Green Party under Siege:  Wisconsin edition

Ballot access for an independent presidential candidate requires at least 2,000 valid signatures.  On August 4, 2020, Green Party presidential candidate Howie Hawkins and vice presidential candidate Angela Walker filed 3,996 signatuires.   Those signatures were accepted by the State of Wisconsin.  Three days later, a complaint was filed on the grounds that Walker had changed her address during the petition period.  Although each group of petitions had listed the correct address at the time of their gathering (the only requirement) and the state had been notified of the change, the bogus challenge was accepted.  On a 6–0 vote, the Wisconsin Election Commission subsequently removed Hawkins and Walker from the Wisconsin ballot.

The Green Party filed suit on September 3, 2020.  The case (Howie Hawkins and Angela Walker, Petitioners, v. Wisconsin Elections Commission, et al.) went to the Wisconsin Supreme Court, which on September 14 ruled 4–3 to keep Hawkins and Walker off the ballot.  They were never given a chance to present the merits of their case.  In what can be considered nothing less than an act of “legal” piracy, the Supreme Court stated:

“Even if we would ultimately determine that the petitioners’ claims are meritorious, given their delay in asserting their rights, we would be unable to provide meaningful relief without completely upsetting the election.”

In plain English, the highest court in the stated ruled that the issue could not be considered on its merits because doing so would have been inconvenient.  Thus, 3,996 Wisconsin voters were effectively disenfranchised.

Three justices dissented from this hideous miscarriage of justice:  Chief Justice Patience Drake Roggensack, Annette Kingsland Ziegler and Rebecca Grassl Bradley.  Below is printed in full Judge Roggensack’s dissenting opinion.


Chief Justice Patience Drake Roggensack.

¶14 PATIENCE DRAKE ROGGENSACK, C.J.  (dissenting).  I write separately because the people of Wisconsin have the right to know the acts of the Commission that took the right of ballot access away from candidates of a small independent party, the Green Party of Wisconsin.  Howie Hawkins and Angela Walker, Green Party candidates for President and Vice President, followed all the requirements of Wisconsin law necessary for ballot access, yet the Commission denied them and the people of Wisconsin the right to have Hawkins’ and Walker’s names on the ballot for the November 3, 2020 general election.

¶15 In so doing, the Commission suppressed the people’s right to choose to vote for Green Party candidates who have maintained positions that are important to them.

¶16 The Order of the court gives some underlying facts, but it omits other undisputed facts that are important for the public to know.  In so doing, the Order fails to disclose unlawful Commission actions to the public, which should be told what actually occurred here.

¶17 In her Declaration of Candidacy, Angela Walker declared that she was a “candidate for the office of Vice President of the United States representing The Green Party of the United States.”1 On August 4, 2020, the Green Party candidates filed nomination papers containing 3,966 signatures with the Commission.  At least 2,000 signatures, but not more than 4,000 signatures must be filed to gain ballot access.  Wis. Stat. §§ 8.20(4) and (8).

¶18 On August 7, 2020, Allen Arntsen filed a document entitled “Verified Complaint” wherein he alleged “upon information and belief,” not upon personal knowledge, that 2,046 of the signatures the Green Party candidates submitted appear on nomination papers that did not contain a correct address for Walker.  The Commission’s attorney, Nathan Judnic, sent an email to the Hawkins-Walker campaign manager, Andrea Mérida, telling her of Arntsen’s challenge.  Judnic told Mérida that she had the options of filing a sworn written response or appearing at the August 20, 2020 Commission meeting to present evidence contesting Arntsen’s challenge or doing both.

¶19 It is important for the public to know that there are election laws that bear on Arntsen’s challenge, which the Commission refused to follow.  First, the Commission was required to presume that the addresses listed on the nomination papers were the correct addresses for the dates listed because Wis. Admin.  Code § EL 2.05(4) requires that “[a]ny information which appears on a nomination paper is entitled to a presumption of validity.” Section EL 2.07(1) confirms that the Commission “shall apply the standards in § EL 2.05 to determine the sufficiency of nomination papers.” Second, § EL 2.07(3)(a) requires that “[t]he burden is on the challenger to establish any insufficiency.”

