NO.

20-______

IN THE
Supreme Court of the United States

DONALD J. TRUMP, ET AL.,

Petitioners,
v.

JOSEPH R. BIDEN, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF WISCONSIN

PETITION FOR A WRIT OF CERTIORARI

R. GEORGE BURNETT JAMES R. TROUPIS

CONWAY, OLEJNICZAK & JERRY Counsel of Record
231 S. Adams Street TROUPIS LAW OFFICE
Green Bay, WI 54305 4126 Timber Lane
[email protected] Cross Plains, WI 53528
(608) 305-4889
KENNETH CHESEBRO [email protected]
25 Northern Avenue
Boston, MA 02210
[email protected]

Counsel for Petitioners

December 29, 2020

 QUESTIONS PRESENTED

Article II of the Constitution provides that “[e]ach

State shall appoint” electors for President and Vice
President “in such Manner as the Legislature thereof
may direct.” U.S. Const. art. II, § 1, cl. 2 (emphasis
added). That power is “plenary,” and the statutory
provisions enacted by the Legislature of a State, in the
furtherance of that constitutionally delegated duty,
may not be ignored by state election officials or
changed by state courts. Bush v. Gore, 531 U.S. 98,
104-05 (2000).
Yet during the 2020 presidential election, officials
in Wisconsin, wrongly backed by four of the seven
Justices of the Wisconsin Supreme Court, ignored
statutory provisions which tightly regulate absentee
balloting — identified by the Legislature as
“mandatory,” such that ballots in violation of them
“may not be counted.” They require that absentee
ballots be delivered only by mail or by hand delivery to
the clerk, photo i.d. must be supplied to obtain ballots
(with limited, inapplicable exceptions), and absentee
ballots missing the required witness address may be
“cured” only by the voter, and not by the clerk.
Collectively, this resulted in the counting of at
least 50,125 absentee ballots in heavily Democrat
areas, in violation of the directives of the Wisconsin
Legislature — more than enough to have affected the
outcome of the presidential election in Wisconsin, in
which the vote margin stands at 20,682. The
questions presented are therefore:

1. Whether it violates Article II of the Constitution,

as well as the First and Fourteenth Amendments, for
state courts, on review of a post-election challenge to
the specific ballots cast in a presidential election, to
invoke the non-statutory, judge-made doctrine of
laches to require the counting of ballots that the
Legislature has expressly directed “may not be
counted.”

2. Whether the Wisconsin Supreme Court violated

Article II by upholding the counting of 50,125 absentee
ballots cast in two counties pursuant to the decisions
of election officials to ignore or circumvent state
statutes requiring that absentee ballots be delivered
only by mail or by hand delivery to the clerk; that
photo i.d. be supplied to obtain an absentee ballot
(with limited, inapplicable exceptions); and that
absentee-ballot envelopes must contain all statutorily
required information and may not be altered once
delivered.

3. Whether this Court should set aside the election

result in Wisconsin, as not produced in the “Manner”
directed by the Legislature, and hence as “failed”
within the meaning of 3 U.S.C. § 2, thus affording the
Wisconsin Legislature explicit statutory authority to
appoint presidential electors to represent Wisconsin.

ii
 PARTIES TO THE PROCEEDING

Petitioners:

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

Trump for President, Inc.

Respondents:

Joseph R. Biden, Kamala D. Harris, Milwaukee

County Clerk c/o George L. Christenson, Milwaukee
County Board of Canvassers c/o Tim Posnanski,
Wisconsin Elections Commission, Ann S. Jacobs, Dane
County Clerk c/o Scott McDonell and Dane County
Board of Canvassers c/o Alan Arnsten.

iii
 RULE 29.6 STATEMENT

Petitioner, Donald J. Trump for President, Inc., is

the official campaign committee for Donald J. Trump,
President of the United States and candidate for
reelection to the office of President. Petitioner has no
parent corporation, and no publicly held company
owns 10% or more of its stock.

iv
 TABLE OF CONTENTS

Page:

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . iii

RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ix

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 3

I. Mailed-In and Other Absentee Ballots and

the Importance of Anti-Fraud Mandates . . . . . 4

A. Presumption Against Absentee Ballots . . . 4

B. Specific Statutory Requirements . . . . . . . 6

1. Photo I.D. to Obtain Absentee Ballots . 6

2. Return of Absentee Ballots . . . . . . . . . . 7

3. “Curing” of Missing Information for

Witnesses Who Sign Ballot Envelopes . 7

v
Table of Contents (continued) Page:

II. These Anti-Fraud Mandates Were

Disregarded by Wisconsin Election Officials . . 8

A. Voters Were Encouraged to Lie, to

Avoid the Photo I.D. Requirement,
Using Covid-19 as an Excuse . . . . . . . . . . . 9

B. Extensive Violations of Chain-of-Custody

Controls for Returning Absentee Ballots . 12

C. Tampering With, and Counting of,

Defective Absentee Ballot Envelopes . . . . 14

III. The Wisconsin Supreme Court Tolerated

These Deviations From The Manner in
Which the Legislature Directed the
Election be Conducted . . . . . . . . . . . . . . . . . . 15

A. Procedural History . . . . . . . . . . . . . . . . . . 15

B. Majority Decision . . . . . . . . . . . . . . . . . . . 16

C. Dissenting Opinions . . . . . . . . . . . . . . . . . 18

REASONS FOR GRANTING THE WRIT . . . . . . 21

I. The Wisconsin Supreme Court’s Decision

Invoking the Common-Law Doctrine
of Laches to Avoid a Merits Decision
Violates Article II and Threatens the
Free Speech and Due Process Rights of
Future Candidates . . . . . . . . . . . . . . . . . . . . . 21

vi
Table of Contents (continued) Page:

II. The Wisconsin Supreme Court Violated

Article II by Upholding the Counting of
the 50,125 Absentee Ballots at Issue . . . . . . . 27

III. This Court Should Set Aside the Wisconsin

Election as “Failed” Under 3 U.S.C. § 2,
Thus Affording the Wisconsin Legislature
Explicit Statutory Authority to
Appoint Presidential Electors
to Represent Wisconsin . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix A: Wisconsin Supreme Court

Opinion (Dec. 14, 2020) . . . . . 1a

Appendix B: Wisconsin Supreme Court

Order (Dec. 3, 2020) . . . . . . 85a

Appendix C: Circuit Court, Milwaukee County,

Final Order (Dec. 11, 2020) 105a

Appendix D: Pertinent Statutes . . . . . . . . . . 153a

vii
viii
 TABLE OF AUTHORITIES

Cases: Page:

Arizona Free Enterprise Club PAC v. Bennett,

564 U.S. 721 (2011) . . . . . . . . . . . . . . . . . . . . 26
Bush v. Gore, 531 U.S. 98 (2000)
(per curiam) . . . . . . . . . . . . i, 4, 22-25, 27, 31-32
Bush v. Palm Beach Cty. Canvassing Bd.,
531 U.S. 70 (2000) (per curiam) . . . . . 22, 27, 32
Carlson v. Oconto County Board of Canvassers,
2001 WI App 20, 240 Wis. 2d 438,
623 N.W.2d 195 . . . . . . . . . . . . . . . . . . . . . . . . 23
FCC v. Fox TV Stations, Inc., 567 U.S. 239 (2012) 26
Frank v. Walker, 17 F. Supp. 3d 837
(E.D. Wis. 2014), rev’d on other grounds,
768 F.3d 744 (7th Cir. 2014) . . . . . . . . . . . . . . 6
Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) . . . 29
McPherson v. Blecker, 146 U.S. 1 (1892) . . 4, 22, 29
Olson v. Lindberg, 2 Wis. 2d 229,
85 N.W.2d 775 (1957) . . . . . . . . . . . . . . . 7, 12
Pennsylvania Democratic Party v. Boockvar,
238 A.3d 345 (Pa. Sep. 17, 2020) . . . . . . . . . . . 3
Purcell v. Gonzalez, 549 U.S. 1 (2006) . . . . . . . . . 21
Randall v. Sorrell, 584 U.S. 230 (2006) . . . . . . . . . 26
Republican Party v. Boockvar,
208 L.Ed.2d 266, 2020 U.S. LEXIS 5188,
2020 WL 6304626 (2020) . . . . . . . . . . . . . . . . . . 3
SEIU, Local 1 v. Vos, 2020 WI 67, 102,
393 Wis. 2d 38, 946 N.W.2d 35 . . . . . . . . . . . . 25
Trump v. Wisconsin Elections Comm’n, 2020
U.S. LEXIS 40360 (7th Cir. Dec. 24, 2020) . . . 29
Warf v.Bd. of Elections,
619 F.3d 553 (6th Cir. 2010) . . . . . . . . . . . . . . . 28

ix
Constitution and Statutes: Page:

U.S. Const. art. II, § 1, cl. 2 . . . . . . . . . . . . . . passim

U.S. Const., amend. I . . . . . . . . . . . . . i, 2, 21, 26, 32
U.S. Const., amend XIV . . . . . . . . . . . . . . . . . i, 2, 26
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . ii, 30-31, 33
3 U.S.C. § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 30
3 U.S.C. § 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Wis. Stats. § 5.01(1) . . . . . . . . . . . . . . . . . . . . . . . . . 5
Wis. Stats. § 6.79(2)(a) . . . . . . . . . . . . . . . . . . . . . . . 6
Wis. Stats. § 6.79 (3) . . . . . . . . . . . . . . . . . . . . . . . . . 6
Wis. Stats. § 6.84(1) . . . . . . . . . . . . . . . . . . . . . . 5, 23
Wis. Stats. § 6.84(2) . . . . . . . . . . . . . . . . . . . . . . 6, 24
Wis. Stats. § 6.855(1) . . . . . . . . . . . . . . . . . . 7, 12-14
Wis. Stats. § 6.855(3) . . . . . . . . . . . . . . . . . . . . . . . 12
Wis. Stats. § 6.86(1)(ac) . . . . . . . . . . . . . . . . . . . . . . 6
Wis. Stats. § 6.86(1)(ar) . . . . . . . . . . . . . . . . . . . . . . 6
Wis. Stats. § 6.86(2) . . . . . . . . . . . . . . . . . . . . . . . . 10
Wis. Stats. § 6.86(2)(a) . . . . . . . . . . . . . . . . . . . . 6, 10
Wis. Stats. § 6.86(3)(c) . . . . . . . . . . . . . . . . . . . . . . . 7
Wis. Stats. § 6.87(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6
Wis. Stats. § 6.87(2) . . . . . . . . . . . . . . . . . . . 7, 14, 27
Wis. Stats. § 6.87(4)(b) . . . . . . . . . . . . . . . . . . . . . . . 7
Wis. Stats. § 6.87(4)(b)1 . . . . . . . . . . . . . . . 12-14, 27
Wis. Stats. § 6.87(4)(b)2 . . . . . . . . . . . . . . . . . . . . . . 7
Wis. Stats. § 6.87(6d) . . . . . . . . . . . . . . . . . . 8, 14, 27
Wis. Stats. § 6.87(9) . . . . . . . . . . . . . . . . . . . . . . . . . 8
Wis. Stats. § 6.88(1) . . . . . . . . . . . . . . . . . . . . . . . . 12
Wis. Stats. § 6.96(2)(b) . . . . . . . . . . . . . . . . . . . 10, 28
Wis. Stats. § 7.15(2m) . . . . . . . . . . . . . . . . . . . . . . . 12
Wis. Stats. § 9.01 . . . . . . . . . . . . . . . . . . . 9, 15, 20, 23
2015 Wis. Act 261, §78 . . . . . . . . . . . . . . . . . . . . . . . 8

x
Books: Page:

Building Confidence in U.S. Elections:

Report of the Commission on Federal
Election Reform (Sept. 2005) . . . . . . . . . . . . . . . 4
William H. Rehnquist, Centennial Crisis:
The Disputed Election of 1876 (2005) . . . . 31-32

Articles:

Jack M. Balkin, Bush v. Gore and the

Boundary Between Law and
Politics, 110 Yale L.J. 1407 (2001) . . . . . . . . . . 31
Reid J. Epstein, “A Conservative Justice in
Wisconsin Says He Followed the Law,
Not the Politics,” N.Y. Times,
Dec. 28, 2020, available
at https://nyti.ms/3mAUOB0 . . . . . . . . . . . . . . 17
Peter Navarro, “The Immaculate Deception:
Six Key Dimensions of Election
Irregularities” (Dec. 17, 2020), available at
https://www.scribd.com/document/488534556/
The-Immaculate-Deception-12- 15-20-1 . . . . . 22
Dan O’Donnell, “Dem State Senator, a Biden
Elector, Falsely Claims Indefinite Confinement,”
Dec. 14, 2020, https://newstalk1130.iheart.com/
featured/common-sense-central/content/
2020-12-14-dem-state-senator-claims-indefinite-
confinement-is-not-confined-to-home . . . . . . . . 11

xi
Articles: Page:

Dan O’Donnell, “Second Biden Elector in

Wisconsin Falsely Claimed Indefinite
Confinement,” Dec. 16, 2020, https://
newstalk1130.iheart.com/featured/
common-sense-central/content/2020-12-16-
second-biden-elector-in-wisconsin-falsely-
claimed-indefinite-confinement . . . . . . . . . . . . 11
Ivan Pentchoukov, “Electors in 7 States Cast
Dueling Votes for Trump,” The Epoch Times
(Dec. 15, 2020, available at
https://www.theepochtimes.com/mkt_app/
electors-in-7-states-cast-dueling-
votes- for-trump_3620059.html . . . . . . . . . . . . 31
Haisten Willis, et al., “As electoral college
formalizes Biden’s win, Trump backers hold
their own vote,” Wash. Post, Dec. 14, 2020
(available at https://www.washingtonpost.com/
politics/ trump-backers-electoral-college/2020/
12/14/f0fcc59c-3e52-11eb-9453-fc36ba051781
_story.html) . . . . . . . . . . . . . . . . . . . . . . . . . 30-31

xii
 Petitioners are the President and Vice President of
the United States, currently seeking reelection to those
offices. Petitioners respectfully petition for a writ of
certiorari to review the judgment of the Wisconsin
Supreme Court concerning that State’s electoral votes.
Competing slates of electoral votes cast on December
14, 2020, in Wisconsin and in six other still-contested
States, are set to be counted in Congress beginning on
January 6, 2021. To minimize the prospect of delays in
that electoral count, petitioners request that this
petition be given expedited consideration and be
consolidated with any other petitions for certiorari
raising similar issues that the Court deems worthy of
review, including two filed from Pennsylvania.

OPINIONS BELOW

The opinion of the Supreme Court of Wisconsin, of

which review is sought, dated December 14, 2020, is
reported at 2020 WI 91, 2020 Wisc. LEXIS 193, 2020
WL 7331907, and reprinted in Pet. App. 1a-21a.1
That Court’s earlier order, dated December 3,
2020, denying leave to commence an original action, is
unreported, and reprinted in Pet. App. 85a-87a.
The Final Order of the Circuit Court of Milwaukee
County, dated December 11, 2020, which was the
subject of review below, is unreported, and reprinted in
Pet. App. 105a-152a.

1
References to the attached Appendix are styled: “Pet.
App. __a.” References to the two-volume Petitioners’ Appendix
filed in the Wisconsin Supreme Court on Dec. 11, 2020, are styled:
“__ WI App. __.” To facilitate expedited review, copies of that
Appendix have been posted at https://drive.google.com/file/d/
1Dbdmf2YrrunoRVd65xK-cXeMO4DsYdbS/view?usp=sharing and
https://drive.google.com/file/d/1lqN48WqQ-VjF9yj72CdPrYlwFo
dri2oC/view?usp=sharing.
 JURISDICTION

The decision of the Supreme Court of Wisconsin

was entered on December 14, 2020. Pet. App. 1a. This
Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

Article II, § 1, cl. 2, of the United States Constitu-

tion provides: “Each State shall appoint, in such
Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may
be entitled in the Congress.”
The First Amendment of the Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.

The Fourteenth Amendment of the Constitution,

§ 1, provides, in relevant part: “nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
Pertinent provisions from Title 3 of the U.S. Code
and Chapters 5, 6, 7 & 9 of the Wisconsin Statutes are
reprinted in Pet. App. 153a-173a.

2
 STATEMENT OF THE CASE

In key jurisdictions across our nation, with respect

to the presidential election held on November 3, 2020,
state and local election officials and courts altered or
ignored state election laws, in violation of the federal
Constitution’s Article II assignment to State
Legislatures of the plenary authority over the
“Manner” of choosing electors, a matter of undoubted
importance. See, e.g., Republican Party v. Boockvar,
208 L.Ed.2d 266, 267, 2020 U.S. LEXIS 5188, 2020 WL
6304626 (2020) (Statement of Alito, J., joined by
Thomas and Gorsuch, JJ.) (“[T]he constitutionality of
the [Pennsylvania] Supreme Court’s decision [in
Pennsylvania Democratic Party v. Boockvar, 238 A.3d
345 (Pa. Sep. 17, 2020)] . . . has national importance,
and there is a strong likelihood that the State Supreme
Court decision violates the Federal Constitution.”).2
This case presents in stark relief several of the
violations that occurred in Wisconsin. Together, those
violations affected more than the current margin of
difference between petitioners and former Vice
President Biden and Senator Harris.

2
See also Motion for Leave to File Bill of Complaint, State
of Tex. v. Commonwealth of Pa., et. al, No. 22O155 (U.S. S. Ct.,
filed Dec. 8, 2020), in which the State of Texas identified
numerous provisions of state law that were altered or ignored in
four key states — the Commonwealth of Pennsylvania and the
States of Georgia, Michigan, and Wisconsin. On December 11, this
Court denied that motion for lack of standing. Petitioners’
standing in this case is not at issue.

3
I. Mailed-In and Other Absentee Ballots and
the Importance of Anti-Fraud Mandates

After the presidential election controversy in

Florida in 2000, a bipartisan commission headed by
former Democrat President Jimmy Carter and former
Republican Secretary of State James Baker concluded
that mailed-in ballots are “the largest source of
potential voter fraud.” Building Confidence in U.S.
Elections: Report of the Commission on Federal
Election Reform, at 46 (Sept. 2005) (hereinafter,
“Carter-Baker Report”).3
Wisconsin’s Legislature, which possesses “plenary”
power under Article II of the U.S. Constitution to
determine the manner for choosing Wisconsin’s
presidential electors, see Art. II, § 1, cl. 2; McPherson
v. Blecker, 146 U.S. 1, 25 (1892); Bush v. Gore, 531
U.S. 98, 104 (2000) (per curiam) (“Bush II”), has long
been concerned about the potential for fraud with
regard to mailed-in and other absentee ballots, and has
enacted a presumption against counting such ballots
unless they are cast in strict compliance with statutory
requirements.

A. Presumption Against Absentee Ballots

The Wisconsin Legislature has enacted a general

presumption under which every effort should be made
to count a voter’s election-day ballot, cast in person,
even if statutory provisions have not been satisfied
with exactitude. “Except as otherwise provided,” its
election code “shall be construed to give effect to the

3
At: https://www.legislationline.org/download/id/1472/
file/3b50795b2d0374cbef5c29766256.pdf.

4
will of the electors, if that can be ascertained from the
proceedings, notwithstanding informality or failure to
fully comply with some of their provisions.” Wis. Stats.
§ 5.01(1).
By contrast, that general presumption does not
apply to absentee ballots. For the Wisconsin
Legislature has determined that absentee balloting is
rife with the potential for fraud and other abuse, and
so absentee balloting must be strictly regulated:

The legislature finds that voting is a

constitutional right, the vigorous exercise of
which should be strongly encouraged. In
contrast, voting by absentee ballot is a
privilege exercised wholly outside the
traditional safeguards of the polling place. The
legislature finds that the privilege of voting by
absentee ballot must be carefully regulated to
prevent the potential for fraud or abuse; to
prevent overzealous solicitation of absent
electors who may prefer not to participate in
an election; to prevent undue influence on an
absent elector to vote for or against a
candidate or to cast a particular vote in a
referendum; or other similar abuses.

Wis. Stats. § 6.84(1). Accordingly, the Wisconsin

Legislature has directed, with respect to several
“matters relating to the absentee ballot process,” that
the relevant statutory provisions

shall be construed as mandatory. Ballots cast

in contravention of the procedures specified in
those provisions may not be counted. Ballots
counted in contravention of the procedures

5
 specified in those provisions may not be
included in the certified result of any election.

Id., § 6.84(2).

B. Specific Statutory Requirements

Three such provisions are implicated in this case.4

1. Photo I.D. to Obtain Absentee Ballots

The Wisconsin Legislature requires, with very

limited exceptions, that all eligible voters must provide
photographic proof of identity in order to register to
vote, and each time they vote. Wis. Stats. §§ 6.79(2)(a),
(3), and 6.87(1). Photo i.d. is also required when
requesting to vote by absentee ballot. Wis. Stats. §§
6.86(1)(ac), (ar) & 6.87(1).
The limited exceptions include an exception where
a voter certifies that he or she is “indefinitely confined
because of age, physical illness or infirmity or is
disabled for an indefinite period.” Wis. Stats.
§ 6.86(2)(a). In order to qualify for this exception, a
voter must be “elderly, infirm or disabled and
indefinitely confined . . . .” Frank v. Walker, 17 F.
Supp. 3d 837, 844 (E.D. Wis. 2014) (emphasis added),
rev’d on other grounds, 768 F.3d 744 (7th Cir. 2014).
Only voters who meet this strict definition of
“indefinitely confined” in § 6.86(2)(a) are eligible to
sign a statement to that effect and then “may, in lieu

4
Petitioners’ objection below to a fourth provision, involv-
ing the requirement that a “written application” be filed before an
absentee ballot is received, see Pet. App. 14a-15a, 48a-50a, is no
longer being pressed in these proceedings.

6
of providing proof of identification, submit with his or
her absentee ballot a statement . . . which contains the
name and address of the elector and verifies that the
name and address are correct.” Wis. Stats. § 6.87(4)
(b)2.

2. Return of Absentee Ballots

The Wisconsin Legislature has also provided that

there are two, and only two, ways that a voter may
return an absentee ballot. No “drop boxes” or the
equivalent are permitted under Wisconsin law.
Instead, absentee ballots must personally be returned
by the voter — either mailed to the clerk, or else
delivered in person to the clerk’s office. Wis. Stats.
§ 6.87(4)(b). Regarding personal delivery to the clerk’s
office, in general this means that there can be only one
place in each municipality where ballots can be
returned. Alternate locations can only be established
through municipal authorities’ compliance with very
stringent rules set out in Wis. Stats. § 6.855(1). See
Olson v. Lindberg, 2 Wis. 2d 229, 236, 85 N.W.2d 775
(1957).

3. “Curing” of Missing Information for

Witnesses Who Sign Ballot Envelopes

Further, the Wisconsin Legislature has provided

that absentee ballots must be witnessed, and must be
returned to the municipal clerks in a secure, sealed
ballot-certification envelope. Wis. Stats. § 6.86(3)(c).
The certification on the outside of the envelope
provides a place where the witness must sign and
provide his or her address. Wis. Stats. § 6.87(2). A
missing address is fatal: “If a certificate is missing the

7
address of a witness, the ballot may not be counted.”
Wis. Stats. § 6.87(6d) (emphasis added). As recently as
2015, the Wisconsin Legislature reaffirmed the
essential requirement that the ballot envelope
certificate must be fully and accurately completed by
the voter and the witness. 2015 Wis. Act 261, § 78
(creating Wis. Stats. § 6.87(6d)).
The Legislature has provided one, and only one,
legal method for remedying an improperly completed
absentee ballot certification (such as a certification
lacking the witness’s address), and that is to return it
to the voter:

If a municipal clerk receives an absentee ballot

with an improperly completed certificate or
with no certificate, the clerk may return the
ballot to the elector, inside the sealed envelope
when an envelope is received, together with a
new envelope if necessary, whenever time
permits the elector to correct the defect and
return the ballot . . .

Wis. Stats. § 6.87(9).

II. These Anti-Fraud Mandates Were

Disregarded by Wisconsin Election Officials

Following the initial canvass which announced

that former Vice President Biden and Senator Harris
had won Wisconsin by 20,427 votes out of 3,240,579
votes cast (a 0.620% margin),5 petitioners filed for

5
Wisconsin Elections Commission, Unofficial Results for
the November 3, 2020 General Election, available at
https://elections.wi.gov/elections-voting/results.

8
recounts in Milwaukee and Dane Counties, pursuant
to Wis. Stats. § 9.01(1). Pet. App. 6a. The 50,125
absentee ballots challenged herein were cast in areas
which heavily favored former Vice President Biden
over President Trump — by more than 70 to 306 —
and, in particular, through vote-drive events designed
to favor Biden, 1 WI App. 104, 117-18, making it
certain that these illegal ballots were more than
enough to change the result. During the recount,
which lasted from November 20 to 29, petitioners
established that each of these anti-fraud mandates was
disregarded by the election officials who administrated
the election. The county and city officials in charge of
the recounts nonetheless insisted on counting the
affected ballots. Id. 36a-40a.
As Chief Justice Roggensack observed, without
objection from any of the six other Justices of the
Wisconsin Supreme Court, no pertinent facts are in
dispute; the parties differ only on the legal conclusions
to be drawn therefrom. Id. 41a, note 5.

A. Voters Were Encouraged to Lie, to

Avoid the Photo I.D. Requirement,
Using Covid-19 as an Excuse

Under Wisconsin law, clerks are responsible for

ensuring that only qualified voters receive absentee
ballots, and they must guard against prospective
voters abusing the ability to avoid supplying photo i.d.

6
In Milwaukee and Dane Counties, Biden received
577,648 of a total of 804,451 votes cast, 71.8% of the total vote.
WEC Canvass Reporting System County by County Report, Nov.
30, 2020, available at https://elections.wi.gov/sites/elections.wi.
gov/files/County%20by%20County%20Report%20-%20President
%20of%20the%20United%20States%20post%20recount.pdf.

9
on the basis that they claim to be “indefinitely confined
because of age, physical illness or infirmity or is
disabled for an indefinite period.” Wis. Stats.
§ 6.86(2)(a). The lists of voters thus entitled to vote
without supplying photo i.d. “shall be kept current
through all possible means,” and “[t]he clerk shall
remove the name” of anyone on the list “upon receipt
of reliable information that” the voter no longer
qualifies as “indefinitely confined.” Wis. Stats.
§ 6.96(2)(b).
Rather than monitor the list of “indefinitely
confined” voters for abuses, the clerks of Milwaukee
and Dane Counties instead used all possible means to
encourage voters to falsely qualify under this exception
to the photo i.d. requirement. On March 25, 2020, the
clerks issued statements advising the public that
because of the Covid-19 “Safer at Home” precautions
issued by the Wisconsin Governor, prospective voters
were entitled to “declare themselves ‘indefinitely
confined under Wis. Stats. § 6.86(2) due to illness . . .
thereby avoiding the legal requirement to present or
upload a copy of the voter’s proof of identification when
requesting an absentee ballot.” 1 WI App. 78-80 (Order
of March 31, 2020, Jefferson v. Dane, No. 2020AP557-
OA at 2).
Unsurprisingly, along with the clerks’ failure to
police the “indefinitely confined” status came an
explosion of voters claiming such status to obtain
ballots without providing photo i.d. In Milwaukee, for
example, there were only 6,000 voters claiming that
status at the start of 2020, 1 WI App. 38; by November
the number had mushroomed to over 51,060. Id. 128.
The recount proceeding established that 19,488 of
them obtained ballots after the unlawful advice issued
by the clerk on March 25, and ultimately were able to

10
cast ballots without ever providing identification. Id.
81-83, 128. Similarly, 8,907 voters in Dane County
obtained ballots after March 25 without providing
identification, id. 85-87, for a total of 28,395 ballots
cast that were tainted by this unlawful advice and the
clerks’ subsequent failure to scrutinize applications to
prevent this unlawful advice from being acted on.7
Petitioners objected to counting any of these ballots
and requested that the ballots be excluded from the
results. This was refused; the canvassing boards held
that despite having issued their unlawful advice, the
clerks had no obligation to verify that the individuals
who claimed to be “indefinitely confined” after March
25 actually qualified for that status. Id. 63, 82-83, 85-
86.

7
1 WI App. 86, 173. So widespread and blatant was the
fraud that, it turns out, two of the ten electors who cast electoral
votes for the Biden-Harris ticket, who thus proved quite able to
venture outside their homes, were among those who obtained
absentee ballots by falsely claiming (as revealed by
contemporaneous social-media posts) to be “indefinitely confined.”
Dan O’Donnell, “Dem State Senator, a Biden Elector, Falsely
Claims Indefinite Confinement,” Dec. 14, 2020,
https://newstalk1130.iheart.com/featured/common-sense-central
/content/2020-12-14-dem-state-senator-claims-indefinite-confine
ment-is-not-confined-to-home; Dan O’Donnell, “Second Biden
Elector in Wisconsin Falsely Claimed Indefinite Confinement,”
https://newstalk1130.iheart.com/featured/common-sense-central
/content/2020-12-16-second-biden-elector-in-wisconsin-falsely-cl
aimed-indefinite-confinement.

11
 B. Extensive Violations of Chain-of-Custody
Controls for Returning Absentee Ballots

To ensure a tight chain of custody over ballots,

Wisconsin statutes also provide that there are only two
means by which an absentee ballot can lawfully be
returned, after being sealed in the return envelope:
“The envelope shall be mailed by the elector, or
delivered in person, to the municipal clerk . . . .” Wis.
Stats. § 6.87(4)(b)1 (emphasis added). It is clear under
this statutory regime that a voter must personally
return the ballot (i.e., may not use an agent). Olson v.
Lindberg, 2 Wis. 2d 229, 236-38, 85 N.W.2d 775 (1957)
(interpreting earlier version of statute).
To maintain a strict chain of custody, once the
absentee ballot is personally returned by the voter,
Wisconsin statutes require that “the clerk shall enclose
it, unopened, in a carrier envelope which shall be
securely sealed and endorsed with the name and
official title of the clerk,” and a notation that the
envelope can only be opened on election day, as part of
the counting of votes. Wis. Stats. § 6.88(1). To ensure
that the chain of custody remains unbroken, absentee
ballots can only be delivered to the clerk’s regular
office or to an alternate site, established by the
municipal governing body and staffed by government
employees. Wis. Stats. § 6.855(1) & (3).8

8
Further, Wis. Stats. § 7.15(2m) provides that if an
alternate site is established, “the municipal clerk shall operate
such site as though it were his or her office for absentee ballot
purposes and shall ensure that such site is adequately staffed.” It
was conceded below that there were no such alternate sites
relevant in this case that were established by “[t]he governing
body of a municipality.” Wis. Stats. § 6.855(1). In Madison, for
example, 206 separate locations were established by the clerk’s

12
 The Wisconsin statutes requiring that voters
personally return their absentee ballots to a staffed
office of the clerk (either by mail or in person)
obviously rule out practices used in other states which
permit ballots to be left in unstaffed drop boxes, or to
be collected by partisan volunteers or others hired to
act as voters’ agents – so-called “ballot harvesters.”
First, these practices were nonetheless used in the
City of Madison (part of Dane County) to unlawfully
collect 17,271 ballots at issue in this case. Under a
program dubbed “Democracy in the Park,” the city
clerk placed poll workers in 206 locations on
September 26 and October 3, 2020. 1 WI App. 100, 120,
123. These locations mimicked polling places,
displaying signs identical to those used for elections,
and appearing in every way to be voting sites,
excepting only that ballots were not distributed. Id.
101-13, 117-20. These ad hoc sites for the harvesting of
ballots violated Wisconsin law because they were never
approved by the Madison Common Council, see pp. 12-
13, note 8, supra, because they were geographically
dispersed, rather than “located as near as practicable”
to the clerk’s office, Wis. Stats. § 6.855(1), and because
the ballot envelopes were not delivered by mail or in
person to the municipal clerk. Wis. Stats.
§ 6.87(4)(b)(1).
Second, because these sites were coordinated
with, and heavily promoted by, the Biden-Harris

office, acting unilaterally. 1 WI App. 123. That none of them

qualified as alternate sites is evident given that the regular clerk’s
office continued in operation for absentee balloting. See Wis. Stats.
§ 6.855(1) (requiring that if an alternate site is established, “no
function related to voting and return of absentee ballots that is to
be conducted at the alternate site may be conducted in the office
of the municipal clerk”).

13
campaign, 1 WI App. 104, 117-18, they could not be
squared with the Legislature’s admonition in Wis.
Stats. § 6.87(4)(b)(1) that “no site may be designated
that affords an advantage to any political party.
Petitioners objected to the counting of these 17,271
ballots received during the “Democracy in the Park”
events. Id. 100, 119. The Dane County Board of
Canvassers nonetheless held against petitioners and
counted all the ballots. Id. 120-121.

C. Tampering With, and Counting of,

Defective Absentee Ballot Envelopes

Another 4,469 absentee ballots were isolated by

petitioners as unlawfully counted because the ballot
envelope certificates violated the requirement, recently
reaffirmed by the Legislature, that they be fully and
accurately completed by both the voter and the
witness, including the witness’s address and the clerk’s
initials (if the absentee ballot was cast in person, Wis.
Stats. § 6.87(2)) — and that any deficiency can be
corrected only by the voter. Id. § 6.87(6d). See pp. 7-8,
supra.
Ignoring the sole means of “curing” deficient ballot
envelope certificates identified by the Legislature,
employees of the municipal clerks’ offices in Milwaukee
and Dane Counties took it upon themselves to search
for missing information on the internet and write it on
the ballot envelope.9 During the recount, petitioners’

9
The City of Milwaukee used red ink to signify that an
address had been added or altered by the clerk’s office. 1 WI App.
38; see also Youtube.com, Milwaukee Central Count Training
Video (April 1, 2020), https://youtu.be/hbm-pPaYIqk (visited
December 28, 2020) (City of Milwaukee training video indicating,

14
legal objection to these ballots was rejected.10 Included
in the final vote totals were 2,231 absentee ballots in
Milwaukee County with incomplete or clerk-altered
absentee envelopes, 1 WI App. 203-13, and 2,238 such
ballots in Dane County, id. 56-57, 152; see also id. 139,
143, 147, 150-51, for a total of 4,469 absentee ballots.

III. The Wisconsin Supreme Court

Tolerated These Deviations From the
Manner in Which the Legislature
Directed the Election be Conducted

A. Procedural History

On December 1, 2020, one day after the Wisconsin

Elections Commission found, following the recount,
that the Biden-Harris ticket had received 20,682 more
votes than petitioners, petitioners filed for immediate
review in the Wisconsin Supreme Court, invoking its
original jurisdiction. Pet. App. 40a. The Court denied
review on December 3, Pet. App. 85a-87a, with the
deciding vote cast by Justice Brian Hagedorn, who
concluded that Wis. Stats. § 9.01 required that all
challenges to the result of a recount must be decided
through an appeal filed with the circuit court. Pet.

from 10:40 to 11:15 of the video, that election officials may insert
a missing witness address in “red ink,” which is contrary to law).
In other municipalities, the clerks initialed the certification next
to the addresses they added. 1 WI App. 140, 144.
10
1 WI App. 58, 60-61. During the recount, it was
uncontested that the objected-to ballots were either incomplete or
altered. Having noted the existence of incomplete and altered
envelopes, the canvassing boards of both counties nonetheless
allowed them to be counted. 1 WI App. 62-65, 67-68, 72, 74.

