GOP kills rule allowing clerks to fix minor problems on absentee ballot envelopes

Original guidance remains, but a longer legal battle lies ahead

By: - July 21, 2022 7:00 am
PROVO, UT: An election worker opens envelopes and removes ballots so they can be counted at the election office on October 26, 2020 in Provo, Utah. Utah is one of several states that has recently moved to mail-in ballots for presidential elections. (Photo by George Frey/Getty Images)

An election worker opens envelopes and removes mail-in ballots so they can be counted at the election office in Provo, Utah, in 2020. (George Frey | Getty Images)

Republican lawmakers threw out a rule Wednesday to allow local elections clerks to correct minor mistakes on absentee ballot envelopes so that the votes inside could be counted. 

While guidance the Wisconsin Elections Commission issued in 2016 that allowed the corrections remains in effect,  a lawsuit is pending to kill that guidance as well. 

Critics said killing the rule or the guidance would deprive thousands of voters from being heard on Election Day simply because of an accidental error.

The rule that was suspended Wednesday by the GOP-controlled Legislature’s administrative rules committee affirmed that local election clerks could make corrections or complete information for the addresses of absentee ballot witnesses. 

“To prohibit this as the Republican leaders of this Legislature have asked you to do would be to disenfranchise a voter for the pettiest of reasons,” said Matt Rothschild, executive director of the Wisconsin Democracy Campaign, at a public hearing before the Joint Committee for the Review of Administrative Rules voted 6-4 along party lines to kill the rule.

Sen. Kelda Roys 2021 head shot
Sen. Kelda Roys

“This is voter suppression in search of a problem that doesn’t exist,” said Sen. Kelda Roys (D-Madison).

The proposed rule involved the regulation envelope that comes with an absentee ballot and that a voter must use to return it. The envelope includes a certification statement that the voter and a witness must both sign, and each must include their address. 

State law requires that if a ballot is missing the address of the witness, the ballot can’t be counted. Another statute allows the election clerk to return the ballot to the voter to correct the address or other errors. 

In 2016, the Wisconsin Elections Commission told local election clerks that they should correct or complete the witness address in the case of minor errors. The guidance stated that to be considered complete, the address “must include at least a street name and number as well as a municipality,” according to the Legislative Audit Bureau in its October 2021 report on the 2020 presidential election.

When the guidance was issued in 2016, it won unanimous approval from the six-member, bipartisan commission and received the OK from then-Attorney General Brad Schimel, a Republican, Rothschild noted in his hearing testimony. 

In October 2020, the elections commission staff updated the guidance to say that local clerks should attempt to complete missing witness address information before Election Day and that they could do so based on personal knowledge, voter registration information or by calling the voter or the witness. 

The Legislative Audit Bureau’s report on the 2020 election included a section on the correction practice, and recommended that if the elections commission believed it should continue, commission staff and the commission should promulgate an administrative rule. The commission voted to do that in December 2021, and in January, the Legislature’s rules committee ordered the commission to issue an emergency rule as well. 

The emergency rule was published July 11 and three days later, Republican leaders of the Legislature called for it to be thrown out

In a letter to the administrative rules committee, Senate Majority Leader Devin LeMahieu (R-Oostburg), Assembly Speaker Robin Vos (R-Rochester) and Assembly Speaker Pro Tem Tyler August (R-Lake Geneva) doubled down on the state law requiring that if a certificate lacks a witness address, “the ballot may not be counted.” 

The three GOP leaders also said the elections commission lacked the authority under the law to define what made an address complete or to instruct local clerks to correct missing or incomplete information.

Sen. Duey Stroebel

At Wednesday’s committee hearing, Sen. Duey Stroebel (R-Saukville) reiterated that position.  “We’re voting on a motion that finds this emergency rule to be against the law and against legislative intent,” Stroebel said. “I mean, it’s that simple.”

If a local clerk sees that a ballot envelope is missing required information, “the clerk may return the ballot to the elector,” he said. “That is the remedy — not [that] the clerk may decide to fill in the lines.”

Democrats on the committee along with witnesses who opposed killing the rule said the result would leave votes uncounted unnecessarily.

“You’re doing this because of your own false claim of fraud in the 2020 election,” state Rep. Lisa Subeck (D-Madison) told the committee’s Republicans. 

Jeff Mandell
Election lawyer Jeff Mandell testifies Wednesday before the Legislature’s Joint Committee for the Review of Administrative Rules. (Screenshot | WisEye)

In his testimony, Madison election lawyer Jeff Mandel noted that the current state election law “provides no definition of the word ‘address,’” while the rule would have filled that gap. 

Mandel also contrasted the Republicans’ unwillingness to be flexible about a witness address with the elections commission’s own decision in June to accept the nomination papers of Republican Tim Michels despite “the absence of his state and zip code from a mailing address expressly required” on most of the papers under the Wisconsin law. 

“It would be absolutely perverse for a candidate for governor to be held to a lower standard than we hold ordinary voters,” Mandel said. “And it would be particularly perverse to say, as suspending the rule here would do, that the statutes demand less of an actual candidate who has control over and legal responsibility for their own nomination papers than the statutes require of an absentee voter who doesn’t control the witness who signs the ballot envelope.”

Sen. Steve Nass (R-Whitewater), the JCRAR co-chair, dismissed claims that ending the rule would disenfranchise voters, but several speakers as well as committee members predicted that result would be widespread.

“This [witness address correction] is a longstanding practice that folks have been doing for years, and we really have no idea of the scope of this — we have no idea how many voters this would affect,” said Roys. 

“And we really don’t know who those voters are,” she added. “It’s astonishing to me that Republicans seem to be so eager to throw out people’s votes and make it harder for people to vote, when in fact, I actually think in many cases … you would be disenfranchising your own voters disproportionately.”

Even with Wednesday’s vote, however, Wisconsin Election Commission member Ann Jacobs told the Wisconsin Examiner that the original 2016 guidance is still in place, and that local clerks can make the corrections or add missing information to the witness address.

“JCRAR said either revoke your guidance or put forward an emergency rule codifying our guidance,” Jacobs said in a direct message exchange on Twitter. “We put forward an emergency rule. Today they ruled we didn’t have authority to promulgate the rule they directed us to put forward.”

The guidance was not revoked, however. 

“So our guidance from 2016 remains in effect,” Jacobs said. Revoking it would take the vote of at least four commissioners on the evenly divided body.

The Republican Party of Waukesha filed a lawsuit on July 12 against the guidance itself, however. With the rule revoked, the lawsuit, and the original guidance, is now likely to take center stage. 

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.

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