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Update on the Lawsuit

I’m writing this noonish on Wednesday, Dec. 2, and it’s possible I won’t get this posted before the Supreme Court decides. As expected, the Trump campaign did file a lawsuit to throw out thousands of contested ballots, and the defendants (Gov. Evers, the Wisconsin Elections Commission, and the two counties) have filed their responses.

Having read through Trump’s petition and Gov. Ever’s response, I’m thinking that whatever the Supreme Court wants to do, they can point to some law or precedent to justify it. Several, actually.

Two things surprised me about the Trump petition: First, they filed in the state Supreme Court when the law clearly says that appeals of recounts need to start in circuit court. Yeah, it’s a dumb law, but so are the laws that they claim the county officials violated. But Evers’ petition hit them on that and if the state Supreme Court wants to throw out the Trump petition, it seems to me they could do it on that alone. (That might make the Legislature do something stupid, though.)

And the fact that Trump’s lawyers went straight to the Supreme Court gives me the sense that their intentions have more to do with publicity than victory.

Second, the Trump petition had four major complaints–the three I mentioned in my earlier blog post, and a fourth that involves only the City of Madison. Before early voting started, the City held an event in September called “Democracy in the Park,” in which they set up tables in more than 200 city parks to register voters and collect absentee ballots. The Trump campaign isn’t complaining that these little park tables registered voters or handed out forms with which voters could request absentee ballots–that part was fine. They argue that helping the voters complete the absentee ballot envelopes and collecting them turned the little tables into de facto polling stations, which violated state law in many ways.

As for the ‘indefinitely confined’ voters, it turns out the number of those ballots that the Trump campaign is contesting wouldn’t be enough to overturn the statewide results anyway. The Trump campaign didn’t object to the ones who had claimed indefinite confinement in the past; to the ones who didn’t vote anyway; and the ones that did submit Voter ID. So in the end, the campaign objected to 28,395 ballots. If only that many ballots are discarded randomly, a large number of Trump’s votes will also be discarded, and it might not change the outcome.

Evers’ response is pretty much as expected, relying heavily on timing issues. One example: Evers points out that the Trump campaign clearly knew about the Democracy in the Park event even before it happened and did not sue then. Now that thousands of ballots were cast, Evers says the Court should not accept their complaint. There’s real law and precedent behind Ever’s claim; it’s not just whining.

The argument in Evers’ response that most surprised me was a good one, though I’d never heard it before. Evers’ lawyers point out that throwing out the contested ballots would violate a 150-year-old federal law, 52 U.S.C. §10101(a)(2)(B), which prohibits denying any registered voter the right to vote in an election based on an immaterial error or omission under state law. They write: “President Trump (did) not allege fraud. Rather, they allege a series of purported instances of technical noncompliance with state election law. Under federal law, though, the standard imposed for ballot acceptance must directly relate to determining voter qualification. Any requirement that is not material to that specific function cannot be the basis for denying the right to vote. Disqualifying a ballot for any reason other than those related to determining qualification to vote is impermissible under federal law.

If I was the Supreme Court and wanted to avoid making a decision in this case, that’s the law I’d point to. “I’m not going to tell you whether I want to throw those ballots out, because it doesn’t matter. Federal law says I can’t.”

I’m going to try to sit back now and keep quiet until the dust settles. Regardless of what the Court decides, this whole mess has revealed a lot of flaws in Wisconsin election practices and in state laws–both for running elections and for contesting the results. Read the Evers petition, for example, and assume they are correct about recount law (They are.) See if you can figure out how anyone could ever contest the results of a Wisconsin presidential election. No, Trump didn’t comply with all those laws, but there are Catch-22s all over the place, with timing, with the amount of money you’d need to contest statewide instead of just a few counties, and more. Someday, a more attractive candidate might have more well-founded concerns, and our laws won’t provide that candidate with any better avenue for protesting and getting the errors corrected.

If we are serious about desiring our elections to be run fairly, transparently, and reliably, we will definitely want to clean some stuff up.

Lawsuit Eve: Wisconsin, brace yourself.

I’m writing this on Monday evening, November 30. This afternoon, the Chair of the Wisconsin Elections Commission determined the results of the presidential race, and news media around the nation declared that it’s all over in Wisconsin. They say Biden will get our 10 electoral votes, and then they move on to other news.

Only a few reporters within the state are paying close enough attention to know that it is NOT over. Even fewer–well, okay, none–have told their readers and listeners there is a significant possibility that Trump will get Wisconsin’s electoral votes.

No, I’m not dumb or partisan or under the spell of some conspiracy theory. I know that when I say one thing and the media says something else, you’re not going to believe me. So let me walk you through a few facts, which you can check yourself if you want to.

The determination today by the Commission Chair does not finally decide who gets Wisconsin’s electoral votes. In fact, the determination is the trigger for filing a lawsuit to challenge the results in court if anyone wants to. Before Ann Jacobs signed that paper, there was nothing to appeal. Now there is. And someone does want to appeal.

Trump will file a lawsuit tomorrow, seeking to disqualify enough ballots to reverse the outcome. His tweet was clear: “That case will be brought after the recount is over, on Monday or Tuesday.”

I don’t think you’ll disagree with me when I predict that the case will move quickly to Wisconsin’s Supreme Court and be decided there.

We already know the issues that will be raised in that lawsuit. As Trump tweeted: “The Wisconsin recount is not about finding mistakes in the count,” and that is true. His recount observers were not instructed to argue with the tabulation. They were instead instructed to watch for ballots that they could challenge. They found around 238,000 of them.

Trump’s lawyers said those ballots were illegally cast and told the county boards of canvass who conducted the recount not to count them. The counties boards of canvass said, “No, they’re fine,” and counted them. That is the dispute the state Supreme Court will resolve when it decides who gets Wisconsin’s electoral votes.

Trump’s Wisconsin lawsuit will not be like those filed in other states. There will be evidence: the disputed ballots. And he will not be challenging them based on vague accusations or outlandish theories. He will cite specific state laws that he will argue have been violated.

I haven’t seen the case he will file in court tomorrow, but based on the petition he filed to get the recount, we know there will be three big issues.

1) State law requires voters to request their absentee ballots in writing, but voters who went to early in-person voting sites were allowed to request their ballots orally.

The counties cannot argue that these voters submitted written applications before they received their ballots. They didn’t. Everyone knows they didn’t, and the counties don’t have any written applications for those ballots. And they cannot say the law does not require a written application; it obviously does. Wisconsin’s voter activity records enabled the Trump legal team to compile very specific evidence: not just the number of voters who voted this way, but a list of their names.

Instead, counties are likely to defend the ballots in court by saying that the absentee envelope the voters signed after they received their ballots should be considered to be the ‘application,’ a defense put forth by Meagan Wolfe, Administrator of the Wisconsin Elections Commission.

The counties are also likely to say the Republican’s complaint came too late–that if they had a problem with these voting procedures, they should not have waited until after the election; and that even if that sort of voting is illegal, throwing the ballots out is the wrong remedy because all those voters were just doing what election officials told them they could do.

I know what I think about those arguments, and you likely know what you think. But the only think that matters is what the Wisconsin Supreme Court will think.

2) State law requires clerks to return incomplete absentee ballot envelopes to the voters, but in both Dane and Milwaukee Counties, election staff made a habit of adding missing witness addresses to the absentee ballots that were missing that information. Typically, they used a different color ink or initialed their additions to show that it was they, not the voters, who completed that section of the absentee ballot. So it was easy for the Trump recount observers to pick those ballots out and challenge them.

To defend these ballots, election officials can make the same arguments as with the written application issues: that Republicans should have objected before the election, and that it’s not right to discard voters’ ballots for things the officials did.

However, election officials an additional, better defense for these ballots. In 2016, they sought and got an Attorney General’s opinion on the practice, and he said it was okay. While an AG opinion isn’t going to stand if the Supreme Court disagrees, at least it shows the clerks were not ignoring the law just because they decided to.

3) State law says that absentee voters must submit a photo ID before they can get their absentee ballots unless they are “indefinitely confined due to age, physical illness, or infirmity.” Thousands of absentee voters claimed to be indefinitely confined when they requested their November ballots–many more than in any previous election. Because neither county had a huge increase in the number of people with disabilities, it’s very likely that many of these voters simply didn’t want to have to submit a photo ID when they requested their absentee ballots.

Here’s how that happened: In March, Dane County Clerk Scott McDonell said he was getting “inundated” with calls from voters who were having trouble uploading a photo of their ID with the application. So he emailed a message to all the municipal clerks in his county and posted it on Facebook: “I am declaring all Dane County voters may indicate as needed that they are indefinitely confined due to illness. This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times.” He told Wisconsin Public Radio that during a pandemic, “We’re all supposed to assume that we are ill, and the people around us are ill.” 

Milwaukee County Clerk George Christenson followed suit.

Republicans went immediately to the state Supreme Court, where the justices unanimously agreed with them, declaring the county clerk’s advice illegal. Nevertheless, election officials in Milwaukee and Dane County continued to accept absentee ballots without photo ID from voters claiming indefinite confinement, saying they had no authority to question the voter’s claims.

As a result in November, over 68,200 voters claimed indefinite confinement in Milwaukee and Dane Counties alone. That’s 12,000 more voters than claimed indefinite confinement across the entire state in the 2016 election.

Those ballots will be the hardest to defend. Democrats won’t be able to say the Republicans should have objected before the election, because they did. Worse for the Democrats’ case, the Supreme Court sided with them–unanimously, too.

Further, there’s no argument to be made that the remedy—disqualifying the ballots—is inappropriate because the voters were innocently following official instructions. Those instructions are: “Indefinitely confined status shall not be used simply as a means to avoid the photo ID requirement without regard to whether (the voter is) indefinitely confined because of age, physical illness or infirmity, or disability.”

A different part of the Commission’s guidance might be helpful in defending the ballots: “Designation of indefinitely confined status is for each individual voter to make based upon their current circumstance. It does not require permanent or total inability to travel outside of the residence.” It will be up to the Supreme Court to decide whether this guidance means “if you say you’re confined, you are confined under the eyes of the law” or if it means “the clerks shouldn’t argue with anyone who says they are confined.” The former would help to save the ballots; the latter means only that any false claims of confinement are the voters’ fault, not the clerks’.

I can think of only one reason the Supreme Court would deny the Trump campaign’s request to disqualify those ballots, and that is the uncertainty about exactly how many there are. Surely, some of the voters truly were confined, and discarding their ballots would be unjust. But how many? And the law lacks a clear, explicit definition of “indefinite confinement;” none of them, for example, have a doctor’s note attached to their voter registration record.

But the Trump lawyers will likely be able to suggest some method of estimating what proportion of the voters claimed indefinite confinement even as they went regularly to the grocery store and dog park.

In addition to the legal arguments, think how will this case look through the political eyes of Wisconsin’s conservative justices. If they vote to uphold none of Trump’s claims, they will be excoriated by him and his followers. But if they deny all except the indefinite confinement challenge, they will:

  • Deeply embarrass the local Democratic election officials who promoted claims of indefinite confinement and deflect onto them the blame for the messed-up election;
  • Not have to worry about overturning the national result, at the same time they reduce their worry about the state Legislature doing something truly disruptive, such as trying to overturn the election and appoint the electors themselves;
  • Reinforce their fellow Republicans’ messaging about voter fraud and give support to their future efforts to restrict mail-in voting;
  • Give Trump one final, face-saving court decision after his long string of embarrassing defeats in other states; and
  • Enforce their own decision of March 2020.

