With the April 6 election looming, a Waukesha businessman has asked the state Supreme Court to bar local clerks from filling in missing information on absentee ballot envelopes.
But filing deadlines the justices issued make it unlikely the court will rule in time to have an impact on spring races.
Jere Fabick, a GOP donor who has filed several actions with the high court on pandemic issues, also wants the court to prevent local clerks from using drop boxes to collect absentee ballots and to issue an explicit declaration preventing ballot harvesting.
Former President Trump included similar arguments in his unsuccessful suits to overturn the Wisconsin election results, but was rebuffed. The state Supreme Court in its 4-3 ruling rejecting his suit as untimely didn’t weigh in on the merits of Trump’s claims, which included clerks filling in missing information.
But in a concurring opinion, conservative Justice Brian Hagedorn wrote state law is silent on what makes a witness address sufficient on an absentee ballot.
Fabick’s suit also argues the Legislature didn’t expressly allow clerks to fill in missing information or the use of drop boxes. Thus, it argues the Elections Commission and some clerks have exceeded their authority under Wisconsin law.
Several unsuccessful lawsuits seeking to overturn Wisconsin’s election results also argued the commission had exceeded its authority.
“This Court has an opportunity to resolve the pressing legal questions and set the record straight as to who may enact the laws governing the State’s elections: is it the elected State Legislature in conjunction with the Governor?” the brief argues. “Or instead do the Wisconsin Elections Commission and local election officials have free rein to shape Wisconsin’s electoral procedures in any which way they will?”
An Elections Commission spokesman said the agency doesn’t comment on pending litigation.
The commission contends there is no explicit ban on ballot harvesting in state law and in 2019 asked the state Legislature to clarify the statutes, but lawmakers didn’t act on the request. Last year, the conservative Wisconsin Institute for Law & Liberty asked the commission for an explicit ban on the practice. But commissioners deadlocked 3-3 on the request.
Fabick’s lawsuit noted the commission provided guidance nearly a year ago that “A family member or another person may also return the ballot on behalf of the voter.”
Fabick asked the justices to take the case directly rather than making it go through lower courts first. The suit argues the request is urgent because clerks were required to put absentee ballots in the mail by yesterday for those voters with an active request on file. Early, in-person voting is also slated to begin March 23.
But the court ordered the Elections Commission and other defendants to file an electronic response by March 30. Those seeking to file non-party briefs face a April 1 deadline, which is five days before the spring election.
Three conservative justices — Rebecca Bradley, Pat Roggensack and Annette Ziegler — dissented on part of today’s order, indicating they would prefer an expedited process.
Read the motion.
Read the brief.
Read the court order on the briefing schedule.
