Some missing Madison ballots could have been counted — if clerk’s staff had acted in time

Of the nearly 200 uncounted ballots that Madison city clerk’s staff discovered after Election Day, about 70 might have gotten counted if the staff members had promptly alerted the county. 

The clerk’s office staff didn’t find 125 of the uncounted ballots until Dec. 3 — after the state already certified the election. But the staff found 68 of them well before that, on Nov. 12, the same day Dane  County certified the election. If the clerk’s office had reported the missing votes to the county within a few days, the county election board could have petitioned the Wisconsin Elections Commission to amend its results to include those ballots.

Kevin Kennedy, formerly the state election chief for over 30 years and a chief inspector at a Madison polling site not associated with the errors, said the county canvass, or official count, could have been reopened at that point if officials had known about the problem. 

“From my perspective, you find the ballots, you tell the city attorney. The city attorney is going to advise you to tell the mayor and to reach out to the county board of canvassers,” Kennedy said. “That’s what should have happened once they were discovered.”

Informing the city attorney in this case could have been especially helpful: Madison’s city attorney, Mike Haas, was formerly the administrator of the Wisconsin Elections Commission and is regarded by some as one of the state’s top election lawyers.

In a letter to the state election commission, obtained by Votebeat, Madison Clerk Maribeth Witzel-Behl claimed she “believes” somebody from her office did, in fact, tell the Dane County Clerk’s Office about the ballots on Nov. 12.

On that day, Witzel-Behl said, an employee identified as “employee F” “believes he spoke to the Dane County Clerk in his office but cannot remember what the Dane County Clerk said,” though he was “certain” the conversation had taken place. The office was left with “a general sense that the County would not want” the ballots that had been discovered that day.

Witzel-Behl didn’t supply additional information substantiating that interaction and through a spokesperson said she had nothing to add to the information she shared with the elections commission.

But Dane County Clerk Scott McDonell said he “strongly disagrees” with the city’s claims.

“Prior to the information being released publicly, my office and the Dane County Board of Canvassers had no communication with the Madison City Clerk’s Office regarding the discovery of unopened absentee ballots,” he said.

“I find the claim that a conversation took place, without providing details about what was said, difficult to understand,” he continued. “If I had been told about 60 or more uncounted ballots, I would have advised that they talk to their city attorney, who is an election expert.”

“The frustrating part of this whole situation is that a fix allowing some of the ballots to be counted was pretty simple,” he said. “An error of this size is extremely unfortunate, and I worry it will make it difficult for voters to trust their ability to cast an absentee ballot in future elections. I will work to do whatever I can on my part to help ensure our municipal partners know what to do if a similar situation occurs in the future.”

State law outlines what Madison could have done

Under state law, if the Dane County Board of Canvassers — the entity that certifies elections on the county level — becomes aware of a mistake, it can ask the Wisconsin Elections Commission for permission to amend the county results. The window for such a correction stays open until the commission receives every other county’s certification, which in this case didn’t happen until Nov. 18, several days after Madison staff found the 68 ballots. 

Other provisions may also allow the election commission to require the county to correct its canvass, said Bree Grossi Wilde, executive director of the State Democracy Research Initiative at the University of Wisconsin Law School. Wisconsin law appears to allow for the “ability to make a correction” if the county board of canvassers or the Wisconsin Elections Commission becomes aware of an error, she said.

Instead, the 68 Madison ballots went uncounted and unreported for weeks. City election staff were under the impression that the ballots couldn’t be counted unless there was a recount, Witzel-Behl said in December.

“They should have asked someone,” said Ann Jacobs, a Democratic member on the Wisconsin Elections Commission.

Staff in the city clerk’s office apparently didn’t report the ballot discovery to non-election city staff or any external election agency until Dec. 18, when they told the Wisconsin Elections Commission. The commission told city staff, and the mayor’s office soon after disclosed the oversight to the public. By that point, the window to make any of those ballots count toward the election had all but closed. The 193 ballots weren’t tallied until a Jan. 10 city election board meeting, though none of those ballots counted toward any official election results. Madison voters cast over 174,000 ballots in the November election, and the 193 votes wouldn’t have changed any election outcome. 

At that meeting, Witzel-Behl addressed the lack of city processes that likely contributed to the ballots going missing on Election Day and said there would be new procedures for city election staff and poll workers to prevent a recurrence. 

But at that meeting, Witzel-Behl didn’t explain why her office didn’t communicate with city staff or the county immediately after the ballots were discovered, or identify policies to communicate future errors quicker.

She told Votebeat on Jan. 14 that she’s still developing specific policies.

Kennedy, the former state election chief, said having clear instructions in place from the state would have made a difference. The election commission “needs to lay out some expectations so that everybody in the state, every municipal clerk and county clerk knows, ‘If you have a problem, this is what we expect you to do,” he said. 

Lapse raises doubts for voters

Here’s what we know so far about what happened:

At a polling site in Ward 56, just west of downtown, election officials didn’t open two large carrier envelopes used to transport absentee ballots from the clerk’s office to polling sites, where they are tabulated. Those two envelopes contained a total of 125 ballots, which were discovered on Dec. 3. 

At another site, poll workers at Ward 65 didn’t open a carrier envelope carrying 68 absentee ballots, including one ballot that should have been sent to a different polling place. That batch was found on Nov. 12, and it’s not clear what steps the clerk’s office took after the discovery.

There are two clear issues that arose from the uncounted ballots, Kennedy said. One is the matter of process and communications. Poll workers didn’t count the ballots, and city staff took a long time to find them, but still didn’t report having found them. 

The other is the impact on the voters who cast these ballots. “It’s still personal to them” that their votes didn’t get counted, Kennedy said, even if they wouldn’t have changed any election outcomes.

Among those voters was Carol Troyer-Shank, who received an apology letter from the city about the error. 

“It’s so funny, because I have been a reluctant early voter simply because I imagined such a thing happening,” she said. “It’s too bad this had to happen, but it’s not a big enough deal to lose sleep over. I’m glad the city is apologizing, and I’m glad the city is taking steps to make sure it doesn’t happen again.”

Troyer-Shank said she may still vote early in the future. But she added that there remain outstanding questions about what led to 193 ballots, including hers, going uncounted on Election Day.

“We still don’t know what went wrong,” she said. “We still don’t know why they were uncounted at the sites.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at [email protected].

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.