“Each municipality must determine whether the ballot was postmarked timely.”
That is the guidance provided by the Wisconsin Elections Commission (WEC) to local election clerks around Wisconsin for how to handle absentee ballots with postmarks that are unclear or that have no postmark at all.
This is important because of a U.S. Supreme Court order that ballots must be postmarked by April 7 and received by April 13.
The resulting gray area means 1,850 municipalities around the state of Wisconsin have been left to decide on their own whether or not to count a ballot with a questionable postmark — perhaps with a smudge or a missing date.
As ballots poured in through the U.S. Postal Service in the past week, clerks around the state reported a number of envelopes bore unclear marks, including 390 in Milwaukee, 10 in Oakland and 100 in Oconomowoc.
The decisions will be largely left to individual boards of canvassers trying to wade through completely uncharted territory. In Milwaukee, the city’s elections commission voted 2-1 to accept all ballots with questionable postmarks. But in the Town of Oakland in Jefferson County, clerk Chris Astrella said he would suggest those ballots not be counted.
“Our guidance, those votes won’t get counted, I feel terrible for those voters, but this is the law that was determined by the Supreme Court and we have to follow it,” Astrella says. “It’s nothing on the voter. Ultimately though, if there’s a missing postmark, if there’s a smudge, if we’re not 100% sure, it’s our call. We have to interpret the law as best we can, I have to suggest to our chief inspector we shouldn’t count this.”
The inconsistency of interpretation across the state was predicted on Friday when the WEC tried to address this issue. Instead of providing a clear answer though, the commission deadlocked in a 3-3 partisan vote, unable to decide what should be done with the ballots without clear postmarks.
“The individual boards of canvass are going to have to look at these marks and decide whether or not they’re going to include them,” Democratic Commissioner Ann Jacobs said at the Friday meeting. “The boards of canvass are going to have to figure it out on their own. The lawyers are delighted. Voters will have ballots treated differently from community to community.”
Kenosha City Clerk Deb Salas said her board of canvassers tends to lean toward protecting the voter.
“Our board tends to lean towards the voter, lean towards wanting to count the ballot of course,” Salas says.
But, Oconomowoc City Clerk Diane Coenen said the argument about any ballot on the fence can go both ways.
“The rationale can go either way,” Coenen says. “They cannot determine a date, but they can be reasonably certain when it was postmarked so they’ll accept it or they cannot be reasonably sure so they won’t accept it. They haven’t been put in this position before, not like this. It’s a real problem for your board of canvass, they have to agree and they have to be consistent in what they agree upon. It puts them in a predicament because each community is different.”
In Madison, the state’s second largest city containing a major portion of the electorate, the decision is still up in the air, according to Deputy City Clerk Jim Verbick. He also said the city did not have a total number of questionable ballots.
“We have not made a decision yet,” Verbick says. “We’re getting guidance from the city attorney’s office, we tried to use whatever guidance we’ve gotten from the election commission.”
While the total percentage of ballots with outstanding questions may be low, in Wisconsin — a state with historically close elections — these decisions might make a big difference in who ends up winning, according to Coenen, also the president of the Wisconsin Municipal Clerks Association.
“When you’re talking about local offices, that can make a difference in who wins or loses a race,” Coenen says. “If you have a very close local race, the board of canvass, it’s going to be weighing on them, their acceptance or denial of these ballots can totally change that outcome.”
Whatever the decisions will be, there’s an overwhelming sense of frustration from clerks around the state. Frustration with the process, with the courts, with state leadership and with the WEC.
“I don’t want to throw the elections commission under the bus, but if their job is to interpret the rules and they’re not doing it, something has to change,” Astrella says. “If they’re going to deadlock in a 3-3 tie and throw the onus back to us, we’ll do the best we can. But it can be frustrating when you ask the experts for an answer and they can’t give us one.”
The larger disappointment, Coenen says, is that voters will feel like their vote wasn’t counted or their health was jeopardized because the state’s leaders let politics get in the way.
“This is how I feel, leaders are elected or put into place to lead,” Coenen says. “They accept the job to lead. You know you’re going to be called upon to lead, that’s what our leaders should do. That is sometimes making tough decisions. So much of this is political, and it’s pretty evident to the voting public that when decisions can’t be made it’s all politics.”
But the lack of guidance on the ballots without clear postmarks is just one more piece of the puzzle Wisconsin will have to sort out when it analyzes what happened in the 2020 spring election.
“It might just be one additional thing that’s gone on in this election that has put doubts in people’s minds,” Verbick says.
With so much left up in the air as ballots begin to be counted, it’s still unclear when the saga of the spring election will end and how the questionable ballots will impact the final results. Coenen says clerks she’s talked to are scared of having to back up each and every decision they made.
“If there is a recount or if there are lawsuits challenging the results, then each board of canvass or each professional clerk, we have to justify what we’ve done,” she says. “You have to have a good argument for why you did it the way you did it because nobody wants to be dragged through the mud. We try our hardest to make sure everybody’s vote can count, but in the back of my mind, there’s a fear.”