Absentee ballot spoiling ruling put on hold by Wisconsin appeals court

The appeals court granted the Wisconsin Elections Commission’s request for a temporary stay while the court decided whether to hear the appeal on the practice known as ballot spoiling.

Associated Press

October 11, 2022

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The arms of a seated person use a pen to mark an absentee ballot envelop on the surface of a folding table, with stacks of additional envelopes on the tabletop and another election worker conducting the same work at an adjacent table with multiple stacks of envelopes.

Election workers process absentee ballots at an Appleton polling place on Nov. 3, 2020. (Credit: PBS Wisconsin)

AP News

By Scott Bauer, Associated Press

MADISON, Wis. (AP) — A Wisconsin appeals court put on hold a lower court’s ruling from Oct. 6 prohibiting voters from canceling their original absentee ballot and casting a new one, blocking at least temporarily the order sought by a conservative group founded by prominent Republicans.

The appeals court granted the Wisconsin Elections Commission’s request for a temporary stay on Oct. 10 while the court decided whether to hear the appeal on the practice known as ballot spoiling. The appeals court gave both sides until noon on Oct. 12 to submit arguments.

The legal fight comes as Wisconsin voters are returning absentee ballots for the Nov. 8 election. To date, just short of 110,000 absentee ballots have been returned, just over one quarter of the nearly 401,000 that were requested, according to the elections commission.

Democratic Gov. Tony Evers and Republican U.S. Sen. Ron Johnson are both on the ballot in tight races.

The order from the appeals court came as the elections commission was in closed session of an emergency meeting on Oct. 10 called in part to react to the court ruling.

The order from Waukesha County Circuit Judge Brad Schimel, a former Republican attorney general, required the elections commission to inform municipal clerks and local election officials by 7 p.m. on Oct. 10 that its guidance on ballot spoiling issued Aug. 1 had been withdrawn. Schimel also forbid the commission from issuing any future guidance related to ballot spoiling that is not allowed under the law.

Restoring Integrity and Trust in Elections filed the lawsuit in September. The group was created in July by former U.S. Attorney General William Barr, longtime Republican strategist Karl Rove, GOP donor Steve Wynn and others. It has also filed election-related lawsuits in the battleground states of Arizona and Pennsylvania.

Ballot spoiling got more attention in Wisconsin during the August primary after a Republican candidate for governor and three top Democratic candidates for U.S. Senate dropped out of the races, but their names were still on the ballots. The elections commission made clear then that voters who had cast their ballots for one of them absentee could spoil it and vote again for someone still in the race.

RITE argued that the practice in Wisconsin is both against the law and creates additional opportunities for fraud and confusion.

The Democratic National Committee joined the bipartisan Wisconsin Elections Commission in fighting the lawsuit.

Wisconsin’s elections commission and its guidance became a target after Donald Trump narrowly lost Wisconsin in 2020, an outcome that’s withstood numerous lawsuits, two partial recounts, a nonpartisan audit and partisan reviews.

A judge ruled in September that commission guidance allowing election clerks to fill in missing information on a witness certification for absentee ballots was illegal and must be rescinded. Two other lawsuits are pending seeking orders on what constitutes enough of an address for an absentee ballot to be accepted.

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