Complaint Filed on Racine Unified School District Over Billion Dollar Referendum

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

JAMES SEWELL et al Petitioners/Appellants, -vs-

CASE NO. 2020CV001023

RACINE UNIFED SCHOOL DISTRICT BOARD of CANVASSERS et al Respondent.

COMPLAINT Pursuant to Wis. Stats. ยง9.01(6) and ยง9.01(7) James Sewell, Dennis Montey, and George Meyers, through their legal counsel, Attorney Vincent J. Bobot and Michael Maistelman appealed to the Racine County Circuit Court, the decision of the Racine Unified School District Board of Canvassers in the above-captioned election on the school referendum rendered on April 24, 2020 and certified on April 27, 2020 in the Racine Unified School District funding referendum. Herein is also a Brief setting forth the legal and evidentiary support for each identified irregularly, defect, mistake, or fraud alleged at the time of filling.

1.

Appellant, James Sewell, is a proper party in this action as he resides at 917 West Lawn Avenue in the City of Racine, Wisconsin 53405. Mr. Sewell also voted in the April 7, 2020 election.

2.

Appellant, Dennis Montey, is a proper party in this action as he resides at 939 Marquette Street in the City of Racine, Wisconsin 53404. Mr. Montey also voted in the April 7, 2020 election.

3.

Appellant, George Meyers, is a proper party in this action as he resides at 1307 North Wisconsin Street, Racine, Wisconsin 53402. Mr. Meyers also voted in the April 7, 2020 election.

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4.

On Tuesday, April 7, 2020 an election was held in the Racine Unified School District containing a referendum on authorizing school funding in the amount of One Billion dollars ($1,000,000,000.00) over a period of thirty (30) years.

5.

In that Referendum on school funding (hereinafter referred to as the "Referendum") the alleged total votes cast by eligible electors were 33,425.

6.

In the Referendum, the Board of Canvassers determined and reported that the final number of votes cast in the April 7, 2020 election were Sixteen Thousand Seven Hundred Fifteen (16,715) "yes" votes and Sixteen Thousand Seven Hundred Ten (16,710) "no" votes.

(Attached Exhibit A).

7.

The total number of votes cast in the April 7, 2020 election were thirty-four thousand nine hundred and fourteen (34,914) votes. In the voting system, undervotes may occur. A ballot is designated an undervote when the tabulating machine records its acceptance, but fails to record a designated vote. Therefore, eligible voters did not cast a vote on the Referendum. (hereinafter referred to as the "Undervote").

8.

Appellant, James Sewell, in a timely and proper fashion, filed a Recount Petition with the Racine Unified School District challenging the vote count on the Referendum.

9.

Appellant, Dennis Montey, in a timely and proper fashion, filed a Recount Petition with the Racine Unified School District challenging the vote count on the Referendum.

10.

Appellant, George Meyers, in a timely and proper fashion, filed a Recount Petition with the Racine Unified School District challenging the vote count on the Referendum.

11.

Appellant(s), James Sewell, Dennis Montey, and George Meyers were present and registered as observers at the Recount. The observers were required to stand or sit at least six (6) feet away from the ten (10) tables occupied by the Tabulators and the one (1) table occupied by the Board of Canvassers. Tape was on the floor designating the six (6) foot barrier.

12.

Appellants(s), James Sewell, Dennis Montey, and George Meyers were all informed that they had to stand or sit at least six (6) feet away from the Tabulators and Board of Canvassers because of the coronavirus pandemic.

13.

Due to the six (6) foot restriction, a video screen was utilized by the Board of Canvassers to project information to the observers.

14.

There were three (3) members of the Board of Canvassers present during the Recount. There were ten (10) tables with Tabulators screening the ballots cast and the opened envelopes that once contained ballots cast and counted in the Referendum. All the tables with Tabulators were examining said ballots and opened envelopes at the same time. This process limited viewing and examining many of the ballots cast in the election and the opened envelopes that once contained ballots cast and counted in the Referendum by the Board of Canvassers and the Observers.

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15.

Tabulators may assist the Board of Canvassers in conducting the Recount, but only the Board of Canvassers are competent to make any determination as to the validity of any vote tabulated. Wis. Stats. §19.011(5)(b).

16.

Upon information and belief, the Recount process provided and enabled the Tabulators the means and ability to screen a significant number of votes cast in the April 7, 2020 election. Therefore, the Tabulators acted as "gatekeepers" in a significant number of votes cast in that election by examining the opened envelopes that once contained votes subsequently cast and counted in the Referendum.