15
App. 87a-89a.
Petitioners’ appeals were, accordingly, filed the
same day, and after briefing and oral argument, were
decided on December 11, with the circuit judge
assigned to the consolidated appeals reaching the
merits of all of petitioners’ arguments, but denying all
relief sought. Id. 105a-06a. Later that day, petitioners
filed an appeal in the Wisconsin intermediate appellate
court, along with a motion with the Wisconsin
Supreme Court seeking to bypass the intermediate
appellate court, which was granted. Id. 7a. That Court
heard oral argument on December 12,11 and issued its
ruling on December 14.

B. Majority Decision

In his opinion for the 4-to-3 majority, Justice

Hagedorn declined (with one exception) even to review
the merits of the circuit court’s rulings on petitioners’
objections. He issued this decision notwithstanding his
ruling eleven days earlier recognizing that, per the
Wisconsin Legislature, an aggrieved candidate has an
appeal as of right from a recount.
As to petitioners’ objection to the 17,271 absentee
ballots in Madison that were not returned by mail or in
person to the clerk’s office, and the 4,469 absentee
ballots in Dane and Milwaukee Counties that had
missing or altered ballot certifications, the majority
found these objections barred by the common-law
doctrine of laches. Here the Justices contended that
petitioners should have brought suit earlier, even

11
Video of the oral argument is available at
https://wiseye.org/2020/12/12/wisconsin-supreme-court-oral-arg
ument-donald-j-trump-v-joseph-r-biden/.

16
though they had not been harmed by the relevant
practices until the ballots at issue were counted in
violation of Wisconsin statutes. Pet. App. 9a-20a.12
The majority did, however, address petitioners’
objection that the clerks of both Milwaukee and Dane
Counties had on March 25, 2020, explicitly encouraged
voters to lie in order to obtain absentee ballots without
providing photo i.d., by using Covid-19 as an excuse to
claim they were “indefinitely confined because of age,
physical illness or infirmity” — and had done nothing
to scrutinize the veracity of the 28,395 absentee ballots
cast by voters who afterwards obtained that status.
See pp. 9-11, supra. Ignoring the rank unlawfulness of
the clerks’ actions and the statutory obligation of the
clerks to police the voting rolls for voters abusing this
status, the majority refused any remedy on the basis
that petitioners had failed to prove a negative: they
had not met their supposed burden of affirmatively
proving, with respect to the 28,395 tainted ballots, that
the voters who cast them were not “in fact indefinitely
confined . . . .” Pet. App. 8a-9a.

12
Despite the majority decision written by Justice
Hagedorn having refused to reach the merits of these claims based
on the doctrine of laches, Justice Hagedorn curiously issued an
opinion concurring in his own majority opinion, in which he
volunteered additional views, albeit tentative — “[a] comprehen-
sive analysis” not being “possible or appropriate in light of the
abbreviated nature of this review,” Pet. App. 23a — on aspects of
the merits that the majority had not decided. Id. 23a-34a.
Subsequently he granted an interview to the New York Times in
which he issued a further opinion on the case: that “[t]here was
certainly nothing in the nature of the law or the facts that
supported getting anywhere close” to “throw[ing] out” the election.
Reid J. Epstein, “A Conservative Justice in Wisconsin Says He
Followed the Law, Not the Politics,” N.Y. Times, Dec. 28, 2020,
available at https://nyti.ms/3mAUOB0.

17
 C. Dissenting Opinions

Each of the three dissenting Justices wrote

dissents, joined by their dissenting colleagues.
First, Chief Justice Roggensack accused the
majority of cowardice — of lacking “the courage” to
address the merits of the case, and opting instead to
“throw the cloak of laches over numerous problems”
with the election. Pet. App.35a. “[F]our justices on this
court,” she complained, “cannot be bothered with
addressing what the statutes require to assure that
absentee ballots are lawfully cast.” Id.
On the merits, writing for all three dissenters,
Chief Justice Roggensack agreed with petitioners’
objection to the 4,469 ballot envelopes with missing or
altered information. Id. 43a-48a. She also agreed with
petitioners’ objection to the 17,271 absentee ballots
collected in 206 locations during Madison’s “Democracy
in the Park” voting drive that had been promoted by
the Biden-Harris campaign. Rejecting the clerks’
suggestion that these ballots had been validly
collected, she concluded that there was no conceivable
rationale for finding that these ballots could be legally
counted. Id. 51a-54a.
As to the remaining 28,395 challenged ballots,
Chief Justice Roggensack agreed with petitioners that
the county clerks had violated the Wisconsin statutes
by encouraging voters to use Covid-19 as an excuse to
falsely claim they were “indefinitely confined,” but she
refrained from further analysis based on questions
about the completeness of the record concerning the
appropriate remedy. Id. 50a-51a.
Second, Justice Ziegler likewise criticized the
majority for abdicating its responsibility to decide the
issues presented by the case, noting that “the majority

18
opinion fails to even mention, let alone analyze, the
pertinent Wisconsin statutes.” Id. 56a. She particularly
targeted the majority’s reliance on laches to justify not
reaching the merits, suggesting it was a pretextual
excuse:

“[O]ur constitutional duty requires us to

declare what the law is. Quite obviously,
defaulting to laches and claiming that it is
“just not possible” is directly contradicted by
the majority author’s own undertaking. If it is
important enough to address in his
concurrence, then it should also satisfy the
discretionary standard which overcomes the
application of laches. Instead of undertaking
the duty to decide novel legal issues presented,
this court shirks its institutional responsibility
to the public and instead falls back on a self-
prescribed, previously unknown standard it
calls laches.

Id. 56a-57a. In her view, applying the doctrine of

laches was entirely inappropriate: the majority’s view
that this lawsuit is “a challenge to general election
policies” is incorrect, because “this lawsuit is a
challenge to specific ballots that were cast in this
election, contrary to the law,” id. 61a, under a statute
commanding that such ballots cannot be counted. Id.
68a-69a.
Finally, Justice Rebecca Grassl Bradley
excoriated the majority as fundamentally anti-
democratic, for relying on “the discretionary doctrine
of laches as a mechanism to avoid answering questions
of law the people of Wisconsin elected us to decide,” id.
71a, thus denying “the citizens of Wisconsin any

19
judicial scrutiny of the election whatsoever.” Id. 79a.
Rejecting the majority’s view that this lawsuit could
have been brought years earlier, she noted that Wis.
Stats. § 9.01(11) authorized only post-election review
of specific ballots, and pointed out that the “rules” the
majority claimed should have been challenged earlier
consisted merely of non-binding guidance by an
unelected election commission, which cannot supplant
statutory mandates. Id. 75a-77a.
“When the state’s highest court refuses to uphold
the law, and stands by while an unelected body of six
commissioners rewrites it,” Justice Bradley observed,
“our system of representative government is
subverted.” Id. 71a. She was particularly troubled
about this result being reached after one Justice in the
majority complained during oral argument, addressing
the attorney representing the President, that: “You
want us to overturn this election so that your king can
stay in power, and that is so un-American.”13 “When a
justice displays such overt political bias, the public’s
confidence in the integrity and impartiality of the
judiciary is destroyed.” Id. Justice Bradley concluded:

The majority’s failure to act leaves an indelible

stain on our most recent election. It will also
profoundly and perhaps irreparably impact all

13
Pet. App. 72a, note 1 (quoting Justice Jill J. Karofsky).
This exchange, with Justice Karofsky reading from prepared
remarks, can be viewed in the oral argument video, see p. 16, note
11, supra, starting at 1:34:20. The blatant partisanship animat-
ing the majority vote, noted by Justice Bradley, was also illus-
trated by Justice Karofsky’s labored effort to suggest a racist
motive behind the President’s selection of which counties to
recount. See video at 0:04:15 to 0:05:00 (asserting that lawsuit
“smacks of racism”).

20
 local, statewide, and national elections going
forward, with grave consequence to the State
of Wisconsin and significant harm to the rule
of law.

Id. 82a.

REASONS FOR GRANTING THE WRIT

I. The Wisconsin Supreme Court’s Decision

Invoking the Common-Law Doctrine
of Laches to Avoid a Merits Decision
Violates Article II and Threatens the
Free Speech and Due Process Rights of
Future Candidates

Justice Bradley was correct in warning of grave

consequences for our nation, and particularly for the
rule of law, if the decision below is left undisturbed.
Petitioners properly and timely invoked Wisconsin
statutes entitling them to judicial review as of right on
their well-documented claims that a sizable number of
absentee ballots — more than enough to make the
difference in this election — were cast in violation of
mandatory Wisconsin statutes. Yet the majority opted
to “throw the cloak of laches over” the case, and
refused to resolve the merits. Pet. App. 35a
(Roggensack, C.J.).
“Confidence in the integrity of our electoral
processes is essential to the functioning of our
participatory democracy.” Purcell v. Gonzalez, 549 U.S.
1, 4 (2006). Accordingly, this Court has emphasized the
importance of state courts acting in a manner “well
calculated to sustain the confidence that all citizens
must have in the outcome of elections.” Bush II, 531

21
U.S. at 109. That confidence is now endangered. As
Justice Ziegler noted in her dissent, “[r]ecent polls
suggest that the American public, regardless of party
affiliation, has serious questions about the integrity of
the November 2020 election.” Pet. App. 65a-66a & note
4. Such questions are only exacerbated when judges
lack the courage to resolve election disputes on the
merits, thereby allowing serious questions to fester,
unaddressed, as has been permitted to occur here.14
This Court should grant review and reverse the
decision below, first and foremost, because the
majority’s invocation of the common-law doctrine of
laches cannot be squared with Article II, § 1, cl. 2, of
the Constitution, which requires that States shall
appoint presidential electors “in such Manner as the
Legislature thereof may direct . . . .” See McPherson v.
Blacker, 146 U.S. 1, 27 (1892). State legislative power
in this sphere is “plenary.” Bush II, 531 U.S. at 104;
McPherson, 146 U.S. at 25. Where a state statute is
made applicable to a presidential election, the
legislature is acting “by virtue of a direct grant of
authority made under Article II,” Bush v. Palm Beach
Cty. Canvassing Bd., 531 U.S. 70, 76 (2000) (“Bush I”),
so that “[a] significant departure from the legislative
scheme for appointing Presidential electors presents a
federal constitutional question.” Bush II, 531 U.S. at

14
A summary of disputes arising out of six key swing
states (many left unaddressed by the judiciary), sketching some
of the reasons for the public’s unease concerning the election, was
recently published by Peter Navarro, Director of the Office of
Trade and Manufacturing Policy, in his personal capacity. See
“The Immaculate Deception: Six Key Dimensions of Election
Irregularities” (Dec. 17, 2020), available at: https://www.
scribd.com/document/488534556/The-Immaculate-Deception-12-
15-20-1.

22
113 (Rehnquist, C.J., joined by Scalia and Thomas,
J.J., concurring).
Here, the Wisconsin Legislature has laid down two
unambiguous statutory commands regarding how post-
election review of ballots must be conducted where a
candidate contends that specific ballots cannot be
lawfully counted — neither of which was followed
below.
First, as a procedural matter, under Wis. Stats.
§ 9.01(1)(a)1., any candidate who, after the initial vote
count, trails by less than one percent of the votes cast,
has the right to obtain a recount. Under § 9.01(5)(a),
the officials conducting the recount must permit the
filing of objections and evidence, and must make
“specific findings of fact” on all contested ballots. Those
findings are then reviewable in two appeals of right,
first to the circuit court, § 9.01(6), and then to an
appellate court. § 9.01(9). Here the Legislature has laid
out with precision, procedurally, “the exclusive judicial
remedy for testing the right to hold an elective office as
the result of an alleged irregularity, defect or mistake
committed during the voting or canvassing process.”
§ 9.01(11). See Carlson v. Oconto County Board of
Canvassers, 2001 WI App 20, 240 Wis. 2d 438, 623
N.W.2d 195 (noting that § 9.01(11) is also the exclusive
remedy for claims of election fraud).
Second, as a substantive matter, with regard to
the absentee ballots at issue in this case, the
Legislature has directed that given the potential for
fraud and abuse inherent in absentee balloting, the
ability to vote by absentee ballot must be treated as
merely “a privilege,” not a right, Wis. Stats. § 6.84(1),
with regulations concerning them to “be construed as
mandatory” — so that absentee ballots “cast in
contravention” of statutory requirements “may not be

23
counted.” Id. § 6.84(2). See pp. 5-6, supra.
There is not a word anywhere, in any of these
statutes, suggesting that the election officials
conducting a recount, or a circuit judge hearing an
initial appeal, or appellate judges or justices hearing a
final appeal, can refuse on the basis of laches, or any
other judge-made “equitable” doctrine, to avoid a
decision on the merits. The plain language of the
applicable statutes requires that all involved must
apply the “mandatory” substantive requirements
imposed by the Wisconsin statutes to guard against
fraud and abuse in absentee balloting and, where those
requirements are not met, must refuse to count the
affected ballots.
The dissenters below are correct that the majority,
by invoking the doctrine of laches to avoid a decision
on the merits, failed in its duty to apply the law
enacted by the Legislature to the facts of the case and
rule on the merits. Pet. App. 35a, 56a-57a, 71a, 82a.15
Thus, this is a case where, as in Bush v. Gore, a state
supreme court has failed to adhere to the plain
meaning of the state statutes prescribing how election
results are to be challenged. Bush II, 531 U.S. at 116-
120 (Rehnquist, C.J., joined by Scalia and Thomas,
J.J., concurring). Here, as in that case, “the clearly
expressed intent of the legislature must prevail.” Id.
This conclusion – that the court below violated Article
II by flouting the plain language of Wisconsin statutes
mandating that discrete sets of unlawful ballots be
excluded from the vote count — “does not imply a

15
As the dissenters also noted, the doctrine of laches fails
on its own terms when applied to the circumstances of this case.
Pet. App. 59a-69a (Ziegler, J., joined by Roggensack, C.J., and
R.G. Bradley, J., dissenting).

24
disrespect for state courts but rather a respect for the
constitutionally prescribed role of state legislatures.”
Id. (emphasis in original).
Third, the majority’s application of laches is
constitutionally fatally flawed for other reasons. The
majority sought to excuse certain violations of the
election code on the ground that an administrative
agency, the Wisconsin Elections Commission (“WEC”)
had issued guidance documents endorsing the
practices, which petitioners supposedly could have
challenged earlier. Pet. App. 14a-16a, 18a, 20a. But
petitioners could not fairly have been apprised of the
need to mount such a pre-election challenge, compare
Bush II, 531 U.S. at 114-15 (Rehnquist, C.J., joined by
Scalia and Thomas, J.J., concurring), because it is not
even clear they would have had standing to sue to
challenge the WEC’s informal guidance documents.
For it is settled that the WEC’s guidance documents
“are not law, they do not have the force or effect of law,
and they provide no authority for implementing or
enforcing standards or conditions.”16
In sum, if left in place, the majority’s reliance on
laches would impose a burden on presidential
candidates, in all battleground states, to monitor all
election practices in numerous municipalities

16
SEIU, Local 1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38,
946 N.W.2d 35. Indeed, the WEC itself acknowledges that its
guidance documents are not legally binding. See WEC, Recount
Manual at 14 (2 WI App. 492) (“Despite advice provided by [WEC]
. . . ultimately [the Board of Canvassers] retains the authority and
discretion to make decisions it deems appropriate.”). This point is
not disputed: the majority left unanswered the observation of
Justice Bradley, in dissent, quoting the SEIU decision and
concluding that “the majority commits a grave error by according
WEC guidance the force of law.” Pet. App. 71a-72a, ¶141.

25
(Wisconsin’s elections are conducted by the local city,
village, and town clerks, and in presidential elections
the votes in smaller municipalities are canvassed at
the county level; and there are 1,852 cities, villages,
and towns, and 72 counties, in Wisconsin17), and bring
litigation before election day against any practice that
might end up later impacting the vote count, or risk
being told later that they waited too long to sue, and
will not be permitted to challenge unlawful ballots in
a post-election proceeding authorized by state statutes.
This is an impermissible burden on the right of a
citizen to run for public office by seeking to persuade
other citizens to cast their votes for him or her. To
force a candidate, in the midst of the campaign, to
continuously monitor ever-shifting election procedures
and guess at which ones may impact the result, and
expend scarce resources on preemptive litigation for
fear of later being deemed barred from suit based on
laches, would create a cloud of confusion, uncertainty,
and ambiguity substantially burdening the First
Amendment right to engage in election advocacy, see
e.g. Arizona Free Enterprise Club PAC v. Bennett, 564
U.S. 721, 735-40 (2011); Randall v. Sorrell, 584 U.S.
230, 261-63 (2006), and would also violate the
void-for-vagueness due process doctrine. See e.g., FCC
v. Fox TV Stations, Inc., 567 U.S. 239, 253-54 (2012).

17
See Wisconsin Policy Forum, “An Abundance of
Goverment, August 2019, available at https://wispolicyforum.org
/research/an-abundance-of-government.

26
II. The Wisconsin Supreme Court Violated
Article II by Upholding the Counting of
the 50,125 Absentee Ballots at Issue

This Court should hold that the 50,125 absentee

ballots at issue are illegal and may not be counted,
given the plain language of the Wisconsin statutes
making it unlawful to count the ballots at issue, Wis.
Stats. § 6.84(1) & (2), and the necessity of hewing
closely to statutory language in post-election
challenges to ballots in presidential elections, given the
importance of ensuring that “the clearly expressed
intent of the legislature must prevail.” Bush II, 531
U.S. at 120 (Rehnquist, C.J., joined by Scalia and
Thomas, J.J., concurring). See also id. at 112-14; Bush
I, 531 U.S. at 76. Further, this Court should so rule on
an expedited basis, given the press of time (the
counting of electoral votes in Congress is scheduled to
begin, under 3 U.S.C. § 15, on January 6).
First, as explained in pages 12-15, 18, supra, and
the dissenting opinion cited therein, 17,271 absentee
ballots were clearly cast in violation of mandatory
chain-of-custody rules because they were neither
mailed by the voter, nor returned to the clerk’s office in
person, but were instead deposited in drop boxes or
scooped up by “ballot harvesters,” in violation of Wis.
Stats. § 6.87(4)(b)(1). Another 4,469 absentee ballots
featured incomplete or altered ballot envelope
certifications and hence violated Wis. Stats. §§ 6.87(2)
& 6.87(6d). The 21,740 ballots in these two categories
exceed the current vote margin between petitioners
and former Vice President Biden and Senator Harris.
Second, as explained at pages 9-11, supra, an
additional 28,395 absentee ballots are irreparably
tainted because they were cast by voters who obtained

27
absentee ballots by claiming to be “indefinitely
confined,” after the clerks in their counties affirmative-
ly encouraged voters to lie on their applications, using
Covid-19 as an excuse for their fraudulent filing.
Among the voters who thus obtained absentee ballots
under false pretenses were two of the ten electors who
cast electoral votes for the Biden-Harris ticket. See p.
11, note 7, supra.
The majority opinion below did not dispute the
rank unlawfulness of the clerks’ actions. Nor did it
dispute that the clerks had an obligation, under Wis.
Stats. § 6.96(2)(b) to police the voting rolls for voters
abusing this status to obtain absentee ballots without
supplying a photo i.d. Nonetheless, the majority
refused any remedy on the basis that petitioners had
failed to prove a negative: they had not met their
supposed burden of affirmatively proving, with respect
to the 28,395 tainted ballots, that the voters who cast
them were not, “in fact, indefinitely confined . . . .” Pet.
App. 8a-9a.
This analysis of the remedy for such a blatant
violation of law is obviously inadequate. It would
incentivize illegal activity in future elections in which
it is difficult to prove the exact impact of the
wrongdoing after ballots are opened. Other courts
facing such situations, in which election officials,
animated by partisan motives, have intentionally
violated the law, but the impact of the wrongdoing is
difficult to measure with exactitude, have resolved
doubts against those officials in one of two ways. One
way is to shift the burden of proof: all the affected
ballots must be excluded unless the election officials
can prove that some of them were cast legitimately.
See, e.g., Warf v. Bd. of Elections, 619 F.3d 553, 561-62
(6th Cir. 2010) (“once the contestant has made a

28
showing of irregularity, . . . contestee must then come
forward with evidence of substantial compliance with
balloting procedures”). Another way, when suspect
ballots are great enough in number such that they
“could have affected the outcome of the election,” so as
to “render the apparent result an unreliable indicium
of the will of the electorate,” is simply to void the
election result. Marks v. Stinson, 19 F.3d 873, 886-87
(3d Cir. 1994) (emphasis in original).
Regardless of the approach used, this Court should
enforce the Wisconsin Legislature’s directive, that the
rules governing absentee ballots are mandatory, and,
based on these 28,395 tainted ballots, and the other
21,740 illegally counted ballots, hold that the election
failed, and thus the results must be voided. As the
Seventh Circuit correctly recognized in parallel
litigation, in which it joined the Wisconsin Supreme
Court in denying relief (primarily on the ground of
laches), although the President’s ultimate objective “to
be declared the victor of Wisconsin” may be beyond the
power of a court, a court can “declare the election
results void,” which “would provide the opportunity for
the appointment of a new slate of electors,” leaving it
for “the Wisconsin Legislature to decide the next steps
in advance of Congress’s count of the Electoral
College’s votes on January 6, 2021.” Trump v.
Wisconsin Elections Comm’n, 2020 U.S. LEXIS 40360,
at *10-*11 (7th Cir. Dec. 24, 2020).

29
III. This Court Should Set Aside the Wisconsin
Election as “Failed” Under 3 U.S.C. § 2, Thus
Affording the Wisconsin Legislature Explicit
Statutory Authority to Appoint Presidential
Electors to Represent Wisconsin

As previously indicated, petitioners respectfully

request that this Court’s consideration of this petition,
and perhaps related petitions that have been
submitted, or will be submitted in the near future, be
expedited, to ensure a decision before the electoral
votes are counted in Congress beginning on January 6,
2021. Under 3 U.S.C. § 2, this Court may hold, on the
undisputed record, that Wisconsin “failed to make a
choice on the day prescribed by law” and, thus, its
“electors may be appointed on a subsequent day in
such a manner as the legislature of such State shall
prescribe.”
Any contention by Respondents that the issues in
this petition are moot, simply because the slate of
Wisconsin electors pledged to former Vice President
Biden and Senator Harris already met on December
14, 2020, and cast their votes and transmitted them to
the President of the Senate, as required by 3 U.S.C. §§
7, 11, is without merit. For in Wisconsin (as well as in
six other states), the slate of electors pledged to
petitioners also met, cast their votes, and likewise
transmitted them to the President of the Senate, so
that two competing slates of votes from Wisconsin will
be present when the counting of votes commences on
January 6.18 This is the appropriate means by which

18
Haisten Willis, et al., “As electoral college formalizes
Biden’s win, Trump backers hold their own vote,” Wash. Post, Dec.
14, 2020 (available at

30
the time period for the resolution of challenges to the
electoral votes of a State can be extended to its
maximum, a means employed on two prior occasions,
during the presidential elections of 1876 and 1960.19
Thus, if this Court issues effective relief before the
electoral votes of Wisconsin are both opened and
counted in Congress on or after January 6, this Court
can ensure that Wisconsin’s electoral votes are cast in
compliance with Article II of the Constitution, by
allowing the Wisconsin Legislature, after this Court’s
ruling that the November 3 vote in Wisconsin failed to
make a valid appointment of electors, to step into the
breach and exercise the authority conveyed by the
plain language of 3 U.S.C. § 2 to appoint one of the
slates of electors whose votes have already been
transmitted to Congress.20

https://www.washingtonpost.com/politics/trump-backers-elector
al-college/2020/12/14/f0fcc59c-3e52-11eb-9453-fc36ba051781_sto
ry.html); Ivan Pentchoukov, “Electors in 7 States Cast Dueling
Votes for Trump,” The Epoch Times (Dec. 15, 2020) (available at
https://www.theepochtimes.com/electors-in-7- states-cast-dueling-
votes-for-trump_3620059.html).
19
See Jack M. Balkin, Bush v. Gore and the Boundary
Between Law and Politics, 110 Yale L.J. 1407, 1421 n. 55 (2001)
(Hawaii in 1960); William H. Rehnquist, Centennial Crisis: The
Disputed Election of 1876, at 105-11 (2005) (Florida, Louisiana,
South Carolina, and Oregon in 1876).
20
Petitioners respectfully submit that the time available
for the resolution of the purely legal issues presented by this case,
and perhaps related cases, prior to the start of the electoral count
in Congress is sufficient for this Court to give these issues due
consideration — more time, indeed, than was available for the
resolution of Bush v. Gore, in which the application for a stay was
filed on December 8, 2000, and a final decision was announced
just four days later. However, in the alternative, if this Court were

31
 CONCLUSION

During the election crisis of 1876-77, President

Grant observed that “either Party can afford to be
disappointed in the result, but the country cannot
afford to have the result tainted by suspicion of illegal
or false returns.” Rehnquist, supra note 19, at 101.
That remains true. Twenty years ago this Court
emphasized that state courts have a duty to act in a
manner “well calculated to sustain the confidence that
all citizens must have in the outcome of elections.”
Bush II, 531 U.S. at 109. The majority below shirked
that duty, refusing to rule on the merits. The result, as
Justice Ziegler observed, is to feed doubts that are
already widespread among Americans concerning the
integrity of the November 2020 election. See p. 22 &
note 14, supra. This Court is likely the only institution
of our government capable of credibly resolving the
controversy over this election. It is now this Court’s
“unsought responsibility to resolve the federal and
constitutional issues the judicial system has been
forced to confront.” Bush II, 531 U.S. at 111.

to choose not to expedite this case, petitioners would urge the

Court to nonetheless grant the petition and consider it, with full
briefing and argument, so as to address constitutional issues that
would otherwise evade review which are likely to arise in future
contests — including the 2024 presidential election, in which
petitioners would remain eligible to run. In particular, the
interference with the First Amendment right of a citizen to run for
public office without being forced to expend enormous resources
on pre-election litigation — a burden which has been created by
the Wisconsin Supreme Court’s reliance on the doctrine of laches
to avoid a decision on the merits — necessitates this Court’s
review quite apart from whatever impact this Court’s review
might have on the outcome of the current presidential race.

32
 For all the reasons stated, this Court should grant
certiorari; it should hear this petition (and any related
petitions it deems worthy of review) on an expedited
basis; and it should rule on the merits that under the
plain language of the Wisconsin statutes, Article II
prohibits counting the 50,125 absentee ballots, and
that the election in Wisconsin failed to make a choice
of electors within the meaning of 3 U.S.C. § 2, thus
permitting the Wisconsin Legislature to now make a
choice of electors.

Respectfully submitted.

R. GEORGE BURNETT JAMES R. TROUPIS

CONWAY, OLEJNICZAK Counsel of Record
& JERRY TROUPIS LAW OFFICE
231 S. Adams Street 4126 Timber Lane
Green Bay, WI 54305 Cross Plains, WI 53528
[email protected] (608) 305-4889
[email protected]
KENNETH CHESEBRO
25 Northern Avenue
Boston, MA 02210
[email protected]

Counsel for Petitioners

December 29, 2020

33
APPENDICES
 Table of Appendices

Page:

Appendix A: Wisconsin Supreme Court

Opinion (Dec. 14, 2020) . . . . . . . . . . . . . . . . . 1a

Appendix B: Wisconsin Supreme Court

Order (Dec. 3, 2020) . . . . . . . . . . . . . . . . . . . 85a

Appendix C: Circuit Court, Milwaukee

County, Final Order (Dec. 11, 2020) . . . . . 105a

Appendix D: Pertinent provisions from

Chapters 5, 6, 7 & 9
of the Wisconsin Statutes . . . . . . . . . . . . . . 153a
 Appendix A

2020 WI 91

SUPREME COURT OF WISCONSIN

Case No.: 2020AP2038

Complete Title:

Donald J. Trump, Michael R. Pence

and Donald J. Trump for President, Inc.,

Plaintiffs-Appellants,

v.

Joseph R. Biden, Kamala D. Harris,

Milwaukee County Clerk c/o George L. Christenson,
Milwaukee County Board of Canvassers
c/o Tim Posnanski, Wisconsin Elections Commission,
Ann S. Jacobs, Dane County Clerk
c/o Scott McDonell and Dane County Board of
Canvassers c/o Alan Arnsten,

Defendants-Respondents.

ON PETITION TO BYPASS COURT OF APPEALS,

REVIEW OF DECISION OF THE CIRCUIT COURT

OPINION FILED: December 14, 2020

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: December 12, 2020

SOURCE OF APPEAL:
 COURT: Circuit Court

COUNTY: Milwaukee

JUDGE: Stephen A. Simanek

JUSTICES:

HAGEDORN, J., delivered the majority opinion of

the Court, in which ANN WALSH BRADLEY,
DALLET, and KAROFSKY, JJ., joined. DALLET
and KAROFSKY, JJ., filed a concurring opinion.
HAGEDORN, J., filed a concurring opinion, in which
ANN WALSH BRADLEY, J., joined.
ROGGENSACK, C.J., filed a dissenting opinion, in
which ZIEGLER and REBECCA GRASSL
BRADLEY, JJ., joined. ZIEGLER, J., filed a
dissenting opinion, in which ROGGENSACK, C.J.,
and REBECCA GRASSL BRADLEY, J., joined.
REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion, in which ROGGENSACK, C.J.,
and ZIEGLER, J., joined.

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants, a brief was filed by

James R. Troupis and Troupis Law Office, Cross
Plains, and R. George Burnett and Conway,
Olejniczak & Jerry S.C., Green Bay. Oral argument
presented by James R. Troupis.

2a
 For the defendants-respondents Joseph R. Biden
and Kamala D. Harris, a brief was filed by Matthew
W. O’Neill and Fox, O’Neill & Shannon, S.C.,
Milwaukee, Charles G. Curtis, Jr., Michelle M.
Umberger, Will M. Conley and Perkins Coie LLP,
Madison, and John M. Devaney (pro hac vice) and
Perkins Coie LLP, Washington, D.C. Oral argument
was presented by John M. Devaney.

For the defendants-respondents Wisconsin

Elections Commission and Ann S. Jacobs, oral
argument was presented by assistant attorney
general Colin T. Roth.

2020 WI 91

NOTICE

This opinion is subject to further editing and

modification. The final version will appear in the
bound volume of the official reports.

3a
No. 2020AP2038
(L.C. No. 2020CV2514 & 2020CV7092)

STATE OF WISCONSIN: IN SUPREME COURT

Donald J. Trump, Michael R. Pence

and Donald J. Trump for President, Inc.,

Plaintiffs-Appellants,

v.

Joseph R. Biden, Kamala D. Harris, Milwaukee

County Clerk c/o George L. Christenson,
Milwaukee County Board of Canvassers c/o
Tim Posnanski, Wisconsin Elections
Commission, Ann S. Jacobs, Dane County
Clerk c/o Scott McDonell and Dane County
Board of Canvassers c/o Alan Arnsten,

Defendants-Respondents.

FILED

DEC 14, 2020

Sheila T. Reiff
Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of

the Court, in which ANN WALSH BRADLEY,
DALLET, and KAROFSKY, JJ., joined. DALLET
and KAROFSKY, JJ., filed a concurring opinion.
HAGEDORN, J., filed a concurring opinion, which
ANN WALSH BRADLEY, J., joined.

4a
ROGGENSACK, C.J., filed a dissenting opinion, in
which ZIEGLER and REBECCA GRASSL
BRADLEY, JJ., joined. ZIEGLER, J., filed a
dissenting opinion, in which ROGGENSACK, C.J.,
and REBECCA GRASSL BRADLEY, J., joined.
REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion, in which ROGGENSACK, C.J.,
and ZIEGLER, J., joined.

APPEAL from a judgment and an order of the

Circuit Court for Milwaukee County, Stephen A.
Simanek, Reserve Judge. Affirmed.

¶1 BRIAN HAGEDORN, J. In the 2020

presidential election, the initial Wisconsin county
canvasses showed that Wisconsin voters selected
Joseph R. Biden and Kamala D. Harris as the
recipients of Wisconsin’s electoral college votes. The
petitioners1 (collectively, the “Campaign”) bring an
action under Wis. Stat. § 9.01 (2017-18)2 seeking to
invalidate a sufficient number of Wisconsin ballots to
change Wisconsin’s certified election results.
Specifically, the Campaign seeks to invalidate the
ballots – either directly or through a drawdown – of
more than 220,000 Wisconsin voters in Dane and
Milwaukee Counties.
¶2 The Campaign focuses its objections on four
different categories of ballots – each applying only to

1
The petitioners are Donald J. Trump, Michael R. Pence,
and Donald J. Trump for President, Inc.
2
All subsequent references to the Wisconsin Statutes are
to the 2017-18 version.

5a
voters in Dane County and Milwaukee County. First,
it seeks to strike all ballots cast by voters who claimed
indefinitely confined status since March 25, 2020.
Second, it argues that a form used for in-person
absentee voting is not a “written application” and
therefore all in-person absentee ballots should be
struck. Third, it maintains that municipal officials
improperly added witness information on absentee
ballot certifications, and that these ballots are
therefore invalid. Finally, the Campaign asserts that
all ballots collected at “Democracy in the Park,” two
City of Madison events in late September and early
October, were illegally cast.
¶3 We conclude the Campaign is not entitled to the
relief it seeks. The challenge to the indefinitely
confined voter ballots is meritless on its face, and the
other three categories of ballots challenged fail under
the doctrine of laches.

I. BACKGROUND

¶4 After all votes were counted and canvassing

was completed for the 2020 presidential election
contest, the results showed that Vice President Biden
and Senator Harris won Wisconsin by 20,427 votes.
The Campaign sought a recount in two of Wisconsin’s
72 counties – Milwaukee and Dane. The Milwaukee
County Elections Commission and the Dane County
Board of Canvassers conducted the recount and
certified the results. The recount increased the margin
of victory for Vice President Biden and Senator Harris
to 20,682 votes.
¶5 The Campaign appealed those decisions in a
consolidated appeal to the circuit court under Wis.
Stat. § 9.01(6)(a), naming Vice President Biden,

6a
Senator Harris, the Wisconsin Elections Commission
(WEC), and several election officials as respondents.3
The circuit court4 affirmed the determinations of the
Dane County Board of Canvassers and the Milwaukee
County Elections Commission in full. The Campaign
appealed and filed a petition for bypass, which we
granted.

II. DISCUSSION

¶6 The Campaign asks this court to reverse

determinations of the Dane County Board of
Canvassers and the Milwaukee County Elections
Commission with respect to four categories of ballots
it rgues were unlawfully cast.5 The respondents argue
that all ballots were cast in compliance with the law,
or at least that the Campaign has not shown
otherwise. They further maintain that a multitude of
legal doctrines – including laches, equitable estoppel,
unclean hands, due process, and equal protection – bar
the Campaign from receiving its requested relief. We
agree that the challenge to the indefinitely confined
voter ballots is without merit, and that laches bars the

3
Also named were Milwaukee County Clerk c/o George L.
Christenson, Milwaukee County Board of Canvassers c/o Tim
Posnanski, Ann S. Jacobs, Dane County Clerk c/o Scott McDonell,
and Dane County Board of Canvassers c/o Alan Arnsten.
4
The consolidated appeals were assigned to Reserve Judge
Stephen A. Simanek.
5
We may set aside or modify the determination if “a
provision of law” is “erroneously interpreted” and “a correct
interpretation compels a particular action.” Wis. Stat. § 9.01(8).
We accept the findings of fact unless a factual finding “is not
supported by substantial evidence.” Id.

