Homeless Issues Committee - Regular Meeting

Alright. Well, why don't I call this meeting to order? And why don't we dispose of a couple things like the minutes? Cool. Hey. Have a seat, Dave.

So I've I've got I've got to abstain on the minutes because I wasn't there.

Yeah. That's fine. So, Mike, you wanna got anything on the

One question on the sixth. Sure. The first date of the minutes on the thirteenth, we specifically listed the commissioners that are there, us. On the second day, we listed with all members of present. Well, Alan's a member. So if it says all members, then that include Alan. We're not really at the at that meeting. I wondered whether that implied the same members from the day before, or we should be clear and get proper members I can list the members. Okay. Is that okay? Yeah. Alright.

Yep. That's good. Thanks. Thanks, Mike.

Rather I'd rather see the name of who's there than saying all members.

Sure. Okay. So Yep. With that change, I would Why don't I why don't we consider that administrative, and I'll do that?

That's fine. With that change, I would make the motion to accept.

I'll second thirteenth then the fourteenth. So for thirteenth, it, McDonald on minutes both. All in favor, say aye. Aye. 201. Right?

Yep. I abstain.

Yep. Okay. And then let's see. We are

on Closed session?

Let's talk about let's talk about that for a second. Sorry. I'm kinda making sure. Got this.

Darden, then you want me to throw some comments on that?

I I think let's talk about whether we wanna go into closed session Okay. Or not.

You should probably somebody should make a motion to go into closed session and discuss.

Well, if we

I don't know if I wanna discuss going into closed session. I don't wanna know. I am not sure if we need to go into closed session, so I'd like to hear that argument first. Okay?

Don't think we need to, but I defer to others on it.

Okay. And, Dave, why do you think we should go in the closed session? Because I I don't understand why WAC went in a closed session for all day when it I don't get it.

Doesn't matter to me. I'm comfortable talking about what my position decided in open session.

Right. Because, I mean, this is we're not being sued, so that means for money. I'm just trying to think why and if you go on a closed session, it's like, we gonna make an offer on land at some dollar, man? Or No. Or yeah. Or Personnel.

You know, if were gonna discuss litigation strategy, but we're not gonna do that. I think what we're gonna talk about is whether we're gonna sue them or not, and that's does that can be an open session.

Yeah. So I would prefer we avoid strategy, and we just talk about the

I I'm very much in favor of this all being open, public, and recorded. I don't want mine restricted on what I can say if someone's asking the questions. I was very uncomfortable seeing the closed session. So Well, I make a motion that we're not going

to move. You don't have to you don't

have to make a motion.

We don't have to do anything. Right?

So why don't we I love to make a motion. Why don't we just talk about consideration of potential litigation? Okay? And you have the we have your opinion, and everyone got it. Why don't we talk about it?

Steve, you

want me to talk

to Yes.

I do. I mean, well, you've my prepaid opinion. I apologize for the link, but it just kept getting longer and longer than what I thought about it in the road. But I I I mean, I'll try to put it in a nutshell. I mean, I think there's two issues here.

One, I mean, you have to I I think that the statute 6.877 I think it's 6.8776 is is ambiguous because it talks about one situation where if they're not delivered, you can't count them, but it also has the language in there about talking about specifically about if they're delivered on election day. So I, you know, I think you've got to apply the basic rules of statutory construction. We've been trying to in brevity set forth in my in my opinion. But you've got to read you know, basically, it says you gotta read all the words of a statute in context of the words around them and other statutes that are that are there, including the ones that, you know, basically say you try to enfranchise the voter. We we do have the language that, you know, the the important language that the legislature used that says that f c ballot is a privilege and not a right.

But they also they tied that to requiring the elector to basically strictly conform to all of the statutory requirements to to cast an FC ballots, which which the electors absolutely did in this case. They checked every box. They did everything right. And, you know, part of the rules of statutory construction is you try to find the intent of the legislature and to avoid an absurd result, which I think the potential absurd result is here an elector could do everything right and cast their absentee ballot. And it doesn't matter.

You could've got it to the clerk a week before the election. And if they don't get it to the polling place, your vote doesn't count. I mean, that just leads to all kinds of room for mischief if nothing else. I mean, you know, I don't think there was any ill intent here. It was just they didn't get it done, but, you know, it's not completely out of the realm of possibly you could imagine a municipal clerk that is trying to game the system and doesn't deliver ballots to an opposing place to try to try to game the results.

