An absentee ballot drop box with updated signage in Madison following the Wisconsin Supreme Court's decision to allow the use of ballot drop boxes. (Wisconsin Examiner photo)
A Dane County judge on Monday denied a motion from the city of Madison to dismiss a lawsuit against the city over its loss of nearly 200 absentee ballots during the 2024 election.
Since misplacing and failing to count the ballots, Madison has been subjected to penalties from the Wisconsin Elections Commission and has hired a new city clerk. The lawsuit against the city was brought by a group of the voters whose ballots were not counted. The voters are represented by the voting rights focused firm Law Forward.
Madison’s defense against the lawsuit has sparked criticism from voting advocates across the state for diminishing the importance of the right to vote. The city had argued it could not be sued for losing the ballots because absentee voting is a “privilege” and not a constitutional right. A legislative policy statement adopted in 1985 states that “voting is a constitutional right,” but that “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.”
The lawsuit comes as Wisconsin election officials and Democrats have been defending absentee voting rights from Republican attacks for years. The argument by Madison officials drew criticism from a number of Democrats, including Gov. Tony Evers.
Dane County Judge David Conway wrote in his order denying Madison’s motion to dismiss that it wouldn’t make sense if the constitutional right to vote did not extend to absentee voting.
“Just because the absentee voting process is a privilege does not mean that those who legally utilize it do not exercise their constitutional right to vote,” he wrote. “Of course they do. Once a voter casts a valid absentee ballot that complies with the Legislature’s rules for utilizing the absentee process, the voter has exercised the same constitutional right to vote as someone who casts a valid in-person ballot at a polling place. And that right to vote would be a hollow protection if it did not also include the right to have one’s vote counted.”
Chief Inspector Megan Williamson processes absentee ballots at the Hawthorne Library on Madison's East Side on Election Day Nov. 8, 2022. A voting bill introduced by Wisconsin Republican Congressman Bryan Steil would put new restrictions on how absentee ballots are handled as well as make other changes that voting rights advocates contend would increase barriers for voters.. (Photo by Henry Redman/Wisconsin Examiner)
Legislation proposed Friday by Wisconsin Republican U.S. Rep. Bryan Steil would require voters in every state to present a photo ID for a federal election, require states to verify that anyone registering to vote in a federal election is a U.S. citizen, and require paper ballots in all federal elections.
The bill also would put sharp restrictions on a person’s ability to collect ballots on behalf of other people. It would ban universal voting by mail and ranked choice voting in federal elections.
Apress release from Steil’s office states that the bill — dubbed the “Make Elections Great Again Act” — consists of “baseline requirements in place for state election administration.”
U.S. Rep. Bryan Steil (R-Janesville)
“Americans should be confident their elections are being run with integrity — including commonsense voter ID requirements, clean voter rolls, and citizenship verification,” Steil, who represents Wisconsin’s 1st Congressional District and chairs the U.S. House Committee on House Administration, said in a statement. The bill would “improve voter confidence, bolster election integrity, and make it easy to vote, but hard to cheat.”
“The MEGA Act is a crucial step toward restoring trust in our democratic process and delivers long-overdue, common sense reforms that voters across our state and nation expect,” Wisconsin Republican Party Chairman Brian Schimming said in a statement.
But voting rights advocates said provisions in the legislation would increase needless barriers for voters, and that the legislation itself undermines trust in an election system that is already secure.
Wisconsin Democracy Campaign Executive Director Nick Ramos. (Wisconsin Examiner photo)
“The MEGA Act is a seriously problematic piece of anti-voter legislation. It will disenfranchise millions of voters across the country,” said Nick Ramos, executive director of the Wisconsin Democracy Campaign.
“This is a sweeping federal takeover of election administration,” said Samuel Liebert, Wisconsin state director for All Voting Is Local.
Provisions in the bill highlight claims that have been made by various activists and groups about voter fraud that election experts have argued are unsubstantiated.
The bill requires every state to make an agreement to share information with the U.S. attorney general about “evidence of potential fraud” in the state’s elections for federal office, including voting or attempts to vote by ineligible people. States without such an agreement would not be allowed to use federal funds from the Help America Vote Act of 2002 to administer their elections.
