James Sewell v. Racine Unified School District Board of Canvassers

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

PETITION FOR REVIEW OF A DECISION OF THE COURT OF APPEALS DISTRICT II AND APPENDIX SIDDIQUE, M. SAMIR State Bar No. 1121714 GRASS, GARY E. State Bar No. 1035738 BOBOT, VINCENT J. State Bar No. 1020732 SIDDIQUE LAW, LLC 6060 N 77 t h Street; Milwaukee, WI 53218 siddiquelawllc@gmail.com (414) 231-1635 Counsel for Petitioners Sewell and Meyers

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................ iv CAPTION ..............................................................................1 ISSUE PRESENTED FOR REVIEW .....................................1 SHORT STATEMENT OF CRITERIA FOR REVIEW ........ 4 STATEMENT OF THE CASE .............................................. 6 ARGUMENT .......................................................................14 I.

REVIEW IS PROPER UNDER WIS. STAT., § 809.62(1r)(c) .......................................................14 A. Develop and Harmonize ..............................14 B. Novel Question .............................................14 C. Statewide Impact .......................................... 21 D. Question of Law Likely to Recur ................ 22

II.

REVIEW IS PROPER UNDER WIS. STAT., § 809.62(1r)(d) ...................................................... 23

CONCLUSION .................................................................. 25 CERTIFICATIONS............................................................... a INDEX TO APPENDIX ....................................................... e APPENDIX

i

TABLE OF AUTHORITIES

Page(s) Cases Carlson v. Oconto County Board of Canvassers, 2000 WI APP 20, 240 Wis.2d 438, 623 N.W.2d 195 (Ct.App.2000) .................................................18 Logerquist v. Board of Canvassers for Town of Nasewaupee, 150 Wis. 2d 907, 912, 442 N.W.2d 551, 553-54 (Ct.App.1989) .................................................................... 19 Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2004 WI 6, 268 Wis. 2d 335, 677 N.W.2d 599 .................. 23 State ex rel. Graves v. Wiegand, 212 Wis. 286, 249 N.W. 537 (1933) ............................ passim State ex rel Schuetz v. Luy, 103 Wis. 524, 528, 79 N.W. 77 ....................................... 17,24 State ex rel. Shroble v. Prusener, 185 Wis.2d 102, 116, 517 N.W.2d 169, 174 ............................ 21

ii

Laws and Statutes Wis. Stats., § 6.60 (1931-32)............................................... 24 Wis. Stats., § 6.60 (1931-32)............................................... 25 Wis. Stats., § 7.54 ...................................................... passim Chapter 9 ...................................................................... 14, 18 Wis. Stats., § 9.01(1) .............................................. 1,4,9,18,21 Wis. Stats., § 9.01(8) .......................................................... 20 Wis. Stats., § 9.01(11) ......................................................... 20 Wis. Stats., § 9.20(1) ........................................................... 13 809.62(1r) ................................................................... passim 1905 Wis. Act 87 ................................................................. 15 1965 Wis. Act 666 ............................................................... 15 1983 Wis. Act 183 ...................................................... 18-19, 21 1983 Wis. Act 484 .......................................................... 15, 21

iii

Other Sources Soderbloom v. Manske, 107 Wis.2d 744, 321 N.W.2d 367 (Ct.App1982). .................18

iv

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

PETITION FOR REVIEW OF A DECISION OF THE COURT OF APPEALS DISTRICT II AND APPENDIX

ISSUE PRESENTED FOR REVIEW Electors in Racine County brought an action in circuit court to contest the outcome of a referendum that the Racine Unified School District Board of Canvassers decided had passed by a margin of 5 out of 33,415 votes following a statutory recount pursuant to Wis. Stat. § 9.01, et seq. The “Contested election” statute, Wis. Stat. § 7.54 states that, “In all contested election cases, the contesting

parties have the right to have the ballots opened and to have all errors of the inspectors, either in counting or refusing to count any ballot, corrected by the board of canvassers or court deciding the contest. . . .”

