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Wisconsin election clerks race to understand absentee ballot ruling

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Wisconsin’s 1,800-plus election clerks were racing Thursday to understand a judge’s ruling nine weeks before the election that some fear could lead to absentee ballots being counted in parts of the battleground state but rejected in others.

A judge on Wednesday barred the bipartisan Wisconsin Elections Commission from issuing guidance to clerks, in place since 2016, about how to handle absentee ballots in which the accompanying certificates — typically the envelope the ballot is mailed back in — are missing all or parts of the address of the person who witnessed the voter casting the ballot. Clerks say that now means it is up to them to determine which ballots should be counted and which should not.

“What is tricky is: What is an address?” said Dane County Clerk Scott McDonell. “You’re going to get varying interpretations.”

A small percentage of voters and witnesses made mistakes on their absentee ballot certificates in 2020. Here are some examples of the kinds of errors that were either allowed or corrected by the clerk in order to permit the ballot to be counted.

State law requires clerks to either return ballots missing a witness address to the voter to be corrected or not count the ballot. The Elections Commission in 2016 told clerks that they could add information themselves if all or part of an address was missing.

Clerks only address problems on the certificate and not the ballot itself. Republicans did not contest the practice until after Donald Trump’s narrow loss in 2020, when nearly 1.4 million voters cast absentee ballots and COVID-19 vaccines weren’t available yet.

Waukesha County Circuit Judge Michael Aprahamian on Wednesday said state law does not allow clerks to fill in missing information. He granted a request from Republicans, including the GOP-controlled Legislature, to prohibit the Elections Commission from telling clerks they can do that. Aprahamian was appointed by former Republican Gov. Scott Walker.

Democrats plan to appeal, and the case is expected to end up before the conservative-controlled Wisconsin Supreme Court.

In the meantime, clerks are struggling to understand what ballots they should count, or not, with absentee voting slated to begin in about two weeks. The deadline for absentee ballots to be mailed to voters is Sept. 22.

The Elections Commission has guidance on what constitutes an address, but the issue has not been addressed by the courts.

“It certainly leaves things very unclear,” said Claire Woodall-Vogg, executive director of the Milwaukee Election Commission, in an email. “Historically, voters have not been penalized for minor errors in voting where intent is clear. I will be consulting with my City Attorney’s office for their advice on the matter.”

The number of affected ballots is likely to be small but could be an issue in close races. President Joe Biden won Wisconsin in 2020 by fewer than 21,000 votes.

Woodall-Vogg said just over 1% of all absentee ballots cast in Milwaukee in April were missing address information. In a recount of the Republican race for the 2nd Congressional District, which includes the city of Madison, only 25 ballots out of 120,000 cast had deficient absentee addresses, McDonell said.

The Legislative Audit Bureau last year reviewed nearly 15,000 absentee ballot envelopes from the 2020 election across 29 municipalities and found that 1,022, or about 7%, were missing parts of witness addresses. Only 15 ballots, or 0.1%, had no witness address. Auditors found that clerks had corrected addresses on 66 envelopes, or 0.4% of the sample.

McDonell said in Dane County, the state’s second-largest, the practice has been to count ballots that contain partial addresses.

“We don’t care if it says ‘Wisconsin’ or has the ZIP” code, he said. “So it’s a game of what’s missing. ... The sort of basic common sense is, ‘Can I find this address?’”

Republicans contend the ruling means that clerks have two choices for ballots missing information: Return them to voters or don’t count them.

“This ruling cleans up the process, and if (the Elections Commission) puts aside political games by issuing sound guidance, this will ensure uniformity across all of the state’s municipalities,” said Wisconsin Republican Party chairman Paul Farrow.

The attorney for the Republican Party of Waukesha County, which brought the lawsuit, had not returned a message seeking comment Thursday. Republican legislative leaders, who joined the lawsuit, had not returned messages.

Both McDonell and Woodall-Vogg said they would be trying to educate voters about the need to have witnesses completely fill out the address portion on the absentee ballot. The ruling will increase the workload on clerks who will be returning ballots to voters to complete missing information, McDonell said.

“We will continue to be diligent in our communication with voters — both initially when mailing the ballot and if needing to return the ballot to be cured,” Woodall-Vogg said. “I fear for voters across the state who live in municipalities where the clerk may not have the staff or resources to notify a voter of their error.”

The 2020 election is over. Here’s what happened (and what didn’t)

The 2020 election was “the most secure in American history,” according to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which coordinates the nation’s election infrastructure.

While a handful of voters risked going to prison by attempting to vote twice or in the name of a dead relative, as happens in any election, no evidence of widespread fraud has ever been produced in Wisconsin or elsewhere.

Yet, many continue to question some of the practices clerks relied on to encourage eligible voters to cast ballots and make sure their votes were counted amid the first election in more than 100 years held during a pandemic.

The Wisconsin State Journal has covered every twist and turn of this debate in scores of stories. But here are a few that offered some broader context about what happened, and didn't happen, in the election of 2020.

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The state has multiple, overlapping safeguards aimed at preventing ineligible voters from casting ballots, tampering with the ballots or altering vote totals.

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Nothing in the emails suggests there were problems with the election that contributed in any meaningful way to Trump's 20,682-vote loss to Joe Biden.

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"Despite concerns with statewide elections procedures, this audit showed us that the election was largely safe and secure," Sen. Rob Cowles said Friday.

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The grants were provided to every Wisconsin municipality that asked for them, and in the amounts they asked for. 

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"Application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform," the memo says.

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YORKVILLE — The Racine County Sheriff’s Office announced in a Thursday morning news conference that it has identified eight cases of what it believes to be election fraud at a Mount Pleasant nursing home.

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The memo states that state law gives the Audit Bureau complete access to all records during an audit investigation and federal law and guidance does not prohibit an election official from handing over election records.

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Drop boxes were used throughout Wisconsin, including in areas where Trump won the vast majority of counties.

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"I don't think that you instill confidence in a process by kind of blindly assuming there's nothing to see here," WILL president and general counsel Rick Esenberg said.

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The report is the latest to show that there was not widespread fraud in Wisconsin.

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The clear insinuation was that someone not qualified to conduct an election improperly influenced these vulnerable voters. But the Wisconsin State Journal could not confirm the data. 

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The turnout at nursing homes in Brown, Kenosha, Milwaukee and Racine counties in 2020 was not much different from the turnout in 2016.

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