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Former Justice: Steps to restore confidence in elections

By Daniel Kelly, Institute for Reforming Government

Public reaction to both the 2016 and 2020 presidential elections suggests we are losing confidence in our electoral system. Whether this enervated faith is the result of flaws in our procedures, or instead a series of popular misunderstandings, it should tell us we have some work to do if we want to retain (and recapture) trust in our elections.

One of the foundational truths of a constitutional republic appears in the first section of the first article of the Wisconsin Constitution: Governments “deriv[e] their just powers from the consent of the governed.” This “consent” refers not only to what our forbears did over 170 years ago, it also refers to what we do every time we hold an election.

The legitimacy of our government, therefore, depends on elections that can reliably determine who the people of Wisconsin have chosen to serve them in public office.  But it’s not enough that our elections produce accurate results, they must also be seen to produce accurate results. Doubt and conspiracy theories are born and raised in the wrinkles and lacunae of weak election statutes. There, in those imperfections, the legitimacy of a government can be lost.

As the Legislature commences its audit of the most recent election, I commend the following topics to its attention. Thoughtful amendments to our election statutes in these areas could increase the security of our electoral system while simultaneously improving public confidence in the results they produce.

  • Registration lists. Current law requires periodic examination of voter rolls to ensure they contain only those individuals who are eligible to vote. However, it is also sufficiently ambiguous about who is supposed to conduct the review that the job just doesn’t get done. The Wisconsin Supreme Court is in the process of trying to discern what the statutes say on this question, but the answer really belongs to the Legislature. It should amend the statutes to unambiguously assign the duty to the proper government agency (or agencies), and require regular reports documenting what has been done to remove ineligible voters from the rolls.
  • Proof of Residency. One of the foundational requirements of any reliable electoral process is ensuring that those who vote actually reside at the address of their registration. Our laws are extraordinarily relaxed with respect to proving residency, and documentation can be as informal as an old utility bill. But there are those who nonetheless try to register without even that minimal quantum of proof. Some clerks address that failure by sending a letter to any address given by the prospective voter, stating therein that the letter constitutes sufficient proof of residence. If by “proof of residence” the election statute really means a simple recitation of an address, then it’s probably fine as it is. But if by “proof” the Legislature meant documentary validation, a statutory change is necessary to address the escape hatch some clerks are using.
  • Drop Boxes. Our statutes do not say whether clerks may use drop boxes to collect absentee ballots. Consequently, nothing in our laws provides for the security of ballots collected in that manner. And security is without question an issue — suspected arson destroyed ballots deposited in drop boxes in both Boston and Los Angeles last October. Maybe this extra-statutory method of collecting ballots is wise, maybe it isn’t. But this is a question for the Legislature. So is security for the ballots collected in that manner.
  • Ballot harvesting. Our election law is silent with respect to whether ballot harvesting is legal in Wisconsin. The Wisconsin Elections Commission says it is, although its reasoning is, at best, sketchy. Many states make ballot harvesting a crime — and with good reason, inasmuch as this practice presents unique opportunities to pressure electors to vote in a particular way.  The integrity of our elections cannot turn on a practice that the Legislature has not addressed. Whether pro or con, the Legislature, not the Wisconsin Elections Commission, must answer this question.
  • Central Count. Counting all absentee ballots cast in a particular municipality in one location may be administratively efficient, but it also spawns a bumper crop of suspicions and doubts. In both 2018 and 2020, Milwaukee announced the tally from its central count location in the wee hours of the morning. And in both instances, that tally appeared to change the trajectory of the election. There is no evidence suggesting anything was amiss with the reported numbers, but reporting such a large volume of ballots in the middle of the night is not the way to build confidence in an electoral system. Only a few municipalities take advantage of the statutory option to count their absentee ballots in a central location. Maybe the damage done to the election’s credibility suggests the administrative efficiencies are not worth the cost.
  • “Indefinitely-Confined” Status. Because any Wisconsin resident can vote absentee for any reason — or no reason at all — the primary purpose of self-designating as “indefinitely confined” is to avoid producing photographic identification with one’s ballot. Last year’s dramatic surge in voters who adopted this status, a status that is essentially unverifiable, has caused many to question their eligibility to vote. Current law makes it so easy to obtain a photo ID sufficient for voting that it calls into question the continuing need for the “indefinitely confined” status. If it’s not serving an identifiable purpose, eliminating it will remove one of those lacunae that consumes confidence in our electoral system.
  • Written Applications for Absentee Ballots. The law says “the municipal clerk shall not issue an absentee ballot unless the clerk receives a written application therefor from a qualified elector of the municipality.” In practice, however, clerks do not require written applications during early in-person absentee voting. Instead, the Wisconsin Elections Commission says the “application” is synonymous with the certification the voter completes and signs after voting the ballot. Experience with the daily affairs of life suggests that an application precedes the thing for which one is applying. And the law makes that explicit. Maybe there is no longer any reason to prohibit clerks from issuing ballots for which there is no written application. If so, that is a change the Legislature should make, not the Wisconsin Elections Commission.
  • Missing Witness Address on Absentee Ballot Certification. If an absentee ballot certification is missing the witness’s address, the law says the ballot may not be counted. The law is unusually specific with respect to this command. The Wisconsin Elections Commission, however, has instructed clerks all over the state that they must perform original research to discover the witness’s address, and then fill it in themselves. I’m sure the WEC’s motives are entirely laudable, but it is not within its remit to instruct clerks to obviate the law. The Legislature should require the WEC to explain why it believes it may instruct clerks to defeat this statutory requirement.

This is by no means a comprehensive list of issues the Legislature should consider as it evaluates the conduct of last year’s election. But paying attention to these areas will pay dividends for many years as Wisconsinites rebuild their confidence in the integrity of our elections. Nothing less than the “consent of the governed” is at stake.

Former Wisconsin Supreme Court Justice Daniel Kelly is Senior Fellow in Constitutional Governance at the Institute for Reforming Government.

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