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As ballots began pouring in by mail after Wisconsin's April 7 primary, local election officials became increasingly perplexed over which ones to count.
A federal judge had ordered that ballots arriving as many as six days after the election should be accepted, but the U.S. Supreme Court narrowed that window, ruling that ballots should be counted only if they were postmarked by Election Day.
The trouble was that many ballots were arriving without postmarks, or the marks were unreadable. Other mail ballots were lost or delayed, threatening to disenfranchise thousands of voters. Desperate for guidance, the 1,850 municipal clerks who run Wisconsin's elections turned to the state agency tasked with helping them: the Wisconsin Elections Commission.
Three days after the primary, the commission's three Democrats and three Republicans wrangled over the issue for two and a half hours in a virtual meeting. The Democrats wanted all ballots received in the mail by April 8 — postmarked or not — to be accepted; the Republicans pushed to reject all ballots with missing or illegible postmarks.
“We're going to sit here all night, 3-3, if we can't even agree the mail takes more than a day," said Commissioner Ann Jacobs, a Democratic appointee and lawyer, pursing her lips and shaking her head as she peered into her computer screen. “We're not going to ever agree on whether these marks count or not — we're wasting our time."
Dean Knudson, a former Republican lawmaker who was chairman at the time, retorted, “Can you envision supporting any motion that would exclude any ballot?"
In the end, the commission deadlocked 3-3 not once but twice over motions to deal with the disputed ballots, leaving each of Wisconsin's municipal clerks to decide on their own what to do. For the state's top agency overseeing elections, such standoffs have become the norm. With the national spotlight on Wisconsin as a swing state that could sway the presidential election, the commission has become increasingly stalemated and ineffective, according to an investigation by Wisconsin Watch and ProPublica.
Although the commission has reached consensus on a handful of important issues, such as the mailing of ballot applications to voters, it increasingly stalemates along party lines. Commission members have strayed far from the apolitical approach of the panel's predecessor board, which was considered a national model for effective election administration. Both Democratic and Republican members often take their cues from their party leaders.
The commission's format is “a recipe for gridlock," said Jay Heck, the executive director of Common Cause in Wisconsin. “We've returned to where we were in the late 1990s, with partisan control of the body that oversees Wisconsin elections. … And so what that means is that if you have a 3-3 tie on any matter that's under consideration, nothing happens. Nothing moves ahead."
The commission has deadlocked at least 19 times in the 28 meetings it has held since the start of 2020, but only five times in the prior four years, according to meeting minutes, video recordings and live coverage. (No data was available for five meetings this year and one last year, either because there was no video recording or the commission met in closed session.) Most of the tied votes in the commission's four-year history have occurred since Robert Spindell Jr., a Republican donor who promotes unfounded allegations of vote-by-mail fraud, joined the commission in late 2019.
The latest deadlock was Oct. 20, two weeks before the election, over how to handle a complaint that the Milwaukee Election Commission had been tardy in informing voters of a massive reduction in polling locations before the April 7 primary. When Spindell began to address the merits of the complaint, Jacobs interrupted, saying it didn't come under their purview. “Are you trying to muzzle me?" Spindell shouted at her over Zoom.
The inaction has shifted responsibility to courts and municipalities, at times sowing confusion, delays and inconsistency. The commission gridlocked over whether the Green Party presidential ticket should be allowed on the ballot and whether to follow a judge's order to purge a quarter-million Wisconsin voters from the rolls; both issues ended up in court. During an Aug. 5 hearing on four cases related to rules changes for the Nov. 3 election, U.S. District Judge William Conley expressed astonishment that the commission had been “frozen by gridlock over such simple issues."
The Wisconsin commission's dysfunction mirrors that of the national Election Assistance Commission, which was established in the aftermath of the disputed 2000 presidential election to help states and localities administer elections. It is made up of equal numbers of Republican and Democratic appointees and at times has been paralyzed by partisan disagreements. Besides Wisconsin, eight states have an appointed board overseeing elections.
Because of the commission's deadlock over disputed ballots, the village of Cambridge counted those it received without postmarks after primary day, but the city of Janesville didn't. There were even disparities within families. Christopher Koschnitzke's vote-by-mail ballot was among the 5,640 spurned statewide for arriving too late, although his wife's — mailed at the same time — was not. His absentee ballot envelope showed that his ballot had been signed by a witness and mailed on April 6, the day before the primary, but a clerk rejected it, noting that the postmark was not “readable."
