Mequon City Clerk Caroline Fochs rejected five absentee ballots in April because they did not include a ZIP code or state in the witness address — information that is not specifically requested in the address field on the ballot or specified as a necessary component by the Wisconsin Elections Commission. Her approach, which differs from how other clerks interpret the rules, has drawn intense internal scrutiny and could ultimately be tested in court.
Two weeks ago, Ozaukee County canvassing officials declined to reverse course, leaving the ballots uncounted in the recent Wisconsin Supreme Court election. Republican Party attorneys told county officials they lacked the authority to overturn a local official’s judgment call, while the liberal election law firm Law Forward said rejecting the ballots may have disenfranchised voters who had followed all requirements.
Even the county clerk, a Republican, said she believed the ballots should have been counted.
The ballots listed a street name, number, and municipality in the witness address field, but no ZIP code or state. The Wisconsin Elections Commission instructs clerks that a street name, number, and municipality are sufficient. Under state law, absentee ballots must be signed by a witness who is a U.S. citizen and not a candidate on the ballot.
The Wisconsin Elections Commission redesigned the absentee ballot certificates in August 2023, during litigation about what constitutes a valid witness address, removing any reference to ZIP code and state in the witness address field. Now, the certificate only explicitly asks for street number, name and municipality.
Fochs rejected the ballots anyway, using her own system for deciding when a witness address is clear enough.
Fochs has served as clerk since 2016 in the traditionally GOP city, which has become more liberal in the Donald Trump era — emblematic of the leftward political changes in other nearby Milwaukee suburbs in Waukesha, Washington and Ozaukee counties.
The dispute in Mequon didn’t have the potential to swing any race. But it highlights two unresolved questions that election lawyers say are all but certain to land back in court sooner than later: how much latitude clerks have to impose their own standards on absentee ballots, and whether county canvassing boards can intervene when they think a municipal clerk got it wrong.
Situations like the one playing out in Mequon often arise when there’s a flexible rule rather than a bright-line rule, said Rick Hasen, an election law professor at UCLA. Flexibility, he said, can result in disparate treatment for voters. “Maybe the legislature needs to change the law,” he said.
“It can tend to be more enfranchising to have a rule that gives discretion, but there’s a flip side to that,” he said. “These are things that courts and legislatures have to consider when they write their rules or interpret the rules.”
Statewide races in Wisconsin can sometimes be decided by several thousand votes or less, and the outcome of this conflict could have implications for the midterms in the event of a close race.
Ballots at issue had elements requested on absentee form
The battle over what constitutes a proper witness address has been debated in court for years. In 2024, a circuit court rejected Republicans’ push to require witnesses to list their ZIP code and state. The current standard allows a witness address to be considered valid if the clerk can reasonably assess where the witness lives, but the underlying lawsuit is ongoing.
Fochs said that’s not a workable standard.
Clerks across the state are “obviously doing things differently,” she said. “We don’t agree that it’s been decided. You can’t, on one hand, tell me it’s up to me to discern and then tell me exactly what I’m going to discern.”
Rather than following WEC instructions in the Election Day manual, Fochs for the past several elections has adopted her own system. She compiled a list of municipalities witnesses have used in their address fields in recent years, identifying which names are unique nationwide and which are shared.
If a witness lists a municipality that shares a name with another elsewhere in the country and does not include a ZIP code or state, Fochs said she does not count the ballot. If the municipality name is unique, she will count it even without a ZIP code or state.
She said she typically sends absentee ballots with insufficient witness addresses back to the voter for correction. But this time, she said, the five ballots in question arrived too late to be sent back, corrected, and returned in time for tabulation.
Two of the rejected ballots were from Fox Point. Despite a handwritten note on the rejected ballots saying there are multiple municipalities named Fox Point in the United States, there appears to be just one: the municipality just a couple miles away from Mequon.
Told there appears to be only one municipality named Fox Point in the United States, Fochs said her Google search showed multiple results. She said that even if only one exists, she does not believe the ballots were wrongfully rejected because “the search” indicated otherwise, though she declined to explain what that search includes. “If the search came up with multiple Fox Points, then we reject it,” she said.
