Dane County on Tuesday voted to appeal in court a Wisconsin Elections Commission order directing the county to remove 23 late-arriving Madison votes from its election certification of the recent state Supreme Court race after the commission said initially counting those votes was an illegal abuse of discretion.
The conflict centers on 23 Madison absentee ballots that city officials didn’t deliver to the polls until after 8 p.m. on Election Day, even though those ballots arrived at the city’s election office on the Monday before the election. Those ballots were initially counted by the city and county despite a state law requiring that absentee ballots be “delivered to the polling place no later than 8 p.m.” in order to be tallied.
Madison argued that counting those late-arriving ballots was in line with past court decisions holding that voters shouldn’t be disenfranchised solely for clerks’ mistakes. The Dane County Board of Canvassers sided with the city at the time, voting 2-1 to count the ballots the week after the election.
Then the state election commission last week said that the 8 p.m. deadline is not flexible — even if election officials’ errors are the only reason votes arrived that late. Commissioners ultimately voted 5-1 last Thursday to order Dane County and Madison not to count the 23 ballots, though one of the commissioners who voted in favor, Democratic Chair Ann Jacobs, said at the time that she hoped Madison or Dane would appeal the commission’s order in court.
“Like so many, I am unhappy that the law requires that the actions of the clerk penalize a lawful, proper voter, and I think our judiciary needs to address that conflict,” Jacobs told Votebeat after the Dane County vote on Tuesday. “I wish it was within the province of the commission to do so. I don’t think it is, so I am hopeful the judiciary will see and address this conflict.”
The county decided to appeal the order largely because the statute stipulating that ballots must be delivered by 8 p.m. “specifically addresses what should happen if the ballot is returned to the clerk on election day,” a legal memo from Dane County corporation counsel David Gault states. Because Madison received the ballots on the Monday before Election Day — not on Election Day itself — that statute doesn’t apply, he said.
In any case, Gault wrote, that law “should not be construed to disenfranchise an elector who has strictly complied with all statutory requirements to cast an absentee ballot. Such a construction would, in my opinion, be unconstitutional as applied to the facts of this case.”
While voting to appeal, the Dane County Board of Canvassers also ordered Madison to redo its certification without counting those 23 votes — in line with the commission order. Madison redid its canvass late Tuesday morning without those 23 votes. Madison City Attorney Mike Haas said the city has 30 days to appeal the commission decision and hasn’t decided yet whether to appeal.
Dane County Clerk Scott McDonell, a Democrat, told Votebeat that he hopes the Board of Canvasser’s appeal can be filed and ruled on quickly enough to reinstate those votes. But because the exclusion of those votes didn’t affect the outcome of any race and a ruling before the May 15 state deadline to canvass is unlikely, he said his focus is more on how courts say these situations should play out going forward for voters.
“They should not be penalized by a clerk error and have their constitutional right to vote taken away,” he said.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at [email protected].