17.

Upon information and belief, the opened envelopes that once contained ballots had been opened by the various municipal clerks. The ballots in those envelopes were removed by the clerk and counted as votes cast in the Referendum. Tabulators then viewed those opened envelopes and screened them for compliance with election laws. Tabulators were given the discretion to decide which of the opened envelopes complied with election laws. Thus, Tabulators were given the option on which opened envelopes went to the Board of Canvassers and subsequently viewed by the Appellants and observers.

18.

Appellant(s), James Sewell, Dennis Montey, and George Meyers were limited in their ability to observe and monitor the Recount because of the six (6) foot restriction imposed by the Board of Canvassers.

19.

During the Recount, Appellant(s), James Sewell, Dennis Montey, and George Meyers requested to view or examine all of the Undervote ballots and all of the opened envelopes that once contained ballots cast in the Referendum. Those requests were denied by the Board of Canvassers.

Appellants then objected to the Board of Canvassers denying them access to the Undervote ballots and opened envelopes that once contained ballots cast in the Referendum.

20.

Upon information and belief, the Board of Canvassers were; Elizabeth Tobias, an Executive Assistant to the Superintendent of the Racine Unified School District; Tammy Leverich, Executive Assistant to the Chief Financial Officer of the Racine Unified School District; and Melissa Abel, Executive Director of Human Resources of the Racine Unified School District.

21.

The canvass board members and the tabulators are the only persons who may handle and touch the ballots and other election materials. The Board of Canvassers must, however, allow the candidates and their representatives and/or legal counsel to view and identify the election materials.

Wis. Stats. §9.01(1)(b)11.

22.

Upon information and belief, there were twenty-five (25) tabulators hired by the Board of Canvassers for the recount. Sixteen (16) of the tabulators were employed by the Racine Unified School District (hereinafter referred to as “RUSD”). Two of the tabulators were related to employees of RUSD. Therefore, only seven (7) tabulators selected by The Board of Canvassers were not employed

by RUSD. 23.

Upon information and belief, the names of the RUSD Tabulators employed by RUSD are as follows: 1. Carla Davis 2. Emily Debaker 3. Mary Hvizdak 4. Heather Gaiten 3

5. Mike VanLaningham 7. Nicole Riendenv 9. Amanda Jordan 11. Gale Pucci 13. Christian Alverez 15. Michael Hyland

6. William Erik Genich 8. James O’Hagen 10. David Gallo 12. Lori K. Ehnert 14. Hannah Farel 16. Gabriel Rodriguez

24.

Upon information and belief, the names of the RUSD Tabulators who were related to employees of RUSD are as follows: 1. Vicky Beauchamp 2. Kenneth Beauchamp 25.

Upon information and belief, the names of the other Tabulators who are not employed by RUSD are as follows: 1. John Barnes 2. Edward Bell 3. Catherine Larrabee 4. Mary Davitz 5. Judith Michel 6. Jayne Exner 7. Amanda Ingle 26.

Appellants were representatives of Attorney Vincent J. Bobot at the Recount.

27.

The significance in denying Appellants access to the Undervote ballots and all of the opened envelopes that once contained ballots cast and recorded in the Referendum must not be discounted or ignored.

28.

Upon information and belief, Tabulators selected in the Recount were not consistent with other Tabulators in determining which opened envelopes that once contained ballots that were cast and recorded in the Referendum which needed to be reviewed by the Board of Canvassers for a decision.

29.

Specifically, on Thursday, April 23rd, 2020 two of the Appellants, namely, James Sewell and George Meyers appeared at the recount with eight (8) other observers to examine the undervote ballots and opened envelopes that once contained a ballot that had been cast and recorded in the Referendum. The Board of Canvassers did not allow Mr. Sewell, Mr. Meyers or observers to view or examine undercount ballots or the opened envelopes.

(See attached Exhibit B – Recount, Board of Canvassers, Sign In/Out Sheet) 30.

The observers with Appellants, James Sewell and George Meyers were Les Johns, Carina Sewell, Jack Kotleski, Kim Sewell, Lee Kammerer, Carrie Glenn, Ken Yorgan, and Jim Spodick.

(Exhibit B) 31.