7a
relief the Campaign seeks on the three remaining
categories of challenged ballots.

A. Indefinitely Confined Voters

¶7 Wisconsin allows voters to declare themselves

indefinitely confined, provided they meet the statutory
requirements. See Wis. Stat. § 6.86(2)(a).6 These
individuals are not required to provide photo
identification to obtain an absentee ballot. Id. On
March 25, 2020, the Dane and Milwaukee County
Clerks issued guidance on Facebook suggesting all
voters could declare themselves indefinitely confined
because of the pandemic and the governor’s
then-existing Safer-at-Home Order. This court
unanimously deemed that advice incorrect on March
31, 2020, and we noted that “the WEC guidance . . .
provides the clarification on the purpose and proper
use of the indefinitely confined status that is required
at this time.” The county clerks immediately updated

6
6 Wisconsin Stat. § 6.86(2)(a) 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.

8a
their advice in accordance with our decision.
¶8 The Campaign does not challenge the ballots of
individual voters. Rather, the Campaign argues that
all voters claiming indefinitely confined status since
the date of the erroneous Facebook advice should have
their votes invalidated, whether they are actually
indefinitely confined or not. Although the number of
individuals claiming indefinitely confined status has
increased throughout the state, the Campaign asks us
to apply this blanket invalidation of indefinitely
confined voters only to ballots cast in Dane and
Milwaukee Counties, a total exceeding 28,000 votes.
The Campaign’s request to strike indefinitely confined
voters in Dane and Milwaukee Counties as a class
without regard to whether any individual voter was in
fact indefinitely confined has no basis in reason or law;
it is wholly without merit.

B. Laches

¶9 Three additional categories of ballots are

challenged by the Campaign. In Milwaukee and Dane
Counties, the Campaign asserts all in-person absentee
votes were cast unlawfully without an application, and
that all absentee ballots with certifications containing
witness address information added by the municipal
clerks were improperly counted. Additionally, the
Campaign challenges all ballots returned at the City
of Madison’s “Democracy in the Park” events.
¶10 All three of these challenges fail under the
longstanding and well-settled doctrine of laches.
“Laches is founded on the notion that equity aids the
vigilant, and not those who sleep on their rights to the
detriment of the opposing party.” State ex rel. Wren v.
Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936

9a
N.W.2d 587. Application of laches is within the court’s
discretion upon a showing by the party raising the
claim of unreasonable delay, lack of knowledge the
claim would be raised, and prejudice. Id., ¶15.
¶11 For obvious reasons, laches has particular
import in the election context. As one noted treatise
explains:

Extreme diligence and promptness are

required in election-related matters,
particularly where actionable election
practices are discovered prior to the election.
Therefore, laches is available in election
challenges. In fact, in election contests, a court
especially considers the application of laches.
Such doctrine is applied because the efficient
use of public resources demands that a court
not allow persons to gamble on the outcome of
an election contest and then challenge it when
dissatisfied with the results, especially when
the same challenge could have been made
before the public is put through the time and
expense of the entire election process. Thus if
a party seeking extraordinary relief in an
election-related matter fails to exercise the
requisite diligence, laches will bar the action.

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

¶12 Although it disagrees the elements were
satisfied here, the Campaign does not dispute the
proposition that laches may bar an untimely election
challenge. This principle appears to be recognized and
applied universally. See, e.g., Jones v.
Markiewicz-Qualkinbush, 842 F.3d 1053, 1060–61 (7th
Cir. 2016) (“The obligation to seek injunctive relief in

10a
a timely manner in the election context is hardly a new
concept.”).7 This case may be a paradigmatic

7
See also Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir.
1990), cert. denied, 501 U.S. 1206 (1991) (“The candidate’s and
party’s claims to be respectively a serious candidate and a serious
party with a serious injury become less credible by their having
slept on their rights.”); Soules v. Kauaians for Nukolii Campaign
Comm., 849 F.2d 1176, 1180 (9th Cir. 1988) (“Although adequate
explanation for failure to seek preelection relief has been held to
exist where, for example, the party challenging the election had
no opportunity to seek such relief, if aggrieved parties, without
adequate explanation, do not come forward before the election,
they will be barred from the equitable relief of overturning the
results of the election.” (citation omitted)); Hendon v. North
Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983)
(“[F]ailure to require pre-election adjudication would ‘permit, if
not encourage, parties who could raise a claim to lay by and
gamble upon receiving a favorable decision of the electorate and
then, upon losing, seek to undo the ballot results in a court
action.’”); Perry v. Judd, 471 Fed. App’x 219, 220 (4th Cir. 2012)
(“Movant had every opportunity to challenge the various Virginia
ballot requirements at a time when the challenge would not have
created the disruption that this last-minute lawsuit has.”);
McClung v. Bennett, 235 P.3d 1037, 1040 (Ariz. 2010) (“McClung’s
belated prosecution of this appeal . . . would warrant dismissal on
the grounds of laches, because his dilatory conduct left Sweeney
with only one day to file his response brief, jeopardized election
officials’ timely compliance with statutory deadlines, and required
the Court to decide this matter on an unnecessarily accelerated
basis.” (citations omitted)); Smith v. Scioto Cnty. Bd. of Elections,
918 N.E.2d 131, 133-34 (Ohio 2009) (“Appellees could have raised
their claims in a timely pre-election protest to the petition.
‘Election contests may not be used as a vehicle for asserting an
untimely protest.’” (citations omitted)); Clark v. Pawlenty, 755
N.W.2d 293, 301 (Minn. 2008) (applying laches to bar election
challenge where “[t]he processes about which petitioners complain
are not new”); State ex rel. SuperAmerica Grp. v. Licking Cnty. Bd.
of Elections, 685 N.E.2d 507, 510 (Ohio 1997) (“In election-related
matters, extreme diligence and promptness are required.
Extraordinary relief has been routinely denied in election-related

11a
cases based on laches.”); Tully v. State, 574 N.E.2d 659, 663 (Ill.
1991) (applying laches to bar challenge to an automatic retirement
statute where a retired judge “was at least constructively aware
of the fact that his seat was declared vacant” and an election had
already taken place to replace him); Lewis v. Cayetano, 823 P.2d
738, 741 (Haw. 1991) (“We apply the doctrine of laches . . . because
efficient use of public resources demand that we not allow persons
to gamble on the outcome of the election contest then challenge it
when dissatisfied with the results, especially when the same
challenge could have been made before the public is put through
the time and expense of the entire election process.”); Evans v.
State Election Bd. of State of Okla., 804 P.2d 1125, 1127 (Okla.
1990) (“It is well settled that one who seeks to challenge or correct
an error of the State Election Board will be barred by laches if he
does not act with diligence.”); Thirty Voters of Kauai Cnty. v. Doi,
599 P.2d 286, 288 (Haw. 1979) (“The general rule is that if there
has been opportunity to correct any irregularities in the election
process or in the ballot prior to the election itself, plaintiffs will
not, in the absence of fraud or major misconduct, be heard to
complain of them afterward.”); Harding v. State Election Board,
170 P.2d 208, 209 (Okla. 1946) (per curiam) (“[I]t is manifest that
time is of the essence and that it was the duty of the petitioner to
proceed with utmost diligence in asserting in a proper forum his
claimed rights. The law favors the diligent rather than the
slothful.”); Mehling v. Moorehead, 14 N.E.2d 15, 20 (Ohio 1938)
(“So in this case, the election, having been held, should not be
disturbed when there was full opportunity to correct any
irregularities before the vote was cast.”); Kewaygoshkum v. Grand
Traverse Band Election Bd., 2008-1199-CV-CV, 2008-1200-CV-CV,
2008 WL 6196207, at *7 (Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Judiciary 2008) (en banc) (“In the
instant case, nearly all of the allegations by both Plaintiffs against
the Election Board relate to actions taken (or not taken) by the
Election Board prior to the general election . . . . [T]hey are not
timely raised at this point and should be barred under the
doctrine of laches.”); Moore v. City of Pacific, 534 S.W.2d 486, 498
(Mo. Ct. App. 1976) (“Where actionable election practices are
discovered prior to the election, injured persons must be diligent
in seeking relief.”); Kelly v. Commonwealth, No. 68 MAP 2020,
2020 WL 7018314, at *1 (Penn. Nov. 28, 2020) (applying laches to

12a
example of why. The relevant election officials, as well
as Vice President Biden and Senator Harris, had no
knowledge a claim to these broad categories of
challenges would occur. The Campaign’s delay in
raising these issues was unreasonable in the extreme,
and the resulting prejudice to the election officials,
other candidates, voters of the affected counties, and
to voters statewide, is obvious and immense. Laches is
more than appropriate here; the Campaign is not
entitled to the relief it seeks.

1. Unreasonable Delay

¶13 First, the respondents must prove that the

Campaign unreasonably delayed in bringing the
challenge. What constitutes an unreasonable delay
varies and “depends on the facts of a particular case.”
Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69,
¶14, 393 Wis. 2d 308, 946 N.W.2d 101. As we have
explained:

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

have brought their claim anytime after the law’s enactment more
than a year prior but instead waited until after the 2020 General
Election); Bowyer v. Ducey, CV-20-02321-PHX-DJH, 2020 WL
7238261, at *10 (D. Ariz. Dec. 9, 2020) (applying laches to bar
claims where “affidavits or declarations upon which Plaintiffs rely
clearly shows that the basis for each of these claims was either
known well before Election Day or soon thereafter”); King v.
Witmer, Civ. No. 20-13134, 2020 WL 7134198, at *7 (E.D. Mich.
Dec. 7, 2020) (“If Plaintiffs had legitimate claims regarding
whether the treatment of election challengers complied with state
law, they could have brought their claims well in advance of or on
Election Day – but they did not.”).

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 [U]nreasonable delay in laches is based not on
what litigants know, but what they might have
known with the exercise of reasonable
diligence. This underlying constructive
knowledge requirement arises from the
general rule that ignorance of one’s legal
rights is not a reasonable excuse in a laches
case. Where the question of laches is in issue,
the plaintiff is chargeable with such
knowledge as he might have obtained upon
inquiry, provided the facts already known by
him were such as to put a man of ordinary
prudence upon inquiry. To be sure, what we
expect will vary from case to case and litigant
to litigant. But the expectation of reasonable
diligence is firm nonetheless.

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

marks omitted). Here, the Campaign unreasonably
delayed with respect to all three categories of
challenged ballots.
¶14 Regarding the Campaign’s first challenge,
Wisconsin law provides that a “written application” is
required before a voter can receive an absentee ballot,
and that any absentee ballot issued without an
application cannot be counted. See Wis. Stat. §
6.86(1)(ar); Wis. Stat. § 6.84(2). The Campaign argues
all in-person absentee votes in Dane and Milwaukee
Counties were cast without the required application.
¶15 But both counties did use an application form
created, approved, and disseminated by the chief
Wisconsin elections agency. This form, now known as
EL-122, is entitled “Official Absentee Ballot
Application/Certification.” It was created in 2010 in an
effort to streamline paperwork following the 2008

14a
election, and has been available and in use ever since.
¶16 The Campaign does not challenge that any
individual voters’ ballots lacked an application——an
otherwise appropriate and timely issue. Rather, the
Campaign argues this “application” is not an
application, or that municipal clerks do not give this
form to voters before distributing the ballot, in
contravention of the statutes.8 Regardless of the
practice used, the Campaign would like to apply its
challenge to the sufficiency of EL-122 to strike 170,140
votes in just two counties – despite the form’s use in
municipalities throughout the state.9 Waiting until
after an election to challenge the sufficiency of a form
application in use statewide for at least a decade is
plainly unreasonable.
¶17 The second category of ballots challenged are
those with certificates containing witness address
information added by a municipal clerk. Absentee
ballots must be witnessed, and the witness must
provide their name, signature, and address on the
certification (printed on the back side of the envelope
in which the absentee ballot is ultimately sealed). Wis.
Stat. § 6.87(2), (4)(b)1., (6d). While a witness address
must be provided on the certification for the
corresponding ballot to be counted, the statute is silent
as to what portion of an address the witness must
provide. § 6.87(6d).

8
According to the findings of fact, the practice in Dane
and Milwaukee Counties is that the application portion of the
envelope is completed and shown to an official before the voter
receives a ballot.
9
In its findings of fact, the circuit court concluded that
651,422 voters throughout the state used Form EL-122 in the
2020 presidential election.

15a
 ¶18 The process of handling missing witness
information is not new; election officials followed
guidance that WEC created, approved, and
disseminated to counties in October 2016. It has been
relied on in 11 statewide elections since, including in
the 2016 presidential election when President Trump
was victorious in Wisconsin. The Campaign
nonetheless now seeks to strike ballots counted in
accordance with that guidance in Milwaukee and Dane
Counties, but not those counted in other counties that
followed the same guidance. The Campaign offers no
reason for waiting years to challenge this approach,
much less after this election. None exists.
¶19 Finally, the City of Madison held events on
September 27, 2020, and October 3, 2020, dubbed
“Democracy in the Park.” At these events, sworn city
election inspectors collected completed absentee
ballots. The city election inspectors also served as
witnesses if an elector brought an unsealed, blank
ballot. No absentee ballots were distributed, and no
absentee ballot applications were accepted or
distributed at these events.
¶20 The Campaign characterizes these events as
illegal early in-person absentee voting. When the
events were announced, an attorney for the Wisconsin
Legislature sent a warning letter to the City of
Madison suggesting the events were illegal. The City
of Madison responded that the events were legally
compliant, offering reasons why. Although these
events and the legislature’s concerns were widely
publicized, the Campaign never challenged these
events, nor did any other tribunal determine they were
unlawful.
¶21 The Campaign now asks us to determine that
all 17,271 absentee ballots collected during the

16a
“Democracy in the Park” events were illegally cast.
Once again, when the events were announced, the
Campaign could have challenged its legality. It did not.
Instead, the Campaign waited until after the election
– after municipal officials, the other candidates, and
thousands of voters relied on the representations of
their election officials that these events complied with
the law. The Campaign offers no justification for this
delay; it is patently unreasonable.
¶22 The time to challenge election policies such as
these is not after all ballots have been cast and the
votes tallied. Election officials in Dane and Milwaukee
Counties reasonably relied on the advice of Wisconsin’s
statewide elections agency and acted upon it. Voters
reasonably conformed their conduct to the voting
policies communicated by their election officials.
Rather than raise its challenges in the weeks, months,
or even years prior, the Campaign waited until after
the votes were cast. Such delay in light of these
specific challenges is unreasonable.

2. Lack of Knowledge

¶23 The second element of laches requires that the

respondents lacked knowledge that the Campaign
would bring these claims.10 The respondents all assert

10
While our cases have identified this element as a
general requirement for laches, it does not always appear to be
applicable. To some extent, this requirement focuses on the ability
of the asserting party to mitigate any resulting prejudice when
notice is provided. But this may not be possible in all types of
claims. Most jurisdictions do not identify lack of knowledge as a
separate, required element in every laches defense. See, e.g., Hart
v. King, 470 F. Supp. 1195, 1198 (D. Haw. 1979) (holding that
laches barred relief in federal court notwithstanding plaintiffs’

17a
they were unaware that the Campaign would
challenge various election procedures after the
election, and nothing in the record suggests otherwise.
On the record before us, this is sufficient to satisfy this
element. See Brennan, 393 Wis. 2d 308, ¶18.

3. Prejudice

¶24 Finally, the respondents must also prove that

prejudice results from the Campaign’s unreasonable
delay. “What amounts to prejudice . . . depends upon
the facts and circumstances of each case, but it is
generally held to be anything that places the party in
a less favorable position.” Wren, 389 Wis. 2d 516, ¶32.
¶25 With respect to in-person absentee ballot
applications, local election officials used form EL-122
in reliance on longstanding guidance from WEC.
Penalizing the voters election officials serve and the
other candidates who relied on this longstanding
guidance is beyond unfair. The Campaign sat on its
hands, waiting until after the election, despite the fact
that this “application” form was in place for over a
decade. To strike ballots cast in reliance on the
guidance now, and to do so only in two counties, would
violate every notion of equity that undergirds our
electoral system.
¶26 As for the ballots to which witness address
information was added, the election officials relied on
this statewide advice and had no reason to question it.
Waiting until after the election to raise the issue is
highly prejudicial. Applying any new processes to two
counties, and not statewide, is also unfair to nearly

unsuccessful pre-election suit in state court). In any event, we

have no difficulty finding this element satisfied here.

18a
everyone involved in the election process, especially
the voters of Dane and Milwaukee Counties.
¶27 Finally, the respondents, and indeed all
voters, are prejudiced if the ballots collected at the
“Democracy in the Park” events are invalidated. Voters
were encouraged to utilize the events, and 17,000
voters did so in reliance on representations that the
process they were using complied with the law.
Striking these ballots would disenfranchise voters who
did nothing wrong when they dropped off their ballot
where their local election officials told them they could.
¶28 In short, if the relief the Campaign sought was
granted, it would invalidate nearly a quarter of a
million ballots cast in reliance on interpretations of
Wisconsin’s election laws that were well-known before
election day. It would apply new interpretive
guidelines retroactively to only two counties. Prejudice
to the respondents is abundantly clear. Brennan, 393
Wis. 2d 308, ¶25.

4. Discretion

¶29 Whether to apply laches remains “within our

equitable discretion.” Id., ¶26. Doing so here is more
than equitable; it is the only just resolution of these
claims.
¶30 To the extent we have not made this clear in
the past, we do so now. Parties bringing
election-related claims have a special duty to bring
their claims in a timely manner. Unreasonable delay
in the election context poses a particular danger – not
just to municipalities, candidates, and voters, but to
the entire administration of justice. The issues raised
in this case, had they been pressed earlier, could have
been resolved long before the election. Failure to do so

19a
affects everyone, causing needless litigation and
undermining confidence in the election results. It also
puts courts in a difficult spot. Interpreting complicated
election statutes in days is not consistent with best
judicial practices. These issues could have been
brought weeks, months, or even years earlier. The
resulting emergency we are asked to unravel is one of
the Campaign’s own making.11
¶31 The claims here are not of improper electoral
activity. Rather, they are technical issues that arise in
the administration of every election. In each category
of ballots challenged, voters followed every procedure
and policy communicated to them, and election
officials in Dane and Milwaukee Counties followed the
advice of WEC where given. Striking these votes now
– after the election, and in only two of Wisconsin’s 72
counties when the disputed practices were followed by
hundreds of thousands of absentee voters statewide –
would be an extraordinary step for this court to take.12
We will not do so.

11
Our decision that the Campaign is not entitled to the
relief it seeks does not mean the legal issues presented are
foreclosed from further judicial scrutiny. Wisconsin law provides
sufficient mechanisms for challenging unlawful WEC guidance or
unlawful municipal election practices. Nothing in our decision
denying relief to the Campaign would affect the right of another
party to raise substantive challenges.
12
Granting the relief requested by the Campaign may
even by unconstitutional. See Bush v. Gore, 531 U.S. 98, 104-05
(per curiam) (“The right to vote is protected in more than the
initial allocation of the franchise. Equal protection applies as well
to the manner of its exercise. Having once granted the right to
vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over that of
another.”).

20a
 III. CONCLUSION

¶32 Our laws allow the challenge flag to be thrown

regarding various aspects of election administration.
The challenges raised by the Campaign in this case,
however, come long after the last play or even the last
game; the Campaign is challenging the rulebook
adopted before the season began. Election claims of
this type must be brought expeditiously. The
Campaign waited until after the election to raise
selective challenges that could have been raised long
before the election. We conclude the challenge to
indefinitely confined voter ballots is without merit,
and that laches bars relief on the remaining three
categories of challenged ballots. The Campaign is not
entitled to relief, and therefore does not succeed in its
effort to strike votes and alter the certified winner of
the 2020 presidential election.

By the Court. – The judgment of the circuit court is

affirmed.

21a
 ¶33 REBECCA FRANK DALLET and JILL J.
KAROFSKY, JJ. (concurring). As acknowledged by the
President’s counsel at oral argument, the President
would have the people of this country believe that
fraud took place in Wisconsin during the November 3,
2020 election. Nothing could be further from the truth.
The President failed to point to even one vote cast in
this election by an ineligible voter; yet he asks this
court to disenfranchise over 220,000 voters. The circuit
court, whose decision we affirm, found no evidence of
any fraud.
¶34 The evidence does show that, despite a global
pandemic, more than 3.2 million Wisconsinites
performed their civic duty. More importantly as it
relates to this lawsuit, these voters followed the rules
that were in place at the time. To borrow Justice
Hagedorn’s metaphor, Wisconsin voters complied with
the election rulebook. No penalties were committed
and the final score was the result of a free and fair
election.
¶35 For the foregoing reasons, we concur.

22a
 ¶36 BRIAN HAGEDORN, J. (concurring). I agree,
of course, with the majority opinion I authored holding
that the petitioners1 (collectively, the “Campaign”) are
not entitled to the relief they seek. But I understand
the desire for at least some clarity regarding the
underlying election administration issues. A
comprehensive analysis is not possible or appropriate
in light of the abbreviated nature of this review and
the limited factual record in an action under Wis. Stat.
§ 9.01 (2017-18).2 However, I do think we can be of
some assistance, and will endeavor to address in some
measure the categories of ballots the majority opinion
properly applies laches to.
¶37 Beyond its challenge to indefinitely confined
voters, an issue the court’s opinion quickly and
appropriately dispenses with, the Campaign raises
challenges to three categories of ballots: (1) all
in-person absentee ballots in Dane and Milwaukee
Counties for want of an absentee ballot application; (2)
all absentee ballots in Dane and Milwaukee Counties
where municipal officials added witness address
information on the certification; and (3) all ballots
collected at two City of Madison “Democracy in the
Park” events occurring in late September and early
October. I begin with some background, and address
each while remaining mindful of the limited nature of
this review.

1
The petitioners are Donald J. Trump, Michael R. Pence,
and Donald J. Trump for President, Inc.
2
All subsequent references to the Wisconsin Statutes are
to the 2017-18 version.

23a
 I. LEGAL BACKGROUND

¶38 Elections in Wisconsin are governed by

Chapters five through 12 of the Wisconsin Statutes. In
applying these laws, we have a long history of
construing them to give effect to the ascertainable will
of the voter, notwithstanding technical noncompliance
with the statutes. Roth v. Lafarge Sch. Dist. Bd. of
Canvassers, 2004 WI 6, ¶19, 268 Wis. 2d 335, 677
N.W.2d 599.3 This longstanding practice is confirmed
in statute. Wisconsin Stat. § 5.01(1) says, “Except as
otherwise provided, chs. 5 to 12 shall be construed to
give effect to the will of the electors, if that can be
ascertained from the proceedings, notwithstanding
informality or failure to fully comply with some of their
provisions.” So generally, when ballots are challenged,
they are counted if the will of the voter can be
ascertained.
¶39 Wisconsin looks quite a bit more skeptically,
however, at absentee ballots. Wisconsin Stat. § 6.84(2)
provides:

3
See also State ex rel. Wood v. Baker, 38 Wis. 71, 89 (1875)
(“It would be a fraud on the constitution to hold them
disfranchised without notice or fault. They went to the election
clothed with a constitutional right of which no statute could strip
them, without some voluntary failure on their own part to furnish
statutory proof of right. And it would be monstrous in us to give
such an effect to the registry law, against its own spirit and in
violation of the letter and spirit of the constitution.”); State ex rel.
Blodgett v. Eagan, 115 Wis. 2d 417, 421, 91 N.W. 984 (1902)
(“when the intention of the voter is clear, and there is no provision
of statute declaring that such votes shall not be counted, such
intention shall prevail”); Roth v. Lafarge Sch. Dist. Bd. of
Canvassers, 2004 WI 6, ¶¶19-25, 268 Wis. 2d 335, 677 N.W.2d 599
(collecting cases).

24a
 Notwithstanding [Wis. Stat. §] 5.01(1), with
respect to matters relating to the absentee
ballot process, [Wis. Stat. §§] 6.86, 6.87(3) to
(7) and 9.01(1)(b)2. and 4. shall be construed
as mandatory. Ballots cast in contravention of
the procedures specified in those provisions
may not be counted. Ballots counted in
contravention of the procedures specified in
those provisions may not be included in the
certified result of any election.

This tells us that, to the extent an absentee ballot does

not comply with certain statutory requirements, it may
not be counted.4
¶40 Our review in this case is of the
determinations of the board of canvassers and
elections commission. The determination shall be “set
aside or modif[ied]” if the board of canvassers or
elections commission “has erroneously interpreted a
provision of law and a correct interpretation compels
a particular action.” § 9.01(8)(d). We “may not
substitute [our] judgment for that of the board of
canvassers . . . as to the weight of the evidence on any
disputed findings of fact.” Id. However, findings of fact
“not supported by substantial evidence” shall be set
aside. Id. Legal conclusions made by the board of
canvassers or elections commission are reviewed
independently. Roth, 268 Wis. 2d 335, ¶15.

4
Wisconsin courts have had few opportunities to opine on
this statute. The court appeals noted in a 2001 case: “Section
6.84(2)’s strict construction requirement, applicable to statutes
relating to the absentee ballot process, is consistent with the
guarded attitude with which the legislature views that process.”
Lee v. Paulson, 2001 WI App 19, ¶7, 241 Wis. 2d 38, 623 N.W.2d
577.

25a
 ¶41 With this framework in mind, I turn to the
three specific categories of ballots challenged here.

II. IN-PERSON ABSENTEE

BALLOT APPLICATIONS

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

municipal clerk shall not issue an absentee ballot
unless the clerk receives a written application therefor
from a qualified elector of the municipality.” The
mandatory requirement is that each ballot be matched
with an application.
¶43 The Wisconsin Elections Commission (WEC)
has designed, approved, and distributed forms for
statewide use by local election officials. Among the
forms are a separate absentee ballot application (form
EL-121) and a combined application and certification
(form EL-122). Milwaukee and Dane Counties, like
many other communities around the state, use form
EL-122 for in-person absentee voters. The Campaign
argues that form EL-122 is not an application, and
that all 170,140 in-person absentee ballots cast in
Dane and Milwaukee Counties therefore lacked the
required “written application.” This argument is
incorrect.
¶44 “Written application” is not specially defined
in the election statutes, nor is any particular content
prescribed. EL-122 is entitled “Official Absentee Ballot
Application/Certification.” (Emphasis added). Beyond
containing basic voter information also present on
EL-121, Form EL-122 requires the elector to sign,
stating: “I further certify that I requested this ballot.”
This would appear to satisfy the ordinary meaning of
a written ballot application. See Quick Charge Kiosk
LLC v. Kaul, 2020 WI 54, ¶18, 392 Wis. 2d 35, 944

26a
N.W.2d 598 (“When statutory language is not specially
defined or technical, it is given its ‘common, ordinary,
and accepted meaning.’” (quoting State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110)).
¶45 The record further bears out its function as an
application. In both Milwaukee and Dane Counties,
voters completed the application portion of EL-122 and
showed it to an election official before receiving a
ballot.5 Then, after completing the ballot, the voter
signed the certification portion of the form, which the
clerk witnessed. Section 6.86(1)(ar) contains no
requirement that the application and certification
appear on separate documents, and the facts
demonstrate that the application was completed before
voters received a ballot. As best I can discern from this
record, EL-122 is a “written application” within the
meaning of § 6.86(1)(ar). That it also serves as a ballot
certification form does not change its status as an
application.6
¶46 Therefore, on the merits and the record before
us, in-person absentee voters using form EL-122 in
Dane and Milwaukee Counties did so in compliance

5
The Campaign appears to suggest a different sequence
of events, but that is not what the record before us reflects.
6
It is not unusual or inherently problematic for
administrative forms to have multiple functions. The MV1, for
example, serves as both an application for registration under Wis.
Stat. § 341.08 and an application for a certificate of title under
Wis. Stat. § 342.06. See https://wisconsindot.gov/Documents/
formdocs/mv1.pdf.

27a
with Wisconsin law.7

III. WITNESS ADDRESSES

¶47 The Campaign also challenges several

thousand absentee ballots cast in Milwaukee and Dane
Counties where election officials added missing
witness address information to the certification. This
challenge is oddly postured and seems to miss the
statutory requirements.
¶48 Absentee ballots cast in Wisconsin must be
witnessed. Wis. Stat. § 6.87(4)(b)1. In order to comply
with this requirement, voters place absentee ballots in
an unsealed envelope, the back of which includes a
certificate. § 6.87(2). The certificate must include a
statement for the witness to certify, along with space
for the witness’s signature, printed name, and
“[a]ddress.” Id. The law states that the “witness shall
execute” the relevant witness information – including,
one would presume, the required address. Id. “If a
certificate is missing the address of a witness, the
ballot may not be counted.” § 6.87(6d).
¶49 Although Wis. Stat. § 6.87(6d) requires an
address, § 6.87(2) and (6d) are silent on precisely what
makes an address sufficient. This is in stark contrast
to other provisions of the election statutes that are
more specific. For example, Wis. Stat. § 6.34(3)(b)2.
requires an identifying document to contain “[a]

7
It is presently unclear whether the statutes would be
better or more clearly effectuated by separating the application
and certification, or whether certain retention practices may be
problematic. The expedited nature of our review of this case does
not permit a full examination of this question. But the mandatory
procedure insofar as the voter is concerned – that he or she fill out
a written application – is surely satisfied.

28a
current and complete residential address, including a
numbered street address, if any, and the name of the
municipality” for the document to be considered proof
of residence. Similarly, Wis. Stat. § 6.18 requires
former residents to swear or affirm their Wisconsin
address as follows: “formerly residing at . . . in the . .
. ward . . . aldermanic district (city, town, village) of .
. . County of . . . .”8 While the world has surely faced
more pressing questions, the contours of what makes
an address an address has real impact. Would a street
address be enough, but no municipality? Is the state
necessary? Zip code too? Does it matter if the witness
uses their mailing address and not the residential
address (which can be different)?
¶50 Based on the record before the court, it is not
clear what information election officials added to what
number of certifications. Wisconsin Stat. § 6.87(6d)
would clearly prohibit counting a ballot if the entire
address is absent from the certification. However, if
the witness provided only part of the address——for
example, a street address and municipality, but no
state name or zip code——it is at least arguable that
this would satisfy § 6.87(6d)’s address requirement.
And, to the extent clerks completed addresses that
were already sufficient under the statute, I am not
aware of any authority that would allow such votes to

8
“And ‘absent textual or structural clues to the contrary’
a particular word or phrase used more than once in the same act
is understood ‘to carry the same meaning each time.’” Town of
Delafield v. Central Transport Kriewaldt, 2020 WI 61, ¶15 n.6,
392 Wis. 2d 427, 944 N.W.2d 819 (quoting State ex rel. DNR v.
Wis. Court of Appeals, Dist. IV, 2018 WI 25, ¶30, 380 Wis. 2d 354,
909 N.W.2d 114).

29a
be struck.9
¶51 The parties did not present comprehensive
arguments regarding which components of an address
are necessary under the statute. It would not be wise
to fully address that question now. But I do not believe
the Campaign has established that all ballots where
clerks added witness address information were
necessarily insufficient and invalid; the addresses
provided directly by the witnesses may very well have
satisfied the statutory directive. The circuit court’s
findings of fact reflect that many of these ballots
contained additions of the state name and/or zip code.
I conclude the Campaign failed to provide sufficient
information to show all the witness certifications in
the group identified were improper, or moreover, that
any particular number of ballots were improper.
¶52 Although I do not believe the Campaign has
offered sufficient proof on this record to strike ballots,
this broader issue appears to be a valid election
administration concern. WEC, other election officials,
the legislature, and others may wish to examine the
requirements of the statute and measure them against

9
The statute seems to suggest only the witness should fill
in the information necessary to comply with the statute. See Wis.
Stat. § 6.87(2) (“the witness shall execute . . . “). If a zip code is not
required under the statute, for example, I’m not sure clerks would
be prohibited from adding the zip code. Then again, I’m not sure
why they would want to add anything to an already sufficient
ballot, or what their authority would be to do so. It’s possible WEC
guidance to add witness information is aimed at complying with
related WEC guidance that all aspects of a mailing address –
including city, state, and zip code – should be included in the
witness certification (arguably, information the statute does not
always require). Regardless, this case is not well-postured to
answer these questions.

30a
the guidance and practice currently in place to avoid
future problems.

IV. DEMOCRACY IN THE PARK

¶53 Finally, the Campaign challenges 17,271

ballots the City of Madison collected at “Democracy in
the Park” events on September 27, 2020, and October
3, 2020. According to the record, at these events, sworn
city election inspectors collected already completed
absentee ballots and served as witnesses for absentee
voters who brought an unsealed, blank ballot with
them. During the events, no absentee ballots were
distributed, and no absentee ballot applications were
distributed or received.
¶54 Under the law, when a voter requests an
absentee ballot, the voter must return the absentee
ballot in a sealed envelope by mail or “in person, to the
municipal clerk issuing the ballot or ballots.” Wis.
Stat. § 6.87(4)(b)1. The phrase “municipal clerk” has a
specific meaning in the election statutes. It is defined
as “the city clerk, town clerk, village clerk and the
executive director of the city election commission and
their authorized representatives.” Wis. Stat. § 5.02(10)
(emphasis added).10 A sworn city election inspector
sent by the clerk to collect ballots would seem to be an
authorized representative as provided in the
definition. Even if “municipal clerk” were not a
specially-defined term, the only reasonable reading of
the law would allow those acting on a clerk’s behalf to

10
When words are “specially-defined” they are given their
“special definitional meaning.” State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110.

31a
receive absentee ballots, not just the clerk by him or
herself. After all, many clerks manage a full office of
staff to assist them in carrying out their duties.
Accordingly, voters who returned ballots to city
election inspectors at the direction of the clerk
returned their absentee ballots “in person, to the
municipal clerk” as required by § 6.87(4)(b)1.
¶55 The Campaign, however, asserts that the
“Democracy in the Park” events were illegal in-person
absentee voting sites that failed to meet the statutory
requirements under Wis. Stat. § 6.855. Section
6.855(1) provides in relevant part:

The governing body of a municipality may

elect to designate a site other than the office of
the municipal clerk or board of election
commissioners as the location from which
electors of the municipality may request and
vote absentee ballots and to which voted
absentee ballots shall be returned by electors
for any election. . . . If the governing body of a
municipality makes an election under this
section, no function related to voting and
return of absentee ballots that is to be
conducted at the alternate site may be
conducted in the office of the municipal clerk
or board of election commissioners.

§ 6.855(1) (emphasis added).

¶56 An alternative absentee ballot site, then, must
be a location not only where voters may return
absentee ballots, but also a location where voters “may
request and vote absentee ballots.” Id. On the facts
before the court, this is not what occurred at
“Democracy in the Park” locations. Ballots were not

32a
requested or distributed. Therefore, Wis. Stat. § 6.855
is not on point.
¶57 In short, based on the record before the court
and the arguments presented, I see no basis to
conclude the ballots collected at “Democracy in the
Park” events were cast in contravention of Wisconsin
law. This challenge fails.

