Former Justice Dan Kelly: Supreme Court looking for ‘escape hatch’ in ballot case

(The Center Square) – A former Wisconsin Supreme Court justice says the court’s three liberal members and the new swing-vote member are looking for an easy way out of deciding about ballot drop boxes and the “curing” of ballots.

Current Justice Brian Hagedorn sided with the court’s liberal members last week and ordered Wisconsin businessman Jeré Fabick, who is suing over dropboxes and ballot curing – a process that allows voters to correct errors on their absentee ballots – to show why the Supreme Court should accept his case. Hagedorn wrote that election cases typically begin at the Wisconsin Election Commission.

Former Wisconsin Supreme Court Justice Dan Kelly said Hagedorn is wrong, adding Hagedorn and the court’s liberal justices are looking for a way to side-step what would be a very contentious ruling on an important election question.

“The Supreme Court’s order suggests it is looking for an escape hatch,” Kelly told The Center Square. “The statute to which the order refers [Wis. Stat. sec. 5.06] does not apply to this case because Mr. Fabick is not challenging the decision of an election official in the conduct or administration of a current election. Instead, his lawsuit challenges the validity of certain guidance the WEC has provided, and the statute governing such challenges [Wis. Stat. sec. 227.40] requires [Fabick] to address his concerns to the court, not the WEC.”

Kelly says state law spells out that the Supreme Court is the “exclusive” means to settle this kind of case.

“Our Supreme Court has an institutional responsibility to address questions that affect the accuracy and legitimacy of our elections. Our confidence in the court’s neutrality requires that the decision on whether to accept such cases is informed by the significance of the questions presented, without regard to any potential political implications,” Kelly added. “The court’s order leaves the impression that the majority is once again looking for a way to avoid an important issue of statewide concern.”

Fabick wanted the Supreme Court to rule before last week’s election, but the court did not. Fabick is challenging the legality of ballot dropboxes, and wants to clarify just how much information election officials can add to an incomplete ballot during the curing process.

Republicans in Wisconsin took issue with both drop boxes and ballot curing in the days after the November 2020 election. They raised questions about the small number of ballots that were rejected, and just how many absentee ballots were dropped off on Election Day.

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