Wisconsin voters who returned absentee ballots for the August primary cannot cast new ones, a Dane County judge ruled Wednesday, siding with the Wisconsin Elections Commission’s controversial July guidance that banned ballot spoiling in the gubernatorial race.
The ruling by Judge David Conway rejected arguments by three voters that the commission’s policy violated their constitutional rights and state law. The decision came as Wisconsin Democrats navigated the chaos of a primary race that saw multiple candidates drop out and one reenter just weeks before the election. More than 100,000 voters had already cast absentee ballots at the time of the ruling.
The dispute stemmed from extraordinary upheaval in the Democratic primary for governor. Lieutenant Governor Sara Rodriguez dropped out after a campaign finance scandal, while Milwaukee County Executive David Crowley suspended his campaign before reentering the race days later. Former state economic development director Missy Hughes also withdrew earlier in the campaign. Those candidates’ names remained on ballots despite their departures, leaving voters who had already submitted absentee ballots without the ability to cast new ones under the commission’s new guidance.
Three voters who had cast absentee ballots for Rodriguez filed the lawsuit, backed by the Democratic Party of Wisconsin, arguing that the Elections Commission’s July 9 guidance was unconstitutional. They contended it violated the state constitution’s guarantees of voting rights and equal protection, and that it was patently unfair to prohibit absentee voters from spoiling their ballots when Election Day voters could do so up to twice.
Ballot spoiling, the rarely used practice of canceling a submitted ballot to request a new one, has become legally contentious in Wisconsin. In 2022, Republicans challenged the Elections Commission’s previous guidance allowing the practice, and a Waukesha County judge initially agreed the commission must rescind it. However, a state appeals court later halted that ruling, and in February 2026, another appeals court repealed it on technical grounds without addressing the merits.
When the Democratic gubernatorial chaos unfolded, the commission faced mounting pressure. By the time Rodriguez dropped out, nearly 68,000 voters had returned ballots. The Democratic Party urged the commission to allow ballot spoiling, arguing voters who submitted their ballots under the previous rules expected they could change them if circumstances changed. Democratic U.S. Representative Mark Pocan called the commission’s policy “undemocratic with a small d.”
The commission voted 4-2 on July 9 to issue guidance prohibiting absentee ballot spoiling for any reason other than mistakes or errors in ballot preparation. One Democrat joined three Republicans in voting to restrict the practice. The decision shocked some because it reversed the commission’s previous position and the legal arguments the state Attorney General had defended for years.
Two dissenting commissioners, Democrats Ann Jacobs and Mark Thomsen, later filed a motion to intervene in the lawsuit, siding against their own commission’s guidance. They argued that absentee voters faced unlawful discrimination compared to in-person voters, who could spoil their ballots and obtain replacements.
Voters challenging the commission presented arguments focusing on the timing and harm. Their attorney, Eduardo Castro, emphasized that voters who submitted ballots before the July 9 guidance change had reasonably believed they could spoil their ballots if circumstances shifted. He argued the sudden policy change meant plaintiffs would be disenfranchised.
The Elections Commission and the state Attorney General’s office argued that allowing ballot spoiling so close to the August 11 election would create administrative chaos for local election clerks, who would need to dig through sealed ballot containers and storage to process requests. Commission Chair Don Millis said such late changes would be an “administrative nightmare” and could lead to mistakes that would cause ballots to be miscounted or discarded.
With early voting having begun and more than 100,000 absentee ballots already returned, the case moved on an expedited timeline. Judge Conway heard arguments on Tuesday and issued his ruling by 4:30 p.m. Wednesday as promised, recognizing the urgency with the election just two weeks away.
The ruling left voters who cast ballots for candidates who later dropped out without recourse before August 11. In-person voters heading to polls through Election Day would maintain their ability to spoil their ballots, a discrepancy that had troubled the two dissenting commissioners and the voters challenging the policy.
The decision may not be the final word on the controversy. Legal experts had predicted more litigation would follow, as the question of ballot spoiling has proven durable in Wisconsin politics. The issue involves fundamental questions about voting rights, administrative feasibility, and when states can change election rules during voting.