An attorney for the Republican Party of Wisconsin told local officials ahead of a key vote last week that Madison should not count 23 absentee ballots from last week’s Supreme Court election that arrived at polling places after they had closed — a dispute that could set up a legal challenge.
The GOP weighed in hours before the Madison Board of Canvassers voted unanimously on Friday to count the affected ballots. On Monday, the Dane County Board of Canvassers followed suit, voting 2-1 to count the ballots.
Election officials make these judgment calls all the time, and, historically, courts have allowed them. Officials are routinely called upon to address whether a witness address is complete, whether a damaged ballot can still be counted, or the like. These issues are usually resolved locally and without controversy.
But disputes like this — over how to interpret the law and whether late-arriving ballots should count — are harder to contain. Experts say leaving those decisions to individual counties risks inconsistent outcomes across Wisconsin, especially in a high-stakes election season.
Rick Hasen, an election law professor at UCLA, said that kind of patchwork approach is a recipe for conflict.
“This is not tenable in the current political atmosphere,” Hasen said.
Dane County votes to count ballots despite GOP opposition
The kind of disagreement worrying Hasen was on full display at Monday’s meeting of the Dane County Board of Canvassers. Two canvassers said there was a clear answer about what to do with the ballots — but they arrived at different ones.
“I don’t think this is hard,” Dane County Clerk Scott McDonell said.
“I don’t either,” said canvasser Mike Willett, a former Dane County supervisor and a Republican appointee on the board.
McDonell voted to count the ballots, while Willett voted against it, saying the board had previously rejected late-arriving ballots and he didn’t want to create exceptions.
Erik Paulson, the other Democrat on the board, sided with McDonell to count the ballots.
Republican opposition was already taking shape before the vote.Emails obtained by Votebeat show that Nicholas Boerke, an outside attorney for the Wisconsin GOP, urged city and county officials on Friday not to count the ballots.
“We recognize this situation may have resulted from an unfortunate logistical failure. However, administrative error does not create statutory authority that otherwise does not exist,” he wrote.
“Voting absentee is a privilege granted by the Legislature that comes with inherent risks and the election day deadline for the receipt, processing, tabulation, and counting is mandatory,” he continued.
The canvass, Boerke told officials, was a “ministerial process, not a vehicle for processing absentee ballots” that weren’t received by the time dictated in law, “nor a mechanism to conduct an unauthorized recount.”
Amber McReynolds, an assistant attorney for Madison, responded that counting the ballots was in line with court decisions and past Wisconsin Elections Commission recommendations.
Boerke responded, telling officials the GOP maintains “that the statutory language is clear — absentee ballots that are not timely delivered to polling locations before 8 p.m. may not be counted.”
Boerke didn’t immediately respond to a request for comment about whether the GOP would sue Madison.
Error led to 23 Madison absentee ballots arriving late
The ballots at issue arrived at the city clerk’s office on Monday, April 6. The absentee ballot courier carrying the ballots left a city facility at 6:30 p.m. on Tuesday, April 7, to deliver ballots to 17 polling places, but the courier did not make it to the last few polling places until after the 8 p.m. deadline.
Officials said these 23 ballots were correctly, legally cast and checked into the pollbooks just like any other absentee ballot — the only problem was that that happened after polls formally closed.
Madison Clerk Lydia McComas said it was a critical error to put just one person in charge of delivering ballots to so many polling places. Madison is the largest city in Wisconsin that still chooses to count absentee ballots at individual precincts rather than at a central location — a decision that requires ballots to be transported across the city on Election Day.
It remains unclear, however, why the ballots departed from the city’s facility so late in the day. Across the state, clerks design their Election Day logistics to ensure ballots are delivered by that cutoff. McComas said it was her and her staff’s understanding that the law required ballots to be delivered to polling places by 8 p.m.
There appears to be little appetite among clerks to formally extend that deadline.
“I do not plan to take advantage of whatever ruling comes here tonight,” McComas said ahead of the county vote, implying that she wouldn’t take advantage of the canvassing board’s leniency and plan for future late deliveries accordingly.
McDonell said rejecting the ballots would penalize voters for something outside their control. “And I think that’s very problematic,” he said.
Disagreement over Wisconsin election law is ripe for legal challenges
The statute at issue in this situation says ballots must be returned so that they’re delivered to polling places “no later than 8 p.m. on election day.”
“If the municipal clerk receives an absentee ballot on election day,” the law continues, “the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.”
At the county-level meeting on Monday, county attorney David Gault, arguing that the ballots should be counted, took the position that the law does not apply here because the ballots were received before Election Day.
“The clear intent of everything in the statutes,” he said, is not to punish the voter for mistakes made by election officials.
“That’s certainly an interpretation,” said Willett, the conservative member of the county canvassing board. “When we start making these exceptions, these exceptions just grow.”
What’s clear to Bryna Godar — a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative — is that the statute is “ambiguous about this type of situation.” She said one part of the law appears to govern voters returning ballots on time, while another addresses ballots received on Election Day — leaving situations like this unclear.
“Because there is no voter fault here from what we know so far, there would be good reason to still count those ballots,” she said, adding that rejecting them could raise constitutional concerns.
At the city meeting on Friday, McReynolds noted that courts ruled in the 1970s and 1980s that ballots should be counted as long as there’s “substantial compliance” with election laws and no evidence of “connivance, fraud, or undue influence.”
In 1985, however, the Legislature passed a law emphasizing that absentee voting is a privilege exercised outside the usual safeguards of the polling place and that ballots not meeting legal requirements “may not be counted.”
Boerke cited that law in his exchange with the city and county, as conservatives have done repeatedly in issues of absentee ballot missteps and controversies.
Still, the courts have continued to show flexibility. In a 2004 dispute, the Wisconsin Supreme Court held that “the failure on the part of the election officials to perform their duties should not deprive the voters of their constitutional right to vote.”
Lawyers often say that it’s more important for a law to be certain than for it to be right, said Hasen, the UCLA professor. Uncertainty — especially when there are good-faith arguments on either side — is one of the most dangerous situations in election law.
“That just creates all kinds of issues of equal protection and due process and election fairness,” he said. “So the more that these issues can be resolved one way or the other, not in the heat of a very close election, the better it is.”
If an election hinges on ballots like these, he said, a lawsuit is all but inevitable.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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