A week after a the Wisconsin Election Commission deadlocked on specifically prohibiting “ballot harvesting,” third party requests and gathering of absentee ballots, new questions are being asked about a memo that seemingly allows the practice in defiance of state law.

The Wisconsin Institute for Law & Liberty (WILL), in a letter to the Election Commission, is challenging an interpretation of absentee ballot law by the state agency’s administrator, Meagan Wolfe.

“Ballots can be returned to the clerk’s office, an in-person absentee (or early voting) site or the voter’s polling on election day,” Wolfe wrote to Wisconsin’s municipal clerks on March 31. “A family member or another person may also return the ballot on behalf of the voter.”

It was the second sentence, specifically “or another person,” that attracted the attention of WILL. The letter, written by WILL senior counsel Brian McGrath and Deputy Counsel Lucas Vebber, questioned the absentee ballot policy exception in Wolfe’s memo.

“This statement is in conflict with the law,” said the letter from WILL. “In particular, Wis. Stat. § 6.87(4)(b)1 provides that electors must place their ballot in an envelope and follow certain procedures, and that ‘…The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.'”

The WILL letter says another statute reinforces prohibition against a third party handling an absentee ballot.

“This is especially true given Wis. Stat. § 12.13 which provides that no person may ‘receive a ballot from or give a ballot to a person other than the election official in charge’ and that no person may ‘receive a completed ballot from a voter unless qualified to do so,'” the WILL letter states.

This is the second attempt by WILL to get the Wisconsin Election Commission to tackle the ballot harvesting issue. On June 9, WILL filed a petition with the Election Commission to have the agency issue a formal opinion banning the practice.

As Rick Esenberg, President of WILL, explained in an interview with WISN-AM’s Jay Weber why ballot harvesting can lead to vote fraud.

“The problem with this should be obvious,” Esenberg told Weber. “The people that are likely to do this are partisans. And this creates the possibility that if someone is a Democratic operative or a Republican operative they may place pressure on a voter, they may alter the ballot, they may refuse to return the ballots of individuals who they feel may have voted for the wrong candidate.”

Esenberg said support for banning the practice should be bipartisan, since the most infamous recent case involved Republicans in North Carolina.

“In North Carolina, where ballot harvesting is formally illegal, there were Republican operatives who did it anyway,” Esenberg said. “And this caused the election to be invalidated and there were allegations that these ballot harvesters had altered the ballots they had. They voted for candidates and in races where voters had not cast a ballot. They had not returned ballots for people if they thought that the ballots had been cast for the wrong candidate.”

However, Democrats on the Election Commission last week blocked attempts to issue a formal position against ballot harvesting because, they claimed, it is already illegal in Wisconsin.

“We know that ballot harvesting is illegal. We know that it doesn’t exist. We know that fraud is virtually a non-existent problem. We had the last election with 43 instances,” Democratic Commissioner Mark Thomsen said, according to a report from the Center Square news service. “Voter fraud in Wisconsin is a non-issue.”

That position seems at odds with Wolfe’s memo stating “another person” may collect the absentee ballots and return them to the municipal clerk or voting location.

The letter from WILL raises another question about the memo from Wolfe, whether it violated state law regarding government agency rule-making authority.

“As a rule, this policy should have been promulgated under the provisions for rule-making under Chapter 227, which, among other things would have provided the public an opportunity to weigh in. But the rule-making process was not followed,” the WILL letter states. “Since WEC’s interpretation/policy is a rule, and that rule was not promulgated in accordance with the requirements of Wis. Stat. Ch. 227, it is invalid.”

It was the state statute regarding rule-making authority of state agencies, requiring legislative review, that caused the Wisconsin Supreme Court to strike down the extension of Governor Tony Evers’ “Safer at Home” orders by the state’s Department of Health Services.