Election Commission Working To Prevent Repeat of Madison Ballot Counting Failure
Nearly 200 Madison absentee ballots went uncounted in November.
The city clerk’s office in Madison. Shawn Johnson / WPR
Wisconsin’s Elections Commission will work with Madison officials on an order designed to improve city policies and procedures, so that a recent snafu involving nearly 200 uncounted ballots doesn’t happen again.
The commission learned in December that 193 absentee ballots from the city of Madison went uncounted in the Nov. 5 election. Those ballots would not have changed the outcome of any race or referendum at the local, state or national level.
In January, the bipartisan commission voted to launch its own investigation into how the problem occurred and why it took more than a month for it to be reported to the agency. As part of that investigation, Wisconsin Elections Commission Chair Ann Jacobs, a Democrat, and Don Millis, a Republican, took depositions from more than a dozen city and county staff members.
The election commission released those finding in draft form last week. On Thursday, commissioners voted to formally accept the scathing report, which said the uncounted ballots resulted from a “confluence of errors.” The report describes the problem as “profound failure” and said former City Clerk Maribeth Witzel-Behl showed an “astonishing” lack of urgency in trying to correct or report it.
Commission staff have drafted an order that lays out proposed changes to Madison’s election procedures. On Thursday, commissioners agreed to wait to adopt that order until next month, after working with city officials, including Mike Haas, the acting city clerk.
Haas has been overseeing the clerk’s office since Witzel-Behl was placed on leave in March. Haas also serves as the city attorney. He’s an expert in election law who previously led the Wisconsin Elections Commission as its administrator.
City staff have until Aug. 7 to provide their proposed changes to the commission. After that, commissioners are expected to adopt an order during a public meeting on Aug. 15.
Commissioner says Madison election staff worked in silos
According to the WEC’s investigation, Witzel-Behl first got an indication about a problem with some ballots on Nov. 12, when a worker told her a sealed courier bag had been discovered. At that point, the county’s canvass of votes was still ongoing, which meant Madison’s vote totals still hadn’t been certified as final.
In other words, if Witzel-Behl had taken action based on the information in front of her, it’s likely some of the 193 ballots could have still have been counted, commissioners said.
But Witzel-Behl did not tell anyone to open that sealed bag or give other instructions about what to do with it, the WEC’s investigation concluded. Workers discovered more uncounted ballots inside a sealed bag on Dec. 2 while in the process of reconciling vote totals from November.
That worker told Madison’s deputy clerk “immediately,” but Witzel-Behl said she didn’t learn about those ballots until she returned from a vacation on Dec. 10. According to the WEC’s investigation, Witzel-Behl “took no action” in response to those ballots and waited until Dec. 18 to ask anyone how many ballots were left uncounted in that bag.
Speaking during Thursday’s commission meeting, Jacobs described an environment in which Madison elections staff worked in silos.
“There were a lot of people with narrow roles who did exactly what their jobs were,” Jacobs said. “The system that existed at the time was a system where procedures were being followed for the sake of procedures, but without an understanding of why those procedures existed.”
Ann Jacobs, a Democratic appointee to the Wisconsin Elections Commission, says serving under party labels makes the work of the commission more transparent. Jacobs, who now chairs the commission, says her “mantra” is “every eligible voter who wants to vote should be able to cast their vote, have it counted.” Sara Stathas for Wisconsin Watch
During Thursday’s commission meeting, Haas apologized to the 193 Madisonians whose votes went uncounted, and said the city has completed a “comprehensive reorganization” of its clerk’s office.
“The city is not contesting the findings in the report, and is focusing its time and energy on moving forward,” Haas said. “We have put in place numerous measures to ensure that each absentee ballot is counted and tracked.”
In the wake of Madison’s ballot debacle, the WEC released a list of best practices in March, summarizing existing guidance that clerks should follow when making sure all absentee ballots are counted.
The WEC’s newly-released report concluded Witzel-Behl may have violated state election law in at least five ways. That includes abusing her discretion to run elections, failing to properly handle returned absentee ballots, failing to open and process absentee ballots on time and failing to provide complete information to the Municipal Board of Canvassers.
The legal analysis also notes that poll books for the affected wards were printed three weeks before the election, and it alleges that contributed to a failure to provide poll books with the most up-to-date information about registered voters. Poll books can be used to help keep track of which voters have received absentee ballots and which have returned them.
It would be up to prosecutors to decide whether or not to file charges, and Jacobs clarified that the WEC’s investigation was not criminal in nature.
“This is about fixing what went wrong and making sure it doesn’t happen in the future,” Jacobs said.
Deputy clerk responds to report
An internal investigation from the city‘s Human Resources Department found Witzel-Behl violated multiple city policies, including failing to “effectively hire, train, and manage employees who independently administer in-person absentee voting” and failing to effectively communicate about the uncounted ballots with key officials. The city’s investigators said they didn’t find evidence that Witzel-Behl had broken any laws.
The city released the results of that investigation in late April. At that point, Witzel-Behl had already resigned and was no longer employed by the city.
The city’s investigation did not find evidence that any other city employees violated Madison policies nor did it recommend disciplinary action against them.
“While errors were made by individual employees, these errors all appeared to be due to failures in leadership, process, and direction,” the city’s investigators wrote.
But the Wisconsin Election Commission investigation also pointed to insufficient oversight by Deputy Clerk Jim Verbick. As described in the WEC report, Witzel-Behl left for nearly month-long vacation on Nov. 13, leaving Verbick in charge.
Witzel-Behl’s vacation started eight days after the election and one day after a worker first told Witzel-Behl about the discovery of a sealed courier bag.
“There was a complete lack of leadership in the City Clerk’s office,” the Election Commission report says. “It was the job of the City Clerk to immediately take action once notified about the found ballots, and she did nothing. It was the responsibility of the Deputy Clerk to take action in her absence, and he did nothing. These ballots were treated as unimportant and a reconciliation nuisance, rather than as the essential part of our democracy they represent.”
Verbick told WPR on Thursday he believed parts of the report mischaracterized remarks he gave during his deposition.
“I did say my post-election involvement is minimal, but that was more in reference to our reconciliation activities,” Verbick said. “(While) the chief responsibility of my position is license-related, in the whole time we’re in the month and a half leading up to an election, it takes a backseat to elections.”
Verbick also said the report’s assertion that he did “nothing” in response to the uncounted ballots is incorrect.
According to testimony referenced in the report, Verbick said Witzel-Behl told him to contact the chief election inspector about the uncounted ballots discovered on Dec. 2. Verbick said he did inform the election inspector, and then reported to Witzel-Behl that the conversation took place. The election inspector also references that conversation with Verbick in her deposition, according to the WEC report.
“(Because of ) the fact that the clerk had given me that direction … I was under the impression that she (Witzel-Behl) had taken the leadership role in dealing with these ballots,” Verbick told WPR. “Had I known that there was not additional leadership being taken on this, absolutely, I would have stepped in.”
“I think everyone in our office now has the mindset, of course, that this was was an error that we should have stepped in and dealt with right away,” he added. “I think our perception is that this was being dealt with, and we just weren’t privy to some of the conversations that were happening.”
Withzel-Behl could not be reached for comment.
Wisconsin Elections Commission plans order designed to stop repeat of Madison ballot snafu was originally published by Wisconsin Public Radio.
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