2020 WI 90

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP557-OA

COMPLETE TITLE: Mark Jefferson and the Republican Party of 

Wisconsin,

 Petitioners,

 v.

Dane County, Wisconsin and Scott McDonell in his 

official capacity as Dane County Clerk,

 Respondents,

Disability Rights Wisconsin,

 Intervenor-Respondent.

ORIGINAL ACTION

OPINION FILED: December 14, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 29, 2020 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 

JUSTICES:

ROGGENSACK, C.J., delivered the majority opinion of the Court, 

in which ZIEGLER, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., 

joined, and in which DALLET and KAROFSKY, JJ., joined with 

respect to Parts II.C. and II.D.1. ANN WALSH BRADLEY, J., filed 

an opinion concurring in part, and dissenting in part. DALLET, 

J., filed an opinion concurring in part, and dissenting in part, 

in which KAROFSKY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the petitioners briefs were filed by Eric M. McLeod, Lane 

E. Ruhland, Lisa M. Lawless and Husch Blackwell LLP, Madison and 

Milwaukee. Oral argument presented by Eric M. McLeod.
2

For the respondents a brief was filed by David R. Gault, 

Office of the Dane County Corporation Counsel, Madison. Oral 

argument presented by David R. Gault.

For the intervenor-respondent, a brief was filed by Jeffrey 

A. Mandell, Douglas M. Poland, Kurt M. Simatic and Stafford 

Rosenbaum LLP, Madison. Oral Argument was presented by Jeffrey A. 

Mandell.

An amicus curiae brief was filed on behalf of the Legislature 

by Misha Tseytlin, Kevin M. Leroy, and Troutman Sanders LLP. 
2020 WI 90

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP557-OA

STATE OF WISCONSIN : IN SUPREME COURT

Mark Jefferson and the Republican Party of 

Wisconsin,

 Petitioners,

 v.

Dane County, Wisconsin and Scott McDonell in 

his official capacity as Dane County Clerk,

 Respondents,

Disability Rights Wisconsin,

 Intervenor-Respondent.

FILED

DEC 14, 2020

Sheila T. Reiff

Clerk of Supreme Court

ROGGENSACK, C.J., delivered the majority opinion of the Court, in 

which ZIEGLER, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, 

and in which DALLET and KAROFSKY, JJ., joined with respect to Parts 

II.C. and II.D.1. ANN WALSH BRADLEY, J., filed an opinion 

concurring in part, and dissenting in part. DALLET, J., filed an 

opinion concurring in part, and dissenting in part, in which 

KAROFSKY, J., joined. 

ORIGINAL ACTION. Rights declared. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review Mark 

Jefferson and the Republican Party of Wisconsin's (collectively 
No. 2020AP557-OA

2

"Petitioners") Petition for Original Action that seeks a 

declaration that (1) Respondents lack the authority to issue an 

interpretation of Wisconsin's election law allowing all electors 

in Dane County to obtain an absentee ballot without a photo 

identification and (2) Governor Evers' Emergency Order #12 

("Emergency Order #12") did not authorize all Wisconsin voters to 

obtain an absentee ballot without a photo identification.

¶2 To answer these questions, we interpret Wis. Stat. 

§ 6.86(2)(a) (2017–18).1 In so doing, we conclude § 6.86(2)(a)

requires that (1) each individual elector make his or her own 

determination as to whether the elector is indefinitely confined; 

(2) an elector's determination may be based only upon age, physical 

illness or infirmity; and (3) an elector is indefinitely confined 

for his or her own age, physical illness or infirmity, not those 

of another person.

¶3 Accordingly, we conclude that the Respondents'

interpretation of Wisconsin election laws was erroneous. 

Additionally, we conclude that Emergency Order #12 did not render 

all Wisconsin electors "indefinitely confined," thereby obviating 

the requirement of a valid photo identification to obtain an 

absentee ballot. 

I. BACKGROUND

¶4 On March 25, 2020, and in response to the COVID-19 

pandemic and Governor Evers' Emergency Order #12, the Dane County 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2020AP557-OA

3

Clerk, Scott McDonell, issued the following statement on his 

personal Facebook page:

I have informed Dane County Municipal Clerks that during 

this emergency and based on the Governors Stay at Home 

order I am declaring all Dane County voters may indicate 

as needed that they are indefinitely confined due to 

illness. This declaration will make it easier for Dane 

County voters to participate in this election by mail in 

these difficult times. I urge all voters who request a 

ballot and have trouble presenting a[] valid ID to 

indicate that they are indefinitely confined. 

People are reluctant to check the box that says they are 

indefinitely confined but this is a pandemic. This 

feature in our law is here to help preserve everyone's 

right to vote.

The process works like this:

 A voter visit's [sic] myvote.wi.gov to request a 

ballot.

