Absentee Ballots Won’t Be Thrown Out for Witness Address Variations, Wisconsin Court of Appeals Rules
The Wisconsin Court of Appeals today largely affirmed a lower court’s decision that is expected to significantly reduce the rejection rate of absentee ballots in the state’s upcoming primary and general elections.
The underlying January 2024 ruling at issue in today’s decision allows absentee ballots cast by Wisconsin voters to be counted so long as the accompanying witness certificate contains enough address information to identify a location where a witness can be reached.
That ruling — which was quickly appealed by Wisconsin’s GOP Legislature — stemmed from a lawsuit filed in 2022 by a voter and a youth engagement organization known as Rise Inc.
Today’s unanimous court of appeals decision — which slightly modifies the circuit court’s ruling — concluded that an absentee ballot can be counted if the witness address contains adequate information based on the perspective of a Wisconsin election official known as a municipal clerk.
This differs from the trial court’s standard, which deemed an address sufficient if it provides enough information for a “member of the community” — rather than a municipal clerk — to reasonably understand where a witness may be located.
Under Wisconsin law, absentee voters are required to complete their ballots in the presence of an adult witness, who must complete a written certificate containing a signature and address. Previously, the Wisconsin Elections Commission (WEC) allowed clerks to fill in missing address information on witness certificates using red ink without having to notify voters of the deficiencies.
But after a Republican legal challenge succeeded in repealing WEC’s red ink policy in October 2022, the ensuing uncertainty prompted litigation from Rise and other organizations that sought to gain clarity as to what witness address components are necessary to ensure that an absentee ballot is counted.
In today’s decision in Rise’s case, the three-judge panel concluded the trial court correctly held that any witness address containing enough to identify a location where a witness can be communicated with is sufficient.
The court disagreed with the Wisconsin Legislature, which asserted in its appeal of the case that an absentee ballot should only be counted if it contains a witness’ street number, street name and municipality name. Wisconsin law, however, does not explicitly define the word address.
Rise, in arguing against the Legislature’s three-part definition of an address, urged the court of appeals to affirm the trial court’s more capacious interpretation of the word that does not specify particular components — especially because certain addresses, such as those of college students, don’t always conform to the Legislature’s proposed definition.
“Rejecting ballots solely for containing a partial witness address will result in voter disenfranchisement based on mere technicalities,” the organization maintained in an earlier court filing.
A separate lawsuit from the League of Women Voters of Wisconsin (LWVWI) concerning the definition of a witness address is currently ongoing in the Wisconsin Court of Appeals. In that case, a trial court judge previously held that the rejection of absentee ballots based on witness address deficiencies — such as the lack of a municipality name or zip code — violates a federal civil rights provision that protects against disenfranchisement on the basis of trivial errors.
While LWVWI is seeking further clarification on the definition of an address, the state’s Republican-controlled Legislature is asking for a reversal of the trial court’s ruling.