Under Wisconsin ‘drawdown’ election law, one voter’s error can disenfranchise another

Consider this scenario: An absentee ballot in Wisconsin gets returned with an error, like the voter failing to sign the envelope, but it mistakenly gets counted anyway because a municipal election worker initially didn’t catch the error when taking the ballot out of the envelope. 

Later, perhaps during a recount, a worker catches the error and has to mark that voter as invalid. And now the number of ballots in the counting pile is one greater than the number of valid voters.

The solution? Just pull one random ballot out of the pile and set it aside not to be counted. Now the numbers match up. But someone — it’s impossible to know who — got a valid vote tossed. 

It may not seem fair, but it actually happens from time to time in Wisconsin — and almost nowhere else — because of an election law that’s nearly as old as the state. Election officials aren’t crazy about the practice, called a ballot drawdown, and say it is reserved only for extraordinary cases.

Fond du Lac County Clerk Lisa Freiburg said she tries never to use the procedure.

“I don’t like it because it could be my ballot that’s being drawn down,” said Freiburg, a Republican, “but unintentional human error will cause drawdowns, unfortunately. It’s taking somebody’s vote away.”

The purpose of drawdowns is to resolve a discrepancy when polling place records show more ballots than voters who correctly checked in, or when absentee ballots outnumber correctly completed “​​ballot certificates” — the information on the envelope affirming a voter’s and witness’ identity. These discrepancies result from tiny recordkeeping errors and process fumbles that inevitably happen on a small scale during the heat of elections.

It’s not uncommon during recounts in high-turnout presidential elections for municipalities in a midsize county to discard several ballots this way. Bigger counties might discard 20 or more.

After the 2020 election, President Donald Trump invoked the law to request a drawdown of over 200,000 Wisconsin ballots, enough to give him a win in the state had he been successful. The Wisconsin Supreme Court narrowly rejected the claim, ruling that Trump brought it too late.

Other states used to conduct drawdowns, but Wisconsin appears to be among the very few still doing so. The practice is almost unanimously frowned upon by experts outside of Wisconsin because they say it means poll workers’ slip-ups trickle down to disenfranchise voters who didn’t make any errors of their own.

Election work “is a really human process, intentionally,” said Jennifer Morrell, CEO of The Elections Group, a consulting firm. “A lot of people are involved. And there are lots of checks and balances, but sometimes mistakes still happen. And the most important thing that we can do is document the mistake, learn from the mistake, look for opportunities — what went wrong, why did this happen? But certainly we shouldn’t be punishing random voters because of that mistake.”

Wisconsin officials have drawn down ballots to address a range of issues. Election officials have used the process during a recount after discovering that voters or witnesses incorrectly filled out absentee ballot envelope information. At least one drawdown resulted from an election official temporarily misplacing ballot envelopes. Drawdowns have been raised as a potential remedy — likely court-ordered, in response to a lawsuit — if a voter improperly returns multiple ballots to a drop box or clerk’s office.

Voters will never know if a drawdown excluded their ballot. Ballot anonymity generally makes it impossible to identify who cast a particular ballot once it has been processed and, in the case of an absentee ballot, separated from its envelope.

In other states, Morrell said, election officials try to focus on rejecting only the specific voter or ballot that for whatever reason didn’t comply with the law. They try to resolve any numerical discrepancies but don’t resort to discarding random ballots, she said.

With Wisconsin’s drawdown process, she added, “whether it’s an error or an intentional attempt to do something against the law, you’re transferring that now to just random voters.”

“It just feels so arbitrary,” she said.

Practice stretches back to Wisconsin’s founding

Wisconsin implemented drawdowns long before election officials could operate a voting machine, train clerks online, transfer election data using USB sticks or have an electronic statewide voter registration system. They existed decades before Wisconsin election officials had modernized systems that more efficiently prevented and flagged errors.