V. CONCLUSION

¶58 The people of Wisconsin deserve confidence

that our elections are free and fair and conducted in
compliance with the law. Our elected leaders and
election officials, including those at WEC, should
continue to earn the trust of all Wisconsinites. The
claims made by the Campaign in this case are not of
widespread fraud or serious election improprieties.
These are ordinary sorts of election administration
issues – for example, challenging whether an
“application” form in use statewide for a decade
constitutes a sufficient application (it does). While this
does not diminish the importance of the election
procedures the legislature has chosen, Wisconsin’s
electorate should be encouraged that the issues raised
in this case are focused on rather technical issues such
as whether a witness must include their zip code as
part of their address.
¶59 That does not mean there is nothing to
improve or clarify or correct. But as explained in the
majority opinion, the Campaign waited far too long to
challenge guidance and practices established weeks,
months, or years earlier. Laches rightly bars the relief
the Campaign seeks. Even on the merits, however, the
Campaign is either incorrect on the law, or does not
provide sufficient proof to identify particular ballots

33a
that were improperly cast. At the end of the day,
nothing in this case casts any legitimate doubt that the
people of Wisconsin lawfully chose Vice President
Biden and Senator Harris to be the next leaders of our
great country. While the Campaign has every right to
challenge ballots cast out of compliance with the law,
its efforts to make that showing in this case do not
succeed.
¶60 I am authorized to state that Justice ANN
WALSH BRADLEY joins this concurrence.

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 ¶61 PATIENCE DRAKE ROGGENSACK, C.J.
(dissenting). Elections have consequences. One
candidate wins and the other loses, but in every case,
it is critical that the public perceive that the election
was fairly conducted.
¶62 In the case now before us, a significant portion
of the public does not believe that the November 3,
2020, presidential election was fairly conducted. Once
again, four justices on this court cannot be bothered
with addressing what the statutes require to assure
that absentee ballots are lawfully cast. I respectfully
dissent from that decision. I write separately to
address the merits of the claims presented.1
¶63 The Milwaukee County Board of Canvassers
and the Dane County Board of Canvassers based their
decisions on erroneous advice when they concluded
that changes clerks made to defective witness
addresses were permissible. And, the Dane County
Board of Canvassers erred again when it approved the
200 locations for ballot collection that comprised
Democracy in the Park. The majority does not bother
addressing what the boards of canvassers did or
should have done, and instead, four members of this
court throw the cloak of laches over numerous
problems that will be repeated again and again, until
this court has the courage to correct them. The
electorate expects more of us, and we are capable of

1
See Antonin Scalia, The Dissenting Opinion, 1994 J. Sup.
Ct. Hist. 33 (1994) (“Legal opinions are important, after all, for the
reasons they give, not the results they announce; results can be
announced in judgment orders without opinion. An opinion that
gets the reasons wrong gets everything wrong which is the
function of an opinion to produce.”).

35a
providing it.2 Because we do not, I respectfully dissent.

I. BACKGROUND

¶64 On November 3, 2020, people across Wisconsin

and across the country exercised their constitutional
right to vote. When the initial Wisconsin canvass was
completed on November 17, 2020, Joseph R. Biden and
Kamala D. Harris received 20,427 more votes than
Donald J. Trump and Michael R. Pence.
¶65 On November 18, 2020, President Trump, Vice
President Pence and the Trump campaign (the
Petitioners) filed recount petitions in Milwaukee and
Dane Counties. The recount petitions alleged that the
following errors occurred during the election in both
counties:

(1) Municipal clerks improperly completed

missing information on absentee ballot
envelopes related to witness addresses;

(2) In-person absentee voters did not submit

written applications for an absentee ballot;
and

2
See, e.g, Texas v. Pennsylvania, 592 U.S. ____, ____ (slip
op., at 1) (Dec. 11, 2020) (order denying motion to file bill of
complaint) (Alito and Thomas, J.J., statement on the denial of
Texas’s motion to file a bill of complaint) (“In my view we do not
have discretion to deny the filing of a bill of complaint in a case
that falls within our original jurisdiction. . . . I would therefore
grant the motion to file the bill of complaint but would not grant
other relief, and I express no view on any other issue”)(internal
citation omitted).

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 (3) Voters who were not indefinitely confined
claimed “indefinitely confined” status for the
purposes of obtaining an absentee ballot
without having to show a photo identification.

¶66 In addition to the above allegations raised

during both recounts, in Dane County, the Petitioners
alleged error in counting all ballots received during
Democracy in the Park events in Madison on
September 26, 2020, and October 3, 2020.
¶67 The recount lasted from November 20, 2020,
to November 29, 2020.3 During the recount process,
the Petitioners objected to irregularities in how the
voting was conducted pursuant to Wis. Stat. § 9.01(5)
(2017-18).4 Many irregularities were grounded in
Wisconsin Elections Commission (WEC) advice on
voting process. The boards of canvassers overruled all
of the Petitioners’ irregularity objections.

¶68 As they relate to each alleged irregularity, the

counties rejected the Petitioners’ arguments for the
following reasons:

(1) Municipal clerks improperly completed missing

information on absentee ballot envelopes related to
witness addresses.

The Milwaukee County Board of Canvassers

moved to accept ballots from envelopes with

3
Milwaukee County completed and certified its results on
November 27, 2020, and Dane County completed and certified its
recount results on November 29, 2020.
4
All further references to the Wisconsin Statutes are to
the 2017-18 version.

37a
 witness addresses that had been completed by
clerks consistent with specific guidance by the
WEC, which the Board viewed as consistent
with Wis. Stat. § 6.87(6d).

The Dane County Board of Canvassers also

declined to “exclude envelopes that had a
witness address added by the clerk.”

(2) In-person absentee voters did not submit

written applications for an absentee ballot.

The Milwaukee County Board of Canvassers

determined that there are multiple forms of
application for an absentee ballot that can be
made by absentee in-person voters and that
the absentee ballot envelope provided to
absentee in-person voters – which has the
word “application” stated on it and must be
completed by the voter – is an application for
an absentee ballot. The Milwaukee Board thus
rejected the Trump Campaign’s challenge to
ballots cast by in-person absentee voters.

The Dane County Board of Canvassers voted

not to exclude or draw down any absentee
ballots on the basis that they “do not have an
attached or identifiable application.” . . . The
Dane County Board of Canvassers concluded
that review of absentee ballot applications is
not a part of the statutory recount process
under Wis. Stat. § 9.01(1)(b) and therefore the
applications were not relevant to the recount.

38a
 (3) Voters who were not indefinitely confined
claimed “indefinitely confined” status for the purposes
of obtaining an absentee ballot without having to show
a photo identification.

The Milwaukee County Board of Canvassers

found that “a designation of an indefinitely
confined status is for each individual voter to
make based upon their current circumstances”
and that “no evidence of any voter in
Milwaukee County [was] offered that has
abused this process and voted through this
status . . . not even an allegation that there
was a single voter who abused this process to
vote without providing proof of their ID, but
eliminating proof that anyone did so. So
there’s no allegation . . . no proof . . . no
evidence.” . . . The Board voted to overrule any
challenge to a voter with the status of
“indefinitely confined.”

The Dane County Board of Canvassers also

rejected the Trump Campaign’s challenge that
would have required invalidating the ballots of
all electors in Dane County who declared
indefinitely confined status. The Board
specifically declined to separate or “draw
down” the ballots cast by electors who declared
indefinitely confined status.

(4) Ballots received during democracy in the park.

The Dane County Board of Canvassers denied

the challenge, ruling that the Democracy in
the Park events were the equivalent of a

39a
 human drop box and valid under the statute.

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

petition for leave to file an original action with us. We
denied that petition on December 3, 2020. That same
day, the Petitioners filed two notices of appeal of the
recount determinations pursuant to Wis. Stat. §
9.01(6)(a). Those cases were consolidated in Milwaukee
County and the Honorable Stephen Simanek was
assigned to the appeal pursuant to § 9.01(6)(b).
¶70 The circuit court held a hearing on December
11, 2020. At the conclusion of oral argument, the
circuit court affirmed the recount determinations and,
in so doing, adopted pages one through thirty of the
Respondents’ Joint Proposed Findings of Fact and
Conclusions of Law. After the circuit court entered its
final written decision, the Petitioners filed a notice of
appeal. The Petitioners also filed a petition for bypass
under Wis. Stat. § 809.60(1). Thereafter, we granted
the petition for bypass and assumed jurisdiction over
this appeal.

II. DISCUSSION

A. Standard of Review

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

challenges “are permissible provided that they may
affect the election results.” Logerquist v. Board of
Canvassers for Town of Nasewaupee, 150 Wis. 2d 907,
916, 442 N.W.2d 551 (Ct. App. 1989). In such a
proceeding, we review the determinations of the board
of canvassers, not those of the circuit court. Id. at 917.
“On appellate review of a [] § 9.01(1) proceeding, the
question is whether the board [of canvasser’s] findings

40a
are supported by substantial evidence.5 Carlson v.
Oconto Bd. of Canvassers, 2001 WI App 20, ¶5, 240
Wis. 2d 438, 623 N.W.2d 195 (citing Logerquist, 150
Wis. 2d at 912).
¶72 This appeal also requires us to interpret and
apply Wisconsin statutes. We interpret and apply
statutes independently as questions of law, while
benefitting from the discussion of the circuit court.
Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, ¶12,
373 Wis. 2d 348, 891 N.W.2d 803.

B. Alleged Irregularities

¶73 “If WEC has been giving advice contrary to

statute, those acts do not make the advice lawful.
WEC must follow the law. We, as the law declaring
court, owe it to the public to declare whether WEC’s
advice is incorrect. However, doing so does not
necessarily lead to striking absentee ballots that were
cast by following incorrect WEC advice. The remedy
Petitioners seek may be out of reach for a number of
reasons.” Trump v. Evers, No. 2020AP1917-OA,
unpublished order (Wis. Dec. 3, 2020) (Roggensack,
C.J., dissenting from the denial of the petition for
leave to commence an original action).
¶74 This case is guided by Wis. Stat. § 6.84 which
provides:

The legislature finds that voting is a

constitutional right, the vigorous exercise of

5
In the matter before us, the material facts are not
disputed. Rather, it is the legal consequences that follow from
these facts that forms the controversy.

41a
 which should be strongly encouraged. In
contrast, voting by absentee ballot is a
privilege exercised wholly outside the
traditional safeguards of the polling place. The
legislature finds that the privilege of voting by
absentee ballot must be carefully regulated to
prevent the potential for fraud or abuse; to
prevent overzealous solicitation of absent
electors who may prefer not to participate in
an election; to prevent undue influence on an
absent elector to vote for or against a
candidate or to cast a particular vote in a
referendum; or other similar abuses.

Notwithstanding s. 5.01, with respect to

matters relating to the absentee ballot process,
ss. 6.86, 6.87(3) to (7) and 9.01(1)(b)2. and 4.
shall be construed as mandatory. Ballots cast
in contravention of the procedures specified in
those provisions may not be counted. Ballots
counted in contravention of the procedures
specified in those provisions may not be
included in the certified result of any election.

Accordingly, the provisions that relate to obtaining

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

6
See also Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th
Cir. 2004) (“Voting fraud is a serious problem in U.S. elections
generally . . . and it is facilitated by absentee voting. In this
respect absentee voting is to voting in person as a take-home
exam is to a proctored one.” (internal citations omitted)).

42a
 C. Witness Addresses

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

absentee ballots must be accompanied by a certificate.
The certificate may be printed on the envelope in
which an absentee ballot is enclosed. Section 6.87(2)
provides a model certificate, and directs that
certificates must be in “substantially” the same form
as the model. The model provides:

The witness shall execute the following:

I, the undersigned witness, subject to the

penalties of s. 12.60 (1)(b), Wis. Stats., for false
statements, certify that I am an adult U.S.
citizen and that the above statements are true
and the voting procedure was executed as
there stated. I am not a candidate for any
office on the enclosed ballot (except in the case
of an incumbent municipal clerk). I did not
solicit or advise the elector to vote for or
against any candidate or measure.

....(Printed name)

....(Address)

Signed ....”[7]

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

that it is the witness who must affix his or her
signature and write in his or her name and address.
Section 6.87(2) does not mention an election official

7
Asterisks removed.

43a
taking any action.

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

election official may do if an absentee ballot is received
with an improperly completed certificate or no
certificate:

[T]he clerk may return the ballot to the

elector, inside the sealed envelope when an
envelope is received, together with a new
envelope if necessary, whenever time permits
the elector to correct the defect and return the
ballot within the period authorized under sub.
(6).

Section 6.87(9)’s plain language authorizes election

officials to return the ballot to “the elector” to correct
“the defect.” It does not authorize election officials to
make corrections, i.e., to write anything on the
certificate.
¶77 In addition, Wis. Stat. § 6.87(6d) provides that
“[i]f a certificate is missing the address of a witness,
the ballot may not be counted.” This language is clear.
And furthermore, its legislative history confirms its
plain meaning. Westmas v. Creekside Tree Serv., Inc.,
2018 WI 12, ¶20, 379 Wis. 2d 471, 907 N.W.2d 68
(quoting State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d
439, 752 N.W.2d 769) (explaining that courts may
consult legislative history to confirm a statute’s plain
meaning). This subsection was added by 2015 Wis. Act
261. A memorandum prepared by the Legislative
Council provides that “Act 261 . . . requires an
absentee ballot to have a witness address to be
counted. An absentee ballot voter must complete the
certification and sign the certification in the presence

44a
of a witness, and the witness must sign the certificate
and provide his or her name and address.” Wis. Legis.
Council Act Memo, 2015 Wis. Act 261, at 2,
https://docs.legis.wiscinsin.gov/2015/related/lcactme
mo/act261.pdf.
¶78 The contention that ballots with defective
addresses cannot be counted is supported by more
than the plain meaning of Wis. Stat. § 6.87(6d). The
requirement that such ballots not be counted is found
in Wis. Stat. § 6.84(2), which provides that the
provisions in § 6.87(6d) are “mandatory.”
¶79 Notwithstanding the plain, clear requirements
of two statutes, WEC’s guidance explicitly directs
municipal clerks that they “must take corrective
actions in an attempt to remedy a witness address
error.” WEC guidance states, “municipal clerks shall
do all that they can reasonably do to obtain any
missing part of the witness address.” Then in addition,
the WEC instructs clerks to add witness address
information even though the guidance acknowledges
that “some clerks have expressed [concern] about
altering information on the certificate envelope,
especially in the case of a recount.”
¶80 The WEC ignores that the legislature provided
only one act an election official may take in regard to
a defective witness address: mail the defective ballot
back to the elector to correct the error. Wis. Stat. §
6.87(9). That the legislature made one choice about
correcting a defective witness address excludes other
methods of correction. “[T]he express mention of one
matter excludes other similar matters [that are] not
mentioned.” FAS, LLC v. Town of Bass Lake, 2007 WI
73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (quoting
Perra v. Menomonee Mut. Ins. Co., 2000 WI App 215,
¶12, 239 Wis. 2d 26, 619 N.W.2d 123) (modifications in

45a
the original). In addition, and similarly, § 6.87(2)
states, “[t]he witness shall execute the following . . .
(Address).” It does not state that clerks shall execute
anything.
¶81 My conclusion that errors in the certification
of absentee ballots require discarding those ballots is
consistent with our precedent. In Kaufmann v. La
Crosse City Bd. of Canvassers, 8 Wis. 2d 182, 98
N.W.2d 422 (1959), absentee ballots were returned to
a municipal clerk without bearing a notary’s signature
on the accompanying certificate envelope, as required
by statute at that time. The clerk added her signature
to the certificates. Id. at 183. We explained that the
electors’ failure to ensure that the certificate complied
with the statute invalidated the ballots. Additionally,
we stated, “[t]he fact that the . . . clerk further
complicated the matter by signing her name to the . .
. certificate cannot aid the voter. The two wrongs
cannot make a right.” Id. at 186. The ballots were not
counted. Id. In the case at hand, a defective witness
address cannot be corrected by a clerk, just as the
signature of the notary could not be completed by the
clerk in Kaufmann.
¶82 In Gradinjan v. Boho (In re Chairman in Town
of Worchester), 29 Wis. 2d 674, 139 N.W.2d 557 (1966),
absentee ballots were issued without the municipal
clerk’s initials or signature, as required by statute at
that time. We concluded that the ballots “should not
have been counted.” Id. at 683. Furthermore, we said
that the statute that obligated the invalidation of these
ballots survived constitutional attack. Id. at 683–84.
We emphasized that absentee voting is subject to
different statutory requirements than voting at a
polling place, i.e., while a ballot cast at a polling place
without initials or a signature may be countable, an

46a
absentee ballot subject to an analogous defect is not.
Id. at 684. As we stated, “[c]learly, the legislature
could determine that fraud and violation of the
sanctity of the ballot could much more readily be
perpetrated by use of an absentee ballot than under
the safeguards provided at a regular polling place.” Id.
In the case at hand, a witness address is a statutory
requirement, mandated by law, just as the initials or
signature of the municipal clerk was in Gradinjan.
¶83 The canvassing boards deferred to the WEC’s
guidance about defective signatures and it appears
that the circuit court did so as well when interpreting
Wis. Stat. § 6.87. The circuit court stated:

Adding, the requisite information by the clerk

has been in effect since before the 2016
election. The election which Trump prevailed
in Wisconsin, I believe, after a recount. It’s
longstanding, I believe it’s not prohibited by
law, and it is therefore a reasonable
interpretation to make sure, as the as the
Court indicated earlier, that the will of the
electors, the voters, are brought to fruition.

It is unfortunate that WEC has such sway, especially

when its “guidance” is contrary to the plain meaning of
two statutes.
¶84 Furthermore, we do not defer to
administrative agencies when interpreting statutes.
Wis. Stat. § 227.57(11); see also Lamar Cent. Outdoor,
LLC v. Div. of Hearings & Appeals, 2019 WI 109, ¶9,
389 Wis. 2d 486, 936 N.W.2d 573 (quoting Tetra Tech
EC, Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496,
914 N.W.2d 21). Accordingly, the issue is not whether
the WEC adopted “a reasonable interpretation,” as the

47a
circuit court seems to have suggested. We follow the
plain meaning rule when interpreting statutes, which
we do independently. State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110. “If the meaning of the statute is
plain, we ordinarily stop the inquiry.” Id., ¶45 (quoting
Seider v. O’Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211,
612 N.W.2d 659).
¶85 And finally, guidance documents “are not law,
they do not have the force or effect of law, and they
provide no authority for implementing or enforcing
standards or conditions.” Service Emps. Int’l Union,
Local 1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38, 946
N.W.2d 35. Guidance documents “impose no
obligations, set no standards, and bind no one.” Id.
“Functionally, and as a matter of law, they are entirely
inert.” Id.
¶86 Administrative agencies, including the WEC,
often treat their guidance as if it were law, but that
does not make it so. Id., ¶143 (Roggensack, C.J,
concurring/dissenting). Such treatment is
inappropriate – it confuses people by making them
think that they have a legally cognizable reliance
interest in WEC’s guidance when they do not.

D. Written Applications

¶87 The Petitioners assert that during the two

weeks that permit early in-person absentee voting
170,151 electors who did not submit a sufficient
“written application” before receiving an absentee
ballot cast votes. The crux of the Petitioners’ argument
is that the written application must be “separate” from
the ballot and the certification.

48a
 ¶88 The statutes provide that in the two weeks
leading up to an election, electors may go to the
municipal clerk’s office and apply for an absentee
ballot. Upon proof of identification, the elector receives
a ballot, marks the ballot, the clerk witnesses the
certification and the elector casts a vote by returning
the absentee ballot to the municipal clerk. Wis. Stat.
§ 6.86(1)(b).
¶89 Pursuant to Wis. Stat. § 6.86(1)(ar), “the
municipal clerk shall not issue an absentee ballot
unless the clerk receives a written application therefor
from a qualified elector.” Other statutes provide for
similar requirements. See, e.g., Wis. Stat. §
6.86(1)(a)1.-6. (stating that “[a]ny elector of a
municipality who is registered to vote . . . and who
qualifies . . . as an absent elector may make written
application to the municipal clerk of that municipality
for an official ballot by one of the following methods,”
which are then listed); Wis. Stat. § 6.86(1)(ac) (stating
that electors “may make written application to the
municipal clerk for an official ballot by means of
facsimile transmission or electronic mail”).
¶90 We begin statutory interpretation with the
language of the statute. Kalal, 271 Wis. 2d 633, ¶45.
“Statutory language is given its common, ordinary,
and accepted meaning, except that technical or
specially-defined words or phrases are given their
technical or special definitional meaning.” Id.
¶91 None of the statutes in question contain the
word “separate.” Rather, a “written application” is
required before the elector’s identity is established
with a photo identification and the elector receives an
absentee ballot. See Wis. Stat. §§ 6.86(1)(a), (ac), (ar),
(b), 6.86(2m). Furthermore, § 6.86(2m) provides that
“The application form and instructions shall be

49a
prescribed by the commission . . . .” Here, the statutes
do not provide a form application; the statutes do not
define what is required on an application, but simply
that it be written. Form EL 122 was employed here to
apply for a ballot in-person.
¶92 Form EL 122 requires the applicant for an
absentee ballot to provide the applicant’s name, street
address, city, and zip code. It also asks for the date of
the election for which the application is being made
and the county and municipality in which the
applicant votes. The substantive information that the
application requests is substantially similar to form
EL 121, which is titled “Wisconsin Application for
Absentee Ballot.” Each of these application forms
requires writing prior to being submitted by electors in
advance of an elector receiving an absentee ballot.8

E. Indefinitely Confined

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

by which some electors may obtain an absentee ballot
outside of the mode outlined above. Those who are
“indefinitely confined because of age, physical illness
or infirmity or are disabled for an indefinite period”
may apply for an absentee ballot on that basis. Id.
Those electors are then excused from the absentee
ballot photo identification requirement. Wis. Stat. §
6.87(4)(b)1.

8
This order of operations was confirmed in several
affidavits. The affiants asserted that before they received their
ballots the clerk’s office verified their photo identification and
voter registration. The electors were then given an EL-122
envelope and instructed to complete it. Once the application was
completed, the voters received their ballots

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 ¶94 The Petitioners contend that all votes cast by
electors claiming indefinitely confined status after
March 25, 2020 (the date of McDonell’s Facebook post)9
are invalid. However, we have discussed the
indefinitely confined status in Jefferson v. Dane Cnty.,
2020 WI 90, ___ Wis. 2d ___, ___ N.W.2d ____, which is
released today, December 14, 2020.
¶95 In the pending matter, we do not have
sufficient information about the 28,395 absentee voters
who claimed this status in Milwaukee and Dane
counties to determine whether they lawfully asserted
that they were indefinitely confined prior to receiving
an absentee ballot. Therefore, I go no further in
addressing this contention.

F. Democracy in the Park

¶96 On September 26, 2020 and October 3, 2020,

at more than 200 City of Madison parks,10 the City of
Madison held events called, “Democracy in the Park.”
During those events, poll workers, also referred to as
“election inspectors,” helped in the completion of ballot
envelopes, acted as witnesses for voters and collected
completed ballots.11 17,271 absentee ballots were voted

9
On March 25, 2020, Dane County Clerk, Scott McDonell,
stated on Facebook that community members are encouraged to
claim indefinitely confined status due to COVID-19 and Governor
Evers’ then-active Emergency Order #12.
10
Affidavit of Maribeth Witzel-Behl, Madison City Clerk.

11
Id.

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and delivered to these poll workers.12
¶97 The poll workers who staffed Democracy in the
Park were volunteers. They were not employees of the
City of Madison Clerk’s office.
¶98 Wisconsin Stat. § 6.87(4)(b)1. requires that
when voting an absentee ballot “[t]he envelope
[containing the ballot] shall be mailed by the elector,
or delivered in person, to the municipal clerk issuing
the ballot or ballots.” In addition, the plain words of
Wis. Stat. § 6.84(2) specifically direct that the
provisions of § 6.87(4)(b)1. “shall be construed as
mandatory.” Notwithstanding the use of “shall” in §
6.87(4)(b)1. and the “mandatory” requirement to
comply with the terms of § 6.87(4)(b)1. in § 6.84(2), the
17,271 ballots that were collected in Madison parks did
not comply with the statutes. Stated otherwise, they
were not “delivered in person, to the municipal clerk.”
¶99 It is conceivable that the 200 sites for
Democracy in the Park could have become alternate
absentee ballot sites. If the Madison Common Council
had chosen to designate a site other than the
municipal clerk’s office as the location from which
voters could request and to which they could return
absentee ballots, an alternate absentee ballot site
could have been established. Wis. Stat. § 6.855(1). The
statute also provides that the governing body of a
municipality may designate more than one alternate
site. § 6.855(5).13
¶100 However, if Democracy in the Park were held
to be 200 alternate absentee ballot sites, then “no
function related to voting and return of absentee

12
Id.
13
However, 200 alternate sites does seem a bit much.

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ballots. . . . may be conducted in the office of the
municipal clerk.” Wis. Stat. § 6.855(1). This
requirement does not fit the facts because the Madison
clerk’s office continued to provide and accept return of
absentee ballots. Therefore, these 200 park events do
not meet the statutory criteria set out in § 6.855 for
alternate absentee ballot sites.
¶101 One wonders, what were they? It is
contended that they were “human drop boxes.” That
gives little comfort because drop boxes are not found
anywhere in the absentee voting statutes. Drop boxes
are nothing more than another creation of WEC to get
around the requirements of Wis. Stat. § 6.87(4)(b)1.
The plain, unambiguous words of § 6.87(4)(b)1. require
that voted ballots “shall be mailed by the elector, or
delivered in person, to the municipal clerk issuing the
ballot or ballots.” Drop boxes do not meet the
legislature’s mandatory directive.
¶102 However, because drop boxes are not
separately identified as a source of illegal voting in
this lawsuit, I will not dwell on the accountability
problems they create, but I do not doubt that
challenges to drop boxes in general and in specific
instances will be seen as problems in future elections.
Therefore, we may have the opportunity to examine
them in a case arising from a subsequent election.14

14
We had the opportunity to examine the use of drop
boxes in Mueller v. Jacobs, 2020AP1958-OA, but the court refused
to grant review, from which decision Annette Kingsland Ziegler,
J., Rebecca Grassl Bradley, J. and I dissented.

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 ¶103 It is also Respondent’s contention that the
poll workers who staffed these events were agents15 of
the city clerk; and therefore, delivery of ballots to them
was personal delivery to the clerk within the meaning
of Wis. Stat. § 6.87(4)(b)1. This is an amazing
contention. Without question, delivery to voluntary
poll workers is not “delivered in person to the
municipal clerk,” as § 6.87(4)(b)1. requires.
¶104 The legislature prescribed the absentee
voting procedure in Wis. Stat. § 6.87(4)(b)1. and
commanded that those procedures are “mandatory” in
Wis. Stat. § 6.84(2). Gatherings in 200 city parks did
not meet the statutory requirements for lawful
absentee voting. They also lack the safety and
solemnity that are attached to personally delivering
absentee ballots to the municipal clerk.

III. CONCLUSION

¶105 The Milwaukee County Board of Canvassers

and the Dane County Board of Canvassers based their
decisions on erroneous advice when they concluded
that changes clerks made to defective witness
addresses were permissible. And, the Dane County
Board of Canvassers erred again when it approved the
200 locations for ballot collection that comprised
Democracy in the Park. The majority does not bother
addressing what the boards of canvassers did or

15
I would be amazed if the City of Madison agreed that all
the volunteer poll workers who staffed Democracy in the Park
were legally agents of the city clerk given the exposure to liability
such a determination would bring. Lang v. Lions Club of Cudahy
Wis., Inc., 2020 WI 25, ¶25, 390 Wis. 2d 627, 939 N.W.2d 582 (lead
opinion).

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should have done, and instead, four members of this
court throw the cloak of laches over numerous
problems that will be repeated again and again, until
this court has the courage to correct them. The
electorate expects more of us, and we are capable of
providing it. Because we do not, I respectfully dissent.
¶106 I am authorized to state that Justices
ANNETTE KINGSLAND ZIEGLER, and REBECCA
GRASSL BRADLEY join this dissent.

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 ¶107 ANNETTE KINGSLAND ZIEGLER, J.
(dissenting). We are called upon to declare what the
law is. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177 (1803) (“It is emphatically the province and duty
of the judicial department to say what the law is.”).
Once again, in an all too familiar pattern, four
members of this court abdicate their responsibility to
do so. They refuse to even consider the uniquely
Wisconsin, serious legal issues presented. The issues
presented in this case, unlike those in other cases
around the United States, are based on Wisconsin
statutory election law. Make no mistake, the majority
opinion fails to even mention, let alone analyze, the
pertinent Wisconsin statutes. Passing reference to
other states’ decisionmaking is of little relevance given
the Wisconsin legal issues at stake. See Roggensack,
C.J., dissent, supra; Rebecca Grassl Bradley, J.,
dissent, infra. The people of Wisconsin deserve an
answer – if not for this election, then at least to protect
the integrity of elections in the future. Instead of
providing clarity, the majority opinion is, once again,
dismissive of the pressing legal issues presented.
¶108 The majority author’s concurrence is even
more dismissive of the need for clarity in Wisconsin
election law stating that he “understand[s] the desire
for at least some clarity regarding the underlying
election administration issues . . . [but] its just not
possible.” Hagedorn, J., concurrence, ¶36. Indeed, we
are presented with a rare opportunity to meaningfully
engage in, among other things, a known conflict
between guidance, given by an unelected committee,
and what the law requires. These are more than mere
“election administration issues.” See Rebecca Grassl
Bradley, J., dissent, infra. This case presents not just
a “desire” for clarity in the law, our constitutional duty

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requires us to declare what the law is. Quite obviously,
defaulting to laches and claiming that it is “just not
possible,” is directly contradicted by the majority
author’s own undertaking. If it is important enough to
address in his concurrence, then it should also satisfy
the discretionary standard which overcomes the
application of laches. Instead of undertaking the duty
to decide novel legal issues presented, this court shirks
its institutional responsibility to the public and
instead falls back on a self-prescribed, previously
unknown standard it calls laches.
¶109 Stated differently, the majority claims the
petitioners were too late, should have acted earlier and
therefore, the court is neutered from being able to
declare what the law is. The majority basically
reiterates respondents’ soundbites. In so doing, the
majority seems to create a new bright-line rule that
the candidates and voters are without recourse and
without any notice should the court decide to later
conjure up an artificial deadline concluding that it
prefers that something would have been done earlier.
That has never been the law, and it should not be
today. It is a game of “gotcha.” I respectfully dissent,
because I would decide the issues presented and
declare what the law is.

I. ABDICATION OF CONSTITUTIONAL DUTY

¶110 Unfortunately, our court’s adoption of laches

as a means to avoid judicial decisionmaking has
become a pattern of conduct. A majority of this court
decided not to address the issues in this case, when
originally presented to us by way of an original action.
Trump v. Evers, No. 2020AP1971-OA, unpublished
order (Wis. Dec. 3. 2020). In concluding that it is again

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paralyzed from engaging in pertinent legal analysis,
our court unfortunately provides no answer or even
any analysis of the relevant statutes, in the most
important election issues of our time. See Hawkins v.
Wisconsin Elections Comm’n, 2020 WI 75, 393 Wis. 2d
629, 948 N.W.2d 877; Trump v. Evers, No.
2020AP1971-OA (Rebecca Grassl Bradley, J.,
dissenting); Mueller v. Jacobs, No. 2020AP1958-OA,
unpublished order (Wis. Dec. 3, 2020) (Roggensack,
C.J., Ziegler, and Rebecca Grassl Bradley, JJ.
dissenting); Wis. Voters Alliance v. Wisconsin Elections
Comm’n, No. 2020AP1930-OA, unpublished order
(Wis. Dec. 4, 2020) (Roggensack, C.J., dissenting).
¶111 Instead, the majority relies on what only can
be viewed as a result-oriented application of the
equitable doctrine of laches to avoid declaring what the
law is. To be clear, I am not interested in a particular
outcome. I am interested in the court fulfilling its
constitutional responsibility. While sometimes it may
be difficult to undertake analysis of hot-button legal
issues – as a good number of people will be upset no
matter what this court does – it is our constitutional
duty. We cannot hide from our obligation under the
guise of laches. I conclude that the rule of law and the
equities demand that we answer these questions for
not only this election, but for elections to come. I have
concern over this court’s pattern of indecision because
that leaves no court declaring what Wisconsin election
law is. See Roggensack, C.J., dissent, supra; Rebecca
Grassl Bradley, J., dissent, infra. We can and should
do better for the people of Wisconsin and for the
nation, which depends on Wisconsin following its
election laws.
¶112 Regarding this court’s continued pattern of
abdicating its responsibility concerning election issues,

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earlier this term in Hawkins, the same members of the
court relied on laches, without any analysis
whatsoever of that doctrine, and denied a rightful
candidate the opportunity to be placed on the ballot as
a presidential candidate. Thus, the court likewise
denied the voters the opportunity to choose that
candidate’s name amongst the others on the ballot. See
Hawkins, 393 Wis. 2d 629 (Ziegler, J., dissenting).1
The court in Hawkins, about two months before the
November election, declared that it was unable to act,
citing the doctrine of laches, and applied a newly
invented and previously unknown, self-imposed,
result-oriented, laches-based deadline as an excuse for
inaction. Id.

II. LACHES DOES NOT AND

SHOULD NOT BAR THIS CASE

¶113 Once again, the majority imposes its

definition of laches, which is tailored to its judicial
preference rather than based on well-established legal
principles. The majority must know that under this
court’s previous laches jurisprudence, it should
nonetheless address the merits of the issues. As this
court has consistently held, “[l]aches is an affirmative,

1
In 2016, the Green Party candidates received 31,072
votes. See Certificate of Ascertainment for President, Vice
President and Presidential Electors General Election – November
8, 2016, available at https://www.archives.gov/files/electoral-
college/2016/ascertainment-wisconsin.pdf. In 2020, the Green
Party candidates received only 1,089 votes. See WEC Canvass
Results for 2020 General Election, available at https://elections.wi.
gov/sites/elections.wi.gov/files/Statewide%20Results%20All%20
Offices%20%28pre-Presidential%20recount %29.pdf.

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equitable defense designed to bar relief when a
claimant’s failure to promptly bring a claim causes
prejudice to the party having to defend against that
claim.” Wisconsin Small Bus. United, Inc. v. Brennan,
2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. In
Wisconsin, a defendant must prove three elements for
laches to bar a claim: “(1) a party unreasonably delays
in bringing a claim; (2) a second party lacks knowledge
that the first party would raise that claim; and (3) the
second party is prejudiced by the delay.” Id., ¶12. Even
if respondents carry their burden of proving all three
elements of laches, “application of laches is left to the
sound discretion of the court asked to apply this
equitable bar.” Id.
¶114 The petitioners raised four allegations
regarding election administration: Absentee ballots
lacking a separate application; absentee envelopes that
are missing or have a defective witness address;
indefinitely confined voters/faulty advice from election
officials; and ballots cast at Madison’s Democracy in
the Park/ballot drop boxes. The respondents cannot
demonstrate that laches bars a single one of these
claims, and, even if they could, the court could still and
should exercise its discretion to hear these issues.

