A Marinette County judge on Friday slapped a temporary restraining order on the Wisconsin Elections Commission in a lawsuit alleging the election regulator puts Badger State voters in the untenable position of committing election fraud or opting not to cast an absentee ballot.
The litigation is the latest in a long line of complaints against a dysfunctional elections commission and its embattled administrator, an agency that has had trouble following Wisconsin election law over its tumultuous existence. WEC’s latest controversial decision could prove costly to voters and taxpayers alike.
Judge James Morrison issued the temporary restraining order, enjoining WEC from requiring that Wisconsin’s approximately 1,900 local election clerks use suspect absentee ballot envelopes while the court deliberates on the merits of the complaint.
The lawsuit was brought on behalf of a Wisconsin voter by Attorneys Kevin Scott and Daniel Eastman.
The complaint alleges that in approving new ballot envelopes recommended by WEC staff, the commission violated Wisconsin election law. If used, the envelopes “would cause voters to falsely certify that the ballot envelope itself is an original or a copy of the ballot request generated through MyVote when it is not in any way.”
“By forcing people to falsely certify that the return envelope itself is a copy of a completely different document, WEC created a situation where people who requested absentee ballots through MyVote were either committing election fraud by making a false statement in conjunction with voting a ballot, or were forced to not vote absentee — a Hobson’s choice,” Scott said in comments to The Federalist.
It would appear the six feckless commissioners — three Democrats and three Republicans — again took questionable advice from the agency attorneys.
‘Foment Election Fraud’
In a case earlier this year in Ozaukee County, a voter challenged the commission’s legal authority to operate MyVote, an online portal for voters to request absentee ballots. WEC argued that all requests made through the website are “email” requests, an allowable method of requesting an absentee ballot under Wisconsin election law.
WEC officials submitted sworn testimony stating that when an elector seeks an absentee ballot through MyVote the “request” for the ballot is a form generated by the system once the individual completes the online process. The argument is a stretch, to be sure, but Ozaukee County Judge Steven Cain bought it. Cain held that all requests made through MyVote were “email” requests, and allowable under the statute. The plaintiff is appealing that ruling.
But the allowance seems to have created a snag for WEC. If an applicant requests an absentee ballot by email, Wisconsin statutes require the elector to include “in the envelope” a copy of the “request” for the ballot “bearing an original signature.”
WEC, according to the lawsuit, provided no guidance indicating any of that. More so, while the Ozaukee County case was proceeding, WEC created the new, color-coded absentee ballot return envelopes. Agency officials designated the envelopes as “Forms EL-122,” and required election clerks to use them. The envelopes contained a new requirement that applicants certify under penalty of law that they requested the ballot and that the EL-122 is “an original or a copy of” the “request.”
“This language found in the new EL-122 ran directly contrary to the sworn testimony provided in the [Ozaukee County] case upon which Judge Cain relied,” Scott said. And it opened up the Hobson’s choice to hundreds of thousands of electors who prefer voting by absentee ballot.
While voting is a constitutional right, voting by absentee ballot is a “privilege exercised wholly outside the traditional safeguards of the polling place,” state law asserts. Accordingly, absentee voting must be carefully regulated to prevent the potential for fraud or abuse. Ballots cast in violation of the law cannot be counted. The lawsuit argues the state regulator in charge of enforcing Wisconsin’s election law is demanding clerks and voters use a “form” that is a contravention of the law.
“… WEC has approved the use of new absentee ballot return envelopes that exacerbate and foment election fraud — as defined by Wisconsin Statutes — by coercing a voter returning an absentee ballot requested through MyVote to falsely certify that the envelope itself is a ‘copy’ of the absentee ballot request,” the complaint states. “The new WEC envelope is not a replacement for a signed copy of the ballot request to be included ‘in the envelope’ in which the ballot is returned as required by section 6.87(4).”
“The new envelope is an inducement to commit voter fraud.”
‘Prevent Mistakes’
In an apparent move to convince the Ozaukee County judge of its position on MyVote, the Elections Commission approved the design of the new “Absentee Certificate Envelope” forms in August, according to the complaint. WEC alerted the public in a press release titled “Absentee Envelopes Get an Upgrade.” The new-and-improved envelopes “will provide voters with a more user-friendly way to vote absentee in upcoming elections,” the press release heralded. Some clerks claimed the new envelopes would “prevent mistakes,” according to a sympathetic story by Wisconsin Public Radio.
Applauding the redesign was Claire Woodall (Claire Woodall-Vogg at the time). Milwaukee’s former shady election administrator was a key player in Wisconsin’s 2020 Zuckerbucks scandal, and her lieutenant was convicted of misconduct in office and fraud for using the MyVote system to send fake absentee ballots. One of the ballots was delivered to State Rep. Janel Brandtjen, R-Menomonee Falls, who as chairwoman of the Assembly’s elections committee investigated the many irregularities and election law infractions surrounding the 2020 presidential election.
Milwaukee Mayor Cavalier Johnson recently relieved Woodall of her duties.
‘Height of Irony’
Not noted in the lawsuit is the fact that WEC used $600,000 in a nearly $1.2 million U.S. Election Assistance Commission HAVA (Help America Vote Act) grant for the new absentee ballot envelopes. The grant funds were designated for “election security” funding. States were required to provide the federal commission with a “program narrative” describing how the federal grant and required matching funds would be spent. WEC claimed the “certificate envelope performs several functions — each essential … to the integrity of the wider electoral process. A successful transition to the new design is therefore in the interest of all participants.”
At a March 3, 2023, meeting, the commissioners approved the grant request, and on April 28 they adopted a timeline for the envelope redesign and directed staff to come up with a final design for approval. Under a subgrant program, WEC would distribute the federal funds for local election offices to purchase the new envelopes. The clerks would have to enter into a memorandum of understanding with WEC.
The commission on multiple occasions communicated that clerks were required to use the new envelopes in all subsequent elections.
“I think it’s the height of irony that federal election security funds given to WEC are being utilized to coerce Wisconsin voters into making false statements in regard to voting,” Scott said. “And there are serious concerns about whether these funds were used properly under EAC [Election Assistance Commission].”
The lawsuit appears to be another self-induced wound by a “bipartisan” state elections regulator that has run into all kinds of legal entanglements since its creation eight years ago. WEC has been at the center of scores of election integrity lawsuits, criticized by conservatives for its loose interpretations of Wisconsin election law — and outright violating it.
From allowing the use of unlawful voter registration forms to invalid guidance on curing absentee ballot envelopes to endorsing the illegal use of absentee ballot drop boxes, the election commission has repeatedly failed to abide by the laws it is charged to enforce.
Meagan Wolfe, the commission’s top bureaucrat, has been effectively squatting in the office since September, when the Republican-controlled State Senate tried in vain to fire her. Impeachment efforts and a bill to abolish the commission have gone nowhere.
“This is a real problem,” Eastman said. “It’s a real problem when an administrator is consistently violating the law. No other state agency has this problem.”
“And the commission didn’t step in and supervise her. They just let her go,” the attorney added.
A spokesman for WEC did not return The Federalist’s request for comment.
Attorneys for the plaintiff in the ballot envelope lawsuit want the court to quickly rule on a permanent injunction against WEC’s use of the envelope. They fear WEC, which is seeking a change of venue, will try to “run out the clock,” ultimately arguing that it would be too close to Wisconsin’s August primary election to change the allegedly illegal ballot envelope.