2024 WI App 42

COURT OF APPEALS

DECISION

DATED AND FILED

July 31, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2023AP76 Cir. Ct. No. 2022CV1336

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

RICHARD BRAUN,

 PLAINTIFF-RESPONDENT,

WISCONSIN ELECTIONS COMMISSION,

 DEFENDANT-RESPONDENT,

 V.

VOTE.ORG,

 PROPOSED-INTERVENOR-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County: 

MICHAEL P. MAXWELL, Judge. Affirmed. 

Before Neubauer, Grogan and Lazar, JJ. 
No. 2023AP76

2

¶1 GROGAN, J. Vote.org, the Proposed Intervenor, appeals from the 

circuit court’s order denying its Motion to Intervene in a lawsuit Richard Braun 

filed against the Wisconsin Elections Commission (WEC) related to the WEC’s 

approval of the National Mail Voter Registration Form (the Form) as an accepted

method of voter registration in Wisconsin. On appeal, Vote.org asserts the court 

erred in denying its motion under both WIS. STAT. § 803.09(1) (2021-22)1

(intervention as of right) and § 803.09(2) (permissive intervention). Because we 

conclude Vote.org does not meet the requirements for intervention as of right

pursuant to § 803.09(1) and that the court did not erroneously exercise its 

discretion in denying Vote.org’s motion for permissive intervention pursuant to 

§ 803.09(2), we affirm.

I. BACKGROUND

¶2 The merits of the underlying dispute regarding the WEC’s approval 

of the Form and whether the Form complies with Wisconsin law are not at issue; 

however, the following facts related to that dispute are pertinent to our resolution 

of Vote.org’s appeal. 

¶3 On September 15, 2022, Braun filed an action against the WEC 

seeking a declaratory judgment that the WEC’s approval of the Form violates WIS.

STAT. § 6.33(1) and WIS. STAT. § 227.10. Braun also sought a permanent 

injunction that would require the “WEC [to] withdraw its approval of the [F]orm, 

cease and desist from failing to comply with WIS. STAT. §§ 6.33(1) and 227.10, 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2023AP76

3

and correct the information in Wisconsin’s Election Administration Manual 

indicating that the ... Form is approved for use in Wisconsin[.]” 

¶4 The Form is a national voter registration form the United States 

Election Assistance Commission makes available to voters seeking to register to 

vote,

2

and the Form has existed since 1993. See 52 U.S.C. § 20501 et seq. Unlike 

most states, Wisconsin is not required to utilize the Form because Wisconsin 

allows for same-day voter registration. See 52 U.S.C. § 20503(b). At some point,

the WEC (or its predecessor), which is responsible for administering Wisconsin’s

election laws, see WIS. STAT. § 5.05(1), approved use of the Form for voter 

registration purposes in Wisconsin; however, the circumstances under which it did 

so, including when it did so, are unclear. Nevertheless, it appears the WEC has 

accepted the Form for voter registration for many years. In his Complaint, Braun 

alleged the WEC erred in approving the Form for use in Wisconsin because the 

Form, he says, “is missing several items” that WIS. STAT. § 6.33(1) requires, and it 

therefore does not comply with Wisconsin law.

3

 

¶5 Vote.org, “a 501(c)(3) nonprofit, nonpartisan organization and 

technology platform dedicated to voter registration and get-out-the-vote efforts[,]”

filed a motion seeking to intervene in the underlying action on September 28, 

 

2

 See About the EAC, UNITED STATES ELECTION ASSISTANCE COMMISSION, 

https://www.eac.gov/about (last visited July 15, 2024).

3

 WISCONSIN STAT. § 6.33(1) provides that the WEC “shall prescribe the format, size, 

and shape of registration forms” and goes on to identify specific information the form must 

require. For purposes of this appeal, it is unnecessary to address those requirements in detail. 

Braun also asserted the WEC failed to engage in any rulemaking as it relates to information the 

Form requests but that Wisconsin law does not require and that the WEC therefore violated WIS.

STAT. § 227.10 in approving the Form for use in Wisconsin. Further discussion of § 227.10 is 

likewise unnecessary for purposes of this appeal.
No. 2023AP76

4

2022.4In support of its motion, Vote.org asserted it should be allowed to 

intervene because if Braun succeeds on the merits—in other words, if the Form is 

no longer an acceptable method for registering voters in Wisconsin—it will 

directly impact Vote.org’s ability to assist Wisconsin voters with registering to 

vote, particularly those who are unable to do so online, unless Vote.org “divert[s] 

significant resources to modify its procedures for registering Wisconsin voters[.]” 

¶6 In its motion, Vote.org asserted it had met all of the requirements for 

intervention as of right pursuant to WIS. STAT. § 803.09(1) because: (1) its Motion 

to Intervene was timely; (2) its interest in using the Form as a method for assisting 

Wisconsin voters was “sufficiently related to” the declaratory judgment action 

seeking to prohibit use of the Form; (3) if Braun succeeded in challenging use of 

the Form in Wisconsin, it would be detrimental to Vote.org’s ability to register 

Wisconsin voters unless it expended significant financial resources to update its 

technological platform; and (4) no other party would adequately represent 

Vote.org’s interests. As to representation of its interests, Vote.org asserted that 

although both Vote.org and the WEC sought to preserve use of the Form, its 

interests nevertheless diverged because it, unlike the WEC, would be subject to 

financial harm (in the form of costs associated with modifying its platform for 

Wisconsin voters) and also because the WEC is a government entity. 

¶7 Regarding permissive intervention pursuant to WIS. STAT.

§ 803.09(2), Vote.org asserted its motion was timely, there would be “no undue 

delay or prejudice” because the matter was “in its earliest stages” of litigation, and

 

4

 The WEC did not object to Vote.org’s Motion to Intervene, and it has likewise taken no 

position regarding Vote.org’s appeal. 
No. 2023AP76

5

that it would “raise common questions of law and fact, including the core issue of 

whether the ... Form complies with Wisconsin’s election laws for voter 

registration forms.” 

¶8 After hearing arguments at a December 2022 hearing, the circuit 

court denied Vote.org’s motion. In doing so, the court began by addressing 

Vote.org’s motion under WIS. STAT. § 803.09(1) (intervention as of right). 

Although the court determined that Vote.org had established it satisfied the first 

two criteria under § 803.09(1)—that its Motion to Intervene was timely and that 

Vote.org had an interest related to the subject of the action because it sought to 

maintain utilization of the Form in Wisconsin—the court nevertheless determined 

that Vote.org could not meet the third and fourth criteria. 

¶9 As to the third criterion for intervention as of right—whether 

disposition of the action would impair or impede Vote.org’s ability to protect its 

interest5—the circuit court noted it had “concerns” because Vote.org “purposefully 

and intentionally created a system relying upon a card that may or may not be 

lawful under Wisconsin law,” it “was Vote.org’s choice ... to craft this system 

without utilizing the one form that [it] knew would be in compliance with 

Wisconsin law because it was a Wisconsin created form[,]” and the Record was 

insufficient to establish the potential cost to Vote.org if it had to reconfigure its 

user platform for Wisconsin voters. 

¶10 The circuit court also expressed “concerns” regarding whether 

Vote.org could establish the fourth criterion—that the existing parties would not 

 

5

 See Helgeland v. Wisconsin Muns., 2008 WI 9, ¶38, 307 Wis. 2d 1, 745 N.W.2d 1. 
No. 2023AP76

6

adequately represent its interests6—and explained that it saw “the lawsuit [a]s a 

narrow question” of “whether or not [the Form] complies with Wisconsin law” 

and that it did not see how the WEC’s “significant interest in arguing” that the 

Form complies with Wisconsin law differed from that of Vote.org even though the 

two parties may have had different reasons for desiring the same outcome. In the 

court’s view, despite these differing reasons (“enforcing and protecting Wisconsin

election law” as to the WEC and “protecting [its] system of operation as it relates 

to Wisconsin law and the ability to use the” Form as to Vote.org), both Vote.org 

and the WEC were “pursuing exactly the same outcome”—a determination that 

the Form “is acceptable under Wisconsin law.” The court ultimately concluded 

there was no issue regarding inadequate representation, and it denied Vote.org’s 

motion for intervention as of right based on Vote.org’s failure to establish both the 

third and fourth criteria. 

¶11 The circuit court likewise denied Vote.org’s Motion to Intervene 

pursuant to WIS. STAT. § 803.09(2) (permissive intervention). The court noted 

“there isn’t a great deal of standards or maps ... available in the case law” as to 

factors a court should consider under the permissive intervention statute, but it 

determined that “it can’t simply be that you show a common interest or common 

issue of factor [sic], issue of law and that you timely file because if that were--if 

the bar was so low as to that, then there would be no reason” for intervention as of 

right, and also that if that were the case, there would never be a reason “to pursue 

intervention by right because you could always get in through permissive 

intervention.” The court also acknowledged Vote.org’s suggestion that exercising 

 

6

 Id. 
No. 2023AP76

7

its discretion under the permissive intervention statute required it to consider many 

of the same criteria it was required to consider in regard to intervention as of right, 

and after reconsidering those same factors within Vote.org’s suggested 

framework, along with the cited case law, the court ultimately determined there 

was no basis to grant permissive intervention. 

