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The Wisconsin Elections Commission on Thursday overruled controversial ballot-counting decisions in Mequon and Madison, ordering the cities to revise final tallies in their Wisconsin Supreme Court election results.

Madison counted 23 late-arriving ballots that the commission voted should not have been included, while Mequon threw out five ballots the commission said should have been counted. The commission voted 6-0 to investigate both city clerks’ offices and ordered changes to the counts — voting 5-1 to require Madison and Dane County to exclude the 23 ballots and 6-0 to require Mequon and Ozaukee County to count the five.

The deadline for the state to certify the election is May 15, but some commissioners acknowledged the likelihood that lawsuits over the decisions could come before then.

In Madison, poll workers on Election Day counted 23 absentee ballots that arrived at four polling places after 8 p.m. Tuesday, despite a state law requiring that absentee ballots be “delivered to the polling place no later than 8 p.m.” in order to be tallied.

There was some debate ahead of the Madison vote because Commission Chair Ann Jacobs and Commissioner Mark Thomsen, both Democrats, said they felt uncomfortable disenfranchising the 23 voters. But Jacobs said she was following the law in ordering Madison to redo its count, adding that she hoped “those voters will perhaps appeal this decision.” 

“We’re going to disenfranchise 23 people,” said Thomsen, the lone no vote. “I don’t think the law requires us to do that.”

Voting in favor, Don Millis, a Republican commissioner, said the commission is bound by state law not to count those ballots.

“There has to be some accountability,” he added, “for the failure to get these ballots to the polling places in a timely manner.”

Dane County Clerk Scott McDonell, a Democrat, told Votebeat that he’s considering suing over the agency’s order. McDonell previously voted to count the late-arriving ballots during the county’s canvass.

“It’s disappointing that the Wisconsin Election Commission’s directive is to reject ballots that were properly cast by voters,” Madison Clerk Lydia McComas said in a statement.

This marks the second significant error from the Madison clerk’s office in recent elections. In 2024, officials didn’t count 193 ballots that arrived at the city well ahead of Election Day, leading to investigations and a lawsuit.

Mequon redo comes amid confusion over clerk’s standard

The decision to investigate Mequon came after City Clerk Caroline Fochs decided not to count five ballots under an unusually strict standard for the witness address field on absentee ballot envelopes. Commissioners and staff found that decision to be an abuse of discretion.

For years, Fochs has used a standard contrary to the commission’s guidance, which is to consider a witness address valid if it includes a street name, number and municipality.

Instead, if a witness lists a municipality that shares a name with another elsewhere in the country and does not include a ZIP code or state — even though the absentee envelope doesn’t call for them — Fochs told Votebeat she does not count the ballot. If the municipality name is unique, she will count it without a ZIP code or state. 

In this latest election, those municipalities were Baltimore, Fox Point, Verona and Houston.

“The idea that someone would Google to find out whether or not there’s multiple Veronas in the United States, but not Google the witness’s address to confirm where they were located just strikes me as an odd choice, and contrary to the applicable law,” Jacobs said.

A Votebeat review of Mequon ballots rejected since 2024 found that Fochs in some cases appeared to have misapplied her own standard — rejecting ballots from municipalities that didn’t share a name with any other city, like Chicago and Fox Point.

Referencing Votebeat’s reporting, Jacobs said those people’s votes “were not counted for any good reason.”

Fochs and her city attorney have defended the city’s standard as a proper use of discretion despite coming under fire for it. Fochs didn’t immediately respond to a request for comment.

Speaking with Votebeat after the votes, Millis said that although mistakes happen from time to time, clerks need to understand that there can be consequences for errors “if you don’t follow the law and take reasonable efforts to make sure that all ballots are counted.”

Pointing out that he was a Republican commissioner, Millis said he also has a partisan interest in making sure votes in Mequon, a traditionally GOP city, are counted.

“We shouldn’t be doing things to make it difficult for anyone to vote, but here, from just even a partisan standpoint, on average, it’s hurting Republicans more than Democrats.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.

Wisconsin Elections Commission overrules ballot-counting decisions in Madison and Mequon is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.