Three Dane County voters, backed by the Democratic Party of Wisconsin, filed a lawsuit Thursday seeking to force the Wisconsin Elections Commission to let absentee voters who have already returned their ballots spoil them and cast new ones if a preferred candidate drops out.
The suit, filed in Dane County Circuit Court, challenges guidance the bipartisan commission adopted July 9 by a 4-2 vote. That guidance clarifies state law permits ballot spoiling only for accidents or mistakes, such as marking errors or damaged ballots, and not because a candidate withdraws or a voter changes their mind after submitting a completed ballot.
Democrats argue the policy disenfranchises voters and violates statutes and the state constitution, especially after recent upheaval in the Democratic gubernatorial primary. Lt. Gov. Sara Rodriguez suspended her campaign July 17 amid a huge campaign finance scandal. Milwaukee County Executive David Crowley, who had earlier exited to endorse her, reentered the race the next day with Gov. Tony Evers’ support. More than 80,000 absentee ballots had already been returned statewide by midweek, with early in-person voting set to begin July 28 ahead of the Aug. 11 primary.
WEC Chairman Don Millis, a Republican appointee, rejected calls to reverse the guidance.
“The statute is pretty clear that accident or mistake is contemplated,” he said. “Once a ballot is validly returned, that’s it.”
State law is unambiguous on the limited circumstances under which an absentee voter may spoil a returned ballot and receive a replacement. Wisconsin statutes allow spoiling only for an accident or mistake such as a damaged ballot, a marking error, or an improperly completed witness certificate; not for a change of mind or a candidate’s withdrawal after the ballot has already been validly submitted to the clerk.
Once the completed ballot is returned, the voter’s choice is final; the law does not authorize a do-over simply because political developments later alter the field. Millis has repeatedly cited this plain statutory language, noting that the July guidance merely restates what the statutes have long required rather than inventing a new restriction.
The Democratic-backed plaintiffs seek a temporary injunction ordering clerks to permit replacements. With the primary less than three weeks away and tens of thousands of ballots already in hand, any court order would place local officials in a difficult position of scrambling to implement conflicting directives.
