State Elections Commission Backs Rhinelander Ballot Decision

Feb 13, 2018

Credit Wikimedia Commons

The upcoming mayoral ballot in Rhinelander will likely have only one candidate on the ballot, after the state Elections Commission backed City Clerk Val Foley's decision to not place two candidates on the ballot.

Mayor Dick Johns has decided to retire. Council member Alex Young is running for the job, and challenged the validity of nomination papers filed by two other candidates, Chris Frederickson and Scott Counter. Counter didn't challenge the ruling, but Frederickson did.

Monday, the Commission backed Foley in saying Frederickson didn't have the required number of proper signatures. Young will be the only candidate listed on the April ballot.

In an 8-page ruling the Commission said Young challenged 56 of Frederickson’s signatures because the signatures on some of the pages submitted were dated after the date contained in the circulator’s certification.

The Commission determined Foley did not abuse her discretion in reaching the decision that Frederickson’s nomination papers were insufficient when filed and were not corrected in a timely manner through an affidavit. Frederickson has a month to appeal the Commission's ruling in circuit court.

Here is the ruling from the Elections Commission:

February 12, 2018 Christopher Scott Frederickson 642 S. Oneida Ave. Rhinelander, WI 54501 Sent via USPS and email to: gusgwen@charter.net Re: In the Matter of: Christopher Scott Frederickson v. Valerie Foley, Clerk, City of Rhinelander Case No. EL 18-05 Dear Mr. Frederickson, This letter is in response to your verified complaint filed with the Wisconsin Elections Commission (“Commission”) on Tuesday, January 16, 2018 in response to the City of Rhinelander Clerk’s decision to sustain challenges to your nomination papers and deny you ballot access for the 2018 Spring Election. The Commission has reviewed your complaint and all supporting documentation provided with your complaint, the Clerk’s verified response to your complaint, and your verified reply and provides the following analysis and decision. Procedural Background Nomination papers for the Office of Mayor for the City of Rhinelander were submitted by Candidate Christopher Frederickson on or about January 2, 2018.

There is no dispute that all other required ballot access documents were timely submitted to the City Clerk by Mr. Frederickson. Mr. Frederickson submitted nomination papers containing 75 signatures. A timely nomination paper challenge complaint was filed with the City Clerk by Mr. Alex Young on January 5, 2018, challenging 56 of the signatures submitted based on date errors contained in the Certification of Circulator. Mr. Frederickson filed a timely response to the nomination paper challenge complaint on January 8, 2018. The City Clerk issued the decision on the nomination paper challenge complaint on January 11, 2018, which sustained all the challenges to Mr. Frederickson’s nomination papers and resulted in Mr. Frederickson having less than the required 50 valid signatures to be placed on the ballot. On January 16, 2018, the Commission received a timely, verified complaint from Mr. Frederickson challenging the City Clerk’s decision. On its face, Mr. Frederickson’s complaint cited an incorrect statutory citation where the form calls for the section of statute the complaint is being filed under. Mr. Frederickson listed Wis. Stat. § 11.0202(1)(a), which is a section of the statutes not under the jurisdiction of the Commission, and is related to the filing of a campaign registration statement for campaign finance purposes. The complaint also listed Alex Young as the individual the complaint Commission Decision Frederickson v. Foley, EL 18-05 Page 2 was being filed against. For context, Mr. Young was the individual that filed the original nomination paper challenge against Mr. Fredrickson. The text of the complaint indicates that he is appealing the decision of the City Clerk to sustain the challenges originally filed by Mr. Young. Mr. Frederickson included with his complaint his response to Mr. Young’s challenge which includes affidavits filed by circulators of his nomination papers which included Mr. Frederickson himself. On January 24, 2018, the City Clerk filed a verified response to Mr. Frederickson’s complaint. The City Clerk’s response raises both “jurisdictional defects” arguments as well as providing a response to the substance of Mr. Frederickson’s complaint. On January 29, 2018, Mr. Frederickson filed a verified reply to the City’s Clerk’s response. Commission Authority and Role in Resolving Complaints Filed Under Wis. Stat. § 5.06 Under Wis. Stat. §§ 5.05(1)(e) and 5.06(6), the Commission is provided with the inherent, general, and specific authority to consider the submissions of the parties to a complaint, and issue findings. In instances where no material facts appear to be in dispute, the Commission may summarily issue a decision and provide that decision to the affected parties. This letter serves as the Commission’s final decision regarding the issues raised your complaint. The Commission’s role in resolving verified complaints filed under Wis. Stat. § 5.06, which challenge the decisions or actions of local election officials, is determining whether a local official acted contrary to applicable election laws or abused their discretion in administering applicable election laws. Commission Findings “Jurisdictional Defects” The City Clerk raises 3 broad “jurisdictional defects” in her response: 1) the complaint lists Alex Young as the complainant and Mr. Frederickson as the Respondent even though Mr. Frederickson signs as the complainant in the notarization section of the complaint form; also contends that Valerie Foley is the proper respondent to the complaint, 2) the complaint incorrectly lists Wis. Stat. § 11.0202(1)(a) as the applicable law related to the complaint; also contends proper statutory citation should be Wis. Stat. § 5.06 for a compliance review or appeal, 3) the City of Rhinelander was not properly served with the complaint by Mr. Frederickson.

