Chief Inspector Megan Williamson processes absentee ballots at the Hawthorne Library on Madison's East Side. (Henry Redman | Wisconsin Examiner)
The League of Women Voters of Wisconsin filed a lawsuit Thursday against Wisconsin Elections Commission guidance that bars people who request an absentee ballot from casting an in-person ballot if the mail ballot will not arrive by the time polls close on Election Day.
The lawsuit was filed as officials in Wisconsin, and the commission itself, have warned voters about potential delays in the mail system ahead of this year’s August and November elections.
But commission guidance states that once voters mail their absentee ballots back to the clerk, they cannot be issued new ballots at the polls on Election Day. This means that if voters realize their ballots will not arrive in time after early in-person voting closes the Sunday before an election, they will not be able to vote.
“Once a voter has placed their ballot in the mail, it is considered mailed,” the WEC guidance states. “They cannot be issued a new ballot at the polling place on Election Day, even if their absentee ballot will not be returned to the clerk’s office in time to be counted.”
The lawsuit seeks to allow voters who believe their ballots will not arrive to the clerk in time to go in person to cast a provisional ballot that would be set aside and only be counted if the initial ballot does not arrive by the deadline.
Hundreds of voters did not have their votes counted during the state’s April elections because their ballots did not arrive in time. A WEC survey of clerks following the April election reported that hundreds of the state’s election officials believed delays in the mail had caused problems in the spring election.
“Every voter in Wisconsin that puts an accurately requested absentee ballot in the mail on time expects their vote will be counted. Delays in mail delivery prevent that. It is time to have a remedy for these eligible voters,” Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, said.
The League is represented in the lawsuit by Law Forward and the Fair Elections Center. The lawsuit argues that the commission understands the problem but is not taking advantage of an obvious solution to the potential mail delays.
“The right to vote protects Wisconsinites from baseless disenfranchisement on Election Day. But WEC wants to turn these voters away. That’s just wrong,” Law Forward attorney Scott Thompson said. “We shouldn’t punish Wisconsin voters just because the mail is late. They must have the opportunity to vote on Election Day.”
Wisconsin election officials have reignited a legal battle over absentee voting with July guidance stating that voters cannot void a returned absentee ballot and cast a new one, even if Election Day is weeks away or the candidate they supported has dropped out.
Three Democratic residents in Dane County on Thursday sued the Wisconsin Elections Commission over the guidance, which was adopted by the commission on July 9, calling it an unconstitutional violation of the state’s absentee voting laws. All three plaintiffs voted for a gubernatorial candidate who has since dropped out of the primary, and under the commission guidance they cannot change their votes, even though those votes have not yet been counted. The legality of spoiling ballots just to change a vote has long been disputed.
The lawsuit says WEC’s guidance means the plaintiffs “will all be disenfranchised from meaningfully participating in this August election unless this Court steps in.”
Thursday’s lawsuit is the latest development in a legal dispute that began in 2022 and was reopened by an appeals court decision earlier this year. It was filed two days after the Democratic Party of Wisconsin sent the commission a letter urging it to rescind the guidance. The letter raised many of the same concerns later cited in the suit, including that the policy could disenfranchise voters and was adopted after early voting in the primary had already begun.
The July 9 guideline for clerks reverses the Wisconsin Elections Commission’s previous position and Attorney General Josh Kaul’s legal arguments on the agency’s behalf that voters should be allowed to replace absentee ballots they have already returned as long as they comply with statutory deadlines.
The WEC spent years arguing in court in favor of that broader definition of ballot spoiling, but its latest guidance effectively restores the rule imposed by a 2022 court ruling that banned the practice.
The commission adopted the guidance after clerks had already mailed ballots for the Aug. 11 primary and, notably, after multiple candidates in the crowded Democratic gubernatorial race dropped their bids.
“It seems to me exceedingly likely that this is something that people are going to keep fighting about,” Jeff Mandell, founder of the liberal law firm Law Forward, said ahead of the lawsuit.
He added that the timing of the guidance was unusual: Typically courts are skeptical of efforts to change rules close to an election. Some absentee voters in this election cycle probably cast their ballots under the assumption that they could spoil their ballot and cast a new one if their preferred candidate dropped out or they just wanted to change their vote, Mandell said.
Even if the commission’s guidance is in line with Wisconsin law, it creates a clear discrepancy between in-person Election Day and absentee voters, said Sam Liebert, the Wisconsin state director of All Voting is Local and a former municipal clerk.
Election Day voters can receive up to three ballots at the polls if they make a mistake, he pointed out. On the other hand, he said, absentee voters now get no second chance once they return their ballots, even if Election Day hasn’t arrived yet.
“The inconsistency is hard to ignore,” he said, and it presents a policy question for the Legislature — or maybe the courts.
Spoiling controversy blew up amid similar political dynamics in the 2022 primary
The WEC’s more permissive August 2022 guidance on ballot spoiling was prompted by similar dynamics as that of the present: highly contested primaries with candidates dropping out throughout the race and at the last minute.
In September 2022, GOP voter Nancy Kormanik sued over that guidance allowing absentee ballot spoiling, arguing that clerks can only reissue an absentee ballot if a voter returns an absentee ballot in a “spoiled or damaged” condition. Voiding a ballot that’s already been submitted and getting a new one over a voter’s own mistake or a candidate dropping out didn’t fall under that category, she argued.
Kaul, the state’s Democratic attorney general, saw the issue differently. A few different laws allow ballot spoiling, he said in a court filing, and “none requires the elector to explain how or why the ballot is ‘spoiled.’”
The ban stood until February of this year, when an appeals court vacated the lower court ruling. But the new ruling wasn’t on the merits of the case. Rather, it came because the court said Kormanik didn’t properly serve documents to a legislative committee at the start of the suit.
After the February ruling, clerks sought the commission’s updated guidance about how to deal with spoiling. They didn’t receive it in time for the Wisconsin Supreme Court election in April, and some municipalities offered instructions on how to spoil ballots. But with midterm primaries coming up — and particularly as rumors of gubernatorial candidates dropping out swirled — clerks were especially eager to know if the commission planned to stand by its earlier interpretation of the law and allow absentee ballot spoiling again.
On July 9, the commission provided an answer: It voted 4-2 that absentee ballot spoiling is prohibited after a voter returns an absentee ballot. Democratic commissioner Carrie Riepl, a former clerk, voted with the three Republicans in favor of the guidance. Democratic commissioners Mark Thomsen and Ann Jacobs voted against it.
The guidance came just one day after Democratic gubernatorial candidate David Crowley, the Milwaukee County executive, dropped out of the race and endorsed Lt. Gov. Sara Rodriguez for governor. Just over a week later, Rodriguez dropped out of the race and Crowley reentered.
Over 36,000 Wisconsin voters had already returned ballots by the day the commission issued its guidance, commission data shows. Voters had returned nearly 68,000 ballots by the time Rodriguez dropped out.
At the July meeting, commission chair Don Millis, a Republican, argued that voters should only be able to void — or spoil — ballots before they return them to the clerk.
“Once you’ve turned your ballot in, that’s it,” he said.
Meanwhile, Thomsen noted that in-person voters on Election Day can mark a ballot and receive a replacement ballot if they make an error, as long as the first ballot isn’t tabulated yet. But under the new guidance, an absentee voter couldn’t spoil a returned ballot even if it’s weeks from being tabulated.
