50 States of Lawsuits: Wisconsin
After breaking down the many voting rights lawsuits out of Texas last month, we’re headed north to Wisconsin. While the lawsuits in Texas mainly focus on challenges to restrictive voting laws and the state’s new political districts, the lawsuits in Wisconsin largely attack the election system itself. The litigation in the Badger State will impact how Wisconsinites can vote this year — and may even determine which ballots are counted.
Lawsuits against the Wisconsin Elections Commission
A significant number of the voting rights lawsuits we’re tracking in Wisconsin involve the Wisconsin Elections Commission (WEC), the bipartisan commission responsible for overseeing elections in the state. At issue in these lawsuits are the rules and guidance WEC provides to local election officials on how to interpret and apply state election law. Right-wing groups have filed multiple lawsuits challenging WEC’s guidance over the past few years, efforts that have successfully banned drop boxes and prohibited election officials from filling in missing information on absentee ballots. Through lawsuits, these organizations are directly endangering the votes cast by Wisconsinites and laying the groundwork to exclude otherwise eligible ballots from Wisconsin’s vote totals.
Witness certificate incomplete address guidance challenge
To vote via an absentee ballot in Wisconsin, a voter’s ballot must be accompanied by a witness certificate that includes the witness’ address. If the witness’ address is missing, Wisconsin law states that the ballot “may not be counted.” In 2016, WEC issued guidance that allowed elections officials to fill in missing information, such as an incomplete street name, on witness certificates if they could find the information from a reliable source.
Republicans in Wisconsin, however, filed a lawsuit challenging this guidance. On Sept. 7, a state judge concluded this guidance violated Wisconsin law and blocked its use in the upcoming elections. In response, WEC withdrew its guidance — but as a result, there is no guidance for election officials about what counts as a missing address on a witness certificate. Two groups filed lawsuits seeking to clarify the meaning of a missing address under Wisconsin election law.
Date filed: Sept. 27, 2022
Plaintiffs: Rise and a voter
Court: State
Argument: Rise — a student-led nonprofit focused on empowering and mobilizing college students and youth voters — and a Wisconsin voter argue that WEC’s failure to define the components of an address puts voters at risk of having their absentee ballots thrown out in violation of both Wisconsin law and the Civil Rights Act’s Materiality Provision. The plaintiffs ask the court to declare that an address “requires only the information necessary to reasonably discern the location where the witness may be communicated with.”
“The combined result of both the lack of a clear definition for ‘address’ and the invalidation of the WEC’s prior guidance means that lawful Wisconsin voters now face the very real risk of having their ballots thrown out as a result of clerks’ misapplication of the law.”
COMPLAINT
Status: On Oct. 7, the court denied the plaintiffs’ request to order WEC to clarify the meaning of a missing address. However, the judge also ruled that the definition of an address contained in a Sept. 14 memorandum to election clerks — that a complete address consists of a house number, street name and name of municipality — “is the status quo.” As a result, any absentee ballot with a witness certification address containing those three elements should be counted in this year’s elections.
Date filed: Sept. 30, 2022
Plaintiff: League of Women Voters of Wisconsin (LWVWI)
Court: State
Argument: The LWVWI argues that a definition of a “missing” address, particularly whether partial addresses count as missing or not, must be elucidated. If this issue is not resolved, voters will allegedly be at risk of having their absentee ballots rejected for inadvertent errors, like an incomplete zip code or missing state name. This, the plaintiff contends, is a violation of the Materiality Provision of the Civil Rights Act and voters’ rights under the Due Process Clause of the U.S. Constitution. The LWVWI wants the court to declare that an address is only missing if the address field is completely blank and to issue an order stating that absentee ballots with partially completed witness certificate address shouldn’t be rejected.
“Now, with that cure guidance enjoined and withdrawn, Wisconsin law fails to define ‘missing’ such that there is clarity and uniformity in processing absentee ballots statewide, threatening countless voters with disenfranchisement for technical omissions, and fails to mandate notice to all voters whose ballot certificates are ‘missing’ a witness address.”
COMPLAINT
Status: On Oct. 4, the LWVWI filed a motion for emergency relief to ensure absentee ballots aren’t improperly rejected and to require municipal clerks to alert voters when an address is incomplete so that voters can fix it. The court will hold a hearing on this motion on Oct. 14.
