PUBLISHED OPINION
Case Nos.: 96-1287
96-1309
96-1335
Complete Title
of Case:
No. 96-1287
RICHARD T. DE BROUX,
Plaintiff-Respondent,
v.
THE BOARD OF CANVASSERS
FOR THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY HANNA,
Appellant.
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No. 96-1309
RICHARD T. DE BROUX,
Plaintiff-Respondent,
v.
THE BOARD OF CANVASSERS
FOR THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY HANNA,
Appellant.
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No. 96-1335
RICHARD T. DE BROUX,
Plaintiff-Respondent,
v.
THE BOARD OF CANVASSERS
FOR THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY HANNA,
Appellant.
Submitted on Briefs: August 13, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 6, 1996
Opinion Filed: November
6, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Calumet
(If
"Special", JUDGE: ROBERT J. PARINS, Reserve Judge
so indicate)
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Outagamie
(If
"Special", JUDGE: ROBERT J. PARINS, Reserve Judge
so indicate)
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: ROBERT J. PARINS, Reserve Judge
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the appellant, the cause was submitted on
the briefs of I. Gregg Curry IV of McCarty, Curry, Wydeven, Peeters
& Haak of Kaukauna and R.J.R. Pirlot of Madison.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of John C. Peterson and Mary Taylor Lokensgard of
Robinson, Peterson, Berk & Cross of Appleton; and Richard A.
Stack, Jr. of Sigman, Janssen, Stack, Wenning & Sutter of
Appleton.
Amicus CuriaeOn behalf of the State Elections Board,
there was a brief by Kevin J. Kennedy, Executive Director; and James
E. Doyle, attorney general, and Alan Lee, assistant attorney
general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
6, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 96-1287
96-1309
96-1335
STATE OF WISCONSIN IN
COURT OF APPEALS
No.
96-1287
RICHARD
T. DE BROUX,
Plaintiff-Respondent,
v.
THE
BOARD OF CANVASSERS
FOR
THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY
HANNA,
Appellant.
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No.
96-1309
RICHARD
T. DE BROUX,
Plaintiff-Respondent,
v.
THE
BOARD OF CANVASSERS
FOR
THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY
HANNA,
Appellant.
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- - - - - - - -
No.
96-1335
RICHARD
T. DE BROUX,
Plaintiff-Respondent,
v.
THE
BOARD OF CANVASSERS
FOR
THE CITY OF APPLETON,
Defendant-Respondent,
TIMOTHY
HANNA,
Appellant.
APPEAL
from an order of the circuit court for Calumet County: ROBERT J. PARINS, Reserve Judge. Reversed and cause remanded with
directions.
APPEAL
from an order of the circuit court for Outagamie County: ROBERT J. PARINS, Reserve Judge. Reversed and cause remanded with
directions.
APPEAL
from an order of the circuit court for Winnebago County: ROBERT J. PARINS, Reserve Judge. Reversed and cause remanded with
directions.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
SNYDER,
J. Timothy
Hanna appeals from a circuit court order reversing the Board of Canvassers'
(the Board) recount certification of Hanna as the newly-elected mayor of the
City of Appleton (the City). Upon
remand to the Board, the incumbent, Richard T. DeBroux, was declared the winner
by two votes. Hanna seeks reinstatement
of the Board's certification in his favor or a new election.[1]
We
agree with Hanna that the circuit court wrongly substituted its judgment for
that of the Board in determining the merits of a recount procedure. The Board had determined that a number of
ballots which had not been properly preserved and were cut in half should not
be included in the recount. In
reviewing the Board's action, the circuit court found that the Board erred by
disregarding the cut paper ballots and that it should have certified the
results based upon the votes as tabulated on election day by the electronic
vote tabulation system. We conclude
that when the circuit court found that the Board erred because it had “another
option,” it improperly substituted its judgment for that of the Board. Consequently, we reverse and remand the case
to the circuit court with directions to reinstate the Board's original recount
certification awarding Hanna the mayoral election.
The
facts are not in dispute. Hanna
challenged DeBroux in the March 19, 1996, City of Appleton general
election. DeBroux was certified as the
election winner by an eight-vote margin.
As permitted under § 9.01(1), Stats.,
Hanna requested a recount. During the
recount procedure, the number of votes previously certified changed. In order to understand the recount procedure
and the changes which occurred as a result of it, we begin with a description
of the voting system used in this election.
