdictional. City of 

Cedarburg, 390 Wis. 2d 109, ¶47 (citing Mikrut, 273 Wis. 2d 76, 

¶¶12, 34).

¶45 DRW's argument is underdeveloped, perhaps because it 

spent large swaths of its briefing trying to create a 

constitutional issue when one does not exist. We need not 

address underdeveloped arguments. Papa v. Wis. Dep't of Health 

Servs., 2020 WI 66, ¶42 n.15, 393 Wis. 2d 1, 946 N.W.2d 17. We 

nonetheless choose to resolve this one because of the issue's 

importance in the context of election law.

¶46 DRW cites Wis. Stat. § 5.06, which states, in relevant 

part:

(1) Whenever any elector of a jurisdiction or district 

served by an election official believes that a 

decision or action of the official or the failure 

of the official to act with respect to any matter 

concerning . . . election administration or conduct 

of elections is contrary to law, or the official 

has abused the discretion vested in him or her by 

law with respect to any such matter, the elector 

may file a written sworn complaint with the 

commission requesting that the official be required 

to conform his or her conduct to the law, be 

restrained from taking any action inconsistent with 

the law or be required to correct any action or 

decision inconsistent with the law or any abuse of 

the discretion vested in him or her by law.

(2) No person who is authorized to file a complaint 

under sub. (1), other than the attorney general or 

a district attorney, may commence an action or 

proceeding to test the validity of any decision, 

action or failure to act on the part of any 

election official with respect to any matter 

specified in sub. (1) without first filing a 

complaint under sub. (1), nor prior to disposition 

of the complaint by the commission. . . .
No. 2022AP91 

29

According to DRW, the law bars the Wisconsin voters' complaint 

against WEC because they did not first file it with WEC. 

Section 5.06, read in context, does not mean what DRW claims. 

See Brey v. State Farm Mut. Auto Ins. Co., 2022 WI 7, ¶11, 400 

Wis. 2d 417, 970 N.W.2d 1 (explaining statutes are read in 

context).

¶47 First, Wis. Stat. § 5.06(1) applies only to complaints 

against "election official[s]." "Election officials" are 

specific "individuals" (not "person[s]")22 who are "charged with 

any duties relating to the conduct of an election." Wis. Stat. 

§ 5.02(4e). The Wisconsin voters brought this lawsuit against 

WEC, not any individual, alleging WEC's memos do not comport 

with the law. "In chs. 5 to 10 and 12 [of the Wisconsin 

statutes]," the word "commission" is used to refer to WEC. Wis. 

Stat. § 5.025. Section 5.06 does not require voters to complain 

to the "commission" when they believe WEC has violated the law——

only when they believe an "election official" has. Intuitively, 

this distinction makes sense: "No man is allowed to be a judge 

in his own cause; because his interest will certainly bias his 

judgment, and, not improbably, corrupt his integrity." The 

Federalist No. 10, at 107 (James Madison) (John C. Hamilton ed., 

1882); see also The Code of Justinian 3.5.1 (Valens, et al. 378)

("[N]o one shall act as judge in his own case, or interpret the 

law for himself, as it would be very unjust to give anyone the 

 

22 See Wis. Stat. § 990.01(26) ("'Person' includes all 

partnerships, associations and bodies politic or corporate.").
No. 2022AP91 

30

right to render a decision in an affair which is his own."). 

DRW's reliance on cases involving claims against election 

officials——not WEC——is misplaced. See Kuechmann v. Sch. Dist. 

of La Crosse, 170 Wis. 2d 218, 487 N.W.2d 639 (Ct. App. 1992).

¶48 Second, the remedies WEC can impose under Wis. Stat. 

§ 5.06(6) would be senseless if they were applied by WEC against 

itself. Is WEC supposed to "order" itself to "conform" its (not 

"his or her") "conduct to the law"? § 5.06(1). Can WEC order

itself "restrain[ed]" or "require[]" itself to "correct any 

action or decision" it has taken that is "inconsistent with the 

law"? Id. The plain language of § 5.06(6) does not contemplate 

giving an election official a chance to reconsider the 

official's position; it contemplates WEC issuing binding 

directives to such officials.

¶49 Third, the legislature knows how to write a statute 

accomplishing the work DRW would have Wis. Stat. § 5.06 perform. 

See State v. Yakich, 2022 WI 8, ¶24, 400 Wis. 2d 549, 970 

N.W.2d 12 (explaining plain meaning may be derived by looking at 

differences between two statutes and noting "the legislature 

knew how to draft [different] language" (quoting Milwaukee J. 

Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶36–37, 341 

Wis. 2d 607, 815 N.W.2d 367) (modification in the original)). 

For example, Wis. Stat. § 68.09(2), which governs municipal 

administrative review, states, "[a] review under this section 

may be made by the officer, employee, agent, agency, committee, 

board, commission or body who made the initial determination." 

No similar explicit language appears in § 5.06. The 
No. 2022AP91 

31

commissioners of WEC guard elections; if the legislature wanted 

the guards to guard themselves, it would have drafted § 5.06 to 

mirror § 68.09(2).23

¶50 Fourth, the Wisconsin voters filed this case under 

Wis. Stat. § 227.40. Subsection (1) of that statute states, 

"[a] declaratory judgment may be rendered whether or not the 

plaintiff has first requested the agency to pass upon the 

validity of the rule or guidance document in question." 

Although Wis. Stat. § 5.06 could be construed to conflict with 

§ 227.40(1), such a reading would be erroneous. When reasonably 

possible, we read statutes in harmony, and a harmonious reading 

is quite reasonable in this case. See T.L.E.-C., 397 

Wis. 2d 462, ¶30 ("The statutory provisions we construe exist in 

harmony."); Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 180 (2012) ("The provisions of a 

text should be interpreted in a way that renders them 

compatible, not contradictory."). Accordingly, we need not 

consider DRW's argument that § 5.06 is a more specific statute 

that trumps § 227.40.24 See Milwaukee Dist. Council 48 v. 

 

23 The Wisconsin voters ask, "quis custodiet ipsos 

custodes?" Translated to English, "who will be guarding the 

guards?" See The Satires of Juvenal 78 (Rolfe Humphries trans., 

1958) (emphasis removed).

24 If we were to address the specific-general canon on which 

defendants rely, which statute should govern is unclear. 

Wisconsin Stat. § 5.06 is more specific in the sense that it 

references election disputes, but Wis. Stat. § 227.40 is more 

specific in governing judicial review of administrative rules 

and guidance documents.
No. 2022AP91 

32

Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 

N.W.2d 153 ("Therefore, statutory language is interpreted in the 

context in which it is used; not in isolation but as part of a 

whole; in relation to the language of surrounding or closelyrelated statutes; and reasonably, to avoid absurd or 

unreasonable results." (quoting State ex rel. Kalal v. Cir. Ct. 

for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 

N.W.2d 110)); Scalia & Garner, Reading Law, at 183 (explaining 

the general-specific canon applies "when conflicting provisions 

simply cannot be reconciled").

¶51 For each of these reasons, we reject DRW's argument. 

Whether framed in terms of sovereign immunity or competency, it 

fails. Neither the statutes nor judicial policy precludes this 

court from resolving the Wisconsin voters' claims against WEC.

B. The Merits 

¶52 WEC's staff may have been trying to make voting as 

easy as possible during the pandemic, but whatever their 

motivations, WEC must follow Wisconsin statutes. Good 

intentions never override the law.25 

 

25 Justice Ann Walsh Bradley accuses the court of 

"erect[ing] yet another barrier for voters," dissent, ¶205, but 

to the extent any "barriers" to voting exist, they are of the 

legislature's making. Establishing rules governing the casting 

of ballots outside of election day rests solely within the power 

of the people's representatives because such regulations affect 

only the privilege of absentee voting and not the right to vote 

itself. Justice Ann Walsh Bradley says "[a] ballot drop box is 

a simple and perfectly legal solution to make voting easier[.]" 

Id., ¶207. While they might be a simple solution, the decision 

to devise solutions to make voting easier belongs to the 

legislature, not WEC and certainly not the judiciary. While the 

dissenters would permit ballot drop boxes, the court must
No. 2022AP91 

33

1. Legislative Policy Directs Us to Take a Skeptical View of 

Absentee Voting

¶53 Subchapter IV of chapter 6 of the Wisconsin statutes 

begins with a statement of legislative policy that cannot be 

reconciled with the statements of policy contained in WEC's 

memos:

LEGISLATIVE POLICY. 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); see also Mays v. LaRose, 951 F.3d 775, 792 

(6th Cir. 2020) ("[T]here is no constitutional right to an 

absentee ballot." (citing McDonald v. Bd. of Elections Comm'rs 

of Chi., 394 U.S. 802, 807–09 (1969)). The statutory 

requirements governing absentee voting must be completely 

satisfied or ballots may not be counted:

INTERPRETATION. 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.

 

respect the constitutional restraints on our power and refuse to 

act as a super-legislature. It poses a grave threat to 

democracy to mislead the people into believing we are one.
No. 2022AP91 

34

§ 6.84(2). "[M]andatory" election requirements "must be 

strictly adhered to" and "strictly observed." State ex rel. 

Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 592–93, 263 

N.W.2d 152 (1978). 

¶54 Despite these provisions, no defendant can point to 

any statute authorizing ballot drop boxes; instead, the 

defendants argue no statute expressly prohibits them. The 

absence of an express prohibition, however, does not mean drop 

boxes comport with "the procedures specified" in the election 

laws. Wis. Stat. § 6.84(2). Nothing in the statutory language 

detailing the procedures by which absentee ballots may be cast 

mentions drop boxes or anything like them. 

2. Ballot Drop Boxes Are Unauthorized by Law

¶55 Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant 

part, that absentee ballots "shall be mailed by the elector, or 

delivered in person, to the municipal clerk issuing the ballot 

or ballots." The prepositional phrase "to the municipal clerk" 

is key and must be given effect. Wisconsin Stat. § 5.02(10) 

defines "municipal clerk" as "the city clerk, town clerk, 

village clerk and the executive director of the city election 

commission and their authorized representatives. Where 

applicable, 'municipal clerk' also includes the clerk of a school 

district." An inanimate object, such as a ballot drop box, 

cannot be the municipal clerk. At a minimum, accordingly, 

dropping a ballot into an unattended drop box is not delivery 

"to the municipal clerk[.]"
No. 2022AP91 

35

¶56 Wisconsin Stat. § 6.855 further shows the unlawfulness 

of ballot drop boxes. Subsection (1) of that statute states:

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. The designated site shall be 

located as near as practicable to the office of the 

municipal clerk or board of election commissioners and 

no site may be designated that affords an advantage to 

any political party. An election by a governing body 

to designate an alternate site under this section 

shall be made no fewer than 14 days prior to the time 

that absentee ballots are available for the primary 

under s. 7.15 (1) (cm), if a primary is scheduled to 

be held, or at least 14 days prior to the time that 

absentee ballots are available for the election under 

s. 7.15 (1) (cm), if a primary is not scheduled to be 

held, and shall remain in effect until at least the 

day after the 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.

Subsection (3) declares an alternate absentee ballot site must 

be "staffed by the municipal clerk or the executive director of 

the board of election commissioners, or employees of the clerk 

or the board of election commissioners." Subsection (5) allows 

the establishment of multiple alternate sites.

¶57 Ballot drop boxes are not alternate absentee ballot 

sites under Wis. Stat. § 6.855 because a voter can only return 

the voter's absentee ballot to a drop box, while an alternate 

site must also allow voters to request and vote absentee at the 

site. If a drop box were an alternate ballot site, by the plain 
No. 2022AP91 

36

language of the statute, "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). The 

defendants do not advance this construction of the statutes.

¶58 If ballot drop boxes are not alternate absentee ballot 

sites, "what [are] they?" Trump v. Biden, 2020 WI 91, ¶101, 394 

Wis. 2d 629, 951 N.W.2d 568 (Roggensack, C.J., dissenting). 

Existing outside the statutory parameters for voting, drop boxes 

are a novel creation of executive branch officials, not the 

legislature. The legislature enacted a detailed statutory 

construct for alternate sites. In contrast, the details of the 

drop box scheme are found nowhere in the statutes, but only in 

memos prepared by WEC staff, who did not cite any statutes 

whatsoever to support their invention.

¶59 Wisconsin Stat. § 6.855 identifies the sites at which 

in person absentee voting may be accomplished——either "the 

office of the municipal clerk" or "an alternate site" but not 

both. "An alternate site" serves as a replacement for "the 

office of the municipal clerk" rather than an additional site 

for absentee voting. Wisconsin Stat. § 6.87(4)(b)1. requires 

the elector to mail the absentee ballot or deliver it in person, 

"to the municipal clerk," which is defined to include 

"authorized representatives." This subparagraph contemplates 

only two ways to vote absentee: by mail and at "the office of 

the municipal clerk" or "an alternate site" as statutorily 

described. No third option exists.
No. 2022AP91 

37

¶60 Other election statutes are similarly silent on any 

other method of voting absentee other than by mail or at the 

office of the municipal clerk. Wisconsin Stat. § 5.81(3) 

provides, in relevant part: "If a municipality utilizes an 

electronic voting system in which ballots distributed to 

electors are employed, absentee ballots may consist of ballots 

utilized with the system or paper ballots and envelopes voted in 

person in the office of the municipal clerk or voted by mail." 

The statute states, "absentee ballots may consist of" and then 

describes ballots cast "in person in the office of the municipal 

clerk" and ballots "voted by mail." § 5.81(3). The legislature 

did not contemplate absentee ballots "consist[ing]" of ballots 

cast via a drop box. 

¶61 In Wis. Stat. § 6.87(4)(b)1. the prepositional phrase, 

"to the municipal clerk," modifies both the clause "mailed by 

the elector," i.e., absentee ballots "shall be mailed by the 

elector . . . to the municipal clerk" as well as "delivered in 

person." The defendants contend "to the municipal clerk" 

encompasses unstaffed drop boxes maintained by the municipal 

clerk. A hyper-literal interpretation of this prepositional 

phrase, taken out of context, would permit voters to mail or 

personally deliver absentee ballots to the personal residence of 

the municipal clerk or even hand the municipal clerk absentee 

ballots at the grocery store. "Municipal clerk," however, 

denotes a public office, held by a public official acting in an 

official capacity when performing statutory duties such as 

accepting ballots. The statutes do not authorize the municipal 
No. 2022AP91 

38

clerk to perform any official duties related to the acceptance 

of ballots at any location beyond those statutorily prescribed.

¶62 The fairest interpretation of the phrase "to the 

municipal clerk" means mailing or delivering the absentee ballot 

to the municipal clerk at her office or, if designated under 

Wis. Stat. § 6.855, an alternate site. "Properly applied, the 

plain-meaning approach is not 'literalistic'; rather, the 

ascertainment of meaning involves a 'process of analysis' 

focused on deriving the fair meaning of the text itself." Brey, 

400 Wis. 2d 417, ¶11 (quoting Kalal, 271 Wis. 2d 633, ¶¶46, 52). 

Adopting a literalistic interpretation instead of applying the 

fair meaning of "to the municipal clerk" would similarly subject 

any "authorized representative" of the municipal clerk to the 

same intrusions of accepting ballots wherever a voter may find 

the municipal clerk's representative. Wis. Stat. § 5.02(10). 

Interpreting Wis. Stat. § 6.87(4)(b)1. to permit such methods of 

casting an absentee ballot would contravene the legislative 

policy expressed in Wis. Stat. § 6.84(1) and border on the 

absurd. See Scalia & Garner, Reading Law, at 217 ("A preamble, 

purpose clause, or recital is a permissible indicator of 

meaning.").

¶63 Notwithstanding the detailed and unambiguous language 

of Wis. Stat. §§ 6.84 and 6.855, WEC asks this court to conclude 

the legislature "hid[] [an] elephant[] in [a] mousehole[.]" See

Whitman v. Amer. Trucking Ass'n, 531 U.S. 457, 468 (2001) 

(citations omitted). Coined by Justice Antonin Scalia, this 

turn of phrase means the legislature "does not alter the 
No. 2022AP91 

39

fundamental details of a regulatory scheme in vague terms or 

ancillary provisions[.]" Id.; see also Palm, 391 Wis. 2d 497, 

¶¶53–56. WEC would have us believe, hiding within four words, 

"to the municipal clerk," is an expansive conception of voting 

methods never before recognized. We decline to read into the 

statutes a monumentally different voting mechanism not specified 

by the legislature. See E.P.A. v. EME Homer City Generation, 

L.P., 572 U.S. 489, 528 (2014) (Scalia, J., dissenting) ("It 

would be extraordinary for Congress, by use of the single word 

'significantly,' to transmogrify a statute that assigns 

responsibility on the basis of amounts of pollutants emitted 

into a statute authorizing EPA to reduce interstate pollution in 

the manner that it believes most efficient.").

¶64 WEC and DRW argue the drop box "elephant" is, in fact, 

no elephant at all. WEC claims "the Commission did not create 

[ballot] drop boxes. The March 2020 memorandum provided 

guidance in response to clerks' inquiries about their use, and 

there is testamentary evidence that drop boxes were used in 

Wisconsin before the August 2020 memorandum." Of course "there 

is . . . evidence" drop boxes were used before the issuance of 

Memo two because WEC issued Memo one in March, which comes 

before August. 

¶65 The record evidence WEC cited does not support its 

argument that ballot drop boxes have been in common and 

longstanding use in this state. First, WEC cites Memo one, 

which says, "clerks have inquired about options for ensuring 

that the maximum number of ballots are returned to be counted 
No. 2022AP91 

40

for the April 7, 2020 election." This statement suggests a 

state of uncertainty surrounding the legality of drop boxes, 

rather than documenting their ostensibly extensive use. 

¶66 Second, WEC cites a third memo prepared by WEC's 

staff, responding to a recent study by the Legislative Audit 

Bureau (LAB), a non-partisan institution. In this report, LAB 

concluded WEC had overstepped its lawful authority by 

authorizing ballot drop boxes.26 Citing no evidence, this third 

memo proclaims "[t]he use of ballot drop boxes at the local 

level in Wisconsin, and elsewhere in the country, predates the 

Wisconsin Election Commission's . . . August 19, 2020, 

memorandum on the topic[.]" For support, WEC noted, "no 

Wisconsin court has foreclosed the idea of lawfully using 

absentee ballot drop boxes," expressly referencing this very 

case and adding, "[t]he case is ongoing and no resolution has 

been reached at this time." For this third memo to be given any

weight would require us to hold a government agency can be sued 

and then issue what amounts to a press release that it can cite 

as support for its interpretation of law.

 

26 Legislative Audit Bureau, Elections Administration

(2021), https://legis.wisconsin.gov/lab/media/3288/21-

19full.pdf; see also Off. of the Special Couns., Second Interim 

Investigative Report on the Apparatus & Procedures of the 

Wisconsin Elections System 78 (Mar. 1, 2022), 

https://legis.wisconsin.gov/assembly/22/brandtjen/media/1552/osc

-second-interim-report.pdf ("In Wisconsin, election officials' 

unprecedented use of absentee ballot drop boxes facially 

violated Wisconsin law.").
No. 2022AP91 

41

¶67 Third, WEC cites its own website, which has a page 

that is not significantly different than the third memo. The 

page bears the heading "[w]hy did WEC allow clerks to use drop 

boxes for absentee ballots?" WEC offers the following 

conclusory statement: "some clerks have used them prior to 

2020" but supplies no evidence.