In fact, drawdowns emerged in 1849, less than a year after Wisconsin became a state. One of the first election bills signed into law during that period called for election inspectors to “publicly draw out and destroy” the number of ballots that exceed the number of votes on the poll list.

It’s unclear what lawmakers’ original intent was. The records on that only go back to 1927.

Wisconsin legislators have updated the drawdown law a few times. A 1983 update differentiated absentee ballots from regular ballots, requiring that election officials draw down from a stack of the same ballot type that created the discrepancy. A 2005 law outlined the drawdown process for municipal absentee ballot canvassing, when local election officials check the number of absentee ballots against the number of voters on poll lists. 

Minnesota, Florida and Michigan had similar laws or constitutional provisions soon after their founding. Those states now either hardly do drawdowns or don’t have the law on their books anymore.

“The fact that it exists in Wisconsin and nowhere else, sometimes people just shake their heads at it,” said Kevin Kennedy, who was Wisconsin’s chief election official for over 30 years.

Kennedy was part of a legislative study committee about 20 years ago to explore whether drawdowns were a proper procedure. That committee considered whether the practice was legal at all when applied to regular, in-person ballots. It didn’t come to a clear answer.

Drawdowns are a good way of addressing and resolving an issue when the practice is correctly employed, Kennedy said, like when there are more ballots than voters on poll lists at a polling place. But it’s not appropriate as a possible remedy when somebody argues certain ballots shouldn’t be counted, like if somebody improperly returns multiple ballots to a drop box, he said.

Kennedy, a Madison poll worker since retiring in 2016, added that drawdowns are typically the result of poll workers making errors.

Drawdowns are a last resort in Wisconsin

At this point, drawdowns are outlined in a couple portions of state law and the state election commission’s manuals. 

In each mention, the basic rationale and process are almost the same: Drawdowns are considered only after election officials check for and remove any blank ballots and ballots that election inspectors didn’t properly prepare. 

If the number of ballots still exceeds the number of voters following the completion of those checks, election officials randomly remove the number of ballots required to make the ballot count equal to the voter count. State law requires those ballots to be set aside, not counted, and properly preserved.

In Madison and surrounding Dane County, drawdowns typically result from election officials initially not catching errors on absentee ballot envelopes, said Dane County Clerk Scott McDonell, a Democrat. 

Mistakes on those envelopes, including the lack of a witness signature, could be caught later at a municipal or county canvass meeting, or during a recount, McDonell said.

The last time Freiburg recalled a drawdown in Fond du Lac County was in 2016, when the Green Party petitioned for a recount after the presidential election. 

In that election, Freiburg said, several ballots had to be drawn down because a municipal election official misplaced several absentee ballot envelopes.

“I think we were seven or eight short,” Freiburg said. “We called her. She claimed she had given everything to us. Finally, we had to draw down the ballots.” 

That wasn’t the end of the story. After the recount was complete, Freiburg said, the municipal official found the missing envelopes. But votes had already been drawn down.

“It was like, OK, now it’s too late,” Freiburg said.

An election official has reservations about drawdowns

No centralized database tracks every Wisconsin drawdown, leaving unclear how many elections and votes they affect. But several longtime county clerks across the state told Votebeat that the practice most often comes up during recounts, when voting records and ballots are closely scrutinized and contested.

After his loss in 2020, Trump requested a recount in Dane and Milwaukee counties, the state’s two biggest and most heavily Democratic counties.

During that recount, 36 ballots were drawn down in Westport, a small town just north of Madison, because of absentee ballot certificates that either had missing witness addresses or signatures of the voter or witness. Joe Biden lost 28 votes and Trump lost eight. (In Westport’s overall voting, Biden got just over 1,900 votes to Trump’s 1,100, though the drawdowns came out of a stack of absentee ballots, which tend to skew more Democratic.)

During the recount process, Bob Anderson, the town’s deputy clerk, said he realized he’d signed off on one of the challenged absentee ballot certificates that had missing information in the address field. 

