Analysis: Denying ballots to auditors ‘arguably reasonable’

MADISON, Wis. (AP) — Denying Wisconsin state auditors access to the actual ballots cast in the 2020 presidential election is “arguably justifiable” based on guidance from the U.S. Department of Justice, attorneys for the Legislature said in a memo released Wednesday.

The nonpartisan Legislative Audit Bureau report released Friday said that election clerks in the city of Madison, Milwaukee County and two of Little Suamico did not allow auditors to physically handle the ballots. Republicans have seized on that, saying clerks were promoting secrecy, undercutting their credibility, and Senate GOP leaders on Monday promised an investigation into what happened.

Clerks have defended their action, saying auditors could see the ballots, they just couldn’t physically handle them because they are not permitted to do so under federal law. Madison’s clerk wrote to auditors in August, telling them there is no information or data available in the records that could be obtained through physically handling them that couldn’t be gained by viewing copies or in other ways.

Attorneys for the Wisconsin Legislative Council, who advise lawmakers, were asked by Democratic Senate Minority Leader Janet Bewley about who can legally access the ballots.

The attorneys’ analysis cites guidance issued by the U.S. Department of Justice in July said election materials must be retained by elections officials and kept under their supervision.

“It is arguably reasonable to permit only clerks’ staff to physically handle election records based upon the U.S. Department of Justice guidance,” wrote Anne Sappenfeld, director of the Wisconsin Legislative Council, and staff attorney Peggy Hurley.

Furthermore, the potential for criminal prosecution if they fail to properly retain and preserve the records also rests with clerks, Sappenfeld and Hurley said.

The attorneys also said that based on the audit, it appeared that other election clerks interpreted the guidance differently and provided auditors more access to election materials.

“This could be due to legal interpretation or practice,” the attorneys wrote. “However, it could also be due to the extent to which individual clerks believe they can safeguard records physically handled by a third party.”

Bewley, in a statement she released along with the legal memo, called the pending Senate investigation “ill-advised” and said it “will do nothing to restore confidence in the administration and results of our elections. In fact, it seems designed to do exactly the opposite.”

“Haven’t we had enough already?” Bewley said.

Republican Senate Majority Leader Devin LeMahieu did not immediately respond to a request for comment.

The Audit Bureau, in its Friday report, made 48 recommendations and possible law changes to improve how elections are run, including adopting rules on whether ballot boxes should be allowed and whether missing information on absentee ballot envelopes should be filled in by election workers.

There is also a separate, partisan investigation being led by former Wisconsin Supreme Court Justice Michael Gableman. He was hired by Republican Assembly Speaker Robin Vos.

President Joe Biden won Wisconsin by more than 20,000 votes, a result that has withstood recounts, court challenges and the audit bureau review which found no widespread fraud. Only four people out of more than 3 million people who cast ballots in Wisconsin have been charged with election fraud.