By Brendan Fischer on April 26, 2011

The recount in Wisconsin's Supreme Court race begins on Wednesday, April 27. Why was the recount called, how will it be carried out, and how can individuals get involved?

The Why

A recount was expected after the final, unofficial vote count showed Kloppenburg winning by 204 votes. Governor Scott Walker implied as much when he told the Associated Press "[t]he overriding principle has got to be that every vote that was legally cast in Wisconsin needs to be counted."

The landscape shifted two days after the election, when Waukesha County Clerk Kathy Nickolaus, a Republican activist in the state's most conservative county, announced she inadvertently missed 14,000 votes, giving the conservative Justice Prosser a lead of more than 7,500 votes. This eleventh-hour announcement by someone who once worked for Prosser led many to question the integrity of Wisconsin's elections, and Congresswoman Tammy Baldwin asked the U.S. Department of Justice to investigate.

The election was marked by other problems. The director of the state elections board, Kevin Kennedy, significantly miscalculated public interest in the election, predicting a turnout of 20 percent when the actual turnout topped 33 percent statewide, and in some areas was as high as 54 percent. Wards around the state ran out of ballots and resorted to using photocopies or requiring all voters to use a single touch-screen machine normally reserved for persons with disabilities. While no voters were turned away, long lines may have deterred some potential voters, and photocopied or otherwise improvised ballots can give rise to challenges.

Even if Prosser's lead will be difficult to overcome, Kloppenburg said she called for the recount because:

Wisconsin residents must have full confidence that these election results are legitimate and that this election was fair. A recount will establish where votes were incorrectly tabulated and expose if irregularities compromised the electoral process. A recount may change the outcome of this election or it may confirm it. But when it is done, a recount will have shone necessary and appropriate light on an election which, right now, seems to many people, suspect.

Additionally, Kloppenburg's campaign asked the state elections board to appoint an independent investigator to look into potential misconduct surrounding the uncounted Waukesha County votes, citing County Clerk Nickolaus' partisan affiliations and history of incompetence, and noting that right-wing media outlets reported the changed results before Nickolaus' April 7 press conference. Kloppenburg may be requesting an independent investigation because Kevin Kennedy rushed to the defense of Nickolaus, issuing a statement expressing "confidence in Wisconsin's county and municipal clerks," before he had a chance to investigate the issue and even while admitting that he himself was not informed of the problems with the Waukesha count prior to the press conference held by Nickolaus.

The complaint also alleges that Prosser had a meeting with Governor Walker on April 6, one day after the election (and one day before the Waukesha votes were announced), and that Governor Walker commented on April 6 that there might be "ballots somewhere, somehow found out of the blue that weren't counted before." Both Walker and Prosser have denied there was such a meeting.

The How

Because Justice Prosser's margin of victory was within one-half of one percent after statewide canvassing, Wisconsin law provides for a recount if a candidate should request one. All counties will count simultaneously, with participants likely working through the weekends in order to finish by the May 9 completion date. See the recount manual for more information.

The Milwaukee Journal-Sentinel sets the scene:

An indoor sports arena is filled with poll workers from every municipality in Milwaukee County, each in their own area. At each station, poll workers examine and count ballots one by one. And as they count, campaign volunteers, attorneys and journalists watch their every move - with the campaign representatives sometimes challenging the poll workers' decisions - while sheriff's deputies stand guard.

The Journal-Sentinel also reports that "Prosser attorney Jim Troupis has already said the incumbent's campaign would have hundreds of volunteers, including some flying in from around the country, to monitor the recounts." Prosser had initially hired the D.C. lawyer who represented George W. Bush during the infamous 2000 Florida recount that made "W" president, but has apparently replaced him with Troupis, the go-to election lawyer for Wisconsin Republicans. In the past year Troupis has represented Americans for Prosperity in a challenge to fair election rules, legislative Republicans in redistricting efforts, and Club for Growth in a case to compel Senate Democrats back into the state. (See OneWisconsinNow's 2009 Troupis bio here). He also sits on the Board of Directors of the right-wing, Koch-connected think tank MacIver Institute.

Kloppenburg initially hired attorneys who represented now-Senator Al Franken in his successful Minnesota recount, but has since retained the Madison firm Cullen, Weston, Pines & Bach.

Both Candidates Are Looking for Volunteers and Donations

Both campaigns are seeking volunteers to aid with the recount. The "Kloppenburg for Justice" Facebook page has information on how lawyers and other potential volunteers can email to get involved, and Justice Prosser's "Recount for Victory" website has a volunteer signup sheet.

Observers can watch for lapses in procedure and challenge the decisions of the canvassers if the intent of the voter becomes an issue on any specific ballot. Even in the wards where optical scanners will be used, the ballots will be visually inspected before they are fed to the machine, and observers can verify the machine total.

Although the state will pay for most of the costs associated with the recount, it will not pay lawyers' fees, and public funding for campaigns no longer applies. Both candidates are accepting donations for what may be substantial lawyers' fees. According to Justice Prosser's "Victory Recount Fund" site, "donations are unlimited," but corporate donations will not be accepted, possibly to avoid conflict-of-interest issues if a case involving a donor comes before the state's Supreme Court.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

While the Kloppenburg camp's request for recount was within guidelines, the chances of reversal are miniscule at best. Of twenty-three statewide recounts in the U.S. since 1980 five resulted in reversal of the election results. Further, all five reversals were in cases where the initial margin was less than 527 votes.

That leaves one to wonder about the true motivation for the recount demand. Although Kloppenburg's stated reason is that "Wisconsin residents must have full confidence that these election results are legitimate and that this election was fair", it seems her real goal is to further undermine public perception of the election's legitimacy.

What is the evidence to support that conclusion? How about the fact that her campaign's complaint included the following:

1. "asked the state elections board to appoint an independent investigator to look into potential misconduct surrounding the uncounted Waukesha County votes"

2. the allegation that Walker and Prosser met to discuss "ballots somewhere, somehow found out of the blue that weren't counted before."

There are serious problems with both of these statements; and Kloppenburg's campaign knew that before submitting their complaint. First of all there is no need to investigate the "uncounted" Waukesha County votes. Why? Because they were all counted - on election night. The correct count was even reported by the local newspaper based upon the election night totals. The counts were omitted only from the unofficial totals provided to the Associated Press. So, there were no "uncounted" votes "found". There was merely a correction to the report provided to the media. Kloppenburg knew this to be true, yet chose to misrepresent what happened in order to create mistrust of the results. She is knowingly using the false allegation of "uncounted" votes to justify the expenditure of taxpayer funds for an unnecessary recount - apparently for the sole purpose of further enflaming the already hostile political environment in Wisconsin.

In Duval County, Texas, little Mexican childen were crying because their daddies came back from the dead to vote for Lyndon Johnson. Seems like hundreds of Mexican names of persons who had died suddenly appeared on the voter's registration list.How many of the "lost and now found" votes are legitimate?