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WEC adapts election procedures to respond to COVID-19 and lawsuits
This is a ballot box too


 A federal judge Thursday kept next week's presidential primary on track but allowed more time to count absentee ballots after excoriating Wisconsin officials for not doing more to protect voters during the coronavirus pandemic. 

The ruling by U.S. District Judge William Conley will allow absentee ballots to be counted if they arrive by April 13 — six days after election-day. He also gave people until Friday to request absentee ballots and loosened another voting rule as people turn to absentee voting in record numbers.

Judge Conley's ruling makes the following changes to procedures for the April 7 election:

• Extend the deadline to request an absentee ballot to tomorrow (4/3) at 5 PM

• Extend the deadline to return an absentee ballot to 4/13 at 4 PM, with no requirement that ballots be postmarked by election day

• Allow voters who are unable to safely obtain a witness certification to submit a written statement that they were unable to do so, despite reasonable efforts

The Wisconsin Elections Commission (WEC) held a marathon meeting on Friday, March 27 via teleconference. The meeting was briefly open, and then went into a three-hour closed session. Returning to open session at 7:15 p.m., the six-member commission along with Wisconsin Election Commissioner Meagan Wolfe, continued to meet for another two hours in open session.

At issue were four lawsuits pending in federal court; safety precautions at polling places for poll workers, election observers and voters; procedures for clerks at polling places; approval of additional expenditures for absentee ballot supplies, hand sanitizer and pens; clarification of criteria to use ‘indefinitely confined’ and ‘hospitalized voter’ provisions in election law; and acceptable procedures for obtaining a witness signature for an absentee ballot.

Pending lawsuits

Discussion of the four lawsuits pending in federal court over the April 7 election was conducted by the commission in closed session, in consultation with legal counsel. The first of five was adjudicated on Friday, March 27, when a federal judge granted a request by Democrats to extend online voter registration in Wisconsin until March 30 in light of the public health crisis brought on by the new coronavirus.

Since then four other lawsuits have been filed, and three are pending:

1. The City of Green Bay and its clerk filed a federal lawsuit against the Wisconsin Elections Commission and the Evers administration seeking to delay the state’s April 7 election and transition it to an election conducted entirely by mail. A federal judge has ruled that a city does not have the standing required to bring such a lawsuit.

2. The League of Women Voters of Wisconsin filed a federal lawsuit Thursday against the Wisconsin Elections Commission challenging the state’s requirement that mail-in ballots include a witness signature. The lawsuit argues the requirement places an undue burden for some voters amid the COVID-19 pandemic.

3. The third pending legal challenge comes from a broad coalition of advocacy groups, many of which represent the interests of minority communities. The coalition includes Souls to the Polls, Voces de la Frontera and Black Leaders Organizing for Communities (BLOC). The lawsuit, brought against the Wisconsin Elections Commission, argues members of minority communities in Wisconsin will be disenfranchised if the April 7 election isn’t delayed. 

4. The Republican Party of Wisconsin asked the Wisconsin Supreme Court to intervene in Dane and Milwaukee counties, where clerks have advised voters they can indicate they are indefinitely confined to avoid uploading a photo ID when voting absentee, something a nonpartisan legislative agency warned could be unlawful.

March 30 WEC

According to Laurel White of Wisconsin Public Radio, Wisconsin Elections Commission deadlocked Sunday afternoon over whether to reprimand Dane and Milwaukee county clerks over guidance they've issued to absentee voters amid the ongoing spread of COVID-19 in Wisconsin. 

The clerks have been advising voters confined during the virus' spread to indicate they are "indefinitely confined" on their mail-in ballot applications. Selecting that option allows a voter to bypass a requirement to include a copy of an ID valid for voting, like a driver's license, with their application.

The clerks have said their offices have been inundated with questions from some voters, particularly senior citizens, who have had trouble getting electronic or physical copies of their IDs during the pandemic.

Republicans have raised concerns with the guidance, saying the clerks are encouraging voters to apply the indefinite confinement option too broadly, as a means of skirting the state's voter ID law. The Republican Party of Wisconsin filed a lawsuit against the clerks on Friday. 

The clerks have defended their actions, saying they only believe voters who are truly confined by health concerns should utilize the option.