Issue: Under such circumstances, does Wis. Stat. § 7.54 vest in challenging parties the right to review in open court ballots they assert were miscounted such that an incorrect election outcome will be sustained unless the errors alleged by the challengers are corrected by the circuit?

The circuit court dismissed the matter without addressing this question. At each level petitioners have argued that Wis. Stat. § 7.54 creates a right in parties contesting an election to view the ballots being challenged in open court. This issue constitutes the exclusive subject of the parties’ briefs to the appellate court.

The Court of Appeals explained that Wis. Stat. § 7.54 “authorizes” a court to open the ballots being disputed but does not require it do so. The court of appeals never explicitly answers the question this case

2

begs the Court to take review of, but implicitly determines that where an election contest is raised in the circuit, a contesting party will never have the right to view in open court ballots it contends were miscounted by the board of canvassers that administered the recount – rather, it saw the review of ballots as an option falling within the realm of pure judicial discretion.

The Court of Appeals answered incorrectly. The correct answer is yes, Wis. Stat. § 7.54 vested in the Petitioners an absolute right to review the ballots they contend were erroneously counted and which, if corrected, would reverse the referendum outcome.

3

SHORT STATEMENT OF CRITERIA FOR REVIEW The Wisconsin Supreme Court should grant review in this case because it meets the criteria set forth in sections 809.62(1r)(c)2-3 and (d).

Specifically, accepting this case will help develop and harmonize the election law of this state by reconciling tensions between section 7.54 of the statutes, and sections 9.01 et seq. The issue is novel in that it is the only case so far ever to address this tension, and the first case in almost 90 years to seek a construction of section 7.54.

Additionally, it involves a referendum, which differs in important ways from an election among candidates for office, and it addresses an alleged objective counting error of canvassers, rather than the subjective review of voter intent raised in most election cases. Because the key issue is construction of a state statute, the impact of a decision will be statewide.

The issue is almost purely one of law, since it principally involves interpretation of a statute, and the issue is likely to recur because Wisconsin plans to remain a representative democracy with regular elections, and because litigation of election results appears to be the order of the day.

4

Finally, the decision of the Court of Appeals appears to Petitioners to be directly in conflict with a state statute, and the last Supreme Court decision to inform the interpretation of that statute -- the statute at issue in this case, section 7.54.

5

STATEMENT OF THE CASE Summary After reviewing more than 33,000 votes over a sixday recount, the Racine Unified School District (“RUSD”) Board of Canvassers (“BOC”) reported that a referendum held during the April 7, 2020 election had passed by a margin of five. Petitioners –who had participated actively in the entire recount process– appealed the determination of the BOC to the circuit.

Alleging that the BOC

miscounted some ballots which, in turn, led to the incorrect outcome, Petitioners requested the court to afford them review the ballots on several occasions but were denied. In the Court of Appeals, Petitioners argued for the cause to be remanded and that they had a right under Wis. Stat. 7.54 to examine the ballots in open court.

The Court of Appeals affirmed the circuit by way of a Summary Disposition.

6

The Referendum RUSD includes the City of Racine and the villages of Caledonia, Elmwood Park, Mount Pleasant, North Bay, Sturtevant, and Wind Lake. Wis. Stat. § 120.40. A measure proposed in the April 7, 2020 election – if passed – would grant the RUSD the authority to spend over one billion dollars ($1,000,000,000) over a thirty-year period. R.48:44.

The initial referendum results published on April 7, 2020, indicated that the measure passed by only five out of 33,491 total votes. R.38:14. Petitioners, who had voted in the referendum, timely filed with the RUSD a Verified Recount Petition on April 14, 2020. R.45:3-4.

The RUSD BOC commenced a recount on April 18, 2020, which it completed April 24, 2020. R48:1.

As part of a larger group, Petitioners participated in the

recount

conducted

by

the

BOC.

R.25:6,11,16,17,18,19,21,23,24,25,28,29,30,35. Due to COVID19, the standard recount protocols and procedures were altered. R.74:8-9. Petitioners were required to stand six feet away from canvass. Id.; R.48:2.

Additionally, the BOC afforded observers an opportunity to inspect the election materials but only in instants it was itself considering the material. R.74:9.