Liebert said under that provision and others, the U.S. attorney general could claw back federal funds on technical or even subjective grounds. “That puts local clerks at risk of losing the very resources needed to run secure elections,” he said, “leading to fewer poll workers, longer lines, and slower results.”
The bill requires a prospective voter to provide documentary proof of citizenship to register and a photo ID to vote, including by absentee ballot. That could block a number of eligible voters from casting ballots, he said, including the elderly, students, married women with name changes, rural voters, voters with disabilities and low-income voters lacking easy access to passports or certified birth certificates.
Samuel Liebet, Wisconsin state director for All Voting Is Local
“There is no evidence this is needed: Noncitizen voting is already illegal and extraordinarily rare,” Liebert said.
The bill includes new restrictions on voting by mail in federal elections.
It would outlaw universal voting by mail — a practice that is in place in eight states and the District of Columbia, according to the National Conference of State Legislatures. In addition, it would require mail-in ballot envelopes to include a postal bar code for tracking.
Absentee ballots would be required to arrive by the time the polls close in order to be counted, except for overseas voters and voters in the military. Currently some states allow absentee ballots to be counted if they have been postmarked by Election Day and arrive within a set number of days afterward.
Mail-in ballots could not be counted until after the polls close under the bill. In 13 states, counting mail-in ballots can start ahead of Election Day under their current laws. Among the rest, some, including Wisconsin, allow counting to start before the polls close, while others don’t allow them to be counted until after the polls close. In Wisconsin, efforts to allow the counting of mail-in ballots to begin before Election Day have so far not succeeded.
The bill would claw back federal funds from states that don’t follow its requirements for handling mail ballots.
Language in the bill also prevents people from distributing, ordering, requesting, delivering or possessing more than four ballots for a federal election, and requires that the ballot they’re handling must be associated with the individual, a family member or a person for whom the individual is a caregiver.
The aim is to outlaw “ballot harvesting,” Steil said in his press release.
A 2020report by the Brennan Center for Justice at New York University said attacks on ballot collection by calling it “ballot harvesting” have conflated two practices — illegal tampering with absentee ballots, and the benign practice of helping voters who need help in casting and returning an absentee ballot.
“Some voters need this assistance in order to cast a ballot,” the Brennan Center report states.
In the MEGA Act, “The limits on possession and return of mail ballots — including felony penalties — would make it harder for caregivers, family members, and community members to help voters who need assistance,” Liebert said. “This is especially concerning for voters with disabilities, older voters, and voters living in rural or tribal communities.”
The bill requires all states to verify the eligibility of voters to take part in federal elections every 30 days “through the use of all verification resources available to the State,” including the federal Systematic Alien Verification for Entitlements system maintained by the Department of Homeland Security.
In the course of those monthly checks, states must remove any duplicate registrations and any voters not eligible because of a criminal conviction, death, change of residence or because they’re identified as a noncitizen by the SAVE system.
The databases the bill prescribes are prone to errors, however, Liebert said, which “dramatically increases the risk of eligible voters being wrongly removed.”
Another provision gives private citizens the right to sue election officials whom they allege have allowed noncitizens to vote. That would create “a chilling effect that prioritizes risk avoidance over voter access,” Liebert added.
Liebert said the net effect of the bill would be a virtual federal takeover of the state’s role in administering elections.
“It strips states and local election officials of flexibility and imposes one-size-fits-all rules that don’t reflect how elections actually work on the ground — especially in a state like Wisconsin with decentralized administration,” he said.
“This bill is premised on the false idea that our elections are fundamentally broken,” Liebert said. “Election officials — including in Wisconsin — have shown again and again that elections are secure. Codifying suspicion into law doesn’t strengthen democracy; it undermines public confidence and puts election workers in harm’s way.”
The city of Madison and its former clerk are arguing in court that they can’t be sued for failing to count 193 absentee ballots in the 2024 presidential election, in part because a Wisconsin law calls absentee voting a privilege, not a constitutional right.
That legal argument raises questions about how much protection absentee voters have against the risk of disenfranchisement — and could reignite a recent debate over whether the law calling absentee voting a privilege is itself unconstitutional.
