Editor’s note: This story has been updated with a ruling from a judge after a hearing Monday afternoon.
MADISON, Wis. — A Wisconsin judge on Monday, less than 14 hours before polls opened, refused to order that military absentee ballots be pulled aside and sequestered until it can be verified that they were cast legally, saying that would be a “drastic remedy” that could disenfranchise voters.
The Republican chair of the Wisconsin Assembly’s elections committee along with a veterans group and other voters sued on Friday, seeking a court order to sequester the ballots.
Waukesha County Circuit Judge Michael Maxwell denied that request for a temporary restraining order in a ruling from the bench following a two-hour hearing Monday afternoon.
“That just seems to be a drastic remedy,” he said of sequestering the ballots.
The judge also denied a request from state Rep. Janel Brandtjen, who was represented by attorneys from the conservative Thomas More Society, to order the elections commission to withdraw its guidance to clerks about absentee ballots from members of the military. Brandtjen has pushed conspiracy theories about the 2020 election.
The judge said the case did raise questions about whether the bipartisan Wisconsin Elections Commission was adequately informing the state’s 1,800-plus election clerks about their duty to maintain a list of eligible military voters.
The lawsuit comes after a top Milwaukee County elections official was charged with fraudulently requesting three military ballots using fake names and having them sent to Brandtjen as way to expose vulnerabilities in Wisconsin elections. Kimberly Zapata, deputy director of the Milwaukee Election Commission, was fired last week and now faces charges of felony misconduct in office and three misdemeanor counts of election fraud.
Michael Gableman, a former Wisconsin Supreme Court justice who was hired by Republicans to investigate the 2020 election, now works for the Thomas More Society and represented Brandtjen. He argued that legitimate military absentee voters could have their votes negated by fraudulent ones, and the only way to prevent that was to sequester all the ballots to ensure they’re valid.
“How else could we possibly ensure that only the authentic military ballots are counted?” Gableman said.
Lynn Lodahl, an assistant attorney general representing the elections commission, called that a “completely unworkable request” with no legal basis.
“There’s no process in the statutes for sequestration,” she said. “The plaintiffs don’t explain what this means. They don’t explain how this will work.”
Military ballots comprise a tiny fraction of all ballots cast in the state. On average, they represent about 0.07% of all absentee ballots requested, according to the Wisconsin Elections Commission. In the 2018 election, 2,700 military ballots were requested and as of Thursday, 2,747 military ballots had been requested for the current election.
In Wisconsin, military voters are not required to register to vote, meaning they don’t need to provide a photo ID to request an absentee ballot.
All absentee ballots must be received by the close of polls at 8 p.m. Tuesday in order to be counted. As of Sunday, more than 715,000 absentee ballots had been returned.
The Union Veterans Council, a constituency group of the AFL-CIO, intervened in the lawsuit. The group’s executive director, Will Attig, called the lawsuit a pointless “attack on people who are actively serving this country.”
Chris Yatchak, chair of the group’s Milwaukee chapter, said during a virtual news conference Monday that the lawsuit was an “outrageous attempt by a single individual to try and cast doubt on a free and fair election process.”
“I’m just appalled at this,” Yatchak said. “It’s a disgusting act.”
The case is certain to increase the pressure on the bipartisan state elections commission, which Republican gubernatorial candidate Tim Michels has said he wants to eliminate if he wins Tuesday’s election.
Gableman was fired from his investigatory job earlier this year by Republican Assembly Speaker Robin Vos after his work was widely ridiculed and did not present any evidence to overcome President Joe Biden’s victory. He previously appeared in court representing Harry Wait, who was charged with election fraud and identity theft after requesting and receiving absentee ballots in the names of legislators and local officials in July.