I am honored to have served as the City of Racine Municipal Judge. Above all, I am proud of what we were able to accomplish. However, while I was serving as a part-time judge, my Racine law practice was also growing substantially.
As a result, I have decided to step down from the bench. This was not an easy decision to make. My decision, in part, was to be able to focus more on my law practice and provide our clients with exceptional estate planning and probate services.
Rebecca wrote this article 8 years ago on the recounts in Wisconsin. It provides some background and a deeper dive into the recount process. So today’s Throwback Thursday post is by our very own Rebecca Mason who wrote this back on April 20th of 2011.
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.
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
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.
The Legal Path Forward
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
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.
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
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
– 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.
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
This review of the poll lists and absentee ballots establishes the number of
voters who voted on election day.
The canvassers process
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.
When does the recount start?
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
and all evidence presented.24
The minutes become part of the record reviewed by the circuit court in case the
recount result is appealed.
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
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 Courts Role
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
Rebecca Mason was a litigation attorney at Godfrey & Kahn S.C., Milwaukee, when this piece was written. She practiced political and constitutional law at the time. Rebecca has since formed Rebecca Mason Law, and has been laser focused on protecting her client’s rights in her thriving Elder Law practice in Racine, WI. Contact Rebecca at email@example.com
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
11 Wis. Stat. § 9.01(1)(ar)(3).
12 G.A.B. Election Recount Procedures manual, May 20, 2009, p.
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
15 Wis. Stat. § 9.01(1)(b).
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. §
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.