CONCLUSION

determined properly that the ballot expressed a certain intent held by the voter, the very kind of subjective determination where the canvassers ought to be accorded the most deference. Id. Petitioners here contend there are

limitations to the reach of deference that Wis. Stat. § 9.01(8) affords the canvassers and that it does not work to abrogate Wiegand or Wis. Stat. § 7.54 wholesale. This case does not contest the canvassers with

respect to their factual findings regarding the intent of any given ballots. Here, Petitioners are challenging the counting of the ballots. That is in fact a further novelty of this case which commends it for review. Petitioners

interpret the deference accorded a board of canvassers under Wis. Stat. § 9.01(8) as not extended to counting the ballots –a ministerial function that is carried out

separately from making findings of fact to determine the intent of a voter. This distinction is crucial and explains why the legislature has continued to re-enact the Contested Elections statute.

Furthermore, the general abrogation suffered by Wiegand may not actually extend to referenda, which this case concerns –a further novelty. Wis. Stat. § 9.01(11) sets forth that Wis. Stat. § 9.01 “constitutes the exclusive judicial remedy for testing the right to hold an elective

20

office. . . .” Of course, this contest concerns a referendum and is clearly not concerned with a contest for elective office. Policy considerations surrounding elections for office differ in a host of ways from referenda, among them is balancing the accuracy of the election results with finality of the contest to ensure continuity of our democratic government. See State ex rel. Shroble v. Prusener, 185 Wis.2d 102, 116, 517 N.W.2d 169, 174. Thus, this court is further called upon to address whether contested elections involving referenda are limited to Wis. Stat. § 9.01 as their “exclusive judicial remedy”. If Petitioners prevail, this will have been the first time since 1983 Wis. Act 183 that the Court determines that a function of the canvassers is not extended judicial deference but holds weight more akin to “provisionally preferred testimony.” State ex rel. Graves v. Wiegand, 249 N.W. 540.

C. Statewide Impact.

There is no question that resolution of this case by the Supreme Court would have a statewide impact. Critically, the only issue is the construction of state statutes. Nothing in this matter depended on a county ordinance, local rule, or protocol adopted by the Board of

21

Canvassers. There is therefore no geographical limit to the reign of any decision that would be made. There are 72 counties in the State of Wisconsin, and hundreds of towns, villages, cities, water districts, sewer districts, school districts, judicial and Congressional districts and so on, each of which holds elections. A general election law like section 7.54 affects all of them, and a decision on this section would thus have great statewide impact.

D. Question of Law Likely to Recur.

There are at most a handful of facts that the court

may or may not rely upon in deciding this matter: the type of election, the thin margin of victory, and the nature of the errors allegedly made by the canvassers. Even if these facts are determined to play a role in the outcome, the issues brought forth are by no means fact-intensive. Those few facts that may come into play are not contested. Fundamentally, this case is about the judicial construction of the Contested Elections statute, section 7.54 –a pure issue of law.

Election contests and close elections are nothing new. The Wiegand case of 1933 involved an election decided by 7 votes: Wiegand had 4,952 votes; Graves had

22

4,945. See also, Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2004 WI 6, 268 Wis. 2d 335, 677 N.W.2d 599. Not only are these types of disputes historically common, but recent experience suggests a polity that is becoming increasingly polarized, with parties more and more willing to contest close elections at any cost. Furthermore, the Court of Appeals decided the matter through a summary disposition, which holds no precedential value. While this may make it seem less important that the Court of Appeals decision be addressed here, the lack of a precedent argues in favor of review, because it means that the issues in this case remain

susceptible to being raised again in future election contests if not settled now.

II. REVIEW IS PROPER UNDER WIS. STAT. § 809.62(1r)(d).

As evident from the discussion had in Section I.B.,

above, the Court of Appeal’s decision conflicts with Wiegand. In challenges to an election determination where the construction or counting of the ballots is involved, Wiegand mandates that a review of the ballots be performed.

23

Specifically, the Wiegand Court stated that “The result obtained by a careful recount of the ballots prevails over tabulations of the inspectors of election and canvassing boards.” Id. The next sentence in the decision makes it clear that this Court was calling upon the reviewing in a contested election to make such corrections. Id. at 540 citing State ex rel Schuetz v. Luy, 103 Wis. 524, 528 (“In a judicial controversy. . .over the result of an election, it is the duty of the court to rectify [omissions or mistakes].”); See also, Attorney General v. Barstow, 4 Wis. 567. To the Wiegand court, the Contested Elections statute meant what it said: parties contesting an election had a “right” to have the ballots opened in court and to have the court correct errors.

