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RACINE COUNTY
BRANCH 5 IN RE: NOTICE OF APPEAL OF THE DECISION OF THE RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS REGARDING THE SCHOOL FUNDING REFERENDUM (RUSD 4620) THAT TOOK PLACE ON APRIL 7, 2020, AND WHICH WAS RENDERED ON APRIL 24,2020, AND CERTIFIED ON APRIL 27, 2020
CASE NO. 2020CV1023
Also referred to by the parties as:
FILED
JAMES SEWELL, et al., Petitioners/Appellants, vs.
JUL 1 0 2020 CLERK OF CIRCUIT COURT
RACINE COUNTY
RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, et al.. Respondents. COURT'S DECISION AND ORDER
PROCEDURAL BACKGROUND On April 7, 2020, voters within the borders of the area in which the Racine Unified School District (hereinafter RUSD) provides public school services approved a referendum question on the ballot by 5 votes. The approved referendum allows the RUSD to exceed the revenue limit specified in Wisconsin Stats. Sec. 121.91 by various amounts beginning in the 2020-2021 school year through the 2049-2050 school year. The referendum question, as approved on April 7, 2020, identified the
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use of the additional funds as: "For non-recurring purposes consisting of building modernization, land acquisition, enhancements for student career pathway programs, safety improvements, furnishings and equipment, technology, and debt service for new building and other capital improvement projects." The actual amounts for RUSD to be allowed to spend in excess of the revenue limits during each of the 30 years of the referendum vary. For example, in year 1 (2020-2021 school year) of the approved referendum, RUSD could spend up to $18 million more than allowed under the revenue limit. In the final year covered by the referendum (2049-2050 or year 30) the additional spending amount would be up to $42.5 million. RUSD is a school district that provides public education services to all residents of Racine County who are located in the area of the county that lies east of Interstate 94. The service area for RUSD includes the City of Racine and Villages of Caledonia, Mt. Pleasant, Elmwood Park, North Bay, Sturtevant and Wind Point. Following the RUSD Board of Canvassers (hereinafter RUSD BOC) certification of the vote totals from the April 7, 2020 election as 16,748 "Yes" and 16,743 "No" votes on the referendum question, the Petitioners/Appellants (hereinafter Appellants) petitioned for a recount under Wis. Stats. Sec. 9.01(1). The RUSD BOC conducted a hand recount of the April 7, 2020 referendum question. The recount, itself, was conducted from April 18, 2020 until April 24, 2020. On April 27, 2020, the BOC certified the recount results as showing 16,715 "Yes" votes and 16,710 "No" votes. The referendum, again, passed by a margin of 5 votes.
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On May 1,2020, the Appellants filed a timely appeal of the recount results pursuant to Wis. Stats. Sec. 9.01(6). COURTS SCOPE OF REVIEW Chapters 5 through 12 of the Wisconsin Statutes embody Wisconsin's election laws. Under what can be referred to as legislative intent, Wis. Stats. Sec. 5.01(1) provides: "... chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions." Under subsections (3) and (4) of Wis. Stats. Sec. 5.01, the person (here "Yes" or "No" votes) receiving the greatest number of legal votes wins. In the event of a tie vote on a referendum question, the referendum fails. The court procedures and the "scope of review," here, are contained in Wis. Stats. Sec. 9.01(7) and (8). All provisions in these laws apply to this controversy. By not referring specifically to a provision or omitting reference to it, the Court is not signifying its inapplicability or non-consideration. Subsection (7) of Wis. Stats. Sec. 9.01 contains the procedure for the reviewing court to follow in appeals from recount determinations in Wisconsin. This Court has followed those procedures, including issuing an order to impound and secure all ballots, allowing Appellants an opportunity to file amended pleadings while urging specificity, allowing additional briefing and arguments on issues not raised in initial pleadings and, to the extent possible, expediting the proceedings. The Court's sole function is to follow the law, apply proper facts to the law and decide the matter. Subsection (8) of Wis. Stats. Sec. 9.01 contains the law on the Court's
