Yes Virginia, Wisconsin Election Laws Are Just Discretionary

Over the past month or so we have seen the laws about sharing signature solicitors and nomination papers enforced completely and thoroughly by the Wisconsin Election Commission and two courts of law. The result being tomorrow’s primary ballot will be short two candidates for Milwaukee County Executive. See previous posts: Here and Here and Here and Here.

Well, there is a more common sense law on the books that stipulates that absentee ballots for national offices be mailed out 47 days before the official election date. This is to insure Wisconsin ex-pats living overseas and more particularly Wisconsin residents who are serving overseas in the military receive their ballots in sufficient time to vote and then return them by election day.

This year the Wisconsin general election for state and local offices occurs on April 7, 2020 and that ballot also includes the presidential primary. So mailing day for absentee ballots is February 20th. Only one ittle bitty little problem. The Wisconsin primary is February 18th. It would require superhuman effort to complete all primary election functions and get accurate general election ballots printed and mailed by February 20th. So what is a mother (or in this case, the Wisconsin Election Commission) to do?

The original plan…and this was headed for disaster the minute it was mentioned…was to send out two separate absentee ballots. Ballot A with the presidential primary choices and later, Ballot B that would also include the presidential primary data plus the general election state and local choices. You can already smell the burning leaves. But it gets better!

Then if the voter only returned Ballot A, their presidential choice would be recorded. If they only returned Ballot B, any choices selected there would be recorded. But if they returned both, only Ballot B would be tabulated. But what if they voted for president on Ballot A and not on Ballot B? Well then their vote for president would be known only to the voter and the gods. Who even thought this up? A mildly better scenario would be two ballots…one presidential only and one state/local only…requiring both to be returned in order for all votes to be recorded.

Well, everyone but everyone could see the dangers and insanity inherent in this plan…so plan B. And this is where the state law moves from a legal imperative to a discretionary activity.

Wisconsin election officials abruptly canceled plans Wednesday to send tens of thousands of voters two absentee ballots for the presidential primary, saying their new approach may violate state law but will avoid mass confusion.   

The Wisconsin Elections Commission this month caused panic among clerks across the state when it told them a quirk in the law would require them to send two absentee ballots to 81,000 voters — but count only one of them.  

The commissioners unanimously determined Wednesday they should send two ballots to only a small subset of absentee voters — the several thousand who are overseas or in the military. Other absentee voters will get just one ballot under the new plan.

But as is often the case with Wisconsin state laws, it can get more interesting the deeper you dig.

State lawmakers set rules for when to send absentee ballots in 2011 in response to the federal law for military and overseas voters. The Wisconsin Legislature wrote the law more broadly than the federal law so that it applies to all absentee voters, not just military and overseas voters. 

The requirement to send ballots early to all absentee voters was in place for the 2012 and 2016 presidential primaries, but election officials did not comply with it.

emphasis mine

And why didn’t the comply with it?

Election officials discovered the issue recently as they reviewed voting laws when a special election was called to replace U.S. Rep. Sean Duffy, who stepped down in September.

So the Wisconsin Election Commission…that stickler for an arcane nomination paper laws…didn’t even know their own responsibilities under the law and haven’t been compliant? Of course they are blatantly disregarding it this time…but they have precedence on their side. Right?

So now that they/we know the law…and since they set the dates for elections in Wisconsin, what do you think will happen next? Move the February date earlier in the month? Move the April date later (Wisconsin is already so late they have little say in presidential primaries anyway)? Or change the law?

Given all of the confusion, uncertainly, carelessness, blunders, and flat out ignorance of the law…it would be of great benefit if Wisconsin sat down and reviewed and reworked their election laws and election oversight commissions after the completion of this election cycle. jeez louize.