Wisconsin Supreme Court candidate JoAnne Kloppenberg has until 5pm today to request a recount in her very close race with incumbent Supreme Court Justice David Prosser. While the margin is close enough for the state of Wisconsin to pay for the recount, Kloppenberg still has to decide if she wants to put herself through what could be several months of legal action and whether she and her supporters have enough money to pay the legal bills of the lawyers that will be needed in the fight. Legal fees for the 2009 US Senate recount in Minnesota ran close to $10 Million for each side and the principle lawyers from that fight have been retained by Kloppenberg and Prosser for this fight.
Should Kloppenberg decide to press ahead you’ll see a process somewhat like Minnesota’s recounts, but with some significant differences.
Most of the work of the recount happens at the county level. Wisconsin has 72 counties. Each county has a canvassing board that will recount the votes. Unlike Minnesota, not all of the votes will be counted by hand. Only non-scannable paper ballots will be counted by hand. Ballots that were originally counted by optical scanners, will be counted that way again.
Should the recount go ahead, the Wisconsin’s Government Accountability Board which oversees elections is planning to go to court tomorrow to clear out the memory on the optical scanners or to conduct a Statewide hand count of all ballots in the recount. It is possible that either campaign may request the data from the optical scanners be preserved, which would mean a hand recount.
If the optical scanners are used for the recount, representatives from each campaign will watch the ballot be fed into the machine and have a chance to object to the ballot before it is fed in. As we saw in Minnesota, it is sometimes hard to determine who exactly the voter meant to choose. If there are any disagreements about who the vote was for the county board is supposed to refer to a “voter intent” manual from the state to determine who gets the vote. If there is disagreement among the board members they vote on which campaign should be awarded the ballot.That’s different from Minnesota where disputed ballots were sent to the state to be resolved.
Wisconsin also allows voting by electronic ballots. Unlike the hand marked ballots that have a physical paper, the electronic ballots are only available as a printout. The totals can be double-checked, but the accuracy of the vote total is really dependent upon the machine. Fair election critics such as Brad Friedman have long argued that electronic ballots are open to tampering and “100% unverifiable”.
The recount process would start on Monday when Wisconsin’s Government Accountability Board has scheduled a conference call with all 72 County Clerks. The actual recounting of the ballots would begin sometime after Monday.
Once the recount begins, counties have 13 days to complete the process. The results are sent to the GAB, which then certifies them.
Like Minnesota, Wisconsin has a process for a legal challenge to the results. Unlike Minnesota, the process has two steps instead of just one.
Should the loser of the election appeal, it is heard by a single judge appointed by the Wisconsin Supreme Court. Prossner who sits on the court would likely recuse himself from being involved in the appointment. The decision of that judge can then be appealed to the 4th District court of appeals in Madison.
How long does it all take? As we saw in Minnesota it can take months unless one of the candidates decides to throw in the towel.