Lawsuit filed by the League of Women Voters of Wisconsin (LWVWI) against the Wisconsin Elections Commission (WEC) seeking clarification about what qualifies as a “missing” absentee ballot witness certificate address. Under Wisconsin law, a voter’s absentee ballot must be accompanied by a witness certificate containing the witness’ address in order to prove that a voter completed their absentee ballot in the presence of a witness who can attest to the voter’s eligibility to vote absentee. Moreover, Wisconsin law prescribes that a ballot “may not be counted” if a witness address is missing. In 2016, WEC issued guidance allowing election officials to fill in any missing address information on witness certificates if they can find reliable information. On Sept. 7, a Waukesha County Circuit Court judge concluded that this guidance violated Wisconsin law and temporarily blocked its use in the upcoming November midterm elections, meaning clerks cannot fill in missing information on witness certificates this fall. On Sept. 13, the WEC withdrew its guidance that allowed election officials to fill in missing address information on absentee ballot witness certificates and contained its previously existing definition of an address: “[a] street number, street name, and a municipality name.” Therefore, according to the plaintiff, there is currently “no longer…any guidance regarding when a witness address is ‘missing’ within the meaning of” Wisconsin law.
The plaintiff in this lawsuit argues that a definition of the word “missing” as it applies to absentee ballot witness addresses must be elucidated and contends that the court should declare that “‘missing’ does not encompass partial witness addresses.” The LWVWI asserts that if the definition of “missing” is not resolved, voters will be at risk of having their ballots rejected for inadvertent errors (such as an incomplete zip code or missing state name) that are irrelevant to their eligibility to vote in violation of the Materiality Provision of Civil Rights Act. The plaintiff also asserts that, barring clarification of the term “missing,” voters’ rights under the Due Process Clause of the U.S. Constitution will be threatened since there is not currently any requirement that election officials notify voters of errors on their ballot and provide them an opportunity to fix these errors. The plaintiff asks the court to declare that an absentee ballot witness certificate address is only “missing” and disqualified from being counted if the address field is “completely blank.” The plaintiff also requests that the court direct election officials to not reject absentee ballots with partially complete witness certificate addresses.
On Oct. 26, a judge denied the plaintiff’s request for a motion for a temporary injunction in which the the LWVWI asked the court to define a “missing address” on absentee ballot witness certificates, to count voters’ absentee ballots even if their witnesses provide only a partial address on an absentee ballot witness certificate and to ensure that election officials give voters adequate notice and a sufficient opportunity to fix any errors on witness certificates. The plaintiff appealed this decision on Oct. 28, however the appellate court declined to accept the plaintiff’s petition for appeal on Nov. 1. The court heard oral argument regarding the defendant’s motion to dismiss the lawsuit on Jan. 24. Litigation is ongoing.