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Wisconsin judge bars election clerks from fixing absentee ballot witness certificates

By Joe Kelly, Courthouse News Service | September 7, 2022

WAUKESHA, Wis. (CN) — A Wisconsin judge on Wednesday ruled that guidance the state elections commission gave to clerks allowing them to fix errors on an absentee ballot envelope's witness certificate was unlawful and preliminarily gave it one week to take the guidance back.

Saying that “the state has a compelling interest in preserving the integrity of the electoral process,” Waukesha County Circuit Court Judge Michael Aprahamian declared state law does not allow curing witness certificates, prohibited the Wisconsin Elections Commission from advising clerks they could do so, and gave the WEC until Sept. 14 to notify clerks its guidance on the matter is invalid and contrary to law.

Though the practice has been allowed without major issue since 2016, it has been in Republicans' crosshairs since more than 1.9 million absentee ballots were cast in the Badger State during the 2020 election, which resulted in Donald Trump’s narrow 21,000-vote loss to Joe Biden in the battleground. Wednesday’s decision is a victory in their recent concerted efforts to restrict all kinds of absentee voting protocols.

The underlying lawsuit was filed in Waukesha County Circuit Court in July by the Republican Party of Waukesha County and three taxpayers, who claimed the practice of adding or altering information on witness certificates is not allowed under state law.

The WEC — a six-member bipartisan board of commissioners appointed by state officials who then appoint an administrator for state Senate approval — in October 2016 issued a guidance memo saying a complete witness address on a certificate must contain a street number, street name and name of municipality. The commission gave clerks some options for corrective action if some information is missing, including adding a missing municipality or ZIP code.

The WEC reissued an updated version of its guidance four years later, and Republicans unsuccessfully challenged the practice and many others right after the 2020 election in a longshot lawsuit before the Wisconsin Supreme Court based on Trump’s false assertion that widespread fraud robbed him of victory.

The Wisconsin Legislature’s Republican-controlled Joint Committee for Review of Administrative Rules used its powers earlier this year to force the WEC to promulgate a formal emergency rule of its witness certificate guidance. The committee then suspended the rule on July 20 once the WEC did so, but the commission issued a statement the following day indicating it would not immediately take up the committee’s suspension, so the practice stayed in place.

The Wisconsin Legislature, the Waukesha County Democratic Party and the League of Women Voters of Wisconsin all intervened in the legal action in August. All the parties were represented among the nine attorneys present during Wednesday’s three-hour injunction hearing at the Waukesha County Courthouse.

The plaintiffs’ attorneys, among them George Burnett and Kurt Goehre with the Conway, Olejniczak & Jerry firm in Green Bay, argued that state law allows only two options for clerks faced with a ballot with incomplete witness certificates: they can do nothing, or they can send the ballot back to the voter to rectify the problem.

“What is absent in the statute is any directive or suggestion that the clerk may fix the problem on their own, that they may supplement or add info to the ballot, that they may consult other sources, or that they must respond. These are things WEC’s guidance has concocted,” Burnett said.

Thomas Bellavia, an assistant attorney general representing the WEC, countered that the statutes are ambiguous as to whether fixing witness addresses is allowed, though it is clear ballots missing the addresses cannot be counted. He called it “an exaggeration” that the WEC and other state agencies can only do what the Legislature explicitly says they can, instead saying the WEC guidance gives clerks “a menu of options” to fix witness certificates.

The state’s attorney also charged that the legislative committee that blocked the emergency rule on the practice may have violated constitutional separations of powers by forcing the WEC to promulgate a rule on a policy the committee’s Republican leaders did not like only so they could say it’s unlawful and strike it down.

“It’s very peculiar, if you think about it, that [the committee] would direct an agency to create a rule that they know to be unlawful and contrary to statutes,” only so they could suspend it, Bellavia said.

Attorneys John Geise and Jon Sherman, respectively representing the Waukesha Democrats and The League of Women Voters from the Elias Law Group and Fair Elections Center in Washington, offered broad statutory interpretations allowing for curing witness certificates, said the Republicans’ lawsuit came too late because Wisconsin is already in the midst of midterm elections, and argued ending the practice would disenfranchise voters under federal law, including the U.S. Constitution and the Civil Rights Act.

Aprahamian was not swayed by arguments from the WEC or the intervenors sympathetic to them. The judge agreed with the plaintiffs that statutes only allow clerks to toss or send back absentee ballots with faulty witness certificates and said “Wisconsin law does not provide any other options for correcting the witness certificate.”

The judge went further than pure statutory interpretation, however, saying it is no wonder that people across the political spectrum have become “critical, cynical and suspicious” of elections when three unelected bureaucrats — referring to the three Democratic members of the WEC — can choose not to suspend an absentee voting practice a legislative committee has deemed illegal.

“If the right to vote is to have any meaning at all, elections must be conducted according to law,” Aprahamian said.

An attorney for the Waukesha Democrats immediately moved to stay the court’s ruling pending appeal, and Aprahamian scheduled a hearing on the motion for the morning of Tuesday, Sept. 13, one day before he initially said the WEC must officially tell clerks its guidance has been invalidated.

A review of the 2020 election conducted by Wisconsin’s Legislative Audit Bureau — one of three such investigations that found no outcome-affecting election fraud — found that just under 7% of around 14,000 witness certificates it reviewed had incomplete addresses, most of which were missing the ZIP code.

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