Wisconsin Supreme Court Won’t Decide Whether Voters Can “Spoil” Absentee Ballots, but Litigation Will Continue

WASHINGTON, D.C. — The Wisconsin Supreme Court this afternoon declined to take up a case that centers on whether voters can discard their previously submitted absentee ballots and cast a new one — a process known as ballot “spoiling.”

Instead, the case will first be reviewed by the Wisconsin Court of Appeals, after which the state Supreme Court may decide to take up an appeal of the suit in the future. At this time, it remains uncertain as to whether the court of appeals will hear the case and issue a ruling before the state’s Aug. 13 primary elections or Nov. 5 general election.

From 2014 up until October 2022, the Wisconsin Elections Commission (WEC) on multiple occasions issued guidance that authorized an absentee voter who had already returned their ballot to contact a local election clerk, request the ballot back, spoil the old ballot and subsequently cast a new one. 

In a set of guidance promulgated ahead of the state’s August 2022 partisan primary, WEC noted that it would allow for the spoiling of absentee ballots in light of an uptick in requests from voters to cast new ballots after changing their minds or making an error. Under WEC’s guidance, absentee voters who cast ballots in the state’s primary election for a candidate who dropped out of a race before Election Day could spoil their ballots and cast a new one for an active candidate. 

However, following a lawsuit brought by the conservative legal group known as Restoring Integrity and Trust in Elections, a Wisconsin judge temporarily blocked WEC’s absentee ballot spoiling guidance ahead of the 2022 midterm elections. 

And in a March 2024 ruling, the judge permanently invalidated the guidance, holding that it violated Wisconsin election law and concluding that voters are only permitted to spoil their absentee ballots in cases of ballots that are damaged or improperly certified. 

Following the March ruling, Rise, Inc. — a nonprofit youth empowerment organization that intervened in the litigation — asked the Wisconsin Supreme Court to review the case prior to the 2024 primary election in an effort to bypass the Wisconsin Court of Appeals. 

In its petition to the justices, Rise argued that the plaintiff who brought the legal challenge to WEC’s guidance failed to demonstrate how the absentee ballot spoiling rules harmed her as a voter and lacked evidence to support her allegation that guidance resulted in election fraud and voter confusion. According to Rise, the trial court improperly held that the plaintiff had standing and wrongly decided the case on the merits. 

“Wisconsin is sure to have hotly contested primary races this year…In the event of late withdrawals from any of the resulting primaries—as happened in the 2022 Democratic senate primary—voters may once again seek to spoil their previously submitted ballots so as to cast effective votes,” Rise maintained in a court filing. 

In addition to Rise, the Democratic National Committee — another intervenor in the lawsuit — and WEC have also appealed the case to the Wisconsin Court of Appeals. 

Read the order here.

Learn more about the case here.