It is “unreasonable and absurd” for the Madison attorney to suggest the Elections Commission lacks the power to direct the city clerk to take specific actions after unlawfully failing to count 193 absentee ballots last fall, a commission lawyer argues.
Mike Haas, who’s also been serving as Madison’s clerk, last week urged the commission to dial back a series of proposed recommendations it will consider at Friday’s meeting. Among other things, he argued the commission lacks the power to direct Madison to take specific actions without applying the same directives to other communities through the administrative rules process or a change in state law. He also warned against micromanaging local clerks.
But in a memo posted Tuesday, state attorney Angela O’Brien Sharpe argued under Haas’ interpretation, “the Commission would tell clerks that they have done something wrong but then couldn’t provide a roadmap or instructions for the proper way to administer the legal duty.”
“The Commission is obviously not in the business of micromanaging the administration of elections by 1,850 municipal clerks,” Sharpe wrote. “But when an incident occurs that is as serious as what happened in the City of Madison, the Commission must have the ability to intervene and take specific steps to correct unlawful actions and improper exercise of discretion.”
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Sharpe prepared the memo ahead of Friday’s meeting, when the commissioners will consider whether to direct Madison to take specific actions after failing to count the 193 absentee ballots returned ahead of the November election and then failing to notify the agency of the mistake until mid-December.
It voted 5-1 last month to affirm a report that the former Madison clerk broke five election laws in failing to count the absentee ballots. But it put off until Friday a vote on requiring the city clerk’s office to take corrective actions.
Haas, who formerly served as the Elections Commission administrator, sent the agency a letter last week questioning its authority to impose some of the proposed corrective measures. He wrote while drafting orders during his 12 years with the agency, he understood the commission’s authority to be limited to ordering local election officials to comply with the law. But he argued it didn’t extend to requiring procedures “in excess of those required in the statutes.”
Sharpe’s response included examples of orders signed by Haas that contained “specific directives to fix specific problems.” She added staff couldn’t “find any agency records that support” Haas’ claim on the orders he drafted.
Haas also urged the commission to rework its recommendations, arguing they didn’t take into account steps Madison has taken since last fall to address the issues that led to the failure to count the 193 absentee ballots.
Sharpe largely argued against heeding that call, though she wrote staff agreed commissioners could modify one proposed order requiring Madison to print its poll books no earlier than the Thursday before an election. The directive was proposed to allow more time for watermarks to be added for voters who have already returned their absentee ballots so poll workers know to look for them. Poll workers use other means to highlight voters whose absentee ballots were returned after poll books were printed.
Haas wrote the process can now take three days, and Sharpe suggested the deadline could be moved back to the Tuesday before an election.
Still, she took issue with his claim that it takes “a full day” to generate the poll book from WisVote, the state’s voter registration site. She cited WisVote records showing the city spent three hours to generate the poll book last fall, “mostly because they took breaks between generating files.”
Haas wrote in an email the city appreciated the commission considering its suggestions on the proposed orders.
“We fully agree with the Commission that a significant error was made during the November 2024 election that cannot happen again,” he wrote. “The question is which level of government is best suited and authorized to determine specific procedures that work for the municipality in going above and beyond what the statutes require.”