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scope of review in appeals following recounts. Among its provisions: - The court is to separately treat disputed issues of procedure, law, and fact; - The court may not receive evidence not offered to the Board of Canvassers except for evidence that was unavailable to a party exercising due diligence at the recount or newly discovered evidence that with due diligence could not have been obtained during the recount; - A failure to object or failure to offer evidence of a defect or irregularity during the recount waives that right except for situations identified above as "newly discovered" or "due diligence"; - 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. As to the Court setting aside or modifying the Board of Canvassers' determination, under Wis. Stats. Sec. 9.01 (8)(d) the Court shall act if it finds: - The BOC has erroneously interpreted a provision of law and a correct interpretation compels a particular action; - or - The court finds that the BOC determination depends upon any finding of fact that is not supported by substantial evidence. " The act precedent to all of the Court's consideration of the legal and factual issues stated above is: "Within the time ordered by the court, the appellant shall file a complaint enumerating with specificity every alleged irregularity, defect, mistake or fraud committed during the recount." Wis. Stats. Sec. 9.01(7)(b), (emphasis supplied). Pursuant to the Court's May 19, 2020 Scheduling Order (R. Doc. 38, p. 2), Appellants timely filed their Complaint (R. Doc. 71) on May 28, 2020. The Complaint contains 56 paragraphs of allegations or affidavits,
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is accompanied by Exhibits A through T, and requests the following relief: - An order requiring RUSD "to make available all election materials, including but not limited to the poll workers' notes, the video of the recount by RUSD, all materials used to train and educate the tabulators, and all ballot images from the voting machines..." - A court determination that there were more "No" votes than "Yes" votes in the referendum; - Any other just and equitable relief. Prior to the analysis of the Complaint allegations, facts and law, a number of observations within the common knowledge of the parties and the Court are made. First, the election was conducted on April 7, 2020, in the midst of a public health emergency existing worldwide due to a pandemic known as COVID-19. COVID-19 is the medical term for a deadly virus for which there is no known "cure" and for which there is and was no effective treatment or vaccine. Next, without casting aspersions on either the political "left" or "right," as they are known, rules relating to polling locations, voting hours, early voting rules, absentee ballot preparation and acceptance, and in-person voting rules on April 7, 2020 (masks, social distancing, drive-thru polling) were contested by various interest groups. The decisions on those contested issues have one thing in common: The resultant rules were applied to all persons, municipalities' clerks, election officials and voters. That is, regardless of political persuasion or leanings, in the end, all parts of the election system were held to the same standard, i.e., the law in existence on the day of the election.
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Examples of the "changing climate" for the April 7, 2020 election are the various changes in voting rules and the acceptance of ballots as reflected in the United States Supreme Court case of Republican National Committee, et ah, v. Democratic National Committee, et ah, 140 S. Ct. 1205 (2020). The case arising out of Wisconsin election law directly dealt with the April 7, 2020 Wisconsin election. The Supreme Court decided on April 6, 2020, the day before this election, to stay a federal district judge's order issued 5 days earlier which extended the authority of Wisconsin election clerks and officials to accept absentee ballots to April 13, 2020 (for the April 7, 2020 election). The Court discussed its policy against last-minute (or day) election rule changes. In its decision, the Supreme Court specifically ordered that for an absentee ballot to be counted in the April 7, 2020 Wisconsin election, it had to be either postmarked by April 7, 2020 and received by April 13, 2020, or hand-delivered, pursuant to state law, by April 7, 2020 at 8:00 p.m. The Supreme Court's April 6, 2020 Order regarding the acceptance of ballots for the April 7, 2020 Wisconsin election meant that some individual votes in that election would likely not be counted. For example, a person who voted by absentee ballot could place their ballot in the U.S. Mail on April 7, 2020, but if it was not postmarked on that date, the ballot was not valid and would not be counted. One could reasonably argue that an absentee ballot received by the election clerk on the morning of April 8, 2020, would have had to have been placed in the mail on April 7, 2020. Without a postmark of April 7, 2020 or earlier, however, the ballot could not be counted. Similarly, absentee ballots that did not contain or were missing the address of a witness on the "certificate" attached to the absentee ballot could not be
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counted under Wis. Stats. Sec. 6.87(6d). The point the Court makes is that while the overall intent as to a qualified elector exercising their constitutional right to vote exists, rules or laws, whether by the legislature or the courts, can limit that right. Legislative construction or policy as expressed in Wis. Stats. Sec. 6.84 affirms the constitutional right to vote, but distinguishes voting by absentee ballot as a "privilege." All laws concerning voting, be they legislative or judicial, must be applied equally and consistently to obtain an accurate and fair result on election day.
