WI's Voter ID 'Loophole' Raises Renewed Concerns

Election Integrity deniers often complain that Wisconsin has one of the more stringent voter ID laws in the country. That’s a good thing; the swing state Badger State has proved to be a cesspool of election integrity concerns in recent years.  

But there’s a voter ID-related loophole cheaters can drive a semi truckload of fraud through. In Wisconsin, voters may claim “Indefinitely Confined” status, which allows them to receive an absentee ballot without presenting proof that they are who they claim to be. A new report, “Wisconsin’s Voter ID Loophole: The Continuing Problem of Indefinitely Confined Voters,” examines the election integrity pitfalls of the lax law. 

“This raises a legitimate question about the potential for fraud” in November’s election, the report’s author, Will Flanders, research director at the Wisconsin Institute for Law and Liberty, told me in a recent interview. 

‘Skip the Step’

Indefinitely confined status, perhaps not surprisingly, exploded in the 2020 election amid the Covid panic. Under Wisconsin law, the elderly, individuals with a physical illness or infirmity, or those disabled for “an indefinite period” may sign a statement allowing them to receive an automatic absentee ballot for every election. It’s an honor system provision, with no verification and no investigation required. Applicants simply decide whether they fit the indefinitely confined requirements to receive an absentee ballot — without having to show a photo ID. 

In 2020, just as Covid was hitting and Democrat Gov. Tony Evers was locking down the state, election officials in Wisconsin’s two largest counties — Milwaukee and Dane counties — issued nearly identical “guidance” to voters. 

“I have informed Dane County Municipal Clerks that during this emergency and based on the Governors [sic] Stay at Home order I am declaring all Dane County voters may indicate as needed that they are indefinitely confined due to illness,” Dane County Clerk Scott McDonell wrote on a March 25, 2020 Facebook post. “This declaration will make it easier for Dane County voters to participate in this election by mail in these difficult times. I urge all voters who request a ballot and have trouble presenting a valid ID to indicate that they are indefinitely confined.” 

The post has since been removed. 

“A voter can select a box that reads ‘I certify that I am indefinitely confined due to age, illness, infirmity or disability and request ballots be sent to me for every election until I am no longer confined or fail to return a ballot.’  The voter is then able to skip the step of uploading an ID in order to receive a ballot for the April 7 election,” the clerk added. 

The Wisconsin Supreme Court quickly ruled by December 2020— lightning fast in judicial timelines — that the clerks erred. Voters couldn’t get out of showing a photo ID simply because of the potential risk of being infected by a virus. But the court did decide that the law leaves the question of indefinite confinement up to the voter.

“In Wisconsin, you only need to show a photo ID when you vote—not when you register,” the Wisconsin Institute for Law and Liberty report notes. “Indefinitely confined status merely requires checking a box when registering to vote online.” 

Former Wisconsin Democrat lawmakers Patty Schachtner, who served as a state senator, and Shelia Stubbs, a state representative from Madison, checked the box. They also campaigned and attended political events while they claimed to be indefinitely confined voters, Milwaukee conservative talk show host Dan O’Donnell first reported in 2020.

“A review of Stubbs’ Facebook page shows that she has attended political and campaign events as well as services at her family’s church in Madison throughout the year, thereby indicating that she was at no point confined to her home for an indefinite period of time,” he wrote in a story on the NewsTalk 1130 WISN website. “So unconcerned was she about risks to her physical health during the ongoing pandemic that she even posed for a picture on August 17th with fellow Democratic state representatives, none of whom were wearing masks.”

Covid Drives Explosion in ‘Indefinitely Confined’

The lockdowns may be long over, but Wisconsin’s indefinitely confined claims remain significantly higher than pre-Covid numbers. According to the report, indefinitely confined status still is up 116 percent since 2016. As of late July, 144,347 voters remained on the list, WILL reports. 

