This story has been updated with WEC statistics furnished on Thursday, April 16, provided after the Independent-Scout went to press with the paper on Tuesday, April 14.
WISCONSIN went to the polls on Tuesday, April 7, in the middle of the COVID-19 pandemic and Governor Evers’ ‘Safer at Home’ executive order. A record 1,281, 557 registered voters requested absentee ballots, compared to 819,316 in the November 2016 presidential election.
Voters were allowed to request absentee ballots until Friday, April 3, by 5 p.m. This was allowed despite the fact that the Wisconsin Election Commission (WEC) was told by Administrator Megan Wolf that the U.S. Post Service (USPS) could not guarantee any less transit time from clerk to voter than seven days, and then another seven days from voter back to the clerk.
Beleaguered municipal clerks were confronted with an unprecedented volume of absentee ballot requests. For some, the envelopes needed to mail the ballots did not arrive until the week before the election.County, city, village and town clerks had until Monday, April 13, at 4 p.m. to complete data entry into the myvote.wi.org website. This data includes the date the absentee ballot requests were received, the date the absentee ballot was sent to the voter, and then finally, whether the ballot was received back by 8 p.m. on election day.
As of Thursday, April 16, the data in the system was reflecting the following about absentee ballots statewide:
• Zero percent (1,284,599) of the 1,281,557 absentee ballots requested were not sent out, or (3,042) ballots. The data provided on Thursday, April 16 is actually showing that 3,042 more ballots were sent than were requested.• Twelve percent of the 1,284,599 ballots sent were not showing as returned to the clerk, or 158,649 ballots.
The data for Crawford County was as follows:
• Six percent of the 2,515 absentee ballots requested were not sent out, or 160 ballots.
• Nine percent of the 2,355 absentee ballots sent were never returned to the clerk, or 219 ballots.
The data for Vernon County was as follows:
• Four percent of the 4,568 absentee ballots requested were not sent out, or 160 ballots.
• Thirty percent of the 4,408 absentee ballots sent were never returned to the clerk, or 1,317 ballots.
In a press conference held on Wednesday, April 8, WEC Administrator Wolf clarified that:
• Ballots that were sent to the voter but never arrived, or arrived after election day, will still show up in the data as having been sent.
• After the canvass is complete, the data will only reveal that a ballot was not counted because it was received late, but not other issues such as problems with witness or voter signatures, or other issues.
• WEC will probably be able to track voters who requested an absentee ballot, but then voted in-person at their polling place on election day.
“I have made it clear to the municipal clerks that they must keep very good records of ballots received between April 8-13,” Wolf said. “We won’t have any of the detail at the state level – all of the detail is at the local level.”
Ballots never delivered
Reports started to come out early on Wednesday, April 8, about absentee ballots that were never delivered to voters by the post office.
According to an article by Wisconsin Watch:
“The USPS is investigating the failure to deliver at least 175 — and possibly hundreds — of absentee ballots requested by voters in the village of Fox Point and other communities in Milwaukee County. The scrutiny comes as scores of voters across Wisconsin say they never received ballots requested long before Election Day.“But news outlets have found numerous voters in Madison, Milwaukee, Appleton and elsewhere who said they waited to receive ballots that did not arrive before Election Day. The Milwaukee Journal Sentinel reported that at least 50 people contacted the newspaper to report problems accessing mail-in ballots.”
WEC discusses issues
The Wisconsin Election Commission met on Friday, April 10 to discuss issues with absentee ballots.
“We have been hearing from jurisdictions and voters all day about problems with ballots that were never delivered,” WEC Administrator Wolf said. “I am having a very hard time getting answers from the USPS.”
There were also many questions coming to the WEC from municipal clerks about different kinds of postmarks on ballots, and even ballots that were returned to them by the USPS with no postmark whatsoever.
“We have been told by the USPS that they instructed their branches to use a circular hand stamp for ballots received on April 7 that simply said APR 2020,” Wolf told the Commission. “I have not been able to confirm this with USPS, but will ask Judge Conley to obtain an affidavit.”
WEC Commissioner Mark Thomsen pointed out, and Chairman Dean Knudsen confirmed, that the Wisconsin law requiring a postmark had been repealed, and that the current law specifies receipt by the post office.
“The U.S. Supreme Court can’t add terms to Wisconsin state law,” Commissioner Thomsen said. “What constitutes receipt under state law – when it is received or when it is put in the mail?”
WEC staff attorney Michael Haas responded:
“The U.S. Supreme Court is not absolutely clear,” Haas said. “Their ruling suggests that they are equating mailing with a postmark.”
Commissioner Ann Jacobs weighed in on the issue.
“It is absurd to think that if clerks were receiving ballots on Wednesday, April 8, from the USPS, that they weren’t mailed by Tuesday, April 7,” Jacobs said. “The court did not specify what they meant by a postmark.”
Haas spoke to the intent of the U.S. Supreme Court decision.
“According to what we’ve been told by the USPS, the stamp might only say APR 2020,” Haas said. “The Supreme Court intended that a voter could mail their absentee ballot on April 7 and have the vote counted.”
“The Supreme Court’s ruling didn’t say “postmark with a date,” Jacobs said. “It just said postmark.”
Motions voted on
The WEC took four votes at their Friday, April 10 meeting about what guidance municipal clerks would be given about postmarks and what ballots should be counted.
The first motion, which failed on a 3-3 roll call vote was:
“If a ballot does not have a postmark of April 7 or before, then it should not be counted.”
The motion was made by Commissioner Bob Spindell, and seconded by Chairman Knudsen.