FACTS AND PROCEDURES DURING RECOUNT The credible tacts, established by admissions, affidavits, exhibits and notes kept, pursuant to law, indicate that during the recount, the following procedures were followed by the RUSD BOC to comply with the law, provide transparency and allow public access. Those procedures included: - Public access for all interested parties in the form of a right to be present in person; - Conducting the recount via a hand recount of all (approximately 34,000) ballots within the RUSD. No "cherry-picking" of the 52 units occurred. It was not a case of some units being hand-counted while others simply had voting machine totals considered. It was an "apples-to-apples" approach. (Wis. Stats. Sec. 5.90(1)). - The BOC utilized a detailed procedure drafted by the Wisconsin Elections Commission and identified as the "Recount Manual." The specific manual of procedures,
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statutory authority, as well as forms utilized during the subject recount consist of 29 pages and is attached to the Affidavit of Christopher M. Meuler filed on June 8, 2020 (R. Doc. 80). - The BOC maintained detailed official minutes of the recount proceedings (Wis. Stats. Sec. 9.01(5)). Said minutes include a record of objections and offers of evidence and specific findings of fact as the statute requires. In addition, the tabulators who assisted with the duties of the recount kept detailed notes, including photographs. Each of the three members of the BOC also kept notes that were submitted. The notes from the three BOCs and 18 tabulators total approximately 200 detailed pages and are attached to the Abel, Tobias and Leverich Affidavits filed on June 8, 2020 (R. Docs. 74, 75 and 76). - During the entirety of the recount from April 18, 2020 through April 24, 2020, large-screen imaging of the recount proceedings were provided by the BOC at the Racine Festival Hall recount site. In addition, carts on wheels were made available at each table viewing election materials. The carts were used to allow challenged or requested materials to be reviewed by interested parties by placing the materials in the cart and "rolling" it to the requester. Measures such as this were implemented by the BOC to comply with their legal responsibility to provide
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access. Some of these measures were undertaken because of social distancing and other orders of health officials which could have limited or negatively affected the ability of observers to view the proceedings and materials. - All objections of anyone present for the recount proceedings were considered and decided by the BOC. Any request to view election materials was granted by the BOC unless the materials were not timely requested. If a particular document was requested at the time the BOC was considering it, said document was placed in a cart and made available to the person requesting the review. If a request was made for a document after the BOC had made a decision concerning that matter and moved on to a different issue, the document was not made available. All requests are reflected in the minutes of the recount. - An oath was administered to all members of the BOC and each of the tabulators. The tabulators were appointed, pursuant to Wis. Stats. Sec. 9.01 (5)(b), to assist with the recount. - The tabulators were selected utilizing a procedure in which the majority of clerks responsible for conducting elections within the RUSD boundaries were requested to provide names of experienced poll workers to the BOC. Eventually, approximately 20 persons were selected by the BOC to act as tabulators. Tabulators "flagged" certain
