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Update, May 5, 5:40 p.m: This story has been updated with additional information.
Dane County on Tuesday voted to appeal in court a Wisconsin Elections Commission order directing the county to remove 23 late-arriving Madison votes from its election certification of the recent state Supreme Court race after the commission said initially counting those votes was an illegal abuse of discretion.
The Madison Board of Canvassers also voted Tuesday to remove 23 ballots from the count. But instead of identifying and discarding the specific late-arriving ballots, officials in most cases carried out what’s known as a “drawdown,” randomly selecting ballots to remove.
Records obtained by Votebeat show that while Madison Clerk Lydia McComas instructed poll workers on Election Day to mark late-arriving ballots with a uniform identifier, that directive was issued late, and was not consistently followed. As a result, officials were unable to identify all of the late-arriving ballots. In 20 of the 23 cases, the ballots removed were likely not the ones that were delivered after the deadline.
That’s in line with the state’s controversial drawdown law, which calls for election officials to remove random ballots when there are more ballots than properly documented voters, or when absentee ballots outnumber correctly completed “ballot certificates” — the information on the envelope affirming a voter’s and witness’s identity.
The conflict between the county and election commission centers on 23 Madison absentee ballots that city officials didn’t deliver to the polls until after 8 p.m. on Election Day, even though those ballots arrived at the city’s election office on the Monday before the election. Those ballots were initially counted by the city and county despite a state law requiring that absentee ballots be “delivered to the polling place no later than 8 p.m.” in order to be tallied.
Madison argued that counting those late-arriving ballots was in line with past court decisions holding that voters shouldn’t be disenfranchised solely for clerks’ mistakes. The Dane County Board of Canvassers sided with the city at the time, voting 2-1 to count the ballots the week after the election.
Then the state election commission last week said that the 8 p.m. deadline is not flexible — even if election officials’ errors are the only reason votes arrived that late. Commissioners ultimately voted 5-1 last Thursday to order Dane County and Madison not to count the 23 ballots, though one of the commissioners who voted in favor, Democratic Chair Ann Jacobs, said at the time that she hoped Madison or Dane would appeal the commission’s order in court.
“Like so many, I am unhappy that the law requires that the actions of the clerk penalize a lawful, proper voter, and I think our judiciary needs to address that conflict,” Jacobs told Votebeat after the Dane County vote on Tuesday. “I wish it was within the province of the commission to do so. I don’t think it is, so I am hopeful the judiciary will see and address this conflict.”
The county decided to appeal the order largely because the statute stipulating that ballots must be delivered by 8 p.m. “specifically addresses what should happen if the ballot is returned to the clerk on election day,” a legal memo from Dane County corporation counsel David Gault states. Because Madison received the ballots on the Monday before Election Day — not on Election Day itself — that statute doesn’t apply, he said.
In any case, Gault wrote, that law “should not be construed to disenfranchise an elector who has strictly complied with all statutory requirements to cast an absentee ballot. Such a construction would, in my opinion, be unconstitutional as applied to the facts of this case.”
While voting to appeal, the Dane County Board of Canvassers also ordered Madison to redo its certification without counting those 23 votes — in line with the commission order. Madison redid its canvass late Tuesday morning without those 23 votes. Madison City Attorney Mike Haas said the city has 30 days to appeal the commission decision and hasn’t decided yet whether to do so.
Dane County Clerk Scott McDonell, a Democrat, told Votebeat that he hopes the Board of Canvasser’s appeal can be filed and ruled on quickly enough to reinstate those votes. But because the exclusion of those votes didn’t affect the outcome of any race and a ruling before the May 15 state deadline to canvass is unlikely, he said his focus is more on how courts say these situations should play out going forward for voters.
“They should not be penalized by a clerk error and have their constitutional right to vote taken away,” he said.
Drawdown appears to stem from breakdown in communication
As it appeared increasingly likely that some ballots would arrive after 8 p.m., McComas sent a Microsoft Teams message around 7 p.m. on Election Day that “if folks get courier delivered ballots after 8pm, please mark on the ballot something uniform, like a circle, and then count them,” according to documents obtained by Votebeat.
But that instruction appears to have been followed for just three of the 23 ballots — one from Ward 77 and two from Ward 132. In the other instances, election officials “could not determine” which ballots were delivered late. As a result, officials turned to the remedy in the law and conducted a drawdown, randomly removing 20 ballots from the count.
It remains unclear why the marking instructions were not followed. In an email to the Wisconsin Election Commission on Monday, McCommas said it was possible the chief inspectors didn’t follow her instructions, but did not explain further.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
