Wisconsin GOP's Shocking Move: Will Thousands of Late Mail Ballots Be DISCARDED in Supreme Court Battle?

Votebeat, a nonprofit news organization focused on voting access and election administration across the United States, reports on a developing situation in Wisconsin that could have significant implications for future elections. Recently, an attorney representing the Republican Party of Wisconsin urged local officials in advance of a crucial vote to refrain from counting 23 absentee ballots from the Supreme Court election held last week. The ballots in question arrived at polling places after they had officially closed, raising the specter of a potential legal challenge.

In a decisive move, the Madison Board of Canvassers voted unanimously on Friday to count the disputed ballots, with the Dane County Board of Canvassers following suit on Monday in a 2-1 vote. Such decisions are not unusual for election officials, who frequently navigate questions about ballot integrity and eligibility. Historically, courts have supported local officials in these matters. However, the ongoing disputes regarding how absentee ballots are handled reveal deeper issues regarding electoral consistency in Wisconsin, particularly as high-stakes elections loom.

Rick Hasen, an election law professor at UCLA, warned that leaving these decisions to individual counties creates a "patchwork approach" that could lead to inconsistent outcomes. “This is not tenable in the current political atmosphere,” Hasen remarked, underscoring the potential for conflict.

The disagreement over these ballots became apparent during the Dane County Board of Canvassers meeting. Two board members reached different conclusions regarding the ballots, illustrating the contentious nature of the issue. “I don’t think this is hard,” said Dane County Clerk Scott McDonell, who voted to count the ballots, while fellow canvasser Mike Willett, a Republican appointee, voted against it. Willett expressed concern that making exceptions could set a problematic precedent.

Before the vote, Nicholas Boerke, an attorney for the Wisconsin GOP, had already communicated his opposition, advising officials not to count the ballots. In his email, he acknowledged the situation as a result of “an unfortunate logistical failure,” but argued that administrative errors shouldn't justify disregarding statutory mandates. He referred to the absentee voting process as a privilege governed by strict deadlines.

Contrasting Boerke's stance, Amber McReynolds, an assistant attorney for Madison, pointed out that counting the ballots aligned with previous court decisions and recommendations from the Wisconsin Elections Commission. Boerke maintained that the law was unambiguous: absentee ballots not delivered to polling locations by 8 p.m. on Election Day should not be counted.

The late-arriving ballots were due to logistical issues, where a courier tasked with delivering them to various polling places failed to meet the 8 p.m. deadline. Despite arriving at the city clerk’s office on April 6, the ballots were delivered to many polling places too late, although they were validly cast and logged in the poll books.

Madison Clerk Lydia McComas acknowledged that it was a critical error to rely on a single individual for the delivery of ballots to multiple locations. Madison is notable for being the largest city in Wisconsin that opts to count absentee ballots at individual precincts rather than at a central location, a method that presents challenges on Election Day. McComas expressed her intention not to exploit any leniency granted by the canvassing board in future elections.

At the core of this dispute is Wisconsin law, which stipulates that ballots must be delivered to polling places "no later than 8 p.m. on election day." While the law appears clear, it raises questions about whether voters should be penalized for failures by election officials. County attorney David Gault argued that the law should not punish voters for mistakes made by election officials, emphasizing that the intent is to ensure voter rights, not to impose strict penalties for administrative errors.

Legal experts, including Bryna Godar, a staff attorney at the University of Wisconsin Law School, highlighted the ambiguity in the statute, noting that certain provisions seem to govern timelines while others address ballot receipt on Election Day. This inconsistency poses risks not only to voter rights but also to the integrity of the electoral process. The ongoing interpretations and disputes are likely to lead to legal challenges, particularly in tightly contested elections.

As this situation unfolds, the Wisconsin Supreme Court has previously ruled that election officials' failures should not deprive voters of their constitutional rights. This precedent reinforces the notion that achieving electoral integrity should not come at the expense of disenfranchising voters due to administrative missteps.

With each election cycle, the stakes grow higher, and as disputes over absentee ballots persist, the potential for litigation looms. Experts warn that when election outcomes hinge on the counting of specific ballots, the chances of legal challenges increase dramatically, creating a precarious situation for both voters and election officials in Wisconsin.