Wisconsin clerks’ guidance to voters on absentee voting was wrong, but claim has caveat

By early 2020, COVID-19 was sweeping through the United States and began wreaking havoc on the daily lives of millions of Americans. 

Confusion over voting and the polls swirled around the April 7, 2020, election. On the ballot was the presidential primary and elections for state Supreme Court, Milwaukee mayor, Milwaukee County executive and other local offices.

With regular polling places drastically reduced in many cities, many voters cast their ballots by alternative means, with county officials in Dane and Milwaukee offering guidance to voters, specifically on what they needed to do to get an absentee ballot. 

"Unfortunately during COVID, the clerks in Madison and Milwaukee told their constituents that they were actually indefinitely confined and did not have to come and vote, which was incorrect," state Rep. Cindi Duchow, R-Town of Delafield, said Nov. 9, 2023, during an Assembly floor session in which she spoke in favor of Assembly Bill 494. 

One of the provisions of A.B. 494, introduced Oct. 16, 2023, by Duchow and other lawmakers, states that a voter seeking indefinitely confined status must apply for that status on an application prescribed by the Elections Commission. Also under the bill, an outbreak or epidemic of a communicable disease in a voter's community does not qualify the voter as indefinitely confined.

So, did the clerks in Dane and Milwaukee Counties tell their constituents that they were actually indefinitely confined and did not have to come and vote and was the advice from the clerks off-base on what voters needed to do to obtain an absentee ballot?

Let’s take a look. 

When asked for backup for the claim, Duchow, in an email to PolitiFact Wisconsin, said AB 494 is designed to "ensure that voters clearly understand when they can declare themselves ‘indefinitely confined,’ and do not rely on election misinformation from left-wing clerks."

Duchow said in preparing the measure, she reviewed several sources, including the Wisconsin Supreme Court’s decision in Republican Party of Wisconsin v. Dane County. 

As reported by the Milwaukee Journal Sentinel, the court on March 31, 2020, blocked Dane County's clerk from telling voters they could request absentee ballots without showing a photo ID because of the coronavirus pandemic.

According to ruling, Dane County Clerk Scott McDonell, on March 25, 2020, posted the following guidance to voters on his Facebook page:

"I have informed Dane County Municipal Clerks that during this emergency and based on the Governors Stay at Home order I am declaring all Dane County voters may indicate as needed that they are indefinitely confined due to illness. This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times. I urge all voters who request a ballot and have trouble presenting a valid ID to indicate that they are indefinitely confined.

"A voter can select a box that reads ‘I certify that I am indefinitely confined due to age, illness, infirmity or disability and request ballots be sent to me for every election until I am no longer confined or fail to return a ballot.’  The voter is then able to skip the step of uploading an ID in order to receive a ballot for the April 7 election."

The Milwaukee County Clerk, George Christenson, issued a nearly identical declaration on Facebook later that same day, the high court ruling said. 

The Milwaukee County Clerk "urged all voters who request a ballot and do not have the ability or equipment to upload a valid ID to indicate that they are indefinitely confined," the Supreme Court ruling said.

McDonell, the Journal Sentinel reported, said he was not trying to circumvent the voter ID law, but wanted to alert voters that those who are confined can get absentee ballots without an ID. 

Christenson, as the Journal Sentinel reported, wrote in a letter that he had informed the county’s municipal clerks that this is an appropriate course of action during Gov. Tony Evers’ stay-at-home order and the Wisconsin Elections Commission’s guidance.

The Journal Sentinel reported that the justices ruled all voters could not be considered confined just because Evers ordered people to stay at home except when they are conducting essential business

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"McDonell appeared to assert that all voters are automatically, indefinitely confined solely due to the emergency and the Safer at Home Order and that voters could therefore declare themselves to be indefinitely confined when requesting an absentee ballot, which would allow them to skip the step of presenting or uploading a valid proof of identification," the justices wrote.

In Dane County, McDonell, in an email, acknowledged the court action.

"The state supreme court affirmed in 2020 that under state law individual voters, not clerks or lawmakers, determine whether they are indefinitely confined due to illness or age," McDonell said. "During the pandemic, many voters around the state temporarily determined they were indefinitely confined due to the COVID virus. Nothing has changed and that is still the law today."

In Milwaukee County, Christenson said Duchow’s statement "isn't accurate" and pointed to an updated statement his office  issued following clarified guidance issued by the Wisconsin Election Commission on March 27, 2020. 

That guidance said, partly, that voters must decide for themselves whether they qualify for the ‘indefinitely confined’ photo identification exception based upon their current circumstances. Also, according to the WEC guidance, "indefinitely confined status shall not be used by electors simply as a means to avoid the photo identification requirement." 

Christenson said his office followed the science around COVID-19 and adhered to the law. 

"This measure not only aligned with public health considerations at the time, but also ensured the preservation of the fundamental right to vote for all eligible individuals. We followed the science, we followed the law, and I would make the same decision today." 

The court ruling, in fact, says the clerk guidance on how to obtain an absentee ballot was "erroneous": 

"Accordingly, we conclude that the Respondents' interpretation of Wisconsin election laws was erroneous. Additionally, we conclude that Emergency Order (No.) 12 did not render all Wisconsin electors ‘indefinitely confined,’ thereby obviating the requirement of a valid photo identification to obtain an absentee ballot."   

Rick Esenberg, president and general counsel for Wisconsin Institute for Law & Liberty, a nonprofit conservative law firm, pointed out in an email to PolitiFact Wisconsin that the clerks’ initial guidance said people were confined because of the pandemic, and the Milwaukee clerk added an additional statement that "urged all voters who request a ballot and do not have the ability or equipment to upload a valid ID to indicate that they are indefinitely confined."

Esenberg said the clarified guidance issued by the Wisconsin Elections Commission didn’t address the COVID-19 issue directly but said an elector couldn’t claim indefinitely confined status to avoid uploading a photo ID to obtain a ballot.

After oral arguments, Esenberg said, the Supreme Court enjoined the clerks from giving advice contrary to the commission’s guidelines.

"After the election, it reached the issue on the merits and said the clerks were wrong, WEC was right and that a voter couldn’t claim to be indefinitely confined because of the condition of another, i.e., couldn’t claim to be confined because others were sick and he or she was afraid of becoming infected," Esenberg said. "In its view, the statutory language just doesn’t say that. It did say, however, that whether someone was indefinitely confined was a determination to be made by the voter."

So, the clerks were wrong according to the court, Esenberg explained, but there is a major caveat to Duchow’s statement.

"The issue wasn’t really ‘coming to vote’ if, by that, we mean voting in person. It was what you have to do to get an absentee ballot," Esenberg said.

Duchow said, "Unfortunately during COVID, the clerks in Madison and Milwaukee told their constituents that they were actually indefinitely confined and did not have to come and vote, which was incorrect." 

Although it’s true that clerks in Dane and Milwaukee Counties offered incorrect guidance to voters, Duchow’s claim mischaracterizes what the clerks’ posts said with the phrase "did not have to come and vote." 

According to the Supreme Court ruling, the clerks’ guidance did not refer to not coming in to vote. 

Rather, the clerks were offering advice to voters on indicating, as needed, that they are indefinitely confined because of illness when requesting an absentee ballot, which would allow them to skip the step of presenting or uploading a valid proof of identification, as the Supreme Court justices noted.

When a statement is accurate but needs clarification or additional information, the rating is Mostly True, and that fits here.