¶68 Lastly, WEC (along with DRW) cites an affidavit from 

Administrator Wolfe as evidence of the supposedly "extensive 

history" of ballot drop boxes in Wisconsin. The affidavit 

merely says, "[t]he use of absentee ballot drop boxes in the 

United States predates the [COVID-19] pandemic." Again, 

Administrator Wolfe offers no evidence to support this 

statement. Even if the assertions regarding the historical use 

of ballot boxes were true, they are irrelevant. Longstanding 

noncompliance with the law does not cure its illegality.

¶69 Perhaps realizing "delivery in person[] to the 

municipal clerk" does not mean nor has it been historically 

understood to mean delivery to an unattended ballot drop box, 

the defendants analogize these boxes to a mailbox. Of course, 

the law expressly allows a voter to place an absentee ballot in 

a mailbox. Wis. Stat. § 6.87(4)(b)1. ("shall be mailed by the 

elector . . . ."). Ballot drop boxes, however, are not 

mailboxes.

¶70 The ordinary meaning of "mailed by the elector" in 

Wis. Stat. § 6.87(4)(b)1. contemplates involvement by a thirdparty mail carrier. The very next sentence of the statute 

declares, "[i]f the envelope is mailed from a location outside 
No. 2022AP91 

42

the United States, the elector shall affix sufficient postage 

unless the ballot qualifies for delivery free of postage under 

federal law." § 6.87(4)(b)1. To affix postage to an absentee 

ballot placed in a ballot drop box would be a waste of a 

perfectly good stamp. Similarly, § 6.87(3)(a) directs, in 

relevant part, "the municipal clerk shall mail the absentee 

ballot to the elector's residence . . . . If the ballot is 

mailed, and the ballot qualifies for mailing free of postage 

under federal free postage laws, the clerk shall affix the 

appropriate legend required by U.S. postal regulation. 

Otherwise, the clerk shall pay the postage required[.]" In 

common parlance, "mail" may encompass delivery services by 

private businesses such as FedEx or UPS, in addition to the 

United States Postal Service.27

¶71 If there were any lingering doubt about the difference 

between drop boxes and mailing, drop boxes trigger the very 

concerns the legislature expressly seeks to avoid. "[V]oting 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[.]" Wis. Stat. § 6.84(1). As the Wisconsin voters argue, 

"a drop box contains only ballots, and lots of them in one place 

 

27 The plain meaning of "mail" supports this conclusion. 

See Mail, The American Heritage Dictionary of the English 

Language 1083 (3d ed. 1992) ("To send by mail;" "Materials, such 

as letters and packages, handled in a postal system.").
No. 2022AP91 

43

at the same time, making it a prime target for would-be 

tamperers, whereas mailboxes may or may not contain ballots at 

any given time." While the legislature has recognized absentee 

voting has many benefits for voters, the legislature has also 

enacted safeguards designed to minimize the possibility of 

fraud. "Voting fraud is a serious problem in U.S. 

elections[,] . . . and it is facilitated by absentee voting. In 

this respect absentee voting is to voting in person as a takehome exam is to a proctored one." Griffin v. Roupas, 385 

F.3d 1128, 1130–31 (7th Cir. 2004) (internal citations omitted).

¶72 We conclude WEC's staff erred by authorizing a voting 

mechanism not authorized by law. The memos created a ballot 

drop box scheme entirely absent from Wisconsin's election code. 

The legislature's "carefully regulated" procedures for absentee 

voting do not permit voting via ballot drop boxes.

3. "[I]n Person" Absentee Voting Requires the Voter to 

Personally Deliver the Ballot to the Municipal Clerk

¶73 WEC's staff also erred in Memo one by stating "[a] 

family member or another person may . . . return the ballot on 

behalf of the voter," i.e., an agent of the voter may place the 

voter's absentee ballot in a drop box. The law does not permit 

this. Wisconsin Stat. § 6.87(4)(b)1. states, in relevant part, 

"[t]he envelope shall be mailed by the elector, or delivered in 

person, to the municipal clerk issuing the ballot or ballots." 

(Emphasis added.) The key phrase is "in person" and it must be 

assigned its natural meaning.
No. 2022AP91 

44

¶74 "[I]n person" denotes "bodily presence" and the 

concept of doing something personally. in person, The Oxford 

English Dictionary 598 (2d. ed. 1989) (defining "in person" as 

"with or by one's own action or bodily presence; personally; 

oneself"); Person, Webster's Third New International Dictionary

1686 (2002) ("bodily presence —— usu. used in the phrase in 

person"); in person, The Random House Dictionary of the English 

Language 1445 (2d ed. 1987) ("in one's own bodily presence; 

personally; Applicants are requested to apply in person.").

¶75 As used throughout Wisconsin's election code, the 

phrase "in person" refers to a voter acting directly, not 

through an agent. See 5 Wis. Att'y Gen. 591, 592 (1916) ("The 

statute says: 'Application for such ballot shall be made in 

person.' (Sec. 11.56.) The ordinary meaning of the phrase 'in 

person' is that the request must come directly from the elector 

who was corporally present before the clerk."). For example, 

Wis. Stat. § 6.86(1)(a) states, in relevant part:

(a) Any elector of a municipality who is registered to 

vote whenever required and who qualifies under ss. 

6.20 and 6.85 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:

1. By mail.

2. In person at the office of the municipal clerk 

or at an alternate site under s. 6.855, if 

applicable.

. . . .

4. By agent as provided in sub. (3).
No. 2022AP91 

45

(Emphasis added.) Section 6.86(1)(a) unequivocally 

distinguishes between "in person" and "by agent." Subsection 

(3) then begins by stating, "[a]ny elector who is registered and 

who is hospitalized, may apply for and obtain an official ballot 

by agent." § 6.86(3)(a)1. (Emphasis added.) It then describes 

the process of receiving a ballot by agent. The legislature 

obviously knows how to authorize a voter to act through an 

agent; it used such language in § 6.86 but not Wis. Stat. 

§ 6.87. See Yakich, 400 Wis. 2d 549, ¶24 (quoting Milwaukee J. 

Sentinel, 341 Wis. 2d 607, ¶¶36–37).

¶76 Other election statutes also explicitly describe an 

agency relationship. For example, the phrase "municipal clerk"

includes "authorized representatives." Wis. Stat. § 5.02(10) 

("'Municipal clerk' means the city clerk, town clerk, village 

clerk and the executive director of the city election commission 

and their authorized representatives. Where applicable, 

'municipal clerk' also includes the clerk of a school 

district."); see also § 5.02(2) ("'County clerk' includes the 

executive director of the county board of election commissioners 

and their authorized representatives.").

¶77 Unlike "municipal clerk," the definition of "elector" 

does not encompass an agency relationship. Wis. Stat. § 6.02(1) 

("Every U.S. citizen age 18 or older who has resided in an 

election district or ward for 28 consecutive days before any 

election where the citizen offers to vote is an eligible 

elector."); see also Wis. Stat. § 6.85(1) ("An absent elector is 

any otherwise qualified elector who for any reason is unable or 
No. 2022AP91 

46

unwilling to appear at the polling place in his or her ward or 

election district."); Wis. Stat. § 5.02(12n) ("'Overseas 

elector' means a U.S. citizen who is residing outside of the 

United States, who is not disqualified from voting under s. 

6.03, who has attained or will attain the age of 18 by the date 

of an election at which the citizen proposes to vote, who was 

last domiciled in this state or whose parent was last domiciled 

in this state immediately prior to the parent's departure from 

the United States, and who is not registered to vote or voting 

in any other state, territory, or possession.").

¶78 WEC does not address this dispositive statutory 

distinction between "in person" and "by agent," instead 

primarily emphasizing the presence of the passive voice in Wis. 

Stat. § 6.87(4)(b)1.: "The envelope shall be . . . delivered in 

person[.]" In support of its argument, WEC quotes a Seventh 

Circuit decision as stating: "a legislature's use of the 

passive voice sometimes reflects indifference to the actor." 

Rubin v. Islamic Republic of Iran, 830 F.3d 470, 479 (7th Cir. 

2016), aff’d, 138 S. Ct. 816 (2018). The paragraph from which 

WEC selectively seized that sentence defeats WEC's position:

It's true that a legislature's use of the passive 

voice sometimes reflects indifference to the actor. 

See Dean v. United States, 556 U.S. 568, 572, 129 

S.Ct. 1849, 173 L.Ed.2d 785 (2009) ("The passive voice

focuses on an event that occurs without respect to a 

specific actor. . . ."). But attributing indifference 

to Congress in this instance would be inconsistent 

with the FSIA's statutory declaration of purpose, 

which explicitly invokes the international law

understanding of foreign sovereign immunity: "Under 

international law, states are not immune from the 
No. 2022AP91 

47

jurisdiction of foreign courts insofar as their 

commercial activities are concerned, and their 

commercial property may be levied upon for the 

satisfaction of judgments rendered against them in 

connection with their commercial activities." 28 

U.S.C. § 1602[.]

Id. (emphasis added). Rubin suggests the statement of 

legislative policy in Wis. Stat. § 6.84 is a better indicator of 

statutory meaning than the passive voice used in § 6.87(4)(b)1. 

¶79 A case cited by DRW is likewise unpersuasive because 

it pre-dates Wis. Stat. § 6.84. In Sommerfeld v. Board of 

Canvassers of the City of St. Francis, 18 absentee "voters did 

not return . . . absentee ballots in the envelopes by mail, or 

deliver[] the same in person, as provided by [a predecessor 

statute], but caused the same to be returned to the Clerk of the 

City of St. Francis by a third person, who returned the sealed 

envelopes to the said Clerk." 269 Wis. 299, 301, 69 N.W.2d 235 

(1955). A majority of this court concluded: 

If our statute is construed to mean that the voter 

shall himself mail the ballot or personally deliver it 

to the clerk, then the statute would defeat itself in 

the case of those who are sick or physically disabled. 

They would be unable to mail ballots except through an 

agent. Having made provision that these unfortunate 

people can vote, we cannot believe that the 

legislature meant to disenfranchise them by providing 

a condition that they could not possibly perform.

Id. at 303. To the extent Sommerfeld has any relevance, it too 

undercuts the defendants' arguments.

¶80 First, the legislature superseded Sommerfeld's 

conclusion in 1986 by adopting Wis. Stat. § 6.84. 1985 Wis. Act 

304, § 68n. Section 6.84(2) provides that "with respect to 

matters relating to the absentee ballot process," several 
No. 2022AP91 

48

statutes, including § 6.87(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." 

The adoption of § 6.84 renders Sommerfeld a nullity. The 

majority in that case relied on a different statutory provision: 

"Section 5.011 provides that Title II shall be construed so as 

to give effect to the will of the electors, if that can be 

ascertained, notwithstanding informality or failure to comply 

with some of its provisions."28 Sommerfeld, 269 Wis. at 302.

¶81 The Sommerfeld majority deemed the in person delivery 

requirement "directory only," so it reasoned "a delivery of 

ballots by agent is a substantial compliance" permitting the 

counting of the ballots. Id. at 304. In election law, "[t]he 

difference between mandatory and directory provisions of 

election statutes lies in the consequence of nonobservance: an 

act done in violation of a mandatory provision is void, whereas 

an act done in violation of a directory provision, while 

improper, may nevertheless be valid." Id. at 303 (quoting 29 

C.J.S. § 214). Much of the majority opinion in Sommerfeld is 

spent explaining why the majority deemed the relevant statute 

merely directory and describing the "complaint" as "purely 

 

28 See Wis. Stat. § 5.01(1) ("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.").
No. 2022AP91 

49

technical." Id. at 304. This entire discussion of how to 

classify a statute——mandatory or directory——seemed to rest on 

the assumption that the statute was not followed; if the statute 

were followed, the majority would not have needed to declare the 

law merely directory.

¶82 Three justices dissented, offering a statutory 

interpretation consistent with our reading of Wis. Stat. 

§ 6.87(4)(b)1. The dissent defined "in person" as "[b]y one's 

self; with bodily presence." Id. at 304 (Gehl, J., dissenting) 

(quoting in person, Webster's New International Dictionary (2d 

ed. 1934)). It then noted, "[h]ad the legislature intended that 

the ballot might be delivered by a representative, it might 

easily have so declared." Id. "Nothing is found in the 

statutes concerning absentee voting that indicates legislative 

disposition to permit the absentee ballot to be delivered by 

agent." Id. at 305.

¶83 Reading the election statutes in context and as a 

whole, we conclude an absentee ballot delivered in person under 

Wis. Stat. § 6.87(4)(b)1. must be delivered personally by the 

voter. Unlike Wis. Stat. § 6.86, which allows the receipt of an 

absentee ballot through an agent under particular circumstances 

and subject to detailed procedures, no similar language 

authorizes voters not meeting the exceptions outlined under 

§ 6.86 to cast a ballot through delivery by an agent. 

IV. FEDERAL PREEMPTION

¶84 DRW argues federal law preempts the circuit court's 

interpretation of Wisconsin statutes. It cites 52 
No. 2022AP91 

50

U.S.C. § 10508 (2018), which provides, "[a]ny voter who requires 

assistance to vote by reason of blindness, disability, or 

inability to read or write may be given assistance by a person 

of the voter's choice[.]" DRW claims "[t]he assistance 

addressed [in this statute] . . . extends to returning that 

ballot so it may be counted." DRW's discussion of § 10508 is 

limited to one paragraph in its opening brief. It cites nothing 

more than a single source of legislative history for support. 

DRW selectively quotes from this report, omitting the first 

sentence of the paragraph on which it relies, which states: 

"STATE PROVISIONS WOULD BE PREEMPTED ONLY TO THE EXTENT THAT 

THEY UNDULY BURDEN THE RIGHT RECOGNIZED IN THIS SECTION, WITH 

THAT DETERMINATION BEING A PRACTICAL ONE DEPENDENT UPON THE 

FACTS." See S. Rep. No. 97-417 (1982), 97th Cong., 2d Sess. at 

63. Additionally, DRW does not address Wis. Stat. § 6.87(5), 

which states:

If the absent elector declares that he or she is 

unable to read, has difficulty in reading, writing or 

understanding English or due to disability is unable 

to mark his or her ballot, the elector may select any 

individual, except the elector's employer or an agent 

of that employer or an officer or agent of a labor 

organization which represents the elector, to assist 

in marking the ballot, and the assistant shall then 

sign his or her name to a certification on the back of 

the ballot, as provided under s. 5.55.

The language of this subsection is similar to § 10508.

¶85 DRW also cites the Americans with Disabilities Act 

(ADA), but, similarly, its discussion of the ADA is limited to a 

single paragraph in its opening brief. DRW does not cite any 
No. 2022AP91 

51

binding cases supporting its preemption argument, nor does DRW 

discuss preemption in its reply brief, even though the Wisconsin 

voters complained the argument was underdeveloped. 

¶86 As far as we can discern, DRW's argument largely rests 

on the practical impact of the circuit court's declarations on 

disabled voters who may be physically unable to vote if someone 

cannot place an absentee ballot in the mail on a voter's behalf. 

We agree with the Wisconsin voters that DRW's argument is 

underdeveloped. See State v. Gracia, 2013 WI 15, ¶28 n.13, 345 

Wis. 2d 488, 826 N.W.2d 87 (explaining we do not have to address 

underdeveloped arguments (cited source omitted)); see also In re 

Disciplinary Proc. Against Johns, 2014 WI 32, ¶45, 353 

Wis. 2d 746, 847 N.W.2d 179 (per curiam) ("The OLR ignores the 

topic in its reply brief. . . . We take this lack of reply by 

the OLR as a concession[.]" (cited source omitted)). Because 

"[p]reemption . . . is disfavored 'in the absence of persuasive 

reasons,'" the shallowness of the argument undermines it. See

Town of Delafield, 392 Wis. 2d 427, ¶6 (quoting Chi. & N.W. 

Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981)). 

Whatever accommodations federal law requires, Wis. Stat. 

§ 6.87(5) seems to permit them. See also Wis. Stat. 

§ 6.87(4)(b)1. ("The elector may receive assistance under sub. 

(5)."). We address the argument no further.
No. 2022AP91 

52

V. CONCLUSION29

¶87 Only the legislature may permit absentee voting via 

ballot drop boxes. WEC cannot. Ballot drop boxes appear 

nowhere in the detailed statutory system for absentee voting. 

WEC's authorization of ballot drop boxes was unlawful, and we 

therefore affirm the circuit court's declarations and permanent 

injunction of WEC's erroneous interpretations of law except to 

the extent its remedies required absentee voters to personally 

mail their ballots, an issue we do not decide at this time, and 

we decline to decide at this time whether the memos are also 

invalid as unpromulgated administrative rules.

By the Court.——The judgment and order of the Circuit Court 

are affirmed.

 

29 "Finally, and most importantly, the dissent's resort to 

[ad hominem attacks on the majority] is a poor substitute for 

legal argument. Such personal aspersions have no place in a 

judicial opinion. . . . [It] do[es] real damage to the public's 

perception of this court's work. We must aspire to be better 

models of respectful dialogue to preserve the public's 

confidence on which this court's legitimacy relies." Becker v. 

Dane County, 2022 WI __, ¶44, __ Wis. 2d __, __ N.W.2d __ 

(Karofsky, J.). Although Justice Jill J. Karofsky recently 

complained about the tone of a dissent she deemed too harsh

(joined by Justice Hagedorn, who does not join this footnote), 

she nevertheless joins a dissent that accuses her colleagues of 

"blithely and erroneously seek[ing] to sow distrust in the 

administration of our elections and through its faulty analysis 

erect[ing] yet another barrier for voters[.]" Dissent, ¶205. 

The dissent continues, "[s]uch a result, although lamentable, is 

not a surprise from this court. It has seemingly taken the 

opportunity to make it harder to vote or to inject confusion 

into the process whenever it has been presented with the 

opportunity. . . . [W]ithout justification [the majority] fans 

the flames of electoral doubt that threaten our democracy." 

Id., ¶¶206, 208. Political talking points are no substitute for

legal analysis.
No. 2022AP91 

53
No. 2022AP991.pdr

1

¶88 PATIENCE DRAKE ROGGENSACK, J. (concurring). The 

majority opinion concludes that the Wisconsin Elections 

Commission's (WEC) documents (hereinafter memos) are invalid 

because ballot drop boxes are not legal in Wisconsin and because

absentee ballots must be personally delivered by the voter to 

the municipal clerk at the clerk's office. I agree, and join 

the majority opinion. I write further to explain that, under 

Wisconsin statutes, it is the elector who shall mail the 

absentee ballot to the municipal clerk. Accordingly, I 

respectfully concur. 

I. BACKGROUND1

¶89 During the COVID-19 pandemic, citizens of Wisconsin 

were advised to avoid large crowds and to socially distance from 

each other. This advice changed the way that many citizens 

participated in personal tasks. For example, during the 2020 

Spring election, many voters opted to vote absentee and absentee 

voting increased. 

¶90 The WEC issued multiple memos, which were directed at 

municipal clerks and election officials. Relevant to our 

discussion, the first memo stated, among other things, that "[a] 

family member or another person may . . . return the ballot on 

behalf of a voter." The "return" that was described referred to 

returns to drop boxes. Both memos focused on drop boxes, 

describing their appearance, their locations and that they may 

be used by voters "without having to mail [ballots] back." Drop 

 

1 The majority opinion capably sets out the background 

underlying this controversy. Therefore, I describe here only 

that which is necessary to understand my writing below.
No. 2022AP991.pdr

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boxes were suggested as an alternative to mailing ballots for 

"voters [] motivated by lack of trust in the postal process, 

fear that their ballot could be tampered with, or concern that 

their information will be exposed. Voters may also be concerned 

about ensuring that their ballot is returned in time to be 

counted."2 

¶91 Based on the WEC memos, Richard Teigen and Richard 

Thom (collectively Teigen), filed suit seeking, in part, 

declaratory judgment under Wis. Stat. § 806.04, which provides 

that any person "whose rights, status or other legal relations 

are affected by a statute . . . may have determined any question 

of construction or validity arising under 

the . . . statute . . . and obtain a declaration of rights, 

status or other legal relations thereunder." § 806.04(2). 

