WILL Issues Review of 2020 Election, Recommendations for Reform

December 7, 2021

Ten-month review uncovers legal problems with election administration, but no evidence of widespread voter fraud

The News: For more than ten months, a group of researchers and attorneys at the Wisconsin Institute for Law & Liberty (WILL) engaged in an in-depth examination of the 2020 election in Wisconsin. We approached this work without presumption as to what it would find, and the full results can be found below.

The Goal of WILL’s Review: The current environment is charged with partisanship. It’s clear many Republicans, like Democrats before them, are convinced that there was a “Big Steal.” And much of the legacy media is of the view that, since there is little or no evidence that Trump won the election, any effort to look into whether proper procedures were followed is just part of the baseless conspiracy-mongering that pushes “the Big Lie.”

But WILL’s review indicates the truth may lie between these two poles. The findings that follow are based on a statistical analysis of the vote totals, a targeted review of nearly 20,000 ballots and 29,000 absentee ballot envelopes, surveys and polling, and review of tens of thousands of documents collected from more than 460 open records requests. It is based on review of the law, interviews with election officials, and careful consideration of what each “side” has said about the election. While there are certain limitations to what this project could reasonably accomplish, we attempted to follow the evidence where it led us.

WILL’s Findings on the 2020 Election in Wisconsin

It is almost certain that in Wisconsin’s 2020 election the number of votes that did not comply with existing legal requirements exceeded Joe Biden’s margin of victory.
  • As recently confirmed by the Legislative Audit Bureau, the widespread adoption of absentee ballot drop boxes, encouraged by the Wisconsin Elections Commission (WEC), runs afoul of state law requirements for the collection of absentee ballots.
  • This widespread adoption of absentee ballot drop boxes, not provided for under Wisconsin law, was correlated with an increase of about 20,000 votes for Joe Biden, while having no significant effect on the vote for Trump.
  • More than 265,000 Wisconsin voters adopted the ‘indefinitely confined’ status, meaning they received an absentee ballot and were exempt from the statewide photo ID requirements.
  • Many of these votes were cast unlawfully. Only those voters who are indefinitely confined “because of age, physical illness, or infirmity, or is disabled for an indefinite period” qualify. Fear of contracting a disease (such as COVID) does not qualify.
  • The votes cast by ‘indefinitely confined’ voters raise a number of red flags. 54,259 ballots were cast by individuals who have never shown a voter ID in any election. 3,718 were cast from addresses that were on the 2019 Mover’s List. 7,747 failed their DMV check when they registered.
A targeted review of a sampling of ballots found few issues.
  • A close review, including a hand count of roughly 20,000 ballots from 20 wards, uncovered no evidence of fraudulent ballots or widespread voter fraud.
  • Our hand review found that the counts closely matched those reported by the Wisconsin Elections Commission (WEC). The review found no evidence of fraudulent ballots.
  • In many of the wards examined, WILL found a significant number of voters who voted for Biden and a Republican for Congress, while far fewer voters split the other way.
  • A review of 5,800 pages of election inspector statements, a formal procedure for poll workers to document key election statistics and incidents, revealed few issues.
We found limited instances in which ineligible persons voted or attempted to cast ballots.
  • This review uncovered approximately 300 instances where ineligible voters cast ballots or attempted to cast ballots.
  • We identified 130 voters across the state of Wisconsin who were flagged by Registration List Alerts for being a felon, but nonetheless cast a ballot in the November election.
  • We identified 42 ballots cast, statewide, by deceased voters. Nearly all were properly rejected.
  • We found no evidence of more than one vote being cast in the name of the same voter.
  • This review identified 129 instances of individuals voting from commercial addresses. All of these addresses were post offices or mailing centers.
We found no evidence of significant problems with voting machines.
  • Donald Trump won communities that used Dominion voting machines with 57.2%, an increase from 2016.
  • WILL’s review found that jurisdictions that used Dominion voting machines had no effect on the expected vote total.
Voter rolls were not properly maintained.
  • State and federal law requires Wisconsin to maintain accurate voter rolls. But the Wisconsin Elections Commission and local clerks refused to take the required steps in 2020 to remove outdated and inaccurate voter registrations—resulting in tens of thousands of active voter registrations tied to old addresses.
  • Thousands of votes were cast by individuals remaining on the active Mover’s List.
  • We found that 23,361 Wisconsin voters in 2020 cast ballots despite failing their DMV check this year, meaning their name, address, and/or birthdate doesn’t match what is on file with the Department of Motor Vehicles (DMV).
  • We found that 31,664 Wisconsin voters were in the National Change of Address Database.
It is still not possible to infer fraud solely from these unlawfully cast votes or failure to maintain voter rolls.
  • There isn’t much, if any, evidence that these voters did anything intentionally wrong. In many instances, they seem to have relied on the advice of election officials.
  • It is unclear whether, had these ballots been disqualified, the results of the election would have changed.
  • We do believe that a coordinated effort to exploit the weaknesses created by this failure to follow the law would likely have resulted in some discernible anomaly.
Local practices were not uniform and, in some cases, may not have followed the law.
  • This review identified several practices by local election officials that are not uniform, and raise concerns about fair and equal treatment.
  • Absentee ballot rejection rates were substantially lower in 2020 than in previous presidential elections.
  • Due to the partisan split in absentee voting, WILL estimates that if absentee ballot rejection rates were similar to the rates in 2016, the final election margin would have narrowed by 6,000 votes – making a very close election even closer.
  • State law provides no legal authority for local election officials to fix, or “cure,” defects, mistakes, or missing information on absentee ballots. But the Wisconsin Elections Commission (WEC) said they could—resulting in some municipalities curing ballots while others did not.
  • While there is a pre-determined allowable number of days available for in-person absentee voting applied statewide, there is no uniform standard of hours available for in-person absentee voting.
  • The Wisconsin Elections Commission unlawfully suspended the use of Special Voting Deputies for nursing homes and assisted living facilities in 2020—shrugging off standards in state law for the distribution and collection of absentee ballots in those settings.
We found that private funding of election operations had a partisan bias and impact.
  • Private grants for election administration from the Center for Technology and Civic Life (CTCL), a non-profit largely funded by Facebook founder Mark Zuckerberg and his wife, resulted in an increase in turnout in five Wisconsin cities—all voting heavily for Democrat Joe Biden.
  • A statistical analysis finds significant increases in turnout for Democrats, approximately 8,000 votes statewide, as a result of the distribution of CTCL grants.
The statewide 2020 election results were not anomalous.
  • The high 2020 statewide turnout in Wisconsin (72.3%) was not abnormal. It was the turnout in 2016 that was unusually low.
  • In general, the 2020 election in Wisconsin aligned with long-term statewide and national trends of Democratic gains in the cities and suburbs, coupled with increased Republican margins in rural areas.
  • Joe Biden overperformed Democratic congressional candidates, while Trump underperformed Republican congressional candidates.
  • 2020 was a return to more conventional levels of write-in and third-party voting.
  • The number of registered voters in Wisconsin exceeded November 2020 turnout in every month of 2020.
  • A WILL poll of 2,000 absentee voters revealed a strong partisan split in absentee voting preference.
  • Our poll found a surprisingly high percentage of respondents who say they did not request absentee ballots. We could not conclude that this is evidence of fraud, but neither can we exclude it.
  • The number of absentee ballots counted on election night in Milwaukee is consistent with what was reported to be outstanding. Put simply, there was no unexplained “ballot dump.”
  • Just 199 federal-only ballots, available to individuals who have lived in Wisconsin less than 28 days, were cast in the 2020 election.

