Wisconsin election officials have embarked on the arduous task of recounting the results from the statewide April 5, 2011, election for Wisconsin Supreme Court justice. Though Justice David Prosser has been declared the victor, candidate JoAnne Kloppenburg has requested a recount, which began 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. 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.
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. 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. 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
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. The official vote count does not actually begin until the day after election day. 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 clerk – conducts a canvass of the votes cast on election day.
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.
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. If this day falls on a Saturday or holiday, the Government Accountability Board (GAB) recommends beginning the recount on that Saturday or holiday.
The recount must be completed within 13 days.
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 canvassers first determines the number of voters, and then makes 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. If the number of ballots exceeds the number of voters, the statutes provide a detailed method of “drawing down” the number of ballots.8 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).1
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.
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, and all evidence presented.
The minutes become part of the record reviewed by the circuit court in case the recount result is appealed.
Appealing recount results
A candidate has the right to appeal the results of a recount in circuit court within five days of the completion of the recount. 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. Any appeal of the recount results is heard by the circuit court judge, without a jury, in an expedited fashion.
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.
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.
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.
Rebecca Mason is a litigation attorney at Godfrey & Kahn S.C., Milwaukee. She practices political and constitutional law.
