Wisconsin Supreme Court throws out latest election lawsuit because the issues weren't 'cleanly presented'

MADISON - The Wisconsin Supreme Court shot down an election lawsuit Friday, offering the latest in a string of narrowly decided cases that found those bringing lawsuits must carefully follow court procedures.  

As with other recent politically tinged cases, this one was decided 4-3 by the court's liberals and Justice Brian Hagedorn, who was elected in 2019 with the support of Republicans. 

The majority concluded the lawsuit put forward important questions but said it wouldn't take the case because the issues it raised were not "cleanly presented." The legal standards that should guide the justices were not clear, the majority wrote.

"While this court must not shrink back from deciding challenging or politically fraught questions properly before us, neither should we be eager to insert ourselves at the expense of time-tested judicial norms," the majority wrote in its unsigned opinion.

More:The Wisconsin voting system Donald Trump is attacking was built by Republicans

In dissent, Justice Patience Roggensack maintained the majority was avoiding addressing difficult issues.

"Are these (election) procedures lawful or contrary to Wisconsin statutes? The public deserves an answer, and it is the institutional obligation of this court to provide that answer," she wrote. 

Businessman Jeré Fabick in March sued election officials to try to prevent them from using ballot drop boxes and filling in the addresses of witnesses on absentee ballot envelopes if they were missing. He also sought to limit who can return absentee ballots to clerks on behalf of voters.

Fabick wanted the justices to rule before April's election for state schools superintendent. The justices declined to act swiftly, and Hagedorn and the liberal justices signaled after the election that they might not take the case at all.

Fabick brought his lawsuit directly to the state Supreme Court instead of to the state Elections Commission or a circuit court.

Election litigation typically begins before the bipartisan Elections Commission, and the losing side can appeal the commission's decision to court.

The Supreme Court majority expressed concerns Friday that Fabick had come straight to the high court instead of following that procedure, noting that the justices are not "on call to answer questions from citizens, legislators or executive branch officials whenever the answer to a statutory question is unclear."

The majority consisted of Hagedorn and Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. 

Roggensack in her dissent contended the majority was creating reasons not to take the case. She argued it raised urgent matters.

"They are issues that cry for judicial resolution by the Wisconsin Supreme Court before the 2022 elections begin," she wrote. 

Joining Roggensack's dissent were Chief Justice Annette Ziegler and Justice Rebecca Bradley. (The Bradleys are not related.)

The ruling comes as Republicans grouse about the state's election procedures in response to Joe Biden narrowly defeating Donald Trump in Wisconsin in last year's presidential election.

The state Supreme Court and federal judges determined Wisconsin's presidential election was decided properly, but Republicans who control the Legislature are conducting reviews of the state's voting policies. The state Assembly recently hired former law enforcement officers to assist with the effort, raising criticism from Democrats who say they are trying to drum up baseless questions. 

The state Supreme Court declined to address some of the issues raised in the latest lawsuit when Trump and his allies sued over them after the November election. In a series of 4-3 rulings, Hagedorn and the liberals found Trump and the others should have filed their lawsuits before the election.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.