¶12 Vote.org now appeals.

7

II. DISCUSSION

¶13 On appeal, Vote.org renews its arguments that it is entitled to 

intervene as of right pursuant to WIS. STAT. § 803.09(1) or, alternatively, pursuant 

to § 803.09(2) as a matter of permissive intervention. We address each in turn and 

ultimately affirm the circuit court’s denial of Vote.org’s motion as to both

intervention as of right and permissive intervention. 

 

7

 After denying Vote.org’s Motion to Intervene, the circuit court granted Vote.org’s 

motion to file an amicus brief in support of the WEC’s summary judgment motion regarding the 

merits of the underlying action. In September 2023, shortly before Vote.org’s appeal was 

submitted on briefs to this court for review, the circuit court granted summary judgment in favor 

of Braun, concluding that use of the Form to register Wisconsin voters is unlawful. In a letter 

informing this court of the order, Vote.org confirmed that as a result of the circuit court’s 

decision, “Vote.org must cease offering the [Form] to Wisconsin registrants—precisely the harm 

that Vote.org sought to intervene to prevent.” 

In a November 2023 letter, Vote.org further advised this court that the WEC would not 

be appealing the circuit court’s grant of summary judgment in Braun’s favor and further asserted 

that “[i]f Vote.org were granted intervention, it would appeal[,]” which it says confirms that the 

WEC did “not adequately represent Vote.org’s interests[.]” We address this argument briefly in 

later footnotes. 
No. 2023AP76

8

A. Intervention as of Right

¶14 WISCONSIN STAT. § 803.09(1) governs intervention as of right and 

provides that:

Upon timely motion anyone shall be permitted to intervene 

in an action when the movant claims an interest relating to 

the property or transaction which is the subject of the action 

and the movant is so situated that the disposition of the 

action may as a practical matter impair or impede the 

movant’s ability to protect that interest, unless the movant’s 

interest is adequately represented by existing parties.

Our supreme court has interpreted this statute as requiring that the movant meet 

the following four criteria: (1) “that the movant’s motion to intervene is timely;” 

(2) “that the movant claims an interest sufficiently related to the subject of the 

action;” (3) “that disposition of the action may as a practical matter impair or 

impede the movant’s ability to protect that interest; and” (4) “that the existing 

parties do not adequately represent the movant’s interest.” Helgeland v. 

Wisconsin Muns., 2008 WI 9, ¶38, 307 Wis. 2d 1, 745 N.W.2d 1.

¶15 Although the “movant must meet each of these four criteria to claim 

a right of intervention[,]” “the criteria need not be analyzed in isolation from one 

another, and a movant’s strong showing with respect to one requirement may 

contribute to the movant’s ability to meet” the other requirements. Id., ¶39

(footnote omitted). There is, however, “‘no precise formula for determining 

whether a potential intervenor’” is entitled to intervention as of right. Id., ¶40 

(citation omitted). Rather, “[t]he analysis is holistic, flexible, and highly 

fact-specific[,]” and “[a] court must look at the facts and circumstances of each 

case ‘against the background of the policies underlying the intervention rule.’” Id.

(citations omitted). Courts reviewing such motions must balance the conflicting

public policies of allowing the original parties “‘to conduct and conclude their 
No. 2023AP76

9

own lawsuit’” and allowing proposed intervenors “‘to join a lawsuit in the interest 

of the speedy and economical resolution of controversies.’” Id. (citations

omitted). “Whether to allow or to deny intervention as of right is a question of 

law that this court decides independently[,]” although we benefit from the circuit 

court’s analysis. Id., ¶41. 

1. Timeliness 

¶16 Whether a movant’s motion to intervene is timely “is left to the 

discretion of the circuit court.” Id., ¶42. The circuit court here determined that 

Vote.org timely filed its motion for intervention, and the parties do not dispute that 

determination. We likewise conclude that Vote.org’s Motion to Intervene was 

timely as it was filed thirteen days after Braun filed the Summons and Complaint.

2. Interest Related to the Subject of the Action

¶17 The second criterion Vote.org must establish is that it has “an 

interest sufficiently related to the subject of the action[.]” Id., ¶38. “[T]he 

identification of a movant’s asserted related interest will affect the analysis of the 

third and fourth criteria as well, because all three of these criteria are defined in 

part by the movant’s asserted interest.” Rise, Inc. v. WEC, No. 2022AP1838, 

unpublished slip op. ¶18 (WI App July 7, 2023).8

¶18 There is “[n]o precise test ... ‘for determining which type of interest 

is sufficient to allow a party to intervene as a matter of right.’” Helgeland, 307 

 

8

 Although Rise, Inc. v. WEC, No. 2022AP1838, unpublished slip op. (WI App July 7, 

2023), is unpublished and therefore carries no precedential value, it was authored by a three-judge 

panel, and we may therefore consider its persuasive authority pursuant to WIS. STAT.

RULE 809.23(3)(b). 
No. 2023AP76

10

Wis. 2d 1, ¶43 (citation omitted). Accordingly, when considering whether a 

movant has a sufficiently related interest, “courts employ a ‘broad[], pragmatic 

approach’” under which “‘the interest sufficient to allow the intervention’” is 

viewed “‘practically rather than technically.’” Id., ¶43 (citation omitted). The 

second criterion serves as “‘a practical guide to disposing of lawsuits by involving 

as many apparently concerned persons as is compatible with efficiency and due 

process.’” Id., ¶44 (citation omitted). “[A] claimed interest does not support 

intervention[,]” however, “if it is only remotely related to the subject of the 

action.” Id., ¶45. Rather, “[t]here must be some sense in which the interest is ‘of 

such direct and immediate character that the intervenor will either gain or lose by 

the direct operation of the judgment.’” Id. (citation omitted). “A movant may 

intervene as of right when the movant needs ‘to protect a right that would not 

otherwise be protected in the litigation.’” Id. (citation omitted). 

¶19 In reviewing this criterion, the circuit court looked to the shared 

interest between Vote.org and the WEC in seeking continued use of the Form as a 

valid means of registering voters in Wisconsin and determined that this shared 

interest established that Vote.org’s interest was sufficiently connected to the issues 

raised in Braun’s lawsuit. Like the circuit court, we agree that Vote.org’s asserted 

“interest [is] sufficiently related to the subject of the action[.]” See id., ¶38.

¶20 The primary subject of the underlying action presents a 

straightforward question requiring statutory interpretation: Whether the Form 

complies with the requirements imposed by Wisconsin law—specifically, whether 

it complies with WIS. STAT. § 6.33(1) and, if it does not, whether the WEC 

complied with WIS. STAT. § 227.10’s rulemaking requirements in approving the 

Form for use. In its Motion to Intervene, Vote.org explained that it “relies on the 

... Form to help register voters in Wisconsin[,]” particularly those who are 
No. 2023AP76

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ineligible to or prefer not to register online, and that revocation of the Form as an 

acceptable means of registering voters will “impede [its] direct operations and 

inhibit its efforts to help register Wisconsin voters.” Vote.org further asserted that 

if the Form is invalid in Wisconsin, it would be required “to divert resources from 

its other registration and get-out-the-vote activities in order to build new 

registration processes in Wisconsin.” Because the sole subject of Braun’s 

declaratory judgment action is the validity of the precise form Vote.org uses to 

assist Wisconsin voters with registering to vote, we conclude that Vote.org’s 

asserted interest—continued acceptance of the Form in Wisconsin—is directly 

related to the subject of the action.9 Accordingly, Vote.org has established the 

second criterion for intervention as of right. See Helgeland, 307 Wis. 2d 1, ¶38.

3. Disposition May Impair or Impede Ability to Protect Interest

¶21 Next, Vote.org must establish “that disposition of the action may as 

a practical matter impair or impede [its] ability to protect” the asserted interest 

identified above. See id., ¶38. As with the second criterion, courts “take a 

 

9

 The Dissent at ¶52 ignores that Vote.org’s ultimate interest—establishing that the Form 

complies with Wisconsin law—is the same as the WEC’s interest and position in this matter. 

That the WEC may have “numerous and varied” “specific powers” and that an adverse ruling 

might impact Vote.org and the WEC differently, see Dissent, ¶¶49-52, does not negate that fact 

despite the Dissent’s protestation. 

In ignoring that Vote.org and the WEC share the same ultimate interest, the Dissent 

chooses to instead invent a diverse interest on behalf of Vote.org by discussing that 

organization’s “objectives” and asserts that Vote.org brings a “unique perspective[.]” Dissent, 

¶¶52, 54. It also contends that the WEC is political and Vote.org is not. But is that actually true? 

