Court records identifying people found illegible to vote due to mental incompetency are public records and should be released to the conservative Wisconsin Voter Alliance, the Court of Appeals said in an opinion released Wednesday.
"WVA has not only demonstrated a need for this information but has demonstrated that it is entitled to the requested Notices (in full or redacted form) pursuant to the Public Records Law," Appellate Judge Maria Lazar wrote. "WVA has, therefore, met all of the prerequisites to support its petition for a writ of mandamus."
The District II appellate court panel reversed Walworth County Circuit Judge David Paulson's ruling that the forms sought by the group were confidential under state law.
Lazar also wrote a concurrence, joined by Appellate Judge Shelley Grogan. Appellate Judge Lisa Neubauer dissented.
"Today the majority upends Wisconsin’s Public Records Law and takes the unprecedented step of compelling the Walworth County Register in Probate to disclose to the public records contained in guardianship case files that this court recently concluded are confidential and exempt from disclosure," she said.
WVA alleged in the state Supreme Court in 2020 the Center for Technology and Civic Life, which is funded by Meta CEO Mark Zuckerberg, "circumvented absentee ballot laws and caused illegal votes to be cast, without which Trump would have won Wisconsin," according to the Healthy Elections Project. The center awarded grants to municipalities to assist with administering elections. WVA wanted the election results to not be certified.
The state Supreme Court did not even get to the legal issues presented. Supreme Court Justice Brian Hagedorn, in a concurrence, said that WVA's petition "falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter," according to Healthy Elections.
In the records case, WVA in July 2022 requested access to certain completed forms covering the time period from 2016 to the present. The forms "indicate that a circuit court has found a person incompetent to exercise the right to vote or restored a person’s right to register or vote," Lazar wrote.
The forms make their way to the Wisconsin Elections Commission and local election officials, "who perform inactivation of voter registrations for such persons" who are ineligible to vote, Lazar wrote. "That inactivation — or lack thereof — is subject to public challenge."
WVA also filed a petition for mandamus in Walworth County Circuit Court asking the court to order Walworth County Clerk of Court Kristrina Secord to release the records. Paulson denied the request.
The appeal required a determination of whether the forms are public record and to balance competing rights while "protecting both an individual citizen’s right to privacy in a matter of utmost importance to the individual’s dignity as well as the right of every Wisconsin citizen to the constitutional guarantee of fair elections," Lazar wrote.
WVA alleged that records showed the number of declared-incompetent people who did not vote was suspiciously low, she said.
"WVA ... alleges that, as of November 2020, WisVote lists only 802 individuals who are incompetent and ineligible to vote in Wisconsin. ... Milwaukee County ... had sixty-four people listed as incompetent/ineligible in 2020, while there was only one person so identified in the entire City of Milwaukee."
In weighing the competing interests, she wrote, the police of protecting the dignity and privacy of individuals who are determined to be incompetent "is expressly outweighed by the legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies through WEC ... and the public in general. No statutory exception is listed under the Public Records Law for these notices."
The forms already are provided to elections officials with no requirement for further confidentiality, she said.
WVA "has met all prerequisites for a petition for writ of mandamus such that the circuit court’s order must be reversed pursuant to a balancing of interests."
Neubauer, dissenting, said, "Chief among the majority opinion’s flaws is its very existence. This court recently addressed the same issues raised in this appeal in Wisconsin Voter Alliance v. Reynolds. (Reynolds was decided in November by a District IV panel that included Appellate Judges Brian Blanchard, JoAnne Kloppenburg, and Jennifer Nashold, who wrote the opinion. - AW) In Reynolds, we concluded that the very same records sought by the Wisconsin Voter Alliance and its president, Ron Heuer, in this appeal ... are categorically exempt from disclosure under" the state's Public Records Law and a law closing records and proceedings in competency hearings.
The majority's actions, she said, amounts to "unchecked judicial activism."
Lazar, in her opinion, said the two cases developed differently.
"No one disputes the important interest in ensuring that only those who are eligible to vote in Wisconsin elections are able to cast a ballot," Neubauer said. "As a state, we are well-served when government and the public work to make sure our elections are run with fairness, integrity, and fidelity to the law. Nor do I disagree with the majority that Wisconsin law embodies a strong commitment to allowing the public access to the workings of government. But the importance of these interests is not a license to trample or disregard other important aspects of Wisconsin law. Today the majority does just that."
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