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2020 Election: broken laws and broken trust...

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 2020 Election

 

INTRODUCTION

Over six weeks since the 2020 election, my office still receives hundreds of emails per day from constituents, and residents across the state who do not have faith in the recent Wisconsin general elections. 

As stated before, the result of any election, including the 2020 Presidential Election, needs to be trusted by people on both sides of the political aisle. Election integrity and confidence in the accuracy of results are necessary to continue as the world’s finest example in self-governance.

Over the last several weeks, more evidence has been gathered and published demonstrating clearly that the Wisconsin Elections Commission (WEC) and Wisconsin clerks violated election laws.

Election Law

State law provides how elections are to be conducted, and provides remedies for aggrieved parties if laws are not followed.  The legislature, elected by the people, chose these safeguards and remedies if the safeguards were not followed.

The Wisconsin State Legislature found in constructing absentee voting requirements that “voting is a constitutional right, the vigorous exercise of which should be strongly encouraged.  In contrast, voting by absentee ballot is a privilege exercised wholly outside the traditional safeguards of the polling place” (Wis Stats. 6.84(1)).

The Legislature further found that the “privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse,” and statutes surrounding absentee ballots specifically “shall be construed as mandatory.”

Most of the safeguards put in place by the Legislature have particular commands, such as “shall,” “shall not,” and “may not be.” The word “shall” appears 318 times in WI Stats. Ch. 6, subchapter IV, which governs absentee voting.  The phrase “shall not” appears 23 times.  It is the Legislature’s intent in using those words and phrases to eliminate administrative discretion (AKA: wiggle room by a clerk, absentee voter, or another person seeking to influence an election).  Alternatively, the statutes could have been written using words like “may.”

Unfortunately, during the November 3, 2020 election and the recounts which followed in Milwaukee and Dane Counties, Wisconsin election statutes were ignored.  Advice from the Wisconsin Elections Commission and County Clerks was given and administered in bad faith; as a result, ballots were wrongfully cast and counted which may have diluted the votes of legitimate voters.

Voters deserve to know that every legal ballot was counted, and nothing more. They deserve a legislature that exercises its independent Constitutional judgment as a coequal branch of government to protect these legal votes.

Absentee Ballot Applications

State law says that “Ballots cast in contravention of [§6.86] may not be counted,” and “may not be included in the certified result of any election.”  Unfortunately, this language gives a degree of administrative discretion such that the ballots may be counted if the election officials believe that they are in order.  This language, if allowed to stand, will allow for a local political machine from the same political party, to unscrupulously allow ballots to be counted that might be fraudulent.

Absentee ballots are required to be accompanied by an application for an absentee ballot.  This is different from the ballot envelope and accompanying certification. Years earlier state election officials had determined that the application was not necessary and since then local and state officials have relied on that precedent regardless of the wording or the intent of the statute.

This year, between Dane and Milwaukee Counties, 170,140 votes were cast without the required absentee ballot application.  This means that approximately 17% of votes cast in Dane County and 23.6% of votes in Milwaukee County were cast unlawfully, but counted and certified due to this precedent.  In 2001, the State Court of Appeals overturned the results of an election over this very issue (see Lee v. Paulson, 241 Wis 2d 38).

Without the risk of invalidating a vote, there is no incentive to follow the law.

Absentee Ballot Envelopes

State law also prohibits incomplete ballot envelopes from being included in election results, and they cannot be corrected by the clerks.  “If a certificate is missing the address of a witness, the ballot may not be counted.”  Again we have a situation whereby discretion is placed in the hands of the election officials to choose the fate of ballots without complete information on the envelope.  We would be hard-pressed to find an election clerk who would choose to discard a ballot due to inaccurate information on the envelope. Law expressly provides for a cure solely by the voter and the witness and yet, due to past advice that is considered a precedent, Dane and Milwaukee County clerks generally did their best to fill in the missing information to keep the ballot in play for the election. 