All that said, I have no crystal ball. I could be wrong, and the Wisconsin Supreme Court leave Wisconsin in Biden’s column. But it is definitely not as over-and-done as the national press is portraying it.

And, for what it’s worth, I think Wisconsin Democrats need to be prepared for an adverse decision. They should be thinking now not of how they will get even or how they will contribute to even more partisan bitterness and hatred, but of how they will work to make Wisconsin’s future elections better. This mess wouldn’t have gotten this bad if our election laws and practices were up-to-date and practical. Let’s start working on that.

Will your absentee ballot be counted? The risk depends on where you live.

Summary: Even absentee ballots that arrive on time can legally be rejected and not counted. In the April election, Wisconsin officials reported they rejected 1.8% of the ballots they received on time. Officials blame voter error (most commonly, missing signatures). Voting-rights advocates are trying to reduce the problem with voter education.
However, rejection rates varied widely among municipalities in a way that indicates local administrative practices play a big role in determining each ballot’s risk of rejection that is, absentee voters in some municipalities face a much greater risk of disenfranchisement than voters in others.
This post explains some of the reasons why rejection rates vary and what could be done to make them more consistent in November and in future elections. It argues that we MUST start paying attention to administrative practices and stop placing the blame wholly on voters. It argues that the easy, critical starting point is for the Wisconsin Elections Commission to routinely calculate local rejection rates following each election.

* * *

I’ve been studying absentee-ballot processing in Wisconsin and in other states for several months now and our state’s increasing reliance on it scares me to my bones.

Here’s why: Absentee voting is necessary for a few voters, but any ballot submitted in an envelope faces a gauntlet of risks that don’t endanger ballots that are marked and cast at the polling place. It is unavoidable. While polling-place ballots go directly from the voter’s hand into the tabulator, absentee ballots are not cast until days or even weeks after they leave the voter’s hand. During that time, those ballots face multiple risks. It is inevitable that some will never be counted.

But how many? And whose?

Voters who are very careful and diligent can reduce some of these risks, but that doesn’t help the rest of the voters. Other threats are beyond any voter’s control.

If someone was taking bets now, I’d put my money on something a little north of a 3% loss rate (from all causes) for absentee votes in Wisconsin next November. That is, for every 100 early or absentee ballots marked, the votes on 3 of them will never be counted. Three percent might seem insignificant to some (not you, I hope), but if 80% of Wisconsin’s voters submit absentee ballots in November as expected, tens of thousands of votes will be lost.

That sort of shrinkage could alter the outcome if the electorate is fairly evenly divided; if the voters for the more popular candidate lose 3% of their votes by putting their ballots in envelopes; and if the voters for the less popular candidate lose none of theirs, by going to the polls and putting their ballots directly into the tabulator with their own hands. That’s the situation shaping up in Wisconsin as I write this. I can give myself nightmares if I let myself imagine the chaos and recriminations that will ensue if uncounted absentee ballots determine who gets Wisconsin’s electoral votes.

What are the risks for absentee ballots? They start the moment an unmarked ballot arrives in a voter’s home. Some absentee ballots get lost in the home before they’re even marked; some get misplaced or misdirected in transit or after they arrive at the elections office; some arrive too late; and yes, some could be lost to undetected fraud. No matter how badly we wish otherwise, fraud is a risk whenever marked ballots leave the voters’ hands long before they are counted. My Illinois friends have conniption fits when they learn Wisconsin has no measures in place that could detect the problem if a municipal clerk was to go in after hours, remove some ballot envelopes submitted by voters, and replace them with ballot envelopes containing ballots he or she had prepared. (Illinois poll workers compare the signatures on the ballot envelopes with on-file signatures just before they cast the ballots, which deters substitution.) Wisconsin voters, however, are proud of their capacity for trust, and they are not going to listen to the Illinois voters’ worries about insider fraud. So there’s no point in me talking any more about fraud.

Instead, this blog post will focus on only one risk: legal rejection of on-time absentee ballots. Based on my study of 14 municipalities, I estimate that this one problem alone will disenfranchise more than 40,000 Wisconsin voters in November if absentee voting reaches 80%. My estimate is based on 3 million ballots cast, 80% of them absentee, and a 1.7% rejection rate for those ballots — the April rejection rate I found in those 14 municipalities (8 larger cities and 6 smaller ones). (Note: the official figure is 1.8%, but I’ll use my sample just to be consistent.)

Legal rejection of on-time ballots could disenfranchise more than 40,000 Wisconsin absentee voters in November —- 1 in every 59.

Voters might be surprised to learn that so many absentee ballots are rejected, but election officials already know. The Wisconsin Elections Commission has the data and calculated the statewide rejection rate. What the Commission hasn’t done — and does not intend to do, at this writing —– is to calculate the individual municipalities’ rejection rates.

As a result, Commissioners will be as surprised as anyone to learn that individual municipalities reject ballots at rates ranging from 0% (that is, none) to at least 3.7% (that’s 1 in every 27 on-time absentee ballots!). The true top end of that range is higher unless the strictest municipality in the state luckily made it into my small sample.

In addition, Commissioners will be surprised to learn that even within a single city, rates can vary dramatically among the wards. An individual ward can have a rejection rate three times larger than that of other wards— and again, the range is probably even bigger unless I fortuitously picked the worst city in the state for my sample.

Madison rejects 1 in every 126 on-time absentee ballots. The City of Racine rejects 1 in every 27.

From my reading of studies done in other states, I knew that variable local rejection rates are a recognized problem. So when I noticed that a grant application from five of Wisconsin’s largest cities contained raw data on rejection rates (not percentages), I calculated their rates. I was shocked to discover that an on-time absentee ballot in Racine was 4.7 times more likely to be rejected than an absentee ballot in Madison!

I assumed the Wisconsin Elections Commission would be similarly concerned. I called and asked for the rejection rates for all 1,850 municipalities. I learned the WEC has the data to calculate the rejection rates, but has not done that and has no plans to do it.

So I requested the data files. Volunteers with Wisconsin Election Integrity could do the definitive statewide analysis ourselves. WEC’s response: “Hand over $24,000 and the data are yours.”

So … what you are reading right now is an analysis done at my kitchen counter with data I collected directly from only 14 municipalities by email and phone. That’s the best monitoring of Wisconsin’s absentee-ballot rejection rates you can find on this planet. None better.

That is not how it should be. Without knowing comparative rejection rates among Wisconsin’s municipalities, even the local officials cannot know which municipalities are out of line, and no one can identify realistic targets for improvement.

So if anyone from the Wisconsin Elections Commission wants to argue with my observations or estimates, I challenge them — no, I beg them — to do their own calculations of municipal and ward-by-ward rejection rates and release the results.

If the Wisconsin Elections Commission has any question or problem with the information in this blog post, they should DO THEIR OWN analysis and release the results. Prove me wrong; you have the data.

For readers who believe Wisconsin elections deserve better: The Wisconsin Election Commissioners can be reached at elections@wi.gov. Put “Message for the Commissioners” in the subject line, and tell them you think their staff should be monitoring local rejection rates more diligently than an old lady in Waunakee.

Anyway, here’s what I found out …

* * *

How and why are on-time absentee ballots rejected? Talk to any election official and you will be told voter error is the sole cause of all legal rejections. But the extreme variation in local rejection rates within even my small sample indicates that administrative practices play a big role in deciding which absentee ballots are counted, and which rejected. City of Spooner voters are simply not 8.5 times more intelligent or more careful than voters in the City of Green Bay. Something else is going on that causes Green Bay’s ballots to be rejected at more than eight times the rate of Spooner’s.

City of Spooner voters are not 8.5 times more intelligent or careful than Green Bay voters. Something else is causing Green Bay’s ballots to be rejected at more than eight times the rate of Spooner’s.

After absentee ballots arrive at the local election offices, clerks are required to review each to make sure it fulfills the requirements for a count-able ballot. First, of course, the name and address must be that of a registered voter. Some requirements are unambiguous, including those that cause most rejections: Both the voter and a witness must have signed the envelope and provided their addresses. When that information is missing, the ballot can be rejected.

But even unambiguous requirements can be applied either strictly or leniently. For example, the witness might have written their address in the wrong spot, or smeared the ink. Some municipalities, some reviewers, might reject those ballots; others might accept them.

And a high rate of voter errors cannot be blamed entirely on the voters: the root cause of poor voter compliance can be administrative. Municipalities are free to design their own ballot envelopes, as long as they contain the required elements. They are free to write their own instructions. They can pre-print more or less of the required information on the envelope. Good forms design and instructions minimize voter error; bad design and instructions encourage it. More pre-printed information fosters fewer voter errors. If I was doing a serious study of the causes of rejection-rate variation, this is where I’d look first.

Inconsistent interpretation of more subjective requirements could be another cause. Here’s an example where you can be the judge: Officials are to reject envelopes that show signs of tampering. Consider an envelope that’s been unsealed and then taped shut. Would you accept it, assuming the voter sealed the envelope before inserting the ballot, realized the mistake, and fixed it? Or would you reject it on the grounds that the envelope shows signs of tampering? Clerks and election workers are sure to will make both decisions while reviewing ballots in November.

Other things are completely outside the voters’ control. If the ballot envelope was damaged in transit in a way that could be interpreted as a sign of tampering, it can be rejected. If the glue fails and the envelope comes open, it will usually be rejected. (But before you double-seal your ballot with tape, remember tape can be interpreted as a sign of tampering.)

Clerks’ errors can also invalidate an absentee ballot. Those who observed during the 2016 Presidential recount know that absentee ballots can be rejected if the clerk neglected to write his or her initials on the envelope, but often are not. Savvy voters know to double-check for the clerks’ initials before they submit an absentee ballot, but most voters are unaware of that risk.

The next step is deciding whether, when, and how to contact the voter if a ballot is reject-able. If the voter fixes the problem before polls close, the ballot is called ‘cured’ and the votes are counted. I did not find any clerk who keeps a record of how many ballots were cured, so we do not know how many absentee voters are merely inconvenienced, rather than disenfranchised, by absentee-ballot problems.

Contrary to popular assumption, Wisconsin clerks are not required to contact the voter when they determine a ballot is flawed. Clerks sometimes just reject the ballot without telling the voter. Other times they just fix it. For example, if the witness address is missing but the signature is legible, some clerks will look up the witness’s address on other city records and fill it in without notifying the voter. I suspect it’s practices like these that explain much of the very low rejection rate in rural communities. My sample included six municipalities with populations around 2,500, four of which rejected no absentee ballots. The other two both had rejection rates under 0.6% (1 in every 167 ballots). In contrast, the bigger cities in my sample rejected 1.7% of their on-time absentee ballots (1 in every 59).

Most clerks, however, try to contact most voters who submit reject-able ballots. Again, municipal clerks have several choices:

  • Putting the reject-able ballot in an envelope and mailing it back to the voter, with instructions to correct the problem and resubmit it;
  • Sending the voter a letter telling them of the problem and inviting them to come in to the office or go to the polls on Election Day to correct the problem;
  • Invalidating the ballot and sending the voter a replacement;
  • Looking up the voter’s phone number or email on the voter-registration record (not always there), and telling the voter about the options for curing the ballot; and
  • Making only one or several attempts to contact the voter.

You can see how these practices would have different effects on the ultimate rejection rate. They offer the voters more or less time to fix the problem, and they place more or less additional workload on the voter — and one municipality will do it differently than another.

By now, I hope you’re starting to see not just how ballots in different cities face different levels of risk, but how ballots within one city could easily be treated differently, depending on the voter. Studies in other states consistently find higher rejection rates for low-income, young, old, and minority absentee voters. Election workers don’t have to make deliberately biased decisions. If they are normal humans with a normal amount of implicit bias, they have to deliberately try not to.