That law, which appears to be uncommon outside of Wisconsin, has been cited repeatedly in recent years in attempts to impose more requirements and restrictions on absentee voting, and, at times, disqualify absentee ballots on which the voters have made errors. It does not appear to have been invoked to absolve election officials for errors in handling correctly cast ballots.
Nonetheless, the law has become central to the defense presented by Madison and its former clerk, Maribeth Witzel-Behl, in a novel lawsuit seeking monetary damages on behalf of the voters whose ballots went missing.
The suit, filed by the law firm Law Forward, names the city and the clerk’s office as defendants, along with Witzel-Behl and Deputy Clerk Jim Verbick in their personal capacities, and cites a series of errors after the 2024 election that led to the ballots not being counted in alleging that they violated voters’ constitutional rights.
In defending against that claim, attorneys for Witzel-Behl argued in a court filing that by choosing to vote absentee, the 193 disenfranchised voters “exercised a privilege rather than a constitutional right.”
Witzel-Behl’s filing argues that the 193 disenfranchised voters did, in fact, exercise their right to vote, but chose to vote absentee and therefore place the ballots into an administrative system that “can result in errors.”
“The fact that Plaintiffs’ ballots were not counted is unfortunate,” the filing states. “But it is the result of human error, not malice. And that human error was not a violation of the Plaintiffs’ constitutional right to vote.”
Matthew W. O’Neill, an attorney representing Witzel-Behl, declined to comment.
The city’s attorneys have now adopted the same argument, filings show.
Asked about the city’s legal defense, current Madison clerk Lydia McComas didn’t address the argument directly but told Votebeat that the city is committed to counting all eligible votes “regardless of how they are cast.”
Phil Keisling, a former Oregon secretary of state, said he wasn’t aware of other states with similar laws. He said he found the city’s argument wrong and offensive.
“The right to vote, if there is a state constitutional right to vote, should have nothing to do with the form that a voter chooses,” he said.
Law passed to clarify absentee voting requirements
The law that Madison cites in its legal defense was enacted in 1985, long before absentee voting became widespread. The stricter language about the regulation of absentee voting came after judges in a series of Wisconsin court cases called for more liberal interpretation of those regulations.
The law states that while voting is a constitutional right, “voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place.” A subsequent provision states that absentee ballots that do not follow required procedures “may not be counted.”
The law appears similar to a 1969 U.S. Supreme Court decision that drew a distinction between the right to vote and the right to receive absentee ballots. That decision has since been interpreted — and misinterpreted — in a “number of ways by a number of people wanting to trim back mail voting,” said Justin Levitt, an election law professor at Loyola Marymount University.
After the Wisconsin law was enacted, the state election board clarified the Legislature’s position that failing to comply with procedures for absentee ballot applications and voting would result in ballots not being counted. The board did not suggest the law could be used to excuse municipalities that improperly discard legally cast ballots.
Absentee voting has long been available in Wisconsin but surged in 2020 amid the COVID-19 pandemic and has been extensively litigated since then.
The law calling absentee voting a privilege was central to a lawsuit that resulted in a 2022 statewide ban on ballot drop boxes; another lawsuit to prohibit voters from being able to spoil ballots and vote with a new one; and President Donald Trump’s attempt to overturn the 2020 election outcome in Wisconsin.
A later lawsuit led to the reinstatement of drop boxes in 2024. In that case, plaintiffs argued that the law “unconstitutionally degrades the voting rights of all absentee voters by increasing the risk of disenfranchisement.” The court, then led by liberal justices, declined to overturn the statute but disagreed with an earlier interpretation that absentee voting requires heightened skepticism.
Experts say Madison’s defense misinterprets the law
Rick Hasen, a professor at UCLA Law School and expert on election law, said he didn’t think the law itself was problematic, adding that states have various laws controlling absentee voting. The U.S. Constitution, he noted, doesn’t require any state to offer absentee voting.
But “once the state gives someone the opportunity to vote by mail,” he said, “then they can’t — as a matter of federal constitutional law — deprive that person of their vote because they chose a method that the state didn’t have to offer.”
The city and Witzel-Behl’s use of the law in this instance “seems to be wrong,” Hasen said.
Attorneys for Law Forward in a court filing called Witzel-Behl’s argument a “shocking proposition.”
