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Madison acted reasonably in not allowing access to ballots, Legislature's attorneys say
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Madison acted reasonably in not allowing access to ballots, Legislature's attorneys say

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Madison’s decision to prohibit nonpartisan state auditors from handling ballots was “arguably reasonable” under federal law, the Legislature’s legal department said in a memo released Wednesday after state Republicans blasted the city for not participating fully in auditors’ just-completed review of the November 2020 election.

Madison, Milwaukee County, and the town of Little Suamico in Oconto County cited ballot-security guidance from the U.S. Department of Justice in refusing to allow staff from the Legislative Audit Bureau to physically handle ballots.

That prompted Assembly Majority Leader Jim Steineke, R-Kaukauna, to say officials in those areas were “promoting secrecy and severely undercutting their clerk’s credibility,” and on Monday, Senate Republican leaders authorized the Senate Elections, Election Process Reform and Ethics Committee to conduct an investigation into the Audit Bureau’s findings, including the city of Madison’s refusal to provide the agency with access to actual ballots.

But the Legislative Council’s Tuesday memo, prepared at the request of Senate Minority Leader Janet Bewley, D-Mason, notes that “application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform.

“This could be due to legal interpretation or practice,” the memo says. “However, it could also be due to the extent to which individual clerks believe they can safeguard records physically handled by a third party,” and “assuming that the clerks who declined to allow LAB staff to physically handle election records acted in good faith and consistently apply this interpretation to all third parties, it is arguably reasonable to permit only clerks’ staff to physically handle election records based upon the U.S. Department of Justice guidance.”

Bewley said in a statement Wednesday that the memo “makes clear” that Madison “acted appropriately,” and said the Audit Bureau declined to look at copies of Madison ballots or use some other process to complete its audit.

Michael Luckey, chief of staff for Sen. Kathy Bernier, R-Chippewa Falls, said relying on U.S. Department of Justice guidance to refuse to hand over election records was “a very flimsy excuse.”

Bernier, a former county elections clerk and chair of the committee that will head the Senate investigation, has said state law requires the preservation of election materials for 22 months after an election specifically for the purpose of audits like the one completed last week by the Audit Bureau.

Luckey said lawmakers are still in the fact-finding process, but the hope is to begin the investigation as soon as possible.

Bewley said that instead of launching an investigation into the Audit Bureau’s findings, the Legislature should be focusing on its election-related recommendations.

Report recommendations

The report makes 30 recommendations for the Wisconsin Elections Commission and 18 for the Legislature to consider. Those include improving how the commission identifies potential duplicate voter registration records and creating administrative rules — which would require legislative approval — specifying whether and what information clerks can correct on absentee ballot certificates, and whether municipalities may continue to use absentee ballot drop boxes.

“Haven’t we had enough already?” Bewley said. “This ill-advised investigation will do nothing to restore confidence in the administration and results of our elections. In fact, it seems designed to do exactly the opposite. I had hoped for better from Senate Leadership than to join Speaker Vos in his effort to perpetuate disproved allegations of election tampering,” she said, in reference to Speaker Robin Vos hiring retired state Supreme Court Justice Michael Gableman to review how the 2020 election was carried out, particularly in Madison and the state’s four other largest and heavily Democratic cities.

A recount and court decisions have affirmed that President Joe Biden defeated former President Donald Trump in Wisconsin by almost 21,000 votes last November. Four voters out of roughly 3 million who cast ballots have been charged with fraud.

Tim Lakin, chief of staff to Assistant Senate Majority Leader Dan Feyen, R-Fond du Lac, said Feyen did not have any comments on the memo and directed questions to a press release Feyen issued on the Senate investigation earlier this week along with Senate Majority Leader Devin LeMahieu, R-Oostburg, and Senate President Chris Kapenga, R-Delafield. LeMahieu and Kapenga did not respond to requests for comment.

Citing guidance from the U.S. Department of Justice, Madison City Clerk Maribeth Witzel-Behl told the Audit Bureau in late August that she would provide copies of ballots, absentee ballot envelopes and other election-related documents but would not supply the original documents.

Milwaukee County

In a statement Tuesday, Milwaukee County clerk George Christenson disputed claims that his office denied the Audit Bureau access to ballots.

“I need to once again emphasize and remind all those who claim that Milwaukee County did not allow LAB auditors to view and analyze ballots from the 2020 Presidential Election that this is simply not true,” Christenson said.

Christenson said the Audit Bureau requested all absentee ballot envelopes and voting machine tapes and test ballot decks for pre-election voting machine tests for the cities of Milwaukee, Glendale, Wauwatosa and the villages of Shorewood, Whitefish Bay and Bayside. A subsequent request sought inspector’s statements from all the communities except for Wauwatosa.

Christenson said the documents and materials were provided to the Audit Bureau in early August and no other requests were made.

“The Legislative Audit Bureau did not even ask to review our ballots,” Christenson added. “If they had, we had staff available to assist with the inspection of the ballots. This is yet another attempt to ‘cry wolf’ by certain Republican lawmakers.”

State Journal reporter Mitchell Schmidt contributed to this report.


Year in review: The top Madison-area stories of 2020

It started out well enough. The Badgers were making a late-in-coming run at the Final Four. Hometown insurance behemoth American Family announced it was boosting its starting minimum wage to $20 an hour. Madison East Siders welcomed a new Pinney branch library.

The first two and a half months of the year feel like a different era, when news of a strange new virus infecting people in China was safely tucked away in the back pages of the newspaper and the heart-breaking images of a white Minneapolis police officer kneeling on the neck of a 46-year-old Black man had yet to go viral.

