Photo by Saiyna Bashir, The Capital Times

A split state Supreme Court has declined to give clerks in Calumet and Outagamie counties guidance on how to address thousands of ballots with a printing error that local officials say threatens their ability to count all votes by a state-imposed deadline.

The majority didn’t explain its rationale Thursday for turning down the case days before the election. But Chief Justice Pat Roggensack suggested in a concurring opinion that the guidance the clerks sought amounted to an advisory opinion, which she said the court won’t do.

Justice Ann Walsh Bradley, writing for the minority in the 4-3 ruling, knocked the decision, accusing the conservative members of the court of leaving local officials “in the lurch.”

Officials in Outagamie and Calumet counties estimate some 13,500 absentee ballots have a fingernail-sized defect in the “timing mark” around the edge of the ballot. The rectangular symbols that form a ring around a ballot direct how counting machines allocate votes, but the defect prevents the ballots from being read by vote tabulators.

County clerks on Monday filed an emergency petition asking for permission to fill in the defect in the timing mark with a black pen, a move that successfully resolved the issue in a test of 50 misprinted ballots.

County officials expressed concern that ballots they fixed by hand could be challenged unless the court gave them its blessing. Those officials said both alternatives provided under statute — copying votes over from defective ballots to those without the timing error or asking the Wisconsin Elections Commission for permission to hand count all ballots, not only those with a printing error — “will be costly, incredibly time consuming, and will delay election results significantly.”

Municipal clerks face a statutory deadline of 4 p.m. on Nov. 4 to complete their tallies and relay numbers to county clerks. But several clerks warned if forced to duplicate the defective ballots, they would miss the deadline.

Roggensack noted that the clerks hadn’t discussed with the high court the possibility of a hand count for “some or all of the ballots.”

Before going to court, county officials had asked the Elections Commission for permission to count only the defective ballots by hand. But the commission said local election officials couldn’t take a “mix or match” approach.

“Either all ballots in a municipality must be counted by electronic voting equipment, or, if permission is granted, all ballots that municipality must be counted by hand,” the commission wrote in its response.

Roggensack concluded, “election officials may have to make difficult decisions regarding how to proceed as they comply with what the law requires.”

“Obtaining more election workers appears to be necessary,” she wrote.

Bradley wrote she interpreted Roggensack raising the hand count option for some or all of the ballots as a suggestion on how the clerks could address the issue. But she countered that suggestion “may be inconsistent with both reality and the law,” and the court should’ve provided guidance on such a critical issue impacting the upcoming election.

She also questioned why the conservative majority had declined to take the case when it had granted original jurisdiction in a string of suits. The half-dozen she mentioned included the suit a Waukesha County businessman filed seeking to overturn the mask mandate Gov. Tony Evers issued, one GOP lawmakers filed seeking to end an extended stay-at-home order and the suit Green Party presidential candidate Howie Hawkins filed after he was denied a spot on Wisconsin’s November ballot.

“In explaining its rationale for the denial, the concurrence seemingly rests its analysis on the premise that if the court grants the petition it would be rendering a prohibited advisory opinion,” Bradley wrote.

“That premise appears to be merely an excuse.”

See the order here.

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