Absentee ballot spoiling guidance challenge
On Aug. 1, 2022, WEC published guidance that allows voters to ask election officials to spoil (meaning void) their absentee ballots and request new ones if the voters make a mistake or opt to vote in person instead. A Wisconsin voter filed a lawsuit challenging this guidance with the support of the right-wing group Restoring Integrity and Trust in Elections.
Date filed: Sept. 23, 2022
Plaintiff: A Wisconsin voter
Court: State
Argument: The plaintiff argues that the WEC guidance that allows voters to spoil their absentee ballots violates Wisconsin law. She also contends that the guidance opens the door to chaos, fraud and other illegalities in the election process.
“Plaintiff’s litigation is the latest in a series of relentless attacks in Wisconsin, all undertaken with the aim of making it harder for Wisconsin voters to successfully cast ballots in the state’s elections. Plaintiff seeks—after absentee voting has already begun—to make changes to how absentee voting occurs, particularly as it relates to how voters are able to correct or avoid mistakes in the process. There is no evidence that the practices in question have ever led to voter fraud, miscast votes, or any other improper result. Elimination of this practice would erect new, unjustifiable, and unanticipated last-minute burdens to voting in advance of the critical upcoming November elections.”
BRIEF IN SUPPORT OF MOTION TO INTERVENE
Status: Since the lawsuit was filed, Rise and the Democratic National Committee (DNC) moved to intervene to defend WEC’s guidance. On Oct. 6, the judge ruled in favor of the plaintiff, blocking the guidance that allows voters to spoil their absentee ballots. The DNC and Rise appealed this decision, which is currently paused pending the appellate court’s decision to accept the appeal or not.
Voter registration form challenge
The U.S. Election Assistance Commission publishes the National Mail Voter Registration Form that voters across the country can use to register to vote. Even though Wisconsin isn’t required to accept the form under federal law, WEC has approved its use to register voters. The Wisconsin Institute for Law & Liberty (WILL) — a conservative legal organization — has brought a lawsuit challenging WEC’s use of the form.
Date filed: Sept. 15, 2022
Plaintiff: A Wisconsin voter
Court: State
Argument: The plaintiff alleges that the National Mail Voter Registration Form is missing certain components required by Wisconsin law while also containing other elements that are not allowed under state law. The plaintiff asks the court to declare the form illegal and order WEC to withdraw its approval.
“Plaintiff seeks to prevent Vote.org and others from using the National Form to register voters in Wisconsin, making it more difficult for Vote.org to advance its mission to help register voters among historically underrepresented groups.”
BRIEF IN SUPPORT OF MOTION TO INTERVENE
Status: Since the lawsuit was filed, Vote.org — a national voter registration organization — has filed a motion to intervene to defend WEC’s approval of the federal form.
Online absentee ballot application challenge
WEC’s website includes a portal where voters can register to vote, find out what offices are up for election in their area and request absentee ballots. Honest, Open, Transparent Government (HOT Government) — a right-wing group that spreads false claims of voter fraud — filed a lawsuit against WEC challenging the use of this portal to request absentee ballots.
Date filed: Aug. 31, 2022
Plaintiffs: Wisconsin voters
Court: State
Argument: The plaintiffs allege that the portal violates Wisconsin election law, which, they claim, requires voters to submit their absentee ballot requests directly to their local clerk.
“Given that the legislature approved two centralized WEC websites, the legislature was keenly aware of how it wanted to use the Internet for some aspects of voting and not use the Internet for other aspects of voting. If the Wisconsin legislature wanted WEC to create a centralized Internet location for voters to obtain absentee ballots like it did for voter registration and the tracking of absentee ballots, the legislature would have authorized it in a statute.”
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Status: On Sept. 19, the plaintiffs filed a motion asking the court to block the use of the portal while litigation continues. The court held a hearing on this motion on Oct. 10.
Other voting lawsuits
Beyond the challenges to WEC’s guidance, we’re also keeping an eye on a few other cases in the state. In addition to lawsuits in the court system, we’re also tracking an administrative complaint that was filed with WEC. Wisconsin law allows individuals to file complaints concerning violations of election law directly with WEC, which will consider the complaint and refer it to law enforcement if necessary.
