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.

An absentee ballot drop box used by the city of Madison. (Wisconsin Examiner photo)

The Wisconsin Elections Commission found that the city of Madison failing to count nearly 200 absentee ballots cast in last year’s November election was the result of a “confluence of errors” and a “complete lack of leadership” in the city clerk’s office, according to a draft report of WEC’s investigation into the incident. 

The Madison city clerk’s office told the elections commission in a memo Dec. 20 about the lost ballots from two Madison wards. A bag containing 68 unprocessed absentee ballots from two wards was found Nov. 12 in a tabulator bin, the memo stated. During reconciliation of ballots on Dec. 3, clerk employees found two sealed envelopes containing a total of 125 unprocessed absentee ballots from another ward. The discovery of the missing ballots was announced to the public Dec. 26. 

The missing ballots were not enough to change the result of any local, state or federal elections.

WEC’s investigation into the matter was led by the commission’s chair, Ann Jacobs, a Democratic appointee, and Don Millis, the commission’s most recent Republican-appointed chair. The investigation took six months and involved 13 depositions and the review of more than 2,000 documents. 

The report on the investigation, which goes to the full commission for approval in a meeting next week, found five counts in which the city’s clerk, Maribeth Witzel-Behl, acted “contrary to” state election law. 

Witzel-Behl resigned from her position in April after nearly 20 years as city clerk. 

The investigation found that the city exposed itself to mistakes by printing the pollbooks for polling places — the log in which election staff records when a voter’s ballot has been received and counted — three weeks before Election Day. That time frame meant that by the time polls opened on Nov. 5, the record in the book of which voters had already returned their absentee ballot was out of date. 

Additionally, the city “failed to track absentee envelopes and bags” meaning that large manila envelopes and courier bags full of absentee ballots weren’t numbered and organized by ward. 

“This meant that the polling places would not know how many Courier Bags or Carrier Envelopes to expect and with what seal numbers,” the report states. “Had they been given those numbers, they would have been able to immediately know if they were short a bag or an envelope and could have immediately looked for the missing item.”

According to the report, the most likely explanation for the ballots not being counted at the polling places on Election Day is that they were never delivered to the polls. 

Much of the report is a blistering criticism of Witzel-Behl’s leadership and response to the missing ballots, particularly her decision to leave on vacation on Nov. 13 — while the city was still working through the ballot reconciliation process. 

“The lack of action by the City Clerk with regard to the found ballots is astonishing,” the report states. “She demonstrated no urgency, let alone interest, in including those votes in the election tally. At the time the Ward 65 ballots were found, the county canvass was continuing, and those ballots could have easily been counted. That would have required the City Clerk to take the urgent action that the situation demanded.” 

“Instead, she went on vacation and, per her testimony, never inquired about them again until mid-December,” the report continues. “There was nobody who took responsibility for these ballots. It was always someone else’s job. Rather than acknowledge these significant errors, the City Clerk and her staff either ignored the issue or willfully refused to inform the necessary parties and seek assistance. These actions resulted in nearly 200 lawful voters’ votes going uncounted – an unconscionable result.  This profound failure undermines public confidence in elections.”

The report found that Witzel-Behl potentially violated state law by abusing her discretion to run Madison’s elections, printing the pollbooks too early, failing to maintain records on the handling of absentee ballots, failing to properly oversee the staff responsible for counting the absentee ballots and failing to inform the city’s board of canvassers about the missing ballots. 

“It was the job of the City Clerk to immediately take action once notified about the found ballots, and she did nothing,” the report states. “It was the responsibility of the Deputy Clerk to take action in her absence, and he did nothing.  These ballots were treated as unimportant and a reconciliation nuisance, rather than as the essential part of our democracy they represent.”

If the report is approved by WEC, it will require Madison to certify it has taken a number of actions to correct the problems from November. Those requirements include developing an internal plan delineating which employee is responsible for statutorily required tasks, printing poll books no earlier than the Thursday before elections, changing the absentee ballot processing system so bags and envelopes aren’t lost, updating instructional materials for poll workers and completing a full inspection of all materials before the scheduled board of canvassers meeting after an election. 

WEC is scheduled to vote on the report’s findings at its July 17 meeting.