Janesville Municipal Clerk Dave Godek helped me understand that the problem might not be just that low-income, minority, and younger voters make more mistakes, or that election workers are biased against ballots that come from the ‘wrong’ neighborhoods. He explained that his city’s Ward 3 (7% rejection rate, or 1 in every 14 ballots) is a younger, poorer neighborhood where voters may not have the time to cure their ballots even when notified of problems. In contrast, Ward 15 voters (2.31% rejection rate) are older and more affluent, and more likely to be able to make the additional effort to cure their ballots when notified of a problem.

Another variation is how often and when the clerks perform the reviews. All the clerks I spoke with said they try to review every ballot on the day it arrives. However, if others delay review until Election Day, voters will not be able to cure their ballots.

In addition, every clerk said that even if the ballot passes its first review, it will be reviewed again later, such as when the ballots are sorted by precinct or alphabetized, and might be rejected then. If the poll worker who is opening the envelopes on Election Day notices a problem, the ballot will be rejected then.

Finally, when we allow variation to go unmonitored, we create circumstances that allow for partisan advantage. Consider this: The City of Milwaukee reliably contributes a large proportion of the state’s Democratic votes, and Wisconsin’s Republican Party is reliably front-and-center promoting strict enforcement of voting requirements. If the Republican Party does nothing more than send observers to monitor the actions of Milwaukee’s election workers to make sure that every reject-able ballot is rejected, while no one makes any similar effort in the Republican suburbs, it is likely that the same ballot will receive harsher scrutiny if it is submitted by a city voter than by a suburban voter.   

***

A functioning democracy cannot tolerate rejection rates as high or as varied as these. And the variation is almost certainly more extreme than I could observe. The likelihood that my sample (only 14 out of 1,850 municipalities) captured the most extreme examples is practically nil.

So what can be done? The problem cannot be solved by telling WEC to issue guidance in absentee-ballot review practices. They already do that. If municipal clerks reliably followed their guidance, rejection rates would not show the variation they do. The fact is that we can never expect all municipalities to honor any guidance that WEC is unable to enforce.

What we need is transparency.

1) The Wisconsin Elections Commission needs to crunch its data. Given what I know of the work ethic of most local election officials, the WEC needs only to give them accurate metrics about their performance, and most local clerks will seek to improve it. So even if the Commission does nothing more than calculate rejection rates by municipality and ward, they will help our municipal clerks to manage those rates.

After each election, the WEC should routinely provide municipalities with metrics about local rejection rates around the state. Our clerks need to know whether their own performance is normal or extreme.

2) If the Commission will not do this, the state Democratic Party should purchase the data; do the analysis themselves; and intervene before November with the municipal clerks who had the highest rejection rates in August. Considering their vigorous promotion of early and absentee voting, I believe it’s the Democrats’ moral obligation to take steps to protect the ballots of the voters they’ve convinced to forego the option of going to the polls. And given what that party is spending to get out the vote, $24,000 is a small price tag to protect the votes that they get out.

3) In addition, voting-rights groups and civic organizations must realize the problem cannot be solved with voter education alone. They should be in the lead on this issue, working to ensure that WEC provides municipal clerks with the management information, and that individual voters can know their local situation in order to make an informed choice about whether to vote absentee or at the polls.

4) Finally, individual voters can contact their municipal clerks — soon! — and ask about August’s local rejection rate for on-time absentee ballots. If the clerk does not know or cannot produce the data, the voter should recognize a trouble sign of inattentive management and assume the rate is high. If the clerk can provide the information, and the rate is over 1.7%, the voter should inform the clerk that the local rate is above the statewide average. This will likely be news to the clerk. Voters should then discuss with the clerk what will be done to bring the rejection rate into line with the average.

If you try this and do not get a cooperative response from your municipal clerk, go to your municipality’s executive, the governing body, or the newspaper. Votes are at stake here, and if on November 4, Wisconsin sees a upset victory margin that was less than the number of rejected absentee ballots, you do not want to know you sat on your hands in September.

And again: The Wisconsin Elections Commissioners do not now realize that extreme variation in local rejection rates exists, because their staff have never calculated those rates. The Commission has the data; they could analyze it. Their email address is elections@wi.gov; put “Message for the Commissioners” in the subject line.

Sitting here at my kitchen counter in Waunakee, I cannot develop any better recommendations than those. I do know this: To protect future elections, WEC’s monitoring of local absentee-ballot rejection rates must become routine. When WEC makes the information public, people and groups who have more influence and insider connections than I do must examine local absentee-ballot processing practices; objectively identify the causes of high, localized rejection rates; and develop corrective measures.

Absentee and vote-by-mail: What you need to know before you put your ballot in an envelope

Summary: The pandemic has created much giddy enthusiasm for absentee and mail-in voting, but little sober assessment of its risks and benefits. In fact, evidence of better turnout is unclear, while evidence of rejected ballots and uncounted votes is undeniable. Generally, we can predict that for every 100 voters we convince to give up polling-place voting in favor of absentee, we will lose at least two ballots. This article makes the case that putting your ballot in an envelope for an election official to cast at a later time is inherently less secure than casting your own ballot and that voters should vote absentee only when truly necessary.
This blog post is a condensed version of a more comprehensive paper, which provides additional in-depth explanation, references, and examples.


Let’s start with a quiz—just two easy questions.

1.             Imagine a polling place where voters mark their ballots by hand but instead of inserting the ballots into a tabulator, they give them to a poll worker. The poll worker puts 1 in every 110 ballots into a reject pile and casts the rest. 
Would you: a) Be happy with that practice, or b) Run screaming to the district attorney to report intolerable interference with voting rights?

2.             The State of Washington conducts elections by mail and rejects 1 in every 110 submitted ballots. Rejection rates vary among cities, however, so a voter’s odds of being disenfranchised depend on where they attempt to vote.
Would you like your state’s elections to be like Washington’s?  a) Yes. b) No.

If you answered “b” to both questions, you’re with me and the good folks of Washington State, who would like to reduce their ballot-rejection rate and make rejection practices more consistent.

There are two ways you can vote: you can cast your ballot yourself (in-person voting), or you can submit your ballot in an envelope, expecting it to be cast later by an election official (absentee voting.)

In-person voting is simple and transparent. You go to a neighborhood polling place on Election Day. A poll worker places a paper ballot directly into your hand. You mark the ballot privately, and with your own hand insert it into a tabulator. This is done in one visit, which typically takes less than ten minutes except at the busiest times of day, in the busiest elections. For what it’s worth, I timed my polling-place visit on April 7—it took me 3 minutes and 47 seconds between entering the building and casting my ballot. My son took 8 minutes because he also had to register.  

Voting at a polling place is simple and transparent.
Photo credit: Tom Gralish, Philadelphia Inquirer

Once the ballot is placed in your hand, any interference would be extraordinary, obvious, and illegal. If you spill coffee or mark too many candidates in one race, you can re-do your ballot. The risk that an in-person ballot will not be counted is close to zero.

Absentee voting is a dicier proposition. It is necessary for some voters but requires more steps over a longer time. More things can go wrong. The problems are harder to prevent; sometimes undetectable; and sometimes impossible to correct in time.

Voting from home involves more steps,
many of which are outside the voter’s view and control.

We can think of an absentee ballot’s travels, from voter request to ultimate processing by a computer tabulator, as a long pipeline. Charles Stewart III of the MIT Election Data and Science Lab estimated that for every 100 requests for absentee ballots that enter the pipeline, 79 ballots will ultimately be counted. Some of the lost 21 ballots will be those of voters who chose not to submit the absentee ballot. Many other ballots will be lost to accident, interference, or rejection. In Wisconsin’s April 2020 election, conducted during pandemic stay-at-home orders, for every 100 voters who requested an absentee ballot, almost 89 ballots were counted while more than 11 were not.

To begin to understand these leaks, let’s start near the end of the pipeline, with the marked ballots that have made their way back to election officials. Deliberate rejection is one of the leaks that is easiest to quantify because officials keep track of how many ballots they reject.

In Wisconsin, an absentee ballot envelope must contain the voter’s name, address, and signature, plus a witness’s signature and address, plus other information usually filled out by the clerk. You can view the form here. Absentee voters can be disenfranchised if any of this information is missing, incorrect, or illegible. Absentee ballots are rejected if the envelope glue has failed so that the envelope is no longer sealed when it comes time to count the ballot.

Understandably, this makes voters nervous. Washington State went to all-mail elections in 2005. Seven years later in 2012, their voters were among the least confident in the nation. Only 52% were willing to tell surveyors they felt “very confident” their votes would be counted.

Washington voters are perceptive, not paranoid. Their votes are the least likely to be counted. About 1 in every 110 Washington voters’ ballots were rejected—the highest rejection rate in the nation. Oregon was about the same—0.86%, and neither of the other two vote-by-mail states that year (Utah and Colorado) had much to brag about, either. 

A missing signature is Wisconsin absentee ballots’ biggest problem, but there are other reasons for rejection. Records of Wisconsin’s 2016 recount contain evidence of frequent local differences of opinion over the grounds on which an absentee ballot could be rejected. The Wisconsin Elections Commission (WEC) did its best to answer the local clerks’ many questions but finally could do no better than to tell local officials they were on their own in many cases to figure out which absentee ballots to reject.

The danger of subjective inconsistency is bias and sadly, it shows up in the hard data. Researchers followed 2.6 million absentee ballots in Florida’s 2018 elections, 1.2% of which were rejected. They could see that minority voters’ absentee ballots were twice as likely to be rejected as those from non-minority voters. Researchers wrote: “younger voters and voters needing assistance are disproportionately likely to have their mailed ballots rejected.  We also find disproportionately high rejection rates for out-of-state and military dependents.”

In addition to the thousands of disenfranchised voters, thousands more are inconvenienced. When election officials decide to reject an absentee ballot, they often try to contact the voters, who can sometimes with quick extra work correct the problem before the deadline. Those voters must run down to city hall to correct a flaw on an envelope or submit additional paperwork by mail—unless they just give up on having their votes counted.

But they don’t always get that chance. Pat Haukohl was a Waukesha County Board Supervisor for 18 years and is a regular voter. She voted absentee for the first time in April, and her ballot was rejected because the witness (her husband) did not include his address. She did not learn of the problem until after Election Day, from a reporter.

An absentee ballot is not yet safe once accepted. Here, again, records of Wisconsin’s 2016 Presidential recount contain revealing evidence. In Dane County alone, recounters found 66 valid absentee ballots that had been misplaced and left in their envelopes, accepted but not cast, in addition to 644 wrongly rejected absentee ballots.

At the very end of the pipeline, officials feed the ballots, now removed from their envelopes, into computer tabulators. These machines reject ballots they cannot read (e.g., smeared ink) or cannot understand (e.g., too many marked votes). Polling-place machines also reject flawed ballots, but polling-place voters are there to fix whatever’s wrong. Absentee ballots are not only more likely to be damaged (kitchen-counter coffee stains; wrinkles and ink transfer from being folded; and being torn when removed from the envelope), but absentee voters are unable to complete a replacement ballot.

Election workers cast ballots using a high-speed bulk tabulator in Duval County, Florida, in November 2018. Photo credit: Brendan Rivers, WJCT News, Jacksonville, Florida

Election workers are supposed to ‘remake’ the unreadable absentee ballots—that is, copy the votes onto machine-readable ballots and cast those instead, if they can tell what the voter intended. But elections are run by an army of temporary workers, lightly trained and supervised, who get no more than four days’ on-the-job experience every year. They don’t always know or remember all the rules. Very often, they instruct each other, and in doing so, make incorrect practices standard.