The Commission does not believe the “jurisdictional defects” raised by the City Clerk are fatal to Mr. Frederickson’s complaint. Mr. Frederickson is a first-time candidate for public office which presumably makes him a first-time filer of a complaint with the Commission appealing the decision of a local filing officer. The Commission has never required strict compliance with the form of a complaint challenging the actions of a local election official, especially when the subject matter and purpose of the complaint can be ascertained from the context of the form. Despite the anomalies contained on Mr. Frederickson’s complaint form, it was apparent that the complaint was being filed against the City Clerk Valerie Foley appealing the decision related to Mr. Young’s Commission Decision Frederickson v. Foley, EL 18-05 Page 3 original nomination paper challenge. Such appeals are considered under Wis. Stat. § 5.06, not Chapter 11, but the error of listing the incorrect statutory section on the form does not deprive the Commission the jurisdiction or authority to review the substantive actions of the clerk and make a determination under Wis. Stat. § 5.06(6). The purpose of the service requirement is to ensure that the filing officer is aware that a complaint has been filed and that they are entitled to file a response to the complaint. The Commission provided the City Clerk with Mr. Frederickson’s complaint on January 17, 2018 and provided instructions as to how to file a response. The City Clerk filed a response on January 24, 2018. There are no allegations that the City Clerk was unable to respond to Mr. Frederickson’s complaint in a timely manner or that the City Clerk was prejudiced in any way by receiving the complaint through the Commission less than 24 hours after the complaint was filed. Without a showing that the City Clerk was deprived of a reasonable amount of time to file a response to the complaint, the failure of Mr. Frederickson to serve the City Clerk with the complaint does not deprive the Commission of jurisdiction to issue a decision on the substantive matter under Wis. Stat. § 5.06(6). Substantive Issues The fundamental dispositive issue is whether correcting affidavits filed by the candidate and other circulators to correct fatal nomination paper insufficiencies can be accepted by the filing officer after the deadline prescribed in Wis. Admn. Code EL § 2.05(4) as part of a response to a formal challenge. Wis. Admn. Code EL § 2.05(4) states in part that “the correcting affidavit shall be filed with the filing officer not later than three calendar days after the applicable statutory due date for the nomination papers.” The nomination paper deadline for the Spring 2018 elections was January 2, 2018, which placed the deadline for filing affidavits to correct errors made by the circulator or signer on January 5, 2018.