And, even if it is, it still does not change the fact that both parties share the same interest in the 

underlying matter. The Dissent also says the resulting harm to the WEC and Vote.org will differ, 

and it argues that the WEC’s choice not to appeal proves that the WEC and Vote.org are seeking 

different outcomes. See Dissent, ¶53. In refusing to simply apply the well-established law 

governing intervention and acknowledge that the WEC and Vote.org share the same interest, the 

Dissent evokes the well-known Shakespearean maxim of “protesting too much.” See WILLIAM

SHAKESPEARE, HAMLET act 3, sc. 2 (“The lady doth protest too much, methinks.”). Methinks.
No. 2023AP76

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pragmatic approach and focus on the facts of each case and the policies underlying 

the intervention statute.” Id., ¶79.

¶22 Vote.org asserts it has established this criterion because a decision in 

Braun’s favor—that the Form can no longer be used to register Wisconsin 

voters—will “prevent Vote.org’s continued use of the [Form] in Wisconsin,” 

which, it says, will result in “a practical impairment to its interest[.]” According 

to Vote.org, because it “has an interest in using the [F]orm in Wisconsin ... it 

follows directly that ... its interest will be impaired by a judgment banning that 

[F]orm’s use statewide” and that the circuit court therefore erred in concluding 

otherwise. 

¶23 Braun, to the contrary, asserts that Vote.org has not established that 

disposition will “impair or impede its ability to protect an interest related to this 

action” because “the Form is not the only means by which Wisconsinites can 

register to vote[,]” and therefore “Vote.org’s interest in assisting citizens to 

register to vote is and will remain unimpeded.” Braun further argues that 

“Vote.org’s real complaint appears to be ... that it will have to switch from the 

Form” to one that complies with Wisconsin law and that Vote.org simply does not 

want to incur any financial expenditures that would be required to do so. 

¶24 We agree with Braun to the extent he suggests that use of the Form 

is not the sole method by which Wisconsin voters can register to vote. However,

the third criterion under our analysis looks to whether “disposition of the action 

may as a practical matter impair or impede the movant’s ability to protect that 

interest”—in other words, the specific interest identified in regard to the second 

criterion. See id., ¶38 (emphasis added). As discussed above, Vote.org’s specific 

interest at issue here is whether the Form complies with Wisconsin’s voter 
No. 2023AP76

13

registration laws—not whether there are other methods of registration available to 

voters or whether there are other forms available that Vote.org could use to further 

its broader interest of helping voters register to vote—and resolution of the action 

will definitively answer whether the Form complies.10 Accordingly, we conclude

that Vote.org has established the third criterion. 

4. Whether Existing Parties Adequately Represent Interest 

¶25 Finally, to establish it is entitled to intervention as of right, Vote.org 

must show “that the existing parties do not adequately represent [its] interest.” Id.,

¶38. Although establishing that the existing parties inadequately represent the 

movant’s interest is a relatively low bar, we do not treat the requirement “‘as so 

minimal as to write the requirement completely out of the rule.’” Id., ¶85 (citation 

omitted). Rather, we must “blend[] and balance[]” the fourth criterion with the 

first three. Id., ¶86. Where the movant’s “interests are substantially similar to 

interests already represented by an existing party, such similarity will weigh 

against” the movant. Id.

¶26 To determine “whether an existing party adequately represents a 

movant’s interest,” courts look to whether “there is a showing of collusion 

between the representative and the opposing party; if the representative fails in the 

 

10

 Like Braun, the circuit court focused its analysis of the third criterion on the 

availability of other methods or forms Vote.org could use to assist voters with voter registration. 

Specifically, the court questioned why it should “be concerned with a national organization that 

purposefully and intentionally created a system relying upon a card that may or may not be lawful 

under Wisconsin law” and stated that it did not “think that as a practical matter, the Court should 

be concerned with the fact that there’s a national system in place that utilizes a form that may or 

may not be in compliance with Wisconsin law.” It went on to explain that it “was Vote.org’s 

choice ... to craft this system without utilizing the one form that [it] knew would be in 

compliance with Wisconsin law because it was a Wisconsin created form.” The interest here, 

however, is establishing whether the Form complies with Wisconsin law.
No. 2023AP76

14

fulfillment of his duty; or if the representative’s interest is adverse to that of the 

proposed intervenor.” Id., ¶87. We must also consider whether either of the 

following two rebuttable presumptions applies. Id., ¶89. First, courts typically 

presume adequate representation “when a movant and an existing party have the 

same ultimate objective in the action.” Id., ¶90. “Second, ‘when the putative 

representative is a governmental body or officer charged by law with representing 

the interests of the absentee, a presumption of adequate representation arises 

whether the would-be intervenor is a citizen or subdivision of the governmental 

entity.’” Id., ¶91 (citation omitted). If either presumption applies, a more 

“compelling showing” of inadequate representation may be required. Id., ¶86.

¶27 Vote.org asserts that neither of the presumptions requiring a more 

“compelling showing” applies and that it is subject only to the minimal showing. 

To that end, Vote.org argues that the “WEC does not adequately represent [its] 

interest in continuing to use the [Form] in Wisconsin” because it “is likely to 

litigate more vigorously than [the] WEC because ... it will suffer more direct and 

particularized harms than [the] WEC” if the Form is deemed to violate Wisconsin 

law. Vote.org also asserts that it has “more at stake” than the WEC and looks to 

Wolff v. Town of Jamestown, 229 Wis. 2d 738, 601 N.W.2d 301 (Ct. App. 1999), 

to support both propositions as well as its position that neither of the 

aforementioned presumptions requiring a more “compelling showing” apply. We 

disagree. 

¶28 At the outset, we note that Vote.org has not established—or even 

alleged—collusion between the WEC and Braun. See Helgeland, 307 Wis. 2d 1, 

¶¶87-88. Likewise, while Vote.org asserts that an adverse outcome will have a 
No. 2023AP76

15

greater impact on it than on the WEC, under the facts present here, this is 

insufficient to establish that the WEC’s interest is actually adverse to its own.11 

See id. Vote.org has also failed to show that the WEC “has failed in the 

fulfillment of its duty” in litigating its position as to what it believes to be the 

correct interpretation of the statutes at issue. See id. Vote.org’s failure to 

establish any of these factors suggests that the WEC adequately represents its 

interests.

¶29 We must also consider whether either of the aforementioned 

rebuttable presumptions applies. See id., ¶89. In regard to the first presumption, 

 

11

 For example, Vote.org argues that it, unlike the WEC, will “need to hire a software 

developer to redesign parts of its website” if the Form is found not to comply with Wisconsin 

law. Although the impact on Vote.org and the WEC may differ, it does not inherently follow that 

their interests are adverse, particularly where both parties ultimately seek to establish that the 

Form does comply with Wisconsin law.

Vote.org also suggests that the WEC’s decision not to appeal confirms that the WEC did 

not adequately represent its interests. We disagree. Here, Vote.org and the WEC sought the 

same statutory interpretation and the same ultimate approval and continued use of the Form in 

Wisconsin. Their interest on that point is identical. If we were to conclude that a proposed 

intervenor—particularly one whose identified interest is otherwise identical to that of the 

representative party—could establish inadequate representation by simply asserting that it might 

appeal in the face of an adverse decision whereas the representative party might choose not to 

appeal, we would effectively write the fourth criterion out of existence because any proposed 

intervenor could simply assert that it might take a different approach regarding whether or not to 

appeal, thereby establishing inadequate representation without a showing of anything more. The 

Dissent’s suggestion that “the conflict between WEC’s decision not to appeal and Vote.org’s 

desire to do so creates an independent basis for concluding that WEC is not an adequate 

representative of Vote.org’s interest[,]” Dissent, ¶62, simply confirms this point. To conclude as 

the Dissent does—that taking a different approach as to whether to file an appeal ipso facto 

renders a representative party’s interest and a proposed intervenor’s interest unaligned (even 

where both parties seek the exact same legal outcome)—would be to treat the fourth requirement 

“‘as so minimal as to write the requirement completely out of the rule.’” See Helgeland, 307 

Wis. 2d 1, ¶85 (citation omitted). We decline to do so as it is clear that a proposed intervenor 

must establish that all four elements are present. 

Moreover, a representative party might choose not to appeal for any number of reasons 

despite having the same interests as the proposed intervenor. That alone cannot constitute a basis 

upon which to grant intervention.
No. 2023AP76

16

Vote.org asserts the WEC does not adequately represent its interests because its 

interest in establishing that the Form complies with Wisconsin voter registration 

laws is not identical to that of the WEC because it, unlike the WEC, uses the Form 

to register voters. Thus, it says, the WEC does not “have the same ultimate 

objective in the action.” See id., ¶90. We conclude, however, that this

presumption applies because the WEC and Vote.org share—even if for somewhat 

different reasons—the same ultimate objective in this case: To establish that the 

Form complies with Wisconsin law (in other words, that continued use of the 

Form to register Wisconsin voters is lawful). While their respective uses of the 

Form may be different, it does not inherently follow that they have diverging 

interests.

