>> You can hear the full episode of Inside Wisconsin
Politics wherever you get your podcasts. 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 Bryna Godar,
attorney with the State Democracy Research
Initiative at the University of Wisconsin Law
School, and thanks for being here.
>> So I want to 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eventually repealed that ruling.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 reentering, with absentee voting already
underway, with like 90,000 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 absentee 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 primary?
>> That is another issue that the plaintiffs
challenging this change are arguing and pointing to is
that voters who return 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. 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 an expedited way.
quite expedited. 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?
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 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 wet 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 WECA
is looking to that, presumably in issuing this
guidance to be in line with that court case.
>> Pretty complicated. >> Yes.