I'm not I'm certainly not saying that happened here, but it certainly could happen. And I and I don't believe that that was the legislature's intent in enacting the statute. I think it's to a degree of poorly worded statute. I I'd further say that if that was the legislature's legislature's intent, I think it's probably unconstitutional as applied, because I I don't believe you know, the the legislature can set the procedures statutory requirements of the procedures for casting a vote. But if if the elector meets all of those statutory requirements, I I think they still have a constitutional right to vote.

And if they met all the requirements the legislature put out there, I don't think you can then say, well, we're just not gonna count their vote because the municipal clerk didn't get it to the polling place on time. So that's kind of a very reader's digest version of the three page opinion I wrote. I'm happy to address any any questions. I I I I truly believe WACC is wrong in their analysis of this statute. I I I think it's a little annoying.

I certainly know it's annoying to the city in that in this instance, they asked WACC for guidance on what to do, And the executive director of WEX sent them back a copy of the statute and said, well, it's up to the discretion of the board of canvassers to decide what to do with the statute, which is in fact what what both board of canvassers did. And then the commission to say, well, you abused your discretion. So you know what? Give a little guidance up front if you want if you want the that to happen. But I I just think they've misconstrued the statute, and I I think this the this precedent needs to be corrected because part of the WEX order is that at least in Dane County, you guys have to follow that interpretation moving forward unless it's challenged judicially.

Well, and I just wanna add on because I before that if you if they when they say it's up to you, here's the statute, well, you go back to their report from the twenty twenty four election, and they said, we don't believe the ballots, the 193 made it to the polling place. And they say, it could have been counted by the board of canvas. So if we were trying to glean what they would do, that would be a logical conclusion. Now they did something else. But I I guess I'm really, really unhappy of this crappy game of gotcha on clerks.

And that's a separate to whether we sue or whatever. I just really wanna point out that this is not respectful or an acceptable process. I know that's

No. I know. And and and again, you know, and I I I don't wanna speak for Mike, but I know I know you'd like to have a black letter rule as what we're supposed to do with this. And I I I think I recommend we we appeal this and get a judicial decision on how the statute is supposed to be applied.

First, I have a question for Dave and anybody that doesn't know. I'm the one that voted against what we did fine. Understand that just because WEC says that I am not a believer that it's right. Points you make about WEC are wonderful points, and I've argued against WEC before. For me being consistent, it's interesting that I'm on WEC side. Okay. WEC is citing that this mandatory requirement. They're looking at the the cases that you used to explain and say we had some

Not him. No. The city used those. City.

I Yes. Okay. Right. Sorry. Sorry. Right. Yes. So the city used those cases. And as we listen, we listen to that. And I think some of our decision was based on that. And WAC is saying, those are out because of something that was passed after it. And they're talking about this in their third paragraph. The commission cannot ignore clear statute to treat the ballot delivery line as a mandatory requirement of absentee voting.

I can address I mean

I need that addressed. Because that seems as clear as the statute did to me

in the first they're accurate in that actually because the those two cases that were said, I think, from back in the eighties and nineties, I don't remember the exact date. The court back at that time was looking at these election statutes, and they were doing some really complicated analysis and determining whether whether these statutes were mandatory or directory. And in these absentee ballot statute situations, they in case law, they said they were directory, which means they didn't necessarily have to be followed in all circumstances. The legislature then came back in, I wanna say, in 2004, 2005, somewhere in that neighborhood, and amended the statute and clearly said that and and it lists the the particular statutes regarding absentee ballots that these are considered mandatory. What they said was if you don't strictly conform to these statutes, your vote may not be counted.

And and my position is the voters strictly conform to everything they said.

Okay. And and I read that different saying. I I see the mandatory, and I say that they need to be there. But I'm I'm sorry to pick on the clerk, but the clerk didn't do what the clerk was supposed to do, and therefore, I read it differently. Understood. And also so so the couple concerns, and I've said most of these before, they're gonna be repetitive. The first issue I have is we try and to not do what Rex doing and to be consistent. We have talked about some late absentee balance in the past, and we have not asked these questions that we're asking at this point. We we have gone with the mandatory. If it's after eight, it's no good.

