Lawsuit could add additional steps to Wisconsin absentee voting

An absentee ballots for the April 7 election. (Photo by Henry Redman)

A lawsuit against the Wisconsin Elections Commission (WEC) could make Wisconsin’s absentee voting process more complicated while adding work for clerks just months before this year’s presidential election.

The lawsuit, filed in Marinette County court, asks that Judge James Morrison rule that voters who request an absentee ballot through MyVote, the state’s online voting portal, must also include a signed copy of their request when they send in their completed ballot in order for their vote to count.

State law allows for absentee ballot requests to be made by email. When a voter requests a ballot through MyVote, the system fills out a ballot request form and sends it by email to the voter’s municipal clerk.

The lawsuit was brought by Amberg resident Thomas Oldenburg. Oldenburg’s attorneys have previously been involved in attacks on the state’s election systems. One, Kevin Scott, represented former Supreme Court Justice Michael Gableman in a case seeking to jail the mayors of Madison and Green Bay. The other attorney, Daniel Eastman, asked a federal judge to overturn Wisconsin’s 2020 election results.

In addition to the added step in requesting and returning an absentee ballot online, the lawsuit asks that Morrison prevent clerks from sending out absentee ballot envelopes that use a design recently approved by the WEC.

The first part of the lawsuit is based on a section of the absentee statutes that states voters don’t need to provide a signature when making an absentee request electronically but they “shall return with the voted ballot a copy of the request bearing an original signature of the elector.” The lawsuit argues that unless a voter prints out the form created by MyVote when they make the request, their vote shouldn’t count.

The suit states that this step would give municipal clerks “assurance” that the ballot is being returned by the qualified voter who requested it.

Morrison has previously ruled against the WEC, deciding last month to issue a temporary injunction that prohibits Marinette County’s municipal clerks from using the WEC’s redesigned absentee ballot envelope.

The envelope redesign was approved by the commission last year with the aim of having the same envelope meet the statutory criteria for people voting absentee in-person and by mail. The lawsuit claims that the envelopes should be banned because they include a line that states “I requested this ballot and this is the original or a copy of that request.”

The lawsuit argues that the envelope is not the original or a copy of the ballot request so voters are being asked to lie when they fill out the form.

In a response filed last week, the WEC urged Morrison to dismiss the lawsuit, stating the requested relief “would risk disenfranchising tens or even hundreds of thousands of Wisconsin voters in upcoming elections,” which would be “a stunningly undemocratic result.”

The commission also adds that Oldenburg doesn’t have legal standing to bring a lawsuit over a “quibble with one line of language on a WEC form” while requesting massive changes to the state’s absentee system just before municipal clerks’ June 27 deadline to begin mailing ballots for the August primary elections.

Mike Haas, the Dane County Clerk and former administrator of the WEC, told Wisconsin Watch that the lawsuit is part of a trend in which people are using the judicial system to attack Wisconsin’s elections over technicalities, saying the litigation “seems to be part of an ongoing effort to make what are now technical requirements into substantive hurdles for absentee voters.”

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