Double Trouble: WI Confronts Dual Absentee Ballot Requirement

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Wisconsin’s Election Commission is balking at a state law that would require all absentee voters to receive two, partially duplicate, ballots in the upcoming April 7 election. The Journal-Sentinel has more:

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

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

All sides agreed the situation was ripe for confusion, but some election officials contended they had little choice but to follow state law.

The issue is a state law that expands the federal requirement for overseas and military ballots to all absentee voters – and because of a crowded election calendar, complete ballots won’t be available in time for mailing:

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

State law says absentee ballots for federal races must be mailed 47 days before the election for those who request them. That means they should be mailed on Feb. 20 for the April 7 presidential primary.

Feb. 20 falls two days after the Feb. 18 primary for local and state races. Results of the Feb. 18 primary won’t be certified by the time the first batch of absentee ballots for the April 7 elections are supposed to go out.

Among the state and local primaries on the ballot are races for state Supreme Court, Milwaukee mayor and Milwaukee County executive.

The initial plan was for voters first to receive a federal-only ballot, followed by a complete ballot once the state and local primary results were certified:

Staff for the commission this month told clerks to mail what it is calling “A” ballots on Feb. 20 that include only the presidential candidates. The staff told clerks to send followup “B” ballots in March that included the candidates for local and state offices along with those running for president.

If voters returned both ballots, clerks were to count only the “B” ballots.

Democrats and Republicans on the commission were united in their disdain for the staff plan.

“This is insanity,” said Commissioner Ann Jacobs, a Democrat…

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

Commissioners ultimately decided that honoring the state law mailing requirement wasn’t worth the potential for voter confusion:

Commission Chairman Dean Knudson, a Republican, said the plan would cause confusion, inconvenience and possibly chaos. But he expressed reluctance initially at abandoning it because state law is clear about when absentee ballots must be sent.

“I’m troubled (that) we would be saying, ‘Look, don’t follow the law,” he said. “Mailing out the ballots on Feb. 20 is going to be logistically nearly impossible and yet that’s what the law would require.”

Despite those legal concerns, Knudson joined the other commissioners in voting to drop the staff plan…

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

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

Military and overseas voters will still get the dual ballots, however, given the requirements of the federal MOVE Act:

[T]he commission decided the two absentee ballots would be sent only to military and overseas voters. The commission, which consists of three Republicans and three Democrats, didn’t have a way to get around sending two ballots to those voters because of a federal law meant to ensure military and overseas voters have enough time to return ballots with federal races on them.

Under the commission’s plan, other absentee voters will get only one ballot.

This story illuminates the tough choices election officials can face when legal requirements clash with uncertain election calendars. While federal law regarding military and overseas voters mandates a long lead time for absentee ballots given delivery challenges, extending that protection to domestic voters (as Wisconsin does) is bound to create problems like this one when elections run so close together. It will be interesting to see if the state rethinks its approach to mailing domestic ballots – or if there is resistance to the Commission essentially ignoring state law. Stay tuned …

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