So our past history says, we're doing this like WAC is saying, and we've changed in this. That's troubling to me. I know that we've done that, and we've done that during my time. The the second is the question of how the law reads, more than how WAC reads it, but how the law reads it. I see the mandatory word there. I see the wording that says the the the ballots must be to the polling place by eight. And I understand how we're trying to give flexibility. I have trouble with that. The third I have exactly what you said, Dave. I I really want a black and white.

I think the future of what we're setting up, if we don't accept what Rex said, I think we're just making a nightmare. I think we're going to see ballots that come in one, two, three, five days after we're done and have certified. A clerk's gonna say, well, I gave you that, and we decided against it. But I found out later that we had that in our process. It was there. The the black line in the sand that says 08:00 here makes our work work. I think that we're making a nightmare by not doing that. So you've heard most of that from me before. I'm pretty much just restating so So you can tell what I'm gonna say if we talk anything about chewing, and that's fine. And there we go.

I have some comments, but, Alan, do you wanna Yeah. Comment? First of

all, I'm gonna I mean, obviously, we need to accept flex order, and we'll get to that later on in terms of the sole yeah. You know, in terms of the last election. But I'm gonna move I like I I signaled, I'm I moved that we I'm gonna move that we appeal WEX decision. I think WEX decision is wrong. I think WEC and it's just telling in their order, they kept using half quotes. Wait. Let's just

Alan, let me pause. There's a this is me county board chair. Okay? Fine. K. So I will second your motion.

Alright.

Now you can

Now we'll open it for discussion. Yep. And they every time they quote it, they use half quotes, and they delete the on election day clause that talks about, you know, where where the clerk shall secure the ballot and cause the ballot to be delivered to polling place before 8PM. Any ballot mailed or just any ballot not mailed or delivered in provision and provide them the subsection may not be counted. They they read that out, and there's no showing in the record that these 23 votes were received on election day, at least as the best I can see the record.

And I haven't seen the record, but that's from Dave's opinion. They came in before that. So this clause, to me, doesn't seem to apply to it, which makes the statute ambiguous. And then to me, then you then that kinda gets you out of the way of that mandatory language, and you go back to the the prior, case law saying that you you, you know, you wanna you wanna count votes to the extent you can. And if that's because the clerk here, you count the votes. So I think I mean, I I think it's good to get judicial clarification on this one. And, you know, I know how I'd like it to come out, but it'll come out however it comes out, and and that's what we should do.

Hey, Alan. Just to be clear, there's no factual ambiguity. The city clerk at the the board of campus meeting right after the spring election was here and specifically testified that those 23 ballots were in the position of the city clerk's office on the sixth, the day before the election.

Yeah. So so that that to me just completely undercuts WEX reasoning because they just ignored that phrase in the statute, and you're not supposed to do that.

Okay. I I I wanna I wanna talk about this, as well. I so when when we look back on on how you and I voted to not count those ballots that arrived after eight in a previous election, I I kinda kicked myself a little bit in that I assumed, and now I'm not sure Oh. That those were delivered on that day by the postal service. And no one ever told me otherwise. Right. And I that's what I was like, because look, at some point, if you don't get if you get in line as a voter at 08:05, you're too late.

You know what happened.

We're

all in agreement together.

And if your ballot gets in line because it arrived on election day at 08:05, it also doesn't get counted because it's too late because that's how the statute, as I read it, is relating to those. And that's what I assumed had happened. Now, maybe they arrived four days earlier and I didn't know that. So maybe that's bad on me. Maybe it's bad on the city clerk at the time.

I don't know. But I feel like I'm being consistent because it's very insidious. If you if you if you have clerk errors that then cannot be corrected that have nothing to do with the error on the part of the voter, then you have shifted simple way of correcting an error and getting the correct vote to the clerks trying to do that. And I just think, wow. That opens the floodgate of abuse of clerks, of conspiracy theories, of attacks.

And that's a policy issue, could say. Change the statute. And as a legislator for many, many years as you were, I don't like someone just writing out my my statute, their ordinance that I wrote. But I read that statute to be relating to ballots that arrive on election day, not the day before or a week before. A judge can say, I'm wrong. But I think the the you know, sometimes I feel like this is sort of a Pharisees thing where it's like, love your neighbor as yourself. Everything else should go you know, there's only one god. Those are actually

the two rules.

