MADISON — Reinterpreting state law again through the magical force of “guidance,” the Wisconsin Elections Commission faces yet another lawsuit.
Last week, several Wisconsin voters and the Waukesha County Republican Party filed a complaint against WEC alleging violations of state election law related to “curing” ballots.
The lawsuit follows this month’s ruling from the Wisconsin Supreme Court that found WEC’s guidance allowing unmanned absentee ballot boxes was illegal.
The drop boxes, widely used in Wisconsin’s contentious 2020 presidential election, raised questions and concerns about the integrity of a flood of mail-in and dropped-off ballots amid a pandemic. They also were clearly a violation of state law, according to the majority opinion written by Justice Rebecca Grassl Bradley.
“Only the legislature may permit absentee voting via ballot drop boxes. WEC (Wisconsin Election Commission) cannot,” she wrote. “Ballot drop boxes appear nowhere in the detailed statutory system for absentee voting. WEC’s authorization of ballot drop boxes was unlawful…”
WEC has had all kinds of trouble following the statutes in delivering guidance.
The latest lawsuit takes aim at the practice of elections officials “curing” — or correcting — missing information on absentee ballot envelopes. WEC issued guidance allowing the practice in 2016 and reaffirmed it in the controversial 2020 election.
Wisconsin election statutes clearly state that an absentee ballot envelope must be signed by a witness. The witness must sign, subject to criminal penalties for false statements, that the voting procedures were properly executed. The witness must provide their address.
Under the law, clerks may return the ballot to the voter for correction, if time permits; otherwise, the ballot cannot be counted.
The issue was a point of legal contention during the 2020 recount in Dane and Milwaukee counties and then-President Trump’s contesting of Democrat Joe Biden’s narrow victory in Wisconsin. As a Wisconsin Spotlight investigation uncovered, liberal activists funded by Facebook founder Mark Zuckerberg offered to “cure” ballots in the so-called “Wisconsin-5 cities — Milwaukee, Madison, Green Bay, Kenosha and Racine.
The plaintiffs seek a declaratory judgment in Waukesha County Circuit Court requiring election officials to follow the law, not WEC’s law-defying guidance.
“Election rules exist to be followed – not subverted by unelected bureaucrats. The RNC joins the NRSC (National Republican Senatorial Committee) and Wisconsin GOP in fully supporting this effort to hold the Wisconsin Election Commission accountable for yet again failing to promote and follow the basic rule of law,” RNC Spokesman Gates McGavick said.
Last week, the Elections Commission submitted broad guidance as an emergency rule on ballot curing in advance of next month’s primary elections. Senate Majority Leader Devin LeMahieu (R-Oostburg) urged the Legislature’s Joint Committee on the Review of Administrative Rules to suspend WEC’s rule.
“This week, WEC submitted overly-broad guidance as an emergency rule instead of basing a new rule on the clear underlying statute. We’ve seen what election officials have done when given an inch of latitude when administering election laws. No more,” the majority leader said. “We need clear, unambiguous rules to come through the legislative rule-making process — rules based on Wisconsin statute, not old WEC guidance. Having precision and clarity in our rules is the only way we can ensure every clerk in the state follows election law to the letter.”
Committee Chairman Sen. Steve Nass (R-Whitewater said he will convene the committee this week and “put a stop to this unlawful, overly-broad rule immediately,” LeMahieu said.