Voter fraud is hardly a new topic in Wisconsin.
It took center stage as the state passed a voter ID law in 2011, then stayed in the news as elements were blocked and reinstated by various court rulings in the ensuing years.
This year, President Donald Trump has kept the issue front-of-mind with an avalanche of claims seeking to cast doubt on the integrity of the 2020 election.
But is voter fraud an actual problem here?
We’re better able to answer that question since the Wisconsin Elections Commission began tallying voter fraud cases referred to prosecutors in 2016. Their listing isn’t comprehensive — the commission relies on local election officials to notify them, which doesn’t always happen — but the list sheds light on how often suspected cases arise.
The commission list shows 158 election cases referred to 46 county prosecutors between 2016 and 2018. The Journal Sentinel reached out to those district attorneys to find out the nature of those cases and what became of them. We heard back from all but six.
After reviewing the list, prosecutors’ responses and court records, a few things became clear:
- Illegal voting is exceptionally rare in Wisconsin. We identified just a couple dozen cases of confirmed improper voting across three years of elections.
- Even counting all suspected illegal votes, those are a minute fraction of ballots cast. The highest number of referrals came in the 2018 general election after the elections commission expanded its capability to detect fraud across state lines. That generated 58 referrals out of 2.7 million votes cast. That’s 0.002% of all votes, or about 1 in every 46,000.
- The improper voting that does occur is more often due to errors than intentional fraud.
That’s consistent with other findings in Wisconsin and nationwide, said Kenneth Mayer, professor of American politics at the University of Wisconsin-Madison.
“In case after case and time after time, allegations of material numbers of people intentionally committing vote fraud, they just don’t withstand any scrutiny,” Mayer said. “The numbers are not literally zero, but they are so close to zero that it just puts to lie the arguments that this is a big problem.”
The 158 referrals since 2016 cover about 270 voters, since some involved multiple people. Here’s how those broke down.
Unverified addresses: Few if any charges
The largest portion — 102 people — stemmed from address verification postcards officials send to anyone who registers to vote at the polls. If that postcard is returned as undeliverable and clerks can’t determine a reasonable explanation of why, the matter is referred to the local district attorney for investigation.
None of the 40 district attorneys we contacted reported a conviction stemming from such a case since 2016. Joshua Mathy, a prosecutor in the Public Integrity Unit of the Milwaukee County District Attorney’s Office, said that streak goes back much farther for the state’s largest county.
“Since at least 2005, no postcard referral has uncovered an instance of voter impersonation or double voting,” Mathy said. “Election postcards have proven to be an inefficient and unfruitful methodology to ferret out double voting or voter impersonation.”
Double voting: Many accidents, little evidence
The commission list included 82 voters suspected of voting twice — the majority from 2018, when the state started using the national Electronic Registration Information Center to check whether Wisconsin voters also voted in other states. It identified 44 cases where staff at the commission suspected people had done that.
Those out-of-state referrals were sent to prosecutors in March, so many investigations are ongoing, prosecutors said. But many double-voting allegations — whether in multiple states or just Wisconsin — have proven difficult to prosecute.
“To prove fraud you have to prove a deliberate attempt to do something that is illegal, and that kind of conduct with regard to elections is so rare here,” said defense attorney Lester Pines, a Madison-based attorney who worked on challenges to the state voter ID law and many other voting-related cases.
The list includes 10 cases referred to Brown County — seven for double voting — but none were prosecuted because “based on our follow up investigation, we have not yet found that any of these individuals intentionally violated Wisconsin’s voting restrictions,” District Attorney David Lasee said.
Some double-voting cases on the elections commission list involved elderly people who simply got confused. An Outagamie County woman with dementia who voted absentee fearing bad weather, then was also taken to the polls by her daughter on Election Day, with neither realizing the woman had already voted, District Attorney Mindy Tempelis said. Her office didn’t prosecute the case.
In Marathon County, three double-voting incidents referred to District Attorney Theresa Wetzsteon turned out to be two cases of innocent confusion (one by an 87-year-old) and one case that was referred in error by the local clerk.
Several prosecutors said their double-voting prosecutions stalled when authorities couldn’t prove who exactly cast a wrongful ballot — so they can’t differentiate between a paperwork error and intentional fraud. A lack of polling place cameras means prosecutors have to rely on poll workers’ memories.
