MADISON — Wisconsinites who respect the rule of law just got “Hageburned” again.
In joining the Wisconsin Supreme Court’s three liberals once more, “swing vote” Justice Brian Hagedorn agreed that absentee ballot boxes may be used through the Feb. 15 primary elections — even if they are a violation of state election law.
Justice Rebecca G. Bradley, among three consistent conservatives on the court, took the opinion-shifting Hagedorn to task for upholding bad guidance from the Wisconsin Elections Commission in exchange for limiting “voter confusion.”
“Withdrawal of existing guidance while an election is underway is likely to result in voter confusion and uncertainty in the administration of the election,” the majority — Hagedorn and liberal justices Rebecca Dallet, Ann Walsh Bradley, and Jill Karofsky —wrote in the 4-3 decision.
The court weighed in on an emergency request by two Waukesha County voters who argue the drop boxes are illegal because election law clearly states absentee ballots may only be returned by mail or to the polling site. A Waukesha County Circuit Court judge agreed, further ruling that the Wisconsin Elections Commission’s guidance should have been adopted through the legislative rule-making process. The liberal District IV Court of Appeals then stayed the lower court’s ruling, allowing the drop boxes to be used in this month’s elections to avoid voter confusion. Hundreds of the unmanned ballot boxes are in use around the state.
Wisconsin’s high court agreed to take the case, bypassing the appeals court, but sided with the appeals court that the outside ballot boxes have to be allowed for now.
“The voting process is even further along now than it was last week when the circuit court made its decision. As a general rule, this court should not muddy the waters during an ongoing election … Reversing the stay now would do precisely that, ”Hagedorn wrote in concurring with the court’s liberals.
So, halting the breaking of election law is “muddying the waters”?
Justice Rebecca Bradley found Hagedorn’s legal reasoning astonishing.
“Astonishingly, Justice Hagedorn says it doesn’t matter whether the circuit court properly denied a stay of its order or not; apparently, once again, it’s simply too close to the election to undo the court of appeals’ mistake,” she wrote in dissenting opinion, with conservative justices Patience Roggensack, Annette Ziegler joining. “In Wisconsin, there is always an impending election. Under the logic of his concurrence, WEC may declare the rules as it wishes, the court of appeals may disregard the law when it wishes, and the majority will do nothing in response.”
Bradley notes the majority opinion hastily concluded the Waukesha Circuit Court judge erred in his ruling while “turning a blind eye to the court of appeals’ errors.” In so doing, Hagedorn and his liberal colleagues on the court allow another election to go on under the “guidance” of the Wisconsin Elections Commission “rather than ensuring the election proceeds in accordance with the law.” They neglect to consider the “substantial harm to the public” by allowing WEC to continue to break election law.
“Right now Megan Wolfe (WEC administrator) has the power to sit in front of her computer and whatever documents she wants as guidance, that becomes the law,” said state Rep. Janel Brandtjen (R-Menomonee Falls), who has led one of the Assembly investigations into the many troubling questions surrounding the 2020 presidential election. “It’s dangerous, not only for what WEC is doing, but for every agency in the state of Wisconsin.”
The court agreed 7-0 to take the case and weigh whether the circuit court judge was ultimately correct in his ruling. The Supreme Court ruling is expected to come down before November’s critical mid-term election, with the governor, attorney general and a U.S. Senate seat on the ballot.
“While we are disappointed a majority allowed WEC’s illegal memos to remain in place for yet another election, we are pleased the Court has agreed to resolve these important issues,” said Luke Berg, deputy counsel for the Wisconsin Institute for Law & Liberty (WILL), the Milwaukee-based public interest law firm representing the Waukesha County voters. “Importantly, the current stay expires on Feb. 15, so unless WEC obtains a further stay from the Supreme Court, WEC will need to comply with the Circuit Court’s order on Feb. 16.”
But where will Hagedorn stand on this important question of election law, the rule of law in general?
After winning election to the bench as a conservative in 2019, Hagedorn has frequently joined the court’s liberals in defending expanded executive authority — particularly the power of Democrat Gov. Tony Evers. In some cases, he’s flip-flopped. But Hagedorn is not as advertised when grassroots conservatives defended and elected him to his 10-year term. Many have voter’s remorse.
He campaigned as a protecter of the constitution, a “textualist” when it comes to the law.
“When you’re deciding these cases, always needs to be checked by: ‘Are you being faithful to the words that are there; is this a faithful effort to apply the law that’s actually there?’” he once said.
But that’s a hard sell for his critics, like the court’s conservative justices, who have watched Hagedorn protect the executive branch at the peril of civil liberties.
“Hageburned again,” one prominent conservative recently said.