The League of Women Voters of Wisconsin filed a lawsuit Thursday against Wisconsin Elections Commission guidance that bars people who request an absentee ballot from casting an in-person ballot if the mail ballot will not arrive by the time polls close on Election Day. 

The lawsuit was filed as officials in Wisconsin, and the commission itself, have warned voters about potential delays in the mail system ahead of this year’s August and November elections. 

But commission guidance states that once voters mail their absentee ballots back to the clerk, they cannot be issued new ballots at the polls on Election Day. This means that if voters realize their ballots will not arrive in time after early in-person voting closes the Sunday before an election, they will not be able to vote. 

“Once a voter has placed their ballot in the mail, it is considered mailed,” the WEC guidance states. “They cannot be issued a new ballot at the polling place on Election Day, even if their absentee ballot will not be returned to the clerk’s office in time to be counted.”

The lawsuit seeks to allow voters who believe their ballots will not arrive to the clerk in time to go in person to cast a provisional ballot that would be set aside and only be counted if the initial ballot does not arrive by the deadline. 

Hundreds of voters did not have their votes counted during the state’s April elections because their ballots did not arrive in time. A WEC survey of clerks following the April election reported that hundreds of the state’s election officials believed delays in the mail had caused problems in the spring election. 

“Every voter in Wisconsin that puts an accurately requested absentee ballot in the mail on time expects their vote will be counted. Delays in mail delivery prevent that. It is time to have a remedy for these eligible voters,” Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, said. 

The League is represented in the lawsuit by Law Forward and the Fair Elections Center. The lawsuit argues that the commission understands the problem but is not taking advantage of an obvious solution to the potential mail delays. 

“The right to vote protects Wisconsinites from baseless disenfranchisement on Election Day. But WEC wants to turn these voters away. That’s just wrong,” Law Forward attorney Scott Thompson said. “We shouldn’t punish Wisconsin voters just because the mail is late. They must have the opportunity to vote on Election Day.”

U.S. Sen. Tammy Baldwin and Gov. Tony Evers sent a letter Thursday raising concerns about “severe delays” in the U.S. mail system threatening the delivery of absentee ballots during Wisconsin’s August and November elections. 

The letter to Postmaster General David Steiner and members of the USPS Board of Governors noted that many absentee ballots cast during the state’s April elections arrived to local clerks after Election Day and therefore went uncounted. The letter also pushes the board to reverse course on implementing President Donald Trump’s executive order to create a federal mail-in voting list that includes the personal information of absentee voters. 

Trump and Republicans have become increasingly hostile to mail-in voting in recent years — mostly due to unfounded complaints that they were the source of fraud that swung the 2020 presidential election to Joe Biden. 

Earlier this month, Evers also joined the governors of Illinois, California, Connecticut, Minnesota, New York, Pennsylvania, Rhode Island and Washington in writing a letter to the USPS leadership to oppose the Trump absentee voting order. 

The pair of Democrats noted that in 2024, 500,000 Wisconsin voters, 15% of all voters in the state, used mail-in ballots. Because Wisconsin is a swing state with especially close elections, they wrote, any delays “could very well tip the scales of the election.” 

“The Postal Service has a critical responsibility to ensure that election mail is handled with the urgency and reliability that voters, election officials, and the public rightly expect,” they wrote. “To meet this responsibility, USPS must address delays we saw in Wisconsin’s Spring Election and not move forward with the rule restricting vote by mail. Ensuring the timely delivery of election mail is essential to protecting every eligible Wisconsinite’s right to vote and maintaining public confidence in our elections. When ballots fail to arrive in time to be counted, voters are denied the opportunity to participate in our democracy through no fault of their own. These failures not only disenfranchise individual voters, but also erode trust in the reliability and fairness of our elections.”

They also noted that delays disproportionately affect rural voters in communities with fewer poll locations and absentee ballot drop boxes. 

