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Around noon on an overcast April Election Day, dozens of canvassers returned to a second-floor conference room of the Greater Spring Hill Missionary Baptist Church on Milwaukee’s North Side.

They were dressed for the weather: Layers, winter hats and a few with ponchos. Within an hour, they would be back out in neighborhoods and knocking on doors. Walking a careful line between helpful resources and yet another person asking them to vote for the sixth time in less than 16 months.

The gathering of Black Leaders Organizing Communities represents a bulwark against an alarming trend in Wisconsin electoral politics: The state has transformed from one of the easiest places to cast a ballot 30 years ago to one of the most difficult. That trend is particularly pronounced among Black and Latino voters, according to recent research.

If BLOC’s canvassers were tired of talking about elections, executive director Angela Lang told them to imagine the fatigue voters felt.

“We had four elections just in 2022. Four,” she said. “The last one was in November. We slept for like a day, and we’re back at it. If we were doing all of this, imagine being a voter that’s not involved and engaged.”

There’s evidence the increased difficulty voters face compounds the election fatigue.

“If we believe in this experiment of democracy, one of the basic tenets of it … in our current iteration is that everyone who is a citizen at this point has the right to engage with the process,” said Andrea Benjamin, an African American studies professor at the University of Oklahoma who has researched and written about race and politics.

“And we shouldn’t be doing anything that makes that right harder to exercise.”

How it’s gotten more difficult to vote in Wisconsin 

For nearly 20 years, Wisconsin was a model for making the voting process easy, with the state’s same-day registration a major factor, according to the Cost of Voting Index. In 1996, Wisconsin ranked fourth among the 50 states.

In 2022, Wisconsin was among the most difficult places to register and vote, ranking 47th.

The Index, started by researchers at Northern Illinois University, ranks each state using 33 different variables, with registration deadlines carrying the most weight. As other states began to adopt measures already present in Wisconsin, such as same-day voter registration, Wisconsin’s ranking dipped slightly, but remained in the top 10.

Then Republicans took control of the Legislature and governor’s office after the 2010 election and implemented several measures that made voting more difficult. They extended residency requirements, shortened the time frame for early voting, increased residency requirements from 10 to 28 days and enacted the state’s voter ID law, which after several court challenges took effect in 2016.

“As soon as Wisconsin adopted that, it really caused the state to drop in accessibility,” said Michael Pomante, a Jacksonville University political science professor and co-author of the Index. He added that the drop suggested Wisconsin voters faced a “significantly” different landscape compared to other states.

More recently the state Supreme Court disallowed ballot drop boxes — even as some states expanded use — pushing Wisconsin even further down the list.

“It needs to be said or at least noted to Wisconsinites that their voting has become significantly more difficult for their voters over the years compared to other states,” Pomante said. “I mean, they are one of the states that has seen the most dramatic shift in the difficulty of voting over the last two decades.”

Republicans enacted the voter ID law and other restrictions in the name of election security. Then-Gov. Scott Walker, a Republican, described the voter ID law specifically as making it “easier to vote and harder to cheat.”

There’s no evidence that the laws have significantly affected election fraud. 

From 2012 through 2022, there were 48 general, primary and special elections in Wisconsin. Prosecutors brought only 192 election fraud cases, or 0.0006% of all votes cast, Wisconsin Watch previously reported. And only 40 cases dealt with fraudulent actions like double voting or voting in the name of a dead person. The data didn’t show that the new laws had reduced the number of cases, the majority of which related to voting, often by mistake, by those on probation for a felony conviction.

And while it’s possible the laws make it harder to cheat in ways that elude prosecution, they also make it harder for many to vote.

Complicating matters over the past decade: changes to law or procedure coming right before an election, usually as the result of a lawsuit. That’s one of the biggest challenges for election administration, said Claire Woodall-Vogg, executive director of the Milwaukee Election Commission.

Those late changes, along with lack of voter education funding makes matters more difficult, she said, adding that groups like BLOC can help fill those gaps. 

Woodall-Vogg said she’s “cautiously optimistic” that things could improve after last month’s Supreme Court win by Milwaukee County Circuit Judge Janet Protasiewicz, which ended 15 years of conservative control of the state’s high court.

“But I will also say it’s cautious,” she added, “because the length of time it takes to get a lawsuit there would again come right in the middle of a presidential election year.”

Additional barriers for Black and Hispanic voters

Barriers to voting disproportionately affect certain racial groups, according to research from UW-Madison journalism and mass communications professor Michael Wagner.

Black voters spent about 9 minutes getting to the polls during the 2018 midterm election, compared with about 6.5 minutes for non-Black voters, the research found. Researchers also found that Hispanic voters spent about 11 minutes in line, more than twice the wait for non-Hispanic voters.

Additionally, they found that Black and Hispanic voters were less likely to use early voting measures, which could ease those time burdens.

In researching the 2022 midterm election, Wagner’s team found Black voters spent 10.8 minutes getting to the polls and 15.6 minutes waiting in line. For white voters, those times were 6.8 minutes and 7.7 minutes.

“It’s really a tale of two states. On the one hand, Wisconsin has incredibly high voter turnout. We’re always in the top three,” Wagner said, adding that same-day registration and tradition of civic engagement help. “But things are clearly getting worse for Black, Hispanic and lower income voters.”

Closed polling locations and continued underfunding of elections could help explain growing times from 2018 to 2022, he said. 

The researchers who maintain the Cost of Voting Index have linked increased difficulty and a drop in voter participation, but impact varies between groups.

“It actually disenfranchises the undereducated and the lower socioeconomic populations more,” Pomante said. “But if we were to strip those things out and were just looking at racial features, when states have made voting more difficult, it actually spurs Black voters to come to the polls more.”

One reason for that might be the role of community organizers, Pomante said.

Benjamin, the University of Oklahoma researcher, agreed.

“I think that these local organizations … they're priceless,” she said. “I mean, it's just worth everything because they have the community's trust. They have a reputation. The community wants to earn those people's trust and show that they are also good stewards.”

Wisconsin’s increasingly divisive and contentious politics may also help turnout, Wagner said. 

“More people see it as valuable to have their voice heard on Election Day,” he said. “Even if it’s harder, many people still show up.”

Current proposals to address voting issues

Gov. Tony Evers, a Democrat, proposed a range of voting-related changes in his most recent budget proposal that would elevate the state’s Cost of Voting Index ranking.

Pomante said automatic voter registration has propelled many states toward top rankings. Evers has proposed that the Department of Transportation provide identifying information to the Wisconsin Elections Commission so it can automatically register eligible voters. The proposal also allows people to opt out.

The governor also proposed removing restrictions on how early a voter can return their absentee ballot and lowering the residency requirement from 28 days to 10 days. Evers’ budget also includes changes to the type of ID technical college or university students can use and would restore previous requirements that high schools be used for voter registration, something Republicans ended in 2011.

The budget proposal also includes additional funding for local election officials and would allow election workers to start processing absentee ballots before Election Day, a measure that would speed up ballot counting. Republicans plan to remove all those and hundreds of other measures from the budget bill during the first votes in the process Tuesday.

Last year, Evers vetoed a number of election-related bills passed by the Republican Legislature. They would have prevented a voter’s friend or family member from returning their absentee ballot, required clerks to verify voters are U.S. citizens, and given the Legislature control over guidance to clerks from the Wisconsin Elections Commission.

State Sen. Duey Stroebel, R-Saukville, said that if there are issues with the time it takes voters to cast ballots, those are “the fault of local municipalities failing to address the needs of their communities.”

“This trend of higher participation holds up across nationwide elections since passing Voter ID,” he said. “Wisconsin voters routinely rebut the premise of voter disenfranchisement through their actions.”

How BLOC and community organizers find solutions 

BLOC doesn’t plan to put politics on the shelf until the 2024 spring primary. Politics and voter education is baked into everything it does, Lang said.

“If we’re having conversations in the field about what does it look like for the Black community to thrive, nine times out of 10, those responses have a political connection, whether it’s the city budget that’s going to come out this fall or it’s the state budget,” she said weeks after the election. 

“And so there’s so many different ways that civics plays a role indirectly that people may not necessarily see, but every single aspect of our lives has been politicized.”

BLOC reaches voters by building trust. It intentionally set up its headquarters in the 53206 ZIP code, among the most-incarcerated places in the state. BLOC’s members grew up in the community and share the same experiences as the people whose doors they knock on.

They see voters walk into their polling place carrying BLOC literature handed out or placed in doors. 

But it wasn’t always like this, Lang said, recalling the group’s first election in November 2017 when residents viewed them like just another group dropping in. They could see through the “transactional electoral organizing” done time and time again by groups parachuting in for the runup to an election.

Attitudes toward the group changed once people saw that they didn’t leave.

“The team (here at BLOC) came up with this idea last year to do monthly neighborhood cleanups as a way to engage residents around other issues and do something that's beautifying the community,” Lang said. “I think by just having a constant presence allows us to be those trusted messengers.”

Three weeks after the April 4 election, BLOC’s second-floor conference room was once again filled with dozens of people, some of whom endured the rain to canvas on Election Day. But they weren’t there to talk about the next election or even voter registration.

The meeting was about plans for community wellness programs.

It may be the electoral offseason, but BLOC has plenty of work to do

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Voting has gotten harder in Wisconsin. Organizers have found ways to help is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

In the past two decades, the Wisconsin Supreme Court has flip flopped on whether a limit on damages in medical malpractice lawsuits is constitutional.

In three cases involving people who suffered horrific, life-altering injuries or died due to negligence from doctors, the court set three different precedents, including one that overturned one of those precedents.

In Tuesday’s Supreme Court election, liberals could retake a majority for the first time in 15 years, meaning issues previously settled by the conservative-controlled court could be revisited — again.

Back in 2004, the court ruled the state’s $300,000 cap on noneconomic damages — money a jury awards to compensate for pain and suffering — was constitutional in a medical malpractice wrongful death case involving a 5-year-old girl who died when a doctor failed to diagnose her acute diabetic ketoacidosis.

A year later, after a liberal justice was appointed to replace a conservative one, the court tossed a cap involving injury but not death, finding it violated the equal protection clause of the state constitution. In that case, a doctor’s error when delivering a baby left the boy’s arm deformed.

Then, 13 years later in 2018, a conservative-dominated court ruled that the new cap set in 2006 at $750,000 did not violate that same part of the constitution. The case involved the failure of doctors to diagnose a catastrophic infection in Ascaris Mayo, leading to amputation of all four of her limbs, who had been awarded more than $15 million by a jury.

As the medical malpractice issue shows, sharp changes in case law hinge on how the sitting justices view the importance of judicial precedent.

At their only debate on March 21, both candidates were asked that question. Both said they were open to overturning precedent.

Liberal Milwaukee County Circuit Judge Janet Protasiewicz used the U.S. Supreme Court examples of the 1896 case, Plessy v. Ferguson, which found racial segregation in “separate but equal” public accommodations to be constitutional; and Brown v. Board of Education, a 1954 decision that struck down Plessy as discriminatory when it comes to public schools.

“Precedent changes when things need to change to be fair and work well for absolutely, you know, everybody in our society and everybody in our community,” she said. “So of course, we give great, great weight to precedent, but it doesn’t mean that it doesn’t change from time to time.”

Former Wisconsin Supreme Court Justice Daniel Kelly didn’t cite an example, but said justices must look at how current precedent comports with the “original authority” contained in a specific statute or section of the constitution.

“We don’t want to simply follow what’s been done before if we know it’s wrong,” the conservative former jurist said. “To do that would just be to propagate errors from now until the end of time. And that’s not what we do. And that’s not the role of the court.”

Kelly was in the majority for the 2018 precedent-setting case that upheld the $750,000 cap in the Mayo case but did not author a separate opinion. 

Stare decisis at the Wisconsin Supreme Court

Precedent is often addressed at length in briefs to the court and between justices as they draft opinions. The arguments revolve around stare decisis, (Latin for “let the decision stand”) the notion that justices should honor precedents set by their own courts to provide consistency and enhance public perception of the court’s integrity.

Writing in the 2005 case that found the medical malpractice cap unconstitutional, then-Chief Justice Shirley Abrahamson dismissed arguments the court should uphold a precedent set just a year earlier. Precedent is “not mechanical in application, nor is it a rule to be inexorably followed,” she wrote, adding that stare decisis didn’t apply because the 2005 case was about a grievous injury, not a wrongful death.

Precedents are intended to ensure that courts have strong reason to overturn past decisions, due to changes in the law or circumstances.

Writing a dissent in the Mayo case, Justice Ann Walsh Bradley noted the court’s precedent from 13 years prior rejecting the malpractice award cap. She cited another state Supreme Court opinion that said justices shouldn’t overturn past cases “merely because the composition of the court has changed.”

Chad Oldfather, a Marquette University Law School professor who teaches state constitutional law, said the Supreme Court has overturned its own precedents in recent years, but the liberal justices have frequently made the point that the court shouldn’t do it often.

“So I think that, too, plays a role here,” he said, “in the sense that it’s going to make them less inclined to revisit questions because they’ve been, you know, sort of singing this song consistently for the past few years of ‘No, we really ought to adhere to what we’ve decided in the past.’ ”

Courts play role in medical malpractice law

In 2014, the Milwaukee Journal Sentinel reported the number of medical malpractice lawsuits filed in Wisconsin had dropped by more than 50% since 1999. The balance in the state-run insurance fund — created to avoid rising malpractice insurance premiums — had ballooned to $1.15 billion, the newspaper reported, a total larger than all the money it has paid out during its 39-year history.

