MADISON, Wis. (CN) - The Wisconsin Elections Commission is in the hot seat after two lawsuits were filed this week challenging a decision to discard 23 absentee ballots delivered late by city clerks on election night.

In Wisconsin, absentee ballots must be delivered for counting before polls close at 8 p.m. On the evening of the spring election, Madison's city clerk's office was late.

The clerk received 23 ballots the day before election day, but failed to deliver them to the proper polling locations until five minutes past the deadline for an unknown reason.

In the days following, the Madison Municipal Board of Canvassers decided to accept the late delivered absentee ballots and the county canvass board affirmed that decision. Each late ballot was marked.

However, a subsequent investigation by the Wisconsin Elections Commission ended in a reversal of those decisions based on the plain language of the statute.

"The ballots appear to have been timely returned by the voters, and the error in timely delivering them to the polling places was solely due to actions of the clerk's authorized representatives," the commission said in its decision. "However ... the law says that ballots that are not delivered to polling places by 8 p.m. cannot be counted."

The Dane County Clerk and Dane County Board of Canvassers appealed the decision to Dane County Circuit Court on Wednesday. At the same time, voters Margaret and Robert Honig - two of the 23 absentee voters disqualified by the commission - filed a separate suit to have their ballots counted.

The individual voters, represented by Law Forward, argued the commission's reading of the deadline statute goes against the Wisconsin Constitution because "'not to count plaintiffs' votes for no fault of their own would deprive them of their constitutional right to vote.'"

The voters asked for immediate relief as the deadline to certify the results of the April.7 election looms.

The city clerk's office sent each plaintiff a letter notifying them of the fate of their ballots, and an apology: "You submitted your ballot on time and properly ... I am sincerely sorry that we must reject your ballot because of an error outside your control," according to the voters.

The most significant race on April 7 was that to fill an open seat on the Wisconsin Supreme Court, which Justice-elect Chris Taylor won with just over 60% of the vote.

Although those two dozen ballots won't come close to moving the needle, the voters' suit could have big implications come November, according to Godar.

"I think one of the most important things going into a major election is simply to have the rules set ahead of time," Godar said. "So whichever way this comes out, there will potentially be a benefit to having this type of issue resolved now."

In other words, ironing this issue out now could promote confidence in Wisconsin's election administration come midterms, when most of the Legislature will be up for grabs in addition to the governor's seat.

The county clerk's appeal of the commission's decision follows a similar logic as the voters': discarding the late absentee ballots effectively deprives 23 citizens of their right to vote, which is forbidden by the state constitution.

State law requires the elector to return an absentee ballot to the municipal clerk so that it can be delivered by closing on election day. It continues to clarify that a ballot cannot be counted if it is not mailed or delivered before that same deadline.

Bryna Godar, a staff attorney with the State Democracy Research Initiative, told Courthouse News that the language of the statute doesn't clearly dictate the clerk's responsibility here.

"The statute itself I would say is a little bit unclear on what should happen in [this] type of scenario where the voter actually complied with returning it on time," Godar said. "And then the constitution is the other piece that comes in, there is this long line of constitutional precedent that says a voter should not be disenfranchised based solely on an election official's mistake."

Dane County Clerk Scott McDonell was guided by similar constitutional requirements in deciding to accept the ballots, reasoning that the error was minor and the voter not at fault.

McDonell asked the court to reverse the commission's determination and declare that an absentee ballot must be counted if the elector returned it before 8 p.m. on election day.

"There is a constitutional right to vote," Dane County Deputy Corporation Counsel David R. Gault said in the seven-page complaint. "Although the Legislature can prescribe mandatory procedures for absentee voting, if the elector complies with those procedures, failure on the part of an election official to perform their duties should not deprive voters of their constitutional right to vote."

The results of the spring election must be certified by May 15, giving Wednesday's lawsuits a short window to have the 23 late delivered ballots counted. Whether they will make it is yet unclear, but patching the discrepancy between state statutes and the constitution will only benefit future voters.

Source: Courthouse News Service