(Henry Redman | Wisconsin Examiner)

Election officials have expressed confidence in Wisconsin’s election system and its ability to withstand any 2020-style attempts to overturn the results — yet some members of the state’s Republican party, and Donald Trump himself, have continued their work of the past four years to undermine trust in the system. 

On Friday, Trump posted on X that if elected he would prosecute people who “cheated” in the election. 

“I, together with many Attorneys and Legal Scholars, am watching the Sanctity of the 2024 Presidential Election very closely because I know, better than most, the rampant Cheating and Skullduggery that has taken place by the Democrats in the 2020 Presidential Election,” he wrote. “It was a Disgrace to our Nation! Therefore, the 2024 Election, where Votes have just started being cast, will be under the closest professional scrutiny and, WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law, which will include long term prison sentences so that this Depravity of Justice does not happen again. We cannot let our Country further devolve into a Third World Nation, AND WE WON’T! Please beware that this legal exposure extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those involved in unscrupulous behavior will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our Country.”

After the 2020 election, Wisconsin Republicans formed the plan that became the fake elector scheme. In Wisconsin and six other states where President Joe Biden won, slates of Republicans cast fraudulent Electoral College votes for Trump. Those votes became the basis for Republican members of Congress’ effort to vote to change the results of the election and give the victory to Trump on Jan. 6, 2021. 

In the months leading up to the 2024 election, election experts here have pointed to legal developments that should prevent a similar effort this year. The Republicans who took part in Wisconsin’s fake elector scheme have been barred from serving as presidential electors, Congress passed a law making it harder for them to dispute election results and more people are watching than in 2020. 

Absentee counting

But some conspiracy theories that abounded after 2020 have persisted. Republicans in Wisconsin claimed that voter fraud had occurred in Milwaukee because thousands of votes from the largely Democratic voting city were “dumped” in the middle of the night, flipping the election to President Joe Biden. 

The votes hadn’t been dumped. Instead the city — dealing with a massive increase in absentee voting because of the COVID-19 pandemic — took longer to count those ballots at its central count location. 

While most communities in the state count absentee ballots at the same polling place where the voters who cast them would vote in person, 36 communities send their absentee ballots to be counted together at one location. 

In response to the conspiracy theories about late night “ballot dumps,” the state Legislature considered a bill that would allow local election officials to begin processing absentee ballots on the Monday before the election. Local clerks would be able to open absentee envelopes and get the ballots ready to be counted, though not actually fed into tabulating machines, ahead of time, which would have allowed the counting on Election Day to move faster. 

The bill passed the Assembly, but Republicans in the state Senate killed it. 

On Thursday, Assembly Speaker Robin Vos (R-Rochester) blamed state Rep. Janel Brandtjen (R-Menomonee Falls) for the bill’s failure. Brandtjen has been one of the Legislature’s most outspoken election conspiracy theorists. Some of Wisconsin’s most prominent election deniers had opposed the bill’s passage during public hearings — alleging that if the ballots were processed ahead of time, nefarious actors could figure out exactly how many fraudulent votes were needed to swing the result. 

Wisconsin Elections Commission Chair Ann Jacobs expressed her exasperation on social media: “It was based on her conspiracy theory that (somehow) if the 10’s of 1,000’s of envelopes were opened early, someone could figure out the exact # of fake ballots (how? Who knows!) would be filled out & added to the ballot count. Complete nonsense yet here we are!”

Because the bill failed, and because many voters have continued to use the absentee and early voting processes after the pandemic, it’s likely that Milwaukee will again report results long after polls close on Election Day. 

Wisconsin’s system

Unlike most other states, Wisconsin’s election system is decentralized. Administration of elections is handled by the 1,850 municipal clerks working across the state. Each clerk is responsible for the election within their community. 

At a virtual event hosted on Friday by Keep Our Republic — an organization that has spent four years trying to rebuild trust in the election system by explaining to skeptics exactly how the system works — former Wisconsin Congressman Reid Ribble said that if a person can’t trust politicians that the system is safe and secure, they should trust their local clerk and their friends and neighbors who volunteer as poll workers. 