That year, $21.6 million was paid out in Wisconsin malpractice cases, the lowest annual total since 1990, according to federal data.

The fund surpassed $1.2 billion in 2020 and, according to a report released in March, has decreased but remains above $1 billion. In 2022, $20.1 million was paid out in malpractice payouts. And since 2014, nine medical malpractice insurance policies increased in cost and the same number either stayed flat or decreased, according to Medical Liability Monitor, a trade publication that tracks rates.

J. Michael End, a Milwaukee medical malpractice attorney, said he thought the horrible circumstances before the Supreme Court in the Mayo case presented justices with the best reasons he had seen to prove the cap should be tossed for good. 

“I thought that if there was ever a case that would’ve brought about a change in the law, that was it,” End said. 

End was cautious to predict whether a medical malpractice cap case would return to the Supreme Court if Tuesday’s election goes in Protasiewicz’s favor. But it could, perhaps years from now. 

End said any challenge to the cap would likely take years, noting the Mayo decision came eight years after the plaintiff lost her arms and legs in 2011.

Because there are now fewer medical malpractice cases, the pool of possible challenges is relatively small. A lawsuit would also need to have noneconomic damages in excess of $750,000, with rulings from the trial court judge and Court of Appeals that allowed for the case to even reach the Supreme Court.

“There may well be the opposite result someday,” End said, “because we’re going to have new justices on the Supreme Court.”

Kelly didn’t respond to questions for this story.

Protasiewicz declined to say which case — the one tossing or the one affirming the cap — should be precedent in Wisconsin, saying she’d have to hear a case and its arguments before reaching a conclusion on what should be done going forward.

“There should be a very high bar to overturning prior decisions,” she told Wisconsin Watch when asked her views on precedent. “If a precedent is no longer workable or doesn’t meet constitutional standards, reversing precedent can happen, but those examples should be few and far between.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Medical malpractice in Wisconsin: Could Supreme Court election change precedent? is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

In March 1996, 5-year-old Shay Maurin died of acute diabetic ketoacidosis.

When Shay began feeling sick, her mother took her to a West Bend doctor who diagnosed her with an ear infection, prescribed antibiotics and recommended she get tested for diabetes.

Her mother took her to a hospital the next day due to rapidly worsening symptoms, but the doctor sent her home after failing to diagnose her condition correctly.

The next day they returned to the hospital and a different doctor made the correct diagnosis. Shay was transported to a children’s hospital but she lost consciousness during the ambulance ride and later died.

Her parents sued and a jury awarded $3 million in damages, but the state’s cap meant they’d see just a small portion of that.

The family argued to the Supreme Court that because the Legislature had changed the cap several times over the years it had “no basis in fact and is completely arbitrary.”

However, Justice David Prosser wrote for the majority that “periodic changes” by lawmakers “suggest legislative attention and thoughtfulness, not arbitrary action.”

The court upheld the limit on noneconomic damages in medical malpractice wrongful death cases, and Shay’s parents received $300,000.

The Ferdon case sets a new precedent

The same year Shay died, a doctor delivering Matthew Ferdon pulled on the baby’s head in a manner that caused obstetric brachial plexus palsy, causing Ferdon’s right arm to be partially paralyzed and “deformed.”

He underwent surgeries and occupational therapy, but the baby’s arm would never function normally.

The jury awarded Ferdon about $1.1 million, with $700,000 of the award for noneconomic damages. The cap, set at $350,00 but adjusted for inflation, was reduced by a judge to $410,322.

In a 4-3 decision, the Supreme Court struck down the cap, saying it separated injured patients into two groups, those who got noneconomic damages below the cap and those who got noneconomic damages above the cap. The first group would get the full jury award. The second group would not.

Chad Oldfather, a Marquette University law school professor who teaches state constitutional law, said the decision was a departure from the court’s usual standard that’s very deferential to the Legislature, requiring the court to find a law unconstitutional “beyond a reasonable doubt.”

Then-Chief Justice Shirley Abrahamson, writing the majority opinion, said judicial deference to the Legislature’s role in writing laws doesn’t mean the justices should “acquiesce in the constitutionality of every statute.”

The Ferdon came down to a single vote. Justice N. Patrick Crooks sided with the majority but wrote a separate concurring opinion to make clear he felt that a cap wasn’t automatically unconstitutional.

“But there must be a rational basis so that the legislative objectives provide legitimate justification,” he wrote, “and the cap must not be set so low as to defeat the rights of Wisconsin citizens to jury trials and to legal remedies for wrongs inflicted for which there should be redress.”

A year later, the Legislature held hearings, listened to testimony and set a new cap at $750,000.

Oldfather said he thinks the court made a “rhetorical mistake” in Ferdon by saying it used a “rational basis with teeth” to review the cap’s constitutionality.

“That ended up being the thing that the subsequent majority reversing course on that seized on,” he said.

Protasiewicz told Wisconsin Watch that both standards are “valuable” and that the U.S. Supreme Court has used both in its opinions.

“Rational basis with teeth has been critical in cases involving state action taken against disadvantaged groups and is an important element when ruling on the constitutionality of a statute that finds itself in this category,” she said.

She added that she didn’t think the court “necessarily erred” in using this standard in Ferdon, but couldn’t say how she’d rule in a hypothetical case if elected.

Conservatives uphold new cap

In 2011, Ascaris Mayo went to a Milwaukee emergency room with abdominal pain and a high fever. A physician and physician’s assistant told her to see her gynecologist because she had a history of uterine fibroids.

The next day, when her symptoms remained, she went to another Milwaukee emergency room where doctors diagnosed her with sepsis from an untreated infection. She subsequently suffered organ failure and all four of her limbs were amputated.

A jury awarded her $8.8 million in economic damages, plus more than $15 million in noneconomic damages, which, because of the 2006 cap, would be reduced to $750,000 — a 95% cut.

The trial and appellate courts ruled the cap violated the constitution, consistent with the 2005 precedent.

A new Supreme Court heard oral arguments in April 2018. Then-Chief Justice Patience Roggensack, writing for the 5-2 majority, said the Ferdon case “erroneously invaded the province of the legislature” and applied the wrong standard.

The court reverted to the previous standard — under which a statute must be found unconstitutional beyond a reasonable doubt.

“By enacting the cap, the legislature made a legitimate policy choice, knowing that there could be some harsh results for those who suffered medical malpractice and would not be able to recover the full amount of their noneconomic damages,” Roggensack wrote. “However, any cap, by its very nature, will limit the amount that some people will be able to recover. If the cap did not do so, it would have no economic effect.”

‘Not a sufficient deterrent’

Deirdre Gilbert, national director of the nonprofit consumer advocacy group National Medical Malpractice Advocacy Association, said caps and hurdles to lawsuits only add to suffering of patients or the families of those who died.

Those barriers, she said, can be “devastating” for families seeking justice when they discover limits on damages mean attorneys are unlikely to help them when someone is hurt or killed. No one is willing to help, which can lead to anger and sometimes much worse.

“There have been several people who because they could not get any assistance, whether they were harmed themselves or their loved ones, committed suicide,” she said.

Paula Berg, a professor at the City University of New York School of Law who specializes in health care and tort law, said the “gigantic awards” that hospitals and insurance companies fear only come when someone has “suffered absolutely horrific injuries.”

“And by that I mean they’re basically paralyzed or their injuries are going to cause tremendous amounts of pain,” she said. “And to not fully compensate that is very unfair and not a sufficient deterrent (to negligent doctors).”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin’s three precedent-setting malpractice cases explained is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

One Supreme Court candidate calls his opponent a “liberal activist.” The other calls her opponent a “right-wing extremist.”

The mud-slinging heading into the April 4 Wisconsin Supreme Court election between former Justice Dan Kelly and Milwaukee County Circuit Court Judge Janet Protasiewicz is emblematic of the court’s bitter political divide over the past 20 years.

Since a similarly cantankerous Supreme Court election in 2008, conservatives have dominated the court. Prior to that, liberals issued several decisions that irked the state’s business interests, precipitating huge outside spending on what had previously been sleepy Supreme Court elections.

“What has become increasingly troubling is that over the past 15-plus years you started to get very conscious tribal definition by the justices,” said Ed Fallone, who has run twice for Wisconsin Supreme Court unsuccessfully as a judicial moderate. “When it’s open warfare on ideological lines and the tribal definitions get involved, that’s when national money starts flooding in because the tribe is national.”

To understand the origin of the political division on the court, it’s helpful to re-examine some of the cases each side views as judicial overreach.

Conservatives decry “liberal activism”

When conservatives talk about “liberal activism” they refer to several cases from the 2004-05 court term, which former Justice Diane Sykes referred to as “a watershed.” After Sykes was appointed to the 7th U.S. Circuit Court of Appeals, Democratic Gov. Jim Doyle appointed Louis Butler Jr., a former public defender and Milwaukee municipal judge.

Here are five of the cases conservatives pointed to:

Thomas v. Mallett 

In a 4-2 decision, the court ruled manufacturers could be held liable for injuries sustained by a child who had eaten lead paint chips in a Milwaukee house, even though the plaintiff couldn’t establish which company produced the lead or the paint.

Sykes called it “the most consequential common law decision” of the 2004-05 term and represented “a major reordering” of the tort system. Republicans undid the Thomas decision in 2011 through a sweeping tort reform bill.

Ferdon v. Wis. Patients Comp. Fund

The case involved a newborn injured due to negligence. The child would require care for the rest of his life. The jury awarded $700,000 in damages for the injury and $403,000 for future medical expenses, which exceeded the state’s $350,000 cap on noneconomic damages approved by the Legislature.

The liberal majority in a 4-3 decision struck down the cap as a violation of the Wisconsin Constitution’s equal protection clause.

“After Ferdon, it is hard to imagine the statute that could not be a target for a successful equal protection challenge,” wrote Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty.

Wischer v. Mitsubishi (Miller Park personal injury case)

In 1999, a crane collapsed in high winds at Miller Park, killing three workers. A jury awarded their widows $94 million in punitive damages, but an appellate court overturned the ruling, finding state law limited such damages to cases in which the defendant acted maliciously.

In a 5-1 decision, the high court reversed the appellate decision, applying a lower standard that the defendant disregarded the plaintiff’s rights. The parties later settled for $30 million.

After his election defeat in 2008, Butler said spending in the race by Wisconsin Manufacturers and Commerce, the state’s largest business lobby, sent a chilling message to judges to “not vote against business interests.” He referred to Thomas, Ferdon and Miller Park as decisions that caused WMC to deduce “that since my arrival on the court, our court’s decisions sometimes favored the consumer, and that was unacceptable.”

In a 2008 interview with Wisconsin Law Review, Jim Pugh of WMC called the cases “massive power grabs by the court,” and added, “there was a very robust debate about these cases, and his activist approach was repudiated by the voters.”

State v. Knapp

In a case involving a murder suspect, Matthew Knapp, police found the victim’s blood on Knapp’s sweatshirt in his apartment after he had invited in police, who did not issue a Miranda warning. The court in 2003 cited federal constitutional law in ruling that the sweatshirt evidence should be suppressed, finding that law enforcement violated the Knapp’s 5th Amendment protection against self-incrimination. But the U.S. Supreme Court later rejected that argument in a separate case. And after reviewing the Wisconsin case, it instructed the Wisconsin Supreme Court to reconsider its opinion under the state Constitution. 

In this second review, the state Supreme Court again ruled in Knapp’s favor. 

Conservatives said the expansion of a defendant’s state constitutional rights conflicted with a historical alignment of state and federal constitutional rights.

In his concurrence, Justice N. Patrick Crooks said the decision “serves to reaffirm Wisconsin’s position in the ‘new federalism’ movement,” which was a response among some in the legal community to an increasingly conservative U.S. Supreme Court.

State v. Dubose

In another case that Sykes considered part of the same “new federalism” movement, the court ruled 4-3 in a case involving a police procedure known as a “showup,” in which a suspect is presented to a victim, often at the crime scene. The court found that procedure unconstitutional, partly because of studies showing the unreliability of eyewitness testimony. Conservatives decried the decision for overturning U.S. Supreme Court precedent based on “social science.”

Notably, when Protasiewicz sought Republican Gov. Scott Walker’s appointment to be a Milwaukee County Circuit Court Judge in 2012, she mentioned the Dubose case as the worst Wisconsin Supreme Court decision in the previous 30 years.

Liberals point to string of conservative decisions

In 2008, Butler lost to Michael Gableman, and in 2010, Republicans swept into statewide office. The Legislature’s new GOP majority passed Act 10 under Walker, which reined in the power of public sector unions and helped re-elect Justice David Prosser in 2011 against a liberal challenger. When Crooks died in 2015, Rebecca Bradley was appointed to the court, solidifying a 5-2 conservative majority.         

Mike Browne, deputy director of the liberal advocacy group A Better Wisconsin Together, pointed to several high-profile, controversial cases that reinforced Republican control. It’s unclear if the cases would be revisited should Protasiewicz win, giving liberals a majority.

