The U.S. Postal Service on May 29, 2026 proposed a rule to carry out President Donald Trump’s executive order restricting voting by mail. (Photo by Jane Norman/States Newsroom)
The U.S. Postal Service on Friday took its first major step to carry out President Donald Trump’s executive order restricting voting by mail, proposing a rule that would require states to submit lists of voters before mailing ballots.
But the proposed rule appears to smooth over some of the rougher edges of the executive order, which has been condemned by Democratic state officials as an intrusion on their constitutional authority to administer elections.
“The proposed rule would apply uniform standards for the mailing of absentee ballots to and from voters, which the Postal Service understands will facilitate the faithful execution of federal law,” the Postal Service said in a document posted on the Federal Register website.
The executive order faces at least five lawsuits. Experts on the Postal Service have also warned that Trump’s attempt to assert authority over the agency threatens its decades-long record of independence.
The order remains in effect for now ahead of the November midterm elections. A federal judge on Thursday declined to block it after finding the federal government had taken few steps to implement it. However, with Friday’s proposed rule, that’s beginning to change.
Some exemptions
Trump’s March 31 order directed the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service. In effect, states would be blocked from allowing residents to vote by mail unless they provide their names to the federal government.
The proposed rule fulfills that directive, but it exempts overseas and military voters — a concession that wasn’t included in the executive order. Voting by citizens who are abroad and in the military is regulated by the federal Uniformed and Overseas Citizens Absentee Voting Act. The law sets strict deadlines for states to send ballots.
The rule also doesn’t require states to submit voter lists for primary elections.
“Primary elections largely involve political parties selecting nominees through their chosen procedures, rather than direct election of federal officials, and thus implicate different considerations that bear on the necessity for these provisions,” the Postal Service said in a document outlining the proposed rule.
The Postal Service document emphasizes that states retain full control of who gets to vote by mail or alter the information.
The proposed rule creates data reporting standards that “can provide information regarding the sending of ballots through the mails that would be available for use by law enforcement,” the document says.
The Postal Service plans to formally publish the rule on June 2.
Noncitizen voting
Trump and administration officials have framed the executive order as a way to combat noncitizen voting, which occurs very rarely. Trump has long attacked mail voting, though he has voted by mail multiple times.
“I think this will help a lot with elections,” Trump said when he signed the order.
But opponents of the executive order say it violates the U.S. Constitution, which gives states the responsibility of running elections and allows Congress to pass regulations. The order represents an attempt by Trump to unilaterally control elections, they say.
After a federal judge in Washington, D.C., declined to block the order, another federal judge in Massachusetts will hold a hearing on June 2 in a separate lawsuit challenging the directive brought by Democratic attorneys general.
“Widespread chaos and confusion is the goal of this executive order,” Cliff Albright, co-founder of Black Voters Matter, said in a statement.
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.
Chief Inspector Megan Williamson processes absentee ballots at the Hawthorne Library on Madison's East Side during the November 2022 election. (Photo by Henry Redman/Wisconsin Examiner)
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.”
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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An attorney for the Republican Party of Wisconsin told local officials ahead of a key vote last week that Madison should not count 23 absentee ballots from last week’s Supreme Court election that arrived at polling places after they had closed — a dispute that could set up a legal challenge.
The GOP weighed in hours before the Madison Board of Canvassers voted unanimously on Friday to count the affected ballots. On Monday, the Dane County Board of Canvassers followed suit, voting 2-1 to count the ballots.
Election officials make these judgment calls all the time, and, historically, courts have allowed them. Officials are routinely called upon to address whether a witness address is complete, whether a damaged ballot can still be counted, or the like. These issues are usually resolved locally and without controversy.
But disputes like this — over how to interpret the law and whether late-arriving ballots should count — are harder to contain. Experts say leaving those decisions to individual counties risks inconsistent outcomes across Wisconsin, especially in a high-stakes election season.
Rick Hasen, an election law professor at UCLA, said that kind of patchwork approach is a recipe for conflict.
“This is not tenable in the current political atmosphere,” Hasen said.
Dane County votes to count ballots despite GOP opposition
The kind of disagreement worrying Hasen was on full display at Monday’s meeting of the Dane County Board of Canvassers. Two canvassers said there was a clear answer about what to do with the ballots — but they arrived at different ones.
“I don’t think this is hard,” Dane County Clerk Scott McDonell said.
“I don’t either,” said canvasser Mike Willett, a former Dane County supervisor and a Republican appointee on the board.
