State Supreme Court may block election lawsuit
MADISON - The Wisconsin Supreme Court may put up a roadblock to a lawsuit over how the state conducts elections.
In a brief order Friday, Justice Brian Hagedorn sided with the court’s three liberals to require those bringing the lawsuit to explain why they have the authority to bring their case. The order signals a majority of the court is skeptical of letting the lawsuit over ballot drop boxes and other election issues move forward.
It’s the latest instance of Hagedorn, who was elected in 2019 with the help of Republicans, siding with liberals. The court’s conservatives dissented from the order, arguing that the technical issue the majority raised “clouds the issue before us.”
The lawsuit is in an early stage, and Hagedorn could wind up agreeing with the other conservatives on the merits of the case.
Businessman Jeré Fabick last month sued election officials to try to prevent them from using ballot drop boxes and filling in the addresses of witnesses on absentee ballot envelopes if they were missing. He also sought to limit who can return absentee ballots to clerks on behalf of voters.
Fabick wanted the justices to rule before last week’s election for state schools superintendent, but they didn’t. Any ruling they issue could affect future elections.
Fabick brought his lawsuit directly to the state Supreme Court rather than starting with the state Elections Commission or a circuit court.
But filing the case with the justices has raised concerns among Hagedorn and the liberals.
State law allows cases to be filed with the state Supreme Court rather than a lower court. It’s up to the justices to decide whether to take such cases or require those bringing them to re-file them in circuit court.
But another law says any challenge to election matters must start with a complaint before the bipartisan Elections Commission. The losing side can appeal the commission’s decisions to court.
In Friday’s order, the majority told Fabick and election officials to file briefs on whether the justices can consider the case since election challenges are supposed to start with the commission.
Joining Hagedorn in the order were Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
In dissent were Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler. (The Bradleys are not related.)
“Abandoning our neutral role, the majority asks the parties to address an issue that neither the petitioner for an original action nor any of the responses to that petition have mentioned,” the dissenters wrote.
The lawsuit gets at issues that have frustrated Republicans since November, when Joe Biden narrowly defeated President Donald Trump in Wisconsin.
Four years ago, the Elections Commission told clerks they could fill in witness addresses on absentee ballot envelopes to ensure the votes would be counted. Republicans on the commission backed the plan in 2016 but Trump and his supporters called the practice illegal after the 2020 election.
The lawsuit seeks to prevent clerks from filling in witness addresses. It also seeks to limit who can return absentee ballots for others and prevent election clerks from using absentee ballot drop boxes. Many communities started using drop boxes last year when absentee voting soared because of the pandemic.
The state Supreme Court declined to address those issues when Trump and his allies sued over them after the November election. In a series of 4-3 rulings, Hagedorn and the liberals found Trump and the others should have filed their lawsuits before the election.
Fabick is a frequent Republican donor, president of Caterpillar equipment dealer Fabick Cat and a policy adviser at the conservative Heartland Institute.
He has been active in litigation over the last year and won a case two weeks ago that determined Democratic Gov. Tony Evers no longer has the power to issue emergency orders related to the COVID-19 pandemic.
Hagedorn sided with the conservatives in that 4-3 decision and wrote the majority opinion.