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    Wisconsin election officials could undertake the arduous task of recounting the results from the statewide April 5, 2011, election for Wisconsin Supreme Court justice. Whether Wisconsin experiences another statewide recount, recounts play an important role in Wisconsin's electoral process. Attorney Rebecca Mason provides an overview of the recount process, including how a candidate appeals the recount results.


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    Rebecca MasonBy com rmason gklaw Rebecca Mason, Godfrey & Kahn S.C., Milwaukee

    April 20, 2011 – Wisconsin election officials may soon embark on the arduous task of recounting the results from the statewide April 5, 2011, election for Wisconsin Supreme Court justice. The candidates have until 5 p.m. on Wednesday, April 20, to ask the state to conduct a recount. With Justice David Prosser having been declared the victor, any request for a recount will come from candidate JoAnne Kloppenburg. At the time of publication of this article, the Kloppenburg campaign had not announced whether it would request a recount. If a recount is requested, it will begin at 9 a.m. on Thursday, April 21.

    Although not unprecedented, there rarely exists a reasonable possibility that the outcome of an election for statewide office could be affected by an error in counting ballots. In fact, the last time there was such a statewide recount was in the 1850s.1 In that case, William A. Barstow's right to hold the office of Wisconsin governor was called into question. After Barstow had received the certificate of election and was sworn in as governor, the Wisconsin Supreme Court ruled that he was not the rightful winner of the election.2

    Whether Wisconsin experiences another statewide recount, recounts play an important role in Wisconsin's electoral process.

    Uncertain election results call into question the winning candidate’s right to hold office. Moreover, this uncertainty casts doubt on the legitimacy of the electoral process.3 A recount presents an opportunity to restore public trust in the system by reviewing and evaluating what occurred on election day.

    Election officials in Wisconsin have much experience conducting recounts (at the local level and involving referendum), and most recounts are resolved amicably and without litigation. However, when stakes are high, this respectful and lawyer-free process could give way to contentious litigation.

    Importantly, a recount is the exclusive means for a candidate to challenge the results of an election.4 In other words, if a candidate suspects fraud or illegal conduct, or a mistake affected the outcome of the election, the candidate may not go directly to court and must instead request a recount of the election results. A candidate may appeal the results of a recount to the circuit court.

    The statute and procedures for conducting a recount in Wisconsin are detailed, demanding, and fast-paced, yet have been interpreted such that the intent of the elector is paramount. Accordingly, the recount strikes a balance between the need for finality in an election against ensuring that the electors’ will is reflected in the election outcome.

    The purpose of a recount is to count all the votes cast in an election again to assure that all legal votes are counted, all illegal votes are not counted, proper procedures for conducting the election were followed by the election officials, and no mistakes were committed during the original official count of the ballots (the “canvass”). It is difficult, although not impossible, to change the outcome of an election through a recount.

    The canvass

    Recounts: Balancing the finality of an election against the will of the electorate

    In what may have been a surprise to some members of the public, the numbers reported to media outlets on election night provide only preliminary election results.5 The official vote count does not actually begin until the day after election day.6 In an election for state office,7 the county board of canvassers – comprised of the county clerk and two additional election officials, one Democrat and one Republican, appointed by the clerk8 – conducts a canvass of the votes cast on election day.9

    When the margin between the vote totals received by competing candidates is slim, a candidate has the opportunity to request a recount to ensure that all ballots cast were counted appropriately and that the outcome of the election properly reflects the will of the electors. A candidate has three business days following the completion of the official canvass to request a recount.10

    Wisconsin’s recount procedures ensure there is no delay in conducting a recount once requested by a candidate. Indeed, the latest a recount may begin is 9 a.m. on the day following the deadline for filing the recount petition.11 If this day falls on a Saturday or holiday, the Government Accountability Board (GAB) recommends beginning the recount on that Saturday or holiday.12 The recount must be completed within 13 days.13 Discussions with current election officials reveal that, at least some officials, have been forewarned that if a recount is requested by one of the candidates in the April 5 supreme court election, the officials should plan to work on and through the upcoming Easter Sunday.

    The recount

    There are several steps to a recount, outlined in great detail in Section 9.01 of the Wisconsin Statutes, prior to actually recounting the votes cast in an election.

    After ensuring that all electronic equipment used to count votes functioned without error, the board of canvassers14 first determines the number of voters, and then make sure that the number of ballots does not exceed the total number of voters.

    To determine the number of voters, the board of canvassers compares the poll lists and eliminates any discrepancies – that is, the number of voters listed on each poll list must match, be sequential, and without duplicates.15 After completing the review of the poll lists, the board examines the absentee ballot envelopes to determine whether they substantially comply with the statutory requirements.16 This review of the poll lists and absentee ballots establishes the number of voters who voted on election day.

    The board of canvassers then counts the number of ballots, using the same method used on election day.17 If the number of ballots exceeds the number of voters, the statutes provide a detailed method of “drawing down” the number of ballots.18 The process of drawing down the ballots requires the board of canvassers to first remove ballots with facial infirmities (for example, blank ballots or ballots that do not contain the initials of two inspectors).19 If the number of ballots still exceeds the number of electors, the process concludes with the board placing any remaining ballots in a ballot bag and randomly drawing out, without inspecting the ballot (i.e., without knowing which candidate is supported on that ballot), the remaining number of ballots equal to the number of excess ballots.20 As a result, the pool of ballots that are actually counted to determine the victor may be winnowed down by random draw.