At
our invitation, the State Elections Board (SEB) filed an amicus curiae brief in
clarification of Wisconsin's voting law and procedures.[2] The SEB brief relates the following general
voting method information:
There are three methods of voting in Wisconsin: paper ballots, lever machines and electronic
voting systems. The State Elections
Board has approved three different types of electronic voting systems ¼: punch card, marksense and direct record.
The SEB identifies the City voting method as the
marksense electronic voting system. The
marksense's primary components are the ballots, an automatic tabulating device
and computer-generated printouts.
The
marksense ballot contains a caption, voting instructions, the names of
candidates, offices and referenda, and is completed by hand. The directions on the ballot indicate that
two ends of an arrow are to be connected across from the name of the desired
candidate. The completed ballot is then
fed into an electronic tabulating machine which optically scans the markings
made by the voter and records the vote.
Within
this system, undervotes may occur. A
ballot is designated an undervote when the tabulating machine records its
acceptance of a ballot, but fails to record a designated vote.[3] After the recount was completed in seventeen
of the eighteen voting districts, the Board was able to discern voter intent on
18 ballots which had been uncounted by the tabulating machine. See § 5.90, Stats. These votes
were added to the total.
When
the number of ballots was compared to the number of votes registered on the
electronic tabulating machine for District 16, it was discovered that the total
votes recorded by the electronic tabulation system did not match the number of
paper ballots taken from the secured boxes.
See § 7.51(3), Stats. It initially appeared that as many as 200
ballots were unaccounted for. After
further investigation, a check was made of a box of unused ballots which had
been returned to the printer for recycling.
All of the ballots in the box had been cut in half and held unsecured at
the print shop. An examination of the
box revealed that in addition to unused ballots, it contained ballot halves
that “appeared to be voted or initialled.”
These were removed and the top half of any used ballot was placed in a
separate box; the relevant halves of 155 ballots were thus secured.
The
Board then met to make a decision on the recount in light of the discovery of
the unsecured portions of ballots at the print shop. The Board determined that “due to the condition of the ballots
found at Custom Printing, the fact they were unsecured for over one week, and
that the number of undervoted ballots for District 16 were not fully accounted
to be able to discern voter intent,[4]
it was agreed that only the ballots currently in the City's possession should
be used for the recount.” After
counting the remaining 880 ballots in its possession from District 16, the
Board declared Hanna the winner of the election with 7298 votes to DeBroux's
7284.[5]
DeBroux
appealed the Board's decision to the circuit court. See § 9.01(6), Stats. After hearing the evidence the Board had
before it,[6]
the circuit court held:
Having found an explanation for the missing
ballots ... the Board had, in my judgment, available other obvious options open
to it to reflect the will of the electorate in District 16. The tally sheets subscribed to by the ballot
clerks, the testimony before the Board and their findings based upon the record
disclosed irrefutable credible evidence that the electronic voting system and
the tally on that night, on the night of the election rather, were totally
accurate and afforded the Board, in the opinion of the Court, a snapshot in
time upon which it could rely to give full force and effect to the will of the
voters.
The circuit court then ordered the Board to amend the
recount so as to reflect the court's ruling.
With this change in the recount procedure, the winner of the election
was DeBroux by two votes.[7] Hanna now appeals.
The
Board is the trier of fact and its findings will be upheld if supported by
substantial evidence. See Logerquist v. Board of Canvassers,
150 Wis.2d 907, 918, 442 N.W.2d 551, 556 (Ct. App. 1989). If the Board's determination depends on any
fact found by it, a reviewing court may not substitute its judgment as to the
weight of the evidence. See §
9.01(8), Stats. The court shall separately treat disputed
issues of procedure, interpretations of law and findings of fact. See id.
The
principal dispute in this case concerns the Board's determination that the
unsecured cut ballots which were found at the print shop during the recount
should not be counted. Several
statutory sections are instructive with regard to this determination.
We
begin with the scope of the election statutes.
It requires that chs. 5 to 12, Stats.,
“shall be construed to give effect to the will of the electors, if that can be
ascertained from the proceedings.”
Section 5.01(1), Stats. Chapter 9 is entitled “Post Election
Actions” and includes the procedures to be employed when a recount is
requested. Section 9.01(1)(b)10, Stats., specifically provides:
Recounts at polling
places utilizing an electronic voting system in which ballots are distributed
to electors shall be performed in accordance with the procedure for
recounting paper ballots insofar as applicable, except as provided in s.
5.90.[8] [Emphasis added.]
The procedure for recounting paper ballots requires that
the Board “shall then examine the container or bag containing the ballots to be
certain it has not been tampered with.”
