State Supreme Court weighs voter eligibility records

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The Wisconsin Supreme Court is considering whether records relating to people found incompetent to vote should be made available to the public.

That question stems from a lawsuit filed by a conservative activist who was involved in reviewing the 2020 presidential election and has contended that ineligible voters cast ballots that cost President Donald Trump the election that year.

Justices on Tuesday heard oral arguments in the case, weighing whether guardianship records provided to the Wisconsin Elections Commission are considered public records, and should therefore be subject to public record disclosure law.

The case emerged from an effort by Ron Heuer and the group he founded, Wisconsin Voter Alliance, to gain access to “Notices of Voting Eligibility.” Those are circuit court-sanctioned determinations that a person is no longer able to cast a ballot, often for reasons of health or disability.

Erick Kaardal, an attorney for Heuer and his group, argued that it’s possible to balance privacy concerns with the public’s right to access government records, by redacting identifying or sensitive information in the competency forms.

“We’ll see that the privacy concerns and the public data — that is, the person who lost their eligibility to vote — can both be handled through these different processes,” Kaardal said. “The whole point is to ensure that the laws are followed, but also to ensure that the privacy of these guardianship records are maintained, while the public record — that is, who has the right to vote — is known.”

Wisconsin state law says that incompetency records are closed court documents, but “subject to access” under certain circumstances, including if a court orders it.

“The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information,” reads state law.

Justice Rebecca Dallet, one of the court’s liberals, asked Kaardal whether the need to redact information in the forms means that they are, by definition, personal documents that aren’t subject to public record laws. Kaardal argued that the Notices of Voting Eligibility are fundamentally communications involving people’s rights.

On the opposing side, attorney Samuel Hall said that, while records custodians cannot consider a person’s intention when evaluating records requests, the activists’ redaction argument didn’t square with their stated goal of cross-checking ineligible voters against voter rolls.

“If what’s being requested is the name and the address of every individual who’s been declared ineligible to vote, what is left to redact? The name and address is what’s protected on those forms,” he said.

“Those things can’t be redacted, or it frustrates the entire purpose,” he added.

And an attorney for Disability Rights Wisconsin argued that people under guardianship maintain many of their civil rights under state law, including the right to privacy, the right to counsel and ability to give or withhold consent.

“There is nothing in the statutes that allow private watchdogs to invade the system designed to protect privacy,” argued Taylor Gilbertson.

Justice Rebecca Bradley, one of the court’s conservatives, asked Gilbertson how to square the public’s right to access “the greatest possible information regarding the affairs of government and the official acts of the officers and employees who represent them” with people’s privacy rights.

“The Legislature here has carved out a specific exception, and under public records law, statutory exceptions are recognized as a limitation to public records disclosures,” Gilbertson responded.

This case, Wisconsin Voter Alliance v. Kristina Secord, has moved through the courts over several years; this is the second time that the Supreme Court has weighed in. The first time, the court did not rule on the merits of the case — primarily this question of open records laws — but instead focused on conflicting rulings out of appeals courts.

And this is not the first time the Wisconsin Voter Alliance has been a named plaintiff in a case before the Wisconsin Supreme Court. In 2020, the group asked the high court to throw out millions of presidential ballots and let the GOP-held Legislature choose its own presidential electors.