“Elections in Wisconsin are fair and safe and the 1,800 county and municipal clerks that are running those elections, and the thousands and thousands of local volunteers and poll workers, are working very hard to do their jobs in a non-partisan manner,” Ribble said. “I’ve often told friends of mine and other citizens … I get it if you don’t trust politicians. One person you should be able to trust is that — usually a senior citizen — poll worker at your local precinct that’s checking your ID and giving you a ballot and making sure that everything is done correctly. You often see these people at your grocery store. They might sit two or three rows in front of you at church and these are your friends. They’re your neighbors. They’re people that are concerned about defending democracy and seeing it unfold in front of their very eyes.”

Once polls close on Election Day and the votes are tallied, unofficial results get sent to county clerks, who report those preliminary numbers. It’s from those initial reports that media organizations use statistical processes to “call” races, declaring who has won. But the actual winners aren’t officially declared until the results are certified at multiple levels. 

This multi-step process gives election experts another layer of assurance that despite continued conspiracy theories, Wisconsin’s system is resistant  to meddling. 

Each municipality convenes a Board of Canvass, a multi-member body that reviews the community’s election results and makes sure that there aren’t any irregularities — making sure that the number of ballots cast equals the number of people who signed the poll books, for example. 

Board of canvass members live in that community, which experts say makes it hard for them to throw a wrench in the process and refuse to certify results, because they’d be declaring that their friends and neighbors’ votes shouldn’t count. This differs from states such as Georgia, where fears have arisen after last-minute process changes that partisan officials placed in this step of the process could throw out results, swaying the election to Trump. 

After the local board certifies the results, in Wisconsin, a similar body at the county level does the same. Then the state elections commission reviews the tallies and the chair of the commission certifies the results. Gov. Tony Evers will then certify whether the Democratic or Republican slate of electors has been chosen. 

On Dec. 17 this year, the electors will meet and cast their Electoral College votes for the winner of each state. 

Lawsuits 

Ahead of the 2020 election, many lawsuits were filed as questions arose over how to conduct a presidential election during a pandemic. After Biden won, Trump and his campaign undertook a flurry of legal efforts in an attempt to overturn the results. 

UW-Madison Law School Professor Robert Yablon said at the Keep Our Republic event Friday that 2024 has seen even more litigation than 2020. 

“In Wisconsin and around the country, election contests are increasingly being waged, not just in the court of public opinion, but in actual courts,” Yablon said. “The volume of litigation that we have seen in Wisconsin in 2024 is already higher than we saw in 2020, despite the fact that we’re no longer dealing with a pandemic that’s creating an array of controversies and questions about what sort of voting accommodations to be providing.”

The most significant lawsuit ended when the Wisconsin Supreme Court overturned a previous decision that outlawed the use of absentee ballot drop boxes. Drop boxes became very popular with the rise in absentee voting in 2020, but Republicans turned against them as conspiracy theories spread, claiming the boxes are vulnerable to fraud. Hundreds of drop boxes were in place across the state in 2020, but despite being legal again this year, only 78 are being used. 

A lawsuit has also changed rules guiding absentee witness signatures. Absentee voters are required to have someone witness their ballot by  signing the absentee ballot envelope and providing their address. If the address isn’t included, the ballot can’t be counted. 

In the past, local clerks have been given some discretion to add missing information to the address line. If, for example, a married couple filled out their ballots together and a voter’s spouse wrote “ditto,” the clerk could write in the complete address. Or if the clerk knows where the person lives, they could add that information themselves, similarly if the person left off a zip code or city name, the clerk could complete it. 

This practice was banned by a 2020 court decision, but subsequent lawsuits have clarified that the ballot must be counted “as long as the certificate contains enough information for the clerk to reasonably be able to identify the place where a witness may be communicated with,” Yablon said. 

A number of other lawsuits amount to what Yablon said are efforts to sow distrust in the system, even if they won’t be resolved ahead of the election. Two of these lawsuits involve the state’s voter rolls and when election officials are required to deactivate a voter’s registration. 

Some Republicans have become obsessed with the voter registration system in recent years, claiming that election officials are keeping voters active in an effort to allow fraudulent votes. 

“To some extent, it seems like these cases are serving to perpetuate and reinforce dubious doubts about legitimacy of the election, and to feed into narratives that the results shouldn’t be trusted,” Yablon said. “They’re trying to implicitly suggest that our voter rolls are bloated, and so there are many people on them who might vote who shouldn’t be voting.” 

