Wisconsin lawmakers voted on Wednesday to not allow local clerks to cure absentee ballot envelopes. Minutes later, Wisconsin Election Commissioner Ann Jacobs said clerks can ignore that decision.
The Joint Committee for Administrative Rules (JCRAR) voted 6-4 to suspend Wisconsin Elections Commission’s (WEC) Emergency Rule 2209. Under state law, absentee ballots cannot be counted unless the witness’ address is written on the accompanying certificate. WEC’s proposed rule would have allowed clerks to fill in the address on their own and then count the vote.
“The municipal clerk is not required to contact the voter, and may personally correct the certificate deficiency, if the municipal clerk can reasonably discern any missing or inaccurate information from outside sources, through independent research, or based on personal knowledge,” ER 2209 read.
JCRAR Co-Chair, Sen. Steve Nass (R-Whitewater) says no, they cannot.
He explained, “Current state law makes clear that if an absentee ballot certification is missing elements, it can only be corrected by the voter or the voter’s witness. The WEC emergency rule was an attempt to circumvent state law.”
The emergency rulemaking process takes about two weeks. First, an agency submits a “proposed scope” to the legislature. It is then automatically be published in the Administrative Register the following Monday. JCRAR then has 10 days to suspend it, or else it goes into effect.
WEC did not send anyone to Wednesday’s committee hearing to defend the rule, and Commissioner Jacobs dismissed the lawmakers’ vote as irrelevant.
“The rule at issue went into effect 7/11/22. Clerks CAN still fill in missing witness address info per WEC guidance issued in 2016,” Jacobs announced on twitter soon after JCRAR adjourned.
Agencies use guidance documents to explain how it interprets state law and advice on how that law is to be enforced. They were regarded as informal communications before 2017, when the legislature realized they were being used as de facto rules and passed a law regulating them.
WEC’s 2016 guidance document states, “The WEC has determined that clerks must take corrective actions in an attempt to remedy a witness address error. If clerks are reasonably able to discern any missing information from outside sources, clerks are not required to contact the voter before making that correction directly to the absentee certificate envelope.”
“Anyone that follows the WEC guidance could be exposing themselves to both civil and criminal liability for violating state law,” Nass warned.
However, according to state law, “A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license.”
Despite state law, WEC insists the guidance is still in effect. It also claims it cannot do anything without two-thirds of its commissioners voting to do so. Sen. Nass says WEC doesn’t need to take a vote on whether or not it’s going to follow the law.
“The commissioners and staff of WEC have a lengthy history of ignoring state elections law by issuing rogue guidance to municipal clerks and election workers. However, their actions in the last 12 hours can only be described as absolute lawlessness by directing municipal clerks to continue curing absentee ballot certifications in direct violation of state law,” he said in a statement.
Nass wants the legislature to take legal action to compel WEC to follow the law.
“I am also calling on all municipal clerks and election workers to comply with the specifics of state law regarding the procedure for correcting absentee ballot certifications. Anyone that follows the WEC guidance could be exposing themselves to both civil and criminal liability for violating state law,” Nass warned.
Meanwhile, there’s already a case in Waukesha County underway that seeks to put WEC back in its place. On July 12th, Republicans asked a judge to prohibit clerks from making changes to witness certification statements and to declare that WEC’s guidance is illegal.
Given WEC’s disregard for the legislature’s authority, it remains questionable how it would respond to an order from the judicial branch.
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