“The larger point is that court majority matters, and the conservative court majority worked its will in ways that have significantly impacted the state,” Browne said.

Here are five of the cases Browne highlighted:

Madison Teachers Inc. v. Walker

Teacher unions in Madison and Milwaukee filed suit in August 2011 over Act 10, which among other things, barred most public employees from collective bargaining on issues other than “base wages.” Writing the majority opinion in the 5-2 ruling, conservative Justice Michael Gableman upheld Act 10 in its entirety, reversing a Dane County Circuit Court ruling.

Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund

Ascaris Mayo went to a Milwaukee emergency room in 2011 with abdominal pain and a high fever. A physician and physician’s assistant told her to see her gynecologist. The next day, she went to another emergency room and was diagnosed with sepsis from an untreated infection. Mayo subsequently suffered organ failure, and all four of her limbs had to be amputated. A jury awarded $16.5 million in noneconomic damages. But the 5-2 decision reduced the award to $750,000, citing the state’s malpractice cap, which the Legislature reinstated in 2006.

The decision effectively reversed the court’s 2005 decision in the Ferdon medical malpractice case.

“The Mayos certainly are very sympathetic plaintiffs because of the severe injuries that Ascaris Mayo has suffered,” Roggensack wrote for the majority. “However, were we to construe the cap based on our emotional response to her injury, we would be substituting our policy choice for that of the Legislature.”

Wisconsin Carry v. City of Madison

In 2005, Madison adopted a rule that prohibited passengers on its public bus service from bringing onboard “any items of a dangerous nature,” which included “pistols, rifles, knives or swords.”

Wisconsin Carry later asked the city to bring the rule in line with the 2011 law that allowed concealed carry in Wisconsin. The city refused, and Wisconsin Carry sued but lost at the circuit court and appellate level. The 5-2 opinion in 2017 tossed the city’s rule, saying it could not be enforced in light of the 2011 law.

League of Women Voters of Wisconsin v. Tony Evers

The League of Women Voters sued after the Legislature convened an extraordinary session in 2018 just before Walker left office. Republicans passed a number of bills to limit the powers of incoming Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, including action on the state’s Voter ID law. The 4-3 opinion found the Legislature’s actions, which also included 82 appointments, was legal.

Tavern League of Wisconsin, Inc. v. Andrea Palm

The third of three Supreme Court decisions that struck down Evers’ pandemic-related restrictions. The 4-3 ruling found the restrictions needed to be passed as emergency rules, which require legislative approval. The specific order at issue limited bars and restaurants to 25% of their typical capacity. The Tavern League of Wisconsin argued the orders would cause “economic ruin” for bars and restaurants.
The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Conservatives, liberals weigh in on Wisconsin Supreme Court ‘activism’ is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Election fraud is exceptionally rare: Over the past decade in Wisconsin, it has been prosecuted fewer than 200 times, or about once for every 163,000 ballots cast.

And within that tiny universe, the most common reason for criminal charges is not people voting under dead people’s names, double voting or voter impersonation — the kinds of crimes election skeptics like former President Donald Trump claim happen on a large scale. The main cause is a voter’s probation status, a Wisconsin Watch analysis of every Wisconsin election fraud case since 2012 found.

The analysis, with data compiled by Court Data Technologies, also found Black Wisconsinites, most of them from Milwaukee County, are even more overrepresented in election fraud prosecutions than they are in the court system overall.

The Wisconsin Watch analysis is the most comprehensive accounting of Wisconsin election fraud cases to date. The Heritage Foundation, a conservative think tank, includes in an online election fraud database only 35 cases since 2012.

“I would say the allegations are out of scale with the rate at which there are actual crimes committed by voters,” said University of Wisconsin-Madison political science professor Barry Burden, who runs the Elections Research Center. “It’s not that there are no crimes committed by voters ... but they’re just minuscule compared to the number of allegations.”

In 2022, the Marquette Law School poll found 81% of Republicans were “very concerned” about accurate vote count — topping the level of concern over issues including inflation, crime and illegal immigration.

The specter of even a scant amount of election fraud has been used to justify the state’s voter ID law, Republican efforts to restrict voting options during the pandemic and Trump’s attempt to overturn the 2020 election results.

Yet none of the dozens of GOP “election integrity” proposals would help prevent or detect the most common voting infraction: people who, knowingly or not, vote while still under Department of Corrections control.

The overheated rhetoric over fraud — and the threat that any voting mistake could lead to jail or probation — can be enough to dissuade a person from voting, said Christopher Uggen, a University of Minnesota sociology professor who co-authored a book about felony disenfranchisement.

“And that’s not to say necessarily that anybody who raises the issue of voter fraud is engaging in these efforts,” he said. “But I do think there is an element, at least, who is more cynically and actively trying to suppress the vote and may raise doubts in people’s minds about the negative consequences of them going out and voting.”

More evidence that election fraud is rare

Between Jan. 1, 2012, and spring 2022, Wisconsinites cast more than 31 million ballots in contests from president to town clerk.

There were 48 general, primary and special elections, but only 192 prosecutions for election fraud, or 0.0006% of all votes cast.

Wisconsin Watch partnered with Court Data Technologies to compile a database of all felony cases since 2012 that included charges related to election fraud, illegal voting or illegal voter registration.

Of the 192 prosecutions statewide, Wisconsin Watch was able to determine the nature of allegations in all but 11. There were 40 cases that involved the kind of fraudulent voting of the type banned everywhere, such as double voting or voting in the name of a dead person. 

In 20 cases, election workers, volunteers or candidates were charged. The most recent and high-profile example is a now-former Milwaukee election clerk who requested military absentee ballots be sent to a lawmaker under fake names just before November’s election. Five of those were for candidates who submitted fraudulent nominating papers.

Three Marathon County cases stemmed from a town clerk who signed a random voter’s name in the poll book so the list matched the number of votes cast in the 2020 election. The clerk pleaded guilty in December and received two years of probation, with the condition to have no election involvement. Felony cases against Marathon County poll workers are ongoing.

In seven cases, voters used improper addresses to register; three cases involved noncitizens voting; and two involved disorderly conduct at a polling place. Five cases against Fond du Lac voters charged in 2022 for using their UPS Store address are now closed, with prosecutors dismissing one, deferring prosecution in another and accepting misdemeanor plea deals in the others.

More than half of the cases — 109 — involved people voting or registering to vote before their probation ended. And 39 of those came from Milwaukee County.

From 2012 through spring 2022, Milwaukee County prosecutors charged 57 people with election-related crimes — the equivalent of 0.0013% of 4.46 million votes cast.

“There is not a significant number of fraudulent votes being cast,” said Matthew Westphal, the Milwaukee County assistant prosecutor who handles election crimes.

“The fact that we get referrals for illegal voters or fraudulent voters is indicative of the fact that the system is working, because it is catching those people who are voting fraudulently.”

It’s common for prosecutors to bring charges more than a year after an election, particularly for felony disenfranchisement cases. The Wisconsin Elections Commission, by law, does an audit after each election to see if anyone ineligible due to their probation status voted. Cases are referred to local prosecutors, and additional investigation is likely needed.

Court data show at least 52 people received sentences that went beyond fines and fees; only six were ordered to serve more than a month in jail. 

Few cases of double voting, voter impersonation

Voter fraud cases in Wisconsin include a Fort Atkinson man who voted twice in the 2012 gubernatorial recall election against then-Gov. Scott Walker — once in his voting district in Fort Atkinson and once in the nearby town of Koshkonong, where he used to live. Wisconsin Watch is not naming him and another defendant because both told authorities they didn’t know they were violating the law.

The man initially told police he couldn’t explain why his signature was also in the Koshkonong poll book and denied voting there. However, court records indicate he later told police that while he lived in Fort Atkinson for several years, he continued voting in Koshkonong, which he did not realize was wrong.

He is one of just 21 people charged with voting more than once in an election in the previous 10 years.

Another anti-fraud measure enacted in Wisconsin requires voters to present a photo ID to vote. It was signed in 2011, but legal challenges delayed implementation until 2016. 

Burden said the state’s voter ID law was “probably the most significant effort to try to combat either perceptions of vote fraud happening or actual crimes.” However, the only crime it is designed to prevent is voter impersonation.

Of the 192 election fraud prosecutions from 2012 through spring 2022, only five dealt with voter impersonation — with just one of those coming prior to the ID law taking effect, according to the Wisconsin Watch analysis. Those five include the case of Harry Wait, a Racine County political activist who turned himself in to authorities in 2022 after requesting absentee ballots for elected officials to show such fraud was possible.

Critics of Wisconsin’s voter ID law and other restrictions or hurdles to voting have said such measures are not preventing much fraud — but they are keeping many people from voting. 

“Voter suppression has been applied differentially throughout the nation's history,” said Uggen, the University of Minnesota sociologist. “We know from the Reconstruction era and the Jim Crow era that there were many efforts taken to suppress the Black vote. And a threat of cracking down on illegal voting can have that same chilling effect.”

Probation the most common case

Two-and-a-half months after his release from prison, a Milwaukee man went to a polling place in November 2018 with his mother.

He didn’t go along planning to vote, according to court records, but once at the polls, his mother told him he was eligible. He also remembered hearing something about the government overturning the rule banning people with felony convictions from voting, so he registered that day and cast a ballot.

Two and a half years later, he was charged with a felony for providing false information to an election official. The charge stemmed from checking a box declaring he wasn’t on probation.

Six months later, he pleaded guilty, and a judge ordered him to pay court fines and fees. 

That’s what the typical election fraud prosecution in Wisconsin has looked like over the past decade, Wisconsin Watch found.

State law bans anyone convicted of a felony from registering or voting until they’re “off paper,” meaning they’ve completed probation, extended supervision or parole. 

Bill would ban voting until fines paid

A bill introduced in February by state Sen. Duey Stroebel, R-Saukville; Rep. Shae Sortwell, R-Two Rivers; and 13 other GOP lawmakers would bar voting until they’ve paid “all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service.” A similar law passed by Florida’s GOP-run Legislature in 2019 keeps hundreds of thousands of felons — who regained voting rights in a 2018 statewide referendum — from voting. 

In a statement to Wisconsin Watch, Stroebel said probation and restitution are as much a part of someone’s sentence as incarceration. 

“When a court determines a necessary part of a felon’s punishment and rehabilitation is to make restitution for the harm that felon imposed on others, fundamental fairness demands such debts to society be paid if that person is to be treated the same as the vast majority of Wisconsinites who didn’t commit a felony,” he said.

However, the bill doesn’t include additional safeguards to prevent someone with a felony conviction from casting a ballot, such as improving the system poll workers have to check before such a person registers and votes. Sortwell’s office said the Wisconsin Elections Commission should issue rules to inform local clerks about the changes in voting eligibility.

Uggen said many states are moving to ease voting restrictions on people with felony convictions. Confusion about eligibility is common among formerly incarcerated people, even probation officers or election workers, according to court records and interviews. 

Probation can last years, during which someone moves or has new probation officers. They can be misled by false information. In one case, the Department of Corrections incorrectly told a man he could vote again, his attorney said.

Uggen said one way to reduce confusion would be to establish a clearer line for eligibility, such as allowing people to vote after incarceration ends, which happens in Illinois, Indiana and 20 other states.

“It's increasingly hard to justify disenfranchising those who are fit to be in the community in every other way,” Uggen said.

Racial disparity in election fraud cases

Black Wisconsinites make up just 6.8% of the state’s population, but 25% of defendants in election fraud prosecutions, the Wisconsin Watch analysis found.

They make up about 27% of everyone on probation or community supervision in Wisconsin, but 33% of those charged with voting while on probation.

In Milwaukee County, which is 28% Black, prosecutors brought charges against Black voters in 70% of its election fraud cases.

Westphal, the Milwaukee County prosecutor, said he doesn’t review demographic information when deciding whether to charge someone, but acknowledged his office is aware of disparities in whom it charges. He cited a recent study as part of the office's efforts to address those disparities.

Keisha Robinson, deputy director of Black Leaders Organizing for Communities Milwaukee, said Wisconsin Watch’s findings don’t surprise her. Felony disenfranchisement cases, she said, have ripple effects for years. 

She recounted the story of a woman she knows who was charged in 2007 after voting while still on probation. The woman, who didn’t know she was committing a crime, got nine months in jail. 

“When people heard about her being charged and having to do jail time, there were lots of (people saying) ‘That’s why I don’t vote,’ ” she said. “I think a person simply wanting to cast their vote, but is misinformed, shouldn’t be charged with a felony.”

Editor's note: This story was updated to clarify that a proposed bill does not provide additional safeguards to prevent someone serving probation for a felony from voting. It also corrects that a photo ID is needed to vote, but not to register to vote.

Reporting for this story was supported by the Fund for Investigative Journalism. The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

‘Election integrity’ proposals do not address most common voting infraction in Wisconsin is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

As Wisconsinites head to the polls on Tuesday they may only spend four or five minutes with their ballot.

They’ll mark their votes, get a sticker and check the results that night.

But their ballots have a much longer life cycle, with checks and balances in place along the way to ensure they’re counted correctly.

Before they are handed to voters, ballots are designed and tested, then distributed to local clerks and secured. Their movements over days and weeks before and after Election Day are documented.