Inspection was facilitated by (1) projecting the material

7

being reviewed on screen; and, (2) conveying the material by a wheeled-cart to a space to allow a closer view. R.74:79.

On April 27, 2020, the BOC published its certified results declaring the referendum again passed by five votes out of 33,415, which is 66 fewer total votes counted than in the initial results. R.48:5. The recount breakdown is 16,715 to 16,710. R.48:5.

In the Circuit Court After the BOC released its certified recount results, Appellants instituted an action in circuit court. R.23:1.

Petitioners-Appellants did not demand a second full recount. Their Complaint, from paragraph 39 through 50, specifies those wards for which a review of the ballots was being requested in this contest, and the exact discrepancy in each set of wards between the result determined by the BOC’s tabulation and what PetitionersAppellants contend to be the true result. R.23:6-8. This is illustrated in a table that was included in the Brief of Petitioners-Appellants at 6 and which is included in the Appendix at page 190.

The

margin

of

victory

was

~00.0149%

or

approximately one in every sixty-six hundred voters. If the

8

court had addressed and substantiated Petitioners’ contentions, this would have resulted in an increase in the “No” votes by a net of 20, which far exceeds the number of votes required to reverse the referendum.

Petitioners-Appellants anticipated requesting a review of the ballots, sought actions consistent with this request, and ultimately made repeated requests for the ballots to be opened and reviewed.

At page 3 in their Notice of Appeal from the Board of Canvassers’ determination, Petitioners-Appellants sought the circuit to “issue an order directing each affected municipal clerk, to transmit immediately all ballots, papers, and records affecting the appeal to the Clerk of Court….” R.1:3 (emphasis added).

On May 28, 2020, Petitioners-Appellants filed with the court their Complaint, alleging, inter alia, that the BOC had incorrectly tallied votes during its recount, citing to Wis. Stat. §§ 9.01(6) and 9.01(7). R.23. PetitionersAppellants requested the court to (1) ultimately “determine that there were more ‘No’ votes than ‘Yes’ votes in the referendum” and (2) order “RUSD [to] make available all election materials.” R.71:1,6-9.

9

During the June 22, 2020 Status Conference, Petitioners-Appellants requested explicitly to view the ballots: …

THE COURT: I’ll go around once more and see if there’s anything further that either party requests and then the hearing will be concluded. . . .

MR. BOBOT: Your Honor, I would make the request that we be allowed to examine the ballots and the wards that we identified were miscounted.

THE COURT: I’ll –- I’ll address that in my decision. You could –MR. BOBOT: Okay.

THE COURT: -- put that in your two-page.

MR. BOBOT: I will, Your Honor.

THE COURT: I will address it in my decision. …

R.77:33-34.

Four days later, Petitioners filed their “two-page” (brief) entitled “Petitioner’s (sic) Repeated Demand to Examine and Recount Ballots,” demanding the court open the ballots and allow Petitioners-Appellants to review the

10

ballots in open court. R.64 The opening paragraph states, in relevant part: “Petitioners also have the right to have those votes recounted in their presence in open court.

Petitioners, through their legal counsel, have made that demand to this Court and again are making that request.”

R.64:1-2. Petitioners-Appellants therein presented their core legal arguments. Id. The Circuit Court Order On July 10, 2020, the Racine County Circuit Court, Hon. Michael J. Pointek presiding, affirmed the recount as certified by the BOC. R74:24. There, the circuit court’s disposition largely focused on the propriety of the BOC’s general “process” and “procedure,” R.74:13,14,21,23,24, videlicet: (1) A review of the records, procedure and facts. . .causes the Court to find that the procedure utilized by the BOC in this recount was proper and provided an accurate result. (R.74:21); (2) The Court finds that the recount procedure utilized was open and fair and did not deny any observer the meaningful, statutory or constitutional right to observe, object or otherwise participate in the recount. (R.74:14);

11

(3) [T]he procedure utilized by the BOC did not deny the right of anyone to view, request or challenge any action taken during the recount. (R.74:13); (4) The process or procedure of allowing viewing (large-screen TV) and allowing access (wheeled carts), as long as requests were made at the time the specific election document was being considered, is found to be fair and reasonable. (R.74:23-24); and, (5) The BOC’s decision to manage through process or procedure the granting or denial of access to election materials was a reasonable exercise of their authority and not contrary to law. (R.74:24.) (emphases added).

