In calling for a “thorough investigation” into “election fraud,” Republican Sen. Rand Paul distorted the facts about a Wisconsin policy that was introduced by Republicans and put in place before the 2016 general election.
In Paul’s telling, “In Wisconsin, tens of thousands of absentee votes had only the name on them and no address. Historically those were thrown out, this time they weren’t.” Paul claimed elections officials “made special accommodations because they said, ‘Oh, it’s a pandemic and people forgot what their address was.’ … So they changed the law after the fact.”
That’s not accurate.
Although Paul wasn’t clear, the issue is not about missing voter address information — but rather with missing address information from witnesses. In Wisconsin, those who vote via mail-in absentee ballot are required to have a witness — a family member, friend or neighbor — sign the outside of an absentee certificate envelope. In addition to signing the envelope, witnesses are required to provide their addresses.
What happens is that some witnesses provide incomplete address information — most often leaving off their municipality.
According to guidance provided by the Wisconsin Elections Commission — put in place prior to the 2016 presidential election — election clerks “must take corrective actions in an attempt to remedy a witness address error.” If the clerks are “reasonably able to discern any missing information from outside sources,” they should fill in the missing address information themselves, the guidance states.
The Wisconsin Supreme Court dismissed a Trump campaign lawsuit that attempted to throw out all absentee ballots in two heavily Democratic counties based, in part, on the witness address policy. The Trump campaign argued the policy is clearly contradicted by a statute passed by the Wisconsin Legislature in March 2016.
The court concluded on Dec. 14 that the issue “could have been raised long before the election” given that the WEC’s guidance has been in place since October 2016, and that it was inappropriate then to throw out votes after the 2020 election. “The Campaign offers no reason for waiting years to challenge this approach, much less after this election,” according to the majority opinion from the court. “None exists.”
‘Two Sides to Everything’
Paul’s distorted account of the Wisconsin witness address issue came during a contentious Jan. 24 interview on ABC’s “This Week” with host George Stephanopoulos. The two men sparred over election fraud issues and whether fraud affected the outcome of the 2020 presidential election.
Stephanopoulos tried to get the Kentucky senator to concede that “this election was not stolen,” contrary to a “big lie” promoted by Trump.
“George, where you make a mistake is that people coming from the liberal side like you, you immediately say everything’s a lie instead of saying there are two sides to everything,” Paul said.
Paul, Jan. 24: Let’s talk about the specifics of it. In Wisconsin, tens of thousands of absentee votes had only the name on them and no address. Historically those were thrown out, this time they weren’t. They made special accommodations because they said, ‘Oh, it’s a pandemic and people forgot what their address was.’ So they changed the law after the fact. That is wrong, that’s unconstitutional. And I plan on spending the next two years going around state to state and fixing these problems and I won’t be cowed by liberals in the media who say, “There’s no evidence here and you’re a liar if you talk about election fraud.” No, let’s have an open debate. It’s a free country.
Later in the interview, Paul repeated the assertion about address changes on absentee ballots in Wisconsin, saying, “Should we investigate the fact that tens of thousands of absentee ballots did not have addresses on them and normally were disqualified, but this time, they were counted? Should we examine that? I don’t know whether it affected the election or not, but I have an open mind. And if we actually examine this and we find out it didn’t, that’s fine. But it still should be fixed.”
As Paul said, let’s talk about the specifics of this.
As we said, the issue is not about missing addresses for voters who cast mail-in absentee ballots in Wisconsin, and there is no evidence that any of those without witness address information on their ballot certificates voted fraudulently.
In order to vote via absentee ballot in Wisconsin, residents must be registered voters and request an absentee ballot. In addition, most need to provide a copy of acceptable photo identification in order to vote via mail-in absentee ballot. (Exceptions to the photo ID requirement are permitted for a person who is “indefinitely confined because of age, physical illness or infirmity or is disabled for an indefinite period.”)
Finally, those who cast absentee ballots by mail need to have a witness sign the back of their absentee certificate envelope. It can be a spouse, neighbor or friend — anyone — provided the witness is a U.S. citizen who is 18 years or older.
The reason for the witness, Reid Magney, public information officer for the Wisconsin Elections Commission explained to us in a phone interview, is so that if a ballot is challenged, officials can find the witness to help verify it.
Paul framed the witness address issue as one that was introduced in the 2020 presidential election due to the pandemic, and said, “Historically those were thrown out, this time they weren’t.”
As we said, that’s not accurate.
In February 2016, the Wisconsin Legislature passed a statute stating, “If a certificate is missing the address of a witness, the ballot may not be counted.”
But the question arose: What exactly constituted an admissible address? Did it need to include the state and zip code? What if the street address was provided but not a municipality?
Not wanting to disenfranchise voters due to a technical defect in the witness address, Republican Steve King, then a member of the bipartisan Wisconsin Elections Commission, proposed a motion in October 2016 to provide guidance for local officials.
“[M]unicipal clerks shall do all that they can reasonably do to obtain any missing part of the witness address,” the guidance reads. But the clerks should fill in missing witness address information if they “are reasonably able to discern any missing information from outside sources.”