Despite the safeguards, disinformation about ballots has swirled since the 2020 election. Republicans led by former President Donald Trump have made all sorts of fantastical claims such as supposed late election night ballot “dumps” in Milwaukee.

The phenomenon is easily explained by a state law that prohibits the counting of absentee ballots before Election Day, meaning clerks must juggle in-person voting with hundreds or thousands of absentee ballots that must be taken from envelopes and fed through counting machines, often at the end of a long day of voting.

And on Oct. 31, state Rep. Janel Brandtjen, R-Menomonee Falls, reported someone requested absentee ballots for three members of the military and had them mailed to her home. Days later, Milwaukee fired the deputy director of its Election Commission, and officials said she may have requested the ballots — off duty and without city resources — in an effort to show a vulnerability.

On Friday, Milwaukee prosecutors charged Kimberly Zapata, the former official, with a felony and three misdemeanors.

“While this case understandably will receive a lot of attention,” Wisconsin Elections Commission Administrator Meagan Wolfe said in a statement, “the fact remains that election fraud is extremely rare, and when it does occur, it is quickly discovered, and there are consequences.”

The design and prep work of a Wisconsin ballot

The life cycle of a ballot starts shortly after the previous election.

Counties began preparing the ballots for the Nov. 8 election as soon as the candidates emerged from the August primary.

Most counties rely on a printing company for both ballot design and production. Dane County is one of the few that design them in house, County Clerk Scott McDonell said.

They aren’t printed on regular paper someone might use at home. The paper is thicker, designed specifically for the tabulator machines. Each has black hash marks along the bottom that tell the tabulator where to look for votes.

Various conspiracy theories about paper ballots used in the 2020 election have been debunked, including in Arizona where a group unsuccessfully looked for water marks or bamboo fibers in the paper, supposedly because of unfounded suspicions they were produced in China.

From the moment a municipal clerk receives the ballots, usually a few days before absentee voting, the practice of documenting their every move begins.

In Portage, about 45 miles north of Madison, the election materials are stored in a vault in city hall, said Portage City Clerk Marie Moe, president of the Wisconsin Municipal Clerks Association.

Clerks test the ballots and tabulators before the election, including a test that’s open to the public and must take place within 10 days of the election. The tests ensure machines read everything correctly.

Absentee voting has its own rules

Once the ballots are tested, they can be sent to absentee voters, which Moe and other clerks have been doing for weeks. Since Sept. 22, they’ve been required to send them within one business day of receiving a request.

Before someone can receive an absentee ballot in the mail, they must first make a written application request, which can be mailed or done on the state’s myvote.wi.gov website. Clerks don’t send them out until staff verify the voter’s eligibility and log the request into their system.

That does not apply if a voter is registered as being indefinitely confined. These voters automatically receive ballots without request — but then lose that status if a ballot isn’t returned. In those cases, clerks send out a notice to the indefinitely confined voter. If they don’t reapply for that status within 30 days of receiving the notice, they will be removed from the indefinitely confined list.

In every case, an election worker initials the ballot, a key step that makes it a live ballot that can be cast. They’re folded and placed into envelopes with postage, and then bundled together and given to postal workers.

A recent court ruling means absentee voters will not be able to “spoil” their original ballot and vote in person if they want to change their vote. Fewer than 1% of ballots had been spoiled in recent major elections.

Many groundless conspiracy theories have targeted the absentee process, but clerks and officials have defended the safeguards. No widespread fraud with mail voting has been found in Wisconsin.

Activist gets felony charge after getting other voters’ ballots

A lack of systemic fraud doesn’t mean elections are perfect or without gaps or mistakes. 

Conservative activists in Wisconsin have been requesting absentee ballots for other people, which is a felony — a punishment meant to deter such activity. Nonetheless, the actions have highlighted parts of the system that can be manipulated, if people are willing to go to prison. 

Harry Wait, 68, of Union Grove, requested absentee ballots for state Assembly Speaker Robin Vos, R-Rochester, and others. Wait had the ballots mailed to himself — and then publicized what he’d done, saying he was ready to be charged criminally.

Wait requested the ballots, according to a criminal complaint that included four felonies, to show “that it was possible to ‘harvest ballots’ on the Internet.”

Still, the process to request an absentee ballot does have safeguards.

Voters must already be registered, which means there’s been some vetting about who they are and their residency, said Melissa Kono, clerk for the Town of Burnside in Trempealeau County.

If the voter doesn’t have a photo ID on file, that needs to be verified as well, unless they are indefinitely confined or a military voter. A ballot that comes back without the proper initials would raise a red flag, Kono said, and require additional checks to see if someone forgot to initial the ballot or someone is trying to commit fraud.

Here’s how in-person absentee voting works

Starting Oct. 25, Wisconsinites were able to vote early, in person, which is, in effect, another way to vote absentee.

Each morning of early voting, Moe and her staff take about 20 ballots out of the vault for each precinct, a step that is documented like nearly everything else over the next several weeks.

“Documentation is a huge, huge thing that I don’t think people think about in general,” she said “The inspector statement is kind of like the diary of Election Day.”

When they check in for early voting, voters have to state their name and address, and present their ID. Staff verifies the voter information in WisVote, Wisconsin’s online election management system.

Once signed in, staff initial the ballot, and the voter can then make their decisions. 

Portage and Madison use ExpressVote machines for some early voting. They’re also used on Election Day by people with disabilities who require assistance. This varies by municipality, and absentee ballots mailed to voters are often perforated, unlike Election Day ballots, to make them easier to fold for envelopes.

On the ExpressVote machines, voters insert a blank ballot and use a touch screen to make their choices. The machine prints their choices onto the paper that’s returned to the voter, which is sealed in an absentee envelope. An election worker or clerk can sign as the witness.

Under Wisconsin law, clerks can’t start counting absentee ballots — be they in-person or by mail — until Election Day. Some large municipalities, like Milwaukee, use central locations to tally absentee votes. That’s how a large number of votes can be reported late at night all at once.

It’s Election Day! 

By the time Tuesday rolls around, more than a half million Wisconsinites will have voted. But many more will do so on Election Day.

At the state’s 3,700 polling places, workers verify a voter’s registration and correct polling location. Two workers initial a blank ballot, making it active before handing it off to the voter.

Voters then enter the booth and make their decisions.

The next stop is the tabulator.

Voting tabulators have been targets of disinformation, but researchers and clerks have said they’re simply large counting machines that are faster and more accurate than people.

“This machine has no modem to it,” Kono said of her tabulator. “It can’t be hooked to the internet. Even if it could, I don’t have internet here. So there’s no transmission capability for this machine.”

The machines use the cartridges — which can look like a flash drive or handheld video game cartridge — to know who the candidates are and where they appear on the ballot. The company that programs them does so on computers that aren’t connected to the internet and are monitored by security cameras.

The tabulators also check for any errors, like too many votes cast for a particular race, and voters can correct those errors. If there’s no problem, the votes are counted and the ballot dropped into a locked bin. In Wisconsin, whether someone voted is public information, but who they voted for is not.

Voters then get an “I Voted” sticker and carry on with their day.

But the ballot still has a ways to go.

Counting the absentee ballots 

On Election Day, voters might see workers run a handful of ballots through a tabulator that don’t appear to come from voters. What they’re doing is counting absentee votes, clerks told Wisconsin Watch. The activity is documented on the inspector logs that are later sealed with other election materials. 

Once the polls close, election workers as a team open the tabulators to remove the ballots. Some might have been removed previously to make room in the bins. A step that, like nearly all others, will be documented.

Workers then check for registered write-in candidates and verify that the number of ballots cast equals the number of votes the machines recorded. If the numbers don’t match, election workers will double check the voting machine bins and review the poll books. Sometimes a discrepancy must be addressed with a random “draw down” of ballots. 

Workers check the count totals for in-person and absentee voters to find the group with the discrepancy. Ballots are placed in a box and workers randomly remove ballots, which are marked as “removed due to an excess number of absentee ballots.” This is done publicly, but without explanation.The ballots are retained, but not counted, and marked as removed.

Long-term storage for ballots

Even after being cast and counted, a ballot’s life still isn’t over. 

They’re once again placed into bags and locked with a security seal like all the other election materials. Used and unused ballots are secured in separate bags, the number of each documented.

Each county handles the long-term storage and collection of materials differently.

In Columbia County, where Moe works, all the sealed election materials are taken to the county clerk the next day.

Dane County municipalities hold onto their ballots unless the county needs them. McDonell said he’d like the county to keep them once a $12 million secure storage facility is built.

By law, ballots with a federal office must be held for 22 months and 12 months if they involve only state or local offices. The retention is mostly to preserve evidence in the event of a law enforcement investigation or a recount. The day after the election, the Wisconsin Elections Commission randomly selects contests and polling places for audits.

McDonell said the ballots are eventually shredded and discarded when legally allowed.

When the calendar turns to Nov. 9, voting in the midterm election will be over, but clerks won’t have long before the work starts all over — just 105 days until the next election.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Security seals and documentation: The life cycle of Wisconsin election ballots is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Within a few years of returning from two traumatic combat tours in Iraq and Afghanistan, David Carlson lost his voting rights.

He spent about four years in prison on felony charges that in Wisconsin result in disenfranchisement.

What Carlson didn’t realize is that while he sat in jail prior to his conviction, he could have cast a ballot. Only, he says, no one told him he was still eligible. 

While tens of thousands of Wisconsinites are legally barred from voting because of felony convictions, thousands more eligible voters in local jails face persistent barriers to casting a ballot. 

Advocates with Demos, a progressive think tank, call this “de facto disenfranchisement.” 

“Disenfranchisement is, in my opinion, a violation of our constitutional liberties, especially individuals who are eligible to vote and the only barrier is the fact that they’re in a jail that doesn’t have a well defined process,” says Carlson, now a community organizer and law school student.

The Wisconsin state constitution enshrines voting as a right for all adults with only two exceptions — people deemed incompetent by a court and those serving felony sentences. 

Almost all of the roughly 20,000 people in Wisconsin’s prisons are ineligible to vote, as are the tens of thousands on probation, parole or extended supervision. Although the Department of Corrections notifies those with felony convictions when they have lost their voting rights, they do not alert them when they are restored, which happens after felons have completed their entire sentences.

But at any given time, some 10,000 to 12,000 people are locked up in the state’s county jails, with roughly half in on misdemeanor-related charges and/or awaiting trial, which means thousands likely still have the right to vote. Yet the number of those who actually cast a ballot is miniscule: about 50 in 2020, according to the American Civil Liberties Union of Wisconsin.

The ACLU’s 2022 report on incarcerated voting, released Monday, largely mirrors responses  Wisconsin Watch got from public records requests sent to all 72 counties. Neither organization got every county to respond. 

The ACLU, which received a few more responses than Wisconsin Watch got, found 47 counties with a policy, many from Lexipol, a Texas-based company that creates public safety policy templates that local governments can use and adapt. Sixteen counties lacked any written policy and 15 had something more detailed than the Lexipol policy template.

Some that said they had no policy also said they help people vote and communicate with local clerks. For example, Dane County has no jail voting policy, but the Sheriff’s Office said it has worked with local clerks to create protocols for voting, and a 2021 ACLU report noted that the county has improved access to voting over the years. Only three counties contacted by Wisconsin Watch said they tracked voter registration or absentee ballots from their facilities.

Additionally, both Wisconsin Watch and the ACLU of Wisconsin found policies varied widely by location and jail.

Regardless of the presence or quality of a jail’s voting policy, hurdles remain for those incarcerated to obtain and cast a ballot. And a recent Supreme Court ruling banning drop boxes did not address an issue some Republicans raised: Whether state law requires all voters to place their absentee ballots in the mail themselves — which a person behind bars cannot do. 

Voting rights for people incarcerated differ from state to state, and some jurisdictions work to ensure those rights can be exercised. In Illinois and Texas, like Wisconsin, people detained while awaiting trial can still vote. Those states are home to two of the country’s largest jails — in Harris and Cook counties — where officials have increased access to voting.

Cook County Sheriff Tom Dart says facilitating voting among people who are incarcerated is important.

“It embeds somebody in their community, their community decisions,” Dart says. “And it’s empowering. It makes you, the individual, feel as if you’re no different than a person who hasn’t been in a jail in the sense of, ‘I get the same vote they do and mine is equal to theirs.’”

Rough start leads to crime

Carlson says a troubled upbringing fraught with family trauma and violence landed him in the Minnesota juvenile detention system at a young age. 

Carlson’s father was a Vietnam War veteran who struggled with related severe mental health trauma, compounded by his upbringing as a Black child in 1950s Mississippi. 

“My mom and father were involved in criminal activity and were severely addicted to substances,” Carlson says.

Carlson’s mother remarried when he was 6 years old, but his stepfather, also addicted to drugs and alcohol, was abusive. 

“These traumas in my youth led me into crime by 10 years old,” Carlson recalls. “I did time in group homes, graduated to juvenile detention, then to long-term youth incarceration in the Hennepin County Homeschool.” 

After his release, his white grandparents adopted him and moved to a predominantly white community. He soon fell into alcohol dependence and joined the Wisconsin Army National Guard in an attempt to gain structure.

Looking back on his relationship with civic engagement, Carlson considers his service in the military — mirroring that of his father’s — not as an act of patriotism but acceptance. 

