Clerks worry that Wisconsin bill would mean more election disputes end up in court

A Republican-backed bill would make it easier to go to court to challenge the Wisconsin Elections Commission’s rulings on administrative complaints — a shift that could increase the number of election-related lawsuits.

The proposal, Assembly Bill 268, seeks to reverse a recent Wisconsin Supreme Court ruling that limited who has the right to appeal such rulings. If passed, it would allow more residents to bring election challenges into the court system, rather than leaving accountability solely in the hands of the commission. 

If the bill fails, supporters argue, holding election officials accountable for breaking the law would be difficult or even impossible.

As the law stands now, under the Supreme Court’s interpretation, “unless a person is personally, legally harmed by a WEC decision, the decision is unappealable,” Republican state Sen. Van Wanggaard, the bill author, said at an Assembly elections committee hearing Tuesday.

Complaints to the Wisconsin Elections Commission are frequent

State residents of all political affiliations regularly file complaints with the Wisconsin Elections Commission, which is the legally required first step for most election-related challenges, unless they are brought by district attorneys or the attorney general.

Liberals have filed complaints over concerns about towns that switched to hand-counting ballots and alleged inaccuracies on candidate nomination forms. Conservatives have filed complaints over allegedly being denied poll worker positions. Other complaints have involved allegations that clerks refused to accept ballots at polling places and unproven accusations of ballot tampering.

In one prominent case after the August 2022 election, then-Racine County Republican Chair Kenneth Brown filed an administrative complaint with the commission, accusing Racine of illegally using a mobile voting van for city residents to cast in-person absentee votes. Brown alleged, among other things, that the van was stationed around more Democratic areas of the city, illegally providing an unfair partisan advantage.

The commission rejected Brown’s complaint, finding no probable cause to suspect that the use of the van was illegal. Brown, represented by the conservative legal group Wisconsin Institute for Law & Liberty, appealed. State law allows election officials or complainants “aggrieved” by a commission order to appeal it to circuit court.

Courts disagreed over whether Brown was qualified to sue under that standard. The Wisconsin Supreme Court’s liberal majority ultimately dismissed the case, ruling that Brown had not shown the commission’s decision made it harder for him to vote or harmed him personally.

“Because Brown was not injured by WEC’s decision,” liberal Justice Jill Karofsky wrote in the majority opinion, he “does not have standing to seek judicial review.”

Republicans panned the decision. Liberals were mostly happy with the outcome of the case, but some objected to the court’s legal reasoning on standing and complained that the justices should have addressed the underlying dispute in the case — that is, whether the use of the mobile voting van was legal.

Clerks, meanwhile, largely supported the justices’ interpretation of who has standing to challenge a commission ruling in court. They expressed concern about the Wanggaard bill, which would negate that ruling.

“This concept of legal standing exists because it prevents the courts from becoming overburdened with speculative, ideological or purely political lawsuits,” Green County Clerk Arianna Voegeli, a Democrat, said at the hearing. The bill, Voegeli said, opens the door to politically motivated complaints “aimed at harassing election officials or disrupting election administration.”

Proponents say bill would provide a check on the WEC

Assembly Bill 268 would explicitly allow any complainants to appeal any commission order that doesn’t give them what they’re asking for, “regardless of whether the complainant has suffered an injury to a legally recognized interest.”

Lucas Vebber, deputy counsel of the Wisconsin Institute for Law & Liberty, which registered in favor of the bill, told Votebeat that in voting disputes, courts should decide cases on the underlying legal arguments, rather than focusing on who has the right to sue.

“It’s important that any government actor who’s making decisions (has) some kind of a mechanism in place to review those decisions in every case,” Vebber said.

“Both sides have filed these types of complaints,” he continued, “and I think all of them, regardless of political affiliation, should have their opportunity to have a day in court.”

Courts are already weighing in on an increasing number of voting disputes — including cases on drop boxes, whether voters can spoil their ballots and whether municipalities can forgo accessible voting machines for people with disabilities.

Rock County Clerk Lisa Tollefson said in a statement that the proposal could lead to more harassment and a “surge in litigation” against clerks since anybody in the state could file a complaint against the clerk, whether or not they were harmed, and then continue to pursue the case in court.

Wanggaard, the bill author, said it’s not his goal to put more pressure on clerks. Clerks weren’t getting flooded with cases before the Supreme Court restricted who could sue over commission complaints, he said.

Rep. Scott Krug, the Republican vice chair of the elections committee, said the bill’s language might be overly broad and suggested changes that would draw some limits on who could challenge a commission ruling in court.

For example, he said, lawmakers could clarify that only people who live in the jurisdiction where the alleged violation occurred could appeal a commission ruling.

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at [email protected].

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.