Wisconsin Democrats, supported by the state party, have asked a Dane County judge to force election officials to allow voters who have already returned absentee ballots to spoil them and submit new ones after their preferred candidates dropped out of the August 11 gubernatorial primary.
The lawsuit, filed July 23 by three Dane County voters with support from the Democratic Party of Wisconsin, targets guidance issued by the Wisconsin Elections Commission on July 9. That guidance states that once an absentee ballot has been returned to a municipal clerk, it cannot be spoiled and reissued simply because a voter changes their mind or a candidate leaves the race.
Commission Chairman Don Millis, a Republican appointee, has defended the guidance as consistent with state law. “The statute is pretty clear that accident or mistake is contemplated,” Millis said. It allows replacement of a spoiled ballot — one with an error — not a change of vote after the ballot has been properly submitted.
Absentee ballots were distributed weeks before several candidates withdrew. Lt. Gov. Sara Rodriguez, previously a leading contender, dropped out amid a campaign finance scandal. Milwaukee County Executive David Crowley, who had earlier withdrawn and endorsed Rodriguez, reentered the race with support from Gov. Tony Evers. Missy Hughes had also left the race earlier.
By late last week, nearly 91,000 absentee ballots had already been returned. Democratic Party Chairman Devin Remiker cautioned that “at least 80,000 Wisconsinites have returned mail ballots and some could be locked into a vote they can’t fix.”
The Republican National Committee intervened in the case, opposing what it describes as a “do-over” scheme. “Democrats want a do-over when they don’t like the outcome,” RNC Chairman Joe Gruters said. “From hand-selecting candidates to rewriting election rules, it’s the same old playbook. Once a voter legally casts a ballot, it’s final. The RNC is intervening to defend Wisconsin’s commonsense safeguards and keep the rules the same for everyone.”
In a statement, the RNC noted that Wisconsin law allows voters to replace damaged or spoiled absentee ballots before submission, but not to change a vote after it has been cast. The committee argued that permitting ballot do-overs would create confusion, weaken election safeguards, and increase the risk of fraud.
Commissioners Break Ranks
Two Democratic members of the Wisconsin Elections Commission, Ann Jacobs and Mark Thomsen, are seeking to join the lawsuit in support of the plaintiffs, breaking with the commission’s official position. Jacobs posted on X that the commission “decided to change the rules in the middle of an election” and that she had voted against the guidance.
Thomsen argued that the guidance “unlawfully treats absentee voters worse than voters who cast their ballots on Election Day,” asserting equal protection violations since Election Day voters can spoil ballots and receive replacements.
The case is scheduled for a hearing in Dane County Circuit Court. The primary is less than three weeks away.
Rules Matter
Wisconsin’s rules on absentee ballot spoiling have been the subject of litigation for years. A 2022 court ruling restricted the practice, and subsequent procedural changes reopened the debate. The commission’s July guidance reaffirmed that a returned ballot is final unless spoiled by accident or mistake.
Democrats argue the guidance reverses longstanding practice and disenfranchises voters whose candidates exited the race. Republicans counter that changing the rules after tens of thousands of ballots have been cast, and following the withdrawal of several Democratic candidates, is itself disruptive.
The RNC’s intervention presents the lawsuit as part of a broader pattern in which Democrats seek to change procedures in order to get their preferred candidate elected. The committee maintains that Wisconsin law is clear: a cast ballot is final.
