The Republican-led Wisconsin Legislature took legal action on Thursday seeking to stop local clerks from filling in missing information on absentee ballot envelopes — a process referred to as ballot curing.
The Legislature, represented by independent counsel, filed a motion to intervene in a lawsuit brought against the Wisconsin Elections Commission last month by three voters and the Republican Party of Waukesha County.
White v. WEC seeks a declaration that clerks may not fill in missing information without contacting the voter who returned it.
“Lawless ballot curing cannot and will not be allowed to continue,” said Senate Majority Leader Devin LeMahieu, R-Oostburg, in a statement. “We’re putting the full weight of the Legislature behind this lawsuit to shut down WEC’s defiant and flagrant abuse of the law.”
Under Wisconsin law, absentee ballots must be submitted with a witness’ signature and address. WEC issued unanimously approved guidance in 2016 allowing clerks to complete missing information without contacting an absentee voter “if clerks are reasonably able to discern any missing information from outside sources” — for example, if the clerk knows the voter and their address personally, or the clerk is able to verify the witness or voter's address on their own.
The commission’s guidance doesn’t carry the force of law, but it provides support for the state’s 1,850 municipal clerks and 72 county clerks who administer elections.
Clerks have operated under WEC’s absentee ballot guidance since 2016, but it was subjected to additional scrutiny in elections administered after the arrival of the COVID-19 pandemic.
Last year, the Legislature's Joint Committee for Review of Administrative Rules instructed WEC to either scrap the guidance or establish it through the state’s emergency rule process. The commission voted 4-2 in January to implement the guidance through an emergency rule — which put it under JCRAR’s jurisdiction to strike down. JCRAR did that last month.
Although the emergency rule was suspended, WEC’s 2016 guidance has remained in place. The commission deadlocked on a motion to rescind that guidance last week.
In addition to seeking to intervene in the lawsuit, the Legislature is asking a Waukesha County judge to issue a temporary injunction immediately blocking ballot curing.
Attorneys for the Legislature argue the institution “always suffers ‘a substantial and irreparable harm of the first magnitude’ when administrative agencies purport to nullify the Legislature’s laws.”
“WEC’s conduct also harms the Legislature by threatening vital procedural safeguards designed to protect the separation of powers ‘inherent in the Wisconsin Constitution,’” the complaint alleges. In addition, the complaint argues, WEC’s conduct “harms the Legislature’s compelling interest in ‘preserving the integrity of its election process.’”
A WEC spokesperson declined to comment on ongoing litigation.