The three other rejected ballots came from Baltimore, Houston, and Verona. Although there are multiple municipalities with each of those names, the street names and numbers are unique only to one such named municipality in the United States.
Though a court established the current standard in 2024, Fochs said she believes the issue needs to be taken up again. “There has to be an answer to this,” she said.
Jeff Mandell, founder and general counsel of Law Forward, said that Fochs should have at least checked to see whether the street addresses used in the witness address form were unique to one of the multiple municipalities with the same name before deciding what to do about the ballots. He said she was wrongfully disenfranchising voters.
But Fochs said she shouldn’t have to jump through multiple hoops to figure out where a witness lives.
“If you give me incomplete information, that’s not my fault, and it’s not up to me to correct it,” she said.
In Rock County, on the other hand, County Clerk Lisa Tollefson, a Democrat, gives municipal clerks a help sheet to determine whether a signature is sufficient. Similar to the election commission’s manual, the sheet says a street number, name and municipality is sufficient — without stipulating whether a municipality is uniquely named.
County decides not to count ballots amid GOP urging
When the fight moved up to the county, it split in two. Ozaukee County officials had to decide not only whether the five ballots should have counted — but whether they had any authority to do anything about it.
Ozaukee County Clerk Kellie Kretlow, a Republican, said the ballots should have been counted by the city. “I, in no way, want any voter to ever feel like we’re disenfranchising them,” she told Votebeat.
Kretlow said that the Wisconsin Elections Commission told her that, if the county canvassing board determines that the disregarded ballots make the election return defective, she may send the “arguably defective” election results back to Mequon for the city to correct, according to emails obtained by Votebeat that outline her communications to attorneys for the Wisconsin Republican Party.
That position seems to align with the more liberal stance on the issue. For example, Law Forward said the county does have the power to count the votes or instruct Mequon officials to do so, under a statute that allows counties to return results to a municipality if its election returns are “so informal or defective that the board cannot intelligently canvass them.”
Republican attorneys disagreed. Nicholas Boerke, counsel for the state GOP, told Kretlow the county had no authority to send the ballots back or count them itself without a recount, and warned that doing so would set a “dangerous precedent.” The GOP lawyers did not weigh in on whether Fochs was right to reject the ballots in the first place. Boerke declined to comment for this story.
In the end, Kretlow said, she decided not to count the ballots — not necessarily because she agreed with the Republican lawyers on the legal question, but because the five votes wouldn’t have changed the outcome of any race.
Issues of discretion unsolved going into November midterms
Barring a lawsuit and a quick judgment, the question over how much discretion municipal clerks and county canvassing boards have may go unanswered ahead of the midterms. Some election officials said that discretion can pose a danger if it’s abused, but others said that latitude can come in handy.
“I believe that things can be vague, but they’re vague for a reason,” Kretlow said, saying that while she wished the ballots were counted in this latest instance, more open-ended rules give clerks wiggle room for scenarios that nobody foresees.
Recent court rulings in election lawsuits have started to define the scope of clerks’ discretion over standards for accepting absentee ballots, potentially shaping how future cases will be decided.
One appeals court judgment in July 2024 gave an open-ended definition of what constitutes a proper witness address, saying that the standard “involves the perspective of each local, municipal clerk performing their duties in a reasonable manner,” and acknowledging that clerks have discretion in some of the many tasks they perform in administering elections.
A July 2024 Wisconsin Supreme Court judgment, which led to the legalization of drop boxes, said that giving clerks discretion on many local matters is “consistent with the statutory scheme as a whole, under which Wisconsin’s 1,850 municipal clerks serve the ‘primary role’ in running elections via our ‘decentralized’ system.”
TR Edwards, a staff counsel at Law Forward who attended the Ozaukee County canvass board meeting, said those court cases were right in giving clerks latitude, but they should have clarified that the discretion should be used “to affect the will of the voter, not to craft their own policy for disenfranchising people — stuff like this.”
Mandell, the founder of Law Forward, said the group was still evaluating its options and did not commit to a lawsuit.
But Wisconsin courts have been hearing a growing number of election law disputes. Whether it’s over the most recent dispute in Mequon or a similar incident in another election, disputes like these are all but certain to end up in court.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at [email protected].