“Why are we treating people that use mail differently than me if I show up?” he said.
On one hand, voters can argue that the inability to spoil ballots effectively disenfranchises them if they vote for a candidate that has since dropped out, said Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative.
On the other hand, she said, others can cite the Wisconsin law calling absentee voting a privilege, not a right, and argue that voters who exercise that right accept some risk in casting an absentee vote that can’t be taken back.
“The issue of whether ballot spoiling is or is not allowed under Wisconsin statutes hasn’t been definitively resolved,” she said.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Democratic Party of Wisconsin Chair Devin Remiker speaks at the party's 2026 convention. (Photo by Baylor Spears/ Wisconsin Examiner)
The Democratic Party of Wisconsin has requested that the Wisconsin Elections Commission retract guidance that bars voters from changing their vote prior to the Aug. 11 primary if their preferred candidate drops out.
“The Democratic Party of Wisconsin has an interest in ensuring that its voters have a valid voice in the primary elections,” Diane Welsh, the party’s attorney, wrote in a Tuesday letter to WEC Chair Don Millis. “The ability of voters to spoil their ballots after they have been submitted to their clerks will advance this interest. And, the ability to obtain new ballots protects the voters’ right to meaningfully participate in the democratic process.”
The letter states that the new guidance contradicts state law and the commission’s previous statements and rulings about ballot spoiling. It also states that by issuing the guidance so late, the commission was violating U.S. Supreme Court precedent against changing the rules of an election in the middle of an election cycle.
The elections commission voted 4-2 during its July 9 meeting to issue guidance limiting “ballot spoiling” — the process through which voters are allowed to cancel a submitted ballot and receive a new one. The new guidance, which two Democratic members of the commission voted against, states that a voter’s preferred candidate dropping out isn’t a good enough reason to get a new ballot.
“If you’re sitting at your kitchen table and you realize that you voted for two candidates in the same election, you can go back and say, I need a different ballot. I made a mistake. Or if your significant other spilled coffee on your ballot, you say, I need another ballot. That’s fine. Once you’ve turned your ballot in, that’s it,” Millis said at the July 9 meeting.
Under previous state law, voters were allowed to spoil their ballot for any reason and receive a new one up to three times. In 2022, former Waukesha County Judge Brad Schimel ruled that the practice was illegal. Schimel’s ruling was overturned by a Court of Appeals.
In a statement, Democratic Party of Wisconsin Chair Devin Remiker said that after consulting with the gubernatorial campaigns, the party would fight to make sure all primary voters get a chance to vote for their preferred candidate.
“Allowing voters to spoil and recast their ballots was standard practice in Wisconsin prior to attempts by Republicans to file frivolous lawsuits to muddy the waters,” Remiker said. “The Wisconsin Elections Commission recently issued guidance that advises clerks not to allow voters to request a new ballot. We believe that guidance was issued improperly, and after consulting with each of our Democratic candidate campaigns for governor, WisDems will be submitting a letter to formally ask the WEC to retract this guidance. If the WEC does not act immediately and retract this guidance, some voters will not be able to truly participate in our Democratic primary process.”
If the 2026 Democratic primary for Wisconsin governor seems large, 2018 certainly had it beat.
That year, 10 names were on the Democratic primary ballot, plus an 11th write-in candidate, according to results of the 2018 partisan primary kept by the Wisconsin Elections Commission.
Two Republican candidates and two additional write-ins appeared on the 2018 GOP primary ballot.
Billionaire Elon Musk likely broke Wisconsin law when he promised to hand out $1 million checks to voters in the 2025 state Supreme Court election, a bipartisan panel has found.
The Wisconsin Elections Commission last week referred two complaints to the Brown County district attorney’s office, which can choose to bring criminal charges over violating the state law against election bribery. Prosecutors have 40 days to report back to the commission.
Musk, the founder of SpaceX and CEO of Tesla, was deeply involved in the effort to flip majority control of the highest court in battleground Wisconsin.
The tech titan and groups he supported spent at least $20 million on the candidate backed by Republicans, Brad Schimel. However, he lost by 10 percentage points to Democratic-backed candidate Susan Crawford.
A month after the lopsided loss, Musk announced that he would be spending far less on political campaigns. Spending on the election topped $100 million, making it the most expensive judicial race in U.S. history.
The complaints, which are confidential under state law, were brought by voters in Milwaukee and Green Bay, which is in Brown County. Musk handed out checks at a rally there just days before the election.
The Wisconsin Elections Commission, consisting of three Democrats and three Republicans, voted 5-1 in closed session on Thursday to refer the complaints to the district attorney, the commission’s spokesperson Emilee Miklas said.
Brown County District Attorney David Lasee, a Republican, did not immediately return a message seeking comment Tuesday.
The motion approved by the elections commission said it found probable cause that Musk broke Wisconsin law by making a social media post offering $1 million to people who voted in the Supreme Court election “in order to induce them to vote in that election.”
Spokespeople for Musk did not immediately respond to requests for comment.
Musk gave $1 million checks to 3 Wisconsin voters
Three Wisconsin voters received checks from Musk, including two who got them in person at the Green Bay rally. Two weeks before the election, Musk’s political action committee, America PAC, offered $100 to voters who signed a petition in opposition to “activist judges,” or referred someone to sign it.
Crawford’s win kept liberals in control of the state Supreme Court, and their majority grew to 5-2 after Democratic-backed candidate Chris Taylor’s victory this year.
Musk’s spending on the 2025 race has already resulted in one lawsuit filed by a government watchdog group, the Wisconsin Democracy Campaign, which seeks to prohibit him from ever again offering cash payments in the state.
That lawsuit is pending in Brown County. It alleges that Musk and two groups he funds violated prohibitions on vote bribery and unauthorized lotteries and that his actions were an unlawful conspiracy and public nuisance.
Attempts to stop Musk failed in 2025
Wisconsin’s Democratic attorney general sued to stop Musk from handing over the checks to two voters, but was rejected by state courts.
Musk’s attorneys argued in legal filings in 2025 that Musk was exercising his free speech rights with the giveaways and any attempt to restrict that would violate both the Wisconsin and U.S. constitutions.
The payments are “intended to generate a grassroots movement in opposition to activist judges, not to expressly advocate for or against any candidate,” Musk’s attorneys argued in court filings.
Musk’s political action committee used a nearly identical tactic before the 2024 presidential election, offering to pay $1 million a day to voters in Wisconsin and six other battleground states who signed a petition supporting the First and Second amendments. A judge in Pennsylvania said prosecutors failed to show the effort was an illegal lottery and allowed it to continue through Election Day.
Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletters to get our investigative stories and Friday news roundup.This story is published in partnership with The Associated Press.
GREEN BAY, WISCONSIN - MARCH 30: Billionaire businessman Elon Musk arrives for a town hall meeting wearing a cheesehead hat at the KI Convention Center on March 30, 2025 in Green Bay, Wisconsin. The town hall is being held in front of the state’s high-profile Supreme Court election between Circuit Court Judge Brad Schimel, who has been financially backed by Musk and endorsed by President Donald Trump, and Dane County Circuit Court Judge Susan Crawford. (Photo by Scott Olson/Getty Images)
Elon Musk, the world’s richest man, likely broke the law when he gave $1 million checks to voters ahead of the 2025 Wisconsin Supreme Court election, the state’s elections commission decided last week.
