Ambiguous laws leave state’s clerks unsure of what’s legal during absentee voting | Local News

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The more than 1,800 clerks tasked with running Wisconsin’s elections are between a rock and a hard place, and all of them are at risk of violating the law when it comes to someone delivering an absentee ballot on behalf of another.

Tracy Twigg, a poll worker, opens a stack of absentee ballots to be tabulated at the Pleasant Prairie Village Hall on April 13, 2020.

For years, it has been an accepted practice that it is legal to deliver absentee ballots on behalf of another person. In essence, it has been allowed that one person can drop off someone else’s ballot (or many other people’s ballots) as part of absentee voting.

Some have said this allows the practice of derisively referred to as “ballot harvesting,” which is when one person collects ballots for several other people and delivers them en masse. That practice is banned in some states, specifically allowed in others; in Wisconsin, it is neither explicitly outlawed nor explicitly allowed.

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That ambiguity in the law has led to the current conundrum.

Previously, the Wisconsin Elections Commission offered guidance to the state’s clerks that stated this practice was allowed.

The conservative law firm Wisconsin Institute for Law & Liberty sued, charging that this practice was illegal.

On Jan. 20, a Waukesha County judge issued an injunction in favor of WILL, ordering WEC to withdraw its guidance. WEC complied. That injunction came packaged with a declaration, in which the court asserted that “ballot harvesting,” “delivering ballots on behalf of another” or whatever you want to call it, is illegal in Wisconsin.

However, the injunction has no direct impact on what individual clerks do. Court injunctions can only be binding to those named in the case, and WILL only sued WEC. Clerks are not bound by it.

“Ultimately, each clerk will need to decide what to do, taking into consideration both state and federal law, the different ways the absentee ballot statute can be interpreted, and the risks of choosing one option over another,” states a letter from attorneys from the League of Wisconsin Municipalities, a nonprofit nonpartisan association of cities and villages.

“Unfortunately, any decision brings with it the potential for dispute and litigation. The nature and level of risk will vary by municipality,” the letter concludes.

Doug Poland


In a phone interview Friday, Doug Poland, a liberal attorney fighting WILL’s lawsuit and opposed to the Waukesha judge’s decision, said: “For a clerk to look at this, the clerk could be saying ‘I’m seeing these two different parties arguing the statute in two different ways.’

“A judge cannot issue an injunction against anybody who is not named in the lawsuit,” Poland said. As such, “the injunction doesn’t actually prohibit clerks from doing anything.”

The lawsuit the Waukesha judge ruled on has been appealed to the Wisconsin Supreme Court. While the state high court is expected to rule on the case, it declined to act quickly; early voting is already underway for the April 5 election.

Even within Racine County, municipalities are employing different policies regarding ballot delivery.

Inconsistent application of the law

If you live in Caledonia or Mount Pleasant, for example, and you go to your village hall to deliver your spouse’s absentee ballot, the clerk (or a deputy of that clerk) has been instructed to not accept your spouse’s ballot.

“The elector must personally drop off their ballot,” Caledonia Clerk Joslyn Hoeffert said in an email.

An official Caledonia village notice states: “ALL absentee ballots must either be returned by USPS mail or handed in to the Clerk’s office in person by the elector themselves during scheduled business hours. All ballots must be received before the polls close on the day of the election to be counted. Please plan accordingly, submit your request for an absentee ballot early and return your absentee ballot as soon as possible.”

In the City of Racine, you can still deliver a ballot on behalf of another, but under certain circumstances.

City Clerk Tara Coolidge


“A ballot can be returned by someone who is not the voter,” City Clerk Tara Coolidge said in an email, before clarifying in a later email: “A(n) agent or an authorized representative may deliver a ballot on behalf of the voter. If you arrive in person to deliver a ballot that is not yours you will be asked if you are an agent or authorized representative. If your response is ‘Yes,’ the ballot will be accepted. If your response is ‘No,’ the ballot will not be accepted.”

An argument has been made that by not allowing voters to have their ballot delivered by someone else, then those with disabilities may be faced with an illegal hurdle. Under federal voting laws, “any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or an agent of that employer or officer or agent of the voter’s union.”

The City of Racine’s policy of asking those delivering ballots if they are “an authorized representative” aims to fulfill both the intention of the Waukesha judge’s order and federal law.