“I did everything I needed to do. My wife did everything she needed to do," said Koschnitzke, 40, a Lutheran pastor who was living near Waterloo, Wisconsin, at the time. “It makes you wonder: How valid is the process and how many more people are in the same position that I'm in?"
“A Genuinely Nonpartisan Institution"
It didn't have to be this way. The commission replaced Wisconsin's Government Accountability Board, made up of six retired judges who rarely deadlocked during its eight-year history.
The GAB was formed in 2008 in the wake of the so-called legislative caucus scandal involving lawmakers who illegally used state-paid aides to run private political campaigns. The scandal resulted in criminal charges against lawmakers and staff, including the top two legislative leaders, Republican Assembly Speaker Scott Jensen and Democratic Senate Majority Leader Chuck Chvala. Jensen's felony convictions later were dismissed, on condition that he paid a fine and agreed to never seek public office again. Chvala was sentenced to nine months in jail, serving most of the time on home electronic monitoring.
The GAB was composed of retired judges specifically to avoid partisanship. Although judges are elected in Wisconsin, they run without party affiliations. Potential board members were chosen by a panel of appeals court judges for appointment by the governor. The GAB had the power to conduct independent investigations that did not require legislative approval.
“Wisconsin's GAB is unique among state election authorities in the United States," wrote Daniel P. Tokaji, now dean of the University of Wisconsin Law School, in a 2013 UC-Irvine Law Review article. “It is a genuinely nonpartisan institution, in an era of fierce and acrimonious partisan competition."
The board was abolished in 2015, however, by Republican lawmakers furious over its role in investigating former Gov. Scott Walker's 2012 campaign after he was recalled. Leading the charge to abolish the GAB was Knudson, then a state representative. He was appointed in 2017 to the Wisconsin Elections Commission — which he helped to create — to fill out the term of another commission member, Steve King, who was named ambassador to the Czech Republic by President Donald Trump.
Among the casualties of the GAB's demise was its longtime election chief Kevin Kennedy, who was forced out in 2016 — one day before the new commission was set to launch.
The new commission unanimously nominated the GAB's elections administrator, Michael Haas, to replace Kennedy, but in 2018 the Senate refused to confirm Haas in what Democratic-appointed Commissioner Mark Thomsen labeled an episode of “dirty, dirty politics." Haas left the agency and is now the Madison city attorney.
Wisconsin's current setup gives most of the power over the commission to the Legislature, where Republicans have nearly insurmountable control thanks to gerrymandering that survived a U.S. Supreme Court challenge. The top four legislative leaders appoint four of the six members, with Republicans and Democrats equally represented. Wisconsin's governor, Tony Evers, is a Democrat, but he appoints just two members to the commission — former county or municipal clerks, one from each major party, from a list provided by those legislative leaders.
All appointments are subject to confirmation in the GOP-run state Senate, including commissioners' choice for the administrator to lead the agency. Campaign-related investigations are now handled by a separate Ethics Commission.
Pushing Partisan Agendas
Both Republican and Democratic appointees of the Wisconsin Elections Commission interviewed by Wisconsin Watch say they have consulted with the legislative leaders who appointed them before voting on key issues.
Calling himself “an officer of the Republican Party," Spindell said he plots strategy with Scott Fitzgerald, the Senate majority leader, and Andrew Hitt, chairman of the Republican Party of Wisconsin. Hitt and Mark Jefferson, RPW executive director, both talked with Spindell about a proposal to send request forms for absentee ballots to all registered voters in Wisconsin.
Hitt said he let Spindell know that he supported the idea. “Anybody who thinks Bob Spindell takes 'marching orders' hasn't met Bob," Hitt added.
“I believe most of the discussions I've had with Bob have been over the Elections Commission," Jefferson said in a July deposition. Fitzgerald did not respond to requests for comment.
Spindell said his presence on the commission adds balance. “I think that it's my job to watch out and protect the interests of the Republican Party, because I'm appointed by an elected official of the Republican Party," said Spindell, who is a senior vice president in Milwaukee for a national merger and acquisitions firm.
“Before I got on the commission, both the GAB and the Wisconsin Elections Commission were thought of terribly by the Republican Party," he said. “I think I've changed that."