 A voter can select a box that reads "I certify that I 

am indefinitely confined due to age [,] illness, 

infirmity or disability and request ballots be sent 

to me for every election until I am no longer confined 

or fail to return a ballot.["]

 The voter is then able to skip the step of uploading 

an ID in order to receive a ballot for the April 7 

election.

Voters are confined due to the COVID-19 illness. When 

the Stay at Home order by the Governor is lifted, the 

voter can change their designation back by contacting 

their clerk or updating their information in 

myvote.wi.gov.

Voters who are able to provide a copy of their ID should 

do so and not indicate that they are indefinitely 

confined. 

¶5 The Milwaukee County Clerk issued a nearly identical 

declaration on Facebook later that same day. The Milwaukee County 
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4

Clerk "urge[d] all voters who request a ballot and do not have the 

ability or equipment to upload a valid ID to indicate that they 

are indefinitely confined." The county clerks circulated these 

statements to their municipal clerks. 

¶6 Responding to the confusion that these two statements 

caused, the Wisconsin Elections Commission ("WEC") issued proposed 

guidance on when voters may declare themselves indefinitely 

confined. The WEC's proposed guidance, issued on March 27, 2020, 

reads as follows:

1. Designation of indefinitely confined status is for 

each individual voter to make based upon their 

current circumstance. It does not require permanent 

or total inability to travel outside of the 

residence. The designation is appropriate for 

electors who are indefinitely confined because of 

age, physical illness or infirmity or are disabled 

for an indefinite period.

2. Indefinitely confined status shall not be used by 

electors simply as a means to avoid the photo ID 

requirement without regard to whether they are 

indefinitely confined because of age, physical 

illness, infirmity or disability.

¶7 McDonell went to Facebook again to express that he was 

"[g]rateful that the Wisconsin Election Commission voted to agree 

with me that the designation of indefinitely confined status is 

for each individual voter to make based upon their current 

circumstances. . . ." Later that night, McDonell posted the 

following:

More from me on this topic. The Wisconsin Election 

Commission met on Friday and issued further guidance to 

clarify the purpose and proper use of the indefinitely 

confined status under Wis[.] Stat[]. [§] 6.86(2) as 

follows:
No. 2020AP557-OA

5

1. Designation of indefinitely confined status is for 

each individual voter to make based upon their current 

circumstances. It does not require permanent or total 

inability to travel outside of the residence. The 

designation is appropriate for electors who are 

indefinitely confined because of age, physical illness 

or infirmity or are disabled for an indefinite period of 

time. 

2. Indefinitely confined status shall not be used by 

electors simply as a means to avoid the photo ID 

requirement without regard to whether they are 

indefinitely confined because of age, physical illness, 

infirmity, or disability.

Voters should follow this guidance when determining 

whether they qualify to claim that they are indefinitely 

confined as a result of the COVID-19 pandemic and 

declared public health emergency. 

¶8 Petitioners filed this Original Action on March 27, 

2020, seeking declarations that (1) the Respondents' 

interpretation of Wisconsin's election laws was erroneous and 

(2) Emergency Order #12 did not render all Wisconsinites 

indefinitely confined such that they could obtain an absentee 

ballot without presenting a photo ID. Petitioners also sought a 

preliminary injunction directing McDonell to remove his posts and 

to issue a statement correcting his erroneous interpretation. 

¶9 On March 31, 2020, we granted the Petitioners' request 

for preliminary injunctive relief. In that Order, we concluded 

"that clarification of the purpose and proper use of the 

indefinitely confined status pursuant to Wis. Stat. 

§ 6.86(2)[a] . . . [is] warranted." Additionally, we noted that 

"the WEC's guidance . . . provides the clarification on the 

purpose and proper use of the indefinitely confined status that is 

required at this time." Further, we ordered "McDonell to refrain 
No. 2020AP557-OA

6

from posting advice as the County Clerk for Dane County 

[inconsistent with] the . . . WEC guidance." We granted the 

Petition for Original Action and assumed jurisdiction over this 

case the following day. 

¶10 While this case was pending, the April 7, 2020 election 

occurred and Wisconsin saw an increase in absentee ballots cast by 

electors who had claimed to be indefinitely confined. WEC records 

show that there were 194,544 such absentee ballots cast by voters 

in the 2020 Spring Election.2 In contrast, the 2016 Spring Election 

saw 55,334 voters who obtained absentee ballots by claiming to be 

indefinitely confined. 

¶11 After we accepted review, the Respondents filed a 

document that "stipulate[d] that the two propositions, as stated 

by the Petitioners are an accurate statement of the law." 

Disability Rights Wisconsin ("DRW") intervened later.

II. DISCUSSION

¶12 We review this case under our original jurisdiction 

found in Article VII, Section 3(2) of the Wisconsin Constitution. 