Earlier this month, the Wisconsin Elections Commission released a list of best practices for absentee voting which included the recommendation that if voters are going to return their ballot by mail, it should be sent at least 10 days before the election. Ballots can also be returned directly to a voter’s municipal clerk’s office, to the voter’s polling place on Election Day or to an absentee ballot dropbox — in communities that use them. 

The Evers, Baldwin letter also notes that WEC sent a similar letter to the Postal Service leadership in May about the mail delays during the spring election. In that letter, the commission relayed the results of a survey of the state’s local election officials, which found that two-thirds of them reported problems with the mail. 

Wisconsin’s early in-person voting process also allows voters to request, fill out and return their ballots all at once at designated locations. For the August primary elections, early in-person voting begins July 28. For the November general election, early voting begins Oct. 30. 

Voters can request  absentee ballots sent to them by mail online at MyVote.WI.gov or by sending a letter or email to their local clerk that includes their full name, voting address, mailing address, the election in which they are voting and a copy of their photo ID.

The Wisconsin Elections Commission on Thursday ordered an investigation into Green Bay’s city clerk for accidentally sending some voters more than one absentee ballot during April’s spring election and for the upcoming August primary. 

During the spring election, duplicate absentee ballots were issued to at least 152 Green Bay voters. While the complaint about the first incident was pending, the clerk’s office mistakenly sent 244 extra ballots. 

Commissioners were very critical of the clerk, Celestine Jeffreys, for the repeated errors.  Democratic Commissioner Ann Jacobs said it was “unconscionable” that the same mistake could be made in consecutive elections. 

“I am really concerned that, first of all, it happened once, but then for the exact same error to happen a second time weeks later is unconscionable,” Jacobs said. “And we need, I think, as an organization, to investigate exactly what was going on in Green Bay, so we know how this error happened, other than just saying, ‘Well, somebody printed them twice.’ Well, yes, duh, but we need to know why they were able to print it twice, why this wasn’t caught, why it is that they mailed out 300 more ballots, apparently, give or take.” 

A complaint about the duplicate spring ballots was made by the Republican Party of Wisconsin. In its own analysis, the commission’s staff found probable cause that the clerk’s office had violated state election law by sending the duplicate ballots and recommended that the commission order her to “conform her conduct to the law and put procedures in place to prevent issuing duplicate ballots.” The commission decided to investigate the cause of the problem first before taking further action. 

The repeated mistakes were made as the election administration of Wisconsin’s largest cities, including Green Bay, has been under intense scrutiny since the emergence of Republican complaints about the 2020 election. 

Green Bay was one of the main targets of Republican complaints of “Zuckerbucks” — grants to support election administration costs during the COVID-19 pandemic from a nonprofit supported by Facebook founder Mark Zuckerberg that largely went to Democratic-voting cities. The city was also pulled into a drawn-out legal battle stemming from the actions of Republican officials and a local election conspiracy theorist following the 2020 election. 

During Thursday’s meeting, commissioners noted that the state’s WisVote system has safeguards to prevent this exact error, but that Green Bay used a different process. Wisconsin’s election system gives local election clerks a lot of discretion to decide how elections will be managed. 

“If a municipality is using the WisVote system to print the stickers that go on the outgoing envelopes to voters containing their ballots, if you use that system, you cannot do a duplicate generation of those stickers,” Jacobs said. “You can’t do it. We put in a failsafe, and that failsafe is there specifically to prevent this from happening. And I want everyone to know that that system works and has worked and does work. Where this has happened more than once is where communities have elected to not use the WisVote system to generate their own stickers.” 

Election betting 

The commission on Thursday also discussed a state law that makes it illegal to gamble on the results of a Wisconsin election and vote in that election. The issue has become increasingly relevant due to the rise of prediction markets such as Kalshi and Polymarket. 

Earlier this year, Jacobs warned on social media that betting on an election could result in people losing their right to vote — though there remained questions of how the law could be enforced. 

Commission staff said that the law would be enforced similarly to other rules about voter eligibility, which largely rely on complaints being made to the commission by witnesses. 

