Madison City Clerk responds to Republican subpoena requests

In a letter sent Friday, Madison City Clerk Maribeth Witzel-Behl replied to a subpoena from Senate Republicans, offering multiple options for how staff from the Legislative Audit Bureau (LAB) can inspect records from the 2020 election. 

Madison officials — citing guidance from the federal Department of Justice — declined to give LAB auditors the physical ballot envelopes and other election records and instead offered to provide copies or access to view the records under the supervision of city employees. Without providing that context in its final report, the LAB said that Madison refused to give auditors election records. 

Republicans have focused on this decision from officials in the largely Democratic city as evidence of  purposeful disregard for the LAB’s authority. Following the release of the LAB’s report Republicans in the Senate opened yet another investigation into the 2020 election through the Senate Committee on Elections, Election Process Reform and Ethics. Last week, Republicans sent a subpoena to Witzel-Behl demanding ballot certificates and the results of audits of the city’s voting equipment be turned over to the LAB or LAB staff be given physical access to those materials. 

In her Friday letter, Witzel-Behl responded that she wanted to provide auditors with the ability to inspect the records and allow transparency in the election process, but that she still has concerns about the records’ chain of custody and compliance with federal law. 

“Given that the LAB’s audit has prompted the subpoena that was issued to me, it is apparent that a conflict exists about the ability of the LAB to physically handle election records and the ability of my staff and me to abide by contradictory federal and state laws,” she wrote. 

“I now find myself in the position of, in the worst case scenario, choosing to be subject to either potential federal criminal prosecution or a finding of contempt by the Legislature and the threat of imprisonment in the Dane County Jail,” she continued. “As a state employee, I hope you can understand that this should not be the reality of public service for election officials in Wisconsin. It is unfortunate that I am being singled out for such treatment despite the fact that the LAB audit notes that two other jurisdictions also declined to allow LAB to physically handle ballots.”

Witzel-Behl offered a number of alternatives to providing LAB staff with all of the physical records. One option, she wrote, would be for Madison city staff to provide auditors with one record at a time before retrieving it and handing over the next one. Witzel-Behl also offered for Audit Bureau employees who are residents of Dane County to be sworn in as election officials, giving them the ability to maintain the chain of custody and view the records under the supervision of city staff. 

Witzel-Behl also again offered for auditors to be provided with copies of the requested records. 

“I wish to be as helpful as possible to your efforts without jeopardizing the integrity of our election security,” she wrote. “I trust that we share the same goal of providing the Legislature and the public with the most complete, accurate and transparent information and data regarding the administration of the 2020 General Election.”

The Senate subpoena demands the records be provided by Nov. 24. Witzel-Behl asked that LAB staff and her office find a time either before or after the week of Thanksgiving because city elections officials missed the holiday last year due to the recount of Madison’s election results.