Again, the 2016 recount revealed the problems. Several Wisconsin counties discovered poll workers had on Election Day failed to remake thousands of rejected but human-readable absentee ballots. Instead, the poll workers had been pushing an override button to force the machine to count the absentee ballot even when it could not count the votes. In this way, poll workers saved themselves work but sacrificed the absentees’ votes. Election officials rarely perform routine quality-assurance reviews, so such problems go undetected and uncorrected in elections that are not recounted—that is, most of the time.

The problems I’ve described to this point affect only those ballots that successfully made it back to the election offices. But one big leak is right in the voters’ homes. Ballots might be mistaken for junk mail and thrown away. They might be misplaced; damaged; buried in a stack of bills; or set aside until too late. Among the states that report complete data on absentee voting, 36.3 percent of uncounted absentee ballots went uncounted because they arrived too late at the elections office.

Coercion may be the most intractable—and heartbreaking—cause of absentee disenfranchisement. Journalist Rebecca Solnit recounted a story like many she heard as she studied this issue. A campaign worker told her:

I can’t stop thinking about this woman I met while door-knocking for Beto O’Rourke in Dallas. She lived in a sprawling low-income apartment complex. After I knocked a couple of times, she answered the door with her husband just behind her. She looked petrified and her husband looked menacing behind her. When I made my pitch for O’Rourke, her husband yelled, ‘We’re not interested.’ She looked at me and silently mouthed, ‘I support Beto.’ Before I could respond, she quickly closed the door.”

When absentee ballots arrive in that household’s mailbox, what are the chances the wife is going to be able to mark her own ballot, in peace, with her own choices? According to the American Association for Marriage and Family Therapy, 20% of American marriages are affected by abuse, and 90% of the targets of controlling abuse are women. If those facts are true, mailing ballots to every registered voter could be undetectably disenfranchising thousands of women.

Fraud is more of an illicit tap into the pipeline than a leak—and it does exist. In a practice known as ballot harvesting, political operatives collect absentee ballots from voters and deliver them to election officials. Honest operatives may provide a genuine service to voters, such as reviewing the envelopes to make sure they are filled out correctly. But the practice can just as easily be corrupt. Ballot collectors can supervise the voters while they are completing their ballots to dictate, coerce, intimidate, or pay them for their votes. Once out of the voter’s sight, collectors can spoil the ballots to make them uncountable or dispose of them. In Wisconsin, simply opening the envelope is enough to get an absentee ballot rejected. Democrats who say fraud doesn’t happen are shooting themselves in the foot. It may already have cost them a congressional seat.

Another opportunity for fraud created by large-scale absentee voting is the possibility of providing voters with faulty or fraudulent materials. This has already happened twice to me. Before an election several years ago, I received an unsolicited blank ballot and return envelope—with the envelope addressed to the wrong municipality. Had I been inattentive or naive, I might have mailed it and skipped going to the polls on Election Day. Shortly before the April 7 election this year, I received a form for requesting an absentee ballot, also unsolicited. It was addressed to the correct municipality, but my preprinted name was incorrect: Kim, rather than McKim. In a recent Georgia incident, the Secretary of State mailed materials that gave absentee voters the incorrect date for a rescheduled election—the ballots said May 19 and the election was scheduled for June 9.  

Those incidents might have been honest mistakes, rather than deliberate attempts to interfere. But accidents demonstrate things that could be done deliberately and may provide cover for them.

Earlier leaks in the pipeline prevent ballots from even reaching the voters. I will skim over this information because in May the Wisconsin Elections Commission issued an excellent 24-page report that described those leaks well, with solid data and description of real-life problems that affected absentee voters in the April 7 election. The report describes only the first segments of the pipeline because those are the only parts for which WEC has responsibility.

The April election marked Wisconsin’s first, sudden, foray into large-scale vote-by-mail, but many of the snarls illustrate problems that could crop up in any vote-by-mail election. WEC Technology Director Robert Kehoe explained at the Commission’s May 20 meeting that staff will correct the problems they can, but he would not promise no others would arise: “Until those things happened, they were unanticipated, so other unanticipated things can happen.”

Among the problems: The City of Milwaukee submitted a large batch of 8,607 approved absentee ballot requests to the WEC computer so that mailing labels could be printed. The batch was still running when state staff shut down the system after midnight for maintenance because they believed all batches submitted during the workday had been completed. This caused the system to indicate that the requests had been processed when they had not.

Those are some of the risks. So what about the benefits? Proponents believe early, mail-in, and absentee voting increases turnout. That belief persists even in the face of evidence to the contrary. Here, for example,  is reporter Jesse Opoien, commenting soon after the November 2016 election: “The decline (in turnout) — down nearly four points from 2012 and three points from what state elections officials projected — was all the more stunning as it followed record-high early voting numbers.”

Reporters like Opoien don’t seem to realize the possibility that heavy early voting could be nothing more than dedicated eager voters doing their dedicated eager thing, while the less-engaged marginal voters (the ones whose conduct makes the difference between high and low turnout) are unexcited by the opportunity to submit a ballot a month before Election Day. Or worse, that the low-enthusiasm voters read the news about thousands of eager early voters; concluded the election was already decided; and chose not to vote.

Academic studies show mixed turnout results at best, and none find large effects in either direction. Unfortunately for researchers, states rarely make one change to their election laws at a time, so we cannot know which might have affected turnout. For example, Colorado’s vote-by-mail law was adopted in 2013 as part of a comprehensive package that included same-day voter registration at the polls, expanded in-person voting to several days; added provisions that reduced deactivation of registered voters who miss several elections and included a ‘less onerous’ Voter ID requirement.  

The most frequently offered explanation of why absentee voting might increase turnout is convenience. The home page of the National Vote At Home Institute, an organization that promotes voting by mail, explains that voters:

don’t have to take time off work, drive to a polling place or stand in long lines. Vote-by-mail equally serves everyone from seniors and disabled voters, who might have trouble getting to the polls, to rural voters a long way from one, to a single parent working two jobs, a busy family, sick kids, or someone with an unexpected business trip.”

But what is convenient? The rural voter might like an excuse for a quick visit into town and nobody—nobody—finds absentee paperwork pleasant or convenient.

Absentee proponents cite other problems with in-person voting that could be solved in ways that don’t expose ballots to additional risks. For example, some vote-by-mail proponents say absentee voting gives them an opportunity to understand what races and candidates are on the ballot before they arrive at the polling place, although that opportunity is not denied to them now.

Some mail-in voters imagine absentee ballots are hand-counted. In fact, absentee ballots are counted by computers from the same few companies that provide polling-place equipment. Their software is just as vulnerable to hacking at the source or before it reaches the computers. Absentee voting does require hand-marked paper ballots, and that’s a good thing. But paper ballots’ security benefits are obtained only when the ballots are used in routine outcome-verifying audits of the type recommended by national election-security authorities—and Wisconsin officials still won’t do those.

Another touted benefit of absentee voting is avoiding long lines at polling places. However, the waiting-line problem is often exaggerated. In real life, few voters encounter Election-Day lines in excess of 10 minutes.  And if voters demanded their election officials follow accepted best practices, even that could be improved. Long lines would form only on rare occasions such as power outages.

Knowing what we know about benefits and risks, how would large-scale absentee voting affect Wisconsin’s November 2020 election?  Unfortunately, no signs point to good results in Wisconsin if voters rely on absentee ballots at the rate they did in April. 

The law of diminishing returns presents Wisconsin with one enviable barrier to increased turnout. Wisconsin turnout is already reliably high compared to other states. In the 2016 Presidential election, Wisconsin voters turned out in greater numbers (69%) than those in three of the four states that conducted all-mail elections that year: Oregon (68%), Washington (66%), and Utah (58%). In fact, only four states had better turnout than Wisconsin, only one of which was a vote-by-mail state, Colorado (72%). None of the top three states—Minnesota (75%), Maine (73%), and New Hampshire (73%)—were vote-by-mail states.

Further, the states that claim positive effects all have absentee-voting procedures that are easier and simpler than Wisconsin’s. In particular, absentee voting amplifies the vote-suppressing effects of Wisconsin’s strict Voter ID law. Voters must not only possess the right kind of ID, but must also have a way to submit it electronically.

Things don’t look any better on the risk side of the equation. The WEC report described what can go wrong in the part of the pipeline managed by a professional, full-time election staff. The rest of the pipeline, in Wisconsin, is managed by 72 county clerks, 1,850 municipal clerks, and thousands of poll workers, without oversight by the WEC. It is unrealistic and unfair to expect them in a few months to develop and practice reliable procedures for processing a flood of absentee ballots.

Giving the United States Postal Service a key role in November adds another layer of risk. The USPS just isn’t set up to be a critical moving part of the elections machine: Witness the US Supreme Court’s ruling that ballots postmarked by Wisconsin’s April 7 Election Day could be counted, only to have it come to light that the USPS does not put postmarks on all the mail. And with the current administration’s stated intent toward both the USPS and voting by mail, reliable operation of the USPS is far from a sure bet for November.  

We take the neighborhood polling place for granted. It is too plain, too obvious, too old-school to have many enthusiastic advocates. It has no novelty value. It doesn’t fit with our modern individualistic lifestyle. Even before the pandemic, we were shopping online instead of visiting local retailers. We were socializing on Facebook, not on the sidewalk. Voting from a kitchen counter is compatible with our e-lifestyle in a way that visiting with our local officials and neighbors at the town hall is not. 

If absentee voting becomes standard, as I fear it will, there are a few things responsible voters can do, collectively and individually, to minimize the damage.

First, we must expect professional-caliber management from our local election officials and hold them accountable. Take a look at that May 2020 report from the Wisconsin Election Commission. That is what it looks like when officials hold themselves accountable: 1) The WEC collected solid data on performance; 2) They performed solid investigation into things that went wrong; 3) They made a public commitment to measurable improvement.

Expect the same of your local election officials. Give it a try: Call your municipal clerk and ask about the absentee-ballot rejection rate in the most recent election; what the performance target is for the next election, and what he or she is doing to meet it. A clerk who is actively managing his or her operation will know those things. If your clerk doesn’t, arrange a meeting between the clerk, you, and other local voters to figure out how to make absentee ballots more secure in your community.

And don’t encourage any other voter to vote absentee until you do.

As an individual, here’s a checklist of what you should be prepared to do if you plan to vote absentee. However, be aware that even if you follow each of these steps, some risks are outside your control.

Personally, I am not going to bother with any of the extra work required for absentee voting, nor am I going to accept the extra risks. I will look at my local ballot ahead of time and research my options.  I will then visit my neighborhood polling place on Election Day and follow any public-health advice then in effect. I will say “Hi” to my neighbors and “thank you” to my municipal clerk and the poll workers; mark my ballot privately; and cast it with my own hand directly into the tabulator.

Simple. Easy. Convenient. Secure.


  • Vote-by-mail has not yet been discussed in any meeting among participants in Wisconsin Election Integrity. This article reflects only the references cited and my own observations, not the consensus of the group.
  • Thanks to reviewers Dr. Barry Burden, Director UW-Madison Elections Research Center; Charlotte Goska, Coalition of Voting Organizations of Brown County; my husband Keith Nelson; and Rebecca Alwin. Their suggestions and corrections were valuable; any remaining flaws are mine. The Wisconsin Elections Commission was also provided with a draft; this post will be updated if they offer any comments.


Whatever you think of April 7, the WEC did its best.