A. No Unreasonable Delay

¶115 The first element of a laches defense requires

the respondents to prove the petitioners unreasonably
delayed in making their allegations. “What constitutes
a reasonable time will vary and depends on the facts of
a particular case.” Wisconsin Small Bus. United, 393
Wis. 2d 308, ¶14.
¶116 Convenient to its purpose, the majority
frames this case to meet its preferred outcome. The

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majority characterizes this suit as a challenge to
general election policies rather than what it is: this
lawsuit is a challenge to specific ballots that were cast
in this election, contrary to the law. The majority
states, “[t]he time to challenge election policies such as
these is not after all ballots in the election have been
cast and the votes tallied.” Majority op., ¶22. According
to the majority, “[s]uch delay in light of these specific
challenges is unreasonable.” Id. The majority misses
the mark.
¶117 In other words, contrary to the majority’s
characterizations, this case is not about general
election procedure: it is about challenging specific
ballots. In Wisconsin, while voting is a right, absentee
voting is a privilege, not a right. Wis. Stat. § 6.84(1).
The Wisconsin Legislature has created a set of
mandatory rules to which the voters must adhere for
their absentee ballots to count.2 Consistent with
express mandatory rules, the petitioners allege that
certain ballots were cast that did not adhere to the law
and, therefore, should not be counted. It is a specific
question: Were the ballots cast according to the law as
stated in the statutes and if not, what, if any, remedy,
exists?
¶118 With this proper framing of the issue, it is
clear that the petitioners did not unreasonably delay
in challenging the ballots. To somehow require that
challenges must be made and legal relief given before

2
See Wis. Stat. § 6.84(2) (“Notwithstanding s. 5.01(1), with
respect to matters relating to the absentee ballot process, ss. 6.86,
6.87(3) to (7) and 9.01(1)(b)2. and 4. shall be construed as
mandatory. Ballots cast in contravention of the procedures
specified in those provisions may not be counted. Ballots counted
in contravention of the procedures specified in those provisions
may not be included in the certified result of any election.”).

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an election, before the ballots are cast and before a
recount is absurd. No recount would ever amount to
relief if that is the lodestar.
¶119 Thus, the petitioners did not unreasonably
delay in filing this suit, and this element of laches has
not been demonstrated as to any of the four allegations
of election irregularity.

B. Respondents Knew
Ballots Would Be Challenged.

¶120 The second element of laches addresses the

knowledge of the party asserting laches. See Wis.
Small Bus. United, 393 Wis. 2d 308, ¶18. If the party
lacks knowledge of claim, the respondents have
satisfied this element. Id. The majority summarily
accepts, without any analysis, that “[t]he respondents
all . . . were unaware that the Campaign would
challenge various election procedures after the election
. . . .” Majority op., ¶23. Virtually nothing is in the
record to support this assertion other than the parties’
statements. In other words, the majority accepts one
side’s statements as fact in order to disallow the other
side its day in court.
¶121 As explained above, this is a challenge to the
ballots cast in this election. The President tweeted
numerous times shortly after Wisconsin announced
the election results that he would challenge the results
and prove certain ballots were impermissibly cast.3
The majority chose to accept the respondents’
assertion that they did not see this lawsuit coming

3
See, e.g., Donald J. Trump (@realDonaldTrump), Twitter
(Nov. 28, 2020, 2:00 p.m.), https://twitter.com/ realDonaldTrump/
status/1332776310196883461.

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despite the record to the contrary.
¶122 Moreover, the majority is incorrect that
“nothing in the record suggests” that the respondents
knew what the petitioners would be challenging.
Majority op., ¶23. In fact, Wisconsin law mandates
that the petitioners expressly declare on what grounds
they plan to challenge the ballots in a recount. Wis.
Stat. § 9.01(1). In the petitioners’ recount petition, the
petitioners specifically laid out these claims.
¶123 Thus, the majority’s conclusion with respect
to this element is particularly lean given the record. It
is at least more than plausible that respondents had
knowledge that the petitioners would challenge the
ballots in a lawsuit.

C. Respondents Lack Prejudice.

¶124 Even if the respondents could prove the first

two elements, the respondents themselves are not
prejudiced by this delay. “What amounts to prejudice
. . . depends upon the facts and circumstances of each
case, but it is generally held to be anything that places
the party in a less favorable position.” Wis. Small Bus.
United, 393 Wis. 2d 308, ¶19. The party seeking to
apply laches must “prove that the unreasonable delay”
prejudiced the party, not a third party. State ex rel.
Wren v. Richardson, 2019 WI 110, ¶32, 389 Wis. 2d
516, 936 N.W.2d 587. This court recognizes two
different types of prejudice: evidentiary and economic.
Id., ¶33. Evidentiary prejudice is where “the defendant
is impaired from successfully defending itself from suit
given the passage of time.” Id., ¶33 n.26. Economic
prejudice occurs when “the costs to the defendant have
significantly increased due to the delay.” Id.

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 ¶125 The majority abandons these principles of
laches and instead focuses on the prejudice to third
parties. The majority states that “[t]o strike ballots
cast in reliance on the guidance now, and to do so in
only in two counties, would violate every notion of
equity that undergirds our electoral system.” Majority
op., ¶25. This is a new manner in which to approach
the legal analysis of prejudice. The majority does not
explain how this potential remedy prevents us from
hearing the merits of this case. The majority does not
explain how these notions are either evidentiary or
economic prejudice, nor does it consider how it
prejudices the actual parties in this case. It is unusual
to conclude that overwhelming prejudice exists such
that the court is paralyzed from considering whether
the law was followed. In other words, the majority
seems to be saying that they do not wish to grant relief
and therefore they will not analyze the law. This
remedy-focused analysis is not typical to laches.
¶126 Neither type of prejudice applies to the
respondents in this case. None of the respondents
claimed that they were unable to successfully defend
themselves. All respondents filed briefs in this court
addressing the merits. The circuit court’s opinion
addresses the merits. Accordingly, evidentiary
prejudice does not apply. Furthermore, no respondents
have claimed that the costs of defending this claim
have “significantly increased due to the delay.”
Accordingly, economic prejudice does not apply.
¶127 At a more fundamental level, the respondents
must prove each of the elements. The court cannot
presume that the elements are met. Similarly, the
court cannot assume that a party cannot successfully
defend itself nor that a party faces “significantly
increased” costs. To do so forces this court to step out

64a
of our role as a neutral arbiter. See Service Emp. Int’l
Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38,
946 N.W.2d.
¶128 Therefore, the respondents cannot prove and
did not even allege that they are prejudiced.
Accordingly, the majority determination in this regard
is flawed.

D. Equitable Discretion

¶129 Even if the majority was correct that the

elements of laches are met here, it still has the
discretion to reach the merits. See Wis. Small Bus.
United, 393 Wis. 2d 308, ¶12. The majority claims that
the “only just resolution of these claims” is to use
laches to not address the merits of this case. Majority
op., ¶29. Not so. Our constitutional responsibility is to
analyze the law and determine if it was followed
regardless of whether any remedy might be available.
In this way future elections benefit from our analysis.
Curiously, it is unclear whether there is an actual
majority given the fact that the writer does exercise
his discretion to address the issues – again, a lack of
clarity.
¶130 This court should address the merits because
we should declare what the law is. The public has
serious concerns about the election and about our
election laws. Recent polls suggest that the American
public, regardless of party affiliation, has serious
questions about the integrity of the November 2020
election.4 Our court has an opportunity to analyze the

4
See Rasmussen Reports, 61% Think Trump Should
Concede to Biden (Nov. 19, 2020) https://www.rasmussenreports.
com/public_content/politics/elections/election_2020/61_think_tr

65a
law and answer the public’s concerns, but it
unfortunately declines this opportunity for
clarification.
¶131 The majority should declare what the law is.
Every single voter in this state is harmed when a vote
is cast in contravention of the statutes. See Wis. Stat.
§ 6.84(1). This court should conduct a rigorous
analysis, and determine whether the law was followed.
¶132 To counter these clear equities counseling us

ump_should_concede_to_biden (finding 47% of those who polled

believe that Democrats stole votes or destroy pro-Trump ballots
in several states to ensure that Biden would win); Politico,
National Tracking Poll, Project 201133 (Nov. 6-9, 2020),
https://www.politico.com/f/?id=00000175- b306-
d1da-a775-bb6691050000 (finding 34% of those polled believed the
election was not free and fair); Jill Darling et al., USC Dornsife
Daybreak Poll Topline at 14 (Nov. 19, 2020), Post-Election Poll
UAS318, https://dornsife-center-for-political-future.usc.edu/past-
polls-collection/2020-polling/ (finding that those polled are only
58% confident that all votes in the election were accurately
counted); R. Michael Alvarez, et al., Voter Confidence in the 2020
Presidential Election: Nationwide Survey Results (Nov. 19, 2020),
The Caltech/MIT Voting Technology Project Monitoring the
Election, 2020 Presidential Election Survey Reports & Briefs,
https://monitoringtheelection.us/2020-survey (finding 39% of those
polled are not confident that votes nationally were counted as the
voter intended); Yimeng Li, Perceptions of Election or Voter Fraud
in the 2020 Presidential Election: Nationwide Survey Results (Nov.
23, 2020), The Caltech/MIT Voting Technology Project Monitoring
the Election, 2020 Presidential Election Survey Reports & Briefs,
https://monitoringtheelection.us/2020-survey (finding between
29% and 34% of those polled believe voter fraud occurs); Sharp
Divisions on Vote Counts, as Biden Gets High Marks for His
Post-Election Conduct, Pew Research Center, U.S. Politics &
Policy (Nov. 20, 2020), https://www.pewresearch.org/politics/
2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-m
arks-for-his-post-election-conduct/ (finding that 41% of hose polled
believe the elections were run and administered not well).

66a
to reach the merits, the majority nonetheless
seemingly declines the opportunity in favor of a
self-divined rule which would make it nearly
impossible to know when and how such a claim could
be made. The majority asserts that “[f]ailure to [raise
these claims earlier] affects everyone, causing needless
litigation and undermining confidence in the election
results. It also puts courts in a difficult spot.
Interpreting complicated election statutes in days is
not consistent with best judicial practices.” Majority
op., ¶30. A claim post-recount is always going to be
tight on timing.
¶133 Under the majority’s new rule, a candidate
will have to monitor all election-related guidance,
actions, and decisions of not only the Wisconsin
Elections Commission, but of the 1,850 municipal
clerks who administer the election at the local level.
And that is just in one state! Instead of persuading the
people of Wisconsin through campaigning, the
candidate must expend precious resources monitoring,
challenging, and litigating any potential election-
related issue hoping that a court might act on an issue
that may very well not be ripe. Moreover, it would be
nonsensical for a candidate, or worse, a disenfran-
chised voter, to challenge an election law. Thus, the
majority’s new rule does not prevent “needless
litigation”; it spawns it in the form of preventative
lawsuits to address any possible infraction of our
election laws. We have the opportunity to answer
important legal questions now and should do so.
¶134 Similarly, the majority claims by not
analyzing the law it is bolstering public confidence. I
disagree. As explained, the American public has
serious questions about the previous election. See
supra, ¶23 n.4. Instead of addressing these serious

67a
questions, the majority balks and says some other
party can bring a suit at a later date. See majority op.,
¶31 n.11. Lawsuits are expensive and time-consuming
and require that the person bringing one has a claim.
These issues are presented here before us today. If
they are important enough to answer at a later date,
they are important to answer in this pending lawsuit
today. Addressing the merits of this case would bolster
confidence in this election and future elections. Even
if the court does not conclude that relief should be
granted, this lawsuit is the opportunity to declare
what the law is – which is our constitutional duty –
and will help the public have confidence in the election
that just occurred and confidence in future elections.
An opinion of this court on the merits would prevent
any illegal or impermissible actions of election officials
going forward. See Roggensack, C.J., dissent, supra;
Rebecca Grassl Bradley, J., dissent, infra. Accordingly,
I fail to see how addressing the merits in this case
would undermine confidence in the election results. If
anything, addressing the merits will reassure the
people of Wisconsin and our nation that our elections
comport with the law and to the extent that the
legislature might need to act, it is clear where the law
might be that needs correction. The court’s indecision
creates less, not more clarity.
¶135 The majority’s decision not to address the
merits suffers from an even more insidious flaw – it
places the will of this court and the will of the
Wisconsin Elections Commission above the express
intent of the legislature. The majority uses the
potential remedy, striking votes, as an equitable
reason to deny this case. Majority op., ¶31. But the
majority ignores that the legislature specifically set
forth a remedy that absentee ballots cast in

68a
contravention of the statute not be counted. See Wis.
Stat. § 6.84(2). When the law is not followed, the
counting of illegal ballots effectively disenfranchises
voters. This past election, absentee voting was at an
extraordinarily high level.5 Perhaps this is why it
mattered more now than ever that the law be followed.
Also this might explain why the process has not been
objected to before in the form of a lawsuit like this one.
The majority gives virtually no consideration to this
fact.
¶136 Despite the fact that the majority relies on
laches to not declare the law in nearly all respects of
the challenges raised, it nonetheless segregates out the
indefinitely confined voter claim to analyze. Notably
absent is any explanation why this claim is not treated
like the other challenges.
¶137 Therefore, the majority’s application of laches
here is unfortunate and doomed to create chaos,
uncertainty, undermine confidence and spawn
needless litigation. Instead of declaring what the law
is, the majority is legislating its preferred policy. It
disenfranchises those that followed the law in favor of
those who acted in contravention to it. This is not the
rule of law; it is the rule of judicial activism through
inaction.

III. CONCLUSION

¶138 As I would not apply laches in the case at

issue and instead would analyze the statutes and
available remedies as well as the actions of the
Wisconsin Elections Commission, I respectfully

5
In 2016, 830,763 electors voted using absentee ballots. In
2020, 1,957,514 electors voted using absentee ballots.

69a
dissent.
¶139 I am authorized to state that Chief Justice
PATIENCE DRAKE ROGGENSACK and Justice
REBECCA GRASSL BRADLEY join this dissent.

70a
 ¶140 REBECCA GRASSL BRADLEY, J.
(dissenting). Once again, the majority of the Wisconsin
Supreme Court wields the discretionary doctrine of
laches as a mechanism to avoid answering questions of
law the people of Wisconsin elected us to decide.
Although nothing in the law compels its application,
this majority routinely hides behind laches in election
law cases no matter when a party asserts its claims.
Whether election officials complied with Wisconsin law
in administering the November 3, 2020 election is of
fundamental importance to the voters, who should be
able to rely on the advice they are given when casting
their ballots. Rather than fulfilling its duty to say
what the law is, a majority of this court
unconstitutionally converts the Wisconsin Elections
Commission’s mere advice into governing “law,”
thereby supplanting the actual election laws enacted
by the people’s elected representatives in the
legislature and defying the will of Wisconsin’s citizens.
When the state’s highest court refuses to uphold the
law, and stands by while an unelected body of six
commissioners rewrites it, our system of
representative government is subverted.

¶141 In Wisconsin, we have a constitution, and it

reigns supreme in this state. “By section 1 of article 4
the power of the state to deal with elections except as
limited by the Constitution is vested in the senate and
assembly to be exercised under the provisions of the
Constitution; therefore the power to prescribe the
manner of conducting elections is clearly within the
province of the Legislature.” State v. Kohler, 200 Wis.
518, 228 N.W. 895, 906 (1930) (emphasis added). The

71a
Wisconsin Elections Commission (WEC) possesses no
authority to prescribe the manner of conducting
elections; rather, this legislatively-created body is
supposed to administer and enforce Wisconsin’s
election laws. Wis. Stat. §§ 5.05(1) and (2m). While
WEC may not create any law, it may “[p]romulgate
rules under ch. 227 . . . for the purpose of interpreting
or implementing the laws regulating the conduct of
elections . . . .” Wis. Stat. § 5.05(1)(f) (emphasis added).
It is undisputed that the advice rendered by WEC was
not promulgated by rule but took the form of guidance.
“A guidance document does not have the force of law.”
Wis. Stat. § 227.112(3). WEC’s guidance documents
are merely “communications about the law – they are
not the law itself.” Serv. Employees Int’l Union, Local
1 v. Vos, 2020 WI 67, ¶102, 393 Wis. 2d 38, 946
N.W.2d 35. The majority casts aside this black letter
law, choosing to apply the majority’s subjective concept
of “equity” in order to reach the outcome it desires.1 In
doing so, the majority commits grave error by
according WEC guidance the force of law.
¶142 Chapters 5 through 12 of the Wisconsin
Statutes contain the state’s enacted election laws.
Section 5.01(1) states that “[e]xcept as otherwise
provided, chs. 5 to 12 shall be construed to give effect
to the will of the electors, if that can be ascertained
from the proceedings, notwithstanding informality or
failure to fully comply with some of their provisions.”

1
During oral arguments in this case, Justice Jill J.
Karofsky made the following statement (among others) to the
President’s attorney: “You want us to overturn this election so
that your king can stay in power, and that is so un-American.”
When a justice displays such overt political bias, the public’s
confidence in the integrity and impartiality of the judiciary is
destroyed.

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This substantial compliance provision does not apply
to absentee balloting procedures, however:
“Notwithstanding s. 5.01(1), with respect to matters
relating to the absentee ballot process, ss. 6.86, 6.87(3)
to (7) and 9.01(1)(b)2. and 4. shall be construed as
mandatory. Ballots cast in contravention of the
procedures specified in those provisions may not be
counted. Ballots counted in contravention of the
procedures specified in those provisions may not be
included in the certified result of any election.” Wis.
Stat. § 6.84(2) (emphasis added).
¶143 “Section 6.84(2)’s strict construction
requirement, applicable to statutes relating to the
absentee ballot process, is consistent with the guarded
attitude with which the legislature views that
process.” Lee v. Paulson, 2001 WI App 19, ¶¶7-8, 241
Wis. 2d 38, 623 N.W.2d 577. The legislature expressed
its “guarded attitude” toward absentee balloting in no
uncertain terms, drawing a sharp distinction between
ballots cast in person versus those cast absentee: “The
legislature finds that voting is a constitutional right,
the vigorous exercise of which should be strongly
encouraged. In contrast, voting by absentee ballot is a
privilege exercised wholly outside the traditional
safeguards of the polling place. The legislature finds
that the privilege of voting by absentee ballot must be
carefully regulated to prevent the potential for fraud or
abuse; to prevent overzealous solicitation of absent
electors who may prefer not to participate in an
election; to prevent undue influence on an absent
elector to vote for or against a candidate or to cast a
particular vote in a referendum; or other similar
abuses.” Wis. Stat. § 6.84(1) (emphasis added). While
the ascertainable will of the election-day voter may
prevail over a “failure to fully comply” with “some of”

73a
the provisions governing conventional voting (§ 5.01),
any “[b]allots cast in contravention of” the law’s
absentee balloting procedures “may not be counted.”
Wis. Stat. § 6.84(2). This court has long recognized
that in applying Wisconsin’s election laws, “an act
done in violation of a mandatory provision is void.”
Sommerfeld v. Bd. of Canvassers of City of St. Francis,
269 Wis. 299, 303, 69 N.W.2d 235 (1955) (emphasis
added) (citation omitted).
¶144 In order “to prevent the potential for fraud or
abuse” associated with absentee voting, the legislature
requires the laws governing the absentee balloting
process to be followed. Wis. Stat. § 6.84(1). If an
absentee ballot is cast “in contravention” of the
absentee balloting procedures, it “may not be counted.”
Wis. Stat. § 6.84(2). If an absentee ballot is counted “in
contravention” of the absentee balloting procedures, it
“may not be included in the certified result of any
election.” Id. Long ago, this court understood that “we
are obliged to conclude that if absentee ballots are
improperly delivered in contravention of [Wisconsin’s
statutes], the Board of Canvassers is under duty to
invalidate and not include such ballots in the total
count, whether they are challenged at the election, or
not.” Olson v. Lindberg, 2 Wis. 2d 229, 238, 85 N.W.2d
775 (1957) (emphasis added). Accordingly, if absentee
ballots were counted in contravention of the law, the
people of Wisconsin, through their elected representa-
tives, have commanded the board(s) of canvassers to
exclude those absentee ballots from the total count,
independent of any legal challenge an aggrieved
candidate may (or may not) bring.
¶145 The majority carelessly accuses the President
of asking this court to “disenfranchise” voters. Majority
op., ¶27; Justices Rebecca Frank Dallet’s and Jill J.

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Karofsky’s concurrence, ¶33. In the election context,
“disenfranchise” means to deny a voter the right to
vote.2 Under Article III, Section 1 of the Wisconsin
Constitution, “[e]very United States citizen age 18 or
older who is a resident of an election district in this
state is a qualified elector of that district.” This court
possesses no authority to remove any qualified
elector’s constitutionally-protected right to vote. But it
is not “disenfranchisement” to uphold the law. “It is
true that the right of a qualified elector to cast his
ballot for the person of his choice cannot be destroyed
or substantially impaired. However, the legislature
has the constitutional power to say how, when and
where his ballot shall be cast . . . .” State ex rel.
Frederick v. Zimmerman, 254 Wis. 600, 613, 37
N.W.2d 472, 37 N.W.2d 473, 480 (1949). And the
judiciary has the constitutional responsibility to say
whether a ballot was cast in accordance with the law
prescribed by the people’s representatives.
¶146 Each of the President’s legal claims challenge
the counting of certain absentee ballots, which the
President argues were cast in contravention of the
Wisconsin Statutes. The majority misconstrues
Wisconsin law in asserting that “[t]hese issues could
have been brought weeks, months, or even years
earlier.” Majority op., ¶30. Section 9.01(11) of the
Wisconsin Statutes provides that “[t]his section
constitutes the exclusive judicial remedy for testing
the right to hold an elective office as the result of an
alleged irregularity, defect or mistake committed

2
Disenfranchise: “To deprive (someone) of a right, esp. the
right to vote; to prevent (a person or group of people) from having
the right to vote. — Also termed disfranchise.” Disenfranchise,
Black’s Law Dictionary (11th ed. 2019).

75a
during the voting or canvassing process.” Only a
“candidate voted for at any election who is an
aggrieved party” may bring an action under Chapter 9.
Wis. Stat. § 9.01(1)(a). Surely the majority
understands the absurdity of suggesting that the
President should have filed a lawsuit in 2016 or
anytime thereafter. Why would he? He was not “an
aggrieved party” – he won. Obviously, the President
could not have challenged any “irregularity, defect or
mistake committed during the voting or canvassing
process” related to the November 3, 2020 election until
that election occurred.
¶147 The respondents recognize that under
Chapter 9, the “purpose of a recount . . . is to ensure
that the voters, clerks and boards of canvassers
followed the rules in place at the time of the election.”
Misunderstanding what the governing rules actually
are, the respondents argue that having this court
declare the law at this point would “retroactively
change the rules” after the election. Justice Brian
Hagedorn embraces this argument, using a misapplied
football metaphor that betrays the majority’s contempt
for the law: “the [President’s] campaign is challenging
the rulebook adopted before the season began.”
Majority op., ¶32. Justices Rebecca Frank Dallet and
Jill J. Karofsky endorse the idea that this court should
genuflect before “the rules that were in place at the
time.” Justices Dallet’s and Karofsky’s concurrence,
¶34. How astonishing that four justices of the
Wisconsin Supreme Court must be reminded that it is
THE LAW that constitutes “the rulebook” for any
election – not WEC guidance – and election officials
are bound to follow the law, if we are to be governed by
the rule of law, and not of men.

76a
 ¶148 As the foundation for one of the President’s
claims, Wis. Stat. § 6.87(6d) provides that “[i]f a
certificate is missing the address of a witness, the
ballot may not be counted.” The only
statutorily-prescribed means to correct that error is for
the clerk to “return the ballot to the elector, inside the
sealed envelope when an envelope is received, together
with a new envelope if necessary, whenever time
permits the elector to correct the defect and return the
ballot within the period authorized.” Wis. Stat. §
6.87(9). Contrary to Wisconsin law, WEC guidance
says “the clerk should attempt to resolve any missing
witness address information prior to Election Day if
possible, and this can be done through reliable
information (personal knowledge, voter registration
information, through a phone call with the voter or
witness).”3 WEC’s “Election Administration Manual for
Wisconsin Municipal Clerks” erroneously provides that
“[c]lerks may add a missing witness address using
whatever means are available. Clerks should initial
next to the added witness address.”4 Nothing in the
election law statutes permits a clerk to alter witness
address information. WEC’s guidance in this regard
does not administer or enforce the law; it flouts it.

3
Memorandum from Meagan Wolfe to Wisconsin County
and Municipal Clerks (Oct. 19, 2020), at https://elections.wi.gov/
sites/elections.wi.gov/files/2020-10/Spoiling%20Ballot%20Memo
%2010.2020.pdf.
4
Wisconsin Elections Commission, Election
Administration Manual for Wisconsin Municipal Clerks (Sept.
2020), at https://elections.wi.gov/sites/elections.wi.gov/files/ 2020-
10/Election%20Administration%20Manual%20%282020-09%29.
pdf.

77a
 II

¶149 Under the Wisconsin Constitution, “all

governmental power derives ‘from the consent of the
governed’ and government officials may act only within
the confines of the authority the people give them. Wis.
Const. art. I, § 1.” Wis. Legislature v. Palm, 2020 WI
42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca
Grassl Bradley, J., concurring). The confines of the
authority statutorily conferred on the WEC limit its
function to administering and enforcing the law, not
making it. The Founders designed our “republic to be
a government of laws, and not of men . . . bound by
fixed laws, which the people have a voice in making,
and a right to defend.” John Adams, Novanglus: A
History of the Dispute with America, from Its Origin, in
1754, to the Present Time, in Revolutionary Writings of
John Adams (C. Bradley Thompson ed. 2000)
(emphasis in original). Allowing any person, or
unelected commission of six, to be “bound by no law or
limitation but his own will” defies the will of the
people. Id.
¶150 The judiciary is constitutionally compelled to
safeguard the will of the people by interpreting and
applying the laws duly enacted by the people’s
representatives in the legislature. “A democratic state
must therefore have the power to . . . prevent all those
practices which tend to subvert the electorate and
substitute for a government of the people, by the
people and for the people, a government guided in the
interest of those who seek to pervert it.” State v.
Kohler, 200 Wis. 518, 228 N.W. 895, 905 (1930). The
majority’s abdication of its judicial duty to apply the
election laws of this state rather than the WEC’s
“rulebook” precludes any legislative recourse short of

78a
abolishing the WEC altogether.
¶151 While some will either commend or condemn
the court’s decision in this case based upon its impact
on their preferred candidate, the importance of this
case transcends the results of this particular election.
“A correct solution of the questions presented is of far
greater importance than the personal or political
fortunes of any candidate, incumbent, group, faction or
party. We are dealing here with laws which operate in
the political field – a field from which courts are
inclined to hold aloof – a field with respect to which
the power of the Legislature is primary and is limited
only by the Constitution itself.” Id. The majority’s
decision fails to recognize the primacy of the legislative
power to prescribe the rules governing the privilege of
absentee voting. Instead, the majority empowers the
WEC to continue creating “the rulebook” for elections,
in derogation of enacted law.
¶152 “The purity and integrity of elections is a
matter of such prime importance, and affects so many
important interests, that the courts ought never to
hesitate, when the opportunity is offered, to test them
by the strictest legal standards.” State v. Conness, 106
Wis. 425, 82 N.W. 288, 289 (1900). Instead of
determining whether the November 3, 2020 election
was conducted in accordance with the legal standards
governing it, the majority denies the citizens of
Wisconsin any judicial scrutiny of the election
whatsoever. “Elections are the foundation of American
government and their integrity is of such monumental
importance that any threat to their validity should
trigger not only our concern but our prompt action.”
State ex rel. Zignego v. Wis. Elec. Comm’n,
2020AP123-W (S. Ct. Order issued June 1, 2020
(Rebecca Grassl Bradley, J., dissenting)). The majority

79a
instead belittles the President’s claims of law
violations as merely “technical issues that arise in the
administration of every election.” Majority op., ¶31.
The people of Wisconsin deserve a court that respects
the laws that govern us, rather than treating them
with such indifference.
¶153 “Confidence in the integrity of our electoral
processes is essential to the functioning of our
participatory democracy.” Purcell v. Gonzalez, 549 U.S.
1, 4 (2006). The majority takes a pass on resolving the
important questions presented by the petitioners in
this case, thereby undermining the public’s confidence
in the integrity of Wisconsin’s electoral processes not
only during this election, but in every future election.
Alarmingly, the court’s inaction also signals to the
WEC that it may continue to administer elections in
whatever manner it chooses, knowing that the court
has repeatedly declined to scrutinize its conduct.
Regardless of whether WEC’s actions affect election
outcomes, the integrity of every election will be
tarnished by the public’s mistrust until the Wisconsin
Supreme Court accepts its responsibility to declare
what the election laws say. “Only . . . the supreme
court can provide the necessary clarity to guide all
election officials in this state on how to conform their
procedures to the law” going forward. State ex rel.
Zignego v. Wis. Elec. Comm’n, 2020AP123-W (S. Ct.
Order issued January 13, 2020 (Rebecca Grassl
Bradley, J., dissenting)).
¶154 This case represents only the majority’s
latest evasion of a substantive decision on an election
law controversy.5 While the United States Supreme

5
Hawkins v. WEC, 2020 WI 75, ¶¶84, 86, 393 Wis. 2d 629,
948 N.W.2d 877 (Rebecca Grassl Bradley, J., dissenting) (“The

80a
Court has recognized that “a state indisputably has a
compelling interest in preserving the integrity of its
election process[,]” Burson v. Freeman, 504 U.S. 191,
199 (1992), the majority of this court repeatedly
demonstrates a lack of any interest in doing so,
offering purely discretionary excuses like laches, or no
reasoning at all. This year, the majority in Hawkins v.
WEC declined to hear a claim that the WEC
unlawfully kept the Green Party’s candidates for
President and Vice President off of the ballot,
ostensibly because the majority felt the candidates’
claims were brought “too late.”6 But when litigants
have filed cases involving voting rights well in advance
of Wisconsin elections, the court has “take[n] a pass”
on those as well, thereby unfailingly and “irreparably
den[ying] the citizens of Wisconsin a timely resolution
of issues that impact voter rights and the integrity of
our elections.” State ex rel. Zignego v. Wis. Elec.
Comm’n, 2020AP123-W (S. Ct. Order issued January
13, 2020 (Rebecca Grassl Bradley, J., dissenting)).
Having neglected to identify any principles guiding its
decisions, the majority leaves Wisconsin’s voters and
candidates guessing as to when, exactly, they should

majority upholds the Wisconsin Elections Commission’s violation

of Wisconsin law, which irrefutably entitles Howie Hawkins and
Angela Walker to appear on Wisconsin’s November 2020 general
election ballot as candidates for President and Vice President of
the United States . . . . In dodging its responsibility to uphold the
rule of law, the majority ratifies a grave threat to our republic,
suppresses the votes of Wisconsin citizens, irreparably impairs the
integrity of Wisconsin’s elections, and undermines the confidence
of American citizens in the outcome of a presidential election.”).
6
Hawkins v. Wis. Elec. Comm’n, 2020 WI 75, ¶5, 393 Wis.
2d 629, 948 N.W.2d 877 (denying the petition for leave to
commence an original action).

81a
file their cases in order for the majority to deem them
worthy of the court’s consideration on the merits.
¶155 The consequence of the majority operating by
whim rather than law is to leave the interpretation of
multiple election statutes in flux – or worse yet, in the
hands of the unelected members of the WEC. “To be
free is to live under a government by law . . . .
Miserable is the condition of individuals, danger is the
condition of the state, if there is no certain law, or,
which is the same thing, no certain administration of
the law[.]” Judgment in Rex v. Shipley, 21 St Tr 847
(K.B. 1784) (Lord Mansfield presiding) (emphasis
added). The Wisconsin Supreme Court has an
institutional responsibility to interpret law——not for
the benefit of particular litigants, but for citizens we
were elected to serve. Justice for the people of
Wisconsin means ensuring the integrity of Wisconsin’s
elections. A majority of this court disregards its duty
to the people of Wisconsin, denying them justice.

***

¶156 “This great source of free government,

popular election, should be perfectly pure.” Alexander
Hamilton, Speech at New York Ratifying Convention
(June 21, 1788), in Debates on the Federal Constitution
257 (J. Elliot ed. 1876). The majority’s failure to act
leaves an indelible stain on our most recent election. It
will also profoundly and perhaps irreparably impact
all local, statewide, and national elections going
forward, with grave consequence to the State of
Wisconsin and significant harm to the rule of law.
Petitioners assert troubling allegations of
noncompliance with Wisconsin’s election laws by
public officials on whom the voters rely to ensure free

82a
and fair elections. It is our solemn judicial duty to say
what the law is. The majority’s failure to discharge its
duty perpetuates violations of the law by those
entrusted to administer it. I dissent.
¶157 I am authorized to state that Chief Justice
PATIENCE DRAKE ROGGENSACK and Justice
ANNETTE KINGSLAND ZIEGLER join this dissent.

83a
84a
 Appendix B

OFFICE OF THE CLERK

SUPREME COURT OF WISCONSIN

110 EAST MAIN STREET, SUITE 215

P.O. BOX 1688
MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640
Web Site: www.wicourts.gov

December 3, 2020

To:

R. George Burnett
Conway, Olejniczak & Jerry, SC
P.O. Box 23200
Green Bay, WI 54305-3200

James R. Troupis
Troupis Law Office, LLC
4126 Timber Lane
Cross Plains, WI 53528

Margaret C. Daun
Milwaukee County Corporation Counsel
901 N. 9th Street, Room 303
Milwaukee, WI 53233

85a
Joshua L. Kaul
Thomas C. Bellavia
Colin T. Roth
Colin R. Stroud
Wisconsin Department of Justice
P.O. Box 7857
Madison, WI 53707-7857

David R. Gault
Assistant Corporation Counsel
Office of the Dane County Corporation Counsel
210 Martin Luther King, Jr. Blvd., Room 419
Madison, WI 53703-3345

*Address list continued on page 9.

You are hereby notified that the Court has entered the
following order:

=========================================

No. 2020AP1971-OA Trump v. Evers

A petition for leave to commence an original action

under Wis. Stat. § (Rule) 809.70, a supporting legal
memorandum, and an appendix have been filed on
behalf of petitioners, Donald J. Trump, et al.
Responses to the petition have been filed by (1)
Governor Tony Evers; (2) the Wisconsin Elections
Commission and its Chair, Ann S. Jacobs; (3) Scott
McDonell, Dane County Clerk, and Alan A. Arnsten
and Joyce Waldrop, members of the Dane County

86a
Board of Canvassers; and (4) George L. Christensen,
Milwaukee County Clerk, and Timothy H. Posnanski,
Richard Baas, and Dawn Martin, members of the
Milwaukee County Board of Canvassers. A non-party
brief in support of the petition has been filed by the
Liberty Justice Center. A motion to intervene, a
proposed response of proposed respondents-
intervenors, and an appendix have been filed by the
Democratic National Committee (DNC) and Margaret
J. Andrietsch, Sheila Stubbs, Ronald Martin, Mandela
Barnes, Khary Penebaker, Mary Arnold, Patty
Schachtner, Shannon Holsey, and Benjamin Wikler
(collectively, “the Biden electors”). The court having
considered all of the filings,

IT IS ORDERED that the petition for leave to

commence an original action is denied. One or more
appeals from the determination(s) of one or more
boards of canvassers or from the determination of the
chairperson of the Wisconsin Elections Commission
may be filed by an aggrieved candidate in circuit court.
Wis. Stat. § 9.01(6); and

IT IS FURTHER ORDERED that the motion to

intervene is denied as moot.