    Once the number of ballots equals the number of voters, the board of canvassers counts the votes.21 In other words, the recount of votes cast in the election actually begins at this point in the process. During this count, if questions arise about the intent of the elector, poll workers are instructed to attempt to determine the intent and give effect to that intent if it can be determined.22

    The public is allowed to observe all aspects of a recount. The board of canvassers keeps detailed written minutes of all aspects of the recount, which includes all actions taken, all objections made,23 and all evidence presented.24 The minutes become part of the record reviewed by the circuit court in case the recount result is appealed.

    Appealing recount results to the circuit court

    A candidate has the right to appeal the results of a recount in circuit court within five days of the completion of the recount.25 If the recount is held in a voting district that spans more than one judicial district, the chief justice of the Wisconsin Supreme Court appoints a circuit court judge (a reserve judge, if available) to hear the appeal.26 Any appeal of the recount results is heard by the circuit court judge, without a jury, in an expedited fashion.27

    An appeal of a recount is the only means by which a candidate may go to court to contest any part of the recount or election. A party appealing the recount results must establish, through evidence, that: 1) a mistake, fraud, defect, irregularity, or illegality was committed during the voting, canvassing, or recount process; 2) the offending conduct led to votes being improperly included in or excluded from the election results; and (3) the number of disputed votes exceeds the margin by which the prevailing candidate won.28

    The circuit court will affirm the county board of canvassers’ determination, unless the court concludes that the board of canvassers erroneously interpreted state law or any finding of fact by the board is not supported by substantial evidence.29

    The court’s review of the recount is limited to the evidence offered to the board of canvassers during the recount, unless the evidence was unavailable to a party exercising due diligence.30 Put another way, a party who fails to object or offer evidence of a defect or irregularity during the recount waives the right to object or offer such evidence in court, unless the evidence was unavailable to a party exercising due diligence or the evidence is newly discovered.

    In voting districts that span more than one judicial district, an appeal of the circuit court’s decision is assigned to District 4 of the Wisconsin Court of Appeals.31

    About the author

    Rebecca Mason is a litigation attorney at Godfrey & Kahn S.C., Milwaukee. She practices political and constitutional law. Contact Rebecca at com rmason gklaw gklaw rmason com.

    Endnotes

    1 State v. State Board of Canvassers, 150 N.W. 542, 554 (Wis. 1915) (citing Attorney General Bashford v. Barstow, 4 Wis. 567). See also Election chief says Supreme Court vote totals will change during verification, Wis. St. J., April 7, 2011.

    2 Board of Canvassers, 150 N.W. At 554 (citing Attorney General Bashford v. Barstow, 4 Wis. 567).

    3 See Clapp v. Joint Sch. Dist. No. 1, 21 Wis. 2d 473, 481, 124 N.W.2d 678, 683 (1963).

    4 Wis. Stat. § 9.01(11); Shroble v. Prusener, 185 Wis. 2d 103, 517 N.W.2d 169 (1994).

    5 See Wis. St. J., supra note 1.

    6 Wis. Stat. § 7.60(3).

    7 This article provides a summary of Wisconsin’s recount laws. The procedures leading up to a recount vary, albeit slightly, depending on whether the recount involves a referendum question, state or national candidate, or local candidate. Because the impetus for this article is the recent election involving a state elective office, the article is tailored accordingly.

    8 Wis. Stat. § 7.60(2).

    9 Wis. Stat. § 7.60(3).

    10 Wis. Stat. § 9.01(1)(a). Only a candidate may file a recount petition relating to an election. In the case of a referendum, any elector who voted in the referendum election may file a petition to request a recount.

    11 Wis. Stat. § 9.01(1)(ar)(3).

    12 G.A.B. Election Recount Procedures manual, May 20, 2009, p. 5.

    13 Wis. Stat. § 9.01(1)(ar).

    14 In a recount for state office, the county boards of canvassers (the same entity that conducted the initial canvass) conducts the recount.

    15 Wis. Stat. § 9.01(1)(b).

    16 Id.

    17 Id.

    18 Id.

    19 Id.

    20 Id.

    21 Id.

    22 Wisconsin courts have construed election laws as directory rather than mandatory in order to give effect to the will of the electors. Lanser v. Koconis, 62 Wis. 2d 86, 214 N.W.2d 425 (1974).

    23 Along with challenging the eligibility of a voter, candidates may also object to: 1) the recount itself; 2) the composition of the board of canvassers; 3) the procedures followed by the board of canvassers; and 4) any other issues presented to the board during the recount. Wis. Stat. § 9.01(5).

    24 Wis. Stat. § 9.01(5).

    25 Wis. Stat. § 9.01(6), (7), (8); Gradinjan v. Boho, 29 Wis. 2d 674, 139 N.W.2d 557 (1966). The G.A.B. may not certify election results until the deadline for filing all appeals has passed.

    26 Wis. Stat. § 9.01(6)(b). This judge may be appointed before the recount is completed if a judicial determination is needed on any issues raised during the recount. Id.

    27 Wis. Stat. § 9.01(7). This same judge will be appointed earlier in the process to adjudicate legal issues, should they arise during the recount.

    28 McNally v. Tollander, 100 Wis. 2d 490, 505, 302 N.W.2d 440, 447 (1981).

    29 Wis. Stat. § 9.01(8)(d).

    30 Wis. Stat. § 9.01(7).

    31 Wis. Stat. § 9.01(9).