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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.

When Maribeth Witzel-Behl, the clerk at the time, was on vacation after the election, Verbick was in charge of the office, Witzel-Behl told the commission in a deposition.

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.

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.

Former Madison deputy clerk removed from election tasks after misplacing 23 Supreme Court race ballots 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.

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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.”

This case, which comes a few months ahead of Wisconsin’s 2026 primary election, is the latest in a long line of lawsuits over what to do when information is missing on absentee ballot certificates. In recent years, courts have allowed clerks to use their discretion to determine what constitutes a proper witness address but taken away their ability to fix missing information on the address form.

“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.

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.

Lawsuit seeks to require Wisconsin clerks to let voters fix problems with their absentee ballots 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.

A federal judge on Thursday dismissed the request from the U.S. Department of Justice for Wisconsin’s unredacted voter rolls. The ruling marks a defeat in the Trump administration’s renewed effort to scrutinize the election administration of swing states that President Donald Trump lost in 2020. 

The federal government first requested Wisconsin’s unredacted voter registration list last summer,  making a similar request to most other states. The Wisconsin Elections Commission denied the DOJ request, citing state privacy laws, and pointed the department to the publicly available redacted list. 

The DOJ responded by suing WEC for the unredacted list. The federal government has filed similar lawsuits in 30 other states. 

Republicans and their allies have for years alleged that the data management practices of state election administrators are vulnerable to fraud. Voting rights groups and Democrats have countered that the Trump administration is seeking to fan the flames of election conspiracy theories and meddle in state elections by collecting massive amounts of voter data. 

U.S. Judge James Peterson found that the personal information of voters, including birthdays, Social Security numbers and driver’s license details, isn’t a record the DOJ can demand under the Civil Rights Act. 

“Defendants and their amici contend that the government’s position fails for multiple reasons, specifically: (1) a voter registration list is not a record subject to production under Title III; (2) the government has not provided an adequate statement of basis and purpose, as required by the statute; (3) the government has not explained why it needs an unredacted copy of the voter list, as opposed to the publicly available redacted version; and (4) the government’s request is barred by state and federal privacy laws,” Peterson wrote. “The court agrees that a voter registration list is not a record subject to production under Title III, so it will dismiss the complaint on that ground without considering defendants’ other arguments.”

The DOJ has lost parallel efforts to obtain this type of data in eight other federal district courts. 

After Peterson’s ruling, attorneys from Law Forward and the ACLU celebrated the decision, stating that it protects Wisconsin’s voters from potential intimidation. 

“Requiring Wisconsin to disclose this sensitive personal information despite laws prohibiting just that would have threatened the privacy of Wisconsin voters and the removal of eligible voters from voter rolls for no reason,” said Doug Poland, Law Forward’s director of litigation. “Federal law leaves it to states to administer their own elections, and Wisconsin already has reliable processes for maintaining its voter rolls.”

Poland said the purported premise behind the federal demand — to uncover evidence of noncitizens voting in elections — was a pretext.

“Given the rarity of noncitizen voting, this lawsuit, and similar efforts in other states, are thinly-masked efforts to manipulate and subvert future elections,” he said. “The court recognized this as an illegal attempt to gather and weaponize data on Americans, dressed up in the language of voting rights enforcement. We will continue to stand up to the Trump administration’s illegal schemes to interfere with elections administration and erode the rights of voters in Wisconsin.”

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The federal government’s probe into the 2020 election has reached Wisconsin, with several current and former election officials, including multiple people in Milwaukee, confirming they have been interviewed or approached by the FBI.

The exact nature of the investigation remains unclear, though it appears to be at least somewhat centered around the 2020 election. The agency’s election investigations elsewhere in the country have featured subpoenas for ballots and other election records, but legal experts still say it won’t be easy for the federal government to convince a court to give it access to ballots.

Milwaukee County officials are nonetheless preparing for that possibility, in part because they still retain ballots from the 2020 election, though they declined to discuss those preparations or comment on the record. Those ballots contain identifying information that could, in some cases, allow otherwise unidentifiable absentee ballots to be matched to the voters who cast them. Milwaukee is one of the few jurisdictions in Wisconsin that still has ballots from that election, and the city has long been a target of voter fraud accusations and related attacks from the political right.