Teigen asserted that the WEC's memos violated the provisions of 

Wis. Stat. § 6.87(4)(b)1. and Wis. Stat. § 6.855(1); that his 

voting rights were affected by these statutes; and Teigen sought 

to have a court declare the correct construction of 

§ 6.87(4)(b)1. 

¶92 After intervention by the Democratic Senatorial 

Campaign Committee (DSCC), as well as Disability Rights 

Wisconsin, Wisconsin Faith Voices for Justice, and the League of 

Women Voters of Wisconsin (collectively DRW), Teigen moved for 

summary judgment, setting out what Teigen alleged was the proper 

construction of Wis. Stat. § 6.87(4)(b)1. The circuit court 

held a hearing in which it orally granted Teigen's motion in 

 

2 WEC memo August 19, 2020. 
No. 2022AP991.pdr

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full. The court explained that, unlike voting in person, voting 

by absentee ballot is "a privilege exercised wholly outside the 

traditional safeguards of the polling place." It further 

concluded that the legislature required that absentee voting 

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 the absent elector to vote for or against a 

candidate, or to cast a particular vote in a referendum or other 

similar abuses." 

¶93 In regard to whom may return an absentee ballot, the 

circuit court explained that "[it did not] see any language in 

the statute that provides a basis for having agents, somebody 

other than the elector, actually deliver the ballot." Further, 

in quoting the portion of the memo that purported to allow 

family members or other persons to return a ballot on behalf of 

the voter, the court concluded that it did not "see anything in 

the statute that says that. In reading the statute, the statute 

is clear. It's not ambiguous. It's not necessary to go to 

outside sources to determine how . . . return of the ballot is 

addressed." In its judgment, the court was satisfied that the 

"portions of the [memo] that address that other people may bring 

the ballot in, it doesn't have to be the elector, are contrary 

to the statute." 

¶94 The court declared that the WEC's memos were

inconsistent with state statutes and specifically concluded that 

an elector must personally mail or deliver his or her own 
No. 2022AP991.pdr

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absentee ballot, except when otherwise specifically authorized 

by law. The defendants appealed this ruling to the court of 

appeals. Teigen filed a petition to bypass the court of 

appeals, which we granted. 

II. DISCUSSION

A. Standard of Review 

¶95 I review Teigen's claim for declaratory relief under 

Wis. Stat. § 806.04 and I apply Wis. Stat. § 6.87(4)(b)1. in 

regard to mailing absentee ballots. Therefore, I interpret the 

statutes at issue. We interpret and apply statutes as questions 

of law subject to our independent determination, while 

benefitting from the decision of the circuit court. Townsend v. 

ChartSwap, LLC, 2021 WI 86, ¶11, 399 Wis. 2d 599, 967 N.W.2d 21. 

B. Statutory Interpretation

¶96 "[T]he purpose of statutory interpretation is to 

determine what the statute means . . . ." State ex rel. Kalal 

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 

681 N.W.2d 110. Judicial deference to the policy choices 

enacted into law by the legislature requires that statutory 

interpretation focus primarily on the language of the statute. 

We assume that the legislature's intent is expressed in the 

statutory language. Id. Therefore, statutory interpretation 

begins with the words that the legislature chose. If the 

meanings of the words are plain and unambiguous, the court's 

inquiry ends and there is no need to consult extrinsic sources 

of interpretation, such as legislative history. Id., ¶¶45, 46. 
No. 2022AP991.pdr

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¶97 In addition to examining the plain words of the text, 

context is part of a plain meaning interpretation. "So, too, is 

the structure of the statute in which the operative language 

appears." Id., ¶46. Therefore, rather than in isolation, 

"statutory language is interpreted in the context in which it is 

used; . . . in relation to the language of surrounding or 

closely-related statutes; . . . to avoid absurd or unreasonable 

results; [and] read, where possible to give effect to every 

word, in order to avoid surplusage." Id. 

¶98 It is consistent with the plain-meaning rule "to 

consider the intrinsic context in which statutory language is 

used; a plain-meaning interpretation cannot contravene a 

textually or contextually manifest statutory purpose." Id., 

¶49. However, in "construing or interpreting a statute the 

court is not at liberty to disregard the plain, clear words of 

[a] statute." Id., ¶46. Nor are courts permitted to read words 

into a statute that the legislature did not insert itself. 

Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 

N.W.2d 316. 

1. Uniform Declaratory Judgment Act 

¶99 The Uniform Declaratory Judgment Act is contained in 

Wis. Stat. § 806.04, which provides:

(1) Scope. Courts of record within their 

respective jurisdictions shall have power to declare 

rights, status, and other legal relations whether or 

not further relief is or could be claimed . . . . The 

declaration may be either affirmative or negative in 

form and effect; and such declarations shall have the 

force and effect of a final judgment or decree, except 

that finality for purposes of filing an appeal as of 
No. 2022AP991.pdr

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right shall be determined in accordance with

s. 808.03(1).

(2) Power to construe, etc. Any person 

interested under a deed, will, written contract or 

other writings constituting a contract, or whose 

rights, status or other legal relations are affected 

by a statute, municipal ordinance, contract or 

franchise, may have determined any question of 

construction or validity arising under the instrument, 

statute, ordinance, contract or franchise and obtain a 

declaration of rights, status or other legal relations 

thereunder.

¶100 In order to obtain declaratory judgment, there must be 

a justiciable controversy. See Loy v. Bunderson, 107 Wis. 2d 

400, 410, 320 N.W.2d 175 (1982). A controversy is justiciable 

when the following factors are present: 

(1) A controversy in which a claim of right is 

asserted against one who has an interest in contesting 

it. 

(2) The controversy must be between persons whose 

interests are adverse. 

(3) The party seeking declaratory relief must have a 

legal interest in the controversy——that is to say, a 

legally protectible interest. 

(4) The issue involved in the controversy must be ripe 

for judicial determination.

Putnam v. Time Warner Cable of Se. Wis., Ltd. P'ship, 2002 WI 

108, ¶41, 255 Wis. 2d 447, 649 N.W.2d 626 (citing Loy, 107 

Wis. 2d at 410). If all four factors are met, the controversy 

is justiciable and a court may entertain an action for 

declaratory judgment. Miller Brands-Milwaukee, Inc. v. Case, 

162 Wis. 2d 684, 694, 470 N.W.2d 290 (1991). 

¶101 Here, I conclude that all four factors are met. 

First, Teigen's suit is a controversy that opposes the WEC's 
No. 2022AP991.pdr

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memos and intervenors' positions, each of whom have an interest 

in contesting Teigen's position. Second, Teigen and the WEC 

have adverse interests regarding the legality of the current 

memos and the WEC's authority to continue issuing similar memos 

in the future. Third, as the majority concludes, Teigen has a 

legally protectable interest in making sure that his vote is not 

"pollute[d]" and that proper election procedures are followed.3 

And finally, Teigen's suit against the WEC is ripe for judicial 

determination. The circuit court decided that the elector was 

required to personally mail his or her own completed ballot to 

the clerk's office.4 Affirming the circuit court's decision is 

expressed in several briefs, as is the need for uniform 

guidance.5 The WEC has issued memos that encourage drop boxes 

over mail-in ballot returns, and municipal clerks and election 

officials have acted on those memos. Teigen is a Wisconsin 

voter who is affected by the WEC's memos. Because the 

controversy is justiciable, I proceed to the merits of Teigen's 

statutory interpretation claim with regard to mailing absentee 

ballots, and conclude that the memos encourage drop boxes over 

mailing completed ballots and are inconsistent with Wis. Stat. 

§ 6.87(4)(b)1. Therefore, they are contrary to law. 

2. Wisconsin Stat. § 6.87(4)(b)1.

 

3 Majority op., ¶25. 

4 Teigen v. Wis. Elections Comm'n, No. 2022AP91, Order at 2 

(Jan. 20. 2022). 

5 See e.g., Briefs: League of Wis. Municipalities, 

Republican National Committee and Honest Elections Project. 
No. 2022AP991.pdr

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¶102 As a foundational matter, we construe closely related 

statutes in the context in which the legislature placed them. 

City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24, 302 

Wis. 2d 599, 734 N.W.2d 428. "[W]e examine the language of 

surrounding or closely related statutes in order to interpret a 

statute in the context in which it is used." Id. Accordingly, 

we do not interpret Wis. Stat. § 6.87(4)(b)1. in isolation. 

Rather, we interpret it with the assistance of closely related 

statutes. 

¶103 As we begin, it is important to note that the 

legislature has supplied the lens through which absentee voting 

statutes are to be viewed. Wisconsin Stat. § 6.84 provides: 

[V]oting 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.

§ 6.84. Furthermore, regarding interpretation of the absentee 

voting statutes, the legislature has mandated that: 

[W]ith 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.

§ 6.84(2).
No. 2022AP991.pdr

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¶104 We have construed statutes relating to voting 

procedures and have strictly enforced them. In State ex. rel. 

Stearns, we concluded that the Secretary of State correctly 

prohibited a candidate who turned in his nomination papers two 

minutes after the statutory deadline from appearing on the 

ballot. State ex. rel. Stearns v. Zimmerman, 257 Wis. 443, 444-

46, 43 N.W.2d 681 (1950). We reasoned that, by setting the 5 

p.m. deadline within the statute, "no fact or situation 

appear[ed] except those contemplated and provided for by the 

legislature." Id. at 446. However, if we had decided to 

enlarge the time which the legislature has designated for the 

filing of nomination papers, we would be "amend[ing] the 

statute, not [construing] it." Id. 

¶105 Again, in State ex. rel. Ahlgrimm, we concluded that a 

candidate who filed his nomination papers in the wrong office 

was barred from appearing on the ballot by the terms of the 

statute. State ex rel. Ahlgrimm v. State Elections Bd., 82 

Wis. 2d 585, 595-96, 263 N.W.2d 152 (1978). The candidate 

argued that, because the statute that outlined the place of 

filing nomination papers did not specify that noncompliance was 

fatal, we should have concluded that its prescriptions were 

directory rather than mandatory. Id. at 593. We concluded that 

this argument was "without merit" and, as with the time for 

filing, the statute's instruction governing the place of filing 

nomination papers was mandatory. Id. at 595. 

¶106 Turning to the statute at issue, Wis. Stat. 

§ 6.87(4)(b)1., it determines required procedures for absentee 
No. 2022AP991.pdr

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voting when specially identified circumstances do not exist.6

Section 6.87(4)(b)1. provides in regard to mailing that absentee 

ballots "shall be mailed by the elector . . . to the municipal 

clerk." Electors are statutorily defined as "[e]very U.S. 

citizen age 18 or older who has resided in an election district 

or ward for 28 consecutive days before any election where the 

citizen offers to vote[.]" Wis. Stat. § 6.02. Accordingly, 

when § 6.87(4)(b)1. says "the elector[,]" it means, the voter. 

¶107 The plain statutory text, provides that if a ballot is 

returned by mail, it is the "elector" who does the mailing. 

Wisconsin Stat. § 6.87(4)(b)(1). requires that absentee ballots 

"shall be mailed by the elector . . . to the municipal clerk." 

The legislature could have said "may be mailed by the elector" 

if it were not mandatory that the elector do the mailing. As 

the circuit court correctly concluded, "the statute is clear. 

It's not ambiguous. It's not necessary to go to outside sources 

to determine how . . . return of the ballot is addressed." 

Indeed, DRW concedes this point in its briefing. 

¶108 DRW argues that, in spite of the unambiguous text, the 

statutes allow an agent of an elector to mail the absentee 

ballot on an elector's behalf. This argument is based on a 1955 

case, Sommerfeld v. Bd. of Canvassers of the City of St. 

Francis. In Sommerfeld, we concluded that "in order to fulfill 

the spirit of our election laws the last sentence of section 

11.59 [which required delivery by the elector] is directory 

only, and that a delivery of ballots by agent is a substantial 

 

6 See ¶¶109-111 below. 
No. 2022AP991.pdr

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compliance therewith." Sommerfeld v. Bd. of Canvassers of the 

City of St. Francis, 269 Wis. 299, 304, 69 N.W.2d 235 (1955). 

However, as the majority points out, Sommerfeld pre-dates Wis. 

Stat. § 6.84.7 Its conclusion, that absentee voting procedures 

were directory, contradicts § 6.84, which requires that absentee 

voting procedures are "mandatory[,]" i.e., they must be 

followed. Accordingly, to the extent that it described voting 

procedures as directory and substantial compliance being 

sufficient to satisfy § 6.84, Sommerfeld is no longer good law.8

¶109 Without Sommerfeld, DRW's argument falls apart. The 

statutory definition of "elector" does not include agents; 

rather, it defines a person who is eligible to vote. Wis. Stat. 

§ 6.02. Wisconsin Stat. § 6.87(4)(b)1. requires that absentee 

ballots be mailed by the elector; who, as I note, is statutorily 

defined in § 6.02(1). In accord with the circuit court, I 

conclude that the plain meaning of text is clear and 

unambiguous; § 6.87(4)(b)1. does not permit an agent to mail an 

absentee ballot for a voter. 

¶110 That agents are not permitted by the terms of Wis. 

Stat. § 6.87(4)(b)1. to mail absentee ballots is further 

supported by comparing the language in § 6.87(4)(b)1. with other 

statutes in which the legislature has explicitly allowed an 

agent or non-elector to participate in the absentee voting 

process. Those statutes, in keeping with the policy in Wis. 

 

7 Majority op., ¶80.

8 Id.
No. 2022AP991.pdr

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Stat. § 6.84(1), have formalistic, regulated conditions 

attached. 

¶111 For example, when a voter is a member of a sequestered 

jury, the legislature has provided very detailed instructions 

about voting and returning the ballot where a non-voter 

participates. Wisconsin Stat. § 6.86(1)(b) provides in relevant 

part:

If the application indicates that the reason for 

requesting an absentee ballot is that the elector is a 

sequestered juror, the application shall be received 

no later than 5 p.m. on election day. If the 

application is received after 5 p.m. on the Friday 

immediately preceding the election, the municipal 

clerk or the clerk's agent shall immediately take the 

ballot to the court in which the elector is serving as 

a juror and deposit it with the judge. The judge 

shall recess court, as soon as convenient, and give 

the elector the ballot. The judge shall then witness 

the voting procedure as provided in s. 6.87 and shall 

deliver the ballot to the clerk or agent of the clerk 

who shall deliver it to the polling place or, in 

municipalities where absentee ballots are canvassed 

under s. 7.52, to the municipal clerk as required in 

s. 6.88.

§ 6.86(1)(b). Simply stated, voter assistance in voting and in 

return of the ballot is clearly set out in § 6.86(1)(b). When 

an agent is employed, the agent is identified. 

¶112 Another example of the legislature's recognition of 

agents involved in voting or ballot return is found in Wis. 

Stat. § 6.86(3)(a) for hospitalized electors. It provides:

1. Any elector who is registered and who is 

hospitalized, may apply for and obtain an official 

ballot by agent. . . .

2. If a hospitalized elector is not registered, 

the elector may register by agent under this 
No. 2022AP991.pdr

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subdivision at the same time that the elector applies 

for an official ballot by agent under subd. 1. . . . .

§ 6.86(3)(a)1. and 2. Once again, when an agent is permitted to 

be involved in absentee voting, the legislature has clearly 

defined the factual circumstances that permit it, has identified 

who may function as an agent and has specified a procedure to 

follow. 

¶113 Wisconsin Stat. § 6.87(5) also permits the use of an 

agent when the elector is disabled. It provides:

If the absent elector declares that he or she is 

unable to read, has difficulty in reading, writing or 

understanding English or due to disability is unable 

to mark his or her ballot, the elector may select any 

individual, except the elector's employer or an agent 

of that employer or an officer or agent of a labor 

organization which represents the elector, to assist 

in marking the ballot . . . .

Once again, when the legislature decided that use of an agent in 

voting was permissible, it specified the circumstances under 

which an agent could be employed and defined criteria for 

performing as an agent in regard to absentee ballots. I do not 

review the entirety of the statutes that provide for the use of 

an agent in voting because no party has raised them.

¶114 However, those examples cited above and others I do 

not cite differ significantly from Wis. Stat. § 6.87(4)(b)1.

because § 6.87(4)(b)1. carries none of the factual criteria for 

permitting the use of an agent and none of the factual 

safeguards for who may function as an agent. Accordingly, 

because the text and context of § 6.87(4)(b)1. instruct me to do 

so, I conclude that no one but the elector may mail an absentee 

ballot unless the elector and his or her designated agent fit 
No. 2022AP991.pdr

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within a different statutory circumstance that explicitly 

permits it. 

III. CONCLUSION

¶115 The majority opinion concludes that the WEC's memos 

are invalid because ballot drop boxes are not legal under 

Wisconsin statutes and because an absentee ballot must be 

personally delivered by the voter to the municipal clerk at the 

clerk's office. I agree, and I join the majority opinion. I 

have written further to explain that, under Wisconsin statutes, 

it is the elector who shall mail the absentee ballot to the 

municipal clerk. Accordingly, I respectfully concur. 
No. 2022AP91.rgb

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¶116 REBECCA GRASSL BRADLEY, J. (concurring). 

There should be a third Branch which . . . you may 

call a Governor whom I would invest . . . the whole 

Executive Power, after divesting it of most of those 

Badges of Domination called prerogatives.

John Adams, Thoughts on Government (1776), in 11 The State 

Records of North Carolina 325 (1895).

¶117 This court's binding precedent allows WEC——a creature

of the legislature authorized only to implement Wisconsin's 

election laws——to make law by executive fiat, thereby granting 

it a potent "Badge[] of Domination[.]" In Trump v. Biden, a 

majority of this court gave WEC's "advice" the force of law. 

2020 WI 91, ¶¶31–32, 394 Wis. 2d 629, 951 N.W.2d 568. It 

declared this "advice" is "the rulebook" for elections——never 

mind what the statutes enacted by the legislature say. See id.

(emphasis added).

¶118 The Trump majority's conversion of WEC's mere "advice" 

into "the rulebook" flouts the rule of law. Consistent with 

constitutional principles, the legislature explicitly declared 

that "[a] guidance document does not have the force of law." 

Wis. Stat. § 227.112(3) (2019–20).1 Despite the constitutional 

vesting of lawmaking power in the legislature,2 Trump requires us 

to uphold documents produced by executive-branch employees, 

notwithstanding their inconsistency with the plain meaning of 

the statutes WEC employees purportedly interpreted. Trump, 394 

Wis. 2d 629, ¶83 (Roggensack, C.J., dissenting); see also Tetra 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019–20 version.

2 Wis. Const. art. IV, § 1.
No. 2022AP91.rgb

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Tech EC, Inc. v. Wis. Dep't of Revenue, 2018 WI 75, ¶3, 382 

Wis. 2d 496, 914 N.W.2d 21 (lead op.) (rejecting the "practice 

of deferring to administrative agencies' conclusions of law"). 

Even properly promulgated administrative rules do not have this 

kind of weight; in the hierarchy of laws, rules fall beneath 

statutes (if rules may even be called law). I would overrule 

Trump, but it remains binding precedent under which the memos 

have the force of law. Because a majority of this court accords 

them this effect, they must be rules. Because they were not 

promulgated according to statutorily prescribed procedures, they 

are invalid for this additional reason. 

¶119 This court's decision in Trump exists in tension with 

Service Employees International Union, Local 1 v. Vos (SEIU), 

2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 (Kelly, J., majority 

op.). SEIU struck down statutes prescribing pre-issuance 

procedures for guidance documents as facially unconstitutional. 