One 2016 Ozaukee County case provided “ample proof” that two votes had been cast under the same name, but, “The clerks that were working said that with the press of people they wouldn’t be able to recall the man that cast that vote,” District Attorney Adam Gerol said.
The dual-state referrals also have a legal hangup: it’s not cut-and-dried in statute whether voting on elections the same day in different states constitutes voting in the same election, Dane County District Attorney Ismael Ozanne said.
None of this is to say double voting doesn’t happen on rare occasions.
An Illinois man with a residence in Green County voted in both places in 2018, and District Attorney Craig Nolen said he likely would have filed charges, but the man has since died.
In a Milwaukee County case occurring outside the timeframe of the commission’s listing, 62-year-old James K. Gaertner was convicted of misdemeanor attempted election fraud and fined $750 after casting two ballots that were mistakenly given to him at a Milwaukee polling place.
Underage voting: Confusion spurred spike in 2016
Another 70 people were referred for underage voting — a situation unique to the 2016 presidential election. Wisconsin requires voters to be 18 on the day of the election in which they are voting, but other states allow 17-year-olds to vote in the primary if they turn 18 before the general election.
Media coverage of this nuance and a related court case in Ohio caused confusion among Wisconsin 17-year-olds, which coupled with poll worker mistakes to allow numerous 17-year-olds to vote.
Though underage voting is a felony, none of the prosecutors responding to our questions sought a conviction. Some prosecutors sent warning letters, Dane County sent the teens to a deferred prosecution program through which charges were later dropped, and some like Columbia County District Attorney Brenda Yaskal dropped the matter after investigation.
“A 17-year-old voted in the primary because he thought that if he was going to be 18 by the general election, he could vote in the primary. He showed his ID to the clerk, who let him vote,” Yaskal said. “My office declined to prosecute because there was no criminal intent in this case.”
Ineligible voters: Felons vote when poll lists not checked
The smallest category on the election commission’s list involves ineligible voters. Among all the voting offenses, it was by far the most likely to lead to criminal convictions.
The list included a dozen referrals for ineligible voters, most of them felons discovered by the elections commission during the statutorily required post-election felon voter audit. Convicted felons are ineligible to vote while behind bars, or after release during the time they’re still on probation or parole.
That group included Michael C. Noffke, 28, of Oconto Falls, who voted in the 2016 presidential election while on probation in a felony theft case. He was on a list of ineligible voters given to local election staffers — the elections commission sends such a list to all polling places — but staffers didn’t notice and allowed him to register and vote. He was convicted of felony election fraud and sentenced to one year of probation.
In Manitowoc County, Jessica E. Steinke, 42, of Cleveland, also voted in the 2016 election while on probation. She was convicted of felony election fraud and sentenced to 18 months probation.
Both votes still counted, however, as officials have no way to retract it after the fact, said elections commission spokesman Reid Magney.
But this category also reveals the report’s limitations.
Online court records show 18 people were charged with ineligible voting between 2016 and 2018 by the end of 2018. But only three of those cases appeared to match referrals on the elections commission’s list. The other cases made their way to prosecutors without anyone notifying the commission.
Within the group shown in court records, 15 were ultimately convicted, including several Milwaukee County felons sentenced to short jail terms.
Some voting investigations slowed, overlooked
Based on our interviews with prosecutors, some of the referrals on the elections commission list appear to have never been investigated.
Election law violations can take a backseat to violent criminal offenses prosecutors consider more urgent. And the referrals sent early this year — related to 2018 voting in multiple states — were slowed since COVID-19 inhibited the movement of investigators, some prosecutors said.
And a number of the district attorneys contacted by the Journal Sentinel couldn’t locate any voter fraud referrals despite being listed as receiving them. Portage County District Attorney Louis Molepske blamed that on the informal system used by the elections commission and local officials.
“The process the elections commission uses is an email to DAs on a complaint, and that is a flawed process,” Molepske said. “If that one email is missed — not opened for example — the matter can go cold.”
He said a formal, hard-copy request for review — as other agencies do with other types of cases — would ensure referrals are entered in each county’s case management system and followed up on.
Contact Eric Litke at (414) 225-5061 or firstname.lastname@example.org. Follow him on Twitter at @ericlitke.