Here and Now 2020

Clerks Ask High Court to Adjudicate Ballot Misprint Issue

By Will Kenneally

October 26, 2020

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A sign outside Midvale Elementary in Madison showing voters where to cast their ballots April 7, 2020.

A sign outside Midvale Elementary in Madison showing voters where to cast their ballots April 7, 2020.

County clerks in northeastern Wisconsin have asked the state Supreme Court to weigh in on an absentee ballot issue that could delay two counties’ returns on Election Day.

Clerks in Outagamie and Calumet counties discovered a misprint on the “timing mark” of some absentee ballots that prevents them from being scanned by voting machines.

Municipal clerks would normally have to remake the ballots to correct the mistake, but are asking the court to allow them to fill in the misprinted timing mark on each ballot instead of remake the entire ballot.

An example of the misprint that renders some absentee ballots unreadable by voting machines in Outagamie and Calumet counties. (Courtesy: Outagamie County, via the Appleton Post-Crescent)

“[Outagamie County Clerk Lori] O’Bright estimates that the duplication method would require anywhere from 554 to 2,310 additional man hours to ensure all properly cast ballots are counted,” plaintiffs wrote in their court filings.

At issue is whether clerks are allowed to fill in the misprint instead of remake the ballots entirely. State law prescribes clerks must remake ballots that are “defective,” and filling in the misprint could be considered illegally altering a ballot, according to the plaintiffs’ filings, unless the Supreme Court steps in to clarify what clerks should do.

“The matter before this Court is one of great urgency given the impending Presidential election and projected slim margin in votes,” lawyers for O’Bright wrote. “To maintain voter confidence in the imminent and future elections, and to protect the fundamental rights of the affected voters in the present election, it is imperative that this Court exercise original jurisdiction over the matter.”

Clerks discovered the ballot issue while doing preliminary tests on voting equipment in early October. The misprint would affect more than 13,500 absentee ballots that were sent to voters.

The state Supreme Court is giving municipal clerks in the impacted communities until Tuesday at noon to weigh in on the case.

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