In Milwaukee County, 2,231 ballot envelopes were altered by someone other than the voter or witness.  In Dane County, 2,238 envelopes were incomplete, with corrections on some, according to unrefuted allegations made by President Trump’s legal team.  In both Dane and Milwaukee Counties, the Boards of Canvassers noted their existence and permitted them to be counted.

During the recount, other irregularities on the ballot envelopes were apparent.  For example, clerks failed to certify that the voters met the photo ID requirement or were exempt.  Some signatures were the same for the voter and witness.  Some witness signatures were written in different handwriting, with different colored ink indicating that they were altered by someone other than the voter or witness.

Absentee Ballots

Absentee ballots are required to be initialed by the clerk or a deputy clerk.  The law requires the initials and title of the election official, perhaps because there is no other ballot security.  For instance, there is no watermark on the ballot; ballots are not printed on a particular type of paper.  Anyone could obtain a blank ballot and make duplicates.

Volunteers at the recount found hundreds, potentially thousands of ballots that lacked these initials. In one community in Dane County, hundreds of ballots were initialed with the clerk’s initials, but with as many as five different styles of handwriting.  This suggests that perhaps neither the clerk nor deputy clerk signed their initials. Attorneys for the campaign objected but were rebuffed by the Board of Canvassers, and the votes were counted.  There was no possible way to know for sure whether those ballots were actually created by the clerk’s office and submitted by an actual voter.

While these situations clearly demonstrate a lack of ballot security, let’s be clear that they are not proof of fraud.

Remedy?

With 1 in 4 ballots in Dane and Milwaukee Counties being unlawfully cast and counted, what can be done?  For identifiably invalid ballots, state law prohibits them from being counted.  For absentee ballots where the ballot envelope and certification are insufficient, state law requires a random drawdown—a clerk reaches into a face-down pile of ballots and selects a random ballot to be removed for each instance.

The Legislature also provided that aggrieved parties can request a recount.  At the recount, the candidate can make objections based on specific statutes.  The Board of Canvassers would then review the objections and decide whether votes should be counted.  If the Board fails to follow the law, the aggrieved party can file a lawsuit.

Unfortunately, the clerks did not follow the law in counting the ballots on election night.  The Boards of Canvassers repeatedly chose to not follow the law during the recount.  

Various court rulings have opened doors for action. In Bush v. Gore, Justice Rehnquist’s concurrence discussed the legislature’s plenary authority to act where there is a significant departure from the law. 

This opens the door to action under 3 U.S. Code §2, where electors, meaning voters, have failed to make a choice for the election of President, the Legislature can jointly appoint their own slate of electors to the electoral college. 

However, the most recent Wisconsin Supreme Court ruling in Trump v. Biden, the court refused to hear the case due to the “Doctrine of Laches,” a common-law action that forbids suit and/or recovery by the plaintiff due to the plaintiff’s delay in seeking court action. And the Wisconsin Supreme Court has declared that the objections raised by President Trump are barred because he brought his lawsuit too late.  The majority reasoned that people relied on the fact that President Trump was not contesting the voting procedures and acted accordingly.

Where does this leave the Legislature with its Constitutional duty to act, in accordance with federal law? Under 3 U.S. Code §2, based on the manner prescribed by the legislature to select electors, if the State fails to make a choice, then the legislature may act to designate a slate of electors. Because there was a contested case in a court of law as of December 14th, the case could be made that the reported results are contestable, so, therefore, “electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

The halls of the Capitol are all too quiet.  A handful of us are prepared to address the situation and fulfill our constitutional responsibilities.  It seems that our legislative leaders do not wish to address the situation.

While many of the ballots cast did not follow statutory protocol, how many of those were fraudulent?  I have no idea.  Nor does anyone else.

There are, without question, abundant opportunities for fraud, and that makes me angry.

We will not have election integrity unless the risk associated with getting caught committing fraud is real and significant.  

I fully intend to work toward that goal.

P.S.

These were just some of the more obvious issues.  Other problems were Democracy in the Park, “voting deputies” in nursing homes, the exponential increase of involuntarily confined voters allowing thousands of people to vote without identification, ballot drop boxes, or the swift certification of the election without input from members of the Wisconsin Elections Commission.


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