Plaintiffs in a Democratic Party-backed lawsuit are asking a Dane County judge to block guidance from the Wisconsin Elections Commission barring absentee voters from changing their vote after casting a ballot.

The lawsuit argues that new guidance limiting when voters can “spoil” absentee ballots and request a replacement ballot is inconsistent with state law and constitutional principles. 

The complaint says the guidance will disenfranchise the plaintiffs and potentially thousands of other voters who cast absentee ballots for candidates who have dropped out. 

“WEC’s course reversal while voting was underway violates a basic tenet of election law that the rules of the election should not be changed close to—let alone during—an election,” the lawsuit reads.

Commissioners approved the guidance in a 4-2 vote on July 9, two weeks after the deadline by which election clerks were required to send out absentee ballots for the August 11 primary. 

The lawsuit comes amid a series of major shakeups in the Dem primary for governor. 

Lt. Gov. Sara Rodriguez dropped out last week amid a campaign finance scandal, while Milwaukee County Exec David Crowley reentered the race on Saturday after suspending his campaign July 8. 

All three plaintiffs named in the suit are Dem primary voters who submitted absentee ballots for Rodriguez before she dropped out. 

A Democratic Party of Wisconsin spokesperson confirmed the party worked with the law firm, Pines Bach LLP, that brought the suit forward. 

The party asked the Elections Commission to rescind its guidance in a Tuesday letter, pointing to prior Elections Commission guidance that allowed absentee voters to cancel their previously submitted ballots and request a new one for any reason, as long as they complied with statutory deadlines.

That policy was challenged in a 2022 lawsuit and barred in a ruling by then-Waukesha County Circuit Court Judge Brad Schimel. That ruling was vacated in February on procedural grounds. 

Elections Commission Chair Don Millis told WisPolitics earlier this week that he had no plans to call a meeting to rescind the guidance, saying he believed that state law was meant to allow absentee voters to correct errors made when filling out their ballots, not to change their vote after having already submitted a ballot. 

Neither Millis nor an Election Commission spokesperson immediately returned an afternoon request for comment.