RALEIGH, NORTH CAROLINA - SEPTEMBER 17: Absentee ballots are prepared to be mailed at the Wake County Board of Elections on September 17, 2024 in Raleigh, North Carolina. North Carolina will send out absentee ballots to military and overseas citizens by September 20. Other absentee ballots will be sent by September 24 to voters who requested ballots by mail. Early voting begins October 17. (Photo by Allison Joyce/Getty Images)
A Dane County judge on Wednesday rejected a request from Democratic voters to allow people to “spoil” and re-cast their absentee ballots for any reason.
Under state law, voters can spoil ballots that are damaged or if they believe they made a mistake in filling out the ballot. Earlier this month, the Wisconsin Elections Commission voted 4-2 to publish guidance stating that the process wasn’t available to people who simply wished to change their vote.
The Democratic voters argued the guidance should be thrown out to accommodate people who may have already cast a vote in this year’s August primaries before their preferred candidate dropped out. The ballot for the Democratic primary for governor includes two candidates, Lt. Gov. Sara Rodriguez and former Wisconsin Economic Development Corporation CEO Missy Hughes, whose names appear even though both have suspended their campaigns.
In a ruling Thursday, Judge David Conway rejected the injunction request from the voters, finding that “the unambiguous language of the statute does not allow a voter to spoil an absentee ballot after it is returned.”
Wisconsin election officials have reignited a legal battle over absentee voting with 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.
Three Democratic residents in Dane County on Thursday sued the Wisconsin Elections Commission over the guidance, which was adopted by the commission on July 9, calling it an unconstitutional violation of the state’s absentee voting laws. All three plaintiffs voted for a gubernatorial candidate who has since dropped out of the primary, and under the commission guidance they cannot change their votes, even though those votes have not yet been counted. The legality of spoiling ballots just to change a vote has long been disputed.
The lawsuit says WEC’s guidance means the plaintiffs “will all be disenfranchised from meaningfully participating in this August election unless this Court steps in.”
Thursday’s lawsuit is the latest development in a legal dispute that began in 2022 and was reopened by an appeals court decision earlier this year. It was filed two days after the Democratic Party of Wisconsin sent the commission a letter urging it to rescind the guidance. The letter raised many of the same concerns later cited in the suit, including that the policy could disenfranchise voters and was adopted after early voting in the primary had already begun.
The July 9 guideline for clerks reverses the Wisconsin Elections 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 after clerks had already mailed ballots for the Aug. 11 primary and, notably, after multiple candidates in the crowded Democratic gubernatorial race dropped their bids.
“It seems to me exceedingly likely that this is something that people are going to keep fighting about,” Jeff Mandell, founder of the liberal law firm Law Forward, said ahead of the lawsuit.
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 an 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.’”
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 Shur at ashur@votebeat.org.
If the 2026 Democratic primary for Wisconsin governor seems large, 2018 certainly had it beat.
That year, 10 names were on the Democratic primary ballot, plus an 11th write-in candidate, according to results of the 2018 partisan primary kept by the Wisconsin Elections Commission.
Two Republican candidates and two additional write-ins appeared on the 2018 GOP primary ballot.
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