Tue. Nov 24th, 2020

  | USA TODAY

The claim: Wisconsin Election Commission might have violated state law by allowing clerks to ‘fix’ ballots, report says

Wisconsin’s election is under a microscope as President Donald Trump cries fraud about the Nov. 3 presidential election that Democratic nominee Joe Biden is projected to win.    

The president and his supporters have said, without evidence, that rampant voter fraud allowed his opponent to claim victory after he started election night ahead. Biden took the lead in Wisconsin and other key battleground states after clerks counted mail-in ballots largely cast by Democrats, according to unofficial results — a trend observers predicted heading into the election.

Now, a new claim is making the rounds on social media.

“Wisconsin Election Commission Might Have Violated State Law By Allowing Clerks To ‘Fix’ Ballots, Report Says,” reads the Nov. 8  headline from Daily Wire.

It relies in part on a WISN radio story out of Milwaukee that makes a similar claim. The claim was widely circulated by conservative websites as well.

Wisconsin Republicans have latched onto the issue in their longshot effort to overturn the state’s presidential results — four years after members of their own party pushed to allow clerks to fill in missing witness information.

Fact check: Wisconsin county did not have a glitch that stole votes from Trump

Here’s what we know about it.

Where did this come from?

Absentee voters in Wisconsin place their ballot in an envelope, also called a certificate, that they sign before returning it. A witness must also sign the envelope and provide their address. 

The state Elections Commission sent a memo to clerks on Oct. 19, 2020, instructing them how to spoil absentee ballots for voters who wanted to vote in person. The memo also provides guidance on how to handle absentee ballot errors, including missing witness signatures or addresses. 

“The witness can appear without the voter to add their signature or address,” the memo states. “Please note that the clerk should attempt to resolve any missing witness address information prior to Election Day if possible, and this can be done through reliable information (personal knowledge, voter registration information, through a phone call with the voter or witness). The witness does not need to appear to add a missing address.”

The commission’s public information officer, Reid Magney, said this guidance has been in place since October 2016 and was brought forward that year by Republicans on the commission. Indeed, an Oct. 18, 2016 memo states that clerks are required to “take corrective actions in an attempt to remedy a witness address error.”

“The guidance has been in effect for 11 statewide elections, including the 2016 presidential and presidential recount, and no one has objected to it until now,” he said.

Fact check: Georgia ballot curing is not election fraud

How the process works

According to the commission, clerks can “reasonably discern” a missing witness address by using voter registration records or any personal knowledge they have about the person’s address. They’re only required to contact the voter before correcting the envelope if they can’t find the address using outside sources.

In those cases, the voter or witness can appear in person to add the missing information or provide it by phone, fax, email or mail. Voters can also request that clerks return the envelope so they can add the witness address themselves, or spoil that ballot and get a new one.

Clerks must initial anything they add to the envelope. Magney said they use red pen to mark the additions and noted that observers could watch the process. We should also point out that any changes to the envelope do not alter the ballot inside, despite what some headlines suggest.    

Magney said “there’s no way to know” how many envelopes were corrected by clerks without reviewing election inspectors’ statements from the state’s 2,408 polling sites. 

Fact check: Milwaukee wards did not have more votes for president than registered voters

What the law says

Conservatives have argued the commission’s guidance violates Wisconsin state law, which states, “If a certificate is missing the address of a witness, the ballot may not be counted.” The statute also requires witnesses to watch voters fill out the ballot and place it in the envelope, without seeing their selections. 

“The one meaningful path that the president would have in Wisconsin would be to challenge the I believe illegal clerks writing in the addresses for the absentee voters’ witnesses,” former Wisconsin Supreme Court Justice Michael Gableman told the Milwaukee Journal Sentinel.

However, Magney said state law doesn’t specify who puts the address on the envelope. 

“If an absentee certificate does not contain a witness address (i.e. the witness forgets or the clerk cannot add it based on acceptable information) then the ballot cannot be counted,” he said.

Fact check: Wisconsin turnout in line with past elections, didn’t jump 22% as claimed

Our rating: Missing context

We rate this claim as missing context because it omits key facts that would give readers a different understanding of the issue, and may be misleading without that additional context. The Daily Wire and WISN stories don’t explain this policy has been in place since 2016 without objection, or that it was brought forth by Republicans and unanimously passed by a nonpartisan commission. 

Our fact-check sources:

  • Associated Press, Nov. 11, AP Explains: Election’s validity intact despite Trump claims
  • USA TODAY, Nov. 10, ‘It’s an embarrassment’: Joe Biden responds to Donald Trump’s refusal to concede presidential race
  • USA TODAY, Sept. 3, Some Democrats warn Trump may use ‘red mirage’ to prematurely declare victory while absentee ballots are being counted
  • Daily Wire, Nov. 8, Wisconsin Election Commission Might Have Violated State Law By Allowing Clerks To ‘Fix’ Ballots, Report Says
  • WISN, Nov 7, Wisconsin Clerks May Have Unlawfully Altered Thousands of Absentee Ballots
  • Wisconsin Elections Commission, Oct. 19, Spoiling Absentee Ballot Guidance
  • Wisconsin Elections Commission, Oct. 18, 2016, AMENDED: Missing or Insufficient Witness Address on Absentee Certificate Envelopes
  • Email from Reid Magney, public information officer for the Wisconsin Elections Commission, Nov. 9, 2020
  • Wisconsin Statute 6.86, accessed Nov. 9, 2020

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2020-11-12T00:25:10Z

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