Madison is questioning whether the Elections Commission has the power to force it to take additional steps to ensure absentee ballots are counted properly without requiring the same of other Wisconsin communities.
City Attorney Mike Haas, who’s also been serving as the clerk, in a letter pushed back on the requirements the commission plans to vote on Friday. Besides questions about the agency’s authority, he wrote the proposals don’t take into account the steps Madison has taken since it failed to count 193 absentee ballots cast in the November election.
Haas asked the commission to seek an opinion from the attorney general or the Legislature’s attorney on whether it has the power to impose the steps that are scheduled to be before commissioners on Friday.
“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,” wrote Haas, who formerly worked for the Elections Commission and served as its administrator. “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.”
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The Elections Commission voted 5-1 last month to affirm a report finding the former Madison clerk who failed to count 193 absentee ballots broke five election laws. But it stopped short of adopting proposed orders requiring the city clerk’s office to take corrective actions, putting that off until a meeting scheduled for Friday.
The orders, among other things, would direct the city to print poll books no earlier than the Thursday before the election. The commission’s review found Madison failed to prepare the poll books in a way that would’ve helped reveal the 193 absentee ballots that had been returned.
But Haas argued waiting until the Thursday before an election could cause challenges for the city. For the spring election, Madison placed its printing order on a Tuesday, receiving the polls books back on that Friday. Pushing that up another two days would leave less time to mark late-arriving absentee ballots in the books so poll workers knew voters had already cast absentee ballots.
One alternative would be to cut off in-person voting earlier to give the clerk’s office more time to mark poll books, Haas wrote.
He argued if the commission really wants to dictate local operations “at such a granular level,” then it should be done through state law or the administrative rules process after hearing input from local officials.
The commission hadn’t yet posted materials for Friday’s meeting by this afternoon.