In a closed session during its meeting last week, the commission voted 5-1 to refer two complaints to the Brown County District Attorney’s Office alleging that Musk violated the state law against election bribery. The office has 40 days to decide if it will bring charges.
The state’s election bribery statute makes it a crime to provide “anything of value” to induce a person to go to the polls. In Wisconsin, election bribery is a Class I felony, which is punishable by a maximum penalty of up to 3.5 years in prison, a fine of up to $10,000, or both.
In the days before the election, Musk gave $1 million to three voters, including two who received checks on stage at a political rally. He had posted on social media that people would be eligible for receiving the money if they had voted in the election. His America PAC also offered $100 to people who signed a petition against “activist judges.”
Musk was heavily involved in the 2025 race between conservative Dan Kelly and liberal Susan Crawford, spending more than $20 million supporting Kelly in what became the most expensive judicial campaign in U.S. history. Crawford won the race by a significant margin. The race occurred as Musk was making headlines for his leadership of President Donald Trump’s DOGE initiative to dramatically cut federal government spending. Crawford’s comfortable win, which solidified liberal control of the Court, was partially attributed to Musk’s participation backfiring and igniting turnout against Kelly.
GREEN BAY, WISCONSIN: Residents cast their ballots during in-person absentee voting at City Hall on November 04, 2022 in Green Bay. The Wisconsin Elections Commission has ordered an investigation of the Green Bay city clerk for repeatedly mailing out duplicate absentee ballots to voters. (Photo by Scott Olson/Getty Images)
The Wisconsin Elections Commission on Thursday ordered an investigation into Green Bay’s city clerk for accidentally sending some voters more than one absentee ballot during April’s spring election and for the upcoming August primary.
During the spring election, duplicate absentee ballots were issued to at least 152 Green Bay voters. While the complaint about the first incident was pending, the clerk’s office mistakenly sent 244 extra ballots.
Commissioners were very critical of the clerk, Celestine Jeffreys, for the repeated errors. Democratic Commissioner Ann Jacobs said it was “unconscionable” that the same mistake could be made in consecutive elections.
“I am really concerned that, first of all, it happened once, but then for the exact same error to happen a second time weeks later is unconscionable,” Jacobs said. “And we need, I think, as an organization, to investigate exactly what was going on in Green Bay, so we know how this error happened, other than just saying, ‘Well, somebody printed them twice.’ Well, yes, duh, but we need to know why they were able to print it twice, why this wasn’t caught, why it is that they mailed out 300 more ballots, apparently, give or take.”
A complaint about the duplicate spring ballots was made by the Republican Party of Wisconsin. In its own analysis, the commission’s staff found probable cause that the clerk’s office had violated state election law by sending the duplicate ballots and recommended that the commission order her to “conform her conduct to the law and put procedures in place to prevent issuing duplicate ballots.” The commission decided to investigate the cause of the problem first before taking further action.
The repeated mistakes were made as the election administration of Wisconsin’s largest cities, including Green Bay, has been under intense scrutiny since the emergence of Republican complaints about the 2020 election.
Green Bay was one of the main targets of Republican complaints of “Zuckerbucks” — grants to support election administration costs during the COVID-19 pandemic from a nonprofit supported by Facebook founder Mark Zuckerberg that largely went to Democratic-voting cities. The city was also pulled into a drawn-out legal battle stemming from the actions of Republican officials and a local election conspiracy theorist following the 2020 election.
During Thursday’s meeting, commissioners noted that the state’s WisVote system has safeguards to prevent this exact error, but that Green Bay used a different process. Wisconsin’s election system gives local election clerks a lot of discretion to decide how elections will be managed.
“If a municipality is using the WisVote system to print the stickers that go on the outgoing envelopes to voters containing their ballots, if you use that system, you cannot do a duplicate generation of those stickers,” Jacobs said. “You can’t do it. We put in a failsafe, and that failsafe is there specifically to prevent this from happening. And I want everyone to know that that system works and has worked and does work. Where this has happened more than once is where communities have elected to not use the WisVote system to generate their own stickers.”
Election betting
The commission on Thursday also discussed a state law that makes it illegal to gamble on the results of a Wisconsin election and vote in that election. The issue has become increasingly relevant due to the rise of prediction markets such as Kalshi and Polymarket.
Earlier this year, Jacobs warned on social media that betting on an election could result in people losing their right to vote — though there remained questions of how the law could be enforced.
Commission staff said that the law would be enforced similarly to other rules about voter eligibility, which largely rely on complaints being made to the commission by witnesses.
“Many voters may not know that they risk making themselves ineligible to vote in Wisconsin if they place a bet on a prediction market for an election-dependent outcome, such as which candidate will win the nomination or the office sought at an election,” WEC attorney Angela O’Brien Sharpe said, noting a gambling voter could be charged with a felony. “If someone has cause to believe that a voter has placed a bet, that would be solved by the same type of challenge as the other voter qualifications. The challenger would initiate the qualification challenge process the same as they would for any qualification issue, the voter would then be asked under oath if they had made any bet or wager depending on the result of the election, and that process would follow the very specific steps that are outlined in our administrative code for how to administer those types of challenges.”
For years, Mequon election workers employed an unusually strict standard for judging the validity of witness addresses on absentee ballot envelopes — a standard not apparently used elsewhere in Wisconsin and that the Wisconsin Elections Commission has now said is illegal.
Under that standard, Mequon officials rejected absentee ballots if the witness address did not include a state or ZIP code and the municipality name was not unique nationwide. That’s despite the fact that Wisconsin’s absentee ballot envelope no longer specifically asks witnesses to provide the information Mequon treated as essential: a state or ZIP code.
But a Votebeat review of hundreds of April 2026 absentee ballot envelopes, the dozens of ballots Mequon at least initially rejected since 2024, and scores of city records found that the city’s strict standard was applied unevenly — and, in some cases, resulted in the initial rejection of ballots that did not appear ambiguous at all.
In April, election workers accepted several ballots with the same missing witness-address information as ballots they moved to the reject pile. In one case, poll workers appeared to override the city’s own recommendation to reject a ballot. And of the ballots Mequon rejected because officials said the witness address listed a municipality name shared by other places in the country, about a third were actually from uniquely named municipalities. All the rest had unique combinations of street number, street name and municipality, even without a state or ZIP code.
Across several recent elections between 2024 and 2026, the city rejected at least 27 absentee ballots while allowing others with the same missing witness-address information to count. In the Wisconsin Supreme Court election this April, Mequon initially intended to reject five more ballots before the commission ordered city officials to count them — and to stop applying the unusual standard in elections moving forward.
Mequon followed the commission’s order to count the votes in April. But when Votebeat asked whether the city would abandon its practice in future elections, the city attorney was less definitive, leaving open the possibility that it could return.
Mequon officials have defended the rejections by saying voters are responsible for following the rules. Nancy Martin, a chief inspector at a Mequon polling place, said that she is unequivocally supportive of the city’s witness-address policy. She invoked a state law calling absentee voting a privilege, not a right.
Because of that law, she said, “you need to make sure that you’re doing your job as a voter, and I don’t think that sending incomplete information is doing a complete job as a voter.”