Covid, used as a cover for myriad manipulations and abuses of election law, fueled a quadrupling of voters using indefinitely confined status, from some 66,000 claims in 2016 to nearly 266,000 in 2020, Flanders reported. 

“While no solid evidence of fraudulent votes cast by such voters has been brought forward to date, the prospect of so many individuals voting without having to show a photo ID was one of the more credible accusations of election problems in Wisconsin raised post-2020,” the report states. 

Tens of thousands of individuals should not be on the list, according to the indefinitely confined statute. Local election clerks are supposed to remove voters if they vote in person or do not vote in any election. In other words, use it or lose it. Voters who want their indefinitely confined status reinstated must fill out a form and return it to their clerk’s office. 

“We counted the number of voters in that situation using WEC data, as well as open records requests to examine whether clerks were following the law,” Flanders stated in the report. 

WILL’s investigation found nearly 25,000 individuals on the list had not voted in Wisconsin’s spring election (relatively few do). Another 2,788 have not voted in any election since 2020, and nearly 2,600 individuals on the list voted in person in the spring election. 

15 Cities

Wisconsin’s biggest and deepest blue cities — Milwaukee, Madison, Green Bay Kenosha, and Janesville — have the largest number of voters declaring that they are indefinitely confined, the report shows. All but Janesville were part of the notorious “Wisconsin-5,” the five largest Badger State cities that received the lion’s share of the “Zuckbucks” election administration grants in 2020. 

WILL’s investigation did find that Milwaukee, Green Bay, and Kenosha have complied with the removal requirement. Madison elections officials have not fulfilled the law firm’s request for information, Flanders said, while Janesville and the city of Peshtigo were the only two Wisconsin cities to have failed to respond at all to WILL’s requests. 

The law firm sent records requests to 15 Wisconsin municipalities: the five cities with the largest number of voters in indefinitely confined status and nine randomly selected communities. Of those that responded, the city of Lake Geneva, a southeastern Wisconsin resort community of about 8,500 residents, failed to send out letters to 27 voters who should no longer be on the indefinitely confined list. 

“Our office has routinely complied with the Indefinitely Confined maintenance requirements. Due to turnover in the City Clerk position, our office was not able to send the Indefinitely Confined Notice Letters before the August 14, 2024, Partisan Primary Absentee Ballots were required to be mailed out,” a city official explained in an email to WILL, according to the report. 

‘Seeds of Doubt’

As the report and a previous study note, states such as Connecticut, Louisiana, and Nevada require some proof of medical condition prior to a voter being able to be added to the indefinitely confined database — to vote without a photo ID. 

Republican lawmakers have introduced several bills that aim to clean up the language in the law. Assembly Bill 494 would have required voters seeking the status to apply using a Wisconsin Elections Commission form.

Applicants, too, would have to submit proof of identification with the application, and municipal clerks would have to affirm in writing that the proof was provided. And “the existence of an outbreak or epidemic of a communicable disease in a voter’s community does not qualify the voter as indefinitely confined.” 

As he has done with so many other election reforms, the leftist governor vetoed AB 494. 

“I am vetoing this bill in its entirety because I object to the manner by which it targets certain voters and ongoing efforts by the Legislature to make it more difficult for eligible voters to vote,” Evers wrote in his Dec. 6 veto message. It does no such thing, proponents of the election integrity measure assert. It makes it more difficult for ineligible voters to cheat, they say. 

Flanders said failing to fix the indefinitely confined loophole “does nothing to improve election confidence,” particularly in a state plagued by irregularities and election law violations in a 2020 election in which Democrat presidential candidate Joe Biden claimed victory over Republican President Donald Trump by fewer than 21,000 votes. 

“The potential 142,000 voters using indefinitely confined status in the 2024 election will doubtless be used to sow seeds of doubt about the outcome of the upcoming election, and responsible politicians on both sides of aisle should work to fix this glaring issue in the future,” the report asserts. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.