A courtroom and a judge’s gavel. (Getty Images creative)
The Wisconsin Supreme Court on Friday denied a request for records of voters identified as ineligible due to incompetence, overturning an appeals court opinion that had opened the door to releasing the list.
The lower court ruling, issued in December 2023, contradicted an appeals court opinion from another district holding that the records sought were confidential.
The Supreme Court returned the case to the appeals court on procedural grounds, ordering the judges to follow instructions laid down previously for conflicting appeals court rulings.
The Supreme Court acted in a case brought by the Wisconsin Voter Alliance. WVA’s president, Ron Heuer, has promoted unfounded claims about fraud in the state’s electronic voting system.
WVA had sought records from Walworth County identifying recipients of a Notice of Voting Eligibility from the county. The notice is issued when a court has found a person incompetent to vote or has restored a person’s right to register or vote. The Wisconsin Elections Commission sends the names of disqualified voters to local elections officers.
WVA has aired claims that people found incompetent might remain on voting rolls. It has made the same request for Notice of Voting Eligibility recipients in 13 Wisconsin counties.
In a November 2023 opinion, the 4th District Court of Appeals upheld a lower court ruling that denied WVA’s request to Juneau County. That appeals court upheld a circuit court ruling finding that the records are confidential and not subject to public disclosure.
A request to Walworth County was denied by a Walworth County circuit judge, who ruled that voting eligibility forms were confidential under the state law that declares records relating to incompetency proceedings to be closed. The association lacked a legal right to the information, the judge ruled.
In the 2nd District 2-1 ruling, lead author Judge Maria Lazar, a conservative, wrote that the confidentiality requirement is “expressly outweighed by the Legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies” through the elections commission. She was joined by Judge Shelley Grogan, also a conservative.
In dissent, Judge Lisa Neubauer pointed to the 4th District ruling from seven weeks earlier and wrote that the eligibility forms are exempt from disclosure and not subject to the 2nd District majority’s balancing test.
Friday’s 5-2 Supreme Court opinion was authored by Justice Janet Protasiewicz. Asked to decide whether the 4th District ruling was binding on the 2nd District judges, the majority demurred. Instead, they ruled that the 2nd District judges had failed to follow a procedure that an earlier Supreme Court ruling laid down for appeals courts rulings that contradict previous opinions.
“When the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options,” Protasiewicz wrote. “It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong.”
The 2nd District judges failed to follow that procedure, instead “drawing fine distinctions between arguments and assuming additional or different facts” — an effort “to skirt” the established procedure, Protasiewicz wrote.
Justice Rebecca Bradley and Chief Justice Annette Ziegler dissented, criticizing the majority for taking briefs and holding oral arguments, then issuing a ruling that didn’t address the merits of the appeal. They argued that given the procedural basis for the ruling, it should have been issued summarily.
GET THE MORNING HEADLINES.