Green Bay settles election observer lawsuit, not required to admit wrongdoing

The city of Green Bay will not go to trial in a lawsuit over access given to election observers that was initially filed during early in-person voting in the 2022 midterms.

Green Bay and the parties suing settled last week, according to documents filed in Brown County Circuit Court. A trial had been scheduled to begin in September.

The lawsuit was filed on behalf of the Republican National Committee and four election observers who do not live in Green Bay’s city limits. It alleged Green Bay City Clerk Celestine Jeffreys prohibited observers from viewing the entire in-person absentee voting process.

According to the lawsuit, Jeffreys did not let election observers in a public hallway where voters were filling out ballots, performing witness certification and depositing ballots.

Last November, Brown County Circuit Court Judge Marc Hammer issued a temporary order directing the city to give election observers more access to in-person absentee voting.

A final order as part of the settlement requires the city to continue doing so. The final order also says the city cannot unreasonably restrict people from observing the “public aspects” of in-person early voting, including signing of witness certification and depositing absentee ballots in the collection box.

However, the settlement does not require either party to admit wrongdoing and requires both sides to cover their own legal fees.

The initial lawsuit was filed amid a Republican push to encourage poll watching ahead of the 2022 midterm elections. At the time, the RNC said it was the organization’s 75th election-related litigation during that cycle.

In response to the temporary order, the city provided additional areas of observation and said in a statement the modifications helped “preserve and protect the integrity of the in-person absentee voting process while protecting voter security and freedom.”

Neither the city’s law department nor an attorney representing the plaintiffs immediately responded to a request for comment.

Kevin Kennedy was the state’s longest-serving chief election official until he retired in 2016 from the Government Accountability Board, the precursor to the Wisconsin Elections Commission. He said that by law, election observers should have access to the witness certification process and the depositing of ballots.

During early in-person absentee voting, he said witness certification is typically done by the local elections official who checks a voter’s ID when they fill out an application explaining that they will be unable to vote at the polling place on election day.

“The person who had issued the ballot witnesses the fact that they gave them the ballot and observed them marking the ballot, without seeing how they marked the ballot,” Kennedy said of the process.

He said municipalities then collect those ballots in a container to be processed on election day. Kennedy said municipal clerks are “very good” at maintaining a chain of custody that keeps track of the container throughout the process.

“Observers could look at all the Chain of Custody forms if they wanted to,” Kennedy said. “The key issue with these processes is (observers) can watch it happening, but they can’t interfere with it or get in the way.”

Kennedy added that Wisconsin has long had “one of the most accessible processes for observing elections” in the country.

“Under Wisconsin law, anyone other than a candidate can be present at the in-person absentee voting process or at the polling place to watch,” he said. “The balance is really can they readily observe the public aspects of this, meaning they can’t be looking over the person’s shoulder when they’re marking the ballot, and can the elections officials get their job done?”

“They can’t be asking questions all the time, but they should be able to observe those key interaction points,” Kennedy added.