Recommendations for Reform

WEC Reforms
  • Bipartisan legal counsel and staff
  • Require guidance and communications to clerks to be sent to JCRAR
  •  Require joint responsibility between WEC and municipalities for voter registration list maintenance
  • Use HAVA Checks to update voter rolls
  • Changes to WEC complaint process
Drop Boxes
  • Drop box security and 24-Hour video surveillance
  • Require two employees to pick up Drop box ballots
  • Institute standardized chain of custody logs
  • Use security bags
Private Funding of Election Administration
  • An outright ban on private funding of election administration
  • Or a requirement that state elections administrators distribute any private funds received by municipalities directly
Ballot Harvesting
  • The legislature must clarify that ballot harvesting is illegal
  • Senate Bill 203, one of the election reform bills passed by the legislature and vetoed by Governor Evers, clarifies the individuals who can drop off a ballot for another person, including grandchildren, children, and spouses
Absentee Ballot Certificate Curing
  • Determine and set a standard of ballot curing.
  • Standardize absentee ballot envelopes
  • Require any marks by clerk’s office to be marked in red Ink and initialed
  • Require all cured absentee envelopes to be logged into absentee ballot log
Election Transparency
  • Monthly snapshots of voter file and election day snapshot
  • Voter file should be available to the public at no cost
  • All data should be available at the ward level
  • Create municipal-level election statistics reports
  • Cast vote record transparency
Indefinitely Confined Status
  • Wisconsin should develop a tightened indefinitely confined standard, while still giving voters options in accessing this process
  • The legislature should also create a statutory timeline for removing non-voters from the indefinitely confined list
Uniform Absentee Voting Hours
  • The legislature should establish uniform statewide hours for in-person absentee voting that apply to each municipality throughout the state
Ballot Counting
  • Wisconsin should adopt a law that allows clerks to begin processing absentee ballots on the Monday before the election
  • While the appearance of late-night ballot dumps could be largely solved by allowing a “Monday Count,” another way to fix this issue is to require communities that use central count to report results as they are completed
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