Wisconsin voters

[Lefta Dissenter]

Please read these concerns expressed by a friend of mine, who is an attorney here in Wisconsin.

October 16, 2004


As the election approaches with what feels like accelerating speed, I've
been thinking for a while about a couple of things that pose, I think,
significant risks of causing Wisconsin to find itself among what I believe
will be several states that become the Floridas of 2004. I've also been
thinking about what we, as voters and Kerry/Edwards supporters, can do to
minimize the risk that our activities might contribute to Florida-izing
us. For whatever they're worth, here are my thoughts. (I also want to
make unequivocally clear: these are strictly my personal views. I'm not
speaking, writing, etc., on behalf of anyone else, officially or
unofficially, dead or alive, etc., etc.)

Here are my two areas of concern: (1) absentee voting, and (2) a potential
problem with the federal Help America Vote Act , which in some
instances might supersede Wisconsin law that deals with voters who cast
ballots after the poll-closing time -- 8:00 p.m. -- specified by state statute.


ABSENTEE BALLOTING

Section 6.87 of the Wisconsin Statutes specifies the procedures for casting
absentee ballots. The legislature, in an unusual step, includes in the
statutory subchapter on absentee balloting a statement of legislative
policy (sec. 6.84(1)): "The legislature finds that voting is a
constitutional right, the vigorous exercise of which should be strongly
encouraged. In contrast, voting by absentee ballot is a privilege exercised
wholly outside the traditional safeguards of the polling place. The
legislature finds that the privilege of voting by absentee ballot must be
carefully regulated to prevent the potential for fraud or abuse; to prevent
overzealous solicitation of absent electors who may prefer not to
participate in an election; to prevent undue influence on an absent elector
to vote for or against a candidate or to cast a particular vote in a
referendum; or other similar abuses." (The term "elector" in the context
of absentee balloting refers to voters, not to the electors of the
Electoral College.)

Given the stakes in this election and the large number of absentee ballots
many people believe will be cast in Wisconsin this time around (I've seen
or heard estimates as high as 25%), I think it's safe to predict that any
victory in which the vote differential between the leading candidates is
less than the number of absentee ballots cast will almost certainly
generate hard-fought challenges to those ballots. Those challenges will
try to identify any flaw that offers a possibility of disqualifying the ballot.

Absentee voting by mail poses, I think, some significant risks beyond the
fraud problem that concerns the legislature. First, the ballot might get
lost, delayed, or irreparably damaged in the mail. Second, if a voter
accidentally overvotes on the ballot, the error won't be discovered until
after the polls close, thus resulting in an invalidated ballot; with
ballots cast at a polling place that uses a scanner (as in the city of
Madison), the scanner will kick out an overvoted ballot and the voter will
have a chance to cast a correctly marked ballot. Third, if there's a flaw
in the execution of the certificate for the mailed ballot, the voter might
not be able to correct the defect in time.

Section 6.87(9) of the Wisconsin Statutes provides: "If a municipal clerk
receives an absentee ballot with an improperly completed certificate or
with no certificate, the clerk may return the ballot to the elector, inside
the sealed envelope when an envelope is received, together with a new
envelope if necessary, whenever time permits the elector to correct the
defect and return the ballot within the period prescribed in sub.
(6)." Section 6.87(6) -- the "sub. (6)" in the previously quoted language
-- provides: "The ballot shall be returned so it is received by the
municipal clerk in time for delivery to the polls before the closing
hour. Any ballot not mailed or delivered as provided in this subsection
may not be counted."

So, if there's something wrong with the certificate for a mailed ballot,
the clerk "may" -- not must -- return the ballot to allow the voter to
correct the defect. Because of section 6.87(6), the voter who waits until
the last minute to mail a ballot will almost certainly not have an
opportunity to correct the defect, even assuming the clerk would exercise
discretion in favor of returning the ballot. (Given the budget crunches
that many municipalities face, as well as the volume of absentee ballots
the clerks will likely receive in some municipalities, I would not be
surprised to find out after the election that some clerks, because of
budget and time crunches, elected not return defective absentee ballots to
voters, even when there might have been time for the voters to correct the
defects.)

Here's my suggestion: if you plan to vote by absentee ballot, I *strongly*
urge you to exert the extra effort to do so in person at your municipal
clerk's office. This won't solve the "accidental overvote" problem, but
you'll know that the clerk got the ballot. In addition, because the clerk
(or an employee of the clerk's office) will be there to provide
instructions about filling out the ballot and envelope and will act as the
statutorily required witness for the certificate on the envelope, you'll
all but eliminate any risk that there will be a defect in the procedure by
which you cast your absentee ballot and, therefore, all but eliminate any
risk that a challenge to your ballot will succeed. If you have already
received an absentee ballot by mail but have not yet returned it, I believe
you can still take that ballot and submit it in person at your municipal
clerk's office; check with your clerk to verify this procedure. If you
decide to mail the ballot, I suggest using a tracking service (either
certified mail with return receipt, or priority mail with delivery
confirmation) so you'll have some verification that the ballot actually
arrived at the clerk's office.


HELP AMERICA VOTE ACT (HAVA)

This will be the first Presidential election conducted under some of the
provisions of HAVA. One section of HAVA causes me particular unease, and
it relates to votes cast after the official closing time passes.