A friendly amendment made by Commissioner Marge Bostelmann was rejected prior to the vote. That friendly amendment was:
“Absentee ballots delivered to clerks on April 8 will be counted if the municipal clerk can obtain an affidavit certifying that the post office was in possession of the ballots on April 7.”
Knudsen, Spindell and Bostelmann voted for the original motion, and Glancey, Thomsen and Jacobs voted against it.
The second motion, which passed 6-0 on a roll call vote was:
“All ballots bearing a postmark of April 7 or before will be counted, even if they are delivered to the clerk after April 7.”
The third motion which passed 6-0 on a roll call vote was:
“If WEC staff can get a signed statement in writing from the USPS Authority that states that a stamp reading APR 2020 was used only on April 7 to indicate a ballot was received that day, then it can be counted.”
The fourth motion, which failed 3-3 on a roll call vote was:
“All ballots arriving in a clerk’s office by April 8 delivered by the USPS can be counted.”
The motion was made by Jacobs, and seconded by Glancey.
A friendly amendment made by Knudsen was rejected.
“I will support this if the motion specifies that there must be a signed statement from the USPS Authority stating that mail delivered on April 8 was mailed by April 7.”
Knudsen, Bostelmann and Spindell voted no; Glancey, Thomsen and Jacobs voted aye on the original motion presented.
“It’s COVID-19 that led to one million absentee ballots being requested between March 18 and April 3,” Thomsen said. “A rational person when confronted with a tsunami changes procedures so the process is fair. I’m going to trust the clerks.”
The WEC tried one last motion before adjourning for the weekend.
Knudsen moved to add language to the last clause on page three of the guidance for clerks proposed by WEC staff, where it said “in possession of a USPS processing facility,” the following language:
“A ballot must have been proven to have been in the possession of a USPS processing facility on or before April 7.”
Commissioner Bostelmann seconded the motion.
“I am opposed to this motion because it opens up the possibility for lawyers to ask to examine every ballot,” Spindell said.
Knudsen withdrew his motion and the meeting of the WEC adjourned.
Crawford County Clerk Janet Geisler told the Independent-Scout that her office handles the data entry into myvote.wi.org for absentee ballots for all of the municipalities in Crawford County except the City of Prairie du Chien and the Village of DeSoto.
Geisler sent her Crawford County municipal clerks the following guidance on Monday, April 13:
“Please remember to check your mail for any late arriving absentee ballots. You must receive them by 4 p.m. I know that there has been a lot of confusion regarding the late arriving absentee ballots especially pertaining to postmarks so I will try and explain.
“According to the U.S. Supreme Court all ballots must be postmarked by election day and received by 4 p.m. today. Ballots that were mailed by election day however may not have the postmark of April 7th due to mail processing procedures and this is where a problem occurs. Some postmarks are illegible, some do not contain a date and some do not even have a postmark. The Elections Commission had hoped to receive a statement from the Postal Service authority that a postmark with APR 2020 may have been used when processing mail on election day however that statement has not been received. According to the Postal Service a postmark is an imprint in black ink that indicates the location and date that custody of a mailpiece. Ballot envelopes that have not met the U.S. Supreme Court standard should not be opened and should be rejected.
“It will be up to each municipality to determine if the ballot envelopes meets the requirement set by the U.S. Supreme Court. Any that are rejected should be documented on your Inspector’s Statement and indicate why they were rejected.”
Vernon County Clerk Ron Hoff told the Independent-Scout that his office handles the data entry into myvote.wi.org for absentee ballots for 27 of the county’s 33 municipalities.
Hoff sent his Vernon County municipal clerks the guidance as provided by the WEC staff:
“I. April 10, 2020 Commission Action
“This memorandum is a follow-up to two April 8, 2020 communications from the Wisconsin Elections Commission (WEC) regarding issues related to absentee ballot postmarks for the Spring Election and processing those ballots in WisVote.
“In short, the WEC directs the boards of canvassers to count ballots which are returned in envelopes postmarked on or before April 7, 2020 and delivered to the municipal clerk by 4 p.m. on April 13, 2020.
“This memorandum does not alter the WisVote treatment of these ballots but simply incorporates the earlier guidance for ease of reference.
“In response to the WEC’s April 8th communications, municipal clerks submitted hundreds of examples of absentee ballot envelopes with unclear postmarks. WEC staff appreciates the prompt response of clerks who submitted those examples in order to assist the Commission in evaluating specific factual scenarios and attempting to develop further guidance for local election officials.
“As noted in the previous communications, on April 6, 2020 the U.S. Supreme Court ruled that, in order to be counted, all mailed-in absentee ballots must be “postmarked by election day, April 7, 2020, and received by April 13, 2020 at 4 p.m.”
“The Elections Commission met the afternoon of April 10, 2020 to discuss how to interpret the Supreme Court’s directive in light of the various examples of envelopes submitted by clerks. The Commission discussed whether or not the Court decision provided specific direction regarding postmarks that were missing, illegible or that did not include a date, and whether the Court’s directive was satisfied if an envelope was in the possession of the U.S. Postal Service by April 7, 2020 even if USPS did not apply a postmark.
“Each municipality must determine whether the ballot was postmarked timely.
“The Commission passed a motion reaffirming that all ballots with a postmark of April 7th or earlier are to be counted, assuming they are otherwise valid.
“The Commission also passed the following motion:
“If elections commission staff can obtain a signed statement from a Postal Service authority that states that the stamp that reads “APR 2020” was only used on April 7th and it indicates it was received on April 7th those ballots shall be counted.“This motion was passed following discussion that a postmark indicating “APR 2020” may have been used by USPS when processing mail on Election Day, April 7th. WEC staff is attempting to secure the requested statement, from the U.S. Postal Service and will notify local election officials if that statement is obtained.”