MADISON, Wis. — Wisconsin voters who have already returned their absentee ballots could void those and request a new one under a lawsuit filed Thursday by three people supported by the state’s Democratic Party, which is going through a chaotic primary for governor.
The move would allow voters who have already cast their ballot for a candidate who has dropped out of the race to cast a new ballot. Lt. Gov. Sara Rodriguez dropped out last week, and a day later, Milwaukee County Executive David Crowley, who had bowed out on July 8, reentered the race.
Rodriguez’s name remains on the ballot, along with former state economic development director Missy Hughes, who dropped out in June.
The winner of the primary will advance to take on Republican U.S. Rep. Tom Tiffany, who has only token opposition in his party’s primary. Democratic Gov. Tony Evers is not seeking a third term, and his party hopes to keep the office and flip both chambers of the Legislature to gain full control of state government for the first time since 2010.
There is not much time for courts to act on the lawsuit before the Aug. 11 primary. The voters filed the lawsuit in Dane County Circuit Court, located in Wisconsin’s liberal capital city of Madison.
The lawsuit asks a judge to order the Wisconsin Elections Commission not to distribute its guidance to the roughly 2,000 clerks who run elections at the local level that says voters can’t request a new ballot. The commission voted on July 9 to issue the guidance.
Nearly 91,000 people have already returned their absentee ballots, according to the elections commission. As it stands now, any voter who cast their absentee ballot for Rodriguez or Hughes could not request a new ballot to vote for someone still in the race.
Without court action, “potentially thousands more Wisconsin voters” in addition to the three who filed the lawsuit “will be disenfranchised,” the complaint said.
The lawsuit argues that the commission’s position violates state law and the Wisconsin Constitution’s guarantees of the right to vote and equal protection under the law.
Spokespeople for the elections commission and the state Department of Justice, which would defend the commission in the lawsuit, did not immediately respond to requests for comment.
The rarely used practice, known as ballot spoiling, allows an absentee voter who has already submitted their ballot to request a new one and cancel the previously cast one. It was the subject of a 2022 lawsuit brought by a Republican group, where a Waukesha County judge agreed the elections commission must rescind its guidance allowing for spoiling of ballots.
However, a state appeals court put that on hold just weeks before the midterm election that fall.
Then in February, a state appeals court repealed the ruling, saying the lawsuit was not properly served. The appeals court did not address the merits of the case.
Despite that ruling, the elections commission voted 4-2 to prohibit voters who have already turned in their absentee ballot from getting a new one. One Democratic commissioner joined with three Republicans in voting in favor of the prohibition. Two Democrats voted against it.
