By M.D. Kittle
MADISON — The Wisconsin Elections Commission’s pretense of innocence appears to be cracking faster.
Late last week, Waukesha County Circuit Court Judge Michael Bohren ruled that absentee ballot drop boxes and ballot harvesting are not permitted in state law. Borhren ordered the commission rescind its guidance that permitted the widespread use of drop boxes and the practice of ballot harvesting in the 2020 presidential election.
Despite its many protestations to the contrary, WEC, the regulator of state election law, was found once again to have broken election law.
“The guidance from the Wisconsin Elections Commission on absentee ballot drop boxes was unlawful,” said Luke Berg, deputy legal counsel for the Wisconsin Institute for Law & Liberty, which sued WEC. “There are just two legal methods to cast an absentee ballot in Wisconsin: through the mail or in-person at a clerk’s office. And voters must return their own ballots.”
WEC issued memos to Wisconsin clerks in March and August of 2020 encouraging the use of drop boxes amid the coronavirus outbreak. The commission contradicted the law in asserting the absentee ballots do not need to be mailed by the voter or delivered by the voter, in person, to the municipal clerk, but instead could be dropped into a drop box. According to WEC, ballot drop boxes can be unstaffed, temporary, or permanent.
The position presents a severe test to voter integrity and overall transparency.
State law makes clear, “voting by absentee ballot is a privilege. When voting by absentee ballot, state law requires “[t]he envelope [containing the ballot] shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”
“An unstaffed, unsupervised absentee ballot drop box does not meet either of these legal options,” WILL stated in a press release. “And it raises significant concerns that elections are not being conducted legally and that Wisconsin voters will not have certainty that their votes will be counted if cast in this manner.”
WILL’s Review of the 2020 Election found that the widespread adoption of absentee ballot drop boxes, not provided for under Wisconsin law, was correlated with an increase of about 20,000 votes for Democrat Joe Biden, while having no significant effect on the vote for Republican President Donald Trump.
WEC’s defense is that the guidance documents were merely meant to be advice to local clerks running elections. They’re not orders, and they don’t have the force of law, the regulator insists. Except, WEC is the final authority on state elections and election law. So the agency at best gave local elections officials very bad legal advice.
Bohren found the Elections Commission broke the law.
WEC definitely didn’t follow the law, which requires guidance documents to go through the legislative rules-making process.
Sen. Steve Nass (R-Whitewater) has been sounding the alarm on that front for a long time. Nass, co-chair of the Joint Committee for Review of Administrative Rules, has repeatedly noted the Elections Commission’s failure to work with the Legislature. Last week, the legislative committee ordered WEC to finalize its emergency rules on drop boxes and rules for “curing,” or correcting ballot envelopes within the next 30 days. The committee would then move to stop the rules from being implemented.
“Today, the legislature … has commenced the statutory procedures to compel the staff and commissioners of the Wisconsin Elections Commission to rapidly comply with state law,” Nass said in a statement. “WEC must now either issue emergency rules within 30 days or cease issuing their guidance on absentee ballot drop boxes and the correction of errors/omission on absentee ballots.”
A state audit late last year found WEC and local elections officials misinterpreted, manipulated or outright broke election law in administering 2020 elections. Included in the violations was the Elections Commission’s decision to lock special voting deputies out of nursing homes. That left nursing home staff to assist voters with casting absentee ballots. There have been several reports of severely cognitively disabled residents at long-term care facilities being forced to vote or manipulated into voting, a felony under state law. A Racine County Sheriff’s Department investigation recommends multiple charges against WEC commissioners.
The Waukesha Court ruling further takes the veneer of proper conduct that WEC’s administrator Meagan Wolfe and its commissioners have feverishly been trying to sell the public — with the help of many members of the mainstream media.
“How these drop boxes are handled, being able to determine chain of custody, is one of our greatest concerns,” said state Rep. Janel Brandtjen (R-Menomonee Falls), chair of the Assembly Campaigns and Elections Committee investigating the 2020 elections.
“All of these things set forth in guidance were not laws. I understand COVID put us in a situation where we were trying to react, but moving beyond the law did not add any transparency or confidence to our election process,” she added.
Brandtjen’s committee has scheduled a hearing for Wednesday looking further into WEC’s activities, including problematic technology systems tracking voters and votes.