With just over one month until the Nov. 8 general election, a Waukesha County judge on Monday upheld his initial ruling that election officials cannot fix errors on absentee ballot witness certificates.
In a final judgment, Waukesha County Circuit Court Judge Michael J. Aprahamian prohibited the Wisconsin Elections Commission from “advising, guiding, instructing, publishing, or otherwise communicating information to Wisconsin municipal clerks and local elections officials that clerks or local election officials have the duty or ability to modify or add information to incomplete absentee ballot certifications.”
The ruling has led to confusion among election officials, with no consensus on whether, for example, they can count a ballot if the witness certificate is missing a ZIP code. State law does not specify what constitutes an address.
Aprahamian’s order also permanently prohibits the bipartisan elections commission from displaying or disseminating guidance stipulating that clerks can add missing information to absentee ballot witness certificates. Under the order, clerks can only return an incomplete ballot to the voter, who has the opportunity to correct the error or fill in the missing address information.
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Aprahamian ruled in early September against guidance issued in 2016 by the elections commission that had allowed clerks to fix errors on witness certificates — a process called ballot curing. Voters must have a witness sign a certificate, typically printed on the back of an absentee ballot envelope, for the ballot to be valid. The witness has to include his or her address on the certificate, but under the guidance, election officials were able to fill in missing or incorrect pieces such as the state or ZIP code.
The now-rescinded guidance first went into effect in 2016, but began receiving criticism from Republicans following the 2020 presidential election that saw President Joe Biden defeat former President Donald Trump by about 21,000 votes in the state.
A recount, court decisions and multiple reviews have affirmed the election’s results and found no evidence of widespread fraud.
The Republican Party of Waukesha County and three Waukesha County residents sued the elections commission in July. The Republican-controlled Legislature intervened on the plaintiffs’ behalf, while the Waukesha County Democratic Party and League of Women Voters of Wisconsin intervened in support of the elections commission.
There are two other pending lawsuits related to witness signature addresses filed last week in Dane County Circuit Court.
The League of Women Voters of Wisconsin sued the elections commission on Friday, arguing that election clerks should be able to accept absentee ballots with partial witness addresses. A similar lawsuit was filed earlier in the week by Rise Inc., which encourages students to vote.
In a court filing Friday, the League of Women Voters said Aprahamian’s ruling “threatens to unlawfully disenfranchise Wisconsin voters.”
“While WEC’s cure guidance remained in effect, clerks were empowered to resolve address omissions or defects to avoid ballot rejection,” the lawsuit states. “So, whether a witness address was ‘missing’ was a purely academic question. No longer. That question now holds the fate of numerous Wisconsin voters.”
The nonpartisan Legislative Audit Bureau last year reviewed 14,710 absentee ballot certificates in 29 municipalities and found that 1,022 certificates (6.9%) were missing parts of witness addresses, 15 (0.1%) did not have any witness address at all, eight (less than 0.1%) did not have a witness signature, and three (less than 0.1%) did not have a voter signature. At the time, clerks corrected 66 (about 0.4%) of those certificates.
Elections 101: Video series explains how elections are carried out in Wisconsin
The Wisconsin Elections Commission put together the following series of instructional videos and accompanying lesson plans for use in high school civics classes and the general public.
An overview of elections administration in Wisconsin.
Let's take a look at how we maintain security and integrity with all of our elections.
The ins-and-outs of voter processes like registering to vote and requesting a ballot to vote absentee.
See what it is like to go to the polls and vote.