Ballot Boxes (copy) (copy)

An official absentee ballot collection box is located outside of Madison Fire Department Station No. 4 on Monroe Street in March. 

Madison City Clerk Maribeth Witzel-Behl on Friday offered two proposed options for her compliance with a subpoena served Wednesday by Senate Republican leaders.

In a letter to State Auditor Joe Chrisman, Witzel-Behl expressed disappointment with her experience with the nonpartisan Legislative Audit Bureau's review of the 2020 election. 

The subpoena demands Witzel-Behl turn over “all physical absentee ballot certificates returned to the City of Madison for the November 2020 General Election” and “the results of the statutorily required tests conducted by the clerk’s office on all electronic voting equipment used by the City of Madison in the November 2020 General Election, including the predetermined paper ballots used in the tests.”

It came several weeks after the release of the nonpartisan Legislative Audit Bureau’s audit of the 2020 election, which included 30 recommendations to the Wisconsin Elections Commission focused on improving election administration in the state.

The audit was ordered by the Legislature’s Joint Legislative Audit Committee in February and, as directed, focused on WEC’s compliance with election laws, clerks’ compliance with election laws, the use of electronic voting equipment and 2020 election-related complaints filed with WEC and clerks, among other things.

Late last month, Senate GOP leaders pledged to “authorize the Senate Committee on Elections, Election Process Reform and Ethics to conduct an additional investigation relating to the findings of the audit including the City of Madison’s refusal to provide documents and ballots to the LAB in the course of their investigation.”

The subpoena issued Wednesday requires Witzel-Behl to bring the requested election materials to the office of the Senate sergeant at arms by 12 p.m. on Nov. 24, or to contact the Legislative Audit Bureau by 5 p.m. on Nov. 12 to arrange a time for LAB employees to “physically handle and review the requested records.”

The materials requested "belong to the people of Wisconsin," said Senate Majority Leader Devin LeMahieu, R-Oostburg, in a statement.

In an August letter to LAB deputy director Dean Swenson, Witzel-Behl offered several reasons explaining why she would not turn over “ballots, absentee ballot envelopes, poll books and other election records” requested by the agency, and would instead offer copies of the documents.

Witzel-Behl cited state and federal laws requiring election officials to maintain federal election records for 22 months after the election, and said she could not “in good conscience," risk having them inadvertently altered or damaged by allowing auditors to handle them. In addition, she noted in August, "the conduct and outcome of the Presidential Election is still being litigated in various forums."

In her Friday letter, Witzel-Behl said she did not receive a response from the LAB to her August letter and assumed that meant the agency didn't have concerns with her position.

"I now find myself in the position of, in the worst case scenario, choosing to be subject to either potential federal criminal prosecution or a finding of contempt by the Legislature and the threat of imprisonment in the Dane County Jail," she wrote. "As a state employee, I hope you can understand that this should not be the reality of public service for election officials in Wisconsin."

Witzel-Behl proposed two options for LAB employees to inspect the city's election records:

1. Allow LAB staff, with the assistance of city clerk staff, to "physically handle and inspect one record at a time." If auditors need to randomly select or sort records, "we can discuss how my staff can assist with accomplishing that under this method."

2. Allow LAB staff who are residents of Dane County to be sworn in as election officials. "This would provide me with the necessary confidence as custodian of the records that they will be handled and reviewed with the same care and chain of custody protocols as would be used by the City’s election inspectors." Under this option, Witzel-Behl said LAB staff could handle and inspect multiple records under supervision of her staff.

"We’re glad Madison is now working with the state auditor and are hopeful they can come to a quick resolution so we can complete our investigation," said a spokesman for LeMahieu. 

In her letter, Witzel-Behl also requested that the records review be scheduled either before or after the week of Nov. 22, since her staff spent Thanksgiving week last year assisting with the Dane County recount of the presidential election.

"I wish to be as helpful as possible to your efforts without jeopardizing the integrity of our election security," she wrote. "I trust that we share the same goal of providing the Legislature and the public with the most complete, accurate and transparent information and data regarding the administration of the 2020 General Election."

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