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Legislature intervenes in ballot ‘curing’ lawsuit

By M.D. Kittle

MADISON — The Republican-controlled Legislature is asking a Waukesha County judge to be allowed to intervene in a lawsuit to stop Wisconsin Elections Commission-issued guidance allowing clerks to fill in missing information on absentee ballot envelopes.

The Legislature also filed for a temporary injunction to immediately block WEC from sending any further guidance on ballot curing to clerks. If the court sides with the Legislature, clerks would immediately be barred from curing absentee ballots.

In January, the Joint Committee for Review of Administrative Rules (JCRAR) sent the Elections Commission a letter to suspend its 2016 guidance expanding ballot curing. The letter questioned WEC’s statutory authority in issuing such guidance and directed the agency to submit a rule on ballot curing to the legislative committee if clarity in the existing law was necessary.

Curing became a point of contention in the hotly contested 2020 election after President Donald Trump’s campaign raised concerns about local election clerks filling in missing addresses and other information on absentee ballot envelopes. Emails also show a liberal activist offering to cure absentee ballots for clerks in Milwaukee and Green Bay. The activist was part of a network of liberal voting rights groups funded by Facebook founder Mark Zuckerberg.

In July, WEC submitted an emergency rule to the committee that was the same as the 2016 guidance, allowing clerks to continue curing ballots. JCRAR then suspended the rule. Ann Jacobs, a highly partisan Democrat on the six-member Elections Commission, publicly declared the agency would defy the Legislature, insisting that clerks “CAN still fill in missing witness address information per WEC guidance issued in 2016.”

The latest act of defiance by the unelected commissioners forced the Legislature to seek to intervene in the lawsuit.

As the Wisconsin Institute for Law & Liberty testified, the statue is clear; WEC’s guidance violates the meaning and spirit of the law.

“If a certificate (absentee ballot envelope) is missing the address of a witness, the ballot may not be counted,” the law states. And Wis. Stat. § 6.87(9) states: “If a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may return the ballot to the elector, inside the sealed envelope when an envelope is received, together with a new envelope if necessary, whenever time permits the elector to correct the defect and return the ballot within the period authorized…”

The law does not state that the clerk may personally make corrections or additions to the absentee ballot certificate.

In its motion to intervene, the Legislature claims it is protecting its interest in assuring a statute the body enacted and an official act of its rules committee are enforced. As the motion notes, WEC exceeded its authority in even issuing guidance on ballot curing. Beyond that, the Legislature, through its committee, has rejected that guidance.

“Lawless ballot curing cannot and will not be allowed to continue. We’re putting the full weight of the Legislature behind this lawsuit to shut down WEC’s defiant and flagrant abuse of the law,” said Senate Majority Leader Devin LeMahieu (R-Oostburg).

The Legislature’s motion to intervene follows a complaint last week against the city of Racine and its top election official for the city’s use of a mobile voting unit. With the appearance of a food truck, the “polling booth on wheels” has been used as a remote in-person absentee voting site. The complaint, filed by the Wisconsin Institute for Law & Liberty, charges the voting van violates state election law in part because it has only been sent to Democrat dominant parts of the city. Racine’s vehicle was funded by a grant from the Zuckerberg-seeded voter activist group.

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