Absentee Ballot Law Clarification from the Government Accountability Board

In response to a Facebook posting causing confusion about absentee balloting, the WWMD has requested clarification from the Government Accountability Board regarding the GAB’s position on the Wisconsin State Statutes and the WWMD’s responsibilities. This is their response:

Thank you for your email. I am writing to respond to your concerns and as a follow up to our telephone conversation last week regarding this matter.

First, as I mentioned, while the guidance from Steve Pickett that was posted on Facebook may appear to be recent, it was actually sent by Mr. Pickett in June of 2013, shortly before he retired from the Government Accountability Board. I was his supervisor at the time and your email was passed along to me. Second, the first paragraph of Mr. Pickett’s response to Mr. Gonder notes that the “GAB rules” for an election do not apply to a meeting of the Board. It is true that the statutes related to public elections do not apply to annual meetings of a governing body or board of a special district.

If Mr. Pickett had stopped with that observation, we could have prevented the misunderstanding and confusion which has resulted. Unfortunately, he continued by asserting that the Board could adopt rules for absentee voting at an annual meeting which would apply to the subsequent annual meeting. Given that the Government Accountability Board does not have jurisdiction to administer or enforce the Statutes which govern the District’s annual meetings, Mr. Pickett should have noted that, and refrained from providing guidance as to Chapter 33 of the Statutes and the procedures to be used at an annual meeting of the Waterford Waterway Management District. Mr. Pickett did not consult with his colleagues or the agency’s legal staff or management before providing his opinion.

Because our agency does not administer or enforce the relevant statutes, we cannot provide a binding legal opinion regarding the procedures to be used at annual meetings of the WWMD. We can, however, specifically state that Mr. Pickett should not have implied that any general rules regarding absentee voting at annual meetings would apply to the WWMD. We can also certainly agree with you that Wis. Stat. Section 33.30(2)(b) states that “No absentee ballots or proxies are permitted at the annual meeting.” We have not researched any case law related to that provision, but there does not appear to be an obvious exception to the rule in the Statutes. While the plain meaning of the Statute does not appear to allow for absentee ballots to be cast for an annual meeting of a waterway management district, we are constrained from issuing binding guidance to that effect because this agency does not have legal jurisdiction regarding it.

I apologize for the error in Mr. Pickett’s response to Mr. Gonder and for any confusion or complications it has created. If we had known that opinion had been issued, we would have certainly corrected it sooner. I am also providing this correspondence to Mr. Gonder and others who were copied on your email or who have contacted us regarding the same issue. Thank you again for contacting our agency so that we could address this matter.

Michael Haas
Elections Division Administrator
Wisconsin Government Accountability Board
608-266-0136
michael.haas@wi.gov