Although the court had twice stated during the June 22, 2020 Status Conference that it would address the request that that ballots be opened, R.77:33-34, and despite the fact that its order twice acknowledged Petitioners’ two-page brief making that request, R74:11, 17, nevertheless, the court’s decision held its silence on Petitioners’ right to review the ballots, R.74, and in fact Petitioners-Appellants were given no opportunity to review the ballots at the circuit court level despite their several requests.

12

Court of Appeals On August 24, 2020, Petitioners filed a Notice of Appeal and two days later an Amended Notice of Appeal.

The sole issue raised on appeal was: whether the court erred by denying Petitioners the review of the ballots in open court. Petitioners-Appellants Brief at 1.

The matter was fully briefed on January 19, 2021 and submitted to the court February 11, 2021. On March 17, 2021, the Court of Appeals, District 2, entered its opinion and order via a Summary Disposition explaining that “Although the statute authorizes the opening of ballots in court, it does not require that a court do so.” Pet-App. at 103.

This petition for review followed.

13

ARGUMENT I. REVIEW IS PROPER UNDER WIS. STAT. § 809.62(1r)(c).

A. Develop and Harmonize.

The issue presented for review is an important area in which the court may wish to develop and harmonize the law. In this case, that particularly means reconciling the tension, discussed below, between chapter 9 of the statutes, which creates a system for recounts that defers greatly to canvassers, and section 7.54 of the statutes, which nevertheless creates a right to inspect ballots in court and correct errors.

B. Novel Question.

The issue presents a novel question of law, in that it is the first case to examine this tension, and in fact the first case in a long long time to address the meaning of Wis. Stat. § 7.54 and the contours of the rights it declares.

The provisions codified in present section 7.54 of the statutes, titled “Contested Elections” have been a notably stable part of the statutory scheme since their initial passage in 1905, remaining a virtual constant in our election laws which otherwise have undergone significant change over the past century. Compare Wis. Stats, § 7.54

14

(2019), with 1905 Wis. Act 87. The “Contested elections” law has been reenacted twice throughout its legislative history, but each change reflected no more than stylistic differences from its predecessor law. 1965 Wis. Act 666; 1983 Wis. Act 484. It states: Contested elections. In all contested election cases, the contesting parties have the right to have the ballots opened and to have all 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.

It is now nearing a century since this Court interpreted the “Contested elections” provision. The last time occurred in 1933, when this Court published the only reported decision engaging in an analysis of the “Contested elections” law and which discussed the interaction between that provision and the election laws of that time. See State ex rel. Graves v. Wiegand, 212 Wis. 286, 249 N.W. 537 (1933).

The central issue in Wiegand concerned whether ballots improperly stored should have been disqualified.

15

The challenger, a candidate who lost the election for Shawano County clerk by seven votes, contended that ballots were unreliable. Id., 249 N.W. at 538-39. This Court determined that the ballots were reliable and thus upheld the results of the recount conducted by the board of canvassers without opening the ballots. Id. at 541. The court explained: “The original statement of the canvassing board as evidence of the result of an election is temporarily sufficient, and, if unchallenged, is conclusive . . .. But when challenged in recount proceedings the canvassers or the court will examine with the aid of the ballots into the fact in issue. [The] statement of the board of canvassers is ‘provisionally preferred testimony.’”

Id. at 540 (internal citation omitted).

The challenger in Wiegand did not argue that the any of the ballots were miscounted or that any ballot was misinterpreted by the board of canvassers. Rather, he sought to have some of the ballots disqualified. By deciding that the ballots being challenged in Wiegand were reliable, this Court resolved the core issue being disputed in Wiegand. Id. at 541.

