WASHINGTON, D.C. — On Wednesday, Nov. 2, a Wisconsin judge declined to order the Wisconsin Elections Commission (WEC) to clarify the definition of a sufficiently complete address on an absentee ballot witness certificate and to order election officials to uniformly apply said definition when processing and counting absentee ballots. This decision in Rise v. Wisconsin Elections Commission was issued after the same judge previously denied an initial request seeking clarity about the definition of an address on Oct. 7. In the Oct. 7 order, the judge concluded that “the [three-component] definition of an absentee ballot witness ‘address’ contained in the October 18, 2016 Wisconsin Elections Commission memorandum and the September 14, 2022 memorandum to clerks from the Elections Commission, namely that an address is sufficient if it contains a street number, street name and name of municipality, is the status quo and that the requested temporary injunction is unnecessary to preserve the status quo.” Although the judge held that WEC did not need to clarify the definition of an address since its three-component definition of address (including a street number, street name and name of municipality) is still operative and remains the “status quo,” Rise filed a second motion for a temporary injunction on Oct. 25. In its second motion, Rise explained that new evidence “has come to light—and continues to emerge on a near-daily basis—that clerks across Wisconsin are applying varying interpretations of the absentee ballot witness address requirement,” thereby refuting the idea that WEC’s three-component definition is the “status quo.” As a result, Rise asked the court to either 1) compel WEC to instruct clerks that “address” means a place where the witness may be communicated with and that ballots satisfying this standard must be accepted or 2) order WEC to tell clerks that WEC’s three-component definition of “address” outlined in its Sept. 14 memorandum is sufficient for the purposes of the upcoming midterm elections only and order that ballots satisfying this standard must be accepted.
In today’s order denying Rise’s second request for a temporary injunction, the judge again concluded that a temporary injunction defining what constitutes an “address” “is not necessary to preserve the status quo.” He also stated that “[i]t does not appear that there has ever been a definition of that term in that statute, legislative, administrative or judicial, that was legally binding on local clerks…For the past 56 years Wisconsin elections have been conducted, and absentee ballots counted, apparently without a legally binding definition of the witness address. Since then, until the present, clerks have been legally free to interpret the term. They presumably have done so in good faith, in keeping with their oaths of office, and drawing on the non-binding guidance issued by the WEC and its predecessors, and perhaps also on advice from their jurisdictions’ attorneys.” The judge further noted that the only change “with respect to witness address[es] from past elections is that” election officials can no longer fill in any missing address information on absentee ballot witness certificates following a decision in White v. Wisconsin Elections Commission. Moreover, the judge explained that following the White decision, WEC did not overturn “any existing WEC definition of ‘address,’” further indicating that WEC’s three-component definition is still in place. Ultimately, today’s decision means that an absentee ballot cast by a Wisconsin voter should be counted if the accompanying witness certificate contains an address that includes a street number, street name and name of municipality, and so long as election officials properly and uniformly apply this definition of an address.