Absentee ballot
FILE - Absentee ballot and return envelope (2020)

The lawsuit seeking to discount military votes comes from the Republican conspiracy theorist who chairs the Assembly Elections committee—and disgraced elections “investigator” Michael Gableman.

[Editor’s Note: This story has been updated to reflect that a judge rejected the request to sequester military ballots on Tuesday. A status hearing on the merits of the case will be held in January.]

With less than 24 hours until polls open on Election Day, Wisconsinites who serve America overseas in the armed forces found themselves temporarily caught up in a Republican lawsuit that could have led to their absentee ballots being sequestered and their votes uncounted while challenges are pending.

Rep. Janel Brandtjen (R-Menomonee Falls), the chair of the state Assembly Committee on Elections, filed a lawsuit asking a Waukesha County judge to segregate absentee ballots from members of the military and not count them Tuesday with ballots from every other Wisconsin voter. Circuit Judge Michael Maxwell ruled that sequestering military ballots was a “drastic remedy” for a “political argument.”

Brandtjen was joined in the lawsuit by the right-wing Thomas More Society, which is represented by former conservative Wisconsin Supreme Court Justice Michael Gableman. 

Brandtjen and her fellow plaintiffs wanted the military ballots to be set aside until each can be verified. They claim the current system to request military absentee ballots is faulty because a deputy elections commissioner from Milwaukee, Kimberly Zapata, requested three ballots for fictitious military members and sent them anonymously to Brandtjen’s home.

Zapata was immediately fired once it was discovered she had sent the fake ballots, and she is now facing one felony and three misdemeanor criminal charges.

Brandtjen and other Republicans claim Zapata’s action and a similar publicity stunt by a right-wing activist in Racine County earlier this year show vulnerabilities in the absentee ballot request system that can lead to fraud.

Neither Gableman’s investigation nor Brandtjen’s committee hearings—featuring a parade of conspiracy theorists—found any evidence of widespread fraud. The only known instances of potentially criminal ballot fraud have been committed by Zapata and Racine-area activist, Harry Wait. Gableman was later fired by Assembly Speaker Robin Vos, who originally hired him to appease former President Donald Trump amid his untrue allegations about fraud being the reason he was defeated by President Joe Biden.

Will Attig, executive director of the Union Veterans Council (UVC), said in a Monday afternoon news conference that their group filed to intervene and “stop an unjust lawsuit that will disenfranchise the brave men and women who serve our country. It is an affront to our Constitution and to democracy.”

Gen. (Ret) Bill Enyart, UVC National Military Advisor and 36-year US Army and Air Force veteran, said he cast his first absentee ballot in 1969 and said the plaintiffs are “trying to take advantage of active duty and National Guard members,” noting that Guard members have also served in combat zones and depend on absentee ballots to exercise their right to vote.

“It’s not just our active duty,” Enyart said. “It’s our Reservists and our National Guard who are paying the price for this partisan attack on absentee voting. We’ve seen lawsuits filed all over this great nation by these right wing groups that want to curtail voting rights. Now, tell me, how can you justify curtailing the voting rights of our brave citizens who take an oath to defend this Constitution? Yet you want to deprive them of the constitutional right to vote? I find it absolutely appalling, outrageous and an affront to every patriot, veteran and service member.”

Chris Yatchak, Milwaukee UVC chapter chair and a longtime local poll worker, called the Republican lawsuit an unacceptable attack on the men and women whose “sacrifice assures that we have free and fair elections.”

Maxwell was critical of the Wisconsin Elections Commission for not providing thorough guidance on how more than 1,800 municipal clerks should maintain a list of military voters, who are not required to register before voting and do not have to provide identification when requesting an absentee ballot. Despite the criticism, Maxwell would not go so far as to set aside approximately 1,400 military ballots that have been returned so far.

“Our fighting men and women abroad deserve the best, fairest, and free execution of election law to ensure that every legitimate military vote is counted.” Maxwell said. But “sequestering is a drastic remedy—at least a temporary disenfranchisement of our military’s voters while we figure out if bad votes were cast.”