Id., ¶88. We described guidance documents as "nothing but the 

written manifestations of the executive branch's thought 

processes[.]" Id., ¶122. Under the separation of powers, we 

denied the legislature a role in policing the executive's 

thoughts or preventing the executive from sharing its 

interpretations of law with the public. Id., ¶96 (explaining 

"[h]e who is to execute the laws must first judge for himself of 

their meaning" (quoting Alexander Hamilton, Letters of 

Pacificus No. 1 (June 29, 1793), reprinted in 4 The Works of 

Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904) 

(modification in the original)). 
No. 2022AP91.rgb

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¶120 Because this court's later decision in Trump gave mere 

guidance documents the force of law, the legislature necessarily 

has an interest in regulating them to ensure the executive 

branch enforces the laws as written. Additionally, the 

legislature has an interest in the courts upholding the laws the 

legislature enacts, not elevating guidance written by executive 

branch employees above the law. 

¶121 This court's decision in Trump gave WEC the power to 

materially alter how elections in this state are conducted——

without a single procedural check. Trump should be overruled, 

but if the court continues to hold the memos need not be 

promulgated as administrative rules, they should at least be 

subject to the statutory procedures we struck down in SEIU. As 

the law stands, WEC's staff have absolute prerogative power. 

The constitution does not permit such corruption of the 

carefully calibrated powers among the branches of government.

I. The Definition of "Rule"

¶122 Wisconsin Stat. § 227.01(13) states, in relevant part:

"Rule" means a regulation, standard, statement of 

policy, or general order of general application that 

has the force of law and that is issued by an agency 

to implement, interpret, or make specific legislation 

enforced or administered by the agency or to govern 

the organization or procedure of the agency.

Under this definition, a rule must meet five elements: "(1) a 

regulation, standard, statement of policy or general order; 

(2) of general application; (3) having the [force] of law; 

(4) issued by an agency; (5) to implement, interpret or make 

specific legislation enforced or administered by such agency as 
No. 2022AP91.rgb

4

to govern the interpretation or procedure of such agency."3 Wis. 

Legislature v. Palm, 2020 WI 42, ¶22, 391 Wis. 2d 497, 942 

N.W.2d 900 (quoting Citizens for Sensible Zoning, Inc. v. Dep't 

of Nat. Res., 90 Wis. 2d 804, 814, 280 N.W.2d 702 (1979)).

¶123 In this case, no one has argued the memos are not 

"statements of policy," of "general application," issued by the 

WEC to "interpret" statutes "enforced or administrated" by the 

WEC. The parties dispute only the third element, whether the 

memos have the "force of law." 

II. The Majority's Error in Trump

¶124 Although the memos should not have the force of law, 

the majority erroneously concluded otherwise in Trump. In that 

case, Donald Trump, the incumbent President, and his campaign 

appealed the results of a recount in two Wisconsin counties. 

394 Wis. 2d 629, ¶¶5–6 (majority op.). The ballots President 

Trump sought to strike fell into four categories; two are most 

relevant in this case. First, he argued "that a form used for 

in-person absentee voting [wa]s not a 'written application' and 

therefore all in-person absentee ballots should be struck." 

Id., ¶2. Second, President Trump argued "that municipal 

officials improperly added witness information on absentee 

ballot certifications, and that these ballots [wer]e therefore 

invalid." Id.

¶125 As the majority acknowledged, "Wisconsin law provides 

that a 'written application' is required before a voter can 

 

3 In 2017, the legislature changed "effect of law" to "force 

of law," which is reflected in the modification of the quote. 

2017 Wis. Act 369, § 32.
No. 2022AP91.rgb

5

receive an absentee ballot, and that any absentee ballot issued 

without an application cannot be counted." Id., ¶14 (citing 

Wis. Stat. §§ 6.84(2), 6.86(1)(ar)). A majority of this court 

refused to consider whether the form utilized for in-person 

absentee voting, EL-122, constituted a written application. It 

noted, "both counties did use an application form created, 

approved, and disseminated by the chief Wisconsin elections 

agency." Id., ¶15. The majority emphasized "local election 

officials used form EL-122 in reliance on longstanding guidance 

from WEC." Id., ¶25. Therefore, it concluded, "[p]enalizing 

the voters election officials serve and the other candidates who 

relied on this longstanding guidance is beyond unfair." Id. 

"To strike ballots cast in reliance on the guidance now, and to 

do so in only two counties, would violate every notion of equity 

that undergirds our electoral system." Id. In Trump, a 

majority of this court allowed its notions of "equity" and 

"unfair[ness]" to trump the law.

¶126 Invoking the same rationalizations, the majority 

declined to examine whether election officials violated a 

statute by adding missing witness information to absentee ballot 

certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a 

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

not be counted." The majority defied this clear textual command

because it was concerned that "election officials followed 

guidance that WEC created, approved, and disseminated to 

counties in October 2016." Id., ¶18. It continued, "the 
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6

election officials relied on this statewide advice and had no 

reason to question it."4 Id., ¶26.

¶127 Overall, the majority compared voting——the foundation 

of free government——to a football game:

[E]lection officials in Dane and Milwaukee Counties 

followed the advice of WEC where given. . . .

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. . . . The Campaign is not entitled to 

relief, and therefore does not succeed in its effort 

to strike votes and alter the certified winner of the 

2020 presidential election.

Id., ¶¶31–32 (emphasis added); see also id., ¶34 (Dallet & 

Karofsky, JJ., concurring) ("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 

 

4 The majority also gave statements from Dane County 

officials the status of supreme law based on the majority's 

subjective conception of fairness. Trump v. Biden, 2020 WI 91, 

¶27, 394 Wis. 2d 629, 951 N.W.2d 568 (explaining voters in Dane 

County were "encouraged to utilize" "Democracy in the Park" 

events and that "17,000 voters did so in reliance on 

representations that the process they were using complied with 

the law"). 
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committed and the final score was the result of a free and fair 

election." (emphasis added)).

¶128 Under Trump, statements from WEC's staff were 

transformed into super-statutes, trumping the actual law. 

"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." Id., ¶140 (Rebecca Grassl Bradley, 

J., dissenting). 

¶129 The holding in Trump requires a vote cast in reliance 

on a document produced by the WEC's staff to be counted even if 

the vote's counting is unlawful under the statute the staff 

purportedly interpreted. The majority did not ground its 

decision in constitutional law but in equity.5 Equitable powers 

may be broad, but they must always be lawfully exercised. Just 

 

5 Id., ¶73 (Roggensack, C.J., dissenting) ("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." (quoting 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)).
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this term, we held this court lacks the equitable power to 

rewrite statutes to enforce a subjective conception of fairness. 

See Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶¶62, 67, 72, 

399 Wis. 2d 623, 967 N.W.2d 469. The Trump majority abandoned 

this fundamental constraint on the judicial power.

¶130 At the same time the majority aggrandized its 

"equitable" powers, it ceded its law declaring function to 

unelected bureaucrats. According to the Trump majority, the 

judiciary may not even opine on the validity of purported 

guidance once voters have relied on it. In so ruling, the 

majority neglected its constitutional duty to declare the 

meaning of law, instead elevating "guidance[] given by an 

unelected committee" to the status of supreme law, which must be 

followed in derogation of enacted statutes. Trump, 394 

Wis. 2d 629, ¶108 (Ziegler, J., dissenting); see also State ex 

rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 

N.W.2d 385 (1988) ("[I]t is this court's function to develop and 

clarify the law." (citations omitted)). 

¶131 The majority achieved these results by declaring WEC's 

guidance to be "the rulebook." Trump, 394 Wis. 2d 629, ¶32 

(majority op.) (emphasis added). "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——and election officials are bound to follow the 

law, if we are to be governed by the rule of law, and not of 

men." Id., ¶147 (Rebecca Grassl Bradley, J., dissenting). 

Notwithstanding SEIU's characterization of guidance as nothing 
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more than executive branch "thought processes," the majority 

permitted "WEC . . . [to] treat their guidance as if it were 

law"——and a form of supreme law capable of overriding statutory 

language. See id., ¶86 (Roggensack, C.J., dissenting) (citing 

SEIU, 393 Wis. 2d 38, ¶143 (Roggensack, C.J., 

concurring/dissenting)). The majority's reinvention of guidance 

as something on par with the constitution is antithetical to the 

constitutional separation of powers and deprives the people of 

power over their own government.

¶132 Without offering any explanation, WEC has changed its 

position on the status of its so-called guidance. WEC did not 

file a brief in Trump, but in the case's precursor, Trump v. 

Evers,6 WEC argued in its brief, "[t]hese challenges come too 

late and would unconstitutionally punish voters who relied in 

good faith on election officials' guidance." Not only did WEC 

argue its guidance was the law, it argued that following the 

actual law instead of WEC's erroneous interpretations would be

unconstitutional. In Trump v. Biden, the majority avoided the 

constitutional issue, but it nonetheless adopted the thrust of 

the WEC's argument about fairness by abusing this court's 

equitable powers. In contrast with its previous position, WEC 

now characterizes its memos as inert, merely providing 

information to local officials who are free to ignore them as 

they please. WEC cannot have it both ways. Either disregarding 

these documents offends the constitution or they are mere 

 

6 Trump v. Evers was an original action raising the same 

arguments, which a majority of this court declined to hear just 

days before Trump v. Biden. 
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"thoughts" of executive-branch employees. This court chose the 

former in Trump, which means these documents must be properly 

promulgated, with checks and balances.

¶133 With no convincing response to Trump, WEC primarily 

argues the memos lack the force of law because they do not 

require municipal clerks to establish ballot drop boxes. But 

see Off. of the Special Couns., Second Interim Investigative 

Report on the Apparatus & Procedures of the Wisconsin Elections 

System 116 (Mar. 1, 2022) ("Surprisingly, many clerks have 

expressed to the OSC that they are under the impression that WEC 

guidance is binding, even when they believe such guidance (say, 

on drop boxes) is unlawful."). Nonetheless, these memos purport 

to authorize drop boxes. Under Trump, once a vote is placed in 

a drop box in reliance on a WEC document that has not been 

rescinded, it must be counted regardless of whether any statute 

actually authorizes drop boxes. At least during and after an 

election, a majority of this court will not consider whether a 

statute authorizes drop boxes, effectively establishing the 

memos as the authorizing device.

¶134 As the Wisconsin voters accurately argue, "there are 

different kinds of laws——some impose duties, others prohibit 

conduct, and still others authorize conduct. WEC's memos fall 

into the latter category[.]" Since the time of Sir Edward Coke, 

"unlawful prerogative legislation" has included both legislation 

constraining the public and the "alteration" of "legally binding 

duties" "more generally," including their "relax[ation.]" 

Philip Hamburger, Is Administrative Law Unlawful? 84 (2014). At 
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a minimum, the Trump decision allowed WEC to relax legal duties. 

Specifically, the Trump decision endorsed WEC's elimination of 

duties prescribed by law by counting ballots unlawfully cast in 

accordance with WEC's extra-legal directions. 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."). 

To erase by executive fiat the legislature's duly enacted law is 

no less an alteration of law merely because it authorizes the 

unlawful rather than prohibits that which is lawful. See 

generally Case of Proclamations, [1610] EWHC KB J22, (1611) 12 

Co Rep 74, 75, 77 ER 1352 ("[T]he King cannot change any part of 

the common law, nor create any offence by his proclamation, 

which was not an offence before, without 

Parliament. . . . [T]he King by his proclamation of other ways 

cannot change any part of the common law, or statute law, or the 

customs of the realm[.]" (citations omitted)).

¶135 WEC also misses another critical point. While the 

memos may not require municipal clerks to set up ballot drop 

boxes, if they do so, Memo two regulates their use with clear, 

unambiguous, and mandatory language. For example, WEC says: 

"Ballot drop boxes must be secured and locked at all times" and 

"[c]hain of custody logs must be completed every time ballots 
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are collected."7 The fact that these requirements attach only if 

a municipal clerk decides to set up drop boxes makes no 

difference. Laws often take the form of "if/then" statements. 

A person may choose not to drive, but if the person chooses to 

drive, the person is bound to wear a seat belt by a statute with 

the force of law. Wis. Stat. § 347.48(2m)(b).

¶136 The two propositions resulting from the Trump decision

cannot both be true:

1. Documents produced by WEC's staff——not the Wisconsin 

statutes——comprise "the rulebook" for elections; and

2. WEC's memos are not administrative rules because they do 

not have the force of law.

No other agency's guidance——or even its properly promulgated 

rules, for that matter——has been given such pseudoconstitutional force. The Trump decision glorified WEC's 

purported guidance with a supremacy over real law. This court 

should overrule its erroneous holding in Trump, restoring WEC's 

documents to their proper, and quite limited, role. 

¶137 The way we described guidance documents in SEIU in 

2020 simply cannot be reconciled with the Trump decision of 

2021. In SEIU, we correctly concluded guidance documents "are 

not law, they do not have the force or effect of law, and they 

provide no authority for implementing standards or conditions." 

393 Wis. 2d 38, ¶102 (Kelly, J., majority op.). "They impose no 

obligations, set no standards, and bind no one." Id. 

"Functionally, and as a matter of law, they are entirely inert. 

 

7 Emphasis added.
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That is to say, they represent nothing more than the knowledge 

and intentions of their authors. It is readily apparent, 

therefore, that the executive need not borrow any legislative 

authority, nor seek the legislature's permission, to create 

guidance documents." Id. (emphasis added). 

¶138 Trump transformed purported guidance from "entirely 

inert" to imperviously potent. See id. Ironically, the 

legislature enacted pre-issuance procedures for guidance 

documents precisely because the nature of guidance documents is 

often misunderstood. "Guidance documents can have a practical 

effect similar to an unpromulgated rule." Id., ¶142 

(Roggensack, C.J., concurring/dissenting). Lawmakers have 

"frequently heard from constituents, small businesses [and] 

local government" about "how guidance documents have been abused 

as a vehicle to actually change the law." Id., ¶143 (quoting 

Floor Speech by Andre Jacque, Floor Session on 2017 Assembly 

Bill 1072 (2017 Wis. Act 369), at 3:25, 

https://wiseye.org/2018/12/05/assembly-floor-session-part-2-8/ 

(last visited June 25, 2020)). The Trump majority contradicted 

the SEIU court's treatment of executive agency communications. 

In SEIU, the court said, "should an administrative agency 

employee treat a guidance document as a source of authority, 

that employee would be making a mistake, not defining the nature 

of a guidance document." Id., ¶134 (Kelly, J., majority op.) 

(emphasis added). The court itself made a consequential mistake 

by declaring WEC's guidance not only a source of authority, but 

the supreme statement of election law.
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¶139 In his concurrence, Justice Brian Hagedorn attempts to 

backtrack from the majority opinion he authored in Trump. 

Whether expressed metaphorically or otherwise, the Trump

majority not only labeled WEC's guidance the "rulebook"——it 

treated it as such, elevating it over statutory law. See supra

¶¶124–26. This concurrence does not advance a new legal 

analysis; the dissent in Trump explained the upshot of the 

majority's treatment of WEC's pronouncements on the law, which 

the majority never disavowed: "the majority commits grave error 

by according WEC guidance the force of law . . . . 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——and election 

officials are bound to follow the law, if we are to be governed 

by the rule of law, and not of men." Trump, 394 Wis. 2d 629, 

¶¶141, 147 (Rebecca Grassl Bradley, J., dissenting). Regardless 

of what WEC's pronouncements on the law are called, if this 

court is going to allow them to control an election, they should 

be promulgated as rules. It was a "serious legal argument" then 

and remains so now. The majority grievously injured the rule of 

law in Trump, which the court should acknowledge and correct.8 

 

8 Justice Hagedorn now seems to minimize portions of his 

Trump opinion as dicta. Justice Hagedorn's Concurrence, ¶202

("the court used the word 'rulebook' in a metaphor regarding 

challenge flags in football."). Our court does not recognize 

the concept of dicta, however. "Wisconsin does not consider 

statements germane to a controversy as dicta." Brandenburg v.

Briarwood Forestry Servs., LLC, 2014 WI 37, ¶66 n.2, 354 

Wis. 2d 413, 447, 847 N.W.2d 395, 413 (citing Zarder v. Humana

Ins. Co., 2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782 

N.W.2d 682). Metaphors can be a powerful tool in legal writing, 

but they should be used with care.
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III. CONCLUSION

¶140 "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.'" Trump, 394 

Wis. 2d 629, ¶141 (Rebecca Grassl Bradley, J., dissenting) 

(quoting State v. Kohler, 200 Wis. 518, 228 N.W. 895, 906 

(1930)). In contravention of the Wisconsin Constitution, the 

majority's decision in Trump suppresses the power of the 

people's representatives in a manner reminiscent of a scene from 

William Shakespeare's Henry VI:

Dick: I have a suit unto your lordship.

Cade: Be it a lordship, thou shalt have it for that 

word.

Dick: Only that the laws of England may come out of 

your mouth.

Holland: [to Smith] Mass, 'twill be sore law, then; for 

he was thrust in the mouth with a spear, and 

'tis not whole yet.

Smith: [to Holland] Nay, . . . it will be stinking 

law for his breath stinks with eating toasted 

cheese.

Cade: I have thought upon it, it shall be so. Away, 

burn all the records of the realm: my mouth 

shall be the parliament of England.

Holland: [to himself] Then we are like to have biting 

statutes, unless his teeth be pulled out.

William Shakespeare, Henry VI, Part II, act. 4, sc. 7, ll. 3–16.
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¶141 When the "mouth" of an employee at the WEC supplants 

the legislature of Wisconsin, we are left with "sore" or 

"stinking" laws, irredeemably infected by their promulgation in 

violation of the constitution by an executive branch agency, and 

impervious to correction by our constitutional lawmakers. 

"Bicameralism and presentment are the crucible bills must 

overcome to become law. By design, it is much more difficult 

than rule by dictatorship." In re Amending Wis. Stat. §§ 48.299 

& 938.299 Regulating the Use of Restraints on Child. in Juv. 

Ct., 2022 WI 26, ¶55 n.11, __ Wis. 2d __, __ N.W.2d __ (Rebecca 

Grassl Bradley, J., dissenting).

¶142 A majority of this court permits Administrator Megan 

Wolfe's unilateral declarations regarding election procedures to 

have the force of law, subject only to judicial review (if the 

court even bothers to take the case). "No one man should have 

all that power." Kanye West, Power (2010). "It is not the 

province [or the prerogative] of a state executive official to 

re-write the state's election code[.]" See Carson v. Simon, 978 

F.3d 1051, 1060 (8th Cir. 2020) (cited sources omitted). WEC's 

"rulebook" should be subject to formal rulemaking under ch. 227. 

¶143 "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.'" Trump, 394 Wis. 2d 629, ¶149 (quoting 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)). A majority of 
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this court defenestrated the people's ability to defend their 

laws. Trump should be overruled to restore the people's 

supremacy over their public servants. I respectfully concur. 

¶144 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join 

this concurrence.
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¶145 BRIAN HAGEDORN, J. (concurring). The principal 

issue in this case involves the lawfulness of ballot drop boxes. 

This case is not about the risk of fraudulent votes being cast 

or inspiring confidence in elections. This is not about 

ensuring everyone who wants to vote can, nor should we be 

concerned with making absentee voting more convenient and 

secure. Those are policy concerns, and where the law does not 

speak, they are the business of the other branches, not the 

judicial branch. This case is about applying the law as 

written; that's it. To find out what the law is, we read it and 

give the words of the statutes the meaning they had when they 

were written.