How Mequon’s standard clashed with state practice
Wisconsin law requires absentee voters to have a witness sign the ballot envelope and provide an address. But state law does not define how complete that address must be. In a lawsuit filed by Rise, Inc., a nonprofit advocacy organization, a court in 2024 sided with the group’s more lenient view, ruling that an address is sufficient as long as a clerk can reasonably discern where the witness lives.
The Wisconsin Elections Commission has since said that means clerks should not reject ballots simply because the witness address does not include a state or ZIP code. In fact, the WEC-approved state absentee ballot envelope doesn’t specifically designate spaces for a witness to provide a state or ZIP code. Mequon has taken a stricter view than WEC in rejecting ballots that do not provide that information.
Sam Liebert, the Wisconsin state director of All Voting is Local and a former municipal clerk, said it’s normal for city attorneys to be in touch with clerks to decide or interpret election policies.
“But in Mequon, it is pretty alarming and jarring that an attorney would so blatantly not be in agreement with WEC’s interpretation of the Rise ruling,” he said.
Inconsistencies within polling places that rejected ballots
The unevenness showed up even within the same polling places.
Mequon officials at the same polling places who initially rejected the five ballots from the April election counted six others in that same election — three from Cedarburg, one from Waukesha, one from Rib Lake, and another from Shorewood — even though their witness addresses were also missing ZIP codes and states, and the municipality names were not unique nationwide.
In one instance, poll workers even appeared to override a city official’s instructions to reject a ballot from Shorewood that didn’t list a ZIP code or state. It arrived at the precinct with a handwritten note affixed to it saying “Reject — multiple ‘Shorewoods’ in US.” There is a Shorewood near Mequon and others in Illinois and Minnesota.
In different handwriting, an election worker wrote that the street name listed on the address, Farwell Avenue, was in the nearby Shorewood, and accepted the ballot.
Mequon’s controversial practice came to light in April 2026 as a result of a letter to Fochs from Law Forward, a liberal law firm, warning that the city’s policy may be wrongfully disenfranchising absentee voters.
But it appears that city officials did not use simple techniques that would have shown that the witness address provided on each of the rejected ballots was unique.
All rejected ballots did have unique address
Of the 32 ballots Mequon initially rejected in recent elections, about a third did not meet even the city’s own standard for rejection: They came from uniquely named municipalities, like Fox Point and Chicago.
All the rest were also traceable to unique addresses. Even without a state or ZIP code: The street number and street name on those ballot envelopes pointed to only one location in the United States, even though the municipality name wasn’t unique.
Votebeat sought to better understand the process by which Mequon officials rejected those ballots, which the city has described as extensive. But the city has provided little transparency about what specific steps are actually taken to verify witness addresses.
In response to a records request for election workers’ online searches, Mequon initially said it had no responsive records. After Votebeat explained how to export browser history, the city produced records showing that Mequon officials searched Google on April 6 and 7 — Election Day and the day before it — for whether there were multiple cities in the United States named Baltimore and Verona.
The records do not show that the searches went further. Had city officials entered the complete street names and numbers, they would have found that both addresses were unique to just one of those cities. Ballots from both cities were rejected before the commission ordered Mequon to count them.
Fochs did not answer follow-up questions about whether she took other steps to determine whether the addresses were sufficient.
“I do what I can, and we do go through a lot of hoops,” Fochs said in an earlier April interview, saying the clerk’s office contacts voters with insufficient witness addresses when time allows.
But Liebert, from All Voting Is Local, saw it differently: “It does seem sort of just like a lack of due diligence.”
Mequon election workers appear split on city policy
Alisha Campbell, who was an assistant chief inspector at a Mequon polling place in April, said that every absentee ballot went through the clerk’s office before being delivered to an individual ward. The general instruction from her chief inspector, Campbell said, was to reject the ballots that the clerk’s office suggested rejecting.
She also said she was told by her chief inspector that ZIP codes were paramount, and that if a ballot is missing a ZIP and the municipality name isn’t unique, poll workers could not count it. While Votebeat found instances in which poll workers overrode a decision by the central election offices, Campbell said most were generally just following the instructions of the city clerk’s office rather than making decisions on the fly, she said.
Campbell would not say whether she agreed with the city policy.
“What you think independently isn’t always what you are told to do,” Campbell said. “I will leave that at that.”
Martin, the Mequon chief inspector who defended the city’s policy, took a different view. In her letter supporting the policy, which five other Mequon chief inspectors signed, Martin expressed hope that the election commission would “correct their position” by calling for a state and ZIP code in the witness address field.
Instead, the commission did the opposite. In its new manual, published in June, the commission said using the same witness address standard that Mequon employed would constitute “an abuse of discretion.”
Martin said she was disappointed in the commission’s new language and plans to write to her local legislators asking them to change the law to require ZIP and state. She was noncommittal on how she would handle the address standard moving forward, but said she will largely rely on the clerk’s office’s guidance.
Liebert questioned whether other cities and towns in Wisconsin were implementing policies that don’t follow state law or court decisions. Wisconsin has the most decentralized election system in the nation, with 1,850 municipalities each running elections at the local level.
But he said the commission’s intervention in Mequon this year shows a silver lining. While Mequon had rejected ballots against WEC guidance in several recent elections, the commission went further by ordering the city to count the initially rejected ballots from the April election. All five were included in the final results.
“It’s disappointing what happened in Mequon, but I think also at the end of the day, the system shows that it works,” Liebert said, adding that the commission vote to count those ballots was bipartisan. “That should give voters confidence in the system and that people are looking out for them.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
Voting booths set up at Madison, Wisconsin's Hawthorne Library on Election Day 2022. The Wisconsin Department of Justice, representing the Wisconsin Elections Commission, said in a filing with the 7th Circuit Federal Court of Appeals Thursday, June 18, that the federal government has no right to the state's unredacted voter lists. (Photo by Henry Redman/Wisconsin Examiner)
The Trump administration U.S. Justice Department has no authority at all to demand Wisconsin voter records that it has sought in federal court, the Wisconsin Justice Department said in federal court papers filed Thursday.
In addition, Attorney General Josh Kaul and assistant AG Charlotte Gibson wrote, the federal government has shown no evidence to justify assertions that a flood of ineligible voters could receive absentee ballots to vote in the coming August primary election and November general election.
Representing officials with the Wisconsin Elections Commission, the Wisconsin DOJ filed a five-page response Thursday with the 7th Circuit U.S. Court of Appeals, opposing the U.S. DOJ demand for Wisconsin’s unredacted voter list.
U.S. District Judge James Peterson dismissed the Trump administration’s lawsuit seeking the list May 21. The U.S. DOJ appealed the dismissal more than three weeks later with the 7th Circuit on June 12, and the appeals court directed Wisconsin to file its response by Thursday.
In his dismissal ruling, Peterson declared that the unredacted voter list the DOJ has demanded isn’t a record the federal justice department can demand under the Civil Rights Act of 1960. The list contains voters’ personal information including birthdays, Social Security numbers and driver’s license details.
The Trump administration filing asked for “an expedited appeal” in order “to investigate Wisconsin’s compliance with federal law regarding voter registration under the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA).”
Wisconsin’s reply Thursday said Congress hasn’t granted the U.S. DOJ the power to “regulate Wisconsin’s voter list” under either the NVRA or HAVA. The feds have no regulatory authority under those two laws, the Wisconsin reply states.