McDonell voted to count the ballots, while Willett voted against it, saying the board had previously rejected late-arriving ballots and he didn’t want to create exceptions.
Erik Paulson, the other Democrat on the board, sided with McDonell to count the ballots.
University of Wisconsin-Madison student Cassie Semenas casts a ballot during the spring election at Lowell Center residence hall on April 7, 2026, in Madison, Wis. (Joe Timmerman / Wisconsin Watch)
Republican opposition was already taking shape before the vote.Emails obtained by Votebeat show that Nicholas Boerke, an outside attorney for the Wisconsin GOP, urged city and county officials on Friday not to count the ballots.
“We recognize this situation may have resulted from an unfortunate logistical failure. However, administrative error does not create statutory authority that otherwise does not exist,” he wrote.
“Voting absentee is a privilege granted by the Legislature that comes with inherent risks and the election day deadline for the receipt, processing, tabulation, and counting is mandatory,” he continued.
The canvass, Boerke told officials, was a “ministerial process, not a vehicle for processing absentee ballots” that weren’t received by the time dictated in law, “nor a mechanism to conduct an unauthorized recount.”
Amber McReynolds, an assistant attorney for Madison, responded that counting the ballots was in line with court decisions and past Wisconsin Elections Commission recommendations.
Boerke responded, telling officials the GOP maintains “that the statutory language is clear — absentee ballots that are not timely delivered to polling locations before 8 p.m. may not be counted.”
Boerke didn’t immediately respond to a request for comment about whether the GOP would sue Madison.
Error led to 23 Madison absentee ballots arriving late
The ballots at issue arrived at the city clerk’s office on Monday, April 6. The absentee ballot courier carrying the ballots left a city facility at 6:30 p.m. on Tuesday, April 7, to deliver ballots to 17 polling places, but the courier did not make it to the last few polling places until after the 8 p.m. deadline.
Officials said these 23 ballots were correctly, legally cast and checked into the pollbooks just like any other absentee ballot — the only problem was that that happened after polls formally closed.
Madison Clerk Lydia McComas said it was a critical error to put just one person in charge of delivering ballots to so many polling places. Madison is the largest city in Wisconsin that still chooses to count absentee ballots at individual precincts rather than at a central location — a decision that requires ballots to be transported across the city on Election Day.
It remains unclear, however, why the ballots departed from the city’s facility so late in the day. Across the state, clerks design their Election Day logistics to ensure ballots are delivered by that cutoff. McComas said it was her and her staff’s understanding that the law required ballots to be delivered to polling places by 8 p.m.
There appears to be little appetite among clerks to formally extend that deadline.
“I do not plan to take advantage of whatever ruling comes here tonight,” McComas said ahead of the county vote, implying that she wouldn’t take advantage of the canvassing board’s leniency and plan for future late deliveries accordingly.
McDonell said rejecting the ballots would penalize voters for something outside their control. “And I think that’s very problematic,” he said.
Disagreement over Wisconsin election law is ripe for legal challenges
The statute at issue in this situation says ballots must be returned so that they’re delivered to polling places “no later than 8 p.m. on election day.”
“If the municipal clerk receives an absentee ballot on election day,” the law continues, “the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector’s residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.”
At the county-level meeting on Monday, county attorney David Gault, arguing that the ballots should be counted, took the position that the law does not apply here because the ballots were received before Election Day.
“The clear intent of everything in the statutes,” he said, is not to punish the voter for mistakes made by election officials.
“That’s certainly an interpretation,” said Willett, the conservative member of the county canvassing board. “When we start making these exceptions, these exceptions just grow.”
What’s clear to Bryna Godar — a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative — is that the statute is “ambiguous about this type of situation.” She said one part of the law appears to govern voters returning ballots on time, while another addresses ballots received on Election Day — leaving situations like this unclear.
“Because there is no voter fault here from what we know so far, there would be good reason to still count those ballots,” she said, adding that rejecting them could raise constitutional concerns.
At the city meeting on Friday, McReynolds noted that courts ruled in the 1970s and 1980s that ballots should be counted as long as there’s “substantial compliance” with election laws and no evidence of “connivance, fraud, or undue influence.”
In 1985, however, the Legislature passed a law emphasizing that absentee voting is a privilege exercised outside the usual safeguards of the polling place and that ballots not meeting legal requirements “may not be counted.”
Boerke cited that law in his exchange with the city and county, as conservatives have done repeatedly in issues of absentee ballot missteps and controversies.