Upon information and belief, there were hundreds of envelopes containing ballots that were initially rejected by the Municipal Clerk. Those votes were not counted in the Referendum.

Subsequently, those hundred of envelopes containing rejected ballots by the Municipal Clerk were also rejected by the Board of Canvassers and not counted in the Referendum. The rejected ballots are still contained in their original sealed envelopes. The State of Wisconsin created/designed an envelope which at times obscured the U.S. Services Postmark thus resulting in rejection of the ballots that were contained in the envelopes.

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32.

When an error occurs through no fault of the elector the question becomes whether a ballot properly cast by a voter should be counted or subject to random removal resulting in disenfranchisement. If the error was committed by a public official, the ballot as in this case, should be counted. Wis. Stat. § 5.01(1) and the following caselaw below.

The Wisconsin Supreme Court has stated: ...The voter’s constitutional right to vote cannot be baffled by latent official failure or defect.

Ollmann v. Kowalewski, 238 Wis. 574, 579, 300 N.W. 183, 185 (1941).

In State ex rel. Symmonds v. Barnett, 182 Wis. 114, 195 N.W. 707 (1923), the ballot of certain voters were not counted, because the voter’s names did not appear on the voter registration list. These voters were, however, duly registered voters who had voted in the preceding primary election. Only the failure of the registration board to update the registration list explained the omission of their names. This Court ordered that votes of these voters must be counted, stating: As a general rule a voter is not to be deprived of his constitutional right of suffrage through the failure of election officers to perform their duty, where the elector himself is not delinquent in the duty which the law imposes on him. State ex rel. Wood v. Baker, 38 Wis. 71 (1875); Barnett, 182 Wis. at 127.

Because the right to vote is so central to our system of government, this Court has consistently sought to protect its free exercise. McNally v. Tollander, 302 N.W.2d 440, 100 Wis.2d 490 (1981). In the Ollmann case, ballots were initialed by only one election official, rather than being initialed by two election officials per the statutory requirement. The Wisconsin Supreme Court held that the ballots with only one set of initials were properly counted, stating that: “The voter would not knowingly be doing wrong. And not to count his vote for no fault of his own would deprive him of his constitutional right to vote...A statute purporting so to operate would be void, rather than the ballots.” McNally, 100 Wis.2d at 502 citing Ollmann. .

Where it is clear that an error has been committed by a public official, the voter is not at fault and there is no evidence of fraud or malfeasance, the Elector’s ballot should be counted and/or not drawn down because the result will likely disenfranchise a voter – something that the Legislature was arguably trying to avoid by inserting the language contained in Wis. Stat. § 5.01(1). A draw down is made by accumulating all the same type of ballots in the same ward and removing ballots.

33.

The Board of Canvassers displayed some of the unopened envelopes containing ballots that were rejected due to the inability in reading the postmarks. Those envelopes were projected on a screen to be viewed by Appellants and observers.

34.

All of the Appellants continued their request to view and examine the undervote ballots and opened envelopes that once contained a ballot. Appellants again objected to the decision by the Board of Canvassers denying their right to view and examine the undervote ballots and opened envelopes that once contained ballots.

35.

When the Board of Canvassers overruled the Clerk’s decision to accept a ballot cast and counted in the Referendum because of the envelope not complying with State election laws, the result was an “Over Vote” necessitating a draw down”. A Draw Down is made by accumulating all the 5

absentee voter ballots in that ward or group of wards. From those absentee voter ballots, one is randomly drawn. That selected vote on the Referendum is then deducted from the final vote.

36.

The Board of Canvassers decision to accept some of the ballots cast in the Referendum and reject others was arbitrary, unreasonable and not consistent with Wisconsin election laws. Numerous envelopes without a legible postmark were accepted by the Board of Canvassers, while other envelopes without legible postmarks were rejected and not counted.

37.

The Supreme Court of the United States in a per curiam opinion held, “subject to any further alterations that the State may make to state law, in order to be counted in this election a voter’s absentee ballot must be either (i) post- marked by election day, April 7, 2020, and received by April 13, 2020, at 4:00 p.m., or (ii) hand-delivered as provided under state law by April 7, 2020, at 8:00 p.m.” See Republican National Committee, et al. v. Democratic National Committee, et al.. No. 19A1016, 589 U.S. ____(slip op. at 4), 140 S.Ct. 1205 (2020).

38.

Upon information and belief, one category of draw downs during the recount was for envelopes that did not contain a witness address, but had been accepted by the municipal clerks.