Moreover, where Wisconsin is concerned, “US DOJ has even less to say: Wisconsin is exempt from NVRA’s list maintenance provisions because Wisconsin has offered same-day voter registration since 1994,” the Wisconsin response states.
In its appeal, the U.S. DOJ declared that among the hundreds of thousands of absentee ballots that will be sent to voters for the Nov. 3 elections, “many of those ballots” would go “potentially … to ineligible voters, fraudulent registrants, or other individuals who should not have been registered. Wisconsin voters need to know that their election is secure and that non-citizens, deceased individuals, former residents, non-residents, and voters with multiple records are not registered to vote in that election.”
Wisconsin dismissed that claim as unsubstantiated.
“US DOJ has presented no evidence that Wisconsin is rife with ineligible voters. Its motion asserts that ‘potentially’ ineligible people may vote.” Such “an unsupported, potential harm” doesn’t justify an emergency action such as the feds are seeking, the Wisconsin response declared.
The response said that with only a few months before the election, the U.S. Supreme Court has warned against “modifying election procedures this close to elections” to avoid voter confusion and to avoid discouraging voters from going to the polls.
Groups intervening in the cases responded as well on Thursday.
Law Forward, the Wisconsin democracy-focused nonprofit law firm, said in its response that the U.S. DOJ failed to show “good cause” for its demand.
“And despite the Appellant’s fact-free innuendo,” the U.S. DOJ “does not allege — let alone provide any actual proof of — any supposed ‘ineligible voters remaining on [Wisconsin’s] voter rolls,’” stated Law Forward’s response, representing the nonpartisan voting rights group Common Cause.
A response for the Wisconsin Alliance for Retired Americans and Forward Latino argued that the U.S. “DOJ’s lackadaisical pace in this litigation belies any need to expedite” the case. The groups are represented by Elias Law Group in Washington, D.C., an election- and voting rights-focused firm that works with progressive organizations.
The U.S. DOJ has made “baseless insinuations that upcoming elections will not be ‘secure’ if it does not get unprecedented access to personal voter information,” the response stated. “That unsubstantiated allegation is absurd.”
The federal lawsuit against Wisconsin “is one of 31 similar lawsuits commenced by [U.S.] DOJ as part of its unprecedented campaign to amass personally identifying information about every registered voter in the country,” the interveners’ response stated. “All eight federal courts to address DOJ’s claims to date have dismissed them,” with the dismissals now under appeal.
This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
The former Madison deputy clerk who claimed responsibility for the 23 late-arriving ballots in the Wisconsin Supreme Court election has been reassigned within the clerk’s office to non-election tasks.
Jim Verbick — the election office’s former second-in-command who was previously scrutinized and sued for the clerk’s office losing 200 ballots in the 2024 election — admitted to losing track of the absentee ballots that didn’t end up arriving at several polling places until after 8 p.m. on Election Day in April, according to public records obtained by Votebeat.
He told Votebeat that he’s only partially to blame, that understaffing and a lack of communication led to the mistake and that it’s unfair that he got reassigned away from elections. Verbick is now the city clerk’s office’s lead worker for licensing.
“I do admit that I had forgotten about the ballots I secured when I left the post office,” he said, adding that he said the error was exacerbated by unexpected absences and mistakes made by others.
The issue went to court after the Wisconsin Elections Commission ordered Madison not to count the ballots because they arrived after the 8 p.m. deadline in Wisconsin law. A court reversed the commission’s decision, and the ballots were counted in the final canvass.
Verbick’s reassignment was part of a set of personnel changes designed to improve how the clerk’s office manages “the many logistical tasks of administering elections,” Madison Clerk Lydia McComas said in a statement. The city is also hiring two new deputy clerks and a lead employee for absentee voting. But this move doesn’t amount to a net gain of three election positions because one election staff member recently left the office and Verbick was reassigned.
Madison officials said after the election that the clerk’s office — not voters — was responsible for the ballots’ late arrival. Election officials had received and sorted the ballots in time to be delivered: They arrived on the Monday before Election Day and were sorted that same evening, then put on a shelf to be delivered in the afternoon of the following day, records show.
Emails, spreadsheets and Microsoft Teams messages obtained by Votebeat show that Verbick was in charge of absentee ballots and accepted some blame for their late arrival.
Around 4 p.m., Verbick sent a message on Microsoft Teams that he realized he sent out officials to deliver ballots that afternoon without the batch of absentee ballots including the 23 votes that would end up arriving late, former clerk’s office staff member Bonnie Chang said in an email to McComas.
Per that same email, Chang said that about an hour later, she scanned a spreadsheet that showed polling sites were still missing absentee ballots. She then contacted Verbick to find out how many ballots were in the late-discovered bin and whether he needed help delivering them. She wrote that he wouldn’t say how many ballots were found or whether more staff were needed to deliver ballots.
At around 6 p.m., Chang said, the clerk’s office sent additional staff to help deliver the ballots as early as possible. She said most got reassigned to other tasks.
By the time that additional help arrived, Verbick told Votebeat, the ballots had already been sent out for delivery. He said he didn’t think the couriers who were already dispatched to deliver the ballots would have trouble delivering them on-time.
In hindsight, Verbick said, he would have used those additional staff to lighten their load. But he also said he could have planned for the additional staff better had anybody told them that they were en route to help him out.
That night, Verbick sent an email to McComas taking blame for not putting the batch containing the 23 ballots on the planned afternoon drop-offs to polling places.
“Missing the bin of envelopes with the initial afternoon route is my fault,” he emailed McComas at about 10:45 p.m. on Election Day. “I had all of them reviewed this morning and ready to be run with the mail delivery.”
Verbick told Votebeat he forgot about the ballots because election workers in the clerk’s office hadn’t told him about a planned USPS delivery around noon that Tuesday. Believing the delivery had not happened, he went to the post office to investigate.
Before leaving, he said, he moved the batch of ballots that later arrived late into a secure area because there were no other full-time clerk’s office staffers available to watch them while he was gone. It was there that he forgot the ballots.
The error, Verbick told Votebeat, reflected chronic understaffing in the clerk’s office — a problem exacerbated by the increase in absentee voting since the 2020 election.
In an email to McComas, Verbick said he didn’t get additional staff that he thought would help process ballots and that he didn’t intentionally ignore messages from office staff.
Relying on hourly and temporary workers to fill those gaps is not enough, he told Votebeat.
In an email to Madison Mayor Satya Rhodes-Conway sent the night of the incident, McComas said that she would “firmly address the lack of communication” and would have more staff in August and November, including the new deputy to oversee absentee ballots.
Wisconsin Elections Commission chair Ann Jacobs called the latest error “absurd” at a commission meeting in late April. The commission voted to investigate Madison over the error, meaning the agency’s first two authorized investigations in its history both center on Madison: one for the 2024 ballot snafu and one for the latest one.
Ultimately, the votes affected by this year’s error were counted. Officials said these 23 ballots were correctly, legally cast, counted and checked into the pollbooks just like any other valid absentee ballots — the only problem was that they were delivered and counted after polls formally closed. The Wisconsin Elections Commission voted that the city and county erred in counting the ballots since state law held that ballots must be delivered to polling places “no later than 8 p.m. on election day.”
A Dane County judge, however, reversed that order, ruling that the ballots should be counted because they were properly cast, and precedent held that voters shouldn’t be disenfranchised because of clerk errors.
