Wisconsin Elections Commission Accused of Being in Contempt of Court for Disregarding Temporary Restraining Order
By Jim Hᴏft Jun. 25, 2024
On Monday, June 24, lawyers representing a Wisconsin voter named Thomas Oldenburg filed a motion accusing WEC of being in contempt of court.
For context, a Marinette County judge granted a temporary restraining order last month against WEC, saying that the state election commission must not require clerks to use newly-designed absentee ballot envelopes until the judge makes a final ruling. According to state law, these ballot envelopes were designed in a manner that violates existing Wisconsin election laws.
According to Wisconsin law, an absentee voter requesting a ballot via email must submit a signed ballot application inside of his or her ballot envelope in order for it to be counted. However, WEC attempted to roll out a new ballot envelope that requires voters to certify the envelopes themselves are the applications, which lawyers argue violates existing state election laws since an envelope can’t replace a legally-required application form.
Despite the judge’s order, WEC held a public meeting on June 10, 2024 where the commission openly discussed plans to disregard the TRO. The meeting can be viewed here via WisconsinEye.
“I think as an agency we should be proud of this envelope and encourage all of our clerks to please continue to use it because it’s really a terrific envelope,” said Commissioner Ann Jacobs.
WEC counsel Jim Witecha also said, “The form is not required for mandatory use and kind of recommend they proceed as they see fit. We do not believe that at this time it should impact the voters or the clerks if they continue to use it.”
Witecha also implied that the ruling only applies to Marinette County, even though the TRO applies statewide and impacts clerks in all Wisconsin counties. Now, clerks are currently under “tremendous pressure” to utilize the EL-122 due to WEC’s actions.
The Commission then voted 6-0 that, “This temporary injunction does nothing more than make the use of Form EL-122 voluntary rather than mandatory. Accordingly. clerks and voters can still use Form EL-122 without violating the temporary injunction.”
Wisconsin-based attorneys Daniel Eastman and Kevin Scott represent Mr. Oldenburg. According to Monday’s court filing, WEC has directly violated the Order by asking Clerks to utilize the EL-122.
The commission said it sees no issue publicly violating this TRO because of a presumed lack of legal consequences.
“It is unlikely that using the Form EL-122 before a final decision in Oldenberg would subject a clerk or voter to criminal liability for using a document that has served as a certificate and application for many years,” the commission said.
Although it is noted that the offending language was only adopted by WEC in fall of last year.
“WEC had ample time to address its impact and assist the clerks of this state—essentially WEC’s wards—to pursue an alternative plan in compliance with the Order and Wisconsin law,” Eastman and Scott wrote in the contempt of court filing on Monday. “Instead, WEC chose to double down and try to run out the clock in violation of multiple state laws and defiance of this Court.”
A scheduling hearing is scheduled for Friday, July 26.