As state elections authority goes, the Wisconsin Elections Commission has arguably the least among the 50 states. People who follow elections policy in other states usually require serious attitude adjustment and re-education when they turn their attention to Wisconsin. If they don’t learn about our state before commenting, they are likely to make some bad calls.

A recent ad, paid for by a group called Voter Rights Action, is a good example. Voter Rights Action spent good money to purchase an ad in the Milwaukee Journal Sentinel, and maybe elsewhere, that has naivete written all over it. I’ve copied the ad below.

It says: “Dean Knudson and the Wisconsin Elections Commission failed to prepare and keep voters safe. Like making it easier to vote by mail. Or reducing crowding at polling places.”

In fact, despite their meager authority, the WEC and their staff probably did as much or more than anyone else, while facing ridiculously partisan headwinds in the weeks leading up to the April 7 election, to make that election come off as well as it did. On April 6, I don’t think anyone predicted the turnout that Wisconsin voters achieved.

If vote-by-mail is too restrictive in Wisconsin (it could be made easier), that is the Legislature’s fault. The WEC has no authority to suspend or revise statutory requirements (e.g., a witness signature, a photocopy of a voter ID) that make it harder to vote by mail in Wisconsin than elsewhere. But WEC staff do an excellent job, through their award-winning web presence, to make it easy for voters to get timely, correct, helpful instruction on how to comply with those laws.

Any voting-rights activists and concerned citizens who want more or easier vote-by-mail need to focus their energies not on complaining to WEC, as that naive ad recommends, but on contacting their state legislators or working to replace them. I challenge any complainer to suggest an improvement to the MyVote website. I know I cannot think of one that I’d make.

When it became apparent that in-person voting during a pandemic was a possibility, the WEC staff went even farther above and beyond the call of duty. They quickly developed and distributed excellent instructions on how to create polling places that maintain social distancing and minimize voter and poll-worker contact with unsanitized surfaces. They could not predict, as no one could, how the court cases and political battles were going to come out, but nevertheless provided timely practical guidance to the local clerks about how to maintain safe voting in a pandemic if they needed to–which they did, as it turned out.

And again, if you are angry that the election was not postponed, don’t complain to or about the staff who knocked themselves out to make sure that the election stayed as safe as possible, within whatever constraints the legislature and courts were going to impose. The culpability lies with the legislature, so direct your anger there.

The fact that a few big cities–Milwaukee in particular–opened only a few polling places was a shared responsibility between the Legislature and the municipalities themselves. The WEC has neither the authority nor the resources to force or help municipalities open more polling places than the municipality says it can. (And isn’t it embarrassing for the Wisconsin civic community that the decision whether even to investigate what went wrong with the poll closings or could have been done better is jerked around by partisan passions and agendas?)

Anyone who follows this blog or Wisconsin Election Integrity’s Facebook page knows that I believe the WEC could exercise stronger leadership on the fully nonpartisan, no-brainer issue of election-securing audits. But as far as the events leading up to the April 7 election, the WEC deserves nothing but our thanks and praise.












Next November, know this: Wisconsin election officials were warned and could have been prepared.

Summary: Wisconsin’s election officials have been informed of adversaries’ desires to sow chaos in American elections. And they have been informed of vulnerabilities in the voting-machine system that they cannot secure. And they have been informed of modern canvass practices capable of detecting and correcting any hacked results. And yet eight months before the Presidential election, Wisconsin’s election security plan still contains no mention of, or funding for, results-securing audits. This blog post is a last-ditch effort to motivate election officials to action by making sure that, if Wisconsin wakes up on November 4 to electoral chaos and no way to fix it, our election officials cannot claim they were not warned and could not have been prepared.

In 2012, former municipal clerk Jim Mueller spoke extemporaneously to a priority-setting conference of the Wisconsin Grassroots Network. I was there, but at the time naïve about election security.

Mueller told us that, as a local election official, he was required to sign a statement after every election attesting that the results were correct. He felt panic and despair when he realized Wisconsin’s election-administration procedures gave him no way to know whether that was true.  

He explained that the voting-machine companies legally prohibit independent review of the vote-counting software. He told us that although the ballots are public records and local clerks their legal custodians, state election officials aggressively discouraged clerks from hand-counting the votes before they certified results. He described the blow-back from his fellow clerks when he proposed responsible review procedures. They didn’t want him to contradict their favorite labor-saving myth: Trust in the voting machines is a Good Thing.

Mueller’s passion led to the formation of Wisconsin Election Integrity. And for eight years, we’ve been pressuring the state elections agency—first the Government Accountability Board, now the Wisconsin Elections Commission—to promote canvass procedures that verify the correct winners before officials declare results final.

None of us present at WEI’s founding were aware of a growing national movement for secure elections. At that time, however, the federal Elections Assistance Commission was already funding pilot tests of an efficient, practical method of using paper ballots to quickly verify the correct winners, known as risk-limiting audits.

In 2020, awareness of the threats is fully mainstream. We’re no longer “conspiracy theorists” for acknowledging that no one can truly secure the voting machines. Vendors have testified under oath before Congress that the machines all contain programmable components manufactured in China, and that their technicians can and have installed unauthorized remote-access software on the county computers used to program the voting machines. It is those who deny the existence of vulnerabilities who are now considered irrational, not those who point them out.

Solutions have also become mainstream (at least outside Wisconsin). Federal agencies including the Department of Homeland Security are unanimous in promoting protective election audits. Groups as esteemed as the National Academies of Sciences promote routine outcome-securing audits. The House of Representatives has passed legislation that would require them. (It’s being blocked in the Senate by Mitch McConnell.)

As a result, this November officials in all or parts of as many as 20 other states will conduct audits that verify the correct winners. It’s unlikely any will detect hacked results because the protective audits’ primary value is deterrence: Why bother to mess with a state’s voting machines if officials are going to calmly detect and correct your handiwork before they declare the results final?

But in Wisconsin, if nothing changes between now and November, election officials will once again certify only unverified ‘winners’.

Sadly, half-measures have even made Wisconsin more, not less, attractive to chaos-seeking hackers. If WEC follows the same playbook in November that they have in the past, they will order municipal clerks to audit a few hundred randomly selected voting machines. But if those audits reveal a miscount, WEC has no plans for response and recovery before the certification deadline. They’ve developed no procedures capable of verifying the true winner. They’ve never said that the results of the hand-counted paper-ballot audit should be binding on the certified results.

Audit practices like those—designed only to reveal but not to correct any hacked results—make Wisconsin catnip for adversaries who want only to disrupt. Those adversaries want their handiwork to be detected. Then they want the system to freeze up, to be unable to regain its legitimacy, and collapse in recriminations and vicious legal battles. And it will. No matter how obvious the hack, attorneys for the Election-Night ‘winner’ are not going to smile and nod if WEC decides to prescribe novel canvass procedures only after seeing the Election-Night results.

The reason for this blog post is the same reason I testified yesterday at the WEC meeting, and it’s not a pretty one. I’m publishing this so that, if things go south next November, there is public proof that the Commission was warned. Because of the Commission’s resistance to giving voters a seat at the table during its deliberations, a ham-handed warning like this is the best a voter can do to motivate improvement.

WEC’s election-security plans contain no provision for results-securing audits because those plans are formulated inside a tightly closed feedback loop between local officials and WEC staff.

But local clerks are not knowledgeable about any security measures WEC does not teach them. For example, Commissioners spent significant time at yesterday’s meeting focusing on security education for the local clerks and expressing frustration with some who have not yet embraced even basic safeguards.

Yet nearly every page of the materials staff prepared for that meeting contained reference to local clerks’ input, opinions, surveys, and preferences—and none to voters’ or experts’. In one breath, the Commission was bemoaning the local clerks’ naivete and lack of commitment. In the next, they were relying on them as their exclusive source of security guidance.   

For eight years, I and other WEI participants have written letters and testified in the five-minute blurbs the Commission allows. Last year, Chair Dean Knudson did ask me for a letter about risk-limiting audits, but because public input is the thing-they-must-not-admit, I received no response or even acknowledgment that they’d received it. In fact, I cannot remember ever receiving the Commission’s response to anything but legal open-records requests.

So, it comes to this icky way to try to get WEC to exercise leadership for truly results-securing audits, after eight years of polite requests. This blog post is evidence: If Wisconsin election officials still have no orderly procedures in place to detect and correct hacked results, and we wake up on November 4th to find that Trump has carried Wisconsin on the basis of enormous support in Milwaukee County, or that Sanders carried the state thanks to Waukesha County, the Wisconsin Elections Commission cannot say they were not warned, and could not have been prepared.

Marking Wisconsin’s ballots: Pens vs. computers

In brief: Vendors are promoting and officials are buying the idea that voters should give up their pens and mark ballots with computers known as ballot-marking devices, or BMDs. Why? How is that better than hand-marked paper ballots?
As with many election-administration issues, the debate features strong opinions and little objective data. Much of the relevant research is conducted by people with a financial or professional interest in promoting BMD technology. Little is conducted by independent unbiased researchers, and only local print shops have a financial interest in promoting hand-marked paper ballots.
In this blog post, I’ve tried to present the best arguments for BMDs and to cite unbiased data (I’ll edit it to add more as I find it.)
Bottom line up front: BMDs are necessary for voters with disabilities, but when used by a majority of voters, they address only insignificant problems while introducing serious risks for both security and voter confidence, plus additional cost.

Everyone knows how to fill in an oval. We’ve completed standardized-test ‘bubble sheets’ since we were kids. And most of us understand that computers tabulate the results by reading (techies say ‘interpreting’) the marked ovals. So we understand, basically, how hand-marked paper ballots work.

Ballot-marking computers are less familiar. Originally promoted in the early 21st-century to enable voters with disabilities to mark ballots privately, manufacturers have more recently promoted ballot-marking devices (BMDs) for all voters. They used to call these machines ‘accessible’ machines; now they call them ‘universal’ machines. Voters select their candidates on a computer touchscreen or other electronic input device, and the computer prints a marked ballot. They then insert the ballot into a tabulator, sometimes archaically called an ‘opscan,’ which reads and tabulates it. BMDs used in Wisconsin include the ES&S ExpressVote and the Dominion ICE.

Many of the BMDs’ drawbacks are obvious, so I’ll skim over them in just five paragraphs. Anytime you replace any manual task with a computer, you introduce possibilities for new types of error, malfunction, and manipulation–and the need for new security practices to address those risks. Misprogramming could cause the BMDs to print votes for candidates other than those the voter selected, or to print no vote even though the voter made a selection. As with other elections technology, risks include mistakes or corruption by any of the many people within voting-machine companies and local election offices who have authorized access. If any of their operations are compromised, unauthorized people might get access, too.

In addition to the risks of misprinted ballots, there’s little debate that voting takes more time when each voter has to scroll through several screens; review their selections once on the touchscreen; and review them again after the ballot is printed. Add that to the fact that election clerks cannot quickly or cheaply increase the number of ballot-marking stations during heavy turnout elections or times of day, and you have a recipe for longer Election-Day lines.

But the most heated debate is over whether voters are able and willing to verify their computer-printed ballots. Elections must start with correctly marked ballots. With hand-marked ballots, voters reflexively verify the correct marks. As we lift our pen from the paper, it would take effort not to notice whether the pen made the mark we intended it to make. But when a computer marks our votes, verification requires the voters to make a separate, deliberate effort to check the computer’s output. BMDs place this critical security responsibility entirely on the voters: if the BMD starts misprinting votes, only voters—not poll workers, not auditors, not recounters—can notice.