During the recount, some of the opened envelopes without witness addresses containing ballots cast were counted in the referendum by the Board of Canvassers. After objections to that process by the Appellants, open envelopes without a witness address containing ballots that were cast and counted were rejected by the Board of Canvassers. Thus, those ballots resulted in a draw down, while other ballot envelopes with addresses were counted and not subject to a draw down. The Board of Canvassers was inconsistent with how it handled absentee envelopes missing witness addresses.

39.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Caledonia, wards 6, 7, 8 and 20, there were ten (10) draw downs.

That draw down resulted in a reduction of three “Yes” votes and seven “No” votes. The machine total for “Yes” votes was 653 and 880 “No” votes. The certified vote as a result of the recount was 651 “Yes” votes and 872 “No” votes. The final recount tally should have been 650 “Yes” votes and 873 “No” votes. See attached Exhibit C and D. 40.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Caledonia, wards 9, 10, 12 and 13, there were three (3) draw downs.

That draw down resulted in a reduction of one “Yes” vote and two “No” votes. The machine total for “Yes” votes was 786 and 967 “No” votes. The certified vote as a result of the recount was 787 “Yes” votes and 963 “No” votes. The final recount tally should have been 785 “Yes” votes and 965 “No” votes. See attached Exhibit C and E. 41.

In the municipality of Caledonia, wards 16, 18, and 19, there were three remade ballots.

Remade ballot number three was originally a “No” vote then changed to a “Yes” vote. The machine total for “Yes” votes was 334 and 643 “No” votes. Remade ballot number 3 was originally a “No” vote and changed to a “Yes” vote. Remade ballot number 4 was originally a “Yes” vote then changed to a “No” vote. Remade ballot number 22 was originally a “No” vote then not counted as a vote. The machine total for “Yes” votes was 334 and 643 “No” votes. The certified vote as a result of the recount was 335 “Yes” votes and 643 “No” votes. The final recount tally should have been 334 “Yes” votes and 644 “No” votes. See attached Exhibit C and F.

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42.

The municipal clerk of Mount Pleasant did not count two absentee ballots cast in wards 1, 17, 18, 20, and 23. The Board of Canvassers during the recount determined those ballots were valid and added two votes to the total. That action by the Board of Canvassers resulted in an additional “Yes” vote and an additional “No” vote. The machine total for “Yes” votes was 575 and 574 “No” votes. The certified vote as a result of the recount was 575 “Yes” votes and 573 “No” votes. The correct tally should have been 574 “Yes” votes and 573 “No votes” See attached Exhibit C and G. 43.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Sturtevant, wards 1-8 had four draw downs. That draw down resulted in a reduction of one “Yes” vote and three “No” votes. The machine total for “Yes” votes was 646 and 694 “No” votes. The certified vote as a result of the recount was 646 “Yes” votes and 690 “No” votes. The final recount tally should have been 645 “Yes” votes and 691 “No” votes. See attached Exhibit C and H. 44.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Wind Point, wards 1-3 had five draw downs. That draw down resulted in a reduction of four “Yes” votes and one “No” vote. The machine total for “Yes” votes was 456 and 424 “No” votes. The certified vote as a result of the recount was 452 “Yes” votes and 422 “No” votes. The final recount tally should have been 452 “Yes” votes and 423 “No” votes. The recount minutes for the municipality of Wind Point, wards 1-3 indicate that the original recount was conducted again at a later date and time. See attached Exhibit C and I. 45.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Racine, ward 13, had one draw down. That draw down resulted in a reduction of one “Yes” vote. The machine total for “Yes” votes was 308 and 236 “No” votes. The certified vote as a result of the recount was 308 “Yes” votes and 235 “No” votes. The final recount tally should have been 307 “Yes” votes and 236 “No” votes. See attached Exhibit C and J. 46.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Racine, ward 14, there were no draw downs. The machine total for “Yes” votes was 292 and 211 “No” votes. The certified vote as a result of the recount was 292 “Yes” votes and 210 “No” votes. The final recount tally should have been 292 “Yes” votes and 211 “No” votes. See attached Exhibit C and K. 47.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Racine, ward 20, there were four draw downs. One “Yes” vote and three “No” votes. The machine total for “Yes” votes was 422 and 356 “No” votes. The certified vote as a result of the recount was 422 “Yes” votes and 352 “No” votes. The final recount tally should have been 421 “Yes” votes and 353 “No” votes. See attached Exhibit C and L and also contained in an official video of the proceedings made by the RUSD, volume 11, 58 minute mark which is not attached hereto.