Like Spindell, Democratic commissioner Jacobs does not shy away from the partisan nature of her appointment, saying it makes the commission more transparent. Her “mantra," she said, is that “every eligible voter who wants to vote should be able to cast their vote, have it counted."
She added, “We know where people stand on certain issues and the like, so I don't think there's anything wrong with it being partisan."
Commissioner Thomsen, a Milwaukee attorney, said he, too, sometimes consults the legislator who appointed him, Assembly Minority Leader Gordon Hintz, a Democrat from Oshkosh, on issues before the commission.
Matthew Kirkpatrick, an election law attorney based in Menomonie, Wisconsin, said it's almost inevitable that, in a polarized political landscape, tensions sometimes erupt.
“This commission, while having a noble goal, sometimes gets down to political infighting, jockeying for position," Kirkpatrick said. “The national vitriol has made it down to all the local governing, which is sad."
“Everything is contentious. Everything is an 'us-versus-them,'" he said.
A Controversial Figure
Before joining the state elections commission, Spindell served on the Milwaukee Election Commission. A campaign donor who has given at least $60,000 to state and federal GOP candidates, Spindell served as a Republican National Convention delegate in 2016 and was an unsuccessful candidate for a suburban Milwaukee Assembly seat in 1992.
Even then, Spindell was a controversial figure. While running for the Assembly, Spindell was facing arrest warrants over two unpaid municipal forfeitures. He said he wasn't aware of the warrants until he learned about them from news reports, and then he paid the fines promptly.
Like Trump, Spindell routinely spreads misinformation about widespread absentee vote fraud. He's pushed the accusations with political ads as chairman of a dark-money political group, Wisconsin Patriotic Veterans. He said he is speaking in the ads for himself, not as an elections commissioner.
Just before the November 2016 presidential election, Spindell had an “irate exchange" with an election worker at a polling place, retired Milwaukee Election Commission executive director Neil Albrecht recalled. Spindell, then a member of the Milwaukee commission, accused the worker of telling a voter how to vote, and he demanded that Albrecht reassign or remove her from the site. According to Albrecht, the voter had asked for help identifying Democratic candidates, and the worker was legally providing assistance.
Spindell defended his behavior. “What I said to him was exactly correct, because it just wasn't one voter. This lady was doing it to every single one," he said. “She was giving the ballot to somebody and then pointing to ... the Democratic names on the ballot."
“That certainly is something that is not allowed," he added.
Soon after Spindell was appointed to the state commission, members clashed over updating the voter rolls. In October 2019, the commission sent 232,000 letters to Wisconsinites who were believed to have moved, asking for them to either confirm their current address or update their voter registration. Those who did not respond would be removed from the rolls in 2021, the commission decided, based on an earlier effort that had deactivated thousands of voters incorrectly targeted for removal.
The conservative Wisconsin Institute for Law & Liberty sued the elections commission, arguing that state law required the commission to act within 30 days to remove voters flagged as possibly having moved or died.
In December, Ozaukee County Circuit Judge Paul Malloy agreed, ordering commissioners to immediately purge the voters from the rolls. Faced with Malloy's order, the commission split along party lines three times on how to proceed, with Republicans, including Spindell, voting to comply and Democrats refusing to do so.
Finally, in February, the Wisconsin Court of Appeals overturned Malloy's order, ruling that the law applies to municipal clerks who run elections — not the state elections agency. The matter is now before the Wisconsin Supreme Court, which has a 4-3 conservative majority.
Rebuffing Kanye and the Green Party
On Aug. 20, all eyes were on Wisconsin again as an attorney for Kanye West tried to argue the erratic rapper's way onto the presidential ballot. West's unexpected candidacy was widely seen as a Republican effort to take votes away from Democratic candidate Joe Biden to benefit Trump, who won Wisconsin in 2016 by less than 1 percentage point.
After deliberating more than four hours, the commission ultimately deemed West ineligible because his attorney missed the deadline by about one minute to submit nomination papers, which were sprinkled with names of fake Wisconsin electors including Mickey Mouse, Kanye West and Bernie Sanders.
The vote was 5-1. Two Republican commissioners crossed the partisan canyon to join the three Democrats. The only holdout was Spindell.
Another flashpoint was the August debate over Green Party presidential candidate Howie Hawkins and vice presidential candidate Angela Walker. The pair had gathered enough signatures to be put on the ballot. But they had filed documents that listed two different addresses for Walker, who had moved during the circulation of the nomination papers, raising questions about which of the signatures were legally valid.
