Judge Orders Wisconsin to Follow Law on Mail Ballot Applications

Judge Orders Wisconsin to Follow Law on Mail Ballot Applications
Judge Bruce Schroeder speaks to issues on jury instruction during Kyle Rittenhouse's trial at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 15, 2021. (Sean Krajacic/The Kenosha News via AP, Pool)
Steven Kovac

The Wisconsin Elections Commission (WEC) has been ordered to bring its problem-prone electronic absentee ballot application process into conformance with “the requirements of the law.”

The process, which was largely created by embattled WEC administrator Meagan Wolfe, is part of MyVote, a digital platform on which voters apply for an absentee ballot and are able to track its status as it moves through the system.

Ms. Wolfe is currently facing articles of impeachment in the Republican-controlled state Assembly. Her agency’s latest court loss has added to Ms. Wolfe’s woes.

The state’s online absentee ballot application system has been much maligned ever since a citizen investigator and a government whistleblower demonstrated that anyone could apply for and receive an absentee ballot in another person’s name and have it sent anywhere.

Both people have since been charged with election fraud.

A Layman and a Feisty Judge

The plaintiff in the case is Jay Stone, a member of the public from Kenosha County who represented himself. He is a retired resident, voter, and taxpayer who has no formal legal training.

Mr. Stone went to court to prove that the multi-step process used by WEC in the receiving and processing of absentee ballot applications online was never authorized by the six-member bipartisan commission through a promulgated rule and that it did not conform to Wisconsin election laws.

WEC could not produce evidence to dispel Mr. Stone’s claim.

In a lively hearing held on Nov. 10, WEC and its attorneys received a tongue-lashing from the bench.

The three lawyers defending WEC were from the office of Wisconsin Attorney General Josh Kaul, a Democrat.

Kenosha County Circuit Judge Bruce Schroeder took umbrage with the argument of the Wisconsin Elections Commission lawyers that a local resident, voter, and taxpayer such as Mr. Stone lacked standing to challenge the legality of the state’s absentee ballot application program in court.

A transcript of the hearing obtained by The Epoch Times shows WEC attorneys opened their case as follows:

“For starters, Stone lacks standing to bring this suit. To establish standing, a plaintiff must show that he was or will be directly affected by defendant’s conduct, such that plaintiff has sustained or will sustain some pecuniary loss or otherwise will sustain a substantial injury to his or her interest.”

Judge Schroeder acknowledged the distinctions raised by WEC’s counsel, but then reminded the defense team that the courts have also made reference to the public interest in their decisions.

“I can’t imagine anything in which there is a greater public interest than the integrity of our electoral system. If we don’t guard that, we won’t have it anymore.

“One would have to be a fool not to understand that the integrity of our elections has been under attack for a number of years from a number of different sides,” the judge said.

He stated he has lived and served a long time, “and I don’t remember issues like this.”

With that, he denied WEC’s effort to dismiss the case for lack of standing.

A Democrat, Judge Schroeder, 77, is the longest-serving circuit court judge in Wisconsin. He was the Kenosha County district attorney before he was tapped in 1983 by Democrat Gov. Anthony Earl to fill an unexpired term on the circuit court bench. Since then, he has been elected circuit judge seven times.

Judge Schroeder plans to retire on Nov. 27.

Coming to national notoriety in 2021 as the trial judge in the Kyle Rittenhouse murder trial, Judge Schroeder has a reputation for plain-speaking.

Meagan Wolfe, head of the Wisconsin Elections Commission, speaks during a virtual press conference on Nov. 4, 2020. (Wisconsin Elections Commission via Reuters)
Meagan Wolfe, head of the Wisconsin Elections Commission, speaks during a virtual press conference on Nov. 4, 2020. (Wisconsin Elections Commission via Reuters)

‘Cloak-and-Dagger Stuff’

Defense attorneys for WEC further incurred Judge Schroeder’s ire when they tried to justify redactions on WEC’s agendas and meeting minutes regarding the MyVote absentee ballot application process, which Mr. Stone obtained in order to prove that WEC never formally authorized the program.

