Judge rules election clerks can accept absentee ballots missing parts of witness address
MADISON – A Dane County judge on Tuesday ruled Wisconsin election clerks may accept absentee ballots that are missing parts of witnesses' addresses as long as they can discern from the available information how to reach the witness.
Dane County Circuit Judge Ryan Nilsestuen's decision granted a request filed in September 2022 by a Madison voter and Rise Inc., a liberal group that seeks to mobilize young voters, to overhaul the guidance the Wisconsin Elections Commission provides to local clerks on how to proceed when a witness' address is incomplete.
The ruling puts in place a uniform standard and is likely to result in fewer absentee ballots being rejected.
The decision could be appealed and eventually make its way up to the state Supreme Court, which in August flipped to an ideologically liberal majority for the first time in years. The Wisconsin Elections Commission and the city clerks for Madison, Green Bay and Racine were defendants. The Republican-led state Legislature entered the case as an intervenor seeking to have the complaint dismissed.
Nilsestuen previously served as chief legal counsel to Gov. Tony Evers' office. Evers appointed him to his post in December 2022 after Judge Juan B. Colás announced his retirement.
The lawsuit was filed shortly after a Waukesha County judge ruled clerks could not fill in missing address information on absentee ballot envelopes — a process known as ballot curing.
State law requires absentee ballots to be submitted with a witness’ signature and address.
Before a raft of lawsuits filed after the 2020 election challenging the process, clerks had followed guidance unanimously approved by WEC in 2016 allowing clerks to complete missing information without contacting an absentee voter “if clerks are reasonably able to discern any missing information from outside sources.”
The commission withdrew its guidance following Waukesha County Circuit Judge Michael Aprahamian's 2022 ruling.
Plaintiffs in the Dane County lawsuit argued that, because WEC withdrew its guidance and the Waukesha County ruling did not spell out what counts as a complete address, clerks lacked "operative" guidance from the state's elections agency.
State law "does not require that the address take any particular form," they argued, adding that the statutory requirement could be satisfied "so long as there is enough information for a clerk to determine a location where the witness may be communicated with."
In its September 2022 decision withdrawing its previous guidance, WEC determined that "address" must include a street name, street number and a municipality. The three clerks named in the lawsuit shared that their offices had definitions of "address" that differed from one another.
Nilsestuen agreed with the plaintiffs' interpretation of "address" as defined by the Merriam-Webster Dictionary: “a place where a person or organization may be communicated with.”
"The problem at hand could be resolved if the Legislature passed a bill to define 'address.' Instead, it is up to the judiciary to make sense of an undefined word used in a variety of different contexts in a convoluted and poorly written statute," Nilsestuen wrote. "The definition preferred by the WEC and the Legislature would establish a simple, bright line rule, but it does not fit within the broader statutory context. In fact, it directly conflicts with several other similar terms. Therefore, this definition is improper and, as used by the WEC, invalid."
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin judge sets standard for absentee ballot witness addresses
