Wisconsin Absentee Ballot Spoiling Guidance Challenge

Lawsuit filed by a conservative organization, Restoring Integrity and Trust in Elections, on behalf of a voter against the Wisconsin Elections Commission (WEC) challenging its absentee ballot spoiling guidance (spoiling is the process by which a ballot that has been marked incorrectly is destroyed and disqualified from being counted). This guidance allows voters to ask election officials to spoil their absentee ballots and permits voters to request a new absentee ballot if they make a mistake or opt to vote in person instead. The plaintiff argues that this guidance violates Wisconsin law, under which municipal clerks are allegedly not allowed to return “previously completed and submitted absentee ballot to an elector simply because the elector may have changed his or her mind about who to vote for.” The plaintiff also alleges that under Wisconsin law, municipal clerks lack the authority to “spoil” an absentee ballot and asserts that only voters may spoil their own absentee ballots and return them to the clerk before filling out a new one. The plaintiff contends that the WEC’s guidance regarding the spoiling of absentee ballots “opens the door to increased risk of chaos, fraud, or other illegalities in the absentee voting process.” The plaintiff asks the court to prohibit municipal clerks from spoiling previously completed absentee ballots and from returning a previously submitted absentee ballot to a voter. Rise and the Democratic National Committee (DNC) intervened in the lawsuit to oppose the plaintiff’s request to void WEC’s absentee ballot spoiling guidance.

On Oct. 5, a judge ruled from the bench and granted the plaintiff’s motion for a temporary injunction. This means that WEC guidance permitting voters to spoil their returned absentee ballots and cast a new one will be rescinded. Therefore, election officials will not be able to spoil absentee ballots on behalf of voters or return completed absentee ballots to voters (except in the case in which a voter needs to fix a defective or missing absentee ballot witness certificate). On Oct. 7, the DNC and Rise appealed the order granting the plaintiff’s motion for a temporary injunction.

On Oct. 10, the Wisconsin Court of Appeals granted a temporary stay pending the court’s decision on whether to grant the petitions for leave to appeal. However, on Oct. 27, the Wisconsin Court of Appeals lifted (meaning reversed) the stay of the trial court’s Oct. 7 temporary injunction order. This means that WEC’s absentee ballot spoiling guidance is no longer in effect. As a result, Wisconsin voters will not be able to spoil their previously returned absentee ballots in the upcoming Nov. 8 election, but will still be able to spoil their uncounted absentee ballots if they make a mistake or receive a damaged ballot.

On Nov. 29, 2023, a trial court made the temporary injunction from 2022 permanent. This means WEC’s absentee ballot spoiling guidance remains defunct. On March 5, 2024, intervenor-defendant Rise appealed the decision to the Wisconsin Supreme Court.

STATUS: Litigation is ongoing in the court of appeals. Meanwhile, Rise is seeking to have the Wisconsin Supreme Court take over the appeal.

Last updated: April 19, 2024 4:06 pm EST