The defense claimed that portions of the public documents could not be provided to Mr. Stone on the grounds of attorney-client privilege.

“I’m stunned when I read these assertions about a claim of privilege. And I think, what kind of cloak-and-dagger stuff is this?”

The judge shared with the court his boyhood memories of the extraordinary lengths to which local Wisconsin election officials went to ensure and promote the transparency and security of the election process. He spoke of them knocking on his own family’s door, “checking and double-checking” who was registered to vote from his house.

“That was all done with the intent to have public confidence in the integrity of the outcome of our elections,” the judge said. “And that is all shot to hell now.”

Referring to WEC and also to Mr. Kaul, Judge Schroeder said, “This is the governmental body which is charged with the enforcement of our election laws, and they’re making claim of privilege for information that I now find out today, the claim is being made as advice being given by a partisan who is directly affected by the outcome of the elections.”

The attorney general’s office did not respond to a request for comment.

Ruling in favor of Mr. Stone, Judge Schroeder said, “One of the claims of the plaintiff is that a declaratory judgment be issued commanding the Election Board (WEC) to conform its conduct to the requirements of the law, and that is the order of the Court and summary judgment is granted in favor the petitioner, the plaintiff, on that claim.

No Judicial Micro-Management

Judge Schroeder did not grant Mr. Stone’s motion to shut down MyVote. He said he would leave it up to WEC to conform its practices to state law.

“I’m sure the implementation of my order is for the Commission to undertake, and if it’s felt that they’re not following the law, then I’m sure there will be litigation that will follow,” the judge said.

The judge’s final order states: “Defendant shall conform its conduct to the requirements of the law. No aspect or functionality of Defendant’s MyVote website is enjoined by operation of this order and declaration.”

Under the state law governing WEC, the commission must issue updates on what it is doing to make revisions necessitated by a binding decision of a state or federal court within 60 days of the decision’s publication.

In a Nov. 17 phone interview, Mr. Stone told The Epoch Times that overall, he was pleased with the ruling but said he was disappointed that the court did not enjoin WEC to immediately halt its absentee ballot application process.

“The good news is Judge Schroeder, in granting my motion for summary judgment, rejected WEC’s interpretation of the law and has placed the onus on WEC to fix things. To do that will require a new statute and the amendment of three others. That will take time.

“Even if WEC promulgates a new rule to try to make things right, that rule must be grounded in an existing statute,” Stone added. “There is no current rule or statute that authorizes what WEC has been doing on its MyVote webpages.”

Mr. Stone said that, in direct contravention of existing state law, WEC has been receiving absentee ballot requests from voters. It has been furnishing instructions to voters regarding their requests and has been furnishing the requests to local clerks.

“The law is clear and specific. Voters must request an absentee ballot only from their local clerk. No intermediary is provided for by statute,” Mr. Stone said.

He told The Epoch Times that he regards Judge Schroeder’s ruling on a voter’s standing and his acknowledgment that WEC went beyond state statutes as foundational.

“I think the precedent will strengthen the cases of plaintiffs in pending and future lawsuits against WEC,” he said.

Mr. Stone stated he has several more lawsuits of his own in the works against WEC.

He said his concern and respect for the sacrifice of those prosecuted for exposing the security problems with WEC’s absentee ballot application system is what inspires him to give his time and resources to honor them by continuing the fight.

Mr. Stone admitted that he relishes the nickname “Pro Se Jay,” given to him by friends, in reference to his representing himself in court.

“I just want honest government,” he said.

Wisconsin courts have ruled against WEC several times, including the case challenging the use of unlawful absentee ballot drop boxes and WEC’s use of unapproved federal National Form postcards to register voters.

A spokesperson for the Wisconsin Elections Commission told The Epoch Times in a Nov. 17, email, “The Kenosha Circuit Court ruling affirms that MyVote.wi.gov will remain available to all Wisconsin voters as we head into the 2024 election cycle.

“MyVote continues to be a convenient tool to register to vote, request an absentee ballot by email, track an absentee ballot, look up important voter information, and more.”