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Wednesday, January 26th, 2022
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By M.D. Kittle

MADISON — While it doesn’t weigh in on the politics of “Stop the Steal” or the “Big Lie,” a new report on the handling of Wisconsin’s 2020 presidential election does find repeated instances in which the state’s election regulator broke the law.

The Wisconsin Institute for Law & Liberty’s report, “A Review of the 2020 Election”, may lack an attention-grabbing title, but it is an extensive look at where the Wisconsin Elections Commission and local clerks went wrong in administering one of the more controversial presidential elections in U.S. history.

While the review did not find widespread voter fraud, the report does cite myriad examples of ballots cast under manipulation of laws by elections officials.

“Were votes cast in a lawful manner? It is almost certain that in Wisconsin’s 2020 election the number of votes that did not comply with existing legal requirements exceeded Joe Biden’s margin of victory,” the report states. “There is no way around it; the failure to follow the proper procedures for absentee voting is a serious abdication of the responsibility election officials have to follow the law.”

That makes fraud more difficult to detect, the report notes. State law requires prescribed procedures for absentee voting are mandatory. But the Wisconsin Elections Commission, at multiple turns, changed the rules of the game.

They stretched or reinterpreted statute on who could “cure” or correct ballot envelope information. They suspended the law that requires special voting deputies — not nursing home employees — to assist residents of long-term care facilities with voting. They kept voters suspected of moving out of district or state on the voter rolls. They adopted legally contrary procedures on absentee ballots — in a historic period for voting by mail.

More than 265,000 Wisconsin voters were determined to be “indefinitely confined,” meaning they received an absentee ballot and were exempt from the statewide photo ID requirements, the report notes. The 2020 election saw a four-fold increase in the voter designation, up from 66,000 in 2016.  WILL’s report asserts, “it is almost certain that many voters improperly claimed ‘indefinitely confined status.’”

WEC officials and their apologists have argued the agency was forced to tweak election rules and procedures amid the pandemic. The health emergency and the need to keep the public safe, they insist, took precedence over election laws for “normal” times.

“The problem here is, there isn’t ‘regular law’ and ‘pandemic law,” said Rick Esenberg, WILL’s president and general counsel. “If it was not possible to conduct voting in nursing homes using the laws in place, it wasn’t for WEC to change those laws.”

WEC’s massaging of election law is first and foremost an abridgement of constitutional separation of powers, the executive branch infringing on the domain of the legislative branch. Gov. Tony Evers has defended the agency and the local elections officials who have ignored or broken election laws. The Evers administration has been found guilty of doing the same, also in the name of a health crisis.

Elections clerks in Dane and Milwaukee counties, like Evers, were rebuked by the Wisconsin Supreme Court for failing to follow the law. The court confirmed that a person who did not wish to leave home due to the pandemic was not “indefinitely confined.”

WILL, through a lawsuit, attempted to make WEC clean up the state’s outdated voter rolls. The commission took it upon itself to keep voters suspected to have moved  database for two years — through the presidential election. WEC won that legal battle in a curious ruling by the Supreme Court.

WILL’s review found 23,361 Wisconsin voters cast ballots in the presidential election despite failing their Department of Motor Vehicles’ check. That means the voter’s name, address and/or their birthdate doesn’t match the information on file with the DM. Nearly 5,000 voters cast ballots with a driver’s license number that does not exist in the DMV system.  Interestingly, Democratic-leaning counties were disproportionately represented among DMV checks.

The review found limited instances in which ineligible persons voted or attempted to vote.  Approximately 300 instances where ineligible voters cast ballots or attempted to cast ballots, according to the report. Another 42 ballots cast were from dead voters, nearly all were properly rejected by local clerks.

The report’s authors say the idea of the review was to follow the facts, and not get caught up in the political heat surrounding the 2020 election. The review takes aim at Trump’s rhetoric while it scolds the left and much of the media for dismissing legitimate election integrity concerns. It asserts that the truth lies somewhere between the polar extremes of what many conservatives have described as a stolen election or what members of the left have labeled the “Big Lie” of illegitimacy surrounding the election results.   

Still troubling, is “the abandonment” of election law and procedure by the people sworn to uphold the law.

It all “raises questions regarding the fairness of the process and the possibility for voter fraud that might not otherwise be detected,” Will’s report concludes.

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