by Jacob Derr, Editor
On December 7, 2012, the Election Law Program held its third war game scenario in Neenah, Wisconsin. The war game focused on potential overvoting and the rights of Wisconsin voters to override their spoiled votes in a hypothetical governor’s race.
Carey Kleinman voted absentee several weeks before the election for governor of the state of Wisconsin, but due to a confusing error in ballot design, she accidentally voted for two gubernatorial candidates. The Republican, Democrat, and Green Party candidates were each listed on their own line, and then three other third party candidates were listed in a box next to the lines. Many voters, like Ms. Kleinman, mistakenly voted for two of these candidates–one from the box, and one from the lines. Ms. Kleinman is joined by 247 other absentee voters who believe their ballot may be spoiled.
There are two statutes in the state which pertain to accidental overvoting. The first allows a voter on Election Day “who, by accident or mistake, spoils or erroneously prepares a ballot” to “receive another, by returning the defective ballot.” Wis. Stat. §6.80(2)(c). Their initial vote is destroyed, and the re-vote is counted. On the other hand, another statute disallows absentee voters who mail or deliver a ballot to the clerk from getting another ballot from the county clerk, and they may not vote a second on Election Day. Wis. Stat. §6.86(6). All of the counties except for Stone County, where the plaintiffs reside, chose to allow absentee voters to re-cast their vote under a reading of the first statute.
In oral argument before the justices, the plaintiff’s counsel, James R. Troupis, argued that voting is a fundamental right. Therefore, Stone County created inequalities between two classes of people—those voting on Election Day, and those voting absentee. In doing so, it violated the Equal Protection Clause and denying the right to vote to 247 of its citizens. Mr. Troupis drew a bright line, saying that a ballot does not become official at the time of its being sealed, but rather when the ballot is counted. This means that, until the ballot has been counted, any voter can ask to change their vote. This is exactly the same right guaranteed to in-person voters on Election Day. By way of guidance, Mr. Troupis pointed out that both readings of the statutes have merit. But when there are two readings of the state’s decisions, and one of them leads to an outcome allowing for the right to vote, the court should interpret the statute in a way allowing the greatest access to the ballot box.
The counsel for Stone County, Matthew W. O’Neill, made it clear that no one has been denied the right to vote, but rather that they have been denied the right to re-vote. He further argued that absentee voting in Wisconsin is a privilege, not a right. As a policy argument, he raised the possibility of wide-spread fraud because the county clerk is disallowed from asking a voter for ID at the polls. While this is not a problem on Election Day, as the person has just walked across the room with their ballot, there is a great possibility that the absentee process can be perverted. Mr. O’Neill said that a ballot became a vote when it is mailed, not when it is counted. The vast majority of voters were able to file votes correctly, and therefore this is overburdensome for Stone County and other counties that would have to follow suit.
The justices decided 2-1 to grant mandamus and issue an injunction requiring Stone County to allow those 247 citizens to re-vote. The presiding justice stated that, with close state elections and state gridlock on political issues, to deny even a small margin of voters the right to have their vote counted is a serious concern.
He also determined that the state did mean to allow spoiled votes to be re-filed, and that the prohibition relied on by Stone County only applies to someone who wants to re-vote for another reason. He reasoned that, because the statute followed by Stone County refers merely to an “absentee” vote without any reference to spoilation, another subsection controls spoiled votes. This second subsection states that a voter gets to return a damaged or spoiled absentee ballot. He ruled that the legislature intended two separate procedures–spoiled absentee ballots can be returned and a re-vote cast, while absentee ballots that are unspoiled, as per the statute, are not to be returned to the voter.
The dissent argued that the procedure would allow absentee balloting to be far too open to voter fraud.
The Election Law Program is proud of the war games and other exercises it sponsors, which have allowed academics and practitioners to confront real-world election issues in an environment that allows them to work through problems to reasoned solutions. Tomorrow, February 21, 2013, the Election Law Program will partner with the Election Law Society to present the Seventh Annual Election Law Symposium, specifically to address what is to be done about long lines and polling place delays on Election Day.
See Wisconsin War Game materials and arguments here.