“My family — my Black side, at least — has never been engaged politically,” he says. “Our service, I think, was more about almost like earning our place as an American.”

Carlson’s sense of civic engagement was born in prison, a product of his own will to change the trajectory of his life and help others who share the experience of incarceration and the disenfranchisement that often accompanies. 

Voting help increases in Wisconsin jails 

Retaining a right and being able to act on it, as Carlson discovered in prison, are two very different things.

Wisconsin jails operate at the county level, and each sheriff’s department and jail administration determines how the facility runs. 

An eligible voter in jail could have access to the ballot accommodated or muddied by the jail policy — if there is one.

The number of counties spelling out jail-based voting procedures has increased in recent years, according to the ACLU of Wisconsin, the League of Women Voters of Wisconsin and All Voting is Local, which all have advocated for improvements.

In 2020, the coalition found that 28 counties had “brief policies with vague language,” 22 of which came from Lexipol. That first year, only Kenosha County could provide a “detailed policy.” The following year they found 22 counties had “created or improved a written policy.” 

Milwaukee County, the state’s largest, has a policy that details the process and is also among the few that tracked voter participation in some form. At least 31 people have received an absentee ballot since 2020. 

But the wide variety in policies means some eligible voters will never be told they can vote.

“It’s not enough to say that they have this right,” says Sgt. Doug Simpson, who oversees training at the Kenosha County jail. “You have to take the next few steps and say, ‘How are they going to go about doing these things?’ ”

Jail staff must facilitate voting, and Simpson says unless instructions are “spelled out A-B-C-D-E,” staff may not follow through.

In Kenosha, incarcerated people receive information about jail-based voting during intake. Simpson acts as the “designated facility liaison,” answering questions, checking voter registration online, photocopying identification and more. 

Simpson is proud that his was the first Wisconsin facility to have a “progressive, proactive policy” concerning jail-based voting, and he’s happy to share their approach with anyone — especially fellow jail administrators — who inquire. 

“It’s an important constitutional issue, and we want to be on the right side of it,” he says. And “from an agency standpoint, from a taxpayer standpoint, I don’t want to be defending lawsuits.”

Groups register the incarcerated

In the opposite corner of the state, several jails have made efforts to more routinely engage incarcerated people about their rights, through periodic postings, informational sessions or registration events.

Engagement is essential because incarceration is traumatic, and “there are bigger things that that person’s worried about than voting,” says Capt. Dave Riewestahl, administrator of the Eau Claire County Jail. 

The ACLU’s initial 2020 report prompted Riewestahl to improve his facility’s voting policies. Teaming up with the League of Women Voters and Chippewa Valley Votes, a local voting advocacy group, they developed a multipronged approach. 

Eau Claire County Jail now posts its voting guide online. Electronic kiosks in each housing unit allow people to check eligibility and registration and message a social worker with questions.

The jail has even held several voter registration drives, the first in 2021. Riewestahl says registrations aren’t tracked because he doesn’t think it’s appropriate for the sheriff’s office to track that information.

“For me, success is: we have the community coming into the jail, and teaching and bringing their passion really for the voting process, and then sharing that with those that are in custody, who want to learn how to vote get signed up,” he says.

Riewestahl, who is currently running for sheriff, questions the appropriateness of “somebody in a uniform with a star badge” trying to get people to vote. Instead, he wants to bring in “the actual subject matter experts.” 

Volunteers drive process

Chippewa Valley Votes and the League of Women Voters have been central to organizing voter registration events in his jail.

Karen Voss, co-coordinator of Chippewa Valley Votes, says her group’s efforts have gone beyond Eau Claire County and included recent trips to Dunn County Jail to meet with residents in small groups.

“That has made a much bigger difference than I would have ever expected until it happened,” she says.

Volunteers can forge a “one-to-one connection” through casual, frank conversations, explaining the elected offices with direct impact on incarcerated people, such as sheriff, county board and city council.

One person confided that he assumed voting put him on “some sort of list” that opened him up to other responsibilities, like jury duty. Voss reassured him that was not the case.

After one event with several productive conversations, it turned out that none of the individuals was eligible to vote. But that didn’t mean the event was a failure.

“It was almost a paradigm shift for me,” Voss recalls. She thinks participants left with a clearer understanding of  “their value and their potential ability to exercise the power to vote in the future.”

Carlson says the general lack of voter education and outreach in jails plays a key role in diminished civic engagement among incarcerated or formerly incarcerated people. 

“There’s so many different laws in so many different states on who is eligible, when you’re eligible, if you get a felony conviction, so a lot of people just think that once you have a felony you can never vote again,” Carlson says. “They’re very quick to ensure that you know that your right has been taken. But, there is no transparency on when that right comes back.”

Eligible — but no ID

Like all voters, people who are incarcerated need certain things to register or request an absentee ballot, including an identification card that fits the state’s requirement for voter ID. A jail photograph won’t do.

“The jail knows who it has,” Carlson says. “They have fingerprints, they have all of that. So for there to be this arbitrary rule that, no, it has to be this state-issued ID, it’s stopping a lot of people from being able to engage that are in the jails.”

Both Texas and Wisconsin have voter ID laws, and accept identification specifically for voting.  

In Harris County, home to Houston, the jail ensures eligible voters are able to get such ID beforehand, says Maj. Phillip Bosquez, who’s in charge of roughly half the jail’s population.

Harris County is among the few jails nationwide that has some form of in-person voting.

Bosquez says the process starts weeks before an election and includes communication with elections officials about who is in the jail, who is registered to vote and who needs a voter ID. 

Voter ID is a barrier for many incarcerated people who have difficulty accessing a voter-sanctioned ID — even before going to jail.

“A lot of people are like how do you not have an ID? Well, I can relate to that also. I was a drug addict and alcoholic,” Carlson says. “I very rarely had an ID ever on me. By the time I ended up in jail, my phone and my wallet were typically always gone.” 

Many steps to in-jail voting 

A lot has to go right for someone to vote behind bars in Wisconsin. Even if they happen to get locked up in a facility with a proactive policy and clear procedure, and an acceptable form of photo ID — they still might not be able to cast a ballot.

“The wheels of government move very, very slowly,” says Kenosha’s Simpson.

If a person incarcerated in Kenosha — which has not held voting-related events — begins the process to vote by mail two weeks prior to an election, Simpson says they’re already too late. 

He estimates they would need a month to get a copy of proper ID, absentee paperwork and for the staff to review it all, which means for anyone arrested and jailed weeks before an election it’s more difficult — if not impossible — to vote.

Riewestahl, of Eau Claire, says under the current law, it’s possible a person arrested and jailed the Monday before a Tuesday election could not vote.

Then, there’s the reality of jail turnover. Riewestahl says 75% of his population leaves within 10 days.

“So how do you get somebody who’s never registered to vote or never even cared about voting — how do you get them engaged in a jail setting? And then they follow through to get them through the registration part, to get the absentee ballot, to then mail it out?” Riewestahl says. “They’re most likely going to be gone.” 

Confusion reigns after ruling 

Absentee voting in Wisconsin jails has been complicated by a recent court decision.

In July, the state Supreme Court ruled that voters can’t return their absentee ballots to drop boxes.

On Aug. 31, a federal judge ruled that voters who have difficulty returning their own ballot can choose someone to return their ballot for them. The judge cited the federal Voting Rights Act, which protects voters with disabilities. 

But the ruling did not address the rights of people in jail, and as of Aug. 16, the Wisconsin Elections Commission had not issued any guidance to clerks about incarcerated voters. 

“The privileges available to a jail inmate vary from facility to facility and from person to person,” a WEC spokesperson said in an email to Wisconsin Watch. 

There are several possible solutions to the problem.

The state could make accommodations for incarcerated people similar to those who are hospitalized. Currently, someone hospitalized within seven days of an election — unable to go to the polls or mail an absentee ballot in time — “may appoint an agent to retrieve and deliver their absentee ballot,” according to the WEC. The state could allow incarcerated people to appoint an agent to ferry their ballot to their clerk. But jail populations include people from across the state and country, potentially requiring an agent to travel long distances.

Chicago, Houston lead in access 

Jails in Chicago and Houston bring the polls to their incarcerated voters. 

Both efforts came from jail staff working directly with local advocacy groups and election officials. Bosquez quoted a phrase his boss, Sheriff Ed Gonzalez, uses regularly: “How does the community want us to return their neighbors back to them?”

Previously, voting by mail was the only method for the roughly 10,000 people in custody in Harris County. Bosquez says the jail still keeps that as the primary method for voting beginning weeks before an election because it’s logistically easier with such a large population. 

But once the absentee ballot deadline passes, the jail then shifts to in-person voting, he says, identifying and notifying eligible voters of the option leading up to and on Election Day.

Chicago Votes, a voting rights advocacy group, had for years focused on voter registration drives on college campuses and concerts. When it decided to take those efforts into the Cook County Jail, members expected pushback from Sheriff Dart.

But they found the opposite, says Jen Dean, a co-executive director for the organization.

“He was actually super excited about it, wanted to do everything possible to make it a success,” she says. “And I definitely believe over the past five or six years he’s kept to that promise.”

The jail is now a temporary early voting location, allowing incarcerated people the chance to vote in person on the two weekends before an election. 

During the June primary, voter turnout for the Cook County Jail was higher than the city as a whole, 25% for the jail and 20% for the city, Block Club Chicago reported in July.

“The more opportunities that people have to vote the better,” says Alex Boutros, community organizing manager for Chicago Votes.

Dart says voting is among the most substantive ways to get people engaged in the community, which can go a long way toward breaking the cycle of incarceration. He wants to make voters in his jail — who like all voters cast ballots for sheriff and judges — the most educated in the county.

In November 2021, for the first time, 96 voters — including people incarcerated and members of the public — cast a ballot at the Harris County Jail on Election Day, which included races for local offices and state constitutional amendments. The jail’s turnout was the median for the county’s 704 voting locations. The jail’s visitor lobby was also open to the public to vote, which state law requires for all polling places.

“Given the unique nature of this location, we believe this to be a profound success,” says Nadia Hakim, spokesperson for the Harris County Elections Administration.

In the March primary, more than 200 people cast a ballot from the jail. Bosquez says he expects the upcoming general election to be their biggest yet. 

Coalition pushes voting behind bars 

Carlson knows from personal experience the damage that can come from disenfranchisement. 

He’s now a part of the Wisconsin Voting Rights Coalition, a group of legal and advocacy organizations including the League of Women Voters and ACLU Wisconsin. The coalition collaborates with jails to increase voting registration. 

During his previous time as an organizer with ACLU Wisconsin, Carlson compiled a voting rights toolkit for county jail administrators. The coalition has held at least 11 jail-based voter outreach events across Wisconsin, according to Eileen Newcomer, voter education manager with the League of Women Voters of Wisconsin. 

Carlson, now living in Eau Claire, also runs two small businesses, a peer mentoring program for individuals leaving incarceration and a property business designed to ease rental and housing barriers often facing individuals who were recently incarcerated. 

“I’m dealing with the exact population of individuals who, generally you know, end up in and out of jail, and are disenfranchised for one reason or another,” Carlson says, identifying the linkages between his work and his advocacy.  

Participating in civic and community engagement can become personal for individuals who have experienced incarceration.

Shannon Ross, executive director of The Community, spent 17 years in various Wisconsin prisons on a homicide conviction starting at age 19. 

Ross launched The Community in 2014 while still in prison. Since then, what began as a newsletter has grown into a nonprofit organization aimed at correcting the narrative surrounding formerly incarcerated people and their place in society.

Prior to his time in prison, Ross, like Carlson, never placed much stock in civic engagement.

“The reason I came to this work, of course, like so many, is that I was impacted by the system,” Ross says. “My advocacy has largely been on learning, education, preparation and agency for people that are incarcerated.”

Ross was released from prison only 23 months ago and is still 13 years away from regaining his voting rights. 

That hasn’t stopped him from working to help others. 

“I felt like there was some value in helping people understand their rights,” Ross says. “Even if I don’t vote, at least I can tell you what your rights are, I can give you an understanding of the landscape.” 

He calls it an ecosystem of change — helping the formerly disenfranchised “engage in that power of voting.” 

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Thousands of eligible Wisconsin voters face ballot barriers in jail is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Listen to statehouse bureau chief Matthew DeFour discuss this story on WPR’s show Central Time.

Conservative activists are pushing officials to remove thousands of people from Wisconsin’s voter rolls, pointing to holes in the state’s voter database that have allowed some ineligible voters to cast a ballot.

But their efforts also have spread misleading information, Wisconsin Watch found, conflating ineligible and eligible voters and sowing doubts about the upcoming election during a volatile time for American democracy.

Such efforts aren’t unique to Wisconsin. The New York Times recently reported on attempts in Georgia, Michigan and Texas to have tens of thousands of people removed from voter rolls. The newspaper reported the effort — which includes instructions from an influential think tank with close ties to former President Donald Trump — aims to flood election offices with challenges that are costly and time-consuming.

The activist groups include the Thomas More Society and Wisconsin Voter Alliance, whose members challenged the 2020 election results and worked on the more than $1 million taxpayer-funded 2020 election investigation that Republican Assembly Speaker Robin Vos shut down in August. 