Admittedly, the primary issue in Wiegand was not the interpretation of that law. However, this Court based its decision upon a complete analysis of Wis. Stat. § 6.60 (1931-32), which included the original version of the “Contested elections” law:

“In all cases of contested elections the parties contesting the same shall have the right to have said ballots opened, and to have all errors of the inspectors in counting or refusing to count any ballot, corrected by the court or body trying such contest, but such ballots shall be opened only in open court or

24

in open session of such body and in the presence of the officer having the custody thereof.”

State ex rel. Graves v. Wiegand, 249 N.W. 539 citing Wis. Stat. § 6.60(4) (1931-32) (emphasis added). The Wiegand Court relied on the plain meaning of the statute. It did not turn the meaning of “right” on its head, as did the Court of Appeals in this case. To this Court in 1933, a “right” was something required to be respected and honored; a right established by the legislature was not a mere object of judicial discretion.

25

Conclusion

WHEREFORE, Petitioners respectfully request this Court grants them review.

Respectfully submitted,

SIDDIQUE LAW, LLC

___________________________

M. Samir Siddique

State Bar No. 1121714

Gary E. Grass

State Bar No. 1035738

Vincent J. Bobot

State Bar No. 1020732

Siddique Law, LLC

M. Samir Siddique, Esq. 6060 N 77th Street Milwaukee, WI 53218 attorneysiddique@gmail.com (414) 231-1635

26

STATE OF WISCONSIN I N S U P R E M E C O U R T

***************** No. 2020-AP-1271-AC

JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

FORM AND LENGTH CERTIFICATION

I certify that this brief meets the form and length requirements of Rule 809.19(8)(b) and (d) in that it is: proportional serif font, minimum printing resolution of 300 dots per inch, 13-point body text, 13 points for quotes, and 12 points for footnotes, leading of minimum 2 points and maximum of 60 characters per line. The length of the brief is 4,269 words as calculated by the word count function in Microsoft Word –Office 365.

Dated this Sixteenth Day of April, 2021.

______________________________

M. SAMIR SIDDIQUE

STATE OF WISCONSIN I N S U P R E M E C O U R T

***************** No. 2020-AP-1271-AC

JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

CERTIFICATION OF ELECTRONIC FILING

I hereby certify that I have submitted an electronic copy of this brief which complies with the requirements of sections 809.19(12) and 809.62(4). I further certify that this electronic brief is identical in content and format to the printed form of the brief filed as of this date. A copy of this certificate has been served with the paper copies of this brief filed with this Court and served on all opposing parties.

Dated this Sixteenth Day of April, 2021.

______________________________

M. SAMIR SIDDIQUE

b

STATE OF WISCONSIN I N S U P R E M E C O U R T

* * * * * * * * * No. 2020-AP-1271-AC

JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

APPENDIX CERTIFICATION

I hereby certify that filed with this petition, either as a separate document or as a part of this petition, is an appendix that complies with Wis. Stat. § 809.62(2)(f) and that contains (1) the decision and opinion of the court of appeals; (2) the judgments, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition; and (3) any other portions of the record necessary for an understanding of the petition. I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

Dated this Sixteenth Day of April, 2021.

______________________________

M. SAMIR SIDDIQUE

c

STATE OF WISCONSIN I N S U P R E M E C O U R T

***************** No. 2020-AP-1271-AC

JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

CERTIFICATION OF COMPLIANCE W I T H S E C T I O N 8 0 9 . 1 9 ( 1 3 )

I hereby certify that I have submitted an electronic copy of the appendix, which complies with the requirements of Wis. Stat. § 809.19(13). I further certify that: The electronic appendix is identical in content to the printed form of the appendix filed as of this date. A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.

Dated this Sixteenth Day of April, 2021.

______________________________

M. SAMIR SIDDIQUE

d

STATE OF WISCONSIN I N S U P R E M E C O U R T

***************** No. 2020-AP-1271-AC

JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

APPENDIX TO PETITION

Table of Contents

Document Page

Court of Appeals Decision.........................................101-104 Circuit Court Order .........................................................105 Circuit Court Order and Decision ...........................106-130 BOC Recount Report ................................................. 131-133 BOC Recount Minutes ...............................................134-135 BOC Recount Notes .................................................. 136-154 BOC Breakdown of Recount Results........................ 155-158 BOC Individual Reporting Unit Tabulations ..........159-189 Graph Illustrating Petitioners’ Challenge...................... 190

e