Elsewhere in Wisconsin — in communities whose elections have faced less scrutiny and in the vast majority of municipalities where 2020 ballots were destroyed according to the standard retention schedules in state law — election officials are less alarmed and are instead focused on preparing for the midterm elections.

Still, news of the FBI interest has created confusion and some fear on the part of voters and election officials.

What happened?

So far, the FBI has contacted multiple current and former election officials in Wisconsin.

The FBI interviewed Wisconsin Elections Commission deputy administrator Robert Kehoe within the last few weeks. The news of the interview was first reported by the Milwaukee Journal Sentinel. The interview focused on the 2020 election, with agents asking Kehoe to explain how Wisconsin elections operate.

The agency has also attempted to contact Milwaukee County Election Director Michelle Hawley. An agent left a business card at Hawley’s home when she was not there. Milwaukee County Clerk George Christensen criticized the agency for approaching Hawley at her home rather than through the county.

“While we cooperate with all legitimate law enforcement actions, we will defend against any attack on our democracy and will defend the rights of voters of Milwaukee County,” Christensen said in a statement.

Agents also left a card for, called and texted a former Milwaukee election official, who confirmed the contact to Votebeat but requested anonymity because of personal safety concerns. That official declined to say whether they responded to the FBI.

Milwaukee Mayor Cavalier Johnson confirmed the FBI has reached out to city employees about the probe.

“The president for whatever reason cannot seem to let it go that he lost an election,” Johnson told a WISN 12 reporter.

Wisconsin Elections Commission spokeswoman Emilee Miklas declined to comment for this story. Other officials declined to speak on the record, and an FBI spokesperson didn’t answer Votebeat questions about the probe.

David Becker, the executive director of the nonpartisan nonprofit Center for Election Innovation and Research and a former Justice Department voting section attorney, said the federal government’s actions appeared more to be aimed at intimidating election officials than producing actionable criminal cases.

He pointed to FBI Director Kash Patel’s public statements in April suggesting arrests related to the 2020 election were coming, as well as federal officials discussing potential cases on social media before they’re brought before courts.

“If you think you’re going to bring charges and prosecute individuals, you don’t do anything that the federal government has done over the last few months,” he said.

Becker also noted that any potential federal crimes connected to the 2020 election are “well beyond the statute of limitations for any potential federal jurisdiction or crimes,” adding, “This is a problem for any investigation relating to 2020.”

Even so, Becker said election officials’ worries were justified. He said the Election Official Legal Defense Network, which he leads, has received more requests for legal assistance from election officials than ever before “even though all of these efforts indicate that the federal government knows it’s got nothing.”

How do the events in Wisconsin relate to probes elsewhere?

It’s unclear how the FBI interviews in Wisconsin relate to the agency’s scrutiny of the 2020 election in other states.

In January the FBI raided a Fulton County, Georgia, election office seeking records tied to the 2020 election. About a month later, the agency subpoenaed records related to the audit of the 2020 election in Maricopa County, Arizona, which includes Phoenix.

Separately, the U.S. Justice Department has sought access to 2024 ballots in Wayne County, Michigan, home to Detroit.

Those jurisdictions share several characteristics with Milwaukee County.  All are located in highly competitive swing states won by former President Joe Biden in 2020, and all became central targets of President Donald Trump, who repeatedly challenged the election results despite court rulings, audits and reviews repeatedly reaffirming his loss.

Fulton, Wayne, Maricopa, and Milwaukee County are the largest and most heavily scrutinized election jurisdictions in their respective states. Each has been the subject of persistent conspiracy theories about the 2020 election, many of which remain prevalent on social media, even after extensive investigations found no evidence of widespread fraud.

“What’s really disconcerting,” said former longtime Wisconsin election chief Kevin Kennedy, “is the fact that there is a clear pattern here to try and continue to stir up issues that were resolved in every single opportunity there was to review them, whether it was a court case, an independent audit or the actual certification and review process that exists.”

What comes next?

The short answer is that nobody really knows.

Officials have been considering the possibility that the federal government may seize the city’s 2020 ballots, which contain personally identifiable information.

Kennedy said recent actions by the Trump administration offer “no reason to think that information that should be protected is going to be protected.”

Kennedy said Wisconsin’s decentralized election system was intentionally designed to distribute authority among local jurisdictions — both to keep election administration accountable at the community level and to limit the amount of sensitive voter information concentrated in any one place.

