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Wisconsin clerks can count ballots that are in a municipality’s possession by 8 p.m. on Election Day but don’t arrive at polling places until after that time because of election official errors, a Dane County judge ruled Tuesday.
The decision comes months after Dane County Circuit Judge Everett Mitchell first ruled that Madison was correct to count 23 ballots that the city had in its possession before Election Day in April but didn’t reach the polls until after the 8 p.m. deadline, a delay city officials say was caused by election administrator error.
“Where a qualified elector has complied with every statutory requirement, and the ballot was in the custody of the municipal clerk in time for delivery to the polling place, the failure of election officials to deliver it by 8:00 p.m. is not a lawful ground for rejecting the ballot,” Mitchell said in his Tuesday order.
Wisconsin law says that ballots must be “delivered to the polling place no later than 8 p.m.” on Election Day.
The lawsuit was filed by Margaret and Robert Honig, two of the 23 voters whose ballots in the state’s April Supreme Court race were delayed, and whose ballots the Wisconsin Elections Commission ordered not to be counted before Mitchell reversed the agency’s decision in May. It alleges that discounting properly cast votes over election officials’ errors would deprive voters of their constitutional voting rights.
The commission argued that a plain reading of Wisconsin law states that ballots arriving after 8 p.m. may not be counted. Dane County Clerk Scott McDonell disagreed, saying that state law can’t be reasonably interpreted to punish voters over election officials’ mistakes.
Ann Jacobs, a Democratic appointee on the Wisconsin Elections Commission, said she was delighted by the Tuesday decision.
“The errors of the clerk should not be visited upon innocent voters,” she said. “This is the right outcome.”
Wisconsin Elections Commission chair Don Millis, a Republican, didn’t immediately respond to a request for comment.
Mitchell clarified that the decision doesn’t extend deadlines for voters who return ballots late, nor does it allow officials to count late-arriving ballots if the voter was even partially responsible for the late arrival.
“Today’s decision is a cause for celebration, a major victory for voting rights in Wisconsin,” said Law Forward staff counsel Scott Thompson, who represents the Madison voters in the case.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
