Empower Wisconsin | Nov. 10, 2020
By M.D. Kittle
MADISON — Did the Wisconsin Elections Commission issue unlawful directives to local clerks?
WEC says it offered the same directives for the 2020 election it approved four years ago; Sources with knowledge of the situation say the commission, once again, has ignored state law. And the commission’s failure may have led to elections officials counting thousands of illegal ballots.
Conservative talk show host Dan O’Donnell on Monday reported that “county and municipal clerks and poll workers across Wisconsin may have unlawfully altered witness statements on thousands of mail-in ballots across the state.”
As O’Donnell points out, Wisconsin Statute 6.86 states absentee ballots must be signed by a witness, who is also required to list his or her address. Without the witnesses address, the ballot is considered invalid and must be returned to the voter to have the witness complete.
Acting on guidance from the Elections Commission, however, ballot counters at polling sites around the state filled out the missing information. Sources say that could invalidate perhaps a few thousand votes, hundreds in Milwaukee alone.
Invalidating those ballots would cut into former Vice President Joe Biden’s approximately 20,000-vote unofficial victory over President Donald Trump in battleground Wisconsin.
Elections Commission spokesman Reid Magney tells Empower Wisconsin the directive permitting municipal clerks to “fix” missing witness address information “based on reliable information” has been in place since October 2016. The motion to approve the guidance was made by Republican members of the commission and it passed unanimously, Magney pointed out.
True. But here’s where the commission’s interpretation of the law appears to get a bit murky.
“The law says that a witness address needs to be present for the certificate to be accepted and the ballot to be counted, it does not specify who affixes the address (for example, voter address is added by the clerk on the certificate envelope),” Magney wrote in an email to Empower Wisconsin.
A source with knowledge of the controversy says the assertion is “completely wrong.”
Section 6.87 lists a range of mandatory statutes that must be followed. They’re not suggestions. If municipal clerks receive a ballot envelope with incomplete information, they may provide a new envelope, but it’s up to the elector — not the elections official — to fix the omission.
“If a certificate is missing the address of a witness, the ballot may not be counted,” the statute clearly states.
There is nothing in the statute that allows the clerk to modify an official document, and that’s what an absentee certificate is.
“Do clerks think they can go back into the register of deeds and change an address? Of course not,” a Wisconsin elections expert told Empower Wisconsin. “Nothing gives them the authority to do that. It would be like changing information on a birth certificate.”
Magney did note that if an absentee certificate does not contain a witness address that can be added by a clerk based on reliable information, the ballot cannot be counted. But what constitutes reliable information?
The point would seem moot, however. State law doesn’t permit clerks to do what the Elections Commission contends they can do, a legal source familiar with the situation told Empower Wisconsin.
“WEC does not have an outstanding record of checking statutes before giving guidance,” the source said.
Magney said the commission’s guidance has been in effect for 11 statewide elections, including the 2016 presidential and presidential recount. He said no one has objected to it until now.”
Perhaps they should have.
The commission spokesman said there were no corrections made to ballots as some articles have claimed. Only witness addresses were added to the certificate, Magney said, in accordance with the commission’s directive.
It should all be easy enough to track. Clerks were advised to initial or write in the addresses with red pen.
President Donald Trump’s campaign has vowed to seek a recount. Attorneys will undoubtedly contest the ballot certificates in which local clerks added missing witness addresses.
“Each and every one of those ballots should not be counted. They should be challenged,” the legal expert said.