Tony Evers calls for all voters to get ballots by mail as two clerks are warned their advice to absentee voters may be illegal

MADISON - Gov. Tony Evers on Friday called for every registered voter in Wisconsin to get an absentee ballot just as the clerks of the state's largest counties were warned they could be advising such voters to break the law. 

Evers called on lawmakers to provide the ballots to prevent further spread of coronavirus at the polls on April 7 — a task top Republicans characterized as impossible to pull off in fewer than two weeks, and supplies for which election officials said they didn't have. 

The request by the governor for more absentee voting also came just as the state Legislature's team of researchers and legal experts issued a memo saying Dane and Milwaukee county clerks could be putting absentee voters at risk of prosecution. 

The county clerks this week told absentee voters they have the option to declare themselves "indefinitely confined" if necessary, allowing them to vote without showing a photo ID, under Evers' order to stay home to slow the spread of coronavirus.  

That guidance is inconsistent with state law and could lead to challenged votes and even criminal penalties, the nonpartisan Legislative Reference Bureau says. And late Friday, the state Republican Party of Wisconsin asked the state Supreme Court to intervene in the dispute.

Clerks say their advice is aimed at people, particularly the elderly, who are at risk of developing a serious illness if they contract coronavirus and do not have technology at home to provide proof of photo identification. 

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Voters who request absentee ballots online may be required to take a photo of their ID, then save it to a computer or other device in order to upload the photo as part of their request for a ballot.   

"Many senior citizens, for example, pride themselves on going to vote in person. Now with the governor’s order to stay home they’re put in a no-win situation," Milwaukee County Clerk George Christenson said in an interview Friday. "They’re going to follow the governor's order and the law and now they’re incapable of exercising their right to vote, and that’s what this law is designed for." 

Evers on Friday said he was calling on lawmakers to take action that would provide every registered voter with an absentee ballot to ensure the spread of the virus is limited, and especially to protect poll workers who are often over the age of 60.

"The bottom line is that everybody should be able to participate in democracy. Period," he said in a video announcing his request. He did not call for an absentee ballot-only election. 

But the state doesn't have enough ballots to meet Evers' request, Wisconsin Elections Commission administrator Meagan Wolfe said during a nearly five-hour meeting Friday night.

And Republicans who control the state Legislature immediately rejected the idea.

"Governor Evers just proposed procuring, printing, verifying, and mandating the mailing of millions of ballots within 10 days. Even he knows that’s not logistically feasible," Senate Majority Leader Scott Fitzgerald said in a statement. "In pitching this idea, the governor is lying directly to Wisconsinites about this even being remotely possible. Acting like this is doable is a hoax."

Assembly Speaker Robin Vos called the idea a "last-minute scheme" that is "logistically impossible and incredibly flawed."

"The governor’s idea is merely a statewide invitation for voter fraud," Vos said. "More than 100,000 votes have already been cast and 600,000 additional absentee ballots have been sent out, meaning that a large number of voters could receive two ballots. And because the voter rolls are not updated, ballots would go to thousands of people who may have moved. It was careless and reckless for Governor Evers to even make this suggestion.”

Evers said he wants lawmakers to allow ballots be postmarked the day of the election and to extend the time clerks may count the ballots.

His request came after 19 municipal clerks in Milwaukee County sent a letter to Evers and GOP legislative leaders asking for a mail-in only election.

"Every municipality within Milwaukee County is suffering from a devastating loss of election workers," they wrote in the March 26 letter. 

A task of converting an election that is fewer than two weeks away to mostly or all mailed ballots could be enormous, Wolfe told state election commissioners earlier this week. 

Wolfe on Tuesday said election officials in states that conduct elections by mail, like Colorado, Oregon and Washington, are cautioning states that are contemplating a switch amid the coronavirus outbreak.

"In everything I have seen from them, they caution states about jumping into it without planning carefully, saying things like, 'don’t try to build in a month what has taken us years to create and we are still working through issues,'" Wolfe wrote in an email to commission chairman Dean Knudson and commissioner Ann Jacobs. 

Wolfe said the governor's office had not contacted the commission as of Tuesday to discuss how to conduct votes entirely by mail.

"There is a lot of infrastructure we would need to discuss that we currently do not have in place," she wrote. Evers is not proposing to restrict voting to absentee voting only, however.

Fitzgerald also said Friday the advice to absentee voters being given by Dane County Clerk Scott McDonell and Milwaukee County Clerk George Christenson was inappropriate. 

Fitzgerald, who in the fall is running for the seat in Congress being vacated by Rep. James Sensenbrenner, said, "The liberal clerks in Dane and Milwaukee counties are encouraging people to vote illegally by not providing proper identification."

"It is completely inappropriate for them to use a pandemic to advance their far-left agenda," he said. "At a time when our state should be coming together, it’s sad that liberal clerks see it as an opportunity for political gain.”