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election materials during the recount, but the BOC made all decisions concerning contested material. Additional facts and procedures will be referred to in the Court's Analysis and Decision. ANALYSIS AND DECISION As indicated. Appellants filed their Complaint on May 28, 2020. The Court had ordered in its May 19, 2020 Scheduling Order (R. Doc. 38) for the Appellants to file their Complaint "enumerating with specificity every alleged irregularity, defect, mistake or fraud they allege was committed during the recount, including a statement whether the alleged issues involve procedure, interpretation of law or findings of fact and a brief setting forth the legal and evidentiary support for each identified irregularity, defect, mistake or fraud alleged." Authority for the Court's May 19, 2020 Order is found in Wis. Stats. Sec. 9.01(7) and (8). The Complaint filed by Appellants contains 56 paragraphs and is accompanied by Exhibits A through T (R. Docs. 71, 47-66). The Answer of RUSD filed on June 8, 2020 (R. Doc. 73) is accompanied by Affidavits from each of the three members of the RUSD BOC, Melissa Abel (R. Doc. 74), Tammy Leverich (R. Doc. 75) and Elizabeth Tobias (R. Doc. 76). RUSD also filed a Brief with its Answer. An Answer and Brief were also filed on behalf of Respondents "Chelsea Powell and the Yes For Our Children Referendum Committee" (R. Doc. 77) on
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June 8, 2020. It was accompanied by an Affidavit from Attorney Christopher M. Meuler and a Declaration of John Chick (R. Docs. 78-79). On June 17, 2020, Appellants filed a "Response to Respondents' Answers (R. Doc. 83) including three new affidavits, Exhibits U, V and W (R. Docs. 83-86). An Affidavit from RUSD Attorney Matthew O'Neill was filed on June 17, 2020 (R. Doc. 88), but had been furnished to the various parties previously. Finally, in the Court's June 22, 2020 Order (R. Doc. 91), each party was given the opportunity to submit brief arguments in writing and the Respondents were given the opportunity to file affidavits relating to new allegations made by Appellants in their June 17, 2020 Response with Affidavits. The Court notes that RUSD filed an Affidavit by its attorney, Matthew O'Neill, and an Affidavit of Stacy Tapp relating to allegations of "tampering" implied in Appellants' filings on June 17, 2020. On June 26, 2020, Appellants filed "Petitioners’ Repeated Demand to Examine and Recount Ballots" (R. Doc. 96). Additional briefs were submitted regarding these two issues. The Court considers all filings and additional briefings. Considering the 56 paragraphs in the Complaint, the Court finds as follows: Allegations 1 through 3 identify the three individual appellants and their right to appeal, herein. Those allegations are not contested. Allegation 4 identifies the referendum as seeking $1 billion. The actual language of the referendum breaks down the referendum question to varying
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amounts over a 30-year period. While the Court understands the language persons would like to put on this issue on both sides, the fact is that this proceeding is an appeal of a recount determination. The votes in this matter have been counted twice. Issues in this court proceeding are inconsistent with politics. This Court has no opinion on the merits of the referendum or whether it should pass or fail. The sole purpose here is to ensure that the voice of the voters as expressed in a majority vote is honored and given the effect of law. Recognizing this, the actual referendum language as expressed in RUSD's Answer is what the Court finds to be fact. Paragraphs 5 through 15 of the Complaint contain general allegations concerning some facility and jurisdictional issues that are generally admitted. With regard to vote totals in allegations 5 and 6, those totals reflect recount numbers. Election totals from the original election count are stated previously in this decision. Both the original count and the recount indicated that the referendum passed by a total of 5 votes. Allegation 7 in the Complaint discusses "undervotes." The Court accepts the general definition contained within the Complaint as fact. An undervote occurs when a voter submits a ballot containing multiple issues or elective offices, but for unknown reasons decides not to vote with respect to one of the issues or offices on the ballot. Allegations 8 through 13 concern various jurisdictional and procedural matters including attendance by Appellants. These allegations, including references to rules established by the BOC pursuant to COVID-19 considerations, are generally admitted and found by the Court to be fact.
