An absentee ballot drop box in Madison, where officials lost and failed to count nearly 200 absentee ballots in the 2024 presidential election.

The Wisconsin Elections Commission voted 5-1 on Friday to institute its order against the city of Madison requiring that city officials make a number of changes to absentee ballot processes after the city lost and failed to count nearly 200 ballots during the 2024 presidential election. 

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 launched an investigation into the error. In a report released last month, WEC found that “confluence of errors” and a “complete lack of leadership” in the city clerk’s office led to the ballots going missing. 

The investigation report also proposed a number of requirements for the city to improve its systems for tracking and counting absentee ballots. Those requirements constituted the order the commission approved on Friday. 

Among other things, the order requires the city to develop an internal plan delineating which employee is responsible for statutorily required tasks, print poll books no earlier than the Thursday before elections, change the absentee ballot processing system so bags and envelopes aren’t lost, update instructional materials for poll workers and complete a full inspection of all materials before the scheduled board of canvassers meeting after an election.

Commissioners followed through with enacting the order after interim City Clerk Michael Haas had sent a letter to the commission, requesting that the provisions of the order be made more broad and suggesting that the commission does not have the authority to enforce such changes to local election practices against just one municipality. 

“Individually-tailored orders for jurisdictions across the state also runs the risk of increasing, rather than decreasing, inconsistency of local election practices,” Haas wrote in an Aug. 6 letter to the commission. “If the Commission truly wishes to dictate the staffing, workflow, and procedures of municipal clerks at such a granular level, a regulatory guidance or rule-making that applies to all jurisdictions and that allows for thoughtful input by local election officials makes far more sense and is likely required.” 

In the letter, Haas wrote that the requirements of the WEC order were drafted in a vacuum from the city’s already existing election processes; that they give no end date or flexibility to election law changes made by the courts, Legislature or WEC itself; don’t address the logistic specifics of running an election in the state’s second largest city and don’t provide statutory reasons for the required changes. 

At the meeting Friday, Democratic Commissioner Mark Thomsen was the only member to vote against enacting the order. Thomsen argued that the order seemed “spiteful.” He said the city administered the 2025 spring election with no issues and that it still doesn’t have a permanent city clerk, so whoever is hired will be hamstrung by an order made because of actions they had nothing to do with. 

“I don’t think it’s fair to burden the new clerk with a set of orders that all the other clerks recognize no one else has to follow,” Thomsen said. “It is absolutely tragic that 193 people’s votes weren’t counted. They have separate legal remedies now. We have done what we needed to do. We’ve done an investigation, we’ve laid it out, and I do not think we should do a power grab and create burdens on the new clerk, whether or not we can exercise it.” 

But the supporters of the order said that not imposing it would mean letting the city off without being held accountable. Commission chair Ann Jacobs, a Democrat, noted that even though former Clerk Maribeth Witzel-Behl resigned after the incident, many staff involved in losing the ballots remain in the clerk’s office. 

“I think we need to order it also so that clerks across the state understand the level of seriousness that this commission takes with this,” Jacobs said. “The city needs to straighten out what happened here. And I don’t think there’s been sort of that reckoning yet.” 

Administrative rules 

The commission on Friday also reinstituted the administrative rulemaking process on a number of proposed rules that had been held up by a legislative committee. 

The Legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) had previously suspended emergency rules written by WEC on a number of topics, including instructions for absentee voting and challenges to candidate ballot access. 

Last month, the Wisconsin Supreme Court ruled in Tony Evers v. Howard Marklein that JCRAR’s suspension of administrative rules amounted to an unconstitutional legislative veto. Under previous law, state agencies weren’t allowed to promulgate a permanent rule on a topic in which the committee had previously struck down an emergency rule. After the court’s ruling, WEC can once again start the rulemaking process. 

The commission voted to restart the process of establishing rules for challenging candidate nomination papers, challenging declarations of candidacy and mandating that local clerks use a uniform set of rules for absentee ballots.