Wisconsin judge bans absentee ballot spoiling

WAUKESHA, Wis. (CN)— A Waukesha judge on Wednesday handed down a decision permanently banning voters from canceling an absentee ballot they have already returned so they can cast a new ballot.

Waukesha County Circuit Court Judge Brad Schimel, formerly a Republican attorney general, granted a permanent injunction “which will contain substantially the same terms” as a temporary injunction he granted in October of last year, giving a win to the conservative group that spearheaded the lawsuit against the practice known as “ballot spoiling.”

Restoring Integrity and Trust in Elections brought its lawsuit in September 2022 on behalf of Waukesha County voter Nancy Kormanik, claiming the bipartisan Wisconsin Elections Commission unlawfully advised municipal clerks and the public in a memo and a press release in August of that year that ballot spoiling was permitted.

The conservative group — whose team features Donald Trump's former attorney general, William Barr, and George W. Bush’s former chief of staff, Karl Rove—did not immediately respond to a request for comment on Wednesday’s decision.

The commission was the nominal defendant in the case, as it administers state election law and guides the roughly 1,800 clerks comprising the state’s decentralized elections system on how to follow the law. The Democratic National Committee and Rise, a left-leaning advocacy group in part focused on get-out-the-vote efforts, intervened on behalf of the commission.

The Wisconsin Department of Justice and the commission did not immediately provide comment on the decision.

In his decision, Schimel said Wisconsin laws holding that absentee voting is a privilege, not a right, are unambiguous and contain no language “that would authorize the scheme whereby a clerk spoils the ballot for the elector, at their request, and sends out a new blank ballot for a do-over.”

Discussing whether Kormanik had standing to sue as a lone taxpayer, Schimel found that, under binding precedent, Kormanik “has at least a trifling interest in her voting rights,” especially given that the Wisconsin Legislature’s policies have made clear its commitment to guarding against voter fraud.

“Why would they do that? Because election fraud cannot be repaired. Once it happens, people are disenfranchised by improperly cast votes. A candidate will get votes improperly, and there is no way to adjust the vote count,” Schimel said.

The Legislature concluded the dangers of fraud from absentee voting require strict rules and safeguards, Schimel noted, and if the rules are violated by any ballot cast, that ballot may not be counted.

“That is arguably a harsh rule, because it could result in a voter not having their vote counted, and it might not be the fault of the voter that the procedures were not followed. The point: WEC and all election clerks had better get it right, or voters will be disenfranchised. This court had better get it right, too,” Schimel said, using the acronym for the commission.

The judge’s decision granted Kormanik’s motions for summary judgment and declaratory judgment in addition to imposing a permanent injunction, the exact language of which will be ironed out at a future hearing.

Litigation in Wisconsin over absentee voting, much of it taken up by conservatives trying to restrict the practice, has been ongoing for years. In part cases have resulted in another Waukesha judge barring clerks from curing absentee ballot witness certificates and the Wisconsin Supreme Court banning the use of absentee ballot drop boxes.

With a major election cycle set to officially start with Iowa’s partisan caucuses in January, more such litigation is underway in the Badger State, including a progressive political action committee’s action fighting multiple absentee voting rules, including those on absentee ballot witnesses and drop boxes.

According to its website, Restoring Integrity and Trust in Elections is involved in other election-law litigation in several states, including a federal lawsuit in Wisconsin backed by the Democratic Party-affiliated Elias Law Group, seeking to toss the battleground state’s absentee ballot witness requirement.

Schimel recently announced his plans to run in a 2025 election for a seat on the state supreme court that is now occupied by liberal Justice Ann Walsh Bradley. The high court, which this year switched from a conservative to a liberal majority, is currently weighing a lawsuit to toss the Badger State’s gerrymandered electoral maps.

Follow @cnsjkelly

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