Another Upper Midwest recount? Wisconsin, though, uses very different procedures from Minnesota’s

It’s déjà vu in the Upper Midwest, with the Wisconsin Supreme Court race headed for a good, old-fashioned Minnesota recount and, perhaps, with some key Minnesota recount personalities.

A quick-and-dirty look at the upcoming recount between sitting Justice David Prosser and his challenger, Assistant Attorney General JoAnne Kloppenburg, shows some key differences between the rules in the two states.

And the two sides are starting preparations.

MinnPost has learned, for example, that Washington, D.C., recount expert Chris Sautter, a national recount tactician and a key leader in training recount volunteers for Al Franken during the 2008 Senate recount against Norm Coleman, has been contacted by Kloppenburg supporters. He has not yet been hired.

And we know that Perkins Coie — the law firm that represented Franken and worked for Gov. Mark Dayton in his 2010 recount against Tom Emmer — has a substantial presence in Madison.

Marc Elias, Franken’s lead lawyer, heads Perkins’ political unit out of Washington, D.C. Elias was unavailable this morning. Our instincts and reliable whispers tell us he might become a key player in Wisconsin, too.

Marc Elias
MinnPost/Jay Weiner
Marc Elias

On to the differences and some numbers to get our heads around:

• For now, Kloppenburg is ahead by 204 votes. This is before the canvass of all the voting machines has been completed. Remember, numbers bounce around in this phase, sometimes by thousands. It has happened in Minnesota elections.

Let’s wait to see what the actual margin once the canvassing is completed in the next few days.

• Once the canvassing is completed, and if there’s a recount, the Wisconsin system is NOT a hand recount, like Minnesota’s system. Instead, local officials put the paper ballots back through the voting machines.

(Some precincts still use hand-written paper ballots, and those are counted by humans.)

But running ballots through machines is good for whoever is ahead after the canvass.

That’s because of Basic Recount Theory 101: The winner of an election wants a recount to replicate the method of counting on Election Night. If you’re ahead, don’t fudge with the counting system. Voting machines are pretty darn accurate.

If you’re behind, figure out a different way to count those ballots. The outcome could be different, too.

JoAnne Kloppenburg
JoAnne Kloppenburg

But the challenging of ballots as to voter intent — was that an ‘X’ through the oval? Did that person fill in parts of two ovals? Is Lizard People a write-in? — seems difficult in Wisconsin.

• The hand recount: If a candidate loses the recount, he or she can demand a hand recount only under some tough circumstances. Read the relevant part of the statute here.

“The petitioner in such an action bears the burden of establishing by clear and convincing evidence that due to an irregularity, defect, or mistake committed during the voting or canvassing process the results of a recount using automatic tabulating equipment will produce incorrect recount results and that there is a substantial probability that recounting the ballots by hand or another method will produce a more correct result and change the outcome of the election.”

Hello, billable hours. This is where the lawyers come in. Mr. Elias, take your seat.

• The numbers: assuming the margin stays around 200, that is razor thin. Remember, after Minnesota’s canvass of voting machines in 2008, Sen. Coleman led by 215 votes. That was out of about 3 million votes. Thus, adjusting for vote totals, the Coleman lead was half as big as Kloppenburg’s.

Still, historically speaking over the past 25 years or so, that 200 number is in a sweet spot of flippability … if we can coin a recount phrase.

If this race stays in those margins, a recount could change the outcome. It’s more difficult to flip it with Wisconsin’s method and no hand recount. But it’s possible.

• The politics are tricky: This was a “nonpartisan” election. Although Kloppenburg symbolized opposition to Gov. Scott Walker and Prosser, a former GOP legislator, was seen as a surrogate for the budget-slashing governor, these judicial candidates are not supposed to be party-backed.

Justice David Prosser
Justice David Prosser

Clearly, the two political parties will be helping out in any recount.

What does that mean going forward? If the Dems’ financial support ensures a Kloppenburg victory or the GOP’s cash aids a Prosser win, are these Supreme Court justices receivers of “gifts” from political parties?

• Oversight: The recount is initially overseen by something called the Government Accountability Board in Wisconsin, not by the secretary of state. We hear it’s a solid, nonpartisan board. That’s good.

But what if this gets into the courts? First, it goes to the Wisconsin Court of Appeals. But, apparently, it could then be appealed to the Supreme Court, on which Prosser sits, along with all of his colleagues.

How does that work? Verrrry interesting. And I’m glad to know that another state is just as divided as Minnesota.

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Comments (3)

  1. Submitted by Sally Mortenson on 04/07/2011 - 02:09 pm.

    I am curious about absentee ballots. They were a big factor in the Minnesota recount (as discussed at length in your book). Are there uncounted absentee ballots in WI? Have the Republicans in WI learned that they need to immediately have their forces organized- unlike the MN Republicans in the C-F recount? And, finally, where will the money come from for all of this?

    Your book was a real “page turner.” I look forward to your coverage of this recount.
    Sally Mortenson

  2. Submitted by Greg Kapphahn on 04/07/2011 - 02:28 pm.

    Expect skullduggery.

    Considering the well-demonstrated willingness of Gov. Walker and the Wisconsin brand of Republicans to run roughshod over other people’s rights and skirt the requirements of state law in the service of their big-money masters, I’m expecting that they will bend and twist the law in any way they can including pursuing behavior the rest of us would see as lying and cheating (but which they will see as completely justified in the pursuit of their greater goals).

    I can only hope their sealing and tracking of all election night ballots is as ironclad as our own.

  3. Submitted by Steven Prince on 04/07/2011 - 03:03 pm.

    I read § 590.1 differently. Yes, the initial recount will be done by machine (if the initial count was done that way), but each ballot would also be hand reviewed to look for initials and distinguishing marks. That suggests challenges to individual ballots will happen in the initial recount.

    Additionally, the statute requires that “the ballots marked ‘Rejected’, ‘Defective’ and ‘Objected to” are also reviewed as part of the initial recount. At a minimum, some number of undercounts (ballots rejected as unreadable) will also be reviewed by hand. Since each ballot is already being reviewed for initials and marks, there is likely to be a fight about which ballots should also be reviewed as “defective” or “objected to.”

    So, it looks like there will be hand review of some, if not all ballots in the initial recount, and when all the legal fighting is concluded regarding that recount, the losing candidate will have a pile of evidence with which to seek an additional “hand” recount. This process could take a lot longer then the process in MN.

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