During Sunday’s meeting, the commission split along party lines over whether to “deliver a message” to the clerks that their advice is too broad. The commission was initially set to vote on launching investigations into the clerks, but that was walked back. 

"I don't believe we need to have an investigation into this matter," Commissioner Bob Spindell said during the meeting. 

Spindell, who was appointed to the commission by state Senate Majority Leader Scott Fitzgerald, was the first to raise the prospect of an investigation during a commission meeting on Friday. 

"I think all we need to do is deliver the message to the (clerks) that your advice regarding indefinite confinement is wrong," he said.

Commissioner Mark Thomsen, who was appointed to the body by Democratic Assembly Minority Leader Gordon Hintz, chastised the commission for even coming close to considering an investigation.

"I don't think we should stain this institution’s reputation wasting time on saying we’re going to criticize two clerks that are doing their best in the crisis," Thomsen said. "It makes us look so small."

Thomsen said approving an investigation would amount to advancing the GOP court case against the clerks. He said the commission should stay out of political conflicts.

The commission voted 3-3 on sending the reprimanding message to the clerks, with Republican-appointed commissioners voting yes and Democratic-appointed commissioners voting no. That means no action will be taken.

Governor’s call

On Friday morning, Governor Tony Evers called on the state L\legislature to change state law, and send all registered voters an absentee ballot ahead of the April 7 election. The governor also called for ballots postmarked by election day to be counted, as well as provide additional time for municipal clerks to count ballots that may arrive after election day. Under current state law, absentee ballots must be received by the time the polls close on election day. 

 “Everybody should be able to participate in our democracy,” Evers said.

Election supplies

The commission’s first order of business after returning to open session was to approve expenditure of up to another $200,000 to secure critical election supplies. Those supplies include envelopes for absentee ballots, isopropyl alcohol wipes and liquid, paper towels, and pens.

“We are experiencing shortages in the supply chain for all necessary election supplies,” administrator Meagan Wolfe told the commission. “Shortages of envelopes are particularly bad in the seventh congressional district.”

Wolfe told the commission that State of Wisconsin Purchasing had been unable to find liters of isopropyl alcohol, but was now sourcing them through private distilleries in the state. She said her team is also purchasing spray bottles and tops, as well as labels for the bottles.

“We are accumulating the supplies at a central warehouse,” Wolfe told the commission. “The Wisconsin National Guard will begin distribution of the supplies to election clerks the week of March 29.”

Wolfe said she had heard back from clerks around the state that another 55,000 envelopes would be required to service the anticipated demand for absentee ballots. Demand is being calculated off the number of voters that went to the polls in the 2016 Presidential Preference Primary. That number is calculated at two million voters.

Included in the approved $200,000 expenditure will be $133,000 to purchase pens for all polling places. Pens will be given to voters to use and then take away from the polls with them after voting.

Wolfe told the commission that after consultation with health department officials, it was determined that use of masks and gloves by poll workers were “not recommended.” Wolfe said her team had been advised that use of mask and gloves could “cause as many problems as they solve.”

Best practices

The most critical shortfall of all on election day is widely expected to be having enough poll workers available to physically count the ballots on election day. 

“The Health Department has advised us that having individuals 65-years-old or older, or people with underlying health conditions, at the polls is not recommended,” Wolfe told the commission. “In addition, poll workers will have to verbally affirm that they are not experiencing symptoms typical of COVID-19 on election day in order to be allowed into polling places.”

Voters who are healthy, and willing to volunteer to relieve older poll workers or those with underlying health conditions are urged to contact their county clerk as soon as possible. It will be particularly critical to have enough workers later in the day and into the evening in order to accomplish counting of the ballots on election day.