“You put that at the national level,” he said, “and it only takes one bad actor — and we’ve got evidence there’s more than one of those already in the federal government — to totally disrupt the process when you consolidate that kind of information that’s protected through the various state and local laws and practices.”

Becker said it will be an uphill battle for the federal government to successfully obtain Milwaukee’s ballots. But he said the mere possibility that federal officials could theoretically identify how individual people voted is deeply troubling.

“That is not the way a democratic society works,” he said. “Now, I don’t think they’re likely going to be able to do that. I think that’s going to be incredibly difficult. It’s not impossible, but the fact that they seem to engender this fear is troubling enough.”

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’s free national newsletter here.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License. To republish, go to the original and consult the Wisconsin Watch republishing guidelines.

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The Wisconsin Elections Commission should not have ordered the city of Madison to remove 23 late-arriving absentee ballots from its April 7 election count, a Dane County judge ruled.

The ruling, issued last week, was forced by a lawsuit from two of the voters whose ballots were affected. The lawsuit was brought by the voting rights-focused firm Law Forward. 

During the April 7 election, the voters returned their ballots on time, but due to what city officials called an election administrator’s error, they were not delivered to the proper polling location until after polls closed at 8 p.m. State law requires that ballots be “delivered to the polling place no later than 8 p.m.” 

At a May 6 meeting WEC decided to follow the exact letter of the law and found that the city must exclude the ballots. But the lawsuit argued that voters shouldn’t be punished because of an error outside of their control. 

“Voters who comply with every element that is required for them to vote a special absentee vote, and then not being allowed to have the votes count, is contrary to what good law in Wisconsin has been,” Dane County Judge Everett Mitchell said in court.

WEC Chair Ann Jacobs, a Democrat, voted not to count the ballots, but expressed her hope during the commission discussions that a court would overturn the ruling. 

“As I have indicated previously, as an administrative agency we are bound by the language of the state statutes which precluded counting those ballots,” Jacobs said in a statement after the ruling. “That said, it has been my firm belief that voters should not be penalized by the actions of a clerk as these 23 voters were. The right to vote should not be predicated on a clerk failing to deliver properly and timely submitted ballots.”

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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.

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 faces lawsuit, criticism over order not to count late-arriving Madison ballots 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.

The voting rights-focused firm Law Forward filed a lawsuit against the Wisconsin Elections Commission Wednesday over the commission’s decision to throw out the spring election votes of 23 Madison voters whose absentee ballots were properly filled out and filed in time, yet were delivered by the city clerk’s office to poll sites after 8 p.m. on Election Day. 

The six-member commission voted last week to order the Dane County Board of Canvass not to count the votes in its certification of the election results because the ballots were delivered minutes after the polls closed April 7. State law allows absentee ballots to be returned until polls close. Ballots can be returned through the mail, to absentee ballot drop boxes located around Madison, to the city clerk’s office or directly to the voter’s polling location. 

The lawsuit, filed in Dane County Circuit Court, argues WEC’s application of the law is unconstitutional because the voters followed all the rules and their ballots were late through “no fault of their own.” 

Madison’s election administration has generated negative headlines several times in the last few years after the city clerk’s office misplaced and failed to count nearly 200 absentee ballots during the 2024 presidential election. The clerk in charge during that election no longer works for the city and the commission has instituted a number of requirements on city election officials to prevent similar errors from happening again. 

Law Forward President Jeff Mandell said in a statement that in this case, WEC is overreaching. He pointed to a long history of Wisconsin court precedent that states voters can’t be disenfranchised over administrative failures of election officials. 

“These voters did everything Wisconsin law asked of them, and the city and county properly counted their ballots,” Mandell said. “Their votes were cast, received, and counted on Election Day. WEC is now trying to erase them from the record because of a clerical error these voters had absolutely no control over. Failing to count these absentee votes will only erode trust in our elections and jeopardize access to voting in future elections. It’s critical that the court take urgent action to ensure these votes are counted.”

No local or state election results will be changed by the 23 votes. The lawsuit must move quickly because state law requires that the results of the state’s April 7 election must be certified by May 15.

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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.

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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.

The Wisconsin Elections Commission redesigned the absentee ballot certificates in August 2023, during litigation about what constitutes a valid witness address, removing any reference to ZIP code and state in the witness address field. Now, the certificate only explicitly asks for street number, name and municipality.