There is no dispute that Mr. Frederickson failed to file correcting affidavits with the City Clerk by the January 5 deadline prescribed by Wis. Admn. Code EL § 2.05(4), but the affidavits were timely filed on January 8, 2018 as part of Mr. Frederickson’s response to the challenge filed by Mr. Young. This issue is not as straight forward as it might initially appear. When the formal challenge was filed, Mr. Frederickson was allowed 3 days after the challenge is filed to prepare and file a response which provides evidence to establish his papers were sufficient and that the challenge should be rejected. Wis. Admn. Code EL § 2.07(2)(b) and (3)(a). The statutes and administrative code do not prescribe the evidence that can or cannot be presented by a candidate to rebut an insufficiency raised in a challenge. Nothing prohibits a challenged candidate from submitting an affidavit or other documents or statements as part of their challenge response. “The filing officer shall examine any evidence offered by the parties when reviewing a complaint challenging the sufficiency of the nomination papers of a candidate for state or local office. The burden of proof applicable to establishing or rebutting a challenge is clear and convincing evidence.” Wis. Admn. Code EL § 2.07(4).

The question then becomes whether the challenge sufficiently established there was an insufficiency and whether the correcting affidavits filed by Mr. Frederickson sufficiently established that his nomination papers were sufficient when filed, resulting in his signatures being counted. And further, given the applicable statutes, administrative code provisions and precedent Commission Decision Frederickson v. Foley, EL 18-05 Page 4 established by the former state elections agencies and the Wisconsin Elections Commission, whether the City Clerk abused her discretion in denying Mr. Frederickson ballot access. Given that Mr. Frederickson’s complaint to the Commission essentially appeals the City Clerk’s original determination in its entirety, the Commission must analyze whether the City Clerk abused her discretion in ruling on the challenge filed against Mr. Frederickson.

A discussion of Mr. Young’s sufficiency challenge, the evidence presented by Mr. Frederickson to rebut allegations of insufficiency and the City Clerk’s decision therefore follows. Challenge Filed by Mr. Young Mr. Young challenged 56 of Mr. Frederickson’s signatures (noting the page number and signature number) because the signatures on some of the pages submitted were dated after the date contained in the circulator’s certification. To establish that certain pages of Mr. Frederickson’s nomination papers were insufficient, Mr. Young cited to two specific administrative code provisions: Wis. Admn. Code EL §§ 2.05(14) and 2.05(15)(b). Wis. Admn. Code EL § 2.05(14) states in relevant part: “No signature on a nomination paper shall be counted unless the elector who circulated the nomination paper completes and signs the certificate of circulator and does after, not before, the paper is circulated.” Wis. Admn. Code EL § 2.05(15)(b) states in relevant part: “An individual signature on a nomination paper may not be counted when any of the following occur: … (b) The signature is dated after the date of the certification contained in the certificate of circulator.” Additionally, Mr. Young cites Wis. Admn. Code EL § 2.05(1) which states: “Each candidate for public office has the responsibility to assure that his or her nomination papers are prepared, circulated, signed, and filed in compliance with statutory and other legal requirements. Finally, Mr. Young states that as a result of the challenge, Mr. Frederickson does not have the minimum number of signatures required to be placed on the ballot. Evidence Presented by Mr. Frederickson to Rebut Mr. Young’s Challenge

In response to Mr. Young’s nomination paper challenge, Mr. Frederickson filed with the City Clerk a cover letter and 4 correcting affidavits. The cover letter: 1. Urged the City Clerk “to allow the submitted signatures of Rhinelander citizens once amended through affidavit.” 2. Stated that Mr. Frederickson had “misinterpreted the signing and dating instructions” and that he “did not properly instruct others who gained signatures” on his behalf. 3. Stated that the error was not an “effort to commit fraud, deceive the electorate, or disrupt any election process.” 4. Stated that according to “the Wisconsin State Ethics Board, the circular (sp.) date can simply be amended per affidavit and have been overcome in the past.” Commission Decision Frederickson v. Foley, EL 18-05 Page 5 5. Stated that “each signature gained is valid and supported his candidacy.” 6. Stated that while he is embarrassed for making the error, “the signatures of the electorate should not be declared invalid.” 7. Stated that the “intent of the signor and the collector cannot be called into question.” 8. Stated that a “mere technicality should not prevent the citizens of Rhinelander from making their choice from a full slate of candidates.” 9. Stated that “the State Ethics Board allows the clerk much discretion in these matters.” 10. Stated that the “right decision is to allow his candidacy to move forward and let the people decide if I should be on the ballot, and that they can do this with their vote in February.” The first correcting affidavit was from Mr. Frederickson, and it stated that he was the circulator of pages 1, 2, 4 and 8 and he incorrectly dated the certification field. He certified that the certification date should have been January 2, 2018. The second correcting affidavit was from Kimberly Frederickson, and she stated that she was the circulator of page 7 and that she incorrectly dated the certification field. She certified that the certification date should have been January 2, 2018. The third correcting affidavit was from James M. Keso, and he stated that he was the circulator of page 3 and he incorrectly dated the certification field. He certified that the certification date should have been January 2, 2018. The fourth correcting affidavit was from Billie Jo Towne, and she stated that she was the circulator of page 5 and she incorrectly dated the certification field. She certified that the certification date should have been January 2, 2018. City Clerk’s Challenge Determination “The filing officer shall examine any evidence offered by the parties when reviewing a complaint challenging the sufficiency of the nomination papers of a candidate for state or local office.