But that’s not all: election officials must be prepared to act on voters’ reports of problems if the election is to be safe from misprinting BMDs. The unalterable fact is that BMD-based election results cannot be confirmed unless voters 1) reviewed the printed ballots; 2) noticed any problems; and 3) reported those problems to officials, and unless officials then 4) treated voters’ reports seriously and 5) took action to diagnose and correct any problems. This challenge is unique to elections: You cannot think of any other business or government function where managers responsible for the computers rely solely on customers to report problems, but then when customers do, the managers have no way to know whether the problem was with the computer or the customer. No one has yet demonstrated that any of those five things can be done reliably in real-world elections, and several studies indicate they cannot.

Less obvious but just as unalterable is the fact that BMD-printed ballots cannot be used in the most critical type of election audit: one that seeks to verify which candidate was selected by most voters. BMD-printed ballots don’t work for those audits because they preserve no direct evidence of either the voters’ selections or their verification. (For a visual explanation of this point, see the image at the end of this post.) When BMD-printed ballots make up only a small proportion of the total ballots, an audit might still be able to confirm the correct winner. However, if a large proportion of the ballots provide no evidence of either the voters’ selections or their verification, anyone working to established professional audit standards must throw in the towel.

The benefits of BMDs are quickly evident only to those who have better-than-average knowledge of elections administration. Cynics say the manufacturers’ motive is simple. As states replace paperless machines, vendors see a revenue-enhancing opportunity of the sort that other companies might brag about in their annual stockholders’ reports. (“We’ve found a way to sell $5,000 computers instead of pens!“) But America’s major voting-machine companies are privately owned and have no stockholders, so even if this is their strategy, we can’t confirm it.

In public, BMD proponents usually point to a few legitimate problems they believe BMDs solve: Badly hand-marked ballots; the need to store multiple ballot versions at some polling places; and the needs of voters with disabilities. Officials and voters need to ask: “How serious are these problems, and do BMDs solve them better than less risky or less costly solutions?”

Arguments in favor of BMDs, Round 1:
MESSY VOTERS

BMD proponents will tell you that messy hand-marked ballots are intolerable. My own county clerk is outspoken on this point. I don’t have a ready quote but if you ask him to share his thoughts on voters’ oval-marking abilities, his answer will make you ashamed you ever imagined your careless, stupid, sloppy fellow voters were capable of such a task.

Pen-wielding voters can get messy. They write random comments on their ballots and mark Xs over ovals instead of filling them in. Others get confused and mark too many candidates in one race. That’s called an overvote and if not caught, it disenfranchises the voter in that race. Hand-marking voters might accidentally skip a race, particularly if ballot design is poor. Finally, I’ve had a BMD proponent tell me that voters sometimes accidentally fill in the wrong oval, but I have no idea what sort of evidence could prove that or why that problem wouldn’t also occur with touchscreens.

I’ll come back to ballot design, but individual voters’ sloppiness does not threaten election outcomes. Only a tiny number of hand-marked votes are ruined in a way that could be prevented by using BMDs, and those errors affect all candidates randomly.

Yes, individual voters can be sloppy, but the truth is that tabulator technology (not BMDs) has already reduced this problem to insignificance. When a voter casts an overvoted ballot, the tabulator identifies the problem and gives the in-person voter a chance to correct it or cast it. (Mail-in voters are not present to fix overvoted ballots rejected by the tabulators, but BMDs can’t help them anyway.)

The tabulators’ ability to interpret idiosyncratically marked ovals has also become impressive in recent years. (There’s data on this; I’ll add it when I locate it.) Modern machines have no trouble reading any color or composition of ink. Professor Douglas Jones of the University of Iowa Computer Science Department told me he tests machines with everything up to and including glitter pens, and they perform well.

But most importantly, the problem of ambiguously or incorrectly marked ballots is very small to start with. Anyone who has participated in a hand count can tell you that probably only one hand-marked ballot in every 250 or so is oddly marked. Of those, only a tiny fraction are marked so badly as to render the vote uncountable.  The Dane County Clerk (the one who so disdains voters’ ability to mark ovals) posts digital images of the ballots online, so if you have the storage space on your computer and the time, you can examine thousands of real ballots yourself. Try it: how many hand-marked ballots (on those linked files, the individual files ending in “i” for ‘image’) do you need to examine before you find one that is overvoted or mismarked in any way? Preventing that small a number of errors cannot possibly be worth the cost and risk of making everyone use a computer to mark their ballots.

Recount data are objective and can help us quantify the problem. In 2008, the state of Minnesota performed a recount of a US Senate race in which 2.9 million ballots were hand-counted. Advocates for both major candidates aggressively looked to find votes they could challenge. They found plenty of officials’ errors—misplaced ballots, mishandled absentee ballots, and more. But by the time they were done, they could find only 14 marked ovals that had to be adjudicated by the state elections board. That’s one fatally mismarked vote in every 206,111 votes, or 0.000485%. That is nowhere near enough to justify taking on the risks of computer-marked ballots.

Wisconsin’s 2016 recounters found many of the same problems. They did not record their findings as thoroughly as Minnesotans did, but not one of the 72 counties’ recount reports noted encountering even one ambiguously marked oval. The WEI hand count of 4,580 ballots in Racine County found no fatally mismarked ballots, either (other than carbonless ink, which is not a problem for modern tabulators.) So whatever Wisconsin voters’ error rate is, it is less than 0.022% (22 thousandths of one percent)–again, not enough to justify the risk of universal BMDs.

What little data BMD proponents have offered me to quantify the hand-mismarking rate has been irrelevant. David Becker, Executive Director of the Center for Election Innovation and Research (CEIR, a voting-equipment company) tweeted me a list of recounts he claimed had found decisive rates of voter error. I looked into each. None were reported to have found even minor levels of ballot-marking errors. As in the Minnesota and Wisconsin recounts, the significant reported causes of miscounts were officials’, not voters’, errors. When I gave him one more chance to provide data showing that voter errors have affected outcomes, he replied: “Facts are stubborn things … but still, there are many, many elections where ambiguous (hand-marked votes) exceeded the margin. Not even arguable. But happy to help point you in the right direction. I think we’ve reached the end of the constructiveness of this convo.

That’s not the reply you get from someone who possesses evidence to prove his point.

If anyone were to compile data about hand-marking error rates to inform this debate, they would need to exclude mail-in ballots. Any poll worker knows mail-in ballots are prone to mishaps like soaking up coffee stains and getting fouled with envelope glue. But that’s not relevant to the advantages of BMDs, because BMDs cannot help at-home voters anyway. I’ve also had BMD proponents refer me to data about error rates on standardized tests’ bubble answer sheets. But I see no reason to assume the error rate in marking ballots (where ovals are directly beside candidates’ names) is similar to the error rate in taking standardized tests (where ovals and questions are on separate documents.)

Aside: Speaking of an analogy with standardized testing, imagine that the ACT and SAT companies switched to having students select their answers from a touchscreen; printing out the answer sheets with bubbles already marked, and telling the students they must verify the printed answers because managers have no way to tell if the machines accurately recorded their selections. See any problem?

In contrast to individual errors, poorly designed ballots are a more serious problem. Poor design can systematically disadvantage one candidate or favor another for every voter — not just the careless ones. It is, therefore, more likely to affect an outcome.

But poor design is a problem for both printed ballots and those displayed on a computer screen. Officials have designed printed ballots that ‘hid’ a race under a column of multilingual instructions, and have also designed BMD displays that forced voters to scroll onto additional screens to see the entire list of candidates. Printed ballots arguably have a small advantage because they can be printed in newspapers before the election, a practice that has, on occasion, enabled voters or candidates to identify design errors officials had overlooked. Either way, officials must learn and follow established guidance on ballot design.

Score so far: Preventing voter error gives a microscopically detectable advantage to BMDs. Mismarked ballots have been mostly resolved by tabulator technology except for some of the problems with mail-in ballots, which BMDs cannot help with anyway. Poor ballot design can be a serious threat but gives hand-marked paper ballots only a microscopic advantage, from the increased opportunity to detect problems before Election Day.

Arguments in favor of BMDs, Round 2:
MULTIPLE BALLOT STYLES

For better or worse, both officials and voters have begun to embrace early offsite voting. Election officials want to set up voting sites several weeks before each election in places like libraries, to which voters can come from all over the city to cast their ballots. These are called ‘multi-ward sites.’

In any city, in any election, it’s possible that several different ‘ballot styles’ will be needed. Different areas of the city might be voting on different city council races. In gerrymandered states like Wisconsin, congressional district boundaries can cut through even the smallest municipality.  When those municipalities set up multi-ward voting sites, each site must stock several different ballot styles. This creates more work for the poll workers at those sites, both in handing out the correct ballots and in keeping track of the ballot inventory (an important security practice.)

BMDs address that problem by electronically storing several different ballot styles. When the poll worker enters the voter’s ward number, a correctly programmed BMD will display the correct ballot for that voter.

However, every BMD manufacturer also sells blank-ballot-on-demand printers. These cheaper computers store multiple ballot styles, but they don’t mark the votes before they print the ballot.

Score for this round: No advantage for either. Multi-ward voting sites are a challenge with pre-printed blank ballots. But there’s a solution that doesn’t force us to accept the risks and cost of universal BMD use.

Arguments in favor of BMDs, Round 3:
VOTERS WITH DISABILITIES

Spoiler: BMDs win this round, for people with disabilities. No other solution, even on the horizon, enables voters with vision or movement impairments to mark their ballots privately at the polling place.  For this reason, BMDs are as indispensable as accessible parking spaces and public restroom stalls.

And there’s no disagreement that we need to make BMDs available to everyone even when we don’t encourage their use. Impairments can be temporary so it wouldn’t work to force BMD users to prove a disability, as we do with accessible parking spots. I once left my reading glasses behind when I went to vote and appreciated the opportunity to be able to enlarge the ballot so I could read it more confidently.

Some disability groups argue for universal BMD use out of a concern for what they call segregation. That argument falls apart when we consider how we handle all other public accommodations. We don’t rip out curbs and stairs when we accommodate wheelchair users with curb cuts, ramps, and elevators. Ripping out all the smaller restroom stalls to give everyone an accessible stall would increase cost and lengthen lines, just as it does with BMDs. If we handle polling-place accommodation the same way we handle other public accommodations, we can protect disability rights without degrading election security.

Another complaint, however, is confirmed when we compare it with other types of accommodations: Unreliable set-up of the BMDs. As with the occasional unshoveled accessible parking spot or curb cut, voters sometimes discover that the BMD hasn’t yet been turned on when they arrive at the polling place. But again, the problem could be addressed with less extreme measures, such as improving poll workers’ training and oversight. The League of Women Voters incorporates BMD set-up into their observation program (volunteer here!), as do disability groups. Voters who don’t use the BMD can help. If you have an extra five minutes to spend at the polling place, look to see whether the BMD is set up and ready to go. If not, ask to use it. It’ll take a few extra minutes of your time, but you will strike a blow for disability awareness.

BMD promoters also argue that users have more privacy when everyone uses the BMDs. Privacy is a genuine issue when only one or two voters use the BMD and the BMD prints ballots that contain only the voter’s selections, rather than full ballots with marked ovals. But some BMDs print ballots that are nearly indistinguishable from hand-marked paper ballots. Anyone trying to identify the sole BMD user’s ballot after poll closing would have to carefully examine every ballot cast that day, and even then could not be sure of finding the printed ballot.

On the other hand, BMD users’ ballots are more secure when there are only a few. When only one or two people in each polling place use the BMD, malicious actors could neither swing an election nor create chaos by tampering with the lightly used equipment. In contrast, widespread use makes BMDs a more attractive target for mischief.

