Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.Madison poll workers on Election Day counted 23 absentee ballots that arrived at four polling places after 8 p.m. Tuesday, despite a state law requiring that absentee ballots be “delivered to the polling place no later than 8 p.m.” in order to be tallied. The law provides no clear exception to that deadline and says ballots not delivered on time “may not be counted.” But court rulings have given boards of canvassers broad discretion in these cases, allowing them to count ballots as long as there’s “substantial compliance” with election laws and no evidence of “connivance, fraud, or undue influence.”A past Wisconsin Supreme Court case held that election statutes don’t need to be fully complied with, so long as election officials preserve the will of the voter.City election officials instructed poll workers to count and mark the affected ballots — which all arrived by the end of the night on Monday, the day before Election Day — in case the city, county, or state decides to exclude them. It is unclear why the ballots — which had been in the city’s possession for several hours before the deadline — were so delayed in arriving at the polling places. The late delivery marks another potentially significant error in how the city handles its ballots, after it faced extensive public scrutiny and a state investigation for disenfranchising 193 voters whose ballots were misplaced in the November 2024 election.It’s the first high-turnout election run by City Clerk Lydia McComas, hired to replace the clerk who oversaw the 2024 ballot snafu. McComas said her office had informed the Wisconsin Elections Commission of the situation.Ballots left the city late and got to polls after deadlineThose ballots were in the hands of a ballot courier, who left a city election facility around 6:30 p.m. to deliver ballots to the polls. The courier arrived at those final four polling locations after 8 p.m., reaching the final one at about 8:30 p.m, delivering a combined 23 ballots to all of them, according to a statement from the city.“Due to a longer-than-usual delivery time, the very last few ballots arrived at four polling places shortly after polls closed,” McComas said.When similar incidents happened in the past, the county board of canvassers didn’t count those votes in the final canvass based on legal advice, Dane County Clerk Scott McDonell said. He said he’s waiting for more details before deciding how to proceed with these ballots at Monday’s county canvass meeting.In those past incidents, the county board decided that not counting the ballots in the final county tally “was an obvious choice based on the way the statute’s written,” McDonell said. “The statute isn’t vague.”Given the ballots’ timely arrival, McDonnell said, “they should have gotten out to the polls and should have been counted on time.”Other municipalities have counted ballots discovered lateOther election officials have at times decided to count ballots discovered after the 8 p.m. deadline, but the rules for municipalities are different depending on their procedures for counting absentee ballots.In November 2020, Milwaukee workers discovered nearly 400 uncounted ballots during a recount. A campaign representative for President Donald Trump objected to those ballots being included, but the municipal canvassing board unanimously decided that they should count.At the February 2022 election, Wauwatosa election officials discovered 58 unopened ballots. After consulting the Wisconsin Elections Commission and the city attorney for advice, the city clerk convened the Wauwatosa Board of Canvassers, which included the missing ballots in the totals.But the rules that allowed Milwaukee and Wauwatosa to count those ballots may not apply to Madison. In both of those cities, absentee ballots are counted in a central location. In Madison, absentee ballots are counted at the polling locations where the registered voter would have voted in person. In cities like Madison, election workers must deliver absentee ballots to polling places by 8 p.m. For central count municipalities, by comparison, state law only says election officials there shall count ballots received by the clerk by 8 p.m., without clarifying that they must be in a certain place by that point.The Wisconsin Elections Commission has said the 193 ballots Madison missed in 2024 could have been counted had the city made the appropriate notifications to state authorities. But those ballots were likely already at polling places on Election Day — unlike the 23 ballots here, which arrived after the deadline.Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