See § 9.01(1)(b)3. After
the container has been inspected, it is opened and the contents removed. Section 9.01(1)(b)4.
Subdivision
4 then includes detailed directions on how to reconcile a discrepancy when the
number of ballots in the box exceeds the number of voters. This includes the elimination of defective
absentee ballots, checking for blank ballots and removing any ballots not
initialed by two inspectors. See
id. If after taking these
steps the number of ballots still exceeds the number of votes, the Board is
required to randomly remove a number of ballots in order to reconcile the
number of votes with the actual number of paper ballots to be recounted. Id.
However,
when the number of ballots and voters agree or, as here, the number of voters
exceeds the number of ballots, another procedure is mandated. Section 9.01(1)(b)5, Stats., provides:
When the number of
ballots and voters agree, or after noting that the number of voters exceeds the
number of ballots, the board of canvassers shall return all ballots to be
counted to the ballot box and shall turn the ballot box in such manner as to
thoroughly mix the ballots. The recount shall then begin. [Emphasis added.]
When the Board discovered that the paper ballots from
District 16 did not match the number of votes tabulated on the electronic
voting system, an investigation was initiated.
Because of the number of ballots missing, the investigation centered on
the procedures followed to secure the ballots.
It was determined that a box of unused ballots which had been returned
to the printer for recycling should be examined.
The
examination of the unsecured box revealed that it contained both initialed and
unused ballots, but all of the ballots in the box had been cut in half. After removing all of the ballots which
appeared to have been voted or initialed, the Board noted that 64 of the cut
ballots were from Ward 33, and 91 were from Ward 34, for a total of 155.[9] The Board placed the relevant halves of the
cut ballots in a sealed and marked box and returned the box to the vault area
of the city clerk's office.
The
Board then met to make a decision on the recount. The Board received an opinion from the city attorney regarding
recount procedures when electronic tabulating equipment is used. Attorneys for each of the candidates
presented statements on the events of the recount.
The
Board noted the condition of the ballots found at the print shop and the fact
that they were unsecured for over a week.
The Board concluded that based on the foregoing, as well as the fact
that it was unable to discern voter intent on the undervoted ballots for
District 16,[10] only
the ballots currently in the City's possession should be used for the recount.
We
conclude that the Board followed the proper procedure in conducting the
recount. The Board used the statutory
guidelines in making its determination that only the secured ballots should be
included in the recount. The Board's
decision recognized the statutory mandate that it must “give effect to the will
of the electors, if that can be ascertained.”
See § 5.01(1), Stats. The Board determined that only the preserved
ballots could accurately be used to discern voter intent. The Board is the trier of fact and its
findings will be upheld when supported by substantial evidence. See Logerquist, 150
Wis.2d at 918, 442 N.W.2d at 556.
The
circuit court disagreed and found that the Board's decision to disregard the
compromised ballots and the record of votes on the electronic tabulating
machines indicated that “[i]t did not avail itself of the available credible
evidence, irrefutable credible evidence to indicate what the total vote in
District 16 was.” The circuit court
concluded:
I am satisfied as I
have stated that the Board had another option available to it on ... their
recount and that option was to ... accept the evidence of the tally that was
furnished by a machine that had not malfunctioned ....
The circuit court then reversed the Board.
The
fact that the Board may have had “another option” available to it is
immaterial. As we outlined above, the
Board's actions reflected a proper application of the statutory guidelines for
a recount. The Board gave substantial,
credible reasons for its decision to disregard the unsecured cut ballots. “[T]he 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.” Section
9.01(8), Stats.
DeBroux
seeks affirmance of the circuit court's reasoning and argues that the Board
erred when it completed the recount without utilizing the voting result
recorded by the electronic tabulating system.
He maintains that Hanna has a burden to demonstrate that the electronic
record of votes cast is incorrect because he seeks to change the recorded
result. DeBroux bases this requirement
on the following language: “The burden
of demonstrating that a vote total shown on a machine or record of votes cast
is incorrect rests with the party seeking to change the recorded result on the
basis of clear and convincing evidence.”
See § 9.01(1)(b)8m, Stats. He then extrapolates, “The result recorded
by the electronic voting system is presumptively correct, [because] Mr. Hanna
has not proved by clear and convincing evidence that a material error
occurred.”
DeBroux's
claim that Hanna has not met his burden (to show that a material error occurred
in the tabulated results) misconstrues the nature of Hanna's challenge to the
election results. Hanna requested a
recount, which he is permitted to do pursuant to § 9.01(1)(a), Stats.