“There is no right to vote if our votes are not counted,” Law Forward staff attorney Scott Thompson told Votebeat. “And this is the only case I’m aware of where a municipal government has argued otherwise.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
A U.S. Postal Service employee sorts packages inside the Los Angeles Mail Processing & Distribution Center in December. A new USPS rule on postmarks took effect on Dec. 24 that says mail might not be postmarked on the day it’s dropped off. (Photo by Mario Tama/Getty Images)
The U.S. Postal Service has adopted a new rule that could create doubt about whether some ballots mailed by voters by Election Day will receive postmarks in time to be counted.
A USPS rule that took effect on Dec. 24 says mail might not receive a postmark on the same day the agency takes possession of it. The postal service says it isn’t changing its existing postmark practices and is merely clarifying its policy, but some election officials have looked to postmarks as a guarantee that mail ballots were cast before polls closed.
The new rule holds implications for 14 states and Washington, D.C., that count ballots arriving after Election Day if they are postmarked on or before that day — commonly called a “ballot grace period.” In these states, ballots placed in the mail by voters before the deadline may not be counted if the postal service applies a postmark after Election Day.
The USPS rule says that “the postmark date does not necessarily indicate the first day that the Postal Service had possession of the mailpiece.”
The USPS rule comes as the U.S. Supreme Court prepares to consider a case that could eliminate ballot grace periods nationwide. The court’s decision, expected late this spring or next summer, could render the issues raised by the postmark rule moot.
Mail-in voting surged in 2020’s general election amid the COVID-19 pandemic, when 43% of voters cast their votes by mail. The percentage of voters mailing their ballots has fallen from that peak but remains above pre-pandemic levels. About 30% of voters cast mail ballots in 2024, according to data gathered by the U.S. Election Assistance Commission.
While the vast majority of mail ballots were successfully cast last year, hundreds of thousands weren’t counted. During the 2024 election, 584,463 mail ballots returned by voters were rejected by election officials — 1.2% of returned mail ballots. About 18% of those ballots were rejected because they didn’t arrive on time.
The USPS defended the change in a lengthy response to criticisms published in the Federal Register. The agency emphasized that it does not administer elections and doesn’t advocate for or against voting by mail.
The postal service repeated its advice that voters mail their completed ballots at least a week before Election Day. And it noted that voters may request a manual postmark at their local post office free of charge.
“If customers are aware that the postmark date may not align with the date on which the Postal Service first accepted possession of a mailpiece, they will be better equipped to adjust their plans accordingly,” the response reads.
“And if policymakers or other entities that create rules utilizing the postmark date are aware of what the postmark date signifies, they are better equipped to determine whether their rules adequately serve their purposes.”
Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.
This story was originally produced by Stateline, which is part of States Newsroom, a nonprofit news network which includes Wisconsin Examiner, and is supported by grants and a coalition of donors as a 501c(3) public charity.
Wisconsin’s controversial practice of randomly removing ballots to resolve discrepancies between the number of ballots and the number of voters would be prohibited under new draft legislation that requires meticulous audits in every county.
The draft proposal, obtained by Votebeat from Republican Rep. Scott Krug, will be formally released this week. Krug said the proposed ban on removing random ballots, known as drawdowns, was inspired largely by a Votebeat investigation highlighting election officials’ reluctance to use the practice and questions about its constitutionality.
“That practice undermines public trust,” Krug said, calling drawdowns “outdated.”
Wisconsin’s law allowing drawdowns is almost as old as the state, and it appears to be used most often in recounts. Other states have had similar laws, but most have repealed them.
Drawdowns occur when records show more ballots cast than the number of voters who cast ballots. These discrepancies usually stem from minor recordkeeping errors or process mistakes.
For example, if poll workers discover an absentee ballot envelope was improperly filled out but had already been separated from its ballot, the ballot still counts, leaving more ballots than valid voters. Because ballots are generally unidentifiable, the law would call for election officials to remove one ballot at random.
Multiple Wisconsin clerks have told Votebeat that they loathe the practice, and national election experts have been flabbergasted that it exists.
