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A state Democratic Party backed
lawsuit seeks to block
the Wisconsin Elections Commission
guidance that says voters
who have returned their absentee
ballots cannot request a new ballot
if the candidate they voted for
drops out.
Candidates like Sarah Rodriguez
and Missy Hughes.
The elections commission ruled that
only a ballot that a voter made a
mistake on or is damaged and
that they still have in their
possession can be spoiled
and returned for a new one.
But that guidance comes after a
series of court cases that
seem confusing.
We turn to Brenna Godar, attorney
with the State Democracy Research
Initiative at the University of
Wisconsin Law School, and thanks for
being here. Thanks for having me.
So I wanna just back up a little bit
to set those.
Court cases up.
It was a 2022 lawsuit
where a Waukesha County judge
ruled that the elections commission
had to rescind its guidance
allowing for the spoiling
of ballots.
A state appeals court eventually
repealed that ruling.
So why don't previous
rules allowing casting a new
absentee ballot up to three
times for any reason
prevail under
the appeals court repeal
of that ban.
It's because the appeals court
ruling was not actually on the
merits, so they
overruled the lower court on this
technical procedural issue and
didn't reach the merits of what the
Wisconsin statute actually requires
or allows.
And so that means it's still
somewhat ambiguous, and so the
Wisconsin Elections Commission
is free to interpret the statute
how it thinks is appropriate.
And there are questions of why it
switched from its prior
interpretation, which is what was
challenged in 2022.
To what they issued this month,
but essentially we don't have a
court ruling providing certainty
on what these statutes mean.
How unusual is this circumstance
with two candidates dropping out and
one re-entering with absentee voting
already underway with like
ninety thousand ballots already
cast?
It is something that has come up
before where candidates leave
the race during this period after
absentee ballots go out and that
is part of why proponents
of ballot spoiling think that it
should be allowed at this stage is
because there are folks who have
cast their absentees ballots and
their candidate might no longer be
in the race.
What about elections commission
guidance to clerks being so
close to the August 11th primaries?
That is another issue that the
plaintiffs challenging this change
are arguing and pointing to, is
that voters who returned their
ballots before that guidance
thought that they could potentially
then change their ballots after the
fact if something developed in the
campaigns. And at least one voter in
the case is saying that he would
have held off on submitting his
absentee ballot had he known that he
couldn't change it at a later date.
How could the lawsuit
on behalf of these three Democratic
voters against that
newer guidance upend
the election?
It could potentially
change how clerks are
having to handle absentee ballots in
the lead-up to the election.
So it depends on how quickly a court
acts in providing some definitive
guidance on this issue.
Would it end up then running
its course all the way up to the
state Supreme Court potentially?
Potentially. I think this is a case
where the courts would try to act in
an expedited manner and if it did
get appealed to the State Supreme
Court, they would try to have it act
in a expedited way.
It would have to be quite expedited.
And so often you will see in
something with this short of a
timeline, the lower court ruling is
the one that stands.
So what do you make of the merits of
the Democrats' lawsuit?
So there are a few different claims
that are being brought.
One is statutory and a couple are
constitutional.
And the statutory issue is really
reviving the issue that was
litigated in the Cormanick case that
we talked about at the beginning of
what do Wisconsin statutes actually
allow.
And they pretty clearly allow voters
to get a replacement ballot if
they mess up before returning it
to clerks.
There's a lot less certainty on
whether the statute allows you to do
that if you want to change
your ballot after you've already
returned it.
And we still don't have a clear
issue or a clear ruling on
that issue.
The constitutional issues are then
raising voting rights claims
and equal protection claims and
arguing that if you can't change
your ballot after a candidate drops
out or you realize later that
you've made a mistake, that means
that you're not having the
opportunity to vote for the
candidate of your choice, which is a
really important part of the right
to vote.
And then the equal protection raises
these issues related to the
timing of the wet guidance.
And some voters potentially having
the opportunity to spoil their
ballots before that, but not those
who cast their ballots later.
So what do you make of the merits of
the WEK guidance?
So that guidance is
rooted in a circuit court's ruling
on this issue in 2022.
So even though that circuit court
ruling no longer stands as
having the force of law, there was a
court that did decide that Wisconsin
statutes don't allow for this.
And so WEC is looking to that
presumably in issuing this
guidance to be in line with that
court case. Pretty complicated.
Yes.
All right.
Brenna Godar, thank you for spelling
it out for us. Thank you.