Another effort targeting thousands of voters who might have changed addresses is underway by a group run by Peter Bernegger, who previously filed numerous complaints with the Wisconsin Elections Commission that it deemed “frivolous.”

On Sept. 27, Wisconsin Voter Alliance president Ron Heuer, who worked on the 2020 election investigation, warned local clerks that their systems are vulnerable because, by his estimate, there are potentially thousands of people under court-ordered guardianships whose votes could be fraudulently manipulated. He pointed to the case of an Outagamie County nursing home resident who voted in 2020, even though a court had ruled she was “incompetent” to vote months earlier.

Officials acknowledge gaps

A Wisconsin Watch investigation has found a yet-to-be-determined number of Wisconsinites whom a court has deemed incompetent to vote are still listed as active voters — and actually cast ballots in past elections. 

Dane County Clerk Scott McDonell said he is reviewing the 1,013 ineligible voters in Dane County deemed incompetent after a sample of 20 included two who were still listed as active in the Wisconsin Elections Commission’s voter files — one of whom voted while ineligible in April 2019.

“We’re going to review our data and make sure it’s accurate,” McDonell told Wisconsin Watch.

The total number, although unknown, is likely too small to have affected the results of the 2020 election, in which 3.2 million cast ballots in Wisconsin.

It is certainly less than Heuer’s claim because in his warning to the state’s 1,800 clerks, he conflated people under a court-ordered guardianship, many of whom can vote, with the much smaller subset of those who have lost voting rights. And the Outagamie case — while indeed an example of someone who shouldn’t have been able to vote in 2020 — shows how administrative error is the most likely reason these ineligible voters cast ballots.

Heuer’s work has already prompted public officials to take action. On Oct. 3, the Wisconsin Elections Commission issued a guide to local election clerks warning they cannot purge voters unless they find “beyond a reasonable doubt” a voter is ineligible. “Inactivating a record based solely on the allegations of a private party,” the agency wrote, “is unwise and may violate the law.”

WEC spokesman Riley Vetterkind acknowledged to Wisconsin Watch the system for tracking incompetent voters could be improved, although it would require a legislative fix to ensure they are tracked the same way as other ineligible voters, such as felons still serving a sentence.

The WEC also has changed its voter data so that the public can’t see the names and addresses of those who have been identified as “incompetent” — data that state law requires court officials to keep private. WEC made the change in August after it released that data to Heuer, who used it to build his case that thousands of ineligible voters could still be on the voting rolls.

Heuer’s group is now suing the court officials who handle guardianship records in 13 counties to access the names and addresses of everyone placed under a court-ordered guardianship. The group’s earlier requests for those records were denied. Heuer said their goal is to determine the true number of ineligible voters who have cast ballots.

The push to purge names from the voter rolls — from Heuer, Bernegger and others — is the latest front by partisan activists who have relentlessly challenged the validity of the 2020 election and now may be trying to create grounds to dispute future election results, according to David Becker, a non-voting board member of the Electronic Registration Information Center (ERIC), which Wisconsin and 32 other states — run by Republicans and Democrats — use to maintain their voter rolls.

Research finds little fraud

Think tanks on the left and right agree there is little fraud in U.S. elections. The conservative Heritage Foundation tracks “proven” cases of electoral fraud nationwide. By its numbers — which it says are not comprehensive — there were four instances of fraud in Wisconsin in 2020: two of them controversial prosecutions in Fond du Lac County where voters had listed a UPS store where they get their mail as a physical address. Experts have described some of these instances as incorrect votes and not fraud because the voters didn’t know their registration was improper.

Election watchdogs say the specter of systemic corruption at the polls is dangerous because it undercuts the public’s faith in democracy.

“Widespread fraud does not exist,” said Lauren Miller, a lawyer with the liberal Brennan Center for Justice that tracks elections. “It’s always a serious concern when people believe the lie that their elections are rigged.”

Becker said age-old attempts to “artificially inflate” voter list accuracy bring more risks in the current climate.

“When we get to the point where we can’t accept that our side has lost an election, the next natural step is political violence,” Becker said. “And that is not a hypothetical. We have already seen this. 

“When tensions get as high as they are, when grifters have been incentivized to keep the anger going to keep donations flowing in, then you get a very, very dangerous situation.”

Number of incompetent voters disputed

The activists presented their information about incompetent voters to an Assembly committee, which then pressed the Elections Commission on the matter. On Sept. 22, the WEC responded to the Legislature saying it had already begun an independent audit of its voter roll data related to voters deemed incompetent and is working with court officials to “improve the reporting and inactivation” of such records.

On Sept. 27, Heuer warned the state’s more than 1,800 clerks that there are some 15,000 Wisconsin residents under a court-ordered guardianship, but fewer than 1,200 listed in WEC’s voter roll file as incompetent. Heuer concluded the true number of incompetent voters is underreported and thus the whole system is vulnerable to “elder voting abuse.”

But the information he cited was misleading.

The voter roll data file is a constantly updated public record with voter names and addresses that anyone in the public can obtain for $12,500. Heuer obtained a version of the file with about 1,200 names and addresses of voters listed as “ineligible” and the reason “incompetent.”

When Heuer broke down the list by county, he found several counties had zero ineligible voters listed as incompetent. When he shared that information with county court officials, several told him that there were far more people adjudicated incompetent to vote in their county than were listed in the WEC database.

“It really caused a tizzy,” Heuer said.

He then requested guardianship numbers in each county between 2016 and 2021. Based on responses from about a third of the state’s district courts — and using a per capita projection — he came up with the 15,000 estimate.

However, the numbers Heuer used include everyone placed under a guardianship — even though not all of them have lost their right to vote. Also some are deceased — and some may never have been registered to vote — so they wouldn’t appear in the public voter roll file. And some people placed under a guardianship and deemed ineligible years ago may have had their right to vote restored.

WEC keeps incompetent voter data in a non-public file that is accessible to local clerks, who must review it periodically to update the registration status of voters, Vetterkind said.

“It is possible you may find voters who, despite being adjudicated incompetent by a court, registered, continue to be registered, or voted in an election(s),” Vetterkind said, although he declined to estimate how many. “These cases are unfortunately a product of the limitations that state law currently places on the process for centrally compiling adjudicated incompetent records.”

Guardianship numbers parsed

Dane County Clerk of Courts Carlo Esqueda, who is also the county’s register in probate, told Heuer in an August email that there were 1,004 people in Dane County placed under guardianship between 2016 and 2021. But he also warned him that he shouldn’t conflate guardianship numbers with the much smaller subset of incompetent voters. Heuer never asked for the smaller list.

Esqueda told Wisconsin Watch that after removing deceased voters and those who can still legally vote, the number of incompetent voters shrank to 281.

“I have told Mr. Heuer that, as have several of my colleagues, and he refuses to back off at least the strong implication that guardianship equals the loss of the right to vote,” Esqueda said.

Responded Heuer: “In future communications we will be refining our numbers as information becomes available. When we get the info, we will share it with the public.”

McDonell told Wisconsin Watch there are 1,013 people from Dane County listed as incompetent in the WEC’s files since 2007, including 75 marked in the voter file as inactive. In the sample of 20, he found eight had never registered, one was inactive because of a finding of incompetence, nine were inactive for other reasons — such as being deceased — and two were active, including the one who voted. That person was adjudicated in November 2018 and voted in April 2019, but has not voted since, McDonell said.

Possible out-of-state movers targeted

Other groups are also pushing clerks to purge voter rolls. In September, Wisconsin clerks received an email that claimed about 47,789 people had moved out of the state but, according to Bernegger, of the Wisconsin Center for Election Justice, were still active voters.

Bernegger asked clerks around the state to mark those who had left the state as “inactive” on the voter rolls. 

In his email, which Wisconsin Watch obtained, he said he used WEC and the U.S. Postal Service’s change of address data to find voters who should be removed. 

Simply relying on something like the USPS database, which is optional and doesn’t include someone’s date of birth, to identify people who moved is problematic, said Becker, the ERIC board member and executive director of the Center for Election Information and Research.

ERIC works with states to identify voters who have moved out of a state and therefore are no longer eligible to vote there. But, he added, each state then relies on its own laws and policies before a voter is removed. In Wisconsin, local clerks contact voters directly to see if they’ve actually moved.

ERIC’s ‘sophisticated’ system

Wisconsin’s GOP-run Legislature mandated that the state join ERIC in 2015 to improve voter roll maintenance.

The software used by ERIC is “extremely sophisticated,” costs a lot of money and uses non-public data to compile the lists sent to states, Becker said. 

Election officials and local clerks should strive to keep voter rolls as accurate as possible, Becker said, adding that every state inevitably has voter lists that include people who are no longer eligible and exclude eligible voters.

Both are a problem, he said, but the reality is that “well run” and “largely accurate” voter rolls pose little danger as very few ineligible voters are knowingly or unknowingly voting illegally.

“That number is not zero, but it’s really close to zero,” Becker said. “It’s remarkable how close it is to zero.”

Keeping the voter rolls accurate is an “essential function for all election officials,” WEC’s Vetterkind said. He added that the work of third-party groups is welcomed as they can sometimes help find “errors and inaccuracies.”

However, Vetterkind said these groups are not screened, can be partisan or can make incorrect statements about the law or rely on incomplete information. Responding to these groups is up to local clerks, Vetterkind said.

Bernegger acknowledged in his September email to clerks that not all 47,000 people he found had definitely moved and were no longer eligible voters. Bernegger and his attorney did not return messages seeking comment. 

Activist has history of complaints

Bernegger previously filed complaints with the WEC about voters having improper addresses on their voter registrations. WEC dismissed the complaints, fined Bernegger $2,400 and called the complaints “frivolous.” Bernegger has yet to pay that fine, according to the WEC.

Fond du Lac County District Attorney Eric Toney, the Republican nominee for state attorney general, seized on Bernegger’s information and charged five people with felonies for registering to vote using a local UPS Store address.

One of those people previously told Wisconsin Watch that she didn’t know it was illegal to use that address, where she gets all her mail, as her voting address. 

ERIC has become a target of activists, who claim it is a liberal voter fraud plot. Criticisms of the organization are similar to those against ballot drop boxes, absentee ballots and machines that count votes, Becker said, calling them “guardrails of democracy” that have contributed to more accurate and secure elections.

“And when the guardrails of democracy are attacked … that creates a period of uncertainty in which the losing candidate can incite anger and violence,” he said. “And that may be the intended result here. 

“It may be that they’re just trying to set the stage for future anti-democratic behavior to deny any election that they lost.”

Incompetent voter case fuels suspicion

One of the factors driving the activists is that they have found at least one case of an improper vote being cast in 2020 — although a closer look at the circumstances in that case points to administrative error, not a sinister scheme to steal the election.

The case involves Sandra Klitzke, a resident of the Brewster Village nursing home in Outagamie County, who had voted in the November 2020 and April 2021 elections, even though a court had removed her right to vote in February 2020.

On March 31, the Thomas More Society filed a WEC complaint on behalf of Klitzke and her daughter, Lisa Goodwin, who stated she “could not explain why the WisVote voting records would have indicated that my mother voted” in the 2020 or 2021 elections. A third-party law firm investigated and dismissed the complaint on technical grounds in May.

Normally the county register in probate mails notification of an ineligible voter to the WEC, according to Jennifer Moeller, president of the Wisconsin Register in Probate Association. The WEC then updates its information and notifies the local clerk, who is the only official authorized in Wisconsin to deactivate a voter’s registration.

It’s unclear why Klitzke’s name was not switched to “ineligible” in the WEC voter file. Both the WEC and Outagamie County officials said court records related to Klitzke’s guardianship information are confidential under state law.

System breakdown?

Town of Grand Chute Clerk Kayla Filen, who was not clerk at the time, confirmed her office did not deactivate Klitzke’s registration until April 2022.

Klitzke had been registered as an indefinitely confined voter dating back to 2007 and had voted as recently as 2017 before the 2020 election, Filen said. She was also listed as indefinitely confined in 2020. Indefinitely confined voters automatically receive absentee ballots without having to request them, Filen said.

A Wisconsin Watch review of Klitzke’s absentee ballot envelopes from 2020 and 2021 show them both signed in a shaky hand. In the 2020 election — when the WEC suspended the state’s special voting deputy program in nursing homes because of the pandemic — an employee at the county-owned facility had signed as a witness. 

In 2021, two witnesses from the town of Grand Chute signed the envelope, reflecting the normal process of special voting deputies witnessing nursing home voting.

Outagamie County Executive Tom Nelson, a Democrat, said the case feels “manufactured.” 

“They probably had to search high and low to find one case, we all know that there’s a lot of money, there’s a lot of horsepower behind this and for whatever reason, they’re targeting Outagamie County,” Nelson said in an interview. “And I stand by the county clerk, and I stand by the Brewster Village administrator completely and fully.”

Activist undeterred

Heuer said there are more cases out there as “many” people have come forward with stories of loved ones with cognitive disabilities voting.

His group has filed public records lawsuits in Brown, Crawford, Juneau, Kenosha, Lafayette, Langlade, Marquette, Ozaukee, Polk, Taylor, Vernon, Vilas and Walworth counties to obtain the names and addresses of everyone under guardianship. A Juneau County judge ruled against the Wisconsin Voter Alliance on Aug. 24 but the other cases are pending. 

