1
00:00:01,134 --> 00:00:04,438
>> You can hear the full
episode of Inside Wisconsin

2
00:00:04,505 --> 00:00:07,574
Politics wherever you get
your podcasts. A state

3
00:00:07,641 --> 00:00:11,044
Democratic Party backed
lawsuit seeks to block the

4
00:00:11,111 --> 00:00:13,247
Wisconsin Elections
Commission guidance that

5
00:00:13,313 --> 00:00:15,482
says voters who have
returned their absentee

6
00:00:15,549 --> 00:00:18,652
ballots cannot request a
new ballot if the candidate

7
00:00:18,719 --> 00:00:22,723
they voted for drops out.
Candidates like Sarah

8
00:00:22,789 --> 00:00:25,659
Rodriguez and Missy Hughes,
the elections commission

9
00:00:25,726 --> 00:00:28,595
ruled that only a ballot
that a voter made a mistake

10
00:00:28,662 --> 00:00:32,065
on or is damaged and that
they still have in their

11
00:00:32,132 --> 00:00:35,969
possession, can be spoiled
and returned for a new one.

12
00:00:36,036 --> 00:00:39,206
But that guidance comes
after a series of court

13
00:00:39,273 --> 00:00:43,010
cases that seem confusing.
We turn to Bryna Godar,

14
00:00:43,076 --> 00:00:45,312
attorney with the State
Democracy Research

15
00:00:45,379 --> 00:00:47,881
Initiative at the
University of Wisconsin Law

16
00:00:47,948 --> 00:00:50,384
School, and thanks for
being here.

17
00:00:50,450 --> 00:00:54,154
>> So I want to just back
up a little bit to set

18
00:00:54,221 --> 00:00:56,423
those court cases up. It
was a 2022 lawsuit where a

19
00:00:56,490 --> 00:00:58,692
Waukesha County judge ruled
that the elections

20
00:00:58,759 --> 00:01:02,162
commission had to rescind
its guidance, allowing for

21
00:01:02,229 --> 00:01:05,399
the spoiling of ballots. A
state appeals court

22
00:01:05,465 --> 00:01:09,369
eventually repealed that
ruling. So why don't

23
00:01:09,436 --> 00:01:12,272
previous rules allowing
casting a new absentee

24
00:01:12,339 --> 00:01:16,944
ballot up to three times
for any reason prevail

25
00:01:17,010 --> 00:01:21,014
under the appeals court
repeal of that ban?

26
00:01:21,081 --> 00:01:23,851
>> It's because the appeals
court ruling was not

27
00:01:23,917 --> 00:01:27,554
actually on the merits. So
they overruled the lower

28
00:01:27,621 --> 00:01:31,358
court on this technical
procedural issue and didn't

29
00:01:31,425 --> 00:01:33,594
reach the merits of what
the Wisconsin statute

30
00:01:33,660 --> 00:01:36,763
actually requires or allows.
And so that means it's

31
00:01:36,830 --> 00:01:39,399
still somewhat ambiguous.
And so the Wisconsin

32
00:01:39,466 --> 00:01:42,603
Elections Commission is
free to interpret the

33
00:01:42,669 --> 00:01:45,639
statute how it thinks is
appropriate. And there are

34
00:01:45,706 --> 00:01:48,008
questions of why it
switched from its prior

35
00:01:48,075 --> 00:01:50,143
interpretation, which is
what was challenged in 2022

36
00:01:50,210 --> 00:01:52,813
to what they issued this
month. But essentially, we

37
00:01:52,880 --> 00:01:56,250
don't have a court ruling
providing certainty on what

38
00:01:56,316 --> 00:01:59,119
these statutes mean.
>> How unusual is this

39
00:01:59,186 --> 00:02:01,221
circumstance with two
candidates dropping out and

40
00:02:01,288 --> 00:02:04,124
one reentering, with
absentee voting already

41
00:02:04,191 --> 00:02:07,728
underway, with like 90,000
ballots already cast.

42
00:02:07,794 --> 00:02:11,064
>> It is something that has
come up before where

43
00:02:11,131 --> 00:02:13,834
candidates leave the race
during this period after

44
00:02:13,901 --> 00:02:17,004
absentee ballots go out.
And that is part of why

45
00:02:17,070 --> 00:02:19,373
proponents of ballot
spoiling think that it

46
00:02:19,439 --> 00:02:21,942
should be allowed at this
stage is because there are

47
00:02:22,009 --> 00:02:24,611
folks who have cast their
absentee ballots, and their

48
00:02:24,678 --> 00:02:26,647
candidate might no longer
be in the race.

49
00:02:26,713 --> 00:02:28,649
>> What about elections
Commission guidance to

50
00:02:28,715 --> 00:02:32,252
clerks being so close to
the August 11th primary?

