Voting booths at the Doyle Administration Building, a polling place on election day in Madison, on Tuesday, April 3, 2018. PHOTO BY MICHELLE STOCKER

The conservative Wisconsin Institute for Law & Liberty is pushing the state Elections Commission to ban ballot harvesting.

State law already requires voters to request an absentee ballot by making contact with their local clerk, largely cutting out the aspect of ballot harvesting that involves a third party requesting an absentee ballot on behalf of a voter.

Several exceptions do exist, though. Voters who are hospitalized can appoint an agent to deliver an absentee ballot request to a clerk, pick up the ballot and return it to a local clerk. Those living in residential care facilities and retirement homes can also submit an absentee ballot application to a special voting deputy — an election official trained to conduct absentee voting at those locations.

But state law does not explicitly ban another aspect of ballot harvesting: a third party collecting and returning ballots for voters.

A petition submitted Monday by WILL asks the Elections Commission to create an administrative rule clarifying both aspects of ballot harvesting are illegal outside of the exceptions already set in law. The request cites state statutes requiring a completed absentee ballot to be “mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.”

“That statute obviously means that the elector shall mail it, or the elector shall deliver it ‘in person,'” WILL wrote in the petition.

A commission spokesman declined to comment on the petition, instead referring WisPolitics.com to a memo from a March 2019 WEC meeting in which the commission called for legislative action on ballot harvesting.

Commissioners at that meeting unanimously agreed to request the Legislature change state law to make “failing or refusing to deliver a marked ballot collected from another voter to the municipal clerk or polling place” a felony.

The WEC recommendations on ballot harvesting were included in an Assembly bill introduced earlier this year by Republican Reps. Ron Tusler, of Harrison, Scott Allen, of Waukesha and Chuck Wichgers, of Muskego. AB 898 received a public hearing in Tusler’s Campaigns and Elections Committee but was not taken up on the floor and did not receive a Senate companion.

The petition was filed on behalf of five registered voters, meeting the statutory threshold that requires an agency to review a request to promulgate a rule. Under state law, the Elections Commission must either proceed with the request or provide a written statement explaining the denial within “a reasonable period of time.”

WILL President Rick Esenberg indicated Monday on WISN-AM that his group could pursue legal action if the commission declines the petition.

“If the commission does not agree with us, the question then becomes, ‘Since you didn’t clarify the law, what does the law really say? Does it permit this or not?'” Esenberg said. “That could lead to litigation.”

See the petition:
https://www.wispolitics.com/wp-content/uploads/2020/06/200608-PFR.pdf

See the WEC memo:
https://www.wispolitics.com/wp-content/uploads/2020/06/200608-CLA.pdf

See AB 898:
https://docs.legis.wisconsin.gov/2019/proposals/ab898

See state law on absentee voting procedures:
https://docs.legis.wisconsin.gov/statutes/statutes/6/IV/87

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