¶30 The second presumption—that representation is adequate “‘when the 

putative representative is a governmental body or officer charged by law with 

representing’” Vote.org’s interests—also counsels against intervention. See id., 

¶91 (citation omitted). The WEC is a governmental body represented by the 

Department of Justice in this matter, and both entities “are charged by law with the 

duty of representing the rights of electors so that all may enjoy the benefits of the 

correct application of the laws governing elections.” See Rise, Inc., 

No. 2022AP1838, ¶36. In that regard, the WEC’s position as to the “correct 

application of the laws governing elections” in this matter is that the Form 

complies with Wisconsin’s voter registration laws—the exact position that 

Vote.org presents. See id. While these presumptions are rebuttable, Vote.org has 

not otherwise made a “compelling showing” that the WEC does not adequately 

represent its rights. See Helgeland, 307 Wis. 2d 1, ¶¶86, 89.

¶31 In concluding these presumptions of adequate representation apply

and that Vote.org has not made a “compelling showing” that it has overcome those 
No. 2023AP76

17

presumptions, we necessarily also reject Vote.org’s argument that it is subject only

to the minimal standard. While Vote.org is correct that we said in Wolff that the 

proposed intervenor was not adequately represented by the existing parties 

because it “may be in a position” to litigate “more vigorously” and because it 

“may have more at stake” than the representative, id., 229 Wis. 2d at 748-49,

Wolff did not address whether either of the two presumptions applied. And even 

if we were to determine that neither presumption applied and Vote.org therefore 

need only meet the minimal showing that its interest was not adequately 

represented, we would still reach the same conclusion.

¶32 Here, Vote.org says it “has much more to lose in this litigation than 

does WEC” because “WEC’s obligation is simply to enforce the voter registration 

rules as the courts construe them[,]” and the WEC will simply “conform to the 

courts’ ruling and revise its position on what the law provides.” (Emphasis 

added.) Yet, Vote.org’s ability—or inability—to continue its use of the Form also

depends entirely on how the courts construe Wisconsin’s voter registration laws as 

that construction will determine whether or not the Form complies with Wisconsin 

law. Consequently, the courts’ ultimate statutory construction may impact 

Vote.org and the WEC differently, but this does not fundamentally mean that 

Vote.org has “more to lose” or has “more at stake.”

¶33 Additionally, while Vote.org posits that it is likely to litigate more 

vigorously than the WEC because it may be more greatly impacted should the 

courts construe Wisconsin’s voter registration laws in a manner that invalidates 

use of the Form in Wisconsin, the underlying issue in this case is ultimately a 

matter of statutory construction. Under these circumstances, this court is not 

convinced that Vote.org’s claim that its ability to assert more vigorous arguments 

in a statutory interpretation case renders the WEC unable to satisfactorily 
No. 2023AP76

18

represent Vote.org’s interests. The WEC advocated for the same position on 

statutory construction and the same result as Vote.org.

¶34 We recently reached a similar conclusion regarding adequate 

representation in Rise—an opinion Vote.org itself says is highly instructive to our 

analysis here—where a proposed intervenor raised arguments akin to those that 

Vote.org makes, and we agree that that analysis is persuasive.

12

 See Rise, Inc., 

No. 2022AP1838, ¶¶31-44. In Rise, we determined that both presumptions 

addressed above “magnified” “the presumption of adequate representation” 

because, inter alia, the WEC’s position in that case “aligned with the position that 

the” proposed intervenors took on the merits of the underlying case—that the 

 

12

 We decided Rise after briefing concluded in this case. In its initial brief, Vote.org 

stated that “[a] decision in the appellants’ favor on the inadequate-representation issue” in that 

case “would thus be difficult to reconcile with a different result here.” The reverse, however, is 

also true: A decision against the appellants in Rise would be difficult to reconcile with a decision 

in Vote.org’s favor in this case. The Dissent suggests that Rise is nevertheless distinguishable 

based on “the interplay between the intervention of right factors[.]” Dissent, ¶60 n.6. While the 

interplay between the factors may not be identical, factual differences will always be present in 

any case in which a party seeks to intervene. This does not inherently mean, however, that the 

analytical framework does not continue to apply, which is likely the reason that Vote.org initially 

sought to tie its future to a possible favorable outcome in Rise.

The Dissent also relies heavily on Vote.org’s purported financial interest/harm—that it 

would need to “devote staff time and money to redesign parts of its website.” Dissent, ¶¶52, 

59-60. However, there is no evidence in the Record indicating the extent to which it would need 

to “devote staff time,” and there is likewise no evidence of even an estimated cost, if any, to 

redesign the website. Vote.org says only that it would have to “dedicate staff time and resources” 

“to create ... new software.” We also note that the Record reflects that Vote.org had five

attorneys appear for the summary judgment hearing. Assuming those attorneys were not 

attending pro bono, their attendance tends to discredit Vote.org’s assertions that its financial 

interests were a primary concern as an intervenor. Vote.org also indicated that, as of September 

2023, it “ceased” using the Form; consequently, any financial interest harm presumably no longer 

exists. The Dissent nevertheless suggests that the fact that Vote.org is no longer using the Form 

means that its purported injury is now “concrete.” Dissent, ¶54 n.4. Again, however, the Record 

fails to establish that Vote.org has incurred—or will incur—any financial harm/injury at all, and 

more importantly, it does not alter the simple fact that Vote.org and the WEC ultimately sought 

the same outcome in the circuit court. 
No. 2023AP76

19

circuit court “reject the relief sought by Rise and thus maintain as the status quo 

the [WEC’s] interpretation of ‘address’” under Wisconsin’s voter registration 

laws. Id., ¶¶35-36. The same is true here: Both Vote.org and the WEC seek to 

maintain the WEC’s position that the Form complies with Wisconsin’s voter 

registration laws. We also concluded in Rise, as we do here, that the WEC was 

“charged by law with the duty of representing the rights of electors so that all may 

enjoy the benefits of the correct application of the laws governing elections.” Id., 

¶36. The proposed intervenors in Rise, like Vote.org, relied heavily on Wolff to 

support their position that their interests were not adequately represented. Rise, 

Inc., No. 2022AP1838, ¶¶38-40. As in Rise, we reject those arguments here. See

id.

¶35 Based on the foregoing, we conclude that Vote.org is not entitled to 

intervention as of right, and the circuit court therefore did not err in denying 

Vote.org’s motion as it relates to WIS. STAT. § 803.09(1). 

B. Permissive Intervention

¶36 Having determined that Vote.org was not entitled to intervention as 

of right, we turn next to Vote.org’s argument that the circuit court erroneously 

exercised its discretion in denying permissive intervention pursuant to WIS. STAT.

§ 803.09(2), which provides, as relevant, that:

Upon timely motion anyone may be permitted to intervene 

in an action when a movant’s claim or defense and the 

main action have a question of law or fact in common.... 

In exercising its discretion the court shall consider whether 

the intervention will unduly delay or prejudice the 

adjudication of the rights of the original parties.

We review the circuit court’s decision regarding permissive intervention under the 

erroneous exercise of discretion standard. Helgeland, 307 Wis. 2d 1, ¶120. We 
No. 2023AP76

20

will affirm a discretionary decision so long as the court “‘examined the relevant 

facts, applied a proper standard of law, and, using a demonstrated rational process, 

reached a conclusion that a reasonable judge could reach.’” Industrial Roofing 

Servs., Inc. v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898

(citation omitted).

¶37 WISCONSIN STAT. § 803.09(2) requires that the circuit court consider 

three criteria in making its discretionary determination. Specifically, a person 

“may be permitted to intervene,” in the court’s discretion: (1) “Upon timely 

motion”; (2) Where the “movant’s claim or defense and the main action have a 

question of law and fact in common”; and (3) “After the court ‘[i]n exercising its 

discretion’ considers ‘whether the intervention will unduly delay or prejudice the 

adjudication of the rights of the original parties.’” See Rise, Inc., 

No. 2022AP1838, ¶47; see also Helgeland, 307 Wis. 2d 1, ¶120 (“As the text of 

WIS. STAT. § 803.09(2) itself makes clear, the circuit court has discretion to decide 

whether a movant may be permitted to intervene when the movant’s claim or 

defense and the main action have a question of law or fact in common.”). 

Permissive intervention, unlike intervention as a matter of right, requires only that 

the movant be a proper party, not a necessary party. City of Madison v. WERC, 

2000 WI 39, ¶11 n.11, 234 Wis. 2d 550, 610 N.W.2d 94. While the court must 

consider these factors in “determin[ing] whether a person is eligible to be 

considered for permissive intervention,” a court, in exercising its discretion, need 

not permit a movant to intervene simply because the movant meets each of these 

factors. Rise, Inc., No. 2022AP1838, ¶47.

