Here & Now

Bryna Godar on WEC's Ruling on 'Spoiling' Absentee Ballots

Frederica Freyberg:
A state Democratic Party backed lawsuit seeks to block the Wisconsin Elections Commission guidance that says voters who have returned their absentee ballots cannot request a new ballot if the candidate they voted for drops out. Candidates like Sarah Rodriguez and Missy Hughes, the elections commission ruled that only a ballot that a voter made a mistake on or is damaged and that they still have in their possession, can be spoiled and returned for a new one. But that guidance comes after a series of court cases that seem confusing. We turn to Bryna Godar, attorney with the State Democracy Research Initiative at the University of Wisconsin Law School, and thanks for being here.

Bryna Godar:
Thanks for having me.

Frederica Freyberg:
So I want to just back up a little bit to set those court cases up. It was a 2022 lawsuit where a Waukesha County judge ruled that the elections commission had to rescind its guidance, allowing for the spoiling of ballots. A state appeals court eventually repealed that ruling. So why don’t previous rules allowing casting a new absentee ballot up to three times for any reason prevail under the appeals court repeal of that ban?

Bryna Godar:
It’s because the appeals court ruling was not actually on the merits. So they overruled the lower court on this technical procedural issue and didn’t reach the merits of what the Wisconsin statute actually requires or allows. And so that means it’s still somewhat ambiguous. And so the Wisconsin Elections Commission is free to interpret the statute how it thinks is appropriate. And there are questions of why it switched from its prior interpretation, which is what was challenged in 2022 to what they issued this month. But essentially, we don’t have a court ruling providing certainty on what these statutes mean.

Frederica Freyberg:
How unusual is this circumstance with two candidates dropping out and one reentering, with absentee voting already underway, with like 90,000 ballots already cast.

Bryna Godar:
It is something that has come up before where candidates leave the race during this period after absentee ballots go out. And that is part of why proponents of ballot spoiling think that it should be allowed at this stage is because there are folks who have cast their absentee ballots, and their candidate might no longer be in the race.

Frederica Freyberg:
What about Elections Commission guidance to clerks being so close to the August 11th primary?

Bryna Godar:
That is another issue that the plaintiffs challenging this change are arguing and pointing to is that voters who return their ballots before that guidance thought that they could potentially then change their ballots after the fact if something developed in the campaigns and at least one voter in the case is saying that he would have held off on submitting his absentee ballot had he known that he couldn’t change it at a later date.

Frederica Freyberg:
How could the lawsuit on behalf of these three Democratic voters against that newer guidance upend the election?

Bryna Godar:
It could potentially change how clerks are having to handle absentee ballots in the lead up to the election. So it depends on how quickly a court acts in providing some definitive guidance on this issue.

Frederica Freyberg:
Would it end up then running its course all the way up to the state Supreme Court potentially?

Bryna Godar:
Potentially. I think this is a case where the courts would try to act in an expedited manner, and if it did get appealed to the state Supreme Court, they would try to have it act in an expedited way.

Frederica Freyberg:
It would have to be quite expedited.

Bryna Godar:
Yes, and so often you will see in something with this short of a timeline, the lower court ruling is the one that stands.

Frederica Freyberg:
So what do you make of the merits of the Democrats’ lawsuit?

Bryna Godar:
There are a few different claims that are being brought. One is statutory and a couple are constitutional. And the statutory issue is really reviving the issue that was litigated in the Kormanik case that we talked about at the beginning, of what do Wisconsin statutes actually allow? And they pretty clearly allow voters to get a replacement ballot if they mess up before returning it to clerks. There’s a lot less certainty on whether the statute allows you to do that. If you want to change your ballot after you’ve already returned it, and we still don’t have a clear issue or a clear ruling on that issue. The constitutional issues are then raising voting rights claims and equal protection claims and arguing that if you can’t change your ballot after a candidate drops out or you realize later that you’ve made a mistake, that means that you’re not having the opportunity to vote for the candidate of your choice, which is a really important part of the right to vote. And then the equal protection raises these issues related to the timing of the WEC guidance, and some voters potentially having the opportunity to spoil their ballots before that, but not those who cast their ballots later.

Frederica Freyberg:
So what do you make of the merits of the WEC guidance?

Bryna Godar:
So that guidance is rooted in a circuit court’s ruling on this issue in 2022. So even though that circuit court ruling no longer stands as having the force of law, there was a court that did decide that Wisconsin statutes don’t allow for this. And so WEC is looking to that, presumably in issuing this guidance to be in line with that court case.

Frederica Freyberg:
Pretty complicated.

Bryna Godar:
Yes.

Frederica Freyberg:
All right. Bryna Godar, thank you for spelling it out for us.

Bryna Godar:
Thank you.