The Joint Committee for Review of Administrative Rules voted along party lines to suspend a Wisconsin Elections Commission rule that would’ve directed clerks on the steps they must take to fix missing or incorrect information on absentee ballot envelopes.
Still, agency attorneys believe the original guidance sent to clerks in 2016 telling them they were free to cure ballot envelopes without contacting voters first remains in effect, a spokesman said. That’s because the agency believes Wednesday’s vote only applies to the new guidance, not what was issued six years ago.
The committee co-chairs didn’t immediately respond to messages from WisPolitics.com seeking comment on the agency’s contention.
Ahead of Wednesday’s 6-4 committee vote, Co-chair Sen. Steve Nass, R-Whitewater, said there is no state law that gives WEC authority to tell clerks they can or cannot cure the ballot envelopes. He said the Legislature, not the administrative bodies it creates, has the legal authority to do that.
“That is left to the Legislature,” he said. “We cannot have other departments plugging in information that the department believes was left out by the Legislature. The Legislature must do that.”
Rep. Gary Hebl, D-Sun Prairie, argued the committee shouldn’t suspend WEC’s guidance because it offers clerks essential information on how to navigate complex legal issues such as this. He also worried suspending the rule would expose Wisconsin taxpayers to a litany of litigation over what exactly an address is and what state law means by allowing clerks to return ballots to voters to correct certificate information.
“This is a horrible mistake,” he said. “But it continues the road that the Republicans are going down to try to make elections questionable to try to provide litigation so that any time their candidate loses they can go into court and fight because they don’t have the votes.”
The commission in 2016 unanimously approved the guidance on curing absentee ballot envelopes with little fanfare. But Republicans have been looking to overturn that guidance since the 2020 election, when nearly 1.4 million absentee ballots were cast by mail. Some have argued the guidance exceeded the commission’s authority and absentee ballots with missing or incorrect information on the envelopes can only be cured by the voter to count.
Republicans hailed Wednesday’s move as reining in the Elections Commission from circumventing powers given to the body under the law.
But Ann Jacobs, an attorney and Dem appointee to the commission, said the committee’s action falls short of rescinding the original guidance the body gave clerks in 2016.
JCRAR had earlier directed the commission to rescind that 2016 guidance or turn it into a rule, which gives the Legislature oversight. The commission declined to rescind the guidance and go through the rules process.
Jacobs said the committee vote suspends that rule, which took effect earlier this month. But it doesn’t touch the original guidance.
“This is something where the intent of the WEC in 2016 was to allow properly requested, properly executed ballots to be cast by voters and not fail on account of an error by their witness,” Jacobs said.
Today’s committee vote also comes a little more than a week after a lawsuit was filed seeking to prohibit clerks from curing ballot envelopes.
Watch the JCRAR hearing: