White v. Wisconsin Elections Commission
Case Summary
The Republican Party of Waukesha County filed a state court lawsuit challenging the Wisconsin Elections Commission’s guidance that municipal election clerks were allowed, in certain circumstances, to correct or fill in missing address information on absentee ballot witness certifications instead of returning them to the voter for correction. In response, LWV Wisconsin moved to intervene on behalf of voters.
Wisconsin allows no-excuse absentee voting. To cast an absentee ballot, a voter must sign the return envelope. The return envelope must also be signed by a witness. The witness is also required to fill in their address and certify under penalty of perjury that they are a US citizen. Wisconsin law states that if the return envelope is missing a witness address, the ballot may not be counted.
In 2016 and 2020, the Wisconsin Elections Commission issued guidance to clarify what constituted an "address" for the purposes of the witness address requirement. The 2016 guidance stated that municipal election clerks were required to help remedy errors with addresses. Clerks were not required to contact voters to correct their witness’ address information if they had (1) personal knowledge that the witness lived at the same address as the voter, (2) personally knew the witness and their address (3) the voter’s address appeared on the return envelope and the witness indicated they lived at the same address and/or (4) the clerk had databases to determine the witness' address. Similarly, in 2020 the commission directed municipal clerks to try and correct errors on absentee ballot return envelopes before Election Day through “reliable information (personal knowledge, voter registration information, a phone call with the voter or witness)” and did not require witnesses to appear in person to add a missing address.
On July 12, 2022, three Wisconsin voters and the Republican Party of Waukesha County filed a lawsuit in the circuit court of Waukesha County, asserting the commission’s guidance was illegal under the text of Wisconsin law. The plaintiffs requested the court declare the 2016 and 2020 guidance contradicted Wisconsin laws, forbid election clerks from altering or adding information to correct a witness certification, and declare that the only way to fix insufficient witness certifications was to return the ballot and envelope to the voter for corrections.
On August 15, 2022, the League of Women Voters of Wisconsin moved to intervene in the case, citing its mission of defending voters and its members against having their absentee ballots disqualified for immaterial errors or omissions, as well as the significant disruption to its voter education efforts that would result from overturning the commission’s guidance. The court granted the motion to intervene on September 2, 2022.
On October 3, 2022, the court granted the plaintiffs’ requested relief, forbidding the commission from issuing guidance allowing municipal clerks to alter or correct information on insufficient absentee ballot witness certifications. The court’s order further forbade the commission from issuing guidance that contradicted Wisconsin statute 6.87(9), which directed clerks to return absentee ballots with insufficient witness certifications to voters for correction.
LWV Wisconsin was represented in this matter by Law Forward and the Fair Elections Center.
LWV Timeline
Plaintiffs file lawsuit
Three individual plaintiffs and the Waukesha County Republican Party file a state court lawsuit, alleging guidance from the Wisconsin Elections Commission allowing municipal clerks to remedy missing or incorrect address information on witness certifications for absentee ballots violated state law.
LWV of Wisconsin moves to intervene
LWV of Wisconsin moves to intervene in the case, citing its mission of defending voters and its members against having their absentee ballots disqualified for immaterial errors or omissions, as well as the disruption to its voter education efforts that overturning the commission’s guidance would cause.
Court grants LWV of Wisconsin’s motion to intervene
Court grants plaintiffs’ temporary injunction
The court issues a temporary injunction, forbidding the commission from issuing guidance allowing election clerks to add or correct absentee ballot witness certifications, or any guidance that contradicts the procedure set forth in Wis. Stat. § 6.87(9).
Court issues final order
The court's final order forbids the commission from issuing guidance allowing municipal clerks to alter or correct information on insufficient witness absentee ballot witness certifications.