Brown County judge rules against Green Bay in election observer lawsuit

A Brown County Circuit Court judge Wednesday ordered the city of Green Bay to give election observers more access to in-person absentee voting.

Judge Marc Hammer’s order gives observers access to the witness certification process and to the depositing of ballots into the ballot box.

The court order came in response to a lawsuit filed Tuesday on behalf of the Republican National Committee and four election observers who do not live in the city of Green Bay. While one of the plaintiffs’ mailing addresses is listed as Green Bay, the address is technically in the village of Bellevue.

The lawsuit alleges Green Bay City Clerk Celestine Jeffreys prohibited observers from viewing the entire in-person absentee voting process and comes as Republicans nationally have encouraged poll watching ahead of the midterm elections.

According to the lawsuit, Jeffreys did not let election observers in a public hallway where voters were filling out ballots, performing witness certification and depositing ballots.

“In responding to pleas from observers to allow them the ability to stand in the hallway to observe the voting process, Jeffreys responded that they will be kicked out if they observe in the hallway and that observers must talk to her legal department if they required further explanation,” the lawsuit said.

Election observers requested the court to issue a temporary restraining order and injunction that would allow them to watch the process.

After the hearing, the city provided additional areas of observation. In a statement, the city said the modifications help “preserve and protect the integrity of the in-person absentee voting process while protecting voter security and freedom.”

“The city made its plans for in-person absentee voting public, including rules and regulations for observers. Since the beginning of (in-person absentee voting), observers have been positioned inside the city clerk’s office within six feet of the counters where voters register or obtain their absentee ballots,” the statement said.

“Previously, broad requests for unrestricted access to observe every aspect of the voting process have been received, but granting those requests likely would have resulted in intrusions upon voters actively casting their ballots, which is not legally observable under state law,” it continued.

At Wednesday’s hearing, Green Bay Assistant City Attorney Lindsay Mather said the city changed its early in-person absentee voting process from the August primary because it expected higher turnout for the general election.

During the primary, voters returned completed ballots to the clerk’s office for witness certification and deposit, rather than utilizing a space in the hallway, the lawsuit said.

In court, Mather argued the complaint should have been handled by the Wisconsin Elections Commission.

“There is an entity — the Wisconsin Elections Commission — that is statutorily not only empowered but expected to follow the rules and to make decisions with respect to these issues,” she said. “And so, there’s a potential for your honor’s ruling to be akin to legislating from the bench and creating rules that don’t otherwise exist.”

Attorney Kurt Goehre, who represented the election observers, disagreed. He said the court was the appropriate venue to handle the complaint.

“As an administrative agency, there is no function, requirement or obligation that the Wisconsin Elections Commission address these types of complaints in any sort of timely fashion, which is why courts are allowed to do exactly what we’re requesting here,” Goehre said.

After lawyers for both sides failed to reach an agreement to avoid a court order, Hammer sided with election observers.

“There is a realistic probability that the plaintiffs would suffer injury without injunctive relief as to the issues that have been addressed today,” Hammer said. “In this instance, and on these issues alone, the court will find the public interest favors injunctive relief.”

The Green Bay lawsuit is the 75th election-related litigation the RNC has participated in this cycle.

RNC Chairwoman Ronna McDaniel issued a statement after Wednesday’s hearing, saying the court order will ensure Green Bay’s election officials will follow state law.

“Bipartisan poll watching is a constitutional right in Wisconsin, and now the Green Bay clerk will have to let them in the room to observe,” McDaniel said. “We are grateful the court granted a swift and decisive victory for Wisconsinites, and the RNC will continue to fight for election transparency across the country.”

The city of Green Bay said in a statement that it will continue working to ensure a positive voting experience and a free and fair election process.

“Today’s decision merely confirms the city’s ability to accommodate observers in accordance with state election law,” the city said.