With the November election just nine weeks away, the high-stakes ruling came down inside the Waukesha County Courthouse. Lawyers for both Democrats and Republicans, along with legislative and Wisconsin Department of Justice attorneys, fought over absentee ballot envelopes.
In 2016, the commission issued guidance to clerks, telling them they could fix missing information on absentee ballot envelopes. That includes things like a witness failing to fill out the full address.
This year, the Republican Party of Waukesha County and three voters challenged the practice.
"This isn’t a case about counting votes," said George Burnett, attorney for the Republican Party of Waukesha County, which brought the lawsuit. "This is a case about stopping the issuance of guidance that violates Wisconsin law."
Republicans point to state law that requires the address as part of the witnesses' certification.
In court, Democrats defended the ballot curing process. John Geise, representing Waukesha County Democrats said there's nothing in state law to exclude a ballot envelope where a witness listed their address, but didn't add their zip code.
The judge wasn't convinced. "WEC must follow Wisconsin laws," he said.
"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."
How common is the issue of missing information on the envelope? The nonpartisan Legislative Audit Bureau reviewed 14,710 absentee ballot certifications from the 2020 race. Of those, nearly 7% were missing parts of the witness address. The same bureau surveyed municipal clerks, 58.9% of whom said they received envelopes for the November 2020 election with missing information.
In the April 2022 election, Milwaukee reported 338 ballots were cured out of roughly 29,000 ballots cast.
Parties on the losing side are preparing to appeal Wednesday's decision. They will officially ask the judge to put his ruling on hold during the upcoming appeal process.
The clock is ticking, however, with only 9 weeks until Election Day.
The Associated Press contributed to this report.