State Supreme Court denies Outagamie, Calumet counties advice on broken ballots

Printing error in the timing mark of an Outagamie County ballot
Printing error in the timing mark of an Outagamie County ballot
Published: Oct. 29, 2020 at 4:06 PM CDT
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MADISON, Wis. (WBAY) - Outagamie County’s Corporation Counsel says Outagamie and Calumet counties are telling local clerks to duplicate broken ballots so they’ll work in counting machines. This comes after the Wisconsin Supreme Court on Thursday refused to give clerks in the two counties guidance on fixing or counting ballots which have a printing error.

As we’ve reported, the printing error left a blemish on a timing mark on at least 24,600 ballots. The blemish is about the size of a fingernail but can cause counting machines to reject the ballot.

State law doesn’t let a municipality count some ballots by machine and others by hand -- it must use one process or the other -- so the counties wanted to fill in the timing mark with a pen. Otherwise, state law requires election inspectors to transfer the votes “from an unreadable ballot to a readable ballot” to go through a voting machine -- a time-consuming process.

The petition was supported by the Wisconsin Elections Commission and the Wisconsin Counties Association.

The court denied the petition to offer an advisory opinion.

“They ask us to assume original jurisdiction and issue what amounts to an advisory opinion explaining what election laws they are free to disregard. We will not do that,” Chief Justice Patience Roggensack writes in a concurring opinion.

Roggensack said they’re essentially asking for permission to “disregard” election laws and ignore deadlines. She emphasized that the people of Wisconsin have a fundamental right to have their vote counted if it’s received before polls close on election day.

“Election officials may have to make difficult decisions regarding how to proceed as they comply with what the law requires. Obtaining more election workers appears to be a necessity,” the chief justice offered.

Three justices dissented, saying the majority are ignoring the clerks' abilities -- or inabilities -- to transfer or hand count the ballots before the deadline of 4 P.M. the day after the election. “In sum, the majority leaves local election officials in the lurch,” Justice Ann Walsh Bradley wrote. “Without the requested and critical guidance from this court, they are left to do their best under difficult circumstances.”

A statement from Outagamie County Corporation Counsel Joe Guidote says local clerks will be advised to follow the procedure set down in law to transfer votes to a readable ballot and have to meet the deadline for counting all votes by 4 P.M. on Wednesday, Nov. 4, the day after the election. He suggests you shouldn’t expect complete results on election night.

“Outagamie and Calumet counties have been working with municipalities and the Wisconsin Election Commission regarding the additional staffing and time necessary to count all the votes,” Guidote said, emphasizing some words in his statement in italics. “Per the court’s decision, and following the letter of the law, voters can be assured that all votes will be counted. The duplication process will take additional time, so the public should be aware that election results will be delayed but will be posted as soon as possible.”

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