Uncounted ballots, thousands of cookies and the role of WEC: The latest on Madison clerk investigation

Yahoo

2 days ago

MADISON - The city and Wisconsin Elections Commission are at odds after nearly 200 ballots went uncounted in the 2024 presidential election while the city election clerk took vacation time to bake thousands of cookies.
The city contends the Wisconsin Elections Commission does not have the authority to order the tasks and changes in practice, which the commissioners discussed at a July meeting. But commission staff attorneys say the actions by the former clerk warrant such orders, and state law allows the commission to issue them.
Madison City Attorney Michael Haas, a former administrator of the state elections commission, said his understanding of the commission's authority is that it is "limited to ordering a local election official to comply with the election laws.""When the Commission is presented with an error that can be corrected in real time, such as a decision whether to certify nomination papers or to order a recall election, the Commission is well within its authority to order local officials to take immediate action to conform their conduct to the law," Haas wrote in an Aug. 6 letter to WEC attorney Angela Sharpe."But regardless of whether there is still an opportunity to fix the error (and here there is not), the Commission's authority does not extend to requiring the future implementation of specific procedures in excess of those required in the statutes."
Madison attorney says Election Commission orders would not improve how elections are run
Haas said the orders require Madison clerk staff to perform duties not mandated in other municipalities.One example Haas noted is in the commission's second proposed order, which requires the Madison clerk to provide WEC with a detailed plan showing which clerk staffer is responsible for each task outlined in state law and naming back-up staffers who will take over those roles in the event of absences. "While this idea may seem wise in theory, it is a broad mandate that clearly interferes with the authority of the municipal clerk and there are reasons why it is likely not an exercise conducted by any of Wisconsin's 1,850 municipalities, especially those with Clerk's staff of any significant size," Haas wrote.
Haas said the city continues to overhaul its practices to ensure all votes are counted properly and that the 2024 episode does not occur again. He said requiring Madison to perform tasks other municipalities don't "runs the risk of increasing, rather than decreasing, inconsistency of local election practices."
Orders "created in a vacuum" that are not required by statute is not a good approach for making improvements, he wrote."That approach tends to put the responsibility on the Commission to account for all aspects of local election administration and decision points related to staffing, budgeting, resources and supervision, a result that I believe we can agree is not productive, appropriate or sustainable."
Elections Commission says Madison issues were 'structural' and need its intervention
The potential action from the state's top election officials comes after a commission investigation found former Madison Clerk Maribeth Witzel-Behl acted unlawfully when she failed to ensure nearly 200 absentee ballots were counted during the 2024 presidential election.The findings that were released in July in a scathing report outlined how Witzel-Behl refused to acknowledge "significant errors" in how absentee ballots were handled and did not take any action after learning 193 ballots went uncounted — instead going on vacation.
Emails obtained by the Milwaukee Journal Sentinel under the state's public records law show after Witzel-Behl learned uncounted ballots were discovered, she opted to take vacation time to bake thousands of cookies for dozens of city offices and the Wisconsin Elections Commission.
"The seriousness of Clerk Witzel-Behl's actions, and the fact that it resulted in almost 200 voters being disenfranchised, warrants a detailed order from the Commission correcting her office's policies and procedures, and ensuring those issues are actually fixed before the next statewide election," Sharpe wrote in a memo to commissioners ahead of the Aug. 15 meeting. "It was clear from the investigation that some of the contributing factors did not rest solely with Clerk Witzel-Behl and included actions of the City Clerk staff, as well as structural problems in that office," Sharpe wrote. "Staff believe it is necessary to require the City Clerk's office to affirmatively correct specific problems to ensure that they do not persist in future elections."Sharpe said commission staff do not believe the purpose of state law governing such actions "is achieved by allowing a municipal clerk, whose actions were found to be contrary to law and an abuse of discretion, to correct their own actions entirely unsupervised by the Commission by being told simply not to do it again."
The Wisconsin Elections Commission is scheduled to meet Friday, Aug. 15, to discuss the proposed orders for the Madison clerk's office.
Investigation into uncounted ballots is first in commission's history
Don Millis, a Republican elections commissioner, said the discovery of the cookie baking, which was first reported by Votebeat, made the episode "more outrageous − her neglect."
"It seems outrageous that she couldn't be bothered to put down the cookie cutter and come to the office to figure out why, initially, 68 voters' ballots weren't counted and then eventually 193 ballots weren't counted," Millis said. "To me that's just dereliction of duties."
"The two biggest problems are you had some people not able to exercise their right to vote − and it's terrible for those people − but it just undermines confidence in our elections," he said. "At a time when we have all the tools at our disposal to make sure that everyone's counted. There is no fraud or very little fraud − we seem to have mistakes like this. It just seems like people didn't care."
WEC launched the investigation into the Madison clerk's office after commissioners learned the 193 ballots had not been counted. The probe lasted six months while commission staff reviewed nearly 2,000 pages of documents and conducted 13 depositions of city and county staff.
It was the first time WEC used its investigative authority in the commission's eight-year history. Ann Jacobs, the Democratic chairwoman of the commission, and Millis, a Republican-appointed commissioner, conducted the depositions. Both are attorneys.
Among the commission's investigative findings included learning that two bags of uncounted absentee ballots likely never made it to wards to be counted and may have been added to a ballot storage cart and supply tote after being discovered. Chief inspectors at the two wards with uncounted ballots credibly testified they did not see bags containing the ballots in their materials on Election Day.
Witzel-Behl did not act urgently to count the ballots after discovering them, even though they still could have been included in vote tallies at the time, according to the investigation.
Haas is asking the commission to seek an opinion from Attorney General Josh Kaul or the state Legislature's attorneys on the scope of their authority related to the orders.
The uncounted ballots in Madison did not impact the results of any federal, state, or local race or referendum question in the November 2024 election. More than 1.5 million absentee ballots were cast in the election and results were reviewed during the weeks-long certification process at the city, county and state levels.
Molly Beck can be reached at [e-mail].
This article originally appeared on Milwaukee Journal Sentinel: Madison objects to WEC orders over clerk who didn't count ballots
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