Verbick scrutinized for 2024 election snafu
This was the second time in about two years that Verbick has faced scrutiny over allegations that he failed to act decisively when absentee ballots were at risk of being left uncounted.
The Wisconsin Elections Commission previously scrutinized Verbick for his inaction after the 2024 presidential election, when nearly 200 voters were disenfranchised.
Verbick, on the other hand, “testified that he is generally in charge when Clerk Witzel-Behl is not in the office, but that he is ‘not always the point person on everything in the office’” and wasn’t sure who the point person would have been, according to the commission investigation.
The commission stated that Verbick’s involvement was “minimal” by his own account and that nobody took responsibility for those ballots: “It was always someone else’s job.”
After learning about the ballots, the commission stated, Verbick “did not instruct anyone to determine how to get the ballots counted.”
Verbick was sued in his personal capacity for his role in the error and declined to comment about the 2024 snafu. The case is ongoing, and the plaintiffs are demanding financial damages for being disenfranchised.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
The League of Women Voters of Wisconsin is challenging the state’s law governing voters’ ability to fix missing information on their absentee ballots, alleging that the law violates the Wisconsin Constitution by giving clerks a vast amount of discretion over whether to reject ballots.
The group is asking a Dane County judge to require all clerks to provide voters notice when an absentee ballot certificate is lacking necessary information — such as a signature or the address of a voter or the person who witnessed the ballot’s casting — and give them an opportunity to add that information before rejecting the ballot, a process known as “curing” the ballot.
Right now, the law tells clerks that they “may” return incomplete absentee ballots to voters. That results in some municipal clerks sending voters prompt notice about faulty ballots, while other clerks put those ballots in the rejected pile without informing the voter at all, the lawsuit states. Municipalities also treat absentee ballots differently depending on when they receive them, the lawsuit alleges, and those that arrive closer to Election Day often have a lesser chance of getting cured.
The lawsuit, which names the Wisconsin Elections Commission as the defendant, argues that, without a blanket curing requirement, “mail-in absentee ballots are jeopardized by the lack of mandatory notice and curing opportunities across the state.”
“Right now, we have ballots that come in weeks ahead of the election, and they’re being set aside for rejection with no attempt by the clerk to contact the voter,” Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, told Votebeat.
“If even one clerk is not curing ballots, that’s one clerk too many in a democratic system where voting is an absolute right,” Cronmiller said, adding that the number of clerks who fail to follow the practice could reach into the hundreds.
While the lack of uniformity could create legal issues, clerks say a blanket curing requirement could be difficult to implement if courts maintain the state’s 8 p.m. Election Day deadline for receiving ballots as the deadline to cure those ballots, too.
In 2024, Milwaukee received about 150 mail ballots just minutes before polls closed. At that late hour, it would have been virtually impossible for officials to notify those voters about any deficiencies with their ballots — much less give them a chance to cure them before the polls closed.
Size and resource disparities between Wisconsin’s many municipalities would also present challenges to a uniform curing system.
A part-time clerk working from home in a small rural town operates with dramatically fewer resources than election officials in Milwaukee, where thousands of absentee ballots can arrive on Election Day. Resources in both settings would be stretched by a uniform curing requirement, depending on how courts ultimately require it to be implemented. If courts grant the league some version of the relief it is seeking, questions about how the process would work in practice could also be settled in court.
Marathon County Clerk Kim Trueblood, a Republican, said another complicating factor for clerks is that Wisconsin’s voter registration form doesn’t require registrants to provide their email addresses and phone numbers.
Trueblood said she already tells the 60 municipal clerks in the county to try to cure ballots, but that process is harder when voters don’t provide contact information or when ballots are returned on Election Day. Requiring voters to provide their contact information would make a curing requirement a lot easier to comply with, she said.
If such a requirement were imposed ahead of this year’s midterms, Trueblood said, bigger villages and cities would likely have the staff and resources to contact every voter, but for town clerks who work a different full-time job and spend just a few hours working as a clerk on weekends and evenings, “it could be a little more challenging.”
Curing lawsuits play out in Wisconsin and across the nation
Ballot curing practices vary widely across the country. Some states don’t allow curing at all. Others allow voters to cure absentee ballots well after Election Day if they’re missing a date, signature, address or something else. As arguments over voting practices increasingly head to court, lawsuits over ballot curing have played out across the nation.
In Pennsylvania, for example, ballot curing is neither required nor prohibited under state law. Similar to Wisconsin, different counties have different curing practices — some allow voters to cure their ballots, while others don’t.
In North Carolina, a robust curing process was created as the result of a lawsuit that mirrors the one in Wisconsin. It was brought by the League of Women Voters of North Carolina, among other groups, and relied on a similar allegation: that the lack of a statewide-mandated procedure to cure absentee ballots amounted to a denial of voters’ right to due process under the U.S. Constitution.
The lawsuit resulted in a settlement that created a curing requirement in every county. Now, voters have up to three days after Election Day to cure issues on their ballot.
The ballot rejection rate has dropped dramatically as a result of the case, said Joselle Torres, a spokesperson for Democracy North Carolina, a voting rights group that joined the state’s league chapter in the case. But she added that state and local funding is crucial to educate poll workers, voters and other election officials about the changes — “and that’s no small fee.”
Marc Meredith, a political scientist at the University of Pennsylvania who researched ballot curing in North Carolina in the wake of the settlement, said he had initially expected under 50% of voters to fix their ballot or vote a new one. But ultimately, about 82% of the 26,000 voters eligible to cure their ballots did so. Many opted to vote a new ballot in person rather than fix their old one, he said.
Curing has potential benefits but also challenges in Wisconsin
The drastic increase in the number of voters curing their ballots in North Carolina may not be replicated in Wisconsin, where many municipalities already have curing notifications and procedures in place.
Another difference is that North Carolina has 100 counties running elections, whereas Wisconsin has about 1,850 municipalities doing so. That could complicate implementation, Meredith said, because the same procedures would need to work in places ranging from Milwaukee to towns with 100 residents.
“In the places that aren’t currently curing,” he added, “I would expect lots of voters would take opportunities to make corrections.”
That issue of municipalities not curing ballots is especially pronounced in rural Wisconsin, Cronmiller said. There, part-time clerks don’t always have the bandwidth to return ballots to voters ahead of Election Day, she said. If courts call for a more stringent curing requirement, Cronmiller added, “it would force all municipalities to give resources sufficient to their clerks so they could do this work.”
A requirement for clerks to tell voters can create practical issues in bigger cities, too, especially those that can receive thousands of ballots on Election Day.
To get every last ballot cured, Wisconsin would likely have to implement a cure deadline after Election Day, Meredith said.
“You don’t want to let the perfect be the enemy of the good, is my opinion on these things,” Meredith said. “There are going to be some things that will slip through the cracks, but … don’t let the fact that a few might slip through the cracks prevent you from putting that system in that way that would help the rest.”
At the highest level, the League of Women Voters is seeking a declaration that Wisconsin’s discretionary ballot-curing law violates the state constitution, said Nina Beck, a counsel at the Fair Elections Center, which represents the league in Wisconsin and also represented the North Carolina league chapter in its lawsuit to create ballot-curing there.