Anderson said that he asked the Dane County Board of Canvassers, which was overseeing the recount process, not to discard a vote over that omission. The board upheld the objection to it, however, authorizing a ballot to be drawn down for that error, he said.

“I was disappointed,” he said. “You’d like everybody’s vote to count, certainly. And if it’s some kind of administrative (error) that we’re willing to own up to, it doesn’t seem right.”

Election officials and courts push back on drawdowns

Given the disenfranchising effect of drawdowns, courts and the Wisconsin Elections Commission have sometimes hesitated to encourage or allow them. 

In 2019, a Wisconsin appeals court reversed a drawdown that could have flipped the results of a St. Croix County board race after the commission cautioned against using the practice. 

The initial count showed a tie between candidates Ryan Sherley and Scottie Ard, resulting in a board official drawing a name — Ard’s — to break it. Sherley petitioned for a recount.

During the recount, election officials found three more ballots than voters in the candidates’ district and a three-ballot deficit in a different district. 

Asked to intervene, the Wisconsin Elections Commission said three voters likely received  ballots for the wrong district, and it recommended against a drawdown.

Drawdowns should be reserved for “when you cannot explain why you have more ballots than voters,” commission staff said.

Still, the board decided to conduct a drawdown among all ballots from the candidates’ district, not just the wards that had more ballots than voters. Two of the three removed ballots were for Ard, and Sherley was declared the winner.

Ard appealed the decision to a circuit court, which found that the drawdown had been done too broadly, and prevailed in another challenge from Sherley in the appeals court. That court ruled that while “any drawdown will necessarily result in some voters being disenfranchised,” limiting that pool to the wards with irregularities “avoids arbitrarily exposing voters in wards where there is no indication of error to disenfranchisement.”

Legislative attorneys question constitutionality

Besides a few court and recount cases, the drawdown procedure has received little publicity or scrutiny. But it was the subject of a 2005 Wisconsin Legislative Council memo created for a legislative study committee reviewing election laws. The memo notes that committee members raised concern that the drawdown process at recounts was “arbitrary and potentially resulting in an otherwise valid ballot being set aside.”

For absentee ballots, the memo said, the practice is “arguably justifiable on legal and policy grounds” since state law explicitly calls absentee voting a privilege, not a right.

Applied to regular, in-person ballots, though, “the legal analysis may change,” the attorneys stated.

“Given that a number of reasons may exist for the number of regularly voted ballots to exceed the number of names on the poll list, such as failure to mark the poll lists, a mistake in counting, or fraud, simply eliminating excess regular ballots may improperly deny the franchise to voters who cast a legal ballot,” the attorneys found.

The committee ended up slightly modifying the procedure, but it remains in use.

Broadest drawdown request shot down by Supreme Court

One of the members of the study committee, Jim Troupis, was a key figure in what appears to be the broadest drawdown request in Wisconsin: Trump’s 2020 effort to remove 220,000 absentee ballots in Dane and Milwaukee counties. 

Troupis represented the Trump campaign in a lawsuit that challenged four procedures that voters or election officials used to cast or process absentee ballots. It outlined drawdowns as “the only legally available remedy” to account for unlawfully cast ballots.

The effort failed. The Wisconsin Supreme Court struck it down 4-3, saying it was “unreasonable” for Trump to challenge the ballots after the election on the basis of laws and procedures that were in place well before the election.

Given the high court’s skeptical view of broad, post-election drawdown requests in that case, similar requests in the future would likely be a Hail Mary, said Charles Stewart, a professor of political science at MIT who studies election administration. But drawdowns could conceivably decide tight races, he added.

Ard, the St. Croix County board candidate who ultimately won the tightest of races and nearly lost it because of a drawdown, questioned why the practice remains in place. 

“You’re gambling with the intent of the voter,” she told Votebeat. “I can’t wrap my head around that kind of logic.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.

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This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.