Waukesha County Judge Denies Stay Of Order Barring Clerks From Correcting Errors Of Witness Addresses On Absentee Ballot Certificates

By Henry Redman, Wisconsin Examiner

September 14, 2022

On Tuesday, a Waukesha County judge denied a motion requesting a stay of his order last week barring the practice of municipal clerks correcting errors of witness addresses on absentee ballot certificates. In response to that order, the Wisconsin Elections Commission (WEC) had voted 4-1 to withdraw its 2016 and 2020 guidance to clerks on the issue.

Wisconsin state law requires that voters casting an absentee ballot have someone else witness them filling the ballot out and then provide a signature and their address to certify that the witness did so. In 2016, the commission issued guidance stating that clerks, using reliable information, could fill in missing portions of the address such as a zip code or municipality.

Last week, in a lawsuit brought by Waukesha County voters, the Waukesha County Republican party and the Republican-controlled Legislature, Waukesha County Judge Michael Aprahamian ruled that the guidance, plus similar guidance issued in 2020, is contrary to the law.

In a hearing Tuesday morning, the Waukesha County Democratic Party, the League of Women Voters of Wisconsin and the WEC argued that the order should be stayed pending an appeal. Aprahamian ruled that issuing a stay would cause irreparable harm to the Legislature and the voters who brought the lawsuit.

In its meeting Tuesday afternoon, the WEC — down to five members because of an excused absence from Democratic commissioner Mark Thomsen — argued over whether or not Aprahamian’s order required it to “withdraw” the guidance or just remove the two guidance documents from its website and stop providing the advice to clerks.

The two remaining Democrats argued for not officially withdrawing the guidance, saying the court order didn’t specifically include that requirement.

“What my position is, is this Court has ruled [the guidance] is invalid and contrary to law, that will be our public statement accordingly,” Democratic commissioner Ann Jacobs said. “However, there’s going to be appeals on this and he may be incorrect. We have had judges change their minds on various parts of this. So what it does is it leaves the possibility that a subsequent court disagrees with his position and in which case the guidance exists and I suppose would be resurrected. Until that happens I agree the guidance is not in effect because it has been declared invalid and contrary to law. It’s not in effect, but we have not been ordered to undo it.”

“Laws stay on the books all the time, that are invalid and contrary to law,” she continued. “Witness our 1849 abortion law, which has stayed on the books for 170 years, but it was contrary to law under rulings of the Supreme Court, and now it’s back. So that happens all the time. So what I’m saying is, I don’t think our guidance is wrong. I don’t think we should vote to withdraw it. I think we should follow the court order and direct staff to do so.”

Commission chair Don Millis, who voted to approve the guidance at issue when he was on the body for the first time in 2016, said he has changed his mind and no longer believes that clerks should be able to correct ballots, but also that the WEC shouldn’t be “too cute” with court orders and that doing so would draw unnecessary attacks from the commission’s Republican critics.

“It’s no secret that the commission has been a lightning rod for criticism from lots of people,” Millis, a Republican, said. “And it seems to me that if we’re not going to withdraw the guidance, it’s like a death wish for the commission. I mean, there are folks out there who are on my side of the aisle, who want to keep the commission as it’s constituted and there’s going to be an arm wrestling, certainly on my side about how the commission will continue and whether it continues in the same form. And if we continue to, in my mind, thumb our nose at courts when it suits certain members, that’s going to count against us. And it’s unlikely that those folks who want to keep the commission are going to have the support to do it. And to me, it’s a mistake.”

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