Former Wisconsin Lt. Gov. Rebecca Kleefisch (R) filed a lawsuit against the Wisconsin Elections Commission [WEC] on Monday for issuing guidance regarding absentee ballots and unattended drop boxes, the role of special voting deputies at residential care facilities and qualified retirement homes, and the consolidation of polling places that allegedly violate state law.
Kleefisch, who is running for governor in 2022, brought the suit to the Wisconsin Supreme Court in the hopes of speeding up the legal process. The lawsuit alleges that the lower courts would most likely take months to process the case — time which cannot be afforded, as the 2022 primary election is just 10 months away. The lawsuit argues that the WEC’s “unlawful guidance” directly impacts the “legality, accuracy, and fairness of the votes in the 2022 election.”
“As this Court stated just one year ago, ‘The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied.’ This petition seeks to avoid a 2022 repeat of a similar situation,” the lawsuit stated, referencing the Trump v. Biden case which grappled with highly contentious claims of voter fraud in the 2020 presidential election.
The lawsuit takes aims at three specific areas of WEC guidance, citing a bombshell October 2021 report from the Legislative Audit Bureau (LAB) that details current WEC actions that are reportedly contrary to Wisconsin election laws. The LAB report found that the WEC issued guidance that can only be legally established through administrative rule-making and review by the state legislature.
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Absentee Ballots and Unattended Drop Boxes
The lawsuit details a March 2020 WEC memo that gave guidance to municipal clerks on the processing of absentee ballots. Specifically, WEC reportedly changed the rules to allow a third person to return a ballot rather than the actual person casting the vote. Then in August 2020, the WEC changed the rules again, saying that the “in person” return of ballots could be done through delivery to unstaffed drop boxes, provided the drop box was a “secure, locked structure operated by local election officials.”
The LAB report found that roughly two million votes were cast in Wisconsin using absentee ballots in the 2020 general election, and 245 municipality or county voting entities (28.7 percent of the total) utilized drop boxes, “most in unattended fashion” to collect absentee ballots.
The lawsuit further cited the LAB report, which found that the use of drop boxes under the guidance of the WEC was contrary to state law requiring that a ballot either be mailed and accompanied by certificate or delivered in person to the municipal clerk who issued the ballot. The report also noted that because Wisconsin law “does not permit or prohibit ballot drop boxes” WEC must go through administrative rule-making to permit clerks to establish procedures for the proper use of drop boxes.
“Absentee ballots must be cast in conformance with statutory requirements, and if they are not, the rules require that such votes be discarded,” the lawsuit states.
The WEC disputed the report’s findings following its release. WEC Chair Ann Jacobs told WKOW she resists the idea of establishing those actions as rules because “then they would then fall under the purview of the legislature’s committee on administrative rules, which is controlled by the Republican majority.”
“If the legislature wants to change the law, it can change the law,” Jacobs said. “But right now, we have thousands of different guidance documents out there because you can’t administer an election without guidance.”
Special Voting Deputies
Wisconsin has a state statute which requires “special voting deputies” to assist qualified voters at residential care facilities and retirement homes with voting. These deputies specifically take an oath acknowledging that “his or her sacred obligation will be to fully and fairly implement the absentee voting law and seek to have the intent of the electors ascertained.” According to the lawsuit, the deputies are encouraged to assist the elderly “while also guarding against the potential for fraud and coercion that might otherwise take place in these situations.”
Despite the statute, the WEC allegedly sent guidance to clerks in June 2020, indicating that because of the Chinese coronavirus pandemic, special voting deputies should not go to those facilities. Instead, the WEC reportedly had absentee ballots sent to eligible residents and those who requested them. In July 2020, the WEC issued another memo suggesting the staff of the facilities could assist residents with absentee ballots instead of the special voting deputies, guidance which the LAB report said flew in the face of state law and impacted 40 percent of the voting jurisdictions in the state during the 2020 election.
The Racine County Sheriff even contended in October 2021 that WEC guidance regarding the residential care facilities and qualified retirement homes constituted criminal violations. Sheriff Christopher Schmaling said at a news conference the state election statute that governs absentee voting in residential care facilities “was not just broken, but shattered, by members of the WEC, the Wisconsin Election Commission,” in the 2020 election. Schmaling said that his office prepared a PowerPoint presentation with a detailed timeline of an investigation into a complaint filed by a local resident that a nursing home “took advantage” of her late mother when filing an absentee ballot for her in 2020 “so our citizens can better understand how our election law was broken.”
Consolidation of Polling Places
Board of Election commissioners or an appropriate governing body typically establish polling locations for each election “at least 30 days before the election,” usually based on population size, according to Wisconsin state law.
In March 2020, the WEC told clerks that because of the pandemic, polling places could be changed and consolidated on the authority of municipal election clerks alone, according to the lawsuit. The guidance was issued within the 30-day period prior to the Spring 2020 election on April 7.
“In the April 7, 2020 election, Milwaukee reduced the number of polling sites from 180 to 5, and Green Bay reduced its number from 31 to 2,” according to the lawsuit, which cited the LAB report.
“The LAB Report indicated that the March 2020 WEC guidance on reducing polling places was contrary to state law, but had not been retracted,” the suit states.
The Main Aim
In an announcement video on Monday, Kleefisch said filing the lawsuit with the Wisconsin Supreme Court is “not something she took lightly,” noting that voting is “one of our most sacred rights” and the “foundation upon which our Republic is built.” She further emphasized that her aim is not to “re-litigate” the 2020 election, but to provide clarity for the next one:
There are still a number of unresolved issues surrounding the 2020 election, and there are audits underway to address those issues, but this lawsuit is not about re-litigating past elections. It is about providing clarity, transparency and consistency to future elections. I’m bringing this lawsuit now, to resolve these lingering controversies well before voting begins so we can assure the problems from the 2020 election never happen again.
Overall, Kleefisch is asking the state supreme court to declare the WEC in violation of state law and to order the commission to follow state law and protocols moving forward.
“Our freedom, our way of life, and the future of our great nation all depend on free and fair elections —elections where every voter can trust the process and the result,” she said in a statement. “Wisconsinites are sick and tired of unelected bureaucrats intentionally ignoring the law. The lawsuit forces WEC to clean up their act prior to administering the 2022 election.”
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.
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