Disability Rights Wisconsin opposes the release of the names and lobbied WEC to shield the names of incompetent ineligible voters in the public voting file, said Barbara Beckert, Disability Rights Wisconsin’s external advocacy director. 

“A lot of the communication related to this issue over the past year or so while all these different investigations have been going on has been confusing and at best misleading and sometimes very clearly inaccurate,” Beckert said. “Our experience has been that often people under guardianship aren’t certain whether or not they have the right to vote.”

The group has successfully helped restore some people’s voting rights, for example, someone who was deemed incompetent to vote at age 18 because of a developmental or cognitive disability, but is older now and no longer under the guardianship of a parent.

During the pandemic, Beckert said her organization reminded nursing homes across the state that Medicare and Medicaid guidelines require them “to affirmatively support the right of residents to vote.”

“Why aren’t we concerned about the vast majority of people who live in these facilities who have the right to vote and who might not be able to exercise it?” Beckert asked.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

In search for illegal Wisconsin votes, activists uncover gaps — but no plot is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Jamie Wells doesn’t want to vote ever again.

The one and only time she did was back in November 2020. That single ballot caused so much stress and turmoil and mounting debt that she will probably never again do it.

Wells, 53, is one of five people charged with election fraud for having a UPS Store listed as their voting address by Fond du Lac County District Attorney Eric Toney — a Republican candidate vying for Wisconsin attorney general who has made voter fraud and election security key issues in his campaign.

Wells and her husband, who was also charged, could be considered collateral damage of the widespread false belief that massive voter fraud marred the 2020 election. This lie has sparked numerous lawsuits in Wisconsin and a raft of GOP-authored bills seeking to impose voting restrictions — all of them vetoed by Democratic Gov. Tony Evers.

Under Wisconsin law, only residential addresses — where someone actually lives — can be used for voter registration.

Wells said she and her husband didn’t know using a UPS Store address to vote was a problem. She said she felt motivated to vote for the very first time to re-elect then-President Donald Trump.

The couple now faces up to three and a half years in prison and maximum fines of $10,000 each. Wells and her husband also would be barred from voting until they serve their full sentences, including any probation or supervision.

A Wisconsin Watch analysis of the state’s voter rolls found that Wells and the others charged in Fond du Lac County are far from the only people who could unknowingly have listed incorrect voting addresses.

There are 30 UPS Stores in the state, and 117 people have those addresses on their voter registrations. Additionally, a Wisconsin Watch search of 47 U.S. Post Office addresses in Dane and Milwaukee counties, where people can get a P.O. Box, found 44 voters registered at those addresses.

Wells said she and her husband have used that UPS Store in Fond du Lac as their address for decades without a problem. They registered to vote using that address because they didn’t have another one to list.

“But this (prosecutor) here seems to think I’m a criminal,” she said. “And that’s the part that upsets me most of anything.”

Wisconsin Watch found at least one district attorney in Wisconsin who received a similar referral of people using UPS Store addresses to vote. La Crosse County District Attorney Tim Gruenke said he was alerted to 15 people who had voted using these addresses in 2020 by the La Crosse city clerk. Gruenke, a Democrat, declined to prosecute.

“I’m not sure what kind of fraud would be happening,” he said.

Ion Meyn, an assistant law professor at the University of Wisconsin, called the cases against Wells and others in Fond du Lac County “a real abuse of (prosecutorial) discretion.”

Toney did not respond to multiple requests for an interview or answer emailed questions. But in a statement to Wisconsin Watch, he said attorney ethics rules prevent him from commenting on a pending case. 

“Elections are cornerstone (sic) of our democracy which must be defended at every turn, not just when you agree with the law or the politics,” he wrote. “I want people (to) exercise their right to vote and ensure they do so lawfully. Wisconsin law requires someone to register to vote where they live, not where they receive mail. That is made clear on voter registration forms.”

Toney touts tough-on-fraud stance 

Voter fraud is extremely rare because, among other factors, it’s difficult to do with all of the safeguards and checks in the process. Multiple reviews and audits found no widespread fraud in Wisconsin’s 2020 election — or in any other state.

Local elections clerks in Wisconsin referred 12 cases to prosecutors related to the 2020 general election, out of 3.3 million ballots cast. Wells and the others charged in Fond du Lac County were not among them. 

Toney has said the tip came from Peter Bernegger, a Wisconsin man who has since been fined $2,400 by the Wisconsin Elections Commission for making “frivolous complaints” — including the one against Wells.

Despite that, claims of voter fraud remain ubiquitous, both in Wisconsin and across the country.

Election and criminal law experts questioned the motives behind, and the validity of, the cases against Wells and others. They say prosecutions like these — as well as disinformation about voter fraud and its prevalence — can discourage people from voting and lead to new laws that add unnecessary barriers to voting.

“On a prosecution where the level of wrongdoing doesn’t necessarily amount to a kind of criminal enterprise — and yet felony sanctions are what’s on the table —  that sends a message that our political system may not care about fair access and balancing the interest in access and the interest in security,” Marquette University election law expert Atiba Ellis said.

“If a voter can’t trust that an innocent error won’t result in a felony conviction, that might make voters think twice about whether it’s worth it to vote at all.”

During a February news conference, Toney said there was a public education aspect to his decision to charge.

“It’s important to draw attention to this so people understand how do they vote or register, to make sure that they don’t end up with a referral to a local district attorney that could result in a felony voter fraud charge,” Toney said.

In April, Toney also asked Evers to remove five members of the Wisconsin Elections Commission related to voting in nursing homes during elections in 2020. Toney said he would criminally charge the commissioners if he had jurisdiction.

And during his introduction at the Republican Party of Wisconsin convention in May, Toney pushed his reputation as “one of the most aggressive prosecutors of election fraud” in the state.

“We’ve earned the right to have an attorney general that will stand up for us, enforce the rule of law, lock up dangerous criminals and protect the integrity of our elections,” he said. “That is my track record as a district attorney.”

Couple leads mobile life

Wells considers Fond du Lac home, although her Louisiana accent might hint otherwise. 

Wells met her husband when he was working in Louisiana, and they married in 1989. A month later they moved to Madison. His work on farms takes him all over the state. Instead of being separated for long periods of time or long drives, they live in a 42-foot pull behind camper.

It has three slide outs, a washer and dryer and feels just like a small apartment, she said. 

They eventually found themselves spending more and more time in Fond du Lac, so they dropped their P.O. Box in Madison for a mailbox they’ve had for about 30 years.

Wells’ story is a near-perfect description of how election law experts say incorrect votes from eligible voters can happen.

In an interview with Wisconsin Watch, Wells said while she considers herself a Republican, she and her husband had never been politically active. She didn’t even know Wisconsin was a swing state — but Wells wanted to help President Trump get re-elected.

“I just figured Trump could do a better job,” she said. “And I just ain’t a Joe Biden fan. He seems like he might be a nice guy, but I just thought Trump was the better thought.”

So she and her husband registered to vote online. When it came time to enter their address, they put the same one they’ve used for decades.

“It never told me nothing (was wrong),” she said. “They gave us the voter registration. Sent our ballots. We sent them back in, and that was it.”

Police, reporter come calling

Then in January, while she was visiting family in Louisiana, Wells got a call from a Fond du Lac police detective. 

“I didn’t think it was real,” she said, citing an increase in political calls around that time. “… He might have said he was a detective. I don’t want to lie if he did or didn’t. … And I spoke to him, and I told him the exact truth of what happened.”

That was the first indication that something might not have been right with her vote. But weeks went by and there wasn’t a follow up call or anything in the mail. 

Then she started to get other calls she wasn’t sure about. Then came the texts and emails and voicemail messages left with family members for her. They were from a New York Times reporter.

She mentioned it all to a friend, who then looked Wells up in Wisconsin’s online court record system. It showed Wells was facing a charge of falsely procuring a voter registration.

“My friend calls me … and she said, ‘I have something to send you. Do you want me to send it to you or your daughter? It might upset you.’ I said, ‘No, go ahead and send it to me.’ 

“And that’s when I found out I was being charged.”

‘A hammer in search of a nail’

Election law experts are quick to differentiate between voter fraud — which is exceptionally rare — and voting errors.

In true voter fraud, a voter or group or people scheme to knowingly violate election law to get a vote cast that would otherwise not have been allowed. But incorrectly cast ballots come from eligible voters who mistakenly vote or register in the wrong way.

Eliza Sweren-Becker, voting rights and elections expert in the Democracy Program at the Brennan Center for Justice, said when there are instances of misconduct, it’s usually fraud targeting voters — not the other way around.

Ellis, the Marquette expert, agreed, pointing to a recent election fraud scandal in North Carolina. 

In that case, a political operative intercepted blank absentee ballots and “unlawfully, willfully, and feloniously” submitted them, concealing that they were not sent by voters, state prosecutors alleged. The fraud occurred in the state’s 2016 general election and a 2018 primary for a seat in Congress.

During the 2018 race, the Republican candidate won by just 905 votes, the Raleigh News & Observer reported. The State Board of Elections refused to certify the results after questions emerged about an alleged ballot-harvesting scheme and later called for a new election. The winning candidate did not run in that election. The operative died earlier this year while awaiting trial.

That’s what an illegal voting operation looks like, Ellis said — not an innocent mistake by a person who is actually eligible to vote.

Ellis said the choice to prosecute cases involving incorrect votes suggests an effort not to ensure the integrity of elections but to promote a false narrative that there is widespread criminality in the voting process.

“Fraud is about an intent to deceive,” Ellis said. “And the danger in our current election integrity rhetoric is innocent mistakes get swept up and purported as deceptive acts.”

This rhetoric can be used to justify more restrictive voting laws, Sweren-Becker said. These laws tend to have a bigger impact on racial minorities, the poor and others vulnerable to exploitation, Ellis said. 

The lie of widespread fraud has consequences: Two-thirds of Wisconsin Republicans told a June Marquette University Law School poll that they have little or no confidence in the legitimacy of President Joe Biden’s election. 

However, Sweren-Becker said organized efforts to find voter fraud have mostly come up empty because it’s not widespread and rarely impacts elections.

The new laws and prosecutions are all “a hammer in search of a nail,” she said. 

Wells doesn’t want to vote again

The months since Wells was charged have been tough on her, her family and even her marriage. 

“I’m not a depressed person, you know, I’m usually a happy-go-lucky person,” she said. “(Now) just kind of my emotions run like a roller coaster. I find myself crying, and I’m not a crier. Don’t cry a lot.”

She worries about what people think of her now that she has been charged as a felon. And the publicity around the case has taken away her privacy.

Despite her experience, Wells does believe there was cheating in Wisconsin’s 2020 presidential election. According to the criminal complaint, she told the detective he should be investigating the election, because “they took it away from Trump.”

In March, the Wisconsin Elections Commission dismissed Bernegger’s complaint against Wells but sent a letter urging her to double check her voter registration. As of June 26, the registration remained active and unchanged. 

A couple months ago, as she tried to set up a business credit card for her husband, she entered the address at the UPS Store. 

Unlike the state’s voter registration system, the credit card company flagged the address and said she couldn’t use it.

DA refuses to prosecute ‘mistakes’ 

Toney wasn’t the only county prosecutor who had to decide whether to charge voters with a UPS Store address on their registration.

Gruenke, the La Crosse County district attorney, said he reviewed 22 cases referred to his office after the November 2020 election for people who used UPS Store addresses to register,  including 15 who voted. 

Gruenke gets a handful of referrals for suspected election fraud after major elections. He said he’s charged maybe five people in the past decade, but most referrals involve a simple mistake.

Sometimes someone requests an absentee ballot but then votes in person. Elderly voters who have memory issues may vote at the wrong polling location. Sometimes there’s a mixup due to a common name, like a father and son who are Sr. and Jr.

But Gruenke has charged some cases, including a man who falsely listed a vacant lot as his voting address and a person who was on probation and ineligible to vote.

He said violating the law requires intent, and that’s why he didn’t charge any voters who appeared to have made honest mistakes when listing their addresses. In those cases, his office investigated and found that some people were traveling or living out of state part-time. Gruenke mentioned one person who was moving and didn’t know where they’d be living at the time at the election.

The voters had registered online using the address on their driver’s license. They included their phone numbers — and many appeared to be married couples.

“There’s no way a jury would say they intentionally did something to fool anybody,” Gruenke  said. “…You can be careful all you want and still make a mistake.”

‘A really tortured view’ of the law

Meyn, the UW law professor, said for a jury to convict Wells and the others, Toney would need to prove beyond a reasonable doubt that they weren’t eligible to vote — and that they registered knowing they were not qualified to vote.

Nothing in the criminal complaint alleges they were ineligible or knowingly misrepresented where they lived.

Meyn called it “saddening” and “abhorrent” that Toney is subjecting Wells and the others to criminal prosecutions and public humiliation.

“Here you have a prosecutor who is taking a really tortured view, in my mind, of what this provision (in the statute) means,” he said. “I just find that so irresponsible.

“It’s obviously for political reasons and it’s really disappointing.”

Wells and her attorney plan to fight the charge. They are optimistic they’ll win. But even if they do, the episode has already exacted a high cost.

The couple expects to rack up more than $17,000 in legal bills. Wells said relatives have pitched in to pay for their defense. 