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.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

Wisconsin clerk rejects five absentee ballots over address info, raising legal questions 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.

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Months before becoming one of the nearly 200 Madison voters in 2024 whose absentee ballots were never counted, Nathan Haimowitz did what he thought he was supposed to do.

As a journalist living in Spain and out of the habit of voting, the 26-year-old former poll worker said he wanted the 2024 presidential election to “be the thing that would spur me to vote more consistently.” To make sure everything was in order, he emailed Madison officials to confirm they had received his absentee ballot application. They told him they had, so he filled out his ballot, sent it in and assumed his vote would be counted.

It wasn’t. 

The mistake that disenfranchised Haimowitz and nearly 200 other voters set off a chain of consequences: The longtime city clerk resigned, state and local officials launched investigations, a lawsuit was filed, and the city began overhauling its voting procedures.

Haimowitz hasn’t cast a ballot since.

“It was definitely a deterrence,” he said. “I didn’t know why my vote hadn’t been counted.”

Early signs suggest the error is already reshaping how many of the disenfranchised voters engage with elections — pushing some away from absentee voting and, in some cases, out of the electorate altogether. Interviews with affected voters also reveal a broader disconnect: Many say they are dissatisfied both with how the city handled the mistake and with the high-profile lawsuit filed in its wake to seek damages for the disenfranchised voters. The city, they say, has not been appropriately responsive, and the lawsuit does not reflect their values. 

Until now, the public conversation has largely reflected the perspectives of the eight voters who joined the lawsuit as named plaintiffs. But others Votebeat spoke with described a different perspective — one that questions whether financial compensation is the right remedy at all.

Mark Ediger, a recently retired chemistry professor at UW-Madison, for example, said he found the lawsuit “pretty bewildering,” adding that as a Madison taxpayer, it would be people like him footing the bill. 

The 193 voters range from dozens of students who are only in Madison for a few years to some of their professors and other longtime city residents. Their responses to the error are just as varied. 

Some, like Haimowitz, stopped voting entirely. Others, like Ediger, say the incident was a one-off mistake that hasn’t impacted their voting behavior. Notably, Ediger is the only voter among the disenfranchised group who has voted absentee in both of the two elections following the error, according to election data obtained by Votebeat.

“The incident has not diminished my trust in elections,” Ediger told Votebeat, adding that he’s satisfied the city has appropriately addressed its cause. “I don’t see how this should change my voting behavior moving forward.”

But other voters said their experience will change how they vote in future elections. “I’m definitely going to prioritize in-person voting,” Joanne Fairbotham, one of the disenfranchised voters, told Votebeat.

“There’s growing evidence that when someone tries to vote and they are prevented from doing so for one reason or another, it makes them less likely to vote in the future, and it can change their behavior,” said Kevin Morris, a senior research fellow and voting policy scholar with the Brennan Center’s Democracy Program. “You can lose a lot of trust very easily, and it can be very difficult to build that trust.”

All of the disenfranchised voters cast absentee ballots in the 2024 presidential election. But, among the 22 who cast ballots in the February 2025 primary for state superintendent of public instruction and city council, nearly all did so in person. Two months later, two-thirds of the 132 who voted in the Wisconsin Supreme Court race did so at the polls, a share similar to how the same group voted in previous April elections. 

Disenfranchised voters question city follow-up 

Shortly after learning that her ballot hadn’t been counted, Fairbotham — a 35-year-old medical coder who lives in Madison — wrote to City Clerk Maribeth Witzel-Behl, saying the error was “beyond devastating as an American who prides herself in voting in every election.”

“This is how people lose faith in their government that their rights will be protected,” she said in the letter, calling on Witzel-Behl to resign. 

Fairbotham said she never received a response from Witzel-Behl, who has since resigned — or anyone else employed by the city. 

“Not hearing a peep,” she said, is the most frustrating part. Fairbotham’s vote in the 2024 presidential election was the first time she cast an absentee ballot since the peak of the pandemic in 2020. She has only cast in-person votes since and said the incident still makes her angry.

Madison City Attorney Mike Haas disputed the characterization that the city didn’t communicate the seriousness of the error, pointing to a city and state investigation and a public apology from the mayor.

