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WEC’s invalid guidance

By M.D. Kittle 

Wisconsin Spotlight | Oct. 6, 2022

MADISON — A Waukesha County Judge recently ruled Wisconsin Elections Commission decisions lacking a 4-2 majority vote by the six-member commission are invalid. That means election law “guidance” crafted by WEC staff isn’t legal or binding.

Yet, many of those edicts remain on WEC’s website. 

Judge Michael Aprahamian last month made clear that the state Elections Commission’s authority is in its board members, not its bureaucrats. The judge found that the plaintiffs in the lawsuit against WEC have “substantial likelihood of success.”

Neither WEC Administrator Meagan Wolfe, Assistant Administrator Richard Rydecki nor any of the agency’s staffers can provide legal advice to municipal clerks or local elections officials on Wisconsin election law without a two-thirds (4-2) vote of the commission, the judge stated.

“The unique nature and structure of the Commission, comprised of political appointments to provide equal representation for the two major political parties, confirms the need for all the guidance and advice to have the approval of the Commission, which is to say, from the affirmative vote of at least two-thirds of the members,” Aprahamian said.

Directly in question is the challenge to WEC’s original guidance in 2020 on special voting deputies. The commission’s decision locked SVDs out of nursing homes through the brunt of the pandemic. In the wake of the decision, several allegations of court-declared incompetent individuals voting or being manipulated into voting have surfaced.

Aprahamian denied the request for a temporary restraining order as moot because the COVID-era guidance on SPDs is no longer in effect, but the broader issue stands: WEC staff can’t dictate the rules.

But a review of WEC’s website shows staff-issued guidance remains. The directives include instructions to clerks on how to count write-in votes for governor and lieutenant governor, guidance on end-of-night procedures and results reporting for a high turnout election, and staff’s counsel on re-voting” by absentee voters who change their minds after submitting their ballot.

Election law experts tell Empower Wisconsin, WEC’s website should be scrubbed of guidance and policies not approved by a two-thirds vote of the commission.

“That includes everything that wasn’t voted on by a 4-2 vote, every letter Meagan Wolfe ever put out in the way of guidance to clerks,” one attorney said.

The potentially invalid guidance documents go back years, including the corrupt years of the Government Accountability Board, WEC’s predecessor and instigator of the unconstitutional John Doe investigations.

Riley Vetterkind, spokesman for the Elections Commission, declined to comment on the ongoing legal matter.

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