Elections Commission Members Back Lawsuit Challenging Its Absentee Ballot Policy
Ann Jacobs and Mark Thomsen say WEC policy on revotes is at odds with the law.
An absentee ballot. Photo by Jeramey Jannene.
After voting against guidance telling residents they can’t change their absentee ballots just because they changed their minds, two Democrats on the Wisconsin Elections Commission are getting involved in a lawsuit aimed at blocking the policy shift.
Commissioners Ann Jacobs and Mark Thomsen claim the board they sit on acted “inconsistent with the law.”
The guidance passed by the Wisconsin Elections Commission states that people voting absentee cannot “spoil” their ballots and cast new ones if that voter changed their mind or their preferred candidate dropped out of the race. During a chaotic Democratic primary in the race for governor, three candidates have dropped out, with one getting back into the race days later.
A lawsuit filed by three residents whose preferred candidate, Lt. Gov. Sara Rodriguez, dropped out, seeks to block the commission’s guidance, which passed on July 9 by a vote of 4-2. Jacobs and Thomsen, who voted against the change, filed a motion Monday seeking to intervene against the commission.
In their brief, Jacobs and Thomson said they have to intervene as individuals because their interests “are not adequately represented” by commission attorneys. They say the agency “has now taken the position that it may change guidance at any time while an election is pending.”
“Moreover, the Commission’s guidance at issue unlawfully treats absentee voters worse than voters who cast their ballots on Election Day,” their motion claims. “Voters who vote on Election Day can spoil their ballot twice and obtain up to two new ballots. Treating absentee voters differently violates equal protection.”
Jacobs and Thomsen are asking the court to act quickly on the case. Their motion said if that happens, the judge can order the commission to discard its July 9 guidance and notify Wisconsin’s local election clerks, to “allow them and the public as much time as possible to process any requests from voters to spoil their returned ballots and vote before 8 pm on August 11, 2026.”
In an interview with WISN-TV on July 21, Wisconsin Elections Commission Chair Don Millis, a Republican, said he wasn’t interested in reconsidering the absentee ballot spoiling guidance because it emphasizes existing state law. He said it would be “crazy” to reverse it now. Millis said it’s unfortunate some residents voted for candidates who have left the race for governor, “but that’s life in the big city” and making clerks dig through thousands of ballots to find the ones absentee voters want to spoil would be chaotic.
“That’s going to affect not only those ballots, it’s going to affect other ones that are in storage that are sealed, that should be held in sealed containers until the election day,” said Millis. “So again, I just think it would be just a big mistake.”
Also on Monday, the Republican National Committee announced it too was intervening in the absentee ballot lawsuit. A statement from chairman Joe Gruters accused Democrats of wanting a “do-over when they don’t like the outcome.”
As of Monday, the elections commission reported nearly 262,000 absentee ballots have been sent out and around 100,000 have already been returned to clerks.
Elections commission members want in on lawsuit challenging absentee ballot policy was originally published by Wisconsin Public Radio.
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