Judge’s order halts Wisconsin absentee ballots from being voided and recast

Former Republican Attorney General Brad Schimel, now a judge, sides with conservative group in lawsuit

Poll workers sort out early and absentee ballots at the Kenosha Municipal building.
Poll workers sort out early and absentee ballots at the Kenosha Municipal building on Election Day in Kenosha, Wis., on Nov. 3, 2020. Wong Maye-E/AP Photo

A Waukesha County judge is barring voters from canceling previously submitted absentee ballots in order to switch their votes.

The order from Circuit Court Judge Brad Schimel, a former Republican Wisconsin Attorney General, takes effect by 4 p.m. Friday.

Schimel sided with a group called Restoring Trust and Integrity in Elections, which had requested a temporary injunction to block guidance from Wisconsin’s Elections Commission on the practice known as ballot spoiling. That’s when someone asks a local clerk to destroy a previously submitted ballot before Election Day, so the voter can cast a new one. Reasons could include the ballot being damaged, the voter realizing they made a mistake when filling out bubbles or the voter simply changing their minds, according to the Elections Commission.

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During Wisconsin’s primary election this August, for instance, a Republican gubernatorial candidate and several Democratic candidates for U.S. Senate dropped out of the race before Election Day, though their names remained on the ballot, and Wisconsin’s Elections Commission made it clear that people who already submitted absentee votes on behalf of dropout candidates could ask to spoil those ballots and re-cast their votes.

Schimel’s decision orders the Elections Commission to withdraw its ballot spoiling guidance until the court can issue a further decision. His order comes as Wisconsin voters are already submitting absentee ballots ahead of a general election Nov. 8, in which Democratic Gov. Tony Evers is trying to hold on to his seat against Republican Tim Michels, and Republican U.S. Sen. Ron Johnson is fending off a challenge from Democrat and Lt. Gov. Mandela Barnes.

The Democratic National Committee, which had intervened in the lawsuit on the behalf of the bipartisan Elections Commission, vowed Thursday to appeal the Circuit Court ruling.

“We disagree with this decision to restrict voting access in Wisconsin, particularly as voters in the state have already begun to cast their ballots,” the DNC said in a statement.

Restoring Trust and Integrity in Elections called this week’s ruling “another major victory for Wisconsin voters.” The group’s lawsuit, filed on behalf of a Brookfield, Wisconsin voter, argues that the ballot spoiling guidance violates state law while fostering confusion among voters and increasing opportunities for fraud.

“WEC’s unlawful guidance destroys voter confidence and taints the integrity of Wisconsin’s elections,” RITE’s president and CEO Derek Lyons said in a statement. “Once a vote is cast, it is cast. Period.”

The group — founded this summer by prominent Republicans, including strategist Karl Rove and former U.S. Attorney General William Barr — has launched election-related lawsuits in other swing states, including Pennsylvania.

Wisconsin’s Department of Justice, which is defending the Elections Commission in the lawsuit, did not immediately provide comment on the ruling Thursday.

Last month, the Elections Commission withdrew guidance allowing clerks to fill in missing information on absentee ballot witness certificates after another Waukesha County judge ruled that practice is illegal. Unless a higher court rules otherwise, that decision could potentially lead to thousands of absentee ballots being rejected this November because of incomplete information on ballot envelopes.