LEGAL BRIEF: Election Lawsuits and Our Democracy

“The multitudes remained plunged in ignorance … and their leaders, seeking their votes, did not dare to deceive them.”

Winston Churchill

Lawsuits targeting the fairness and integrity of the 2020 elections aren’t just a phenomenon happening at state capitols and in large cities. Door County is the target of such a suit. 

On May 27, a petition for writ of mandamus – a request for a judge to order a person to perform a public or statutory duty – was filed in Door County Circuit Court to enforce Wisconsin’s open-records law. The suit is being brought by a resident of Waupaca County to force Door County’s clerk, Jill Lau, to produce records that were previously requested but not received. The records being sought primarily relate to the Nov. 3, 2020, election, “before, during and after.”

The petitioner seeks, among other things, a “… request for me along with my IT people to inspect, copy, take imprints, photograph any and all machines, computers, harddrives, [sic] software/code, updates, devices, accessories, memory sticks/cards, manuals, tabulations, entries, deductions, vote counts, transfers of votes, manuals, instructions, for or used in/during the November 3rd, 2020, election. Furthermore, to produce all registration data, ballots, envelopes, poll day documents, etc. required to be maintained by Wisconsin and Federal law.” 

The petitioner further requests that Door County and the City of Sturgeon Bay coordinate the inspection/copying with him because he will have several IT people with him. The petitioner also asked for “Any and all State Certifications of the Door County, WI Dominion Voting System your county purchased in or about December of 2015.” The petitioner seeks copies of “every single official voting machine printout from every tabulator” used in the November 3, 2020, election. The requests go on.

Door County’s official response, according to the public documents, was that Lau, working with Door County’s corporation counsel, complied with requests deemed appropriate under Wisconsin’s open-records law and denied access to requested material that was not subject to the law. When the petitioner didn’t get what he wanted, he asked Door County’s district attorney, on May 5, to file a mandamus action against the county clerk on his behalf. He says this request went unanswered. 

As a result, Door County has been forced to hire a law firm to defend the integrity of its elections, at what is probably great expense.  

Throughout Wisconsin and the United States, these actions to compel the release of documents and information have disrupted governments, destroyed the security of voting machines and systems, and created an unwarranted distrust in the fairness and integrity of our elections.

I don’t mean to suggest that our elections and the process by which we cast ballots are perfect. On Oct. 22, the bipartisan Legislative Audit Bureau (LAB) released 30 recommendations to Wisconsin Elections Commission (WEC) administrator Meagan Wolfe.  Though Wolfe indicated there were several errors in the report that could have been corrected had WEC been able to review a draft of the report, she was “gratified to see the report and to know that it really supports the hard-working and dedicated state and local elections officials across Wisconsin.”

The LAB surveyed the state’s 1,835 municipal clerks and 72 county clerks in Wisconsin. It also reviewed 14,710 absentee-ballot certificates and all 45 sworn, written complaints regarding the 2020 presidential election filed with WEC as of late May. The LAB found that of all the absentee voters, four may have voted twice.  

Clerks are given information from WEC regarding deceased individuals and ongoing felony sentences that it receives from the Departments of Health Services (DHS) and Corrections (DOC) with instructions to either inactivate a given record or determine whether there is an error that would allow a record (voter registration) to remain active. The LAB found that clerks had inactivated the voter-registration record or allowed the records to remain active in all but eight of 33,473 cases referred by the DHS, and one individual from the DOC supplied information on 2,256 active felons. 

Among the LAB recommendations were that WEC staff work with clerks to improve how they identify potentially duplicate voter-registration records. The LAB also suggested that WEC follow up with local clerks when they haven’t provided proof of required training, which consists of three hours of training to become certified and an additional three hours to maintain that certification.  

This is an area where voters can weigh in by booting out clerks who do not complete the training required to run elections. 

The LAB also indicated that WEC staff should promulgate rules if drop boxes for ballots should be permitted or when special voting deputies are not sent to certain facilities or homes. 

The issue of special voting deputies was more significant because of COVID-19 in 2020. Statutes require clerks to appoint at least two special voting deputies to supervise absentee voting by individuals in residential-care facilities and qualified retirement homes. In June 2020, as a pandemic safety measure, WEC issued written guidance directing clerks not to send special deputies into such facilities, contrary to statute.

There were other recommendations to clean up elections, but nothing glaring. 

Of the 45 sworn, written complaints received by WEC about the November 2020 election, 18 complained about the conduct of election officials; 16 alleged violations of election laws; and 11 were ballot-access challenges. As of early June 2021, 25 complaints were dismissed; six were unresolved; two were withdrawn; and one complaint resulted in a decision to direct an election official to follow election laws. The remaining 11 were the ballot-access challenges regarding nomination papers or candidate eligibility for elected office.

Just before the Oct. 15 hearing in the Door County mandamus lawsuit, a document circulated on social media regarding registration lists maintained by Door County clerks. Many people forwarded the email without regard to its accuracy. The document purports to come from “We the people – We the voting residence [sic] of Door County.”

The “We the people” email has a heading, “Door County Voter Registration List Disaster.” The drafter of the document demonstrates a lack of knowledge about election procedures and law when the individual pointed out that deceased people showed up on voter rolls. 

Deceased individuals, people who have moved, and felons serving an active sentence may appear on voter rolls, but they are ineligible to vote. To appear on the printed poll book at the voting site, an individual has to have a status of “active registered.” Voters who become inactive must reregister. 

Many clerks keep ineligible voters on their rolls for historical purposes. This has been referred to as a sloppy procedure, but it is not election fraud. Actual instances of voter fraud are extremely rare in Wisconsin, and it is prosecuted.

The circulating email from the “We the people” entity contained information that is easily debunked and already has been across the state and country whenever conspiracy fanatics offer up such “proof.” One example is to show a photo of a property and claim that numerous registered voters listed it as their legal residence. What the information does not convey is how rental residences house different renters who have used that address over several election cycles, and whether those voters on the rolls are “active registered.”

Some verifiable claims can be made about the petitioner in the Door County case. He has a federal felony conviction on his record for bank fraud, for example, in which he was ordered to pay $1.7 million in restitution and for which he was sentenced to 70 months in prison. He has also filed numerous lawsuits in Wisconsin against government entities, individuals and corporations – even while serving his prison sentence in West Virginia – and generally with the same result: dismissal and sometimes with costs assessed against the petitioner. 

The petitioner is representing himself, but Door County taxpayers are paying plenty. In time, so could our democracy if these harassing lawsuits continue. 

Joan Korb is a former Door County district attorney and assistant district attorney. She lives in Egg Harbor.