Wisconsin Supreme Court returns to hear pair of politically charged cases

With a mostly quiet summer break in the books, the Wisconsin Supreme Court returns Tuesday to hear oral arguments in a pair of cases that once again ask the justices to answer a slate of politically charged questions.

The first case was originally filed by conservative activists seeking to gain access to sensitive health information about people judged mentally incapable of voting. The second involves the use of a mobile voting van by the city of Racine’s clerk during the August 2022 partisan primary.

Here’s why it’s worth paying attention to both cases.

Wisconsin Voter Alliance v. Kristina Secord

The intrigue of this case extends beyond just its practical implications — it also highlights the growing partisanship of Wisconsin’s judiciary after a conservative branch of the Wisconsin Court of Appeals took the unusual step of contradicting a binding ruling issued by another, liberal division of the same court. 

The case before the court on Tuesday stems from a lawsuit filed by Wisconsin Voter Alliance, a conservative group seeking information about Wisconsin residents who have been deemed by a court to be incapable of voting. The group filed lawsuits seeking the information in 13 counties.

A judge in Walworth County dismissed WVA’s request to require county officials to provide the group with certain documents — known as “notice of voting eligibility” forms — related to adjudicated incompetent voters. The group then appealed the case to the 2nd District Court of Appeals, based in conservative Waukesha County.

In a 2-1 decision late last year, the 2nd District reversed the Walworth County ruling, concluding that WVA had a “clear legal right” to the records because “access to public records is a vital and integral factor of Wisconsin’s avowed presumption towards open government.” The majority also found that WVA demonstrated a “need for the information.”

“Here, WVA asserts it has an interest in seeing that the voter rolls in Wisconsin are accurate so that our elections comport with constitutional guarantees (of fair elections),” wrote Judge Maria Lazar in an opinion joined by Judge Shelley Grogan, both of whom are conservative jurists. “If maintaining accurate voter lists — as statutorily required by the Legislature — is not a sufficient need, we are hard-pressed to articulate another.”

That ruling, though, contradicted a decision from the Madison-based 4th District Court of Appeals, which earlier last year upheld a Juneau County judge’s ruling in a nearly identical case filed by the same conservative group. The 4th District concluded that WVA does not have a “clear legal right” to obtain the information because the forms are “pertinent to the finding of incompetency” and, therefore, closed records under state law. That 4th District ruling was published by an obscure judicial committee six weeks after it was issued — and before the judges in District 2 issued their opinion — making it legal precedent in Wisconsin.

Lazar and Grogan, of District 2, insisted in a footnote in their ruling that “at no point is the unified voice of this court fractured by this opinion.” Judge Lisa Neubauer, a liberal, wrote in a dissent that her conservative colleagues disregarded “this court’s obligation to adhere to prior precedent.”

Walworth County officials appealed the District 2 ruling, teeing up the state Supreme Court to settle the matter. In a brief filed with the court, attorneys for Walworth County asked the court to consider two questions: First, whether the judges in District 2 were bound by the precedent established by District 4; second, whether the notices of voting eligibility are subject to public disclosure.

As Wisconsin Watch reported in February, legal experts believe this case highlights the increasing partisanship in the state’s judiciary. We’ll be watching during oral arguments to see if the justices’ questioning falls along partisan lines, or if they can reach some sort of consensus, like they did in a recent case involving the Joint Finance Committee. 

Kenneth Brown v. Wisconsin Elections Commission

The second case focuses on the city of Racine’s use of a mobile voting van during the August 2022 partisan primary.

Kenneth Brown, a registered voter from Racine represented by the conservative Wisconsin Institute for Law & Liberty, filed a complaint with the Wisconsin Elections Commission challenging the city’s use of the van, arguing it violated state law. After WEC dismissed the case, WILL filed a lawsuit challenging the commission’s ruling in Racine County Circuit Court.

The circuit court found that the city’s use of the voting van violated state law because no statute authorized its use. The judge also found that the mobile voting site violated state law because the locations where the van was parked “clearly favored members of the Democratic Party or those with known Democratic Party leanings.” The statute in question declares that early voting sites besides the clerk’s office cannot afford “an advantage to any political party.”

The Racine County ruling was appealed, and the Wisconsin Supreme Court agreed to bypass the Court of Appeals and take the case directly. The high court will hear arguments Tuesday morning about whether the use of a mobile voting van is permitted under state law. The court is also being asked to determine whether or not the Racine County judge’s interpretation of the statute’s “partisan advantage” language was correct.

The justices will also consider whether Brown had standing to bring the lawsuit in the first place — specifically whether he was “aggrieved” under Wisconsin law. If the court rules he did not, that could have major implications for who is allowed to file lawsuits challenging election laws — potentially making it harder for just any concerned voter to bring a legal challenge.

It’s that last point that we’re most interested in, given that judges have become increasingly involved in Wisconsin elections in recent years. Some of the court’s conservative members were part of an opinion when they were in the majority that backed a broad definition of standing. We’re watching to see if this case will be decided along ideological lines.

Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.