The burden of proof applicable to establishing or rebutting a challenge is clear and convincing evidence.” Wis. Admn. Code EL § 2.07(4). In the review of any complaint filed, the filing officer “shall apply the standards in s. EL 2.05 to determine the sufficiency of nomination papers, including consulting extrinsic sources of evidence under s. EL 2.05(3).” Wis. Admn. Code EL § 2.07(1). In reaching her decision, the City Clerk relied upon and cited various sources of information, including applicable statutes, applicable administrative code provisions, the nomination paper review guidelines published by the Commission, the Common Nomination Paper Challenges manual originally published by the former G.A.B. and re-issued by the Commission and the nomination paper form and instructions for that form. The City Clerk ultimately determined that all of Mr. Young’s challenges had to be sustained for several reasons: 1) the instructions accompanying the nomination paper form clearly state that the circulator must sign and date the certification after obtaining the signatures on the page, 2) Wis. Admn. Code EL § 2.05(14) contains mandatory language which states that “no signatures on a Commission Decision Frederickson v. Foley, EL 18-05 Page 6 nomination paper shall be counted unless the elector who circulated the nomination paper completes and signs the certificate of circulator and does so after, not before, the paper is circulated”, 3) Wis. Admn. Code EL § 2.05(15)(b) indicates that “an individual signature on a nomination paper may not be counted when that signature is dated after the date of certification contained in the certificate of the circulator”, 4) the Commission’s Common Nomination Paper Challenges manual states that the precedent outlined in the manual can be relied upon as precedent by local filing officers and that the issue presented in Mr. Young’s challenge is directly addressed and states that the challenge to this issue should be sustained if no correcting affidavits have been filed by the correction deadline, 5) the Commission’s Common Nomination Paper Challenges manual indicates that “staff has struck…signatures pursuant to the Commission’s administrative rules that provide that a signature may not be counted if it is dated after the date of the certificate of the circulator” when analyzing a challenge on this topic, 6) Wis. Admn. Code EL § 2.05(4) allows errors committed by the signer or circulator to be corrected by affidavit if the affidavit is filed within 3 days of the nomination paper deadline and in this instance the affidavits were filed 3 days late, and 7) in his response to the challenge, Mr. Frederickson admitted to making the date error and admitted to not properly instructing the other circulators on the date requirements for the certificate. Commission Decision