“Many voters may not know that they risk making themselves ineligible to vote in Wisconsin if they place a bet on a prediction market for an election-dependent outcome, such as which candidate will win the nomination or the office sought at an election,” WEC attorney Angela O’Brien Sharpe said, noting a gambling voter could be charged with a felony. “If someone has cause to believe that a voter has placed a bet, that would be solved by the same type of challenge as the other voter qualifications. The challenger would initiate the qualification challenge process the same as they would for any qualification issue, the voter would then be asked under oath if they had made any bet or wager depending on the result of the election, and that process would follow the very specific steps that are outlined in our administrative code for how to administer those types of challenges.”

A federal judge on Thursday blocked major portions of President Donald Trump’s executive order restricting voting by mail, finding he had exceeded his constitutional authority.

The decision halts, at least until a nearly certain appeal is heard, efforts by the U.S. Postal Service to require states to submit the names of likely mail voters before it delivers ballots. It also stops the U.S. Department of Homeland Security from compiling lists of voting-age citizens in each state.

U.S. District Judge Indira Talwani, an appointee of President Barack Obama in Massachusetts, is the first judge to block the March 31 executive order. State and local election officials have raised concerns that its requirements would inject chaos into preparations for the November midterm elections.

Talwani ruled that Trump had asserted too much control over elections in several parts of the order as he directed federal officials to quickly take actions that he argues are needed to prevent noncitizen voting, which rarely occurs.

“The Constitution does not grant the President any specific powers over elections,” Talwani wrote.

Order overpowered states

The executive order directed Postmaster General David Steiner to put forward a rule requiring states, at least 90 days before a federal election, notify the Postal Service whether they intended to allow ballots to be sent through the mail. States would then have to submit to USPS a list of voters planning to vote by mail at least 60 days before the election.

Talwani wrote that the Postal Service lacks any authorization by Congress to put forward binding regulations on mail-in voting. The Constitution, she wrote, “reserves the power to determine voter eligibility to the States alone.” 

The executive order also required the Department of Homeland Security, with help from the Social Security Administration, to compile a list of voting-age U.S. citizens living in each state and then provide that information to state officials at least 60 days before each federal election. The order does not tell states how to use the data.

The list of citizens would be drawn from naturalization and Social Security records, according to the order. It would also include data from SAVE, a powerful computer program maintained by Homeland Security that verifies citizenship by checking names against information in federal databases. 

The executive order pointed to no relevant constitutional or legal authority supporting the compilation of the citizenship lists, Talwani wrote. Trump “lacks any authority to compile voter lists for each State,” she wrote.

A day before the decision, Steiner told a U.S. Senate committee that a proposed Postal Service rule to implement the executive order would lead to non-delivery of ballots in states that don’t provide lists of anticipated mail voters — a position condemned by Democrats.

“Today’s decision is a very significant victory for free and fair elections and a defeat for Donald Trump’s vile efforts to make it harder for people to vote,” Senate Minority Leader Chuck Schumer, a New York Democrat, said in a statement.

“Once again, the courts have reaffirmed that Trump’s efforts to subvert the election are patently unconstitutional.”

White House spokesperson Abigail Jackson said in a statement that the Trump administration remains confident the executive order will be implemented by the November election.

“The entire Trump Administration will continue lawfully enacting the agenda President Trump was elected to enact – which includes the safety and security of American elections,” Jackson said.

Latest setback

Trump has suffered a series of setbacks in recent days in his efforts to influence the administration of state-run elections. 

A federal appeals court on Wednesday ruled that the Department of Justice wasn’t entitled to state voter rolls. Senators also continues to rebuff the president’s attempts to pressure them into passing the SAVE America Act, which would require voters to show documents proving their citizenship.

Talwani’s decision came in a lawsuit brought by Democratic state attorneys general. It is the second major district court ruling over the executive order, after a judge in Washington, D.C., declined to stop the order because the Trump administration hadn’t taken enough action to implement it.

Under Thursday’s decision, federal officials must notify their employees within a week that sweeping portions of the executive order are void.

And on Monday, a judge blocked the use of SAVE to search for noncitizen voters.