MADISON, WI (WTAQ-WLUK) – The Wisconsin Supreme Court will not tell the clerks in Outagamie and Calumet counties what to do about ballots which have a misprint and cannot be processed by counting machines. And, the justices suggested the clerks hire more help to make sure the ballots are counted by a deadline the day after the election.
Last week, Outagamie County Clerk Lori O’Bright revealed about 13,500 ballots were printed and mailed with a nicking in one of the “timing marks,” which allow the ballots to be counted by voting machines. Because of the error, the machines reject the ballot. The remedy announced was rejected ballots will be hand-duplicated by election inspectors. But because that can’t happen until election day, she warned the county would be delayed in getting results tabulated.
However, the clerks note that the Wisconsin Elections Commission suggested that being allowed to use ink to complete the timing mark — rendering it readable by the machines — could be a solution. But because the WEC didn’t offer any statutory authority for the move, the clerks asked the high court for a ruling on which method it should use.
In a 4-3 decision issued Thursday, the justices say they will not provide that advice.
“In the present case, clerks for Outagamie County and Calumet County are concerned that they cannot count and report such votes by a statutorily-imposed deadline. 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,” the decision, written by Chief Justice Pat Roggensack states.
“Here, election officials desire to ignore deadlines imposed by Wis. Stat. 7.51(5)(b), or, alternatively, to use a procedure other than the one prescribed by Wis. Stat. 5.85(3). Effectively, they ask us to render legal advice about how to proceed. We will not do that. However, a vote legally cast and received by the time the polls close on Election Day must be counted if the ballot expresses the will of the voter. 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 necessary,” the justices wrote.
A dissent, written by Justice Ann Walsh Bradley and signed by two other justices, is critical of the other justices for not considering the options presented by the clerks.
“Given the resources available to municipalities, it appears inconsistent with the on-the-ground reality of some of the clerks’ abilities to report their results within the statutory deadline of 4:00 p.m. the following day. Additionally, it may be inconsistent with the law in that it suggests hand-counting all ballots without advance permission from the Elections Commission or some ballots in violation of Elections Commission guidance In sum, the majority leaves local election officials in the lurch. Without the requested and critical guidance from this court, they are left to do their best under difficult circumstances. For the foregoing reasons, I respectfully dissent,” Bradley wrote.
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