Practices recommended for election day at polling places include:

• Leaving facility doors open to minimize touching of shared surfaces

• Choosing larger rooms for polling places

• Not providing any community food or beverages

• Screening workers and observers to prevent people who are sick from entering the polling place

• Placement of signage outside polling places telling people who are sick not to enter

• Having a greeter outside the polling place to explain the procedures and prevent too many people from being inside at the same time

• Placement of lines of tape on the floors showing the proper distance voters should maintain from others

• Procedures for verifying photo IDs and signing poll books

• Requiring voters to sanitize their hands upon arrival and before leaving the polling place

• Pollworkers are asked to sanitize their hands every 10 minutes if feasible

• Cleaning of all surfaces with sanitizer every 10 minutes if possible

• Providing each voter with a pen that they will use and then take with him or her from the polling place

• Providing a phone number voters who are sick and denied entrance can call to arrange curbside voting

“Our team plans to offer a power point presentation for clerks next week to help them understand the guidance we are requiring,” Wolfe said. “The health department has also told us that taking the temperature of voters is not recommended unless it can be done by a trained medical professional present at the polling place.”

Before voting to approve the recommended best practices, some commissioners made comments.

“I want to commend Meagan Wolfe and her team for all their hard work, but my views on the advisability of moving forward with the April 7 election haven’t changed since our March 18 meeting,” Commissioner Mark Thomsen of Milwaukee said. “I believe we have an obligation to tell the public that this is a dire situation, especially in the larger cities, and I believe it is imperative for the Governor and the legislature to do something to solve this problem.”

“Will the clerks in smaller communities be able to process all the absentee ballots in a timely manner?
 Commissioner Ann Jacobs of Milwaukee asked.

“From what I’ve heard, the clerks aren’t concerned or uncomfortable,” Commissioner Marge Bostelmann of Green Lake said. “They will just have to keep running the paper ballots through the machine all day long – it may work out just fine – nobody knows.”

Curbside voting

Administrator Wolfe reported to the commission that some clerks have expressed interest in making curbside voting available in order to prevent voters from gathering inside an enclosed space together. Voters would be able to vote from their cars.

“There are numerous things to consider in making this option available,” Wolfe said. “Those include publicizing the change; verification of name, address and voter ID; providing for same day registration; ballot security; observers; and accessibility.”

The commissioners voted to okay curbside voting if all normal voting requirements are observed.

“We are being compelled to take steps we shouldn’t have to take,” Commissioner Thomsen commented. “These are steps we wouldn’t have to take if the Governor and the legislature would step in and solve the problem.”

“We are trying to take steps to make this election as safe as possible,” Commission Chairman Dean Knudson of Hudson said. “We still don’t know for sure what is going to happen – we have three pending court cases, and another one has been filed in federal court while we have been meeting.”

Knudson observed that “nothing in life is ever completely safe,” and he said this election is no exception. He said the goal of the commission is to create a process that is workable for election staff.

“We all recognize this is difficult, and our goal is to get 60-75 percent of ballots cast absentee,” Knudson said. “All we can do is hope that the turnout is similar to two million votes cast in 2016, with 1.5 million votes cast absentee on April 7, and only 25 percent of voters going to the polls on election day.”

Knudson said that the commission had been unable to determine a date that would be “safer,” given that the purpose of the ‘Safer at Home’ order is to “flatten the curve,” which means stretching out the time period that citizens will experience infections.

“This pandemic is not going to be over in a few weeks,” Knudson said. “Having elections is critical, and there is no guarantee it will be safer in May, or in August, or even in November.”

Commissioner Thomsen asked Administrator Wolfe if 1.5 million envelopes had been ordered to anticipate the full requests for absentee ballots.

“We have surveyed our clerks and determined that 1.2 million more envelopes are needed,” Wolfe responded. “We currently have 600,000 outer and inner envelopes in distribution, but our clerks are nervous and are requesting more. We would not have enough to send a ballot to every registered voter in the state, but we are keeping pace with requests.”

“What about the problem that we may not have enough poll workers to get all the absentee ballots counted” Commissioner Jacobs asked. “Are we telling our clerks they will have to stay awake all night?”

“We don’t have all the answers,” Wolfe responded. “Right now we are talking with our clerks, and we’re reaching out to the National Guard, state and public school workers, Americorps and teachers to try to recruit poll workers.

Indefinitely confined

There was much heated discussion of whether the ‘indefinitely confined’ election procedures would apply to voters who are self-isolating because of their age, potential exposure to a sick individual, or with an underlying health condition, to elect to vote as an ‘indefinitely confined individual.”

The commission was quickly able to vote unanimously to approve the first two of three proposals regarding ‘indefinitely confined voting,’ but stalled out in contention over the third.

