The Wisconsin Elections Commission was told to adopt rules on ballot drop boxes, other issues. Partisan divisions may get in the way
MADISON – Wisconsin election officials may not be able to adopt formal rules on ballot drop boxes and correcting absentee ballot paperwork because of partisan differences.
Legislative auditors last month told the Wisconsin Elections Commission it needs to adopt rules that the Legislature can review on those issues. But the evenly divided commission may not be able to reach a deal on them.
That political reality became clear during a legislative hearing Tuesday on the auditors' review of how election officials performed their jobs last year during the COVID-19 pandemic.
Republican lawmakers questioned the work of elections officials, with GOP Rep. John Macco of Ledgeview saying he found it "repugnant" that the Elections Commission hadn't yet met to review an audit that came out more than two weeks ago.
Vicki Terpstra, the clerk for the Town of Spring Green, pushed back on that sentiment. She said legislators didn't do anything to help election officials when they were overwhelmed by health concerns and an unprecedented number of absentee ballot requests.
"My Legislature failed me," she told them. "I feel like I'm being persecuted and doing the best I can in a lousy situation."
Auditors say rules are needed
The auditors did not find any evidence questioning the outcome of the presidential election in Wisconsin, which Joe Biden won by nearly 21,000 votes. But they said the Elections Commission needs to adopt what are known as administrative rules to continue some of its policies.
Adopting such rules could be difficult because the commission is split 3-3 and the two parties may disagree on the details of any rules.
Even if the commissioners agree on the substance of the policies, Democrats may be reluctant to adopt them as administrative rules. That's because Republicans who control the Legislature have the power to reject any administrative rules they write.
In short, commissioners could put their policies at risk of being wiped out if they formalize them as administrative rules.
Michael Haas, the Madison city attorney and former director of the state Elections Commission, told lawmakers that adopting administrative rules is a time-consuming process. They need to give the commission an additional full-time lawyer if they want rules to be formalized, he said.
"If you want the perfect election, you have to fund it like you mean it," he said.
Republicans said the purpose of setting rules is to give lawmakers a chance to weigh in on them. They contended the commissioners can't avoid review by shirking their duty to adopt rules.
What stance the commission will take remains unclear. The commissioners have expressed frustration over the latest review because the Legislative Audit Bureau broke with its usual practices and did not provide the commission with a copy of its report before making it public.
Ann Jacobs, the Democratic chairwoman of the commission, told lawmakers last week no one from the commission could weigh in on the audit because the commission won't discuss it until it meets on Dec. 1.
"Personally, I was very surprised that the commission and the commissioners were not provided with the audit or had any input on the audit," said Commissioner Mark Thomsen, a Democrat.
"I feel it's unfair to go public without following historical precedent and the discussions that routinely follow," he said. "There is something amiss in what's happening and I am eager to learn who's behind this change in procedure."
Thomsen declined to say whether he wanted to adopt rules on ballot drop boxes or other issues, as the auditors recommended. Jacobs did not respond to messages.
Drop boxes
Republican Commissioner Dean Knudson in an interview said he thought the commission should adopt rules and expressed frustration the commission did not discuss the audit before lawmakers held Tuesday's hearing.
State law doesn't mention drop boxes. Knudson said he believes local officials can use them but believes state rules on them are needed because different communities handle them differently.
"The law is vague and it either needs to be interpreted through a rule or changed or we're going to stay in this same thing where we've got this disparate treatment of drop boxes everywhere, from lots of them to none of them, and without controls," he said.
At least 245 of the state's nearly 1,900 municipalities used drop boxes last year.
A lawsuit filed by conservatives this summer over the use of drop boxes is pending. A December hearing could determine whether they can continue to be used.
Witness addresses
The commission in 2016 set a policy backed by Republicans that says local officials can fill in missing addresses for witnesses on absentee ballot envelopes. In many cases, clerks say only parts of addresses are missing, such as the name of the city or ZIP code.
