Wisconsin’s Supreme Court election is apparently heading for a recount. Since The UpTake is your recount headquarters, we thought you’d want to know how a recount works in Wisconsin. The bottom line of all of this is canvassing must be complete before there is a recount, and it may take several days to complete the canvassing.
The source for this is a brief for the Wisconsin Legislative Council
A recount petition may be filed no earlier than the time of completion of the canvass and no later than 5:00 p.m. on the third business day following the last meeting day of the municipal or county board of canvassers determining the election for the office or referendum question or, if more than one board of canvassers makes a determination, no later than 5:00 p.m. on the third business day following the last meeting day of the board of canvassers which makes a determination. If the Board of State Canvassers makes the determination, the petitioner may file the petition no earlier than the last meeting day of the last county board of canvassers to make a statement in the election or referendum and no later than 5:00 p.m. on the third business day following the day on which the Elections Board receives the last statement from the county board of canvassers for the election or referendum. [s. 9.01 (1) (a), Stats.]
Information about the canvassing can be found here.
And here are the rules for canvassing.
The recount process, which is specified in s. 9.01 (1) (b), Stats., is to proceed as follows:
a. First, the board of canvassers must compare the poll lists and determine the number of voting electors.
b. The board of canvassers must next examine the absentee ballot envelopes. Defective envelopes are to be laid aside, properly marked, and carefully preserved. The number of voters must be reduced by the number of envelopes set aside. [An absentee ballot is considered “defective” only if it is not witnessed, if it is not signed by the voter, or if the certificate accompanying an absentee ballot that the voter received by fax transmission or email is missing.]
c. Next, the board of canvassers must examine the container of ballots to be certain that it has not been tampered with, opened, or opened and resealed. Any irregularities or possible tampering must be noted.
d. After the container has been checked, the board of canvassers must open it and remove its contents. The number of ballots must be counted without examining the votes. For each defective absentee ballot envelope laid aside, the board of canvassers must randomly, and without inspecting the vote, draw one absentee ballot from the container. [The law presumes that ballots in the container initialed only by the municipal clerk, executive director of the board of election commissioners, or a deputy clerk or secretary is an absentee ballot.] If there are more defective absentee ballot envelopes than there are probable absentee ballots in the container, all of the probable absentee ballots must be removed. Additional ballots are to be removed only if the number of remaining ballots still exceeds the number of voters reduced by the number of defective absentee ballots set aside. Removed ballots may not be counted and must be marked with the reason for their removal, set aside, and carefully preserved.
If the number of ballots still exceeds the number of voters, the board of canvassers must place all of the ballots face up to check for blank ballots. If blank ballots are found, they must be marked as such, set aside, and carefully preserved. If the number of ballots still exceeds the number of voters, the board of canvassers must then place all of the ballots face down to check the initials. Any ballots not properly initialed by election officials are to be temporarily set aside and ballots randomly drawn so as to reduce the number of ballots to equal the number of voters.
Joint Legislative Council Ballots removed for lack of the requisite initials are to be marked, set aside, and carefully preserved.
If the number of ballots still exceeds the number of voters, the remaining ballots must be returned to the container and the excess number of ballots must be randomly withdrawn from the container. These ballots may not be counted and must be marked, set aside, and carefully preserved.
When the number of ballots and voters agree, or after noting that the number of voters exceeds the number of ballots, the board of canvassers must place the ballots back into the ballot box and must turn the box to thoroughly mix the ballots. At this point, the recount may begin.
Generally, the recount is to be conducted according to the procedures governing the original canvass. In recounting the votes cast on a voting machine in which the record of the votes cast is contained in the machine, the board of canvassers must make a record of the number of the seal, if any, the number of the protective counter or other device, if one is provided, and must then open the recording compartment of the machine and, without unlocking the machine against voting, recount the votes on the machine. If the machine is an electronic machine utilizing a detachable record of votes cast, the record must be retabulated under s. 5.90, Stats.
When a machine is recounted, the board of canvassers must inspect and examine the machine showing the votes cast and make a record of the votes as shown on the machine. This must be done in the presence of at least one witness. If the recount establishes that the original canvass from a machine was correct but that a discrepancy still remains, the board of canvassers must publicly unlock the voting and counting mechanism of the machine and must examine and test the machine to determine the cause of the discrepancy. A similar test must be conducted on electronic voting machines to determine whether the machine has a malfunction. A statement explaining the results of the test must be prepared by the board of canvassers and witnessed by at least one witness.
In the case of voting machine or electronic voting system and a clearly apparent error in the vote total shown on the machine or system, the board of canvassers may change the vote total and may certify or use a different vote total to certify a different result if there is evidence of a specific malfunction in the machine or system, if the malfunction could reasonably have caused the error, and if clear and convincing evidence exists which indicates the exact actual total number of votes cast. The burden to demonstrate that a vote total shown on a machine or record of votes cast is incorrect rests with the party seeking to change the recorded result on the basis of clear and convincing evidence.
If the recount shows that the original canvass was incorrect, the statement and determinations of the board of canvassers must be corrected accordingly.
Recounts at polling places utilizing an electronic voting system in which ballots are distributed to electors must generally be performed in accordance with the procedures for recounting paper ballots, to the extent applicable. Generally, recounts at polling places using electronic voting machines must be performed in accordance with the procedures for recounting votes cast on mechanical voting machines.
All steps of a recount must be performed publicly. Generally, all materials and ballots may be viewed and identified by the candidate, the person demanding the recount, and their authorized representatives and counsel. However, only members of the board of canvassers and tabulators assisting them may actually touch any of the materials or ballots. The candidates, the person demanding the recount, and their authorized representatives and counsel may object to the counting of any ballot. Any errors must be corrected. [s. 9.01 (1) (b), Stats.]
