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Wisconsin Elections Commission retracts ‘ballot spoiling’ guidance after appeals court loss

Election clerks no longer allowed to void previously submitted absentee ballots for voters asking to switch their votes

poll workers sort out early and absentee ballots at the Kenosha Municipal building on Election Day in Kenosha
In this Nov. 3, 2020 file photo, poll workers sort out early and absentee ballots at the Kenosha Municipal building on Election Day in Kenosha, Wis. Wisconsin Attorney General Josh Kaul asked a court to block subpoenas issued by an attorney hired by Republicans to lead an investigation into the 2020 presidential election that was won by President Joe Biden. Wong Maye/AP Photo

The Wisconsin Elections Commission has rescinded guidance used in 2016 and 2020 elections that allowed voters who already submitted absentee ballots to void them before election day and vote again.

The decision was spurred by an Oct. 6 decision by Waukesha County Circuit Court Judge Brad Schimel, a former Republican Wisconsin Attorney General. As part of a lawsuit, Schimel ruled voters who previously submitted absentee ballots could not switch their votes and ordered the commission to withdraw its August guidance.

The WEC and intervening groups like the Democratic National Committee, appealed the case, which temporarily halted Schimel’s orders. But on Thursday, a state appellate court refused to block Schimel’s ruling beyond 3 p.m. Friday, stating that it was unclear how defendants could prove they were harmed “because there is no indication that the order would favor any candidate or party in any way.”

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“The court’s order does not change what is on the ballot,” the order states. “Nor does it prevent a single voter—Democrat, Republican, or otherwise—from casting a ballot in the upcoming election. Thus, claims of confusion and disenfranchisement ring hollow.”

During an emergency meeting Friday, WEC commissioners voted unanimously to retract guidance for election clerks, issued in August regarding the practice known as “ballot spoiling.”

Commission member Mark Thomsen, a Democratic appointee, called it “a sad day.”

“Yeah, your vote will be counted,” said Thomsen of those who have already submitted absentee ballots. “That’s true. But if you decided you wanted to vote for somebody different, you know, you’re out of luck after three (o’clock) today.”

Commissioner Bob Spindell, a Republican appointee, disagreed.

“I think the ruling in this case by Judge Schimmel was absolutely correct,” said Spindell. “You vote once and that’s it. You don’t go back and change your mind 15 times.”

Commissioner Julie Glancey, another Democratic appointee to the board, pushed back on Spindell’s comparison of in-person and absentee voting.

“At a polling place, you have up to three chances to cast your ballot,” said Glancey.

The original lawsuit surrounding absentee ballot spoiling was filed by a voter in Brookfield, but has since gained the support of the conservative group Restoring Integrity and Trust in Elections, created by billionaire casino mogul and Republican billionaire Steve Wynn, Republican strategist Karl Rove and former U.S. Attorney General Bill Barr.

A statement from RITE emailed to WPR called the rejection by the appeals court “a victory for common sense and election integrity.”

“In Wisconsin, once a ballot is cast, it is cast,” said the statement. “It cannot be fished out of the ballot box to give a voter a second bite at the apple.”

A spokesperson for the WEC told WPR the commission does not believe the court orders regarding ballot spoiling will apply “retroactively and affect ballots that were spoiled and replaced before 3 p.m. on October 28, 2022.”