Assembly Speaker Robin Vos (left) and Senate Majority Leader Scott Fitzgerald. Credit: Journal Sentinel files

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Waukesha — A Waukesha County judge tossed out a Republican lawsuit Wednesday attempting to force changes to the design of the Nov. 4 ballot, prompting the leader of the state Assembly to say he would overhaul Wisconsin's elections agency.

Waukesha County Circuit Judge James Kieffer dismissed the case after 25 minutes of arguments because those who brought the suit had not followed a procedure requiring them to file a complaint with election officials or a district attorney before bringing a lawsuit.

The case was brought last week by the campaign committees of Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau).

In another blow to the lawsuit, Kieffer ruled Vos and Fitzgerald's political committees lack the ability to sue over the ballots. That power belongs to electors who believe their voting rights have been violated.

Vos and Fitzgerald had argued the ballots designed by the state Government Accountability Board are confusing. The format of ballots vary by county, but if successful, the suit could have resulted in ballots in some areas being redesigned and reprinted.

Vos said he did not know if he would appeal the decision. But he said he would seek to overhaul the accountability board in the legislative session that begins in January.

"More than anything, the process has reiterated why the GAB is broken and should be seriously revamped next session," Vos said in an interview.

The elections and ethics agency consists of six former judges and its unique structure has been hailed by academics. But partisans from both parties in Wisconsin have been frustrated by the accountability board at times, and Republicans at times have called for abolishing it.

"The staff appears to be running a rogue agency that is accountable to no one," Vos said.

A nearly unanimous Legislature created the accountability board in 2007. Before then, elections were overseen by the State Elections Board, which consisted of partisans appointed by elected officials and the heads of political parties.

"It might have to go back to that," Vos said.

Reid Magney, a spokesman for the accountability board, declined to comment on what Vos said about the agency.

As for the ballots, the two legislative leaders contend there is not enough separation between the offices being sought and the name of the first candidate for each race. They also argue a lack of shading and lines makes it difficult to tell where one race ends and the next begins on the ballot. Overall, the design of the ballots could lead to some voters thinking there is only one candidate in some races and could result in some voters missing entire races.

Democrats are listed first on this year's ballot, and the legislators contend some voters may wrongly believe only one candidate — a Democrat — is running for some offices.

Democrats are listed first because they won the most presidential votes in Wisconsin in 2012.

Two years ago, Republicans appeared first on the ballots because they had won the most votes in the 2010 race for governor.

State law requires challenges to the design of ballots to be made first with the accountability board or a district attorney. Because Vos and Fitzgerald never filed such a complaint, the court couldn't consider their lawsuit, the judge determined.

"That was not done in this particular case and that is crucial to this court's decision herein," Kieffer said.

The accountability board designs the template for ballots, and local clerks insert the names of candidates in their areas.

The clerks are required to "substantially follow" the template, but they often make some formatting changes to the ballots.

The clerks submit a sample of their local ballot to the accountability board, and the two then work out any final changes.

The accountability board says it had never stopped a clerk from using a ballot because of formatting issues.

The accountability board in July gave clerks a new ballot design for the Nov. 4 election.

Kevin Kennedy, the board's director, has said the new design was meant to be clearer and thus make it easier to vote.

But clerks from both parties have raised concerns about the accountability board's design, saying they found it confusing. In response, many of them added lines or shading to the ballots in their counties, and Kennedy said Wednesday voters would not be confused by the ballots.

Joseph Olson, an attorney for the lawmakers campaign committees, told the court he believes ballots in 42 of the state's 72 counties are flawed.

The fight over ballots sharpened earlier this month, when the accountability board clashed with Brown County Clerk Sandy Juno, a Republican.

In a Sept. 3 email, Juno agreed to most of the changes the accountability board suggested for her ballot but said she was keeping shading they asked her to remove because she believed it made the ballot clearer.

Diane Lowe, the board's lead elections specialist, said an hour later that it was impossible to please all the clerks with the design of the ballots, but they needed to keep in mind who is responsible for that work.

"There are several county clerks out there that do not respect the fact that the GAB has been given authority by the Legislature to prescribe all official ballot forms and that the county clerks are to follow that design. They apparently also do not appreciate the uniformity that is trying to be achieved," Lowe wrote.

She added:

"In summary, you can decide to shade your offices or whatever else you think needs to be changed, but you will do it without GAB approval."

Juno later wrote to Kennedy, the board's director, to say she found Lowe's comments "defamatory and counterproductive to us having a cooperative working relationship."

Magney, said Thomas Barland, the board chairman, recently discussed the matter with Juno and her concerns had been addressed.

Juno agreed with that characterization this week.

"It's unfortunate this whole thing played out the way it did," Juno said.