A courtroom and a judge's gavel. (Getty Images creative)

The Wisconsin Supreme Court on Friday denied a request for records of voters identified as ineligible due to incompetence, overturning an appeals court opinion that had opened the door to releasing the list.

The lower court ruling, issued in December 2023, contradicted an appeals court opinion from another district holding that the records sought were confidential.

The Supreme Court returned the case to the appeals court on procedural grounds, ordering the judges to follow instructions laid down previously for conflicting appeals court rulings.

The Supreme Court acted in a case brought by the Wisconsin Voter Alliance. WVA’s president, Ron Heuer, has promoted unfounded claims about fraud in the state’s electronic voting system.

WVA had sought records from Walworth County identifying recipients of a Notice of Voting Eligibility from the county. The notice is issued when a court has found a person incompetent to vote or has restored a person’s right to register or vote. The Wisconsin Elections Commission sends the names of disqualified voters to local elections officers.

WVA has aired claims that people found incompetent might remain on voting  rolls. It has made the same request for Notice of Voting Eligibility recipients in 13 Wisconsin counties.

In a November 2023 opinion, the 4th District Court of Appeals upheld a lower court ruling that denied WVA’s request to Juneau County. That appeals court upheld a circuit court ruling finding that the records are confidential and not subject to public disclosure.

A request to Walworth County was denied by a Walworth County circuit judge, who ruled that voting eligibility forms were confidential under the state law that declares records relating to incompetency proceedings to be closed. The association lacked a legal right to the information, the judge ruled.

In the 2nd District 2-1 ruling, lead author Judge Maria Lazar, a conservative, wrote that the confidentiality requirement is “expressly outweighed by the Legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies” through the elections commission. She was joined by Judge Shelley Grogan, also a conservative. 

In dissent, Judge Lisa Neubauer pointed to the 4th District ruling from seven weeks earlier and wrote that the eligibility forms are exempt from disclosure and not subject to the 2nd District majority’s balancing test.  

Friday’s 5-2 Supreme Court opinion was authored by Justice Janet Protasiewicz. Asked to decide whether the 4th District ruling was binding on the 2nd District judges, the majority demurred. Instead, they ruled that the 2nd District judges had failed to follow a procedure that an earlier Supreme Court ruling laid down for appeals courts rulings that contradict previous opinions.

“When the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options,” Protasiewicz wrote. “It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong.”

The 2nd District judges failed to follow that procedure, instead “drawing fine distinctions between arguments and assuming additional or different facts” — an effort “to skirt” the established procedure, Protasiewicz wrote.

Justice Rebecca Bradley and Chief Justice Annette Ziegler dissented, criticizing the majority for taking briefs and holding oral arguments, then issuing a ruling that didn’t address the merits of the appeal. They argued that given the procedural basis for the ruling, it should have been issued summarily.

The Wisconsin Supreme Court on Friday rejected an attempt by a conservative activist to obtain guardianship records in an effort to find ineligible voters, but the case could return.

The court did not rule on the merits of the case, instead saying in its 5-2 decision that a lower appeals court did not follow proper procedure when it issued a ruling saying the records should be released.

Here’s what to know:

Conservative activist brought the case

The case tested the line between protecting personal privacy rights and ensuring that ineligible people can’t vote.

Former travel agent Ron Heuer and a group he leads, the Wisconsin Voter Alliance, allege that the number of ineligible voters doesn’t match the count on Wisconsin’s voter registration list. Heuer asked the state Supreme Court to rule that counties must release records filed when a judge determines that someone isn’t competent to vote so that those names can be compared to the voter registration list.

Justices lean on technicality to reject the case

The justices said the District II appeals court, based in Waukesha, was wrong to overturn a Walworth County Circuit Court ruling denying access to the records. In a nearly identical lawsuit, the District IV appeals court, based in Madison, had denied access to the records saying they were not subject to disclosure under the state public records law.

Justice Janet Protasiewicz, writing for the majority, said that the District II appeals court could have sent the case to the Supreme Court, explaining why the other appeals court ruling was incorrect.

If it follows the proper procedure for doing that, the case could end up right back before the Supreme Court again. In the meantime, the Supreme Court sent the case back to the appeals court for further action.

All four liberal justices were joined by conservative Justice Brian Hagedorn in the majority. He said the different branches of the appeals court must be unified in their actions.

Chief Justice Annette Ziegler and Justice Rebecca Bradley, both conservatives, dissented, saying the court “leaves unresolved issues of great importance to voters, election officials, and people from whom courts have removed the right to vote due to incompetency.”

Sam Hall, the attorney for Walworth County, praised the ruling.

“We all agree that election integrity is fundamental and our citizens must have confidence in our elective process, while also respecting the dignity of those individuals subject to guardianship orders,” he said.

A court has the power to remove the right to vote from a person under a guardianship order if the person is determined to be unable to understand “the objective of the election process.”

The attorney for Heuer did not immediately return an email seeking comment.

Case was one of several targeting 2020 election

The case was an attempt by those who questioned the outcome of the 2020 presidential race to cast doubt on the integrity of elections in the presidential swing state. Heuer and the WVA filed lawsuits in 13 Wisconsin counties in 2022 seeking guardianship records.

The District II appeals court in 2023 overturned a circuit court ruling dismissing the case and found that the records are public. It ordered Walworth County to release them with birthdates and case numbers redacted.

Heuer and the WVA have pushed conspiracy theories about the 2020 election in a failed attempt to overturn President Joe Biden’s win in Wisconsin. Heuer was hired as an investigator in the discredited 2020 election probe led by former Wisconsin Supreme Court Justice Michael Gableman that found no evidence of fraud or abuse that would have changed the election results.

The WVA also filed two unsuccessful lawsuits that sought to overturn Biden’s win in Wisconsin.

Trump won Wisconsin in 2024 after losing in 2020

Biden defeated Donald Trump by nearly 21,000 votes in Wisconsin in 2020, a result that has withstood independent and partisan audits and reviews, as well as lawsuits and the recounts Trump requested. Trump won Wisconsin in 2024 by about 29,000 votes.

There are no pending lawsuits challenging the results of the 2024 election or calls to investigate the outcome.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.

Wisconsin Supreme Court refuses to release voter records sought by conservative activist is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.