Liberal Justice Jill Karofsky questioned the intent of a group seeking records of those who have been judged incompetent, suggesting the Wisconsin Voter Alliance was trying to create fear of “some sort of illegitimacy” with state elections.
Meanwhile, Conservative Justice Brian Hagedorn during Tuesday’s oral arguments said regardless of the motives of any public records request, he questioned if the records being sought were even subject to the open records law.
The Wisconsin Voter Alliance sued Walworth County after local officials denied its request to turn over records that included the names and addresses of everyone placed under a court-ordered guardianship. Courts can rule residents incompetent to vote, and the group wanted to match the records against the state’s voter rolls to see if anyone ineligible to vote was still on the list.
“I’m afraid what it sounds to me like, what you are trying to do is to introduce the fear that there is some sort of illegitimacy going on in the election in the state of Wisconsin, and that concerns me deeply,” Karofsky said.
Under state law, there is a four-part test to determine whether a record should be released. That includes a review of whether there’s an exception to the document sought being subjected to the public records statute. The final step is a balancing test over the public interest in disclosing the record vs. declining to release it.
Hagedorn told Wisconsin Voter Alliance attorney Erick Kaardal some of the information he wanted the court to consider on possible ineligible people on the voter rolls was only relevant to the case if the group had met the initial steps to get to a balancing test. State statutes exempt some court records from public release, and Hagedorn suggested if the records the Wisconsin Voter Alliance seeks don’t meet the first few steps, the court doesn’t need to consider whether to apply the balancing test on whether they should be released.
“They can have wonderful motives. They can have terrible motives. They can have everything in between, but the law doesn’t really care for the most part, what their motives are, and that’s not really an issue,” Hagedorn said.
The justices also questioned whether the conservative 2nd District Court of Appeals broke with precedent when it ruled the group should have access to the records when the liberal 4th District had already ruled in a separate case it didn’t. In its decision, the 2nd District sought to differentiate the case it handled from the one decided by the 4th.
Karfosky noted the court established the appellate system in 1978 and laid out rules that a district must follow the precedent set by a ruling by another court.
“What they may not do is overrule the decision of another district. That is a job for us, the Supreme Court,” Karofsky said.
At one point, Karofsky bristled at the response from Kardaal on why the group believed it should have access to court documents from a competency hearing when one section of state law suggested they are off limits.
Kardaal answered that when a court interprets a law, it also needs to consider “context. It’s not just pure law and pure facts.”
“I’ve done this for a few years,” Karfosky shot back. “I understand that I apply the law to the facts of the case. You don’t need to tell me that. What I need you to tell me is why the language pertinent to incompetence allows you to get that form.”
Justices question complainant’s standing in Racine voting van case
The court’s justices also peppered attorneys with questions over whether a Racine man had standing to challenge the city’s use of a mobile voting site during the August 2022 primary.
The case involves a series of issues, including whether state law permitted the use of the van as opposed to an alternate absentee voting site in a building and if the sites where it stopped provided a partisan advantage to Dems. Still, a significant chunk of Tuesday’s oral arguments revolved around whether Kenneth Brown had suffered an injury that permitted him to bring the suit.
The Wisconsin Elections Commission dismissed the complaint Brown filed, finding there was no probable cause of any wrongdoing. He then went to Racine County Circuit Court, where a judge rejected the commission’s finding and criticized the agency for not giving more weight to a study Brown had introduced that looked at the partisan makeup of the areas where the mobile voting van stopped.
Brown’s suit argued that the only way to comply with state law that bars alternate absentee voting sites from giving partisan advantage to one side was to place them in wards that have similar political composition to the one where the clerk’s office is located.
Conservative Justice Brian Hagedorn questioned what the standard should be, saying he found the Elections Commission’s decision to be “perplexing and punting” and essentially “we don’t know what partisan political advantage means, so hopefully courts will tell us.”
“It didn’t feel like anybody put forward a coherent theory other than, ‘Theirs is wrong,’” Hagedorn said.
Attorney Charles Curtis, representing the Democratic National Committee, told Hagedorn the city chose neutral sites such as outside public libraries and fire stations in an effort to serve as many people as possible, and deference should be shown to local officials.
“A library is not chosen because it’s near Democrats or Republicans. It’s chosen to service the public,” he argued.
Conservative Justice Rebecca Bradley was unpersuaded.
“If the clerk’s decision-making in this case with respect to the mobile voting units or anything didn’t confer a benefit or advantage on the Democratic Party, then why are you here? You represent the Democratic National Committee,” she said.
Bradley noted the DNC moved to intervene because it had a strong interest in the outcome of the case.
Curtis answered Brown’s argument that alternate voting sites can only be in a ward with the same political composition as the one containing the clerk’s office would impact all voters, and the interest should be in making “voting as broad and accessible as possible.”