BRIAN HAGEDORN, J. (concurring). I understand

the impulse to immediately address the legal questions
presented by this petition to ensure the recently
completed election was conducted in accordance with
the law. But challenges to election results are also
governed by law. All parties seem to agree that Wis.

87a
Stat. § 9.01 (2017–18)1 constitutes the “exclusive
judicial remedy” applicable to this claim. § 9.01(11).
After all, that is what the statute says. This section
provides that these actions should be filed in the
circuit court, and spells out detailed procedures for
ensuring their orderly and swift disposition. See
§ 9.01(6)–(8). Following this law is not disregarding
our duty, as some of my colleagues suggest. It is
following the law.
Even if this court has constitutional authority to
hear the case straightaway, notwithstanding the
statutory text, the briefing reveals important factual
disputes that are best managed by a circuit court.2
The parties clearly disagree on some basic factual
issues, supported at times by competing affidavits. I
do not know how we could address all the legal issues
raised in the petition without sorting through these
matters, a task we are neither well-positioned nor
institutionally designed to do. The statutory process
assigns this responsibility to the circuit court. Wis.
Stat. § 9.01(8)(b) (“The [circuit] court shall separately
treat disputed issues of procedure, interpretations of
law, and findings of fact.”).

1
All subsequent references to the Wisconsin Statutes are
to the 2017–18 version.
2
The legislature generally can and does set deadlines and
define procedures that circumscribe a court’s competence to act in
a given case. Village of Trempealeau v. Mikrut, 2004 WI 79,
¶9–10, 273 Wis. 2d 76, 681 N.W.2d 190. The constitution would
obviously override these legislative choices where the two conflict.

88a
 We do well as a judicial body to abide by
time-tested judicial norms, even — and maybe
especially — in high-profile cases. Following the law
governing challenges to election results is no threat to
the rule of law. I join the court’s denial of the petition
for original action so that the petitioners may promptly
exercise their right to pursue these claims in the
manner prescribed by the legislature.

PATIENCE DRAKE ROGGENSACK, C.J.

(dissenting). Before us is an emergency petition for
leave to commence an original action brought by
President Trump, Vice President Pence and Donald
Trump for President, Inc., against Governor Evers, the
Wisconsin Elections Commission (WEC), its members
and members of both the Milwaukee County Board of
Canvassers and the Dane County Board of Canvassers.
The Petitioners allege that the WEC and election
officials caused voters to violate various statutes in
conducting Wisconsin’s recent presidential election.
The Petitioners raised their concerns during recount
proceedings in Dane County and Milwaukee County.
Their objections were overruled in both counties.
The Respondents argue, in part, that we lack
subject matter jurisdiction because of the “exclusive
judicial remedy” provision found in Wis. Stat.
§ 9.01(11) (2017-18).3 Alternatively, the Respondents
assert that we should deny this petition because
fact-finding is required, and we are not a fact-finding
tribunal.
I conclude that we have subject matter jurisdiction
that enables us to grant the petition for original action

3
All subsequent references to the Wisconsin Statutes are
to the 2017–18 version.

89a
pending before us. Our jurisdiction arises from the
Wisconsin Constitution and cannot be impeded by
statute. Wis. Const., art. VII, Section 3(2); City of Eau
Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595, 882
N.W.2d 738. Furthermore, time is of the essence.
However, fact-finding may be central to our
evaluation of some of the questions presented. I agree
that the circuit court should examine the record
presented during the canvasses to make factual
findings where legal challenges to the vote turn on
questions of fact. However, I dissent because I would
grant the petition for original action, refer for
necessary factual findings to the circuit court, who
would then report its factual findings to us, and we
would decide the important legal questions presented.
I also write separately to emphasize that by
denying this petition, and requiring both the factual
questions and legal questions be resolved first by a
circuit court, four justices of this court are ignoring
that there are significant time constraints that may
preclude our deciding significant legal issues that cry
out for resolution by the Wisconsin Supreme Court.

I. DISCUSSION

The Petitioners set out four categories of absentee

votes that they allege should not have been counted
because they were not lawfully cast: (1) votes cast
during the 14-day period for in-person absentee voting
at a clerk’s office with what are alleged to be
insufficient written requests for absentee ballots,
pursuant to Wis. Stat. § 6.86(1)(b); (2) votes cast when
a clerk has completed information missing from the
ballot envelope, contrary to Wis. Stat. § 6.87(6d); (3)
votes cast by those who obtained an absentee ballot

90a
after March 25, 2020 by alleging that they were
indefinitely confined; and (4) votes cast in Madison at
“Democracy in the Park” events on September 26 and
October 3, in advance of the 14-day period before the
election, contrary to Wis. Stat. § 6.87.
Some of the Respondents have asserted that WEC
has been advising clerks to add missing information to
ballot envelopes for years, so the voters should not be
punished for following WEC’s advice. They make
similar claims for the collection of votes more than 14
days before the November 3 election.
If WEC has been giving advice contrary to statute,
those acts do not make the advice lawful. WEC must
follow the law. We, as the law declaring court, owe it
to the public to declare whether WEC’s advice is
incorrect. However, doing so does not necessarily lead
to striking absentee ballots that were cast by following
incorrect WEC advice. The remedy Petitioners seek
may be out of reach for a number of reasons.
Procedures by which Wisconsin elections are
conducted must be fair to all voters. This is an
important election, but it is not the last election in
which WEC will be giving advice. If we do not
shoulder our responsibilities, we leave future elections
to flounder and potentially result in the public’s
perception that Wisconsin elections are unfair. The
Wisconsin Supreme Court can uphold elections by
examining the procedures for which complaint was
made here and explaining to all where the WEC was
correct and where it was not.
I also am concerned that the public will
misunderstand what our denial of the petition means.
Occasionally, members of the public seem to believe
that a denial of our acceptance of a case signals that
the petition’s allegations are either false or not serious.

91a
Nothing could be further from the truth. Indeed,
sometimes, we deny petitions even when it appears
that a law has been violated. Hawkins v. Wis. Elec.
Comm’n, 2020 WI 75, ¶¶14–16, 393 Wis. 2d 629, 948
N.W.2d 877 (Roggensack, C.J., dissenting).

II. CONCLUSION

I conclude that we have subject matter jurisdiction

that enables us to grant the petition for original action
pending before us. Our jurisdiction arises from the
Wisconsin Constitution and cannot be impeded by
statute. Wis. Const., art. VII, Section 3(2); City of Eau
Claire, 370 Wis. 2d 595, ¶7. Furthermore, time is of
the essence.
However, fact-finding may be central to our
evaluation of some of the questions presented. I agree
that the circuit court should examine the record
presented during the canvasses to make factual
findings where legal challenges to the vote turn on
questions of fact. However, I dissent because I would
grant the petition for original action, refer for
necessary factual findings to the circuit court, who
would then report its factual findings to us, and we
would decide the important legal questions presented.

I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this dissent.

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 REBECCA GRASSL BRADLEY, J. (dissenting).
“It is emphatically the province and duty of the
Judicial Department to say what the law is.” Marbury
v. Madison, 5 U.S. 137, 177 (1803). The Wisconsin
Supreme Court forsakes its duty to the people of
Wisconsin in declining to decide whether election
officials complied with Wisconsin’s election laws in
administering the November 3, 2020 election. Instead,
a majority of this court passively permits the
Wisconsin Elections Commission (WEC) to decree its
own election rules, thereby overriding the will of the
people as expressed in the election laws enacted by the
people’s elected representatives. Allowing six
unelected commissioners to make the law governing
elections, without the consent of the governed, deals a
death blow to democracy. I dissent.
The President of the United States challenges the
legality of the manner in which certain Wisconsin
election officials directed the casting of absentee
ballots, asserting they adopted and implemented
particular procedures in violation of Wisconsin law.
The respondents implore this court to reject the
challenge because, they argue, declaring the law at
this point would “retroactively change the rules” after
the election. It is THE LAW that constitutes “the
rules” of the election and election officials are bound to
follow the law, if we are to be governed by the rule of
law, and not of men.
Under the Wisconsin Constitution, “all
governmental power derives ‘from the consent of the
governed’ and government officials may act only within
the confines of the authority the people give them.
Wis. Const. art. I, § 1.” Wisconsin Legislature v. Palm,
2020 WI 42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900
(Rebecca Grassl Bradley, J., concurring). The

93a
Founders designed our “republic to be a government of
laws, and not of men . . . bound by fixed laws, which
the people have a voice in making, and a right to
defend.” John Adams, Novanglus: A History of the
Dispute with America, from Its Origin, in 1754, to the
Present Time, in Revolutionary Writings of John
Adams (C. Bradley Thompson ed. 2000) (emphasis in
original). Allowing any person, or unelected
commission of six, to be “bound by no law or limitation
but his own will” defies the will of the people. Id.
The importance of having the State’s highest court
resolve the significant legal issues presented by the
petitioners warrants the exercise of this court’s
constitutional authority to hear this case as an original
action. See Wis. Const. Art. VII, § 3. “The purity and
integrity of elections is a matter of such prime
importance, and affects so many important interests,
that the courts ought never to hesitate, when the
opportunity is offered, to test them by the strictest
legal standards.” State v. Conness, 106 Wis. 425, 82
N.W. 288, 289 (1900). While the court reserves this
exercise of its jurisdiction for those original actions of
statewide significance, it is beyond dispute that
“[e]lections are the foundation of American
government and their integrity is of such monumental
importance that any threat to their validity should
trigger not only our concern but our prompt action.”
State ex rel. Zignego v. Wis. Elec. Comm’n,
2020AP123-W (S. Ct. Order issued June 1, 2020
(Rebecca Grassl Bradley, J., dissenting)).
The majority notes that an action “may be filed by
an aggrieved candidate in circuit court. Wis. Stat. §
9.01(6).” Justice Hagedorn goes so far as to suggest
that § 9.01 “constitutes the ‘exclusive judicial remedy’
applicable to this claim.” No statute, however, can

94a
circumscribe the constitutional jurisdiction of the
Wisconsin Supreme Court to hear this (or any) case as
an original action. “The Wisconsin Constitution IS
the law — and it reigns supreme over any statute.”
Wisconsin Legislature v. Palm, 391 Wis. 2d 497, ¶67
n.3 (Rebecca Grassl Bradley, J., concurring). “The
Constitution’s supremacy over legislation bears
repeating: ‘the Constitution is to be considered in
court as a paramount law’ and ‘a law repugnant to the
Constitution is void, and . . . courts, as well as other
departments, are bound by that instrument.’ See
Marbury [v. Madison], 5 U.S. (1 Cranch) [137] at 178,
180 [1803]).” Mayo v. Wis. Injured Patients and
Families Comp. Fund, 2018 WI 78, ¶91, 383 Wis. 2d 1,
914 N.W.2d 678 (Rebecca Grassl Bradley, J.,
concurring). Wisconsin Statute § 9.01 is compatible
with the constitution. While it provides an avenue for
aggrieved candidates to pursue an appeal to a circuit
court after completion of the recount determination, it
does not foreclose the candidate’s option to ask this
court to grant his petition for an original action. Any
contrary reading would render the law in conflict with
the constitution and therefore void. Under the
constitutional-doubt canon of statutory interpretation,
“[a] statute should be interpreted in a way that avoids
placing its constitutionality in doubt.” Antonin Scalia
& Brian A. Garner, Reading Law: The Interpretation
of Legal Texts 247. See also Wisconsin Legislature v.
Palm, 391 Wis. 2d 497, ¶31 (“[W]e disfavor statutory
interpretations that unnecessarily raise serious
constitutional questions about the statute under
consideration.”).
While some will either celebrate or decry the
court’s inaction based upon the impact on their
preferred candidate, the importance of this case

95a
transcends the results of this particular election.
“Confidence in the integrity of our electoral processes
is essential to the functioning of our participatory
democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
The majority takes a pass on resolving the important
questions presented by the petitioners in this case,
thereby undermining the public’s confidence in the
integrity of Wisconsin’s electoral processes not only
during this election, but in every future election.
Alarmingly, the court’s inaction also signals to the
WEC that it may continue to administer elections in
whatever manner it chooses, knowing that the court
has repeatedly declined to scrutinize its conduct.
Regardless of whether the WEC’s actions affect
election outcomes, the integrity of every election will
be tarnished by the public’s mistrust until the
Wisconsin Supreme Court accepts its responsibility to
declare what the election laws say. “Only . . . the
supreme court can provide the necessary clarity to
guide all election officials in this state on how to
conform their procedures to the law” going forward.
State ex rel. Zignego v. Wis. Elec. Comm’n,
2020AP123-W (S. Ct. Order issued January 13, 2020
(Rebecca Grassl Bradley, J., dissenting)).
The majority’s recent pattern of deferring or
altogether dodging decisions on election law
controversies4 cannot be reconciled with its lengthy

4
Hawkins v. Wis. Elec. Comm’n, 2020 WI 75, ¶¶84, 86,
393 Wis. 2d 629, 948 N.W.2d 877 (Rebecca Grassl Bradley, J.,
dissenting) (“The majority upholds the Wisconsin Elections
Commission’s violation of Wisconsin law, which irrefutably
entitles Howie Hawkins and Angela Walker to appear on
Wisconsin’s November 2020 general election ballot as candidates
for President and Vice President of the United States . . . . In
dodging its responsibility to uphold the rule of law, the majority

96a
history of promptly hearing cases involving voting
rights and election processes under the court’s original
jurisdiction or by bypassing the court of appeals.5

ratifies a grave threat to our republic, suppresses the votes of

Wisconsin citizens, irreparably impairs the integrity of
Wisconsin’s elections, and undermines the confidence of American
citizens in the outcome of a presidential election”); State ex rel.
Zignego v. Wis. Elec. Comm’n, 2020AP123-W (S. Ct. Order issued
January 13, 2020 (Rebecca Grassl Bradley, J., dissenting)) (“In
declining to hear a case presenting issues of first impression
immediately impacting the voting rights of Wisconsin citizens and
the integrity of impending elections, the court shirks its
institutional responsibilities to the people who elected us to make
important decisions, thereby signaling the issues are not worthy
of our prompt attention.”); State ex rel. Zignego v. Wis. Elec.
Comm’n, 2020AP123-W (S. Ct. Order issued June 1, 2020
(Rebecca Grassl Bradley, J., dissenting)) (“A majority of this court
disregards its duty to the people we serve by inexplicably delaying
the final resolution of a critically important and time-sensitive
case involving voting rights and the integrity of Wisconsin’s
elections.”).
5
See, e.g., NAACP v. Walker, 2014 WI 98, ¶¶1, 18, 357
Wis. 2d 469, 851 N.W.2d 262 (2014) (this court took jurisdiction of
appeal on its own motion in order to decide constitutionality of the
voter identification act enjoined by lower court); Elections Bd. of
Wisconsin v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 653,
670, 597 N.W.2d 721 (1999) (this court granted bypass petition to
decide whether express advocacy advertisements advocating the
defeat or reelection of incumbent legislators violated campaign
finance laws, in absence of cases interpreting applicable statutes);
State ex rel. La Follette v. Democratic Party of United States, 93
Wis. 2d 473, 480-81, 287 N.W.2d 519 (1980) (original action
deciding whether Wisconsin open primary system was binding on
national political parties or infringed their freedom of association),
rev’d, Democratic Party of United States v. Wisconsin ex rel. La
Follette, 450 U.S. 107 (1981); State ex rel. Reynolds v. Zimmerman,
22 Wis. 2d 544, 548, 126 N.W.2d 551 (1964) (original action
seeking to enjoin state from holding elections pursuant to
legislative apportionment alleged to violate constitutional rights);

97a
While the United States Supreme Court has
recognized that “a state indisputably has a compelling
interest in preserving the integrity of its election
process[,]” Burson v. Freeman, 504 U.S. 191, 199
(1992), the majority of this court repeatedly
demonstrates a lack of any interest in doing so,
offering purely discretionary excuses or no reasoning
at all. This year, the majority in Hawkins v. Wis. Elec.
Comm’n declined to hear a claim that the WEC
unlawfully kept the Green Party’s candidates for
President and Vice President off of the ballot,
ostensibly because the majority felt the candidates’
claims were brought “too late.”6 But when litigants
have filed cases involving voting rights well in advance
of Wisconsin elections, the court has “take[n] a pass,”
thereby “irreparably den[ying] the citizens of
Wisconsin a timely resolution of issues that impact
voter rights and the integrity of our elections.” State
ex rel. Zignego v. Wis. Elec. Comm’n, 2020AP123-W (S.
Ct. Order issued January 13, 2020 (Rebecca Grassl
Bradley, J., dissenting)). Having neglected to identify

State ex rel. Broughton v. Zimmerman, 261 Wis. 398, 400, 52

N.W.2d 903 (1952) (original action to restrain the state from
holding elections based on districts as defined prior to enactment
of reapportionment law), overruled in part by Reynolds, 22 Wis. 2d
544; State ex rel. Conlin v. Zimmerman, 245 Wis. 475, 476, 15
N.W.2d 32 (1944) (original action to interpret statutes in
determining whether candidate for Governor timely filed papers
to appear on primary election ballot).

6
Hawkins v. Wis. Elec. Comm’n, 2020 WI 75, ¶5, 393 Wis.
2d 629, 948 N.W.2d 877 (denying the petition for leave to
commence an original action).

98a
any principles guiding its decisions, the majority
leaves Wisconsin’s voters and candidates guessing as
to when, exactly, they should file their cases in order
for the majority to deem them worthy of the court’s
attention.
The consequence of the majority operating by
whim rather than rule is to leave the interpretation of
multiple election laws in flux — or worse yet, in the
hands of the unelected members of the WEC. “To be
free is to live under a government by law . . . .
Miserable is the condition of individuals, danger is the
condition of the state, if there is no certain law, or,
which is the same thing, no certain administration of
the law . . . .” Judgment in Rex vs. Shipley, 21 St Tr
847 (K.B. 1784) (Lord Mansfield presiding). The
Wisconsin Supreme Court has an institutional
responsibility to decide important questions of
law—not for the benefit of particular litigants, but for
citizens we were elected to serve. Justice for the
people of Wisconsin means ensuring the integrity of
Wisconsin’s elections. A majority of this court
disregards its duty to the people of Wisconsin, denying
them justice.
“No aspect of the judicial power is more
fundamental than the judiciary’s exclusive
responsibility to exercise judgment in cases and
controversies arising under the law.” Gabler v. Crime
Victims Rights Bd., 2017 WI 67, ¶37, 376 Wis. 2d 147,
897 N.W.2d 384. Once again, a majority of this court
instead “chooses to sit idly by,”7 in a nationally
important and time-sensitive case involving voting

7
United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607,
1609 (2016) (Thomas, J., dissenting from the denial of certiorari).

99a
rights and the integrity of Wisconsin’s elections,
depriving the people of Wisconsin of answers to
questions of statutory law that only the state’s highest
court may resolve. The majority’s “refusal to hear this
case shows insufficient respect to the State of
[Wisconsin], its voters,”8 and its elections.
“This great source of free government, popular
election, should be perfectly pure.” Alexander
Hamilton, Speech at New York Ratifying Convention
(June 21, 1788), in Debates on the Federal Constitution
257 (J. Elliot ed. 1876). The majority’s failure to act
leaves an indelible stain on our most recent election.
It will also profoundly and perhaps irreparably impact
all local, statewide, and national elections going
forward, with grave consequence to the State of
Wisconsin and significant harm to the rule of law.
Petitioners assert troubling allegations of
noncompliance with Wisconsin’s election laws by
public officials on whom the voters rely to ensure free
and fair elections. It is not “impulse”9 but our solemn
judicial duty to say what the law is that compels the
exercise of our original jurisdiction in this case. The
majority’s failure to embrace its duty (or even
an impulse) to decide this case risks perpetuating
violations of the law by those entrusted to follow it. I
dissent.

I am authorized to state that Chief Justice

PATIENCE DRAKE ROGGENSACK and Justice
ANNETTE KINGSLAND ZIEGLER join this dissent.

8
County of Maricopa, Arizona v. Lopez-Valenzuela, 135 S.
Ct. 2046, 2046 (2015) (Thomas, J., dissenting from the denial of
certiorari).
9
See Justice Hagedorn’s concurrence.

100a
=========================================

Sheila T. Reiff
Clerk of Supreme Court

Address list continued:

Andrew A. Jones
Andrew J. Kramer
James F. Cirincione
Hansen Reynolds LLC
301 N. Broadway St., Ste. 400
Milwaukee, WI 53202-2660

John W. McCauley
Hansen Reynolds LLC
10 E. Doty St. Ste 800
Madison, WI 53703

Jeffrey A. Mandell
Rachel E. Snyder
Stafford Rosenbaum LLP
222 W. Washington Avenue
Post Office Box 1784
Madison, WI 53701

Daniel R. Suhr
Liberty Justice Center
190 LaSalle St., Ste. 1500
Chicago, IL 60603

101a
Matthew W. O’Neill
Fox, O’Neill & Shannon, S.C.
622 North Water Street, Suite 500
Milwaukee, WI 53202

Charles G. Curtis
Michelle M. Umberger
Sopen B. Shah
Will M. Conley
Perkins Coie LLP
One East Main St., Suite 201
Madison, WI 53703

Justin A. Nelson
Stephen Shackelford Jr.
Davida Brook
Susman Godfrey LLP
1000 Louisiana Street
Suite 5100
Houston, TX 77002

Paul Smith
Campaign Legal Center
1101 14th Street NW, Suite 400
Washington, DC 20005

David S. Lesser
Jamie Dycus
Wilmer Cutler Pickering Hale and Dorr LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007

102a
Marc E. Elias
John Devaney
Zachary J. Newkirk
Perkins Coie LLP
700 Thirteenth St., N.W., Suite 800
Washington, D.C. 20005

Seth P. Waxman
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006

103a
104a
 Appendix C

FILED
12-11-2020
John Barrett
Clerk of Circuit Court
2020CV007092

DATE SIGNED: December 11, 2020

Electronically signed by Judge Stephen A. Simanek

Circuit Court Judge

STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY

DONALD J. TRUMP,
MICHAEL R. PENCE, et al.

Plaintiffs/Appellants,

v.

JOSEPH R. BIDEN,
KAMALA D. HARRIS, et al.

Defendants/Appellees,

Milwaukee County Case No.: 2020CV7092

Dane County Case No.: 2020CV2514

FINAL ORDER

105a
 The matter having come before the Court, Reserve
Judge Stephen A. Simanek, on December 11, 2020 on
Plaintiffs’ Motion for Judgment on their appeal under
Wis. Stat. § 9.01(6) from the final recount
determinations of the Dane County Board of
Canvassers and Milwaukee County Elections
Commission, the Court having considered the
submissions by all parties, and having heard oral
argument from all parties;
IT IS HEREBY ORDERED:
For the reasons set forth on the record, which are
incorporated herein by reference, incorporating pages
1-30 of the Joint Proposed Findings of Fact and
Conclusions of Law by Joseph R. Biden, Kamala D.
Harris, the Dane County Defendants and the
Milwaukee County Defendants (Doc. 89) as the Court’s
findings of fact and conclusions of law, and pursuant
to Wis. Stat. § 9.01(8)(a), the determinations of the
Dane County Board of Canvassers and Milwaukee
County Elections Commission under review are
AFFIRMED.
Costs will be taxed in favor of Respondents
pursuant to Wis. Stat. § 9.01(7)(b).

THIS IS A FINAL ORDER

FOR PURPOSES OF APPEAL.

106a
 FILED
12-09-2020
John Barrett
Clerk of Circuit Court
2020CV007092

STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY

DONALD J. TRUMP,
MICHAEL R. PENCE, et al.

Plaintiffs,

v.

JOSEPH R. BIDEN, et al.,

Defendants.

Milwaukee County Case No. 20-CV-7092

Dane County Case No. 20-CV-2514
Consolidated

JOINT PROPOSED FINDINGS OF

FACT AND CONCLUSIONS OF LAW
BY JOSEPH R. BIDEN, KAMALA D. HARRIS,
THE DANE COUNTY DEFENDANTS AND
MILWAUKEE COUNTY DEFENDANTS

107a
 Defendants, Joseph R. Biden, Kamala D. Harris,
Milwaukee County Clerk George L.Christensen,
Milwaukee County Elections Commission (named
herein as the Milwaukee County Board of Canvassers),
Dane County Clerk Scott McDonnell, and Dane County
Board of Canvassers, by their undersigned counsel,
submit these Joint Proposed Findings of Fact and
Conclusions of Law for the Court’s consideration.

PROPOSED FINDINGS OF FACT

A. Procedural History and Background

1. The 2020 Presidential election was conducted on

November 3, 2020.

2. On November 17, 2020, the initial Wisconsin

county canvasses of the election results were
completed. The canvass results showed Joseph R.
Biden and Kamala D. Harris won the State of
Wisconsin by 20,427 votes.

3. On November 18, 2020, Plaintiffs filed a

Recount Petition with the Wisconsin Elections
Commission (“WEC”) (Doc. 36).1 Despite alleging that
“mistakes and fraud were [2] committed throughout
the state of Wisconsin,” the petition sought recounts in
just two of Wisconsin’s 72 counties — Milwaukee and
Dane Counties.

4. Plaintiff’s Recount Petition (Doc. 36) alleged, on

information and belief, that the following errors

1
“Doc.” refers to the e-filing document number associated
with electronic filings in this consolidated case.

108a
occurred in the two counties:

a. Municipal clerks improperly completed

missing information on absentee ballot
envelopes related to witness addresses
(Recount Petition, ¶ 4);

b. In-person absentee voters did not submit

written applications for an absentee ballot
(Recount Petition, ¶ 5); and

c. Voters who were not indefinitely confined

claimed “indefinitely confined” status for the
purposes of obtaining an absentee ballot
without having to show photo identification
(Recount Petition, ¶ 6).

5. While not raised in the Petition, Plaintiffs at the

Dane County recount took issue with the City of
Madison’s Democracy in the Park program, during
which election officials collected properly sealed and
witnessed absentee ballots.

6. The recount process lasted from November 20,

2020 to November 29, 2020.

7. During the recount and on this appeal, the

Trump Campaign seeks to disenfranchise no fewer
than 221,323 voters in the two counties. Trump
Proposed Findings (Doc. 62), ¶¶ 93-96. If the Trump
Campaign’s grounds for attempting to disqualify these
ballots were applied throughout the state, more than
700,000 ballots cast by Wisconsin voters would

109a
potentially be affected. (Def. App. 8-9).2

8. In both Dane and Milwaukee counties, the

Trump Campaign challenged and sought to disqualify
votes in the following categories, with the following
result: [3]

a. Ballots cast which had an absentee

envelope where a witness address, or a portion
of a witness address, had been completed by a
clerk (e.g., where the ballot envelope was
initially submitted with a witness address that
was missing the state).

i. The Milwaukee County Board of

Canvassers moved to accept ballots from
envelopes with witness addresses that had
been completed by clerks consistent with
specific guidance by the WEC, which the
Board viewed as consistent with Wis. Stat. §
6.87(6d). (Milwaukee 11/20/20 126:23-128:17)
(Doc. 37, pp. 126-128). The WEC guidance
provides: “The WEC has determined that
clerks must take corrective actions in an
attempt to remedy a witness address error.”
(emphasis in original) (Def. App. 50).

ii. The Dane County Board of Canvassers

also declined to “exclude envelopes that had a
witness address added by the clerk.” (Dane
11/20/20 65:1-15) (Doc. 49, p. 17).

2
“Def. App.” refers to the Defendants’ Joint Appendix filed
herewith.

110a
 b. All ballots cast by electors designating
themselves as “indefinitely confined” after
March 25, 2020.

i. The Milwaukee County Board of

Canvassers found that “a designation of an
indefinitely confined status is for each
individual voter to make based upon their
current circumstances” and that “no evidence
of any voter in Milwaukee County [was]
offered that has abused this process and voted
through this status…not even an allegation
that there was a single voter who abused this
process to vote without providing proof of their
ID, but eliminating proof that anyone did so.
So there’s no allegation…no proof…no
evidence.” (Milwaukee 11/21/20 145:2-146:2)
(Doc. 39, pp. 14-15). [4] The Board voted to
overrule any challenge to a voter with the
status of “indefinitely confined.” (Id.
146:9-147:19) (Doc. 39, pp. 15-16).

ii. The Dane County Board of Canvassers

also rejected the Trump Campaign’s challenge
that would have required invalidating the
ballots of all electors in Dane County who
declared indefinitely confined status. The
Board specifically declined to separate or
“draw down”3 the ballots cast by electors who

3
When an absentee ballot envelope is rejected during a
recount, the statutory remedy is to “randomly draw one absentee
ballot” from the entire pool of absentee ballots and set it aside
from the count. Wis. Stat. § 9.01(1)(b)(4)b. The process is random

111a
 declared indefinitely confined status. (Dane
11/20/20 65:18-66:9) (Doc. 49, pp. 17-18).

c. In Milwaukee County, all ballots cast

through absentee in-person voting that,
according to Plaintiffs, were obtained without
a “written application.”

i. The Milwaukee County Board of

Canvassers determined that there are multiple
forms of application for an absentee ballot that
can be made by absentee in-person voters and
that the absentee ballot envelope provided to
absentee in-person voters – which has the
word “application” stated on it and must be
completed by the voter – is an application for
an absentee ballot. The Milwaukee Board thus
rejected the Trump Campaign’s challenge to
ballots cast by in-person absentee voters.
(Milwaukee 11/21/20 183:15-187:10) (Doc. 39,
pp. 52-56).

d. In Dane County, every absentee ballot on

the basis that the Trump Campaign was not
allowed to review the written absentee ballot
applications during the recount [5] process,
and also to all absentee in-person absentee
ballots that, according to Plaintiffs, were
obtained without a “written application.”

because ballots are not marked to correspond to individual voters,

consistent with Wisconsin’s right to privacy in voting. See Wis.
Const. Art. III, Section 3. Thus, the remedy sought by the Trump
Campaign would randomly disenfranchise hundreds of thousands
of voters in the two targeted counties.

112a
 i. The Dane County Board of Canvassers
voted not to exclude or draw down any
absentee ballots on the basis that they “do not
have an attached or identifiable application.”
(Dane 11/20/20 38:1-40:25) (Doc. 49, p. 11).
The Dane County Board of Canvassers
concluded that review of absentee ballot
applications is not a part of the statutory
recount process under Wis. Stat. § 9.01(1)(b)
and therefore the applications were not
relevant to the recount.

9. In addition to the challenges listed above, in

Dane County only, the Trump Campaign sought to
disqualify “all ballots received in the Democracy in the
Park process” that elections officials conducted in
Madison on September 26, 2020 and October 3, 2020.
(Dane 11/24/20 52:7-11) (Doc. 51, p. 194). This
challenge was a blanket challenge to 17,271 ballots.
The Dane County Board of Canvassers denied the
challenge, ruling that the Democracy in the Park
events were the equivalent of a human drop box and
valid under the statute. (Dane 11/24/20 53:13-25,
72:21-73:16) (Doc. 51, pp. 194, 199).

10. In Dane County, the Trump Campaign

challenged nearly all of the absentee ballots in the
Town of Westport (2,233 out of a total of 2,308)
because the clerks failed to initial the absentee
envelope reflecting that the voter submitted or showed
a photo identification. The Dane County Board of
Canvassers denied the challenge based on the
testimony of the Town Clerk that “we check all photo
ID” and “no ballots leave our office unless it has been

113a
checked.” (Dane 11/23/20 50:14-51:5, 52:16-21) (Doc.
51, p. 161). [6]

11. In Milwaukee County, the Board of Canvassers

instructed tabulators to take the following steps as
part of the recounts to accommodate Plaintiffs’
standing challenges to categories of ballots:

a. Set aside any absentee envelope that

“has a different color on the address versus the
actual witness signature;”

b. Set aside any absentee envelope

containing an “indefinite confinement”
designation; and

c. Set aside any envelope that is the subject

of a specific challenge other than the two
challenges listed above. (Milwaukee 11/20/20
66:20-67:7; 11/21/20 42:2-18) (Doc. 37, pp.
66-67; Doc. 38, p. 61).

12. The Milwaukee County Elections Commission

certified the results of its recount on November 27,
2020. (Doc. 42, pp. 162-63).

13. The Dane County Board of Canvassers certified

the results of its recount on November 29, 2020. (Doc.
51, p. 320).

14. On November 30, 2020, Ann Jacobs, the

chairperson of the WEC, certified the results of the
2020 Wisconsin Presidential Election, after the results
of the Milwaukee County and Dane County recounts,
pursuant to Wis. Stat. § 7.70(3)(a). The certified

114a
results showed Joseph R. Biden and Kamala D. Harris
received 1,630,866 votes, and Donald J. Trump and
Michael R. Pence received 1,610,184 votes. The final
margin of victory was 20,682 votes.

15. On December 1, 2020, Plaintiffs filed a Petition

for Original Action with the Wisconsin Supreme Court
seeking to exclude several categories of ballots from
the presidential election results in Wisconsin. [7]

16. On December 2, 2020, President Trump sued

the WEC, its members, the mayors of Wisconsin’s five
largest cities, multiple clerks, the Governor, and the
Secretary of State in federal court, seeking a
declaration that “the constitutional violations of the
Defendants likely tainted more than 50,000 ballots”
and that the court “remand[ ] the case to the
Wisconsin legislature.” Trump v. Wisconsin Elections
Commission, E.D. Wis. Case No. 2:20-cv-01785.

17. On December 3, 2020, the Wisconsin Supreme

Court denied Plaintiffs’ Petition for Leave to
Commence an Original Action.

18. On December 3, 2020, hours after the

Wisconsin Supreme Court denied the petition for leave
to commence an original action and pursuant to Wis.
Stat. § 9.01(6), Plaintiffs filed separate Notices of
Appeal from the Recounts in Dane County and
Milwaukee County. (Doc. 7, 9).

19. On December 3, 2020, Chief Justice Patience

D. Roggensack consolidated the two appeals, Trump v.
Biden, Milwaukee County Case No. 2020-cv-7072, and
Trump v. Biden, Dane County Case No. 2020-cv-2514,

115a
and assigned the consolidated appeal to Reserve Judge
Stephen A. Simanek. (Doc. 9).

B. Challenged Procedures

a. Absentee Ballot Applications

20. A municipal clerk may not issue an absentee

ballot without receiving “a written application therefor
from a qualified voter of the municipality.” Wis. Stat.
§ 6.86(1)(ar). The statute defines “written
application…for an official ballot” to include a variety
of “methods,” including “[b]y mail,” “[i]n person at the
office of the municipal clerk,” on request forms, and
“[b]y electronic mail or facsimile transmission.” Wis.
Stat. § 6.86(1)(a).

21. For many years, the WEC has applied this

broad definition to allow online ballot requests in
multiple ways, including: [8]

a. through the MyVote website, which

generates an email and prompts a clerk to
mail an envelope and ballot (Milwaukee
11/20/20 50:3-11) (Doc. 37, p. 50);

b. by regular mail or e-mail (Milwaukee

11/20/20 49:2-4, 50:3-7, 76:6-25) (Doc. 37, pp.
49-50, 76);

c. if done in-person, through completion of

an official WEC multi-step form, EL-122, titled
“Official Absentee Ballot Application/
Certification,” which provides both an
application and a certification. (Milwaukee

116a
 11/20/20 51:2-8) (Doc. 37, p. 51).