A legislative study committee in 2005 questioned the practice’s constitutionality without resolving the issue. Courts have similarly scrutinized its use. The Wisconsin Elections Commission has said a drawdown should be reserved as a last resort “when you cannot explain why you have more ballots than voters.”
Sam Liebert, Wisconsin state director of the group All Voting Is Local and a former clerk, said he once had to conduct a drawdown. He called it “one of the most gut-wrenching things I think I’ve ever done.”
“Every one of those ballots — it’s an American citizen’s hopes and dreams of the candidate or candidates that they want to represent them,” he said.
Although drawdowns are rare and usually limited to recounts, they’ve drawn national attention.
When President Donald Trump tried to overturn the results of the 2020 election in Wisconsin, his team invoked the law to seek a drawdown of 220,000 absentee ballots in Dane and Milwaukee counties, calling the practice “the only legally available remedy” to account for what it alleged were unlawfully cast ballots. The Wisconsin Supreme Court narrowly rejected the effort.
Other states typically require officials to explain discrepancies rather than resolve them by discarding ballots. Krug’s legislation would require exactly that — for election officials to document the discrepancy and record the number and type of excess ballots.
Proposal would require risk-limiting audits
The bill also requires risk-limiting audits, a kind of post-election review designed to give statistical confidence that votes are accurately tallied.
In these audits, workers review a statistically significant sample of ballots that should mirror the vote totals. If the sample doesn’t align with official results within the allowed margin of error, officials review more ballots until it does. The number of selected ballots varies from election to election, depending on how close a race is and how many ballots were cast.
The math behind risk-limiting audits is complex, but election experts and officials have long supported the practice.
Jennifer Morrell, CEO of The Elections Group, a consulting firm, said she has long promoted risk-limiting audits because they can include more ballots than other reviews. They can be laborious in close races but less burdensome in lopsided ones.
Morrell said jurisdictions that have implemented risk-limiting audits have become better at accounting for their ballots and reconciling vote totals, knowing that any issues would become obvious during an audit.
Liebert, from All Voting is Local, called risk-limiting audits “an effective way to ensure a correct count and detect any statistical anomalies,” while boosting voter confidence.
Closer races require larger samples, and in very tight contests, such audits may require a full hand count. Rock County Clerk Lisa Tollefson said that could happen often, as races across the county tend to be quite close.
Krug’s proposal calls for county clerks to perform a risk-limiting audit for the contest garnering the most votes at each general or spring election before they certify the election results. It also calls for an additional audit of a random contest in those elections that the Wisconsin Elections Commission selects.
A pilot program would begin in 2026, with full implementation in 2027.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Wisconsin Republicans are reviving a plan to let poll workers process absentee ballots on the Monday before an election, a change long sought by election officials, but blocked by a small but influential group of conservative lawmakers.
This time, the proposal is tied to measures conservatives want, including regulations for ballot drop boxes and an explicit ban on clerks fixing, or curing, errors on ballots. By bundling the measures together, GOP leaders hope to finally unite their party on a plan that would shorten the wait for election results, reduce the opportunity for election misinformation and avoid a veto by Democratic Gov. Tony Evers.
The proposal, which Votebeat obtained in draft form from Republican Rep. Scott Krug, is set to be publicly released next week. Krug, former chair of the Assembly Elections Committee and now assistant majority leader in the Assembly, said he “will use every little ounce of political capital effort I created on elections to get Monday processing done, because that’s 90% of our problem in the state: perception.”
Early processing of absentee ballots has had support from Democrats and many Republicans, but proposals to allow it have repeatedly stalled in the past due to concerns over whether Milwaukee, a Democratic stronghold that has been a target of election conspiracy theories in the past, could be trusted with the head start on processing ballots.
Krug said he is “confident” that this measure will pass.
“I think the right-leaning voters of the state will appreciate that we’re codifying the court decision that (clerks) can’t cure ballots anymore,” said Krug. “I think the middle and the left-leaning people are going to be able to appreciate the Monday processing, and I think everybody’s going to be able to appreciate that there’s standards for drop boxes — they’re not going away.”
Monday processing proposals have stalled in the past
Most states allow some early processing of absentee ballots, but in Wisconsin, local clerks in Wisconsin cannot begin until the morning of Election Day. That process includes verifying voters’ information, checking for complete witness information and running the ballots through a tabulator. This proposal would allow everything to begin on Monday, except tallying the results.
