Wisconsin Supreme Court declines to take Outagamie ballot case, leaving confusion

Chief Justice Patience Roggensack (photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Wisconsin Supreme Court Chief Justice Patience Roggensack hears arguments in May over the state Safer at Home order, which the court subsequently threw out. Court rulings have limited the state's response to the COVID-19 pandemic, even as the federal government is recommending stronger state action. (Photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)

The conservative majority on the Wisconsin Supreme Court denied a petition from the clerks of Outagamie and Calumet counties asking for guidance on how to correct a printing error on more than 13,500 absentee ballots. 

The decision, just days before the election, leaves local officials without clear guidance over how to make sure voters’ ballots can be counted — though Chief Justice Patience Roggensack wrote a concurring opinion ensuring Wisconsinites’ right to vote, including the 13,500 voters with defective ballots. 

At issue is a small misprint on one of the ballots’ timing marks that prevents counting machines from correctly processing the ballot. 

“Election officials may have to make difficult decisions regarding how to proceed as they comply with what the law requires,” Roggensack wrote. “Obtaining more election workers appears to be necessary.”

Three Outagamie County towns are still searching for more election workers, according to the MyVote Wisconsin website,  as municipalities across the state work to find volunteers amid the COVID-19 pandemic. 

“In conclusion, I write separately to clarify that our denial of the petition for an original action should not be construed as an endorsement to disregard Wisconsinites’ fundamental right to vote,” she continued. “We have repeatedly recognized that Wisconsinites have a fundamental right to vote, and a vote legally cast and received by the time the polls close on Election Day must be counted if the ballot expresses the will of the voter.”

It remains unclear what local clerks in the affected areas are supposed to do. Initially, clerks had written to the Wisconsin Elections Commission (WEC) seeking guidance. The WEC didn’t have the authority to change deadlines or election law so it sent a letter in reply urging a court to allow election officials to use black marker to fill in the defective mark so ballots could be fed into tabulating machines. 

The clerks, in their initial petition, had asked the Supreme Court for guidance on whether they should  reconstruct each one of the ballots — which they admit is inefficient and potentially open to inaccuracy, but appears to be what the statute requires — or if they should use the WEC’s proposed marker method. 

Outagamie County Clerk Lori O’Bright estimated that reconstructing every ballot would require an estimated 554 to 2,310 additional man hours. 

Roggensack’s concurrence brings up a third possibility — hand counting. Though the WEC explained this isn’t a prudent resolution because state law doesn’t allow hand counts to be done piecemeal, all of a municipality’s ballots must be counted using electronic voting equipment, or if given approval, by hand. 

Instead of either proposed solution, the court decided that it would not offer legal advice for how the clerks should resolve the error. 

“Effectively, they ask us to render legal advice about how to proceed,” Roggensack wrote. “We will not do that.”

In a dissent from the liberal members of the court, written by Justice Ann Walsh Bradley and joined by Justices Jill Karofsky and Rebecca Dallet, they argue that the court has neglected its responsibility in one of the election’s most consequential cases without providing a reason. 

“In recent months, this court has been inundated with petitions for original actions. And the court has accepted the lion’s share,” Bradley wrote. “Yet in this case, arguably one of the most consequential of the lot and a case where time is of the essence, the court denies the petition without explanation.”

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Bradley’s dissent describes the affected clerks as needing help in the final days of an election in which more than a million voters have already cast their ballot, and now when clerks need guidance from the court it has declined their request. 

“In sum, the majority leaves local election officials in the lurch,” Bradley writes. “Without the requested and critical guidance from this court, they are left to do their best under difficult circumstances.”

WEC spokesperson Reid Magney says there’s nothing more the commission can do.

“The commission already met on Oct. 20 to discuss this and gave them our advice, which was that we cannot help them and they need to go to court to seek relief,” Magney said.