Those three proposals are:

1. make eligibility based on a voters current circumstances without requiring that it be their permanent status

2. stipulate that using this option is not a way to avoid the voter ID requirement

3. in light of the global pandemic, allow those without access to the necessary technology to make the determination to vote ‘indefinitely confined’ for themselves

“To vote as indefinitely confined, a voter has to elect it on the basis of age, illness, infirmity or disability,” Wolfe explained. “There is no burden of proof required of the voter who elects to vote as indefinitely confined, but we do not view taking this option as a means to avoid the voter ID requirement. Voters will need to make this choice based on their current circumstances – taking this option does not require that they will be in this circumstance permanently.”

Wolfe pointed out that the current COVID-19 global pandemic means that some voters who are in isolation will not have access to the technology to upload an image of their voter ID online. She pointed out that many elderly voters don’t have access to technology, and can’t go out to a print shop, which may be closed at this time.

“Clerks cannot demand that a voter show them proof of being indefinitely confined,” Wolfe said. “We’ve had this law on the books since 2011, and the established guideline is that being indefinitely confined will be certified by the individual voter.”

“The fear is that there will be widespread abuse and fraud of this provision in the current circumstances,” Chairman Knudson reported.

“Today I saw an e-mail sent out from Senator Scott Fitzgerald stating that clerks must follow the law,” Commissioner Thomsen said. “Senator Fitzgerald said that there would be criminal penalties for clerks and voters who don’t follow the law.”

Thomsen went on to point out that all the data the commission has reviewed points to the fact that voter fraud is essentially non-existent.

“We all know that this is just a sideshow, and we know there is no big fraud,” Thomsen said. “It is the elderly voters, the backbone of voters in our state, who will be most impacted by our decision, and I don’t think we should accuse them of voter fraud.”

Ultimately, the commission voted to accept the third proposal, adding the language, “only while their travel is restricted.”

Commissioner Bob Spindell of Milwaukee asked the commission to take up discussion of investigation of the actions of clerks in Dane and Milwaukee county that are, according to him, encouraging voters to use the ‘indefinitely confined’ option incorrectly.

“This issue is being looked at,” Chairman Knudson said. “Clerks are trying to solve the problems because the governor and the legislature have failed to act. The commission has never initiated an investigation except in response to a complaint.”

The commission agreed that as this item was not on their publicized agenda, it would taken up at their next meeting on March 31.

Hospitalized electors

The question the commission addressed in their deliberations was if voters in quarantine would qualify to vote as ‘hospitalized electors.’ Wolfe told the commission that she had consulted with health department officials about how facilitating voting for individuals in quarantine could be done safely.

“The health department has recommended that the voter leave their application materials outside their door for their agent to pick up,” Wolfe said. “The issue is how long should the agent wait before being able to safely transfer the application to the county clerk’s office?”

Wolfe also pointed out that most hospitals are now restricting visitors, and that health care professionals are far too busy to be involved in assisting hospitalized voters. She said that any agent assisting such voters would need to take great care, and follow the policies and procedures of the hospital.

The commissioners voted unanimously to allow the ‘hospitalized voter’ procedure to be used for individuals in quarantine, given that a definition for ‘hospitalized’ had never been established.

“Under the circumstances, I don’t think it is unreasonable to broaden the definition of ‘hospitalized’ to ‘quarantined,’” Commissioner Jacobs said.

“We need to make it clear, though, that this provision is not just for people that are ‘social distancing’ or ‘self-isolating,’” Chairman Knudson said.

Witness signatures

The commission voted unanimously to uphold the witness signature requirements of the voting law, but encouraged voters and clerks to “become creative.”

“We need guidance to give voters ideas on how to be creative,” Wolfe said. “Voters can obtain a signature without having contact with a witness by using their phone on Facetime or Skype to provide a ‘witness signature,’ or can just leave their ballot outside their door for a witness to sign. Our public health officials, though, recommend leaving the materials untouched for 24 hours before providing a signature.”

“This is all pointing to a real gap in the law,” Commissioner Jacobs said. “There should be other means that are less onerous to fulfill this requirement – this may be too complicated for some.”

“What we’re really all hoping is that most people will vote absentee,” Commissioner Spindell said.