MADISON, Wis. (Legal Newsline) - It's another 4-3 vote on the Wisconsin Supreme Court that has angered the conservative minority, as one justice says the denial of a voter's power to question how 2022 voting was held "guts" the people's access to courts in election law.
Six weeks ahead of an election that could produce a conservative majority (judges in Wisconsin do not have political-party designations), liberals on the court Feb. 19 found Kenneth Brown did not have standing to challenge the rejection of his complaint.
He wasn't "aggrieved" by where the Racine City Clerk placed mobile voting booths in for absentee voting in an August 2022 primary election, the majority said. Justice Rebecca Grassl Bradley filed the latest in her growing line of sharp dissenting opinions accusing the liberals of exceeding their power.
"The majority... neglects to decide whether the Racine City Clerk designated and operated absentee voting sites in violation of Wisconsin law," Grassl Bradley wrote.
"In committing this error, the majority grafts provisions from a different chapter of the Wisconsin Statutes onto (voter law), overrides the legislative determination that any voter has standing to challenge an election official's action or inaction in the voter's jurisdiction, and guts the People's right of access to the courts in election law matters, elevating (the Wisconsin Elections Commission) to a status unrecognizable under the Wisconsin Constitution: An unreviewable Supreme Court of Election Law."
Mobile voting units were scheduled at 21 sites at various dates and times around Racine for the 2022 primary, plus City Hall. Brown filed a complaint with the WEC that said they were not "as near as practicable" to the clerk's office, gave one party an advantage and were not designated for the appropriate time period, among other gripes.
The WEC disagreed, so Brown appealed to a circuit court. The judge there found Brown had standing to appeal because procedures impacted his right to vote and that one party was given an advantage, based on the locations of the mobile voting booths.
The WEC skipped the state Court of Appeals and asked the Supreme Court directly to find Brown had no right to bring the issue to the circuit court. Justices Jill Karofsky, Ann Walsh Bradley, Rebecca Dallet and Janet Protasiewicz sided with the WEC
A complainant aggrieved by an order can appeal, state law says. But Brown wasn't "aggrieved," the liberals said, by the WEC order rejecting his claims.
"For instance, he does not allege that the challenged election activity (and, consequently, WEC's decision declining to take action or stop the activity) made it more difficult for him to vote or affected him personally in any manner," Karofsky wrote.
"As a result, Brown fails at the first step of the standing inquiry - he does not show that he has personally suffered (or will suffer) an injury as a result of WEC's decision."
Brown failed to allege a "vote dilution theory" - that his vote will be made less impactful thanks to unlawful voting, Karofsky wrote.
The court has a long history of bad blood that includes a choking incident more than 10 years ago. Since Protasiewicz was elected in 2023 to give liberals a majority, the important questions the court has been asked to decide often produce attacks from the conservatives in their dissents.
In July, Grassl Bradley accused liberals of forcing their political agenda and ignoring the rule of law in a case over election drop boxes. In 2023, she called the result of a case over fees for electronic medical records "tyranny."
Also that year, conservative Chief Justice Annette Ziegler accused liberals of a power grab, calling them "rogue justices."
Grassl Bradley's dissent in Brown's case echoes that sentiment, arguing the ruling ignores legislation allowing voters their day in court to question election activities.
"While the members of the majority apparently prefer this scheme, it is not their prerogative to impose it," she wrote.
"If a local election official fails to follow the law, the legislature authorizes citizens to complain - first to the WEC, and then to courts if WEC disagrees or fails to act altogether. The majority adds hurdles the legislature imposed in other laws but not in this one.
"As a result, Brown's complaint dies with WEC, unreviewed by the judiciary, and the People are left, once again, without a decision on fundamental issues of election law enacted to protect their sacred right to vote."