Those who deny Election Integrity often argue that Wisconsin’s voter ID laws are among the strictest in the nation. This is actually a positive development, as the swing state of Wisconsin has faced numerous election integrity issues 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.
The status of being indefinitely confined saw a significant increase during the 2020 election, coinciding with the Covid-19 pandemic.
According to Wisconsin law, individuals who are elderly, physically ill or disabled for an unspecified period can sign a statement allowing them to automatically receive an absentee ballot for each election.
This provision operates on an honor system without requiring verification or investigation. Applicants are solely responsible for determining if they meet the criteria for indefinite confinement to receive an absentee ballot, without the need to provide a photo ID.
In 2020, as Covid-19 spread and Governor Tony Evers implemented state-wide lockdowns, election officials in Wisconsin’s two largest counties – Milwaukee and Dane – 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.
In December 2020, the Wisconsin Supreme Court swiftly made a ruling, unusually fast in the realm of judicial proceedings, finding that the clerks had made an error. The court determined that voters could not be exempted from showing a photo ID solely due to concerns about potential virus transmission. However, the court also concluded that the law allows voters to decide for themselves whether they should remain indefinitely confined.
“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.”
Patty Schachtner, a former Wisconsin state senator, and Shelia Stubbs, a state representative from Madison, were found to have marked themselves as indefinitely confined voters while campaigning and participating in political events. This was initially reported by Milwaukee conservative talk show host Dan O’Donnell 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.”
Despite the end of lockdowns, Wisconsin continues to see a notable increase in indefinitely confined claims compared to pre-Covid levels. A report indicates that the number of individuals with indefinitely confined status has risen by 116 percent since 2016, with 144,347 voters currently on the list as of late July, according to WILL.
Covid was exploited to manipulate and abuse election law, resulting in a fourfold increase in the use of indefinitely confined status for voting, soaring from around 66,000 claims in 2016 to almost 266,000 in 2020, as reported by Flanders.
“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.
The indefinitely confined statute dictates that tens of thousands of individuals should not be included on the list. Local election clerks are required to eliminate voters who either vote in person or do not participate in any election, following a “use it or lose it” approach. Individuals seeking reinstatement of their indefinitely confined status must complete a form and submit 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.
The investigation conducted by WILL revealed that almost 25,000 people on the list did not cast their votes in Wisconsin’s spring election, which is a relatively low turnout. In addition, 2,788 individuals have not participated in any election since 2020, while nearly 2,600 people from the list voted in person during the spring election.
The report reveals that the biggest and most populous blue cities in Wisconsin, including Milwaukee, Madison, Green Bay, Kenosha, and Janesville, have the highest number of voters claiming indefinite confinement.
These cities were recipients of significant “Zuckbucks” election administration grants in 2020 as part of the infamous “Wisconsin-5.” While Milwaukee, Green Bay, and Kenosha have complied with the requirement to remove such voters from their rolls, Madison has not provided requested information.
Additionally, Janesville and Peshtigo are the only two cities in Wisconsin that failed to respond to WILL’s requests.
The law firm issued records requests to 15 Wisconsin municipalities, including the five cities with the highest number of voters in indefinitely confined status and nine randomly chosen communities.
Out of those that replied, it was found that the city of Lake Geneva, a southeastern Wisconsin resort town with approximately 8,500 residents, neglected to send letters to 27 voters who no longer qualified for 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.
According to the report and a previous study, certain states like Connecticut, Louisiana, and Nevada mandate evidence of a medical condition before allowing voters to be included in the indefinitely confined database, thereby enabling them to vote without a photo ID.
In an effort to clarify the existing law, Republican legislators have put forward multiple bills. For instance, Assembly Bill 494 proposed that individuals seeking this status must apply using a form from the Wisconsin Elections Commission.
The application process for applicants would require submission of proof of identification, which would then need to be affirmed in writing by municipal clerks. It is also specified that the presence of a communicable disease outbreak or epidemic in a voter’s community does not grant indefinite confinement status. AB 494 was vetoed by the governor, continuing his trend of vetoing election reforms.
“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.