Wisconsin GOP Lawmakers Stop Rule Allowing Local Clerks to “Cure” Absentee Ballots

Republican lawmakers in the Wisconsin state legislature on Wednesday killed an “emergency rule” issued by the state Elections Commission that would have allowed local officials to correct mistakes on absentee ballots. The procedure, known as “curing,” was the latest skirmish between Republicans and Democrats over election security in the key battleground state.

The rule proposed by the Commission said that local election clerks would not be required to contact voters to cure ballots. They would be empowered to rely on their own judgment and available information to fill in missing information.

The legislature’s Joint Committee for Review of Administrative Rules (JCRAR) moved to eliminate the proposed curing rule. State Sen. Steve Nass (R) is the chair of the JCRAR and said the problem with the rule is not about the way clerks are authorized to cure ballots, but lies with the Election Commission’s decision to disregard applicable state law.

Nass said that the law is “very clear,” and provides that if a ballot is flawed a local clerk has only two choices. They can either send it back to the voter for correction or discard it and not count it. He said the Commission has attempted to expand the law, which they cannot do.

He explained that the JCRAR determined that any changes of the nature the Commission planned in their rule change could only be made by having the legislature amend the underlying state law.

Democrats complained about the rejection of the rule based not on the law but simply because some otherwise defective votes would not be counted.

State Sen. Chris Larson (D) argued that a “voter’s intent” should “supersede the legislature’s making of a law.” He complained that actual rules about ballot processing should not lead to a vote being laid aside.

Nass also pointed out that the state legislature had attempted to clear up absentee voting procedures earlier this year, but was blocked by Democrat Gov. Tony Evers. He said vetoes by Evers stopped two bills that would have provided greater clarity and specific definitions.

The JCRAR decision is not the end of the dispute about the curing of defective absentee ballots.

Shortly after the committee struck down the rule, Election Commissioner Ann Jacobs said that clerks can ignore that decision. She said in a post on Twitter, “Clerks CAN still fill in missing witness address info per WEC guidance issued in 2016.”

Nass then warned that “anyone that follows the WEC guidance could be exposing themselves to both civil and criminal liability for violating state law.”

A lawsuit is pending in Waukesha County state court that deals with the issues involving the powers of local election clerks. It is unknown if that case will be resolved before the Wisconsin primary election in August or the general election in November.