Hi, folks.

Let’s say that two voters in two different municipalities cast absentee ballots, and witnesses for both absentee voters forget to write down their municipality name in the address slot. In both cases, clerks deem the ballots insufficient. 

In one case, the clerk tells the voter that the witness would need to add the missing information to the ballot for it to count. In the other case, the clerk doesn’t reach out to the voter, puts the ballot in the rejected pile, and that’s it.

Multiply that scenario by thousands of ballots and Wisconsin’s 1,850 municipal clerks, and that’s the current ballot curing landscape that the League of Women Voters in Wisconsin is challenging in court. 

The status quo — the fact that the validity of ballots often depends solely on whether a clerk is proactive — creates a due process issue that violates the Wisconsin Constitution, their lawsuit against the Wisconsin Elections Commission alleges.

The issue at hand is a state law that says “the clerk may return” a ballot to the voter if the absentee ballot certificate is missing necessary information. If that practice of contacting voters to cure ballots were required, rather than optional, the legal problem would go away, the league alleges. 

But if clerks’ current level of discretion creates legal issues, establishing a blanket, uniform rule to call voters over every insufficient ballot could create practical ones.

Here’s one extreme example: Imagine a batch of 1,000 ballots gets delivered to the polls in Milwaukee five minutes before the 8 p.m. deadline, and 20 of those ballots have missing information on the absentee certificate. 

Would an election official have five minutes to contact all of those voters?

Nina Beck, an attorney representing the league in the current case, said the parties in the case would likely have to contemplate situations like that.. She told me that first things first, a court needs to rule in their favor that the current statute is illegal. Then, the groups involved in the case would have to come together to reach an understanding of what an appropriate curing cutoff would be.

One of the barriers here, which isn’t present in quite a few other states, is that Wisconsin’s ballot deadline is 8 p.m. on Election Day, even for ballots that need to be cured. The only exception is for provisional ballots. Unless a court were to extend the deadline for curing ballots, everything would have to remain within that Election Day window.

More on this soon. For now, let me know what questions you have about elections in Wisconsin. You can reach me at [email protected] or by replying to this email. 

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