And the rule in this case is the clerk heir cannot disenfranchise a voter. If I don't write the address on an in person, they come into my office and I don't stamp it with the address of the city clerk, am I tossing that ballot? Well, mean, that's so that's the that's the problem here is that that is an iron kind of an iron rule, and it's a good rule. And that's where I feel like the chaos. You were saying problems.

This is where I see we all know this is not a lot of ballots overall. And they often wash out across the whole state and blah, blah, blah. But I think this this abuse of clerks and it and I would say abuse I mean, the fact we we were called what what did they say about what how we voted last time that we abused our authority? Something like that. Even though if you read their own documents, they say we should count them if they weren't at the polls.

I mean, you know, there's something there's something rotten in Denmark. So anyway, I I hear you. I wanna be you know I will. I wanna be consistent. I I voted I I voted to to not count those two ballots with no addresses on them. We that was the same thing we dealt with Yep. Before. Yep. Mhmm. And the open ones totally I mean, that's not even Yep. So And I appreciate that. And I don't wanna I I don't wanna be that person who just changes it as I go along. Mhmm. But I think the thing that I kicked myself about for consistency was not knowing in the past whether those were previous or day of. I just assumed they were day of.

I will never do that again.

One question to to what you just said, if we may, how this applies. If we're completely on if the the voter did what they're supposed to, how is it different if the voter then gave his absentee ballot to the post office, and the post office has failed getting it? Is that the next chapter? No. You're you're you're saying

this on record. You should get me on record. And I will say, the post office, we all know, is becoming more and more unreliable.

Yep.

And I that is the part of the absentee is is privilege The

other risky

the mail part. Once it's secured on time, I believe it should be treated the same as another ballot that was voted on election day. It got there on time. Okay. If if you are worried about it, put your envelope in a FedEx package and pay the extra money.

Just show up at the polls.

Or go.

Not just

In person. I actually am a big big proponent of iPad. I mean, I think you know it got there. I'm just saying. We did Okay. You know, there's no postal service involved.

Okay. To me to me alright.

So I want everyone to remember my answer to this question.

To me, that it just seems like the same thing because our argument is the border did everything they were supposed to. When the border gave it to the postman, it's the same argument that we just had. I I appreciate your difference in there, and I I do like the firm line in the sand. No.

I think I treat that ballot on election when it arrives on election day as, like, a person. It has to get to line in time. And yeah, maybe they came at ten a we talked about whether it was ten a. M. Or noon or whatever. I think at this point, I'm sort of like, look, once it's arriving on election day, it should get there. But that's a different category. It's the the statute's talking about that.

I mean, I think the legislative language about it being mandatory is you gotta meet all the requirements of perhaps your belt. You gotta get your two witnesses. You gotta have the address done. You gotta do all that stuff. But if you if you do all that stuff correctly, your vote shouldn't count. If you got it, you 100% know you got it back to the municipal clerk on time. And I would assert again, just to put a put a ribbon on this. I mean, I don't think WEX interpretation is what the legislature meant. If the legislature did mean that, I think there's a constitutional problem then. Okay.

And I alright. So I I if you can

Yeah. I mean, I've stated mine.

No. No. No. I just wanna all, though. There's some things I wanna just say for

for

the Zoom. And I I just wanna from the from the investigation, the twenty twenty four election that the elected, they on page 14, they say there is no evidence to support the city's assertion that the two sealed courier bags of uncounted absentee ballots were ever delivered to the respective wards. Okay? Go down to the bottom of that page. At the time the Ward 65 ballots were found, the counting canvas was continuing, and those ballots could have easily been counted. So they said they didn't go to the polls. They arrived on time. They weren't election day, and they could have been counted. And then when we asked for an opinion, or Madison did, and they gave us none, Mike, what is a logical conclusion when you read that?

Well, my logical conclusion is this is whack and whack when I started from it in the first place. The logical conclusion is read this back.

You can have your own opinion. But I'm saying if you you were just following WACC

Then you're right.

Okay. I just wanna Well, you're following Doesn't mind. You can have your own opinion.

I opened right from what I thought of WACC in the beginning. Okay.

I just wanna make a because that is ridiculous.

I agree.