Whenever a recount petition for part of the wards within a jurisdiction or district, or for part of the municipalities within a district where there are no wards, is filed, the opposing candidate, or any voter or other interested party, including a municipality if the recount concerns a referendum question, is permitted to file a petition for recount in any or all of the remaining wards or municipalities in the jurisdiction or district. The petition must be filed no later than 5:00 p.m. two days after the board of canvassers completes the first recount. [s. 9.01 (4), Stats.]
The board of canvassers is required to keep complete minutes of all recount proceedings. The minutes must include a record of objections and offers of evidence. If the board of canvassers receives exhibits from any party, the exhibits must be numbered and preserved. The board of canvassers must make specific findings of fact with respect to any irregularity raised in the petition or discovered during the recount. Any member of the board of canvassers may administer oaths, certify official acts, and issue subpoenas for purposes of the recount. Witness fees are to be paid by the county, or by the Elections Board in the case of a state recount. [s. 9.01 (5) (a), Stats.]
The board of canvassers conducting a recount may select and employ tabulators to assist in the recount. However, only the members of the board of canvassers may make any determination as to the validity of any vote counted. [s. 9.01 (5) (b), Stats.]
Upon completing the recount, the board of canvassers must deliver to the Elections Board one copy of the minutes from the recount. In addition, in the case of a recount of an election for a state or national office, the board of canvassers must deliver one copy of the minutes to the state committee of the political party for each candidate whose name appears on the ballot for the recounted office. If the recount is of an election for county office, the board of canvassers must provide a copy of the minutes to each county political party of each candidate whose name appears on the ballot for the recounted office. [s. 9.01 (5) (bm), Stats.]
If the recount is made by a municipal or county board of canvassers and the result is required to be reported to a county board of canvassers or to the Elections Board, the board of canvassers making the initial recount must immediately certify the results to the county board of canvassers or to the Elections Board. If a county board of canvassers receives such results, it must then convene no later than 9:00 a.m. on the next business day following receipt to examine the returns and determine the results. If the Elections Board receives such results, the returns must be publicly examined and the results determined not later than 9:00 a.m. on the third business day following receipt, but if that day is earlier than the latest day permitted for the state canvass for that office, the chairperson of the board may examine the returns and determine the results no later than the day permitted for the state canvass for that office. [s. 9.01 (5) (c), Stats.]
Within five business days after completion of a recount, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court. The appeal is commenced by serving a written notice of appeal to the other candidates and persons who filed a written notice of appearance before each board of canvassers whose decision is appealed, or in the case of a statewide recount, before the Elections Board. The appealing party must also serve notice on the Elections Board if the board is responsible for determining the election. The notice must be served by certified mail or in person and must be filed with the clerk of circuit court. A surety in the amount approved by the court, conditioned upon the payment of all costs taxed against the appealing person, must also be filed. [s. 9.01 (6) (a), Stats.]
If an appeal is filed from a recount determination in an election which is held in more than one judicial circuit, the chief judge of the judicial administrative district in which the election is held must consolidate all appeals relating to that election and appoint a circuit judge to hear the appeal. If the election is held in more than one judicial administrative district, the Chief Justice of the Supreme Court must make the appointment. [s. 9.01 (6) (b), Stats.]
When an appeal is filed, the court must immediately direct each affected county or municipal clerk to transmit all ballots, papers, and records affecting the appeal to the clerk of court, or to impound and secure such materials, or both. [s. 9.01 (7) (a), Stats.]
The appeal is heard by a judge without a jury. Following filing of an appeal, the court must promptly hold a scheduling conference to adopt procedures permitting it to determine the matter as expeditiously as possible. Within the time ordered by the court, the person who filed the appeal must file a complaint listing with specificity every alleged irregularity, defect, mistake, or fraud committed during the recount. Within the time ordered by the court, the other parties to the appeal must file an answer and all the parties to the appeal must provide the court with any other information ordered by the court. The matter is to be summarily heard and determined by the court. Provisions of the law relating to civil procedure which are inconsistent with a prompt and expeditious hearing do not apply to recount appeals. [s. 9.01 (7) (b), Stats.]
Unless the court finds reason for setting aside or modifying the recount determination, it must uphold the determination. Generally, the court may not receive evidence not offered during the recount, except for evidence that was unavailable to a party at the time of the recount or newly discovered evidence that could not have been obtained during the recount. However, the court may receive evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding. A party who fails to object or fails to offer evidence of a defect or irregularity during the recount waives the right to object or to offer evidence to the court except in the case of evidence that was previously unavailable or newly discovered evidence or evidence received by the court due to unavailability of counsel during the recount.
The court must set aside or modify the recount determination if it finds that the board of canvassers erroneously interpreted a provision of law and the correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers, the court may not substitute its judgment for that of the board of canvassers as to the weight of the evidence on any disputed finding of fact. The court must set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence. [s. 9.01 (8), Stats.]
Within 30 days after entry of the order of the circuit court, an aggrieved party may appeal to the court of appeals. If an appeal is filed with respect to an election which is held in more than one court of appeals district, the Chief Justice of the Supreme Court must consolidate all appeals relating to that election and designate one district to hear the appeal, except that if an appeal is filed in respect to an election for statewide office or statewide referendum, the appeal must be heard by the 4th District Court of Appeals in Madison. The court of appeals must give precedence to the appeal over other matters not accorded similar precedence by law. [s. 9.01 (9), Stats.]
The above-described recount procedures constitute the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect, or mistake committed during the voting or canvassing process. [s. 9.01 (11), Stats.]