McDonell on Friday he was confident that he had given voters sound advice.

He said GOP leaders were trying to create headlines that would scare people from taking a step that would allow them to vote. 

The Legislative Reference Bureau's researchers said because people are allowed to leave their homes under Evers' order, the clerks' advice misapplies the law.

"The order does not even require that those who are ill from COVID-19 or at high-risk for becoming sick from it stay at home, but, instead they are 'urged to stay at their home or residence to the extent possible except as necessary to seek medical care,' " the researchers wrote in a Thursday Fitzgerald. 

"These many exceptions demonstrate that not all Wisconsin residents are indefinitely confined to their homes," they continued. "For this reason, it would seem inconsistent with current law for a clerk or other election official to suggest that every individual in this state is indefinitely confined for purposes of receiving an absentee ballot, and without providing voter identification, because of emergency orders issued by DHS relating to a public health emergency that do not require residents to remain at home for all purposes."

Christenson said the bureau's analysis is incorrect. The county clerks told the Journal Sentinel earlier this week they were aiming their messages at those who are staying at home to avoid the spread of illness but don't have the technology or ability to provide a photo of their ID when requesting absentee ballots online.

Dane County's corporation counsel sided with the clerks' interpretation of the law, according to an email provided by McDonell.

"Many people do not have scanners or printers in their home. Therefore, I think it can be legitimately claimed that because of COVID-19 and the Governor’s order, a person can be indefinitely confined due to a physical illness," David Gault, Dane County's Corporation Counsel, said. "The statute does not require a person to actually be physically ill, but rather be confined because of physical illness. Sheltering at home to prevent the spread of COVID-19 meets this requirement."

The Republican Party of Wisconsin on Friday sued Dane County over the advice, marking the fifth lawsuit filed over the April election amid the coronavirus outbreak. 

The party is asking the Supreme Court to take up the matter directly, bypassing lower courts.

"This interpretation is wrong and requires this Court’s immediate correction," the party's petition to the court said, citing the Legislative Reference Bureau's analysis. 

McDonell said late Friday he stands by his advice.

"As I have said no one should abuse this process but those who are legitimaely confined due to COVID19 pandemic," he said in a text message.

Wisconsin law requires most voters to provide a copy of a photo ID to vote in person or absentee. But the requirement does not apply to those who are indefinitely confined, which the state Elections Commission describes as those who "have a difficult time getting to the polls due to age, illness, infirmity or disability."

The clerks said the illness exemption applies to more people now because so many are staying in their homes to avoid the spread of coronavirus, and that they aren't advising able-bodied voters to circumvent the photo ID requirement.   

Christenson wrote in a letter posted to Facebook Wednesday that he had informed municipal clerks in the county that this is an appropriate course of action during the coronavirus outbreak and given Evers’ stay-at-home order and guidance from the Wisconsin Elections Commission.   

“I urge 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,” he wrote. “Voters should not be reluctant to check the box that says they are indefinitely confined because this is a pandemic and this option exists in state law to help preserve everyone’s right to vote.”

The clerks' released their guidance after the Wisconsin Elections Commission told clerks statewide that during the coronavirus outbreak, "many voters of a certain age or in at-risk populations may meet that standard of indefinitely confined until the crisis abates."

The commission wrote there may be a review of the absentee voting rolls after the April election to confirm the voters that declared themselves indefinitely confined wish to continue to be considered so.  

The legislative researchers said in their memo that the Elections Commission's advice does not direct or recommend to clerks that they encourage all voters in a municipality to request absentee ballots in order to avoid exposure to COVID-19.

"The current public health emergency does not permit clerks to misapply Wisconsin’s elections laws," the researchers wrote.

They said if a voter declares themselves indefinitely confined knowing he or she is not actually confined because of age, illness, infirmity or disability, the voter could face civil and criminal penalties, and also see their vote challenged.

"A court would need to determine whether a voter, in committing this act, relied in good faith on the instructions of a municipal clerk," the memo said. 

The commission, however, voted late Friday not to provide guidance that would allow voters to declare themselves indefinitely confined if they want to vote absentee but do not have technology to provide a copy of their photo ID. 

Wolfe said clerks are being asked by elderly voters how to vote absentee if they don't have a way to provide the proof of photo ID through technology.

"I don’t think it's right just because you can’t make a copy of your ID, you can claim it," said commissioner Marge Bostelmann who was appointed by former Gov. Scott Walker. 

Thomsen said the clerks were trying to ensure voters are able to participate safely in lieu of help from Evers and the Legislature. 

"What we have is elderly at risk who have been the backbone of voting and we should be doing everything we can to let them vote safely," he said.

Commissioner Bob Spindell proposed opening an investigation into the clerks' actions, which the commission will likely take up at their next meeting. 

Alison Dirr and Patrick Marley contributed to this report.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.