Local election officials are hurtling toward Monday’s 4 p.m. start time to begin counting votes from Tuesday’s election with hardly any clear guidance on whether certain absentee ballots should be accepted.
The chaos and confusion surrounding the election amid the COVID-19 pandemic makes it even more likely the results, when they are announced early next week, will be challenged via lawsuits that could drag on for weeks or months.
As it stands, local election officials, through their Municipal Board of Canvassers, may be tasked with figuring out on their own whether to count absentee ballots received after April 7 that don’t include a clear postmark date. The confusion was sparked by a U.S. Supreme Court order arriving less than 24 hours ahead of Tuesday’s election that said absentee ballots must be “postmarked by election day, April 7, 2020, and received by April 13, 2020 at 4:00 p.m.” to be counted after Election Day.
But local clerks across the state are receiving a substantial number of ballots without postmarks, or with postmarks that don’t clearly indicate when the U.S. Postal Service accepted custody of the piece of mail. Without it, there isn’t a straightforward way to determine whether a ballot has been processed by the Postal Service by Election Day.
“We need to know the facts,” Gov. Tony Evers told the Wisconsin State Journal. “I’m waiting to hear from the Postal Service and others about what happened. … This is going to be a litigated election regardless.”
According to the WEC, 1,293,288 Wisconsinites requested absentee ballots for the election, while local clerks have received 1,080,403 so far.
The Wisconsin Elections Commission met Friday afternoon in order to provide clear guidance to clerks, but walked away without a consensus on the most glaring issues.
“What is it going to look like? I don’t know,” said commissioner Ann Jacobs, a Democrat. “I’m sure the lawyers are delighted. There’ll be a lot of billable hours coming out of this.”
Commissioners deadlocked on a motion that would have allowed all ballots arriving in a local clerk’s office on April 8 to be counted, regardless of a postmark. Republicans suggested some ballots arriving on that date may have been sent that same day, and thus should be disqualified.
Wisconsin State Association of Letter Carriers president Scott Van Derven said in an interview that ballots arriving on April 8 almost certainly would have been sent by Election Day or earlier.
Madison City Clerk Maribeth Witzel-Behl told the Milwaukee Journal Sentinel her office has received 682 ballots with no postmark, meaning they would likely not be counted unless guidance changes.
It’s unclear if that will happen because the Wisconsin Elections Commission, with three Republicans and three Democrats, deadlocked on how to deal with ballots arriving after Election Day without a proper postmark. They only managed to pass resolutions clarifying that elections clerks should accept absentee ballots with an “APR 2020” stamp if the commission received a signed statement from a Postal Service authority affirming the stamp was only used on ballots received on Election Day.
Commissioners also affirmed that ballots that bear a postmark with the date April 7 or before should be counted, in compliance with the U.S. Supreme Court ruling. Ballots that reached a clerk's office by April 7 also count regardless of postmark.
Democrats on the commission want a broader interpretation allowing more ballots to be counted to reduce disenfranchising voters. Republicans, however, lean toward a stricter interpretation of the U.S. Supreme Court ruling allowing for fewer ballots to be counted.
“It’s not our job to prove that something was not sent on the 7th (of April),” said commissioner Robert Spindell, a Republican.
According to political scientists, absentee ballots arriving late tend to skew more Democratic, which could give the liberal-backed Wisconsin Supreme Court candidate Jill Karofsky an advantage in the race.
Madison Deputy City Clerk Jim Verbick said the office has also received absentee ballots that had two postmarks on them, one before election day and one after, and that they’re not sure how to deal with them. On a separate issue, Verbick said the office on Election Day had a stack of about 40 to 50 absentee ballots missing witness signatures, which will likely not be counted.
The postmark issue is widespread, affecting communities from Manitowoc to Fitchburg.
In a normal Wisconsin election, an absentee ballot must be received by 8 p.m. on Election Day or it’s not counted. But Monday’s U.S. Supreme Court ruling inserted the requirement that absentee ballots be postmarked by April 7.
“We’ve never had to look at postmarks before,” Verbick said.
According to the Postal Service, postmarks are not required for for mailings bearing a permit, meter or precanceled stamp for postage, which applies to at least some absentee ballots.
Issues with postmarks come on top of numerous other problems, such as voters not receiving their absentee ballots despite requesting them weeks ago. A Republican state senator reported Wednesday that a postal worker had discovered “three large tubs” of undelivered absentee ballots from voters in Oshkosh and Appleton, and the Milwaukee Election Commission asked the Postal Service to investigate what happened to absentee ballots that never reached voters in that city.
The liberal group A Better Wisconsin Together has recorded more than 2,100 instances of a voter who requested but did not receive an absentee ballot.
During Friday’s meeting, Wisconsin Elections Commission administrator Meagan Wolfe said she has made several attempts to get answers from the Postal Service on why some ballots weren’t delivered on time or at all, why there are so many discrepancies among postmarks and whether there’s a way to prove whether an absentee ballot entered Postal Service custody before April 7.
In a statement Friday, the Postal Service said it was “aware of potential issues with absentee ballots in Wisconsin” and is “currently conducting an investigation into the claims.”
The absentee ballot fiasco comes after in-person voting in most cities and towns throughout the state went relatively smoothly, except for major exceptions in cities such as Milwaukee and Green Bay, where voters stood in line for hours because there were fewer polling sites than usual.
Republican lawmakers insisted on holding the in-person election despite warnings from health experts that it would increase the likelihood of spreading the virus.
Clerks usually would have begun counting as soon as polls closed on election night, rushing to get their numbers to county clerks. Instead, the court fight over whether to hold the election during the coronavirus crisis resulted in a judge’s order that ballots not be counted until Monday afternoon.
State election officials have warned clerks to safeguard their ballots and voting machines to ensure there’s no tampering that could call results into question. Clerks have responded by placing ballots in sealed bags, locking them in safes, closets and offices, and doing the same with voting machines that hold electronic data.
Verbick said Madison’s voting machines have been powered down and stored in a central, secured location. Incoming absentee ballots are locked inside a vault inside the clerk’s office, and ballots cast on election day were put in sealed bags and securely stored.
Local elections officials will gather at a central location to tabulate the results after 4 p.m. Monday.
The Associated Press and State Journal reporters Chris Rickert and Mitchell Schmidt contributed to this report.
Editor's note: This story was updated to clarify that absentee ballots received in a clerk's office by April 7 are counted regardless of whether they have a postmark.