Within our original jurisdiction, we have granted declaratory 

judgment when "a judgment by the court significantly affects the 

 

2 The WEC's statistics for the April 7, 2020 Election are 

available at https://elections.wi.gov/sites/elections.wi.gov/

files/2020-05/WEC%205-20-2020%20PowerPoint%20Presentation.pdf

(hereinafter, WEC Statistics). We may take judicial notice of 

these statistics because we determine the WEC's post-election 

report is a source whose accuracy cannot be reasonably questioned. 

See Wis. Stat. § 902.01(2); see also Sisson v. Hansen Storage Co., 

2008 WI App 111, ¶¶10–11, 313 Wis. 2d 411, 756 N.W.2d 667 (stating 

that "appellate court[s] may take judicial notice 

when . . . appropriate"). 
No. 2020AP557-OA

7

community at large." Wisconsin Pro. Police Ass'n, Inc. v. 

Lightbourn, 2001 WI 59, ¶4, 243 Wis. 2d 512, 627 N.W.2d 807.

A. Standard of Review

¶13 The interpretation and the application of Wis. Stat. 

§ 6.86 present questions of law that we review independently. 

Dawson v. Town of Jackson, 2011 WI 77, ¶17, 336 Wis. 2d 318, 801 

N.W.2d 316. Although the WEC has issued official guidance, we 

interpret § 6.86(2)(a) without deference to the agency's 

interpretation. See Lamar Cent. Outdoor, LLC v. Div. of Hearings 

& Appeals, 2019 WI 109, ¶9, 389 Wis. 2d 486, 936 N.W.2d 573 (citing 

Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 

N.W.2d 21).

B. Mootness

¶14 Respondents contend that their stipulation on questions 

of law makes the issues presented herein moot. However, we are 

not bound by stipulations on questions of law. State v. Olson, 

127 Wis. 2d 412, 419, 380 N.W.2d 375 (Ct. App. 1985) (citing Swift 

& Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917)). Rather, 

we decide the legal issue at the heart of this controversy, i.e., 

the interpretation and application of Wis. Stat. § 6.86(2)(a) in 

the context presented. 

¶15 Respondents also contend that the issue presented is 

moot because the clerk corrected his erroneous advice, the election 

occurred and Executive Order #12 has expired. However, even in 

cases where an issue is moot, we may nevertheless reach the merits 

of the dispute. We may do so when "(1) the issue is of great 
No. 2020AP557-OA

8

public importance; (2) the situation occurs so frequently that a 

definitive decision is necessary to guide circuit courts; (3) the 

issue is likely to arise again and a decision of the court would 

alleviate uncertainty; or (4) the issue will likely be repeated, 

but evades appellate review because the appellate review process 

cannot be completed or even undertaken in time to have a practical 

effect on the parties." In re John Doe Proceeding, 2003 WI 30, 

¶19, 260 Wis. 2d 653, 660 N.W.2d 260; see Fine v. Elections Bd., 

95 Wis. 2d 162, 166, 289 N.W.2d 823 (1980). Also, challenges to 

the constitutionality of a statute may cause the court to reach 

the merits of the contention. Portage Cnty. v. J.W.K., 2019 WI 

54, ¶29, 386 Wis. 2d 672, 927 N.W.2d 509. Without correction, the 

erroneous interpretation and application of Wis. Stat. 

§ 6.86(2)(a), which affect matters of great public importance, are 

capable of repetition. See Mueller v. Jensen, 63 Wis. 2d 362, 

366-67, 217 N.W.2d 277 (1974). Accordingly, we choose to address 

the issues presented.

C. Election Statutes

¶16 Before turning to the interpretation of Wis. Stat. 

§ 6.86(2)(a) we provide a brief overview of Wisconsin's absentee 

ballot laws. Chapter 6 of the Wisconsin Statutes governs "the 

electors" and the processes by which Wisconsinites cast their 

ballots. Voting is a constitutional right, the exercise of which 

is "strongly encouraged." Wis. Stat. § 6.84(1). However, "voting 

by absentee ballot is a privilege exercised wholly outside the 

traditional safeguards of the polling place." Id. As such, 
No. 2020AP557-OA

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"matters relating to the absentee ballot process . . . shall 

be . . . mandatory." Wis. Stat. § 6.84(2). We have held that 

where an election statute is mandatory, its exercise requires 

strict compliance. See State ex rel. Ahlgrimm v. State Elections 

Bd., 82 Wis. 2d 585, 597, 263 N.W.2d 152 (1978). Consequently, 

"[b]allots counted in contravention of the procedures . . . may 

not be included in the certified result of any election." 

§ 6.84(2).

