MADISON, Wis. (AP) — A Wisconsin judge on Wednesday ordered election clerks not to fill in missing information on witness certification envelopes that contain absentee ballots, delivering a victory to Republicans nine weeks before the election in the battleground state.
The lawsuit, backed by the GOP-controlled Legislature, is the latest move by Republicans to tighten restrictions on absentee voting in the swing state where Democratic Gov. Tony Evers and Republican Sen. Ron Johnson are on the ballot in November.
Waukesha County Circuit Judge Michael Aprahamian on Wednesday granted GOP motions to immediately block the practice, known as ballot curing. The case is expected to ultimately go to the conservative-controlled Wisconsin Supreme Court, which in July ruled that absentee ballot drop boxes located outside of clerk offices are illegal.
Republicans argue that 2016 Wisconsin Elections Commission guidance issued to the state’s 1,800-plus local election clerks and 72 county clerks saying that they can cure ballot certificates without contacting the voter is illegal. Clerks only address problems on the witness certificate, which doubles as an envelope, and not the ballot itself. Republicans did not contest the practice until after Donald Trump’s narrow loss in 2020, when nearly 1.4 million voters cast absentee ballots and COVID-19 vaccines weren't available yet.
“This isn’t a case about counting votes,” said George Burnett, attorney for the Republican Party of Waukesha County, which brought the lawsuit. “This is a case about stopping the issuance of guidance that violates Wisconsin law.”
The Waukesha County Democratic Party, which is defending the practice, argues that Republicans are trying to create confusion and uncertainty just weeks before early voting begins. All absentee ballots in Wisconsin must be sent to voters by Sept. 22. The guidance has been in effect for more than 20 statewide elections, and Democrats argue it is lawful and necessary to comply with the federal Civil Rights Act.
The issue was previously raised by Trump after he narrowly lost the 2020 election. The Wisconsin Supreme Court did not directly address it in upholding Trump’s loss, but four of the seven justices suggested that the guidance allowing clerks to cure absentee ballot certificates was reasonable.
Republicans have been trying for months to undo the guidance from the elections commission. In January, a GOP-led legislative committee told the commission to suspend its guidance or submit a proposed rule to clarify it. When the commission submitted its emergency rule, Republican lawmakers blocked it. The commission’s position is that the underlying guidance remains in effect.
But the back-and-forth has been confusing for clerks who wonder what they can do to ensure ballots are counted.
The lawsuit was filed by the Republican Party of Waukesha County and three voters, and the Republican-led Legislature intervened. The Waukesha County Democratic Party and the League of Women Voters of Wisconsin joined the commission in defending the guidance.
Both sides made their arguments in court before the judge ruled Wednesday.
Wisconsin law requires absentee ballots to be submitted in an envelope that contains a witness signature and the address of that person and the voter. The elections commission guidance said clerks could complete missing information without contacting the voter “if clerks are reasonably able to discern any missing information from outside sources.” For example, the clerk could fill in a missing address for the voter or witness if they knew the person or could verify the address on their own.
Republicans don’t want clerks to be able to add or fix any information. Instead, they want them to either contact the voter to correct the ballot certificate or not count it.
The Legislative Audit Bureau last year reviewed nearly 15,000 absentee ballot envelopes from the 2020 election across 29 municipalities and found that 1,022, or about 7%, were missing parts of witness addresses. Auditors found that clerks had corrected addresses on 66 envelopes, or 0.4% of the sample.
The audit cautioned against extrapolating the findings statewide, however, noting that auditors reviewed ballot envelopes from nine of the 10 municipalities with the highest proportion of absentee ballots.
For more AP coverage of the midterm elections: https://apnews.com/hub/2022-midterm-elections
Scott Bauer, The Associated Press