The motion by King — who was later tapped by Trump to be the U.S. ambassador to the Czech Republic — was seconded at the time by another Republican on the commission, Don Millis, and was passed unanimously by the bipartisan board, which is made up of three Republicans and three Democrats.
And so that was the way things were done in Wisconsin in the 2016 election, in which Trump won the state by 22,748 votes (less than 1 percentage point) over Democratic presidential nominee Hillary Clinton. It also has been the policy in all subsequent elections in Wisconsin, including the 2020 presidential election in which Joe Biden narrowly won the state by 20,608 votes.
“The rules we used in 2020 were the same rules in 2016,” said Mark L. Thomsen, a Democrat who was chair of the WEC in 2016 and continues to serve on the commission.
For Paul to say that the rules changed for this election is “a lie, straight and simple,” Thomsen told us in a phone interview.
Thomsen said the policy was put into place in 2016 with the input of the state’s then attorney general, a Republican.
No one challenged that policy in any of the previous elections going back to 2016, including the primary in 2020 when there was also a large number of absentee ballots cast. The first legal challenge to that policy came after the 2020 general election.
On Election Day, a couple of the large cities in the state counted the votes in a central location, Magney said, and election observers there raised questions when they noticed that addresses for some witnesses were filled in using two different color pens.
The number of absentee ballots prior to 2020 was relatively small. In the 2020 general election, nearly 2 million of the 3.2 million votes cast in the state were via absentee ballot. In 2016, just 4.8% of the votes were cast by absentee ballot, Magney said.
In 2020, 40% of ballots were cast in person at the polls on Election Day; another 41% were cast by mailed-in absentee ballot; and about 19% were votes via absentee ballot in person the day of the election (in which case, the clerk acts as the witness). The number of mail-in absentee ballots that had witness addresses corrected is unknown, Magney said.
Ann S. Jacobs, current chair of the WEC and a Democrat, defended the policy of correcting missing witness address information, telling Jim Rutenberg of the New York Times, “Why should a voter’s ballot we be thrown out for a clerk adding a zip code?” According to Rutenberg’s Twitter thread, Jacobs “says arguments like Sen Paul’s is part of a ‘game of gotcha’ to ‘disenfranchise voters for following the instructions of their clerks.’”
Republicans on the WEC, however, argued that although the guidance from the WEC on fixing witness addresses was longstanding, it had never been challenged in court, and so the issue of its constitutionality was never settled.
State Supreme Court Weighs In
Based on the witness address issue, as well as others, a federal lawsuit filed by the Trump campaign sought to throw out all of the absentee ballots cast in Milwaukee and Dane counties, and only those two counties, which are Democratic strongholds.
Wisconsin Supreme Court Justice Brian Hagedorn, a conservative, sided with three liberal justices in a 4-3 decision opposing the Trump campaign’s efforts to strike those votes.
“The process of handling missing witness information is not new; election officials followed guidance that WEC [Wisconsin Elections Commission] created, approved, and disseminated to counties in October 2016,” Hagedorn wrote for the majority. “It has been relied on in 11 statewide elections since, including in the 2016 presidential election when President Trump was victorious in Wisconsin. The Campaign nonetheless now seeks to strike ballots counted in accordance with that guidance in Milwaukee and Dane Counties, but not those counted in other counties that followed the same guidance. The Campaign offers no reason for waiting years to challenge this approach, much less after this election. None exists.”
Hagedorn went on to say that the Trump campaign claims “are not of improper electoral activity” but rather “technical issues that arise in the administration of every election.”
Wrote Hagedorn: “Striking these votes now — after the election, and in only two of Wisconsin’s 72 counties when the disputed practices were followed by hundreds of thousands of absentee voters statewide — would be an extraordinary step for this court to take. We will not do so.”
Notably, however, the court did not weigh in on whether the WEC’s policy ran counter to the language of the state election statutes. Hagedorn wrote that the witness address issue “appears to be a valid election administration concern” and that “WEC, other election officials, the legislature, and others may wish to examine the requirements of the statute and measure them against the guidance and practice currently in place to avoid future problems.”
In a dissenting opinion, Wisconsin Supreme Court Chief Justice Patience Drake Roggensack argued that the Milwaukee and Dane county board of canvassers “based their decisions on erroneous advice when they concluded that changes clerks made to defective witness addresses were permissible.”
She said WEC members went against the “plain, clear requirements” of the legislative statutes when they directed municipal clerks to do “all that they can reasonably do to obtain any missing part of the witness address.” She argued the problems “will be repeated again and again, until this court has the courage to correct them.”
As the dissenting opinion shows, there is certainly room for legal disagreement about the legality of the WEC’s interpretation of state law regarding the application of witness address requirements. And, of course, Paul is entitled to his opinion that the WEC’s guidance is “unconstitutional” and “should be fixed.”
But it’s simply not true that the policy was changed due to the pandemic and that “historically those ballots [with missing witness address information] were thrown out, this time they weren’t,” as Paul claimed. There are no two sides to that.
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