MADISON, Wis. (CN) — A Wisconsin judge on Tuesday issued two decisions making broad changes to how state law and elections rules require a witness to an absentee ballot to provide their address in order for the ballot to be counted.
In one lawsuit from the local chapter of the League of Women Voters, Dane County Circuit Court Judge Ryan Nilsestuen said rejecting ballots based on a failure to meet the witness address requirements violates the Civil Rights Act of 1964. In another lawsuit from RISE — a group that in part advocates for student debt relief and youth get-out-the-vote efforts — the judge adopted a more lenient definition of the term “address” as pushed for by the group.
The two decisions mark another twist in years of legal wrangling over the linchpin swing state’s absentee voting rules, particularly those regarding witnesses to absentee ballots that must sign the ballots’ certificates. Wisconsin, where the last two presidential elections have been decided by less than 25,000 votes, has its primary for the 2024 contest on April 2.
Attorneys for the advocacy groups did not immediately provide comment on the decisions. The bipartisan Wisconsin Elections Commission, nominally the defendant in both cases, and an attorney for the intervening Republican-controlled Wisconsin Legislature could not be reached Tuesday night.
As outlined between the two decisions, the Wisconsin Elections Commission issued guidance in 2016 defining an “address” as having a street number, street name and municipality. The guidance also allowed clerks to correct certain errors on the certificates themselves or contact the voter to correct the errors, but a Waukesha County Circuit Court judge struck down that part of the guidance in Sept. 2022 after 31 elections in which the guidance was unchallenged.
What resulted, Nilsestuen said in the decision in the League of Women Voters’ lawsuit, is otherwise valid absentee ballots being rejected by clerks “due to irrelevant or trivial errors” like a missing a ZIP code, citing 2,239 absentee ballots rejected in the Nov. 2022 general election due to issues with the ballots’ certificates.
In the League of Women Voters’ action, Nilsestuen — formerly Democratic Governor Tony Evers’ chief legal counsel before Evers appointed him as a circuit court judge in 2022 — said that rejecting absentee ballots with incorrect or missing witness address information, even if the ballots are otherwise sound, violates the Civil Rights Act’s “materiality provision,” which holds it is unlawful to deny an individual the right to vote "due to errors or omissions that are immaterial to determining whether the individual is qualified to vote.”
Because a witness’ address says nothing about whether a voter meets all other qualifications to vote, rejecting a ballot because of missing, immaterial witness address information is unlawful, according to Nilsestuen.
“The address is simply not material to determining the eligibility of a voter,” the judge said.
Nilsestuen granted summary judgment to the League of Women Voters and ruled that absentee ballots cannot be rejected if the witness address has a street name, street number and municipality but not a ZIP code; if a witness in the voter’s household lists a street number and street name but no municipality; if a witness uses a term like “same” or “ditto” to convey that they live at the same address as the voter; or if a witness certification has a street number, street name and ZIP code but no municipality.
In RISE’s lawsuit, Nilsestuen also granted the plaintiffs summary judgment in addition to their request to interpret Wisconsin law’s definition of “address of a witness” to mean “a place where the witness can be communicated with,” as the term “address” is not actually defined in state law — something Nilsestuen notes is part of the problem with this particular conflict over absentee voting.
“The problem at hand could be resolved if the Legislature passed a bill to define ‘address.’ Instead, it is up to the judiciary to make sense of an undefined word used in a variety of different contexts in a convoluted and poorly written statute,” Nilsestuen said.
The judge rejected the elections commission and Legislature’s arguments that the plaintiffs’ definition of address conflicts with other accepted definitions of the term and would prove unworkable because it calls for subjectivity on behalf of clerks, which Nilsestuen said happens anyway.
“Election clerks are not automatons, and it is exceedingly difficult, if not impossible, to remove all subjectivity from a process requiring thousands of election workers to review hundreds of thousands of ballots. For better or worse, our elections are administered by humans and, as such, there will always be some level of subjectivity in administering election statutes. This does not make such statutes unconstitutional or unworkable,” Nilsestuen said.
Each of Tuesday’s rulings note that the plaintiffs’ requested injunctive relief will be subject to oral arguments, which court records indicate will take place on Jan. 30 in Madison.
The Badger State’s absentee voting laws have been the subject of multiple other lawsuits both recent and past as lawmakers, voters and political interest groups all stake positions on a voting option that has expanded greatly since 2020.
In November, Waukesha County Circuit Court Judge Brad Schimel banned voters from spoiling an absentee ballot. Four Wisconsin voters sued in federal court in October to scrap the entire witness requirement. A progressive PAC fighting several absentee voting rules, including the witness requirement and the use of now-banned drop boxes, had their first day in court in Madison on Halloween.
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