¶20 Here, Arntsen’s challenge was based on “information and belief.” He had no personal knowledge of where Walker lived on what date; therefore his allegation is insufficient to overturn the presumption that the addresses listed on the nomination papers are correct.  Since Crane v.  Wiley, 14 Wis. 658 (1861), we have held that allegations based upon information and belief in a complaint make a verification insufficient for material facts.  However, the Commission’s votes showed it did not honor the presumption of the nomination papers’ facts as Wis. Admin.  Code § EL 2.05(4) requires; it did not require Arntsen to prove that the addresses on the nomination papers were incorrect as § EL 2.07(3)(a) requires; and it treated Arntsen’s allegations made on information and belief as if they proved that Walker’s address was incorrect on more than 1,800 nomination papers.

¶21 Mérida appeared on behalf of the Green Party candidates at the August 20, 2020 Commission meeting to present evidence about the dates that Walker lived at each address, as legal counsel for the Commission told her she could do.2 However, Ann Jacobs, who served as chair of the Commission, prevented the presentation of evidence about the dates of Walker’s move.  The Commission then voted 6-0 to sustain Arntsen’s challenge to 57 signatures and rejected it for 48 signatures.  The Commission also voted on whether to sustain Arntsen’s challenge to 1,834 signatures on nomination papers that contained Walker’s earlier address.  The Commission deadlocked, with 3 Democratic appointees voting to sustain Arntsen’s challenge and 3 Republican appointees voting to deny it.  Therefore, Arntsen failed to meet his burden to prove any insufficiency of the addresses for Walker listed on the nomination papers.  Wis. Admin.  Code § EL 2.07(3)(a).  At that point, the Green Party candidates had 3,909 presumptively valid signatures pursuant to § EL 2.05(4) (3,966 filed less 57 signatures rejected by the Commission).

¶22 However, notwithstanding the Commission’s vote on August 20, 2020, on August 21, 2020, the Commission Administrator sent Hawkins and Walker a letter stating that since the Commission had certified a total of only 1,789 signatures, less than the 2,000 required for ballot access, Hawkins’ and Walker’s names would not be on the ballot for the November 3, 2020 general election.  There is no explanation in that communication about how the Commission disallowed an additional 2,177 signatures that were presumptively valid after the Commission voted to invalidate only 57 of the 3,966 signatures submitted.  The Commission Administrator must have treated Arntsen’s challenge to 1,834 signatures as having been proved, even though the Commission had voted not to sustain his challenge.

¶23 On August 26, 2020, the Commission certified the independent candidates for President and Vice President.  On September 1, 2020, the Commission certified the party candidates for President and Vice President to the county clerks.  The September 1, 2020 communication notified the county clerks of the legal challenge to ballot access that had been filed by Kanye West and Michelle Tidball and that there were media statements from the Green Party candidates that they intended to file a court action to gain ballot access.  Therefore, at least by September 1, 2020, the county clerks knew that the Commission’s certification may not be the final ballot for the November 3, 2020 general election.

¶24 The Green Party filed suit seeking ballot access on September 3, 2020.  Perhaps, the Green Party could have filed suit on August 26, 2020, when the Commission certified the independent candidates.  However, lawsuits take time to gather relevant documents and affidavits needed to proceed.  In addition, the county clerks were on notice from September 1, 2020, when the Commission certified the final ballot for the November 3, 2020 election, that the Green Party would likely file suit and that Kanye West already had filed suit for ballot access.

¶25 This lawsuit is not about the Green Party sleeping on its rights.  It is about the treatment that independent candidates from a small political party received from the Commission, who repeatedly refused to follow the law relative to nomination papers.

¶26 It has been said that transparency is the best medicine for curbing governmental practices that abuse the rights of those who must interact with government.  The Commission ignored its legal obligations under Wis. Admin.  Code §§ EL 2.05(4) and EL 2.07(3)(a), and in so doing it suppressed the rights of voters to choose Green Party candidates for President and Vice President.  The court’s Order is silent on the Commission’s unlawful conduct and imposes no consequences for what it has done.  The court’s silence not only affirms lawless conduct by the Commission, but also provides no directive for the required treatment of nomination papers in the future.

¶27 Silently affirming lawless conduct that has been brought to the court’s attention is an abdication of the court’s obligation to stand with the law, even when doing so is uncomfortable.  Accordingly, I respectfully dissent from the Order and join the opinion of Justice Annette Kingsland Ziegler that follows.

¶28 I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and REBECCA GRASSL BRADLEY join this dissent.

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