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Madison voters and state investigators are getting conflicting accounts from city and county officials about what happened after batches of uncounted ballots were discovered in the weeks after Election Day in November.
Madison’s city clerk says her office reported the first ballot discovery promptly to the county. The Dane County clerk says that didn’t happen. And the mayor’s office says it didn’t get word from the city clerk either.
The communication breakdown, wherever it occurred, meant that ballots that still could have been counted after they were found weren’t included in the state’s final tallies. The Wisconsin Elections Commission is investigating.
In a document submitted to the commission last week for that investigation, Madison Clerk Maribeth Witzel-Behl said that one of her staff members told the county about the first batch of uncounted ballots — totaling 68 votes — soon after they were found on Nov. 12, a week after Election Day, and that her staff was willing to help make sure they were counted. That was before another employee discovered a batch of 125 ballots on Dec. 3.
The document doesn’t provide evidence of the interactions, all of which were said to have taken place orally and in person. It does not name any of the employees who she said were involved in conversations with Dane County staff.
Dane County Clerk Scott McDonell vehemently denied any such communication.
“My office and the Dane County Board of Canvassers had no communication with the Madison City Clerk’s office regarding the discovery of unopened absentee ballots” before the news became public in late December, McDonell told Votebeat in a statement.
“I invite the Wisconsin (Elections) Commission to interview myself and my staff as part of their investigation,” he continued. “If I had been told about 60 or more uncounted ballots, I would have advised that they talk to their city attorney, who is an election expert.”
Statements from the mayor’s office indicate that Witzel-Behl didn’t immediately alert the mayor’s office or City Attorney Mike Haas after the two separate discoveries. Nor did she tell the state about the ballots until Dec. 18, according to timelines provided by the mayor’s office.
Haas, a former administrator of the Wisconsin Elections Commission, learned about the ballots from the commission on Dec. 19, the mayor’s office stated. He told the mayor’s office the following day.
Kevin Kennedy, a former state election chief, told Votebeat that the city attorney would have been a good first point of contact for the clerk’s office after such an incident. “The city attorney is going to advise you to tell the mayor and to reach out to the county board of canvassers,” Kennedy said, at which point vote tallies could have been adjusted to reflect the newly discovered ballots.
Disputed claims over interaction after ballot discovery
The investigation and ensuing dispute involve ballots from a polling site in the Regent neighborhood, toward the west side of Madison. Normally in Madison, returned absentee ballots are divided up in the clerk’s office and then routed to local polling places for processing and counting on Election Day. But workers at the Regent site didn’t open a carrier envelope carrying 68 absentee ballots, including one ballot that should have been sent to a different polling place.
Those absentee ballots had arrived at the clerk’s office between Oct. 21 and Oct. 28 and were marked in the state’s ballot-tracking system as having been returned by the voter .
On Nov. 12, a week after Election Day, the clerk’s office told the state, an unidentified “employee A” discovered a security seal on a courier bag carrying a sealed parcel of absentee ballots, indicating that they had not yet been counted.
That day, Witzel-Behl said, another employee, identified as “employee F” in the document, “believes he spoke to the Dane County Clerk in his office but cannot remember what the Dane County Clerk said.”
She didn’t provide documents to support the statement, and told Votebeat through a spokesperson that she had nothing to say on the matter besides what she told the election commission.
After that employee relayed the conversation to other staff, Witzel-Behl’s statement said, Deputy Clerk Jim Verbick and another office staffer were left with “a general sense that the County would not want” the ballots that had been discovered that day.
In the statement to Votebeat, McDonell said he was in the process of certifying the county’s results on that day and “did not have any conversations with City staff on any topic.”
“I find the claim that a conversation took place, without providing details about what was said, difficult to understand,” he said in an interview. Had Witzel-Behl or one of her employees advised the city attorney and county about the missing ballots on Nov. 12, those 68 ballots likely could have counted under a state law allowing the county to change its certified results.
“The frustrating part of this whole situation is that a fix allowing some of the ballots to be counted was pretty simple,” he said. He added that the clerk could have convened the city canvassing board, tallied the ballots, and transmitted the results to the county.
“The new results could have then been transmitted to the state,” he said. “That could have happened right up until the state certified the election results.”
The ballots were ultimately tallied at a Jan. 10 Madison election board meeting, but the votes were not reflected in certified results.
State guidance doesn’t outline procedures for uncounted ballots
At that meeting, Witzel-Behl addressed the lack of city processes that likely contributed to the ballots going missing on Election Day. She didn’t discuss any communication between her office and the county or state after the ballot discoveries.
In her letter to the commission, though, Witzel-Behl said she told two employees on Nov. 12 to contact the election commission about the ballots.
“Unbeknown to the Clerk,” she wrote, the employees didn’t tell the commission until Dec. 18, around the deadline of a process that clerks must follow if there’s a discrepancy at the polls between the number of voters and number of ballots.
In the future, she wrote, the office would include a procedure for this kind of incident, “including who to notify, how to notify everyone, what to document, and what to prioritize.”
“Given the exhaustion clerks experience the week after an election, having processes and procedures already in place would have made a world of difference,” she wrote.
The Wisconsin Elections Commission does not currently have specific guidance outlining what to do when clerks find uncounted ballots, spokesperson Joel DeSpain said.
Having such guidance could prevent clerks around Wisconsin from repeating Witzel-Behl and her team’s oversights, said Jennifer Morrell, a former Colorado election administrator who is now CEO of The Elections Group, a consulting firm.
“When this happens, while it’s unfortunate, usually we see states or state associations then using it as a learning opportunity to make sure it doesn’t happen again,” she said.
In Arizona, for example, Morrell said she helped the state come up with a training course for its clerks after one county failed to count properly cast ballots.
For his part, McDonell said he would “work to do whatever I can on my part to help ensure our municipal partners know what to do if a similar situation occurs in the future.”
But he didn’t mince words on the potential effect of Madison’s lapse.
“An error of this size is extremely unfortunate,” he said “and I worry it will make it difficult for voters to trust their ability to cast an absentee ballot in future elections.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