Conversely, the case at bar is not challenging the reliability of the ballots but contends that the board of

16

canvassers made a counting error. According to the Wiegand Court, where the outcome is challenged in recount proceedings, “the canvassers or the court will examine with the aid of the ballots into the fact in issue” (emphasis added). Furthermore, quoting State ex rel Schuetz v. Luy, 103 Wis. 524, 528, 79 N.W. 776, it reiterated that “In a judicial controversy. . .over the result of an election, it is the duty of the court to rectify [omissions or mistakes]” (emphasis added). This is mandatory language, the language of rights.

This outlook did not accord great deference to canvassers: the weight accorded to the determination of the canvassers was merely that of “provisionally preferred testimony” which is secondary evidence to the ballots themselves, fading in importance once the ballots themselves were opened and examined.

The Court of Appeals, in deciding this contest, perhaps considered parts of Wiegand the Petitioners rely on to be mere dicta as it appears to overlook the Petitioners’ citations of Wiegand as controlling authority.

Compare, Pet-App. 101-103, with Petitioners-Appellants Brief. If that is correct, then the criteria for granting review of the “Contested elections” law issue raised by this case is even more strongly supported, seeing as it would

17

constitute an issue of first impression. Either way, the Court of Appeals misreads Wiegand.

The interplay between Wis. Stat. § 7.54 and Wis. Stat. § 9.01, et seq, is a significant issue for consideration.

Petitioners recognize that, in general, the Wiegand decision is no longer in full effect. 1983 Wis. Act 183 made several changes to the “Post-election Actions” in Chapter 9 of the statutes by creating the present version of Wis. Stat. § 9.01(8), which for the first time gave significant and binding deference to the findings of the board of canvassers, consequently limiting the scope of judicial decision-making and authority. (But see also, Carlson v.

Oconto County Board of Canvassers, 2000 WI APP 20, ¶8, 240 Wis.2d 438, 443, 623 N.W.2d 195, 197 (“Interpretation of Wis. Stat. § 9.01 is based on public policy articulated in early legal decisions that predated § 9.01.”)

Prior to 1983 Wis Act. 183, there was apparently confusion in the courts as to the deference to be accorded the board of canvassers. For example, take the unpublished case of Soderbloom v. Manske, 107 Wis.2d 744, 321 N.W.2d 367 (1982).1 There, at footnote 3 and 1

Petitioners cite this case solely as a historical illustration, not as support for its holding or anything else stated in the decision. Because it is not cited as authority or precedent, this use does not violate section 809.23(3)(a).

18

throughout, the court highlights the existing legal ambiguity on the issue of deferring to the canvassers by explaining that the parties and circuit down to the three individual judges on the Court of Appeals panel all disagreed on how much deference must be accorded to the canvassers and what was the role of a court. Id. (“The Dane County court noted that there is little law defining the role of a court in a recount appeal.”)

At the time of Wiegand, no such limitation existed.

Since the enactment of 1983 Wis. Act 183, challenges to the determination of a canvassers made during recount have ended in the canvassers’ determinations being upheld in every published decision reviewed by Petitioners. See Logerquist v. Board of Canvassers for Town of Nasewaupee, 150 Wis. 2d 907, 912, 442 N.W.2d 551, 553-54 (Ct.App.1989) (“[T]he statutory scheme for a recount ‘places a premium’ on the Board’s judgment to give effect to the will of the electorate [and so 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.”); Carlson, 2000 WI APP at ¶5.

However, those challenges have tended to depend upon a consideration 0f whether the canvassers

19

determined properly that the ballot expressed a certain intent held by the voter, the very kind of subjective determination where the canvassers ought to be accorded the most deference. Id. Petitioners here contend there are limitations to the reach of deference that Wis. Stat. § 9.01(8) affords the canvassers and that it does not work to abrogate Wiegand or Wis. Stat. § 7.54 wholesale.

This case does not contest the canvassers with respect to their factual findings regarding the intent of any given ballots. Here, Petitioners are challenging the counting of the ballots. That is in fact a further novelty of this case which commends it for review. Petitioners interpret the deference accorded a board of canvassers under Wis. Stat. § 9.01(8) as not extended to counting the ballots –a ministerial function that is carried out separately from making findings of fact to determine the intent of a voter. This distinction is crucial and explains why the legislature has continued to re-enact the Contested Elections statute.