What’s required under the due process clause of the Wisconsin Constitution, Beck said, is adequate notice and the ability to cure a defect if clerks are otherwise denying people their fundamental right to vote. Instead, right now, clerks are dealing with curing in many ways and may even be treating voters within the same municipality differently, she said. “That’s fundamentally unfair.”
If the court sides with the league, the group will ask the court to set a uniform procedure for all clerks to follow, Beck said, adding that the current system is “kind of a free-for-all.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
The Wisconsin Elections Commission is facing criticism from local officials and a lawsuit filed Wednesday after it ordered Madison not to count 23 absentee ballots that arrived late to the polls in the state’s recent Supreme Court race, a delay city officials say was caused by election administrator error. City officials also say the commission initially offered little guidance but later faulted them for making the wrong decision.
As Madison officials discussed what to do with the late-arriving ballots the day after Election Day, Madison City Attorney Mike Haas reached out to Wisconsin Elections Commission Administrator Meagan Wolfe for advice. Wolfe sent the relevant statute the following day and told Madison officials to “decide, within their statutory discretion” whether the 23 ballots should be counted. Madison decided to count them.
Three weeks later, WEC’s commissioners decided Madison made the wrong choice, ordering them to remove the 23 affected ballots from the count. The commissioners didn’t mince words. Chair Ann Jacobs, a Democrat, said Madison committed an “absurd error,” and GOP commissioner Don Millis called it an “epic failure.”
The dispute has exposed a breakdown between state and local election officials with consequences beyond the 23 ballots at issue. Madison officials say they followed guidance from the commission when they chose to count the votes, only to be publicly rebuked and overruled weeks later. Now, a lawsuit argues that not counting the votes would disenfranchise voters whose ballots were delayed by election officials — and local clerks warn the episode could make them less likely to act decisively when problems arise in future elections.
Dane County Clerk Scott McDonell, a Democrat, said the turnaround from the commission was puzzling and could demoralize clerks.
“Why would anybody ask WEC for an opinion about how to handle a situation?” he said. “Here they are attacking clerks for having to make a decision because they couldn’t get advice.”
Wolfe said that the agency was limited in how much advice it can provide for local election officials, but said the commission remains “dedicated to supporting their efforts within the scope of our administrative role.”
Lawsuit alleges removing the 23 votes would be unconstitutional
The liberal law firm Law Forward’s lawsuit in Dane County Circuit Court alleges that the commission illegally ordered Madison not to count 23 absentee ballots that arrived at the polls after 8 p.m.
The group says the two voters it’s representing — Margaret and Robert Honig — along with the other voters, would be unconstitutionally disenfranchised “through no fault of their own” and asks the court to strike down the WEC order not to count the ballots.
The lawsuit references several past rulings in the state as establishing a precedent that voters can’t be deprived of their constitutional voting rights due to election officials’ errors.
This is the second recent Law Forward lawsuit involving Madison’s failure to count ballots due to administrative error. The legal group sued the city for disenfranchising 193 voters in the 2024 presidential election for a separate series of failures.
It remains unclear why there was such a delay between the ballots’ arrival at the elections office and their delivery to the precincts for counting. State law requires they be “delivered to the polling place no later than 8 p.m.” in order to be tallied.
Dane County authorized a separate lawsuit on Tuesday, and then filed it Wednesday early evening, as county election officials said they want clarity in the future on whether late-arriving ballots can count if they were only delayed because of election official error.
That same day, Madison complied with WEC’s demand to remove the ballots from the count, but instead of removing the specific ballots at issue, the city selected 20 ballots at random and removed those. Called a “drawdown,” the controversial practice was necessary because poll workers apparently failed to follow Madison Clerk Lydia McComas’ instructions to clearly mark the late-arriving ballots so they could be identified if necessary. Only three were appropriately marked.
Officials criticize the election commission for lack of direction
Local election officials say the Wisconsin Elections Commission has become less willing to provide clear guidance in difficult situations — a practice that commissioners and staff say reflects the limits of the agency’s role.
Haas, the Madison city attorney, has firsthand experience on the commission: He preceded Wolfe as the commission’s administrator. Her initial response to the city’s request for advice on how to handle the late-arriving ballots — which provided little direction — was in line with the commission’s tendency in recent years to “intentionally avoid giving definitive responses to specific questions,” Haas wrote in a May 6 letter to the commission obtained by Votebeat.
“This has caused local clerks and their legal counsel to feel frustrated that the WEC is abdicating its responsibility under the Statutes to administer the election laws and provide guidance and advice to local election officials,” he continued.
Haas also questioned why Wolfe’s response and the commissioners’ eventual order were so out of step with one another. The city relied on Wolfe’s initial guidance, Haas said, only to have the commission “contradict its Administrator without even an acknowledgment of her guidance.”
That dynamic, he added, discourages local election officials from being transparent with the agency and damages the commission’s credibility.
He also said that the commissioners were contradicting themselves. In its investigation into the 193 ballots that went missing in Madison until several days after the November 2024 election, the commission concluded that the missing ballots never arrived at the polling places but still could have been counted.
Haas said it was “difficult to sustain” the commission’s conclusions that “a municipality should count ballots that are discovered in the Clerk’s Office days after the election but not ballots that were delivered minutes after the 8:00 p.m. deadline.”
To McDonell, the Democratic Dane County clerk, the commission’s “real reticence to give advice” is undermining election officials’ trust in the state election agency.
McDonell said that in the past he used to get specific advice from the commission, but now “we get a game of ‘gotcha’ instead.”
In a statement, Wolfe told Votebeat that the commission provides guidance to clerks when the issues are clear. But when state law is ambiguous or unprecedented situations arise, she said, “it’s been our long-established policy to direct clerks to their respective legal counsel for interpretation.”
The Wisconsin Elections Commission has six commissioners, three Democrats and three Republicans. Decisions must be made by a majority of the commission, needing at minimum a 4-2 vote. Although Wolfe — whose role as administrator is nonpartisan — is often referred to as Wisconsin’s top election official, she does not have a vote.
Wolfe added that the commission can exercise its authority to issue determinations on election matters and that it’s her role to adhere to those directives, “even when I don’t always agree with those decisions.”
Jacobs, the commission chair, said the commission provides clerks plenty of help, from designing election manuals and creating administrative rules to adjudicating administrative complaints.
“We are doing everything we can to provide guidance to clerks on how to do things right,” she said. “We are not their 1-800-GET-HELP number for individual clerks’ every single legal need.”
One of the other reasons the commission can’t provide specific legal advice, Jacobs said, is that the commission acts as a judicial body that could ultimately evaluate whether election officials comply with the law.
“If you’ve got a court case, a personal injury lawsuit on a car accident, you don’t get to call the judge up and say, ‘Hey, am I doing this right?’” she said. “It cannot be our job to do their jobs for them.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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.
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.
This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
Mequon City Clerk Caroline Fochs rejected five absentee ballots in April because they did not include a ZIP code or state in the witness address — information that is not specifically requested in the address field on the ballot or specified as a necessary component by the Wisconsin Elections Commission. Her approach, which differs from how other clerks interpret the rules, has drawn intense internal scrutiny and could ultimately be tested in court.
Two weeks ago, Ozaukee County canvassing officials declined to reverse course, leaving the ballots uncounted in the recent Wisconsin Supreme Court election. Republican Party attorneys told county officials they lacked the authority to overturn a local official’s judgment call, while the liberal election law firm Law Forward said rejecting the ballots may have disenfranchised voters who had followed all requirements.
