State Supreme Court won’t take case on misprinted ballots, causing likely delays for tallying votes

MADISON – The state Supreme Court declined to take a case Thursday that would tell officials in northeastern Wisconsin how to deal with misprinted ballots, raising the prospect of lengthy counting delays as clerks fill out thousands of replacement ballots on Election Day.

Clerks in Outagamie and Calumet counties had hoped the high court would have allowed them to make a marking on the ballots that would have allowed them to be read by automatic counting machines. But because the court wouldn’t take the case, the clerks won’t have that option. 

The justices’ decision not to accept the case fell along ideological lines, with the four conservatives declining to take it and the three liberals saying they should have.

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The clerks are now scrambling to find more poll workers to help fill out thousands of replacement ballots on Election Day — work that could collectively take hundreds of hours. 

“Voters can be assured that all votes will be counted,” Outagamie Clerk Lori O’Bright said.

At issue are misprinted “timing marks” along the edges of about 13,500 absentee ballots sent to voters in Outagamie and Calumet counties. Electronic tabulators use those marks to read the ballots, and they can’t count the ones with the errors on them.

The problem could be easily fixed by using black ink to fill in a small portion of the timing marks. Election officials say that would be the most efficient way to address the issue, but state law doesn’t allow clerks to make such changes to ballots. 

A task amounting to 900 hours of work

Instead, clerks will now remake the ballots, county officials said. Under that process, clerks will fill out a replacement ballot for each misprinted ballot. Officials had hoped to avoid remaking ballots because doing so is time-consuming and could result in errors when votes are transcribed from one ballot to another.

It takes about 4 minutes to remake each ballot, O’Bright said. That amounts to 900 hours of work for 13,500 ballots.

O’Bright called the workload daunting but noted it will be performed by election officials in 25 municipalities. The number of ballots that will need to be remade is uncertain because some voters with misprinted absentee ballots have already sought replacement ballots or plan to cancel them and vote in person, she said.

More poll workers are being recruited and officials are exploring whether the Wisconsin National Guard can help. 

Under state law, they can’t start remaking ballots until the polls open on Tuesday. Most of the work has to be done at polling locations, and finding room to fill out new ballots will be difficult at some sites, especially when the coronavirus pandemic requires social distancing, O’Bright said. 

State law requires clerks to report their vote tallies by 4 p.m. Wednesday — a difficult deadline to meet.

Joe Guidote Jr., Outagamie County’s corporation counsel, said officials would do all they could to meet that deadline because the results could be challenged if they miss it. 

“We’d rather not encounter that controversy,” he said.

“The decision is what it is and we’re going to have to deal with it the best we can. It’s going to be a tough night for the election officials, but they’ll get it done.”

The misprinted ballots account for a fraction of the more than 3 million that are expected to be cast in Wisconsin. But even a small group of ballots could prove crucial in a state that Donald Trump won by fewer than 23,000 votes four years ago. 

The lawsuit was filed directly with the state Supreme Court this week by the clerks of Outagamie and Calumet counties. They started there because there is little time for appeals with the election so near

The high court’s order was brief and did not explain why it wasn’t taking the case. In a concurring opinion, Chief Justice Patience Roggensack wrote that she still wanted to see that all legitimate votes are counted. 

“We have repeatedly recognized that Wisconsinites have a fundamental right to vote, and a vote legally cast and received by the time the polls close on Election Day must be counted if the ballot expresses the will of the voter,” she wrote. 

The other justices who did not want to take the case were Rebecca Bradley, Brian Hagedorn and Annette Ziegler. 

In dissent were Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. 

“The majority leaves local election officials in the lurch,” Bradley wrote for the dissenters. 

The clerks have the option of filing a new lawsuit with a circuit court to try to get a favorable result. But Guidote cast doubt on doing that, saying it would be hard to get a judge to side with the clerks after the Supreme Court declined to get involved. 

Instead of remaking ballots, the clerks could count ballots by hand. But Guidote said doing that isn’t feasible because state law requires all ballots in a jurisdiction to be counted the same way. Most ballots don’t have the error, and counting all of them by hand would be time-consuming. 

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.