22. The WEC and its predecessor agency, the

Government Accountability Board (“GAB”), have used
Form EL-122 since May 2010. (Affidavit of Kevin J.
Kennedy, ¶ 14) (Def. App. 106-107). Since that time,
Form EL-122 has been accepted as a lawful application
for an absentee ballot. Id.

23. Form EL-122 and its predecessor, Form

GAB-122, originated from “inefficiencies experienced
with in-person absentee voting” in the November 2008
presidential election. (Affidavit of Kevin J. Kennedy, ¶
6, Exh. A) (Def. App. 104-105, 108-150).

24. On December 17, 2009, the GAB unanimously

voted to eliminate the requirement for a separate
written application for in-person absentee voters, and
instead to incorporate the application into the
in-person process. (Affidavit of Kevin J. Kennedy, ¶ 10)
(Def. App. 105-106).

25. The GAB thereafter amended the official

absentee ballot envelope, Form GAB- 122, to also act
as the written application for those voters who voted
absentee in-person during the “early voting” period.
(Affidavit of Kevin J. Kennedy, ¶ 11) (Def. App. 106).

26. The new Form GAB-122, entitled “Official

Absentee Ballot Application/Certification,” was
distributed to all Wisconsin municipal clerks on May
10, 2010, [9] and has been in use continually
throughout Wisconsin since that time. (Affidavit of
Kevin J. Kennedy, ¶ 11, Exhs. B-C) (Def. App.
151-154).

117a
 27. Consistent with statewide practice,
municipalities and voters in Dane County and
Milwaukee County use Form EL-122 for in-person
absentee voting. The total number of in-person
absentee votes cast in the state in the November 2020
Election using Form EL-122 was 651,422. WEC
Absentee Ballot Report 11/3/20 General Election (Def.
App. 8-9).

28. Plaintiffs’ counsel James Troupis voted early

in-person using Form EL-122. (Affidavit of Devin
Remiker, Exhibit A) (Def. App. 169).

29. In Milwaukee County, when a voter requests

an absentee ballot in person, the voter identifies
himself or herself to the clerk, who then enters the
request for the ballot into the WisVote system directly.
(Milwaukee 11/20/20 46:7-21) (Doc. 37, p. 46). This
generates “a record of application.” (Milwaukee
11/20/20 85:14-17) (Doc. 37, p. 85). The system then
generates a label for that envelope. The voter then
shows the labeled envelope to an official to receive a
ballot. The voter completes the ballot and signs a
certification on the envelope, which a clerk witnesses.
The vote is not cast until the day of the election.
(Milwaukee 11/20/20 46:7-21) (Doc. 37, p. 46); (Dane
Biden Exhs. 2-16; Milwaukee Biden Exhs. 798-809)
(Def. App. 10-41) (affidavits of absentee inperson
voters describing multi-step process).

30. The absentee in person process in Dane follows

the same or similar procedures, whereby the
application portion of the envelope is completed and
shown to an official before the voter receives a ballot.
(Def. App. 10-20)

118a
 31. The Dane County Board of Canvassers
determined that 61,193 electors cast absentee ballots
in person in Dane County using Form EL-122. (Dane
11/22/20 58:7-10). Each in-person [10] absentee voter
completed an EL-122, which the Board concluded is
legally sufficient to satisfy Wis. Stats. § 6.86(1)(ar). Id.

32. The Milwaukee County Board of Canvassers

determined that the total number of voters who voted
absentee in person in Milwaukee County using Form
EL-122 was 108,947. (Milwaukee 11/21/20 184:14-19)
(Doc. 39, p. 53).

33. At no time prior to the election on November 3,

2020 did the Trump Campaign assert that the use of
Form EL 122 by voters and election officials in
Wisconsin was in any way improper or inconsistent
with Wisconsin law. The first time the Trump
Campaign made that claim was in its recount petitions
filed with Dane and Milwaukee counties on November
18, 2020, after election results showed that President
Trump had lost the election in Wisconsin by more than
20,000 votes.

34. The Trump Campaign did not make any

allegation that a single vote was cast in either county
by an ineligible voter who applied via Form EL-122.
There are no facts to support
such an allegation.

35. The Trump Campaign did not make any

allegation that any fraud occurred relating to the use
of Form EL-122 in either county. There are no facts to
support such an allegation.

119a
 b. Witness Addresses

36. An absentee voter must complete their ballot

and sign a “Certification of Voter” on the absentee
ballot envelope in the presence of a witness. Wis. Stat.
§ 6.87(4)(b). The witness must then sign a
“Certification of Witness” on the envelope, which must
include the witness’s address. Wis. Stat. § 6.87.

37. The witness-address requirement is

“mandatory,” id. § 6.84(2), and “[i]f a certificate is
missing the address of a witness, the ballot may not be
counted,” id. § 6.87(6d). [11]

38. Since October 2016, the WEC has instructed

municipal clerks that, while they may never add
missing signatures, they “must take corrective action”
to add missing witness addresses if they are
“reasonably able to discern” that information by
contacting the witnesses or looking up the addresses
through reliable sources. 10/18/16 WEC Memo to
Clerks “Missing or Insufficient Witness Address on
Absentee Certificate Envelopes.” (Def. App. 50-51).

39. Since then, the WEC has repeated these

instructions in multiple guidance documents, including
in the WEC Election Administration Manual (Sept.
2020), at 98 (clerks “may add a missing witness
address using whatever means are available,” and
“should initial next to the added witness address”) and
an October 19, 2020 guidance memo.4

4
Available at https://elections.wi.gov/sites/elections. wi.
gov/files/2020-10/Spoiling%20Ballot% 20Memo%2010.2020.pdf.

120a
 40. As a result, the WEC’s guidance on the witness
address issue has governed in eleven statewide races
since then, including the 2016 presidential election
and recount. Moreover, local election officials and
voters throughout the State have relied on it, and it
has never been challenged through Chapter 227
judicial review or otherwise. 11/10/20 WEC Release
“Correcting Misinformation About Wisconsin’s
Election,” No. 6 (Def. App. 55-56).

41. In November 2016, Candidate Donald Trump

won a recount in which thousands of ballots were
completed based upon the same WEC guidance on
witness addresses used in the November 2020 election.
(Milwaukee 11/20/20 117:15-25) (Doc. 37, p. 117).
Neither Candidate Trump nor anyone else raised any
objections to the use of that guidance in 2016. Id.

42. At no time prior to the election on November 3,

2020 did the Trump Campaign assert that the practice
of election workers filling in missing, verifiable witness
addresses was in any way improper or inconsistent
with Wisconsin law. The first time the Trump
Campaign made that claim was in its recount petitions
filed with Dane and Milwaukee counties on November
18, [12] 2020, after election results showed that
President Trump had lost the election in Wisconsin by
more than 20,000 votes.

43. As the petition for recount admits, WEC

guidance on completing addresses applies statewide,
not just in Dane and Milwaukee counties. (Recount
Petition, p. 1) (Doc. 36); (Dane County Transcript,
11/29/20 11:25) (Doc. 51, p. 320).

121a
 44. The witness address issue is not limited to
situations in which absentee ballots are entirely
missing address information for a witness. Instead, for
the most part, clerks corrected partial addresses, such
as by completing the city, zip code, or state.
(Milwaukee 11/20/20 116:2-7; 11/21/20 271:3-6,
277:13-14) (Doc. 37, p. 116; Doc. 39, pp. 140, 146). As
a result, the Trump Campaign objected to ballots that
were witnessed, signed by a witness, and contained a
witness’ street address, but had the city, state, or zip
code filled in by a clerk. (Id.; see also Milwaukee
11/20/20 125:2-5) (Doc. 37, p. 125).

45. In completing witness addresses, the City of

Milwaukee “do[es]n’t make guesses” if there are
multiple persons with the name of a witness. In that
situation, clerks do not fill in any missing witness
address information. Instead, they contact the voter or
mail the ballot back to the voter in an attempt to have
the voter contact the witness and provide the missing
information. (Milwaukee 11/20/20 117:1-7).

46. It is “very common” that an envelope will have

a street address but that the address will not be
“fill[ed] out completely.” (Milwaukee 11/20/20
117:8-11) (Doc. 37, p. 117).

47. There is no evidence establishing beyond a

reasonable doubt that adding missing witness address
information to any particular voter’s envelope was
improper or in violation of Wisconsin law and thus no
evidence establishing beyond a reasonable doubt that
any absentee [13] ballots associated with envelopes
containing added witness address information are
improper or in violation of Wisconsin law.

122a
 c. “Indefinitely Confined” Voters

48. Voters who self-certify that they are

“indefinitely confined because of age, physical illness
or infirmity or…disabled for an indefinite period” are
not required to submit photocopies of their photo IDs
with their absentee ballot applications. Wis. Stat. §§
6.86(2)(a), 6.87(4)(b)(2).

49. Voters who certify they are indefinitely

confined and who do not provide proof of identification
must submit with their 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.

50. In contrast, if a voter is not indefinitely

confined and has not previously submitted voter
identification, they must submit such identification.
See Wis. Stat. § 6.87(1).

51. After the COVID-19 pandemic hit Wisconsin in

March 2020 and the State issued a “Safer-at-Home
Order” on March 24, 2020, the Dane County Clerk
stated in a Facebook post that pursuant to the
Safer-At-Home Order all Dane County voters could
meet the definition of “indefinitely confined” for
purposes of voting absentee in the April 7 spring
election. Wis. Sup.Ct. Order, p. 2, Jefferson v. Dane
Cty., No 2020AP557-OA (Mar. 31, 2020) (Def. App. 65).

52. The WEC was also considering the indefinite

confinement issue in the context of COVID-19 and the
Safer-At-Home Order prior to the April 7 election. On

123a
March 29, 2020, the WEC issued a guidance
memorandum to all clerks, stating in relevant part:

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. [14]

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.

March 29, 2020 WEC Guidance for Indefinitely

Confined Voters (Def. App. 61).

53. The WEC’s guidance goes on to explain:

We understand the concern over the use of

indefinitely confined status and do not condone
abuse of that option as it is an invaluable
accommodation for many voters in Wisconsin.
During the current public health crisis,
many voters of a certain age or in at-risk
populations may meet that standard of
indefinitely confined until the crisis
abates. We have told clerks if they do not
believe a voter understood the declaration they
made when requesting an absentee ballot, they

124a
 can contact the voter for confirmation of their
status. They should do so using appropriate
discretion as voters are still entitled to privacy
concerning their medical and disability status.
Any request for confirmation of indefinitely
confined status should not be accusatory in
nature.

March 29, 2020 WEC Guidance for Indefinitely

Confined Voters (Def. App. 62).

54. Consistent with Wisconsin’s decades-long

legislative policy of taking voters at their word
concerning indefinite confinement, the WEC’s
guidance emphasizes the importance of avoiding any
“proof” requirements: “Statutes do not establish the
option to require proof or documentation from
indefinitely confined voters. Clerks may tactfully
verify with voters that the voter understood the
indefinitely confined status designation when they
submitted their request, but they may not request or
require proof.” (Def. App. 62).

55. In a March 31, 2020 order, the Wisconsin

Supreme Court granted the Republican Party of
Wisconsin’s motion for a temporary restraining order,
directing the Dane County Clerk to “refrain from
posting advice as the County Clerk for Dane County
inconsistent with the above quote from the WEC
guidance.” Jefferson v. Dane Cty., No 2020AP557-OA
(Mar. 31, 2020) (Def.App. 64-66). [15]

56. The Wisconsin Supreme Court’s Order stated:

“We conclude that the WEC’s guidance quoted above
provides the clarification on the purpose and proper

125a
use of the indefinitely confined status that is required
at this time.” Id. at p. 2 (Def. App. 65).

57. Voters claiming “indefinite confinement” status

increased significantly in 2020, during the COVID-19
pandemic, as compared to voters claiming that status
in 2016 when there was no pandemic. The increases in
voters designating themselves as indefinitely confined
occurred statewide, not only in Dane and Milwaukee
counties. See Dane County Board Exh. 2 (Def. App.
214-215).

58. Neither the WEC nor the Wisconsin Supreme

Court provided further guidance about the criteria for
voters to claim indefinitely confined status before the
November 3, 2020 election, meaning the guidance in
place for the election was the WEC guidance approved
by the Wisconsin Supreme Court. (Def. App. 65). The
Wisconsin Supreme Court heard oral argument in
Jefferson on September 29, 2020, and has not issued a
decision, which means the WEC guidance quoted
above remains in place.

59. At no time prior to the election on November 3,

2020 did the Trump Campaign assert that the WEC
guidance relating to indefinitely confined status was in
any way improper or inconsistent with Wisconsin law.
The first time the Trump Campaign made that claim
was in its recount petitions filed with Dane and
Milwaukee counties on November 18, 2020, after
election results showed that President Trump had lost
the election in Wisconsin by more than 20,000 votes.

60. Statewide, voters who indicated that they were

indefinitely confined received a form letter from a

126a
municipal clerk stating: “Identifying as an indefinitely
confined voter is an individual choice based on your
current situation and it does not require you to be
permanently confined.” The letter then gave the voter
an option to (1) continue to claim indefinite
confinement [16] status, (2) to opt out of the
parameters of indefinitely confinement but still
continue to receive absentee ballots for the remainder
of 2020, or (3) cancel the voter’s request to be
designated as indefinitely confined. (Dane County
Board of Canvassers Exh. 3) (Def. App. 200) (Dane
11/29/20 7:3-6).

61. The Milwaukee County Board of Canvassers

did not determine how many voters
cast ballots while indefinitely confined that had not
previously submitted an ID within the past year.

62. The Dane County Board of Canvassers did not

determine how many voters cast ballots while
indefinitely confined that had not previously submitted
an ID within the past year.

63. No facts were presented to the Milwaukee

County Board of Canvassers that any voter in the
county cast a ballot as indefinitely confined that did
not qualify as indefinitely confined. Specifically, “no
evidence of any voter in Milwaukee County [was]
offered that has abused this process and voted through
this status…not even an allegation that there was a
single voter who abused this process to vote without
providing proof of their ID, but eliminating proof that
anyone did so. So there’s no allegation…no proof…no
evidence.” (Milwaukee 11/21/20 145:2-146:2) (Doc. 39,
pp. 14-15).

127a
 64. No facts were presented to the Milwaukee
County Board of Canvassers that any voter relied upon
any statement made by County Clerk George
Christensen to determine their eligibility as
indefinitely confined. (Milwaukee 11/21/2020 136:8-16;
145:18–146:8) (Doc. 39, pp. 5, 14-15).

65. The Trump Campaign presented the Dane

County Board with a list of “eight or nine Facebook
posts” allegedly by persons whose names were also
names of persons who had voted absentee as
“indefinitely confined.” (Dane 11/28/20 14:19-25) (Doc.
51, p. 288). [17]

66. The Trump Campaign did not challenge the

ballots of these voters or seek a factual determination
as to their indefinitely confined status. The Trump
Campaign also did not provide evidence concerning
whether the election clerk already had each voter’s
photo ID on file. Accordingly, no finding was alleged,
requested, or made that any voter had improperly
invoked indefinitely confined status.

67. There is no evidence establishing beyond a

reasonable doubt that any voter cast a vote as
indefinitely confined who did not qualify as
indefinitely confined.

d. “Democracy in the Park”

68. On two Saturdays before the November 3, 2020

general election (September 26, 2020 and October 3,
2020), the City of Madison held “Democracy in the
Park” events in 206 Madison parks. The events were
designed to create a safe way for voters to personally

128a
deliver absentee ballots to the City of Madison Clerk
during the pandemic. (Affidavit of Maribeth Witzel-
Behl, ¶¶ 4-6) (Def. App. 209).

69. No absentee ballots were distributed, and no

absentee ballot applications were accepted or
distributed at Democracy in the Park. (Affidavit of
Michael Haas, ¶ 4) (Def. App. 202).

70. At the events, sworn city election inspectors

collected sealed and properly witnessed absentee
ballots that the voters had previously received. (Haas
Aff., ¶ 4) (Def. App.202).

71. At the events, city election inspectors served as

witnesses for absentee electors only if the elector
brought an unsealed, blank ballot with them. (Haas
Aff., ¶ 4) (Def. App. 202).

72. The Madison City Attorney emphasized in a

letter to counsel for the Legislature that:

The procedures that the City Clerk has

established to secure ballots [at the Democracy
in the Park events] are equivalent to the
procedures used to secure all absentee ballots.
… Sworn election [18] officials will retrieve
ballots that have already been issued and will
ensure that ballots are properly witnessed and
are secured and sealed in absentee ballot
envelopes and ballot containers with
tamperevident seals, to be tabulated on
Election Day. The election officials will
maintain a chain of custody log that is open to
public inspection. No new ballots will be issued

129a
 in the parks.

(Def. App. 204-205).

73. Neither the Madison City Attorney nor any

other City official received any response to the letter to
the counsel for the Legislature “and no further legal
concerns regarding the Democracy in the Park
program were communicated to [him].” (Haas Aff., ¶ 6)
(Def. App. 203).

74. The City Clerk for the City of Madison

designed the Democracy in the Park event “to comply
with all applicable election laws.” (Witzel-Behl Aff., ¶
4) (Def. App. 209). There is no evidence that the
Democracy in the Park events violated any Wisconsin
election laws or resulted in any improper votes being
cast.

75. In creating the program, the City Clerk for the

City of Madison “sought to accommodate the
unprecedented demand for absentee ballots, address
concerns about the capacity of the U.S. Postal Service
to deliver ballots by Election Day, and provide City of
Madison voters with a secure and convenient means of
returning their completed ballots and obtain a witness
if necessary.” (Witzel-Behl Aff., ¶ 4) (Def. App. 209).

76. Voters relied on the City of Madison’s

determination that the Democracy in the Park events
complied with Wisconsin laws, and they cast their
votes at the events based on that reliance. See, e.g.,
Affidavit of Michael Martin Walsh (“I dropped off my
ballot based on the assurance from the City of Madison
that doing so was legal and proper”) (Biden Exh. 253)

130a
(Def. Aff. 93). [19]

77. The City of Madison invited both major

political parties to observe the entire process at the
Democracy in the Park events. (Haas Aff., Exh. B)
(Def. App. 204).

78. According to the City Clerk of the City of

Madison, a total of 17,271 absentee ballots were
collected during the Democracy in the Parks events.
(Witzel-Behl Aff., ¶ 7) (Def.
App. 210).

79. The Democracy in the Park events did not

function as in-person absentee voting sites. Voters
could not obtain and vote ballots there; they could only
return absentee ballots they had previously received in
the mail. At the events, city election inspectors
“collected completed, sealed, and properly witnessed
absentee ballots.” (Witzel-Behl Aff., ¶ 6) (Def. App.
209).

80. The 206 staffed locations were not “alternate

absentee ballot sites” regulated under Wis. Stat. §
6.855. Instead, they were ballot return locations
governed under Wis. Stat. § 6.87(4)(b)1 (“The envelope
shall be mailed by the elector, or delivered in person,
to the municipal clerk issuing the ballot or ballots.”).

81. The WEC has interpreted Wis. Stat. §

6.87(4)(b)1 to allow the use of secured ballot drop boxes
in a variety of locations and circumstances. These
include book slots at public libraries, mail slots used
for payment of taxes and other government fees,
“staffed temporary drive-through drop offs,” and

131a
“unstaffed 24-hour ballot drop boxes.” August 19, 2020
WEC Guidance re Absentee Ballot Drop Box
Information. (Def. App. 71-72).

82. The drop-offs that were used in the Democracy

in the Park events were functionally identical in all
respects to the “staffed” and “unstaffed” drop boxes
endorsed by the WEC and Wisconsin legislature. Thus,
deposit of a sealed ballot envelope in one of the drop
boxes staffed by duly designated agents of the clerk
constituted “deliver[y] in person, to the municipal
clerk” within the meaning of Wis. Stat. § 6.87(4)(b)1.
[20]

83. No allegations were made, and the Dane

County Board of Canvassers did not find,that a single
vote cast at Democracy in the Park was cast by an
ineligible voter.

PROPOSED CONCLUSIONS OF LAW

1. Voting is a fundamental right:

The right of a qualified elector to cast a ballot

for the election of a public officer, which shall
be free and equal, is one of the most important
of the rights guaranteed to him by the
constitution. If citizens are deprived of that
right, which lies at the very basis of our
Democracy, we will soon cease to be a
Democracy. For that reason no right is more
jealously guarded and protected by the
departments of government under our
constitutions, federal and state, than is the
right of suffrage.

132a
State ex rel. Frederick v. Zimmerman, 254 Wis. 600,
613, 37 N.W.2d 473, 480 (1949).

A. Standard of Review on
Wis. Stat. § 9.01 Appeal

2. Unless the court finds grounds for setting aside

or modifying the determination of the Board of
Canvassers, it must affirm the Board’s determination.
Wis. Stat. § 9.01(8)(c).

3. The court must separately treat disputed issues

of procedure, interpretations of law, and findings of
fact. Wis. Stat. § 9.01(8)(b).

4. The court will set aside or modify the

determination of the Board of Canvassers only if it
finds that the Board of Canvassers has erroneously
interpreted a provision of law and a correct
interpretation compels a particular action. Wis. Stat.
§ 9.01(8)(c).

5. If the determination depends on any fact found

by the Board, the court may not substitute its
judgment for that of the Board as to the weight of the
evidence on any disputed finding of fact. The court
shall set aside the determination if it finds that the
determination depends on any finding of fact that is
not supported by substantial evidence. Wis. Stat. §
9.01(8)(c).

6. The Court will review questions of law de novo.

Clifford v. Sch. Dist. of Colby, 143 Wis. 2d 581, 585,
421 N.W.2d 852, 853 (Ct. App. 1988). [21]

133a
 7. But, when a party tries to change the results of
an election by disqualifying the votes of certain voters,
the challenger must “demonstrate beyond a reasonable
doubt that the person does not qualify as an elector or
is not properly registered.” Logerquist v. Board of
Canvassers for Town of Nasewaupee, 150 Wis. 2d 907,
917, 442 N.W.2d 551, 555-56 (Ct. App. 1988).

8. Wisconsin courts have established a general rule

that, in order to successfully challenge an election in a
subsequent judicial appeal, the challenger must show
that the outcome of the election would have been
changed absent the challenged irregularity. See
Carlson v. Oconto County Board of Canvassers, 2001
WI App 20, ¶ 10, 240 Wis. 2d 438, 444-45, 623 N.W.2d
195 (“Under the outcome test, to successfully challenge
an election, the challenger must show the probability
of an altered outcome, in the absence of the challenged
irregularity…our supreme court has approved the
outcome test for most election irregularities.”).

9. Wisconsin courts have historically protected the

right to vote and declined to disenfranchise voters for
clerical errors by election officials where the voter
acted in good faith. See e.g. Ollmann v. Kowalewski,
238 Wis. 574, 578, 300 N.W. 183, 186 (1941) (“The
voter would not knowingly be doing wrong. And not to
count his vote for no fault of his own would deprive
him of his constitutional right to vote. ... A statute
purporting so to operate would be void, rather than the
ballots.”); Sommerfeld v. Bd. of Canvassers of City of
St. Francis, 269 Wis. 299, 304, 69 N.W.2d 235, 238
(1955) (rejecting “purely technical” “complaint as to the
delivery of the ballots”); Lanser v. Koconis, 62 Wis. 2d
86, 93, 214 N.W.2d 425, 428 (1974) (“[W]e are not

134a
inclined to disenfranchise these voters who acted in
conformance with the statutory requirements. There
is absolutely no evidence from which it could be
inferred that the method of delivery by the municipal
clerk in any way affected their vote.”); Matter of
Hayden, 105 Wis. 2d 468, 478, 313 N.W.2d 869, [22]
873–74 (Ct. App. 1981) (construing mandatory
language about delivery of ballots as directory because
“[o]nly when the municipal clerk appears to have
solicited voters, or when there is any evidence of fraud,
will voters who acted in good faith be
disenfranchised.”); Roth v. La Farge Sch. Dist. Bd. of
Canvassers, 2001 WI App 221, ¶ 27, 247 Wis.2d 708,
726, 634 N.W.2d 882, 889 (“A statute which merely
provides that certain things shall be done in a given
manner and time without declaring that conformity to
such provisions is essential to the validity of the
election should be construed as directory.”) (quoting
Matter of Hayden, 105 Wis. 2d at 483).

10. While the provisions in Wis. Stat. §§ 6.86, 6.87

(3)-(7) and 9.01 (1) (b) 2. and 4 shall be construed as
mandatory, the reason is “to prevent the potential for
fraud or abuse; to prevent overzealous solicitation of
absent electors who may prefer not to participate in an
election; to prevent undue influence on an absent
elector to vote for or against a candidate or to cast a
particular vote in a referendum; or other similar
abuses.” Wis. Stat. § 6.84 (1)-(2).

11. But where fraud or impropriety is not alleged,

outside of §§ 6.86, 6.87 (3)-(7) and 9.01 (1) (b) 2. and 4,
the will of the voter controls. See, e.g., Lanser v.
Koconis, 62 Wis. 2d 86, 93-94, 214 N.W.2d 425, 429
(1974) (holding that technical noncompliance with a

135a
statutory provision for delivery of absentee ballots and
signature requirement did not render the ballots
invalid and that voters were entitled to have their
votes counted).

12. Except as otherwise provided, the Wisconsin

Election Code shall be construed to give effect to the
will of the electors, if that can be ascertained from the
proceedings, notwithstanding informality or failure to
comply fully with some of its provisions. Wis. Stats. §
5.01 (1). In this context, the Wisconsin Supreme Court
has “quite consistently” held mandatory language to in
fact be permissive. Id. This is particularly true for
absentee ballots. Sommerfeld v. Bd. of Canvassers of
City of St. Francis, 269 Wis. 299, 302, 69 N.W.2d 235,
237 (1955) (“The [23] number of absentee ballots is
increasing rather than decreasing. Where possible our
statute should be interpreted to enable these people to
vote.”). See also Ollman v. Kowalewski, 238 Wis. 574,
578, 300 N.W. 183, 185 (1941) (where a clerk
erroneously placed his initials on ballots when initials
from two clerks were required: “The voter would not
knowingly be doing wrong. And not to count his vote
for no fault of his own would deprive him of his
constitutional right to vote. Any statute that purported
to authorize refusal to count ballots cast under the
instant circumstance would be unconstitutional. A
statute purporting so to operate would be void, rather
than the ballots.”).

B. Plaintiffs’ Legal Challenges to WEC

Statewide Guidance are Not Within the
Scope of a Recount Under Wis. Stat. § 9.01.

136a
 13. Post-election challenges under Wis. Stat. § 9.01
are limited in scope. This court may not wade into
alleged statewide procedural irregularities underlying
the election process itself. Clapp v. Joint School Dist.
No. 1, 21 Wis. 2d 473, 478, 124 N.W.2d 678, 681-82
(1963) (“The statute does not contemplate a judicial
determination by the board of canvassers of the
legality of the entire election but of certain challenged
ballots. ... True, there is an appeal from the board of
canvassers to the circuit court but the scope of that
appeal is no greater than the duties of the board of
canvassers and does not reach a question of the
illegality of the election as a whole.”).

14. WEC is an agency of the executive branch. See

State ex rel. Zignego v. Wisconsin Elections
Commission, 2020 WI App 17, ¶ 38, 391 Wis. 2d 441,
463, 941 N.W.2d 284.

15. Among other duties, WEC administers all of

Wisconsin’s election laws. Wis. Stat. § 5.05(1).

16. Each one of the categories of absentee ballots

challenged by Plaintiffs was accepted by the municipal
clerks in reliance on published guidance documents
issued by the WEC. The categories and associated
WEC guidance documents include: [24]

a. In-Person Absentee Voting Using EL-122 as the

Written Application: WEC Form EL-122 has been in
use since May 2010. WEC’s Form EL-122 (in use since
2010) and Election Administration Manual, p. 91
(Sept. 2020) provide that the absentee certificate
envelope itself constitutes an in-person absentee
voter’s written absentee ballot application.

137a
 b. Correcting Missing Witness Address
Information: The WEC’s October 18, 2020 Memo to
Clerks re: “Missing or Insufficient Witness Address on
Absentee Certificate Envelopes” states that municipal
clerks “must take corrective action” to add missing
witness address information if they are “‘reasonably
able to discern’” that information. (Def. App. 50). The
WEC Election Administration Manual states at p. 99
that: “Clerks may add a missing witness address using
whatever means are available.”

c. Indefinitely Confined Voters: The WEC’s March

29, 2020 guidance (approved by the Wisconsin
Supreme Court on March 31, 2020) stated that to
claim “indefinitely confined” status, a voter need not
suffer from a “permanent or total inability to travel
outside of the residence”; that the decision “is for each
individual voter to make based upon their current
circumstance”; and that “many voters of a certain age
or in at-risk populations may meet that standard of
indefinitely confined until the [pandemic] crisis
abates.”

d. Democracy in the Park: The WEC’s “Absentee

Ballot Drop Box Information” guidance dated August
19, 2020 expressly recommended “outdoor” “staffed”
ballot drop boxes like those used in Madison’s
Democracy in the Park events. [25]

17. Plaintiffs only avenue to challenge a procedure

contained in a WEC guidance document is pursuant to
Wis. Stat. § 227.40. Wis. Stat. § 227.40(1) provides that
“the exclusive means of judicial review of the validity
of a[n] [agency’s] rule or guidance document” shall be
in the form of “an action for declaratory judgment . . .

138a
brought in the circuit court for the county where the
party asserting the invalidity of the rule or guidance
document resides . . .” These exclusive review
provisions “are not permissive, but rather are
mandatory.” Richards v. Young, 150 Wis. 2d 549, 555,
441 N.W.2d 742 (1989); see State v. Town of Linn, 205
Wis. 2d 426, 449, 556 N.W.2d 394 (Ct. App. 1996).

18. The WEC documents attacked as “illegal” by

the Plaintiffs are “guidance” documents under Chapter
227. See Wis. Stat. § 227.01(3m) (defining “guidance
document” to include “any formal or official document
or communication issued by an agency, including a
manual, handbook, directive, or informational bulletin,
that does any of the following: (1) Explains the
agency’s implementation of a statute or rule enforced
or administered by the agency, . . . [or] (2) Provides
guidance or advice with respect to how the agency is
likely to apply a statute or rule enforced or
administered by the agency, if that guidance or advice
is likely to apply to a class of persons similarly
situated.”).

19. The Court therefore has no jurisdiction under

Wis. Stat. § 9.01 to reject broad categories of ballots
based upon Plaintiffs’ contention that the WEC’s
statewide guidance was inconsistent with the statutes
the agency is statutorily required to administer. [26]

C. Plaintiffs’ Challenges to Voters Relying on

the WEC’s Guidance Fail on the Merits.

1. Absentee Ballot Applications

20. Wis. Stat. § 6.86(1)(ar) states: “Except as

139a
authorized in s. 6.875(6), the municipal clerk shall not
issue an absentee ballot unless the clerk receives a
written application therefor from a qualified elector of
the municipality.”

21. No election statute requires any absentee

application to take any particular form or structure.

22. WEC Form EL-122 is entitled “Official

Absentee Ballot Application/Certification.” When
completed by a voter during the in-person absentee
voting period, Form EL-122 operates as the voter’s
“written application” for an absentee ballot. See WEC
Election Administration Manual (Sept. 2020), pp.
90-91 (“The applicant does not need to fill out a
separate written request if they only wish to vote
absentee for the current election. The absentee
certificate envelope doubles as an absentee request
and certification when completed in person in
the clerk’s office.”).

23. WEC’s use of Form EL-122 as the written

application for in-person absentee voters is consistent
with WEC’s “responsibility for the administration of
chs. 5 to 10 and 12 and other laws relating to
elections.” Wis. Stat. § 5.05(1).

24. Plaintiff’s position that Form EL-122 does not

constitute a “separate written application” for an
absentee ballot has no basis in Wisconsin’s election
laws. Form EL-122 is
a separate document from the absentee ballot itself.

25. There is no statutory or other basis upon which

to overturn either Board’s finding that the Trump

140a
Campaign’s objections to the use of Form EL-122
should be overruled. [27]

2. Adding Missing
Witness Address Information

26. WEC guidance in place for more than four

years permits — and in some instances even requires
— the practice of curing missing witness addresses
based on reliable information.

27. The WEC’s guidance to clerks to cure missing

witness address information is not unlawful. On the
contrary, the WEC’s guidance is grounded in a
reasonable interpretation of the Election Code. While
Wis. Stat. § 6.87(9) states that a clerk “may” return an
absentee ballot with an improperly completed
certificate, the statute does not preclude a clerk from
remedying a witness address deficiency herself. In
addition, the statute is not mandatory. See Wis. Stat.
§ 6.84(2).

28. The law does not direct who may add or correct
a witness’s address on an envelope.

29. Plaintiffs’ generalization that even corrected

envelopes, where clerks filled in only the municipality,
the state or the zip code in red ink, are “missing” an
address is inconsistent with the plain language of Wis.
Stat. § 6.87(6d), which states: “if a certificate is
missing the address of a witness, the ballot may not be
counted.” (emphasis added). Wisconsin Statutes, court
forms, and tax forms all treat one’s “address” as
distinct from the city, state or zip code. See e.g. Wis.
Stats. § 801.095(1) (form of summons listing “Address,

141a
city, state, zip code”); Acuity Mut. Ins. Co. v. Olivas,
2007 WI 12, ¶ 158, 298 Wis. 2d 640, 697, 726 N.W.2d
258, 287 (describing Form 1099 which asks for “Payer's
name, street address, city, state, ZIP code, and
telephone no.”). And the absentee ballot envelope in
question itself treats address, city, state, and zip code
as distinct and in separate boxes for the voter’s
information in the top half the application. (Def. App
7). So too, does Form EL-121, which Plaintiffs endorse.
(P. App. 24). To read into the statute that “missing the
address” means missing a city, state, or zip code defies
principles of statutory construction, internal
consistency, and common sense. State v. Kozel, 2017
WI 3, ¶ 39, 373 Wis. 2d 1, 21-22, 889 N.W.2d 423, 433
(Court would not “require a specific type or degree of
direction where the statute at issue does not so specify.
We will not read into the statute a limitation the plain
language [28] does not evidence.”) (internal quotation
omitted). Doing so ignores Wis. Stat. § 5.01, which
requires giving effect to the will of the elector, which
requirement is not overridden—even if § 6.87(6d) is
mandatory—where an address but not a zip code or
state appears and that zip code or state is readily
ascertainable. See Wis. Stat. § 5.01 (1).

30. That an absentee envelope’s witness address

was completed by a clerk is not a statutory basis for
objecting to or invalidating a vote during a recount.
Wis. Stat. § 9.01(1)(b)2 (“An absentee ballot envelope
is defective only if it is not witnessed or if it is not
signed by the voter or if the certificate accompanying
an absentee ballot that the voter received by facsimile
transmission or electronic mail is missing.”).

142a
 31. No allegation has been made and the court
cannot find that any corrected witness address
involved any fraud, impropriety or abuse by a
municipal clerk, or allowed ineligible votes to be cast.

32. Therefore, the Milwaukee Elections

Commission and the Dane County Board of
Canvassers properly rejected the Plaintiffs’ challenges
to ballots where a clerk added missing witness address
information.