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Allegation 14 of the Complaint alleges a claim of denial to the Appellants of a meaningful opportunity to view the proceedings and challenge actions by the BOC. In particular, it alleges that ten tables with tabulators were conducting recount activities at the same time which limited viewing of the observers. RUSD admits that all ten tables worked on recount matters "at all times." From the entirety of the record, including the numerous objections and requests to view materials from the Appellants and their representatives, the Court finds that the procedure utilized by the BOC did not deny the right of anyone to view, request or challenge any action taken during the recount. The "tabulators" were tasked with what were, effectively, ministerial duties. Their duties included "marking" or identifying questionable ballots for BOC determination and physically counting the ballots. There are no facts before the Court indicating that the general procedures utilized by the BOC during the recount were objected to at the time of the recount. Wis. Stats. Sec. 9.01(8)(c) provides that, if not objected to "during the recount" the party objecting to the recount procedure waives the objection. Appellants were present during the recount, observed the proceedings they now complain of and failed to object to the procedure during the recount. Appellants have waived the objection. Had Appellants not waived this objection, the procedure still passes muster. (See Affidavit of Matthew O'Neill (R. Doc. 88), Affidavit of Christopher M. Meuler (R. Doc. 80, p. 29 - Recount Checklist provided to tabulators), Affidavit of Melissa Abel (R. Doc. 74, p. 1 and 2), Affidavit of
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Tammy Leverich (R. Doc. 75, p. 1 and 2), and Affidavit of Elizabeth Tobias (R. Doc. 76, p. 1 - 4)). The Court finds that the recount procedure utilized was open and fair and did not deny any observer the meaningful, statutory or constitutional right to observe, object or otherwise participate in the recount. Allegation 15 in the Complaint contains a statement of law and is accurate. As to allegations 16, 17, 20, 22, 23, 24, 25, in the Complaint, the Court finds no basis for the assertions made. (See references to record documents in 14 above, including detailed notes attached to BOC affidavits.) Again, recount reliable records indicate no objection was made during the recount to any tabulator. Tabulators are a statutory creation. (See Wis. Stats. Sec. 9.01(5)(b )). They are to perform their duties under the direction of the BOC. The BOC, here, administered oaths to each tabulator, and trained tabulators using State Election Commission materials. Various affidavits from the BOC and counsel indicate, with specificity, the procedures utilized. The voluminous notes and minutes prepared contemporaneously and furnished to the Election Commission, opposing parties and the Court support a finding that the BOC and tabulators acted according to law. Against those substantial established facts, Appellants submit generalized statements and implications that "something is amiss." The Court finds, based upon all of the records, filings and proceedings, herein, that there is no merit to an insinuation or claim that any BOC member or tabulator was biased or did anything improper. This finding applies to the hiring and the performance of election-related duties during this recount. (See affidavit references at allegation 14 above.)
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The next category of challenge to the recount has to do with the social distancing rules in effect, claimed violation of those rules and specifically alleged "tampering" with election materials (allegations 18 and 21). Appellants argue that one individual, Stacy Tapp, violated the social distancing protocol and was handling election-related materials. In support of this allegation, affidavits and photographs in Exhibits U and V are offered by Appellants. The Court will note that these constitute specific allegations as the statute and the Court’s Scheduling Order require. The Court will also observe that specific allegations under the statute (Wis. Stats. Sec. 9.01(7)) and the Court’s Scheduling Order (R. Doc. 38) were to be in the Complaint filed by Appellants on May 28, 2017 (R. Doc. 71). Wis. Stats. Sec. 9.01(8) also provides that: "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 offer evidence before the court..." The exception to the above waiver provision is when the objection or evidence of it was unavailable to the party while exercising "due diligence." The affiants in Appellants' Exhibits U and V took photographs which is evidence that they suspected some sort of violation. By their nature the photographs and alleged information have been in the possession of Appellants since the day of the recount depicted in the photo. Yet, no record, note or summary reflect an objection being made. The Court finds that Appellants have waived these objections. No evidence presented suggests the possession or tampering of election materials by unauthorized persons. While one could argue that the 6-foot "social distancing" boundary was violated by Stacy Tapp and another individual, a conclusion, factually, that the recount process was somehow