Score for this round: BMDs must be preserved to accommodate people with disabilities. To preserve users’ privacy, only BMDs that print full ballots should be used. But for universal use, the advantage goes to hand-marked paper ballots. To bolster BMD security, their use should not exceed a small percentage of the voters.

RELATED ISSUES: ENCODED VOTES AND HYBRID MACHINES

I hope I’ve demonstrated that when discussing BMDs in general, we can logically examine actual problems, seek relevant evidence, and assess the costs and benefits of possible solutions. But for two specific types of BMDs—hybrid machines and encoding BMDs —I see no well-reasoned pro-and-con debate. Proponents can identify no consequential problems that justify the existence of these machines, even if they added no risk.

Hybrid machines combine ballot-marking devices and tabulators in one machine. Only their manufacturers are comfortable with the fact the machines are able to print votes on the ballots after the voter has cast them. Neither voters nor officials have any way under any circumstance to detect the alterations or to recover the true votes if they could detect the altered ballots. That’s unacceptable. Full stop.

As of August 2018 (WEC’s most recently updated inventory), hybrid machines (Dominion’s ImageCast Evolution) were in use in Door, Fond du La, Green, Ozaukee, Racine, Trempealeau, Vilas, Walworth, Washington, Waupaca, and Winnebago Counties.

Encoding BMDs record each vote twice on each ballot, once in barcode or QR code, and separately in a list of names for the voter to review. The tabulators count only the encoded votes, while voters can verify only the text. Encoding gives voters no choice but to trust that the countable votes were recorded correctly.

Encoding BMDs are in use in the counties listed above, plus those that use the ES&S ExpressVote: Columbia, Dane, Dodge, Douglas, Eau Claire, Jefferson, Kenosha, Lafayette, Milwaukee, Outagamie, Pierce, Sauk, St. Croix, and Waukesha, and perhaps more. Because the City of Madison encourages BMD use by early offsite voters, it is likely that more than 30% of Madison’s votes are now encoded.

The critical risk is obvious: How do either voters or officials know that the BMDs correctly encoded the voters’ Election-Day selections? The machines’ proponents will cavalierly tell you officials can detect any incorrectly encoded vote in an audit or recount (assuming the text vote was not also mis-recorded). Yes, they can. But they won’t. We do not yet live in a nation where election officials routinely audit or recount.

And give a thought to what would happen if a post-election audit did detect that encoded votes were different than the text-readable votes. Aside from the chaos that could have been avoided had voters been able to detect and report the misprints on Election Day, who is going — legally — to determine which of the two conflicting votes is valid?

Encoded-vote proponents naively assume lawyers, judges, and combative candidates will passively agree the text votes should be counted. But Wisconsin’s law explicitly allows ‘recounting’ by machine, and contains nothing that provides for counting one set of votes (the encoded ones) on Election Day and a different set (the ones in text) in a later audit or recount. I doubt any other state’s law does, either.

And if there was such a law, what would it say? Perhaps: “Only votes printed in voter-verifiable text may be counted in post-election reviews because audits and recounts must be convincing and decisive. But encoded votes are good enough for Election Day because … “?

In my experience with encoding proponents (emails, Twitter, and at WEC meetings), I’ve encountered none who could both describe and quantify any problem that encoded votes are designed to solve. Without that information, neither they nor we can assess whether the added risk is justified.

I shredded the vendors’ arguments put forth at WEC meetings in an earlier post. Since then I’ve had several discussions with encoded-vote advocates who put forth better arguments.

Ben Adida, Executive Director of VotingWorks, a nonprofit voting-equipment company, explained two reasons for encoding votes. First, it is “easier to get to a high level of reliability” in the tabulators’ interpretation of the marks when they are recorded in QR. In the context of our discussion, I understood him to mean that it’s easier for developers, and that he is speaking about QR codes in comparison to machine-printed ovals.

To assess whether this additional ease or reliability is worth sacrificing voter verifiability, we would need to compare data on tabulators’ error rate with marked ovals to their error rate with encoded votes. QR codes reduce the error rate from what to what? My sense, however, is such information is not worth digging for. If the tabulators were making any noticeable level of oval-reading errors, any real-world recount of marked-oval ballots would have detected it. None has. It is not a problem.

Adida’s second reason was: “More importantly … (if you) want voters to check (a BMD-printed ballot), a summary ballot is going to be much easier to check than a multi-page bubble ballot. And we really want voters to check their BMD ballot.

In my opinion, that’s the best argument for ballot slips I’ve encountered (once you’ve accepted universal BMD use, that is.) However, we still need evidence before acting on it. I’ll keep an open mind, but my sense is that objective study would show that, regardless of the length of the ballot, voters’ reviews are more accurate when they can see the names of both the candidates they did and did not vote for. In particular, voters need to see the whole question to review their referendum votes.

Adida added that developers are working on the possibility that BMDs could print votes only once, in human-readable text, for tabulators that can reliably use optical character recognition (OCR) to count the same votes that voters are able to verify. When that technology is ready, in my opinion, the question of ballot slips’ safety could be revisited–though it still would not establish a need for ballot slips in place of full ballots.

Aside from Adida, encoding proponents with whom I’ve engaged rely heavily on motivated reasoning. For example, proponents often reflexively deflect discussion of BMDs’ undeniable flaws (e.g., voters cannot verify encoded votes) by tossing out irrelevant facts. For example, many have pointed out that voters cannot read the timing marks at the edges of printed paper ballots, either. True but irrelevant: the timing marks are not the input that voters must be able to verify. And if the tabulator misreads the timing marks, that’s a problem with the tabulator, not the ballot.

Also irrelevant is the fact that just as BMDs could be misprogrammed to print the wrong votes, paper ballots can be misprinted to put candidates’ names in different spots than the tabulators are programmed to find them. Again, true, but the risks are far from comparable. A misprinted-ballot fraud would have to involve or originate with the local printing company and involve several layers of conspirators to avoid detection during pre-election testing and distributing the misprinted ballots to polling places. It would, therefore, be limited to individual counties or municipalities. It is not comparable to a BMD hack that could originate in Omaha or Pyongyang and affect up to 55% of the BMDs in Wisconsin (the market share of the most popular model.)

When I argue like that, I know I have no truly solid points to make. It’s not earnest problem-solving discourse.

SO WHY DO OTHERWISE SENSIBLE PEOPLE SUPPORT THESE THINGS?

I’m not ready to say all, or even any, encoding proponents have corrupt motives. My most charitable guess is that the technology developers are like the proverbial children with hammers who perceive everything needs pounding. Where you and I see only minor blemishes, geeks perceive possibilities for major fun and profit. Intensely focused on bringing cutting-edge technology to the election-equipment market, they don’t pause to think about real-world issues such as the chaos that will blossom when litigious parties to a recount realize they can fight over which vote to count on each ballot.

I also suspect that developers, accustomed to working with private-sector businesses, overestimate the likelihood that local election officials will implement security practices the developers consider obvious and necessary. Elections are run by a small army of lightly trained, minimally supervised, part-time, temporary employees who get no more than four days on-the-job-experience every year. The officials who manage that army often exhibit a child-like trust in voting equipment that, in their own words, makes them reluctant to implement recommended security measures. The following are real quotes from real Wisconsin county clerks, which I’ve collected from newspaper articles, emails, and phone conversations over the past two years:

  • “I don’t need to audit to be very confident the results are accurate.”
  • “Honestly, I am not concerned about any kind of hacks into our system. Everything is hardwired.”  
  • It’s an “irrational belief that Wisconsin’s highly decentralized and secure elections infrastructure is vulnerable to the kind of meddling that might overturn the will of the voters. All our software and hardware has been federally certified.”
  • “Why pay $8000 and more for a voting machine if you have to (check its accuracy)?”
  • Auditing “would defeat the purpose of having the voting machines.”
  • “Why should we audit? Things work well and when something works well, you don’t mess with it.”

Accustomed to working with private-sector executives who might lose their jobs if they did not implement manufacturer-recommended security measures, it’s quite possible that developers don’t understand they are selling equipment to officials who genuinely perceive no need to manage it professionally.

And why do election officials buy and promote the encoding BMDs and hybrid machines? As I write this, Pennsylvania officials are in court defending their decision to force encoding BMDs on all voters there. If I can get a copy of their briefs, I’ll know definitively what they put forth as their best arguments.

Based on what I already know — for both this and other issues — my most charitable guess is that election officials rely exclusively, even mindlessly, on vendors for information about the products’ risks and benefits. With little IT expertise of their own, they cannot ask sophisticated questions or notice what the salesperson is not saying. Example: for years, vendors were telling them the equipment was not connected to the internet, and election officials believed them, even as they instructed poll workers on how to wirelessly transmit election-night results to the county elections-management computer. Local election officials have no relationships with unbiased elections-technology professionals and no Consumer Reports-type counsel to inform voting machine purchases — pr at least none that the election officials accept as authoritative. Finally, they are too pressured by time and money do much other than grab the hand of the friendly voting-machine vendors and follow where they lead. The problem is exacerbated by the nature of the voting-machine market.

WHAT VOTERS CAN DO.

  1. Encourage your local clerk to purchase only the minimum number of BMDs needed to ensure accessible polling places and to refrain from encouraging voters to use BMDs in situations like early voting.
  2. Pressure your local clerk to adopt policies that:  1) enable poll workers to take voters’ report of misprinted ballots seriously; and 2) describe an effective response when voters report malfunctioning BMDs. The policies must be in writing and must be specific. They won’t help if all they say is: “if poll workers receive more than a few reports of misprinted ballots, they should report to the municipal clerk.” How many is more than a few? What will the municipal clerk to determine the nature and extent of the problem, and what will the clerk do if the BMDs are misprinting?
  3. Mark your own ballot with a pen whenever you can. If you must use a BMD, be prepared to spend extra time at the polls to review it carefully. Ask for a copy of a regular paper ballot against which to check your BMD-printed ballot. (That will help you remember all the races and candidates.) If you find an error, don’t just assume you did something wrong. Insist the poll worker report it to the municipal clerk.
  4. Join with others to get encoding and hybrid BMDs out of Wisconsin entirely. Email info@wisconsinelectionintegrity.org, and I’ll contact you when we get enough people interested to start action through formal complaints or a lawsuit.   
Computer-printed ballots can be used in audits that seek to confirm only whether the tabulators operated correctly, but are not “competent evidence” of the voters’ selections per generally accepted standards for government auditing. Therefore, the proportion of BMD ballots must be kept to a minimum if officials want to be able to perform an audit that can verify which candidate was selected by most voters.

Wed. night: Are Wisconsin’s voting machines ready for 2020?

Join us on Wednesday evening, January 29, at the Waukesha Public Library for an update on issues with Wisconsin’s election security, and a discussion of what can be done. There’s good news and bad.

Karen McKim, a nationally recognized advocate for election security will present and local election officials from the surrounding counties have been invited. Here’s hoping at least a few local officials accept the invitation to engage with voters on this important issue!

Preview: Our voter registration system security is among the best in the nation, but our voting-machine security is no better than average. Worse, we’re losing ground compared to other states, as they move ahead to adopt modern canvass practices that are capable of detecting and correcting problems. In addition, Wisconsin is making more use of certain voting machines that have actually been declared illegal in other states, and that federal legislation would ban!

Waukesha Public Library, 6 PM, Wednesday January 29
321 Wisconsin Avenue, Waukesha 53186

Breaking: WEC might not comply with laws that don’t apply to it!