¶38 The circuit court here denied permissive intervention after 

considering the same criteria required for intervention as of right, as Vote.org 

suggested it should do, along with whether Vote.org had established an issue of 
No. 2023AP76

21

common law and fact. In exercising its discretion, the court explained that it is 

insufficient to “simply ... show a common interest or common issue of factor

[sic], issue of law and that you timely file because” that would render WIS. STAT.

§ 803.09(1) unnecessary. It then went on to explain why the criteria that 

counseled against intervention as of right also weighed against permissive 

intervention, particularly focusing on the adequacy of the WEC’s representation in 

this matter given that the matter was “about the discrete and narrow issue of” 

whether the Form “that WEC has signed off on using [is] in compliance with 

Wisconsin law[.]” 

¶39 Having reviewed the relevant law, the Record, and the parties’ 

arguments, we cannot conclude that the circuit court, despite a somewhat 

perfunctory analysis, erroneously exercised its discretion in reaching its decision.13 

¶40 First, as with the analysis of intervention as of right, permissive 

intervention requires that the motion to intervene be timely. While the circuit

court did not explicitly reaffirm that Vote.org’s motion was timely for purposes of 

its permissive intervention analysis, it is nevertheless clear that the court 

reconsidered the intervention as of right factors, and under that analysis, it had 

determined that Vote.org’s motion was, without question, timely. Second, in 

questioning whether timeliness and a showing of a common issue of fact or law 

alone are sufficient to warrant permissive intervention, it is at least implicit that 

the court determined that Vote.org had established the existence of a common 

 

13

 We remind the circuit courts that in exercising their discretion, it is imperative that 

they are explicit in tying their analysis to the criteria or factors to be considered in exercising that 

discretion as this will aid the appellate courts on review. See, e.g., State v. X.S., 2022 WI 49, 

¶33, 402 Wis. 2d 481, 976 N.W.2d 425 (“The exercise of discretion incorporates a process of 

reasoning and proper explanation.” (emphasis added)).
No. 2023AP76

22

issue of fact or law. This is particularly so in light of the court’s discussion of the 

overlap between Vote.org’s and the WEC’s interest in seeking the same outcome 

in the underlying matter. 

¶41 Similarly, while the circuit court did not use the specific words 

“unduly delay” or “prejudice” in its permissive intervention analysis, the court 

questioned the parties and heard argument about undue delay during the course of 

the motion hearing. Moreover, in announcing its denial of permissive 

intervention, the court confirmed that its decision was based on “the framework 

that Vote.org has provided as well as consider[ation of] the case law that was 

filed and the plaintiff’s argument.” (Emphasis added.) There is no question that 

the case law submitted in regard to Vote.org’s Motion to Intervene addressed 

undue delay and prejudice. We therefore “conclude that the circuit court 

examined the relevant facts, applied a proper standard of law, and used a 

demonstrated rational process to reach a conclusion that a reasonable judge could 

reach in denying permissive intervention.” See Rise, Inc., No. 2022AP1838, ¶50. 

Accordingly, the court did not erroneously exercise its discretion. 

¶42 In reaching this conclusion, we reject Vote.org’s suggestion that the 

circuit court “failed to apply the appropriate legal standard” because it “questioned 

whether the [WIS. STAT. §] 803.09(2) test for permissive intervention is the correct 

one.” While the court may have questioned whether establishing that Vote.org’s

“claim or defense and the main action have a question of law or fact in 

common[,]” see § 803.09(2), is alone sufficient to warrant permissive intervention, 

it is clear that the court did not make its decision on this basis alone. Moreover, as 

noted above, the court was not required to exercise its discretion in Vote.org’s 

favor simply because it established a common issue of law and fact. See Rise, 

Inc., No. 2022AP1838, ¶47 (permissive intervention not required even where 
No. 2023AP76

23

movant establishes all three factors to be considered under § 803.09(2)). We also 

reject Vote.org’s argument that the circuit court “looked explicitly to the factors 

governing intervention as of right” and concluded “that because Vote.org had not 

shown a right to intervene, it should not be permitted to intervene permissively.” 

(First emphasis added.) As explained above, it is clear that the court considered

the multiple relevant criteria in denying Vote.org’s motion for permissive 

intervention.

¶43 Finally, to the extent the circuit court referenced Vote.org’s decision 

to “intentionally create[] a system in reliance on a particular form that may or may 

not be in accordance with Wisconsin law” in denying permissive intervention, we 

interpret this commentary not as faulting Vote.org for relying on the WEC’s 

longstanding position that the Form was valid in Wisconsin, as Vote.org suggests,

but rather as being in response to—and in rejection of—Vote.org’s argument that 

the WEC would not adequately represent its interest simply because it, unlike the 

WEC, would be required to modify its user platform for Wisconsin residents if it 

could no longer utilize the Form in assisting Wisconsin voters.14 

 

14

 Vote.org also faults the circuit court for failing to address the WEC’s longstanding 

approval of the Form, the apparent fact that “before this lawsuit ... no one had questioned the 

legality of the [Form’s] use in Wisconsin[,]” or “why Vote.org should have anticipated this 

lawsuit and its underlying legal theory years ago, when it was designing its web platform or 

software” in exercising its discretion as to permissive intervention. However, the WEC’s (and its 

predecessor’s) apparent longstanding approval of the Form, the apparent lack of any prior 

litigation related to the Form’s use in Wisconsin, and Vote.org’s decision-making process in 

utilizing the Form in Wisconsin are wholly irrelevant to the underlying statutory interpretation 

issue of whether the Form complies with Wisconsin law. The court therefore did not err in failing 

to address or consider those issues in exercising its discretion.
No. 2023AP76

24

III. CONCLUSION

¶44 Based on the foregoing, we conclude that Vote.org was not entitled 

to intervention as of right because, despite establishing the first three required 

factors, it failed to establish that the WEC did not adequately represent its interest 

in the underlying action. We likewise conclude that the circuit court did not err in 

exercising its discretion when it denied Vote.org’s motion for permissive 

intervention. 

By the Court.—Order affirmed. 

Recommended for publication in the official reports.
No. 2023AP76(D)

¶45 NEUBAUER, J. (dissenting). I agree with the majority that 

Vote.org satisfied the first three requirements to intervene in this lawsuit as of 

right under WIS. STAT. § 803.09(1). But unlike the majority, I conclude that 

Vote.org also established the fourth requirement—that neither party to this lawsuit 

would “adequately represent[]” its interest. See id. Accordingly, I would reverse 

the circuit court’s order denying Vote.org’s intervention motion under 

§ 803.09(1). Reversal is also warranted because the court erroneously exercised 

its discretion in denying Vote.org’s alternative request for permissive intervention 

under § 803.09(2). 

¶46 Part I below analyzes Vote.org’s request for intervention as of right 

based on the record as it existed when the circuit court denied Vote.org’s motion. 

Part II discusses how events after the court’s ruling—in particular its grant of 

summary judgment to Braun during the pendency of this appeal, and the decision 

by the Wisconsin Elections Commission (WEC) not to appeal that ruling—provide 

separate grounds for concluding that WEC does not adequately represent 

Vote.org’s interest and justifies a remand to allow Vote.org to appeal. Part III 

addresses the court’s decision on permissive intervention. 

I. Vote.org Is Entitled to Intervene as of Right Because WEC’s 

Representation of Its Interests May Be Inadequate.

A. Vote.org’s burden to show that WEC’s representation of its 

interests is minimal.

¶47 On the issue of inadequate representation, Vote.org’s burden was to 

show that WEC’s representation of its interest “‘may be’ inadequate.” See Wolff 
No. 2023AP76(D)

2

v. Town of Jamestown, 229 Wis. 2d 738, 747-48, 601 N.W.2d 301 (Ct. App. 

1999) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 

(1972)). As the majority recognizes, Wisconsin case law describes this burden as 

“minimal,” though not nonexistent. See Helgeland v. Wisconsin Muns., 2008 WI 

9, ¶85, 307 Wis. 2d 1, 745 N.W.2d 1. It is also linked to the other factors pertinent 

to intervention of right. Id., ¶39 (“[T]he [factors] need not be analyzed in isolation 

from one another, and a movant’s strong showing with respect to one requirement 

may contribute to the movant’s ability to meet other requirements as well.” 

(footnote omitted)). 

¶48 In Helgeland, our supreme court identified several circumstances in 

which an existing party may not adequately represent a proposed intervenor’s 

interest: (1) if there is collusion between the existing parties; (2) if the existing 

party “fails in the fulfillment of [its] duty”; and (3) “if the [existing party’s] 

interest is adverse to that of the proposed intervenor.” Id., ¶87. The majority 

bases its conclusion that Vote.org did not establish inadequacy in large part on its 

determination that Vote.org did not establish that any of these circumstances exists 

here. Majority, ¶28. But that is not the end of the inquiry because these 

circumstances, which were collected in Stadin v. Union Electric Co., 309 F.2d 

912, 919 (8th Cir. 1962), are not “a comprehensive list of the circumstances that 

can establish inadequacy of representation.” 7C CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 2024) 

(“The wide variety of cases that come to the courts make it unlikely that there are 

three and only three circumstances that would make representation inadequate and 
No. 2023AP76(D)

3

suggest that adequacy of representation is a very complex variable.”).1 “The most 

important factor in determining adequacy of representation is how the interest of 

the absentee compares with the interests of the present parties.” Id.