The City Clerk is afforded discretion when determining if a candidate’s name is eligible for placement on the ballot. The City Clerk “may refuse to place the candidate’s name on the ballot” if the candidate’s “nomination papers are not prepared, signed and executed as required” under Ch. 8 of the statutes. Wis. Stat. § 8.30(1)(a). The City Clerk did not abuse her discretion in reaching the decision that Mr. Frederickson’s nomination papers were insufficient when filed and were not corrected in a timely manner through an affidavit. The City Clerk’s challenge decision contained sufficient legal support, and the Commission will not overturn that decision. Had the same scenario presented itself to the Commission staff when processing a challenge to nomination papers for a state candidate, it is likely the reasoning would have been slightly different in reaching the same result. As discussed earlier, the issue here is not really whether the correcting affidavits were filed timely to correct information on Mr. Frederickson’s nomination papers. From the record, it is clear that affidavits to correct information on his nomination papers were not timely filed per Wis. Admn. Code EL § 2.05(4). There is a long line of G.A.B. decisions which state that correcting affidavits must be filed by the deadline to correct insufficiencies on nomination papers. (See GAB Case No. EL 12-25, Toftness v. Prudent, GAB Case No. EL 12-26, Ott v. Young, GAB Case No. EL 14-15, Cochrane v. George, GAB Case No. EL 16-076, Haefele v. Wischmeier1). While Mr. Frederickson could have filed correcting affidavits from the time he filed his nomination papers (January 2, 2018) through January 5, 2018, he failed to do so. The affidavits he did file were part of his challenge response, and therefore the dispositive issue is whether the correcting 1 In her response to the complaint filed with the Commission, the City Clerk cites to GAB Case No. EL 16-03, Speed v. Haefs, an appeal of a local school district clerk’s ballot access decision. It is certainly true that this opinion states that the clerk’s acceptance of untimely affidavits was an abuse of discretion in this case, however the main reason for that finding, was that the correcting affidavits, no matter when they were submitted, could not correct information that was missing from the header portion of the nomination papers. Commission Decision Frederickson v. Foley, EL 18-05 Page 7 affidavits were sufficient to rebut the allegations made in Mr. Young’s challenge – not update information contained on his original nomination papers. This distinction is important and is not a mere technical parsing of the statutes or administrative code. Timely correcting affidavits, filed under Wis. Admn. Code EL § 2.05(4) can rehabilitate insufficiencies on a page, meaning if a date was inadvertently left off a page, or a circulator’s address was missing the municipality, etc., an affidavit from an individual with personal knowledge of the correct information could be considered part of the nomination paper itself and both documents would be considered together when a filing officer makes a sufficiency determination. Whereas affidavits filed as part of a response to a challenge however, do not function as an appended document to the original nomination paper. The purpose of the challenge response affidavit is to prove by clear and convincing evidence that the pages submitted were sufficient and that the challenge should not be accepted because the nomination papers were sufficient when filed. This distinction is important when looking at the errors on Mr. Frederickson’s papers. The affidavits filed in response to a challenge cannot change the fact that the circulator’s certification on several pages is dated before signatures were obtained on those pages. The affidavits state what the date “should have been” but because the function of these affidavits is to offer evidence that the pages were sufficient as filed, they cannot functionally change the dates that existed when the pages were filed. Therefore, the pages remain with an insufficient circulator’s certificate which invalidates the signatures contained on those pages. The Commission finds that the evidence presented by Mr. Frederickson in response to Mr. Young’s challenge cannot rebut the allegation that fatal insufficiencies were present on his nomination papers at the time of filing. The City Clerk’s decision to sustain the challenges to 56 signatures is affirmed which results in 19 valid signatures being submitted by Mr. Frederickson, which is less than the 50 valid signatures needed to appear on the ballot for the 2018 Spring Election. This decision does not mean that an affidavit filed to rebut an alleged insufficiency will never meet the clear and convincing burden of proof. Affidavits as part of a challenge response have been accepted previously at the State level to clarify or explain why information on a page should be deemed sufficient.

Decisions on whether an affidavit meets the burden of proof is left to the discretion of the filing officer and are made on a case by case basis. Wis. Admn. Code EL § 2.07(4). Right to Appeal – Circuit Court This letter constitutes the Commission’s resolution of this complaint. Wis. Stat. § 5.06(2). Pursuant to Wis. Stat. § 5.06(8), any aggrieved party may appeal this decision to circuit court no later than 30 days after the issuance of this decision. If you have additional questions about this letter or the Commission’s decision, please feel free to contact me. Commission Decision Frederickson v. Foley, EL 18-05 Page 8 Sincerely, WISCONSIN ELECTIONS COMMISSION Mark Thomsen Commission Chair cc: Valerie Foley, Clerk, City of Rhinelander (via email) Nathan W. Judnic, Legal Counsel, WEC