Election workers count ballots at the Milwaukee Central Count location after the polls had closed for the evening on Nov. 3, 2020. (Eric Kleppe-Montenegro for Wisconsin Watch)
By Jack Kelly
Wisconsin Watch
Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team. Let’s get you prepared for the week.
Elections used to be about winning the hearts and minds of voters. These days, they’re increasingly about winning over judges.
Courts have become heavily involved in the administration of Wisconsin elections, something that will continue to play out in a Dane County courtroom on Tuesday.
In 2022, there were at least 13 lawsuits filed related to election administration, according to a tally from the University of Wisconsin Law School’s State Democracy Research Initiative. Some of that litigation resulted in changes to the way elections are conducted in Wisconsin, including outlawing the use of unstaffed absentee ballot drop boxes and barring election clerks from filling in missing information on absentee ballot envelopes.
In other recent instances, judges have allowed Meagan Wolfe, the state’s top election official, to keep her job, said the use of a mobile early voting van in Racine was illegal, decided and then two years later tossed out the boundaries of legislative districts and been asked to overturn the results of a presidential election.
Questions of election administration landing in court isn’t a new phenomenon, said Derek Clinger, a senior staff attorney with the University of Wisconsin Law School’s State Democracy Research Initiative. But there’s been an uptick in such cases since the 2000 presidential election, when a razor-thin margin in Florida “brought attention to the actual defects in how we run our elections.” The U.S. Supreme Court in Bush v. Gore halted a Florida recount because of time constraints, effectively awarding the presidency to George W. Bush.
One recent study, published in the Election Law Journal, found election litigation rates nationwide have almost tripled since the 2000 presidential election.
The Wisconsin Constitution, shown on display in the Capitol rotunda in Madison, has been amended nearly 150 times since the state’s founding in 1848. Republicans want to enshrine additional conservative policies in the founding document. (Coburn Dukehart / Wisconsin Watch)
Clinger pointed to research from two of his colleagues that shows that, while election litigation nationwide hit a peak in 2020, with 543 cases, it also remained high in 2022, when there were 407 lawsuits. In other words, a flurry of election year lawsuits might be the new normal.
Recent litigation has stemmed partly from legitimate bugs in election administration, but also efforts to gain a partisan electoral advantage by changing voting rules, Clinger said. Frivolous election-related lawsuits also have become more common, especially after the 2020 election.
Staunch partisanship has hampered lawmakers’ ability to find solutions for legitimate issues plaguing states’ election administration systems, Clinger said.
“Anywhere you’re going to have divided government, like Wisconsin, you’re going to have disagreements between the branches over what the election rules should be,” he said.
In the aftermath of the 2020 presidential election, Democratic Gov. Tony Evers vetoed, at least in part, at least seven bills that would affect election rules. As a result, Republicans have sought to enact certain changes by amending Wisconsin’s constitution.
The election administration litigation marathon continued earlier this month, when a Dane County judge ruled that the definition of address — for the purposes of a witness signature on an absentee ballot envelope — is “a place where a person or organization may be communicated with.” That means that as long as clerks can discern where the witness who signs an envelope lives, they can count the ballot.
Judge Ryan Nilsestuen, Evers’ former chief legal counsel, will hear arguments Tuesday on how to proceed in the lawsuit. Rise, Inc. and its attorneys from Elias Law Group, a Democratic-aligned election law firm, will ask the judge to require the Wisconsin Elections Commission to notify clerks across the state of the ruling and the court’s definition of “address,” according to a proposed order filed with the court.
Nilsestuen noted in his decision that the ruling was necessary because state law does not define “address” in this context, something lawmakers could remedy. The Legislature has approved a bill that would specify the elements of an address, among other things. Evers’ office did not respond to questions about whether he’ll sign the legislation.
Dane County Clerk Scott McDonell has expressed concerns that requiring specific information on the certificate is a ploy to allow more ballots to be thrown out.
McDonell told Wisconsin Watch last year that the point of the witness address is to be able to track down a witness and verify that the person did, in fact, witness someone sign a ballot certificate, “not to play a Mickey Mouse game of let’s see if we can kick this ballot out because we think it’s probably a Democratic ballot.”
Elias Law Group has also filed a federal lawsuit challenging the witness signature requirement. In that case, the plaintiffs argue requiring a witness signature violates a portion of the Voting Rights Act that prohibits requiring “any test or device” to vote. It cites how, after the Civil War, southern states used witness requirements to disenfranchise Black voters.
This story was originally published by Wisconsin Watch at wisconsinwatch.org.