The commissioners split 3-3 along party lines over whether to allow the Green Party — another perceived source of votes to be siphoned away from Biden — on the ballot.
After the commission deadlocked twice, Knudson offered a workaround: Certify 1,789 of the signatures presented by the party, short of the required 2,000 to get on the ballot, and let a judge sort out the remaining 1,834 signatures. The motion passed 6-0, and the Green Party was denied ballot access.
Afterward, Spindell emailed a Green Party official, apologizing for the commission's decision. The party asked him to recommend an attorney and he supplied the name of “the best election lawyer in the city," he said. The party sued the commission, but the state Supreme Court on a 4-3 vote declined to take up the case, saying it came too late in the election season.
Embracing the Divide
Not surprisingly, members of the commission disagree with the notion that it has taken a backward turn.
Knudson, the architect of the Elections Commission, said in a June video interview with the Western Wisconsin Journal that he was initially averse to the commission's 3-3 setup, which he described as a compromise to ensure success of the bill among fellow Republicans. But he changed his opinion after his appointment.
“I found myself living with the statutory framework that we had set up for the new Elections Commission, and frankly, it really works pretty well," he said, adding that most of the time, the commission reaches a consensus. Knudson did not respond to Wisconsin Watch's request for an interview.
Marge Bostelmann, a Republican commissioner, insisted that all members, despite their party labels, share a common goal: “A safe and fair and honest election."
Among the Democrats, Jacobs said she has seen the commission evolve from a “rather uninteresting organization into a sort of critical one" as it grapples with fears of Russian interference, computer and voting machine security issues and pending litigation that could change Wisconsin election rules before Nov. 3. Thomsen said he believes the commission has functioned reasonably well given its partisan makeup, thanks to the dedication of local clerks and the nonpartisan commission staff.
“It is a noisy America right now," Thomsen said. “But look at the clerks and your neighbors who do all the work at the polls and counting the ballots. And Wisconsin is known historically for running fair elections. And there's nothing that has changed since 2016 in that."
Thomsen said the commission has managed to reach agreement on some controversial issues. For example, commissioners agreed unanimously on June 17 after a protracted debate to send absentee ballot applications — not the ballots themselves — to 2.6 million voters ahead of the November election. Still, even that 6-0 vote had a political tinge: Spindell conferred with Fitzgerald, Hitt and Jefferson before supporting the proposal.
Heck sees this type of maneuvering as evidence that the commission is more beholden to party leaders than the voting public.
“The Wisconsin Elections Commission serves at the pleasure of the legislative leadership and to some extent the governor," he said. “So they are — I'm not going to say pawns, I hesitate to use the word pawns — but they are certainly subservient to the will of the legislative leaders and the governor by design. That's just how the system is set up."
Standing Up for Voters
The impasses have been difficult on voters and election workers, said Diane Coenen, past president of the Wisconsin Municipal Clerks Association.
While commissioners were consumed with “making sure their party is protected," Coenen said, clerks scrambled in March and April to ensure a fair election as the pandemic and last-minute court rulings threw democracy into chaos.
She said the challenges that cropped up during the primary could very well resurface during the November election. She doesn't know if the commission has learned from experience.
“We are nonpartisan — the clerks are nonpartisan," she said. “So we need the help. We need neutral. And I don't see that we're getting that."
Kennedy, the ex-GAB chief who ran Wisconsin elections for more than 30 years, said that the deadlocks do not inspire confidence.
“What's really important is to convey to the public that they're focused on ensuring that elections are going to be safe and secure," Kennedy said. “(Commissioners) need to be able to get the message out there, and the partisan bickering is not going to help that. It really needs to be a unified front."
Koschnitzke, the pastor, has relocated to Waukesha, Wisconsin. After Wisconsin Watch showed him a copy of his rejected ballot envelope with the unreadable postmark, he said, “I am even more frustrated and disappointed. I did everything right and an error out of my control, by what is supposed to be a trusted government agency in the post office, negated my vote."
He said he knows what he won't do for the Nov. 3 election.
“Any idea or thought I had of voting absentee," he said, “has gone out the window."
Wisconsin Watch's Dee J. Hall, Clara Neupert and Anna Hansen contributed to this report, which was funded by ProPublica's Electionland project. The nonprofit Wisconsin Watch collaborates with WPR, PBS Wisconsin, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.