23 late-arriving Madison absentee ballots must be counted, judge rules

“Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here . The Wisconsin Elections Commission was wrong to order Madison to remove 23 late-arriving absentee ballots from its count, a Dane County judge ruled Thursday, ordering the city to count them in the soon-to-be-certified Wisconsin Supreme Court race. The ruling comes in response to a lawsuit brought by two of those 23 voters, who alleged that the Wisconsin Elections Commission unconstitutionally ordered Madison not to count the ballots. The absentee ballots at issue arrived at the polls after 8 p.m., a delay city officials say was caused by election administrator error. State law requires that absentee ballots be “delivered to the polling place no later than 8 p.m.” on Election Day, but the lawsuit alleged that it would be illegal to disenfranchise properly cast votes over election officials’ errors. “Voters who comply with every element that is required for them to vote a special absentee vote, and then not being allowed to have the votes count, is contrary to what good law in Wisconsin has been,” Dane County Judge Everett Mitchell said from the bench. The ruling came after an hour-long back-and-forth between attorneys for the Wisconsin Elections Commission and the plaintiffs over the rights of voters when election officials commit errors. In briefs and in court, lawyers for Law Forward, who represent the plaintiffs, referenced several past rulings in the state that they say established a long-running precedent that voters can’t be deprived of their constitutional voting rights due to election officials’ errors. In court, Charlotte Gibson, a Wisconsin Department of Justice lawyer representing the Wisconsin Elections Commission, argued that the precedent wasn’t that simple — and that the onus was on both voters and election officials to ensure ballots are counted on time. In ordering Madison and Dane County not to count the ballots weeks after the election, the Wisconsin Elections Commission argued that state law simply does not permit late-arriving ballots to count, even as some commissioners expressed ambivalence about that rule and reluctance about disenfranchising voters in the process. Wisconsin Elections Commission Chair Ann Jacobs, a Democrat, said in a statement after the ruling that she was pleased Mitchell reversed the WEC decision and ordered the ballots counted. Jacobs had voted to exclude the ballots, arguing the commission was bound by state law, but said at the time that she hoped a court would overturn the decision. “As I have indicated previously, as an administrative agency we are bound by the language of the state statutes which precluded counting those ballots,” Jacobs said in a statement. “That said, it has been my firm belief that voters should not be penalized by the actions of a clerk as these 23 voters were. The right to vote should not be predicated on a clerk failing to deliver properly and timely submitted ballots.” Mitchell’s decision means the votes removed in response to the WEC order will now be added back to the count. Those aren’t necessarily the exact 23 ballots that were delivered late, though. Due to poll workers not heeding Madison Clerk Lydia McComas’ request to uniformly mark the late-arriving ballots, Madison officials conducted what’s known as a drawdown to remove 23 random voters’ ballots from the count. It remains unclear why there was such a delay between the ballots’ arrival at the elections office on Monday and their delivery to the precincts for counting. Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org .

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