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Wisconsin Spotlight | Sept. 16, 2022

MADISON — The Wisconsin Elections Commission has been hit with another lawsuit alleging it failed to follow election law — this time for WEC’s illegal use of the National Mail Voter Registration Form.

The Wisconsin Institute for Law & Liberty (WILL) filed the lawsuit Thursday in Waukesha County Circuit Court on behalf of Rick Braun, a registered Wisconsin voter and taxpayer. It urges the court to declare the use of this voter registration form in Wisconsin illegal and order WEC to withdraw its approval of the form.

While the voter registration form asks for information on race and political party, it fails to request statutorily-required information such as whether the individual has a felony conviction, according to the complaint. State law requires WEC to  “design the form to obtain from each elector information as to . . . whether the elector has been convicted of a felony for which he or she has not been pardoned, and if so, whether the elector is incarcerated, or on parole, probation, or extended supervision.”

Statute also requires that voter registration forms obtain information as to “whether the elector has resided within the ward or election district for the number of consecutive days specified” in the law. WEC’s form doesn’t request that information, either, according to the lawsuit.

“Wisconsin law is abundantly clear on the required content of voter registration forms in Wisconsin, yet WEC has somehow approved the use of a form that fails to meet those requirements,” said Anthony LoCoco, deputy counsel at the Milwaukee-based public interest law firm. “It is a shame that, once again, a voter has to go to court simply to ensure that WEC follows the Legislature’s lawful commands.”

WEC’s Election Manual states its form is approved for voter registration in Wisconsin. While most states accept the form, made available by the United States Election Assistance Commission, Wisconsin is not required to use it because the state allows voters to register on Election Day. More so, the registration form doesn’t request information required by state law—such as information relating to residency and criminal record, among others. And because it requests information —  relating to race and political party — not authorized by state statute, WEC must engage in rulemaking before approving these additional items.

As the lawsuit notes, WEC has both approved the legally insufficient form and allowed the additional items without engaging in rulemaking.

That’s a common theme for a state agency that has routinely defied state election law — from its “guidance” on “curing” or adding missing information to absentee ballot envelopes to illegally authorizing the use of ballot drop boxes.  Multiple courts have checked the rogue agency, including the state Supreme Court.

In July, WILL sent a letter warning WEC of the form’s illegal use in the state. Because the history of WEC’s approval of the voter registration form was unclear, WILL requested additional information relating to the process by which that approval occurred. To date, WEC has not identified when or by whom the form was approved for use in Wisconsin, according to WILL.

WEC declined to comment on the litigation.

The lawsuit argues that use of the form hinders uniformity and predictability around the administration of elections, and increases the risk of error.

“WEC does not have the power to set aside the policy decisions of the Wisconsin Legislature in this regard,” the lawsuit states.

State Sen. Duey Stroebel (R-Cedarburg) said he looked forward to seeing the commission’s defense for the “very concerning allegations.”

“In light of recent high-profile cases, such as Teigin v. WEC, where WEC was found to have acted in violation of state law, everyone should watch this challenge closely,” Stroebel said.

“While we need to allow the judicial process play out, the complaint appears to point to yet another example of WEC issuing guidance that contravenes state law,” the senator added. “Wisconsin law dictates the manner in which Wisconsin’s elections are to be administered, and it is very concerning this is, allegedly, something WEC overlooked when it decided to approve the use of the registration form at issue.”

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