In Milwaukee, where absentee ballots numbering between 50,000 and well over 100,000 in general elections are counted in a central location, counting often stretches into the early hours of Wednesday. As those ballots get tabulated in batches overnight, they can swing who is ahead in the vote tallies broadcast by the media, fueling false claims of fraudulent “ballot dumps.”
Election workers count ballots on Election Day on Nov. 5, 2024, at the central count facility at the Baird Center in Milwaukee. (Joe Timmerman / Wisconsin Watch)
Democrats have long asked for a bill that includes only the Monday processing proposal, but Krug told Votebeat it’s unlikely that enough Republicans would get behind such a measure for it to pass. Evers himself has proposed “clean” versions of the Monday processing bill in past state budgets, but ran into Republican opposition.
In 2023, the Assembly quickly approved a version of a Monday processing bill, only for it to stall in the Senate after Republican Rep. Janel Brandtjen, a former elections committee chair who has spread election conspiracy theories, testified against it.
“Why would we give bad actors an extra day to cheat?” Brandtjen said in a statement in 2022 criticizing the transparency of Milwaukee’s election operation. (Claims of widespread voter fraud have never been substantiated.)
What’s included in the current Monday processing proposal
The current proposal is similar to past versions and includes previously proposed measures to create a centralized database of Wisconsin residents deemed incompetent to vote and to eliminate an obsolete practice of counting absentee ballots.
This version also proposes eliminating a law to record unique ID numbers on the back of absentee ballots at central counting facilities — a requirement that election workers say can risk ballot secrecy and creates needless work. It also includes a provision that would standardize witness address requirements on absentee ballot envelopes.
The proposal would require municipalities that count absentee ballots at a central location to begin processing them on Monday; it would allow municipalities that count them at polling places — such as Madison and the vast majority of other municipalities — to start on Monday, too, as long as they pass an ordinance allowing it.
An extra day to process ballots would allow election officials to work shorter shifts and get the job done more efficiently, said Rock County Clerk Lisa Tollefson, a Democrat.
It could also give election observers, some of whom are skeptical of the voting process, more opportunity to observe both ballot casting and counting, she said.
Tollefson said she was “hopeful” that the bill will finally cross the finish line this session.
“I really would like to have a large municipality have the option to use this, especially for your April and your November elections,” she said. “Those are really long days.”
Why Monday processing could break through this year
Krug said the proposal is one of his top priorities this session. And enough elements might have lined up for it to finally head to the governor’s desk.
Krug’s new leadership role could help. As assistant majority leader, he brokers support within the GOP caucus, which can only afford four defections in the 99-seat Assembly. He said he’s been trading support for colleagues’ priorities to build votes for Monday processing. He also is no longer chair of the elections committee, freeing him to author bills and advance them directly.
Ballot drop boxes may prove to be a key bargaining chip. The conservative-led state Supreme Court banned them in 2022; the liberal-led court reinstated them in 2024 but left them unregulated in statute.
Krug said he helped work on a poll in April that found 76% of Wisconsinites support the Monday processing proposal and 80% support standardized rules for absentee ballot drop boxes.
He decided to put the provisions together, proposing requirements for drop boxes, including where to place them, how to secure them, how to collect ballots, and how to keep records of when they’re emptied. He also proposed a requirement for the drop box to be under a continuous, livestreamed video feed.
Some members of the Republican caucus, Krug said, still want to get rid of drop boxes entirely. So “we had to kind of beef up the requirements for drop boxes to meet their hurdle. We’re not allowing them, we’re codifying them.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Former Madison Clerk Maribeth Witzel-Behl violated multiple state laws when her office failed to count nearly 200 absentee ballots in the 2024 presidential election, according to a draft report released Wednesday by the Wisconsin Elections Commission.
The commission cited a lack of leadership in the clerk’s office, referring both to Witzel-Behl and the deputy clerk who assumed control during her vacation shortly after the election.
Witzel-Behl, who was put on leave by the city after the error and then resigned, broke state law by failing to supervise absentee ballot handling, neglecting post-election processes, and by not training poll workers to check the bags used to transport ballots, the commission concluded.