Furthermore, the general abrogation suffered by Wiegand may not actually extend to referenda, which this case concerns –a further novelty. Wis. Stat. § 9.01(11) sets forth that Wis. Stat. § 9.01 “constitutes the exclusive judicial remedy for testing the right to hold an elective

20

office. . . .” Of course, this contest concerns a referendum and is clearly not concerned with a contest for elective office. Policy considerations surrounding elections for office differ in a host of ways from referenda, among them is balancing the accuracy of the election results with finality of the contest to ensure continuity of our democratic government. See State ex rel. Shroble v.

Prusener, 185 Wis.2d 102, 116, 517 N.W.2d 169, 174. Thus, this court is further called upon to address whether contested elections involving referenda are limited to Wis. Stat. § 9.01 as their “exclusive judicial remedy”.

If Petitioners prevail, this will have been the first time since 1983 Wis. Act 183 that the Court determines that a function of the canvassers is not extended judicial deference but holds weight more akin to “provisionally preferred testimony.” State ex rel. Graves v. Wiegand, 249 N.W. 540.

C. Statewide Impact.

There is no question that resolution of this case by the Supreme Court would have a statewide impact.

Critically, the only issue is the construction of state statutes. Nothing in this matter depended on a county ordinance, local rule, or protocol adopted by the Board of

21

Canvassers. There is therefore no geographical limit to the reign of any decision that would be made.

There are 72 counties in the State of Wisconsin, and hundreds of towns, villages, cities, water districts, sewer districts, school districts, judicial and Congressional districts and so on, each of which holds elections. A general election law like section 7.54 affects all of them, and a decision on this section would thus have great statewide impact.

D. Question of Law Likely to Recur.

There are at most a handful of facts that the court may or may not rely upon in deciding this matter: the type of election, the thin margin of victory, and the nature of the errors allegedly made by the canvassers. Even if these facts are determined to play a role in the outcome, the issues brought forth are by no means fact-intensive. Those few facts that may come into play are not contested.

Fundamentally, this case is about the judicial construction of the Contested Elections statute, section 7.54 –a pure issue of law.

Election contests and close elections are nothing new. The Wiegand case of 1933 involved an election decided by 7 votes: Wiegand had 4,952 votes; Graves had

22

4,945. See also, Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2004 WI 6, 268 Wis. 2d 335, 677 N.W.2d 599.

Not only are these types of disputes historically common, but recent experience suggests a polity that is becoming increasingly polarized, with parties more and more willing to contest close elections at any cost.

Furthermore, the Court of Appeals decided the matter through a summary disposition, which holds no precedential value. While this may make it seem less important that the Court of Appeals decision be addressed here, the lack of a precedent argues in favor of review, because it means that the issues in this case remain susceptible to being raised again in future election contests if not settled now.

II. REVIEW IS PROPER UNDER WIS. STAT. § 809.62(1r)(d).

As evident from the discussion had in Section I.B., above, the Court of Appeal’s decision conflicts with Wiegand. In challenges to an election determination where the construction or counting of the ballots is involved, Wiegand mandates that a review of the ballots be performed.

23

Specifically, the Wiegand Court stated that “The result obtained by a careful recount of the ballots prevails over tabulations of the inspectors of election and canvassing boards.” Id. The next sentence in the decision makes it clear that this Court was calling upon the reviewing in a contested election to make such corrections. Id. at 540 citing State ex rel Schuetz v. Luy, 103 Wis. 524, 528 (“In a judicial controversy. . .over the result of an election, it is the duty of the court to rectify [omissions or mistakes].”); See also, Attorney General v.

Barstow, 4 Wis. 567. To the Wiegand court, the Contested Elections statute meant what it said: parties contesting an election had a “right” to have the ballots opened in court and to have the court correct errors.

