A Dane County Circuit Court judge has denied an emergency motion that sought to allow Wisconsin voters to replace absentee ballots they had already submitted for the upcoming Aug. 11 partisan primary election.
In a decision signed July 29, Circuit Court Judge David Conway ruled that plaintiffs Joseph Alan Bins, Thomas J. Elert, and Susan Roberts are unlikely to succeed on the merits of their lawsuit against the Wisconsin Elections Commission. The voters had requested an emergency temporary injunction to halt new agency guidance regarding “spoiled” ballots.
Under state law, ballot spoiling allows a voter who makes an error on a ballot to return it and obtain a replacement. The controversy centers on updated instructions issued by the elections commission on July 9, which state that once an absentee ballot is returned to a municipal clerk, it cannot be spoiled or reissued for any reason.
The guidance further notes that changing one’s mind or having a chosen candidate withdraw from a race does not qualify as an “accident or mistake” that permits a ballot replacement.
The three plaintiffs, all registered voters in Dane County, submitted absentee ballots selecting Sara Rodriguez in the multi-candidate Democratic gubernatorial primary. Rodriguez later withdrew from the race, along with candidate Missy Hughes. The plaintiffs argued that the commission’s updated position violated state statutes, their constitutional right to vote, and equal protection guarantees by preventing them from casting a vote for a candidate still active in the primary.
In his ruling, Conway determined that state statutes do not permit voters to replace an absentee ballot after it has been delivered to a clerk. He wrote that statutory provisions requiring a voter to return a spoiled ballot apply to the time of submission, noting that the law does not authorize retrieving or destroying a ballot that has already been returned.
Conway also addressed earlier administrative guidance. In August 2022, the commission had advised municipal clerks that voters could spoil a ballot and receive a new one if they changed their mind, provided it occurred before the voting deadline. That guidance was enjoined by a Waukesha County court in October 2022, withdrawn by the commission later that month, and eventually vacated on procedural grounds by the Wisconsin Court of Appeals in February 2026.
The commission subsequently issued updated guidance in May 2026 before releasing its July 9 directive. Attorneys for the commission argued that the July guidance aligns with state statutes, a position the court upheld in denying the temporary injunction.
Conway concluded that the guidance does not unconstitutionally burden the right to vote or violate equal protection principles, noting that both in-person and absentee voters are precluded from altering a ballot once it has been officially cast or submitted to election officials.
The order leaves the commission’s July 9 guidance in place as the state prepares for the primary election, where absentee voting began on June 25. Commission records indicated that more than 100,000 absentee ballots had been returned statewide as of July 27.
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