That that they said that we abused our authority. Discretion. Discretion. Mhmm. Whatever. Okay. Further discussion on the motion to appeal this decision to the circuit court. Is that how should I phrase it?

I guess I could call the question now if we

You don't have to call it. We're I think we're we're there. All those in favor, say aye. Aye. Aye. Opposed? No. Two to one. Okay. So now we're done with that. And all all in open session, by the

way. Open session. Thank you for

that. Yeah. Now we need to go to item d, action items. Dave, what's your recommendation on what we do with this one? Here you go. I mean, this is so we need to I think what you what you said, and I'll you can we're we're we're we do need to go ahead and and order the municipal board of canvas to count those ballots and subtract the numbers from their totals. Now my one question I had, we

can Why don't they keep moving? We don't think we can order it.

I thought that's what they told us that

we had to do. Re you need to reopen your campus and review it back to them to act and conform with with I mean, they could they could decide they're not gonna

That's fair. Yeah. No. That's fair.

But k. So moved.

Alright. So let's get the let's get the motion, though.

And I guess just I don't know if you would call it better or not.

What? Well, I know where I was going. Which ballots are we actually count and which races are we actually counting? No. They wouldn't. That was my question. Well, let's say a motion moved by Arnsten, second by Willett to reopen the board of Canvas for the reopen

Board directed by WACC. I'd love to add in there.

Board Canvas for April twenty twenty six election. Will it as directed by WACC?

What I would say is you're good with that? It's your motion.

Yes.

Alright.

So directed by WACC, and then we send it over to the Madison board of Canvas to

We agree.

Act in compliance with Wexler.

Just do one motion. We reopen. All those in favor, say aye.

Aye.

Aye. Opposed. Okay. That was motion number two. Number now the motion would be, I think, to remand Remand the

City Of Madison totals to the Madison municipal board canvassers to determine whether they're going to act in compliance with WEX April 30 order.

To remand the election totals? Is that

what you said? Equation results

Results. To the Madison MBOC to what? What do we say? To

Consider the make corrections consistent with part one of the WAC order.

Are we telling them to make corrections?

Yeah. I think that yeah. Corrections. To make corrections as to make as directed.

As directed by WEX April 30 order.

Can I ask a question? Yeah. So I don't understand quite WEX.

We have to have a motion and a second.

Oh, okay. I don't that's not what I'm asking. Do we have the motion in a second? I'm into discussing it all.

Yeah. We need we need a motion in a second. No one's

I'll move.

I'll so move. K. Mike will second it.

Sure. Yeah.

Thanks. And then you'll then you'll discuss it. If you wanna discuss it, gotta second Yeah.

I'm good with that.

There's a ticket.

They could not vote for them. They know I can everybody Well,

you're gonna vote for this.

Yeah. Don't know what authority WAC has to tell us to do things, and that just is of interest to me. I mean, I'm I'm okay in saying they ask us to do it, we do it. But do they have the authority to tell us that? Yes. Okay. So they're I always say that their job is to interpret the law, but they also have authority No.

By statute, they have authority to enter an order to require local election officials to act in what they say is compliance with election laws.

Okay. Well, here's here's what I would say. I can I I don't wanna No? Why I think we can order NBOC is we're sort of we have to certify our races. Yep. So we need the numbers to do that. And that's what they're saying. We got supreme court. We need your numbers and it goes down the food chain

Yes.

To certify. Now the question was, do they need us to alter a school board race or just supreme court? We kinda talked about that a little bit like, where where is the line? I guess we just do them all, but

I mean, you only certify

We don't certify school board. State elections to what? To the state. Yeah. That's why I was this is where I think we only need the numbers for supreme court and maybe circuit court, and that's

State. And what about the county office?

In the deep now? Court.

Yeah. Oh, no? Not county?

That doesn't count board.

You don't send those on to work?

Remember that? We get two sheets. Remember? Yeah. And the local races, we sign and keep it here. And the state races, we sign and send to WAC. And in this case, that is I think, Rachel, you're on there. You can correct me if I'm wrong. It's Supreme Court and Circuit Court.

Correct. Supreme Court and Circuit Court. I think it's three races total.

Oh, so there's two Circuit Court races and a Supreme Court. And I think that's for me, that's all they certify. So I will I'm that's all I'm expecting. I'll leave it to the MBOC to decide what they actually wanna do. How's that? But but when it comes back, we can talk about what numbers we're changing.

