On September 12th the 7th Circuit Court of Appeals issued a stay of Judge Lynn Adelman’s April 28th permanent injunction of the implementation of 2011 Wisconsin Act 23 (the “Act”), the so-called Voter ID law. In light of the Court’s action, the Government Accountability Board (“GAB”) has advised that Wisconsin elections officials will be required to enforce the provisions of the law for the upcoming November elections. With the exception of military and overseas voters, all voters casting a ballot in the November election will be required to present a valid photo identification

Although voters will be required to produce an “acceptable” form of identification to vote in person on November 4th, absentee voters will also be required to comply with the law. As a result, the Court’s action will have an immediate impact on clerks’ administration of the upcoming election. This is particularly true of absentee voting, owing to the September 18th deadline for clerks to mail ballots to those voters who have already requested one.

Today the GAB issued the following guidance regarding the treatment of three categories of absentee ballots, including the more than 11,000 absentee ballots that have already been mailed to voters:

  • Absentee Ballots Already Mailed to Voters. Clerks are required to contact voters who have already received a ballot to inform them that they must submit a copy of their photo ID in order for their vote to be counted.
  • Absentee Ballots Requested, But Not Yet Sent. Clerks are required to contact voters prior to sending an absentee ballot requesting a copy of their photo ID. Voters must actually submit a copy of their ID before clerks are allowed to send the ballot.
  • Future Requests for Absentee Ballots. All future absentee ballot requests made by voters must include a copy of the voter’s photo ID. If a voter fails to include a copy, the clerk must contact the voter to inform them of the need to provide a copy of their photo ID. Clerks should not mail a ballot until a copy of the voter’s ID has been received. Clerks must also include instructions on how to comply with voter ID along with the absentee ballot.

All absentee ballots not accompanied by a photo ID must be treated as provisional ballots. Provisional ballots are not included in the final election tally unless a voter presents his or her photo identification to to poll workers by 8:00 p.m. on Election Day or to the municipal clerk by 4:00 p.m. of the Friday following the election. The GAB has indicated that it will make additional periodic guidance available to clerks on its website.

For more information, or assistance complying with the Voter ID law, contact your Stafford Rosenbaum Government Law Attorney. Our attorneys can provide compliance advice, draft voter notification letters and analyze legal issues that may arise as a result of implementation of the law.

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