¶17 Ordinarily, when an elector chooses to vote by absentee 

ballot, the elector must comply with the procedure set forth in 

Wis. Stat. § 6.86(1). In most circumstances, the requirements to 

obtain an absentee ballot are twofold: (1) apply3 with the 

elector's municipal clerk and (2) provide a photo proof of 

identification with the application. See Wis. Stat. 

§§ 6.86(1)(a), (ac); see also Wis. Stat. § 6.87(1), and Wis. Stat. 

§ 5.02(6m). After an elector has completed this process once and 

has not changed his or her name or address since providing proof 

of identification, the elector need not continuously provide proof 

of identification for each election in which the elector votes 

absentee. § 6.87(4)(b)3. 

 

3 WEC's form, "Application for Absentee Ballot," provides 

electors with three options for receipt of an absentee ballot. 

Electors may receive ballots (1) for a specific election; (2) for 

all elections in a calendar year; or (3) automatically for all 

elections, as an indefinitely confined voter. The application is 

clear that the third option is "[f]or indefinitely-confined voters 

only" and that making "false statements in order to obtain an 

absentee ballot" is punishable by a fine of not more than $1,000, 

not more than six-months imprisonment or both. 
No. 2020AP557-OA

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¶18 Wisconsin Stat. § 6.86(2)(a) has different criteria. It 

provides: 

An elector who is indefinitely confined because of age, 

physical illness or infirmity or is disabled for an 

indefinite period may by signing a statement to that 

effect require that an absentee ballot be sent to the 

elector automatically for every election. The 

application form and instructions shall be prescribed by 

the commission, and furnished upon request to any 

elector by each municipality. The envelope containing 

the absentee ballot shall be clearly marked as not 

forwardable. If any elector is no longer indefinitely 

confined, the elector shall so notify the municipal 

clerk.

As set out above, there are two classes of electors who can request 

an absentee ballot pursuant to the provisions of 

§ 6.86(2)(a): (1) an elector who is indefinitely confined or 

(2) an elector who is disabled for an indefinite period. 

¶19 If an elector qualifies to receive an absentee ballot 

under either classification, the elector is not required to provide 

photo identification to obtain that ballot. Wis. Stat. 

§ 6.87(4)(b)2. Rather, the elector may "submit with his or her 

absentee ballot a statement signed by the same individual who 

witnesses voting of the ballot which contains the name and address 

of the elector and verifies that the name and address are correct." 

§ 6.87(4)(b)2.

¶20 In addition, when an elector qualifies to receive an 

absentee ballot because he or she is indefinitely confined or 

disabled for an indefinite period, the elector automatically 

receives an absentee ballot for every election until the elector 

notifies the municipal clerk that he or she is no longer 
No. 2020AP557-OA

11

indefinitely confined, fails to cast and return a ballot, or the 

clerk receives reliable information that the "elector no longer 

qualifies for the service." Wis. Stat. §§ 6.86(2)(a), (b).4 

D. Indefinitely Confined

¶21 The crux of the issue before us is when may an elector 

obtain a ballot as indefinitely confined pursuant to Wis. Stat. 

§ 6.86(2)(a), rather than by way of the usual absentee ballot 

process set out in § 6.86(1). The purpose of statutory 

interpretation and application is to apply the meaning of the words 

the legislature chose. State ex rel. Kalal v. Circuit Court for 

Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. 

"Statutory language is given its common, ordinary, and accepted 

meaning, except that technical or specially-defined words or 

phrases are given their technical or special definitional 

meaning." Kalal, 271 Wis. 2d 633, ¶45. If the language chosen is 

clear and unambiguous, we stop the inquiry and apply the plain 

meaning of those words. Id., ¶¶45, 46. Important to the meaning 

of a statute is the context in which it occurs, and we interpret 

statutes to reasonably give effect to every word. Id., ¶46. 

¶22 We conclude, as we explain below, that based on the plain 

language of Wis. Stat. § 6.86(2)(a): (1) declaring oneself 

 

4 Because an elector who qualifies to receive an initial 

absentee ballot as indefinitely confined receives an absentee 

ballot without providing photo identification, and because such an 

elector continues to receive absentee ballots for each subsequent 

election until the clerk changes the elector's status, such an 

elector may vote in many elections without ever providing photo 

identification.
No. 2020AP557-OA

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indefinitely confined or disabled for an indefinite period is an 

individual determination that only an individual elector can make; 

(2) an elector is indefinitely confined for purposes of 

§ 6.86(2)(a) for only the enumerated reasons therein; and (3) an 

elector is indefinitely confined due to his or her own age, 

physical illness, or infirmity, not the age, physical illness, or 

infirmity of another person. 