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tainted does not rise above mere "suspicion," as stated earlier, herein. Another observation of the Court is that the recount statute in Wisconsin provides: "Within the time ordered by the court, the parties to the appeal shall provide the court with any other information ordered by the court. At the time and place ordered by the court, the matter shall be summarily heard and determined..." (Wis. Stats. Sec. 9.01(7), emphasis supplied). The same statute reads: "Those provisions of chs. 801 to 806 which are inconsistent with a prompt and expeditious hearing do not apply to appeals under this section" (emphasis supplied). Again, the Court's May 14, 2020 Scheduling Order (signed May 19, 2020, R. Doc. 38, p. 2) required Appellants to: "1. On or before May 28, 2020, appellants shall file: (a) a complaint enumerating with specificity ever}' alleged irregularity, defect, mistake or fraud they allege was committed during the recount, including a statement whether the alleged issues involve procedure, interpretations of law or findings of fact; and (b) a brief setting forth the legal and evidentiary support for each identified irregularity, defect, mistake or fraud alleged." The Order also allowed appellants until June 15, 2020, to file: "3. ...a short reply brief responding to the briefs filed by respondents" (R. Doc. 38, p. 2, emphasis supplied). Appellants on June 17, 2020, filed their "Response to Respondent's Answers" document which contained numerous new detailed factual allegations (R. Doc. 83). This filing, pursuant to the Court’s earlier Order allowing the filing of a "short reply brief," contained no statutory or case citations. Respondents also filed on June 17, 2020, three new exhibits (Exhibits U, V and W) containing new
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factual allegations, including photographs. None of these filings were compliant with the Court's Scheduling Order. The specificity of every claimed irregularity, defect, mistake or fraud due on May 28, 2020, so that Respondents could address them in their answers and briefs, was submitted in a document the Court had ordered to be a "short reply brief." At the Status Conference on June 22, 2020, the Court addressed its concern over the nature and timeliness of the filings. The Appellants advised the Court of an extension that was granted to file the reply brief to June 17, 2020, due to a personal matter, and the Court apologized for any misunderstanding. At the June 22, 2020 Status Conference the Court allowed each party, Appellants and Respondents, the opportunity to file a brief (2 page) "document" summarizing their position regarding the appeal. Appellants, RUSD and Chelsea Powell, et al., each timely filed 2-page documents. The Respondents were also allowed to file affidavits responding to the "new" factual allegations and affidavits (Exhibits U, V and W, R. Docs. 84-86) filed by Appellants on June 17, 2020. Respondent RUSD, pursuant to that order, filed two affidavits on June 26, 2020 (R. Docs. 94 and 95). On June 26, 2020, an individual named "James C. McClain" (hereinafter McClain) filed a "Notice and Motion to Intervene or in the Alternative for Recusal and Vacating Order (R. Doc. 92). That filing defies logic in that it appears to argue that the Court is somehow biased, but the "or in the alternative" language suggests that if McClain is allowed to intervene, the "biased" Court can remain. The McClain "filing" has set off a new "round" of filings, including file documents 98 and 99, filed by various Respondents on June 26, 2020. McClain
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filed documents 103 and 104, including his "Reply Brief' and "Motion to Strike" on July 9, 2020. McClain's Motions and alternative Motions to Intervene for Court Recusal and to Strike are ordered summarily denied. With that decision, McClain's Motion to Strike becomes moot and is denied. Regarding McClain's Motion to Intervene in this proceeding, the Court considers the expressed legislative intent as to the Court resolving recount appeals under Wis. Stats. Sec. 9.01(7)(b) promptly and expeditiously. The Court further observes and finds that McClain has failed to demonstrate any of the four considerations enumerated in Helgeland v. Wisconsin Municipalities, 307 Wis. 2d 1, 745 N.W.2d 1 (2008), except, perhaps, that he claims an interest sufficiently related to the subject matter of this action. Regarding McClain's claim of the Court being biased, the Court prefers not to dignify his claim with a response. However, his allegations, including inaccurate characterizations, need some clarification. This Court served previously as a member of the Racine Unified School District Board of Education, including several committee assignments and volunteer organizations. The Court's service occurred from 1997 until April of 2000. More than 20 years has passed since the Court's service in any capacity with RUSD. Regarding McClain's providing the Court with provisions of the Judicial Code of Ethics, the Court appreciates his commitment to ethical behavior. Finally, with regard to McClain's comments on the June 22, 2020 Status Conference, an accurate transcript of that hearing is available. The Court refers to a court exhibit, which the Court directed be scanned into this record (R. Doc. 106). Prior to the June 22, 2020 Status Conference, the Court had not been furnished
