Dane County judge plans to sign revised order on absentee ballot witness addresses

A Dane County Court court order will soon be updated to reflected an earlier appeals court ruling over when absentee ballots can be counted in Wisconsin.

That’s after the state’s court of appeals sided mostly with a progressive group this summer when it agreed to a broader understanding of when a witness’ address is detailed enough for an absentee ballot to be counted.

Under state law, absentee ballot envelopes must be signed by an adult witness who provides their address. But the law doesn’t define what that address should look like. 

In 2022, a Waukesha Circuit Court judge ruled that clerks could no longer continue the practice of filling in missing information from an absentee ballot witness certificate, a practice known as ballot curing.

A few weeks later, the liberal group Rise, Inc. sued in Dane County Circuit Court, arguing there was confusion among clerks and voters about when a witness address is sufficient.

Rise aims to boost youth voter turnout, and its complaint argued Wisconsin voters could be “systematically disenfranchised” if their absentee ballots are thrown out because a witness address is deemed insufficient for a reason like a missing zip code.

Wisconsin’s Republican-controlled Legislature intervened in the suit, arguing that a ballot certificate needed to list a full address that includes a
street number, street name and municipality. That definition was based on previous guidance from the Wisconsin’s Elections Commission.

But Dane County Judge Ryan Nilsestuen settled on a broader definition, when he ruled in January of this year that a witness address is sufficient, as long as a “reasonable” member of the community can determine where the witness can be reached.

GOP lawmakers appealed that ruling, but a state appeals court upheld most of Nilsestuen’s interpretation in July.

The appeals panel differed, however, by determining that the reasonableness standard should be determined from the perspective of a “reasonable” municipal clerk, rather than a reasonable community member.

On Monday, an attorney for RISE submitted a revised order to Nilsestuen, which reflects the changes ordered by the appeals court, when that three-judge panel sent the case back to Dane County.

No one objected to the proposed order and, during a status hearing Monday, Nilsestuen said he plans to sign it.

In another January decision in a separate case, Nilsestuen determined that absentee ballots should be counted in more circumstances when he ruled in favor of the League of Women of Voters of Wisconsin.

The League had argued that officials were violating the 1964 Civil Rights Act by rejecting ballots because of minor errors in the witness address.

That case, which is still pending before Wisconsin’s appeals court, is one of many legal battles over when absentee ballots should be counted in a closely-fought state. In Wisconsin, the last two presidential elections have come down to a statewide margin of victory of less than 1 percent.

This summer, Wisconsin’s Supreme Court ruled that clerks could once again give voters the option of returning their absentee ballots via drop box. That decision reversed a two-year-old ban on unstaffed ballot drop boxes in the state.