Even the county clerk, a Republican, said she believed the ballots should have been counted.
The ballots listed a street name, number and municipality in the witness address field, but no ZIP code or state. The Wisconsin Elections Commission instructs clerks that a street name, number and municipality are sufficient. Under state law, absentee ballots must be signed by a witness who is a U.S. citizen and not a candidate on the ballot.
Fochs rejected the ballots anyway, using her own system for deciding when a witness address is clear enough.
Fochs has served as clerk since 2016 in the traditionally GOP city, which has become more liberal in the Donald Trump era — emblematic of the leftward political changes in other nearby Milwaukee suburbs in Waukesha, Washington and Ozaukee counties.
The dispute in Mequon didn’t have the potential to swing any race. But it highlights two unresolved questions that election lawyers say are all but certain to land back in court sooner than later: how much latitude clerks have to impose their own standards on absentee ballots, and whether county canvassing boards can intervene when they think a municipal clerk got it wrong.
Situations like the one playing out in Mequon often arise when there’s a flexible rule rather than a bright-line rule, said Rick Hasen, an election law professor at UCLA. Flexibility, he said, can result in disparate treatment for voters. “Maybe the Legislature needs to change the law,” he said.
“It can tend to be more enfranchising to have a rule that gives discretion, but there’s a flip side to that,” he said. “These are things that courts and legislatures have to consider when they write their rules or interpret the rules.”
Statewide races in Wisconsin can sometimes be decided by several thousand votes or less, and the outcome of this conflict could have implications for the midterms in the event of a close race.
Ballots at issue had elements requested on absentee form
The battle over what constitutes a proper witness address has been debated in court for years. In 2024, a circuit court rejected Republicans’ push to require witnesses to list their ZIP code and state. The current standard allows a witness address to be considered valid if the clerk can reasonably assess where the witness lives, but the underlying lawsuit is ongoing.
Fochs said that’s not a workable standard.
Clerks across the state are “obviously doing things differently,” she said. “We don’t agree that it’s been decided. You can’t, on one hand, tell me it’s up to me to discern and then tell me exactly what I’m going to discern.”
Rather than following WEC instructions in the Election Day manual, Fochs for the past several elections has adopted her own system. She compiled a list of municipalities witnesses have used in their address fields in recent years, identifying which names are unique nationwide and which are shared.
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, Fochs said she does not count the ballot. If the municipality name is unique, she will count it even without a ZIP code or state.
She said she typically sends absentee ballots with insufficient witness addresses back to the voter for correction. But this time, she said, the five ballots in question arrived too late to be sent back, corrected and returned in time for tabulation.
Two of the rejected ballots were from Fox Point. Despite a handwritten note on the rejected ballots saying there are multiple municipalities named Fox Point in the United States, there appears to be just one: the municipality just a couple miles away from Mequon.
Told there appears to be only one municipality named Fox Point in the United States, Fochs said her Google search showed multiple results. She said that even if only one exists, she does not believe the ballots were wrongfully rejected because “the search” indicated otherwise, though she declined to explain what that search includes. “If the search came up with multiple Fox Points, then we reject it,” she said.
The three other rejected ballots came from Baltimore, Houston and Verona. Although there are multiple municipalities with each of those names, the street names and numbers are unique only to one such named municipality in the United States.
Though a court established the current standard in 2024, Fochs said she believes the issue needs to be taken up again. “There has to be an answer to this,” she said.
Jeff Mandell, founder and general counsel of Law Forward, said that Fochs should have at least checked to see whether the street addresses used in the witness address form were unique to one of the multiple municipalities with the same name before deciding what to do about the ballots. He said she was wrongfully disenfranchising voters.
But Fochs said she shouldn’t have to jump through multiple hoops to figure out where a witness lives.
“If you give me incomplete information, that’s not my fault, and it’s not up to me to correct it,” she said.
In Rock County, on the other hand, County Clerk Lisa Tollefson, a Democrat, gives municipal clerks a help sheet to determine whether a signature is sufficient. Similar to the election commission’s manual, the sheet says a street number, name and municipality is sufficient — without stipulating whether a municipality is uniquely named.
County decides not to count ballots amid GOP urging
When the fight moved up to the county, it split in two. Ozaukee County officials had to decide not only whether the five ballots should have counted — but whether they had any authority to do anything about it.
Ozaukee County Clerk Kellie Kretlow, a Republican, said the ballots should have been counted by the city. “I, in no way, want any voter to ever feel like we’re disenfranchising them,” she told Votebeat.
Kretlow said that the Wisconsin Elections Commission told her that, if the county canvassing board determines that the disregarded ballots make the election return defective, she may send the “arguably defective” election results back to Mequon for the city to correct, according to emails obtained by Votebeat that outline her communications to attorneys for the Wisconsin Republican Party.
That position seems to align with the more liberal stance on the issue. For example, Law Forward said the county does have the power to count the votes or instruct Mequon officials to do so, under a statute that allows counties to return results to a municipality if its election returns are “so informal or defective that the board cannot intelligently canvass them.”
Republican attorneys disagreed. Nicholas Boerke, counsel for the state GOP, told Kretlow the county had no authority to send the ballots back or count them itself without a recount and warned that doing so would set a “dangerous precedent.” The GOP lawyers did not weigh in on whether Fochs was right to reject the ballots in the first place. Boerke declined to comment for this story.
In the end, Kretlow said, she decided not to count the ballots — not necessarily because she agreed with the Republican lawyers on the legal question, but because the five votes wouldn’t have changed the outcome of any race.
Issues of discretion unsolved going into November midterms
Barring a lawsuit and a quick judgment, the question over how much discretion municipal clerks and county canvassing boards have may go unanswered ahead of the midterms. Some election officials said that discretion can pose a danger if it’s abused, but others said that latitude can come in handy.
“I believe that things can be vague, but they’re vague for a reason,” Kretlow said, saying that while she wished the ballots were counted in this latest instance, more open-ended rules give clerks wiggle room for scenarios that nobody foresees.
Recent court rulings in election lawsuits have started to define the scope of clerks’ discretion over standards for accepting absentee ballots, potentially shaping how future cases will be decided.
One appeals court judgment in July 2024 gave an open-ended definition of what constitutes a proper witness address, saying that the standard “involves the perspective of each local, municipal clerk performing their duties in a reasonable manner” and acknowledging that clerks have discretion in some of the many tasks they perform in administering elections.
A July 2024 Wisconsin Supreme Court judgment, which led to the legalization of drop boxes, said that giving clerks discretion on many local matters is “consistent with the statutory scheme as a whole, under which Wisconsin’s 1,850 municipal clerks serve the ‘primary role’ in running elections via our ‘decentralized’ system.”
TR Edwards, a staff counsel at Law Forward who attended the Ozaukee County canvass board meeting, said those court cases were right in giving clerks latitude, but they should have clarified that the discretion should be used “to affect the will of the voter, not to craft their own policy for disenfranchising people — stuff like this.”
Mandell, the founder of Law Forward, said the group was still evaluating its options and did not commit to a lawsuit.
But Wisconsin courts have been hearing a growing number of election law disputes. Whether it’s over the most recent dispute in Mequon or a similar incident in another election, disputes like these are all but certain to end up in court.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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