3. “Indefinitely Confined” Voters

33. The substantive provision allowing absentee

voting for “indefinitely confined” electors has been in
place for more than forty years, and the relevant text
of Wis. Stat. § 6.82(2)(a) has been unchanged since
1985. See Wis. Stat. § 6.86(2) (1985); 1985 Wisconsin
Act 304.

34. On March 29, 2020, the WEC issued guidance

on applying the “indefinitely confined” exemption
during the pandemic.

35. On March 31, 2020, in considering a challenge

to informal guidance provided on social media by
certain county election officials, the Wisconsin
Supreme Court held that the WEC’s March 29, 2020
guidance “provide[d] the clarification on the purpose
and proper use of [29] the indefinitely confined status
that is required at this time.” Jefferson v. Dane Cnty.,
No.2020AP557-OA, at 2 (Mar.31, 2020). The WEC’s
guidance has remained unchanged since then and was
effective for the 2020 general election.

143a
 36. During the recount proceedings, Plaintiffs
submitted two pieces of evidence regarding indefinitely
confined voters: (a) a spreadsheet with nineteen (19)
names of voters and links to Facebook posts by each
identified voter; and (b) a November 25, 2020 affidavit
of Kyle Hudson attaching seven (7) purported “social
media posts” by voters registered as “indefinitely
confined” that show the individuals outside of their
homes. None of the posts related to Milwaukee County
electors.

37. Plaintiffs’ evidence lacks proper foundation

regarding the identity of the individual voters,
whether they are the same persons with the social
media accounts, the particular circumstances of the
individuals at the time they registered as indefinitely
confined and at the time of the election, and the posts
are hearsay. See Wis. Stat. § 906.02 (“A witness may
not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has
personal knowledge of the matter.”); § 908.01(3)
(“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.’”).

38. The court cannot draw any conclusions based

upon this tenuous and inadmissible evidence and
cannot extrapolate from the evidence a conclusion that
over 28,000 Dane and Milwaukee County residents
fraudulently identified themselves as indefinitely
confined.

144a
 39. Ballots from voters who claimed indefinite
confinement status in reliance of WEC rules and the
Wisconsin Supreme Court’s order are therefore lawful.
[30]

40. The Milwaukee Elections Commission and

Dane County Board of Canvassers properly denied
Plaintiffs’ challenges to indefinitely confined voters.

4. “Democracy in the Park”

41. Wis. Stat. § 6.87(4)(b)1 states that an absentee

ballot envelope “shall be mailed by the elector, or
delivered in person, to the municipal clerk issuing the
ballot or ballots.” The statute does not restrict the
manner in which a voter can return an absentee ballot
to a municipal clerk.

42. The Democracy in the Park events conducted

by the City of Madison were for the express purpose of
allowing voters to deliver absentee ballots in person to
the municipal clerk.

43. The affidavits of Maribeth Witzel-Behl and

Michael Haas establish that the Democracy in the
Park events were properly staffed by employees of the
City of Madison Clerk, and that proper procedures
were used to ensure the security of the ballots so
delivered. (Def. App. 201-210).

44. The Democracy in the Park events were not

“early voting” as Plaintiffs allege, because no absentee
ballots were requested or issued at the events. See
Wis. Stat. § 6.86(1) (b); Dane 11/24/20 53:14-19 (Doc.
51, p. 194). See also Haas Aff., ¶ 4 (Def. App. 202).

145a
 45. Plaintiffs do not allege and submitted no
evidence that any ballot delivered to the City of
Madison during the Democracy in the Park events was
tampered with or cast by an ineligible voter.

46. The court therefore finds no statutory basis to

disqualify more than 17,000 ballots personally
delivered to the City of Madison Clerk at the
Democracy in the Park events.

D. Plaintiffs’ Legal Challenges to

WEC’s Guidance are Barred by Laches.

47. “A party who delays in making a claim may

lose his or her right to assert that claim based on the
equitable doctrine of laches.” Dickau v. Dickau, 2012
WI App 111, ¶ 9, 344 Wis. 2d 308, 824 N.W.2d 142.

48. Laches has three elements: (1) the party

asserting a claim unreasonably delayed in
doing so; (2) a second party lacked knowledge that the
first party would raise that claim; and (3) the delay
prejudiced the second party. Wis. Small Bus. United,
Inc. v. Brennan, 2020 WI 69, ¶ 12, 393 Wis. 2d 308,
318, 946 N.W.2d 101. All three elements are satisfied
here.

49. Plaintiffs unreasonably delayed pursuing a

legal challenge to the four categories of absentee voters
targeted in the recount. Form EL-122 has been used as
the “written application” for in-person early voters for
more than 10 years and could have been challenged
prior to the election. The WEC’s guidance instructing
municipal clerks to cure missing witness address
information was created prior to the 2016 Presidential

146a
election and for 10 additional statewide elections
thereafter. The WEC’s guidance regarding
“indefinitely confined” voters during the pandemic is
currently being challenged in court and Plaintiffs did
not intervene in the case. Finally, the Democracy in
the Park events were the subject of threatened
litigation by the Wisconsin Legislature, and the City of
Madison commenced a declaratory judgment action
that the Plaintiffs did not attempt to join. (Def. App.
189-198).

50. Defendants had no way to anticipate Plaintiffs

would pursue a post-election challenge seeking to
disenfranchise hundreds of thousands of Wisconsinites
based on participation in an election according to
procedures of which Plaintiffs have been aware for
years and never challenged. [32]

51. Allowing Plaintiffs to now challenge the WEC’s

forms and guidance, to invalidate the votes of voters in
two out of seventy-two counties, would prejudice both
the Defendants and the targeted voters. Brennan, 2020
WI 69, ¶ 19, 393 Wis. 2d at 322 (“What amounts to
prejudice … depends upon the facts and circumstances
of each case, but it is generally held to be anything
that places the party in a less favorable position.”)
(citation omitted).

E. Plaintiffs are Equitably Estopped from

Seeking to Disenfranchise Targeted
Groups of Voters for Following the
Guidance of Elections Officials.

52. Equitable estoppel doctrine “focuses on the

conduct of the parties” and consists of four elements:

147a
“(1) action or non-action, (2) on the part of one against
whom estoppel is asserted, (3) which induces
reasonable reliance thereon by the other, either in
action or non-action, and (4) which is to his or her
detriment.” Milas v. Labor Ass’n of Wisconsin, Inc., 214
Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997). All four
elements are met here.

53. Plaintiffs failed to act prior to the election to

challenge any of the categories of votes challenged in
this recount appeal, despite an opportunity to do so.

54. Plaintiffs’ acquiescence in the manner in which

the 2016 Presidential Election was conducted in
Wisconsin induced reasonable reliance by voters,
elections officials and opposing candidates that that
the machinery for absentee voting during a pandemic
– including use of the standard application Form
EL-122, the clerk’s curing of absentee ballot witness
address information, the grounds for claiming
indefinite confinement, and the use of mobile drop
boxes – was legal.

55. Disenfranchising hundreds of thousands of

Dane and Milwaukee County voters after the fact
would be to their grave and constitutional detriment.
See Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d
1056, 1061 (7th Cir. 2020) (“It is undeniable that the
right to vote is [33] a fundamental right guaranteed by
the Constitution. The right to vote is not just the right
to put a ballot in a box but also the right to have one’s
vote counted.”) (citations omitted).

148a
 F. Disenfranchising Dane and Milwaukee
County Votes While Counting Similar
Voters in Other Counties Would Violate
Equal Protection.

56. The Equal Protection Clause forbids Wisconsin

from, “by later arbitrary and disparate treatment,
valu[ing] one person’s vote over that of another.” Bush
v. Gore, 531 U.S. 98, 104-05 (2000) (per curiam); see
also Harper v. Virginia State Bd. of Elections, 383 U.S.
663, 665 (1966) (“[O]nce the franchise is granted to the
electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause.”); State
ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 54, 132
N.W.2d 249 (1965) (“The concept of ‘we the people’
under the Constitution visualizes no preferred class of
voters but equality among those who meet the basic
qualifications.”).

57. Discarding the votes of Dane and Milwaukee

County voters for use of the EL-122 absentee ballot
application form, but allowing all other similarly
situated voters to remain counted, would devalue the
targeted voters in violation of the Equal Protect
Clause.

58. Discarding the votes of over 28,000 Dane and

Milwaukee County voters who self designated as
“indefinitely confined,” but allowing all other
indefinitely confined voters to remain counted, would
devalue the targeted voters in violation of the Equal
Protect Clause.

149a
 59. Discarding the votes of over 4,000 Dane and
Milwaukee County voters because municipal clerks
corrected missing witness address information, but
allowing all other voters whose absentee envelopes
were similarly corrected pursuant to WEC guidance,
would devalue the targeted voters in violation of the
Equal Protect Clause. [34]

Dated this 9th day of December, 2020.

PERKINS COIE LLP

Attorneys for Joseph R. Biden

and Kamala D. Harris

BY: s/Charles G. Curtis, Jr.

John Devaney* Lead Counsel
700 Thirteenth St., N.W., Suite 800
Washington, DC 20005
(202) 654-6200
[email protected]

Charles G. Curtis, Jr., SBN 1013075

Michelle M. Umberger, SBN 1023801
Will M. Conley, SBN 1104680
33 East Main St., Suite 201
Madison, WI 53703
(608) 663-7460
[email protected]
[email protected]
[email protected]

*Pro hac vice application forthcoming

150a
FOX, O'NEILL & SHANNON, S.C.

Attorneys for Joseph R. Biden

and Kamala D. Harris

BY: s/Matthew W. O’Neill

Matthew W. O’Neill Co-Counsel
SBN 1019269
622 North Water Street, Suite 500
Milwaukee, WI 53202
(414) 273-3939
[email protected]

DANE COUNTY CORPORATION COUNSEL

Attorneys for Dane County Clerk Scott McDonnell
And Dane County Board of Canvassers

BY: s/David R. Gault

David R. Gault
Assistant Corporation Counsel
State Bar No. 1016374
City-County Building, Room 419
210 Martin Luther King Jr. Blvd.
Madison, WI 53703
(608) 266-4355
[email protected]

151a
HANSEN REYNOLDS LLC
Attorneys for Defendants Milwaukee County Clerk
George Christensen and Milwaukee County
Elections Commission

s/Andrew A. Jones
Andrew A. Jones
State Bar No. 1023074
301 N. Broadway, Suite 400
Milwaukee, Wisconsin 53202
(414) 326-4952 (phone)
(414) 273-8476 (fax)
[email protected]

152a
 Appendix D

PERTINENT STATUTES

TITLE 3, U.S. CODE:

THE PRESIDENT

CHAPTER 1:
PRESIDENTIAL ELECTIONS AND VACANCIES

§2. Failure to make choice on prescribed day

Whenever any State has held an election for the
purpose of choosing electors, and has failed to
make a choice on the day prescribed by law, the
electors may be appointed on a subsequent day in
such a manner as the legislature of such State may
direct.

CHAPTER 5, WISCONSIN STATUTES:

ELECTIONS — GENERAL PROVISIONS;
BALLOTS AND VOTING SYSTEM

5.01 Scope.
(1) CONSTRUCTION OF CHS. 5 TO 12. Except as
otherwise provided, chs. 5 to 12 shall be construed to
give effect to the will of the electors, if that can be
ascertained from the proceedings, notwithstanding
informality or failure to fully comply with some of their
provisions.

153a
CHAPTER 6, WISCONSIN STATUTES:
THE ELECTORS

SUBCHAPTER III: VOTING

6.79 Recording electors.

(1m) SEPARATE POLL LISTS. The municipal
clerk may elect to maintain the information on the poll
list manually or electronically. If the clerk elects to
maintain the list electronically, an election official at
each election ward shall be in charge of and shall
maintain the poll list. The system employed to
maintain the list electronically is subject to the
approval of the commission. If the clerk elects to
maintain the information manually, 2 election officials
at each election ward shall be in charge of and shall
maintain 2 separate poll lists.
(2) VOTING PROCEDURE. (a) Unless information
on the poll list is entered electronically, the municipal
clerk shall supply the inspectors with 2 copies of the
most current official registration list or lists prepared
under s. 6.36 (2) (a) for use as poll lists at the polling
place. Except as provided in subs. (6), (7), and (8), each
eligible elector, before receiving a serial number, shall
state his or her full name and address and present to
the officials proof of identification. The officials shall
verify that the name on the proof of identification
presented by the elector conforms to the name on the
poll list or separate list and shall verify that any
photograph appearing on that document reasonably
resembles the elector. The officials shall then require
the elector to enter his or her signature on the poll list,
supplemental list, or separate list maintained under
par. (c) unless the elector is exempt from the signature
requirement under s. 6.36 (2) (a). The officials shall

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verify that the name and address stated by the elector
conform to the elector’s name and address on the poll
list.

***

(3) REFUSAL TO PROVIDE NAME, ADDRESS,

OR PROOF OF IDENTIFICATION.
(a) Except as provided in sub. (6), if any elector
offering to vote at any polling place refuses to give his
or her name and address, the elector may not be
permitted to vote.
(b) If proof of identification under sub. (2) is not
presented by the elector, if the name appearing on the
document presented does not conform to the name on
the poll list or separate list, or if any photograph
appearing on the document does not reasonably
resemble the elector, the elector shall not be permitted
to vote, except as authorized under sub. (6) or (7), but
if the elector is entitled to cast a provisional ballot
under s. 6.97, the officials shall offer the opportunity
for the elector to vote under s. 6.97.

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SUBCHAPTER IV: VOTING ABSENTEE

6.84 Construction.
(1) LEGISLATIVE POLICY. The legislature finds
that voting is a constitutional right, the vigorous
exercise of which should be strongly encouraged. In
contrast, voting by absentee ballot is a privilege
exercised wholly outside the traditional safeguards of
the polling place. The legislature finds that the
privilege of voting by absentee ballot must be carefully
regulated to prevent the potential for fraud or abuse;
to prevent overzealous solicitation of absent electors
who may prefer not to participate in an election; to
prevent undue influence on an absent elector to vote
for or against a candidate or to cast a particular vote
in a referendum; or other similar abuses.
(2) INTERPRETATION. Notwithstanding s. 5.01
(1), with respect to matters relating to the absentee
ballot process, ss. 6.86, 6.87 (3) to (7) and 9.01 (1) (b) 2.
and 4. shall be construed as mandatory. Ballots cast in
contravention of the procedures specified in those
provisions may not be counted. Ballots counted in
contravention of the procedures specified in those
provisions may not be included in the certified result
of any election

6.855 Alternate absentee ballot site.

(1) The governing body of a municipality may elect
to designate a site other than the office of the
municipal clerk or board of election commissioners as
the location from which electors of the municipality
may request and vote absentee ballots and to which
voted absentee ballots shall be returned by electors for
any election. The designated site shall be located as
near as practicable to the office of the municipal clerk

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or board of election commissioners and no site may be
designated that affords an advantage to any political
party. An election by a governing body to designate an
alternate site under this section shall be made no
fewer than 14 days prior to the time that absentee
ballots are available for the primary under s. 7.15 (1)
(cm), if a primary is scheduled to be held, or at least 14
days prior to the time that absentee ballots are
available for the election under s. 7.15 (1) (cm), if a
primary is not scheduled to be held, and shall remain
in effect until at least the day after the election. If the
governing body of a municipality makes an election
under this section, no function related to voting and
return of absentee ballots that is to be conducted at
the alternate site may be conducted in the office of the
municipal clerk or board of election commissioners.
(2) The municipal clerk or board of election
commissioners shall prominently display a notice of
the designation of the alternate site selected under
sub. (1) in the office of the municipal clerk or board of
election commissioners beginning on the date that the
site is designated under sub. (1) and continuing
through the period that absentee ballots are available
for the election and for any primary under s. 7.15 (1)
(cm). If the municipal clerk or board of election
commissioners maintains a website on the Internet,
the clerk or board of election commissioners shall post
a notice of the designation of the alternate site selected
under sub. (1) on the website during the same period
that notice is displayed in the office of the clerk or
board of election commissioners.
(3) An alternate site under sub. (1) shall be staffed
by the municipal clerk or the executive director of the
board of election commissioners, or employees of the
clerk or the board of election commissioners.

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 (4) An alternate site under sub. (1) shall be
accessible to all individuals with disabilities.
(5) A governing body may designate more than one
alternate site under sub. (1).

6.86 Methods for obtaining an absentee

ballot.
(1) (a) Any elector of a municipality who is
registered to vote whenever required and who qualifies
under ss. 6.20 and 6.85 as an absent elector may make
written application to the municipal clerk of that
municipality for an official ballot by one of the
following methods:
1. By mail.
2. In person at the office of the municipal clerk or
at an alternate site under s. 6.855, if applicable.
3. By signing a statement and filing a request to
receive absentee ballots under sub. (2) or (2m) (a) or s.
6.22 (4), 6.24 (4), or 6.25 (1) (c).
4. By agent as provided in sub. (3).
5. By delivering an application to a special voting
deputy under s. 6.875 (6).
6. By electronic mail or facsimile transmission as
provided in par. (ac).
(ac) Any elector qualifying under par. (a) may
make written application to the municipal clerk for an
official ballot by means of facsimile transmission or
electronic mail. Any application under this paragraph
need not contain a copy of the applicant’s original
signature. An elector requesting a ballot under this
paragraph shall return with the voted ballot a copy of
the request bearing an original signature of the elector
as provided in s. 6.87 (4). Except as authorized in ss.
6.87 (4) (b) 2. to 5. and 6.875 (6), and notwithstanding
s. 343.43 (1) (f), the elector shall transmit a copy of his

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or her proof of identification in the manner provided in
s. 6.87 (1) unless the elector is a military elector or an
overseas elector or the elector has a confidential listing
under s. 6.47 (2).
(ag) An elector who is unable to write his or her
name due to physical disability may authorize an
application to be made by another elector on his or her
behalf. In such case, the application shall state that it
is made on request and by authorization of a named
elector who is unable to sign the application due to
physical disability.
(ar) Except as authorized in s. 6.875 (6), the
municipal clerk shall not issue an absentee ballot
unless the clerk receives a written application therefor
from a qualified elector of the municipality. The clerk
shall retain each absentee ballot application until
destruction is authorized under s. 7.23 (1). Except as
authorized in s. 6.79 (6) and (7), if a qualified elector
applies for an absentee ballot in person at the clerk’s
office, the clerk shall not issue the elector an absentee
ballot unless the elector presents proof of
identification. The clerk shall verify that the name on
the proof of identification presented by the elector
conforms to the name on the elector’s application and
shall verify that any photograph appearing on that
document reasonably resembles the elector. The clerk
shall then enter his or her initials on the certificate
envelope indicating that the absentee elector presented
proof of identification to the clerk.

***

6.87 Absent voting procedure.

(1) Upon proper request made within the period
prescribed in s. 6.86, the municipal clerk or a deputy

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clerk authorized by the municipal clerk shall write on
the official ballot, in the space for official endorsement,
the clerk’s initials and official title. Unless application
is made in person under s. 6.86 (1) (ar), the absent
elector is exempted from providing proof of
identification under sub. (4) (b) 2. or 3., or the
applicant is a military or overseas elector, the absent
elector shall enclose a copy of his or her proof of
identification or any authorized substitute document
with his or her application. The municipal clerk shall
verify that the name on the proof of identification
conforms to the name on the application. The clerk
shall not issue an absentee ballot to an elector who is
required to enclose a copy of proof of identification or
an authorized substitute document with his or her
application unless the copy is enclosed and the proof is
verified by the clerk.
(2) Except as authorized under sub. (3) (d), the
municipal clerk shall place the ballot in an unsealed
envelope furnished by the clerk. The envelope shall
have the name, official title and post-office address of
the clerk upon its face. The other side of the envelope
shall have a printed certificate which shall include a
space for the municipal clerk or deputy clerk to enter
his or her initials indicating that if the absentee
elector voted in person under s. 6.86 (1) (ar), the
elector presented proof of identification to the clerk
and the clerk verified the proof presented. The
certificate shall also include a space for the municipal
clerk or deputy clerk to enter his or her initials
indicating that the elector is exempt from providing
proof of identification because the individual is a
military elector or an overseas elector who does not
qualify as a resident of this state under s. 6.10 or is
exempted from providing proof of identification under

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sub. (4) (b) 2. or 3. The certificate shall be in
substantially the following form:
[STATE OF ....
County of ....]
or
[(name of foreign country and city or other
jurisdictional unit)]
I, ...., certify subject to the penalties of s. 12.60 (1)
(b), Wis. Stats., for false statements, that I am a
resident of the [.... ward of the] (town) (village) of ....,
or of the .... aldermanic district in the city of ....,
residing at ....* in said city, the county of ...., state of
Wisconsin, and am entitled to vote in the (ward)
(election district) at the election to be held on ....; that
I am not voting at any other location in this election;
that I am unable or unwilling to appear at the polling
place in the (ward) (election district) on election day or
have changed my residence within the state from one
ward or election district to another later than 28 days
before the election. I certify that I exhibited the
enclosed ballot unmarked to the witness, that I then in
(his) (her) presence and in the presence of no other
person marked the ballot and enclosed and sealed the
same in this envelope in such a manner that no one
but myself and any person rendering assistance under
s. 6.87 (5), Wis. Stats., if I requested assistance, could
know how I voted.
Signed ....
Identification serial number, if any: ....
The witness shall execute the following:
I, the undersigned witness, subject to the penalties
of s. 12.60 (1) (b), Wis. Stats., for false statements,
certify that I am an adult U.S. citizen** and that the
above statements are true and the voting procedure
was executed as there stated. I am not a candidate for

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any office on the enclosed ballot (except in the case of
an incumbent municipal clerk). I did not solicit or
advise the elector to vote for or against any candidate
or measure.
....(Printed name)
....(Address)***
Signed ....
* — An elector who provides an identification
serial number issued under s. 6.47 (3), Wis. Stats.,
need not provide a street address.
** — An individual who serves as a witness for a
military elector or an overseas elector voting absentee,
regardless of whether the elector qualifies as a
resident of Wisconsin under s. 6.10, Wis. Stats., need
not be a U.S. citizen but must be 18 years of age or
older.
*** — If this form is executed before 2 special
voting deputies under s. 6.875 (6), Wis. Stats., both
deputies shall witness and sign.

***

(4) (a) In this subsection, “military elector” has the

meaning given in s. 6.34 (1).
(b) 1. Except as otherwise provided in s. 6.875, an
elector voting absentee, other than a military elector or
an overseas elector, shall make and subscribe to the
certification before one witness who is an adult U.S.
citizen. A military elector or an overseas elector voting
absentee, regardless of whether the elector qualifies as
a resident of this state under s. 6.10, shall make and
subscribe to the certification before one witness who is
an adult but who need not be a U.S. citizen. The
absent elector, in the presence of the witness, shall
mark the ballot in a manner that will not disclose how

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the elector’s vote is cast. The elector shall then, still in
the presence of the witness, fold the ballots so each is
separate and so that the elector conceals the markings
thereon and deposit them in the proper envelope. If a
consolidated ballot under s. 5.655 is used, the elector
shall fold the ballot so that the elector conceals the
markings thereon and deposit the ballot in the proper
envelope. If proof of residence under s. 6.34 is required
and the document enclosed by the elector under this
subdivision does not constitute proof of residence
under s. 6.34, the elector shall also enclose proof of
residence under s. 6.34 in the envelope. Except as
provided in s. 6.34 (2m), proof of residence is required
if the elector is not a military elector or an overseas
elector and the elector registered by mail or by
electronic application and has not voted in an election
in this state. If the elector requested a ballot by means
of facsimile transmission or electronic mail under s.
6.86 (1) (ac), the elector shall enclose in the envelope a
copy of the request which bears an original signature
of the elector. The elector may receive assistance under
sub. (5). The return envelope shall then be sealed. The
witness may not be a candidate. The envelope shall be
mailed by the elector, or delivered in person, to the
municipal clerk issuing the ballot or ballots. If the
envelope is mailed from a location outside the United
States, the elector shall affix sufficient postage unless
the ballot qualifies for delivery free of postage under
federal law. Failure to return an unused ballot in a
primary does not invalidate the ballot on which the
elector’s votes are cast. Return of more than one
marked ballot in a primary or return of a ballot
prepared under s. 5.655 or a ballot used with an
electronic voting system in a primary which is marked
for candidates of more than one party invalidates all

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votes cast by the elector for candidates in the primary.
2. Unless subd. 3. applies, if the absentee elector
has applied for and qualified to receive absentee
ballots automatically under s. 6.86 (2) (a), the elector
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.
3. If the absentee elector has received an absentee
ballot from the municipal clerk by mail for a previous
election, has provided proof of identification with that
ballot, and has not changed his or her name or address
since providing that proof of identification, the elector
is not required to provide proof of identification.

***

(6) The ballot shall be returned so it is delivered to

the polling place no later than 8 p.m. on election day.
Except in municipalities where absentee ballots are
canvassed under s. 7.52, if the municipal clerk receives
an absentee ballot on election day, the clerk shall
secure the ballot and cause the ballot to be delivered to
the polling place serving the elector’s residence before
8 p.m. Any ballot not mailed or delivered as provided
in this subsection may not be counted.

(6d) If a certificate is missing the address of a

witness, the ballot may not be counted.

***

(9) If a municipal clerk receives an absentee ballot

with an improperly completed certificate or with no

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certificate, the clerk may return the ballot to the
elector, inside the sealed envelope when an envelope is
received, together with a new envelope if necessary,
whenever time permits the elector to correct the defect
and return the ballot within the period authorized
under sub. (6).

***

6.88 Voting and recording the absentee

ballot.
(1) When an absentee ballot arrives at the office of
the municipal clerk, or at an alternate site under s.
6.855, if applicable, the clerk shall enclose it,
unopened, in a carrier envelope which shall be securely
sealed and endorsed with the name and official title of
the clerk, and the words “This envelope contains the
ballot of an absent elector and must be opened in the
same room where votes are being cast at the polls
during polling hours on election day or, in
municipalities where absentee ballots are canvassed
under s. 7.52, stats., at a meeting of the municipal
board of absentee ballot canvassers under s. 7.52,
stats.” If the elector is a military elector, as defined in
s. 6.34 (1), or an overseas elector, regardless of
whether the elector qualifies as a resident of this state
under s. 6.10, and the ballot was received by the
elector by facsimile transmission or electronic mail and
is accompanied by a separate certificate, the clerk
shall enclose the ballot in a certificate envelope and
securely append the completed certificate to the
outside of the envelope before enclosing the ballot in
the carrier envelope. The clerk shall keep the ballot in
the clerk’s office or at the alternate site, if applicable
until delivered, as required in sub. (2).

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CHAPTER 7, WISCONSIN STATUTES:
ELECTION OFFICIALS; BOARDS;
SELECTION AND DUTIES; CANVASSING

SUBCHAPTER I: SELECTION AND DUTIES

7.15 Municipal clerks.

***

(2m) OPERATION OF ALTERNATE ABSENTEE

BALLOT SITE. In a municipality in which the
governing body has elected to establish an alternate
absentee ballot site under s. 6.855, the municipal clerk
shall operate such site as though it were his or her
office for absentee ballot purposes and shall ensure
that such site is adequately staffed.

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CHAPTER 7, WISCONSIN STATUTES:
POST-ELECTION ACTIONS;
DIRECT LEGISLATION

9.01 Recount.
(1) PETITION; FEES; GENERAL PROCEDURES.
(a) 1. Any candidate voted for at any election who
is an aggrieved party, as determined under subd. 5., or
any elector who voted upon any referendum question
at any election may petition for a recount. The
petitioner shall file a verified petition or petitions with
the proper clerk or body under par. (ar) not earlier
than the time of completion of the canvass following
canvassing of any valid provisional ballots under s.
6.97 (4) and, except as provided in this subdivision, not
later than 5 p.m. on the 3rd business day following the
last meeting day of the municipal or county board of
canvassers determining the election for that office or
on that referendum question following canvassing of
all valid provisional ballots or, if more than one board
of canvassers makes the determination,not later than
5 p.m. on the 3rd business day following the last
meeting day of the last board of canvassers which
makes a determination following canvassing of all
valid provisional ballots. If the commission
chairperson or chairperson’s designee makes the
determination for the office or the referendum
question, the petitioner shall file the petition not
earlier than the last meeting day of the last county
board of canvassers to make a statement in the
election or referendum following canvassing of all valid
provisional ballots and not later than 5 p.m. on the 3rd
business day following the day on which the
commission receives the last statement from a county
board of canvassers for the election or referendum

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following canvassing of all valid provisional ballots.
With regard to an election for president, the petitioner
shall file the petition not later than 5 p.m. on the first
business day following the day on which the
commission receives the last statement from a county
board of canvassers for the election following
canvassing of all valid provisional ballots.

***

5. In this paragraph, “aggrieved party” means any

of the following:
a. For an election at which 4,000 or fewer votes are
cast for the office that the candidate seeks, a candidate
who trails the leading candidate, as defined under par.
(ag) 5., by no more than 40 votes, as determined under
par. (ag) 5.
b. For an election at which more than 4,000 votes
are cast for the office that the candidate seeks, a
candidate who trails the leading candidate, as defined
under par. (ag) 5., by no more than 1 percent of the
total votes cast for that office, as determined under
par. (ag) 5.

***

(5) OATHS; MINUTES; WITNESS FEES;

TABULATORS; TIMING; PUBLICATION.
(a) The board of canvassers or the commission
chairperson or the chairperson’s designee shall keep
complete minutes of all proceedings before the board of
canvassers or the chairperson or designee. The
minutes shall include a record of objections and offers
of evidence. If the board of canvassers or the
commission chairperson or the chairperson’s designee

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receives exhibits from any party, the board of
canvassers or the chairperson or designee shall
number and preserve the exhibits. The board of
canvassers or the chairperson or chairperson’s
designee shall make specific findings of fact with
respect to any irregularity raised in the petition or
discovered during the recount. Any member of the
board of canvassers or the chairperson or chairperson’s
designee may administer oaths, certify official acts,
and issue subpoenas for purposes of this section.
Witness fees shall be paid by the county. In the case of
proceedings before the commission chairperson or
chairperson’s designee, witness fees shall be paid by
the commission.

***

(6) APPEAL TO CIRCUIT COURT.

(a) Within 5 business days after completion of the
recount determination by the board of canvassers in all
counties concerned, or within 5 business days after
completion of the recount determination by the
commission chairperson or the chairperson’s designee
whenever a determination is made by the chairperson
or designee, any candidate, or any elector when for a
referendum, aggrieved by the recount may appeal to
circuit court. The appeal shall commence by serving a
written notice of appeal on the other candidates and
persons who filed a written notice of appearance before
each board of canvassers whose decision is appealed,
or in the case of a statewide recount,before the
commission chairperson or the chairperson’s designee.
The appellant shall also serve notice on the
commission if the commission chairperson or the
chairperson’s designee is responsible for determining

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the election. The appellant shall serve the notice by
certified mail or in person. The appellant shall file the
notice with the clerk of circuit court together with an
undertaking and surety in the amount approved by the
court, conditioned upon the payment of all costs taxed
against the appellant.
(b) If an appeal is filed from a recount
determination in an election which is held in more
than one judicial circuit, the chief judge of the judicial
administrative district in which the election is held
shall consolidate all appeals relating to that election
and appoint a circuit judge, who shall be a reserve
judge if available, to hear the appeal. If the election is
held in more than one judicial administrative district,
the chief justice of the supreme court shall make the
appointment.
(7) COURT PROCEDURES.
(a) The court with whom an appeal is filed shall
forthwith issue an order directing each affected
county, municipal clerk, or board, and the commission,
to transmit immediately all ballots, papers and records
affecting the appeal to the clerk of court or to impound
and secure such ballots, papers and records, or both.
The order shall be served upon each affected county,
municipal clerk, or board, the commission, and all
other candidates and persons who filed a written
notice of appearance before any board of canvassers
involved in the recount.
(b) The appeal shall be heard by a judge without a
jury. Promptly following the filing of an appeal, the
court shall hold a scheduling conference for the
purpose of adopting procedures that will permit the
court to determine the matter as expeditiously as
possible. Within the time ordered by the court, the
appellant shall file a complaint enumerating with

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specificity every alleged irregularity, defect, mistake or
fraud committed during the recount. The appellant
shall file a copy of the complaint with each person who
is entitled to receive a copy of the order under par. (a).
Within the time ordered by the court, the other parties
to the appeal shall file an answer. Within the time
ordered by the court, the parties to the appeal shall
provide the court with any other information ordered
by the court. At the time and place ordered by the
court, the matter shall be summarily heard and
determined and costs shall be taxed as in other civil
actions. Those provisions of chs. 801 to 806 which are
inconsistent with a prompt and expeditious hearing do
not apply to appeals under this section.
(8) SCOPE OF REVIEW. (a) Unless the court finds
a ground for setting aside or modifying the
determination of the board of canvassers or the
commission chairperson or chairperson’s designee,it
shall affirm the determination.
(b) The court shall separately treat disputed issues
of procedure, interpretations of law, and findings of
fact.
(c) The court may not receive evidence not offered
to the board of canvassers or the commission
chairperson or the chairperson’s designee except for
evidence that was unavailable to a party exercising
due diligence at the time of the recount or newly
discovered evidence that could not with due diligence
have been obtained during the recount, and except
that the court may receive evidence not offered at an
earlier time because a party was not represented by
counsel in all or part of a recount proceeding. A party
who fails to object or fails to offer evidence of a defect
or irregularity during the recount waives the right to
object or offer evidence before the court except in the

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case of evidence that was unavailable to a party
exercising due diligence at the time of the recount or
newly discovered evidence that could not with due
diligence have been obtained during the recount or
evidence received by the court due to unavailability of
counsel during the recount.
(d) The court shall set aside or modify the
determination of the board of canvassers or the
commission chairperson or the chairperson’s designee
if it finds that the board of canvassers or the
chairperson or chairperson’s designee has erroneously
interpreted a provision of law and a correct
interpretation compels a particular action. If the
determination depends on any fact found by the board
of canvassers or the commission chairperson or the
chairperson’s designee, the court may not substitute
its judgment for that of the board of canvassers or the
chairperson or designee as to the weight of the
evidence on any disputed finding of fact. The court
shall set aside the determination if it finds that the
determination depends on any finding of fact that is
not supported by substantial evidence.
(9) APPEAL TO COURT OF APPEALS.
(a) Within 30 days after entry of the order of the
circuit court, a party aggrieved by the order may
appeal to the court of appeals.
(b) If an appeal is filed in respect to an election
which is held in more than one court of appeals
district, the chief justice of the supreme court shall
consolidate all appeals relating to that election and
designate one district to hear the appeal, except that
if an appeal is filed in respect to an election for
statewide office or a statewide referendum, the appeal
shall be heard by the 4th district court of appeals.
(c) The court of appeals shall give precedence to

172a
the appeal over other matters not accorded similar
precedence by law.
(10) STANDARD FORMS AND METHODS. The
commission shall prescribe standard forms and
procedures for the making of recounts under this
section. The procedures prescribed by the commission
shall require the boards of canvassers in recounts
involving more than one board of canvassers to consult
with the commission staff prior to beginning any
recount in order to ensure that uniform procedures are
used, to the extent practicable, in such recounts.
(11) EXCLUSIVE REMEDY. This section
constitutes the exclusive judicial remedy for testing
the right to hold an elective office as the result of an
alleged irregularity, defect or mistake committed
during the voting or canvassing process.

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