Summary: A lawsuit over voter registrations is getting a lot of publicity lately. In the frenzy to portray the issue as a huge menace to Wisconsin elections or voters, the news media is overlooking an important detail: The law that WEC, a state agency, is accused of not following applies only to municipal officials.

When I worked for the Legislative Audit Bureau, about 80% of the projects I supervised asked the question “Is this agency complying with the law?” It was my job to read the law; figure out what compliance would look like; find out whether the agency was doing that; and write a report telling the Legislature what I found and what, if anything, they might want to do about it.

Here’s an example. Municipal clerks (city, village, or town) are responsible for updating voter registrations. These records need to have current addresses. Sometime in the past, someone wrote a state law that seems to have been intended to help municipal clerks keep addresses up to date without causing either them or the voters much extra work.

“Municipalities” are cities, villages, and towns.

That law is still on the books as §6.50(3), Wis. Stats.   It requires all municipal officials—assessor, librarian, police chief, whoever—to tell the municipal clerk when they learn a local resident has moved. For example, the local water utility might know that some home’s account was switched to a new name, indicating that somebody moved. The law requires the water-utility manager to tell the municipal clerk about that.

Then, the law requires the municipal clerk to do one of two things. If the voter left town, the clerk must mail a first-class letter to the voter’s registration address. If the voter fails to respond to the letter within 30 days, the municipal clerk must deactivate that voter’s registration.

If the voter didn’t leave town, but only moved to another address within the municipality, the law requires the local clerk to update the address on the voter’s registration records and send a letter telling the voter of the correction.

Perhaps because the law requires the municipal officials to do this only when they receive reliable information, the law says nothing about what the clerk is supposed to do if the voter didn’t actually move. A sensible reading would be that the legislature intended just that: Nothing.

If a legislator had directed me, as one of their oversight staff, “Find out if they are complying with that law,” I would have trotted out to a few different cities, large and small, and started asking questions.

My first question would be: “How on god’s green earth are you supposed to know whether the person stayed in town or left?” If a water account is switched to a new homeowner, how is the municipal clerk supposed to know whether the first homeowner left town or moved to a utilities-paid apartment down the block? In short, it seems to me like a poorly written law. Such laws exist. More than a few of my real-life reports concluded with, “The agency is not complying, but that’s because you wrote a silly law. A better law might be…”

If I learned, however, the law is more workable than it seems, I’d have reviewed local records to look for evidence of compliance.

There are at least two things I Definitely. Would. Not. Have. Done.

First, I wouldn’t have expected any municipal official to go looking for people who only maybe moved. The law speaks only about reliable information that comes to the local officials through their normal work. Nothing in the law requires, for example, the librarian and the municipal clerk, on their own initiative, to compare the addresses on library cards and voter registrations; to consider any differences to be ‘reliable evidence’ of a move; or to threaten those voters with deactivation if they do not defend their current address.

Second—and I feel silly even saying this, because it is just so absurd—I would not have paid a visit to the Wisconsin Elections Commission to ask what that state agency was doing to comply with requirements that legislators had placed on municipal officials.

If I had given the Legislature a report concluding: “No state agencies are complying with the local governments’ statutory requirements,” I’d have been fired for wasting time on such obviously frivolous fieldwork.

The Wisconsin Elections Commission is a STATE agency, not a municipality.

But that, fellow voters and taxpayers, is what I have to write about in this blog post. Because a misguided law firm has sued a state agency, the WEC, for not complying with requirements that apply only to municipal officials.  

Yes, in real life: A law firm is accusing WEC of failing to comply with the law I just described–the one that requires municipal clerks (not WEC) to deactivate voter registrations within 30 days after the municipal clerks (not WEC) sent a notice to voters based on reliable information that the municipal clerks (not WEC) had received indicating that the voters had moved (information that WEC does not possess.)

The laws that actually do apply to WEC require it to follow the procedures of a multistate compact known as ERIC. Once every two years, ERIC compares Wisconsin’s voter-registration files to files maintained by other state agencies such as the Department of Transportation. ERIC then gives WEC a list of people who have reported different addresses to different agencies.  For example, a person who had registered to vote in Milwaukee but who had avoided Milwaukee’s wheel taxes by registering their cars using the address of their Northwoods cabin would have earned a spot on ERIC’s imprecisely named “Movers List.”

WEC knows, from their long experience with this sort of administrative task, that rough information such as the ERIC list is far from reliable evidence of moving. They know how to clear it up, although it takes some patience. For example, they flag those people on the poll book to make sure the voters are asked to clear up the address question the next time they show up to vote. And if the voter never again shows up to vote at that address, their registration will be deactivated through a different process.

WEC’s boring compliance with this routine administrative procedure was ignored by the press as WEC worked on it over the past summer and fall. But as soon as a lawsuit was filed, the press has been all over it, spinning a partisan angle as hard as they can and parroting an inflated click-bait 234,000-voter figure. Thousands of those voters have already re-registered or updated their addresses, so the number of voters at risk of deactivation is nowhere near that many.  

Because I attend WEC meetings regularly, I realized the small effect this list-maintenance exercise would have for actual elections, no matter how it turns out.

First, understand my perspective: I spend most of my time working to get election officials to pay attention to something that theatens all 3 million voters: Wisconsin does not yet employ methods that would enable election officials to detect and correct the effects of voting-machine hacks. So even 234,000 seems to me like a junior-varsity number.

Still, there are other reasons I cannot see these voters as a huge threat to Wisconsin elections: Many other safeguards reduce the risk of voter fraud to an inconsequential level. And if these particular voters are attempting fraud, they are being flamboyantly inept. They were not going to be able to vote in two places by using their vehicle registration as if it was a voter registration.  

On the other side, we have to appreciate the ease with which people can register at the polls—especially (excuse me) people such as those who have cars to register and two addresses from which to register them. Among any voters who might be incorrectly deactivated, few will have their ability to vote impaired by anything worse than a few minutes’ delay. (To be clear: Any judge would be outside the law to order deactivation of any registrations in the absence of reliable information that the voter has moved. What I’m saying is that, if one does, the effect on actual voters will not be anywhere close to the levels that devout partisans fear or hope for.)

So it wasn’t until today that I sat down and read through the complaint and looked up the statute it references—actually even quotes. Anyone can read that law and see that it applies to municipal officials, not to a state agency. Check it out for yourself—the complaint accurately quotes the law. It’s the paragraph numbered ‘10’ on page three of the complaint. In that law, you will see nine references to municipal officials and not one to WEC.  

As irritated as I am with the media for their breathlessly misleading coverage, I am furious about the lawsuit. It is wasting your tax dollars and mine by asking the courts to address this bogus issue and making the WEC defend itself. I’d sputter about the lawyers’ and judge’s apparent inability to use their legal education, but reading that statute requires only elementary-school reading skills and a man-on-the-street understanding that WEC commissioners are not municipal clerks.

Postscript: Pollyanna that I am, I have to note the silver lining. This whole episode has provided a great opportunity to publicize one of Wisconsin’s treasures, our eminently usable and convenient voter-registration and election-information website, MyVote. Click on that link to see solid, up-to-date information about elections in general and your own voter registration in particular. And yes, if you were on the ERIC list, you’ll see that, and you can fix it.

Everyone calm down. No one is voting twice. No one is being purged.

The Wisconsin Elections Commission is working on a project to contact voters who have more than one home address on state government databases. If the voter has moved within Wisconsin, the WEC wants them to register at their new address. If they haven’t moved, WEC wants only to confirm their voting address.

In our current political climate of eager fearfulness and lunging-at-each-others’-throats, this is causing controversy, even a lawsuit. But the facts are neither as the partisan Republicans or the partisan Democrats fear or want you to fear.

Last October, the WEC checked the addresses on the voter registration database against other State of Wisconsin databases and found 234,039 mismatches–mostly with the Department of Transportation. They sent postcards to the voter-registration address to make sure the voter was registered to vote at the right address. Everyone involved–the WEC, the voters, the local clerks–has plenty of time to resolve this before the next election. That’s why the cards went out in October, when there was a long lull between elections.

The practice of checking registration rolls for people who have moved is widely recognized as prudent maintenance. It’s routine and useful for preserving election integrity and WEC is going about it as carefully as any other state.

Personally, I don’t think it adds value to election integrity beyond appearances, but I won’t go to the mat to defend that belief. It has no effect on voter fraud because the voters are registered to vote at only one address. If they are attempting fraud, they are being so clumsy we don’t need to worry that they will succeed. Slightly inaccurate voter-turnout statistics is the only drawback I see to leaving movers on the rolls until they register someplace else or fail to vote for four years.

For Republicans: NO ONE IS REGISTERED TO VOTE TWICE. In addition, no one has voted twice. There’s not even any evidence that any of them are trying.

There are plenty of non-fraudulent reasons why people have different addresses for their vehicle registration and their voter registration. Small business owners might register their car from their business address. Same for people who own two homes–don’t we want them to vote? Tax evaders who live in cities that levy wheel taxes might register their cars at their relatives’ homes. (Okay, that might be fraud, but it’s not voter fraud.)

And give a thought to those individuals’ freedoms. Why shouldn’t a man who owns a home in Waukesha and cabin in the Northwoods be able to choose which he’ll use to register his cars and which he’ll use to register to vote? Leave the guy alone. If you force the WEC to remove people like him from the registration list every time they register a new car, you’re causing him trouble and causing the WEC to divert effort from real problems.

And now that we’ve resolved that, Republicans, consider this. A law firm is spending donations from people like you to force the State of Wisconsin to spend your tax dollars to respond to a frivolous lawsuit that won’t have any effect on voter fraud even if it succeeds. Surely there are better things to do with both the donations and the tax dollars.

For the Democrats: NO ONE IS BEING PURGED. In fact, the postcards might be preventing problems for some voters.

Since the postcards went out, 13,267 of the voters registered to vote at their new location. That’s 13,267 voters who won’t have to clear this up the next time they go to vote.

Another 1,666 responded to the postcard saying that they hadn’t moved. Their voter registrations were confirmed. No harm, no foul, good to go.

As of mid-November, 54,234 postcards had been returned as undeliverable, confirming the voters no longer lived at the address where they were registered. In the future, if any of those voters show up at a polling place anywhere in Wisconsin, they will be able to re-activate their registration right then and there and cast a regular (not provisional) ballot. That’s not a smidgen more work than they would have had to do if WEC had not removed them from the voting rolls.

The remaining 164,873 voters have been flagged on the registration database. If in 2020 they show up to vote at their old polling place, they will be told they have two home addresses listed with the State and asked to clarify the right address for the voter-registration database. If they say, “This is my voting address. I’m in the right place,” they will be allowed to sign the poll book and vote. It’ll take them maybe five seconds longer to vote than it would have taken them had the computer not flagged them.

If they show up at some other polling place or if the court decides to force the WEC to remove them from the registration rolls right now, the next time they show up at a polling place, they will be able to re-activate their registration right then and there and cast a regular (not provisional) ballot. It’ll take them maybe five minutes longer to vote than it would have taken them had the court not ruled against them.

And now that we’ve resolved that, Democrats, consider this. Imagine you’re a marginal, disenchanted would-be voter. What will you feel when you see social media spreading the message: “Lawsuit could affect the ability of 234,000 Wisconsin voters to cast ballots”? Suspecting you might be one of them isn’t going to make you any more eager to show up at the polls to find out.

Spreading fear of routine election-administration practices can be nearly as effective at suppressing votes as actual purging would be. When there really is nothing to fear, use your words and energy to spread that message instead. There are other alarms to be raised about the real threats to our democracy.