Michael Haas, Madison city attorney and acting city clerk, addresses the Wisconsin Elections Commission on Thursday. (Screenshot/WisEye)

The city of Madison has three weeks to review an order on how to prevent election officials from repeating a mistake they made in the November 2024 election, when they failed to count nearly 200 ballots.

The Wisconsin Elections Commission voted Thursday to hold off on the order after the Madison city attorney and acting city clerk, Michael Haas, urged the commissioners to first give the city a chance to negotiate its details.

“We have concerns about the approach that would require Madison and Madison alone to implement specific new procedures without the opportunity for our staff to consider their impact and practicality and to provide feedback” to the elections commission, Haas told the commissioners during the public comment period at the start of the meeting.

The city alerted the commission on Dec. 20, 2024, that 193 absentee ballots from three wards were never processed — 68 from two wards that were found on Nov. 12 and 125 from another ward found on Dec. 3.

“The failure to count the 193 ballots in Madison was a result of a confluence of errors,” wrote commission members Ann Jacobs and Don Millis, in their report on their joint investigation. Jacobs, a Democrat, is the current commission chair; Millis, a Republican, is the former chair.

The report found “a complete lack of leadership” by Madison’s city clerk at the time, Maribeth Witzel-Behl, after the uncounted ballots were discovered. Witzel-Behl resigned in April.

“These ballots were treated as unimportant and a reconciliation nuisance, rather than as the essential part of our democracy they represent,” Jacobs and Millis wrote.

“The buck didn’t stop anywhere,” Jacobs told the commissioners.

While the report found violations of state election law, it stipulated that those weren’t crimes and that there was no recommendation for criminal referrals.

“This is not a criminal investigation,” Jacobs said. “The focus of this investigation has been discovering what happened and making sure it doesn’t ever happen again in Madison and throughout the state.”

The report’s proposed order requires the Madison city clerk to produce a plan for which employees handle each task in running an election; to print pollbooks that record absentee ballots no earlier than the Thursday before the election; and to watermark ballots that arrive after that date.

Pollbooks printed three weeks before the Nov. 5 election and ballots that were marked with a highlighter, but not watermarked, when they arrived after the books were printed were among the anomalies the report found in the Madison case. 

The proposed order also includes requirements for the city clerk’s office and election officials who handle and process absentee ballots on Election Day.

Haas said “wholesale personnel management changes” in the order could be costly and that it didn’t account for changes the city has already made in its procedures.

Commission member Mark Thomsen urged the body to separate the report from the order, postponing the order so the city clerk’s office could respond.

“We have oversight but clerks run the elections, and it seems to me that we should at least defer to the city and the clerk on the specifics of an order,” said Thomsen, a Democrat.

Republican commissioner Bob Spindell agreed. “I’d like to see this cool off a bit and give Mike [Haas] the chance to come back as he’s requested,” he said.

The commission approved the report, minus the order, on a 5-1 vote, with Spindell the lone dissenter, saying that the former clerk “should not be crucified” over the incident.

A motion to approve the order failed on a tie vote. Commissioners then voted unanimously to defer it, giving the city until Aug. 7 to offer comments and setting a follow-up meeting for Aug. 15.