Still, some voters said the city’s outreach fell short after such a significant error. Haimowitz, for example, didn’t hear from the city when most of the voters did — a separate oversight by city officials meant overseas voters did not receive the same notice as those living locally. Until speaking with Votebeat, Haimowitz said, he didn’t know whether the mistake that kept his ballot from being counted was his or the city’s, nor what steps officials had taken to prevent it from happening again.

Election administration experts say direct, proactive communication can be critical in rebuilding trust. After a mistake like the one in Madison, jurisdictions should reach out to affected voters, review what went wrong and clearly explain how it will be prevented in the future, said Jennifer Morrell, CEO of The Elections Group and a former Colorado election administrator.

The city has completed the first two steps, Morrell said, but it did not fully follow through on the third.

After sending an initial notice telling voters they could reach out with questions, the city held no further public hearings, said Haas, a longtime election lawyer and former administrator of the Wisconsin Elections Commission. Few of the disenfranchised voters followed up, he added.

Some disenfranchised voters find lawsuit bewildering

The divide among disenfranchised voters extends to the lawsuit filed in the aftermath of the error.

In March 2025, the liberal group Law Forward filed a claim seeking $34 million from the city and Dane County over the error, later turning it into a lawsuit. In February, a circuit court judge ruled that the city could be held liable for monetary damages.

A small group of affected voters has joined the case, arguing it’s one of the only ways to hold the city accountable for failing to count their ballots.

But others see it differently. “In an era where the reliability of elections is being challenged by some groups in completely spurious ways, it seems to me that this lawsuit just adds to that noise,” Ediger said.

Lawsuits seeking monetary damages for disenfranchisement are now rare, but were more common in the late 1800s and 1900s, when Black voters were intentionally and repeatedly disenfranchised by election workers. Then, the fines forced the government to think twice, said Ediger. But there’s no similar pattern of errors or intentionality here in Madison, he added, which makes him doubt the lawsuit’s purpose. 

Haimowitz said he also opposed the lawsuit, despite how much it has shaken his confidence.

“I’m not sure that the city should pay such a heavy price for this,” Haimowitz said, adding that at a time when some Republicans are peddling “Stop the Steal” narratives and casting doubt on election integrity, especially in battleground states like Wisconsin, the Law Forward letter unnerved him.

“That kind of money could be debilitating to a city elections board that is already under immense scrutiny and pressure to get it all right,” he said.

Law Forward staff attorney Scott Thompson pushed back on comparisons between the case and post-2020 lawsuits filed by Republicans, including one that sought to throw out over 200,000 absentee ballots in Wisconsin.

“That cavalier attitude towards votes that we saw in 2020 is simply unacceptable, and not compatible with democracy,” he said. “And so what do we do with that? Well, I can tell you what we will not do: We will not stand idly by if hundreds of people in a community lose the right to vote because their ballot simply wasn’t counted.”

He said that lawsuits often make people uneasy, but that their perspective may change when a fundamental right is taken away. He declined to directly comment on some of the disenfranchised voters’ issues with the case.

For some disenfranchised voters, financial damages are part of accountability. Precious Ayodabo, a named plaintiff, wrote in a Cap Times column that her disenfranchised absentee vote “is worth enough” to warrant compensation.

“It’s worth enough that I waited for hours in line to cast it. It’s worth enough that politicians spend millions of dollars to receive it. It’s worth enough that people have put their lives on the line and died to protect it,” she wrote.

Thompson declined to make Ayodabo and the other plaintiffs available for interviews. Of the 193 voters, eight are plaintiffs in the case, he said.

Others who support the lawsuit say it’s less about personal payment and more about forcing systemic change. Fairbotham said she’s grateful the case is pushing the city to take the error seriously, particularly after the Wisconsin Elections Commission found the city violated state law.

Thompson said the lawsuit isn’t about making sure the government knows “every single jot and tittle” of absentee voting procedure, but to ensure election officials count every vote, which he defined as “the absolute most basic obligation.”

Still, some election experts warn the case could have unintended consequences. Morrell said the lawsuit could become one of many elements that dissuade election officials from staying in administrative roles.

“If we’re setting an unrealistic expectation that any mistake made by an election administrator opens you up to a lawsuit, that feels like an impossible situation to be in,” she said. “Election administrators take this so seriously and do everything they can to ensure mistakes don’t happen,” she added, “but they do.”

For Haimowitz — a voter who has helped others register to vote and served as a poll worker — the question isn’t just whether the city fixes the problem. It’s whether he can move past having his ballot go uncounted.