48.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Racine ward 32, there was one draw down. That resulted in a reduction of one “Yes” vote and zero “No” votes. The machine total for “Yes” votes was 155 and 117 “No” votes. The certified vote as a result of the recount was 154 “Yes” votes and 116 “No”

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votes. The final recount tally should have been 154 “Yes” votes and 117 “No” votes. See attached Exhibit C and M. 49.

The Board of Canvassers incorrectly tallied the draw down votes resulting in an incorrect vote tally. In the municipality of Racine ward 35, there were two (2) draw downs. That resulted in a reduction of zero “Yes” votes and two “No” votes. The machine total for “Yes” votes was 227 and 229 “No” votes. The certified vote as a result of the recount was 227 “Yes” votes and 226 “No” votes. The final recount tally should have been 227 “Yes” votes and 227 “No” votes. See attached Exhibit C and N. 50.

In the municipality of Racine ward 11, there were twelve ballots missing from the ballot bag.

The Board of Canvassers then went to the voting machine and obtained the ballot images and were able to identify the missing ballots because they had write-ins. However, there was one ballot missing from each of Racine wards 14 and 32. The Board of Canvassers did not access the ballot images to recover those missing ballot images resulting in a reduction of zero yes votes and two no votes. The machine total for Racine ward 14 was 292 “Yes” votes was and 211 “No” votes. The certified vote as a result of the recount was 292 “Yes” votes and 210 “No” votes. The final recount tally should have been 292 “Yes” votes and 211 “No” votes. The machine total for Racine ward 32 was 155 “Yes” votes was and 117 “No” votes. The certified vote as a result of the recount was 154 “Yes” votes and 116 “No” votes. The final recount tally should have been 154 “Yes” votes and 117 “No” votes. See attached Exhibit C and O. 51.

Upon information and belief, there were at least eighty-one (81) remade ballots that were unable to be matched with the spoiled ballots because they were not properly marked or lost by election officials in violations of state law. The Board of Canvassers should have used ballot images in an attempt to recover the missing original ballots and then verify that the duplicates were correctly made. The Board of Canvassers failed to find the ballot images of the missing ballots.

52.

In the notes from the Board of Canvassers – Melissa Abel, Racine ward 18 there are no notations. Racine ward 18 is not included in any of her notes. Failure to include notes from Racine ward 18 are contrary to Wisconsin Election laws. See attached Exhibit P. 53.

The Board of Canvassers improperly implied Wis. Stats. §7.50 when they ruled that one under vote in Racine ward 35 could not be determined to be a “No” vote. In that under vote, the voter did not fill in the oval on the ballot, but made a pencil mark in the “o” on the word “No”. Said voter had properly filled in the ovals for all other races, including the other referendum immediately above the School District Referendum. See attached Exhibit Q. 54.

There is an Affidavit from Appellant, Dennis Montey. See attached Exhibit R.

55.

There is an Affidavit from Appellant, James Sewell. See attached Exhibit S.

56.

There is an Affidavit from Appellant, George Meyers. See attached Exhibit T.

Wherefore, Appellants request the following relief: 1) an Order requiring RUSD to make available all election materials including but not limited to the poll worker’s notes, the video of the recount by RUSD, all materials used to train and educate the tabulators, and all ballot images from the voting 8

machines to counsel and the court. 2) The Court to determine that there were more “No” votes than “Yes” votes in the referendum and 3) Any other such relief that the court deems just and equitable.

Dated: May 28, 2020

Dated: May 28, 2020

ATTORNEY VINCENT J. BOBOT

MAISTELMAN & ASSOCIATES, LLC

Attorneys for Appellants

Attorneys for Appellants

/s/ Vincent J. Bobot State Bar No. 1020732

/s/ Michael S. Maistelman State Bar No. 1024681

Post Office Address: Vincent J. Bobot 5414 S. 13th Street Milwaukee, WI 53221-4420 (414) 430-1249 (414) 282-9522 vincentjbobot@gmail.com

Post Office Address: Maistelman & Associates, LLC 8989 N. Port Washington Rd. #207 Milwaukee, WI 53217 (414) 908-4254 (414) 447-0232 Fax msm@maistelmanlaw.com

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