City of Madison Tries, Fails to Justify Early Voting in Parks Events

By Dan O'Donnell

September 28, 2020

The City of Madison collected untold hundreds or even thousands of ballots on Saturday at 206 city parks during the first of two events the City Clerk's Office is calling "Democracy in the Park." Despite a warning about the potential illegality of these events from both Republican legislative leaders and "The Dan O'Donnell Show," the first ballot collection event went ahead as scheduled. After both "The Dan O'Donnell Show" and "Vicki McKenna Show" expressed serious concerns about the lawfulness of what is obviously intended to be an in-person absentee voting event several weeks before in-person absentee voting can legally begin in Wisconsin, Madison City Clerk Maribeth Witzel-Behl issued the following press release:

Democracy in the Park is an event created by, planned by, staffed by, and paid for by the City Clerk’s Office.
This event will simply make it easier for residents who have received their requested absentee ballot, to drop it off in person. This is not in-person absentee voting. Poll workers will not be able to issue anyone a ballot at the park. The only way to receive a ballot right now is through the mail.
In-person absentee voting begins October 20, and voters will be able to receive and cast an absentee ballots at any of our absentee voting sites at that time. The poll workers in each city park tomorrow have taken an oath of office. They are the same dedicated public servants who administer elections at your polling place on Election Day. Absentee voting by mail is underway. Voters may return their absentee ballots by mail, or in person.
Our ballot drop boxes are still on order, and voters have been requesting a location close to home where they can deliver their ballot. By having poll workers receive the delivery of the absentee ballot, we are able to double-check that the voter has completed the certificate envelope so the ballot can be counted at the polls on Election Day. Voters who want a poll worker to serve as their absentee witness need to bring their ballot and envelope from home, show the blank ballot to the poll worker, mark the ballot in a way that the poll worker cannot see how they are voting, and then seal the ballot in the envelope they received in the mail.
The City Clerk’s Office is non-partisan. Regardless of who people vote for, our goal is that each eligible voter will be able to cast a ballot and have that ballot counted.

Witzel-Behl's position that the events do not constitute in-person absentee voting rests on the presumption that because the ballots were mailed to voters, who then returned them in person, "Democracy in the Park" is not an in-person absentee voting event. It's merely an event in which voters can drop off mail-in ballots. The problem with this interpretation, of course, is the manner in which the event was promoted.

In a radio advertisement paid for by the Joe Biden Presidential Campaign that aired on several Madison-area radio stations, the ad's narrator told prospective attendees that "this year voting early is a walk in the park…literally. On Saturday, September 26th and Saturday, October 3rd, from 9 am to 3 pm, City of Madison poll workers will be in over 200 city parks; registering voters, answering questions about voting, and accepting your completed absentee ballot."

In other words, accepting an absentee person.

“Absentee voters who still need to find a witness can just bring their blank ballot with them and have a poll worker serve as their witness,” the ad continued. This is the literal definition of voting absentee in person. The City Clerk's Office maintains that since the ballots were mailed to voters, this does not violate the letter of the law. However, it certainly violates the spirit.

The purpose of mail-in ballots is to provide an option for voters who are unable or unwilling to head to their polling place either on Election Day or during the designated in-person early voting time period, which this year begins on October 20th. Because of the ongoing Coronavirus pandemic, the argument goes, tens of thousands of people will have such significant health concerns that they will be unwilling to venture out to a polling place in person. Mail-in voting, then, gives them a safe option.

This, of course, is true. Then why is the event designed to get people out of their houses to use 206 public parks instead of either the Postal Service or a designated alternate polling location? In April, Dane County Clerk Scott McDonnell urged all voters, regardless of whether they were actually totally confined to their homes, to mark themselves as "indefinitely confined" ahead of the Wisconsin Presidential Primary so that they would be able to bypass the state's voter identification requirement. Unless changed, that designation continues into this election cycle.

One wonders how many of these supposedly "indefinitely confined" voters turned in their ballots at a park on Saturday.

One might also wonder whether the designation of 206 different parks violates both the letter and spirit of Wisconsin Statute 6.855, which provides that "the governing body of a municipality may elect to designate a site other than the office of the municipal clerk or board of election commissioners as the location from which electors of the municipality may request and vote absentee ballots and to which voted absentee ballots shall be returned by electors for any election. The designated site shall be located as near as practicable to the office of the municipal clerk or board of election commissioners and no site may be designated that affords an advantage to any political party."

Clearly, designating every single park in the City of Madison as an alternate absentee ballot drop-off location violates the requirement that such locations be "as near as practicable to the office of the municipal clerk or board of election commissioners." It may also violate the requirement that "no site may be designated that affords an advantage to any political party."

Every site, the Biden Campaign clearly believes, advantages it. Why else would it spend a sizable amount of money to advertise "Democracy in the Park" in the first place? Moreover, the manner in which the event has been promoted gives voters the impression that "Democracy in the Park" is a Biden-sponsored event? After all, Biden himself says "I'm Joe Biden and I approve this message" in the radio commercial, and Biden's "WI 2020 Victory" website actively promoted it as being "hosted by WI 2020 Victory."