¶146 The occasion for us to visit this question now is the 

issuance of two memos by the Wisconsin Elections Commission 

(WEC) in 2020. Those memos were prepared in response to 

questions from local clerks administering elections. In the 

beginning stages of the COVID-19 pandemic, many wondered whether 

the mail system would be able to return absentee ballots on 

time. The memos reflect that clerks asked for guidance, 

including whether ballot drop boxes could be established to 

receive completed ballots. WEC said yes, and offered detailed 

best practices on security and logistics and other such 

administrative questions. The 2020 spring and fall elections 

came and went; no significant legal challenges to the memos were 

raised at the time.

¶147 This lawsuit was filed in June 2021. It is a 

declaratory judgment action under Wis. Stat. § 227.40, which 
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authorizes "judicial review of the validity of a rule or 

guidance document" issued by a state agency. § 227.40(1). The 

focus is therefore on what the memos say, and whether their 

prescriptions are consistent with the law.

¶148 The law says this: absentee ballots can be mailed by 

the elector or "delivered in person, to the municipal clerk." 

Wis. Stat. § 6.87(4)(b)1. A careful study of the text, 

including its history, along with the supporting statutory 

context, reveals that unstaffed drop boxes for absentee ballot 

return are not permitted. Rather, this statute specifies return 

of absentee ballots through two and only two means: mailing by 

the voter to the municipal clerk, or personal delivery by the 

voter to the municipal clerk. And personal delivery to the 

clerk contemplates a person-to-person exchange between the voter 

and the clerk or the clerk's authorized representative at either 

the clerk's office or a designated alternate site. Wis. Stat. 

§§ 5.02(10), 6.855, 6.87(4)(b)1., 6.88(1). The two memos 

advising otherwise therefore conflict with the law and are 

properly void.

¶149 In Part II of this concurrence, I address the 

important procedural questions before us regarding standing and 

exhaustion of administrative remedies. While I agree that 

Teigen may bring this claim, I do so on different grounds than 

those proffered by the majority/lead opinion. In Part III, I 

provide additional insight into the statutory context and 

history of the relevant statutes governing where and how 

absentee ballots may be returned. Finally, in Part IV, I 
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address whether WEC's memos in this case are unpromulgated 

administrative rules. I conclude they are not because they do 

not have what the statute requires: the "force of law." See

Wis. Stat. § 227.01(13).1

¶150 Before diving into the law, I offer two observations. 

First, the election law statutes we are asked to consider are by 

no means a model of clarity. Many of the controlling provisions 

were originally enacted over 100 years ago and have been layered 

over with numerous amendments since. Reasonable minds might 

read them differently. Significant questions remain despite our 

decision in this case, especially as absentee voting has become 

increasingly common. Although our adjudication of this case 

will provide some assistance, the public is better served by 

clear statutes than by clear judicial opinions interpreting 

unclear statutes. The legislature and governor may wish to 

consider resolving some of the open questions these statutes 

present.

¶151 Second, some citizens will cheer this result; others 

will lament. But the people of Wisconsin must remember that 

judicial decision-making and politics are different under our 

constitutional order. Our obligation is to follow the law, 

which may mean the policy result is undesirable or unpopular. 

Even so, we must follow the law anyway. To the extent the 

citizens of Wisconsin wish the law were different, the main 

 

1 I join ¶¶4-10, 12-13, 52-63, 73-85 of the majority/lead 

opinion.
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remedy is to vote and persuade elected officials to enact 

different laws. This is the hard work of democracy.

I. BACKGROUND

¶152 Weeks before Wisconsin voters went to the polls in 

April 2020, the COVID-19 pandemic upended much of the world. 

Election administration was no exception. Due to the risk posed 

by the virus, exponentially more voters opted to vote by 

absentee ballot. Complicating things further, the pandemic 

strained the United States Postal Service, causing fear that it 

would not be able to deliver absentee ballots on a timely basis. 

Faced with these constraints, local election officials reached 

out to WEC for guidance on how they could ensure all absentee 

ballots would be received in time to be counted. In response to 

these questions, WEC issued a memo on March 31, 2020, entitled, 

"FAQs: Absentee Ballot Return Options: USPS Coordination and 

Drop Boxes." The memo advised in relevant part that "drop boxes 

can be used for voters to return ballots but clerks should 

ensure they are secure." It also noted its view that a "family 

member or another person may also return the ballot on behalf of 

the voter." The April election proceeded without apparent legal 

controversy over these matters.

¶153 As preparations began for the November 2020 election, 

WEC issued another memo. Dated August 19, 2020, it was

entitled, "Absentee Ballot Drop Box Information." The document 

was "intended to provide information and guidance on drop box 
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options for secure absentee ballot return for voters." The memo

explained:

A ballot drop box provides a secure and convenient 

means for voters to return their by mail absentee 

ballot. A drop box is a secure, locked structure 

operated by local election officials. Voters may 

deposit their ballot in a drop box at any time after 

they receive it in the mail up to the time of the last 

ballot collection Election Day. Ballot drop boxes can 

be staffed or unstaffed, temporary or permanent.

¶154 In June 2021, Waukesha County voters Richard Teigen 

and Richard Thom (collectively "Teigen") sued WEC "seeking a 

declaratory judgment regarding the proper construction of state 

statutes that set forth the legal methods for Wisconsin voters 

to cast absentee ballots." In his complaint, Teigen contended: 

"The March 2020 and August 2020 Memos are invalid because they 

exceed the statutory authority of WEC and because they were 

promulgated without compliance with statutory procedures." 

Several parties intervened to defend the memos, including the 

Democratic Senatorial Campaign Committee (DSCC) and Disability 

Rights Wisconsin, Wisconsin Faith Voices for Justice, and the 

League of Women Voters for Wisconsin (collectively "DRW").

¶155 Teigen moved for summary judgment, and the circuit 

court granted his motion. The circuit court declared the memos 

invalid because they conflicted with three principles it drew 

from the statutes: (1) "an elector must personally mail or 

deliver his or her own absentee ballot, except where the law 

explicitly authorizes an agent to act on an elector's behalf"; 

(2) the only ways to cast an absentee ballot under Wis. Stat. 

§ 6.87(4)(b)1. "are for the elector to place the envelope 
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containing the ballot in the mail or for the elector to deliver 

the ballot in person to the municipal clerk"; and (3) the use of 

drop boxes "is not permitted under Wisconsin law unless the drop 

box is staffed by the clerk and located at the office of the 

clerk or a properly designated alternate site under Wis. Stat. 

§ 6.855." The circuit court also held that the memos were 

unpromulgated administrative rules, and therefore invalid. 

Finally, the court enjoined WEC from issuing further 

interpretations that conflict with Wisconsin law and ordered WEC 

to withdraw the two memos.

¶156 After the circuit court's ruling, WEC, DRW, and DSCC

appealed to the court of appeals. Teigen petitioned this court 

for bypass. We granted Teigen's petition and received briefing 

on three issues: (1) whether Teigen's case is procedurally 

proper, (2) whether WEC's memos are inconsistent with Wisconsin 

election law, and (3) whether WEC's memos are unpromulgated 

administrative rules.

II. PROCEDURAL ISSUES

¶157 The intervening parties raise two procedural 

challenges they contend forbid Teigen from bringing this suit. 

DSCC asserts Teigen lacks standing to seek declaratory relief. 

And DRW argues Teigen's claim must be dismissed because he 

failed to exhaust the available administrative remedies. Both 

challenges fall short.
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A. Standing

¶158 Teigen seeks declaratory relief under Wis. Stat. 

§ 227.40. That statute permits "judicial review of the validity 

of a rule or guidance document" issued by a state agency. 

§ 227.40(1). Under such review, the court "shall declare" a 

rule or guidance document invalid if it violates a 

constitutional provision, exceeds the agency's statutory 

authority, or was not issued in compliance with the relevant 

statutory procedures. § 227.40(4)(a).

¶159 Chapter 227's broad right to declaratory relief is not 

without limits. In particular, the statute requires that the 

challenged rule or guidance document have some practical and 

adverse effect on the party seeking relief:

The court shall render a declaratory judgment in the 

action only when it appears from the complaint and the 

supporting evidence that the rule or guidance document 

or its threatened application interferes with or 

impairs, or threatens to interfere with or impair, the 

legal rights and privileges of the plaintiff.

Wis. Stat. § 227.40(1). In legal parlance, this harm 

requirement is called standing.

¶160 Standing is the foundational principle that those who 

seek to invoke the court's power to remedy a wrong must face a 

harm which can be remedied by the exercise of judicial power. 

Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766 

N.W.2d 517. Some of my colleagues have begun to describe 

standing in far looser terms. It is a really nice thing to have 

in a case, they seem to say, but not important at the end of the 

day. I disagree. We have said standing is not jurisdictional 
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in the same sense as in federal courts and that its parameters 

are a matter of sound judicial policy. But as Justice Prosser 

put it, "Judicial policy is not, and has not been, carte blanche 

for the courts of Wisconsin to weigh in on issues whenever the 

respective members of the bench find it desirable." FoleyCiccantelli v. Bishop's Grove Condo. Ass'n, Inc., 2011 WI 36, 

¶131, 333 Wis. 2d 402, 797 N.W.2d 789 (Prosser, J., concurring). 

The judiciary does not serve as a roving legal advisor, 

answering any questions about the law that may arise. The power 

we have is "judicial." Wis. Const. art. VII, § 2. The judicial 

power is the power decide disputes between parties about the law 

where there is harm to a party that can be remedied through the 

judicial process. Gabler v. Crime Victims Rights Bd., 2017 

WI 67, ¶37, 376 Wis. 2d 147, 897 N.W.2d 384. In this sense, the 

judicial policy buttressing our standing doctrine must stem from 

our constitutional role. Standing is not a historical relic 

that should be dispensed with in an age of judicial supremacy. 

It serves as a vital check on unbounded judicial power. A 

judiciary that understands its limited and modest role in 

constitutional governance will take it seriously. Doing so 

brings our judgment to bear when necessary to resolve legal 

disputes between parties, but allows many legal debates to take 

place where the constitution places them: in the court of 

public opinion and by and between the other branches of 

government.

¶161 It is also important to give careful attention to 

standing because the legislature has, in many instances, 
No. 2022AP91.bh

9

prescribed the ground rules for judicial review. The rule of 

law requires that we pay heed to the procedural law enacted by 

the legislature no less than other laws. Wisconsin Stat. 

§ 227.40(1) is one such statute that imposes a statutory 

standing requirement. Ordinarily and at common law, citizens 

could not simply request and obtain a judicial declaration of 

what the law is in a given scenario. Miller v. Currie, 208 

Wis. 199, 203, 242 N.W. 570 (1932) ("Declaratory relief is a 

creation of the statute and was unknown to the common law."). 

Section 227.40(1) permits a declaration of rights, but only when 

a "rule or guidance document or its threatened application 

interferes with or impairs, or threatens to interfere with or 

impair, the legal rights and privileges of the plaintiff."

¶162 Thus, the question is whether WEC's memos harm or 

threaten harm to any of Teigen's "legal rights and privileges." 

Teigen proffers two legal rights which he contends are 

implicated by the memos: his right as a taxpayer to challenge 

unlawful expenditures, and his right as a voter to have election 

officials comply with election laws.

¶163 We have held that taxpayers have a legal right "to 

contest governmental actions leading to an illegal expenditure 

of taxpayer funds." Fabick v. Evers, 2021 WI 28, ¶10, 396 

Wis. 2d 231, 956 N.W.2d 856. Teigen maintains he has taxpayer 

standing because tax dollars supported distribution of the memos 

and the salaries of WEC staff who prepared them. Taxpayer 

standing, however, does not extend as broadly as Teigen 

suggests. This argument, if accepted, would mark a radical 
No. 2022AP91.bh

10

departure in the law. It would mean any taxpayer could 

challenge almost any government action——as long as a government 

employee devoted some time and attention to the matter. Since 

that is nearly always true, this would practically eliminate 

standing as a consideration in most challenges to government 

action. It is true that the functional distance between an 

illegal government expenditure and staff time spent drafting a 

legally erroneous memo may be fuzzy, but it is meaningful and 

clear from our cases.2 We have never described taxpayer standing 

as broadly as Teigen asserts, and we should not grant Teigen's 

entreaty now.

¶164 Teigen's second argument, however, is more compelling. 

Teigen argues that Wis. Stat. § 5.06 gives voters like him a 

 

2 Our taxpayer standing cases have always involved an 

alleged illegal expenditure distinct from staff time. See Hart 

v. Ament, 176 Wis. 2d 694, 698-99, 500 N.W.2d 312 (1993) 

(challenging the transfer of management of a county museum); 

Tooley v. O'Connell, 77 Wis. 2d 422, 439, 253 N.W.2d 335 (1977)

(challenging the constitutionality of a taxing provision); Buse 

v. Smith, 74 Wis. 2d 550, 563, 247 N.W.2d 141 (1976) 

(challenging a negative-aid provision); Thompson v. Kenosha 

County, 64 Wis. 2d 673, 679-80, 221 N.W.2d 845 (1974) 

(challenging the adoption of a countywide assessor system); S.D. 

Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15 

Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961) (challenging 

construction of a tunnel); Federal Paving Corp. v. Prudisch, 235 

Wis. 527, 538, 293 N.W. 156 (1940) (challenging a city 

resolution directing that payment be made to a paving 

contractor); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 

107-08, 99 N.W. 603 (1904) (challenging building of a bridge); 

J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114 Wis. 2d 69, 84, 

336 N.W.2d 679 (Ct. App. 1983) (challenging the 

constitutionality of a statue resulting in public expenditures).
No. 2022AP91.bh

11

statutory right to have local election officials in the area 

where he lives comply with election laws.3 That statute says:

Whenever any elector of a jurisdiction or district 

served by an election official believes that a 

decision or action of the official or the failure of 

the official to act with respect to any matter 

concerning . . . election administration or conduct of 

elections is contrary to law . . . the elector may 

file a written sworn complaint with [WEC] requesting 

that the official be required to conform his or her 

conduct to the law, be restrained from taking any 

action inconsistent with the law or be required to 

correct any action or decision inconsistent with the 

law or any abuse of the discretion vested in him or 

her by law.

§ 5.06(1). According to this statute, if local election 

officials in the area where a voter lives violate election laws, 

the voter is empowered to have that conduct abated.4 This 

establishes not only a process to compel compliance with the 

law, but also a legal right held by the voter to have their 

local election officials follow the law.5 Other provisions of 

Chapter 5 work in similar ways.6

 

3 The majority/lead opinion complains Wis. Stat. § 5.06 is 

not in the petitioner's complaint. But it is in their briefing, 

which is usually where we look for legal arguments. This was 

unquestionably an argument Teigen raised.

4 Additional recourse to a court is available if WEC does 

not take action on the voter's complaint. See Wis. Stat. 

§ 5.06(2).

5 The majority/lead opinion misses this distinction, stating 

that this legal right may only be vindicated by following the 

procedures set forth in Wis. Stat. § 5.06. But Wis. Stat. 

§ 227.40 provides an additional avenue to vindicate rights 

conferred in other statutes——including § 5.06——that are 

threatened by unlawful guidance documents and rules.

6 See, e.g., Wis. Stat. § 5.08 (empowering voters who 

believe "that an election official has failed or is failing to 
No. 2022AP91.bh

12

¶165 Returning to the standing question here, Wis. Stat. 

§ 227.40(1) first requires the challenge be to a "rule or

guidance document." Teigen challenges two memos issued by WEC 

which all agree are either guidance documents or rules. The 

statute then inquires whether the memos or their "threatened 

application interfere[] with or impair[], or threaten[] to 

interfere with or impair, the legal rights and privileges of the 

plaintiff." § 227.40(1). As I have explained, Teigen has a 

legal right protected by Wis. Stat. § 5.06 to have local 

election officials in his area comply with the law. The only 

question, then, is whether the memos at least threaten to 

interfere with or impair Teigen's right to have local election 

officials comply with the law. I conclude they do.

¶166 The two memos challenged in this case provide local 

election officials advice on absentee ballot return——advice 

Teigen contends is unlawful. Regardless of whether the memos 

are themselves binding on local election officials (a question 

explored further below), they no doubt carry persuasive force 

with those administering elections. Many local election 

officials will follow advice offered by WEC, even when that 

advice is not legally binding. Indeed, the record in this case 

 

comply with any law regulating the conduct of elections or 

election campaigns" to petition the district attorney with 

jurisdiction to prosecute the election official's failure); Wis. 

Stat. § 5.061 (directing voters to file a complaint if they 

observe a violation of the Help America Vote Act in a national 

election); Wis. Stat. § 5.081 (authorizing voters to contest 

perceived violations of § 2 of the Voting Rights Act by 

petitioning the attorney general, who then is directed to bring 

a lawsuit on the voters' behalf).
No. 2022AP91.bh

13

reveals that many local election officials employed drop boxes 

consistent with WEC's advice after the memos issued. If that 

advice is contrary to law, it stands to reason that many local 

election officials, including those in Teigen's area, are likely 

to rely on and implement erroneous advice. Applying the plain 

terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at 

the very least threaten to interfere with or impair his right to 

have local election officials comply with the law. In other 

words, unlawful WEC guidance can threaten harm to the legal 

rights and privileges Wis. Stat. § 5.06 provides to voters like

Teigen. In this case, the question is whether WEC issued an 

allegedly unlawful rule or guidance document that makes it 

likely local election officials will not follow election laws. 

And on that question, Teigen has sufficiently alleged standing 

for purposes of § 227.40(1).7

¶167 The majority/lead opinion concludes Teigen has 

standing, but for a different reason. It says Teigen alleged an 

injury to his constitutional right to vote as recognized in Wis. 

Stat. § 6.84(1). Majority/lead op., ¶21. That subsection is a 

statement of legislative policy. It provides in part, "The 

legislature finds that voting is a constitutional right, the 

vigorous exercise of which should be strongly encouraged." 

 

7 Significantly, the challenge to Teigen's standing in this 

case was brought by one of the intervenors, DSCC. WEC——the 

agency that issued the challenged guidance——expressly declined 

to join DSCC's standing challenge, even when questioned about 

the challenge at oral argument. If there is a clear bar to

voters challenging allegedly unlawful WEC guidance, WEC itself 

did not think it worth raising.
No. 2022AP91.bh

14

§ 6.84(1). This statute acknowledges the right to vote 

protected in Article III, Section 1 of the Wisconsin 

Constitution: "Every 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." The majority/lead does not 

explain why the text of § 6.84(1)——or Article III, Section 1 for 

that matter——should be read to encompass a right for a voter to 

challenge any and all election practices. Section 6.84 sets 

forth rules of construction in a subchapter governing absentee 

voting. Yet the majority/lead opinion suggests it creates broad 

voter standing against any election official or WEC by any 

elector for nearly any purported violation of any election law.8 

Without tethering the analysis to an on-point text, this 

analysis is unpersuasive and does not garner the support of four 

members of this court.

B. Exhaustion

¶168 One procedural matter remains. DRW argues Teigen 

failed to exhaust his administrative remedies because he did not 

first challenge the guidance under Wis. Stat. § 5.06. 

Specifically, DRW points to subsec. (2) of that statute, which 

says: "No person who is authorized to file a complaint under 

 

8 The majority/lead opinion does not disagree with this 

characterization of the import of its argument. But it wrongly 

suggests my analysis under Wis. Stat. § 5.06 does the same. My 

standing analysis applies only to challenges under Wis. Stat. 