If if if in and I'm just trying to work this in my head. Mhmm. If in fact we're saying with WAC that this is done wrong and we want you to do it over, it's hard for me to not say that this is done wrong. But I'm I'm having

That's not our thing to say is Yeah.

Because, like, on school board, like, when we threw out those let's just take this simple example of the no witness address at home.

Yep.

I we didn't change school board totals for those two ballots. We just stayed in our lane of the races that we certify. They certify for those. They do the recount for those. Okay. And I think I like your I I could try to grow our power or something, but I don't think that's appropriate. So Yep. And that that's where I yeah. Feel Yeah. No. I I if I want other people to stay in their lane, I gotta stay in my lane.

Yep.

So

So the motion is to direct the Madison board of Canvas to correct the results in the, Supreme Court and Circuit Court races, which are the ones that go up to WACC, act consistent with WACC's order.

What do you think?

And then if they wanna correct all the others, they could do that.

Well, yeah. But we're not telling them. Dude, we're not telling them.

We're just asking for some input in circuit court. Right.

Before you go back.

Sure. Yeah. Take your time. I'm rereading their order. They told us in the future we gotta conform with this.

Yeah. But that's the appeal.

That's the part we're appealing.

Yeah.

So within the order within part two, which is the part that's directed to county county board of Canvas, it does say once the county county and state results have been finalized, after the Madison board of Canvas returns the Canvas material to the us, The county shall update the Canvas material. So they specifically are saying and what they're telling us once the county and state results have been finalized. I guess it doesn't say it changed. I mean, we can say finalized. It's the same number. That's what I was looking for. Are they telling us to deal with accounting? And they are, but they're outside of their lane. Okay.

Yeah. Okay.

Okay.

So let me I I think I need to rewrite this just so we're all I mean, I wanna I wanna and then I'll and then what I'll do is I'll actually enter this as minutes for and then we'll meet again at four. I can do this in between.

Yes. That'd be nice.

Then we can look at it.

Yeah. And I thought it was rather interesting that they're basing their decisions off our minutes when our minutes are drafts.

I I pointed that. I did mention that. These are drafts.

Yeah. To me, that seemed very

Well, they didn't even ask us to, like and they didn't look for the video. They could have watched the whole conversation. They did not. Okay.

Okay. Opinions off of draft minutes. Interesting.

Or you would think if they're going to investigate something like this and they find these and you they

would have asked for input from the people who were involved in in Yes. Or like Scott says, ours is actually all online. They could've in their two hour closed session. Maybe they watched it all. We don't know. I'm really happy that we're doing it all open.

And just to be clear, the work order does order the Madison board of Canvas to, adjust the federal, state, local, and school board returns, but that's not part of what they're telling us to do. You know, that's in part three of their order. And, again, the part of part two is what apply parts one and two are what apply to us. Part one is the one we're appealing. Part two is what Scott's writing the motion for right now.

The part two does say that if the county results are changed, that we're supposed to change them in the way I read it there.

Where where does it say that?

Toward toward the end of it. Of part two? It's in part two?

Oh, once the county and state results have been finalized. Yeah. Okay.

That that's what I'm reading and saying. Are we doing everything that they're requiring us to do? And if they have the authority to tell us to do this, well, might as well update. That's kinda what I'm feeling.

We can also talk about it at four.

Yeah. Because if Madison doesn't change them, then we're done. Yeah.

Okay. We read this motion. Okay? Moved by Arneson, second by Willett to remand the election results for the races of state Supreme Court and Dane County Circuit Court to the the Madison Municipal Board of Campus to make corrections as directed by the WAC April 30 order.

I'm good with that.

K? That's the most me. Yep. All those in favor, say aye. Aye. Opposed, the three zero, is adopted. So, Colin, who else is on there? Eric, we're done with the order for you guys. And we are going to adjourn, and then we'll be back at four. Is there a motion to adjourn this meeting?

Sure. I'll make a motion to it. Well, I would yeah. We're adjourning it, and we're starting a new meeting.

Yeah. That's how we did. We could have done a continuation.

But positive. So let's Yeah. Make a motion to adjourn.

I'll I'll second.

To adjourn until four and then to our next meeting. Okay? All in favor, say aye. Aye. We

are adjourned.