Thousands of Absentee Ballots Might Not Count

When it comes to absentee ballots and the April 7th Spring Election, there are still more questions than answers. And now thousands of ballots might not be counted.

The six voting members of the Wisconsin Elections Commission (WEC) ended an over two-hour meeting Friday afternoon in a deadlock with regard to how to handle ballots coming to municipalities without a postmark.

“I’m not going to bury the lede,” said WEC Executive Director Meagan Wolfe. “We are having a really hard time getting any answers from the postal service itself.”

That’s complicated the efforts of the six voting members to issue guidance to election clerks on how to process thousands of absentee ballots.

State law requires that absentee ballots must arrive back at the issuing municipality by 8:00 p.m. on election day. But federal judge William Conley extended that window six days to April 13th as a result of the COVID-19 pandemic, higher than normal absentee ballot volumes and mail delays. Then, with less than 24 hours before polls opened, the Supreme Court of the United States overruled Conley and said the ballots can arrive by April 13th, but must be postmarked by April 7th.

Only one problem: the United States Postal Service no longer automatically puts postmarks on mail.

Thousands of ballots arrived back at municipalities across the state that comply with the spirit of the ruling, but not the explicit instruction to include a postmark.

“From what we’ve surmised they told all of the branches to put their local hand stamp on the ballots if they arrived on election day,” said Wolfe about USPS guidance. She said she’s been in contact with local, regional and federal USPS officials trying to get answers. “I’ve asked multiple times now to send us that guidance.”

But it doesn’t appear that guidance was universally followed.

Some ballots are coming back with postmarks, some without, some with a postmark that contains the month and year, but no day and others are illegible.

The issue doesn’t impact any ballots received by the close of the polls on April 7th. Those will be counted, regardless of if a postmark exists.

But all other ballots that don’t have a legible, dated postmark might not be. Clerks have been separating them, awaiting guidance on what to do.

The six members, three appointed by Democrats, three by Republicans, don’t agree on what to do.

The Republicans don’t want to see them counted. The Democrats want to see at least the ballots that arrived the day after the election be counted.

“Everybody seemed to assume that every piece of mail gets a postmark which it doesn’t. How many people are we going to disenfranchise over a stamp?” asked Commissioner (and Democratic appointee) Ann Jacobs.

The commission voted unanimously that ballots with legible postmarks dated April 7th or before counted, as the Supreme Court said they would. They also voted unanimously that ballots with an April 2020 stamp but no day count, if a USPS representative swears an affidavit that the stamp was only used on April 7th.

Commission Chair Dean Knudson, a former Republican legislator, said the commission had warned voters to get a postmark.

“No one watches our meetings for guidance on going to the post office and getting a stamp,” said Jacobs.

“That is general knowledge that you have to ask for a stamp if you have to prove it was mailed that day,” said Knudson.

“Oh no it’s not,” said Jacobs. “That’s the silliest thing I’ve heard.”

Jacobs moved that the clerks should accept all ballots that arrived on Wednesday, April 8th, the day after the election. She said postmark or not, the ballots would have had to be mailed on the 7th, complying with the spirit of the law.

“I’m not going to go for that. There are all sorts of things that could have happened,” said Republican appointee Robert Spindell. He said it was a slippery slope argument and soon the Democrats would be pushing for all un-postmarked ballots to be considered.

“There is no planet on which they were not in the mail on April 7th,” said Jacobs.

What we’re really missing is what about all these people that voted on time,” said Spindell. “People have to take the responsibility to make sure something is mailed on time.” He had previously moved to reject all un-postmarked ballots, which failed on a 3-3 party-line vote.

Jacobs’ motion to accept ballots received April 8th also failed on a 3-3 on a party-line vote.

“I think the rest of the motions are going to be raised at the canvas level,” said Democratic appointee and attorney Mark Thomsen.

“If we can’t agree that mail takes longer than a day… then we’re wasting time on the rest of this,” said Jacobs. “The boards of canvas are going to have to figure it out on their own with no guidance from us.”

“I’m sure the lawyers will be delighted, lots of billable hours coming out of this,” said Jacobs, herself an attorney.

Knudson attempted to offer a compromise, adopting the staff recommendation to accept the date-less postmarks and unpostmarked ballots that could meet a “proof” requirement that they were mailed by April 7th.

Spindell talked him out of it, raising the question of what proof would be. “It’s an invitation for the attorneys to talk about every single ballot,” said Spindell. Finding no second, Knudson withdrew his motion.

Thomsen said he wished Knudson wouldn’t have done that, but didn’t make the motion himself after Knudson dropped it.

Ballots That Never Arrived

While the commission spent most of its time talking about the ballots that did arrive, there is still a question of where thousands of ballots mailed by clerks went.

The issue appears to primarily affect ballots mailed between March 20th and 24th said Wolfe. Also all the ballots impacted should have been routed through USPS’ Milwaukee sorting facility at 435 W. St. Paul Ave.

But beyond that there aren’t many answers. “So far there haven’t been any leads,” said Wolfe.

She does know that the issue affects only clerks that used bulk mailing services and that the clerks have records of the ballots going out.

It’s not entire bundles that have gone missing. WEC staff has been able to confirm cases of ballots printed on the same day, with labels from the same sheet, addressed to the same house that didn’t all arrive.

Three bins of Oshkosh and Appleton ballots were found by a USPS employee, but Wolfe said getting information on which direction they were headed and how long they’ve been there has been difficult.

“We’re not even sure how many are in a bin,” she said, noting that clerks have told her it could be 400.

A total of 175 ballots got kicked back to Fox Point on election day with no explanation.

“Our ballot designs have all been approved by USPS,” said Wolfe. “We have no indication that there was some sort of systemic issue with the design or the envelope.”

“We have been in constant contact with USPS at the local level, at the regional level, at the federal level,” she said. And like everything else, still more questions than answers.