Although the standard disclaimer is posted at the bottom of the page that "this event is hosted by the City of Madison and is a non-partisan event," the top of the page (i.e. the part that visitors to it see first) identifies it as being "hosted by WI 2020 Victory." Visitors to the page would at the very least be confused as to who exactly is really putting on the event.

A far greater concern about "Democracy in the Park," however, is its utter lack of ballot security. In August, the Wisconsin Elections Commission issued a directive to municipal clerks that all "ballot drop boxes" (either unstaffed or staffed, as the ballot drop-off locations in the parks were) must be "secured and locked at all times. Only an election official or a designated ballot drop box collection team should have access to the keys and/or combination of the lock. In addition to locks, all drop boxes should be sealed with one or more tamper evident seals."

None of these security measures were apparently in place during Saturday's event. Witnesses reported poll workers merely taking ballots and placing them into unlocked, unsecured duffel bags to be taken to either the City Clerk's office or a designated locked box after the event ended.

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald were so concerned about this utter disregard for ballot security that they sent a cease and desist letter to the Madison City Clerk:

As your office describes the campaign, your poll workers will attempt to collect absentee ballots at over 200 unsecured, outdoor locations, and only deliver these ballots to the City Clerk’s Office at the end of the six-hour campaign. The threat that this procedure poses to ballot integrity is manifestly obvious. Moreover, in light of these many convenient absentee-ballot return options described just above, there could be no justification for this ad hoc, unsecure, and unlawful approach that your campaign appears to be creating.
Given the apparent unlawfulness of the absentee-ballot-collection efforts of your “Democracy in the Park” campaign, there is a grave risk that all ballots you collect through this campaign will be challenged in court and ultimately invalidated. See Wis. Stat. § 6.93; see also Wis. Stat. § 6.87(6). We urge you in the strongest possible terms to abandon this unlawful effort immediately, in order to avoid the threat of invalidated ballots and needless litigation. At minimum, your office should keep any ballots collected during this illegal effort separate from all other ballots that your office receives.

On Friday, "The Dan O'Donnell Show" decried this event as potentially in violation of Wisconsin's prohibitions on in-person absentee voting as well as a partisan political event (as evidenced by the fact that the Biden Campaign has been actively promoting it).

The Madison City Attorney's Office objected to this interpretation of the event and sent "The Dan O'Donnell Show" the following letter:

Dear Mr. O’Donnell:
I am writing to correct several inaccurate statements made by you today posted to the WISN webpage regarding the City of Madison’s absentee voting drop off points in various city parks this weekend. Your inaccurate statements have confused absentee voting with early voting and as a result the City of Madison is very concerned that you are misleading the voters. As made abundantly clear in the public statement just issued by Madison City Clerk Maribeth Witzel-Behl, the Democracy in the Park events are NOT early voting events under Wisconsin law.
The park events are only providing a place for voters who have already received their absentee ballots in the mail to have their ballot witnessed, if necessary, and turned in to designated poll workers who have taken an oath of office. These are the very same staff members who work at the polls on Election Day. Early voting does not begin until October 20 and is governed by different statutory rules. The purpose of the Democracy in the Park events is to give absentee voters a safe and convenient place to have their ballots witnessed by poll workers to avoid COVID exposure and provide a convenient way to return their ballots to the clerk. This project may have been promoted by a political party on their own without our permission, but it is not affiliated with any party and is completely non-partisan.
In Wisconsin, both the Republican and Democratic parties have the opportunity to appoint poll workers, the very people who are serving at the Democracy in the Park events. In Madison, only the Republican Party of Wisconsin has availed itself of this right. By copy of this letter the City expects you to immediately retract the erroneous information you circulated earlier and provide the public with the correct information provided in this letter and the content of the City Clerk’s press release. The integrity of our electoral process this year depends in part on the media’s accurate presentation of information. The voters who heard your broadcasts or read your statements deserve no less than a retraction and correction.
Steve Brist
Assistant City Attorney

While "The Dan O'Donnell Show" did both on the air and in print publish the letters from both the Madison City Clerk and Assistant City Attorney, it will not retract its reasonable interpretation of Wisconsin Election Law. A different interpretation of said law than that of the City of Madison is in no way "erroneous information"--it is a difference of opinion.

Reasonable people could rather obviously interpret the Biden Campaign radio ad and WI Victory 2020 web page as being evidence of Biden's sponsorship of the event. Given that the City of Madison rather obviously was aware of said ads and web page but did not immediately ask the Biden Campaign to cease and desist the partisan promotion of a supposedly non-partisan event, it may be reasonably assumed that the City of Madison tacitly approved of such partisan promotion.

Both "The Dan O'Donnell Show" and the leaders of the Wisconsin Legislature obviously believe that the City of Madison's events are in violation of both the letter and spirit of election law. This is a reasonable interpretation of both the letter and spirit of the law, and the City of Madison would be wise to prepare for the very strong possibility of litigation from the Legislature over its "Democracy in the Park" events.

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