Unanimous state Supreme Court affirms Racine’s spring 2020 referendum results

By: - April 12, 2022 1:14 pm
East gallery in the Wisconsin State Capitol at Supreme Court entrance from across the rotunda

Wisconsin Capitol East Gallery, Supreme Court (Keith Ewing | Flickr CC BY-NC 2.0)

In a unanimous decision, the Wisconsin Supreme Court upheld the results of the Racine Unified School District’s April 2020 referendum — which was passed by just five votes in an election in which more than 30,000 votes were cast. 

The referendum is expected to cost Racine-area taxpayers $1 billion over the next 30 years to help pay for new schools and facility improvements. 

The decision could affect how recounts are handled in a state with frequently narrow election results. Wisconsin’s presidential elections in 2016 and 2020 both involved recounts

“I think looking at this more broadly and what the court’s decision means going forward here, it’s much broader than this local recount,” says Mel Barnes, an attorney for progressive legal outfit Law Forward, which filed an amicus brief in the case. “The legal theory that the petitioners put forward in their original claim here is really quite extraordinary. I think that’s why you see the opinion being so clear cut. This is a 9-0 opinion.” 

“This theory was so untenable that this is truly never going to be raised seriously again,” she continues. “As far as the implications of the broader challenge here, we are going to continue to have close elections in Wisconsin, whether it’s local elections or statewide elections. It’s really important we have agreed upon rules of the road when elections are close, including a predetermined method for challenging those results or having a recount. That is a really core part of having a good process. Wisconsin’s state law is super clear about how a recount is conducted and the fact it is the exclusive means of challenging an election.”

After the referendum passed by one one-hundredth of a percentage point, a group of voters — James Sewell, George Meyers and Dennis Montey — challenged the close results and requested a recount. 

Because the election and recount were held in the early days of the COVID-19 pandemic, certain measures were put in place to protect election workers and observers. At the recount, all ballots were opened and counted again while observers could see the ballots projected on a TV screen and could request to have them wheeled closer in a cart. 

The recount discounted some ballots because of some defects, but the result remained at a five-vote margin in favor of passage. The group that requested the recount appealed the Racine Board of Canvassers recount to a Racine County Circuit Court, alleging that the recount was wrong. 

In the circuit court case, the group requested that some of the ballots be opened and recounted again in open court. The group relied on a statute that states “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.”

The group said that even though the ballots were opened during the recount, they also have the right to request they be opened again in court. They argued in their appeal that if there were mistakes made during the recount, the best way to determine that would be to open them again and check. 

“Were the ballots miscounted?” the group’s appeal brief stated. “The only appropriate reaction to this question is to open the ballots and allow them to be reviewed because the ballots speak for themselves.”

Samir Siddique, an attorney for the group of voters, says he’s surprised at the result. 

“I’m a little surprised but we respect the court’s decision, this is the process,” he says. 

The circuit court judge ruled that the Board of Canvassers properly conducted the recount and affirmed the referendum’s results. The group then appealed that decision. The appellate court found that the statute doesn’t apply in this case and also affirmed the results. 

On Tuesday, the Supreme Court agreed with the findings of both lower courts, ruling that the one time the ballots were reopened was enough. The decision marks a rare occasion in which the justices on the state’s highest court are entirely in agreement on an election-related issue. Over the past two years it has frequently split 4-3 in cases over election administration spanning issues from how to hold an election during a pandemic to former President Donald Trump’s attempts to overturn his 2020 loss. 

The decision states that once the ballots are reopened in a properly conducted recount, a challenger cannot force a court to open the ballots again, closing off election results from repeated and indefinite challenges. 

“The circuit court concluded that, from the entirety of the record, the procedures utilized by the Board of Canvassers were ‘open and fair and did not deny any observer the meaningful, statutory or constitutional right to observe, object or otherwise participate in the recount,’” Justice Patience Roggensack wrote in the opinion. “As the circuit court correctly explained, the amended complaint shows that Sewell misunderstood what a recount actually is. In addition, Sewell has identified no specific errors by the Board of Canvassers, for which he has sought our review.”

In Wisconsin, Republicans have spent the year and a half since the 2020 presidential election pursuing an investigation based on disproven allegations that the election was stolen from Trump because of widespread fraud.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.

MORE FROM AUTHOR