Voters in Superior’s 5th District will have a primary election to decide Tuesday, Feb. 18 after all.

The Wisconsin Elections Commission ruled Monday, Jan. 27 that Councilor Brent Fennessey will be included on the ballot for the spring election after the sufficiency of his nomination was called into question.

Fennessey certified his nomination petitions on the dates he started circulating them rather than on Dec. 23 — the date he stopped circulating the petitions, according to an affidavit Fennessey filed with the City Clerk’s Office at 4:59 p.m. Friday, Jan. 10.

Fennessey filed the affidavit after the City Clerk’s Office received notice 34 minutes earlier that Garner Moffat, a resident of the 4th District, was challenging the sufficiency of Fennessey’s nomination for ballot access.

Wisconsin law requires district candidates in second- and third-class cities to gather 20-40 signatures to get their name on the ballot, but Moffat’s complaint filed with the City Clerk’s Office at 4:25 p.m. Jan. 10, states that only 18 of the 26 signatures Fennessey gathered were collected before the petitions were certified by the councilor.

After Fennessey filed the affidavit of correction, allowed under Wisconsin’s administrative code, City Clerk Terry Kalan notified Moffat and Fennessey that the corrective action was sufficient to place Fennessey’s name on the ballot.

Moffat challenged that ruling with the Wisconsin Elections Commission because the City Clerk’s Office was already closed when the affidavit was signed.

After gathering additional information from Kalan and Moffat, the Wisconsin Elections Commission ruled Kalan had acted within her discretion in allowing Fennessey to take corrective action.

“I feel that it’s inappropriate to let one person into a locked office after office hours to file anything,” said Moffat. “I believe it’s not in the best interest of our community to offer exceptions for some people while the public doesn’t have access to the building or office.”

The decision noted that the Wisconsin Elections Commission — the filing officer for candidates in state and federal elections — adheres to strict 4:30 p.m. closing-time deadlines for affidavits, but it has historically advised local filing officers like Kalan that a 5 p.m. deadline for correcting affidavits is appropriate.

Kalan interpreted the “three calendar day” deadline as being 72 hours after the 5 p.m. filing deadline for nomination papers, argued the City Clerk’s Office does not strictly adhere to the posted 4:30 p.m. closing time and routinely assists customers after that time for a variety of reasons and stated that she would have extended the same courtesy to any other candidate, the Wisconsin Elections Commission found.

“The Commission also recognizes that there are policy considerations supporting two opposing interpretations of the deadline,” the findings state. “On one hand, strict compliance to a deadline established by regular posted office hours promotes certainty and ensures the same public notice and opportunity for all interested parties. On the other hand, the Commission recognizes that local filing officers often wish to assist candidates and others filing documents as good customer service, even if that requires working after posted business hours.”

Moffat, campaign manager for Amanda Foster’s 5th District Council bid, said Tuesday he was disappointed with the decision, but had no plans to appeal it.

“Amanda didn't ask me to look at the nomination forms, and I would have filed the complaint whether or not I was volunteering with her campaign,” Moffat said.

Moffat checked every candidate’s nomination papers in the district, he said, but only Fennessey failed to fill his out according to instructions printed on the nomination papers.

Fennessey said the matter was an error on his part, which he corrected legally.

“The gamesmanship surrounding this matter never deterred my campaign, nor did our collective efforts diminish during this time,” Fennessey wrote in a post on his city councilor Facebook page.

The determining issue was whether Kalan abused her discretion in accepting Fennessey’s correcting affidavit before the deadline, the commission said, and they found she did not.

“While my regular office hours are generally 8 a.m. to 4:30 p.m., my office has never, during my tenure with the city, treated the 4:30 p.m. as a strict closing obligation or … a strict right to close,” Kalan wrote in her response to Moffat’s complaint to the commission. “My staff and I view our responsibilities to the public to include the timely and efficient processing of applications for permits and licenses. We have long appreciated that working people face significant difficulties running city hall ‘errands’ during conventional work hours.”

Tuesday, Kalan said her staff members were busy stuffing envelopes to get absentee ballots out in the mail on time. They were in the mail before the end of the workday.

“While this case presented some interesting legal issues that we had not previously sorted through, we have ultimately determined that Clerk Kalan was within her discretion to accept the correcting affidavit after the office’s regular closing time but before the statutory deadline of 5 p.m.,” Michael Haas, staff counsel for the Wisconsin Elections Commission, wrote in email notifying Kalan and Moffat of the commission’s decision.

The commission found that Kalan’s decision to accept the correcting affidavit from Fennessey prior to 5 p.m. Jan. 10, “was not a violation of the election laws or an abuse of discretion.”

This story was updated at noon on Jan. 29 to include comments from those involved and additional information from the Wisconsin Elections Commission's decision. It was originally posted on Jan. 28 at 9 a.m.