1. Individual Determination

¶23 The plain language of Wis. Stat. § 6.86(2)(a) requires 

that each elector make an individual assessment to determine 

whether he or she qualifies as indefinitely confined or disabled 

for an indefinite period. A county clerk may not "declare" that 

any elector is indefinitely confined due to a pandemic. This 

conclusion is supported by two distinct, but equally important, 

reasons. 

¶24 First, as a fundamental matter, county clerks are not to 

interpret Wisconsin's election laws and make declarations based on 

those interpretations. It is the WEC that is responsible for 

guidance in the administration and enforcement of Wisconsin's 

election laws, not the county clerks. See generally Wis. Stat. 

§ 5.05. County clerks have different responsibilities such as 

(1) providing election supplies and ballots, (2) preparing 

ballots, (3) adhering to the election time schedule, (4) resolving 

doubts that relate to election notices, (5) certifying candidates 

for municipal judges, (6) assisting the WEC in conducting the WEC's 

voter education, (7) maintaining toll-free telephone lines to 
No. 2020AP557-OA

13

exchange voting information, (8) training election officials, and 

(9) reporting information to the WEC. Wis. Stat. §§ 7.10(1)–(10). 

Nowhere in these duties did the legislature include disseminating 

information based on the clerk's interpretation of absentee voting 

laws.5 

¶25 Next, as we stated above, whether to declare oneself 

indefinitely confined is an individual determination. The plain 

language of the statute does not permit persons other than the 

elector to make that decision. We will not add words into a 

statute that the legislature did not see fit to employ. See

Dawson, 336 Wis. 2d 318, ¶42 (citing County of Dane v. LIRC, 2009 

WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571). Therefore, neither 

county clerks nor an order of the Governor may declare persons 

indefinitely confined. 

¶26 The remainder of Wis. Stat. § 6.86(2)(a) supports this 

interpretation. For example, para. (2)(a) requires the elector to 

inform the municipal clerk if the elector is no longer indefinitely 

confined. If county clerks were permitted to declare all electors 

within their county indefinitely confined due to COVID-19 and 

Emergency Order #12, they would confuse when individual electors 

are to follow § 6.86(2)(a)'s mandate that the elector notify the 

 

5 This structure is part of Wisconsin's decentralized election 

system. The legislature has delegated to the WEC the 

responsibilities of, among others, administering, enforcing and 

promulgating rules relating to the election laws. At the local 

level, the legislature gave county clerks the responsibility of 

ensuring that municipal clerks have the supplies and information 

necessary to operate elections. 
No. 2020AP557-OA

14

clerk that he or she is no longer indefinitely confined. 

Furthermore, if individual electors did not follow the statutory 

mandate and continued to vote as indefinitely confined, despite no 

longer meeting the statutory requirements, they would cast their 

votes contrary to the statute. In turn, because compliance with 

the absentee ballot process is mandatory, their ballots would not 

count. Wis. Stat. §§ 6.84(1), (2).

¶27 Accordingly, we conclude that whether an elector 

qualifies as indefinitely confined is a determination that 

individual electors make, not third parties.

2. Indefinite Confinement

¶28 Having concluded that it is the individual elector who 

decides whether that elector is indefinitely confined or disabled 

for an indefinite period, we now turn to the statutory criteria 

that may result in indefinite confinement pursuant to Wis. Stat. 

§ 6.86(2)(a). 

¶29 An elector is eligible to obtain an absentee ballot under 

Wis. Stat. § 6.86(2)(a) if that elector is "indefinitely confined 

because of age, physical illness or infirmity." The statute 

enumerates three reasons sufficient to constitute indefinite 

confinement. When the legislature explicitly includes certain 

conditions in meeting a statutory standard, we may presume that 

the legislature purposefully excluded others. FAS, LLC v. Town of 

Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287 ("Under 

the doctrine of expressio unius est exclusio alterius, 'the express 

mention of one matter excludes other similar matters [that are] 
No. 2020AP557-OA

15

not included.'") (quoting Perra v. Menomonee Mut. Ins. Co., 2000 

WI App 215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (alteration in 

original). 

¶30 It is not necessary to define each enumerated category 

of indefinite confinement in the context of this case. 

Nonetheless, we conclude that both the contention that electors 

qualify as indefinitely confined solely as the result of the COVID19 pandemic and the declared public health emergency and the 

contention that Wis. Stat. § 6.86(2)(a) could be used for those 

who "have trouble presenting a valid ID" are erroneous because

those reasons do not come within the statutory criteria. 

¶31 First, the presence of a communicable disease such as 

COVID-19, in and of itself, does not entitle all electors in 

Wisconsin to obtain an absentee ballot under Wis. Stat. 

§ 6.86(2)(a). Similarly, an emergency order that required all 

Wisconsinites to remain in their homes except for limited 

circumstances, standing alone, was not a condition based on age, 

a physical illness, or an infirmity. Finally, having trouble 

uploading or providing proof of a photo identification does not 

permit electors to avoid both the absentee voting laws and the 

voter identification laws. 