51
00:02:32,319 --> 00:02:35,189
>> That is another issue
that the plaintiffs

52
00:02:35,255 --> 00:02:38,025
challenging this change are
arguing and pointing to is

53
00:02:38,091 --> 00:02:41,328
that voters who return
their ballots before that

54
00:02:41,395 --> 00:02:44,097
guidance thought that they
could potentially then

55
00:02:44,164 --> 00:02:46,300
change their ballots after
the fact if something

56
00:02:46,366 --> 00:02:48,902
developed in the campaigns
and at least one voter in

57
00:02:48,969 --> 00:02:52,105
the case is saying that he
would have held off on

58
00:02:52,172 --> 00:02:53,674
submitting his absentee
ballot had he known that he

59
00:02:53,740 --> 00:02:55,976
couldn't change it at a
later date.

60
00:02:56,043 --> 00:02:59,613
>> How could the lawsuit on
behalf of these three

61
00:02:59,680 --> 00:03:03,383
Democratic voters against
that newer guidance upend

62
00:03:03,450 --> 00:03:07,020
the election?
>> It could potentially

63
00:03:07,955 --> 00:03:10,490
change how clerks are
having to handle absentee

64
00:03:10,557 --> 00:03:12,993
ballots in the lead up to
the election. So it depends

65
00:03:13,060 --> 00:03:15,896
on how quickly a court acts
in providing some

66
00:03:15,963 --> 00:03:18,365
definitive guidance on this
issue.

67
00:03:18,432 --> 00:03:21,568
>> Would it end up then
running its course all the

68
00:03:21,635 --> 00:03:24,238
way up to the state Supreme
Court? Potentially,

69
00:03:24,304 --> 00:03:27,040
potentially.
where the courts would try

70
00:03:27,107 --> 00:03:29,843
to act in an expedited
manner, and if it did get

71
00:03:29,910 --> 00:03:31,745
appealed to the state
Supreme Court, they would

72
00:03:31,812 --> 00:03:35,282
try to have it act in an
expedited way.

73
00:03:35,749 --> 00:03:38,952
quite expedited.
see in something with this

74
00:03:39,019 --> 00:03:40,921
short of a timeline, the
lower court ruling is the

75
00:03:40,988 --> 00:03:43,657
one that stands.
>> So what do you make of

76
00:03:43,724 --> 00:03:46,894
the merits of the Democrats
lawsuit?

77
00:03:46,960 --> 00:03:48,896
different claims that are
being brought. One is

78
00:03:48,962 --> 00:03:50,964
statutory and a couple are
constitutional. And the

79
00:03:51,031 --> 00:03:53,033
statutory issue is really
reviving the issue that was

80
00:03:53,100 --> 00:03:55,802
litigated in the case that
we talked about at the

81
00:03:55,869 --> 00:03:58,639
beginning of what do
Wisconsin statutes actually

82
00:03:58,705 --> 00:04:01,108
allow? And they pretty
clearly allow voters to get

83
00:04:01,175 --> 00:04:04,278
a replacement ballot if
they mess up before

84
00:04:04,344 --> 00:04:07,281
returning it to clerks.
There's a lot less

85
00:04:07,347 --> 00:04:09,516
certainty on whether the
statute allows you to do

86
00:04:09,583 --> 00:04:12,553
that. If you want to change
your ballot after you've

87
00:04:12,619 --> 00:04:14,521
already returned it, and we
still don't have a clear

88
00:04:14,588 --> 00:04:17,724
issue or a clear ruling on
that issue, the

89
00:04:17,791 --> 00:04:20,761
constitutional issues are
then raising voting rights

90
00:04:20,827 --> 00:04:23,130
claims and equal protection
claims, and arguing that if

91
00:04:23,197 --> 00:04:25,666
you can't change your
ballot after a candidate

92
00:04:25,732 --> 00:04:28,135
drops out or you realize
later that you've made a

93
00:04:28,202 --> 00:04:30,370
mistake, that means that
you're not having the

94
00:04:30,437 --> 00:04:32,406
opportunity to vote for the
candidate of your choice,

95
00:04:32,472 --> 00:04:35,108
which is a really important
part of the right to vote.

96
00:04:35,175 --> 00:04:37,177
And then the equal
protection raises these

97
00:04:37,244 --> 00:04:40,480
issues related to the
timing of the wet guidance,

98
00:04:40,547 --> 00:04:42,583
and some voters potentially
having the opportunity to

99
00:04:42,649 --> 00:04:44,685
spoil their ballots before
that, but not those who

100
00:04:44,751 --> 00:04:47,254
cast their ballots later.
>> So what do you make of

101
00:04:47,321 --> 00:04:49,756
the merits of the wet
guidance.

102
00:04:49,823 --> 00:04:54,161
>> So that guidance is
rooted in a circuit court's

103
00:04:54,228 --> 00:04:57,431
ruling on this issue in
2022? So even though that

104
00:04:57,497 --> 00:05:00,667
circuit court ruling no
longer stands as having the

105
00:05:00,734 --> 00:05:03,837
force of law, there was a
court that did decide that

106
00:05:03,904 --> 00:05:06,306
Wisconsin statutes don't
allow for this. And so WECA

107
00:05:06,373 --> 00:05:09,910
is looking to that,
presumably in issuing this

108
00:05:09,977 --> 00:05:11,778
guidance to be in line with
that court case.

109
00:05:11,845 --> 00:05:14,748
>> Pretty complicated.
>> Yes.