The Wisconsin Elections Commission voted 5-1 to affirm the report finding the Madison clerk who failed to count 193 absentee ballots broke five election laws. But it stopped short of adopting the proposed orders to the city clerk’s office that would direct further action.
Commissioner Bob Spindell was the sole dissenter to affirming the report, saying that he didn’t agree with the conclusions of the report.
“I can understand what happened here, and there’s problems here, but it’s not something I think the clerk here should be crucified for,” Spindell said.
The commission considered the draft report overseen by Dem Chair Ann Jacobs and GOP appointee Don Millis, which found Maribeth Witzel-Behl failed to follow the law in how the ballots were handled.
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The report detailed several failures by the former clerk. Among these were using a former brewery for Election Day staging and ballot storage, with the door found unlocked on at least one occasion.
Commissioner Mark Thomsen said he would support adopting the findings of the report, but not the orders, as he wanted to vote to give Madison 30 days to work on implementation, after City Attorney Mike Haas argued the city needed more time. Thomsen argued the commission shouldn’t “micromanage” Madison without giving clerks in other cities the same directives.
Jacobs said she’d like to have the order in place because the intention was to be “remedial” and respond to the actions of a clerk. Jacobs added she’d be alright making changes down the road.
The commission deadlocked 3-3 on adopting the orders. It then voted 6-0 to schedule a meeting Aug. 15 to consider the proposed orders. The City of Madison was directed to provide materials to the commission by August 7.
The orders, among other things, would direct the City of Madison to print poll books no earlier than the Thursday before the election, because the legal analysis found the early printing of poll books meant ballot information was not updated.
The orders would also assign the clerk to provide a record of courier bags for ballots, provide numbers of courier bags available, properly label absentee ballots and store ballots only in designated areas. Under the proposed orders, the clerk must also conduct an inspection of supply totes, courier bags and security carts ahead of the deadline for the municipal board of canvassers to meet.
Jacobs and Millis at yesterday’s meeting recounted some of Witzel-Behl’s failures.
Jacobs noted that, when the city discovered the ballots were missing, a staff member went looking in blue supply totes for these ballots and found them. Jacobs described this as “weird” that a staff member found ballots in a bag.
Several staff members were out at the time, including Witzel-Behl, who went on vacation the day after learning a sealed courier bag used to carry absentee ballots had been found. But she took no action until returning to the office nearly a month later.
Jacobs said another conclusion she and Millis made in the report was that the ballot bags carrying the missing ballots never made it to the poll site. Jacobs said they didn’t believe it was “plausible” the chief inspectors could have missed so many ballots.
Jacobs again emphasized the commission was not considering criminal charges but “this is about fixing what went wrong and making sure it doesn’t happen in the future.”
Spindell defended Witzel-Behl. He said she was planning to go on vacation when she found out the ballots had been found, and there was likely no policy in place about what to do when ballots were missing.
Spindell added Witzel-Behl was on vacation in Madison and there’s evidence she checked her email regularly. He alleged staff did not speak with her about the uncounted ballots during this time.
Jacobs replied that Spindell was “wrong,” because the city clerk’s office operates on Microsoft Teams, which means there’s communication the commission can’t track. She also pointed to a staffer who sent an email saying they had talked to Witzel-Behl about the ballots being found.
“I think you are profoundly underplaying the apathy in that office upon the discovery of those ballots,” Jacobs said.
Jacobs said Witzel-Behl had a “profound lack of action,” because she left on vacation and did not assign anyone to deal with the newfound absentee ballots.
Haas said the city has conducted its own investigation and is reviewing the structure of the clerk’s office. He emphasized the city is taking the events “seriously” and has already taken steps to protect against similar action.
But Haas asked for the commission to postpone approving the orders because several of the guidelines are not connected to a specific law and would require significant management changes and costs.
“We have concerns about the approach that would require Madison and Madison alone to implement specific new procedures without the opportunity for our staff to consider the impact and practicality and to provide feedback to the WEC,” Haas said.
He added the orders did not take into account the steps the city has already taken, and are framed to continue permanently, regardless of changes in law or technology.