B. Vote.org has an independent, specific, and concrete interest 

in the Form’s continued viability as a means of registering 

voters in Wisconsin.

¶49 WEC’s and Vote.org’s respective interests are sufficiently divergent 

to support a conclusion that WEC may not be an adequate representative of 

Vote.org in this case. WEC is charged generally with “responsibility for the 

administration of [WIS. STAT.] chs. 5 to 10 and 12 and other laws relating to 

elections and election campaigns.” WIS. STAT. § 5.05(1). Its specific powers are 

numerous and varied; among other things, it is authorized to (1) promulgate rules 

“for the purpose of interpreting or implementing the laws regulating the conduct of 

elections or election campaigns,” § 5.05(1)(f); (2) investigate and prosecute civil 

violations of the laws it administers, § 5.05(1)(c), (2m)(a); (3) issue advisory 

opinions “regarding the propriety under chs. 5 to 10 or 12 of any matter” for which 

such an opinion is requested, § 5.05(6a)(a); and (4) “conduct or prescribe 

requirements for educational programs to inform electors about voting procedures, 

voting rights, and voting technology,” § 5.05(12). With respect to voter 

registration, WIS. STAT. § 6.33(1) directs WEC to “prescribe the format, size, and 

shape of registration forms” and to “design the form to obtain from each elector” 

certain information listed in the statute. 

 

1

 The Wright & Miller treatise discusses the federal corollary to WIS. STAT. § 803.09(1), 

Federal Rule of Civil Procedure 24(a)(2). “[I]nterpretation and application of the federal rule 

provide guidance in interpreting and applying § 803.09(1).” Helgeland v. Wisconsin Muns., 

2008 WI 9, ¶37, 307 Wis. 2d 1, 745 N.W.2d 1.
No. 2023AP76(D)

4

¶50 To discharge its various responsibilities, WEC must know and 

understand what Wisconsin’s elections statutes require, allow, and prohibit. 

Though WEC may defend its rules, decisions, and actions when challenged in 

court, it has a substantial interest in such situations in confirming, clarifying, or 

otherwise enhancing its understanding of the elections statutes it is charged with 

administering. Moreover, because WEC is a bipartisan commission headed by 

commissioners selected by Wisconsin’s governor and legislative leaders, see WIS.

STAT. § 15.61(1)(a), its decision-making with respect to the Form may be 

impacted by unique political considerations, other organizational priorities, budget 

constraints, and the individual perspectives of the commissioners.

¶51 Vote.org, on the other hand, has more specific and concrete interests 

in the Form’s continued viability as a means of registering voters in Wisconsin. 

According to its Chief Executive Officer, Vote.org is “the largest 501(c)(3) 

nonprofit, nonpartisan voting registration and get-out-the-vote ... technology 

platform in the country.” It advocates for, and is actively engaged in, voter 

registration and turnout efforts nationwide, with a particular focus on registering 

lower-propensity voters. Persons who wish to register to vote but are unable to 

complete that process online because, for example, they lack identification 

showing their current address, may use its web-based registration platform to 

generate a pre-filled form that they can mail to the appropriate governmental entity 

to complete their registration. Vote.org has an independent interest in continued 

use of the Form so that it can efficiently and economically pursue its goals by 

using the same online platform to assist persons in Wisconsin and other states in 

registering to vote. As set forth before the circuit court at the time of its 

intervention ruling, Vote.org would be uniquely and concretely harmed by an 

adverse decision because it will have to expend resources to change its method for 
No. 2023AP76(D)

5

helping Wisconsin residents register to vote. Disallowance of the Form would

hinder its voter registration efforts in Wisconsin and its broader goal of increasing 

registration of lower-propensity voters nationwide.

2

 See Kane County v. United 

States, 928 F.3d 877, 891-92 (10th Cir. 2019) (concluding that conservation 

nonprofit group had interest in certain rights-of-way that were the subject of a 

quiet title action given its “decades-long history of advocating for the protection of 

these federal public lands”). The majority agrees that Vote.org’s interests will be 

impaired and impeded by an adverse decision. Majority, ¶24. 

¶52 WEC lacks a similar interest in the continued viability of the Form 

as a means of increasing voter registration in Wisconsin. As outlined in WEC’s 

summary judgment brief below, the Form was not a WEC creation; it has been 

approved for use in Wisconsin since at least 2000, more than fifteen years before 

WEC was created. WEC also does not share Vote.org’s objectives—such as 

registering lower-propensity voters—its unique perspective, or its long-term 

organizational reliance on, and commitment to, the continued acceptance of the 

Form. See Driftless Area Land Conservancy v. Huebsch, 969 F.3d 742, 748 (7th 

Cir. 2020) (explaining that courts must undertake a “contextual analysis” that 

accounts for both “interests and objectives” of proposed intervenor and 

representative party beyond common desire for the same litigation outcome). 

Thus, the harm to WEC if Braun prevailed would bear little resemblance to the 

harm to Vote.org. WEC would not, for instance, need to devote staff time and 

 

2

 As Vote.org’s Chief Executive Officer, Andrea Hailey, explained in an affidavit filed 

with the circuit court, “[i]f WEC was prohibited from using the ... Form, ... Vote.org would 

either have to develop software specific to Wisconsin’s state voter registration form in order to 

assist users with pre-populating the Wisconsin-specific form, or it would need to eliminate 

altogether the option for Wisconsin-based users to download pre-populated voter registration 

forms.” 
No. 2023AP76(D)

6

money to redesign parts of its website. Indeed, because WEC already prepares 

and distributes the Wisconsin-specific form that Braun insists should be used for 

registrations, it is far from clear that WEC would suffer any particularized harm at 

all if Braun prevailed.

C. WEC’s decision not to appeal the summary judgment ruling 

in Braun’s favor makes it clear that the two entities’ interests 

and objectives are not aligned.

¶53 The divergence between WEC’s interest and Vote.org’s interest in 

the Form’s continued availability in Wisconsin is made clear by WEC’s decision 

not to appeal the circuit court’s summary judgment ruling.3 That Vote.org would 

pursue an appeal of the summary judgment ruling, and WEC decided not to, 

throws into stark relief that their interests are not the same. 

¶54 The majority downplays WEC’s decision not to appeal, suggesting 

that if that decision establishes inadequacy, then intervention could be required 

anytime a nonparty offers to take up an appeal that a losing party declines to 

pursue “without a showing of anything more.” Majority, ¶28 n.11. In reaching 

this erroneous conclusion, the majority loses sight of the fact that proposed 

intervenors first need to meet the other three requirements for intervention under 

WIS. STAT. § 803.09(1). It also disregards the interconnectedness of the statutory 

requirements. Vote.org’s timely request and strong showing of threatened 

 

3

 While this appeal was pending, the circuit court ruled on the parties’ summary 

judgment motions, granting Braun’s motion and denying WEC’s motion. Before issuing its 

decision, the court granted Vote.org’s motion for leave to file a brief as amicus curiae supporting 

WEC’s motion. Pursuant to that decision, Vote.org filed its brief in support of WEC’s motion. 

WEC decided not to appeal the circuit court’s summary judgment ruling. Vote.org notified us of 

WEC’s decision and informed us that it would have appealed had it been a party in the case. 

Vote.org also informed us that as a result of the court’s grant of summary judgment, it would 

have to stop offering the Form to Wisconsin registrants. 
No. 2023AP76(D)

7

impairment of its interest lessens the minimal burden to show inadequacy. See 

Helgeland, 307 Wis. 2d 1, ¶39.4

¶55 Contrary to the majority’s legally unsupported suggestion, as 

discussed further in Section II, in numerous cases, including many involving a 

government party, inadequacy is established where the party has determined not to 

appeal, and a proposed intervenor has demonstrated actual impairment of concrete 

interests; the divergence of interests resulting in the proposed intervenor’s inability 

to protect its interests through an appeal is self-evident. See, e.g., Americans 

United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 

305-06 (6th Cir. 1990) (inadequacy established when the city, the proposed 

intervenor’s “original defender,” “abandoned” its role by its failure to appeal, 

destroying the nonparty’s ability to protect its interest); United States v. American 

Tel. & Tel. Co., 642 F.2d 1285, 1293-94 (D.C. Cir. 1980) (intervention permitted 

where “divergence of interests, manifested in the Government’s refusal to appeal, 

[was] evidence of inadequate representation”).

¶56 As our supreme court has made clear, the factors must not be 

considered in isolation: “[t]he analysis is holistic, flexible, and highly 

fact-specific[,]” and “[a] court must look at the facts and circumstances of each 

case ‘against the background of the policies underlying the intervention rule.’” 

