Elections Commission slams Audit Bureau, seeks new election rules

In a marathon meeting on Wednesday, the normally polarized Wisconsin Elections Commission (WEC) responded to a report on the administration of the 2020 election by state auditors through an unusual series of largely unanimous votes. 

The meeting was the first chance for members of the embattled commission to publicly respond to the report from the nonpartisan Legislative Audit Bureau (LAB) — which found that the 2020 election was conducted safely and securely, but made a number of suggestions for changes to election rules. 

Before Wednesday’s meeting, the only representative of the WEC to respond to the report had been its administrator, Meagan Wolfe — who had said there were good ideas in the report’s recommendations but countered that the LAB had made a number of errors and had detoured from its normal audit process. 

In a normal LAB report, the agency being audited gets a chance to see a draft version of the report, make corrections and offer a response that is included in the public version. This opportunity was not given to the WEC because auditors decided it couldn’t maintain the draft’s confidentiality. This lack of a review process, according to Wolfe and the commissioners, led to errors in the final report that have now gone more than a month without being corrected as Republican legislators have used its findings to hammer the commission and call for Wolfe’s resignation.  

In the meeting, commissioners largely echoed Wolfe’s previous statements — but with more force than the nonpartisan administrator was able to add publicly. Some of the strongest rebukes of the LAB report came from Dean Knudson, a former Republican legislator who was appointed to the commission by Assembly Speaker Robin Vos (R-Rochester). 

As Vos has leaned into consistent agitation and fear mongering over baseless accusations of fraud during the 2020 election he has abandoned Knudson — going as far as accusing his own appointee of committing a felony over the commission’s decisions about how to accommodate voting in nursing homes during the COVID-19 pandemic. 

“This one was the most egregious example of sloppy work, inaccuracy and unprofessionalism on the part of the Audit Bureau,” Knudson said about the report’s errors pertaining to how the WEC receives data from a multi-state group called ERIC, which allows for state election administrators to track when its voters move to or die in another state. 

“It’s really uncharacteristic for them, but I think they fell into the trap of succumbing to political pressure that they would not allow a review. And a simple review, like they always do, helps prevent this kind of inaccuracy seeping into the final report,” Knudson continued. “What you’ve got here, if I were to use an analogy, it’s about like somebody came from France who was a soccer fan and wanted to see their first football game. They got to go to the Packers. And by halftime, they had decided that they knew better than Aaron Rodgers did about how to drop back and throw a pass.” 

As the WEC, which saw a huge number of failed 3-3 party-line votes during the tandem pandemic and presidential election year of 2020, was meeting, former Supreme Court Justice Michael Gableman, the leader of Vos and the Assembly’s highly partisan review of the election, was testifying angrily to the Assembly Committee on Campaigns and Elections. 

Gableman, who in three months of work has earned $33,000 refused to answer questions from Democrats about the transparency of his investigation, which critics have widely panned as amateurish. He has recruited a team of right wing conspiracy theorists earning upwards of $40 an hour to dig through the results of last year’s election in search of evidence of widespread fraud. 

During the hearing, Gableman and Rep. Mark Spreitzer (D-Beloit) shouted back and forth at each other. Rep. Jodi Emerson (D-Eau Claire) walked out in disgust. 

In contrast, the WEC’s virtual meeting was full of political civility and even compromise — a far cry from exactly a year ago when the Democrats and Republicans on the committee were fighting over the simple administrative procedure of certifying the results of the election. Commissioners were often able to convince a member of the other party to join their side as they worked through the LAB’s recommendations. 

“​​I think that’s remarkable and something that we can be proud of,” Republican Commissioner Robert Spindell, one of the body’s most unwavering partisans, said of the number of 6-0 votes cast in the meeting. 

The LAB report suggested that instead of issuing guidance about how local clerks should run elections, the WEC should use the official rulemaking procedure. Administrative rules, once approved, come with the full force of law. 

The commissioners directed the agency’s staff to begin the rulemaking process for a number of recommendations, including some of the issues that have been the most controversial since the election — such as clerks adding certain elements of a mailing address to witness signatures on absentee ballots and the use of absentee ballot drop boxes. The commissioners also voted to begin the rulemaking process on issues they thought were nitpicking from the LAB.

“In the spirit of accepting the guidance and recommendations of the Legislative Audit Bureau as constructive criticism, even when they aren’t very sensible and even when they’re somewhat petty, I believe that we might as well start off on the right foot here and say, ‘Yeah, let’s send this over to the Legislature to let them work on the promulgation of this rule,’” Knudson said. 

The rulemaking process begins with the commission’s vote, which directs the agency staff to draft a scope statement about what a rule will do. The commission will vote on the scope statement and, if approved, from there it moves to a public comment period, review from nonpartisan legal staff at the Legislative Council and then review by the governor’s office. After approval from the governor, the rule moves to the Legislature’s Joint Committee for the Review of Administrative Rules, which debates and can adjust the rule before ultimately accepting or rejecting it. The whole process can take up to 14 months. 

After taking some sort of action on each of the LAB’s 30 recommendations, the commissioners approved sending a letter to the leadership of the Legislative Audit Committee outlining the work that had been done. But the six members were also in agreement that a much stronger letter should be sent to the LAB and others to rebuke the auditors for making mistakes and refusing to correct them after they were pointed out — a decision that could have serious implications for the public’s trust in state elections, commissioners said. 

“I think almost more egregious than the error and their refusal to share the report with us ahead of time … It’s that they still haven’t fixed it.” Commission Chair Ann Jacobs, a Democrat, said. “Even after [Wolfe’s] testimony about it and the written statements about it, it’s been out there for about a month and they haven’t done anything about it. And I think that is as big a blot on their reputation — that they’re wedded to being wrong rather than promptly and vocally acknowledging a mistake. And I don’t know the reason for that and that is certainly disappointing.”