Read the full document for much more on the case.
State Rep. Paul Melotik (R-Grafton) filed dozens of flawed nomination papers in his successful quest for election that should have been rejected by the Wisconsin Elections Commission, according to a brief filed Friday with the state Court of Appeals.
Information required by law was either "obscured" or "cut off," the brief said. Melotik would not have had the required number of valid signatures to be included on the ballot had the Wisconsin Elections Commission discounted the signatures on those pages, the brief said.
Both the commission and the Dane County Circuit Court, however, rejected a challenge to the papers filed by Morgan Hess, executive director of the Assembly Democratic Campaign Committee.
Melotik was elected in a July special election to fill the seat vacated by Dan Knodl after he was elected to the state Senate.
The appeal, which names the Elections Commission and Melotik as defendants, does not ask that Melotik lose his seat. Instead, it asks the Milwaukee-based District 1 Court of Appeals to consider the case because the issues it raises may well come up again.
Melotik filed his papers on May 23 and Hess filed her complaint on May 26.
"Hess challenged two-hundred-eighty-seven (287) of the signatures submitted by Melotik because they appeared on deficient nomination papers; this left only eighty-two (82) signatures appearing on valid nomination papers," the brief said. Melotik, to be included on the ballot, needed 200 valid signatures.
The problems Hess identified fell into three categories: headers; signatory/elector certifications; and circulator certifications.
Election commissioners at a June 1 hearing on Hess' complaint, criticized the nomination papers, according to the brief filed by Jeffrey Mandell, one of the lawyers representing Hess. The others are Douglas Poland and David Hollander, all of the Stafford Rosenbaum law firm.
The brief quoted an unidentified commissioner:
I think this is the first time we’ve seen nominating papers this bad, because they’re terrible. Almost every page has a failure in printing. And my, my gut is that if I, if I were to see papers like this again, now that we’ve had a decision on it and we can (inaudible) the people listening, I don’t think I would be voting in favor of a lot of these pages because it, it’s, this is not rocket science.
In rejecting the complaint, "Neither any Commissioner nor WEC as an agency cited a single case, statute, regulation, or other authority to justify this departure from precedent to change the governing legal standard," the brief said.
When Melotik responded to Hess' complaint, he included correcting affidavits from three circulators -- including Melotik himself -- who previously certified they knew the people who signed the petitions were eligible to do so. The correcting affidavits of each of the three said "I knew (to the best of my knowledge)" that the signers were qualified. (Emphasis in brief)
"Vertification 'to the best of my knowledge' is not sufficient; the statute uses the phrase 'he or she knows' four separate times," the brief said. "By inserting the caveat 'to the best of my knowledge,' each affiant watered down their circulator certifications..."
The commissioners dismissed the complaint with little discussion, the brief said. No commissioner explained the reason for their vote.
"A terse written order — which does not cite to a single precedent — followed the next day," the brief said.
Hess appealed the decision in Dane County Circuit Court on June 8; Circuit Judge Stephen Ehlke, pressed for time because of a looming June 16 deadline for getting ballots to the printer, issued his decision on June 15, the day final briefs were filed.
The appeal argues that the commission erred by accepting a staff memo that the nomination papers were substantially compliant with state law.
The memo "did not cite a single case, statute, regulation, or other legal authority in determining that 'substantial compliance' is the appropriate standard," the lawyers wrote.
"Supreme Court and WEC precedents alike dictate that a strict-compliance standard applies to ballot-access requirements," the brief said. It also rejected Melotik's assertion that the commission was not obligated — but could if it wanted to — disqualify a candidate whose nomination papers did not comply with the law.
"In fact, just one year ago, our Supreme Court held that '[m]andatory election requirements must be strictly adhered to and strictly observed,' " the brief said.
The Dane County court should not have granted deference to the WEC decision, the lawyers said.
"WEC followed its two-page written order with a thirty-page brief in the circuit court," the lawyers wrote. "WEC cannot, through litigation, manufacture new rationales not previously disclosed."
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