A Waukesha County judge has ordered the Wisconsin Elections Commission to rescind its 2016 guidance directing clerks to fill in missing information on absentee ballot envelopes, ruling state law only allows voters to fix such errors.

Judge Michael Aprahamian said yesterday Wisconsin law clearly states only the witness is allowed to fill out or correct information in the witness information and address section on absentee ballot envelopes.

“If our system of laws is to have any meaning, it must mean that laws are binding and control over the unsupported whims of unelected bureaucrats periodically tasked with enforcing them,” he said.

Aprahamian issued a temporary restraining order and gave the commission five days to notify clerks that its 2016 guidance is no longer in effect and contrary to state law. He declined to address a request to stay his ruling, instead setting a Tuesday hearing on the issue.

The 2016 guidance was little noticed when it was first issued, but Republicans decried it after the 2020 election as nearly 2 million absentee ballots were cast in Wisconsin and Joe Biden defeated Donald Trump by less than 21,000 votes.

Earlier this year, the Joint Committee for Review of Administrative Rules directed the Elections Commission to put the 2016 guidance into a rule to give lawmakers oversight of the policy. The committee then voted 6-4 along party lines in July to suspend the emergency rule from 2020 that directed clerks on the steps they must take to fix missing or incorrect information on absentee ballot envelopes.

But WEC attorneys immediately after the vote said the agency’s 2016 guidance on absentee ballot envelope curing was still valid. The commissioners in early August deadlocked on rescinding the guidance.

In yesterday’s ruling, Aprahamian blasted WEC commissioners — split evenly between Dem and GOP appointees — and said their approach has contributed to distrust of election administration.

“It is of little wonder that proponents from all corners of the political spectrum are critical, cynical and suspicious of how elections are managed and overseen when three unelected bureaucrats can define legislation and declined to suspend guidance that the joint committee under its oversight authority has determined violates Wisconsin law,” he said.

He added his ruling prohibits WEC from guiding, publishing instruction or otherwise communicating information that is contrary to Wisconsin state law. Clerks’ only option to correct missing or incorrect information on absentee ballot envelopes now is to return the ballot to the voter for correction.

Aprahamian also said it is of “paramount importance” to ensure elections are conducted strictly according to law.

“If the right to vote is to have any meaning at all, elections must be conducted according to law,” he added.

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