Justice Brian Hagedorn, a frequent swing vote on the court, joined the liberal justices in the majority, which determined that state law shows the Legislature intended to keep Notices of Voting Eligibility closed from public access. The notices are documents the courts send to election officials after a judge concludes a person is found mentally incompetent to cast a ballot.
“Our decision today is rooted in the legislature’s choice to protect the privacy of individuals subject to guardianship proceedings,” Justice Janet Protasiewicz wrote for the majority. “The legislature said, with limited exceptions, ‘court records pertinent to the finding of incompetency are closed.’”
In the same opinion, the majority provided specifics on what the court should consider when someone seeks to compel a public official to release public records, which is known as a “writ of mandamus.” The majority determined that the court “should consider only whether the requester has a right to the records,” which can be done through analyzing whether records exist, if there are statutory exceptions and if “the public policy balancing test weighs toward disclosure.”
Bill Lueders, the president of the Wisconsin Freedom of Information Council, said the court’s decision on mandamus actions “discarded an outdated standard for public records cases and reduced barriers to winning these cases in the future.”
Conservative justices Annette Ziegler and Rebecca Bradley dissented. In her dissent, Ziegler argued that the Notice of Voting Eligibility forms should be released because they are not relevant to incompetency proceedings and are created as “a communication of a finding” after that decision is made.
“The majority’s conclusion fails to recognize this important distinction: A finding of incompetency is distinct from a finding that one has lost the right to vote,” Ziegler wrote. “Instead, it adopts an overbroad and unworkable definition of what records pertain to a finding of incompetency to include NVEs. Holding that NVEs are shielded from the public records law runs counter to the statute’s language, scheme and the presumption of open government.”
The case was originally brought in 2022 by the conservative Wisconsin Voter Alliance. The group filed lawsuits in 13 counties, arguing that having access to information about individuals who have been judged incompetent to vote would show inconsistencies in the state’s voter rolls. The alliance is led by Ron Heuer, who worked on the state’s partisan review of the 2020 presidential election results conducted by former state Supreme Court Justice Michael Gableman. Heuer did not return phone calls or emails from Wisconsin Watch on Tuesday.
At the request of Wisconsin Watch, the Dane County clerk in 2023 conducted a review that found 95 individuals who previously cast ballots despite a court finding them unable to do so. Election officials and state lawmakers have previously called for a legally binding process to track adjudicated incompetent voters, but no bill in recent years has made it through the legislative process.
Disability advocates previously advocated for the information in Notice of Voting Eligibility forms to be kept private over concerns it could make vulnerable individuals more at risk of being scammed or exploited.
Tuesday’s ruling is part of a complicated legal saga stemming from cases from Wisconsin Voter Alliance cases that have made their way through the state’s court system in recent years.
In 2024, the Madison-based 4th District Court of Appeals and the Waukesha-based 2nd District Court of Appeals issued conflicting opinions on separate but similar cases brought by the alliance.
Appeals Court Judge Maria Lazar, who ran for the Wisconsin Supreme Court earlier this year, wrote the 2nd District opinion that supported the Wisconsin Voter Alliance’s position on access to the records. That opinion was released after the 4th District decision was published as precedent, but was revised after the Wisconsin Supreme Court issued a ruling in January 2025.
The high court in that 2025 decision only ruled on the differing Appeals Court opinions but did not reach a decision on whether Notices of Voting Eligibility are public records until Tuesday.
The case also became an attack point in this year’s Wisconsin Supreme Court race. Justice-elect Chris Taylor in a debate before the April election pointed to Lazar’s Appeals Court opinion on access to sensitive records as evidence to claim that Lazar “brought an extreme right-wing political agenda to the bench.”
This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
