Three Wisconsin voters, with support from the state Democratic Party, filed a lawsuit Thursday seeking to allow absentee voters to spoil and recast their ballots if a candidate they voted for has since withdrawn from the race. The lawsuit, filed in Dane County Circuit Court, targets guidance from the Wisconsin Elections Commission that prohibits such actions.
Lt. Gov. Sara Rodriguez withdrew from the Democratic primary for governor last week, and Milwaukee County Executive David Crowley, who had previously dropped out, re-entered the race. Rodriguez's name remains on the ballot, as does that of Missy Hughes, a former state economic development director who exited the race in June. The lawsuit contends that current guidance from the elections commission could disenfranchise thousands of voters who cast ballots for candidates no longer in contention.
Nearly 91,000 absentee ballots have already been returned, according to the elections commission. The lawsuit asks a judge to order the commission to halt its guidance to local election clerks, which currently states that voters cannot request a new ballot after returning one. The commission voted 4-2 on July 9 to issue this prohibition, with one Democratic commissioner joining three Republicans in the vote.
The plaintiffs argue that the commission's position violates state law and the Wisconsin Constitution, infringing on voting rights and equal protection. The complaint states that without court intervention, "potentially thousands more Wisconsin voters" will be unable to vote for a candidate still in the race.
The practice of spoiling an absentee ballot, though rarely used, allows a voter who has already submitted a ballot to request and cast a new one, thereby canceling the original. This issue was previously the subject of litigation in 2022, where a Waukesha County judge initially agreed that the elections commission should not distribute guidance allowing ballot spoiling. However, a state appeals court later put that ruling on hold before a subsequent appeals court decision vacated the ruling on technical grounds without addressing the merits of the case.
The winner of the Democratic primary will face Republican U.S. Rep. Tom Tiffany, who has minimal opposition. The primary is scheduled for August 11, leaving limited time for the courts to act. Democratic Governor Tony Evers is not seeking a third term, and the party aims to retain the governorship and gain control of both chambers of the state Legislature, a feat not accomplished since 2010.