Waukesha County judge rules military absentee ballots can be counted on Election Day

NOW: Waukesha County judge rules military absentee ballots can be counted on Election Day

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WAUKESHA, Wis. (CBS 58) -- A Waukesha County judge ruled military absentee ballots can be counted with everyone else's on Election Day. 

Judge Michael Maxwell denied a motion for a temporary injunction on military ballots on Monday, Nov. 7.

"I believe that our men and women that are fighting abroad for our freedom deserve no less than the best, fairest, free execution of our election laws to ensure that every legitimate military vote gets counted," Maxwell said.

Election officials said military ballots make up a small fraction of votes. About 1,400 were cast in Tuesday's election so far. 

This ruling comes after a now fired Milwaukee election official sent a state Assembly member three military ballots with fake names in an effort to expose alleged vulnerabilities. 

Concerned Veterans of Waukesha County and others, including Republican Rep. Janel Brandtjen, sued the Wisconsin Elections Commission (WEC) and argued military ballots shouldn't be counted until the voters could be proven eligible. 

"There's nothing to be done if those, if fraudulent ballots are counted," Attorney Michael Gableman, a former Wisconsin Supreme Court justice, said.

Gableman, representing the plaintiff, asked the judge to order the WEC to provide guidance to clerks about the required list of military electors. 

Military members can vote without registering or providing proof of residency in Wisconsin.

State law requires clerks to keep a current and accurate list of active military at each polling location.

Gableman said it's unknown if all or any municipalities have this list. 

"The function of this list is to serve as some kind of, as a barrier, as a preventive measure, to prevent people from making up names and saying that those names belong to military men and women," Gableman said.

Meanwhile, Assistant Attorney General Lynn Lodahl argued that they have the wrong defendant.

She said WEC isn't bound by the law of that list, the clerks are.

"Clerks have an independent duty to follow the law," Lodahl said.

Judge Maxwell found that to be the case.

He said if an issue with a military ballot arises on Tuesday, it can be challenged just like any other ballot. 

"In my opinion, there's a political argument being made here," Maxwell said.

Along with his ruling, Maxwell said WEC should be doing a better job of keeping clerks informed of the law. 

"If WEC's job on the 361 days that we're not administering an election can't be to make sure municipal clerks do their job, I'm not sure why we have that state agency at all," Maxwell said.

A status hearing was scheduled in this case for Jan. 31.

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