Earlier this month, Diane Coenen received news that seemed inevitable: Municipal and county clerks across Wisconsin were back to playing “ping pong.”
But this version of the game has major consequences for voters across the state, as well as those charged with administering elections locally.
Coenen, the clerk in Oconomowoc, was referring to the now routine court-ordered changes to Wisconsin’s voting and ballot procedures — changes that have left local elections officials anxious about ensuring they follow the latest set of guidelines.
The most recent ruling came from a Dane County judge, who said that elections officials should not be instructed to toss out absentee ballots with incomplete information provided by a state-mandated witness.
Instead, Dane County Circuit Court Judge Ryan Nilsestuen found in two separate rulings that ballots should still be accepted, even if they have only a partial witness address, provided the correct address can be identified.
This makes it less likely that an absentee ballot that would be accepted in one municipality would get tossed out in another. But this particular issue remains complicated, as exact certainty about what constitutes an address still doesn't exist in state law — something elections officials say is badly needed.
It is also indicative of how quickly things can change for the people who have to administer the state's elections, with more changes expected in the months leading up to November's hotly contested presidential election.
“The clerks and the poll workers, the county clerks as well, we all just want to do the best job we can — we want to do it right. And this makes things difficult,” Coenen said.
“And nobody wants … to be in the newspaper, basically being talked badly about, saying we've done something wrong.”
What is an 'address,' anyway?
The ruling on absentee ballot witness addresses is years in the making.
Under state law, anyone completing an absentee ballot must do so in the presence of a witness, who can certify that the person is an eligible voter. The existence of that requirement is also being challenged in court.
The Wisconsin Elections Commission first instructed clerks in 2016 that an address provided by a witness must “contain at a minimum, a street number, street name and municipality for the certificate to be considered sufficient."
But that original guidance also allowed clerks to fix any minor issues with a witness address in an effort to ensure ballots are not needlessly tossed out and votes go uncounted.
In 2022, a Waukesha County judge, however, ruled that clerks could not fill in missing information and would instead need to reject ballots without a complete address.
Nilsestuen, the Dane County judge, said this has created confusion throughout the state, an issue that is complicated because the definition of a complete address is not spelled out in state law when it comes to what information a witness must provide.
Election official Madeline Sall processes absentee ballots at the Tenney Park Pavilion polling place in Madison on Election Day in November 2022.
In Appleton, Green Bay and Racine, clerks rejected ballots that did not contain a ZIP code or municipality. In some cases, ballots were tossed even if the witness lived in the same household as the voter.
But in Superior, which has only one ZIP code, Clerk Heidi Blunt said that longstanding wisdom has been that a ZIP code is not required for an address to be deemed valid.
The ruling could create a more statewide standard, but Blunt said it was still unclear whether it would give as much certainty as clerks like her required.
"I think, unless we have a clear definition of what is and isn't a complete address, it's going to get (interpreted) differently between clerks," she said.
In one ruling, Nilsestuen sided with the League of Women Voters of Wisconsin in determining that rejecting an absentee ballot because of an incomplete witness address violated federal law.
In a second case, brought by Rise, a group that organizes youth voters, the judge found that a witness address need only be “a place where the witness can be communicated with."
Voting rights groups cheered the rulings as a victory for ensuring voters have their ballots tabulated.
“All voters deserve to have their votes counted regardless of whether they vote in person or absentee,” Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, said in a statement. “Small errors or omissions on the absentee certificate envelope should not prevent voters from exercising their constitutional rights.”
While Nilsestuen said the Legislature could put the matter to rest by passing a law to create a strict definition, he also said the possible ambiguity doesn't mean clerks should toss out ballots without a full address.
“For better or for worse, our elections are administered by humans and, as such, there will always be some level of subjectivity in administering election statues,” Nilsestuen wrote in his ruling on the Rise case. “This does not make such statutes unconstitutional or unworkable.”
The Legislature has approved a slate of election law changes but has not yet taken up the idea of locking in a definition of what address a witness should provide.
Uncertainty takes its toll
The absentee-ballot ruling could well be appealed, potentially meaning a higher court will order clerks to revert back to how things were done previously. The Wisconsin Supreme Court's new liberal majority could also be asked to set a statewide standard.
“Consistency would be helpful to make sure we’re doing things correctly every time,“ said Monona Clerk Alene Houser.
And the Dane County judge's ruling is unlikely to be the last time a court weighs in on an election law question in 2024.
This now-defunct absentee ballot drop box outside Fire Station No. 1 in downtown Madison has been wrapped in black and emblazoned with a quote from Sojourner Truth.
More sweeping lawsuits in both state and federal court are seeking to resume the use of ballot drop boxes and allow clerks to fill in missing information on absentee ballots.
Attorneys are trading written arguments in Dane County court over the question of whether clerks should be able to correct mistakes on absentee ballots, as well as the allowability of drop boxes.
A ruling is expected in the coming months, though the case may well be destined for the state Supreme Court, which ruled unmanned ballot drop boxes unconstitutional in 2022.
Coenen, the Oconomowoc clerk, noted a long list of effects that can occur more broadly when a court requires a change in the rules.
Poll worker training will occur typically two weeks before an election. But if a major change occurs in that time window, her office will need to double back to make sure the workers understand how any new procedures will play out.
That can be an uphill battle, even for established clerks. And there aren't as many of those experienced veterans on the job. In 2023 alone, published media reports show 13 county and municipal clerks left their positions in Wisconsin.
A University of Wisconsin-Madison study of local clerks’ experiences after the contentious 2020 election found that over 60% of those surveyed said the turmoil wouldn’t affect their decision to continue serving. Some found that the experience actually strengthened their resolve to keep administering elections.
Still, nearly two-thirds strongly or somewhat agreed that they were experiencing signs of burnout. And bearing the brunt of dealing with confused voters can test the resolve of all clerks, particularly those who have not had years of experience, Coenen said.
“Maybe because I've been in this for so long, I've learned to deal with this,” she said. “And, you know, I can get my way through it and do everything well. But the new clerks throw in the towel very quickly, and say ‘You know what, I'm not getting paid enough for this.’ And then you get somebody brand new who doesn't know anything, and they're trying to navigate the back and forth. And it is difficult. It's difficult for the seasoned clerks, right?”
