A Dane County judge will hear arguments tomorrow on how many minor errors a ballot can have, and still be counted.
The lawsuit comes in the wake of ambiguity over ballot curing – that’s when a clerk fills in minor information – like state, zip code, or other obvious address information – on an absentee ballot.
This lawsuit, filed by the League of Women Voters against the state elections commission, comes after a Waukesha County judge ruled last month that clerks filling in that minor information is illegal under state law.
Scott McDonell is the Dane County Clerk. He says while it’s not too common to do, clerks have been expecting to lose the ability to cure ballots.
“In this August election, there was only a handful of examples out of 130,000 ballots where you could tell a clerk had made an addition of an address, like ‘Madison’ for example, on the envelope. Part of that was because they knew there could be a ruling on prohibiting that, so they worked overtime to try and get the voter to do it themselves,” McDonell says.
Ballot curing was first allowed in 2016, and was in effect during the 2020 presidential election. During that election, it faced heavy scrutiny from lawyers representing the Trump campaign.
Despite the scrutiny, the state Supreme Court ruled that ballot curing was acceptable during the 2020 presidential election.
And following last month’s ruling by a Waukesha judge, the state elections commission reversed course, telling clerks not to cure ballots or to count ballots missing some information.
McDonell says that these new guidelines have been frustrating for clerks.
“It’s been frustrating because it’s pretty easy to see who voted, and who the witness was. This is really just an attempt to suppress the vote because they think it is a partisan advantage. Democrats are voting more by mail so now there is this outrage that is, frankly, manufactured,” McDonell says.
So this lawsuit, filed at the end of September, asks the court to outline how much information can be missing from a ballot in order to still be counted – without clerks needing to actually fix, or cure, any information at all.
Dan Lenz is an attorney with Law Forward, who is representing the League of Women Voters. He says clarification is the heart of the issue.
‘What (state) statute tells us is that you cannot count a ballot if the address is missing, so what this lawsuit is about is what missing means, at least first and foremost. We think it means what it says, if the address is actually missing, you can’t count the ballot, but if there is a partial address, you can,” Lenz says.
According to the state elections commission, an address needs to include a street number, a street name, and municipality.
The lawsuit also points to federal law that says that a ballot cannot be disqualified for trivial, inconsequential errors that don’t have anything to do with their actual qualifications to vote.
Lenz says that this carries over to witness information on absentee ballots. The lawsuit argues that, if a witness lives in the same place as the voter, drawing arrows or indicating the same address as the voter is enough for a clerk to count a vote.
The Republican-led State Legislature has also gotten involved in the lawsuit. Earlier this year, a Republican-controlled legislative rules committee suspended the elections commission’s rule allowing clerks to cure ballots. After that ruling, the elections commission then issued a nonbinding guidance informing clerks that they could cure ballots. That’s the guidance that was eventually banned last month.
Lenz says that they’re getting involved to give their own interpretation of what is needed on absentee ballots.
“They think that address always means those three things, and that if any of those three things are missing, then the ballot should not be counted, and should either be returned to the voter, or just not counted on election day,” Lenz says.
Attorneys representing the state elections commission did not respond to WORT’s request for comment by airtime. Attorneys representing the State Legislature declined to comment.
This is not the first lawsuit filed against the state election commission over missing or impartial information on ballots, or clerk’s ability to correct that information. Just one day before the League of Women Voters lawsuit was filed, RISE, a nationwide nonprofit disability rights advocacy group, filed a lawsuit calling for clerks to be able to accept ballots with partial address information.
That case, also filed in Dane County, has a conference scheduled for Monday morning.
Meanwhile, with the fall election less than four weeks away, the state elections commission punted on issuing guidance to election workers for handling poll observers on Election Day. The Wisconsin Elections Commission deadlocked in a partisan vote earlier this week.
Across the country, far-right activists have been training and recruiting people to work as poll observers in the upcoming midterm elections, according to a report from Reuters. These poll workers are being trained by the thousands by 2020 presidential election conspiracists who claim that the 2020 election was stolen.
The 2022 Midterm Election will take place on November 8.
Photo courtesy: Tiffany Tertipes / UNSPLASH