Some Republicans turned against the policy after Donald Trump's loss last year and argued clerks should not count absentee ballots if parts of the witness addresses were missing on the ballot envelopes.
Knudson was not on the commission when it adopted its policy. He said it made sense to have clerks fill in missing information like ZIP codes but believed the commission should adopt a formal rule on the issue.
Republican Commissioner Bob Spindell said he opposed the address policy his predecessors set. He said he didn't like that a deadlock on a formal rule on addresses — or anything else — would leave in place the existing policy.
Nursing homes
Perhaps the most controversial issue addressed in the audit is voting in nursing homes.
State law says clerks must send poll workers known as special voting deputies to nursing homes so residents can vote. The clerks are to send the voting deputies twice and after that can mail absentee ballots to residents.
Last year the commission told clerks not to follow that law and to instead immediately mail absentee ballots to nursing home residents. The commissioners said it didn't make sense to send voting deputies to nursing homes when they weren't accepting visitors because of the pandemic. Waiting to mail the absentee ballots would have resulted in some residents not having enough time to vote, they said.
The commissioners unanimously adopted their nursing home policy for the April 2020 election for state Supreme Court. They set similar policies for other elections in 2020 and early 2021 on 5-1 votes, with Spindell defecting.
Last week, Racine County Sheriff Christopher Schmaling recommended that all of the commissioners except Spindell be charged with felonies for adopting those policies.
The commissioners have insisted they did not commit any crimes and District Attorney Patricia Hanson has not said whether she will charge anyone. Schmaling and Hanson are Republicans.
The situation has prompted some Republicans to call for commissioners and commission director Meagan Wolfe to resign.
Wolfe won support in recent days in a letter signed by 52 election officials and election experts around the country
"Wisconsin is lucky to have her, and it would be hard to identify many election officials with more expertise, dedication, and integrity than Ms. Wolfe, who achieves all this within the highest standards of nonpartisan fairness," the authors wrote.
Among those signing the letter were Bob Bauer and Ben Ginsberg of the Election Official Legal Defense Network. Bauer served as a White House counsel under President Barack Obama and Ginsberg served as counsel for the campaigns of President George W. Bush and Mitt Romney.
Records in Madison
As part of their review, auditors visited communities around the state to look at ballots and ballot paperwork.
Officials in Madison would not let auditors handle election material because the U.S. Department of Justice has alerted election officials federal law requires them to keep tight controls on who has custody of election records.
Madison City Clerk Maribeth Witzel-Behl has said she told auditors they could look at election material but not touch it. State Auditor Joe Chrisman said at Tuesday's hearing that auditors wanted to physically handle absentee ballot envelopes to make sure their samples were statistically valid.
Republican legislators have said the auditors should have been able to handle the material because state law gives them broad access to government records. Leaders in the state Senate have empowered the Senate Elections Committee to investigate how Madison officials dealt with the issue.
Officials in Milwaukee County and Little Suamico told auditors they could not touch ballots but could handle other election records. Republicans are not looking into the situations there.
Underscoring their anger at the commission, Senate Republicans on Monday approved a resolution castigating the commission.
Multiple reviews underway
Separate from the audit, the Senate committee's review and the Racine County sheriff's investigation, Assembly Republicans have hired former state Supreme Court Justice Michael Gableman to review the 2020 election at a cost to taxpayers of $676,000.
Gableman, who has been conducting much of his work in secret, has focused on grants the nonprofit Center for Tech and Civic Life gave to local governments to help run their elections. Before they began their work, Gableman and an attorney he hired claimed without evidence that the election was stolen.
Gableman is slated to address the Assembly Elections Committee on Wednesday.
The disputes over elections have prompted former Lt. Gov. Rebecca Kleefisch to recruit more Republicans to serve as poll workers. Kleefisch, who is running for governor, recently argued Republicans need to hire "mercenaries" and launched digital ads Tuesday asking Republicans to sign up as poll workers.
Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.