A candidate requesting a recount is only required to specify that he or
she “believes that a mistake ... has been committed in a specified ward or
municipality in the counting and return of the votes ....” See id. Hanna did not then, nor does he now, claim
that the electronic voting system malfunctioned.
Evidence
from the other districts, however, clearly illustrates that the precision of
the vote tally by electronics is dependent upon multiple factors. The recount in the other districts had
already resulted in an additional 18 votes being credited to one candidate or
the other. The Board determined that
because the machines used in District 16 had tabulated 11 undervotes the night
of the election which the Board could not verify, the appropriate procedure was
to recount only the actual ballots in its possession. See § 9.01(1)(b)10, Stats.
The
burden specified in § 9.01(1)(b)8m, Stats.,
is pertinent only if the challenging candidate seeks to change a result based
on a claim that a voting machine or vote tabulation system malfunctioned. Hanna does not challenge the election
results on that basis. Furthermore, it
was evident through a comparison of the number of votes tabulated with the
number of ballots read by the machine that it was unlikely that the
electronically tabulated results represented the true count of the votes on
election day. The tabulating machines in
District 16 had recorded 11 undervotes.
In cases where an electronic tabulation system is used, the paper
ballots become the primary means of checking the accuracy of the vote
tabulation by the machine. Only by identifying
and examining any undervotes to discern voter intent can a complete count be
done. Because of the condition of the
unsecured ballots, that examination was impossible.
In
sum, we reverse the circuit court. The
circuit court substituted its judgment for that of the Board. As the SEB notes in its brief, the statutory
scheme for a recount “places a premium” on the Board's judgment to give effect
to the will of the electorate. We are
satisfied that the Board's actions complied with the statutory mandates for a
recount, and we conclude that substantial evidence supports the Board's
decision to recount only the uncompromised ballots. We remand with directions to reinstate the Board's certification
of Hanna as the winner of the election.
By
the Court.—Order reversed and
cause remanded with directions.
[1] This is an expedited appeal. See § 9.01(9)(c), Stats. Additionally, because the appeal concerns an election which was held in more than one court of appeals district, it was consolidated on May 9, 1996, by order of the Chief Justice of the Wisconsin Supreme Court and assigned to District II. See § 9.01(9)(b).
[2] A court of appeals order dated August 20, 1996, was issued pursuant to Rule 809.19(7), Stats. We appreciate the additional clarification provided by the SEB.
[3] Undervoted ballots can ultimately have one of three results. First, an examination of the undervoted ballot may show that it contained no vote for mayor. Second, it may be a ballot unreadable by the machine, but the Board is able to discern voter intent and thereby casts a vote not previously recognized by the earlier tally. One example is when a voter circles a candidate's name rather than connecting the arrow. Finally, a ballot may contain markings which do not indicate voter intent. In such cases, no vote is recorded. As an example of this process, one of the wards reported the number of ballots cast as 536. However, the number of votes in that ward for mayor totaled 525. Therefore, 11 ballots contained undervotes. On recount, it could be determined by the Board that 3 of the undervotes that could not be read by the machine had in fact included a vote for a particular candidate. The Board then recorded those additional 3 votes for a total of 528 votes cast.
[5] The final tabulation revealed that because of the Board's decision, 157 paper ballots were not included in the recount.
[6] A circuit court has authority to receive evidence not offered to the board of canvassers under certain circumstances. None of those circumstances were present here. See § 9.01(8), Stats.
[7] The court's decision required the Board to use the votes tabulated by the electronic machine in District 16 on the election day and to disregard the paper ballots. This also resulted in the Board disregarding the 11 undervotes, which could not be examined.
[8] Section 5.90, Stats., provides:
Except as otherwise provided in this subchapter, recounts of votes cast on an electronic voting system shall be conducted in the manner prescribed in s. 9.01. If the ballots are in readable form, the board of canvassers may elect to recount the ballots without the aid of automatic tabulating equipment. If the board of canvassers elects to use automatic tabulating equipment, the board of canvassers shall test the automatic tabulating equipment to be used prior to the recount as provided in s. 5.84, and then the official ballots or the record of the votes cast shall be recounted on the automatic tabulating equipment.
[10] Approximately 14 ballots had been separated for hand counting. Some of these ballots appeared to be unvoted ballots, while some were questioned due to pencil marks or other irregularities. However, without the ability to retabulate all of the paper ballots cast in District 16, it was unclear how many of the 11 unvoted ballots registered by the machine the night of the election were accounted for.