Wisconsin Elections Board Navigates New Transparency Law

  • by:
  • Source: UncoverDC
  • 09/19/2023

Recent legislation related to elections in Wisconsin included SB 208, which passed. It requires Wisconsin's Elections Commission (WEC) to publish meeting minutes, which has been done for both the June 2nd Regular Meeting and the June 10 Special Teleconference Meeting that WEC Commissioners attended.

During the June 2nd meeting, the commission discussed and approved a recommendation from "WEC staff" to approve Dominion Democracy Suite 5.5-C for use in Wisconsin elections. Note that Dominion Democracy Suite 5.5-A was rejected by the Texas Secretary of State as featured in the Lindell v. Dominion lawsuit. 5.5-C appears to have fewer components and newer software than the 5.5-A version.

The approval of 5.5C in Wisconsin carried stipulations:

  • Chain of custody documentation for external modems that transmit unofficial election night results to county offices is required. (Two commissioners failed to get a motion approved that would amend to disallow these modems entirely.)
  • The Commission or its designee must be allowed to verify that configuration of the machines has not been altered since approval testing.
  • Absentee ballots returned "with an overvote or crossover vote notification [must] be reviewed by election inspectors prior to being overridden or remade."
  • Hand counted ballots will be included "to confirm the programming on the BMD [Ballot Marking Device] equipment."
  • The system must always be configured to a)automatically reject crossover, overvoted, and improper ballots; b)capture digital ballot images for all ballots tabulated; c)include voter review and confirmation settings for certain devices; and d)present only one election contest per page.

Even with these stipulations, Commissioner Dean Knudson and Commissioner Robert Spindell, both Republicans, voted against approval of the Dominion voting system. Republican Commissioner Marge Bostelmann voted in favor of Dominion approval along with all three Democrats on the Commission.

The June 2nd meeting was open to the public and attended by a representative of the League of Women Voters, who, according to the minutes, "appeared and urged the Commission not to use ERIC data to deactivate voter records, and to work with the legislature to establish automatic voter registration" and "shared concerns regarding the approval of the Dominion Democracy Suite voting systems." Another woman appeared to "express her concerns about election administration and voter list maintenance."

It had been on the agenda to discuss the Electronic Registration Information Center (ERIC) system, a private sector 3rd party contractee that provides data for voter identification and other election processes. Still, Chairwoman Ann Jacobs informed the Commissioners in attendance that "attorneys from the Wisconsin Department of Justice requested to meet with the Commission in closed session to discuss [that] agenda item," and so a motion to reschedule that agenda item passed. Ultimately a Special Teleconference Meeting was scheduled on June 10th for that purpose.

The minutes of that Special Meeting include an 8+ hour video. The portion of it—closed from public view—is related to "litigation in which it is or is likely to become involved."

Before leaving the publicly accessible Zoom meeting and entering a closed session in a private one, Commissioner Robert Spindell remarks:

"If the reason to have a closed session is that there's likely to be litigation on this... I would be extremely surprised if there wasn't litigation, no matter which way the Commission decides on this. I would say it's probably 100%, 99%... what I would like to do... maybe have one of our DOJ attorneys give us some more information... in terms of why they think this should be a closed session."

Commissioner Dean Knudson then says,

"The reason to go into closed session should be specific, and it should be sufficiently specific that all the Commissioners can rely on it... I don't think that it has been made that specific... it is a defense for Commissioners who later might be questioned about whether it was a valid reason, it is a defense for us to rely on our counsel, there's no doubt about that. I don't necessarily think the law ever says that we must rely on our counsel. I think what it says is that we may rely on them as a defense against liability for having gone into closed session when it really wasn't appropriate... The problem here is it's a slippery slope. Many, many areas that we will take action and make decisions on, we could be sued by one side or the other. Sometimes there are stakeholders from three different areas that might all have a sufficient enough concern over our actions that they sue us over the decision that we made. It could be those that represent voters, it could be those that represent... um... uh... let's just say it had to do with the access question today... I could make you the case that we could be sued over decisions we make about voter access and the access to the polling place by those with disabilities... so if you stretch this loophole too big, pretty soon you're doing everything in closed session... I'll guarantee you there are going to be questions asked and comments made that the public probably has a right to know... we don't want to be making those decisions based on discussions that are not in the light of day."

The Commissioners then voted to discuss the "Litigation Update" on the agenda in an open session or a closed session. The case to be discussed, Zignego et al. v. Wisconsin Elections Commission et al. (2021 WI 32), had an April 9 decision by the Supreme Court of Wisconsin that said the WEC had no positive obligation to change the registration of a municipality's electors upon receipt of reliable information they had moved, ruling instead that the "Commission" referred to by the law is not of the State of Wisconsin, but one of the municipalities itself. A majority was needed for the motion to pass, but the three Republicans voted to discuss it in open session, while the 3 Democrats voted for closed session talks.

Knudson spoke up to say, " ...I raise the defense that I wish to avoid liability for participating in the closed session by asserting that I am relying in good faith... openly relying in good faith on the advice of our counsel from DOJ in attending the closed session."

See our article about Look Ahead America's suit against Ohio's elections board over meetings they had about contracts with Dominion that they say violated Sunshine Laws, specifically the Open Meetings Act of Ohio.

After returning to the open session of the Special Meeting, the commissioners approved specific language for the mailing of watermarked postcards.

We reported previously that WEC had approved mailing of ERIC-informed postcards in an attempt to confirm voters who are flagged as having potentially moved from their registered address, a process that was found to be 93% predictive. Those postcards went out last week.

Another Zoom meeting for the WEC Advisory Committee is scheduled for today, June 23. ERIC is on the agenda for discussion, along with voter list maintenance and litigation updates.

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