§ 227.40(1) to WEC rules and guidance documents when that 

guidance threatens to cause local election officials to behave 

illegally——a legal right protected by § 5.06. The majority/lead 

opinion brings heat, but little light, to the analysis.
No. 2022AP91.bh

15

[this section] . . . may commence an action or proceeding to 

test the validity of any decision, action or failure to act on 

the part of any election official . . . without first filing a 

complaint under [this section.]" § 5.06(2). DRW also relies on 

Wis. Stat. § 5.05(2m), which says WEC's "power to initiate civil 

actions . . . for the enforcement of chs. 5 to 10 or 12 shall be 

the exclusive remedy for alleged civil violations of chs. 5 to 

10 or 12." § 5.05(2m)(k).

¶169 DRW makes reasonable arguments supporting the 

proposition that these statutes apply to claimed failures of WEC 

as well. But on balance, I conclude that these statutes do not 

apply here. Wisconsin Stat. § 5.06 gives WEC an adjudicatory 

role when an "election official" violates the law. An "election 

official" in the elections statutes is "an individual who is 

charged with any duties relating to the conduct of an election." 

Wis. Stat. § 5.02(4e). However, WEC is separately defined 

immediately following this as "the elections commission." Wis. 

Stat. § 5.025. WEC's powers and duties are outlined in § 5.05 

and include a direction to "investigate violations of laws 

administered by the commission" and "prosecute alleged civil 

violations of those laws." § 5.05(2m)(a). Similarly, § 5.06(4) 

authorizes WEC to "investigate and determine whether any 

election official . . . has failed to comply with the law." 

With respect to both §§ 5.05(2m) and 5.06, DRW's reading would 

mean WEC is directed to investigate and prosecute itself, which 

makes little sense. That, along with the statutory distinction 

between an "election official" and the "commission" lead me to 
No. 2022AP91.bh

16

conclude the better reading is that the § 5.06 complaint process 

does not apply to complaints against acts of WEC as a body.9

¶170 In addition, Wis. Stat. § 227.40(1) expressly opens 

the courthouse doors to those challenging administrative rules

or guidance documents: "A declaratory judgment may be rendered 

whether or not the plaintiff has first requested the agency to 

pass upon the validity of the rule or guidance document in 

question." This seems to carve out a particular kind of legal 

claim——a challenge to rules and guidance documents——and relieves 

the petitioner of pleading one's case with the agency first.10 

Applying this as written, and in the absence of other contrary 

arguments, I conclude Teigen was not required to take his case 

to WEC before seeking judicial relief under § 227.40(1). Thus, 

Teigen has not failed to exhaust his administrative remedies 

before bringing this claim. I therefore proceed to the merits.

III. BALLOT DELIVERY & DROP BOXES

¶171 In the two memos at issue here, WEC advised clerks 

that absentee voters could cast their ballots via staffed or 

unstaffed drop boxes, that drop boxes may be placed at clerk's 

 

9 See also Note, Wis. Admin. Code ch. EL 20 (June 2016) 

(referring to "complaints alleging a violation of election laws 

by a local election official under s. 5.06, Wis. Stat." 

(emphasis added)).

10 The availability of relief under Wis. Stat. § 227.40(1) 

also means the State has waived its sovereign immunity from this 

type of claim——i.e., it has consented to suits of this type. 

See Wis. Const. art. IV, § 27; Lister v. Bd. of Regents of Univ. 

Wis. Sys., 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976) 

(explaining "the state cannot be sued without its consent").
No. 2022AP91.bh

17

office or elsewhere, and that individuals other than the voter 

may deliver the voter's absentee ballot to the clerk. These 

three positions are inconsistent with Wisconsin's election 

statutes. The law requires that to return an absentee ballot in 

person, voters must personally deliver their ballot to the clerk 

or the clerk's authorized representative at either the clerk's 

office or a designated alternate site. Wis. Stat. §§ 5.02(10), 

6.855, 6.87(4)(b)1., 6.88(1). Because WEC's memos conflict with 

these statutory directives, they are invalid.

A. Statutory Framework

¶172 Our interpretive task centers on three statutes that 

together provide the framework for how absentee ballots may be 

returned and how clerks are to receive them. 

¶173 The first one, Wis. Stat. § 6.87(4)(b)1., details how 

an absentee voter should complete a ballot, and then directs how 

it should be returned: "The envelope shall be mailed by the 

elector, or delivered in person, to the municipal clerk issuing 

the ballot or ballots." § 6.87(4)(b)1. A "municipal clerk" 

includes "authorized representatives" of the clerk. Wis. Stat. 

§ 5.02(10).

¶174 Wisconsin Stat. § 6.87(4)(b)1. was originally enacted 

as part of Wisconsin's earliest comprehensive absentee voting 

law in 1915. § 1, ch. 461, Laws of 1915. Regarding return of a 

ballot, the law provided: "Said envelope shall be mailed by 

such voter, by registered mail, postage prepaid, to the officer 

issuing the ballot, or if more convenient it may be delivered in 
No. 2022AP91.bh

18

person." Id. This wording, plainly read, suggests both the 

mailing and the delivery must be done by the voter, and directed 

to the ballot-issuing officer.

¶175 When we construe statutes, we must read the words to 

mean what they were understood to mean at the time they were 

enacted, lest we find ourselves rewriting the law. Fortunately, 

we have clear evidence of how this language was originally read. 

Less than a year after enactment, the attorney general opined on 

the precise interpretive question before us today: "'Delivery 

in person' must mean handed directly by an elector to the 

officer; it means manual transmission by the one to the other." 

5 Wis. Op. Att'y Gen. 591, 593 (1916). When enacted, the text 

we are considering today was understood to require a person-toperson interaction between the voter and the clerk. So far as I 

can tell, this reading went unchallenged for 40 years.

¶176 In 1955, this court had occasion to examine the 

statute in an election dispute. In Sommerfeld v. Board of 

Canvassers of the City of St. Francis, 18 absentee ballots were 

returned to the clerk by a third person, and not by the voter. 

269 Wis. 299, 300-01, 69 N.W.2d 235 (1955), abrogated in part by

Wis. Stat. § 6.84(2). The question in that case concerned 

whether those ballots should be counted. Id. at 300. All seven 

justices took it as a given that the law had been violated; the 

statute required delivery from the voter to the clerk, not 

through a third person. Id. at 301; id. at 304-05 (Gehl, J., 

dissenting). The four-justice majority, however, concluded 

those votes should nonetheless be counted because the statute, 
No. 2022AP91.bh

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though violated, was directory, not mandatory. Id. at 304. 

Although legally binding, failure to comply with a directory 

statute may not produce the same consequence as a failure to 

comply with a mandatory statute. See State v. Rosen, 72 

Wis. 2d 200, 207, 240 N.W.2d 168 (1976). The Sommerfeld

majority concluded that construing the in-person delivery 

requirement as mandatory for votes to count could disenfranchise 

some disabled voters——a result it did not think the legislature 

meant to produce. 269 Wis. at 303-04. Speaking for three 

justices, Justice Gehl wrote in dissent that "in person" means 

"[b]y one's self; with bodily presence," quoting a dictionary. 

Id. at 304 (Gehl, J., dissenting). Voting by agent was not 

permitted by this statute, the dissent explained, and votes cast 

out of compliance with the law should not be counted. Id. at 

305 (Gehl, J., dissenting). Sommerfeld's holding that the inperson delivery requirement is directory has since been 

abrogated. Section 6.84(2) now provides that the requirement 

"shall be construed as mandatory." What remains is what no 

justice doubted——that the "in person" delivery requirement means 

personal delivery, in the flesh, by the voter, to the municipal 

clerk.

¶177 The legislature has instructed that a "revised statute 

is to be understood in the same sense as the original unless the 

change in language indicates a different meaning so clearly as 

to preclude judicial construction." Wis. Stat. § 990.001(7). 

There have been three significant iterations of the in-person 

delivery requirement; none convey a clear change in meaning from 
No. 2022AP91.bh

20

the original.11 No statutory amendments, cases, or Attorney 

General opinions since give cause to reconsider the long-held 

view that Wis. Stat. § 6.87(4)(b)1.'s delivery provision 

requires a person-to-person interaction between the voter and 

the clerk.

¶178 WEC and DRW counter that because the statute is 

written in the passive voice, the actor is indeterminate. While 

that can be true at times, it is not the case here. Wisconsin 

Stat. § 6.87(4)(b)1. is not agnostic as to the actor. It must 

be the voter who delivers the ballot. The history confirms this 

plain reading. WEC also argues that delivery in person does not 

foreclose delivery by an agent. But statutory history shows 

this is incorrect as well. In the same comprehensive 1915 law, 

just two sections after the in-person-delivery requirement, the 

law speaks of delivery of ballots from clerks to election 

inspectors "in person or by duly deputized agent." Wis. Stat. 

§ 44m——8 (1915). At the very least, this shows that the 

legislature knew how to allow delivery by agent, but it chose 

not to provide for that form of delivery when it enacted this 

 

11 The three versions are as follows:

 1915: "Said envelope shall be mailed by such voter, by 

registered mail, postage prepaid, to the officer issuing 

the ballot, or if more convenient it may be delivered in 

person." Wis. Stat. § 44m——6 (1915).

 1965: "The envelope shall be mailed by the elector, 

postage prepaid, or delivered in person, to the municipal 

clerk issuing the ballot." Wis. Stat. § 6.87(4) (1967-68).

 Present: "The envelope shall be mailed by the elector, or 

delivered in person, to the municipal clerk issuing the 

ballot or ballots." Wis. Stat. § 6.87(4)(b)1.
No. 2022AP91.bh

21

law. Our decision in Sommerfeld is in accord. I see no 

evidence supporting a different reading in the current text 

either.12

¶179 In the end, there are two ways to return an absentee 

ballot under Wis. Stat. § 6.87(4)(b)1. A ballot may be "mailed 

by the elector," or the voter may deliver it "in person" to the 

clerk that issued it. § 6.87(4)(b)1. The elector is required——

the statute uses the word "shall"——to utilize one of these two 

options. This contemplates an in-person interaction between the 

voter and either the municipal clerk or an authorized 

representative of the clerk.

¶180 We turn next to two statutes that inform where clerks 

may receive absentee ballots. Wisconsin Stat. § 6.88(1) 

prescribes what happens after an absentee ballot is received by 

the clerk:

When an absentee ballot arrives at the office of the 

municipal clerk, or at an alternate site under s. 

6.855, if applicable, the clerk shall enclose it, 

unopened, in a carrier envelope which shall be 

securely sealed and endorsed with the name and 

official title of the clerk, and [a statement 

 

12 The dissent suggests that the use of the phrase "ballot 

or ballots" means that one voter may return other voters'

ballots. Dissent, ¶240 n.14. This phrasing, however, appears 

to be holdover from an earlier time when a single voter would 

cast separate ballots for separate races. The original absentee 

voting law enacted in 1915 routinely discussed a single voter 

receiving and casting multiple ballots. See Wis. Stat. § 44m—4 

(1915) (providing that the municipal clerk "shall deliver said 

ballot or ballots to the applicant personally"); Wis. Stat. 

§ 44m—6 (1915) (directing the voter to "mark such ballot or 

ballots" and that "such ballot or ballots shall then in the 

presence of such officer be folded by such voter so that each 

ballot will be separate and so as to conceal the marking").
No. 2022AP91.bh

22

regarding the contents of the envelope]. . . . The 

clerk shall keep the ballot in the clerk's office or 

at the alternate site, if applicable until delivered 

[to the appropriate election officials].

This statute ensures a strict chain of custody for ballots. 

Once a ballot is delivered by the voter, the clerk must take 

steps to secure it until the time comes to deliver it to the 

appropriate election officials. The next subsection, § 6.88(2), 

provides detailed instructions regarding the secure transfer of 

ballots from clerks to the proper election officials, ensuring 

there is no opportunity to tamper with the ballots. Although 

neither Wis. Stat. § 6.87(4)(b)1. nor § 6.88(1) expressly state 

where the voter may deliver his or her ballot, reading the two 

sections together suggests that delivery must occur either at 

the clerk's office or an alternate site, if applicable. Given 

the detailed ballot custody regulations once the ballot arrives 

at the clerk's office or an alternate site, legislative silence 

with respect to ballots delivered anywhere else strongly 

indicates delivery is not permitted anywhere else. See Alberte 

v. Anew Health Care Servs., Inc., 2000 WI 7, ¶17, 232 

Wis. 2d 587, 605 N.W.2d 515 (noting that statutory silence "is 

strong evidence" that the legislature "simply did not 

contemplate" a particular option).

¶181 Finally, we consider Wis. Stat. § 6.855, which 

authorizes the aforementioned "alternate sites"——i.e., 

designated locations besides the clerk's office where elections 

may be administered. It provides:

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 
No. 2022AP91.bh

23

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).13 The strict regulation of alternate sites 

reinforces the interpretation that ballots must be returned to 

either the clerk's office or a designated alternate site. Just 

as the statutes are not agnostic about who delivers ballots, a 

holistic reading indicates they are not agnostic about where 

those ballots are delivered either. Ballot custody is carefully 

regulated at both clerks' offices and at alternate sites. The 

absence of any careful regulation governing ballot custody 

elsewhere leads me to conclude that clerks may not take custody 

of ballots at other locations unless otherwise specified.14

 

13 Governing bodies "may designate more than one alternate 

site." Wis. Stat. § 6.855(5).

14 In Trump v. Biden, among other issues, we were asked 

whether ballots delivered to certified election inspectors at 

temporary events in Madison parks were valid. 2020 WI 91, ¶¶9, 

19-21, 394 Wis. 2d 629, 951 N.W.2d 568. The court concluded 

this claim was barred by the doctrine of laches and rejected it 

on that basis. Id., ¶¶10, 29-31. I authored a concurrence 

offering a preliminary review of the merits of the three claims 

rejected on the basis of laches, while recognizing that a

"comprehensive analysis is not possible or appropriate in light 

of the abbreviated nature of this review and the limited factual 

record" in that case. Id., ¶36 (Hagedorn, J., concurring). 

Regarding the so-called "Democracy at the Park" events, I 

concluded those events were lawful "based on the record before 

the court and the arguments presented." Id., ¶57 (Hagedorn, J., 

concurring). With the benefit of more comprehensive briefing 

and careful study, I now conclude that the better reading of the 

statutory scheme is that ballots may only be returned to the 

clerk's office or a designated alternate site. To be clear, 
No. 2022AP91.bh

24

¶182 The respondents argue that the directive to deliver 

ballots "to the municipal clerk" in Wis. Stat. § 6.87(4)(b)1. 

does not restrict how the municipal clerk may receive the 

ballots. If the municipal clerk wishes to receive the ballots 

in a drop box, the argument goes, that is sufficient. Moreover, 

other statutes speak of delivery to the office of the municipal 

clerk, and this one does not. This is perhaps the best argument 

in the respondents' favor, but it is unpersuasive given the 

additional statutes that give great care to ballot security and 

custody. While § 6.87(4)(b)1. says how ballots must be 

delivered and by whom, Wis. Stat. §§ 6.88(1) and 6.855(1) are 

best read as limiting and defining where these ballots must be 

delivered. Section 6.87(4)(b)1. requires in-person delivery by 

the voter to the municipal clerk. And §§ 6.88(1) and 6.855(1) 

specify where the municipal clerk can receive those ballots.15

¶183 Read together, these statutes direct that when voters 

choose to return an absentee ballot in person, they must 

personally deliver their ballot to the clerk or the clerk's 

authorized representative at either the clerk's office or a 

designated alternate site. With this interpretation in hand, 

the next task is to hold WEC's memos up against the statutes.

 

this conclusion would not have changed the court's decision in 

Trump.

15 As previously noted, these statutes are far from obvious. 

While I conclude WEC's interpretation is incorrect, reasonable 

arguments can be made otherwise, especially with respect to the 

locations where ballots may be received. This lack of precision 

and certainty should serve as a call for our political branches 

to give clearer guidance to voters and those they have asked to 

administer elections.
No. 2022AP91.bh

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B. Application

¶184 Teigen focuses his challenge to the March 2020 memo on 

the following sentence: "A family member or another person may 

also return the ballot on behalf of the voter." Teigen argues, 

correctly, that this advice was contrary to Wis. Stat. 

§ 6.87(4)(b)1. WEC's interpretation would permit an agent of 

the voter to return a ballot on the voter's behalf, contrary to 

§ 6.87(4)(b)1.'s requirement that there be a voter-to-clerk 

interaction. And although Wis. Stat. § 5.02(10) permits an 

agent to stand in for the clerk, no statute allows an agent to 

stand in for the voter in this context.16 WEC's March 2020 memo 

is invalid.

¶185 Teigen also seeks a declaration that Wis. Stat. 

§ 6.87(4)(b)1. requires voters to personally place their own 

ballots in the mail——a declaration the circuit court granted. 

However, neither WEC's March 2020 memo nor its August 2020 memo 

offer any advice about how a ballot may be "mailed by the 

elector." Therefore, there simply is no guidance or rule for us 

to review under Wis. Stat. § 227.40(1). Accordingly, the court 

should not and does not make any declaration on that question.17

 

16 Other more specific laws that are not at issue here do 

permit agents to complete certain tasks on a voter's behalf. 

See, e.g., Wis. Stat. § 6.875 (absentee voting in certain 

residential care facilities); Wis. Stat. § 6.86(3) (hospitalized 

voters).

17 Justice Roggensack's concurring opinion contends we 

should decide this question pursuant to our authority under the 

general Declaratory Judgments Act, Wis. Stat. § 806.04. 

However, unlike Teigen's other claims, he presents no evidence 

that WEC has or will violate Wis. Stat. § 6.87(4)(b)1.'s 

directives on returning ballots by mail. Teigen therefore does 
No. 2022AP91.bh

26

¶186 Finally, we turn to WEC's August 2020 memo, which 

provides guidance on drop boxes. Teigen correctly contends the 

August 2020 memo improperly advises clerks on how to administer 

unstaffed drop boxes and drop boxes at locations other than the 

clerk's office or alternate sites. WEC's guidance is contrary 

to statute for two reasons. First, unstaffed drop boxes do not 

satisfy Wis. Stat. § 6.87(4)(b)1.'s requirement that the voter 

deliver his or her ballot to the municipal clerk or an 

authorized representative of the clerk. The "in person" 

interaction the statutes require is absent when a ballot is 

delivered to an unstaffed drop box. Second, the August memo 

offers incorrect guidance regarding drop boxes at locations 

other than the municipal clerk's office or alternate sites. 

Because Wis. Stat. §§ 6.88(1) and 6.855(1) contemplate delivery 

occurring at the clerk's office or an alternate site, but not 

elsewhere, this guidance is contrary to law. Accordingly, WEC's 

August 2020 memo is also invalid.

¶187 Both WEC's March 2020 and August 2020 memos provide 

advice that is inconsistent with Wisconsin's election statutes. 

The court therefore rightly affirms the circuit court's order 

declaring the memos invalid pursuant to Wis. Stat. § 227.40(1).

IV. UNPROMULGATED RULE CHALLENGE

¶188 The foregoing analysis is sufficient to resolve the 

appeal before us. I write further to address Teigen's argument 

that WEC's memos were unpromulgated administrative rules.

 

not face any threatened harm which a declaration would remedy.
No. 2022AP91.bh

27

¶189 Not all statements that come from a state agency are 

created equal. Wisconsin's Administrative Procedure Act 

recognizes this and draws a distinction between what it terms 

"guidance documents" on the one hand and administrative "rules" 

on the other. Wis. Stat. § 227.01(3m) & (13).

