The Milwaukee recount is being held at the Wisconsin Center. Photo by Adam Kelnhofer, Nov. 23, 2020.

Legal advisers for the state Legislature offered differing takes on whether several clerks had the right to prevent state auditors from physically handle ballots during a review of the 2020 election

Leg Council attorneys in a memo said it was “arguably reasonable” for clerks to cite U.S. Department of Justice advice in declining to allow Legislative Audit Burea staffers to handle ballots.

Senate Minority Leader Janet Bewley, D-Town of Mason, requested the opinion after GOP leaders indicated they would empower the chamber’s Elections committee to look into Madison’s refusal to allow the Legislative Audit Bureau to physically handle ballots. Instead, the city offered alternatives such as clerk staff handling ballots that auditors wanted to review. Milwaukee County and the Town of Suamico also declined to allow LAB staff to physically handle ballots.

In doing so, Madison cited advice the U.S. Department of Justice issued in July warning that when “election records leave the control of elections officials, the systems for maintaining the security, integrity and chain of custody of those records can easily be broken.” It added when records are no longer under the control of election officials, “this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed.” The agency opined records must be “retained either physically by election officials themselves, or under their direct administrative supervision.”

Leg Council Director Anne Sappenfield and staff attorney Peggy Hurley wrote in a memo that application of the U.S. DOJ advice was not uniform among Wisconsin clerks. They wrote that could be due to legal interpretation or practice, as well as “the extent to which individual clerks believe they can safeguard records physically handled by a third party.”
They noted the guidance places the “ultimate responsibility for the integrity of federal election records on clerks” with the potential for criminal prosecution if they fail to properly preserve and retain the records.

“Therefore, assuming that the clerks who declined to allow LAB staff to physically handle election records acted in good faith and consistently apply this interpretation to all third parties, it is arguably reasonable to permit only clerks’ staff to physically handle election records based upon the U.S. Department of Justice guidance,” they wrote.
Read the memo here.

One day after Dems released the Leg Council memo, Republicans issued another from the Legislative Reference Bureau that took the opposite view.

LRB Chief Rick Champagne and Chief Counsel Joe Kreye wrote in the memo they believe there’s no prohibition in the U.S. DOJ guidance that prevents an election official “handing over physical custody of election records provided that safeguards are in place.”

They argued the guidance requires election officials to have administrative procedures in place to allow others to give them “ultimate management authority over the retention and security of election records.”

They also wrote state law gives the LAB access to all records during an audit, even those that are confidential. What’s more, federal law imposes constraints on how post-election audits are conducted but doesn’t completely supersede state statutes.

See the LRB memo:
https://www.wispolitics.com/wp-content/uploads/2021/10/211028LRB.pdf

See the Leg Council memo:
https://www.wispolitics.com/wp-content/uploads/2021/10/211027LC.pdf

Note: This item was updated to include the memo from Leg Council.

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