WEC violated rulemaking requirements, cannot bypass the rule of law

The News: WILL won a lawsuit against the Wisconsin Elections Commission (WEC) on behalf of Rick Braun, a registered Wisconsin voter and taxpayer.

The suit challenged the use of the National Mail Voter Registration Form in Wisconsin, which was issued by the United States Election Assistance Commission. The suit argued that the use of the Form to register voters in Wisconsin was unlawful, because WEC never lawfully adopted it and because it failed to meet statutory requirements.

The Quote: Lucas Vebber, WILL Deputy Counsel, stated, “It is unfortunate that time and time again Wisconsinites have to go to court to force state agencies to follow the law. Today’s win is a tremendous victory for Wisconsinites, and sends yet another strong message to bureaucrats who disregard the rule of law.”

Background: In July 2022, WILL sent a letter to WEC noting the many ways in which the National Form violated Wisconsin statutes and asking when and how the Form was approved for use in the state. WEC was unable to produce any records showing when or how the Form was approved in Wisconsin—or even that it was, in fact, approved.

WEC’s inability to provide such basic information was highly unusual, given that the Election Manual which WEC publishes and provides to all municipal clerks states—as a fact—that the Form had been approved for voter registration in Wisconsin.

In September 2022, WILL filed a lawsuit, alleging that WEC violated its statutory duty to ensure that elections in Wisconsin were administered in a lawful manner by allowing the use of the Form to be used—despite its many inconsistencies with state law.

The Decision: The Court decided that the use of the National Form to register a voter in Wisconsin is illegal. The Form had not been lawfully adopted for use in this state. The Court further enjoined WEC from issuing any guidance that the Form is approved for use in Wisconsin unless and until it is legally adopted; and ordered WEC to withdraw any existing guidance which purports to allow use of the Form, and to notify all municipal clerks that it may not be used going forward.

Regarding this decision, Judge Michael P. Maxwell wrote, “WEC attempts feebly to rely upon the affidavit of Mr. Kevin Kennedy, the election agency administrator for the prior two state elections agencies, but Mr. Kennedy as the former chief administrator of elections in this state for nearly thirty-three years cannot provide any credible evidence as to where, when, or how the National Form was approved. Certainly, Mr. Kennedy offers no evidence that WEC approved the National Form as is required by Wis. Stat. § 6.33.”

Wisconsinites may easily register to vote using the Wisconsin-specific form (Form EL-131) which was adopted by WEC legally and is available online and through municipal clerks—and that form, which is in wide use, is not impacted by this decision in any way.

Read More:

• Decision and Order­­­­, September 2023