Commission reaffirms absentee ballots need election day postmarks to count

MADISON — Wisconsin election officials told local clerks Friday to abide by a U.S. Supreme Court ruling that absentee ballots postmarked no later than election day will count as they prepare to tally results from the state's spring election.

The U.S. Supreme Court ruled the day before this past Tuesday's election that absentee ballots had to be hand-delivered to clerks on Tuesday or postmarked no later than Tuesday to count. The court left in place a lower judge's ruling that clerks will have until Monday to receive ballots and counting can't begin until 4 p.m. that afternoon.

Returns have been a mess, with clerks receiving hundreds of ballots with no postmarks or ballots with undated markings and smudges, raising questions about whether they qualify as postmarks.

Liberal-leaning state Supreme Court candidate Jill Karofsky's attorney sent the Wisconsin Elections Commission a letter on Friday pointing out the U.S. Supreme Court didn't define a postmark in its ruling. He asked the commission to direct clerks to count all ballots received this past Wednesday regardless of whether they bear a postmark, all ballots received between Thursday and Monday that lack a postmark if it can be proven they were mailed on or before election day and any ballots postmarked Wednesday if they were mailed from an area with limited mail pick-up.

“This interpretation accords with Wisconsin's public policy of interpreting its election statutes in such a fashion as to support the constitutional franchise and give meaning to the intent of the voter,” the attorney, Matthew O'Neil, wrote.

The commission convened an emergency meeting Friday afternoon to decide how clerks should handle postmarks and other symbols on envelopes that lack dates. The three Democrats on the commission pushed to relax the postmark requirements, noting state law doesn't mandate postmarks on absentee ballots. But Republicans on the commission wouldn't budge.

“People had to take responsibility for mailing it on time,” Bob Spindell said. “The Supreme Court made a very clear ruling. There are a lot of deadlines throughout life. If you don't meet them, too bad.”

In the end, the commission voted 6-0 to direct clerks to count ballots postmarked on or before Tuesday, mirroring the court ruling. They didn't address how clerks should handle ambiguous markings beyond directing staff to determine where a stamp on some ballots that read only APR 2020 was stamp used only on Tuesday. If so, those ballots will count.

They didn't mention Karofsky's request. She's trying to unseat conservative Justice Dan Kelly for a 10-year term on the state court. Kelly's campaign manager didn't respond to an email seeking comment.

Democratic Commissioner Ann Jacobs lamented that the commission was leaving local canvassing boards to make decisions on what's valid and what isn't on their own. She predicted almost all of their decisions will be open to legal challenges.

Wisconsin was the only state that didn't postpone its spring election to protect voters and poll workers from the coronavirus. A record number of voters requested absentee ballots, overwhelming clerks and apparently the U.S. Postal Service.

Thousands of voters have complained they never received a ballot, forcing them to choose between staying home and risking infection at the polls. Voters requested a record 1.3 million ballots. Overwhelmed clerks sent out about 1.28 million. As of Friday about 201,000 had yet to be returned to clerks. It's not known how many of those outstanding ballots were mailed back by Tuesday's deadline or how many of them never made it to voters.

Officials in Fox Point said bins of ballots that clerks sent out were returned for no reason. A Republican state senator said the elections commission told him that postal workers discovered three bins of ballots destined for Oshkosh and Appleton voters that weren't delivered. Commission Administrator Meagan Wolfe said Friday her staff is unsure how many ballots were in the bins but each bin could hold about 400.

U.S. Sens. Tammy Baldwin and Ron Johnson have called on the U.S. Postal Service to investigate. Wolfe told the commission on Friday that she's been trying to get answers from the postal service for days to no avail.

Robert Sheehan, a spokesman for the U.S. Postal Service in Wisconsin, said in an email to The Associated Press that the service is aware of “potential issues” with absentee ballots and are investigating. He said he could provide no other information.

When counting does begin on Monday afternoon, the process should go faster than on a normal election night. Tallying will begin four hours earlier and clerks have been able to process absentee ballots through tabulating machines since Tuesday and should simply need to total the stored data.