Then came March and successive waves of closures, cancellations, lockdowns, furloughs, layoffs, infections and deaths. If the subsequent uprisings over the killing of George Floyd weren't enough to remind America that it has plenty of work to do to overcome racism, the shooting of Jacob Blake in Kenosha tragically emphasized the point. And a divisive presidential election carried the tone of the year at the end.

While it may not be a year to look back on with particular fondness, 2020 no doubt is one to remember. Here's a look back at some of the top stories in the Madison area as they occurred.

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It marked the fourth consecutive loss in the Rose Bowl for UW, and the first time since 2013 that the program lost its final two games of the year.

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Madison police spokesman Joel DeSpain said Sunday the victim who officers found in an apartment at 1905 McKenna Blvd. shortly after 2:30 p.m. Saturday was a 20-year-old African American male.

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With the Green Bay defense failing to lay a hand on 49ers running back Raheem Mostert for much of the first half and the Aaron Rodgers-led offense committing two turnovers and failing to convert a third down yet again during a scoreless first 30 minutes, the Packers dug themselves a 27-0 halftime deficit on their way to a demoralizing 37-20 loss.

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Gutierrez, superintendent of the school district in Seguin, Texas, was announced Friday as the Madison School Board's pick to lead the district.

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The person returned to Dane County Regional Airport after a trip to Beijing Jan. 30 and went directly to UW Hospital's emergency room, officials said.

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This weekend's performances at the Alliant Energy Center will be the last with elephants in Dane County as a contract between the circus and the venue expires. 

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Tony Evers said he vetoed the legislation, which uses surplus revenue, because it doesn't invest in the state's schools. 

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Despite no Wisconsin cheeses finishing in the final top three, state producers dominated the competition, earning 45 gold medals out of 132 categories.

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This decision is unprecedented for Wisconsin's largest university and taken to slow the spread of COVID-19 coronavirus.

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The closure order, to take effect no later than 5 p.m. on March 18, affects nearly 1 million Wisconsin children in grades K-12 in public and private schools.

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One was a man in his 50s from Fond du Lac County; the other was a man in his 90s from Ozaukee County.

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David A. Kahl, 53, is charged with first-degree intentional homicide.

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Tony Evers’ “safer at home” order represents a shift from the governor's position last week, when he said he did not plan on issuing such an order.

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Most voting locations saw few lines and smooth operations. But other places, notably Milwaukee, experienced significant delays, chaos and conditions that made it impossible for some voters to cast a ballot.

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Jill Karofsky's win over Dan Kelly cuts the court's conservative majority to 4-3, giving liberals a chance to take back control in 2023.

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The U.S. Air Force announced the final selection of the Wisconsin Air National Guard’s 115th Fighter Wing, capping more than three years of study and deep community division over the planes, which come with the promise of jobs and new construction but also noise and pollution.

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While applauded as a good first step, Democratic members, as well as public safety and health officials, have criticized the bill for not allocating more state funding to respond to the pandemic.

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For 30 years, "Ms. Milele" was the publisher of UMOJA magazine and a prominent leader in Madison's black community. She was "short in stature but mighty in force." 

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Free community testing for COVID-19 started at the Alliant Energy Center in Madison on Monday morning.

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Gov. Tony Evers and legislative Republicans will need to work quickly to come up with a replacement plan.

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The Vilas Zoo, Goodman Pool, beaches and movie theaters are among the places not opening yet.

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There were signs early Sunday that the violence was spreading into other parts of the city.

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"It’s clear they have important process issues to work out," the candidate said.

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School Board President Gloria Reyes said the decision to pull police from Madison's four main high schools is effective immediately. 

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The Madison School Board chose Carlton Jenkins, a superintendent of a suburban Twin Cities school district, over another finalist for the job. He starts Aug. 4.

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As a Dane County public health order requiring face coverings in all indoor spaces outside the home took effect Monday, businesses offered mixed views on mandates, though for many retailers it was business as (the new) usual.

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There was no update on the second victim from the shooting at Schroeder Road and Chapel Hill Road Saturday night. 

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Travis M. Christianson, 44, is tentatively charged with first-degree intentional homicide.

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Republican President Donald Trump also has caused controversy for saying he might deliver acceptance speech at White House.

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The girl was in a car that was struck by gunfire late Tuesday morning on East Washington Avenue.

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The conference decided — after meetings between presidents and athletic directors, and outcry from players, coaches, politicians and fans — to cancel the fall sports season and will attempt to move football to the spring semester.

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"The video that came out of Kenosha is absolutely horrific. I don’t understand how people can watch it and not be here," one Madison protester said. 

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The fifth-seeded Heat finished off an upset of the NBA’s best regular-season team Tuesday, topping the Milwaukee Bucks 103-94 in Game 5 of their East semifinal series — while Giannis Antetokounmpo, the league’s reigning MVP, couldn’t play because of a sprained right ankle.

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UW-Madison is pausing in-person instruction for at least two weeks and quarantining more than 2,200 students living in two dorms.

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Police are not recommending charges against Althea Bernstein, saying there is a difference between someone trying to deceive law enforcement and not being able to corroborate a report of a crime.

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The alternate care facility at State Fair Park in West Allis may begin taking patients Thursday.

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A small crowd Downtown Saturday morning before the race was called turned into hundreds of people honking horns, cheering and waving signs after Biden was declared the winner, while some Trump supporters turned out in protest.

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"We understand the eyes of the world will be on these Wisconsin counties over the next few weeks,"  Wisconsin Elections Commission administrator Meagan Wolfe said.

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St. Mary's and Meriter expect to get vaccine soon.

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The flurry of activity caps off a tumultuous post-election saga in Wisconsin that has now concluded.

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A look back at the year 2020 through the lens of Wisconsin State Journal photographers John Hart, Amber Arnold and Steve Apps

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