The Wisconsin Elections Commission finalized the guidance Oct. 15, less than three weeks before Election Day. It says federal agents who want to observe voting must check in and follow the same rules as other observers, but does not initially distinguish between armed and unarmed agents. The document explains federal restrictions on armed personnel at polling places several pages later.

Dane County Attorney David Gault told the commission that the sequence could imply that Immigration and Customs Enforcement agents may observe voting. Federal law restricts armed federal personnel at polling places, while another law prohibits voter intimidation.

“If they’re armed, it’s clearly prohibited,” Gault said. He argued that an unarmed agent wearing a uniform identifying them as a federal officer should also not be allowed to observe.

Dane County Clerk Scott McDonell, a Democrat, said the guidance is inaccurate and confusing. He said an unarmed, nonuniformed federal employee might be an acceptable observer, but poll workers could understand the instructions to include armed agents.

In an Oct. 15 email to Elections Commission Administrator Meagan Wolfe, Gault said there was no legitimate reason for ICE to be at a polling place and urged the commission not to suggest that an ICE agent could qualify as an observer.

Commission attorney supervisor Angela O’Brien Sharpe said federal law does not cover every situation involving federal agents at polling places. If federal law enforcement seeks to observe an election, she said, it may do so under Wisconsin’s observer rules. Sharpe said the guidance does not permit armed federal observers and is intended to help poll workers respond to different situations, including possible intimidation or disruption.

The guidance tells chief inspectors to notify their municipal clerk if federal agents arrive. Clerks are then directed to contact the county clerk and commission staff. If agents are there for law enforcement duties rather than to observe, officials should request identification and any warrants, document the encounter and, when possible, ask them to conduct their business outside the voting area.

Election inspectors may remove observers when they have a reasonable basis to believe the person is intimidating voters or disrupting the process. The guidance leaves inspectors to assess whether an officer’s presence crosses that line.

Legal experts interviewed about the guidance said armed federal agents are barred from polling places, but disagreed with Dane County’s position that uniformed, unarmed federal agents should be categorically excluded. Justin Levitt, an election law specialist at Loyola Law School, said the commission’s guidance was legally sound and that federal officials cannot be singled out for special treatment. University of Wisconsin-Madison law school attorney Sterling Knoche said whether an unarmed agent’s presence is lawful would depend on the person’s conduct and the circumstances.

Officials in other parts of Wisconsin described varied approaches. Marathon County Clerk Kim Trueblood said she would not allow uniformed federal agents to register as observers, even if unarmed, because their presence could intimidate voters. Green Bay Police Chief Chris Davis said the state guidance would help officials make a quick decision if agents appeared. Green County Clerk Arianna Voegeli said the guidance came late and described the issue as a legal gray area.

Dane County, which includes Madison, has been preparing for the possibility of federal involvement at polling places for months. The Elections Commission said it developed its guidance after receiving hundreds of questions from local clerks. With the rules arriving shortly before voting, local election officials will have to apply them while balancing access for legitimate observers with voters’ right to cast ballots without intimidation.