¶190 A guidance document is just what it sounds like. It 

is a "formal or official document or communication issued by an 

agency"——such as "a manual, handbook, directive, or 

informational bulletin"——that explains how a rule will be 

implemented or advises the public on how the agency is likely to 

apply a statute or rule to a class of similarly affected 

persons. Wis. Stat. § 227.01(3m)(a). "A guidance document does 

not have the force of law and does not provide the authority for 

implementing or enforcing a standard, requirement, or 

threshold." Wis. Stat. § 227.112(3). Agency guidance has 

existed informally for some time. In 2018, the legislature 

formalized guidance documents into law as a category of agency 

communication and added procedures for challenging them. See

2017 Wis. Act 369, §§ 31, 65-71. The legislature also required 

guidance documents to go through various processes to ensure 

public input and legislative oversight. Id., § 38. However, a 

majority of the court concluded several of these statutes were 

facially unconstitutional——incorrectly so in my view. Serv. 

Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶¶90-91, 393 

Wis. 2d 38, 946 N.W.2d 35; id., ¶¶190-212 (Hagedorn, J., 

concurring in part, dissenting in part). Accordingly, agencies 
No. 2022AP91.bh

28

may issue guidance documents without going through the 

procedures described in Wis. Stat. ch. 227.

¶191 "Rules" are different. The statutory definition of a 

rule has five elements: a "rule" is (1) "a regulation, 

standard, statement of policy, or general order," (2) "of 

general application," that (3) "has the force of law," and (4) 

"is issued by an agency," to (5) "implement, interpret, or make 

specific legislation enforced or administered by the agency or 

to govern the organization or procedure of the agency." Wis. 

Stat. § 227.01(13). If all five of these elements are 

satisfied, the rule is subject to numerous promulgation 

requirements, most notably those described in subchapter II of 

Wis. Stat. ch. 227. Any rule "promulgated or adopted without 

compliance with statutory rule-making or adoption procedures" is 

invalid. Wis. Stat. § 227.40(4)(a).

¶192 Teigen contends that both of WEC's memos were rules 

under the five-part definition just articulated, and that they 

are invalid because WEC did not go through the steps required to 

promulgate a rule. The dispute revolves around whether these 

memos have the force of law; rules by definition do, guidance 

documents by definition do not.

¶193 Few cases interpret whether a directive has the force 

of law. The court of appeals has observed that "[m]aterials 

developed by an agency as a reference aid for its staff that are 

couched in terms of advice and guidelines rather than setting 

forth law-like pronouncements" do not have the force of law and 

are not rules. County of Dane v. Winsand, 2004 WI App 86, ¶11, 
No. 2022AP91.bh

29

271 Wis. 2d 786, 679 N.W.2d 885 (cleaned up). By contrast, 

materials "using express mandatory language are more than

informational." Milwaukee Area Joint Plumbing Apprenticeship 

Comm. v. DILHR, 172 Wis. 2d 299, 321 n.12, 493 N.W.2d 744 (Ct. 

App. 1992). In such documents, "the agency speaks with an 

official voice intended to have the effect of law." Id. How an 

agency uses a document can also indicate whether it has the 

force of law. See Barry Lab'ys, Inc. v. Wis. State Bd. of 

Pharmacy, 26 Wis. 2d 505, 516, 132 N.W.2d 833 (1965). 

Additional instances where agency materials have been held to 

have the force of law include "where criminal or civil sanctions 

can result" or "where the interest of individuals in a class can 

be legally affected through enforcement of the agency action." 

Cholvin v. DHSF, 2008 WI App 127, ¶26, 313 Wis. 2d 749, 758 

N.W.2d 118 (collecting cases).

¶194 While these cases are helpful, a more fundamental 

question should be asked: what is a law? To be a law means to 

be binding and enforceable. Durkee v. City of Janesville, 28 

Wis. 464, 471 (1871) (laws are "binding"); State ex rel. Mayer 

v. Schuffenhauer, 213 Wis. 29, 32, 250 N.W. 767 (1933) (laws 

"must be followed"). A law orders and forbids and governs and 

establishes in an authoritative way. See U.S. Fid. & Guar. Co. 

v. Guenther, 281 U.S. 34, 37 (1930) (defining "law" as "the 

rules of action or conduct duly prescribed by controlling 

authority, and having binding legal force"). Here, the statutes 

specify that a rule must have the "force of law." Wis. Stat. 

§ 227.01(13). And "force" means to "compel by physical means or 
No. 2022AP91.bh

30

by legal requirement." Black's Law Dictionary (11th ed. 2019). 

This suggests something has the force of law if it compels 

compliance in the same manner as other laws——like a statute or 

constitutional provision. Administrative rules, once 

promulgated, bind agencies and regulated entities alike. But 

guidance documents do not; they inform and compel nothing.

¶195 Also important to our inquiry is the agency we are 

talking about. Most agencies in state government operate with a 

wide range of powers and have broad areas of regulatory 

authority. WEC is different. Wisconsin's method for conducting 

elections is unlike that of most other states in the union. Our 

election administration system is highly decentralized. State 

ex rel. Zignego v. WEC, 2021 WI 32, ¶13, 396 Wis. 2d 391, 957 

N.W.2d 208. "Rather than a top-down arrangement with a central 

state entity or official controlling local actors, Wisconsin 

gives some power to its state election agency ([WEC]) and places 

significant responsibility on a small army of local election 

officials." Id. It is local clerks who have the "primary role 

in running Wisconsin elections." Id., ¶15. WEC is therefore 

given authority and oversight over some things, and not others. 

It may speak authoritatively at times, but not at all times.

¶196 Consistent with this structure, the statutes specific 

to WEC establish a process by which WEC can adopt formal or 

informal advisory opinions that "have legal force and effect." 

Wis. Stat. § 5.05(6a)(a)2. This necessarily means some of WEC's 

opinions and advice do not have legal force and effect, and 

therefore, cannot be administrative rules. Statutes must be 
No. 2022AP91.bh

31

read together where possible, which means we must interpret the 

rulemaking "force of law" requirement consistent with the 

particular circumstances where WEC can issue advisory opinions 

that "have legal force and effect." See § 5.05(6a)(a)1.

¶197 Considering all of this, the two memos in this case do 

not have the force of law. The memos are self-labeled guidance 

documents. They do not purport to be advisory opinions with 

legal force issued pursuant to Wis. Stat. § 5.05(6a)(a)2. And 

again, the legislature has specifically stated that WEC's 

opinions have legal force and effect only under certain 

circumstances; this is not one of them.

¶198 The language of the memos supports this view. The 

March 2020 memo is structured as an FAQ document addressed to 

local election officials. It begins by observing, "Due to the 

increase in by-mail absentee ballots, clerks have inquired about 

options for ensuring that the maximum number of ballots are 

returned to be counted for the April 7, 2020 election." It 

proceeds to advise clerks on how "to make ballot return more 

accessible and efficient," and says that it is "recommended" 

that clerks take various actions to inform voters how their 

ballots may be returned. The memo then shifts to question-andanswer format, providing advice to clerks regarding drop boxes 

and how to coordinate ballot return with the U.S. Postal 

Service. Nothing in the documents suggests there are 

consequences for noncompliance. No legal interests are altered 

by the March 2020 memo.
No. 2022AP91.bh

32

¶199 The August 2020 memo is similarly entitled "Absentee 

Ballot Drop Box Information" and is addressed to Wisconsin's 

election officials. The very first line of the memo reveals its 

limited purpose: "This document is intended to provide 

information and guidance on drop box options for secure absentee 

ballot return for voters." It indicates the information in the 

memo was adapted from an advisory resource developed by the 

Cybersecurity and Infrastructure Security Agency. It advises 

election officials regarding various types of drop boxes, where 

to place them, and how to keep the ballots collected in drop 

boxes secure. Again, reading the August 2020 memo in full 

reveals that it is an informational document, designed to 

educate election officials regarding best practices. It was 

never legally binding.

¶200 Teigen disagrees. He argues that when the state 

entity responsible for administering Wisconsin election law says 

something is permissible——like drop boxes——WEC's imprimatur 

gives its statement the force of law. But widely-followed 

advice can still simply be advice. Even general acceptance does 

not make guidance legally binding or otherwise give it the force 

of law. Wisconsin's local election officials who lead the 

charge in election administration have an independent 

responsibility to read and follow the law. WEC's memos provided 

advice and best practices which election officials could weigh 

and consider. Many surely followed that advice. But the memos 

did not themselves "authorize" drop boxes or any other election 

practice in a legally binding way.
No. 2022AP91.bh

33

¶201 Justice Rebecca Grassl's Bradley concurrence concludes 

the memos are administrative rules, a position premised on a

confused interpretation of Trump v. Biden, 2020 WI 91, 394 

Wis. 2d 629, 951 N.W.2d 568. In that case, the court used the

word "rulebook" in a metaphor regarding challenge flags in 

football. Id., ¶32. The logic of Justice Bradley's concurrence

goes like this: The court said WEC's memos were a rulebook, so

the court held that WEC memos have the force of law and are

administrative rules under Wis. Stat. § 227.01(13).

¶202 To state the obvious, a metaphor is "a figure of 

speech in which a term or phrase is applied to something to 

which it is not literally applicable."18 The challenge flag 

metaphor came in the concluding paragraph to reinforce the 

importance of challenging election practices in a timely manner. 

Yet the concurrence reasons that using the coincidentally 

similar word "rulebook" means the court determined that all WEC 

memos are "rules" within the statutory definition. Except the 

court's decision in Trump did not involve administrative 

rulemaking at all. It did not cite Wis. Stat. § 227.01(13). 

And no part of the analysis ascribed the force of law to WEC 

guidance. Rather, the court's decision addressed whether the 

Trump campaign was entitled to the relief it sought——the 

striking of ballots cast in Dane and Milwaukee Counties. Trump, 

 

18 https://www.dictionary.com/browse/metaphor (emphasis 

added); see, e.g., Thurl Ravenscroft, You're a Mean One, Mr. 

Grinch, on How the Grinch Stole Christmas (Mercury Records 1966) 

(referring to Mr. Grinch as a "bad banana" and to his heart as 

an "empty hole").
No. 2022AP91.bh

34

394 Wis. 2d 629, ¶32. The court expressly withheld judgment on 

whether the widely followed WEC guidance was correct or not. 

Id., ¶30 n.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."). Simply put, 

neither the court's reasoning nor its concluding metaphor 

suggested all such guidance has the force of law and must be 

followed. It never even hinted this. The idea that we should 

ascribe legal force to the two challenged memos in this case 

because this was somehow settled by a one-sentence metaphor in 

Trump v. Biden is not a serious legal argument.

¶203 In the end, neither the March 2020 memo nor the August 

2020 memo are unpromulgated administrative rules because neither 

have the force of law. The memos here are guidance documents. 

They are not subject to Wis. Stat. ch. 227's promulgation 

requirements and cannot be invalidated on that basis. They can, 

however, be invalidated for being inconsistent with statute, as 

we hold today.19

V. CONCLUSION

¶204 The majority/lead opinion correctly concludes that 

WEC's March 2020 and August 2020 memos are invalid because they 

are inconsistent with Wisconsin law. Wisconsin's election 

statutes require that to return an absentee ballot in person, 

 

19 Of course, if unstaffed drop boxes are not permitted by 

statute, as a majority of this court holds today, then no 

rulemaking authorizing drop boxes would be permissible. An 

administrative rule cannot make lawful what the statutes forbid.
No. 2022AP91.bh

35

voters must personally deliver their ballot to the clerk or the 

clerk's authorized representative at either the clerk's office 

or a designated alternate site. Wis. Stat. §§ 5.02(10), 6.855, 

6.87(4)(b)1., 6.88(1). WEC's memos conflict with these 

statutory requirements by advising that individuals other than 

the voter may return the voter's ballot to the municipal clerk, 

that unstaffed drop boxes are permissible, and that drop boxes 

may be located at places other than the municipal clerk's office 

or alternate sites. I respectfully concur.
No. 2022AP91.awb

1

¶205 ANN WALSH BRADLEY, J. (dissenting). The right to 

vote is a "sacred right of the highest character." State ex 

rel. McGrael v. Phelps, 144 Wis. 1, 15, 128 N.W. 1041 (1910). 

Yet the majority/lead opinion1 blithely and erroneously seeks to 

sow distrust in the administration of our elections and through 

its faulty analysis erects yet another barrier for voters to 

exercise this "sacred right." 

¶206 Although it pays lip service to the import of the 

right to vote, the majority/lead opinion has the practical 

effect of making it more difficult to exercise it. Such a 

result, although lamentable, is not a surprise from this court. 

It has seemingly taken the opportunity to make it harder to vote 

or to inject confusion into the process whenever it has been

presented with the opportunity.2

¶207 A ballot drop box is a simple and perfectly legal 

solution to make voting easier, especially in the midst of a 

 

1 I refer to Justice Rebecca Grassl Bradley's opinion as the 

"majority/lead opinion" because not all of the opinion has been 

joined by a majority of the court. Justice Brian Hagedorn does 

not join the following paragraphs: 1-3, 11, 14-51, 64-72, 86, 

n.29, 87. Justice Hagedorn's concurrence, ¶149 n.1. Thus, 

those paragraphs do not constitute precedential authority. For 

further discussion of our procedure regarding lead opinions, see 

Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 

922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).

2 See, e.g., Teigen v. Wis. Elections Comm'n, No. 2022AP91, 

unpublished order (Wis. S. Ct. Feb. 11, 2022); League of Women 

Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, 357 

Wis. 2d 360, 851 N.W.2d 302; Milwaukee Branch of NAACP v. 

Walker, 2014 WI 98, 357 Wis. 2d 469, 851 N.W.2d 262. Each 

opinion had vigorous dissents.
No. 2022AP91.awb

2

global pandemic.3 But it is apparently a bridge too far for a 

majority of this court, which once again rejects a practice that 

would expand voter participation. 

¶208 The majority/lead opinion's analysis is flawed in 

three main ways. It expands the doctrine of standing beyond 

recognition, is premised on a faulty statutory interpretation, 

and without justification fans the flames of electoral doubt 

that threaten our democracy. 

¶209 Accordingly, I respectfully dissent.

I

¶210 At the outset, the majority/lead opinion makes a 

significant misstep. It begins with a lengthy discussion of 

 

3 A justice of the United States Supreme Court recently 

cited the existence of drop boxes in support of the assertion 

that "[r]eturning an absentee ballot in Wisconsin 

is . . . easy." Democratic Nat'l Comm. v. Wis. State 

Legislature, 141 S. Ct. 28, 36 (2020) (Kavanaugh, J., 

concurring); see also id. at 29 (Gorsuch, J., concurring) 

("Never mind that voters may return their ballots not only by 

mail but also by bringing them to a county clerk's office, or 

various 'no touch' drop boxes staged locally, or certain polling 

places on election day."). After the result in this case, the 

idea that returning a ballot is so "easy" becomes less 

defensible.
No. 2022AP91.awb

3

standing,4 and in the process extends the doctrine beyond 

recognition.

¶211 In the majority/lead opinion's view, Teigen5 has 

standing "under Wisconsin's permissive, policy-oriented approach 

toward standing" because he has a "stake in the outcome" and is 

"affected by the issues in controversy." Majority/lead op., 

¶14. Teigen has suffered an "injury in fact" to his 

constitutional right to vote, the majority/lead opinion says, 

merely because he alleges that election law was not followed. 

In accepting Teigen's standing to bring this suit, it further 

states: "the failure to follow election laws is a fact which 

forces everyone . . . to question the legitimacy of election 

results." Id., ¶25.

 

4 The majority/lead opinion additionally devotes a great 

deal of ink to analyzing whether Teigen needed to file a 

complaint with WEC under Wis. Stat. § 5.06 before commencing 

this suit. See majority/lead op., ¶¶37-51. It determines that 

this statute does not require a complaint to be filed against 

WEC, in part because such a procedure would cause WEC to "be a 

judge in [its] own cause." Id., ¶47. Rather than engage with 

each point the majority/lead opinion makes in its discussion, I 

simply observe that an agency reviewing its own decision at the 

beginning of an appeal process is a common occurrence and does 

not present the anomaly that the majority/lead opinion paints. 

See Wis. Stat. § 283.63 (providing for review by the Department 

of Natural Resources of a permit denial, modification, 

termination, or revocation decision made by the Department)

5 The majority/lead opinion refers to Teigen and Thom as the 

"Wisconsin voters" throughout its opinion. This could be 

misleading to the reader. True enough, Teigen and Thom are 

voters who live in Wisconsin. But the use of the term could 

lead the reader to believe that the plaintiffs here represent a 

wider swath of people than they actually do. Thus, I refer to 

the two plaintiffs collectively as "Teigen."
No. 2022AP91.awb

4

¶212 The majority/lead opinion attempts to create a freefor-all. It delineates no bounds whatsoever on who may 

challenge election laws. Instead, it relies on broad 

pronouncements regarding the import of our election laws and 

their general effect on all people. But just because all people 

are subject to a law does not mean that any and all people are 

entitled to challenge it.

¶213 Indeed, "Courts are not the proper forum to air 

generalized grievances about the administration of a 

governmental agency." Cornwell Personnel Assocs., Ltd. v.

DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App. 1979) 

(citations omitted); see also Lujan v. Defenders of Wildlife, 

504 U.S. 555, 573-74 (1992) ("We have consistently held that a 

plaintiff raising only a generally available grievance about 

government——claiming only harm to his and every citizen's 

interest in proper application of the Constitution and laws, and 

seeking relief that no more directly and tangibly benefits him 

than it does the public at large——does not state an Article III 

case or controversy.").

¶214 Yet a "generalized grievance" is just what Teigen 

brings to this court. The majority/lead opinion says that 

Teigen's "rights and privileges as [a] registered voter[]" give 

him standing to bring this action challenging the statewide 

administration of elections. Majority/lead op., ¶14. Taken to 

its logical conclusion, the majority/lead opinion indicates that 

any registered voter would seemingly have standing to challenge 

any election law. The impact of such a broad conception of 
No. 2022AP91.awb

5

voter standing is breathtaking and especially acute at a time of 

increasing, unfounded challenges to election results and 

election administrators.6 

¶215 Rather than opening wide the barn doors, the doctrine 

of standing is important "because it reins in unbridled attempts 

to go beyond the circumscribed boundaries that define the proper 

role of courts." Fabick v. Evers, 2021 WI 28, ¶92, 396 

Wis. 2d 231, 956 N.W.2d 856 (Ann Walsh Bradley, J., dissenting).7 

"Unbridled" certainly describes the majority/lead opinion's 

approach to standing in this case. It follows a standard 

untethered to any limiting principle, which in effect renders 

the concept of standing merely illusory. 

II

¶216 I turn next to the substance of the majority/lead 

opinion's statutory interpretation.8 Even assuming Teigen has 

standing to bring this claim, the majority/lead opinion falters 

in its examination of the relevant statutes.

 

6 See Election Officials Under Attack: How to Protect 

Administrators and Safeguard Democracy, Brennan Center for 

Justice and the Bipartisan Policy Center, 

https://www.brennancenter.org/our-work/policysolutions/election-officials-under-attack (June 16, 2021).

7 Justice Hagedorn's concurrence likewise recognizes that 

the doctrine of standing "serves as a vital check on unbounded 

judicial power." Justice Hagedorn's concurrence, ¶160.

8 Although I address the majority/lead opinion's statutory 

analysis, my critique also largely applies to Justice Hagedorn's 

concurrence, which reaches the same conclusion.
No. 2022AP91.awb

6

A

¶217 Wisconsin Stat. § 6.87 addresses absentee voting 

procedure. Subd. (4)(b)1., specifically at issue here, provides 

in relevant part: "The envelope shall be mailed by the elector, 

or delivered in person, to the municipal clerk issuing the 

ballot or ballots."

¶218 In the majority/lead opinion's view, "[n]othing in the 

statutory language detailing the procedures by which absentee 

ballots may be cast mentions drop boxes or anything like them." 

Majority/lead op., ¶54. Further, it interprets the phrase "to 

the municipal clerk" to mean "mailing or delivering the absentee 

ballot to the municipal clerk at her office" or an alternate 

site under Wis. Stat. § 6.855. Id., ¶62.