“We’re not millionaires, so we’ve had to borrow money,” she said. “… And yeah, (we) still have to pay it all back.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

‘A hammer in search of a nail’: Wisconsin AG candidate prosecutes eligible voters for address snafus is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

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A two-story office building in a Milwaukee suburb houses three entities that have led a months-long campaign sowing doubt about Wisconsin’s 2020 presidential election.

The gray, indistinct building in Brookfield lists about a dozen occupants, including a marketing company on the first floor, and financial services firms on the second.

But there are three occupants whose names are nowhere to be found: Special Counsel Michael Gableman, attorney Erick Kaardal and the Thomas More Society.

The three, led by former Wisconsin Supreme Court Justice Gableman, are collaborating on the $676,000 investigation into alleged election fraud launched by Assembly Speaker Robin Vos. 

Although he lacks a contract or official role in Gableman’s taxpayer-funded investigation, Kaardal has become a de facto lead investigator. A Wisconsin Watch analysis shows roughly half of the chapters in Gableman’s 136-page interim report are based on Kaardal’s work.

Since September, the Minnesota attorney and the conservative Chicago law firm for which he works have subleased office space for about $3,000 a month directly from a company owned by Gableman.

Kaardal’s and Thomas More Society’s connections to — and potential influence on — Gableman’s investigation stretch beyond 2,100 square feet of office space. As a private attorney, Kaardal also represents people under guardianship orders featured in Gableman’s investigation — clients he charges are victims of “voter abuse.”

Rep. Mark Spreitzer, D-Beloit, a member of the Assembly Committee on Campaigns and Elections, said he “absolutely” has concerns about the relationship between Kaardal, the Thomas More Society and Gableman.

Spreitzer also criticized the quality of the information Gableman has released so far, such as the suspiciously high voter turnout rates for nursing homes — claims that media organizations have debunked. 

“It’s cherry-picked (data) at best, and simply wrong at worst,” Spreitzer said. 

Gableman’s office did not return a message seeking comment, and neither did representatives for Vos, R- Rochester, or Democratic Attorney General Josh Kaul, who is suing Gableman and Vos, arguing they lack authority to force officials to participate in the investigation.

Gableman’s original contract expired at the end of last year, but was extended through the end of this month. It now appears to be nearing a close. Gableman has said recently Vos intends to halt his investigation before the end of the month. 

‘Pro-family’ group shifts to elections

For nearly 25 years, the Thomas More Society was best known for filing pro-life and “pro-family” litigation, including representing a California baker who refused to make a cake for a same-sex couple’s wedding.

But in recent years, Kaardal and the Thomas More Society have become central figures in questioning the validity of the 2020 election — pushing theories that judges, audits and other reviews have rejected.

The society’s funding has ballooned as it added election-related litigation to its focus areas. Its financial statement for the 2020 fiscal year, the most recent available, showed $17.4 million in revenue, up from $9.6 million the previous year.

That money has helped Thomas More file lawsuits in multiple states challenging how the 2020 election was administered, with a particular interest in the grant money to local municipalities from the Center for Tech and Civic Life, a Mark Zuckerberg-funded charity.

Among Kaardal’s other election-related lawsuits is a 2020 case against then-Vice President Mike Pence, Congress and others seeking to stop the Electoral College count that was so filled with “baseless fraud allegations and tenuous legal claims” that the judge filed an ethics referral against him. That matter is still pending.

Last month, as Gableman presented the findings in his interim report to the Assembly Committee on Campaigns and Elections, he complimented Kaardal and the Thomas More Society, saying they’d done “very substantial and very wonderful work on behalf of the people of this state.”

But the tangled relationships raise questions about who Kaardal is really working for: himself and his clients, the Thomas More Society or the state of Wisconsin.

‘Unseemly’ relationship?

Much of what Gableman released last month repackaged previous work from Kaardal and the Thomas More Society, including video interviews with seven of Kaardal’s own clients.

Kaardal told Wisconsin Watch he provided the former justice with information that he gathered while preparing for lawsuits and complaints, but that Gableman didn’t pass along anything his team had learned.

Tom Brejcha, Thomas More Society’s president, said in an interview that he saw no conflicts of interest with the connections and communications between himself, his law firm and Gableman. And he became angry when pressed to clarify those relationships.

“We worked with him on the investigation,” Brejcha said of the connection with Gableman, later adding that “we wanted to know the nature of the investigation and how we could help.”

Gableman had shared information with them, he said, but nothing that was confidential. 

“I’m sure we’ve exchanged information about matters of public concern,” Brejcha said, adding that he’s talked with Gableman “a handful of times” but declined to say how often or when they last spoke.

At one point, Brejcha accused Wisconsin Watch of launching an “attack” on Gableman. “I don’t care to continue this anymore,” he said, and eventually hung up.

Jeff Mandell, a Madison attorney who specializes in election law, said it’s an “unseemly” relationship between entities with different goals.

“There’s certainly a blurring of lines,” he said, “between what’s supposed to be an independent government investigation and private, partisan actors.”

‘Protect the people from the government’

Kaardal has been a lawyer since the early 1990s and, in his own words, has made a career of suing the government.

“My viewpoint is that the most important thing for courts to do is protect the people from the government,” he said.

He’s filed dozens of lawsuits in state and federal courts — many of them over election administration. 

In 2012, Kaardal unsuccessfully challenged Minnesota’s same-day voter registration procedure, which Wisconsin also has. That lawsuit also alleged that Minnesota residents who were under guardianship orders and ineligible to vote were able to register and cast ballots, a claim he’s made in Wisconsin in recent months in complaints he filed with the Wisconsin Elections Commission. The argument also failed in Minnesota, but Gableman included the allegations in his report and presentation in March.

In 2019, Kaardal represented a group of landlords in Minneapolis and St. Paul in a federal lawsuit that argued ordinances that required them to provide voter registration information to new tenants violated their First Amendment right to not speak. 

Kaardal and the landlords won.

‘Christian heritage’ advocacy, ethics complaint

As the 2020 election neared, Kaardal filed a flurry of lawsuits in multiple states. 

He sued over masks mandated for in-person voting in Minnesota, which he lost. He represented Kanye West in his attempts to get on the presidential ballot in Wisconsin, and lost.

And in December 2020, he filed a lawsuit on behalf of plaintiffs including the Wisconsin Voters Alliance — part of a multi-state “election integrity watchdog” group — to prevent Pence and Congress from counting the electoral votes on Jan. 6, arguing that only state legislatures had the authority to certify the election. 

The day after the election was certified, Kaardal voluntarily dismissed the lawsuit in federal court in Washington, D.C. But that didn’t stop a federal judge from referring him to the Committee on Grievances for potential discipline. The judge called Kaardal’s legal theory “somewhere between a willful misreading of the Constitution and fantasy.” Kaardal is fighting the referral. He declined to comment on it.

Kaardal also co-authored several books, including a 2013 tome that advocated for preserving “the Christian cultural heritage” of the United States through immigration policies that would limit the number of people who are not Jewish or Christian to no more than 10% of the population.

In an email, Kaardal defended his writing, saying, “The books, if one reads them, stand on their own as an attempt to contribute to current political philosophy.” 

Thomas More turns to elections

Since the early 1990s, the Thomas More Society — which operates as a tax exempt 501(c)(3), the same nonprofit designation as Wisconsin Watch — has spent much of its time and resources on anti-abortion and self-described family values lawsuits. It is named after St. Thomas More, the patron saint of lawyers among Catholics.

The law firm successfully defended a maternity shelter in Missouri that fought a state mandate to provide insurance coverage for contraception. And during the pandemic, it represented churches that refused to abide by government-issued COVID-19 restrictions, getting victories for some of their clients.

In January, the firm won a $75,000 settlement for a Louisville, Kentucky police officer who was investigated for marching in uniform with protesters outside of an abortion clinic.

A year before the 2020 election, the public interest law firm added “voter integrity” and “voter participation” to its mission statement for the first time. Kaardal told Wisconsin Watch that the group had seen election administration issues had “ripened” over the years and become “politicized.”

Mandell, the election law attorney, said despite the society being new to election litigation, “They have certainly come with a vengeance for it in Wisconsin.”

Election grants at heart of probe 

In his March presentation to the committee, Gableman adopted the society’s oft-repeated claim that officials in five Democratic-leaning cities — Green Bay, Kenosha, Milwaukee, Madison and Racine — committed “election bribery” by accepting $8.8 million in grants. 

Gableman’s charge is that officials in those “Zuckerberg 5” cities used illegal grant money from the Center for Tech and Civic Life — which went to more than 200 Wisconsin municipalities — to facilitate voting. The money went toward training additional election workers, adding secure ballot drop boxes, conducting voter education campaigns and other tasks.

The state election bribery law bans anyone from giving money, employment or anything else of value to entice someone to vote or not vote, or to vote a particular way. Gableman devotes nearly half of his 136-page interim report to these grants.

Prior to the election, Kaardal filed a federal lawsuit in Wisconsin over the CTCL money, which a judge dismissed. After the election, he filed complaints with the Wisconsin Elections Commission, which were also thrown out.

“We can’t have third parties using private money to influence cities to do an illegal … election administration,” Kaardal said. “And so that’s why we’re gonna win.”

But so far, that hasn’t happened.

He’s filed state and federal lawsuits over the CTCL grant money in at least five states: Wisconsin, Michigan, Pennsylvania, Iowa and Georgia. Kaardal lost all the lawsuits filed before the election. Some suits Kaardal filed after the election remain pending. 

Atiba Ellis, a Marquette University law school professor who specializes in election law, said grants to help municipalities run elections are accepted practice across the country. 

“Short of voters getting paid directly out of these grants, it seems difficult for me to make a connection between what the folks who are getting these grants are doing and credible claims or bribery,” Ellis said.

He said labeling the grants as election bribery is “a dangerous road to go down” because local governments rely on grant money to carry out all sorts of basic functions. 

It’s a “disservice to the law,” Ellis said, “to suggest fraudulent behavior on the most tenuous evidence.”

Spreitzer, the Democratic Assembly member, said he asked the Legislative Council for any case law supporting Gableman’s bribery claim. He said there was none.

Kaardal’s self-styled competency tests

A second major Kaardal and the Thomas More Society claim that landed in Gableman’s report: that nursing home residents who lacked mental capacity to vote had cast absentee votes — a practice they call “voter abuse.” 

In four cases, Gableman alleged that residents who had been found legally incompetent to vote had cast ballots, which raises questions about the validity of those votes.  

But in other cases, Gableman relied on Kaardal’s personal assessment to question a voter’s competence.

That is not how Wisconsin law works, however. Only a judge in the context of a guardianship proceeding can determine whether a person has the mental capacity to cast a ballot, according to the Wisconsin Elections Commission. Being placed under guardianship on its own does not remove a person’s right to vote. And, “state law does not allow for the right to vote to be taken away, even by family members, without such an adjudication,” the elections agency said.

Gableman included videos of Kaardal interviewing nursing home residents along with their guardians — who are also Kaardal’s clients — in his presentation to the Assembly elections committee last month. He said he got his clients’ approval before sharing them.

Kaardal asked about a preferred choice between hypothetical candidates — one who wanted to raise taxes and another who didn’t — as well as questions about what happens on Election Day and how a winner is picked. The befuddled residents often stumbled over their answers to Kaardal’s sometimes long-winded questions. 

Gableman described Kaardal’s test as “questions that are put out by the elections boards to help determine whether someone has the acuity to be able to make a knowing choice for voting. He’s not making these questions up. They’re standardized questions to determine if a potential voter has the mental capacity to vote.”

But Kaardal described them much differently. He told Wisconsin Watch he found the questions online in a law review or medical journal article. While on the phone with a reporter, Kaardal searched for the article and its questions online, but could not find them. 

“I don’t even know if I spent the time saving it, but I should have,” he said. “… I found it online. If I searched a little bit more I could find it. But if you just put in ‘competency assessment test for voting,’ I think you’ll end up finding where I found it.”

The top Google search results for “competency assessment test for voting” include a Wikipedia article describing literacy tests that some jurisdictions used to disenfranchise Black voters for a long stretch of American history. Such tests have been banned for more than 50 years, since the passage of the Voting Rights Act. 

‘Their voting rights must be upheld’

Barbara Beckert, of the advocacy group Disability Rights Wisconsin, picked apart Kaardal’s self-styled competency examination during the Wisconsin Elections Commission meeting in March. 

“Wisconsin does not require or allow voting tests that people must pass in order to vote — nor should they,” Beckert said. “No voter in Wisconsin has ever (been) asked this type of question, and voters are never asked to explain why they vote for a particular candidate.” 

Federal law requires Medicaid-certified long term care facilities to support residents who want to vote, she said, “And we’re concerned that as a result of these investigations, care facility staff are now afraid to assist residents with voting.” 

Beckert added that “It’s discriminatory and unconscionable to disenfranchise Wisconsin citizens simply because they live in a care facility. Their voting rights must be upheld.”

After Gableman showed the videos during the March 1 hearing, Spreitzer said he submitted an open records request for the full, unedited version of the interviews. He was told Gableman didn’t have them — raising yet more questions, Spreitzer said, about the role of Kaardal and the Thomas More Society in the investigation.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

‘Blurring of lines’: Private lawyer plays starring role in taxpayer-funded Wisconsin election probe is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.