A split Dane County Board of Canvassers is preparing to appeal an order from the state Elections Commission barring the counting of 23 absentee ballots cast by Madison voters that the city clerk didn’t deliver to the polling site by the statutory deadline.
All of the ballots had been received by the clerk’s office on April 6, the day before the election. But they weren’t delivered to polling sites until after 8 p.m. on April 7, the deadline under state law for them to be counted.
The Elections Commission voted 5-1 last week to direct the boards of canvass for the city and county to redo their tally of the results to discount the 23 ballots. The commissioners found local officials had abused their discretion in counting the votes since they didn’t arrive at polling sites until after 8 p.m. the day of the election.
Dane County Corporation Counsel Carlos Pabellón took issue with that interpretation of state law in a memo to the Board of Canvassers, arguing it “only applies by its express terms to absentee ballots received by the clerk on election day.” He argued ballots already in the clerk’s possession the day before an election should’ve been counted.
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County Clerk Scott McDonell agreed with that assessment, saying in a phone interview yesterday it’s different when ballots have arrived before an election.
“That is now a clerk error. We do not punish voters for clerk errors,” he said.
After the 2-1 vote yesterday, McDonell said he will now ask Pabellón to file the appeal in circuit court.
Along with voting to appeal the commission’s order, the Dane County Board of Canvassers directed the city to follow the directive to do a new tally for the spring results.
Madison City Attorney Mike Haas said election officials had to randomly select 20 ballots to remove from the tally because only three of the 23 were marked. The process didn’t change the results of any races.
McDonell said during a Board of Canvassers meeting that while the body complied with the commission’s order, the lawsuit would seek to challenge its interpretation of state law on the deadline for absentee ballots to be received.