¶219 The majority/lead opinion's interpretation of Wis. 

Stat. § 6.87(4)(b)1. ignores an important distinction. Section 

6.87(4)(b)1. uses the phrase "municipal clerk." It does not say 

"municipal clerk's office." 

¶220 This is important because elsewhere the Wisconsin 

Statutes are replete with references to the "office of the 

municipal clerk," the "office of the clerk," or the "clerk's 

office." Not only is such an "office" referenced, but it is 

specified as a place where a delivery or an action takes place. 

See, e.g., Wis. Stat. §§ 5.81(3) (discussing ballots and 

envelopes "voted in person in the office of the municipal 

clerk"); 6.18 (requiring that a form "shall be returned to the 

municipal clerk's office"); 6.32(2) (setting forth that an 

elector "appear at the clerk's office"); 6.855(2) (addressing 
No. 2022AP91.awb

7

the display of a notice "in the office of the clerk"); 

12.035(3)(d) (discussing a "building containing the office of 

the municipal clerk").9 

¶221 From these statutes we can take the principle that the 

office of the municipal clerk is a location. Indeed, a person 

"appear[s]" at a location. See Wis. Stat. § 6.32(2). That the 

"office of the municipal clerk" refers to a location is 

confirmed by the fact that the statutes refer to it as 

"contain[ed]" within a "building." See Wis. Stat. 

§ 12.035(3)(d).

¶222 We also know that a "municipal clerk" under the 

statutes is distinct from the "office of the municipal clerk," 

because "municipal clerk" is specifically 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). In other words, the 

"municipal clerk" is a person, and the "office of the municipal 

clerk" is a location. 

¶223 "If a word or words are used in one subsection but are 

not used in another subsection, we must conclude that the 

legislature specifically intended a different meaning." 

Responsible Use of Rural and Agr. Land v. Pub. Serv. Comm'n, 

2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888. If the 

 

9 Further examples abound. See Wis. Stat. §§ 6.15(2)(bm), 

6.28(1)(b), 6.29(2)(a), 6.30(4), 6.32(3), 6.35(3), 6.45(1m), 

6.47(2), 6.50(1), 6.55(2)(cm), 6.56(4), 6.86(1)(a)2., 

6.86(3)(c), 6.87(3)(a), 6.87(4)(b)4., 6.88(1), 6.97(3)(b), 

7.41(1), 7.53(1)(b), 7.53(2)(d), 8.10(6)(c), 12.03(1), 

12.03(2)(a)2., 12.035(3)(c). 
No. 2022AP91.awb

8

legislature wanted to require return of a ballot to the clerk's 

office, it certainly could have done so, as it did in the litany 

of provisions using such language. See, e.g., Southport 

Commons, LLC v. DOT, 2021 WI 52, ¶31, 397 Wis. 2d 362, 960 

N.W.2d 17 (indicating that when the legislature wants to 

accomplish an object in a manner used in other areas of the 

statutes, "it knows how to do so"). 

¶224 But the legislature did not do that. Instead, it 

indicated that the ballot be delivered "to the municipal clerk," 

not to the clerk's office. Conflating "municipal clerk" with 

"office of the municipal clerk" is not——as the majority/lead 

opinion claims——the "fairest interpretation" of the statute. 

See majority/lead op., ¶62. Instead, it is a rank distortion of 

the statutory text.

¶225 Can delivery to a drop box constitute delivery "to 

the municipal clerk?" Absolutely. A drop box is set up by the 

municipal clerk, maintained by the municipal clerk, and emptied 

by the municipal clerk. This is true even if the drop box is 

located somewhere other than within the municipal clerk's 

office. As stated, the "municipal clerk" in the statutes is a 

person, and the "office of the municipal clerk" is a location. 

Applying this principle, there is nothing in the statute that 

even hints that unstaffed drop boxes are impermissible. Rather, 

a drop box, which the clerk or the clerk's designee10 sets up, 

 

10 As stated, "municipal clerk" is statutorily 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). 

Thus, this job need not be accomplished by a single person.
No. 2022AP91.awb

9

maintains, and empties, is simply another way to deliver a 

ballot "to the municipal clerk."11 The majority/lead opinion's 

attempt to avoid the statute's plain language fails.

¶226 The majority/lead opinion additionally invokes Wis. 

Stat. § 6.855 in an attempt to "show[] the unlawfulness of 

ballot drop boxes." Id., ¶56. Again, the majority/lead opinion 

flounders. This statute simply does not apply to drop boxes and 

tells us nothing about whether their use is permissible.12

¶227 To explain, Wis. Stat. § 6.855 establishes the 

procedures by which municipal clerks can set up "alternate 

absentee ballot sites." These are commonly referred to as early 

 

11 The circuit court in this case drew a distinction between 

staffed and unstaffed drop boxes, determining that drop boxes 

are not permitted "unless the drop box is staffed by the clerk 

and located at the office of the clerk or a properly designated 

alternate site." See majority/lead op., ¶9. Yet the 

majority/lead opinion does not address this distinction, raising 

more questions than it answers. Does this distinction retain 

vitality? If so, does a drop box located directly outside the 

front door to a clerk's office count as a "staffed" drop box? 

Must a staff member from the clerk's office be standing outside 

next to the drop box? Or is it sufficient if the clerk can see 

the box from a window while inside the office? Once again, the 

majority/lead opinion leaves municipal clerks and voters 

guessing.

12 Justice Hagedorn's concurrence also brings Wis. Stat. 

§ 6.88 into the analysis. Justice Hagedorn's concurrence, ¶180. 

That statute likewise has no bearing on how ballots may be 

"delivered" to the municipal clerk. Rather, § 6.88(1) addresses 

what occurs when an absentee ballot "arrives at the office of 

the municipal clerk" (emphasis added), and subsec. (2) concerns 

what a clerk does with ballots after they are "received" by the 

clerk. In other words, § 6.88 speaks only of what happens to a 

ballot after it has been delivered to the municipal clerk, not 

how it gets there.
No. 2022AP91.awb

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in person absentee voting, or simply "early voting." Section 

6.855(1) provides: 

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."

(Emphasis added). 

¶228 On its face, Wis. Stat. § 6.855 sets forth that 

alternate voting sites "must be a location not only where voters 

may return absentee ballots, but also a location where voters 

'may request and vote absentee ballots.'" Trump v. Biden, 2020 

WI 91, ¶56, 394 Wis. 2d 629, 951 N.W.2d 568 (Hagedorn, J., 

concurring). Thus, as the majority/lead opinion acknowledges, 

"[b]allot drop boxes are not alternate absentee ballot sites 

under Wis. Stat. § 6.855 because a voter can only return the 

voter's absentee ballot to a drop box, while an alternate site 

must also allow voters to request and vote absentee at the 

site." Majority/lead op., ¶57.

¶229 The majority/lead opinion reads into Wis. Stat. 

§ 6.855 an implication beyond the statute's language. Although 

the majority/lead opinion correctly acknowledges that § 6.855 

does not describe drop boxes, it seeks support for its result in 

the assertion that "[t]he legislature enacted a detailed 

statutory construct for alternate sites" while at the same time 

"the details of the drop box scheme are found nowhere in the 

statutes." Id., ¶58. This argument falls flat for the same 

reason the majority/lead opinion's statutory analysis of Wis. 
No. 2022AP91.awb

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Stat. § 6.87(4)(b)1. fails: the legislature did not include a 

detailed scheme for drop boxes in the statutes because it did 

not need to do so. As analyzed above, § 6.87(4)(b)1. already 

authorizes them.

¶230 Election administration in Wisconsin is decentralized. 

State ex rel. Zignego v. Wis. Elections Comm'n, 2021 WI 32, ¶13, 

396 Wis. 2d 391, 957 N.W.2d 208. "Rather than a top-down 

arrangement with a central state entity or official controlling 

local actors, Wisconsin gives some power to its state election 

agency (the Commission) and places significant responsibility on 

a small army of local election officials." Id. Indeed, 

"Municipal clerks are the officials primarily responsible for 

election administration in Wisconsin." Id., ¶15.

¶231 This significant responsibility is codified in the 

statutes. Wisconsin Stat. § 7.15(1) specifically provides: 

"Each municipal clerk has charge and supervision of elections 

and registration in the municipality. The clerk shall perform 

the following duties and any others which may be necessary to 

properly conduct elections or registration . . . ." See also

Wis. Stat. § 60.33(4)(a) ("The town clerk shall . . . [p]erform 

the duties required by chs. 5 to 12 relating to elections."). 

¶232 Instead of an inexorable command that unstaffed drop 

boxes are banned, Wis. Stat. § 6.87(4)(b)1. gives some 

discretion to municipal clerks to determine how best to run 

elections in their respective jurisdictions. By using the 

"municipal clerk" language rather than the "office of the 

municipal clerk" verbiage, the legislature necessarily entrusts 
No. 2022AP91.awb

12

some discretion to the municipal clerk in a manner consistent 

with the entirety of the statutory scheme. See DeWitt v. 

Ferries, 2018 WI 117, ¶26, 385 Wis. 2d 1, 921 N.W.2d 188 

(indicating that statutes are to be read in context, not in 

isolation but as part of a whole, and in relation to the 

language of closely-related statutes). 

¶233 The circuit court here allowed the use of staffed drop 

boxes in the office of a municipal clerk. But what good is this 

for a clerk in a rural area who may work only a few hours a 

week? In this context, it certainly makes sense for those 

clerks to have at least the discretion to place a drop box 

outside the office or in another location so voters can drop off 

absentee ballots outside of the limited hours the clerk's office 

is actually open. 

¶234 Instead of this common sense reading that is 

consistent with the decentralized manner in which Wisconsin 

elections are run, the majority/lead opinion severely limits the 

return of absentee ballots in all municipalities regardless of 

their circumstances. Some voters will be unlucky enough to live 

in a jurisdiction without a full-time clerk, and others will be 

forced to go to only a single location to return their ballots 

where they previously had numerous options. Does the 

majority/lead think everyone in this state lives in urban areas 

with full-time clerks and standard office hours? If so, it 

ignores reality and puts rural voters at a disadvantage. 

¶235 Our statutes and case law indicate that election 

administration in Wisconsin is not one-size-fits-all. See
No. 2022AP91.awb

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Zignego, 396 Wis. 2d 391, ¶13. Yet the majority/lead opinion 

fails to recognize this, making election administration more 

onerous for local clerks and the exercise of the franchise more 

difficult for voters.

B

¶236 Contravening the plain language of the statute to 

prohibit ballot drop boxes is bad enough. But the majority/lead 

opinion further erroneously determines that a voter cannot have 

a family member or friend return their ballot to the municipal 

clerk for them. Majority/lead op., ¶83. 

¶237 The brunt of this holding will fall on those who are 

homebound. If a voter is disabled or sick, and someone the 

voter lives with is taking their own absentee ballot to the 

clerk's office, that roommate, spouse, or family member can't, 

under the majority/lead opinion's analysis, simply pick up 

another validly voted ballot from the kitchen table and take it 

with them.

¶238 As absurd as that sounds in practice,13 the 

majority/lead opinion's statutory interpretation to reach that 

result fares no better. Although at first blush the 

majority/lead opinion's interpretation may seem reasonable, a 

closer examination of the text reveals otherwise. Section 

 

13 Not to mention that the majority/lead opinion's 

conclusion arguably violates federal law related to voters with 

disabilities. See 52 U.S.C. § 10508 ("Any voter who requires 

assistance to vote by reason of blindness, disability, or 

inability to read or write may be given assistance by a person 

of the voter's choice, other than the voter's employer or agent 

of that employer or officer or agent of the voter's union.").
No. 2022AP91.awb

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6.87(4)(b)1. addresses only the manner for returning a ballot 

("in person") and not who may return it.

¶239 Wisconsin Stat. § 6.87(4)(b)1., as stated above, 

provides: "The envelope shall be mailed by the elector, or 

delivered in person, to the municipal clerk issuing the ballot 

or ballots." As relevant to this issue, we focus on the 

placement of the words within the statute. 

¶240 Section 6.87(4)(b)1. does not say "delivered in person 

by the elector." It says "delivered in person."14 The 

majority/lead opinion transposes the phrase "by the elector," 

placing it not where the legislature placed it (after "mailed"), 

but instead writing it into the statute where the majority/lead 

opinion prefers it to be placed in order to bolster its 

erroneous conclusion. Yet, the statute says nothing at all 

about who may return a ballot to the municipal clerk. Rather, 

the statute is written in the passive voice and does not 

indicate who the actor is who must deliver the ballot "in 

person." See Juneau Cnty. Star-Times v. Juneau County, 2011 WI 

App 150, ¶15, 337 Wis. 2d 710, 807 N.W.2d 655.

¶241 The majority/lead opinion violates a cardinal rule of 

statutory interpretation by writing words into the statute the 

legislature did not write. See Dawson v. Town of Jackson, 2011 

 

14 Further bolstering this interpretation of the statute is 

the fact that the legislature used the plural in indicating that 

a completed ballot must be "delivered in person, to the 

municipal clerk issuing the ballot or ballots." Wis. Stat. 

§ 6.87(4)(b)1. (emphasis added). Why would the legislature use 

the plural if it did not contemplate that one person could 

return an additional ballot? 
No. 2022AP91.awb

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WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316. A voter's spouse, 

child, or roommate can deliver a ballot "in person" just as the 

voter can, and the statute draws no distinction. Yet the 

majority/lead opinion manufactures one, going outside the words 

the legislature wrote to place yet another obstacle in the way 

of voters simply seeking to exercise their cherished right to 

vote.15

 

15 As I end my discussion of this issue, I emphasize the 

limited nature of the court's determination. It applies to 

absentee ballots delivered in person to the municipal clerk, not 

to a family member or a friend placing a ballot in the mail on 

behalf of a voter. See majority/lead op., ¶5; Justice 

Hagedorn's concurrence, ¶185. 

However, despite its insistence that it is not addressing 

the issue, the majority/lead opinion proceeds to go on at length 

about Disability Rights Wisconsin's argument regarding federal 

law on ballot assistance and criticizes the argument as 

"undeveloped." See majority/lead op., ¶¶84-86. As the 

majority/lead opinion acknowledges, this argument is directed at 

the "impact of the circuit court's declarations on disabled 

voters who may be physically unable to vote if someone cannot 

place an absentee ballot in the mail on a voter's behalf." Id., 

¶86. Accordingly, this sojourn is completely unnecessary to 

both the majority/lead opinion's holding and its analysis. I 

highlight, however, the majority/lead opinion's own statement 

that we do not decide "whether the law permits a voter's agent 

to place an absentee ballot in the mail on the voter's behalf." 

Id., ¶5; see also Justice Hagedorn's concurrence, ¶185 

(explaining that "the court should not and does not make any 

declaration on [this] question").

Undeterred by the majority/lead opinion's statement that 

the WEC memos at issue "do not address" the issue, Justice 

Roggensack's concurrence forges ahead with that analysis anyway. 

Rather than engage on an issue that is not properly before the 

court in the first place, I simply observe that Justice 

Roggensack's concurrence is not the law, and that the issue of 

whether a family member or other person may place an absentee 

ballot in a mailbox on behalf of a voter is not resolved by this 

opinion. 
No. 2022AP91.awb

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III

¶242 As a final point, I address the majority/lead 

opinion's language casting doubt on the results of past 

elections conducted with drop boxes. The majority/lead opinion 

claims that "[t]he illegality of these drop boxes weakens the 

people's faith that the election produced an outcome reflective 

of their will." Majority/lead op., ¶24; see also id., ¶25 

("[T]he failure to follow election laws is a fact which forces 

everyone . . . to question the legitimacy of election 

results."). It suggests that the use of drop boxes leaves 

electoral results "in question." Id., ¶24.

¶243 Nonsense. First, accepting the majority/lead 

opinion's assertion requires either willful ignorance to the 

origin of the WEC August 19, 2020 memo or a lack of trust in its 

source. The August 19, 2020 memo was "adapted from a resource 

developed as part of the Cybersecurity and Infrastructure 

Security Agency (CISA) Elections Infrastructure Government 

Coordinating Council and Sector Coordinating Council's Joint 

COVID Working Group." CISA is operated under the auspices of 

the Department of Homeland Security. Drop boxes were apparently 

secure enough for the federal Department of Homeland Security, 

yet the majority/lead opinion still contends that they cause 

people to lose faith in our elections. 

¶244 There is no evidence at all in this record that the 

use of drop boxes fosters voter fraud of any kind. None. And 

there certainly is no evidence that voters who used drop boxes 
No. 2022AP91.awb

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voted for one candidate or party or another, tilting elections 

either direction.

¶245 It is true that the legislature has referred to 

absentee voting as a "privilege exercised wholly outside the 

traditional safeguards of the polling place" that must be 

"carefully regulated to prevent the potential for fraud or 

abuse." Wis. Stat. § 6.84(1). But despite the majority/lead 

opinion's bald assertion that voter fraud is actually a "serious 

problem," majority/lead op., ¶71, studies have demonstrated

extremely low rates of voter fraud in United States elections.16

¶246 The majority/lead opinion's sky-is-falling rhetoric 

not only defies the facts, but also is downright dangerous to 

our democracy. Absent evidence that supports its statements, 

the majority/lead opinion still lends its imprimatur to efforts 

to destabilize and delegitimize recent elections. 

¶247 But concerns about drop boxes alone don't fuel the 

fires questioning election integrity. Rather, the kindling is 

primarily provided by voter suppression efforts and the constant 

 

16 See, e.g., Andrew C. Eggers, Haritz Garro, and Justin 

Grimmer, No evidence for systematic voter fraud: A guide to 

statistical claims about the 2020 election, Proc. of the Nat'l 

Acad. of Sci., https://www.pnas.org/doi/10.1073/pnas.2103619118

(Nov. 2, 2021); Justin Levitt, The Truth About Voter Fraud, 

Brennan Center for Justice, https://www.brennancenter.org/ourwork/research-reports/truth-about-voter-fraud (Nov. 9, 2007); 

see also Trump v. Biden, 2020 WI 91, ¶59, 394 Wis. 2d 629, 951 

N.W.2d 568 (Hagedorn, J., concurring) ("At the 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.").
No. 2022AP91.awb

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drumbeat of unsubstantiated rhetoric in opinions like this one, 

not actual voter fraud.17

¶248 For the foregoing reasons, I respectfully dissent.

¶249 I am authorized to state that Justices REBECCA FRANK 

DALLET and JILL J. KAROFSKY join this dissent.

 

17 As should be clear by now, this dissent's analysis is 

neither an "ad hominem attack" nor "political talking points" as 

the majority/lead opinion claims. See majority/lead op., ¶86 

n.29. This court's poor track record on voting rights is wellestablished and the flaws in the majority/lead opinion's 

analysis that lead to an additional "barrier" to voting are set 

forth in this opinion. 

Nevertheless, footnote 29 of the majority/lead opinion 

takes this dissent to task and ridicules Justice Jill Karofsky 

for joining it, while at the same time partaking in the very 

conduct about which it is complaining.

What comes to mind is the adage of psychological 

projection——"the pot calling the kettle black." Rather than 

detailing in response the several and recent examples 

illustrating the adage (and risking the undesirable escalation 

of hyperbole), I observe only that there is an obvious 

difference between attacking a public servant as a "tyrant" for 

merely doing her job, which elicited Justice Karofsky's 

objection in Becker, and simply pointing out this court's poor 

recent track record when it comes to protecting voting rights, 

as does this dissent. See Becker v. Dane County, 2022 WI __, 

¶44, __ Wis. 2d __, __ N.W.2d __. 
No. 2022AP91.awb

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