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You can hear the full episode of

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Inside Wisconsin Politics wherever

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you get your podcasts.

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A state Democratic Party backed

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lawsuit seeks to block

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the Wisconsin Elections Commission

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guidance that says voters

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who have returned their absentee

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ballots cannot request a new ballot

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if the candidate they voted for

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drops out.

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Candidates like Sarah Rodriguez

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and Missy Hughes.

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The elections commission ruled that

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only a ballot that a voter made a

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mistake on or is damaged and

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that they still have in their

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possession can be spoiled

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and returned for a new one.

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But that guidance comes after a

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series of court cases that

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seem confusing.

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We turn to Brenna Godar, attorney

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with the State Democracy Research

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Initiative at the University of

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Wisconsin Law School, and thanks for

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being here. Thanks for having me.

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So I wanna just back up a little bit

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to set those.

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Court cases up.

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It was a 2022 lawsuit

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where a Waukesha County judge

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ruled that the elections commission

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had to rescind its guidance

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allowing for the spoiling

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of ballots.

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A state appeals court eventually

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repealed that ruling.

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So why don't previous

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rules allowing casting a new

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absentee ballot up to three

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times for any reason

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prevail under

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the appeals court repeal

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of that ban.

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It's because the appeals court

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ruling was not actually on the

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merits, so they

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overruled the lower court on this

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technical procedural issue and

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didn't reach the merits of what the

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Wisconsin statute actually requires

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or allows.

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And so that means it's still

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somewhat ambiguous, and so the

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Wisconsin Elections Commission

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is free to interpret the statute

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how it thinks is appropriate.

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And there are questions of why it

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switched from its prior

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interpretation, which is what was

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challenged in 2022.

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To what they issued this month,

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but essentially we don't have a

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court ruling providing certainty

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on what these statutes mean.

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How unusual is this circumstance

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with two candidates dropping out and

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one re-entering with absentee voting

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already underway with like

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ninety thousand ballots already

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cast?

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It is something that has come up

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before where candidates leave

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the race during this period after

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absentee ballots go out and that

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is part of why proponents

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of ballot spoiling think that it

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should be allowed at this stage is

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because there are folks who have

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cast their absentees ballots and

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their candidate might no longer be

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in the race.

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What about elections commission

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guidance to clerks being so

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close to the August 11th primaries?

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That is another issue that the

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plaintiffs challenging this change

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are arguing and pointing to, is

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that voters who returned their

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ballots before that guidance

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thought that they could potentially

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then change their ballots after the

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fact if something developed in the

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campaigns. And at least one voter in

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the case is saying that he would

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have held off on submitting his

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absentee ballot had he known that he

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couldn't change it at a later date.

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How could the lawsuit

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on behalf of these three Democratic

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voters against that

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newer guidance upend

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the election?

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It could potentially

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change how clerks are

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having to handle absentee ballots in

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the lead-up to the election.

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So it depends on how quickly a court

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acts in providing some definitive

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guidance on this issue.

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Would it end up then running

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its course all the way up to the

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state Supreme Court potentially?

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Potentially. I think this is a case

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where the courts would try to act in

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an expedited manner and if it did

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get appealed to the State Supreme

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Court, they would try to have it act

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in a expedited way.

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It would have to be quite expedited.

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And so often you will see in

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something with this short of a

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timeline, the lower court ruling is

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the one that stands.

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So what do you make of the merits of

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the Democrats' lawsuit?

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So there are a few different claims

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that are being brought.

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One is statutory and a couple are

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constitutional.

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And the statutory issue is really

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reviving the issue that was

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litigated in the Cormanick case that

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we talked about at the beginning of

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what do Wisconsin statutes actually

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allow.

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And they pretty clearly allow voters

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to get a replacement ballot if

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they mess up before returning it

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to clerks.

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There's a lot less certainty on

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whether the statute allows you to do

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that if you want to change

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your ballot after you've already

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returned it.

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And we still don't have a clear

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issue or a clear ruling on

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that issue.

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The constitutional issues are then

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raising voting rights claims

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and equal protection claims and

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arguing that if you can't change

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your ballot after a candidate drops

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out or you realize later that

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you've made a mistake, that means

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that you're not having the

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opportunity to vote for the

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candidate of your choice, which is a

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really important part of the right

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to vote.

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And then the equal protection raises

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these issues related to the

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timing of the wet guidance.

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And some voters potentially having

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the opportunity to spoil their

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ballots before that, but not those

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who cast their ballots later.

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So what do you make of the merits of

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the WEK guidance?

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So that guidance is

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rooted in a circuit court's ruling

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on this issue in 2022.

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So even though that circuit court

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ruling no longer stands as

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having the force of law, there was a

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court that did decide that Wisconsin

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statutes don't allow for this.

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And so WEC is looking to that

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presumably in issuing this

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guidance to be in line with that

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court case. Pretty complicated.

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Yes.

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All right.

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Brenna Godar, thank you for spelling

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it out for us. Thank you.