Wisconsin election officials may reignite a legal battle over absentee voting with a July guidance stating that voters cannot void a returned absentee ballot and cast a new one, even if Election Day is weeks away or the candidate they supported has dropped out. It’s the latest development in a legal dispute that began in 2022 and was reopened by an appeals court decision earlier this year.
The new guideline for clerks, adopted by the Wisconsin Elections Commission earlier this month, reverses the commission’s previous position and Attorney General Josh Kaul’s legal arguments on the agency’s behalf that voters should be allowed to replace absentee ballots they have already returned as long as they comply with statutory deadlines.
The WEC spent years arguing in court in favor of that broader definition of ballot spoiling, but its latest guidance effectively restores the rule imposed by a 2022 court ruling that banned the practice.
The commission adopted the guidance on July 9, after clerks had already mailed ballots for the August 11 primary and, notably, after multiple candidates in the crowded Democratic gubernatorial race dropped their bids.
“It is hard to imagine given the circumstances — the timing and what’s happening in the primary election — that we’ve heard the last of this,” said Jeff Mandell, founder of the liberal law firm Law Forward. “It seems to me exceedingly likely that this is something that people are going to keep fighting about.”
He added that the timing of the guidance was unusual: Typically courts are skeptical of efforts to change rules close to an election. Some absentee voters in this election cycle probably cast their ballots under the assumption that they could spoil their ballot and cast a new one if their preferred candidate dropped out or they just wanted to change their vote, Mandell said.
Even if the commission’s guidance is in line with Wisconsin law, it creates a clear discrepancy between in-person Election Day and absentee voters, said Sam Liebert, the Wisconsin state director of All Voting is Local and a former municipal clerk.
Election Day voters can receive up to three ballots at the polls if they make a mistake, he pointed out. On the other hand, he said, absentee voters now get no second chance once they return their ballots, even if Election Day hasn’t arrived yet.
“The inconsistency is hard to ignore,” he said, and it presents a policy question for the Legislature — or maybe the courts.
Spoiling controversy blew up amid similar political dynamics in the 2022 primary
The WEC’s more permissive August 2022 guidance on ballot spoiling was prompted by similar dynamics as that of the present: highly contested primaries with candidates dropping out throughout the race and at the last minute.
In September 2022, GOP voter Nancy Kormanik sued over that guidance allowing absentee ballot spoiling, arguing that clerks can only reissue an absentee ballot if a voter returns their absentee ballot in a “spoiled or damaged” condition. Voiding a ballot that’s already been submitted and getting a new one over a voter’s own mistake or a candidate dropping out didn’t fall under that category, she argued.
Kaul, the state’s Democratic attorney general, saw the issue differently. A few different laws allow ballot spoiling, he said in a court filing, and “none requires the elector to explain how or why the ballot is ‘spoiled.’”
Siding with Kormanik, a lower court banned the practice of spoiling absentee ballots in October.
The ban stood until February of this year, when an appeals court vacated the lower court ruling. But the new ruling wasn’t on the merits of the case. Rather, it came because the court said Kormanik didn’t properly serve documents to a legislative committee at the start of the suit.
After the February ruling, clerks sought the commission’s updated guidance about how to deal with spoiling. They didn’t receive it in time for the Wisconsin Supreme Court election in April, and some municipalities offered instructions on how to spoil ballots. But with midterm primaries coming up — and particularly as rumors of gubernatorial candidates dropping out swirled — clerks were especially eager to know if the commission planned to stand by its earlier interpretation of the law and allow absentee ballot spoiling again.
On July 9, the commission provided an answer: It voted 4-2 that absentee ballot spoiling is prohibited after a voter returns an absentee ballot. Democratic commissioner Carrie Riepl, a former clerk, voted with the three Republicans in favor of the guidance. Democratic commissioners Mark Thomsen and Ann Jacobs voted against it.
The guidance came just one day after Democratic gubernatorial candidate David Crowley, the Milwaukee County executive, dropped out of the race and endorsed Lt. Gov. Sara Rodriguez for governor. Just over a week later, Rodriguez dropped out of the race and Crowley reentered.
Over 36,000 Wisconsin voters had already returned ballots by the day the commission issued its guidance, commission data shows. Voters had returned nearly 68,000 ballots by the time Rodriguez dropped out.
At the July meeting, commission chair Don Millis, a Republican, argued that voters should only be able to void — or spoil — ballots before they return them to the clerk.
“Once you’ve turned your ballot in, that’s it,” he said.
Meanwhile, Thomsen noted that in-person voters on Election Day can mark a ballot and receive a replacement ballot if they make an error, as long as the first ballot isn’t tabulated yet. But under the new guidance, an absentee voter couldn’t spoil a returned ballot even if it’s weeks from being tabulated.
“Why are we treating people that use mail differently than me if I show up?” he said.
On one hand, voters can argue that the inability to spoil ballots effectively disenfranchises them if they vote for a candidate that has since dropped out, said Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative.
On the other hand, she said, others can cite the Wisconsin law calling absentee voting a privilege, not a right, and argue that voters who exercise that right accept some risk in casting an absentee vote that can’t be taken back.
“The issue of whether ballot spoiling is or is not allowed under Wisconsin statutes hasn’t been definitively resolved,” she said.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