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with that document, nor had it been discussed with anyone. McClain makes certain claims regarding the Court's alleged bias and cites with specificity the Court's lack of knowledge regarding a filing date extension. The extension sought was for the filing of Appellants' "short reply brief' originally due to be filed (see Scheduling Order, R. Doc. 38) on June 15, 2020. As is evident from the request for extension email, it was directed to the Court's clerk, Jennifer Bell, copied to other counsel, but not copied to the Court. The June 15, 2020 email to the court clerk was not efiled into the record until after the Court became aware of it (R. Doc. 106). As stated earlier, Appellants' filing on June 17, 2020, while timely filed, struggles to meet the definition of a "short reply brief." Nonetheless, the Court has considered it in coming to its decision. The Court notes that document 106 is an email from Attorney Maistelman for Appellants, requesting a filing extension due to a personal matter. Clerks in the Court's Branch are given authority in ministerial and scheduling matters where parties have a scheduling stipulation. When the Court did hear of the 2-day brief extension granted by its clerk, it responded appropriately, as reflected in the transcript. The overall claim of bias by McClain is unfounded. As indicated earlier, the Court has no bias or opinion on the wisdom, or lack thereof, concerning the referendum question. The Court's function is to review the proceedings, find facts properly established and apply provisions of Wisconsin's election law to those facts. This Court has no concerns over its ability to perform its duties fairly and impartially. Paragraphs 39 through 50 of the Complaint allege a consistent pattern of
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the miscounting of votes within various wards during the recount. In particular, each of those claims alleges that where "draw down" votes reduced vote totals, the BOC was unable to add or subti'act accurately. Appellants misunderstand the basic nature of a recount. The obvious purpose of a recount is to "count over" or "count again" vote totals that were originally reported and certified as the election results. In this case a "hand recount" of all wards occurred. An actual recount audits the entire counting process. The BOC was required to and did complete that process. The process includes reviewing the poll lists, an examination of the ballots cast in person, a review of absentee ballot envelopes and re-tabulating or recounting all validly cast ballots (Wis. Stats. Sec. 9.01(l)(b)(lX12)). A "draw down" of ballots occurs when, after following several mandated steps, "the number of ballots still exceeds the number of voters..." (Wis. Stats. Sec. 9.01(l)(b)(4)(d)). The Election Commission Manual contains the procedure and provides forms to the BOC to follow the statutory procedure (R. Doc. 80). The "draw down" process involves the BOC randomly drawing from a bag of ballots so that the number of ballots equals the number of votes. For example, in the City of Racine the draw downs across all wards amounted to vote totals reducing the "Yes" votes on the referendum question by 13 votes and reducing the "No" votes on that question by 6 votes. The total reduction of votes in the City of Racine during the referendum recount was 19 votes, 13 of which were "Yes" votes. Persons or organizations favoring passage of the referendum saw a reduction of their original "margin of victory" by 7 votes in the City of Racine
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when compared to the "No" votes (R. Doc. 76, p. 9 - 10). This fact argues persuasively for a lack of bias on the part of either the BOC or the tabulators. What the Appellants argue for in paragraphs 39 - 50 is for the "draw down" and "add-ins" votes to simply be added or subtracted from the original vote totals (pre-recount) in order to arrive at the correct vote totals during the recount. Simple math, they argue. The problem with that simple arithmetic approach is that it ignores the fact that a recount may change original vote totals from which the "add-ins" or "draw downs" are added to or subtracted from. A review of the records, procedure and facts, herein, causes the Court to find that the procedure utilized by the BOC in this recount was proper and provided an accurate result. Allegations or paragraphs 26, 27, 30, 31, 32, 33, 34, 35, 36, 37, 51, 52, 54, 55 and 56 of the Complaint either need no court decision, are overly broad and general without the specificity required by Wis. Stats. Sec. 9.01(7), or were waived under Wis. Stats. Sec. 9.01(8). Allegation or paragraph 53 of the Complaint consists of a decision made by the BOC regarding 1 ballot, on which the voter filled in all proper areas for other issues or candidates on the ballot, but filled in the circle of the word "No." The BOC exercised their discretion in deciding voter intent and rejected the vote. The BOC's decision under Wis. Stats. Sec. 9.01(8) constitutes a determination of voter intent. The Court finds that decision to be within the purview of the BOC, finds its decision supported by substantial evidence and affirms its action. Allegations or paragraphs 38, 50 and 51 are various claims or criticisms of the BOC decision-making regarding which ballots to review, how to conduct the review, and the decisions made during the recount.
