March 26, 2025 – Three ballots lacking two initials from election officials, which if rejected would have changed the winner, remained effective under current election statutes, the Wisconsin Court of Appeals District IV decided in Gonfiantini v. Rock County Board of Canvassers (Board), No. 2024AP1233 (March 6, 2025), recommended for publication.

Not only did state statutes, as amended through the past 60 years, show that the error alone doesn’t justify rejecting the ballots, the court held the candidate’s appeal frivolous, charging the losing party’s attorney for the costs of the appeal.

Lost by a Few Votes

Tammy Gonfiantini lost 343-346 against Regenia Stevens in the April 2024 election for a seat on the Rock County Board of Supervisors. In the recount that Gonfiantini requested, she challenged several ballots.

Three ballots that Gonfiantini challenged lacked endorsement initials from two election officials. Two ballots were cast absentee, and one was cast at a polling place.

Gonfiantini did not allege the ballots were cast fraudulently, according to the recount minutes referenced by the court of appeals.

The Board rejected the challenge because based on state elections commission guidance, “[b]allots are not drawn down due to a poll worker [or clerk] error.” Stevens officially won the election by two votes.

Gonfiantini filed a “complaint and notice of appeal of recount” under Wis. Stat. section 9.01(6) in Rock County Circuit Court, including as party defendants, the Board, Stevens, and Rock County Clerk Lisa Tollefson.

The Board, joined by Stevens, filed a motion to dismiss for failure to state a claim. The circuit court granted the motion, as described by the court of appeals, “[i]n a thorough oral ruling.”

After Gonfiantini appealed the circuit court decision, Stevens filed a motion to impose sanctions for a frivolous appeal.

Five Elections Statutes

In the opinion written by Judge Rachel A. Graham with Judges Brian W. Blanchard and Jennifer E. Nashold joining, current election statutes determined that the Board may not reject the three ballots, although the ballots were noncompliant in one respect.

Five statutes governed the analysis, the court of appeals decision explained. Wis. Stat. section 7.37(4) requires that “in-person ballots shall be initialed by two elections inspectors.”

If an elector notices the error, Wis. Stat. section 6.80(2)(d) requires the elector “to return the ballot to the inspectors to be properly endorsed” but offers no consequence after that point.

More importantly, Wis. Stat. section 6.88(3)(b) lists the only reasons to reject an absentee ballot. A missing endorsement is not among those reasons, the court of appeals said.

When the Board canvasses votes, Wis. Stat. section 7.51 allows a ballot to be set aside for a lack of endorsement but only “to reconcile the number of ballots with the number of electors that cast ballots in the election” when more ballots are returned than voters.

Finally, during a recount, according to Wis. Stat. section 9.01(1)(b), “unendorsed ballots may be set aside … only if the number of ballots exceeds the number of voters, and only after [the Board takes] other measures to reconcile the numbers of electors and ballots,” the court summarized.

During a recount, “a candidate ‘may object to the counting of any ballot,’” but “the lack of an endorsement, alone,” isn’t a basis to reject the ballot, the decision explained.

According to the court of appeals, Gonfiantini failed to “meaningfully address any of these statutory provisions.”

Gonfiantini’s Statutory Argument

Under Gonfiantini’s analysis as described by the court of appeals, Gonfiantini cites Wis. Stat. section 6.84, which establishes “legislative policy” for absentee voting “to prevent the potential for fraud and abuse” by establishing mandatory provisions for absentee voting.

The court of appeals noted that endorsement requirements are not among those mandatory provisions.

In addition, Wis. Stat. section 6.93, Gonfiantini cites because “[t]he vote of any absentee elector may be challenged for cause.”

“This statute provides no assistance to Gonfiantini,” the court of appeals said, “because, as we have explained, there is no statute that allows or requires any ballot, whether in-person or absentee, to be rejected solely on the ground that it was not endorsed by an inspector or clerk.”

Once upon a time, such an error could justify rejecting a ballot, the court of appeals said. Wis. Stat. section 11.62 (1965-66) explicitly required ballot rejection, and that statute’s replacement, Wis. Stat. section 6.88(3)(b) (1967-68), continued that requirement.

The Wisconsin Legislature eliminated that reason, and only that reason, in a 1970 amendment to the statute, the court of appeals said.

A parenthetical in Logic v. City of South Milwaukee Board of Canvassers, 2004 WI App 219, Gonfiantini cited as further support. The parenthetical summarized Gradinjan v. Boho, 29 Wis. 2d 674 (1966).

The Logic court summarized Gradinjan as “requir[ing] that absentee ballots bear either the name or the initials of the town clerk … to prevent possible fraud; thus, absentee ballots without either the town clerk’s name or initials may not be counted.”

But referencing earlier paragraphs of its decision, the court of appeals explained, “the [L]egislature amended Wisconsin’s election laws after Gradinjan was decided” in a way that eliminated the requirement.

The court of appeals considered Gonfiantini’s other arguments, which focused on the sufficiency of the Board’s evidence and the failure of the circuit court to grant discovery.

But, the decision explained Gonfiantini bore the burden to identify ballots for rejection before the Board and did not ask the circuit court for “discovery to support her assertions about fraud.”

In summary, the court of appeals said unambiguous statutory language mandated its result to affirm the Board’s decision to count the three ballots.

Because Wisconsin law provided no reasonable argument in support of the appeal, the court of appeals considered the appeal frivolous and sanctioned Gonfiantini’s attorney for costs, fees, and actual reasonable attorney fees.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.