Wisconsin Election Commission Directive Allows Clerks To ‘Fix’ Ballots [UPDATED]

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Election officials count absentee ballots at a polling place located in the Town of Beloit fire station on November 03, 2020 near Beloit, Wisconsin.
Scott Olson/Getty Images

This article has been updated to include more context about the directive as well as the commission’s defense of its policy.

A new report points out that an executive branch agency called the Wisconsin Election Commission issued a directive in October telling local county election clerks that they can “fix” ballots by filling in missing addresses for witnesses. According to one former Wisconsin Supreme Court Justice, the policy, which has been in place since October 2016, may violate a Wisconsin law requiring ballots to have a witness address to be validated. The commission has defended its policy, however, stating that the law “does not specify who affixes the address.”

Wisconsin Statute 6.87(6d) states, “If a certificate is missing the address of a witness, the ballot may not be counted.”

But in August, the Wisconsin Elections Commission issued a memo telling clerks they could fill in the address of the voter:

To make sure your ballot is counted, double check the following before you return it: Your voter information: this section is usually completed by your clerk and includes the date of the election, the county and municipality in which you are registered, your name, the address where you are registered, city, and zip code. Voter Signature: you (or your assistant) must sign in the Certification of Voter section. Witness Signature and Address: your witness must sign and provide their full address, (street number, street name, city) in the Certification of Witness section. Make sure your ballot is in your envelope and make sure the envelope is sealed properly.

If any of the required information above is missing, your ballot will not be counted.

In October, the Wisconsin Elections Commission issued a directive to the state’s county clerks that seemed to allow them to fix incomplete (or “spoiled”) ballots missing witness signatures, writing, “Please note that the clerk should attempt to resolve any missing witness address information prior to Election Day if possible and this can be done through reliable information (personal knowledge, voter registration information, through a phone call with the voter or witness). The witness does not need to appear to add a missing address.”

As noted by Wisconsin Election Commission public information officer Reid Magney, the guidance has been in place since October 2016. “The guidance has been in effect for 11 statewide elections, including the 2016 presidential and presidential recount, and no one has objected to it until now,” said Magney, as reported by USA Today.

An Oct. 18, 2016 memo from the commission reads in part (formatting adjusted):

[T]he Commission’s guidance is that municipal clerks shall do all that they can reasonably do to obtain any missing part of the witness address. Those steps may include one or more of the following options:

1. The clerk is able to reasonably discern the missing address or address component by information appearing on the envelope or from some other source, such as:

  • The voter has provided his or her complete address and the clerk has personal knowledge that the witness resides at the same address as the voter.
  • The clerk has personal knowledge of the witness and knows his/or her address.
  • The voter’s complete address appears on the address label, and the witness indicates the same street address as the voter.
  • The clerk is able to utilize lists or databases at his or her disposal to determine the witness’s address.

2. The voter or witness may wish to appear in person to add the missing information, or provide the address information by phone, fax, email or mail. The voter may provide the address separately as an alternative to returning the certificate envelope and having the voter mail it back again as outlined below.

3. The voter may request that the clerk return the certificate envelope so the voter can personally add the witness address. […]

4. The voter may wish to spoil the original ballot and vote a new one.

Derek Muller, a professor of law at the Iowa School of Law, told Just The News, “This is a complication thing about elections like this. I’ve seen it in a lot of jurisdictions, what might be sort of a technical violation of the statute, in this case encouragement to county clerks about how to use their judgment on whether or not to cure a ballot.”

Retired Wisconsin Supreme Court Justice Michael Gableman told WISN, “The statute is very, very clear. If an absentee ballot does not have a witness address on it, it’s not valid. That ballot is not valid.”

“In defiance of and direct contradiction to the statute, the Wisconsin Elections Commission gave guidance — that is, cover —to all 72 county clerks and turned the statute on its head,” said Gableman. “They said, ‘Gee, we know the law says an absentee ballot without the witness address is not valid, but county clerk, you have a duty to go ahead and look up on your own the witness’ address if there’s no address on the absentee ballot.’”

The Wisconsin Election Commission, however, maintains that its policies are not in violation of the law, asserting that the law “does not specify who affixes the address” and noting that the addresses have been added to the certificates rather than the ballots themselves, as AFP reports.

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