If voters return their absentee ballots on time, they must be counted even if local election officials fail to deliver them to a polling site by the Election Day deadline, a Dane County judge has ruled.
Judge Everett Mitchell stressed in yesterday’s decision that his ruling only applies to situations where voters follow absentee balloting rules only for errors by local election officials to cause them to be late.
That means locals aren’t required to count ballots whose late delivery is attributable “in any part to the voter” or anyone other than an election official.
“A voter who contributed to the delay is not faultless,” Mitchell wrote. “The postal service, a partner, or a friend is not an election official. A ballot that arrives at the clerk’s office too late to be delivered by 8:00 p.m. was not timely returned.”
The decision stems from a lawsuit two Madison voters filed after they and 21 others returned their absentee ballots at least a day before the April election.
Local election officials failed to deliver the absentee ballots to polling places by 8 p.m. on Election Day, and the state Elections Commission directed the Dane County Board of Canvassers not to include them in the final numbers.
Mitchell ruled the commission erred even though state law requires the ballots returned by 8 p.m. in time to be counted. In doing so, he cited what he wrote was 150 years of Supreme Court rulings that showed voters shouldn’t be penalized due to mistakes by local election officials.
He cited seven cases, including one from 1907 in which the state Supreme Court ruled it “can conceive of no principle which permits the disfranchisement of innocent voters for the mistake, or even the willful misconduct, of election officers.”
Mitchell wrote the Legislature can regulate how absentee voting is conducted under state statutes.
“But once a voter has complied with every regulation the Legislature has imposed, the ballot she has cast is a vote, and her right to have it counted is the constitutional right to vote itself,” Mitchell wrote.
As part of his ruling, Mitchell found the state Elections Commission was wrong to direct the Dane County Board of Canvassers to exclude the 23 ballots from its final tally in the April election.