Helgeland, 307 Wis. 2d 1, ¶40 (footnotes and quoted source omitted). Here, 

WEC’s decision not to appeal makes clear that it and Vote.org have different 

 

4

 Indeed, the circuit court’s grant of summary judgment has made the injury to 

Vote.org’s interests concrete because it is no longer able to offer the Form to Wisconsin 

registrants and is precluded from appealing the circuit court’s adverse decision because it was 

denied leave to intervene. The adverse ruling, not any voluntary choice on Vote.org’s part,

impairs and impedes its interest in efficiently and economically assisting lower-propensity voters.
No. 2023AP76(D)

8

roles, objectives and interests: WEC does not represent Vote.org’s interests and it 

is not an advocate for Vote.org. Their objectives and interests are not aligned. 

D. Vote.org’s and WEC’s interests and objectives are not 

identical.

¶57 The majority also erroneously finds two presumptions of adequacy 

applicable against Vote.org, thereby increasing Vote.org’s burden of 

demonstrating inadequate representation from “minimal” to “compelling.” 

Majority, ¶¶29-31. The first is that “adequate representation is ordinarily

presumed when a movant and an existing party have the same ultimate objective 

in the action.” Helgeland, 307 Wis. 2d 1, ¶90.5 The majority concludes that this 

presumption applies here because WEC and Vote.org each sought to defeat 

Braun’s lawsuit and establish “that continued use of the Form to register 

Wisconsin voters is lawful.” Majority, ¶29. But as the Court of Appeals for the 

Seventh Circuit has recognized, it is not enough that WEC and Vote.org were 

aligned “in the brute sense that they both want the case dismissed”: 

that mode of analysis operates at too high a level of 

generality.... [A] prospective intervenor must intervene on 

one side of the “v.” or the other and will have the same 

general goal as the party on that side. If that’s all it takes to 

defeat intervention, then intervention as of right will almost 

always fail.

Driftless, 969 F.3d at 748. What the intervention rule requires, the Driftless court

explained, is “a more discriminating comparison of the absentee’s interests and the 

interests of the existing parties.” Id. Courts must undertake a “contextual 

 

5

 The United States Supreme Court has described lower federal court application of this 

presumption as limited to the narrower circumstance “where a movant’s interests are identical to 

those of an existing party.” Berger v. North Carolina Conf. of the NAACP, 597 U.S. 179, 196 

(2022) (emphasis added).
No. 2023AP76(D)

9

analysis” that accounts for both “interests and objectives” beyond the same 

litigation outcome. Id.; see also Wolff, 229 Wis. 2d at 748 (that the county and 

the proposed intervenor sought affirmance of the decision denying a conditional 

use permit and likely “would offer similar arguments in support of their mutually 

desired outcome” did not compel the conclusion that the county would adequately 

represent the intervenor’s interest); Kane County, 928 F.3d at 894 (“[T]he 

government’s representation of the public interest generally cannot be assumed to 

be identical to the individual parochial interest of a particular member of the 

public merely because both entities occupy the same posture in the litigation.” 

(citation omitted)).

¶58 In Driftless, 969 F.3d at 744, the court concluded that several 

transmission companies were entitled to intervene in a lawsuit brought by 

environmental groups against the Wisconsin Public Service Commission to 

invalidate a permit issued by the commission to the companies to build an 

electricity transmission line. Though the transmission companies shared the 

commission’s goal in upholding the permit, the companies were uniquely 

positioned in that they “own, finance, and will operate the transmission line in 

question” and had “substantial sunk and anticipated future investments in the 

power line.” Id. at 748. In contrast, the commission owed duties “to the general 

public, not to the transmission companies,” for which it served as regulator, not 

advocate. Id.; see also Trbovich, 404 U.S. at 538-39 (holding that Secretary of 

Labor did not adequately represent a union member even though they shared 

litigation objective because the Secretary “ha[d] an obligation to protect the ‘vital 

public interest in assuring free and democratic union elections that transcends the 

narrower interest of the complaining union member.’” (quoted source omitted)). 
No. 2023AP76(D)

10

¶59 The present case involves a similar scenario—in addition to its 

objective of increasing registration among lower-propensity voters with the 

Form,Vote.org has a unique financial interest in using the Form in Wisconsin to 

increase voter registration that is not shared by WEC, which exists to manage and 

regulate voter registration and administer Wisconsin’s election statutes. See 

Georgia v. United States Army Corps of Eng’rs, 302 F.3d 1242, 1259 (11th Cir. 

2002) (“We do not believe that a federal defendant with a primary interest in the 

management of a resource has interests identical to those of an entity with 

economic interests in the use of that resource.”). The majority’s invocation of the 

adequacy presumption is limited to a simplistic focus on the entities’ shared 

desired litigation outcome. This approach is at odds with Trbovich and its 

progeny, including Driftless; the analysis requires a more discriminating 

examination of Vote.org’s interests and objectives, which are different enough 

from WEC’s such that the presumption does not apply. 

E. WEC is not “charged by law” to represent Vote.org’s interests.

¶60 The second presumption the majority erroneously deems applicable 

applies “when the putative representative is a governmental body or officer 

charged by law with representing the interests of the absentee.” Helgeland, 307 

Wis. 2d 1, ¶91. In that scenario, “a presumption of adequate representation arises 

whether the would-be intervenor is a citizen or subdivision of the governmental

entity.” Id. In Rise, Inc. v. WEC, No. 2022AP1838, unpublished slip op. ¶36 (WI 

App July 7, 2023), for example, we relied on the undisputed proposition that WEC 

and its counsel were “charged by law with the duty of representing the rights of 

electors,” including the proposed intervenors. Here, in contrast, WEC is not 

“charged by law” with representing Vote.org’s interests. As discussed above, 

WEC is a government entity charged with administering Wisconsin’s elections 
No. 2023AP76(D)

11

laws. See WIS. STAT. § 5.05(1). That WEC, and the Department of Justice 

attorneys who represent it, may be obliged to represent the interests of Wisconsin 

voters is not enough to trigger a presumption that it will adequately represent 

Vote.org’s unique financial interest in the continued viability of the Form in 

Wisconsin and its broader objective to increase voter participation.6 

¶61 Because neither presumption of adequacy applies, Vote.org needed 

only make the minimal showing that WEC’s representation “may be” inadequate. 

It did so and therefore should have been allowed to intervene under WIS. STAT.

§ 803.09(1). 

II. WEC’s Decision Not to Appeal Provides a Basis for Intervention 

for the Purpose of Appealing the Summary Judgment Ruling.

¶62 Separate and apart from Vote.org’s establishment of its right to 

intervene before the circuit court denied its motion, proceedings in the circuit 

court while this appeal was pending provide an additional basis for concluding that 

WEC is not an adequate representative of Vote.org’s interest in this litigation. 

Regardless of whether the divergence of interests was apparent to the circuit court, 

the conflict between WEC’s decision not to appeal and Vote.org’s desire to do so 

creates an independent basis for concluding that WEC is not an adequate 

representative of Vote.org’s interest. Inadequacy is established where the

 

6

 Beyond the fact that WEC is not “charged by law” with representing Vote.org’s 

interests, and that Vote.org has unique interests that are not identical to those of WEC, the 

interplay between the intervention of right factors also distinguishes this case from Rise, Inc. v. 

WEC, No. 2022AP1838, unpublished slip op. (WI App July 7, 2023). There, we viewed the 

second factor—the voter-intervenors’ interest in pursuing a vote-dilution theory—as weak and 

contributing to our conclusion that the intervenors had “complete[ly] fail[ed]” to show that they 

were not adequately represented by the WEC. Id., ¶29. In the present case, by contrast, 

Vote.org’s strong showing on the first three factors lightens its already minimal burden on the 

issue of inadequacy—that WEC’s representation may be inadequate.
No. 2023AP76(D)

12

purported representative has determined not to appeal and a proposed intervenor 

has demonstrated actual impairment of a concrete interest. See, e.g., Solid Waste 

Agency of N. Cook Cnty. v. United States Army Corps of Eng’rs, 101 F.3d 503, 

508-09 (7th Cir. 1996); Americans United, 922 F.2d at 306; Campaign Legal Ctr.

v. FEC, 334 F.R.D. 1, 1 (D.D.C. 2019) (permitting a third party to intervene to 

defend an election-related suit where FEC defaulted after failing to garner enough 

votes to defend the action). Vote.org’s injury is no longer potentially threatened; 

it is concrete. It has been shut out from appellate review of the court’s ruling. 

