STATEMENT OF THE CASE

STATE OF WISCONSIN I N S U P R E M E C O U R T

***************** 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

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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.

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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.

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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.

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Summary STATEMENT OF THE CASE

After reviewing more than 33,000 votes over a six-

day 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.

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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

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being reviewed on screen; and, (2) conveying the material by a wheeled-cart to a space to allow a closer view. R.74:7-

9.

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

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