“There is no evidence that the City Clerk took any steps to investigate the uncounted ballots once they were brought to her attention,” the commission wrote. “The evidence demonstrates that the City Clerk began her vacation on November 13 and then had little to do with the supervision of her office until almost a month later.”
The draft report follows a months-long investigation into the 193 ballots that went missing on Election Day. The ballots were found over the next several weeks — some of them before final certification of results — but were never counted. Commission Chair Ann Jacobs, a Democrat, jointly led the investigation alongside Republican commissioner and former Chair Don Millis.
For months, Madison election officials have been saying that the ballots that went uncounted were delivered to two polling sites but weren’t unopened. But the commission found no evidence the ballot bags were ever delivered. A chief inspector at one site testified he was confident there was no unopened bag in the supply cart sent to his ward.
The errors have already prompted significant changes in Madison’s election processes. Officials have overhauled ballot tracking procedures, which Madison and Dane County leaders say should prevent a repeat of the 2024 mistake.
Still, the commission emphasized “it is essential that the public understands what has occurred, so that municipalities throughout the state can review their own processes and make certain that they too do not find themselves in this very unfortunate situation.”
The commission’s sharp criticism extended beyond Witzel-Behl, noting that “the staff of the City Clerk’s office failed to take any action regarding those ballots.”
Deputy Clerk Jim Verbick said that his post-election involvement was “minimal” and that he didn’t think it was his job to do anything about the missing ballots, the commission’s findings state.
“However, he did not attempt to speak to the City Clerk about the matter,” the review continues. “There was nobody who took responsibility for these ballots. It was always someone else’s job.”
Madison Interim Clerk Mike Haas said in a statement that the city is reviewing WEC’s report and that he hopes that it can provide lessons that prevent similar errors in the future. He did not respond to a request for further comment.
Former clerk violated laws, gave contradictory statements
The report focused on lapses in training by the clerk’s office. For example, it said, Witzel-Behl stored absentee ballots in green courier bags, but didn’t mention that in poll worker training, and the bags weren’t labeled as carrying absentee ballots. She also failed to train poll workers that absentee ballots could also be stored in red security carts, which the commission said contributed to the ballots going uncounted. That lack of training broke state law, the commission stated.
The commission also found that Witzel-Behl violated a law requiring her to supervise absentee ballot handling. In her deposition, she “could not answer basic questions about absentee ballot handling procedures in her office.”
The commission’s report highlights contradictions between Witzel-Behl’s actions in office and deposition testimony. Although she claimed not to know about the uncounted ballots until December, the commission said she messaged an election worker in late November with instructions on how to handle the first batch of uncounted ballots.
Upon learning of the missing ballots in November, the commission said, Witzel-Behl should have alerted the city attorney, the County Board of Canvassers and the commission and immediately investigated her office’s procedures — but she didn’t.
The commission also alleged she violated laws by printing pollbooks too early, failing to oversee poll workers and inadequately preparing for the city’s review of election results.
Draft findings include several orders for Madison compliance
The report lists draft recommendations that the commissioners will vote on at their July 17 meeting. These include requiring the Madison Clerk’s Office to create a plan detailing which employee oversees which task; printing pollbooks no earlier than the Thursday before each election; clearly labeling and tracking the bags carrying absentee ballots; checking all ballot bags and drop boxes before the city finalizes election results; and explaining how it’s going to comply with each of the orders.
Witzel-Behl’s office printed pollbooks for the two affected wards on Oct. 23 — nearly two weeks before Election Day — despite state guidance to print them as close to the election as possible.
Had they been printed later, absentee voters whose ballots had already been returned would have been marked automatically, alerting poll workers that those ballots were in hand but not yet counted.
But printing pollbooks no earlier than the Thursday before an election could be challenging, said Claire Woodall, who was formerly Milwaukee’s top election official. Cities like Madison and Milwaukee must print tens of thousands of pollbook pages, often using private printers, and distribute them to chief inspectors.
“It seems like you’re rushing a process” with the Thursday requirement, Woodall said. “The last thing you want is for voters to show up at 7 a.m. and discover you don’t have the correct pollbook.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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