WAUKESHA, Wis. (CN) - The Wisconsin Court of Appeals reversed a lower court ruling Wednesday permanently banning voters from canceling an absentee ballot they have already returned so they can cast a new ballot, known as ballot spoiling.

The ban was handed down in 2023 by U.S. Attorney Brad Schimel, who at the time was a Waukesha County Circuit Court judge presiding over a lawsuit brought on behalf of Waukesha County voter Nancy Kormanik.

The conservative voting rights group claimed in the suit that the Wisconsin Elections Commission unlawfully advised municipal clerks and the public that ballot spoiling was permitted.

The Democratic National Committee and Rise, a liberal advocacy group focused on voting, intervened on behalf of the commission and appealed the ban, citing threshold procedural issues.

On Wednesday, an appellate panel reversed Schimel's decision in a brief, unpublished order that effectively dismisses the action entirely, finding that Schimel wrongly ruled on the merits because Kormanik failed to properly conduct service at the outset.

A challenge to the validity of an administrative rule or guidance document requires the plaintiff to serve the Joint Committee for Review of Administrative Rules so that it can intervene if it so chooses.

Kormanik attempted to satisfy that requirement by emailing a copy of her complaint to a private attorney who at the time was representing the Legislature in a separate action.

While Schimel found this to be "adequate, if perhaps not ideal," the appellate panel found the email did not satisfy the mandatory service requirements in the statute, which ultimately deprived Schimel of competency to decide on the merits.

"We cannot conclude on the record before us that Kormanik made timely service of the pleadings on the JCRAR because this record contains no such evidence, the court said in the per curium opinion.

Wednesday's opinion did not discuss the merits of Kormanik's challenge to the election commission's ballot spoiling guidance, and asserts that the circuit court should have dismissed the case on the service issue.

In his 2023 order, Schimel said that the law unambiguously makes absentee voting a privilege, not a right.

"None of the defendants point to any explicit language in the statutes that would authorize the scheme whereby a clerk spoils the ballot for the elector, at their request, and sends out a new blank ballot for a do-over," Schimel said in his 15-page order.

When addressing the issue of competency, Schimel conceded that it would have been better to serve the rules committee's designated agent but found that the purpose of the rule had been met.

The attorney who was served, he said, would likely have represented the rules committee if it had chosen to intervene in the suit, and even suggested the committee didn't complain it was left out.

However, the appellate panel emphasized that the law requires strict compliance for timely service to the co-chairs of the committee or a designee. Kormanik will have to refile if she wishes to try again for a permanent injunction blocking ballot spoiling.

The panel included Judges Lisa Neubauer, Mark Gundrum and Shelley Grogan.   

Schimel was named U.S. attorney for the Eastern District of Wisconsin in November 2025 after failing in his bid to flip the state Supreme Court as a conservative candidate.

The race attracted national attention not just for its potential to flip the ideological majority of the court but also for the public involvement of Elon Musk, who spent at least $20 million in an effort to get Schimel on the bench.

It was the most expensive state Supreme Court race in American history, racking up a $100 million bill. Justice Susan Crawford came out on top, stacking the liberal majority of the bench for years to come.

Schimel declined to comment on Wednesday's opinion, and the Wisconsin Elections Commission could not be immediately reached to comment on how the reversal will impact the upcoming spring election on April 7.

The ballot in that race will include a vacancy on the Wisconsin Supreme Court created by conservative Justice Rebecca Bradley, who decided in August 2025 not to run for reelection.

Wisconsin Appeals Judges Maria Lazar, a conservative, and Chris Taylor, a liberal, have thrown their hats in the ring. No matter the victor, the court will maintain its liberal majority.

Source: Courthouse News Service