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Court: Wisconsin Electors Cannot Change Their Ballots After Already Voting

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Wisconsin voters cannot cancel their already-submitted absentee ballot and vote again, a state judge ruled on Wednesday.

Writing for the Waukesha County Circuit Court, Judge Brad Schimel declared that the Wisconsin Elections Commission’s (WEC) guidance to municipal election clerks permitting voters to request that their absentee ballot be “spoiled” so they “may vote again” constituted a violation of state law.

“The court finds that the statutes governing the absentee voting process are generally unambiguous. The legislature clearly set forth what … the rules are, with one possible exception” listed under state law, Schimel wrote. “The August 1, 2022, memorandum [sent] to clerks and August 2, 2022, public press release both set forth information that is contrary to the statutes, and are illegal.”

Schimel further noted how Wisconsin law specifies that absentee voting is “not a right, but a privilege,” and existing statutes do not “authorize the scheme whereby a clerk spoils the ballot for the elector, at their request, and sends out a new blank ballot for a do-over.” He also clarified that in maintaining these laws, the legislature’s desire to guard against “potential fraud” is based upon the notion that “election fraud cannot be repaired” and “[o]nce it happens, people are disenfranchised by improperly cast votes.”

“A candidate will get votes improperly, and there is no way to adjust the vote count. … As noted, the rules relating to absentee balloting are strict and the consequences are particularly tough,” he wrote. “The point: WEC and all election clerks had better get it right, or voters will be disenfranchised. This court had better get it right, too.”

The lawsuit against WEC was brought by Restoring Integrity and Trust in Elections (RITE) on behalf of a Wisconsin voter in September 2022. As Victoria Marshall previously wrote in these pages, RITE contended that WEC’s guidance violated state law and “could create opportunities for fraud and confusion.” Schimel ultimately agreed, subsequently placing a temporary injunction on the guidance in October 2022.

Wednesday’s ruling makes that injunction permanent, with the court set to schedule a hearing “to hear from the parties their positions regarding the precise language” of the injunction and accompanying declaratory judgment prohibiting the distribution and use of the WEC’s unlawful guidance.


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