¶32 For these reasons, we conclude that in order to take 

advantage of Wis. Stat. § 6.86(2)(a)'s photo identification bypass 

and secure repetitive absentee ballot receipts, an elector must 

strictly comply with § 6.86(2)(a)'s requirements. 

3. Age, Physical Illness, or Infirmity
No. 2020AP557-OA

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¶33 Finally, we determine to whom the statutory conditions 

apply. The Petitioners assert that the conditions apply only to 

individual electors. Conversely, DRW contends that when an elector 

is caring for someone who is indefinitely confined because of age, 

physical illness or infirmity, the caretaker is indefinitely 

confined for those reasons as well. We conclude that the plain 

reading of Wis. Stat. § 6.86(2)(a) requires that the elector is 

the person who must be indefinitely confined because of the 

elector's own age, physical illness or infirmity. 

¶34 As discussed above, we agree with DRW that it is for 

each elector individually to decide whether to employ Wis. Stat. 

§ 6.86(2)(a). However, we do not agree that electors may make 

that decision based on someone else's age, physical illness or 

infirmity. DRW accuses the Petitioners of violating a basic canon 

of statutory interpretation by reading into the statute language 

that the legislature did not employ.6 

¶35 DRW's interpretation would have us read the statute 

as: "An elector who is indefinitely confined because of [the 

elector's or another's] age, physical illness or 

infirmity . . . ." The underlined portion in the previous 

sentence does not exist, and as we already explained, we will not 

add words the legislature did not employ. Dawson, 336 Wis. 2d

 

6 Specifically, DRW contends that the Petitioners are 

impermissibly reading "his or her own" into the statute. DRW 

argues that this is a limitation that the legislature did not 

intend. As we discuss below, we do not see this as a limitation 

but rather the reasonable reading of the statute based on its plain 

language. 
No. 2020AP557-OA

17

318, ¶42. Just as one cannot declare another indefinitely 

confined, one cannot be indefinitely confined because of the 

conditions of another. 

¶36 To support its argument, DRW asserts that by adding 

"because of age, physical illness or infirmity" to the statute, 

the legislature expanded "indefinitely confined" beyond conditions 

that affect an individual elector. However, in the same breath, 

DRW argues that "or is disabled for an indefinite period" is 

limited to the elector as it does not contain a "because of" 

modifier. This construction of the statute is untenable and leads 

to a disjointed result; we decline to read the statute in such a 

way. Kalal, 271 Wis. 2d 633, ¶46. 

¶37 Rather, we see these prerequisites as two sides of the 

same coin. Wisconsin Stat. § 6.86(2)(a) applies to "[a]n elector 

who is indefinitely confined because of age, physical illness or 

infirmity, or is disabled for an indefinite period . . . ." Each 

applies to conditions that an elector may experience but under 

different circumstances. An elector may be indefinitely confined 

because of age, physical illness or infirmity and not necessarily 

be disabled for an indefinite period of time. The converse is 

also true: an elector may be temporarily disabled for an 

indefinite period of time and need not be elderly, physically ill, 

or infirm. Either way, the conditions apply to the individual 

elector himself or herself, not to a third party caregiver.

¶38 Based on the foregoing, we conclude that the plain 

meaning of Wis. Stat. § 6.86(2)(a) applies both indefinite 
No. 2020AP557-OA

18

confinement and disability for an indefinite period to the elector 

who seeks to obtain an absentee ballot under § 6.86(2)(a). 

III. CONCLUSION

¶39 We conclude Wis. Stat. § 6.86(2)(a) requires that 

(1) each individual elector make his or her own determination as 

to whether the elector is indefinitely confined; (2) an elector's 

determination may be based only upon age, physical illness or 

infirmity; and (3) an elector is indefinitely confined for his or 

her own age, physical illness or infirmity, not those of another 

person.

¶40 Accordingly, we conclude that the Respondents' 

interpretation of Wisconsin's election laws is erroneous. 

Additionally, we conclude that Emergency Order #12 did not render 

all Wisconsin electors "indefinitely confined," thereby obviating 

the requirement of a valid photo identification to obtain an 

absentee ballot. 

By the Court.—Rights declared. 
No. 2020AP557-OA.awb

1

¶41 ANN WALSH BRADLEY, J. (concurring in part, dissenting 

in part). I agree with the majority that the determination of 

whether electors are indefinitely confined is to be made by the 

electors themselves. See majority op., ¶2. I further agree that 

Emergency Order #12,1 the "safer at home" order, did not render 

all Wisconsin electors indefinitely confined for purposes of Wis. 