“It was something that made me think it’s clearly not that easy to vote,” he said.

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’s free national newsletter here.

Disenfranchised Madison voters sound off on city, lawsuit 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.

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The city of Madison on Monday appealed a ruling that allows it to be sued for monetary damages for disenfranchising nearly 200 voters in the 2024 election, arguing the decision would unrealistically require “error-free elections” and expose municipalities across the state to liability for mistakes. 

The appeal comes after Dane County Circuit Court Judge David Conway’s Feb. 9 ruling that Madison could face potential financial liability for disenfranchising 193 voters whose absentee ballots were unintentionally left uncounted. Notably, the city did not specifically contest the judge’s rejection in that ruling of its earlier argument that absentee voting is merely a “privilege” under state law — a claim that would have shielded it from damages.

Instead, the appeal centers on who has the authority to enforce election laws and whether voters can sue for negligence. The city argues that such complaints must go first to the Wisconsin Elections Commission and asks higher courts to revisit a landmark 1866 case that allowed damages against election officials who deprive citizens of the right to vote.

“It is not difficult to imagine how the circuit court’s ruling may be perceived as an opportunity by partisan actors to influence the election,” attorneys for the city, former Clerk Maribeth Witzel-Behl and Deputy Clerk Jim Verbick wrote in the filing. 

A permanent path to sue for damages over accidental election errors without going first through the commission could “chill the willingness of individuals to volunteer to assist with elections, and the willingness of voters to participate in the political process,” they wrote.

Madison asks court to revisit landmark voting case

Much of Madison’s appeal asks the court to revisit a key finding in the landmark 1866 case that secured the extension of the franchise to Black Wisconsinites, Gillespie v. Palmer. In that case, the court held that state law allows plaintiffs to sue election officials for damages if they “negligently deprive citizens of the right to vote.” 

The case arose after Ezekiel Gillespie, a Black man, was turned away from the polls in 1865. While voters had ratified a measure extending the franchise to Black residents 16 years earlier, it went largely unenforced, as state officials still disputed whether the change was valid. Gillespie sued, and courts ultimately ruled in his favor, concluding in 1866 that Black Wisconsinites had been wrongfully disenfranchised for 17 years.

Although Gillespie was intentionally barred from voting, the court’s ruling established negligence — not just intentional misconduct — as a basis for disenfranchised voters to seek damages. The Dane County Circuit Court relied on that broader standard in allowing the Madison lawsuit to proceed. 

Madison officials in their latest appeal argue the lower court misapplied the precedent. In their view, Gillespie was about protecting the right to cast a ballot  — a right that they say isn’t disputed in this case. No election official in Madison denied that the 193 Madison voters had a right to vote, they wrote. Rather, they contend, the voters’ ballots were unintentionally left uncounted after being cast.

If Gillespie is extended under these circumstances, the defendants argue, Wisconsin would be the first state to allow “any voter whose ballot is accidentally uncounted a right to sue for monetary damages,” a premise that they say requires immediate review by higher courts given the impending 2026 midterms.

They also contend the 1866 ruling predates Wisconsin’s modern election system, and relying on “such an archaic interpretation of Constitutional rights in Wisconsin is grossly in error and requires intervention before the case proceeds further.”

Madison’s filing “seeks to erode the protections” guaranteed in Gillespie, said Scott Thompson, staff attorney for Law Forward, which filed the case. “This argument follows the city’s failed attempt to throw out this case by arguing that the right to vote does not protect absentee voters from disenfranchisement. The right to vote has value, and the voters the city of Madison disenfranchised look forward to having their day in court.”

Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, clarified that a court wouldn’t need to overturn the historic Black voting rights case entirely to rule that it doesn’t apply in the lawsuit against Madison.

“You could potentially read that case in a more narrow way, as applying only to intentional deprivation of the right to vote, as opposed to negligence and deprivation,” she said, adding that it’s likely that only a higher court could reinterpret Gillespie in such a way.

Law Forward’s response to Madison’s appeal is due on March 9. Then the Madison-based District 4 Court of Appeals is expected to determine whether the appeal may move forward. 

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

This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access. Sign up for Votebeat Wisconsin’s free newsletter here.

Madison appeals ruling allowing lawsuits in 2024 ballot-counting case 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.