Racine absentee voting van challenge
During Wisconsin’s Aug. 9 primary, the Racine city clerk permitted the use of a van for in-person absentee voting. The van moved around the city to provide an alternative to stationary voting locations. The conservative group WILL filed a complaint with WEC on behalf of a voter challenging the use of the van.
Date filed: Aug. 8, 2022
Plaintiff: A Wisconsin voter
Court: An administrative complaint was filed with WEC
Argument: Brown alleges that Wisconsin law requires a polling place to be a building and not a vehicle. He also argues that a van doesn’t qualify as an alternative voting site under Wisconsin law, as alternative sites are required to be a fixed location.
“Ms. McMenamin authorized both in-person absentee voting at City Hall and authorized in-person absentee voting at an ‘election van’ that would move from place to place throughout the city…Conducting an election in this fashion leads to voter confusion, creates opportunities for partisan advantage and directly contradicts the statutory language of Wis. Stat. § 6.855.”
COMPLAINT
Status: WEC is considering the complaint.
Temporary ID challenge
In response to litigation filed over multiple voting laws, including its strict ID law, Wisconsin created a process for voters who lack the documents necessary to get a photo ID to petition for a temporary ID that they can use to vote. The plaintiffs who originally challenged the voter ID law are currently challenging the adequacy and constitutionality of this petition process.
Date filed: May 29, 2015
Plaintiffs: One Wisconsin Institute, Citizen Action of Wisconsin Education Fund and individual voters
Court: Federal
Argument: The plaintiffs argue that the temporary ID petition process has many problems that continue to burden the right to vote in violation of the U.S. Constitution. They contend the state has failed to adequately address these issues.
“Although this is the first that Plaintiffs’ counsel have heard of these alleged [temporary ID] reforms, this is far from the first time that the State has tried to kick the can down the road—often on the eve of trial or an important appellate argument—by claiming to have just recently implemented new and improved procedures that supposedly fix the…problems.”
JOINT STATUS CONFERENCE REPORT
Status: The case was finally supposed to go to trial in May 2022, but the parties agreed that the issues in the petition process were not ready for a trial. Additionally, the plaintiffs wish to see how the process functions during the 2022 elections.
Post-election litigation
2020 fraudulent electors challenge
Wisconsin was a focal point of former President Donald Trump’s efforts to overturn the results of the 2020 presidential election. As part of that effort, his supporters attempted to submit an alternate slate of fraudulent presidential electors to the U.S. Senate and the archivist of the United States. A group of Wisconsin voters, including two of Wisconsin’s lawful electors, filed a lawsuit challenging the fraudulent electors.
Date filed: May 17, 2022
Plaintiffs: Khary Penebaker, Mary Arnold and Bonnie Joseph
Court: Federal
Argument: The plaintiffs argue that the fraudulent electors in Wisconsin were fundamental to the scheme to overturn the 2020 election and caused permanent and irreparable damage to Wisconsin’s representative government. They allege that the electors violated several Wisconsin statutes and federal laws and ask the court to block the defendants from serving as electors in the future and request monetary damages.
“Like their counterparts in six other swing States, the Wisconsin fraudulent electors…purported to cast their State’s electoral votes for Trump and Pence. They did so even though they knew that Biden and Harris had won the election in Wisconsin; even though those results had been recounted and certified; and even though Trump and Pence had exhausted all available legal mechanisms for challenging the outcome. The Wisconsin fraudulent electors and their counterparts in the other swing States purported to cast electoral votes for Trump and Pence because they hoped to lay the foundation for Pence and Congress to count their ballots on January 6, 2021, and to reject those cast by the real electors who had won the popular vote. The actions of the fraudulent electors were thus a necessary predicate for the subsequent efforts by Trump and his supporters to intervene at the Capitol.”
COMPLAINT
Status: While originally filed in state court, the case was moved to federal court. The court is currently considering a motion from the plaintiffs to remand the case back to state court and motions from the defendants to dismiss the case.
For an in-depth review of legal updates at the end of each month, subscribe to our monthly newsletter, The Brief, and keep an eye out for future pieces in the 50 States of Lawsuits series. As always, you can stay up to date on important cases and court decisions on our Cases and Alerts pages.