Stat. § 6.86(2)(a).2 Id., ¶3. However, I likewise agree with 

Justice Dallet's separate writing that the majority should have 

stopped there.

¶42 The majority, instead, ventures farther. It alters Wis. 

Stat. § 6.86(2)(a) by inserting its own words into the statutory 

text chosen by the legislature. Such a technique allows the 

majority to arrive at an unnecessary and erroneous blanket 

determination that "an elector is indefinitely confined for his or 

her own age, physical illness or infirmity, not those of another 

person." Id., ¶2. 

¶43 Such a determination is not supported by the plain 

language of Wis. Stat. § 6.86(2)(a). Further, for some, it may 

imperil their fundamental right to vote.

 

1 Emergency Order #12, issued on March 24, 2020, by Department 

of Health Services Secretary-designee Andrea Palm, ordered among 

other things, "'[a]ll individuals present within the State of 

Wisconsin . . . to stay at home or at their place of residence' 

with certain delineated exceptions." Wisconsin Legislature v. 

Palm, 2020 WI 42, ¶6, 391 Wis. 2d 497, 942 N.W.2d 900.

2 Dane County acknowledges that Emergency Order #12 did not 

render all Wisconsin electors indefinitely confined.
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¶44 Accordingly, I respectfully concur in part and dissent 

in part.

¶45 Wisconsin Stat. § 6.86(2)(a) provides in relevant part: 

"An elector who is indefinitely confined because of age, physical 

illness or infirmity or is disabled for an indefinite period may 

by signing a statement to that effect require that an absentee 

ballot be sent to the elector automatically for every election."3 

¶46 In the majority's view, an elector may not claim 

indefinitely confined status "based on someone else's age, 

physical illness or infirmity." Majority op., ¶34. The majority 

opinion criticizes the proffered contrary interpretation of 

Disability Rights Wisconsin (DRW) because it "would have us read

the statute as: 'An elector who is indefinitely confined because 

of [the elector's or another's] age, physical illness or 

infirmity . . . ." Id., ¶35.

¶47 But an examination of the statute in question leads to 

the conclusion that it is the majority, and not DRW, that 

impermissibly inserts words into the statute. To explain, the 

statute by its own terms applies to "[a]n elector who is 

indefinitely confined because of age, physical illness or 

infirmity . . . ." Wis. Stat. § 6.86(2)(a). It does not say whose

age, physical illness, or infirmity is the trigger. Indeed, there 

 

3 An elector who receives an absentee ballot in this manner, 

and who has not previously provided proof of identification with 

an absentee ballot request, "may, in lieu of providing proof of 

identification, submit with his or her absentee ballot a statement 

signed by the same individual who witnesses voting of the ballot 

which contains the name and address of the elector and verifies 

that the name and address are correct." Wis. Stat. § 6.87(4)(b)2. 

& 3.
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is no modifier to "age, physical illness or infirmity" in the 

statute. 

¶48 In the absence of such a modifier, the majority reads in 

"his or her own age, physical illness or infirmity." This 

interpretation violates our precedent that indicates this court 

"will not read into the statute a limitation the plain language 

does not evidence." State v. Kozel, 2017 WI 3, ¶39, 373 Wis. 2d 1, 

889 N.W.2d 423; see State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 

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

¶49 Accordingly, the text of the statute does not preclude 

a person from designating "indefinitely confined" under the 

circumstances due to the "age, physical illness or infirmity" of 

another in their household. In addition to being consistent with 

the plain statutory language, which provides no limitation, such 

a conclusion is consistent with common sense and responsible public 

health practices in the midst of a global pandemic.

¶50 As an example, consider an elderly couple who live in a 

rural area where internet service is sparse,4 and who do not possess 

the necessary technology to make a copy of their photo 

identification to apply for an absentee ballot. Both may be selfquarantining due to the particular vulnerability of one with a 

 

4 As of earlier this year, around 486,000 Wisconsin residents, 

or "roughly 28 percent of the state's rural population," lacked 

broadband access. Shamane Mills, "Demand For Broadband Internet 

Remains High In Rural Wisconsin," Wisconsin Public Radio (Feb. 12, 

2020), https://www.wpr.org/demand-broadband-internet-remainshigh-rural-wisconsin; see Lori S. Kornblum & Daniel Pollack, Out 

of Luck: Need a Rural Family Law Attorney?, 92 Wis. Law. 34, 40 

(Sept. 2019) ("Wisconsin and many other states have areas where 

internet service is not easily available.").
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health condition that poses a distinct risk for dire consequences 

should a partner contract COVID-19. Under the majority's 

formulation, the healthy partner must make what for some amounts 

to an impossible choice——leave the house to vote in person or make 

a copy of a photo identification, thereby risking exposure to 

COVID-19, or forgo participation in our democracy. The fear of 

contracting COVID-19 is real and the risk, for some, of contracting 

the virus is simply too daunting.

