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Supreme Court assumes jurisdiction over lawsuit over clerk’s absentee-voter advice

The Wisconsin Supreme Court has assumed jurisdiction over a lawsuit involving a Dane County clerk’s advice to voters to mark themselves as indefinitely confined because of the governor’s stay-at-home order to get around Wisconsin’s photo ID requirement.

Dane County Clerk Scott McDonell and Milwaukee County Clerk George Christenson had been advising absentee ballot applicants who can’t upload photos to mark themselves as indefinitely confined. They argued that Gov. Tony Evers’ stay-at-home order to prevent the spread of the coronavirus means everyone is indefinitely confined.

The Wisconsin Elections Commission declined to investigate the clerks, and the state Republican Party then asked the state Supreme Court to intervene.

The court on Tuesday ordered McDonell to refrain from posting advice inconsistent with the WEC guideline. It then entered an order on Wednesday granting the petition for leave to commence an original action and assumed jurisdiction over the action.

The petitioners’ reply to the respondents’ response is due on Monday and a brief is due by April 21.

Justices Ann Walsh Bradley filed a dissenting opinion, saying Dane County had already answered both questions posed to the court: whether the Dane County clerk has the authority to issue an interpretation of Wisconsin’s election laws allowing all voters in Dane County to request and cast an absentee ballot without providing a photo ID, and whether all Wisconsin voters may forgo the state photo ID requirement because the state emergency order makes them indefinitely confined.

“If the issues are conceded, there is no live case or controversy, and there is no need to further consider the original action petition,” Bradley wrote.

She said the state Supreme Court has historically exercised its original jurisdiction sparingly, and the majority’s order fails to discuss the circumstances under which the court may grant an original action.

“Such a dearth of analysis demonstrates a disregard for the law and a triumph of the exercise of will over legal reasoning,” Bradley wrote.

Justice Rebecca Dallet joined the dissent. Justice Dan Kelly did not participate.


About Michaela Paukner, [email protected]

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at [email protected]

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