In Florida, a local elections judge scrutinizes the signature on a mail-in ballot. (Joe Raedle | Getty Images)
A clash between Republican lawmakers and the Wisconsin Elections Commission over how absentee ballots are processed took a new turn Thursday.
Sen. Steve Nass (R-Whitewater) lashed out at the commission and urged Republican leaders of the state Legislature to sue the agency over 2016 guidance that tells local elections clerks that they should fix minor errors on absentee ballot envelopes so that the ballots can be counted.
The commission responded later Thursday, standing its ground while rejecting part of the premise of Nass’ criticism.
On Wednesday, the Joint Committee for the Review of Administrative Rules (JCRAR), on a 6-4 party-line vote, suspended an administrative rule that the elections commission published on July 11. The rule directed clerks to complete or correct missing address information for absentee ballot witnesses on the ballot envelopes, so that they could be certified and counted.
The Republicans on the committee argued that the commission had overstepped its bounds in writing the rule because state law requires that ballots lacking a witness address must not be counted.
Supporters of the rule, including committee Democrats, said it was an appropriate clarification of the law, which is not specific about what the witness address should include. Backers of the rule also said it would ensure that otherwise valid votes could be counted rather than thrown out because of a minor error.
The suspended rule was based on guidance that the elections commission issued in 2016. After the rule was killed, an elections commissioner noted that the guidance had not been revoked and therefore was still in effect.
In a statement Thursday, Nass, co-chair of JCRAR, accused the commission of announcing that “it will continue to tell municipal clerks they can ignore state law.”
Nass stated that he has asked the Legislature’s GOP leaders to seek a court order for the commission to follow “state law regarding absentee ballot certification procedures.”
The statement also directs clerks and election workers “to comply with the specifics of state law regarding the procedure for correcting absentee ballot certifications,” and warns that election workers who follow the elections commission guidance “could be exposing themselves to both civil and criminal liability for violating state law.”
A pending lawsuit in Waukesha County challenges the legality of the 2016 guidance.
Late Thursday, the elections commission issued a statement that denied Nass’ assertion. Commission members have not yet discussed the rule suspension, the statement said, and the commission “has not put forward any further direction since Wednesday’s JCRAR vote.”
“According to Wisconsin law, actions of the Commission require a two-thirds vote of Commission members,” the commission statement said. “Because Commissioners have not yet authorized retracting the Commission’s separate 2016 Guidance on Absentee Ballot Certificate Correction, upon which the 2022 emergency rule was based, it continues to remain intact, as it has since 2016.”
The statement said that the commission members might meet “to discuss the JCRAR’s vote or to take further action on the Commission’s 2016 guidance,” but didn’t specify when. “As with any decision, Wisconsin’s local clerks, along with their legal counsel, can consider the recent legislative committee activity as they plan for upcoming elections,” the statement said.
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