¶51 To force such a Hobson's choice5 is inconsistent with 

our understanding of the right to vote as a "sacred right of the 

highest character." League of Women Voters of Wis. Educ. Network, 

Inc. v. Walker, 2014 WI 97, ¶72, 357 Wis. 2d 360, 851 N.W.2d 302 

(Abrahamson, C.J., dissenting) (citing State v. Phelps, 144 Wis. 

1, 15, 128 N.W. 1041 (1910)). 

¶52 Even if the majority's interpretation of Wis. Stat. 

§ 6.86(2)(a) is reasonable, and the statute is susceptible to two 

reasonable interpretations, I adopt the interpretation more 

respectful of the sacred character and fundamental nature of the 

right to vote. See Reynolds v. Sims, 377 U.S. 533, 562 (1964) 

(citing Yick v. Hopkins, 118 U.S. 356, 370 (1886)) (referring to 

voting as a "fundamental political right . . . preservative of all 

rights"). The ability to exercise the fundamental right to vote 

should not be imperiled by a loved one's frail health, and it 

 

5 "A 'Hobson's choice' is 'an apparent freedom of choice when 

there is no real alternative,' such as being put in the position 

of having to accept 'one of two or more equally objectionable 

things.'" McNally v. Capital Cartage, Inc., 2018 WI 46, ¶70 n.3, 

381 Wis. 2d 349, 912 N.W.2d 35 (Ziegler, J., dissenting) (citation 

omitted).
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should not be contingent on one's access to the necessary 

technology to make a photocopy of a photo identification.

¶53 For the foregoing reasons, I respectfully concur in part 

and dissent in part.
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¶54 REBECCA FRANK DALLET, J. (concurring in part, 

dissenting in part). I join the majority opinion to the extent 

that it confirms our March 31, 2020 unpublished order, in which we 

explained that electors were not automatically confined or 

disabled under Wis. Stat. § 6.86(2) solely because of Emergency 

Order #12 or the mere presence of COVID-19. The majority 

reiterates that position, correctly stating that each elector must 

make her own determination as to whether she is indefinitely 

confined or disabled. Majority op., ¶¶25-27. If the majority 

opinion stopped there, I would join it in its entirety. Since it 

goes further, I join it only in part.1

¶55 We decide cases on the "facts in front of us," not 

hypothetical ones. State v. Steffes, 2013 WI 53, ¶27, 347 

Wis. 2d 683, 832 N.W.2d 101. Deciding cases on hypothetical facts 

leads to impermissible advisory opinions, about which our position 

has been steadfast: "[w]e will not do that." E.g., O'Bright v. 

Lynch, No. 2020AP1761-OA, unpublished order (Wis. Oct. 29, 2020) 

(Roggensack, C.J., concurring); Milwaukee Police Ass'n v. City of 

Milwaukee, 2018 WI 86, ¶128, 383 Wis. 2d 247, 914 N.W.2d 597 

(Abrahamson, J., dissenting); Smith v. Pershing, 10 

Wis. 2d 352, 357, 102 N.W.2d 765 (1960).

¶56 Yet the majority's speculation as to what conditions 

might render future voters indefinitely confined or disabled 

results in just such an advisory opinion. We have before us no 

 

1 I join Parts II.C. and II.D.1. of the majority opinion.
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facts regarding any elector's determination under Wis. Stat. 

§ 6.86(2). Indeed, Jefferson does not allege that even one elector 

actually requested or obtained an absentee ballot based on 

McDonell's erroneous advice. That factual deficiency is not cured 

by the majority's reaching outside the record to note an increase 

in the number of electors who requested an absentee ballot because 

they determined they were indefinitely confined or disabled. To 

begin with, the increase in absentee-ballot requests is provided 

without any context, such as the fact that electors in the 2020 

Spring Election faced the once-in-a-generation challenge of voting 

in the midst of a deadly pandemic. But more to the point, the 

number of absentee-ballot requests based on indefinite confinement 

or disability tells us nothing about how we should interpret 

§ 6.86(2) because that number does not tell us why any voter 

determined she was indefinitely confined. 

¶57 Without those facts, the majority opinion's 

interpretation of § 6.86(2) rests on hypothetical voters who are 

indefinitely confined for hypothetical reasons. That is not how 

we decide cases. See Tammi v. Porsche Cars N. Am., Inc., 2009 

WI 83, ¶3, 320 Wis. 2d 45, 768 N.W.2d 783 (refusing to address a 

"hypothetical situation"). I therefore concur in part, joining 

the majority in its conclusion that individual electors must make 

their own determination as to whether they are indefinitely 

confined or disabled under Wis. Stat. § 6.86(2). I would go no 

further.
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