Sections 6.78(1) and 6.78(2) of the Wisconsin Statutes specify that polls
close at 8:00 p.m. Section 6.78(4), however, declares that "ny elector
waiting to vote, whether within the polling booth or in the line outside
the booth at the time the polls officially close, shall be permitted to
vote." So, if you're standing in line at 8:00 p.m. when the poll closes,
you still get to vote.

Section 302(c) of HAVA, P.L. 107-252, provides:

(c) VOTERS WHO VOTE AFTER THE POLLS CLOSE. - Any individual who votes
in an election for Federal office as a result of a Federal or State court
order or any other order extending the time established for closing the
polls by a State law in effect 10 days before the date of that election
may only vote in that election by casting a provisional ballot under
subsection (a). Any such ballot cast under the preceding sentence shall
be separated and held apart from other provisional ballots cast by those
not affected by the order.

Here's the potential problem as I see it. Suppose, because of a huge
turnout, many people are standing in line at 8:00 p.m. Suppose also that,
for some reason, circumstances result in a court order extending polling
hours past the 8:00 p.m. closing time so even people who weren't standing
in line at 8:00 p.m. could still vote. Because of the supremacy clause of
the U.S. Constitution, there's a reasonable argument that HAVA supersedes
the Wisconsin statute regarding voting after the statutorily established
closing time.

Under the Wisconsin statute, anyone who's in line at 8:00 p.m. but doesn't
get to actually vote until after 8:00 p.m. still casts a ballot no
different from the one cast by those who actually voted before 8:00
p.m. But if HAVA trumps the Wisconsin statute when there's a court order
extending voting hours, voters who cast their ballots during the extended
voting period (i.e., any time after 8:00 p.m.), even if they got in line
before the statutory closing time, might find themselves required to cast
what HAVA calls a "provisional ballot" -- essentially, a ballot that might
or might not get counted, depending on the outcome of any challenge to the
court order.

In effect, Wisconsin determines your right to cast a regular (i.e.,
non-provisional) ballot on the basis of the time you got in line to
vote. HAVA, however, appears to determine your right to cast a regular
ballot on the basis of the time you actually submit your ballot, regardless
of when you got in line. So, through no fault of your own, HAVA (if it
trumps a Wisconsin voter's rights under the Wisconsin poll-closing statute)
could end up converting your Wisconsin right to cast a regular ballot into
a federal HAVA obligation to cast a provisional ballot that might not be
counted.

Alternatively, in this scenario, HAVA might be interpreted to allow the
municipal clerk to separate those voters who were in compliance with a
state's statute governing closing times (i.e., in Wisconsin, those who were
in line by 8:00 p.m.) from those voters who would get to cast ballots only
because of the court order extending the polling hours (i.e., those not in
line by 8:00 p.m.) and allow those in compliance to cast regular ballots
while all others would have to cast provisional ballots. This approach
would, I think, be the better one because it reconciles the statutes with
the least amount of damage to either one. But because HAVA's a new and
untested statute, there's no way to know in advance which approach the
courts will take, or whether they might interpret HAVA in some entirely
different way.

Here's my (probably obvious) suggestion for avoiding this potential
problem: if you plan to vote at a polling place (and especially if you
vote at a location where there's likely to be heavy turnout), VOTE EARLY,
and certainly well in advance of the 8:00 p.m. closing time. Until you
vote, check periodically during the day for any news about court orders
that might affect your polling place. Efforts to extend voting hours by
court order are generally remedies of last resort, so an order of this sort
might not be issued until late on Election Day, even at the last minute.

If you think this advice makes sense, please pass these suggestions along
to other Kerry/Edwards voters. As I wrote at the beginning of this
message, these are strictly my opinions. They're offered gratis, and they
might only be worth what you paid for them.

[aquart]

1. And don't ever think that HAVA loophole wasn't deliberate.

They knew the turnout would be huge once we figured out what they've done to us, and they want to make sure the turnout doesn't count.

HAVA is just one more BushBill that I want overturned.

[goddess40]

2. City clerk in Wausau sent out the ballots without addresses

I wasn't to happy about it and pitched a bitch. They sent letters out to all absentee voters the next day, it also was on the news and in the paper. She told me one story and the paper another - on election day we will find out who she told the truth to as my mother is a poll worker. She told me she had no idea how many went out without the address and she told the paper that one box (about 25%)went out without the address.

[Big Al from WI]

3. Maybe you would have to use the provisional ballot

but it looks like Wisconsin law would then require that it would be counted.

[Lefta Dissenter]

4. my concern would be

that a provisional ballot may not be counted if there are legal challenges.

I'm going to be talking to our town clerk on Monday. I'm going to be working at the polls on Nov 2, and I really want to understand the rules so I can be a good observer. I'm sure all I'll be doing is handing out ballots or watching the box, but I figure this is an opportunity to learn more about how our system works - and to begin to learn where potential problems are, even in a rather innocuous little polling place such as our own.

[RobFalman]

5. How Do I Register To Vote?

How Do I Register To Vote? What do I have to do?

[goddess40]

6. Call your city clerk - it's better to register before Nov. 2nd if possible

You can register at the polls but if you have time I'd do it before. Call your City Clerk and ask where to go to register and where you vote. By doing it ahead of time it will save you a lot of time on election day, especially if you nail down your proper polling place.
I do kidsvoting so I'm at the polls and get to observe. I've seen people turned away at the polls because they were in the wrong place, sometimes incorrectly.