DeBroux v. Board of Canvassers

557 N.W.2d 423, 206 Wis. 2d 321
CourtCourt of Appeals of Wisconsin
DecidedNovember 6, 1996
DocketNos. 96-1287, 96-1309, 96-1335
StatusPublished
Cited by1 cases

This text of 557 N.W.2d 423 (DeBroux v. Board of Canvassers) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeBroux v. Board of Canvassers, 557 N.W.2d 423, 206 Wis. 2d 321 (Wis. Ct. App. 1996).

Opinion

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

[324]*324We 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 Wiscon[325]*325sin'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 ...: 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 refer-enda, 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 com[326]*326pleted 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 [327]*327District 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 8.80 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 explanátion 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 [328]*328election 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(l)(b)10, Stats., specifically provides:

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Related

DeBroux v. BOARD OF CANVASSERS FOR CITY OF APPLETON
557 N.W.2d 423 (Court of Appeals of Wisconsin, 1996)

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