Wisconsin Judge Blocks Election Clerks From Fixing Minor Absentee Ballot Deficiencies
WASHINGTON, D.C. — On Wednesday, Sept. 7, a Wisconsin judge temporarily blocked Wisconsin Elections Commission (WEC) guidance that allowed clerks and local election officials to fill in incomplete address information (using red ink) on voters’ absentee ballot witness certificates. This ruling arises from a lawsuit filed by the Republican Party of Waukesha County and voters against WEC challenging the legality of WEC’s 2016 guidance directing clerks to fill in missing information on absentee ballot certificate envelopes. Under Wisconsin law, voters’ absentee ballots must be accompanied by a witness certification proving that the voter completed their absentee ballot in the presence of a witness. The WEC guidance at issue in the lawsuit permitted election officials to fill in any missing information (such as an incomplete address) on these witness certifications if they are able to find reliable information.
Yesterday’s ruling, which came down at the conclusion of a preliminary injunction hearing and was followed by a written order, effectively bans WEC’s guidance for the upcoming November midterm elections. The written order concluded that “WEC is prohibited and enjoined from advising, guiding, instructing, publishing, or otherwise communicating information to Wisconsin municipal clerks and local elections officials that that clerks or local election officials have the duty or ability to modify or add information to incomplete absentee ballot certifications” since doing so is “contrary to” Wisconsin law. Additionally, the order notes that election officials, instead of filling in missing absentee ballot certificate information on behalf of voters, may choose (but are not required) to return deficient absentee ballots to voters so they can correct any defects themselves. Although this order temporarily blocks WEC guidance for the upcoming November elections, litigation will continue.
Notably, the WEC practice allowing clerks to fill in missing information was implemented in 2016 with the support of Republicans. However, after the 2020 election, former President Donald Trump and the Wisconsin GOP reneged and subsequently challenged the WEC policy in court as part of an effort to overturn President Joe Biden’s 21,000-vote victory in the state. Trump then lost the lawsuit in the Wisconsin Supreme Court. Ultimately, this most recent Republican lawsuit challenging the WEC guidance is part and parcel of the long-term Republican strategy aimed at subverting free and fair elections through efforts to suppress voting and disqualify lawfully cast ballots.