Madison clerk: Subpoena risks choice between breaking federal law or state law

November 3 Wisconsin election ballot
November 3 Wisconsin election ballot
Published: Nov. 12, 2021 at 3:08 PM CST
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MADISON, Wis. (WMTV) - Madison City Clerk Maribeth Witzel-Behl argues a new subpoena puts her in the unenviable position of choosing to risk federal prosecution for violating federal election law or defying the state Senate and potentially end up in the Dane Co. jail.

Witzel-Behl laid out those options, which she described as “the worst-case scenario,” in a letter to the Legislative Audit Bureau’s (LAB) State Auditor Joe Chrisman. The three-page missive comes two days after state Senators issued the order demanding the Clerk’s Office hand over its records from the November 2020 election.

Republicans Senators accused Witzel-Behl’s department of “failing to comply with a lawful request for physical access to the records” to the LAB as part of its review of the election. The subpoena requires the city to hand over all physical absentee ballot certificates from the November election, so a sample can be reviewed as well as the results of legally mandated tests of all electronic voting equipment.

In Friday’s letter, Witzel-Behl restated her office’s position at the time of the LAB’s original request for the records, which made as part of the non-partisan agency’s statewide review of the election. At the time, the Clerk’s Office pointed to federal election rules mandating all records be retained and preserved for 22 months. She added the U.S. Dept. of Justice issued guidance for doing so that included warnings about and securing the records and establishing chains of custody when meeting requests.

An earlier memo written by Wisconsin Legislature attorneys that stated is “arguably justifiable,” based on guidance from the U.S. Dept. of Justice, to deny access to the actual ballots that were cast in an election. Witzel-Behl told Chrisman that upon expressing those concerns to his agency in August, she did not receive a response and claims she was under the impression that meant LAB accepted their position.

“If that was not the case, I would have expected the courtesy of a contact to have an opportunity to further discuss and brainstorm whether a solution could be reached,” she wrote.

On the day the subpoena was issued, Madison Mayor Satya Rhodes-Conway reiterated the city’s prior stance that the LAB could examine copies of the election records and have access to all the information requested regarding the original documents,” saying “(a)ll they have to do is take a three-minute walk to our Clerk’s office.”

Beyond the solutions offered over the summer, Witzel-Behl offered the LAB two other possible solutions, which she said were developed through internal discussions, for inspecting records without the clerk’s office chancing federal prosecution.

The first would find LAB inspectors inspecting records one at a time, with the assistance of personnel from the Clerk’s Office who would hand over a new record after the previous one was returned. The other workaround would require swearing in LAB staff members as Dane Co. election officials, at which point they could handle the records as any other city inspector would, provided they followed the same protocols. She did note that this solution would require any LAB inspectors to live in Dane Co.

The subpoena in question came after state Senators launched their own investigation into the Presidential Election, shortly after the non-partisan LAB released the findings of their probe. Those two investigations are distinct from the one the Assembly is conducting, which is being led by special counsel and former state Supreme Court Justice Michael Gableman.

In its report, the LAB stated that election clerks in the city of Madison, Milwaukee County and town of Little Suamico did not allow auditors to physically handle the ballots. Witzel-Behl referenced the other two clerk’s offices that did not hand over their records, saying she “would be surprised if it were the case that your staff did not reach out to any other clerks that expressed concerns about LAB staff physically handling original election records.”

The agency’s highly anticipated audit did not identify any widespread fraud in Wisconsin, leading a key Republican Senator, state Sen. Robert Cowles (R-Green Bay), to call the state’s elections are “safe and secure.” Cowles co-chairs the Legislature’s Audit Committee which authorized the LAB’s audit.

He did note the agency’s report leads to bi-partisan fixes for some of the issues identified in the audit, made 30 recommendations for the Wisconsin Elections Commission to consider and 18 possible legal changes for the Legislature. The report also identified inconsistent administration of election law based on surveys of ballots it reviewed across the state.

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