Wisconsin Supreme Court scheduled to hear oral arguments in absentee voting case

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On April 29, the Wisconsin Supreme Court announced it will hear oral arguments in only one case in the month of May.

On Monday, May 13, 2024 at 9:45 a.m., the Wisconsin Supreme Court will hear oral arguments in Priorities USA v. Wisconsin Elections Commission.

According to court officials, this case is before the court on petition to bypass the Wisconsin Court of Appeals, District IV (headquartered in Madison), seeking Supreme Court review of an order of the Dane County Circuit Court, Judge Ann M. Peacock, presiding, that granted the Wisconsin Legislature’s motions to dismiss Priorities USA’s constitutional challenges to absentee voting procedures.

According to the court, Priorities USA, the Wisconsin Alliance for Retired Americans, and William Franks, Jr. (collectively “Priorities USA”) filed a lawsuit against the Wisconsin Elections Commission (“WEC”) in Dane County circuit court seeking declaratory relief challenging the constitutionality of several statutory absentee voter provisions: (1) the witness-certification requirement; (2) the prohibition on use of drop boxes as interpreted by Teigen v. Wisconsin Elections Commission; (3) the election day “cure” deadline; and (4) the provisions which state that absentee voting is a “privilege” and that absentee ballots cast in contravention of the statutory procedures for absentee ballots may not be counted.

Court officials noted, the Wisconsin Legislature intervened in the case, and both the Legislature and WEC filed motions to dismiss. The circuit court granted the motions to dismiss, in part, concluding that “[u]nder the controlling legal standard . . . [Priorities USA’s] allegations do not support a facial constitutional claim because [Priorities USA’s] own allegations show that the provisions are not unconstitutional in all circumstances.”

According to the Wisconsin Supreme Court, the circuit court preserved an unpleaded “hybrid” challenge raised in Priorities USA’s briefing with respect to the application of the witness requirement to a subset of absentee voters and part of Priorities USA’s challenge to the directive not to count absentee ballots for voters who do not comply with the witness requirement. Priorities USA then voluntarily dismissed the remaining claims, and the circuit court entered judgment dismissing the case in its entirety.

The court noted that Priorities USA filed an appeal with the court of appeals, and before briefs were filed in that court, Priorities USA filed a petition to bypass the court of appeals. The petition to bypass asked the Wisconsin Supreme Court to take jurisdiction of the case and resolve three issues.

The court granted the petition to bypass with respect to only the third issue set forth in the petition:
Whether to overrule the Court’s holding in Teigen v. Wisconsin Elections Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, that Wis. Stat. § 6.87 precludes the use of secure drop boxes for the return of absentee ballots to municipal clerks.

The court’s order granting bypass held all other issues in the appeal in abeyance pending further order of the court.