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.The Wisconsin Elections Commission is facing criticism from local officials and a lawsuit filed Wednesday after it ordered Madison not to count 23 absentee ballots that arrived late to the polls in the state’s recent Supreme Court Race, a delay city officials say was caused by election administrator error. City officials also say the commission initially offered little guidance but later faulted them for making the wrong decision.As Madison officials discussed what to do with the late-arriving ballots the day after Election Day, Madison City Attorney Mike Haas reached out to Wisconsin Elections Commission administrator Meagan Wolfe for advice. Wolfe sent the relevant statute the following day, and told Madison officials to “decide, within their statutory discretion” whether the 23 ballots should be counted. Madison decided to count them.Three weeks later, WEC’s commissioners decided Madison made the wrong choice, ordering them to remove the 23 affected ballots from the count. The commissioners didn’t mince words. Chair Ann Jacobs, a Democrat, said Madison committed an “absurd error,” and GOP commissioner Don Millis called it an “epic failure.” The dispute has exposed a breakdown between state and local election officials with consequences beyond the 23 ballots at issue. Madison officials say they followed guidance from the commission when they chose to count the votes, only to be publicly rebuked and overruled weeks later. Now, a lawsuit argues that not counting the votes would disenfranchise voters whose ballots were delayed by election officials — and local clerks warn the episode could make them less likely to act decisively when problems arise in future elections.Dane County Clerk Scott McDonell, a Democrat, said the turnaround from the commission was puzzling and could demoralize clerks.“Why would anybody ask WEC for an opinion about how to handle a situation?” he said. “Here they are attacking clerks for having to make a decision because they couldn’t get advice.”Commission administrator Meagan Wolfe said that the agency was limited in how much advice it can provide for local election officials, but said the commission remains “dedicated to supporting their efforts within the scope of our administrative role.”Lawsuit alleges removing the 23 votes would be unconstitutional The liberal law firm Law Forward’s lawsuit in Dane County Circuit Court alleges that the commission illegally ordered Madison not to count 23 absentee ballots that arrived at the polls after 8 p.m. The group says the two voters it’s representing — Margaret and Robert Honig — along with the other voters, would be unconstitutionally disenfranchised “through no fault of their own” and asks the court to strike down the WEC order not to count the ballots. The lawsuit references several past rulings in the state as establishing a precedent that voters can’t be deprived of their constitutional voting rights due to election officials’ errors.This is the second recent Law Forward lawsuit involving Madison’s failure to count ballots due to administrative error. The legal group sued the city for disenfranchising 193 voters in the 2024 presidential election for a separate series of failures. It remains unclear why there was such a delay between the ballots’ arrival at the elections office and their delivery to the precincts for counting. State law requires they be “delivered to the polling place no later than 8 p.m.” in order to be tallied. Dane County authorized a separate lawsuit on Tuesday, and then filed it Wednesday early evening, as county election officials said they want clarity in the future on whether late-arriving ballots can count if they were only delayed because of election official error.That same day, Madison complied with WEC’s demand to remove the ballots from the count, but instead of removing the specific ballots at issue, the city selected 20 ballots at random and removed those. Called a “drawdown,” the controversial practice was necessary because poll workers apparently failed to follow Madison Clerk Lydia McComas’ instructions to clearly mark the late-arriving ballots so they could be identified if necessary. Only three were appropriately marked. Officials criticize the election commission for lack of direction Local election officials say the Wisconsin Elections Commission has become less willing to provide clear guidance in difficult situations — a practice that commissioners and staff say reflects the limits of the agency’s role.Haas, the Madison city attorney, has firsthand experience on the commission: He preceded Wolfe as the commission’s administrator. Her initial response to the city’s request for advice on how to handle the late-arriving ballots — which provided little direction — was in line with the commission’s tendency in recent years to “intentionally avoid giving definitive responses to specific questions,” Haas wrote in a May 6 letter to the commission obtained by Votebeat. “This has caused local clerks and their legal counsel to feel frustrated that the WEC is abdicating its responsibility under the Statutes to administer the election laws and provide guidance and advice to local election officials,” he continued.Haas also questioned why Wolfe’s response and the commissioners’ eventual order were so out of step with one another. The city relied on Wolfe’s initial guidance, Haas said, only to have the commission “contradict its Administrator without even an acknowledgment of her guidance.”That dynamic, he added, discourages local election officials from being transparent with the agency and damages the commission’s credibility.He also said that the commissioners were contradicting themselves. In its investigation into the 193 ballots that went missing in Madison until several days after the November 2024 election, the commission concluded that the missing ballots never arrived at the polling places but still could have been counted. Haas said it was “difficult to sustain” the commission’s conclusions that “a municipality should count ballots that are discovered in the Clerk’s Office days after the election but not ballots that were delivered minutes after the 8:00 p.m. deadline.”To McDonell, the Democratic Dane County clerk, the commission’s “real reticence to give advice” is undermining election officials’ trust in the state election agency.McDonell said that in the past he used to get specific advice from the commission, but now “we get a game of ‘gotcha’ instead.”In a statement, Wolfe told Votebeat that the commission provides guidance to clerks when the issues are clear. But when state law is ambiguous or unprecedented situations arise, she said, “it’s been our long-established policy to direct clerks to their respective legal counsel for interpretation.”The Wisconsin Elections Commission has six commissioners, three Democrats and three Republicans. Decisions must be made by a majority of the commission, needing at minimum a 4-2 vote. Although Wolfe — whose role as administrator is nonpartisan — is often referred to as Wisconsin’s top election official, she does not have a vote.Wolfe added that the commission can exercise its authority to issue determinations on election matters and that it’s her role to adhere to those directives, “even when I don’t always agree with those decisions.”Jacobs, the commission chair, said the commission provides clerks plenty of help, from designing election manuals and creating administrative rules to adjudicating administrative complaints. “We are doing everything we can to provide guidance to clerks on how to do things right,” she said. “We are not their 1-800-GET-HELP number for individual clerks’ every single legal need.”One of the other reasons the commission can’t provide specific legal advice, Jacobs said, is that the commission acts as a judicial body that could ultimately evaluate whether election officials comply with the law.“If you’ve got a court case, a personal injury lawsuit on a car accident, you don’t get to call the judge up and say, ‘Hey, am I doing this right?’” she said. “It cannot be our job to do their jobs for them.”Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