“The reality is that this is a lawsuit that is not likely to create any action,” he added. “We’re not going to start purging voters days before the election.”

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The Wisconsin Elections Commission's October 4, 2024 meeting.

Local elections clerks found just 30 instances of fraud in elections from July 1, 2023 through Sept. 12, according to a report the Wisconsin Elections Commission approved and sent to the Legislature Friday. 

Those incidents occurred during the four elections in that span in which more than 4 million votes were cast. In the report, clerks from across the state found 18 instances of people voting twice in the same election — usually voting both absentee and in person. One case found a person who voted in two Kenosha County municipalities. Kenosha County also had six instances of people who attempted to register to vote while serving felony sentences. 

The WEC’s annual report on election fraud has frequently found that it is an exceedingly rare crime. Despite that, baseless allegations of fraud have continued to come from members of the Legislature and prominent election deniers. 

At Friday’s meeting, the commission also ended an effort to pass an emergency administrative rule guiding how election observers must operate at poll locations during the November election. The body has already approved a permanent rule on the same topic and forwarded it to the governor for approval. 

Republican Commissioner Don Millis, who proposed withdrawing the emergency rule, said that he was told by Republicans in the Legislature that the Joint Committee on the Review of Administrative Rules (JCRAR) wouldn’t approve the emergency rule and if WEC forwarded it to the committee, it could result in the permanent rule not passing the committee. 

“I’ve been told in no uncertain terms by the Senate side of the administrative rules committee that this rule will be suspended as soon as the committee has the opportunity,” Millis said. “Moreover, I’ve been told that proceeding on this could endanger the permanent rule. I think the permanent rule is a good thing, I’m glad it’s going to be in place. We’ll see what happens.” 

The rule on election observers is meant to provide a statewide template for how poll workers should deal with election observers, including how far away from voting activities observers must be, what type of seating should be provided, ensuring access to restrooms and providing guidance for when an observer is being disruptive and can be asked to leave a poll site. The emergency rule would have gone into effect sooner, but with an expiration date while the permanent rule, if approved, won’t expire. 

WEC has worked on the permanent rule for more than two years, gathering input from a wide range of partisan and advocacy groups. But with JCRAR’s opposition to the emergency rule, the fate of the permanent rule, once it reaches the Legislature, is unclear. 

“I’ve asked a number of people if they would prefer to have no rule or the administrative rule, which they may find some fault with, and they’ve actually said they prefer to have no rule,” Millis said. “So I’m very disappointed, but I think that for the long term opportunity to have a rule in place is that the best course of action is to cease the emergency rulemaking process and see what happens to the permanent role in the Legislature.”

JCRAR has become increasingly hostile to WEC in recent years, including a fight in 2022 over guidance the commission had sent to clerks over the use of absentee ballot drop boxes. 

“We spent two years, we had multi-partisan input, we had non-partisan input, we had both major political parties, we had minor political parties, we had persons who were advocates for persons with disabilities, who were advocates for all other aspects of it,” Democratic Commissioner Ann Jacobs said. “And we’ve had, I don’t know how many people come in here and demand that they wanted chairs and toilets and they were going to raise heck and high water, and then we put forward a rule that allowed it, and then all of a sudden they’re like, ‘Well, but not like that.’ And we read every single comment from every single person who had every single complaint. This was a bipartisan, multi-partisan rule. The fact that the Legislature is indicating, and I take Don at his word that they’re not going to let it go forward, is just sort of ridiculous, and it’s unfortunate.”

The commission also discussed updates to the agency’s open records request policy. A staff report notes that since 2020, the commission has received record-high amounts of requests — mostly for the communications of commissioners and WEC Administrator Meagan Wolfe. Often, those requests require commissioners to search their personal devices and accounts for relevant records. 

Staff proposed having commissioners forward any communications involving official government business that takes place on those devices or accounts to their Wisconsin.gov email accounts so staff can conduct those searches. 

Commissioners Mark Thomsen and Millis questioned the policy, with Thomsen saying people could effectively shut down his work by requesting communications from his work email that he receives unsolicited. 

“This is not a rational response to the problem posed,” he said. “We cannot invite people to shut down our businesses by sending us unsolicited emails.” 

State law generally considers messages about official government business conducted by officials on personal devices and accounts to be public records.

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