Still, the courts have continued to show flexibility. In a 2004 dispute, the Wisconsin Supreme Court held that “the failure on the part of the election officials to perform their duties should not deprive the voters of their constitutional right to vote.”
Lawyers often say that it’s more important for a law to be certain than for it to be right, said Hasen, the UCLA professor. Uncertainty — especially when there are good-faith arguments on either side — is one of the most dangerous situations in election law.
“That just creates all kinds of issues of equal protection and due process and election fairness,” he said. “So the more that these issues can be resolved one way or the other, not in the heat of a very close election, the better it is.”
If an election hinges on ballots like these, he said, a lawsuit is all but inevitable.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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.
The law provides no clear exception to that deadline and says ballots not delivered on time “may not be counted.” But court rulings have given boards of canvassers broad discretion in these cases, allowing them to count ballots as long as there’s “substantial compliance” with election laws and no evidence of “connivance, fraud, or undue influence.”
A past Wisconsin Supreme Court case held that election statutes don’t need to be fully complied with, so long as election officials preserve the will of the voter.
City election officials instructed poll workers to count and mark the affected ballots — which all arrived by the end of the night on Monday, the day before Election Day — in case the city, county or state decides to exclude them.
The Madison canvassing board on Friday unanimously voted to count the 23 ballots. Assistant City Attorney Amber McReynolds said the error was made by the city clerk’s staff, not voters, and that past precedent supports counting the ballots. The county canvass begins Monday.
It is unclear why the ballots — which had been in the city’s possession for several hours before the deadline — were so delayed in arriving at the polling places.
The late delivery marks another potentially significant error in how the city handles its ballots after it faced extensive public scrutiny and a state investigation for disenfranchising 193 voters whose ballots were misplaced in the November 2024 election.
It’s the first high-turnout election run by City Clerk Lydia McComas, hired to replace the clerk who oversaw the 2024 ballot snafu. McComas said her office had informed the Wisconsin Elections Commission of the situation.
Ballots left the city late and got to polls after deadline
Those ballots were in the hands of a ballot courier, who left a city election facility around 6:30 p.m. to deliver ballots to the polls. The courier arrived at those final four polling locations after 8 p.m., reaching the final one at about 8:30 p.m, delivering a combined 23 ballots to all of them.
“Due to a longer-than-usual delivery time, the very last few ballots arrived at four polling places shortly after polls closed,” McComas said.
When similar incidents happened in the past, the county board of canvassers didn’t count those votes in the final canvass based on legal advice, Dane County Clerk Scott McDonell said. He said he’s waiting for more details before deciding how to proceed with these ballots at Monday’s county canvass meeting.
In those past incidents, the county board decided that not counting the ballots in the final county tally “was an obvious choice based on the way the statute’s written,” McDonell said. “The statute isn’t vague.”
Given the ballots’ timely arrival, McDonell said, “they should have gotten out to the polls and should have been counted on time.”
Other municipalities have counted ballots discovered late
Other election officials have at times decided to count ballots discovered after the 8 p.m. deadline, but the rules for municipalities are different depending on their procedures for counting absentee ballots.
In November 2020, Milwaukee workers discovered nearly 400 uncounted ballots during a recount. A campaign representative for President Donald Trump objected to those ballots being included, but the municipal canvassing board unanimously decided that they should count.
At the February 2022 election, Wauwatosa election officials discovered 58 unopened ballots. After consulting the Wisconsin Elections Commission and the city attorney for advice, the city clerk convened the Wauwatosa Board of Canvassers, which included the missing ballots in the totals.
But the rules that allowed Milwaukee and Wauwatosa to count those ballots may not apply to Madison. In both of those cities, absentee ballots are counted in a central location. In Madison, absentee ballots are counted at the polling locations where the registered voter would have voted in person.
In cities like Madison, election workers must deliver absentee ballots to polling places by 8 p.m. For central count municipalities, by comparison, state law only says election officials there shall count ballots received by the clerk by 8 p.m., without clarifying that they must be in a certain place by that point.
The Wisconsin Elections Commission has said the 193 ballots Madison missed in 2024 could have been counted had the city made the appropriate notifications to state authorities. But those ballots were likely already at polling places on Election Day — unlike the 23 ballots here, which arrived after the deadline.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at ashur@votebeat.org.
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 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.
Nathan Haimowitz (Courtesy of Nathan Haimowitz)
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.”
“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.
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