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Allegations in paragraphs 28 and 38 of the Complaint are upon information and belief and generally are non-specific. Again, the recount statute and the Court's Scheduling Order required specificity. Considering this matter upon its merits, the Court determines that based upon a timely objection made by Appellants, the BOC changed their procedure regarding its application of Wis. Stats. Sec. 6.87(6d). Wis. Stats. Sec. 6.87(6d) applies to absent voting procedure and provides: "If a certificate is missing the address of a witness, the ballot may not be counted." During the instant recount on April 18, 2020, and the first half of April 20, 2020, the BOC routinely approved absentee ballot envelopes that were missing a handwritten address for the witness. The counting of these votes occurred under circumstances in which the BOC confirmed that the witness and voter resided at the same address. Following objections of two Appellants, the BOC, through counsel, contacted the Wisconsin Elections Commission (WEC) to seek its opinion. Following receipt of the WEC opinion that counting ballots missing an address of a witness was not allowed under Wis. Stats. Sec. 6.87(6d), the BOC not only revised its policy on acceptance of those ballots moving forward, but also went back and recounted all previously recounted wards. (Affidavit of Matthew O'Neill, R. Doc. 88, p. 1 - 4, and p. 5, Wisconsin Elections Commission letter.) In other words, Appellants were able to observe the proceedings, enter objections, have those objections considered by the BOC and have their objections granted. Paragraph 50 of the Complaint describes a specific complaint of the process or procedure the BOC utilized in situations where "lost ballots" occurred. In Racine City Ward 11,12 lost ballots were recovered by the BOC utilizing digital
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images of the ballots from the voting machine. It was a process utilized due to the number of lost ballots constituting a "highly unusual irregularity." Appellants do not object to that process. What Appellants do object to is the BOC not using that same procedure in two other City of Racine wards that each contained 1 missing ballot. Appellants object to the inconsistency of the BOC in not using digital imaging in those two wards. While consistency on issues is a consideration, the recount statute 9.01 Wis. Stats, does not require the viewing of digital images for all missing ballots. The BOC exercised their discretion in viewing digital images of voter machine ballots in the case of a "highly unusual irregularity (12 lost ballots)," The BOC decided not to view the images in two other instances involving single vote losses. The Court finds this action to be a reasonable exercise of the BOC interpretation or decision regarding a "process" in the recount. The Court does not find that the BOC lacked lawful authority to make those decisions and, accordingly, affirms their decision. Paragraphs 19 and 29 of the Complaint allege inaccessibility of election materials when requested. In fact, the allegations are that the requests made were denied by the BOC. The BOC does not factually dispute the denials, indicating that all requests timely made for viewing election materials were granted. In other words, the BOC routinely granted requests to view election materials that were made contemporaneous with those materials being considered (R. Doc. 76, p. 4). This process or procedure was adopted by the BOC in a recount involving approximately 34,000 votes, related envelopes, and other election materials. The process or procedure of allowing viewing (large-screen TV) and allowing access (wheeled carts), as long as requests were made at the time the
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specific election document was being considered, is found to be fair and reasonable. In paragraph 19, Appellants allege a request for "all of the opened envelopes that once contained ballots." In paragraph 29 Appellants allege a request for "the undervote ballots and opened envelopes that once contained a ballot..." These requests involve hundreds of documents from at least 52 separate wards. The BOC's decision to manage through process or procedure the granting or denial of access to election materials was a reasonable exercise of their authority and not contrary to law. Allowing access to "all of the opened envelopes that once contained ballots" arguably would require election officials "digging" through bags of ballots from 50+ wards, whether those wards had already been "recounted" or were awaiting recount. The BOC process or procedure decision to the rule indicated is affirmed (R. Doc. 76, p. 1 - 156). CONCLUSION For reasons stated in this Decision, the vote tally as determined by the Racine Unified School District Board of Canvassers in the School Funding Referendum Recount of the April 7, 2020 election determining that 16,715 "Yes" votes were cast and that 16,710 "No" votes were cast is hereby affirmed. The Court finds that a full, fair, transparent and accurate recount occurred. Accordingly, the Court affirms the Recount Vote Total. The Court dismisses the Complaint of the Appellants upon the merits without costs. The "Motion to Intervene or in the Alternative for Recusal and Vacating Order" and the "Motion to Strike" filed by James C. McClain are found to be
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without merit and are dismissed upon their merits without costs. So ordered this 10th day of July 2020.
Honorable Michael J. Piontek Racine County Circuit Court Branch 5 "T
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