April 25, 2022 – In a unanimous decision, the Wisconsin Supreme Court has upheld the results of a recount that resulted in a five-vote margin of victory for a schools referendum in Racine in 2020.
In Sewell v. Racine Unified School District Board of Canvassers, 2022 WI 18 (April 12, 2022), the supreme court held that a statute that allows for ballots to be opened in circuit court when a recount is challenged did not apply to a lawsuit alleging errors by a board of canvassers.
Billion Dollar Ballot Measure
On April 7, 2020, voters in the Racine Unified School District voted on a referendum that would allow the district to exceed property tax revenue limits by $1 billion over 30 years, with the additional tax revenue to be used for facilities projects.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
According to the canvass conducted on April 13, 2020, voters approved the referendum by a margin of five votes, 16,748 to 16,743.
Five-vote Margin Stands
James Sewell petitioned the Racine County Board of Canvassers for a recount pursuant to Wis. Stat. section 9.01(1). The board conducted the recount between April 18 and April 24.
The board recounted by hand each of the 34,000 ballots in open session using large projection screens to facilitate the close inspection of ballots upon request.
Additionally, when a tally of one of the city’s 96 wards was contested and the procedure that had been used to previously tally other wards was changed, the wards tallied under the previous procedure were re-tallied.
After the recount, the ‘Yes’ votes totaled 16,715 and the ‘No’ votes totaled 16,710.
The number of votes cast was reduced because when the number of ballots cast in a ward was greater than the number of voters listed on the ward’s poll list, the board threw out absentee ballots until the number of votes cast matched the number of voters on the poll list.
Demand to Open Ballots
On May 1, 2020, Sewell appealed the results of the recount to the Racine County Circuit Court. He based his appeal on Wis. Stat. sections 9.01(6) and 9.01(7).
As part of his appeal, Sewell filed a demand to examine and recount the ballots. He claimed the right to have the ballots opened in the circuit court under Wis. Stat. section 7.54, which states:
“In all contested election cases, the contesting parties have the right to have the ballots opened and to have all the errors of the inspectors, either in counting or refusing to count any ballot, corrected by the board of canvassers or court deciding the contest. The ballots and related materials may be opened only in open session of the board of canvassers or in open court and in the presence of the official having custody of them.”
The circuit court affirmed the recount. Sewell appealed.
The Wisconsin Court of Appeals affirmed the circuit court. In its decision, the court of appeals explained that the ballots had already been opened during the board’s recount and held that the board’s procedure was proper and had yielded an accurate count.
Misunderstanding About Recounts
In her opinion, Justice Patience Roggensack explained that Sewell’s amended complaint showed that he didn’t understand that a recount may change the vote total because it constitutes an audit of the entire election process.
Roggensack also pointed out that Sewell hadn’t identified any specific errors by the board of canvassers.
Sewell argued that only ballots with errors would be recounted. Additionally, he argued that opening the ballots in court would not thwart voter intent because only ballots exhibiting objective errors would be corrected.
Sewell also relied upon a statement by the supreme court in State ex rel. Graves v. Wiegand, 212 Wis. 286, 249 N.W. 537 (1933) that the form in which ballots were originally cast are the best evidence of the will of the voters.
Statue Improperly Raised
Justice Roggensack pointed out that in the complaint he filed in circuit court, Sewell claimed that it was the board of canvassers, rather than the inspectors, that had made errors during the recount.
That placed Sewell’s claim beyond the boundaries of section 7.54, Roggensack wrote.
“Sewell’s categorical error renders his challenge improperly raised in this instance.”
However, even if Sewell had properly raised section 7.54, Justice Roggensack explained, that section explicitly allows a circuit court or board of canvassers to open the ballots.
“Under an inclusive interpretation, the statute is satisfied if both the board of canvassers and the circuit court open the ballots, and it is satisfied if only one entity opens the ballots,” Justice Roggensack wrote. “Here, the Board of Canvassers opened the ballots.”
Statute Doesn’t Apply
The circuit court conducted a comprehensive review of Sewell’s factual and legal challenges, Justice Roggensack explained.
As for section 7.54, “we simply note that [the statue] does not apply when an appeal of the result of a recount of the board of canvassers is before an appellate court,” Roggensack wrote. “Accordingly, we affirm the decision of the court of appeals.”