¶63 The Court of Appeals for the Sixth Circuit illustrated how a 

government entity’s decision not to appeal an adverse ruling can make it an 

inadequate representative of an aligned proposed intervenor:

“[A] decision not to appeal by an original party to the 

action can constitute inadequate representation of another 

party’s interest.” Americans United, 922 F.2d at 306. The 

Secretary of State has not sought interlocutory review of 

the preliminary injunction as it relates to two of the three 

temporarily invalidated provisions, and Michigan’s 

attorney general has not appealed at all. While passively 

tolerating a preliminary injunction pending a final 

resolution of the merits may serve the interests of the State 

of Michigan, it cannot be said to represent the Chamber’s 

interests, in view of its concern with timeliness. The 

decision not to appeal certain aspects of the district court’s 

preliminary injunction may amount to sound litigation 

strategy and a prudent allocation of Michigan taxpayers’

money, but this decision also further illustrates how the 

interests of the state and of the Chamber diverge. The State 

of Michigan has already demonstrated that it will not 

adequately represent and protect the interests held by the 

Chamber. Accordingly, the Chamber has made a sufficient 

showing [of inadequacy] in this regard.

Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997). So too 

here—regardless of its reasons, WEC’s decision not to appeal makes clear its 

inadequacy as a representative for Vote.org. 
No. 2023AP76(D)

13

¶64 Given the progress of this case in the circuit court during this appeal, 

however, and the fact that Vote.org was able to present its arguments to that court 

regarding the substantive merits of Braun’s claims, it would make little sense to 

remand the case for a second consideration of the merits with Vote.org as a party. 

Thus, I would limit the remand in this case to allow Vote.org an opportunity to 

appeal the court’s summary judgment ruling. See, e.g., American Tel. & Tel. Co., 

642 F.2d at 1294 (allowing a party to intervene “only for the limited purpose of 

taking an appeal” where the party showed sufficient possibility that its interest had 

not been adequately represented in the federal government’s decision not to appeal 

a discovery order).

III. The Circuit Court Erroneously Exercised Its Discretion in 

Denying Permissive Intervention.

¶65 I would also reverse the circuit court’s order because it erred in 

denying permissive intervention under WIS. STAT. § 803.09(2). That provision 

provides that “[u]pon timely motion anyone may be permitted to intervene in an 

action when a movant’s claim or defense and the main action have a question of 

law or fact in common.” Id. Whether to allow permissive intervention is a matter 

reserved to the court’s discretion. Helgeland, 307 Wis. 2d 1, ¶120. Thus, the 

court’s decision is not to be disturbed so long as the court provides a “reasoned 

application of the appropriate legal standard to the relevant facts in the case.” See 

id. (citation omitted).

¶66 Even under this deferential standard of review, the circuit court’s 

decision should not stand. First, it is undisputed that Vote.org’s motion was 

timely and that its defense of the Form presents a question of fact or law common 

to the main action. Thus, Vote.org satisfies the two criteria for permissive 

intervention. As it notes, courts have exercised their discretion to allow 
No. 2023AP76(D)

14

intervention in election law cases where these requirements are met. See, e.g., 

Campaign Legal Ctr., 334 F.R.D. at 6; Martin v. Crittenden, 347 F. Supp. 3d 

1302, 1307 (N.D. Ga. 2018).7

¶67 The circuit court concluded that intervention under WIS. STAT.

§ 803.09(2) was not appropriate, but its ruling does not survive even deferential 

scrutiny. At the start of its analysis, the court stated that Vote.org could not 

intervene simply because it timely filed its motion and showed a common issue of 

law or fact; it focused on “what the [c]ourt should be doing in exercising my 

discretion about permissive intervention.” But in trying to identify the factors that 

should inform its exercise of discretion, the court looked to “a lot of the same 

factors that you consider[] under intervention by right” and concluded that they 

also weighed against permissive intervention. 

¶68 This was legal error, for multiple reasons. First, as the majority 

concluded, the circuit court’s analysis of the intervention of right factors was 

erroneous in one respect: the court incorrectly determined that Vote.org had not 

established that its ability to protect its interest would not, as a practical matter, be 

impaired or impeded by a ruling in Braun’s favor. In relying on that faulty 

analysis when examining permissive intervention, the court incorporated its error 

into its consideration of permissive intervention.8

 

7

 WISCONSIN STAT. § 803.09(2) is based on Federal Rule of Civil Procedure 24(b). We 

have previously looked to federal case law interpreting Rule 24(b) for guidance in applying 

§ 803.09(2). See Helgeland v. Wisconsin Muns., 2006 WI App 216, ¶¶38, 42, 296 Wis. 2d 880, 

724 N.W.2d 208, aff’d, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1.

8

 To the extent the circuit court’s consideration of the factors governing intervention of 

right in its analysis of permissive intervention could be read to suggest that a proposed intervenor 

that fails to establish a basis for intervention as of right is also not entitled to permissive 

intervention, that suggestion would not be legally sound. The two forms of intervention are 

(continued)
No. 2023AP76(D)

15

¶69 Other reasons given by the circuit court do not support denial of 

permissive intervention. The court opined that Vote.org’s decision to build its 

voter registration platform on the Form was its own decision and not a basis to 

allow intervention. As the majority recognizes, this was not an appropriate 

consideration upon which to deny intervention. Majority, ¶24 & n.10. The court 

also cited its conclusion that WEC was an adequate representative of Vote.org’s 

interest on the “very narrow and very discrete” issue of whether the Form 

complied with Wisconsin law. As explained above, however, the court’s narrow 

analysis is not supported in applicable case law and fails to account for the 

different interests and motivations of WEC and Vote.org.

¶70 Notably, the circuit court also neglected to discuss the third statutory 

factor upon which WIS. STAT. § 803.09(2) directs the court to base its exercise of 

discretion—“whether the intervention will unduly delay or prejudice the 

adjudication of the rights of the original parties.” By itself, the court’s failure to 

address this factor in its ruling renders its exercise of discretion erroneous. See 

Buck v. Gordon, 959 F.3d 219, 224 (6th Cir. 2020) (concluding that district court 

“made no apparent effort to weigh the benefits of resolving the common question 

of law presented by the [proposed intervenors] against the risk of undue delay or 

prejudice to the original parties. This failure constitutes an abuse of discretion.”). 

¶71 The majority nonetheless maintains that the circuit court’s decision 

can be sustained because the court “heard argument about undue delay during the 

 

governed by distinct factors as set forth in WIS. STAT. § 803.09(1) and (2). A litigant’s failure to 

meet the criteria for one form of intervention does not, by itself, foreclose the other. See Planned 

Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 804 (7th Cir. 2019) (“We have ... cautioned 

courts not to deny permissive intervention solely because a proposed intervenor failed to prove an 

element of intervention as of right.”).
No. 2023AP76(D)

16

course of the motion hearing” and alluded to “the plaintiff’s argument” in its 

decision. Majority, ¶41. In my view, the court’s conclusory remarks fall short of 

what is required when making a discretionary determination.

¶72 Initially, it bears noting that the “argument” about undue delay at the 

motion hearing consisted of one sentence uttered by Braun’s counsel when the 

circuit court asked why Vote.org had not made a showing sufficient for permissive 

intervention. In response, Braun’s counsel said the following: “So, Your Honor, 

Vote.org’s misreading of the permissive intervention statute, so the factors relating 

to delay and common question of law and fact and so on, those are necessary to 

allow permissive intervention, but they’re not sufficient.” This is, at most, a 

reference to, not an argument about, delay. Braun provided no reasoned 

explanation as to why, given the circumstances in the case, permitting Vote.org 

would unduly delay the adjudication of his claims. Thus, when the court referred 

to “the plaintiff’s argument” in its oral ruling, it was not referencing or adopting 

any such reasoning.9 

¶73 “When a circuit court exercises its discretion, it must explain on the 

record its reasons for its discretionary decision ‘to ensure the soundness of its own 

decision making and to facilitate judicial review.’” State v. Scott, 2018 WI 74, 

¶38, 382 Wis. 2d 476, 914 N.W.2d 141 (quoting Klinger v. Oneida County, 149 

Wis. 2d 838, 847, 440 N.W.2d 348 (1989)). That explanation “must demonstrate 

that the circuit court examined the relevant facts, applied a proper standard of law, 

and used a rational process to arrive at a conclusion that a reasonable judge would 

 

9

 Braun also did not address the undue delay or prejudice factor in his brief opposing 

Vote.org’s motion to intervene. 
No. 2023AP76(D)

17

make.” Scott, 382 Wis. 2d 476, ¶39. Here, the court’s reference to “the case law 

that was filed and the plaintiff’s argument” at the conclusion of its remarks fails to 

convey the reasoned explanation required under our case law as to why the 

specific facts here supported a conclusion that intervention would unduly delay 

proceedings or prejudice the litigation of Braun’s claims.10

¶74 For these reasons, I respectfully dissent.

 

10

 Even if we looked for factual support in the record, there is none. Vote.org filed its 

intervention motion less than two weeks after the commencement of the case. It sought to 

intervene to defend the Form against Braun’s allegations that it did not comply with Wisconsin 

law. There is no indication from Vote.org’s answer to Braun’s complaint, which it filed with its 

intervention motion, that Vote.org intended to inject any additional claims into the litigation. 

And the affirmative defenses it raised were largely duplicative of those asserted by WEC.