Admittedly, the primary issue in Wiegand was not the interpretation of that law. However, this Court based its decision upon a complete analysis of Wis. Stat. § 6.60 (1931-32), which included the original version of the “Contested elections” law: “In all cases of contested elections the parties contesting the same shall have the right to have said ballots opened, and to have all errors of the inspectors in counting or refusing to count any ballot, corrected by the court or body trying such contest, but such ballots shall be opened only in open court or

24

in open session of such body and in the presence of the officer having the custody thereof.”

State ex rel. Graves v. Wiegand, 249 N.W. 539 citing Wis. Stat. § 6.60(4) (1931-32) (emphasis added).

The Wiegand Court relied on the plain meaning of the statute. It did not turn the meaning of “right” on its head, as did the Court of Appeals in this case. To this Court in 1933, a “right” was something required to be respected and honored; a right established by the legislature was not a mere object of judicial discretion.

25

Conclusion WHEREFORE, Petitioners respectfully request this Court grants them review.

Respectfully submitted, SIDDIQUE LAW, LLC

___________________________ M. Samir Siddique State Bar No. 1121714 Gary E. Grass State Bar No. 1035738 Vincent J. Bobot State Bar No. 1020732

Siddique Law, LLC M. Samir Siddique, Esq. 6060 N 77th Street Milwaukee, WI 53218 attorneysiddique@gmail.com (414) 231-1635

26

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

FORM AND LENGTH CERTIFICATION I certify that this brief meets the form and length requirements of Rule 809.19(8)(b) and (d) in that it is: proportional serif font, minimum printing resolution of 300 dots per inch, 13-point body text, 13 points for quotes, and 12 points for footnotes, leading of minimum 2 points and maximum of 60 characters per line. The length of the brief is 4,269 words as calculated by the word count function in Microsoft Word –Office 365.

Dated this Sixteenth Day of April, 2021.

______________________________ M. SAMIR SIDDIQUE

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

CERTIFICATION OF ELECTRONIC FILING I hereby certify that I have submitted an electronic copy of this brief which complies with the requirements of sections 809.19(12) and 809.62(4). I further certify that this electronic brief is identical in content and format to the printed form of the brief filed as of this date. A copy of this certificate has been served with the paper copies of this brief filed with this Court and served on all opposing parties.

Dated this Sixteenth Day of April, 2021.

______________________________ M. SAMIR SIDDIQUE

b

STATE OF WISCONSIN IN SUPREME COURT *********

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

APPENDIX CERTIFICATION I hereby certify that filed with this petition, either as a separate document or as a part of this petition, is an appendix that complies with Wis. Stat. § 809.62(2)(f) and that contains (1) the decision and opinion of the court of appeals; (2) the judgments, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition; and (3) any other portions of the record necessary for an understanding of the petition. I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

Dated this Sixteenth Day of April, 2021. ______________________________ M. SAMIR SIDDIQUE

c

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

CERTIFICATION OF COMPLIANCE WITH SECTION 809.19(13) I hereby certify that I have submitted an electronic copy of the appendix, which complies with the requirements of Wis. Stat. § 809.19(13). I further certify that: The electronic appendix is identical in content to the printed form of the appendix filed as of this date. A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.

Dated this Sixteenth Day of April, 2021.

______________________________ M. SAMIR SIDDIQUE

d

STATE OF WISCONSIN IN SUPREME COURT *****************

No. 2020-AP-1271-AC JAMES SEWELL, DENNIS MONTEY, and GEORGE MEYERS, Petitioners-Appellants-Petitioners, v.

RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES FOR OUR CHILDREN, A REFERENDUM COMMITTEE, CHELSEA POWELL, and THE RACINE UNIFIED SCHOOL DISTRICT, Respondents-Respondents-Respondents.

APPENDIX TO PETITION Table of Contents Document

Page

Court of Appeals Decision .........................................101-104 Circuit Court Order ......................................................... 105 Circuit Court Order and Decision ........................... 106-130 BOC Recount Report ................................................. 131-133 BOC Recount Minutes ...............................................134-135 BOC Recount Notes .................................................. 136-154 BOC Breakdown of Recount Results........................ 155-158 BOC Individual Reporting Unit Tabulations .......... 159-189 Graph Illustrating Petitioners’ Challenge ...................... 190

e